nationalsecuritylaw Zivotofsky v. Secretary of State (D.C. Cir. July 23, 2013) (holding that president holds exclusive power to recognize foreign nations)

July 25, 2013

An interesting and important decision by the D.C. Circuit earlier this week (panel opinion by Henderson joined by Rogers, with concurring opinion by Tatel). Posted here:$file/07-5347-1447974.pdf. Key passages:

Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350, requires the Secretary (Secretary) of the United States Department of State (State Department) to record “Israel” as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian so requests. Id.§ 214(d), 116 Stat. at 1366. The Secretary has not enforced the provision, believing that it impermissibly intrudes on the President’s exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. We agree and therefore hold that section 214(d) is unconstitutional.

[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. Both parties agree that this case falls into category three. In this category the President may nonetheless exercise—and the Congress cannot invade—the President’s “exclusive power.” 637 n.4. The question here is whether exclusive Executive branch power authorizes the Secretary to decline to enforce section 214(d).

We first address the recognition power and, in particular, whether the power is held exclusively by the President.

Having reviewed the Constitution’s text and structure, Supreme Court precedent and longstanding post-ratification history, we conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign.

Having concluded that the President exclusively holds the recognition power, we turn to the “passport power,” pursuant to which section 214(d) is alleged to have been enacted. We must decide whether the Congress validly exercised its passport power in enacting section 214(d) or whether section 214(d) “impermissibly intrudes” on the President’s exclusive recognition power. Zivotofsky V, 132 S. Ct. at 1428.

The question we must answer, then, is whether section 214(d)—which speaks only to passports—nonetheless interferes with the President’s exclusive recognition power. Zivotofsky contends that section 214(d) causes no such interference because of its limited reach, that is, it simply regulates one detail of one limited type of passport. But the President’s recognition power “is not limited to a determination of the government to be recognized”; it also “includes the power to determine the policy which is to govern the question of recognition.” Pink, 315 U.S. at 229. Applying this rule, the Pink Court held that New York State policy was superseded by the Litvinov Assignment when the policy—which declined to give effect to claims under the Litvinov Assignment—“collid[ed] with and subtract[ed] from the [President’s recognition] policy” by “tend[ing] to restore some of the precise impediments to friendly relations which the President intended to remove” with his recognition policy. Id. at 231.

With the recognition power overlay, section 214(d) is not, as Zivotofsky asserts, legislation that simply—and neutrally—regulates the form and content of a passport. Instead, as the Secretary explains, it runs headlong into a carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem.

[W]e are not equipped to second-guess the Executive regarding the foreign policy consequences of section 214(d). See, e.g., Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)…see also Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) … As the

Executive—the “sole organ of the nation in its external relations,” Curtiss-Wright, 299 U.S. at 319—is the one branch of the federal government before us and both the current Executive branch as well as its predecessor believe that section 214(d) would cause adverse foreign policy consequences (and in fact presented evidence that it had caused foreign policy consequences), that view is conclusive on us. Cf. United States v. Nixon, 418 U.S. 683, 710 (1974) (“[T]he courts have traditionally shown the utmost deference to Presidential responsibilities . . . . involving foreign policy considerations . . . .”).

nationalsecuritylaw upcoming event August 1 Careers in National Security Law Program

July 24, 2013

Upcoming event (see also the attached document)

Please share with your summer associates, interns, law students, and friends!

Careers in National Security Law Program

Thursday, August 1, 2013 – 5:00 – 6:30 p.m.

program and networking reception

Arnold & Porter, 555 Twelfth Street, NW, 10th Floor, Washington, DC

Flyer attached; rsvp requested

SCOLNS & CNSLPP event 1 August 2013.pdf

nationalsecuritylaw upcoming event – teleconference on drone issues (Thursday)

July 23, 2013

Targeted Killings by Drones:
A Frank Discussion of International and U.S. National Legal Implications

A free non-CLE teleconference proudly presented by
ABA Section of International Law
International Human Rights Committee

Co-sponsored by
Aerospace & Defense Industries Committee

Thursday, July 25, 2013
12:00 PM – 1:30 PM US EDT

By teleconference only


The U.S. Drone Program has been subject of much debate. Join our experts in a riveting assessment of the program’s targeted killings. What are the domestic and international laws and legal principles that apply to this program? What is the impact to U.S. citizens and the international community at large?




American Bar Association
Section of International Law
740 15th Street, NW • Washington, DC 20005 • 202-662-1660 –

nationalsecuritylaw United States v. Belmokhtar (S.D.N.Y.) (charges in absentia against Mokhtar Belmokhtar)

July 21, 2013

From DOJ’s press release:

Alleged Al-Qaeda Leader in North Africa Charged in Connection With Terror Attack on Algerian Gas Processing Facility in Which More Than 35 Hostages Were Killed, Including Three Americans

WASHINGTON – Mokhtar Belmokhtar was charged today for, among other things, his alleged participation in the January 2013 terrorist attack on a Western-owned gas processing facility near In Amenas, Algeria, that killed three Americans and scores of Alegerian and foreign nationals, announced U.S. Attorney for the Southern District of New York Preet Bharara, , Acting Assistant Attorney General for National Security John Carlin, Assistant Director-in-Charge of the New York Field Office of the FBI George Venizelos and Police Commissioner of the City of New York (NYPD) Raymond W. Kelly. Belmokhtar is charged in an eight-count criminal amended complaint with various offenses including conspiracy to provide material support to al-Qaeda and al-Qaeda in the Islamic Maghreb (AQIM), hostage-taking conspiracy, kidnapping of internationally protected persons and conspiring to use a weapon of mass destruction. Belmokhtar remains at large.

“As alleged, Mokhtar Belmokhtar unleashed a reign of terror years ago, in furtherance of his self-proclaimed goal of waging bloody jihad against the West,”said U.S. Attorney Bharara. “His efforts culminated in a five-day siege that left dozens dead, including three Americans, and hundreds of others fearing for their lives, as the amended complaint describes. For the victims, their families, and their friends, who hail from all over the world, five days must have seemed like an eternity. Belmokhtar brought terror and blood to these innocent people and now we intend to bring Belmokhtar to justice, as charged.”

“The charges announced today underscore the Department’s commitment to bring to justice those responsible for attacks on Americans and American interests, no matter where they occur,” said Acting Assistant Attorney General for National Security Carlin. “I want to thank all of the agents, analysts, and prosecutors who helped bring about today’s result.”

“The charges against Mokhtar Belmokhtar describe a fanatical jihadist leading an extremist vanguard of an extremist ideology,” said FBI Assistant Director-in-Charge Venizelos. “As alleged, he kidnapped diplomats, formed his own terrorist organization that pledged fealty to al-Qaeda, and masterminded the murderous siege of a civilian plant in Algeria that resulted in the deaths of dozens of hostages, including three Americans. Belmokhtar, in furtherance of his ‘cause,’ has shown a commitment to kidnapping and murdering Western diplomats and other civilians. The cause of justice will be served by his apprehension and prosecution.”

“The attack in Algeria underscores the fact that American lives remain at risk from al Qaeda and its affiliates,”said NYPD Commissioner Kelly. “The NYPD remains committed to the interdiction of terrorists here and abroad and to the prevention of another terrorist attack in New York City.”

A complaint against Belmokhtar initially was filed under seal in New York federal court, on Feb. 26, 2013, and is attached as an exhibit to the amended complaint. As alleged in the amended complaint:

Belmokhtar was designated as a foreign terrorist by the U.S. Department of Treasury in 2003. As a key leader of al-Qaeda’s efforts in North Africa, from 2008 through early 2013, Belmokhtar has orchestrated terror attacks involving the kidnapping and murder of numerous individuals. In support of al-Qaeda, Belmokhtar has operated under the auspices of two groups: AQIM and the Al-Mulathamin Brigade and its recently formed battalion, “The Signers in Blood” (the Battalion).

In December 2008, Belmokhtar, and others acting at his direction, kidnapped two Western diplomats working in Niger as part of a United Nations mission. The victims were held for approximately four months and then released in Mali.

In early December 2012, Belmokhtar issued a video-taped statement in which he announced the formation of “The Signers in Blood” Battalion, identified the “emir” of the group as Ayman al- Zawahiri, the leader of al-Qaeda, and called for fighting in Algeria and elsewhere to oppose Western influence. Several weeks later, Belmokhtar issued another video-taped statement in which he confirmed that the Battalion was “in [the] al-Qaeda organization.”

On Jan. 16, 2013, terrorists who were part of Belmokhtar’s Battalion attacked a Western-owned gas processing facility in Algeria, armed with AK-47s and rocket-propelled grenade launchers. The terrorists took numerous workers inside the facility hostage by force, including Algerian nationals and citizens of the United States, the United Kingdom, Japan, Norway, the Philippines, Colombia, Romania and other nations, while other workers fled or hid inside the facility. The terrorists attached explosives to some of the hostages, wound detonation cord around their necks, and threatened to kill them. During the siege of the facility, numerous hostages, including three U.S. citizens, were killed.

On Jan. 21, 2013, approximately one day after the siege ended, Belmokhtar appeared in an online video in which he claimed responsibility for the Battalion’s attack on the facility, on behalf of al-Qaeda.

Three of the hostage-takers involved in the siege were arrested and detained by foreign authorities and later separately interviewed by U.S. law enforcement officers. The hostage-takers each acknowledged their membership in an al-Qaeda group, of which Belmokhtar was the “emir,” and further stated that they had received military training in another country prior to traveling to Algeria to conduct the attack in the name of al-Qaeda.

* * *

The Amended Complaint charges Belmokhtar in eight Counts:

· Count One charges Belmokhtar with conspiring to provide material support to al-Qaeda and AQIM, and carries a maximum penalty of life in prison;

· Count Two charges Belmokhtar with conspiring to take hostages, and carries a maximum penalty of life in prison or death;

· Count Three charges Belmokhtar with conspiring to discharge a firearm in furtherance of a crime of violence, and carries a maximum penalty of life in prison;

· Count Four charges Belmokhtar with discharging a firearm in furtherance of a crime of violence, and carries a maximum penalty of life in prison or death;

· Count Five charges Belmokhtar with conspiring to use and carry an explosive during the commission of a felony, and carries a maximum penalty of 20 years in prison;

· Count Six charges Belmokhtar with conspiring to kidnap internationally protected persons, and carries a maximum penalty of life in prison;

· Count Seven charges Belmokhtar with kidnapping of internationally protected persons, and carries a maximum penalty of life in prison; and

· Count Eight charges Belmokhtar with conspiring to use a weapon of mass destruction, and carries a maximum penalty of life in prison.

The investigation of Belmokhtar was the result of the close cooperative efforts of the U.S. Attorney’s Office for the Southern District of New York and the New York-based Joint Terrorism Task Force of the FBI, which is comprised of FBI agents and members of the NYPD. Mr. Bharara thanked the Justice Department’s National Security Division, U.S. Department of Justice Office of International Affairs, FBI’s International Operations Division, and U.S. Department of State for their assistance, as well as the international law enforcement partners involved in this investigation.

The U.S. Department of State, through the Rewards for Justice Program, is offering a $5 million reward for information leading to the location of Belmokhtar. Please see the Rewards for Justice website for further details:

This case is being handled by the Office’s Terrorism and International Narcotics Unit. Assistant U.S. Attorneys Glen Kopp, Anna Skotko and Shane Stansbury are in charge of the prosecutions, with assistance from Trial Attorney Stephen Ponticiello of the Counterterrorism Section of the Justice Department’s National Security Division.

The charges contained in the amended complaint are merely accusations and the defendant is presumed innocent unless and until proven guilty.

# # #


nationalsecuritylaw United States v. Bell (M.D. Fla.) (material support indictment relating to attempt to join AQAP)

July 19, 2013

From DOJ’s press release:

JACKSONVILLE, Fla. – Acting U.S. Attorney A. Lee Bentley, III, along with Acting Assistant Attorney General John Carlin of the Justice Department’s National Security Division and Michelle Klimt, Special Agent in Charge, FBI Jacksonville Division today announced the return by a grand jury of an indictment charging Shelton Thomas Bell, 19, of Jacksonville, Fla., with conspiring and attempting to provide material support to terrorists. If convicted, Bell faces a maximum penalty of 15 years in federal prison on each of the two charges. Bell is currently detained in the Duval County Jail on unrelated charges.

According to the indictment, Bell devised a plan to travel to the Arabian Peninsula and join Ansar Al-Sharia (AAS), an alias for Al-Qa’ida in the Arabian Peninsula (AQAP), and participate in violent armed conflict which he termed, "jihad." AAS has taken responsibility for multiple attacks on Yemeni forces, including a suicide bombing during a parade in May 2012, that killed more than 100 Yemeni soldiers and a series of armed assaults in March 2012, killing more than 100 people, including Yemeni soldiers.

The indictment alleges that between May 2012 and September 2012, Bell and others engaged in physical, firearms, and other training in preparation for armed conflict in the Middle East, which Bell described as "the actions of jihad." Bell allegedly solicited other individuals, including juveniles, to travel overseas with him in furtherance of this conspiracy. Bell made video and audio recordings intended to be distributed to others once he arrived in the Middle East, for the purpose of soliciting and recruiting others there to participate in violent jihad. In September 2012, Bell and a juvenile traveled to Amman, Jordan and made contact with an individual who could facilitate their travel to Yemen to participate in violent jihad.

An indictment is merely a formal charge that a defendant has committed a violation of the federal criminal laws, and every defendant is presumed innocent unless, and until, proven guilty.

This case was investigated by the FBI’s Jacksonville Joint Terrorism Task Force (JTTF). The JTTF is a multi-agency task force comprised of full-time personnel from the FBI, U.S. Coast Guard Investigative Service, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the Jacksonville Sheriff’s Office, Florida Highway Patrol, the Florida Department of Law Enforcement, and the Naval Criminal Investigative Service. It will be prosecuted by Assistant U.S. Attorney Mac D. Heavener, III and Department of Justice Trial Attorney Mara M. Kohn from the Department’s Counterterrorism Section of the National Security Division.

nationalsecuritylaw United States v Begolly (W.D. Pa) (102 month sentence)

July 16, 2013

An 8.5 year sentence in an interesting case involving online incitement to violent jihad, and the distribution of a how-to manual. From the gvt’s press release:


WASHINGTON – Emerson Winfield Begolly, 22, of New Bethlehem, Penn., was sentenced today in Pittsburgh to 102 months in prison for soliciting others to engage in acts of terrorism within the United States and for using a firearm during and in relation to an assault on FBI agents.

In addition, he was sentenced to serve five years supervised release. Begolly pleaded guilty on Aug. 9, 2011, to charges filed in the Eastern District of Virginia and the Western District of Pennsylvania.

The sentence was announced by David J. Hickton, U.S. Attorney for the Western District of Pennsylvania; Neil H. MacBride, U.S. Attorney for the Eastern District of Virginia; John P. Carlin, Acting Assistant Attorney General for National Security; Valerie Parlave, Assistant Director in Charge of the FBI’s Washington Field Office; and Gary Perdue, Special Agent in Charge of the FBI’s Pittsburgh Division.

“Emerson Begolly used the Internet to solicit likeminded radical jihadists to commit atrocities and murder,” stated U.S. Attorney Hickton. “Through effective use of court-sanctioned investigative tools, mass tragedy was averted.”

“We now find ourselves in an era where one of the greatest innovations of the modern era – the Internet—is being utilized by radical jihadists who seek to use that medium to endanger American lives,” said U.S. Attorney MacBride. “Those, like Mr. Begolly, who solicit others to engage in acts of terrorism will be brought to justice and prosecuted to the fullest extent of law.”

“This case highlights the need for continued vigilance against homegrown extremism and use of the Internet to incite violence,” said Acting Assistant Attorney General Carlin. “I want to thank the agents, analysts and prosecutors whose work resulted in today’s sentence.”

“Today’s sentence is the result of the effective coordination and enduring resolve of law enforcement to protect our citizens,” said Assistant Director Parlave. “Together with our partners, we will continue to work to combat the threat of violent homegrown extremism and keep our country safe.”

“The case against Mr. Begolly is an important reminder that online-inspired terrorism can occur anywhere, including Western Pennsylvania. Our efforts to detect and disrupt this threat are enduring,” said Special Agent in Charge Perdue. “The FBI, along with our law enforcement partners in the FBI Joint Terrorism Task Force, will continue to proactively employ all necessary resources in order to predict and prevent terrorist attacks from occurring and to ensure the ongoing safety of our communities.”

According to information presented by the government in court, Begolly was an active administrator on the Ansar al-Mujahideen English Forum (AMEF), which is an internationally used Islamic extremist Internet forum. Using the pseudonym of Abu Nancy, Begolly systematically solicited jihadists to use firearms, explosives and propane tanks against targets such as police stations, post offices, Jewish schools and daycare centers, military facilities, train lines, bridges, cell phone towers and water plants.

In the summer of 2010, Begolly urged jihadists on the AMEF to “write their legacy in blood.” Begolly promised a special place in the afterlife for violent action in the name of Allah. Following the reported shootings in Northern Virginia at the Pentagon and the Marine Corps Museum in October 2010, Begolly posted a comment online that praised the shootings and hoped the shooter had followed his previous postings encouraging similar acts of violence. On Dec. 28, 2010, Begolly further solicited his AMEF audience to violence by posting a manual on how to manufacture a bomb.

Days later, on Jan. 4, 2011, FBI agents were assaulted by Begolly as they attempted to prevent him from reaching a loaded 9 mm semi-automatic handgun, which he had concealed on his body. While violently struggling with the agents, Begolly bit the agents on their fingers in an attempt to free himself to reach his firearm. His actions are consistent with a posting in which he urged his audience not to be taken alive by law enforcement, to always carry a loaded firearm, and to aggressively resist any law enforcement encounter including biting fingers if necessary.

These cases were investigated by the FBI Washington Field Office and the FBI Pittsburgh Field Office. Assistant U.S. Attorney Neil Hammerstrom of the U.S. Attorney’s Office for the Eastern District of Virginia’s National Security and International Crime Unit, Assistant U.S. Attorney James Kitchen of the U.S. Attorney’s Office for the Western District of Pennsylvania’s National Security and Cybercrime Section, and Trial Attorney Stephen Ponticiello of the Counterterrorism Section in the Justice Department’s National Security Division are prosecuting the cases.




nationalsecuritylaw Upcoming event: “150 Years of War Regulation” Panel and Reception

July 11, 2013

From the ICRC:

Dear friends and colleagues,

We share below an invitation to an event co-sponsored by the ICRC and the ASIL Lieber Society on the Law of Armed Conflict, and hosted by the American Red Cross. 2013 marks the 150th anniversaries of two landmark events in the history of warfare: the creation of the International Committee of the Red Cross and the adoption of the Lieber Code. This event will retrace the evolution of the laws of war through a panel discussion and a photo exhibition.

We sincerely hope that you will be able to attend and look forward to a fascinating event.

Kind regards,
Anne Quintin, International Committee of the Red Cross (ICRC), Washington DC
Eric Sigmund, American Red Cross (ARC)
Eric Jensen, American Society of International Law (ASIL) Lieber Society on the Law of Armed Conflict

RSVP: icrcevents



Celebrating the 150th anniversary of the ICRC and the Lieber Code”

Date: July 23rd, 2013
Time: 3:00pm – 6:00pm
Place: American Red Cross historical building
430 17th Street NW, Washington DC

Program Details

*3:00 – 4:30 pm
Introduction and Keynote Address

Harold Brooks,
Senior Vice President for International Operations, American Red Cross

Markus Geisser,
Deputy Head of Regional Delegation, International Committee of the Red Cross

Panel Discussion

John Fabian Witt,
Allen H. Duffy Class of 1960 Professor of Law, Yale Law School
Author of Lincoln’s Code: The Laws of War in American History (Free Press, September 2012)

Brigadier-General Thomas E. Ayres, U.S. Army,
Commanding, U.S. Army Legal Services Agency and Chief Judge, U.S. Army Court of Criminal Appeals

moderated by Jennifer Daskal,
Assistant Professor at Washington College of Law, American University

*4:30 – 6:00 pm
Reception and Photo Exhibit

The panel will be followed by a reception featuring an ICRC photo exhibition, retracing 150 years of humanitarian action through iconic images taken from the historical archives of the ICRC’s headquarters in Geneva, and highlighting the work of the institution from 1863 to present day.

nationalsecuritylaw Privacy and Civil Liberties Oversight Board public workshop on FISA surveillance programs

July 7, 2013

A remarkable and interesting event, to say the least:

Privacy and Civil Liberties Oversight Board

Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act

July 9, 2013

Renaissance Mayflower Hotel – Grand Ballroom

1127 Connecticut Ave NW, Washington DC

TIME AND DATE: 9:30 A.M. – 4:30 P.M. (Eastern Time) on Tuesday, July 9, 2013.

PLACE: This meeting will take place at The Renaissance Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave. NW, Washington, DC. The meeting is open to the public. Nearest Metro: Farragut North/Red Line. Several Parking Garages in vicinity.

MATTERS TO BE CONSIDERED: The Privacy and Civil Liberties Oversight Board will conduct a public workshop with invited experts, academics and advocacy organizations regarding surveillance programs operated pursuant to Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act.

SUBMISSION OF COMMENTS: Submission of comments is welcome. Please submit to:!documentDetail;D=PCLOB-2013-0005-0001

PRESS: Please contact Sue Reingold, Chief Administrative Officer, 202 331-1986, susanbr, if you plan to cover the event.


09:00 Doors Open

09:30 – 09:45 Introductory Remarks (David Medine, PCLOB Chairman)

09:45 – 11:30 Panel I: Legal/Constitutional Perspective

Facilitators: Rachel Brand and Patricia Wald, Board Members

Panel Members:

§ Steven Bradbury (Formerly DOJ Office of Legal Counsel)

§ Jameel Jaffer (ACLU)

§ Kate Martin (Center for National Security Studies)

§ Hon. James Robertson, Ret. (formerly District Court and Foreign Intelligence Surveillance Court)

§ Kenneth Wainstein (formerly DOJ National Security Division/

White House Homeland Security Advisor)

11:30 – 12:30 Lunch Break (on your own)

12:30 – 2:00 Panel II: Role of Technology

Facilitators: James Dempsey and David Medine, Board Members

Panel Members:

§ Steven Bellovin (Columbia University Computer Science Department)

§ Marc Rotenberg (Electronic Privacy Information Center)

§ Ashkan Soltani (Independent Researcher and Consultant)

§ Daniel Weitzner (MIT Computer Science and Artificial Intelligence Laboratory)

2:00 – 2:15 Break

2:15 – 4:00 Panel III: Policy Perspective

Facilitators: Elisebeth Collins Cook and David Medine, Board Members

Panel Members:

§ James Baker (formerly DOJ Office of Intelligence and Policy Review)

§ Michael Davidson (Georgetown University)

§ Sharon Bradford Franklin (The Constitution Project)

§ Elizabeth Goitein (Brennan Center for Justice)

§ Greg Nojeim (Center for Democracy and Technology)

§ Nathan Sales (George Mason School of Law)

4:00 – 4:10 Break

4:10 – 4:30 Open for Public Comment

4:30 Closing Comments (David Medine, PCLOB Chairman)

nationalsecuritylaw Upcoming event: “Law and Security:Perspectives from the Field and Beyond” (today and tomorrow)

July 1, 2013

Please see the attached program for the details on this very impressive event,

Law Security Program.pdf