nationalsecuritylaw ep. 80

June 27, 2018

Hello from Austin, and welcome to Episode 80 of the national security law podcast, brought to you by the Strauss Center at the University of Texas. It’s Wed. morning June 27, I’m Bobby Chesney….

1. SCOTUS-PALOOZA

a. Carpenter

5-4 majority, Roberts writes that REOP applies to collection of (eventually-)comprehensive location data generated by historic CSLI, at least where the scale of the collection encompasses 7 or more days worth of movement.

Open question: what about real-time CSLI tracking? What about 6 or fewer days? What about other types of third-party records?

Key idea: third-party doctrine already wasn’t bright line rule where content was involved, but it seemed so with metadata, but no longer. Roberts says this is about the newly-possible thorugh tech

Q: What does this portend for third-party records sought for intelligence purposes instead of law enforcement—is the Court heading towards answering whether there’s an FI (not nat sec, but FI) exception to the warrant requirement, and if so will there be a primary purpose test after all (as the Fourth Circuit concluded in the case of David Truong, who spied for North Vietnam)?

Roberts expressly withheld opinion on searches involving FI, carrying on the Katz and Keith tradition.

David Kris at Lawfare reviews how the CSLI ruling carries over to FISA tools used for same purpose. Interestingly, this underscores how FISA is a constrainer as much as enabler….

Q: Predictions on next third-party record category to get this treatment? Note issue of predictability/voluntariness/avoidability

b. Travel Ban

Q: What species of deference, if any, was at work here?

Q: What doctrinal rule, if any, does the majority give us regarding when a Tweet or speech by POTUS (pre or post election) count as evidence of the government’s intent/motive?

Ct assumed without deciding that extrinsic evidence of intent was relevant, but still it was RB review and there was non-arbitrary basis…

Q: Korematsu formally overruled, or is this dicta? Let’s unpack the holdings & dicta from Korematsu…

Roberts:

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

c. Dalmazzi

d. Note: Govt files cert opposition in Paracha v. U.S (whether GTMO transfer constraints = bills of attainder)

Odd case. Saifullah Paracha held as an EC at GTMO for a long time, and has a habeas case that as I understand may not yet be resolved . At one point, he moved for SJM, and included in that motion arguments cahlenging a boatload of GTMO transfer restrictions, calling them bills of attainder. DCT rejected that argument, reasoning first that Paracha has no Article III standing bc he could not show that he’s injured by these constraints (makes sense as to some, but perhaps not all…), and then anyway the 28 USC 2241(e)(2) bars such claims. Didn’t reach merits. Circuit summarily affirmed on the statutory ground only. Now Paracha seeks cert to review both the merits of the bill of attainder and the Article III standing, neither of which the Circuit addressed. So odd! No grant likely.

any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. 28 U.S.C. 2241(e)(2). The district court concluded that Section 2241(e)(2) deprived it of jurisdiction over petitioner’s bill-ofattainder claims, which “obviously ‘relate[]’ to his confinement.” Pet. App. 5-6 & n.3. The court added that the bill-of-attainder claims were non-habeas claims within the scope of Section 2241(e)(2), because they do “not actually challenge the legality of [petitioner’s] confinement” or “any aspect of the place or conditions of his confinement” and thus do “‘not sound in habeas.’”

Seeking cert now, and govt just filed his opposition brief with both the standing/jd arguments and a merits claim that this is not a bill of attainder anyway. Stay tuned. I don’t expect a grant.

2. Doe v. Mattis update

3. Quick DOJ NSD roundup (new material support case developments)

a. US v. Goldberg (M.D. Fla.) – Joshua Ryne Goldberg was sentenced to 10 years for attempted malicious damage and destruction by an explosive of a building. Goldberg pleaded guilty on Dec. 20, 2017. According to the plea agreement, in the summer of 2015, the FBI and law enforcement officers from Australia began investigating the online name “AusWitness” and determined that it was Goldberg. He had come to the attention of law enforcement due in part to his postings concerning the May 3, 2015, attack by two gunmen at the Muhammad Art Exhibit and Contest in Garland, Texas. Prior to the attack, Goldberg posted a map of the location of the contest and urged anyone in the area to attack the event. Goldberg’s posting was copied by gunman Elton Simpson, one of the two individuals killed during the May 3, 2015, attack. The FBI later located an online posting in which Goldberg took responsibility for inspiring the Garland attack, as well as two other planned attacks. In late July 2015, an FBI confidential human source (CHS) began exchanging messages with Goldberg as “AusWitness” on social media. Between July and mid-August 2015, Goldberg discussed getting an individual in Melbourne, Australia to carry out a terrorist attack and to have the CHS commit a bombing in the United States. During portions of those conversations, Goldberg sent the CHS five website links containing instructions for making an explosive device, including pipe bombs and other incendiary devices. On Aug. 20, 2015, Goldberg stated that he was thinking of pipe bombs at a large public event and later said that a pressure cooker bomb may be better. Later that month, Goldberg told the CHS that he had found the “perfect place” to target on Sept. 13, 2015, and sent the CHS a link to a Kansas City, Missouri firefighter’s event that memorialized first responders that had been killed in the September 11th attacks. On Aug. 27, 2015, Goldberg instructed the CHS to place the bomb near the crowd at the memorial event and to ensure it was very well hidden. The following day, Goldberg provided the CHS with a list of items to use in the pressure cooker bomb, including shards of metal, nails and broken glass. He then instructed the CHS to dip screws and other shrapnel in rat poison before putting them in the pressure cooker bomb in order to inflict more casualties. Goldberg stated he would post a video of the bombing. A forensic analysis of the bomb making information determined that it could have been used to make explosives that would cause property damage, personal injury and/or death.

b. United States v. Muhtorov (D. Col.) –

Jamshid Muktorov was arrested in 2012 on suspicion of trying to fly to Uzbekistan to joint eh Islamic Jihad Union. Held pre-trial for some five years, as issues with suppression motions played out. Finally prosecuted: ederal prosecutor Greg Holloway told jurors that Jamshid Muhtorov had sworn allegiance to the Islamic Jihad Union shortly before asking his daughter to pray that he die a martyr in a holy war. FBI agents arrested him on Jan. 21, 2012 in Chicago as he was trying to board a plane to Turkey. He was carrying $2,865 and recently purchased electronic equipment, including two iPhones, a GPS device and an iPad tablet, for the IJU. He intended to become a propaganda expert. “‘Yeah, but what I really want to do is go fight and lose my life in the jihad,’” Holloway quoted Muhtorov as telling codefendant and fellow Ubekistan refugee Bakhityor Jumaev in a phone conversation recorded by the FBI. “We’ll raise the banner of jihad with a weapon in one hand and a Koran in the other.”

Jamshid Muhtorov guilty on three counts involving material support to a terrorist organization. The guilty verdicts come after a 19-day trial before Senior U.S. District Court Judge John L. Kane. The defendant was acquitted of an additional count. – conspired and attempted to provide material support to the Islamic Jihad Union (IJU), a designated foreign terrorist organization, On April 30, 2018, a jury in the U.S. District Court found Muhtorov’s co-defendant, Bakhtiyor Jumaev, guilty of similar charges. GET MORE DETAILS

c. United States v. Al-Ghazi (N.D. Ohio) – Amir Said Rahman Al-Ghazi, 41, aka Robert C. McCollum, was sentenced to 16 years in prison for one count of providing material support to the Islamic State of Iraq and al-Sham (ISIS), a designated foreign terrorist organization, as well as two counts of being a felon in possession of firearms. al-Ghazi, who changed his name from Robert McCollum last year, pledged his support to ISIS and Abu Bakr Al-Baghdadi via social media in 2014. From July 2014 to June 2015, Al-Ghazi made multiple statements trying to persuade others to join ISIS. He also expressed his own desire to perpetrate an attack on the United States and had attempted to purchase an AK-47 assault rifle. Al-Ghazi has communicated with individuals he believed to be members of ISIS in the Middle East and took steps to create propaganda videos for ISIS, according to court documents.

d. United States v. Sayyed (N.D. Ala.) Aziz Ihab Sayyed, 23, sentenced today to 15 years in prison followed by lifetime supervised release for attempting to provide material support to the Islamic State of Iraq and al-Sham (ISIS), Sayyed pleaded guilty in March to the terrorism charge. According to Sayyed’s plea agreement with the government, he attempted to provide services and personnel, namely himself, to ISIS. He acknowledged that he bought bomb-building ingredients in 2017, that he stated his aspirations to conduct ISIS-inspired attacks on police stations and Redstone Arsenal in Alabama, and that he attempted to form a cell to conduct violent acts within the United States. Between January and June of 2017 in Madison County, Sayyed, a U.S. citizen, obtained and viewed ISIS propaganda videos depicting ISIS forces committing bombings, executions by gunshot and beheading, and other violent acts. Sayyed shared the videos and expressed his support for ISIS and for ISIS terrorist attacks around the world, according to his plea agreement. Sayyed researched and learned how to make triacetone triperoxide (TATP), a highly volatile and extremely dangerous explosive material. He then purchased the necessary ingredients for the explosive, and professed his aspiration to use TATP in an explosive belt or a car bomb. On June 13, 2017, Sayyed met with an individual he understood to be an ISIS member. In fact, the person was an undercover employee of the FBI. Sayyed and the undercover employee discussed the danger of TATP, ISIS’s preference for the use of certain explosives, and Sayyed’s desire to assist ISIS, according to the plea agreement. In that meeting, Sayyed offered to personally carry out attacks on behalf of ISIS.

e. United States v. Ahmed (E.D.N.Y.) Parveg Ahmed, 22, of Queens, New York, pleaded guilty today to attempting to provide material support or resources to the Islamic State of Iraq and al-Sham (ISIS), a designated foreign terrorist organization. As detailed in publicly filed court documents, the defendant is a U.S. citizen who traveled to Saudi Arabia in June 2017, purportedly to celebrate an Islamic religious holiday. Upon his arrival in Saudi Arabia, the defendant attempted to travel to Syria to join ISIS. The defendant was apprehended in a country bordering Syria, during his attempted travel to ISIS-controlled territory. Ahmed was deported back to the United States on Aug. 28, 2017, where he was arrested at John F. Kennedy International Airport in New York. {NOTE ANALOGY TO DOE! Prior to his travel, the defendant had repeatedly expressed support on social media for ISIS and for individuals who provided support to the foreign terrorist organization’s mission of violent extremism. On July 17, 2017, JTTF agents obtained a search warrant for the defendant’s personal computer, and learned, among other things, that the defendant had viewed or listened to recordings of radical Islamic clerics Anwar al-Awlaki and Abdullah el-Faisal. Additionally, agents learned that, on the same day the defendant left the United States for the Middle East, the defendant researched how to erase the data on his computer. The defendant faces a statutory maximum of 20 years in prison at sentencing. AGAIN: A LOT LIKE DOE???

4. More NDAA highlights:

a. I did a post last week on section 1621, which is mostly hortatory but has an interesting directive to executive branch to “demonstrate” our cyber capabilities

b. By tomorrow, I *should* have a new post on various other NDAA measures that impact military cyber oversight and authorities in interesting ways.

5. FRIVOLITY: review of Solo?

Best

When Han Met Chewie: What a fun meet-cute, with the “fight of pretend” bad translation worthy of ___ trying to propose to Aralia in Portugeuse towards the end of Love Actually

Danny Glover channels Billy Dee Williams very, very well as young Lando.

Worst

Darth Maul: both bc it’s annoying to see ANYTHING from Phantom Menace and bc this raises timeline questions. Darth Maul dies in Phantom Menace, while Anikin is 7 or so. I’m not sure if there’s an official timeline for how many years between then and A New Hope when Han turns up in Mos Eisley, nor how many years between the end of Solo and Phantome Menace. Surely 15-20? Wouldn’t that make Han a bit old in New Hope?

Not sure how I feel

___ (robot): I loved her, but dammit I also loved __ in Rogue One and this was the same damn robot, but with a differently-gendered personality program. Appreciated the human-robot romance angle, though.

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nationalsecuritylaw ep. 80

June 27, 2018

Friends…I’m so sorry, I did not mean to send out my show notes for today’s NSL Podcast episode!!! Very embarrassed…

On Jun 27, 2018, at 12:51 PM, Chesney, Robert M <rchesney> wrote:


nationalsecuritylaw the end of the National Security Law listserv

June 14, 2018

Dear friends and colleagues,

You may have noticed that I’ve stopped circulating clips announcing developments in recent terrorism-related cases.

I’m sorry about that, and regret to report that I’m shutting down the ol’ listserv after much more than a decade in operation.

No action needed on your part. You just won’t get further emails from me. Or, I should say, you won’t often get them; I’ll keep the system in place in case it somehow becomes useful again in the future.

Meanwhile, I should underscore that I’m not turning my attention away from national security law. Rather the opposite.

On the scholarship side, I’m drawing close at last to finishing the manuscript of the book I’ve been writing for many years now. It’s a history of how the law has developed over time in relation to the power of the state to kill or detain in the name of national security, starting in (not kidding) the late Roman Empire and running to September 11, 2001. It’s been a genuine labor of love, and I’m deeply excited to hear what others think of it. Indeed, I’ll probably send a note out via this listserve sometime next spring, with more information about the publication date.

As for the daily deluge of national security legal news? I still obsess over all of it, and have three ways I try to share it all:

1. The weekly podcast that I co-host with my colleague and friend here at UT, Steve Vladeck. Every week, we record an hour-long review of the latest national security law news (periodically including snapshots of terrorism-related case developments). We sometimes agree, but often debate; we think it’s important to show how people can debate these issues with respect and admiration from one another, and try to model that. Oh, I should admit: we’re quick to digress, and insist on maintaining a happy tone that sometimes is a bit incongruous with the subject. Some say we’re like Car Talk, but with national security topics and no callers. The show is creatively entitled “The National Security Law Podcast,” and you can access through its homepage here (https://www.nationalsecuritylawpodcast.com), iTunes here (https://itunes.apple.com/us/podcast/the-national-security-law-podcast/id1201314368?mt=2), and all sorts of other places. We’ve got about 7500 weekly listeners at this point, and would love for you to give it a shot (and spread the word to others).

2. Lawfare (www.lawfareblog.com). What Ben Wittes, Jack Goldsmith, and I started long ago has grown…bigger. Lawfare is not going anywhere, and you can find me writing there on all the classic national security law issues – and, increasingly, on cybersecurity issues – every week.

3. Last, you might also find my Twitter feed somewhat useful (or perhaps somewhat annoying). I’m @bobbychesney, and I do use it 90% for national security news/commentary.

Well, that’s all. Thanks for being on the other side of these emails all these years. It’s been fun, and I hope you’ve found it useful! (Sincere apologies to those who’ve only joined recently and didn’t get any use from it!)

Signing off,

Bobby

Robert Chesney (website)

James Baker Chair and Associate Dean for Academic Affairs | The University of Texas School of Law

Director | The Robert S. Strauss Center for International Security and Law (website)

512.232.1298 | Twitter: @bobbychesney | Blog: www.lawfareblog.com | Scholarship: SSRN page