Bensayah v. Obama; Al Maqaleh v. Gates (govt brief with attached Bagram Review Procedures); Camp Cropper facility closed; Oussama Kassir sentenced to life

September 14, 2009

1. Bensayah v. Obama (D.C. Cir.) (argument preview)

Heads-up: The DC Circuit will hear oral argument inBensayah next Thursday, in a hearing that is closed to the public.  This is an appeal of Judge Leon’s ruling denying habeas relief on the merits to one of the several GTMO detainees taken into custody in Bosnia (including Boumediene).  It is the first occasion for the Circuit to address the substantive scope of the government’s detention authority (the case also raises some procedural issues) in connection with habeas proceedings, though it should be noted that the Circuit previously had the opportunity to say a few things on this topic in Parhat v. Gates via the Detainee Treatment Act direct review system (i.e., the system of direct judicial review of CSRT determinations that the Supreme Court held inBoumediene did not provide an adequate substitute for habeas review).

2. Al Maqaleh v. Gates (D.C. Cir.) (government’s brief, including an attached copy of the Bagram

The government’s brief challenging the decision by Judge Bates to extend habeas review to Bagram detainees who are not Afghans and who were not captured in Afghanistan is posted here.  Of particular interest, the brief includes as an addendum (at pp. 78-85 of the pdf file) policy guidance setting forth the new procedures to be used in reviewing detainee status at the Bagram Theater Internment Facility.

3. Closure of Camp Cropper in Iraq (and the coming end of long-term military detention by the US in Iraq)

I normally don’t post news articles.  But after writing up the Al Maqaleh entry above, I wanted to draw attention to this article in the Times noting the recent closure of the US detention facility at Camp Cropper in Iraq and the anticipated shutdown in the months ahead of the remaining US long-term military detention facilities in Iraq.

4. United States v. Kassir (S.D.N.Y. Sep. 15, 2009)

Following up on the post earlier this week describing the denial of Kassir’s post-verdict motions, Kassir has now been sentenced to life in prison.  That in itself is interesting, given the mix of charges on which he was convicted: various material support counts, an explosives count, and conspiracy counts under 956(a) that did contemplate an agreement to commit violent acts abroad but that did not (so far as I can tell) allege a link between Kassir and any particular act of violence.  I’ve written previously about the capacity of conspiracy liability to be used in this manner.  If you are interested, see here.

Also interesting, for those who are not keeping up with the long-running saga of the Oregon training camp with which Kassir was associated: The press release for the sentencing has a brief summary of the current situation relating to co-defendants who remain in the UK fighting extradition to the US, including especially Abu Hamza:

KASSIR’s co-defendants ABU HAMZA and ASWAT are presently detained in England awaiting extradition to the United States. In addition to the charges against all three men, the Indictment charges ABU HAMZA with conspiracy and substantive offenses relating to a hostage-taking in Yemen in 1998, facilitating violent jihad in Afghanistan, and supplying goods and services to the Taliban in 2000 and 2001. ABU HAMZA was arrested in May 2004 by the Metropolitan Police at New Scotland Yard in London, England, on a warrant relating to these charges. Thereafter, ABU HAMZA was charged with terrorism offenses by the U.K. authorities, which resulted in a conviction in the U.K. on February 7, 2006. The extradition proceedings against ABU HAMZA were stayed pending completion of the U.K. criminal proceedings. After ABU HAMZA’s U.K. conviction was affirmed on appeal, the United States renewed its efforts to extradite ABU HAMZA to the United States. The extradition proceedings against ABU HAMZA are currently pending in the European Court of Human Rights.


newly-public OLC memos

January 9, 2009

* Newly-public memos from the Office of Legal Counsel

A fascinating array of OLC memos, ranging in date from November 2001 to March 2004, have just been posted to OLC’s website:

“PROTECTED PERSON” STATUS IN OCCUPIED IRAQ UNDER THE FOURTH GENEVA CONVENTION
(March 18, 2004) (added 1/08/09)

STATUS OF TALIBAN FORCES UNDER ARTICLE 4 OF THE THIRD GENEVA CONVENTION OF 1949
(February 7, 2002) (added 1/08/09)

AUTHORITY OF THE PRESIDENT UNDER DOMESTIC AND INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(October 23, 2002) (added 1/08/09)

EFFECT OF A RECENT UNITED NATIONS SECURITY COUNCIL RESOLUTION ON THE AUTHORITY OF THE PRESIDENT UNDER INTERNATIONAL LAW TO USE MILITARY FORCE AGAINST IRAQ
(November 8, 2002) (added 1/08/09)

WHETHER FALSE STATEMENTS OR OMISSIONS IN IRAQ’S WEAPONS OF MASS DESTRUCTION DECLARATION WOULD CONSTITUTE A “FURTHER MATERIAL BREACH” UNDER U.N. SECURITY COUNCIL RESOLUTION 1441
(December 7, 2002) (added 1/08/09)

LEGALITY OF THE USE OF MILITARY COMMISSIONS TO TRY TERRORISTS
(November 6, 2001) (added 1/08/09)


United States v. Shnewer; United States v. Al-Dellemy

December 22, 2008

1. United States v. Shnewer (D.N.J.)

A jury has convicted five men on charges that they conspired to kill servicemembers at Fort Dix.    DOJ’s press release is posted here: http://www.usdoj.gov/opa/pr/2008/December/08-nsd-1142.html.  Excerpts follow:

…After 5½ days of deliberations, which began Dec. 17, 2008, the jury convicted Mohamad Ibrahim Shnewer, brothers Dritan Duka, Shain Duka and Eljvir Duka and Serdar Tatar on count one of the seven-count superseding indictment that charged them with conspiracy to murder members of the U.S. military.  The jury acquitted each of defendants of count two, which charged attempt to murder members of the U.S. military. Read the rest of this entry »


United States v. Slough (Blackwater guards indictment); forthcoming scholarship

December 8, 2008

1. United States v. Slough (D.D.C.  No. cr-08-360)

The indictment in this case, charging five Blackwater security guards with killing 14 unarmed civilians during an incident at Nisur Square in Baghdad in September 2007, is posted here: http://www.usdoj.gov/opa/documents/grandjury.pdf

An information filed against a sixth Blackwater guard, Jeremy Ridgeway, is posted here: http://www.usdoj.gov/opa/documents/us-v-ridgeway2.pdf

Ridgeway has pled guilty to certain charges.  His factual proffer is here: http://www.usdoj.gov/opa/documents/us-v-ridgeway.pdf

Details from DOJ’s press release appear below.  I have highlighted the passages describing DOJ’s jurisdictional theory.  In brief, the claim is that the contractors are subject to the Military Extraterritorial Jurisdiction Act (MEJA) because they were providing services in support of DOD’s mission, though their contract was with the State Department.  Whether MEJA applies in this circumstance no doubt will be the focus of considerable litigation going forward. Read the rest of this entry »


DOJ-IG report on FBI’s Guardian database; forthcoming scholarship

November 7, 2008

1. DOJ Inspector General’s Report: The FBI’s Terrorist Threat and Suspicious Incident Tracking System (Audit Report 09-02) (Nov. 2008)

The DOJ IG’s Audit Division has released a report describing ways to improve management and performance in relation to FBI’s Guardian Threat Tracking System, the primary database for processing information stemming from initial information potentially related to terrorist threats.  Nothing too dramatic to report here, but the 70-page report may be of interest to those who wish to get a better sense of the logistics of FBI information management and the managerial difficulties it entails. Read the rest of this entry »


Kar v. Rumsfeld (D.D.C. Sep. 26, 2008)

September 30, 2008

* Kar v. Rumsfeld (D.D.C. Sep. 26, 2008)

A very interesting opinion by Judge Robertson.  Cyrus Kar is a US citizen who was arrested in Baghdad in 2005, and subsequently held by the US military for two months on suspicion of involvement with IED attacks.  He brought a Bivens claim for damages for alleged violations of his Fourth and Fifth Amendment rights:

Fourth Amendment claim: the government violated the Fourth Amendment by (i) failing to provide him with a probable cause hearing or its equivalent for almost seven weeks and (ii) continuing to detain him even after determining that he was innocent; Read the rest of this entry »


United States v. Yahya; forthcoming scholarship

September 17, 2008

1. United States v. Yahya (S.D. Fla. 9/11/08)

Superseding indictment returned in Miami case involving export of dual-use goods to Iran, stemming from an investigation of the use of US-made goods in IEDs in Iraq.

From the press release:

A federal grand jury in Miami, FL, has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today — that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran.

The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous “dual use” commodities. “Dual-use” commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems (“GPS”), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs).

The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan.

Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a ” Farrokh Nia Yaghmaei,” an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a “MME,” and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a “Brian Ghandi,” an Iranian national; Farshid Gillardian, a/k/a “Isaac Gillardian,” a/k/a “Isaac Gill,” an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a “Brian Kaam,” a resident of Malaysia; Djamshid Nezhad, a/k/a “Reza,” a resident of Germany; Ahmad Rahzad, a/k/a “Saeb Karim,” an Iranian national; Majid Seif, a/k/a “Mark Ong,”a/k/a “Matti Chong,” an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses.

The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

  • Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.
  • Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).
  • Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.
  • Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.
  • Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

2. Forthcoming Scholarship

“Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution”

The International Lawyer, Fall 2008

ERIC TALBOT JENSEN, Judge Advocate General’s Corps, U.S. Army
Email: eric.jensen@hqda.army.mil

On March 4, 2005, a car carrying Nicola Calipari and Andrea Carpani, members of the Italian Ministry of Intelligence, and Giuliana Sgrena, a journalist who had been taken hostage one month before and who had just been released and was on her way back to Italy, was traveling to the Baghdad Airport. The car was fired on by US forces from a checkpoint, killing Mr. Calipari and wounding Ms. Sgrena and Mr. Carpani.

As a result of this tragic event, a joint investigation occurred and but Italy and the United States could not agree on the results. The United States determined that the soldiers involved had acted appropriately. Italy disagreed and on February 7, 2007, Mario Lozano, an U.S. Army National Guardsman, was indicted by Italian prosecutors who declared that Lozano can be tried in absentia because the case was policial.

The trial occurred and the decision was announced on October 25th. Judge Spinaci ruled that the law of the flag, or the law of the soldier’s sending state, prevails over a claim of passive personality jurisdiction in a case like this. This paper analyzes Judge Spinaci’s decision and determines that he is correct. Absent another international agreement, the exercise of passive personality criminal jurisdiction over a combatant for combatant acts is inappropriate when the combatant’s sovereign is seized of the case. Rather, because the combatant is acting on behalf of the sovereign, any claim against the combatant should be resolved through political means.

“Torture Nation, Torture Law”

Georgetown Law Journal, Vol. 97, 2008

JOHN T. PARRY, Lewis & Clark Law School
Email: parry@lclark.edu

U.S. law plainly forbids something called “torture.” Some writers even contend the ban on torture is foundational to the idea of the United States as a liberal democratic state committed to individual rights and the rule of law. The revelations of torture and other forms of mistreatment by U.S. forces at places such as Abu Ghraib thus undermine what these writers characterize as American leadership on human rights and call the nation’s identity into question.

Most readers will sympathize with these claims. This essay, by contrast, suggests that torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. Put another way, many fear that the revelations of abuses committed in the war on terror put the U.S. at risk of becoming a torture nation. This essay explores the ways in which the U.S. is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture.

To guide that exploration, I illustrate some of the ways in which past practice and mainstream legal doctrine provide a solid foundation for the abuses of the war on terror. The first part of this essay traces some of the history of torture and related forms of abuse in U.S. foreign policy, followed by a description of the law and practice of police and prison violence, and concluding with immigration. Part Two examines the interaction of U.S. and international law in the context of torture, primarily through a detailed examination of U.S. ratification of the Convention Against Torture and the International Covenant on Civil and Political Rights. Part Three concludes the essay by drawing explicit connections between these precedents and the perceived excesses of the war on terror.

My goal is not to make a normative argument about the condition of U.S. law and practice. Nor am I suggesting that they are pernicious or evil. At most, I am arguing that the U.S. is an entirely typical modern state in its use of torture. I seek primarily to fix the distorted picture sketched by rhetorical responses to the abuses of the war on terror. The examples I offer are not themselves a complete picture, of course, but no account of U.S. law and practice relating to torture can be complete without them. Grappling with a more complex representation of how violence colors U.S. law and politics is difficult, but scholarly analysis of these issues requires the effort. What, if anything, readers do with the resulting picture is a question beyond the scope of this essay.

____

“Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea-Ethiopia Claims Commission in the Hague”

Wisconsin International Law Journal, Vol. 25, No. 23, 2008

WON KIDANE, Seattle University School of Law
Email: kidanew@seattleu.edu

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions.

In practice, the enforcement of this important provision of international humanitarian law has remained a matter of rarity, particularly in terms of civil – rather than criminal – liability. However, a recent exception is the Eritrea-Ethiopia Claims Commission in The Hague (the Claims Commission or the Commission). The Claims Commission was established pursuant to a peace agreement signed by Eritrea and Ethiopia in Algiers, Algeria, on December 12, 2000, ending a devastating war fought between the two countries from May 1998 to December 2000.

The Commission was charged with the duty of deciding, through binding arbitration, all claims by one party or citizens of that party against the other party for loss, damage, or injury resulting from violations of international law (mainly violations of international humanitarian law that occurred during the war). The Commission commenced its work in March 2001 and decided to consider the claims of the parties in two different phases of the proceedings: a liability phase and a damages phase. The Commissions rendered the final decisions of the liability phase on December 19, 2005. The damages phase is still being conducted, although no decisions have been rendered by the Commission to date as part of that phase. Thus, this Article exclusively focuses on the Commission’s work as it relates to the completed liability phase.

____

“The Law on the Unilateral Termination of Occupation”

Eyal Benvenisti, THE LAW ON THE UNILATERAL TERMINATION OF OCCUPATION, (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel) Endreas Zimmermann and Thomas Giegerich, eds., 2009

EYAL BENVENISTI, Tel Aviv University – Buchmann Faculty of Law
Email: ebenve@post.tau.ac.il

This brief note discusses the legal ramifications of the unilateral termination of occupation. The note seeks to characterize the moment of termination and examines the obligations of the occupant during (and possibly after) the termination process.