60-day extension for sunsetting PATRIOT Act provisions; passing the 800 member mark

December 16, 2009

1. 60 day extension on the way for expiring PATRIOT Act provisions

A quick note on the PATRIOT Act provisions that were set to expire this month.  Apparently Congress is punting the issue until after the holidays, as there is a 60-day extension for these authorities in the Defense Appropriations bill that appears set to become law in the near future.  The PATRIOT debate accordingly will resume in early 2010…

2. 800 members and counting…

I was pleased to note yesterday that this listserv now has exactly 800 members, which is its high water mark.  The list has been around since about 2003, and has grown steadily, especially this year.  Feel free to encourage others to sign up!  Who knows, maybe there will be more than a 1000 of us by this time next year…

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United States v. Zazi (D. Col.); legislative proposal to add new mens rea element to the 1996 material support statute

September 20, 2009

1.. United States v. Zazi (D.Col.)

In a story that has received a significant amount of media attention over the past few days, FBI agents in Colorado have arrested Najibullah Zazi (a lawful permanent resident hailing from Afghanistan) and his father, Mohammed Wali Zazi (a naturalized US citizen originally from Afghanistan), while FBI agents in New York have arrested Ahmad Wais Afzali (a lawful permanent resident hailing from Afghanistan).  The men are charged with making false statements to the FBI in violation of 18 USC 1001(a)(2). Ordinarily that offense is punishable by a maximum sentence of five years, but the maximum is eight years where, as may be the case here, the false statement relates to an offense amounting to “international terrorism” as defined in 18 USC 2331(1). Read the rest of this entry »


Al Rabiah v. United States; error correction: it was Camp Bucca that closed, not Cropper; DOJ letter supporting reauthorization of roving wiretap, business records, and “lone wolf” provisions

September 18, 2009

1. Al Rabiah v. United States (D.D.C. Sep. 17, 2009)

Judge Kollar-Kotelly has granted habeas relief to Al Rabiah.  No underlying opinion available to the public yet, but the short order is posted here.  I will post the opinion as soon as possible.  It is certain to be interesting…

2. Error Correction – Camp Bucca, not Camp Cropper, has already closed

Yesterday I noted the Times article on the closure of detention facilities in Iraq.  In my haste, I wrote that Cropper was closed now, but in fact it is Camp Bucca that has closed already.  Thanks for the good catch, alert readers!

3. Letter from DOJ to Senator Leahy supporting reauthorization of certain PATRIOT Act and IRTPA provisions

Click here for DOJ’s six-page letter in support of reauthorization of FISA provisions on roving wiretaps and business records (both deriving from the PATRIOT Act) and “lone wolves” (from the IRTPA of 2004).


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.


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 »