significant release of old OLC memos

March 2, 2009

DOJ today announced the release of a number of significant OLC memos

No time for summaries at the moment, but here they are:

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Amidax Trading v. S.W.I.F.T.; forthcoming scholarship

February 19, 2009

Judge Castel has granted a motion to dismiss a would-be class action directed against SWIFT (a consortium in the business of facilitating international banking transfers), the Treasury Department, CIA, and other defendants, arising out of reports that the U.S. government obtained data from SWIFT as part of its post-9/11 counterterrorism efforts.  The core of the analysis follows:

In sum, in a newspaper article based on discussions with “[n]early 20 current and former government officials and industry executives,” there is one unnamed person quoted as saying that the government initially got “the entire Swift database.” (Id.) Every other person quoted explains that there was a limit to the amount of information provided by SWIFT and there were controls and restrictions constraining the ability of government officials to search through the data provided. Of course, plaintiff need not establish that the government obtained access to the entire SWIFT database. To establish an injury in fact–and thus, a personal stake in this litigation–plaintiff need only establish that its information was obtained by the government. See Sierra Club, 405 U.S. at 734-35 (“the ‘injury in fact’ test requires … that the party seeking review be himself among the injured”). However, plaintiff has not made any showing that the government is now, or ever was, in possession of its financial information. See Am. Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 677 (6th Cir.2007) (explaining that because “plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted” plaintiffs lack standing to challenge the National Security Agency’s Terrorist Surveillance Program on Fourth Amendment grounds) (footnote omitted).

Plaintiff’s complaint does not allege a concrete and particularized injury. It is premised upon conjecture and requires the kind of speculation that the Supreme Court has prohibited. It would be purely “hypothetical” to surmise that plaintiff’s financial information was among the tens of thousands (or perhaps hundreds of thousands) of SWIFT transactions obtained or reviewed by the government; and it would be entirely “conjectural” to suppose that an anonymous source quoted in one paragraph of an article is more reliable or accurate than any other source quoted elsewhere in the article. See Lujan, 504 U.S. at 560-61. Read in its entirety, the complaint is a patchwork of guesses and contradictions. Thus, plaintiff has failed to adequately allege an injury in fact, and, therefore, the Court need not consider whether the remaining standing requirements of causation and redressability have been met.

The Court acknowledges that defendants’ potential invocation of the state secrets privilege, (see Federal Def.’s Mem. at 35 n. 15), raises the possibility that neither plaintiff nor anyone else will ever be able to establish that its data was obtained by the government from SWIFT. However, as the Second Circuit has noted, “perhaps no one could ever have standing to raise this issue. But such is irrelevant for determining whether the ‘case’ or ‘controversy’ requirement has been satisfied.” In re United States Catholic Conference (Abortion Rights Mobilization Inc. v. Baker), 885 F.2d 1020, 1031 (2d Cir.1989), cert. denied, 495 U.S. 918 (1990). “The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974), because that “view would convert standing into a requirement that must be observed only when satisfied.” Valley Forge, 454 U.S. at 489. Indeed, the Second Circuit has explained that “the lack of a plaintiff to litigate an issue may suggest that the matter is more appropriately dealt with by Congress and the political process.” Catholic Conference, 885 F.2d at 1031. Because plaintiff lacks standing, this action must be dismissed for lack of subject matter jurisdiction. [FN5]

2. Forthcoming scholarship

“Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11”

U. of Pittsburgh Legal Studies Research Paper No. 2009-03

DAVID A. HARRIS, University of Pittsburgh – School of Law
Email: daharris@pitt.edu

Since the attacks of September 11, 2001, law enforcement agencies have actively sought partnerships with Muslim communities in the U.S. Consistent with community-based policing, these partnerships are designed to persuade members of these communities to share information about possible extremist activity. These cooperative efforts have borne fruit, resulting in important anti-terrorism prosecutions. But during the past several years, law enforcement has begun to use another tactic simultaneously: the FBI and some police departments have placed informants in mosques and other religious institutions to gather intelligence. The government justifies this by asserting that it must take a pro-active stance in order to prevent attacks by terrorists from outside the U.S., and by so-called homegrown cells from within. The problem is that when the use of informants in a mosque becomes known in a Muslim community, people within that community – the same people that law enforcement has so assiduously courted as partners against extremism – feel betrayed. This directly and deeply undermines efforts to build partnerships, and the ability to gather intelligence that might flow from those relationships is compromised or lost entirely.

As it stands, the law – whether in the form of Fourth Amendment doctrine, defenses in substantive criminal law, or cases and statutes supporting lawsuits against government surveillance – offers little help in resolving this dilemma. Further, change in either statutes or Supreme Court doctrine that might help address the problem seems vanishingly unlikely. Locally negotiated agreements on the use of informants represent the best alternative route toward both security against terrorists and keeping Muslim communities inclined to assist in anti-terrorism efforts. In these agreements, law enforcement might agree to limit some of its considerable power to use informants, in exchange for the continued cooperation of the community. The article discusses how such agreements might be reached, what they might strive to do substantively, and also addresses the problems they would encounter.

“Security Council’s Targeted Sanctions Against Presumed Terrorists: The Need to Comply with Human Rights Standards”

Journal of International Criminal Justice, Vol. 6, Issue 3, pp. 541-555, 2008

MICHAEL BOTHE, affiliation not provided to SSRN
Email: bothe-bensheim@t-online.de

A serious lacuna in international relations is the absence of a possibility for individuals to challenge decisions of international organizations. However, the right to legal remedy is a fundamental human right, and it is generally recognized that human rights bind international organizations. Thus, the question is raised as to what reforms the Security Council procedure requires in light of targeted sanctions, i.e. the placing of individuals on a list of measures to be implemented by states or the EU/EC. The author argues that there should be due process standards for listing decisions themselves as well as an effective remedy against such decisions. The inspection panels installed by the World Bank are presented as an example that meets such standards and could inspire a review procedure for Security Council actions affecting individuals by targeted actions. Finally, it is contended that, despite the possible critique, it is not only a matter of expediency but a legal duty to render UN listing and de-listing procedures consistent with due process requirements.

War About Terror: Civil Liberties and National Security After 9/11

Council on Foreign Relations

Daniel B. Prieto

This working paper, authored by Daniel B. Prieto, adjunct senior fellow for counterterrorism and national security, addresses the issue of how to maintain America’s longstanding democratic traditions while protecting it from real and serious threats. Based on an assessment of executive authority, legislative activity and oversight, and judicial review, the paper argues that counterterrorism policies will be sustainable over the long term only if policymakers design them with the coequal objectives of improving national security and protecting civil liberties. On this basis, it offers findings and recommendations on U.S. detention and interrogation policy, and the domestic intelligence activities of the United States.

“Fighting Terrorism in the Political Arena the Banning of Political Parties”

Party Politics, Vol. 14, No. 6, pp. 91-108, 2008

SUZIE NAVOT NAVOT, College of Management – Law School
Email: suzie@netvision.net.il

In recent years, Western democracies have attempted to outlaw political parties alleged to be ‘non-democratic’. Provisions in post-World War II constitutions were mainly enacted to exclude Nazi and Fascist parties from participating in the elections. Lately, the banning of political parties has spread to radical and religious parties. Recent debates in Spain, Germany, Turkey and Israel provide some examples of this. This article deals with the legal framework for the disqualification of political parties in Israel, focusing on the new anti-terrorist amendment, which allows for banning lists and individual candidates who support terrorist acts and the use of violence. The new grounds for banning parties are also discussed in a comparative perspective, vis-a-vis the new Spanish law of 2002. The article reveals the dilemmas of Israel, a ‘defensive’ democracy, in its attempt to deal with support for terrorism by outlawing political parties.

“National Security and Expulsion to a Risk of Torture”

Edinburgh Law Review, Vol. 12, No. 3, pp. 486-490, September 2008

JERNEJ LETNAR CERNIC, University of Aberdeen – School of Law
Email: jernej.letnar@abdn.ac.uk

In Saadi v Italy, the European Court of Human Rights held that article 3 of the European Convention on Human Rights prohibits expulsion of individuals to states where they would face a “real risk” of torture, inhuman or degrading treatment. This article analyses the ECHR’s reasoning.

“Bank Liability Under the Anti-Terrorism Act: Dispelling the ‘Routine Banking Services’ Defense in Material Support Cases”

STEPHEN I. LANDMAN, Catholic University of America – Columbus School of Law

This article evaluates civil liability for financial institutions that provide material support to terrorist organizations. Part I of this article analyzes the development of the ATA and related legislation proscribing material support to terrorist groups, highlighting the evolving statutory construction by looking to the body of case law surrounding lawsuits against the terrorist support network. Part II examines the issue of terrorist financing generally, taking into consideration the challenges facing financial institutions. Finally, Part III analyzes the term “financial services” in the context of material support prohibitions, referencing the ongoing litigation against financial institutions under the ATA. Using the lawsuit filed on behalf of Daniel Pearl as a case study, this article concludes that a broad interpretation of the statute is not only in line with the legislative intent of the ATA, but is also the only way in which it can be effective in halting terrorist financing.


AG opinion on constitutionality of proposed OLC reporting act; forthcoming scholarship

January 13, 2009

1.  Attorney General Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008) (made public 1/12/09)

OLC has released a memorandum from AG Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional.  The memo is posted here: http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf

2. Forthcoming scholarship

“True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers”

Roger Williams University School of Law Legal Studies Research Paper Series

PETER MARGULIES, Roger Williams University School of Law
Email: pmargulies@rwu.edu

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department’s Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes. Read the rest of this entry »


Boim v. Holy Land; OSI fellowship; forthcoming scholarship

December 5, 2008

1. Boim v. Holy Land Foundation for Relief & Development (7th Cir. Dec. 3, 2008) (en banc)

Available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1815_083.pdf

The Boim litigation arises out of the murder by Hamas of David Boim, a dual Israeli-American citizen, near Jerusalem in 1996.  Boim’s family brought suit against Muhammad Salah and a series of organizations, arguing that they raised money for Hamas and thereby were subject to civil liability under 18 USC 2333.

The en banc 7th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that: Read the rest of this entry »


symposium: terrorism & the legal impact on business; forthcoming scholarship

November 21, 2008

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person. Read the rest of this entry »


DOJ Fact Sheet on CT Efforts

September 11, 2008

* Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11

DOJ has created a new fact sheet summarizing its counterterrorism activities since 9/11 (see here: Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11).  The short documents lists major terrorism prosecutions, significant organizational developments, and a few other interesting odds-and-ends (including a brief discussion of efforts to prevent radicalization within prisons).  Also note this excerpt from the introduction, which implicitly responds to criticism that DOJ should wait longer before intervening with arrests when investigating terrorism suspects:

In each of these cases, the Department has faced critical decisions on when to bring criminal charges, given that a decision to prosecute a suspect exposes the Government’s interest in that person and effectively ends covert intelligence investigation. Such determinations require the careful balancing of competing interests, including the immediate incapacitation of a suspect and disruption of terrorist activities through prosecution, on the one hand; and the continuation of intelligence collection about the suspect’s plans, capabilities, and confederates, on the other; as well as the inherent risk that a suspect could carry out a violent act while investigators and prosecutors attempt to perfect their evidence.

While it might be easier to secure convictions after an attack has occurred and innocent lives are lost, in such circumstances, the Department would be failing in its fundamental mission to protect America and its citizens, despite a court victory. For these reasons, the Department continues to act against terror threats as soon as the law, evidence, and unique circumstances of each case permit, using any charge available. As Attorney General Mukasey has stated: “[W]hen it comes to deciding whether and when to bring charges against terrorists, I am comfortable knowing this: I would rather explain to the American people why we acted when we did, even if it is at a very early stage, than try to explain why we failed to act when we could have, and it is too late.”