handy link for OLC memos; forthcoming scholarship

1. Handy resource for keeping track of OLC and other legal memos from 2001-2008 relating to national security, including links to those that are public and descriptions of those that are not

This is pretty useful.  From ProPublica:

http://www.propublica.org/special/missing-memos

2. Forthcoming Scholarship

“‘De Facto Sovereignty’: Boumediene and Beyond”

George Washington Law Review, Forthcoming
SMU Dedman School of Law Legal Studies Research Paper No. 00-29

ANTHONY J. COLANGELO, Southern Methodist University – Dedman School of Law
Email: colangelo@smu.edu

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains “de facto sovereignty” over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court’s holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations involving extraterritorial detention of non-citizens in the war on terror?

Boim v. Holy Land; OSI fellowship; forthcoming scholarship

1. Boim v. Holy Land Foundation for Relief & Development (7^th 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 7^th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that:

briefing on proposed changes to FBI Nat Sec Invest. Guidelines

* Consolidated Attorney General Guidelines – Background Briefing (9/13/08)

I don’t have a copy of the draft Consolidated AG Guidelines to circulate, but those who are interested in the topic might want to review the recent background briefing posted here:

http://www.usdoj.gov/opa/pr/2008/September/08-opa-814.html

This exchange highlights the effort to permit investigators acting under the rubric of intelligence rather than criminal investigation to employ three techniques at the “threat assessment” stage: recruiting human sources (or tasking existing sources); pretextual interviewing (i.e., interview by FBI agent either without disclosing affiliation or without disclosing the real subject of interest); and ordinary physical surveillance.