Georgetown Security Law Brief

District Court rejects Bivens claim of US citizen detained in Iraq

9/30/08:  National Security Advisors discusses an opinion by Judge Robertson in which the District Court rejected a Bivens claim by Cyrus Kar, a U.S. citizen arrested and detained for 48 days without a hearing in Iraq.  The government was given qualified immunity because there was no clearly established Fourth Amendment right, but the Court cautioned that in light of this case, that might not be true in a future suit.

Russian police burning the homes of Chechen rebels' families

9/30/08:  The New York Times reports that vigilantes thought to be members of the police have begun burning the homes of Chechen families whose sons are suspected of participating in the insurgency.  The government has also begun forcing family members to appear on television and plead with their sons to return home.

First DHS authorization bill introduced in the Senate

9/29/08:  Homeland Security Watch announces that the first Department of Homeland Security authorization bill was introduced in the Senate today.  The bill adds a few new positions and components, such as the National Cyber Security Center, and seeks to strengthen the growing agency with policies on investment and human capital.

Event: National Security Law Career Fair

9/29/08:  The George Washington University National Security Law Association is hosting a career fair for 2Ls and 3Ls on Thursday, October 2 from 1-3pm in the campus's Marvin Center.  See our calendar for details.

Event: Law and the long war, the future of justice in the age of terror

9/29/08:  The Center for Peace and Security Studies announces an event featuring Mr. Benjamin Wittes, Fellow and Research Director in Public Law The Brookings Institution.  The talk is titled: " Law and the Long War: The Future of Justice in the Age of Terror."  See our calendar for details.

U.S. policy on arms purchases from former Warsaw Pact countries questioned

9/29/08:  The Washington Post reports that U.S. policy regarding the acquisition of weapons from former Warsaw Pact countries for use in Afghanistan has been called into question by the House Committee on Oversight and Government Reform.  The main question is whether any policy, law, or regulation prevents the Army from dealing directly with these countries which are often seeking to unload the old weaponry.  Some assert there is, and that the Army must purchase the arms through contractors who then realize large profits.

Senate passes resolutions of advice and consent for 78 treaties

9/29/08:  Opinio Juris discusses the 78 treaties which the Senate passed resolutions of advice and consent for last week.  The Senate Foreign Relations Committee had recommended all of the treaties, and there was no serious floor debate.  One notable change, however, was that the resolutions included declarations as to whether or not the treaty was self-executing.

Female Afghan police official murdered

9/29/08:  CNN reports that the Taliban has claimed responsibility for gunning down female police official Malalai Kakar in Kandahar on Sunday,  Kakar was the head of the crimes against women department.

Supreme Court to hold first conference of October term 2008

9/28/08: SCOTUSblog discusses items on the docket for the first conference of the Supreme Court's October term 2008, which will take place Monday.

London police arrest three under terrorism act

9/27/08: The New York Times reports that early Saturday morning London police arrested three men on suspicion of commission, preparation, or instigation of acts of terrorism.

Air Force instructor details harsh interrogations

The Washington Post reports that an Air Force colonel testified before the Senate that he witnessed harsh interrogation of detainees in Iraq that in his opinion violated the Geneva Conventions.  The Senate Judiciary Committee voted 10 to 9, along party lines, to subpoena materials related to harsh interrogation techniques from the Justice Department's Office of Legal Counsel.

Defendant in San Diego pipe bombing pleads guilty

9/26/08:  The San Diego Union-Tribune reports that one of the three defendants in the detonation of a bomb at the federal courthouse in San Diego earlier this year pleaded guilty.  HT to HowAppealing.

Congressman John Murtha, D-PA sued for remarks on Haditha killings

9/26/08: The Tribune Democrat reports that Congressman John Murtha, D-PA, is being sued for slander by a Marine involved in the Haditha killings.  The Marine, Justin Sharrat, alleges irreparable damage to his reputation for comments Murtha made in a CNN interview where he said that the Iraqi civilians had been killed "in cold blood."  The lawsuit claims that Murtha's comments violated Sharrat's constitutional rights and have hurt his employment prospects.

Lederman featured in new documentary on interrogations

9/26/08: IT News Online reports that Georgetown Law professor Martin Lederman is one of several featured interviewees in a soon to be released documentary entitled "Torturing Democracy" that examines the evolution of interrogation techniques used by the U.S. government at Guantanamo and elsewhere after September 11, 2001.

Western lawyers say Saddam trial lacked due process

9/26/08: The New York Times reports that western lawyers who advised the Saddam Hussein tribunal are now asserting that a judge appointed to the trial's bench by the Maliki government in the trial's final weeks had no opportunity to hear the evidence in the trial before sentencing Hussein. HT to Jurist and Opinio Juris.

Recently released documents reveal new U.S. border policy grants broader inspection authority than previous border policy

9/24/08: Wired reports that documents recently released by the Department of Homeland Security (DHS) following a FOIA lawsuit brought by the Electronic Frontier Foundation and Asian Law Caucus show that DHS's new border policy expands border agents' authority to search personal belongings, in some cases permitting them to copy documents without probable cause.

State Department posts previously undisclosed specifications of Protective Services contract

9/24/08: The Federation of American Scientists reports that, in response to a FOIA request, the State Department recently posted online some specifications of its Worldwide Personal Protective Services (WPPS) contract. The specifications apply to security contractors working for the Department worldwide, including contractors in Iraq, Afghanistan, Bosnia, and Israel.  The Federation report links to a .pdf copy of the contract materials.

DHS testing new system that reads body signs to predict hostile intentions

9/24/08: Fox News reports that the Department of Homeland Security is now testing MALINTENT, a system that monitors heart rate, respiration, body temperature, and possibly other clues to predict whether any given individual might have hostile intentions towards his fellow passengers.

Atlantic Monthly critiques NATO's counterinsurgency strategy in Afghanistan

9/24/08: This month's Atlantic Monthly has an article titled, "All Counterinsurgency is Local." The article critiques NATO's counterinsurgency strategy in Afghanistan for emphasizing national-level governance, and paying too little attention to smaller districts, which are the real centers of Afghan society.  Intel Dump discusses the article.

Afghan heroin trafficker convicted in New York

9/24/08: The New York Times reports that a federal jury in Manhattan convicted an Afghani man of an international heroin trafficking conspiracy on Tuesday. Prosecutors alleged that the defendant paid 10% of his profits to the Taliban in exchange for permission to operate in their territory.

Former DOJ officials discuss proper forum for prosecuting suspected terrorists

9/22/08: Audio from a September 8th panel discussion of terrorism prosecutions is now available online. Participants included former AUSAs James J. Benjamin, Jr., Andrew McCarthy, and Richard B. Zabel; former US Attorney Mary Jo White; and former US Attorney General Benjamin Civiletti.  HT to National Security Advisors.

9/11 Hijackers' remains are in limbo

9/22/08: The New York Times reports that seven years after the September 11th terrorist attacks, the remains of 13 of the 19 men responsible for the attacks have been identified, but no one has formally requested the remains in order to bury them.  The F.B.I. and the New York City medical examiner's office continue to have custody of the remains.

Trials of communist, Nazi military officers begin

9/22/08: Opinio Juris discusses the start of two trials. The first is of former Polish General Wojciech Jaruzelski, 85, accused of orchestrating the communist Polish government's brutal repression of the pro-democracy Solidarity movement in the 1980s. The second is of former Nazi officer Joseph Sheungraber, 90, for allegedly ordering the killing of 14 civilians during World War II in Falzano, near Cortona, Italy, as a reprisal for partisan activity.

Event: The rule of law and global war on terrorism conference

The Rule of Law and the Global War on Terrorism: Detainees,Interrogations, and Military Commissions
November 13-14, 2008
Sponsored by the Washburn University School of Law Center for Law and
Government and the Washburn Law Journal
http://washburnlaw.edu/ruleoflaw/

The United States Constitution was founded on the Rule of Law. The Global War on Terrorism has tested the limits of our constitutional values and has posed unprecedented challenges for the U.S. legal system. Throughout these difficult times, the federal courts have been instrumental in upholding the Rule of Law.

Events: Upcoming Supreme Court panels

Upcoming Supreme Court Panels-Events

SCOTUSblog compiled this list up upcoming Supreme Court panels

Host: Georgetown University Law Center
Date: Tuesday, September 22 from 8:30 a.m. to 11:00 a.m.
Location: Gewirtz Student Center, 12th floor
More information: Click here.
Panelists (all Georgetown professors):

    * Martin Lederman
    * Lisa Heinzerling
    * James Forman
    * David Vladeck
    * Susan LowBloch

__________________

Host: National Chamber Litigation Center
Date: Tuesday, September 23 at 8:30 a.m.
Location: U.S. Chamber of Commerce
More information: This event is for members of the media.  To RSVP, contact Sheldon Gilbert at 202-463-5337 or sgilbert@uschamber.com.
Panelists:

    * Robin Conrad, National Chamber Litigation Center (moderator)
    * Paul Clement, former U.S. Solicitor General
    * Seth Waxman, former U.S. Solicitor General

__________________

Host: American Constitution Society
Date: Wednesday, September 24 from 12 to 2 p.m.
Location: National Press Club
More information: Click here
Panelists:

    * Preet Bansal, Skadden Arps (moderator)
    * Debo Adegbile, NAACP Legal Defense Fund
    * Beth Brinkmann, Morrison & Foerster
    * Walter E. Dellinger, O’Melveny & Myers
    * Orin Kerr, George Washington University Law School
    * David Vladeck, Georgetown University Law Center

__________________

Host: William & Mary School of Law
Date: September 26-27
Location: William & Mary School of Law
More information: Click here
Panelists: (listed at above link)

__________________

Host: American Civil Liberties Union
Date: Thursday, October 2 at 8:30 a.m.
Location: Washington Court Hotel
More information: Click here
Panelists:

    * Steven R. Shapiro, ACLU Legal Director
    * Jonathan Hafetz, ACLU National Security Project
    * Chris Hansen, ACLU First Amendment Working Group
    * Laughlin McDonald, ACLU Voting Rights Project

Public reaction documentary on surveillance in Sweden

9/20/08: A new documentary about the blogosphere’s reaction to surveillance laws passed this year in Sweden is now available. Click here for video.

Heritage Foundation and Center for Strategic and International Studies release recommendations for improving DHS

9/18/08 The Adfero Group reports that the Heritage Foundation and the Center for Strategic and International Studies (CSIS) yesterday released a report, "Homeland Security 3.0," that contains 25 recommendations for improving homeland security across the board.  The report is the third to be produced jointly by the Heritage Foundation and CSIS.

America’s global legal influence is waning

9/19/08: The New York Times reports that America's legal influence is waning as the number of international courts citing U.S. case law has declined, particularly in the area of human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”

Harsh critique of U.S. post-9/11 immigration clampdown

9/19/08: The Council on Foreign Relation’s Senior Fellow Edward Allen criticizes U.S. immigration policies since 9/11 stating hat a decision by U.S. Justice Department officials to use immigration laws aggressively swept up a number of innocent, or relatively harmless people with minor immigration violations. "From the perspective of the administration, what was good about that was you could arrest these people, you could put them into detention, you could question them and there was no one who could compel you to release them until you had satisfied yourself that they didn't pose a danger to the country," he says. "The problem is we didn't really find any terrorists that way."

Forthcoming scholarship

9/18/08: The following articles are forthcoming.

• Eric Talbot Jensen, "Exercising Passive Personality Jurisdiction Over Combatants: A Theory in Need of a Political Solution," The International Lawyer, Fall 2008. Read a summary here.
• John Parry,  "Torture Nation, Torture Law." Georgetown Law Journal, Vol. 97, 2008. Read a summary here.
  
• Won Kidane, "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. Read a summary here.
• 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. Read a summary here.

Event: International Law Weekend 2008

9/18/08: Opinio Juris posts about International Law Weekend 2008 - The United States and International Law: Legal Traditions and Future Possibilities, held October 16 - 17, 2008. See our calendar for details.

Federal and state intelligence sharing program may expand to all 50 states

9/18/08: The DHS Leadership Journal discusses the Homeland Security State and Local Intelligence Community of Interest (HS SLIC) program. HS SLIC permits intelligence analysts in 45 states, DC, and seven federal agencies to share intelligence information and analysis on a daily basis. The program may expand to all 50 states soon.

American soldier in custody after deaths of two fellow American soldiers

9/18/08: The New York Times reports that an American soldier is being held in custody after the shooting deaths of two other American soldiers. It is unclear whether the killings were intentional or negligent.

DHS releases 2008 strategic plan

9/18/08: DHS has released a new strategic plan, intending to solidify its core missions including immigration, customs and border control, critical infrastructure, and preparedness.  Homeland Security Watch discusses the plan.

Three soldiers charged with murder in Iraqi deaths

9/18/018: The New York Times reports that three American G.I. soldiers have been charged with murder in the deaths of four Iraqis, and four other soldiers have been charged with conspiracy to commit murder. There was apparently a shootout between the Iraqis, believed to be insurgents, and the Americans. The deaths happened after the Iraqis were taken into American custody.

Senators introduce new detainee legislation

9/17/08: A Washington Post editorial criticizes a new Senate proposal on the legal process for Guantanamo Bay detainees, stating that it has serious flaws and largely replicates previous legislation. By introducing the Enemy Combatant Detention Review Act of 2008, Sens. Lindsey O. Graham (R-S.C.) and Joseph I. Lieberman (I-Conn.), the editorial argues, have rightly stepped in to fill the void with legislation. But their offering comes too close to replicating some of the failed processes at Guantanamo that gave rise to Mr. Boumediene's landmark case.

Treasury Inspector General for Tax Administration issues audit on FOIA

9/17/08: FOIA blog reports that the Treasury Inspector General for Tax Administration ("TIGTA") has issued an audit report on the IRS FOIA Program.  It gives the FOIA program passing marks. 

Calls for the return of the “Reno Standard” to FOIA processing

9/17/08: The FOIA Blog reports that John Podesta of the Center for American Progress calls upon either the next President or Congress to return the foreseeable harm standard to FOIA processing.  This standard was introduced in October 2003 by then Attorney General Janet Reno and was subsequently abolished by her successor John Ashcroft.
Read Podesta's full testimony here.

DOJ files returns in habeas cases; detainees dispute the returns' validity

9/17/08: SCOTUSblog discusses the Justice Department recent filing of new reports in court aimed at preventing or delaying the release of scores of detainees at Guantanamo Bay. SCOTUSblog also details recent counterattacks from lawyers for six of the detainees who won a Supreme Court ruling and the right to challenge their detention in federal court.

Update: Bolivian troops arrest governor charged with genocide

9/17/08: The New York Times reports that Bolivian troops arrested a governor accused of overseeing a massacre of peasants. The governor, Leopoldo Fernández of Pando, an Amazonian department that was the site of the worst violence last week between antigovernment and pro-Morales protesters, was arrested amid growing concern in Washington over the safety of American citizens in Bolivia.

Georgetown Law Professor Lederman on the restoration of the rule of law

9/17/08: Firedoglake posted Professor Lederman’s remarks from its Firedoglake chat series, in which he discusses various Bush Administration policies including detention, torture and surveillance policies, as well as the U.S. Attorney scandal and, more generally, the Administration's radical view of Executive prerogatives. 

DOJ issues guidance on FOIA Amendments of 2007

9/16/08: The DOJ issued guidance on the provision of the FOIA Amendment of 2007 that concerns the maintenance of records for an agency under Government contract.  The FOIA blog discusses the new guidance stating: “it basically says [that] when you are performing your searches make sure you check for any possible records held by contractors.”

Cheney Shielded Bush from Warrantless Domestic Surveillance Program Crisis

9/15/08: The Washington Post reports that Vice President Cheney convened a meeting in the Situation Room at 3 p.m. on Wednesday, March 10, 2004, with just one day left before the warrantless domestic surveillance program was set to expire. Around him were National Security Agency Director Michael V. Hayden, White House counsel Alberto R. Gonzales and the Gang of Eight -- the four ranking members of the House and the Senate, and the chairmen and vice chairmen of the intelligence committees.  Even now, three months into a legal rebellion at the Justice Department, President Bush was nowhere in the picture.

6 Men Convicted of Terror Plot in Australia

9/15/08: The New York Times reports that a jury in Australia’s largest terrorism trial has found six men guilty of plotting attacks on public facilities. The six were part of a group of 12 men who had been accused of planning to attack major sites around their home city of Melbourne.

Prosecutors said their targets included the Melbourne Cricket Ground during the 2005 final of the Australian Football League, when over 90,000 people would have been in attendance, and the Australian Formula One Grand Prix.

Event: Peacekeeping Operations: The Legal Dimension

9/15/08: On September 25, 2008 The Catholic University of America will host a day-long event, "Peacekeeping Operations: The Legal Dimension" at The Catholic University of America, Columbus School of Law, Washington, DC 20064.

Brief description of the event: In 1988 there were four peacekeeping operations; in 2008 there are 20, with a concurrent demand for peacekeeping forces. The United States and its G8 partners are committed to train and equip 75,000 peacekeepers worldwide by 2010. This program will address two aspects of that growth. The morning session will address the sources and application of legal authority to investigate and punish crimes allegedly committed by civilians accompanying armed forces. The afternoon session will focus on  training peacekeepers to meet international legal norms, primarily in Africa because of the number of peacekeeping missions needed there. 

For more information and to register please visit the Catholic University of America website.

ABA Student Writing Competition: “New Perspectives for a New Threat”

9/15/08: The American Bar Association Standing Committee on Law and National Security announced the "New Perspectives for a New Threat: student analysis of a timely issue at the intersection of law and national security" writing competition, open to all students of ABA accredited law schools.

Submissions are due by Sept. 15th, 2008. For More information visit:  http://www.abanet.org/natsecurity/

ABA Breakfast Program with Stewart A. Baker, Assistant Secretary for Policy, United States Department of Homeland Security-EVENT

9/15/08: The American Bar Association Standing Committee on Law and National Security will host a breakfast meeting on Thursday, September 25, 2008 with Assistant Secretary Baker.  Baker will discuss policies pursued by the US in two key areas – terrorist communication and financing – provide background for the current debate about terrorist travel.  He will share his “thoughts on a national strategy to combat terrorist travel” as well as discuss transition planning at DHS on September 25. 

The breakfast will begin at 8:00 a.m. and will be held at the University Club, 1135 16th Street, NW in Washington, DC.   

See our calender for details.

Congressional hearings this week

9/14/08: Several interesting congressional hearings are scheduled this week; see our calendar for details.

Tuesday

• Senate Judiciary Constitution Subcommittee hearing to include testimony from several Constitution Project committee members, including former member of Congress Mickey Edwards (R-OK) (who also serves on our Board of Directors), Dean of Yale Law School Harold Koh, former White House Chief of Staff John Podesta, and former general counsel to the Senate Select Committee on Intelligence Suzanne Spaulding.
• Senate Judiciary Subcommittee hearing on Visa Waiver Program, focusing on mitigating the program risks to ensure the safety of all Americans.

Wednesday

• Senate Judiciary Committee hearing on FBI oversight.
• House Ways and Means Committee hearing on the Administration's progress toward reform of the security clearance process, as set forth by the Intelligence Reform and Terrorism Prevention Act of 2004.

Thursday

• House Armed Services Subcommittee on Terrorism, Unconventional Threats and Capabilities, hearing on Lessons for Countering al Qa'ida and the Way Ahead.
• House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security, hearing on the Department of Justice, Office of Justice Programs Oversight.

Forthcoming article

9/13/08: National Security Advisors reports that Amos Guiora has an article forthcoming, called "Anticipatory Self-Defence and International Law - A Re-Evaluation," published by the Journal of Conflict & Security Law. Read a summary here.

Senators Call for New Intelligence Appropriation Subcommittee

9/12/08: Secrecy News reports that Senator Christopher Bond (R-MO) and other members of the Senate Intelligence Committee called for the creation of a new subcommittee on intelligence within the Senate Appropriations Committee that would exercise greater control on intelligence spending.