Georgetown Security Law Brief

Argentina charges former prime minister for arms sales

11/30/2008:  Jurist reports that Former Argentinian Prime Minister Carlos Menem has been charged with illegally dealing in arms to Croatia and Ecuador against international embargoes.  Menem's defense team argues that the arms sales were initially and properly authorized to go to Venezuela and Panama but were then shipped to the other countries without Menem's knowledge.  Eighteen are charged in the indictment, and while Menem has temporary immunity based on his senate seat, he faces up to 12 years in prison.

Stories of secret arms deals troubling Ukraine

11/30/2008:  The New York Times reports that Ukrainian leaders are dealing with accusations made by pro-Russian elements that Ukraine secretly sold weaponry to Georgia during Russia's recent invasion.  The accusations claim that the arms sales were improper and covered up while Ukraine's President notes that even if such an exchange took place, Ukraine has a right to sell arms to any country that is not under an international sanction.

Update: NATO translator who spied for Iran gets 10 years

11/29/2008:  The Guardian reports that Daniel James, a British-Iranian dual citizen who worked as a NATO translator in Afghanistan, was given a 10-year sentence after being convicted under the Official Secrets Act of spying for Iran.  The judge acknowledged he should never have been appointed to his sensitive position to begin with, and noted that there had been "no known damage" to British or NATO operations in Afghanistan.

Scholarship: "Terrorism, Criminal Prosecution, and the Preventive Detention Debate"

11/29/2008:  "Terrorism, Criminal Prosecution, and the Preventive Detention Debate" (South Texas Law Review) by Robert Chesney (Wake Forest Law).  This article focuses on the ability of the criminal justice system to preventively detain dangerous people.  It argues that the charges available to prosecutors compare well to the military detention system and the military commissions system.  However, there are three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives: (i) mandatory disclosure concepts; (ii) Confrontation Clause (and hearsay) concerns; and (iii) the burden of proof.  It concludes with modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.

Commentary: The Judiciary's Last Hurrah?

11/28/2008: Justin Florence responds to Glenn Sulmasy's post, arguing that the courts will not be the institution to decisively resolve this issue of who can be detained as an enemy combatant. Rather, the Obama Administration's views on this issue -- wherever they lie substantively -- will carry the day, and the Supreme Court will be unlikely to strike down an Obama Administration detention policy.

Scholarship: "Enacting Counter Terrorism Financing Laws in the UAE and Bahrain: The Fusion of Global Pressures, Regional Dynamics, and Local Interests"

"Enacting Counter Terrorism Financing Laws in the UAE and Bahrain: The Fusion of Global Pressures, Regional Dynamics, and Local Interests" (Mediterranean Programme, Robert Schuman Centre for Advanced Studies, European University Institute) Carlos L. Yordan (Drew University).  After the terrorist attacks of 11 September 2001, the UN Security Council passed Resolution 1373, obligating all states to enact new laws that criminalized activities related to terrorism, and making laws against terrorism financing a priority. This paper analyzes the reasons that inform the UAE's and Bahrain's decision to comply with these financial standards. Both are becoming important global financial hubs and their compliance has been used to attract foreign investments. Moreover conformity with these rules, which are similar to the ones found in the USA PATRIOT Act, shows their commitment to Washington's global war on terror, but without having to publicly support America's strategies.  HT to National Security Advisors.

Update: Muslim scientist that lost clearance goes home to Egypt

11/28/2008:  The Miami Herald reports that a Muslim scientist whose security clearance was revoked by the Department of Energy has returned to his home country of Egypt after losing his suit and subsequent appeal to regain the clearance.  The DOE claimed that it had evidence that the scientist was a risk to national security, but it refused to turn over the evidence and allow the scientist to defend himself claiming the information was classified.  The scientist maintains that he was retaliated against for comments he made in opposition of the Iraq war and the treatment of Muslims by the President after 9/11.

Congress may revisit military appeal process

11/28/2008:  The New York Times reports that Congress may soon consider legislation to change the way decisions are appealed in court-martials.  The Uniform Code of Military Justice has not been altered by Congress in a major way in the last 25 years.  The changes proposed would permit greater access to appeals and a right to petition the Supreme Court in more cases.  Currently, a service member may only petition the Supreme Court if the Court of Appeals for the Armed Services chooses to hear the case, which only happens about 20 percent of the time.

Opinion: Future POWs in international or criminal courts

11/27/2008:  Counterterrorism Blog features a piece by Walid Phares in which he argues that the first step to establishing the proper legal regime for future terrorist suspects will be for the Obama adminstration to decide whether the country is or is not at war.  Phares notes that either the international law or criminal law must be chosen as the basis for detaining and prosecuting suspects in the future.  He posits that the current mixing of the two has only complicated the situation at Guantanamo.

German bombing suspects in Kosovo referred to international judge

11/27/2008:  BalkanInsight and the Christian Science Monitor report that the case of three alleged German spies said to be behind the Nov. 14 bombing of an EU building in Kosovo will be referred to an international judge.  The three suspects were arrested in Pristina last week and are believed to be members of the German Federal Intelligence Service.  The BBC reports that the three men claim that they were themselves investigating the blast.

Israel continues assassinations in West Bank despite order from Israeli supreme court

11/26/2008:  Ha'aretz reports that Israeli Defense Forces have conducted assassinations in the West Bank even when it could have been possible to arrest the targets instead, and that top-ranking army officers authorized the killings in advance, in writing, even if innocent bystanders would be killed as well.  The killings were in apparent defiance of guidelines laid down by Israel's High Court of Justice for such operations, which held that assassinations are permissible only if the target cannot be arrested instead, and that "harm to innocent civilians will be legal only if it meets the demands of proportionality."

Statute of limitations bars 1947 Indonesia massacre claims

11/26/2008:  Jurist reports that the Dutch government has told a survivor and nine widows of a 1947 massacre in Indonesia that their legal claims are barred by that statute of limitations.  Dutch soldiers allegedly killed more than 400 people in the village of Rawagedeh during the Indonesian war of independence.  The Dutch government (which has expressed regret over the incident but stopped short of apologizing) said that they would meet with the individuals but that no claim for compensation could go to court.   

Update: NYPD pleased with progress on FISA response

11/26/08:  The Miami Herald reports that Police Commissioner Raymond Kelly of the New York Police Department has said that he is pleased to note that applications for FISA warrants from his office have been getting a significantly better response lately.  This comes after a publicized dispute with the Justice Department in which Kelly complained that the DOJ was tying his hands and making New York less safe.

Update: Gates likely to stay on as Secretary of Defense

11/26/2008:  The New York Times and the Washington Post report that the Obama administration is likely to keep Gates as Secretary of Defense for the purpose of continuity for a country at war.  The arrangement is not yet final, and there is a possibility that Gates would only be kept on for about a year.  This would mark the first time that a Defense Secretary has been kept on after an administration change that was a change in parties.

UK introduces identity card program for foreign nationals

11/25/2008:  Jurist reports that Britain has begun issuing identity cards to foreign nationals in an effort to curb illegal immigration and identity theft.  While currently a voluntary program aimed at students and spouses of UK permanent residents, the government will seek to make the cards mandatory by 2015.  The card bears the holders name, birthdate, nationality, fingerprints, and reason for being in the UK.

German court paroles former Red Army leader

11/25/2008:  Jurist reports that a German court has granted parole to a leader of the Red Army Faction.  The RAF, also known as the Baader-Meinhof gang, was a terrorist organization that operated in Germany from 1968-1998 and was responsible for 34 deaths.  The convict, Christian Klar, had served 26 years in prison for convictions on 9 counts of murder and 11 counts of attempted murder which include a state prosecutor and a bank chairman.  The court ruled that he was no longer dangerous and would spend the next 5 years on parole.

Russian court dismisses complaint of Polish WW2 massacre victims

11/25/2008:  Polish Radio reports that the Municipal Court in Moscow has dismissed a legal complaint filed by families of 19,000 Polish officers murdered by Russian intelligence in Katyn in 1940.  The families' attorney said her clients would be appealing the case to the European Human Rights Tribunal in Strasbourg.  Polish daily Gazeta Wyborcza reports that Russia discontinued its own investigation of the massacre in 2004 on the basis of the statute of limitations.  At issue in the present case is whether the massacre was a genocide, for which there is no statute of limitations. 

US had intelligence file on Tony Blair while he was Prime Minister

11/25/2008:  The London Times reports that US intelligence kept a file “of personal nature” on Tony Blair while he was Prime Minister, in violation of an agreement between Britain and the US not to spy on each other’s leaders.

Spain turns to Latinos to fill ranks of Spanish Army

11/25/2008:  Taiwan News reports that nearly 7% of Spain's armed forces are now made up of non-Spanish Latinos.  Spain has struggled to recruit soldiers since it abolished the draft in 2000 and created an all-professional army.  Britain has a similar policy that allows recruitment of people from Ireland and Commonwealth countries, and the United States lets immigrants with legal residency serve in its armed forces.

Blog Symposium: The Significance of Boumediene and closing Guantanamo

We are hosting a blog symposium to debate the significance of last week's Boumediene decision, and closing Guantanamo Bay. Take a look, make a comment, or contribute.  Thanks for reading!

• Steve Vladeck argues that Judge Leon’s ruling in Boumediene will potentially have far more sweeping implications not just for how the federal courts dispose of the remaining Guantánamo cases, but for how they handle the cases of all individuals detained by the United States as "enemy combatants" going forward.
• Bobby Chesney replies to Steve Vladeck's comments on Judge Leon's ruling in Boumediene.  He argues that Judge Leon's decision may not have moved all that far forward on the matter of defining detention, but agrees that the central question will be the fate of the al-Marri cert. petition.
• Glenn Sulmasy replies to Steve Vladeck's post, arguing that Boumediene has complicated the legal regime in Federal Courts, focusing on the Uighur case, and discussing the role of the Judiciary in the War on al Qaeda, and the law enforcement or law of armed conflict approach employed to resolve these problems.
• Justin Florence responds to Glenn Sulmasy's post, arguing that the courts will not be the institution to decisively resolve this issue of who can be detained as an enemy combatant. Rather, the Obama Administration's views on this issue -- wherever they lie substantively -- will carry the day, and the Supreme Court will be unlikely to strike down an Obama Administration detention policy.

Blog Symposium: The Significance of Boumediene and closing Guantanamo

11/25/2008: Glenn Sulmasy replies to Steve Vladeck's post, arguing that Boumediene has complicated the legal regime in Federal Courts, focusing on the Uighur case, and discussing the role of the Judiciary in the War on al Qaeda, and the law enforcement or law of armed conflict approach employed to resolve these problems.

11/25/2008: Guest blogger Bobby Chesney replies to Steve Vladeck's comments on Judge Leon's ruling in Boumediene.  He argues that Judge Leon's decision may not have moved all that far forward on the matter of defining detention, but agrees that the central question will be the fate of the al-Marri cert. petition.

Scholarship: "A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights"

11/25/2008:  "A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights" (Brookings) by Benjamin Wittes.  The article argues that developing rules for detaining suspected enemies engaged in unconventional warfare against the United States is the core challenge facing American legal policy in the war on terror.  It goes on to offer specific elements of a long-term detention regime that President Obama should enact:  (1) An impartial decision-maker in charge of making status determinations; (2) Basic procedural protections for detainees, including the assistance of counsel, the ability to see a reasonable summary of the government's evidence, and the ability to call witnesses; (3) A written, public opinion explaining the basis for each status determination, and review of such determinations by federal civilian courts; and (4) For those deemed properly subject to detention, some form of regularized ongoing judicial review to ensure that continued detention is necessary and appropriate.

Update: Second Circuit backs warrantless searches abroad

11/25/2008:  The New York Times reports that the Court of Appeals for the Second Circuit has ruled that warrantless searches may be conducted of U.S. persons abroad by authorities saying that the Contstitutional protection does not extend overseas.  The standard of "reasonableness" does still apply - only the Warrant Clause need not be applied abroad.  The decision came as part of the rulings in the case In re Terrorist Bombings of U.S. Embassies in East Africa.  HT to Exploring International Law where the opinions in the case can be found.

Update: Opinion: Replies in the online symposium discussing detention standards

11/25/2008:  Opinio Juris hosts an online symposium of the Yale International Law Journal beginning yesterday.  Today, the staff of the Journal responds to the discussions of Hakimi's article and Professor Waxman's reply.  Kenneth Anderson too writes a response in sympathetic support of the concept of administrative detentions of terrorist suspects.

Obama administration might form counterterrorism commission

11/24/2008:  Jurist reports that aides to President-elect Obama favor the creation of a bipartisan commission on counterterrorism methods for the purpose of investigating alleged past abuses.  They have said that they favor the style of the 9/11 Commission and stress that the focus would be on uncovering details and making recommendations based on past experience as opposed to incriminating those responsible. 

Update: Significant controversy surrounds arrests of alleged Hindu terrorists

11/24/2008:  The Washington Post reports that India is experiencing a storm of controversy in light of the arrests of ten Hindus in connection with a September bombing.  While some Muslims have expressed approval and vindication, some Hindus have balked at calling the suspects Hindu terrorists instead preferring the term "retributive terrorists."  The suspects had publicly asserted that the government was soft on Muslim terror, and supporters said their attack was to be taken as a reprisal.

ICTR acknowledges improvment in Rwanda's courts but refuses case transfers

11/22/2008:  Jurist reports that prosecutors of the International Criminal Tribunal for Rwanda met with Rwanda's prosecutor general to discuss the possibility of transferring cases from the ICTR to Rwandan courts on Thursday.  The ICTR prosecutors acknowledged that there has been significant improvements in the Rwandan judicial system but declined at present to transfer any cases from the ICTR.

Lawmakers ask Pentagon to let interpreters cover faces

11/22/2008:  The Washington Post reports that thirteen Congressmen have asked the Pentagon to reverse its policy banning interpreters in Iraq from wearing ski masks to conceal their identities.  The military contends that the masks would undermine the image of professionalism while the interpreters are concerned about their safety.  More than 300 interpreters have been killed in Iraq since the start of the war.

Opinion: Recommendations on liberty and security for the next administration and Congress

11/21/2008:  The Constitution Project released its recommendations on liberty and security for the Obama administration and the incoming Congress.  The work is a collaborative one between twelve organizations and seventy-five individuals.  The recommendations cover the areas of terrorism, immigration, surveillance, intelligence activities, privacy, and executive authority. 

Opinion: Iraq's legacy to be a boost to the rule of law

11/21/2008:  Martin Kettle of the Guardian discusses Iraq's legacy as being a step forward in the progress of rule of law, regardless of whether the invasion by coalition forces was legal.  Despite that, Kettle argues that the experience will not likely be repeated lightly given the strength of international and public opinion against the war.

CIA withheld details about the downing of a plane in Peru

11/21/2008:  The New York Times and the Washington Post report that an internal investigation by the CIA's Inspector General has found that the CIA withheld details in the agency's role in the downing of a plane over Peru in 2001.  The CIA mistook the plane for a drug trafficker's, but it was a missionary plane that was shot down.  Investigators were not allowed at the time to examine all of the details of the agency's counternarcotics program which had experienced a number of mistakes.  The possibility exists that the Department of Justice could reopen its investigation.

Update: France charges Rwandan official with assassination

11/20/2008: French judicial officials charged Rose Kabuye, a former guerrilla leader who now serves as chief of protocol to the Rwandan President, over an assassination in the run-up to the 1994 genocide.  Kabuye was charged with "complicity in murder in relation to terrorism" by anti-terrorism investigating magistrate Marc Trevidic.  She was later released on condition she not leave France without permission.

NSA releases history of Cold War intelligence activities

11/20/2008:  George Washington University's National Security Archive reports that the National Security Agency has declassified large portions of a four-part "top-secret Umbra" study, American Cryptology during the Cold War. Despite major redactions, this history discloses much new information about the agency’s history and the role of signals intelligence and communications intelligence during the Cold War.  The redactions are currently under appeal, and the fourth book of the history has not yet been declassified.  The Wall Street Journal reports on the history here.

Update: Napolitano possibly to be named as Obama pick for DHS Secretary

11/20/2008:  The New York Times reports that Arizona Governor Janet Napolitano is likely to be offered the post of Secretary of Homeland Security by President-elect Obama.  She previously served as Arizona's first female attorney general.  Politico covers the appointment here.

Navy lawyers tour secret Guantanamo prison camp

11/19/2008: The Miami Herald reports that two Navy lawyers upended Guantanamo taboos and received toured a top secret Guantanamo detainee prison camp, called Camp 7, where the alleged elite of Al Qaeda are held.

DHS transition plan highlights priorities, possible reforms for incoming administration

11/19/2008: Homeland Security Watch reports that the Homeland Security Presidential Transition Initiative (HSPTI) offers insights into possible priorities and reforms the incoming Obama administration will pursue at the Department of Homeland Security.  Among the priorities emphasized in the initiative is improving coordination with national, state, local, and tribal officials.

Scholarship: "Averting a Legitimation Crisis and the Paradox of the War on Terror"

11/19/2008:  "Averting a Legitimation Crisis and the Paradox of the War on Terror" by Daniel R. Williams (Northeastern University School of Law).  This article brings together five books that, when examined collectively, create an opportunity to see the War on Terror as something beyond just a struggle against a particular form of terrorism or merely a politically controversial feature of the outgoing Bush Administration. Bobbitt's Terror and Consent anchors the discussion; the other four under consideration attempt to unveil the hidden geopolitical agenda within Bobbitt's disquisition on terrorism and the War on Terror. The ambition here is to discover the function of the War on Terror within an emerging neo-liberal world order.  Hat tip to National Security Advisors.

Update: U.S. government assigns Army colonel to replace retiring Guantanamo judge

11/18/2008: The Miami Herald reports that Army Col. Stephen R. Henley will replace retiring Judge Ralph Kohlmann as the presiding judge for the upcoming war crimes trial of alleged September 11th mastermind Khalid Sheik Mohammed. The quick replacement signals the Defense Department's intent to move forward with military commissions trials of alleged September 11th co-conspirators.

Update: Bosnian officials arrest two more suspected war criminals

11/18/2008: BalkanInsight.com reports that Bosnia's State Protection and Investigation Agency, SIPA, acting on a warrant issued by the State Prosecution, arrested Radoje Lalovic and Soniboj Skiljevic, on suspicion that they committed crimes against humanity in the Sarajevo region. Lalovic and Skiljevic are former managers of the Kula correctional facility in Sarajevo.

Government database of terrorist suspects' DNA raises legal concerns

11/18/2008: The Financial Times reports that the U.S. government is concerned it might lose valuable intelligence from the backlogs of terrorist suspect DNA samples collected in Afghanistan, Iraq, and elsewhere that are still waiting to be processed and added to a government-controlled DNA database. The database, which first "surfaced" in February 2001, is part of a classified collaboration between U.S. military, intelligence, and law enforcement agencies, though government officials have not discussed it publicly. HT to Federation of American Scientists.

Update: DOJ to hand over some OLC memos to Senate Judiciary Committee

11/18/08:  TPR reports that the DOJ has agreed to hand over certain OLC memos about the use of force in Iraq, torture, and other highly controversial legal memos drafted after 9/11.  The Senate Judiciary Committee subpoenaed the documents last month after Attorney General Michael Mukasey rebuffed several previous requests to voluntarily turn them over to the Committee. 

Update: Released Rehnquist papers reveal anguish over early surveillance decision

Scholarship: "J.S. Mill and the American Law of Quarantine"

11/18/2008: "J.S. Mill and the American Law of Quarantine" by Wendy E. Parmet, (Northeastern University School of Law) in Public Health Ethics, 2008.  This paper looks at the American law of quarantine in light of the work of John Stuart Mill, whose harm principle has often been used to justify the practice of isolating and/or quarantining individuals to prevent the spread of an infectious disease. Despite important parallels between quarantine law and both the authorizing and prohibitive aspects of Mill's harm principle, the contemporary law of quarantine does not reflect either Mill's concern for the potential abuse of executive authority nor his recognition that quarantine is only ethically justified when the broader public health policy environment in which quarantine is applied is itself ethically sound. Hat tip to National Security Advisors.

Update: Iranian immigrants violated embargo by knowing goods sold would end up in Iran

11/18/2008: The Associated Press reports that two Iranian immigrants are accused of conspiracy to violate the International Emergency Economic Powers Act, on the theory that they knew fuel cells, centrifuges, computer equipment, and other materials they sold from the U.S. to the United Arab Emirates were ultimately destined for Iran.

U.S. District Court orders halt of spyware sale

11/18/2008: The Washington Examiner reports that at the request of the Federal Trade Commission, a U.S. District Court has issued a temporary restraining order that halts the sale of keylogger spyware. The FTC seeks to bar sellers from using the software to monitor consumer preferences without consumers' knowledge. HT to Kevin's Security Scrapbook.

Former top British judge condemns pre-Iraq war advice given to former PM Blair

11/18/2008: Agence France Presse reports that yesterday in a speech before the British Institute of International and Comparative Law in London, law lord Thomas Bingham said the advice then-top UK government lawyer Peter Goldsmith gave Prime Minister Tony Blair on the eve of the 2003 Iraq War was flawed in two respects - it failed to account for the lack of hard evidence to support claims of an Iraqi WMD program, and it failed to note that only the UN Security Council could authorize further action against Saddam Hussein.

Update: France's former domestic spy chief's notes reveal extent of French domestic espionage

11/18/2008: The Economist reports that the recently released notes of former French domestic intelligence chief Yves Bertrand, recorded during his 12-year tenure in his domestic intelligence leadership post, reveal the depths of France's intelligence culture.  The timing of the notes' release, which document rumors about French political leaders, coincides with French President Nicolas Sarkozy's controversial plans to computerize all intelligence files into a super-database called EDVIGE.

Japan grapples with history of WW2 atrocities

11/17/2008:  The Economist discusses Japan's effort to come to grips with its history of atrocities during the Second World War.  The head of Japan's Air Force was recently fired for writing a revisionist essay on the Second World War that applauds Japan's militarism during the period, and Prime Minister Aso has echoed many of his right-wing views. He has, for instance, praised Japan’s occupation of Korea, even though his family fortune derives from a mining company that used Korean slave labor during WW2.

Report: Bipartisan panel of foreign policy experts issues report

12/4/2008: The Washington Post reports that the Project on National Security reform released a report by a bipartisan panel of foreign policy experts has recommended changes in the White House national security apparatus. Notably, the report recommends merging the National Security and Homeland Security councils and creating a director for national security who would manage implementation of the president's policies.

US confirms it held 12 juveniles at Guantanamo Bay prison camps

11/17/2008: The Miami Herald reports that a Department of Defense spokesman confirmed Sunday that the Department has revised upward from 8 to 12 its estimate of total juveniles ever held in the Guantanamo Bay prison camps.  The Department has provided a corrected report containing the revised estimate to the UN committee on child rights. The previous report the Department submitted to the Committee in May estimated that 8 juveniles had been held. The number remains difficult to determine with certainty, according to Pentagon spokesmen, because many Guantanamo detainees do not know the precise date or year of their birth. Jurist comments on the story here.