Georgetown Security Law Brief

Homeland Security secretary Napolitano seeks to streamline criminal alien deportation procedures

01/31/2009: Homeland Security Blog Watch reports that Homeland Security Secretary Janet Napolitano seeks to improve connectivity between computer databases at jails nationwide and immigration databases to ensure that government officials can deport convicted criminal aliens immediately after they serve their sentences.

Supreme Court chips away at exclusionary rule

01/31/2009: The New York Times reports that in the Supreme Court's 5-4 decision in Herring v. United States, the Court's decision that evidence cannot be suppressed where unlawful police conduct that produced it was merely a product of isolated carelessness takes the Court one step closer to overruling the Warren Court's ruling in 1961 in Mapp v. Ohio, which applied the exclusionary rule to the states.

Opinion: Obama must fulfill his intention to restore rule-based order to international arms control

01/31/2009: The editorial board of the International Herald Tribune argues that the Obama administration should fulfill its promises to restore international arms control treaties the Bush administration abandoned and go two steps further by developing new agreements and revising old ones to accommodate the emergent realities of 21st century weapons proliferation.

Opinion: US-UN Ambassador Rice and Obama should persuade the UN to address cyberwarfare

01/31/2009: Scott Weber, lawyer and former advisor to Homeland Security Secretary Michael Chertoff, argues in Security Debrief that the Obama administration should convince the United Nations to address directly issues of cyber warfare, which is not explicitly mentioned in the UN Charter or the relevant Geneva Conventions.

Cyprus stops Iranian arms shipment bound for Syria

01/31/2009: Haaretz and Reuters report that the Cyprus-flagged "Monchegorsk" en route from Iran carrying arms to Syria, which likely was the same ship the US navy detained and released on Tuesday, was halted by Cypriot authorities after Israeli and US officials requested that the Cypriot government halt the ship, according to a confidential European Union diplomatic source.  Cypriot authorities had demanded that the ship dock in Limassol for inspection, and once docked, from the ship were unloaded artillery rounds and rockets, among other weapons.

Obama will appoint cybercrimes expert to be DHS general counsel

01/31/2009: The Washington Post and the Middle East Times report that President Obama will appoint former Department of Justice deputy associate attorney general and cybercrimes expert Ivan K. Fong to be the next general counsel at the Department of Homeland Security. While at DoJ, Fong contributed to what Homeland Security Department officials say was a "groundbreaking" report on cybercrime policy published in 2000 and titled "The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet."

Obama breaks with Bush, intends to propose legal regime for security in space

01/31/2009: The Weekly Standard reports that unlike his predecessor, President Obama will propose an international treaty banning the use of weapons in space, or at least a "rules of the road" for the use of space.

Scholarship: "Emergency Preparedness for a Pandemic Under International Law"

"Emergency Preparedness for a Pandemic Under International Law" by Renee Dopplick.  If a virulent disease broke out in a state unable or unwilling to respond with effective disease containment strategies, the lack of an effective response could turn a localized outbreak into a worldwide pandemic. This paper explores the legal authority of the international community to respond to a severe infectious outbreak at the source of an outbreak within an uncooperative state. The discussion explores the powers of the UN Security Council acting under the Chapter VII powers, the emergent humanitarian doctrine, and the enforcement mechanisms of the International Health Regulations under the World Health Organization. HT to National Security Advisors.

Scholarship: "Biotechnological Research on the Most Dangerous Pathogens: Challenges for Risk Governance and Safety Management"

"Biotechnological Research on the Most Dangerous Pathogens: Challenges for Risk Governance and Safety Management" (Science Direct) by Michael Baram (Boston University School of Law). Biotechnological research on the deadliest pathogens has grown into a vast enterprise in the United States, with over $50 billion from federal agencies. This paper describes this enterprise, defines several risk scenarios unrelated to terrorism which threaten lab workers and the public with lethal and contagious pathogenic disease, and evaluates the official policy framework for decision-making with regard to preventing and responding to the risk scenarios. It finds that the framework fails to sufficiently address prevention of lab mishaps, accidental releases, and other incidents during the routine conduct of research which would expose workers and the public to the lethal pathogens.  HT to National Security Advisors.

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Opinion: Restoring order at the Justice Department is critically important

01/30/2009: Donald K. Stern argues in the Boston Globe that restoring order at the Justice Department is important not just because of the security issues that have arisen since September 11th, but for other reasons too, which he lists in his op-ed as issues the Obama administration should address.

Opinion: Kagan's opposition to on campus recruitment and the Solomon amendment disqualify her from serving as Solicitor General

01/30/2009: Army veteran Flagg K. Youngblood argues in the Washington Times that Elena Kagan, former Harvard Law School Dean and Obama administration nominee for solicitor general, should not be confirmed because of her past opposition to on campus military recruiting and statutes which support the practice, such as the Solomon amendment. The amendment is a federal law passed in 1996 which permits the Secretary of Defense to deny federal grants to universities that prevent ROTC or military recruitment on campus.

Opinion: Obama should also close US military's survival, evasion, resistance, escape school

01/29/2009: In Slate, former Marine Corps Officer and survival, evasion, resistance, and escape (SERE) school graduate David J. Morris argues that the Obama administration should close the SERE school to ensure that future US presidential administrations do not engage in torture.

Army judge will not delay proceedings for certain Guantanamo detainees

01/30/2009: War on Terrorism reports that Pentagon press secretary Geoff Morrell said military commissions judges at Guantanamo must comply with President Barack Obama's directive to suspend all legal proceedings there.

01/29/2009: The Miami Herald reports that chief judge of the Guantanamo war court Army Col. James Pohl denied the prosecution's request to delay the arraignment of Guantanamo detainee Abd el Rahim al Nashiri for charges that he helped orchestrate the bombing that killed 17 US sailors off the coast of Yemen in 2002.  In his three-page ruling which denied the prosecution's request, Judge Pohl wrote that "On its face, the request to delay the arraignment is not reasonable." The Washington Post also reports on the judge's decision not to follow the Obama administration's executive order to suspend all military commission proceedings.

Scholarship: The future of war and the human element

01/29/2009: In the Defense Industry Daily, Brookings Institution senior fellow Peter W. Singer examines the human implications of warfare where robots increasingly occupy once-human roles on the battlefield, issues he covers in greater depth in his book Wired for War: The Robotics Revolution and Conflict in the 21st Century.

Djibouti President announces intention to pursue "all the legal solutions" to resolve Eritrea border dispute

01/29/2009: Reuters reports that Djibouti President Omar Ismail Guelleh, 61, said Wednesday in an interview that his country will pursue "all the legal solutions" available to resolve its border dispute with Eritrea, including the coastal areas of Ras Doumeira and Doumeira island. The United Nations Security Council passed a resolution on January 14th giving Eritrea five weeks to remove its troops from the disputed areas, a deadline which the Eritrean government has rejected.

US to begin transferring US-held Iraqi prisoners to Iraqi authorities

01/29/2009: The Christian Science Monitor reports that, on February 1st, in keeping with their duties under the Status of Forces Agreement with Iraq enacted January 1st, US authorities in Iraq will begin transferring to their Iraqi counterparts the 15,100 US-held Iraqi detainees. Of the 15,100 to be transferred in the next 12 months, it is expected that Iraqi authorities will release at least 9,000, and initiate hearings for the rest.

Italy recalls its ambassador from Brazil over refusal to extradite terrorist

01/29/2009:  Le Figaro (French language) reports that Italy has recalled its ambassador to Brazil over that country's refusal to extradite Italian terrorist Cesare Battisti.  An Italian court sentenced Battisti in 1993 to life imprisonment for four murders committed in the 1970s, but he continues to maintain his innocence.

DeRosa tapped for Deputy Counsel to the President for National Security Affars

01/29/2009:  The Blog of Legal Times reports that Mary DeRosa was named deputy counsel to the president for national security affairs and legal adviser to the National Security Council. She was most recently chief counsel for national security to the Senate Judiciary Committee. DeRosa is a veteran of the Clinton Administration, having served on the National Security Council during the Clinton years as special assistant to the president and legal adviser and deputy legal adviser.

DoJ asks for more time on detainee question

01/29/2009: Politico reports that President Obama’s Justice Department asked DC District Judge Kessler for two more weeks to answer the thorny question of who is and who isn’t an “enemy combatant," citing last week's inauguration and the President's recently signed executive order to review the cases of the 245 estimated detainees at Guantanamo. The request, unopposed by the detainees, was granted. The two cases are Saeed bin Mohammed and All Ali bin Ali Ahmed.

French court postpones ruling on former Guantanamo detainees

01/29/2009: Jurist reports that a French court on Tuesday postponed a ruling on whether to overturn the sentences of five French citizens who were released from US custody at Guantanamo Bay in July 2004 and March 2005. The five were convicted in March 2007 of "criminal association with a terrorist enterprise," and each was sentenced to one year in prison. The five served provisional sentences in France and were released before the conclusion of the 2007 trial.

Puerto Rico refuses to host Guantanamo detainees

01/29/2009: The Miami Herald reports that Puerto Rico has joined a growing list of countries that have decided not to host Guantanamo detainees, should the Obama administration ask them to do so.  Michelle Cuevas, spokeswoman for Puerto Rican Gov. Luis Fortuno, said Tuesday that the governor would oppose any effort to hold the detainees in the U.S. island territory.

Opinion: Obama administration should release missing memos

01/28/2009: Jack Balkin reiterates on Balkinization his argument that the Obama administration should release all secret memos from the Office of Legal Counsel that relate to the Bush administration's war on terror.  Pro Publica has published a collection of the memos.

Canadian government considering closing high-security facility for foreign terror suspects

01/28/2009: The Montreal Gazette reports that the Canadian government is considering whether to keep open a high-security facility for foreign terror suspects — dubbed Guantanamo North by its critics — now that the centre is about to release its last detainee. HT to The Lift.

Russian president orders reworking of treason law

01/28/2009: The Wall Street Journal reports that Russian President Dmitry Medvedev has ordered his administration to rework a controversial treason bill submitted by Prime Minister Vladimir Putin's cabinet, a top Kremlin official was quoted by Russian news agencies as saying on Tuesday. Human rights authorities had expressed concern that the law, which expanded the definition of treason and added nongovernmental organizations to the list of groups who could not receive state secrets, would have allowed authorities to brand any government critic a traitor.  HT to The Lift.

Recently published books relating to national security law

• From Mercenaries to Market: The Rise and Regulation of Private Military Companies by Simon Chesterman and Chia Lehnardt
• Legal Control of the Private Military Corporation: Belling the Cheshire Cat by Jackson Maogoto and Benedict Sheehy
• The Detention of Unlawful Enemy Combatants During the War on Terror (Law and Society) by Colleen E. Hardy
• Eight O'Clock Ferry to the Windward Side: Seeking Justice In Guantanamo Bay by Clive Stafford Smith
• Veterans Rights and Benefits (Oceana's Legal Almanac Series Law for the Layperson) by Margaret C Jasper
• Claim Denied!: How to Appeal a VA Denial of Benefits by John D. Roche
• Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments by Robert Cryer and Neil Boister
• Kesselring's Last Battle: War Crimes Trials and Cold War Politics, 1945-1960 by Kerstin Von Lingen and Alexandra Klemm
• International Criminal Law Practitioner Library: Volume 2, Elements of Crimes under International Law by Gideon Boas, James L. Bischoff, and Natalie L. Reid
• On the Law of Peace: Peace Agreements and the Lex Pacificatoria by Christine Bell
• Peace Treaties and International Law in European History: From the Late Middle Ages to World War One by Randall Lesaffer
• US Military Intelligence Interrogation Techniques Handbook

Scholarship: "Police and National Security: American Local Law Enforcement and Counter-Terrorism after 9/11"

"Police and National Security:American Local Law Enforcement and Counter-Terrorism after 9/11" by Matthew C. Waxman (Columbia Law) in Police, Community and the Rule of Law, Ben Bowling and Jeffrey Fagan, eds.  The decentralized and localized nature of most law enforcement in the United States give rise to three challenges for policing and national security. First, it creates enormous organizational problems in coordinating national security activities, and combating terrorism in particular. Second, the national counter-terrorism agenda may disrupt political accountability of local police. Third, it creates difficulties in carrying out more traditional policing functions. How these challenges are resolved depend not only on political responses but on the national security threats that spawn them.

DNI backs retroactive immunity for companies sued for alleged involvement in Bush administration's warrantless surveillance program

01/28/2009: CQ Politics reports that President Obama's appointment for Director of National Intelligence (DNI), Admiral Dennis Blair, says he supports continuing Bush administration efforts to provide retroactive legal immunity to companies being sued for their alleged role in the National Security Agency’s warrantless surveillance program.

Afghanistan government sets deadline for NATO to end civilian killings

01/28/2009: Monsters and Critics reports that the Afghan government said Wednesday it would seek a 'national decision' on what to be done with international military operations in the country if the NATO-led alliance does not respond to a draft agreement that calls for an end to civilian casualties within the period of one month. The government sent an eleven-article draft to NATO headquarters January 10, asking the alliance to avoid civilian casualties during their war against Taliban and al-Qaeda targets by coordinating their operations closely with Afghan authorities.

Federal judge declares draft-related employment law unconstitutional

01/28/2009: The Boston Globe reports that in the US District Court for the District of Massachusetts, Judge Douglas P. Woodlock sided with four men fired by the federal government for failing to register for the draft years earlier and ruled that the law under which the government fired the four men violates a constitutional provision that bars the legislative branch from punishing people without a trial.

EU ministers split on whether to accept Guantanamo detainees

01/27/2009: Der Spiegel reports that EU ministers meeting in Brussels remain divided on whether to accept Guantanamo detainees in their countries. While France and Germany have expressed support for the initiative, others have disagreed.  To explore the issue further, EU ministers are planning to send a diplomatic mission to visit Guantanamo.

Sri Lankans plead guilty to charges of conspiring to illegally purchase and re-sell firearms

01/27/2009: The Miami Herald reports that two Sri Lankan men pled guilty today on the eve of their trial on charges they tried to supply missiles and assault weapons to militants involved in the civil war in Sri Lanka.

Scholarship: "Former Presidents and Executive Privilege"

"Former Presidents and Executive Privilege" by Laurent Sacharoff (Temple University Beasley School of Law). This article argues that a new President may review a previous administration's assertions of executive privilege and should disclose the previously withheld information if doing so would be in the public interest.  Executive privilege arises from a President's Article II powers; when a new President arrives, she enjoys plenary Article II powers, including the right to assert or waive executive privilege.  The Privilege is not personal to any individual President but rather may only be asserted in the public interest, and a new President should review previous assertions of executive privilege vigorously, since Congress cannot determine whether a particular President has abused the privilege to hide evidence of wrongdoing in his administration. HT to National Security Advisors.

Scholarship: "The Story of United States v. United States District Court (Keith): The Surveillance Power"

"The Story of United States v. United States District Court (Keith): The Surveillance Power" Chapter in Presidential Power Stories, Christopher H. Schroeder & Curtis A. Bradley, eds., Foundation Press, 2008, by Trevor W. Morrison (Columbia Law School). This chapter tells the story of the Keith case, the Supreme Court's first and still most important statement on the extent to which the President may authorize the electronic surveillance of persons within the United States.  The federal government used warrantless wiretaps to investigate the radical White Panther Party for the bombing of a CIA office. The Court concluded that Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch; a judicial warrant must issue before the government may engage in electronic surveillance of domestic threats to national security. HT to National Security Advisors.

Janitor agrees to six-year sentence in nuclear peddling case

01/27/2009: The New York Times reports that a janitor, Roy Lynn Oakley, 67, admitted in Federal District Court in Knoxville to one count of disclosing restricted data in violation of the Atomic Energy Act. Mr. Oakley acted alone in trying to sell a handful of uranium enrichment parts first to the French government and then to an undercover F.B.I. agent for $200,000 in cash. His plea deal carries a six-year sentence.

Man pleads guilty in Iranian military parts case

01/26/2009: The Guardian reports that Hassan Keshari, an Iranian-born man, faces up to five years in prison for conspiring to violate a U.S. embargo by providing Iran with military aircraft parts. Keshari pled guilty Monday to one count in U.S. District Court for the Southern District of Florida.

European ministers fail to agree to common Guantanamo detainee repatriation policy

01/26/2009: The Financial Times reports that European Union ministers meeting in Brussels failed to overcome internal divisions on accepting repatriated Guantanamo detainees. The ministers were split into two camps - one that was reluctant to accept the detainees, and another that argued in favor of accepting detainees as a way to send a strong signal of support to president Obama. The Washington Post reported that the EU ministers expressed willingness to help the US empty the Guantanamo detainee prison, but that they stopped short of making any commitments to house detainees in their countries.

Proposed options for Guantanamo detainee resettlement include military base, correctional facilities

01/26/2009: Time magazine discusses the several options for Guantanamo detainee resettlement proffered in reports produced by the Center for American Progress, Human Rights Watch, and the Pentagon. HT to Security Debrief.

Pentagon official disputes charge that Guantanamo case files are in disarray

01/26/2009: SpyTalk reports that, when asked about a Washington Post story published Sunday that stated Guantanamo case files were in disarray, former Deputy Assistant Secretary of Defense for Detainee Affairs, Charles B. "Cully" Stimson, disputed the Post's assertion.  Stimson confirmed that the case files were spread throughout the government, but that they were in "very good order."

Scholarship: "Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaida, and the Limits of the Associated Militia Concept"

01/26/2009:  "Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, Al Qaida, and the Limits of the Associated Militia Concept" (Naval War College International Law) by Geoffrey S. Corn (South Texas College of Law).  The U.S. has acknowledged that the conflict with Taliban forces in Afghanistan is an international armed conflict but asserts that the conflict with al Qaeda may not be.  This article considers the viability of this bifurcated armed conflict approach to operations in Afghanistan, and challenges the assumption that the geographic continuity of military operations against the Taliban and al Qaeda in Afghanistan mandate that these armed conflicts be treated as unitary.  HT to National Security Advisors.

Opinion: When Guantanamo was (relatively) good

1/25/2009:  The Washington Post features an opinion piece in which author Karen J. Greenberg, "tells the startling tale of a period shortly after Sept. 11, 2001, when military officers on the ground tried to do the right thing with the recently captured detainees but were ultimately defeated by civilian officials back in Washington. Those early days -- back before Gitmo became Gitmo -- strongly suggest that the damage the prison inflicted on America's honor and security could have been avoided if policymakers had been willing to follow the uniformed military's basic instincts."

Former KGB officer to buy London newspaper

1/25/2009:  The New York Times reports that an ex-K.G.B. officer who runs with a very different crowd than the usual ex-K.G.B. has Britons unsure what to make of his deal last week to buy London’s most enduring afternoon newspaper, The Evening Standard.  No known former Soviet spy has bought a prominent British newspaper before, let alone a publication read by the political elite and hitherto part of the conservative newspaper empire of Lord Rothermere’s Daily Mail and General Trust.

Contractor said to plead guilty in military fraud case

1/25/2009:  The New York Times reports that a military contractor from Maine has agreed to plead guilty to federal charges arising from a bribery scheme that bilked the Army out of at least $2.5 million, a newspaper reported Saturday.  The contractor, Maurice Subilia, 64, of Kennebunk, is scheduled to appear at a Feb. 2 hearing in Federal District Court.  Prosecutors say Mr. Subilia and the officials, Michael Cantrell and Douglas Ennis, agreed to split and personally use money earmarked for missile defense contracts. Mr. Cantrell and Mr. Ennis have pleaded guilty and are awaiting sentencing in Alabama.

Two ex-detainees in al Qaeda video

1/25/2009:  The New York Times reports that two former Guantanamo Bay detainees now appear to have joined Al Qaeda's Yemeni branch, which released a video on Friday showing them both and identifying them by their names and Guantanamo detainee numbers.  Both men passed through a Saudi rehabilitation program for jihadists after their release from Guantanamo.

Terrorist about to be freed after serving sentence

1/24/2009:  The Miami Herald reports that in 1973, a young terrorist named Khalid Duhham Al-Jawary entered the United States and quickly began plotting an audacious attack in New York City.  He built three powerful bombs - bombs powerful enough to kill, maim and destroy - and put them in rental cars scattered around town, near Israeli targets.  The plot failed. The explosive devices did not detonate, and Al-Jawary fled the country, escaping prosecution for nearly two decades - until he was convicted of terrorism charges in Brooklyn and sentenced to 30 years in federal penitentiary.  In less than a month, the 63-year-old Al-Jawary is expected to be released. He will likely be deported; where to is anybody's guess.

Malaysia seeks return of 2 citizens in Guantanamo

1/24/2009:  The Miami Herald reports that Malaysia offered Saturday to take back two citizens who are prominent terrorism suspects at the Guantanamo Bay prison after President Barack Obama ordered the closure of the facility.  Prime Minister Ahmad Ahmad Badawi said the Malaysian government is seeking permission for its police officers to meet the two men for the first time since their transfer in September 2006 from secret CIA prisons to the U.S. Navy base at Guantanamo Bay for trials.

Opinion: CIA interrogations not in "any armed conflict"

1/24/2009:  Opinio Juris features an opinion piece by Kenneth Anderson in which he writes that, "I am unclear as to one thing in the Executive Order issued by President Obama regarding interrogation practices... I am unclear why the language “any armed conflict” is included.  Why would the Executive Order not direct the CIA to conform to such techniques limited to the Army manual under all circumstances?  The CIA does not act solely in the context of armed conflict; on the contrary, although it sometimes acts in armed conflicts, of course, its domestic law authorization extends to non-armed conflict situations as well, provided various domestic legal provisions are met."    

UN report says that Sudan fired on civilians unlawfully

1/24/2009:  The Washington Post reports that Sudanese intelligence and security forces unlawfully fired into a crowd of thousands of displaced Darfurians in August, killing 33 civilians and injuring 108 others, according to a U.N. inquiry released yesterday by the Geneva-based High Commissioner for Human Rights.

Kosovo to launch new security force in June

01/24/09:  BalkanInsight reports that Kosovo’s new armed force, the Kosovo Security Force, set off on a rough start one day into its mandate with protests by former soldiers who did not make it past the entrance selection.  The NATO-sponsored KSF is an army in all but name, and marks another firm step to full statehood for Kosovo after its secession from Serbia last year.

Event: Panel Discussion: Does WMD change the rules?

1/23/2009:  A Panel Discussion titled: Preventive War: Do Weapons of Mass Destruction Change the Rules? featuring: Anthony Arend, Ph. , the Hon. James Baker, Col. Guy Roberts, USMC (Ret.). Sean Murphy, S.J.D. and Catherine Lotrionte, Ph.D., J.D. will be held on Tuesday, January 27, 2009 10:15 A.M. to 12:15 P.M. in Copley Formal Lounge, Georgetown University Main Campus.  Please see our calendar for more details,