Georgetown Security Law Brief

DHS to seek increased funding for domestic surveillance

02/28/09: BeSpacific reports that Homeland Security Secretary Janet Napolitano testified before the House Homeland Security Committee that she will seek increased funding for various domestic surveillance programs.

Two days of productive exchanges suggest regular China-U.S. military talks will be resumed soon

02/28/09: The New York Times reports that following a productive two-day session between U.S. and Chinese military officials, U.S. military officials are optimistic that regular high-level talks with China, suspended at the end of the Bush administration, will resume in the near future.

Afghan president moves up election date

02/28/09: The New York Times reports that Afghan President Hamid Karzai has moved up the date of elections from August to April or May in what appears to be an effort to curb challenges to his legitimacy.

Department of Justice officials grapple with conflicts of interest on Guantanamo litigation

02/28/09: Law.com reports that a significant number of high-ranking Department of Justice officials face conflicts of interest on Guantanamo detainee cases stemming from their representation of detainees prior to starting work at the Department. Principal Deputy Solicitor General Neal Katyal, who successfully argued on behalf of Guantanamo detainee Salim Ahmed Hamdan in Hamdan v. Rumsfeld, will still be able to work on detainee matters. Before re-joining the Department, Katyal was a professor at Georgetown University Law Center and the Director of the Georgetown Center on National Security and the Law.

Canadian jets chased Russian bomber out of Canadian air space one day before Obama's visit

02/28/09: The New York Times reports that two Canadian fighter jets forced a Russian long-range bomber out of Canadian air space hours before President Obama's inaugural visit to Canada last week, according to Canadian Defense Minister Peter MacKay. The Russian Defense Ministry claims the Canadian government was informed of the flight and that its aircraft had complied with international regulations. The bomber came within 125 miles of Canada, over the Beaufort Sea in the Atlantic. The Times did not report whether or not the Russian bomber was armed.

Government national security prosecutions reach lowest two-month totals since September 2001

02/28/09: BeSpacific reports that, according to the Department of Justice, the number of national security-related prosecutions in November 2008 was 16, up from 13 the previous month. The 29 total cases for October-November 2008 is the lowest two-month sum of new national security prosecutions since September 2001.

Opinion: No obvious legislative fix to the War Powers Resolution

02/27/09: Peter Spiro argues on Opinio Juris that there is no easy or obvious legislative fix for the War Powers Resolution.

Clients have first amendment right to provide their attorneys with classified information to protect interests, judge rules

02/27/09: Secrecy News reports that Judge Gladys Kessler of the DC District Court ruled this week that litigants have a First Amendment right to provide classified information to their attorneys when doing so is necessary to protect the client's interests. Judge Kessler's ruling came in a lawsuit brought by former Defense Intelligence Agency employee Glen Shaffer against his former employer in connection with the controversial intelligence program known as Able Danger. The Agency had prevented Shaffer from providing classified about Able Danger to his attorney, Mark Zaid. Judge Kessler's ruling conflicts with a government practice of denying such information to lawyers in Freedom of Information Act and similarly situated cases.

Key deputy assistant secretary appointments at Department of Homeland Security might be political

02/27/09: James Carafano reports on Security Debrief that the Principal Deputy Assistant Secretary for International Affairs and the Deputy Assistant Secretary for Policy Development, both under the Assistant Secretary for Policy at the Department of Homeland Security, will likely be political appointees, which would be a change from the civil servants who held the positions under the Bush administration.

Scholarship: "Cyber-Deterrence"

"Cyber-Deterrence" by K. A. Taipale (Center for Advanced Studies in Science and Technology Policy). Traditional strategies of deterrence as generally applied in national security and law enforcement have focused primarily on raising the cost of undesirable behavior in order to discourage that conduct. But this deterrence may not be sufficient in cyberspace because of its particular characteristics - in particular because of its dual use nature, the difficulty in differentiating a probe from an attack, the scale-free and unbounded nature of potential consequences, and the limited capabilities for definitive attribution. This chapter examines a new model of deterrence that takes these characteristics into account. HT to National Security Advisors.

Russian President Medvedev supports extra-territorial jurisdiction for alleged terrorists

02/26/09: Interfax News Agency reports that Russian President Dmitry Medvedev has supported Investigative Committee chief Alexander Bastrykin's idea of trying suspected terrorists and extremists outside the territory where the crime was committed. HT to The Lift.

Unexpectedly, Romanian government suspends data retention law until December 31st, 2009

02/26/09: Digital Civil Rights in Europe reports that in a surprise move, the Romanian government suspended its data retention law until December 31, 2009 on the theory that it complicated penal cases, among other reasons. HT to The Lift.

Uzbekistan, Turkmenistan sign security agreements

02/26/09: The Turkish Weekly Journal reports that Uzbekistan and Turkmenistan have signed bilateral security agreements on extradition and combating crime, among other topics. HT to The Lift.

Pentagon to permit photography of soldiers' coffins

02/26/09: The Washington Post, the New York Times, and CNN report that the Obama administration will permit coffins carrying deceased soldiers home from overseas battlefields to be photographed, marking a reversal of the Bush administration policy that forbade such photography, and overturning a policy that had limited media coverage of the same since 1991. Under the new policy, deceased soldiers' families will decide whether to permit coverage.

Law enforcement tools for combating terrorism

02/26/09: The Police Chief carries an article by LAPD Deputy Chief and Commanding Officer Michael P. Downing which documents the tools available to US law enforcement to deter, combat, and respond to terrorist activity. HT to In Homeland Security.

Event: 2009 Sam Dash conference on Human Rights

02/26/09: On March 19, 2009, the Georgetown Law Human Rights Center will co-sponsor the 2009 Sam Dash conference on Human Rights at Georgetown University Law Center. The all-day conference will focus on the rule of law in the context of military interventions.

UK government rejects Ulster payment plan

02/26/09: The New York Times reports that Prime Minister Gordon Brown has rejected a recommended plan that would have furnished all Northern Ireland families bereaved during 30 years of violence in the province with a "recognition payment" of approximately $17,000. The group which submitted the recommendation had been government-appointed to deal with the legacy of the province's past. Among other things, the proposed plan would have distributed a similar payment to families of those who died because of blasts from bombs they had set.

Unsealed documents add color to story of convicted ex-spy's rise through the ranks

02/26/09:  The Washington Post reports that the Justice Department documents unsealed yesterday in preparation for the sentencing of former CIA spy Kyle "Dusty" Foggo reveal Foggo's loose regard for the rules and procedures of the Agency where he spent most of his professional life.

Event: Bringing Detainees to Justice and Justice to Detainees: Remaining Questions about Detention and Trials after Obama's Executive Orders

02/26/09: The Center on National Security and the Law, the Constitution Project, and Human Rights first are hosting a panel discussion entitled "Bringing Detainees to Justice and Justice to Detainees: Remaining Questions about Detention and Trials after Obama's Executive Orders." The panelists will be David Laufman, Deborah Pearlstein, Gabor Rona, and Matt Waxman; Stephen Vladeck will moderate. The event will be held at Georgetown Law on Friday, March 20, 2009 from 12:00 pm to 1:30 pm, followed by a light lunch. RSVPs required. See our calendar for details.

ICTY acquits Serbian ex-President Milutinovic, convicts 5 others

02/26/09: The New York Times reports that the International Criminal Tribunal for the Former Yugoslavia acquitted former Serbian President Milan Milutinovic of ordering a deadly campaign of terror against Kosovo Albanians.  The court ruled that as Serbian president Milutinovic had no role in what they ruled was a criminal plot led by Milosevic to drive ethnic Albanians out of Kosovo as a way of retaining Serb control of the province.  However, the tribunal convicted five other senior Serbs and gave them prison sentences of between 15 and 22 years. It was the court's first judgment for Serb crimes in Kosovo. Prosecutors said they have not yet decided whether to appeal.

Employment: Two job postings at DHS

The Department of Homeland Security has two new job postings:

• Strategic Studies and Analysis Division has posted an opening for a Program Analyst at the GS-13/14 level to serve in the Office of Strategic Plans.
• The Office of Foreign Investment and Trade, which deals with CFIUS, Telecom, and Trade matters for DHS Policy, has posted an opening for a Senior Policy Analyst at the GS-14 level.  Candidates should apply by March 6, 2009.

Supreme Court justices express skepticism about identity theft law used in immigration cases

02/26/09: The New York Times reports that, hearing a challenge to an identity theft law often used by government attorneys in immigration cases to pursue two year sentence extensions in immigration cases where the defendant used another person's social security number, Supreme Court justices expressed their skepticism of the law, which punishes illegal immigrants who often choose false social security numbers without intending to appropriate them from others. The case is Flores-Figueroa v. United States.

Holder impressed by Guantanamo staff, but will close its detention center

02/26/09: CNN reports that Attorney General Eric Holder has returned from his recent visit to the detention center at Guantanamo Bay, and said he was impressed with the facilities and their staff, but that he intended to move forward with the President's order to close the facility in less than one year.

Presidential study directive orders re-think of homeland security and counterterrorism policies and policymaking processes

02/25/09: Secrecy News reports that a Presidential Study Directive, issued by President Obama February 23rd, 2009, tasks his advisor for Homeland Security and Counterterrorism to chair a 60-day interagency review of how best to coordinate international and homeland security policies and processes at tribal, local, state, and federal levels. HT to The Lift.

Bangladeshi caretaker government to pass ordinances to curb money laundering, punish terrorist activity

02/25/09: bdnews24.com reports that the Awami League-led Bangladeshi caretaker government will seek to pass 54 of 122 proposed ordinances this parliamentary session, including some that curb money laundering and punish terrorist activity, according to Justice Minister Shafiq Ahmed. HT to The Lift.

Estonian court convicts former high-ranking security official of treason

02/25/09: The New York Times reports that an Estonian court convicted a former high-ranking security official of treason for passing on sensitive intelligence from Estonia and NATO to Russia, raising the concern of further security threats to Eastern European states from resilient Russian intelligence networks.  The Economist also reports about the circumstances surrounding the conviction.

Former Guantanamo detainees seek habeas even after release

02/25/09: Law.com reports that a group of defense lawyers representing former Guantanamo detainees are arguing that their clients should still be able to challenge their designation as enemy combatants in U.S. court, even though they have already been released from American custody. The detainees contend that they have continued to suffer severe personal hardship since their release because the United States has not cleared their legal status; some argue that they are being held in "proxy detention" in foreign countries, with the US's encouragement.

Beijing's top internet spy arrested

02/25/09: Wired reports that Yu Bing, the head of the internet monitoring department of Beijing's Municipal Public Security Bureau, was arrested on suspicion of taking more than RMB 40 million ($5.8 million) in bribes to help an anti-virus company defeat its competitor.

Former Guantanamo detainee detained in Britain

02/25/09: The Miami Herald reports that former Guantanamo detainee Jaralla Saleh Mohammed Kahla al-Marri says he has been held since Monday at Colnbrook Immigration Removal Center. Al-Marri says that British officials told him he was being held because he did not include his detention in Guantánamo on his visa application. (N.B. Jaralla al-Marri is the younger brother of Ali al-Marri, the only enemy combatant being held on US soil.)

Ireland will not completely opt out of European Security and Defense Policy

02/24/09: The Irish Times reports that Ireland will not completely opt out of the European Security and Defense Policy, which some EU countries had feared following Ireland's rejection of the Lisbon Treaty last year.

Slovenia, Croatia Prime Ministers meet to discuss border dispute

02/24/09: NBC News reports that the Prime Ministers of Croatia and Slovenia met with each other today for the first time since Slovenia blocked Croatia's membership talks with the European Union in December 2008. Croatia hopes to become the EU's 28th member in two years, but Slovenia refuses to permit it to do so until after the countries' border dispute is resolved. The dispute centers on demarcation in the Adriatic Sea, where Slovenia insists Croatia grant it access to the ocean and control over several coastal islands.

Chinese national found guilty of conspiracy to export thermal imaging cameras without proper license

02/24/09: Law Fuel reports that a Chinese national was found guilty today of two federal charges related to a plot to procure and export thermal-imaging cameras to the People’s Republic of China without obtaining the necessary licenses. Zhi Yong Guo, 50, a resident of Beijing, was convicted of conspiracy and exporting and/or attempting to export restricted items, charges that carry a statutory maximum sentence of 40 years in prison. A federal jury in Los Angeles returned the guilty verdicts following a one-week trial.

UK sued over arms sales to Israel

02/24/09: Al Jazeera reports that West Bank-based Palestinian human rights group Al-Haq has sued the UK government for continuing to trade with Israel after Israel's most recent military operations in Gaza, on the theory that the UK should have suspended all trade with Israel after its Gaza operation because the operation violated international law.

Opinion: Obama should create a non-partisan commission to monitor Guantanamo detainee transfers

02/24/09: Guest columnist Jonathan Tracy argues in Jurist that the Obama administration should appoint a non-partisan commission to monitor the release, transfer, and treatment of Guantanamo detainees.

UK Justice Secretary invokes Freedom of Information Act clause to withhold notes from pre-Iraq war cabinet meetings

02/24/09: The BBC reports that UK Justice Secretary Jack Straw has said he will invoke a clause of his country's Freedom of Information Act to prevent the release of notes from key cabinet meetings in the lead up to the war in Iraq during which the legality of the war was discussed.  The Economist analyzes the situation.

Opinion: Is removal of Cuba from state sponsor of terror list inevitable?

02/24/09: Following Senate Foreign Relations (SFR) ranking member Dick Lugar's (R-IN) ringing endorsement of an SFR staff report calling for the re-evaluation of US policy toward Cuba, Andrew Cochran discusses on Counterterrorism Blog the complications that might arise were the Obama administration to remove Cuba from the State Department-controlled state sponsors of terror list.

EU report says US terrorist finance tracking program retained effective privacy safeguards

02/24/09: Xinhua reports that a study presented by European Commission Vice President Jacques Barrot to the European Parliament's Civil Liberties Committee today found the US Treasury Department had effectively protected the privacy of EU-originating personal financial transaction records it used to track and prevent terrorist activity. HT to The Lift.

Scholarship: "Known Unknowns: Unconventional 'Strategic Shocks' in Defense Strategy Development"

2/24/09:  Earlier this month, the Army War College has released a report entitled "Known Unknowns: Unconventional 'Strategic Shocks' in Defense Strategy Development," which details a number of unconventional events which could derail the new administration's security policy.  Among the unforeseen events considered are the collapse of a strategically important country, massive internal disorders within the United States (perhaps brought on by economic collapse), and a China-Russia axis threatening important American economic interests.

Opinion: Prudent continuity on Afghanistan detainee policy conflicts with revised Guantanamo approach

02/24/09: The Washington Times editorial board argues that the Obama administration's welcome and prudent decision to continue Bush administration policy on its treatment of detainees in Afghanistan contradicts its decision to close Guantanamo, where policies similar to those in Afghanistan had prevailed.

Bulgarian hacker sentenced to prison term

02/24/09: Balkan Insight reports that a Bulgarian court has sentenced Bulgarian Issa Mehmed, nicknamed "The Hacker," to four and a half years in prison for founding an organized crime group, money laundering, financial fraud, and extortion. Mehmed's group lifted more than $1.2 million from bank cards, most of which were owned by Americans, between 2003 and January 2008, when Mehmed was arrested.

Events: Two upcoming events on privacy

2009 Freedom Forum Freedom of Information conference: "Freedom and Information: Looking Back and Looking Forward," will be held from 8:30 am to noon on March 13, 2009. National FOI Day is an annual, daylong program of speaking and discussion by specialists in various aspects of freedom of information, updating developments in FOI over the preceding year.  Please see our calendar for details.

IEEE Symposium on Security and Privacy will be held from May 17-20, 2009, in Oakland, California. The 2009 symposium marks the 30th annual meeting of this flagship conference. Since 1980, the IEEE Symposium on Security and Privacy has been the premier forum for presenting developments in computer security and electronic privacy, and for bringing together researchers and practitioners in the field. Please see our calendar for details.

Iran charges 7 with spying for Israel

02/23/09: The New York Times reports that, among other charges, seven adherents of the Bahai faith, five men and two women, might be tried as soon as this week in Tehran on charges of “espionage for Israel, desecrating religious sanctities and propaganda against the Islamic Republic.”  If convicted, the seven suspects might be put to death.

Green Beret says Afghan prisoner lunged at him

02/23/09: The Miami Herald reports that a Green Beret charged with killing and mutilating an Afghan man said at his court martial that he had shot the Afghan man he was interrogating after the man had balled his hand into a fist and lunged at the interrogator. An interpreter present at the interrogation disputes the interrogator's account.

Egyptian government holds 11 suspects after explosion near Cairo bazaar kills French tourist

02/23/09: The Financial Times reports that the Egyptian government has detained 11 people suspected of contributing to a bomb planted near a popular Cairo bazaar which exploded Sunday, killing a French tourist and injuring at least 21 others.

Iraqi, multinational forces arrest bomb suspects

02/23/09: War on Terror Blog reports that Multinational and Iraqi forces have collaborated in recent days to arrest four men suspected of placing magnetic devices on military vehicles.

US urges caution as Phillippines considers reviewing visiting forces agreement

02/23/09: CBS News and Agence France Presse report that as popular anger in the Philippines builds against a US Marine convicted of rape, the Philippine government has announced its interest in possibly reviewing its Visiting Forces Agreement, which establishes the legal principles governing US troops stationed in the Philippines.

Proposed Maryland state bill would restrict national guard use in time of war

02/23/09: The Washington Post reports that a bill proposed by a state senator would allow the state governor to prohibit the deployment of the National Guard in time of war unless Congress authorizes the use of military force or passes a declaration of war. The bill rationalizes that the authorization for use of force in Iraq which Congress passed in 2002 is no longer valid because Iraq no longer poses a continuing threat to the national security of the United States.

US well into planning stages for closing US military bases in Iraq

02/23/09: UPI reports that as a result of the Strategic Framework Agreement between Washington and Baghdad, US military forces in Iraq are well into planning to close American military bases large and small in Iraq.

Scholarship: Recent publications on deference to the executive during national security crises

"Constitutional Crises" (University of Pennsylvania Law Review, 2009) by Sanford Levinson (University of Texas Law School) Jack M. Balkin (Yale University Law School). This article argues discusses three different types of constitutional crises: (1) when political leaders believe that exigencies require public violation of the constitution; (2) situations where fidelity to constitutional forms leads to ruin or disaster; and (3) situations where publicly articulated disagreements about the Constitution lead political actors to engage in or threaten violent protest. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this central task. HT to National Security Advisors.

"The Long War, the Federal Courts, and the Necessity/Legality Paradox" (University of Richmond Law Review, 2009) by Stephen I. Vladeck (American University Washington College of Law). This paper is a review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror."  The review takes issue with Wittes's criticism of judicial intervention in the war on terror.  First, as a descriptive matter, the courts have been a model of judicial restraint. Second, Wittes suggests that aggressive judicial review is dangerous, because it will lead to the courts having to pass upon programs that may be necessary, albeit illegal. The review argues that Wittes is wrong to conclude that the optimal solution in those situations is for the courts to stay out of such disputes altogether. HT to National Security Advisors.

"A Skeptical View of Deference to the Executive in Times of Crisis" (Israel Law Review) by Fionnuala D. Ni Aolain (University of Minnesota Law School) and Oren Gross (University of Minnesota Law School).  In times of crisis there is an unmistakable tendency in numerous legal systems to allow the Executive  branch to augment and extend its powers. This article casts doubt on the virtues of judicial deference during crises, arguing that across-the-board institutional legal engagement with state action is particularly important in times of crisis. Scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence. HT to National Security Advisors.

Events upcoming this week

Below the jump is a list from our calendar of events (including congressional hearings) for this week.