Georgetown Security Law Brief

DOJ backs Saudi royal family in 9/11 suit

05/31/09: The New York Times reports that the Obama administration is supporting efforts by the Saudi royal family to defeat a long-running lawsuit seeking to hold it liable for the 9/11 attacks. The DOJ, in a brief filed Friday in the Supreme Court, said it did not believe the Saudis could be sued in American court over accusations brought by 9/11 victims' families that the royal family had helped finance Al Qaeda. The DOJ said it saw no need for the court to review lower court rulings that found in the Saudis’ favor in throwing out the lawsuit. The case is Federal Insurance Co. v. Kingdom of Saudi Arabia.

Event: ASIL meeting next spring and paper proposals

05/31/09: The 104th American Society of International Law Annual Meeting has been scheduled for next spring in Washington, DC.  The theme is “International Law in a Time of Change”, and paper proposals are due June 19, 2009. Details and submission forms for the paper proposals are here. HT to IntlLawGrrls.

Events upcoming this week

After the jump is a listing of events for next week.

Opinion: Inflating the Guantánamo threat

05/29/09: The New York Times has an op-ed challenging the Pentagon reports stating that 74 of the 534 men released from Guantanamo were “confirmed or suspected of re-engaging in terrorist activities.” This is a recidivism rate of around 14 percent, which was up from the Pentagon’s previous estimate in January of 11 percent.

US Army General addresses high suicide rate

05/28/09: CNN reports that Brig. Gen. Stephen J. Townsend has exhorted any soldier who suspects that a fellow soldier may be feeling suicidal to act during a suicide prevention event at Fort Campbell. The Army continues to struggle with a high suicide rate and a culture that attaches stigma and negative consequences to mental health issues.

Review of government secrecy ordered

05/28/09: The Washington Post reports that President Obama directed his national security adviser and senior Cabinet officials yesterday to examine whether the government keeps too much information secret. In a memo, Obama acknowledged that too many documents have been kept from the public eye for years and affirmed that he remains "committed to operating with an unprecedented level of openness."

FBI planning a bigger role in terrorism fight

05/28/09: The LA Times reports that the FBI and Justice Department plan to significantly expand their role in global counter-terrorism operations, part of a US policy shift that will replace a CIA-dominated system of clandestine detentions and interrogations with one built around transparent investigations and prosecutions.

Two plead guilty to fraud charges relating to Afghan, Albanian arms deal

05/27/09: Balkan Insight and the Miami Herald report that two officials of Miami-based company AEY, suspected of a murky arms deals with Albanian authorities to ship Chinese-made ammunition to the Afghan army, pleaded guilty on Tuesday. David Packouz and Alexander Podrizki each pleaded guilty in the Southern District of Florida to a single fraud conspiracy charge, which carries a maximum prison sentence of five years.

White House names Sonia Sotomayor to Supreme Court

05/26/09: Politico, the LA Times, the Financial Times, and SCOTUSblog report that President Barack Obama has selected New York federal judge Sonia Sotomayor to be the next Supreme Court justice, naming the first Hispanic justice to the high court and adding a second woman to the panel.

US relies more on aid of allies in terror cases

05/25/09:  The New York Times reports that the US is now relying heavily on foreign intelligence services to capture, interrogate, and detain all but the highest-level terrorist suspects seized outside the battlefields of Iraq and Afghanistan. The change, which began in the last two years of the Bush administration and has gained momentum under Obama, is driven in part by court rulings and policy changes that have closed the secret prisons run by the CIA, and all but ended the transfer of prisoners from outside Iraq and Afghanistan to American military prisons.

Opinion: Is Obama striking the right balance?

05/25/09: The Washington Post has a collection of opinion pieces by lawmakers, activists and others asking whether the president is striking the right balance between national security, civil liberties and government transparency. Contributors include Carl Levin, Marc A. Thiessen, Kenneth Roth, Victoria Toensing, Darrel J. Vandeveld, Ed Rogers, Michael Rubin, Elisa Massimino and Lucy Dalglish.  The Financial Times also has a short piece on the same topic.

Event: Counterterrorism and the Obama Administration

05/23/09: On May 28, the Federalist Society and the Heritage Foundation are putting on an event called "Counterterrorism and the Obama Administration" at the Capitol Visitors Center in Washington, DC.  See our calendar for more details.

Canadian juvenile in terrorism case sentenced to time served

05/23/09:  The New York Times reports that a juvenile convicted last year of participating in a group that planned to bomb public buildings and behead Prime Minister Stephen Harper was freed after being sentenced to the 2 1/2 years he has already served. The judge acknowledged that the group was not particularly competent or realistic, but he said that did not diminish the fact that it was a terrorist organization.  Jurist also reports on the case.

Torture prompts soul-searching among some Christians

05/22/09: CNN reports that a survey conducted by the Pew Forum on Religion and Public Life found that white evangelical Christians are more likely to support torture than people who rarely or never attend religious services. The survey said that 62 percent of white evangelical Protestants say that the use of torture against suspected terrorists can be often or sometimes justified in order to gain important information while 40 percent of the "religiously unaffiliated" say torture can be often or sometimes justified.

Spanish judge reinstates charges against US soldiers for journalist's death in Iraq

05/22/09:  Jurist reports that Spanish National Court Judge Gomez reinstated charges Thursday against three US soldiers for their involvement in the death of Spanish cameraman which occurred when the soldiers opened fire on a Baghdad hotel frequented by Western journalists in 2003, allegedly without provocation. The homicide charges initially filed against Sgt. Shawn Gibson, Capt. Philip Wolford and Lt. Col. Philip DeCamp were dropped in 2007.

Event: ABA breakfast with Donald Kerr

On June 9 at 8:00am, Donald Kerr, former Principal Deputy Director of National Intelligence in the Office of the Director of National Intelligence, will address the ABA Standing Committee on Law and National Security.  His topic is "Scars of Intelligence Reform."  The breakfast will be held at the University Club, 1135 16th Street, NW in Washington, DC.  See our calendar for more details.

Employment: Policy Counsel

05/22/09: The Constitution Project seeks a Policy Counsel, who will work with high-level experts to develop consensus reports and recommendations for policy reforms, and promote the reforms through advocacy and public education campaigns.

Scholarship: Recent articles on terrorist financing

"Microfinancing Terrorism: A Study in Al Qaeda Financing Strategy" (in State of Corruption, State of Chaos: The Terror of Political Malfeasance, M. Cox, ed., 2008) by Tolga Koker (Yale University) and Carlos L. Yordan (Drew University). This article explains why individuals support the work of charities that support jihadist operations, even when they may not agree with these organizations' agenda. It first explains why al Qaeda and other jihadist groups use charities to raise most of their funds. It then introduces a behavioral model, arguing that individual Muslims donate monies to Islamist charities that support jihadist causes as a response to social pressures, in an attempt to avoid social seclusion. It concludes with policy implications in the ongoing global struggle against terrorism. HT to National Security Advisors.

"Bank Liability Under the Anti-Terrorism Act: Dispelling the 'Routine Banking Services' Defense in Material Support Cases"  by Stephen I. Landman (Catholic University of America - Columbus School of Law). This article evaluates civil liability for financial institutions that provide material support to terrorist organizations, analyzing the development of the ATA and related legislation proscribing material support to terrorist groups and highlighting the evolving statutory construction by looking to the body of case law surrounding lawsuits against the terrorist support network. Using the lawsuit filed on behalf of Daniel Pearl as a case study, this article concludes that a broad interpretation of the statute is not only in line with the legislative intent of the ATA, but is also the only way in which it can be effective in halting terrorist financing.

"The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters" (Virginia Journal of International Law, 2009) by CarrieLyn Donigan Guymon (Golden Gate University School of Law). This article reviews the legal framework in the United States for freezing the assets of individuals and entities engaged in proliferation-related activities. It argues that the United States and the international community must maintain nonproliferation sanctions because these sanctions protect the integrity of the national and global systems and actors within the jurisdictions imposing them. Regardless of their impact on the target, nonproliferation sanctions must be used to send that strong signal of abhorrence for proliferant behavior.

"EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?" (Fordham International Law Journal, Forthcoming) by P. Takis Tridimas (Queen Mary University of London) and Jose A. Gutierrez-Fons (Queen Mary University of London, School of Law). This article examines the relationship between European Union law, international law, and the protection of fundamental rights in the light of Kadi, Al Barakaat, and other recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals.

Opinion: Release the other interrogation memos

05/22/09:  A Wall Street Journal op-ed calls on Obama to release the still-secret memos that discuss the results of enhanced interrogation against al Qaeda detainees.

05/22/09: The Miami Herald reports a list of home-grown terrorist plots authorities claim they have foiled since September 11, 2001.

Despite torture video, US and Emirates sign nuclear pact

05/22/09:  The New York Times reports that the US signed an agreement with the United Arab Emirates on Thursday to help develop its civil nuclear program, despite an outcry over a video depicting the torture of an Afghan man by a member of the ruling family of Abu Dhabi. The agreement now goes to Congress.

Congress passes legislation to overhaul how Pentagon buys weapons

05/22/09:  The New York Times reports that Congress has approved legislation to alter the way the Pentagon buys weapons, and the President is expected to sign the bill into law on Friday. The legislation would create a Pentagon office responsible for estimating the cost of new programs. It would also require more tests of new weapons before they entered production, give military commanders a bigger say in developing new weapons, and tighten up contracting rules.  A related op-ed piece cautions that this is the beginning, not the end, of the fight over wasteful weapons systems.

05/22/09: The Miami Herald reports that President Obama has signed the bill granting the Pentagon new power to reign in wasteful spending.

Muse, accused Somali pirate, arraigned in US court

05/22/09: CNN reports that a Somali suspect in the hijacking of the US-flagged Maersk Alabama last month pleaded not guilty to 10 counts including piracy, hostage-taking, and firearms charges in US District Court in New York on Thursday. The US Navy took Muse into custody April 12 after the hijacking in the Indian Ocean.

Another judge rules against Obama definition of detainee

05/22/09:  Politico reports that Judge Royce Lamberth has endorsed and adopted an opinion issued by Judge John Bates that upheld the government's right to detain Al Qaeda and Taliban members, regardless of whether they participated directly in fighting. However, Lamberth said he also agreed with Bates and differed with the Justice Department on the issue of whether those who simply aided in such efforts could be detained without charge.  The case is Mattan v. Obama and the opinion is here.

Reports: GAO reports and congressional hearing reports on national security topics

05/21/09: BeSpacific reports that the GAO has released the following reports:

• DOD Business Systems Modernization: Recent Slowdown in Institutionalizing Key Management Controls Needs to Be Addressed, GAO-09-586, May 18, 2009
• Military Operations: Actions Needed to Improve Oversight and Interagency Coordination for the Commander's Emergency Response Program in Afghanistan, GAO-09-615, May 18, 2009
• Questions for the Record Related to the Implementation of the Department of Defense's National Security Personnel System, GAO-09-669R, May 18, 2009

05/21/09: Secrecy News reports that the following noteworthy new congressional hearing records on intelligence, national security or secrecy have been published:

• “Congressional Oversight of Intelligence Activities,” hearing before the Senate Intelligence Committee, November 13, 2007.
• “Implementation of the Office of Government Information Services,” hearing before the House Committee on Oversight and Government Reform, September 17, 2008.
• “FISA for the 21st Century” (pdf), hearing before the Senate Judiciary Committee, July 26, 2006 (includes over a hundred questions and answers for the record from OLC head Steven G. Bradbury [pdf], among others).
• “Sunshine in the Courtroom Act of 2007″ (pdf), hearing before the House Judiciary Committee, September 27, 2007.
• “From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part III)” (pdf), hearing before the House Judiciary Committee, June 26, 2008 (including testimony by David S. Addington and John Yoo).
• “From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part IV),” hearing before the House Judiciary Committee, July 15, 2008 (including testimony by Douglas Feith).

Cheney defends Bush's national security policies

05/21/09: The Miami Herald reports that former Vice President Dick Cheney today defended the Bush administration's use of harsh interrogation methods and said the questioning led to information that deterred terrorist attacks. Cheney claimed that tough interrogations "prevented the violent death of thousands, if not hundreds of thousands, of innocent people." Cheney challenged Obama to release secret documents that he contends would prove this case. AEI has a copy of the speech. HT to Council on Foreign Relations.

FBI seeking more funds for electronic surveillance in 2010

05/21/09:  The Intelligence Daily reports that the FBI's budget request for Fiscal Year 2010 reveals that the agency intends to greatly expand its high-tech surveillance capabilities. The FBI is seeking additional funds for the development of a new 'Advanced Electronic Surveillance' program which is being funded at $233.9 million.

Britain to allow thousands of Gurkha veterans to immigrate

05/21/09:  The London Times reports that 36,000 former Gurkha soldiers who served in the British Army and now live in Nepal are to be given the right to settle in Britain, reversing a longstanding arrangement under which Gurkhas who served before 1997 have no rights to live in Britain. The pre-1997 Gurkhas will now benefit from the same rights as those who served after 1997. The post-1997 Gurkhas have all been allowed to apply for British citizenship, and 6,000 of them have settled in Britain.

Warsame deported to Canada

10/10/10: The Miami Herald reports that a Somali-born Canadian citizen who admitted he attended al-Qaida training camps in Afghanistan and lectures by Osama bin Laden was released from federal prison after nearly seven years in custody and deported to Canada. Mohammed Abdullah Warsame, 37, was released from the Federal Correctional Institution in Terre Haute, Ind., and taken to the US-Canadian border.

Bolivia ex-president goes on trial in absentia on genocide charges

05/21/09:  Jurist reports that the Bolivian Supreme Court of Justice on Monday opened the genocide trial of former president Gonzalo Sanchez de Lozada in connection with the deaths of 63 anti-government protesters in October 2003. Sanchez de Lozada fled to the US after resigning from office in 2003. In November, Bolivian officials requested extradition of Sanchez de Lozada and two other defendants from the US.

Judge dismisses lawsuit over the legality of the Iraq war

05/20/09:  The Newark Star-Ledger reports that Judge Jose L. Linares has dismissed a Rutgers University professor's lawsuit arguing the 2003 invasion of Iraq was unconstitutional. The suit claimed Bush violated Congress's rights by dispatching troops without a formal declaration of war from the House and Senate. But in his opinion, Judge Linares ruled that unless Congress complains, a court should not interject itself into the issue.   HT to How Appealing.

Afghan militants using white phosphorus

05/20/09:  CNN reports that Afghan militants are using white phosphorus against coalition forces.  Human rights groups often allege that its use in civilian areas violates international law.  The coalition's assertions come on the heels of claims that coalition forces have used the chemical against people, a charge the United States denies.

GAO releases report on DOD clearance process

05/20/09:  The GAO has released a report on security clearances at DOD, concluding, "Comprehensive timeliness reporting, complete clearance documentation, and quality measures are needed to further improve the clearance process."  HT to BeSpacific.

2 Lebanese, Suspected of Spying, Escape to Israel

05/19/09:  The New York Times reports that two Lebanese men suspected of spying for Israel have fled across the heavily fortified border to Israel, the second such escape in recent days. Lebanese authorities arrested two other men over the weekend on suspicion of collaborating with Israel, raising to 15 the number of people arrested and accused of spying in the past few weeks. Lebanon considers itself at war with Israel, and spying for or collaborating with Israel can be punishable by death.

Opinion: Will Government Take Control of Air Cargo Security?

05/19/09:  Security Debrief has a piece discussing TSA's failure to screen 100% of cargo coming into the United States by 2010, and suggesting that private industry screening might be a solution.

Chad strikes rebels within Sudan; Sudanese government condemns "act of war"

05/18/09:  The New York Times and CNN report that Chad completed a land and air raid against rebels across the border in Sudan.  Sudan’s Foreign Ministry called the raids an “act of war.” Chad said it was justified in sending its armed forces into Sudan because of what it said was Sudan’s support for a failed attack by rebels on the Chadian Army last week. Chad and Sudan have long traded accusations of backing each other’s rebels, who have waged simmering rebellions in the remote shared border region.

Nuclear powers agree on treaty agenda

05/18/09:  The Financial Times reports that for the first time in 15 years talks at the UN have succeeded in coming up with an agenda for a Nuclear Non-Proliferation Treaty review that was acceptable to both the nuclear powers and non-nuclear states.  The non-nuclear states often resent the manner in which the nuclear powers exercise their monopoly.  Delegates said the talks had broken a long-standing deadlock.of the 189-member NPT, and credited the “Obama factor” with having changed the tone of the international debate on nuclear arms.

Uruguay lifts ban on homosexuals in the military

05/17/09:  The New York Times reports that Uruguay has lifted a decades-old ban on homosexuals serving in its armed forces.

No waterboarding used in questioning Abu Zubaida and KSM on Al-Qaeda ties to Iraq

05/16/09:  The Washington Post reports that senior intelligence officials yesterday acknowledged that two al-Qaeda operatives, Abu Zubaida and Khalid Sheik Mohammed, had been questioned about alleged links between al-Qaeda and Iraq when the two men underwent CIA interrogation in 2002 and 2003. But the officials denied that the questioning on Iraq had included waterboarding.

Scholarship: "Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?"

"Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?" (Media & Arts Law Review, 2009) by Lawrence McNamara (University of Reading - School of Law). This article considers the proposition that Australia's counter-terrorism laws restrict the ability of the media to report on matters related to terrorism and security. It begins by examining the potential effects of these laws on the media's ability to access and publish information about terrorism offences. It then presents the findings of a project that explores the actual effects of the laws. It argues that counter-terrorism laws have had substantial direct effects on court reporting and, while it cannot yet be said that there is a chilling effect, a very worrying range of issues remains and the laws have indirect effects on the media which are detrimental and complex.

Events upcoming this week

05/19/09: A list of congressional hearings upcoming this week are below the jump.

Russian admiral upbeat on renewing Russia's lease of naval base in Ukraine

05/14/09:  Unian (Russia) reports that the Russian Black Sea Fleet's former commander is optimistic that Russia and Ukraine can reach an agreement on retaining the fleet's main base in Crimea`s Sevastopol even after 2017. The fleet uses a range of naval facilities in Ukraine`s Crimea as part of a 1997 agreement, under which Ukraine agreed to lease the bases to Russia until 2017. Ukrainian President Viktor Yushchenko announced last summer that Ukraine would not extend the lease of the base in the Crimean city of Sevastopol beyond 2017, and urged Russia to start preparations for a withdrawal.

Scholarship: "Boumediene's Quiet Theory: Access to Courts and the Separation of Powers"

"Boumediene's Quiet Theory: Access to Courts and the Separation of Powers" (Notre Dame Law Review, Vol. 84, 2009) by Stephen I. Vladeck (American University Washington College of Law). It seems clear from Boumediene v. Bush that the purpose of judicial review appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants. This article takes on this "quiet theory" behind Kennedy's opinion in Boumediene and asks whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as "enemy combatants"; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

Pentagon developing huge mobile bases for the high seas

05/13/09:  The Economist reports on the Pentagon's new efforts to develop modular seabases far larger than any aircraft carrier to replace more vulnerable military bases on land.  Such high sea bases, to be deployed within the next decade, would be huge platforms comprised of specialized ships capable of handling massive amounts of men, vehicles, and supplies.

Hearing: What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration

05/13/09: The Senate Judiciary Committee is now holding a hearing entitled "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration." Witnesses include legal ethics expert and Georgetown Law Professor David Luban. The hearing can be watched live here.

Jailed US journalist Roxana Saberi 'had secret document on war in Iraq'

05/12/09: The London Times reports that the American journalist Roxana Saberi was jailed after she was caught with a confidential Iranian document about the US war in Iraq.   Her lawyer revealed that a document obtained while she was working as a translator for a powerful clerical body had been used as evidence in her court conviction.  Saberi had copied and kept a document about the war in Iraq that was issued by a research centre connected to the Iranian president’s office; she had obtained the document while she was working as a freelance translator for the Expediency Council, a powerful body in Iran’s ruling clerical hierarchy.

ABA Standing Committee on Law and National Security releases report, student writing competition

05/12/09: The ABA Standing Committee on Law and National Security has released its March/April report. The report includes an essay entitled "In Looking Back to Go Forward: Remaking U.S. Detainee Policy" by James M. Durant III and Frank Anechiarico, professors at the U.S. Air Force Academy, discuss the history of detainee policy.It also includes an essay entitled "In Tying Our Hands in Combating International Money Laundering: The United States Should Loosen the Restraints, But Do So Carefully" by attorney Ethan S. Burger    

05/12/09: The ABA Standing Committee on Law and National Security has announced its 2009 Law Student Writing Competition, "Advancing Liberty in the 21st Century While Preserving National Security." The competition seeks to encourage scholarly debate regarding current issues related to detaining and prosecuting terrorists; the impact of the nation’s immigration policy on National Security; the status of international treaties and their impact on National Security; as well as the many issues related to the area of surveillance and intelligence gathering.

Opinion: Defending Dawn Johnsen

05/12/09: The LA Times has an editorial arguing that the Republican opposition to OLC head nominee Dawn Johnsen is ironic and hypocritical.  The argument that Johnsen would politicize the OLC is fueled by her caustic criticism of the Bush-era torture memos. ("Where is the outrage, the public outcry?!" she blogged on Slate last year.)  The piece argues that Johnsen should be taken at her word when she says she would leave her personal views at home, and that she is eminently qualified, and should thus be confirmed.

US denies using white phosphorous in Afghanistan, Gates pledges more investigation

05/12/09: The War on Terrorism Blog reports that the US military denies using white phosphorous during recent fighting with Taliban militants, and Defense Secretary Robert M. Gates said American and Afghan officials will further investigate the recent Western Afghanistan battle. The Taliban alleges that U.S. forces employing the chemical during fighting with insurgents wounded Afghan civilians in the May 4 battle in Farah province, a claim the U.S. military refutes.

Detainee who gave false Iraq data dies in Libyan prison

05/12/09: The Washington Post reports that a former CIA high-value detainee, who provided bogus information that was cited by the Bush administration in the run-up to the Iraq war, has died in a Libyan prison in an apparent suicide.  Ibn al-Sheikh al-Libi was captured fleeing Afghanistan in late 2001, and he vanished into the secret detention system run by the Bush administration. He became the unnamed source, according to Senate investigators, behind Bush administration claims in 2002 and 2003 that Iraq had provided training in chemical and biological weapons to al-Qaeda operatives.

Judge rules first genocide case should move forward

05/12/09: The Miami Herald reports that a federal judge has rejected a DOJ request for more trial preparation time in the case of an immigrant accused in the 1994 Rwandan massacre.  The Kansas case may be the first US criminal prosecution involving proof of genocide. Lazare Kobagaya, an 85-year-old Topeka man, is charged in a a two-count federal indictment with unlawfully obtaining US citizenship in 2006 and fraud.The trial date is set for June 23, 2009.