Georgetown Security Law Brief

Supreme Court overturns order releasing detainee photos

11/30/09: SCOTUSblog reports that the Supreme Court on Monday wiped out a lower court ruling in Defense Department, et al.,. v. American Civil Liberties Union, et al. that would have forced the Pentagon to release scores of photos that are said to show abuse of detainees by the US military in Iraq and Afghanistan.  The Justices, in a brief order, vacated the Second Circuit Court decision and told that court to reconsider in the wake of a new law Congress passed to keep those photos from public disclosure.

US Navy prepares for militarization of the Arctic

11/30/09: AllGov.com reports that a recently released 35-page memo from the Department of the Navy spells out a five-year plan expressing the need to develop new technology and strategies in the event things become contentious in the open waters of the Arctic Circle by 2030. (HT to Intelligence Daily)

White House security already under review

11/30/09: The Washington Post reports that the bizarre breach at the White House state dinner last week lends new urgency to a review of Secret Service procedures that was begun after President Obama's inauguration, and threatens to revive questions about how much security is enough for the country's elected leader.

Senate report explores 2001 escape by bin Laden from Afghan mountains

11/29/09: The New York Times reports that the Senate Foreign Relations Committee has completed a detailed look back at a crucial failure early in the battle against Al Qa'ida: the escape of Osama bin Laden from American forces in the Afghan mountains of Tora Bora in December 2001.  (HT to The Lift)

Lord Carlile advises to ban intercept evidence in terror trials

11/29/09: The Lift reports that Lord Carlile, the independent reviewer of British anti-terrorist laws, has written a report advising that evidence gathered from wiretaps should not be used in court against any of the suspected terrorists captured during "Operation Pathway," an anti-terror swoop on 11 men in north-west England in April 2009.

Ex-detainees' woes in Yemen add to US fears of releasing others

11/29/09: The Washington Post reports that Yemen's poor handling of former Guantanamo detainees and accused extremists in its own jails has raised fears that sending detainees back to this nation, the poorest in the Arab world, might only create more militants determined to attack America.

Council of Europe moves to protect individuals from profiling

11/29/09: The Lift reports that the Council of Europe is preparing a new legal instrument on the protection of individuals with regard to automatic processing of personal data in the framework of profiling.

DoD announces military commissions actions

11/27/09: War on Terrorism reports that prosecutors in the Office of Military Commissions announced they intend to ask the convening authority to refer new charges under the recently-enacted Military Commissions Act of 2009 against Ahmed Mohammed Ahmed Haza al Darbi, in connection with his alleged involvement in an al Qaeda conspiracy to attack military and commercial shipping in the Port of Aden and the Straits of Hormuz.

Ex-army officer accused in terror plot in Pakistan

11/27/09: The Miami Herald reports that Pakistani officials have arrested a retired Pakistani army major for his suspected role in an alleged plot that was hatched in the US to assassinate the creator of Danish cartoons of the Prophet Mohammed.

Militant deal opens door for new Libya

11/27/09: CNN reports that Saif al Islam al Gadhafi, the second eldest son of Libya's leader, said a recently completed peace deal with an Islamic militant group in Libya will help pave the way for the political opening and economic modernization of Libya.

Scholarship: The Use of Force Against States that 'Might' Have Weapons of Mass Destruction

11/27/09: Matthew Waxman of Columbia Law has posted The Use of Force Against States that 'Might' Have Weapons of Mass Destruction which examines the implications of incomplete information in the law governing international use of force. HT to International Law Reporter.

Britain will not block extradition of accused hacker

11/27/09: The New York Times reports that the British government said Thursday it will not prevent the extradition of an autistic hacker accused of breaking into US military computers. Home Secretary Alan Johnson said he will not intervene in the case of Gary McKinnon, who is accused by US prosecutors of hacking into computers shortly after the Sept. 11 2001 attacks.

Scholarship: Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects

11/26/2008:  "Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects" Homeland Security Affairs (Oct. 2008) Stephanie Cooper Blum.  While the need for preventive detention in the United States is legitimate, the Administration asserts that its decision-making process to label individuals as enemy combatants should reside exclusively within the executive branch, thereby bypassing the checks and balances that comprise America's democratic system. Israel and Britain have shown that democracies facing comparable terrorist threats can implement preventive detention policies that are not based on unilateral executive usurpation of power. This article explores whether any insights can be gleaned from Israel's and Britain's forms of preventive detention in order to make a recommendation to the next Administration.  HT to National Security Advisors.

11/23/08:  "The Necessary Evil of Preventive Detention In the War on Terror: A Plan for a More Moderate and Sustainable Solution" (Cambria Press) Stephanie Cooper Blum.  This book recommends using the Foreign Intelligence Surveillance Court to monitor a narrow regime of preventive detention to be used only under certain prescribed circumstances where interrogation and/or incapacitation are the justifications.  It explores the underlying rationales for preventive detention as a tool in this war on terror; analyzes the legal obstacles to creating a preventive detention regime; discusses how Israel and Britain have dealt with incapacitation and interrogation of terrorists; and compares several alternative ideas to the administration’s (probably unconstitutional) enemy combatant policy.  HT to National Security Advisors.

South Korea admits civilian killings during war

11/26/09: The New York Times reports that the South Korean military and police executed at least 4,900 civilians in the opening months of the Korean War for fear that they were Communist sympathizers, the country’s Truth and Reconciliation Commission announced Thursday. The commission, set up in 2005 with a parliamentary mandate, has investigated and confirmed similar civilian massacres by the wartime South Korean authorities, who summarily executed thousands of leftist prison inmates or machine-gunned villagers during their mountain operations to exterminate Communist guerrillas, dumping their bodies in the sea or mass graves.

State Department says review of land mine treaty 'to take some time'

11/26/09: The New York Times reports that the United States is continuing to review its policy on the use of land mines, a State Department spokesman said Wednesday, clarifying an earlier comment in which he said that the Obama administration had concluded it needed the weapons. The spokesman, Ian C. Kelly, said in a statement that the review was “going to take some time” and that while it continued, the current policy of declining to join an international accord to ban the mines would remain.

Obama wants computer privacy ruling overturned

11/25/09: Wired reports that the Obama administration is seeking to reverse a federal appeals court decision that dramatically narrowed the government’s search-and-seizure powers in the digital age. The 9th US Circuit Court of Appeals’ 9-2 decision in August offered Miranda-style guidelines to prosecutors and judges on how to protect Fourth Amendment privacy rights while conducting computer searches.

Three Afghan witnesses released after 15 months

11/25/09: The Washington Post reports that three Afghan men held in the Chicago area as witnesses for 15 months were released Tuesday, a month after testifying in a case involving Afghan contractors and US service members charged with bribery. The three men, employees of contracting firms, had been brought to Chicago in August 2008 on the pretense of attending a dinner honoring Afghan businesses. Instead, they were held in hotels, waiting to testify as material witnesses about charges that US service members accepted kickbacks from Afghan contractors at Bagram air base.

US rights groups back high court challenge to terrorism support laws

11/25/09: JURIST reports that the American Civil Liberties Union (ACLU), the Constitution Project (CP), and the Rutherford Institute filed amici curiae briefs Tuesday backing a challenge to a federal law (18 USC § 2339B(a)(1)) that prohibits providing material support to terrorism. The groups supported a Humanitarian Law Project (HLP) argument that the law defines "material support" too broadly.

Congo army helps rebels get arms, UN finds

11/25/09: The New York Times reports that a new Unites Nations report says that the Congolese Army continues to funnel weapons to rebel groups that are smuggling millions of dollars in gold and other minerals out of Congo, helping sustain one of Africa’s bloodiest and most complicated wars. The lengthy report details a vast, rebel-driven criminal network in eastern Congo with tentacles touching Spanish charities, Ukrainian arms dealers, corrupt African officials and even secretive North Korean weapons shipments.

Arms dealer pleads guilty in Alabama smuggling case

11/24/09: The Miami Herald reports that a Belgian arms dealer has pleaded guilty to illegally exporting airplane engines and parts from the US to Iran for use in aging F-5 fighter jets sold to the Islamic nation before its 1979 revolution. Jacques Monsieur, along with Iranian national Dara Fotouhi, was charged in a six-count indictment with conspiracy, money laundering and smuggling. Fotouhi, who previously lived in France, remains at large. Monsieur, who entered the plea Monday, was arrested by federal agents in August when he arrived in New York. Charges were filed in Alabama because the men allegedly wired money to a financial institution in Mobile for the purchase of fighter jet parts.

Japan to reveal details of decades-old secret pact with US

11/24/09: The Washington Post reports that Japan's new government appears intent on revealing evidence of a decades-old secret pact between Tokyo and Washington that allowed US ships and aircraft to carry nuclear weapons on stopovers in Japan. The pact violates a Japanese law that prohibits nuclear weapons from being made, possessed or stored on its territory. In general outline, its existence has been known for years because of declassified US government documents, but the government's insistence on an official investigation of the matter has placed new strain on US-Japanese relations.

Scholarship: The Law and Practice of International Courts and Tribunals

11/24/09: A new issue of The Law and Practice of International Courts and Tribunals has been released. Contents include:

• David H. Anderson, Maritime Delimitation in the Black Sea Case (Romania v. Ukraine)
• Ernst-Ulrich Petersmann, Administration of Justice in the World Trade Organization: Did the WTO Appellate Body Commit 'Grave Injustice'?
• Tobias Lock, The ECJ and the ECtHR: The Future Relationship between the Two European Courts
• Derek O'Brien & Sonia Morano-Foadi, The Caribbean Court of Justice and Legal Integration within CARICOM: Some Lessons from the European Community
• Sylvia Ntube Ngane, Witnesses before the International Criminal Court
• Daniel Müller & Affef Ben Mansour, Procedural Developments at the International Court of Justice

HT to International Law Reporter.

Judge says he will not hear cases of released Guantanamo detainees

11/24/09: The BLT reports that federal judge Richard Leon dismissed suits by four former Guantanamo Bay detainees whose lawyers had continued pressing their habeas cases despite the fact that the men had already been released to other countries. Lawyers for the detainees argued that while their clients were no longer being held at the US Naval base in Cuba, they were still in the "constructive custody" of the US government.

Brief urges Supreme Court to address torture now

11/24/09: SCOTUSblog reports that lawyers for four former detainees at Guantanamo Bay urged the Supreme Court Monday to face, head-on, the question of whether it is unconstitutional for US officials to torture individuals being held captive.  In a reply brief filed in Rasul, et al., v. Myers, et al., the attorneys for the four Britons argued that the Justice Department is grasping at a mere footnote in a lower court opinion in an attempt to evade Court review of the legality of torture.

Scholarship: Culture Under Cross-Examination

11/24/09: Tim Kelsall of the Berkeley War Crimes Studies Center is publishing Culture Under Cross-Examination which examines the challenges faced by the Special Court for Sierra Leone in dealing with unfamiliar cultural thinking about rights, agency, and truth-telling. HT to International Law Reporter.

Man arrested in anti-aircraft missile plot

11/24/09: The Washington Times reports that Federal investigators in Philadelphia say they have arrested a man who wanted to obtain weapons to ship to Syria, including anti-aircraft missiles. An affidavit released Monday says Dani Nemr Tarraf, who has residences in Lebanon and Slovakia, wanted weapons to "take down an F-16."

Tamil militants are sentenced in France

11/24/09: The New York Times reports that a court sentenced 20 Tamil Tiger militants to prison terms on Monday for extorting millions of dollars from the Tamil diaspora in France to finance their armed campaign in Sri Lanka. Nadaraja Matinthiran, who was said to be the rebel group’s leader in France, was sentenced to seven years for extorting $7.4 million.

Scholarship: Applying international humanitarian law to video and computer games

11/23/09: Trial and Pro Juventute have released Playing by the Rules which analyzes the compliance of virtual combat in popular video and computer games with international rules governing armed combat. HT to Opinio Juris.

Algerian court clears former Guantánamo captives

11/23/09: The Miami Herald reports that an Algerian court on Sunday acquitted two men once held at Guantánamo Bay, Cuba, who were returned home to face trial on links to terrorism, their defense lawyer said. Abdelli Faghoul, 49, and Terari Mohamed, age unknown, had admitted in court to links with the illegal drug underworld, but denied any connection to foreign terrorist groups, defense lawyer Farid Abbache told The Associated Press. The two men were released from Guantánamo and handed over to Algerian authorities on Aug. 15, 2008 -- nearly seven years after they were taken into custody and held without trial, the lawyer said.

Dissident republicans blamed for 400lb bomb after Christmas 'spectacular' threat

11/23/09: The Times (UK) reports that Irish terrorism will return to the top of the security agenda today after coordinated gun and bomb attacks in Northern Ireland confirmed the determination by so-called dissident republicans to strike hard against the Province’s fragile peace before Christmas. Security chiefs are increasingly fearful that breakaway groups from the Provisional IRA will achieve their objective of a “spectacular” before the year’s end, further imperiling the prospect of an end to political deadlock between the Province’s main parties.

British army faces inquiry over ‘Battle of Danny Boy’ torture claims

11/23/09: The Times (UK) reports that claims that British soldiers tortured and murdered up to 20 prisoners after a battle with Iraqi insurgents are to be scrutinized at a public inquiry. Concern that the Army covered up the most serious accusation of war crimes that it has faced has prompted Bob Ainsworth, the Defense Secretary, to order the independent inquiry.

Key ICTR witnesses threatening to boycott genocide trials after acquittals

11/22/09: JURIST reports that groups representing key witnesses appearing before the International Criminal Tribunal for Rwanda (ICTR) said Saturday that they may no longer participate in court trials following the acquittal of two suspects involved in the 1994 Rwandan genocide. The umbrella organization for the various survivor groups in Rwanda, IBUKA, threatened that if the ICTR did not reverse its decisions, the relationship between the ICTR and the survivor groups will end. Approximately 200 protesters marched in Kigali in opposition the ICTR's decisions.

DOD announces military commissions actions

11/22/09: War on Terrorism reports that prosecutors in the Office of Military Commissions announced they intend to ask the convening authority to refer new charges under the recently-enacted Military Commissions Act of 2009 against Abd al-Rahim Hussein Muhammed Abdu al-Nashiri, in connection with the bombing of the USS Cole in the port of Aden, Yemen, in October 2000. The bombing resulted in the deaths of 17 sailors and injuries to many more. This announcement follows the attorney general's determination on Nov. 13, 2009, that a military commission was the proper forum for prosecution of al-Nashiri.

US soldier found guilty of abusing subordinates in Iraq

11/22/09: CNN reports that a US military court demoted and jailed a soldier for mistreating troops in Iraq, behavior discovered during the investigation of another soldier's suicide. Sgt. Jarrett Taylor, 23, of Edmond, Oklahoma, was convicted at a special court martial at Camp Arifjan, Kuwait. He was found guilty of making false official statements and cruelty and maltreatment of subordinates. The soldier was reduced to the rank of private, sentenced to 180 days in confinement and ordered to forfeit $933 in pay for the next six months, the military said.

Gaza militants agree to halt rocket fire

11/22/09: The New York Times reports that Hamas announced Saturday evening that it has reached an agreement with other militant groups in Gaza to stop firing rockets at southern Israeli towns to prevent retaliatory attacks. Hamas has mostly refrained from firing rockets since January when Israel ended a three week offensive in Gaza aimed at stopping almost daily militant attacks. Other Gaza militant groups have since continued with rocket attacks, but on a much smaller scale than before.

Canadian court orders refugee board to consider ‘Don’t Ask, Don’t Tell’ in army deserter’s case

11/21/09: The New York Times reports that the Federal Court (Canada) ruled Friday that a refugee board must consider the treatment of homosexuals by the United States military when examining the case of a US Army deserter who is a lesbian. The court ordered the Immigration and Refugee Board to again review the case of the deserter, Bethany Lanae Smith, who fled the Army for Canada in 2007 shortly before being posted to Afghanistan.

Scholarship: War, Commerce, and International Law

11/21/09: James Thuo Gathii of Albany Law School is publishing War, Commerce, and International Law which examines the status of private property and contract rights after the outbreak of war. HT to International Law Reporter.

Kuwait-based military contractor wins court delay

11/21/09: The Washington Post reports that a Kuwaiti-owned company indicted in Atlanta this week for alleged fraud in connection with a multibillion-dollar contract to supply food and other products to coalition troops in Iraq, Kuwait and Jordan won a court delay Friday, indicating that it may be planning to fight the case, whether in Georgia or elsewhere in the United States.

Dismissal of case for guard in Iraq

11/21/09: The New York Times reports that the Justice Department intends to drop manslaughter and weapons charges against one of the security guards from the company formerly known as Blackwater Worldwide who were involved in deadly Baghdad shootings in September 2007, prosecutors said Friday in court documents.

Army general defends rules for detainees

11/20/09: CNN reports that the military released 77,000 of about 87,000 detainees locked up during the Iraq war because there was not enough evidence to hold them.

A shift in terrorist strategy threatens Italian national security

11/20/09: Global Terrorism Analysis reports that the Italian Home Minister, Roberto Maroni, recently stated: “We believe that terrorist cells fundraise and train to carry out attacks in our country. It is not yet a homegrown terrorist situation, like in the United Kingdom and in Spain, but we are getting closer to it.” After October's barrack bombing in Milan, the latest developments seem to show that Italy is no longer perceived as only a logistical platform for jihadist activities, but is now regarded as an eligible target for terrorist attacks, and the government has begun to respond. For example, the powerful Northern League political coalition has already proposed a tougher law to control immigration fluxes after the recent attack.

Judge frees ex-airport guard accused of Obama threats

11/20/09: CNN reports that John Brek, a former security guard at a New Jersey airport who was accused of making threats against the president is expected to be released from jail Thursday after a judge determined that he is not a threat to himself or others, the prosecutor's office said.

UK court orders release of details of ex-Guantanamo detainee's treatment

11/20/09: Jurist reports that the UK High Court ruled Thursday that the details of the detention of Binyam Mohamed in Pakistan in 2002 must be released.

Two more of Liberty City Seven get lighter sentences

11/20/09: The Miami Herald reports that a day after two men described as soldiers in a terrorism plot to destroy Chicago's Sears Tower and bomb FBI offices were sentenced to less than a decade behind bars -- far less than federal prosecutors sought -- two more men received similar sentences Thursday in Miami federal court. US District Judge Joan Lenard sentenced Batiste's self-described "No. 1 soldier," Patrick Abraham, 30, to just over nine years Thursday; Stanley Phanor, 34, got eight years.

Fine and inquiry possible for Blackwater successor

11/19/09: The New York Times reports that the international security company formerly called Blackwater Worldwide is facing large government fines for unlicensed arms shipments to Iraq, as a key Congressional committee is asking for a separate investigation into whether the company bribed Iraqi officials.

Radical US Muslim group defames moderate, defends Fort Hood attack

11/19/09: Counterterrorism Blog reports that a New York-based Muslim extremist group known for its unabashed support for violence against Jews and others posted a link on its website Tuesday branding American Islamic Forum for Democracy (AIFD) Executive Director, M. Zuhdi Jasser, a "murtad," or apostate.

Soldier defends decision to reveal murders of Iraqi detainees

11/19/09: CNN reports that Jess Cunningham, a former Army sergeant who revealed the murders of four Iraqis at a canal in 2007, says he has no regrets about breaking his silence. Nine months after the March 2007 murders, Cunningham told his Army lawyer what had happened at the canal, and eventually three sergeants were convicted of premeditated murder and conspiracy to commit premeditated murder.

Scholarship: A comparative framework for post-9/11 approaches to counterterrorism

11/19/09: Amos Guiora, professor of law at The S. J. Quinney College of Law at the University of Utah, will publish Not “By All Means Necessary”: A Comparative Framework for Post-9/11 Approaches to Counterterrorism in the Case Western Reserve Journal of International Law. Professor Guiora argues that counterterrorism significantly benefits from a comparativist approach, and that because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. HT to AIDP Blog.

Guantánamo war court back in session

11/19/09: The Miami Herald reports that with a prison camps closure date now uncertain, the Pentagon gaveled into business a military commissions session Wednesday with an Afghan foot soldier case, although accused war criminal Mohammed Kamin, 31, boycotted his pretrial hearing before an Air Force judge. He allegedly trained at an al Qaeda camp after US troops invaded his homeland, spied on US bases and set mines and missiles against coalition forces that never exploded.

Opinion: The Constitutional rights of public enemies in armed conflict

11/19/09: Opinio Juris has an opinion post by Major John C. Dehn, Assistant Professor in the Department of Law at the US Military Academy at West Point. Dehn argues that the procedural and substantive rights to which Khalid Sheikh Mohammed and other public enemies are entitled are only those required by federal statute or by international laws governing armed conflict, and that they do not stem from the Bill of Rights because those protections simply do not apply.