Georgetown Security Law Brief

New York Police Department document recommends intelligence collection at mosques

02/02/12: The Washington Times reports that a secret police document shows that the New York Police Department recommended increasing surveillance of thousands of Muslims and their mosques based solely on their religion. The Associated Press obtained a copy of a May 2006 NYPD intelligence report on Iran. It says police should expand clandestine operations at Shiite mosques and then lists mosques around the Northeast. Mayor Michael Bloomberg has said the NYPD never considers religion in its policing.

Commentary: Gitmo’s prying eyes

02/01/12: The American Conservative features an opinion piece by Kelley Beaucar Vlahos alleging that Department of Defense actions have deprived Guantanamo detainees of the attorney client privilege.  Vlahos notes that the Office of Chief Defense Counsel for Military Commissions, whose clients are incarcerated at Guantanamo Bay, is engaged in a standoff. They’ve refused to sign the user agreement required by the Department of Defense that consents to “the routine monitoring, interception and search” of “all communications using or data stored on” the Pentagon’s global computer network, which all DoD personnel—including the attorneys—use every day. HT to Neal R. Sonnett.

ACLU sues to force release of drone attack records

02/01/12: The Washington Post reports that the American Civil Liberties Union asked a federal court Wednesday to force the Obama administration to release legal and intelligence records related to the killing of three US citizens in drone attacks in Yemen last year. The lawsuit, filed in the US District Court for the Southern District of New York, charged the Justice and Defense departments and the CIA with illegally failing to respond to requests made in October under the Freedom of Information Act.

After Obama’s remarks on drones, White House rebuffs security questions

02/01/12: The Washington Post reports that White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret US drone program in Pakistan when he openly discussed the subject the day before. He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

TSA rail, subway spot-checks raise privacy issues

01/29/12: CNN reports that at a time when TSA airport searches are unpopular among many air travelers, civil liberties groups say the joint participation of special TSA Visible Intermodal Prevention and Response teams (VIPRS) with local police in "warrantless" searches have been "flying under the radar" in violation of constitutional protections. Transit police say it helps them better guard against attacks like those that have hit Madrid, London and Moscow since 2004. VIPRS are tasked with performing random, unpredictable baggage and security checks at passenger train, subway and bus stations as well as trucking weigh stations across the nation.

US cybersecurity efforts trigger privacy concerns

01/27/12: The Washington Times reports that the federal government’s plan to expand computer security protections into critical parts of private industry is raising concerns that the move will threaten Americans’ civil liberties. In a report for release Friday, The Constitution Project warns that as the Obama administration partners more with the energy, financial, communications and health care industries to monitor and protect networks, sensitive personal information of people who work for or communicate with those companies could be improperly or inadvertently disclosed.

Court says review of security clearance dispute is “prohibited”

01/23/12: Secrecy News reports that a government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week. Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”

Opinion: Do drones undermine democracy?

01/22/12: The New York Times features an opinion piece by Peter W. Singer concerning the impact of the use of drones. In democracies like ours, he contends, citizens have historically participated in decisions to take military action, through their elected representatives, helping to ensure broad support for wars and a willingness to share the costs, both human and economic, of enduring them. In America, our Constitution explicitly divided the president’s role as commander in chief in war from Congress’s role in declaring war. Yet Singer argues these links and this division of labor are now under siege as a result of a technology that our founding fathers never could have imagined.

Trial begins for Guantanamo protesters arrested in House gallery

01/03/12: The Blog of Legal Times reports that jury selection began this morning in a trial against protesters arrested inside the US House of Representatives gallery this summer while demonstrating against funding for the US detention camp at Guantanamo Bay. The original group of 14 defendants arrested during the June 23 demonstration was later whittled down to five people. All of the protesters are representing themselves at trial, although their attorney advisers are First Amendment law veterans Ann Wilcox and Mark Goldstone, both solo practitioners.

Two Muslim men kicked of flight sue air carriers

12/20/11: The Boston Globe reports that two Muslim men who say they were kicked off an airplane in May after the pilot objected to their presence are suing Delta Air Lines Inc. and a regional carrier that operated the Delta Connection flight from Memphis to Charlotte, NC. According to a suit filed Monday in federal court in Memphis, Masudur Rahman and Mohamed Zaghloul were traveling to Charlotte to attend a conference on anti-Muslim discrimination at the time.

Animal rights activists challenge terrorism law

12/17/11: Jurist reports that a group of animal rights activists on Thursday challenged the Animal Enterprise Terrorism Act which they claim violates their rights to peaceful protest. The lawsuit, filed in the US District Court for the District of Massachusetts by the Center for Constitutional Rights, claims that the law is overly broad and criminalizes activity that is protected by the First Amendment. According to the complaint, the plain language of the bill language criminalizes core political advocacy and speech that are protected by the First Amendment.

Hearing on terror suspect explores Miranda warning

12/13/11: The New York Times reports that in the debate over using civilian trials for terrorists, one of the key issues — the ability to first question a suspect to gain critical intelligence on terrorist cells or plots and still pursue a criminal prosecution — is getting an early test in Mr. Ahmed’s case in Federal District Court in Manhattan. Lawyers for Mr. Ahmed have asked a judge to suppress statements that the United States government has said he made after waiving his Miranda rights and being interrogated by the FBI in Nigeria. They claim that any such waiver was not voluntary and thus any statements he made are inadmissible.

Scholarship:"Killing Al-Awlaki: the domestic legal issues"

12/13/11: Robert J. Delahunty and Christopher J. Motz are publishing a forthcoming article in the Idaho Journal of Law & Public Policy, 2012, concerning the controversial drone killing of Anwar al-Awlaki, an American citizen. Their essay examines the domestic legal arguments on both the "powers" side (i.e., whether the President had sufficient legal authorization) and the "rights" side (i.e., that al Awlaki was entitled to greater process). It focuses on open source material relating both to al Awlaki and Al Qaeda in the Arabian Peninsula. The authors conclude that under domestic law, the killing was lawful.  HT to Robert Chesney.

Passenger advocate sought for US airports

12/11/11: The Boston Globe reports that two New York lawmakers are seeking a so-called passenger advocate at airports to immediately act on complaints from passengers about security screenings. US Senator Charles Schumer and state Senator Michael Gianaris are calling on the Transportation Security Administration to create the position at all airports. The proposal was prompted by recent claims that an elderly woman was strip searched by security officials at Kennedy Airport. The TSA denies the claim.The TSA says it doesn't conduct strip searches. It is planning its own toll-free hotline to assist passengers during screening.

Opinion: Reneging on justice at Guantánamo

11/20/11: The New York Times features an editorial on jurisprudence concerning Guantanamo detainees. In 2008, the Supreme Court ruled that Guantánamo Bay prisoners who are not American citizens have the right of habeas corpus, allowing them to challenge the legality of their detention in federal court and seek release. The power of the ruling, however, has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.

The post-9/11 tradeoff between security and civil liberties

11/20/11: The Chicago Daily Herald reports that in the early months after the 9/11 terror attacks, America’s visceral reaction was to gird for a relentless, whatever-it-takes quest to punish those responsible and prevent any recurrences. To a striking extent, those goals have been achieved. Yet over the years, Americans have also learned about trade-offs, about decisions and practices that placed national security on a higher plane than civil liberties and, in the view of some, above the rule of law. It’s by no means the first time in US history that security concerns spawned tactics that, when brought to light, troubled Americans.

Scholarship: Material witness detentions after al-Kidd

11/17/11: Wes Oliver, of the Widener University School of Law will publish an article, “Material Witness Detentions After al-Kidd,” in the forthcoming issue of the Kentucky Law Journal. Oliver contends that the Supreme Court’s decision in Ashcroft v. al-Kidd, holding that the government may arrest a person under the Material Witness Statute even if it is interested in prosecuting the witness, raises concerns beyond the scope of the narrow question before the Court. Oliver argues that if the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Therefore, Congress must establish clearer criteria for the arrest and treatment of material witnesses. HT to Robert Chesney.

In NYPD spying, a Yippie legal battle echoes again

11/17/11: The Wall Street Journal reports that Barbara Handschu had tried to remove her name from the agreement that is her legacy. More than a quarter century ago, after New York's police were caught spying on Americans who were exercising their right to free speech, she and others filed suit to stop it. The outcome was an agreement to place limits on surveillance — the Handschu rules.

Muslim group's suit for FBI manual hits setback

11/16/11: Politico reports that a Muslim group's Freedom of Information Act lawsuit demanding the text of the Federal Bureau of Investigation's main investigative manual has suffered a setback as a result of a judge's ruling last week. Muslim Advocates is seeking access to the FBI's Domestic Investigations and Operations Guide, a 689-page tome that sets the rules FBI agents are required to follow when pursuing investigations and dictates when internal approvals are required for using specific tactics, such as surveillance.

Appeals court hears case of ex-Guantanamo prosecutor fired from Library of Congress over writings

11/10/11: The Washington Post reports that the former chief military prosecutor at Guantanamo Bay is suing the Library of Congress for firing him after he wrote opinion columns in two leading newspapers criticizing the Obama administration’s decision to try some suspected terrorists before military tribunals. Attorneys from the American Civil Liberties Union argued Thursday in federal appeals court in Washington that retired Air Force Colonel Morris Davis should be allowed to continue the lawsuit against the ex-supervisor who fired him.

New FBI rules relax restrictions on intelligence gathering

10/27/11: The Atlantic reports that the FBI reportedly implemented new rules that relax restrictions on, and oversight of, the FBI's intelligence collection activities. Although they are not available to the public, reports indicate the changes permit FBI agents to search an individual's trash with the goal of finding material that might pressure him into becoming a government informant, grant agents the authority to search commercial or law enforcement databases without first opening an investigation, and reduce the type of investigations subjected to heightened oversight because of their relationship to protected First Amendment activities.

US airstrike that killed American teen in Yemen raises legal, ethical questions

10/23/11: The Washington Post reports that one week after a US military airstrike killed a 16-year-old American citizen in Yemen, no one in the Obama administration, Pentagon or Congress has taken responsibility for his death, or even publicly acknowledged that it happened. The absence of official accountability for the demise of Abdulrahman al-Awlaki, a Denver native and the son of an al-Qaeda member, deepens the legal and ethical murkiness of the Obama administration’s campaign to kill alleged enemies of the state outside of traditional war zones.

Even those cleared of crimes can stay on FBI’s watch list

09/28/11: The New York Times reports that the Federal Bureau of Investigation is permitted to include people on the government’s terrorist watch list even if they have been acquitted of terrorism-related offenses or the charges are dropped, according to newly released documents. The files, released by the FBI under the Freedom of Information Act, disclose how the police are instructed to react if they encounter a person on the list and shed new light on how names are vetted for possible removal from the list.

Opinion: the price of becoming addicted to drones

09/22/11: The Washington Post features an opinion piece in which David Ignatius attempts to answer the following question: what “rules of war” should apply to Predator drones, the eerily efficient weapons that cruise the skies and target adversaries with the precision of a sharpshooter’s bullet? Ignatius contends this is an urgent question — not simply for the United States, which is expanding its use of drones, but for dozens of other nations that may soon use them to target their own “bad guys.”

Appeals court in Virginia tosses two Abu Ghraib lawsuits

09/22/11: The Houston Chronicle reports that a federal appeals court on Wednesday dismissed two lawsuits by former Iraqi detainees who claimed civilian interrogators and translators participated in their torture at the Abu Ghraib prison. In a 2-1 decision, a panel of the 4th US Circuit Court of Appeals ruled that the state law claims against contractors CACI International Inc. and L-3 Services, formerly Titan Corporation, are pre-empted by federal authority to manage a war.

Court allows challenge of US surveillance law

09/21/11: The Washington Post reports that the Second Circuit Court of Appeals reached a 6-6 decision Wednesday, upholding the standing of a group of American lawyers, human rights activists and journalists to challenge the constitutionality of the Foreign Intelligence Surveillance Act as amended by Congress in 2008. The revision expanded the government’s surveillance authority, permitting intelligence agencies to collect information on US soil without a warrant identifying a particular individual.

Opinion: Justice denied at Guantánamo

09/20/11: The National Law Journal features an opinion piece by Allison M. Lefrak, defense counsel for a Guantanamo detainee. Lefrak argues that the longer the Guantanamo cases are delayed, the more credibility the US judicial system loses.  Lefrak quotes Chief Justice Warren Burger for the proposition that "a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.…Delay will drain even a just judgment of its value." HT to Neal R. Sonnett.

Commentary: What we still don’t know after September 11

09/18/11: The New York Review of Books features a new article by David Cole, addressing what, precisely, did and did not change after September 11, particularly with respect to law, liberty, and security. Cole discusses the response of the Bush and Obama administrations to terrorism, concluding that one of the most important lessons of the past decade may be that the rule of law has proved far more resilient than many would have predicted.

Obama adviser discusses using military on terrorists

09/17/11: The New York Times reports that John O. Brennan, the top counter-terrorism adviser to President Obama, on Friday defended a broad conception of where the United States can use military force against members of Al Qaeda and its allies. Mr. Brennan also denounced a proposal in Congress to mandate military detention of terrorism suspects — even those captured on United States soil. His remarks were part of a speech on the Obama administration’s counterterrorism policy and the rule of law, delivered before a conference at Harvard Law School.

CRS examines congressional authority to limit military operations

09/15/11: Secrecy News notes that a new report from the Congressional Research Service discusses the authority of the President to use military force without congressional authorization and the ability of Congress to limit or regulate such use. At issue are the scope and priority of basic constitutional terms, including the definition of the President’s role as commander in chief, the authority of Congress to declare war, and its ability to appropriate or to withhold funds for military operations.

ACLU argues post-9/11 security measures eroding 'core values'

09/08/11: JURIST reports that the American Civil Liberties Union (ACLU) released a report on Wednesday claiming that the US is diminishing its "core values" with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent.

Appeals court to weigh NSA dragnet surveillance

08/30/11: Wired.com reports that whether the federal government and the nation’s telecommunication companies can be held accountable for allegedly funneling every American’s electronic communication to the National Security Agency without warrants is the subject of oral arguments scheduled for a federal appeals court Wednesday. At issue is a January 31, 2006 lawsuit, and others that followed, alleging violations of the Fourth Amendment right to be free from warrantless searches and seizures. The cases, about three dozen which will be consolidated into two oral arguments, have been thrown out of court on a variety of grounds, chiefly the government’s claim that the lawsuits would expose state secrets, and a 2008 law that immunized the nation’s telcos from such lawsuits.

San Francisco Bay area transit agency to discuss decision to cut wireless service for security

08/24/11: The Washington Post reports that the transit agency in the San Francisco Bay area hopes to ease tensions with a public meeting over whether there should be a policy on cutting wireless access to its stations during protests. The Bay Area Rapid Transit agency board of directors meets Wednesday morning in Oakland to discuss whether it wants to continue using the tactic, which drew unfavorable comparisons to Hosni Mubarak’s attempts to cut Internet access to most of Egypt to quell demonstrations protesting his regime.

DOJ challenges Alabama immigration law

08/02/11: JURIST reports that the Department of Justice on Monday filed a complaint in the US District Court for the Northern District of Alabama challenging an Alabama law that expands restrictions on undocumented immigrants. The DOJ contends that various provisions of the Alabama immigration legislation are preempted by federal law and violate the Supremacy Clause of the Constitution. Specifically, the measures that permit police officers to detain a person stopped for a traffic violation if the officer has "reasonable suspicion" the person is in the country illegally, the DOJ argues, are unconstitutional.

FBI intentionally withheld info from bomb suspect

07/27/11: The Miami Herald reports that FBI agents did not initially tell a man suspected of planting a bomb along the route of a Martin Luther King. Jr. Day parade why he was arrested because they wanted to gain his trust, newly released documents state. The court records released Tuesday addressed concerns voiced by US District Judge Justin Quackenbush about a delay of several hours in telling suspect Kevin Harpham the reason for his arrest and to immediately provide his Miranda rights.

Blogger sues to see if government kept a file on him

07/13/11: Wired.com reports that lawyers for the American Civil Liberties Union will file a lawsuit Wednesday morning in a federal court in Michigan to compel the government to release any information it collected on Juan Cole, a University of Michigan professor who blogs on Mideast issues at Informed Comment. The suit seeks disclosure of “federal government discussions of, correspondence regarding, inquiries about, and investigations of Professor Cole,” the ACLU’s filing says. That disclosure is ”urgently needed to inform the national debate about US accountability with respect to the unlawful investigation and surveillance of its citizens.”

US broke international law by executing Mexican national, says UN

07/08/11: CNN reports that the United States breached international law by executing a Mexican national without having granted him consular access, the United Nations High Commissioner for Human Rights said Friday. Navi Pillay, in a statement, said she deeply regrets the execution of Humberto Leal Garcia, after a 5-4 decision by the US Supreme Court denied him a stay of execution Thursday night. "The execution of Mr. Leal Garcia places the US in breach of international law," said Pillay, who is on an official mission in Mexico. "What the state of Texas has done in this case is imputable in law to the US and engages the United States' international responsibility."

Senate offers revised rules for suspects of terrorism

06/24/11: The New York Times reports that the Senate Armed Services Committee has voted for a sweeping and bipartisan package redefining the rules for detaining terrorism suspects, including giving military judges the power to review the cases of prisoners in Afghanistan and mandating military detention for important Qaeda suspects — even if they are captured on United States soil. The panel approved the package last week 25 to 1 as part of the 2012 National Defense Authorization Act, and it released a brief summary of the act as a whole. But its detention aspects have received scant attention because the vote took place in a closed session and the text of the legislation has not been made public.

Lawyers for Guantánamo detainees allowed to see leaked files

06/11/11: The New York Times reports that the Justice Department has eased restrictions preventing lawyers representing prisoners at the military prison at Guantanamo Bay, Cuba, from reading the classified files about their clients that were leaked to WikiLeaks and then made widely available on the Internet. In guidance to the lawyers — who have security clearances, and thus are required to follow government rules for the handling of classified information — the department’s court security officer said Friday that they were now permitted to view the leaked documents on the Internet. But they are still not allowed to download, save or print the documents because they might contain restricted information.

Civilian appeals conviction by US military court

06/02/11: JURIST reports that an Iraqi-Canadian civilian on Wednesday appealed his conviction by a US military court. Alaa "Alex" Mohammad Ali, a military contractor who was convicted by a US military court in Iraq in 2008, argued that his conviction was unconstitutional. The case was the first in which a civilian was charged and convicted by the military since a 2006 amendment to the Uniform Code of Military Justice granted the military jurisdiction over civilians accompanying US troops in a combat zone, and the first time a civilian was charged and convicted under military law since the Vietnam war.

Measure would widen president's power to fight terrorists

05/25/11: The Los Angeles Times reports that the $690-billion defense spending bill contains a little-noticed provision that would expand the president's power to pursue suspected terrorists around the world. The new provision would no longer require that targets have a connection to September 11, instead granting the president authority to "use all necessary and appropriate force during the current armed conflict with Al Qaeda, the Taliban and associated forces."

High court turns down Guantanamo detainees' appeal

05/23/11: The Miami Herald reports that the Supreme Court has turned down an appeal from Guantanamo detainees who fear they may be tortured or jailed if they are released from the US naval base in Cuba. The justices on Monday rejected a plea from dozens of detainees who say they should have 30 days' advance notice to challenge their transfer to countries where they have a reasonable fear of torture, or even continued confinement. The case is Khadr v. Obama, 10-751.

 

Five Muslim immigrants appeal NJ terrorism convictions in deadly Fort Dix plot

05/23/11: The Washington Post reports that attorneys for five Muslim immigrants convicted of plotting a deadly strike at a New Jersey military base will challenge the Patriot Act as they appeal the convictions. The lawyers argue that FBI informants entrapped their clients. They say the discussions amounted to little more than a religious debate about jihad. They will also challenge the constitutionality of a Patriot Act provision used to seize video the defendants left at a store for reformatting.

Katyal speaks of Solicitor General 'mistakes' in Japanese internment cases

05/23/11: The Blog of the Legal Times reports that Acting Solicitor General Neal Katyal on Friday spoke of the "mistakes" made by a long-ago predecessor in defending the US government's World War II Japanese-American internment program before the Supreme Court. In a post on the Justice Department's blog, Katyal reviewed evidence unearthed in the 1980s that in 1943 and 1944, then-Solicitor General Charles Fahy failed to tell the Court of relevant reports minimizing the danger posed by Japanese-Americans living on the west coast.

Commentary: The lawfulness of the US operation against Osama bin Laden

05/19/11: Opinio Juris has published a commentary by Harold Hongju Koh outlining the legality of the US mission against Osama bin Laden.

New try on Guantanamo detention

05/19/11: SCOTUSblog reports that with a fading chance that the Supreme Court will agree to hear the last of the eight Guantanamo Bay detainee cases filed earlier this Term, making a complete sweep for the government, lawyers for a Yemeni national have made a new bid to get the Justices to clarify – and limit — the law of detention.  The new petition in Al-Bihani v. Obama (docket 10-1383) may not be acted upon until next Term; the timing appears to be too close.

DHS accused of hiding fingerprinting data

05/18/11: Nextgov.com reports that plaintiffs in a Freedom of Information Act lawsuit contend the Homeland Security Department is attempting to hide information on a controversial immigrant fingerprinting program by refusing to release court-ordered email trails.

Supreme Court won’t revive lawsuit over ‘extraordinary rendition’

05/16/11: The Washington Post reports that the Supreme Court is refusing to revive a lawsuit challenging a controversial post-September 11 CIA program that flew terrorism suspects to secret prisons. The appeal asked the court to examine two controversial aspects of the US response to the 9/11 attacks, “the extraordinary rendition” program that sent the suspects to secret prisons and the “state secrets privilege.”

Activist who supports soldier in WikiLeaks case sues US over seizure of laptop

05/13/11: The Washington Post reports that the co-founder of a group advocating for an Army private accused of leaking classified material to the antisecrecy Web site WikiLeaks is suing the US government for unlawfully seizing his computer and copying its contents to aid a criminal investigation of the site. Computer scientist David House’s laptop was taken in November at an international airport by two Department of Homeland Security agents. The ACLU alleges it was taken without a hint that it contained evidence of wrongdoing, but rather because House was a vocal supporter of Pfc. Bradley Manning, the accused leaker.

Another pair of imams say they were barred from a flight and may sue

05/11/11: CNN reports that a US-born Muslim cleric and his son are exploring the possibility of legal action after they said they were prevented from traveling aboard an American Airlines flight from New York to Charlotte, North Carolina. Al Amin Abdul Latif and his son, Abu Bakar, were heading on Friday to an annual conference on Islamophobia. They are the second pair of imams barred, at least initially, from traveling to the conference that day. Also Friday, Imams Masudur Rahman and Mohamed Zaghloul -- both clad in Islamic attire -- were told to leave the aircraft as it was taxiing toward the runway.