Georgetown Security Law Brief

Drone strikes have killed four Americans since 2009

05/23/13: CNN reports counterterrorism drone strikes have killed four Americans overseas since 2009, the US government acknowledged for the first time on Wednesday, one day before President Barack Obama delivers a major speech on related policy. In a letter to Senate Judiciary Committee Chairman Patrick Leahy, Attorney General Eric Holder said the United States specifically targeted and killed one American citizen, al Qaeda cleric Anwar al-Awlaki, in 2011 in Yemen, alleging he was plotting attacks against the United States. The letter provided new details about al-Awlaki's alleged involvement in bomb plots targeting US aviation. Holder also said the Obama administration was aware of three other Americans who had been killed in counterterrorism operations overseas. Holder said Samir Kahn, Abdul Rahman Anwar al-Awlaki and Jude Kenan Mohammed were not targeted by the United States but he did not add more details about their deaths. The letter represents the first US admission that the four were killed in counterterror strikes even though their deaths had been reported in the media.

Debating the legal basis for the War on Terror

05/17/13:  The New York Times reports a top Pentagon official said Thursday that the evolving war against Al Qaeda was likely to continue “at least 10 to 20 years” and urged Congress not to modify the statute that provides its legal basis. “As of right now, it suits us very well,” Michael A. Sheehan, the assistant secretary of defense for special operations, said, referring to the “authorization to use military force,” often referred to as the AUMF, enacted by Congress in 2001. The statute authorized war against the perpetrators of the terrorist attacks of Sept. 11, 2001, and those who harbored them — that is, Al Qaeda and the Taliban. Lawmakers are considering enacting a new authorization, because the original Qaeda network has been largely decimated, while the current threat is increasingly seen as arising from terrorist groups in places like Yemen that share Al Qaeda’s ideology but have no connection to the 2001 attacks. That possibility has elicited a decidedly mixed reaction. Human rights groups that want to see the 12-year-old military conflict wind down fear that a new authorization would create an open-ended “forever war.” Some supporters of continuing the wartime approach to terrorism indefinitely fear that the war’s legal basis is eroding and needs to be bolstered, while others worry that a new statute might contain limits that would reduce the power that the Obama administration claims it already wields under the 2001 version.

Criticized on seizure of records, White House pushes news media shield law

05/16/13:  The New York Times reports under fire over the Justice Department’s use of a broad subpoena to obtain calling records of Associated Press reporters in connection with a leak investigation, the Obama administration sought on Wednesday to revive legislation that would provide greater protections to reporters in keeping their sources and communications confidential. President Obama’s Senate liaison, Ed Pagano, on Wednesday morning called the office of Senator Charles E. Schumer, Democrat of New York, and asked him to reintroduce a version of a bill that he had pushed in 2009 called the Free Flow if Information Act, a White House official said. The bill would create a federal media shield law, akin to ones most states already have, giving journalists some protections from penalties for refusing to identify confidential sources in federal law enforcement proceedings, and generally enabling journalists to ask a federal judge to quash subpoenas for their phone records. Hours later, Attorney General Eric H. Holder Jr. appeared before the House Judiciary Committee for a hearing that covered a wide range of topics but repeatedly returned to the AP phone records. Lawmakers from both parties sought to grill him over why federal investigators secretly used a subpoena this year to obtain a broad swath of toll records — logs of calls sent and received — for several AP bureaus and reporters, without advance notice.

Commentary: Daskal and Vladeck working paper on "After the AUMF"

05/15/13: Lawfare has this post, which links to a working paper authored by our own fellow Jennifer Daskal and Professor Steve Vladeck.  The paper - which is available here - is a more comprehensive effort to explain the authors' view that proposals for an expanded, open-ended Authorization for the Use of Military Force (AUMF), from whatever quarter and with whatever caveats, are unneccessary, counterproductive, and unwise. Instead, we offer out an alternative vision for the next generation of U.S. counterterrorism policy—one in which law enforcement and intelligence-gathering capabilities, with the backstop of self-defense authorities, are the baseline. We hope that this is an approach that Congress will take seriously if and when it decides to revisit the AUMF.  As this is an early draft of the paper, Profs. Daskal and Vladeck both (1) welcome comments of all shapes and sizes (whether online or via e-mail); and (2) beg readers’ indulgence for typos or other early-draft indiscretions.

Phone records of journalists seized by US

05/14/13:  The New York Times reports federal investigators secretly seized two months of phone records for reporters and editors of The Associated Press in what the news organization said Monday was a “serious interference with A.P.’s constitutional rights to gather and report the news.”  The A.P. said that the Justice Department informed it on Friday that law enforcement officials had obtained the records for more than 20 telephone lines of its offices and journalists, including their home phones and cellphones. It said the records were seized without notice sometime this year. The organization was not told the reason for the seizure. But the timing and the specific journalistic targets strongly suggested they are related to a continuing government investigation into the leaking of information a year ago about the Central Intelligence Agency’s disruption of a Yemen-based terrorist plot to bomb an airliner. The disclosures began with an Associated Press article on May 7, 2012, breaking the news of the foiled plot; the organization had held off publishing it for several days at the White House’s request because the intelligence operations were still unfolding. In an angry letter to Attorney General Eric H. Holder Jr. on Monday, Gary Pruitt, the president and chief executive of The A.P., called the seizure, a “massive and unprecedented intrusion” into its news gathering activities. Justice Department regulations call for subpoenas for journalists’ phone records to be undertaken as a last resort and narrowly focused, subject to the attorney general’s personal signoff. Under normal circumstances, the regulations call for notice and negotiations, giving the news organization a chance to challenge the subpoena in court.

FBI says okay to continue questioning terrorism suspect who asks for lawyer

05/01/13: Politico reports the FBI says its agents are on solid legal ground if they continue to question a terrorism suspect who has asked for an attorney, as they reportedly did with Boston Bombing suspect Dzhokhar Tsarnaev.  The February 2011 article by Carl Benoit, a lawyer and FBI Academy instructor, points to two federal appeals court rulings that concluded such questioning was constitutional and that evidence obtained as a result could be used in court.  The article appeared in the Law Enforcement Bulletin, an FBI publication aimed at “the larger policing community.”  The Los Angeles Times reported last week that Tsarnaev “asked several times for a lawyer, but that request was ignored.”  DOJ’s current policy on questioning terror suspects without Miranda warnings does not give explicit guidance, at least publicly, about how to proceed if a suspect invokes his right to counsel.

DOJ asks court to shut down suit over Afghan war memoir

05/01/13: The Blog of Legal Times reports the Justice Department has renewed its effort to shut down a lawsuit in Washington over the scope of information a former US defense intelligence officer can publish in a memoir about service in the war in Afghanistan.  DOJ lawyers said in court papers filed April 26 that the government has determined that some of the details in the book, Operation Dark Heart, written by Anthony Shaffer, are classified and cannot be publicly disclosed.  “[T]here is no First Amendment right to publish classified information,” DOJ lawyer Scott Risner wrote.  Shaffer’s book, DOJ said, reveals “intelligence activities, sources and methods, as well as information about military plans and the foreign activities of the United States that … could reasonably be expected to cause serious identifiable damage to our national security.”

Panel seeks to fine tech companies for noncompliance with wiretap orders

04/30/13:  The Washington Post reports a government task force is preparing legislation that would pressure companies such as Face­book and Google to enable law enforcement officials to intercept online communications as they occur, according to current and former US officials familiar with the effort. Driven by FBI concerns that it is unable to tap the Internet communications of terrorists and other criminals, the task force’s proposal would penalize companies that failed to heed wiretap orders — court authorizations for the government to intercept suspects’ communications. But law enforcement officials say the cloak drawn on suspects’ online activities — what the FBI calls the “going dark” problem — means that critical evidence can be missed. “The importance to us is pretty clear,” Andrew Weissmann, the FBI’s general counsel, said last month at an ANA discussion on legal challenges posed by new technologies. “We don’t have the ability to go to court and say, ‘We need a court order to effectuate the intercept.’ Other countries have that. Most people assume that’s what you’re getting when you go to a court.” There is currently no way to wiretap some of these communications methods easily, and companies effectively have been able to avoid complying with court orders. While the companies argue that they have no means to facilitate the wiretap, the government, in turn, has no desire to enter into what could be a drawn-out contempt proceeding. Under the draft proposal, a court could levy a series of escalating fines on firms that fail to comply with wiretap orders. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. Instead of setting rules that dictate how the wiretap capability must be built, the proposal would let companies develop the solutions as long as those solutions yielded the needed data. That flexibility was seen as inevitable by those crafting the proposal, given the range of technology companies that might receive wiretap orders. Smaller companies would be exempt from the fines. The proposal, however, is likely to encounter resistance, said industry officials and privacy advocates.

 

Cairo court rejects Mubarak release request

04/28/13: Al Jazeera reports Cairo’s criminal court has rejected ousted Egyptian President Hosni Mubarak’s second appeal calling for his release pending the investigation of illicit gain charges, granting the prosecution’s request to keep him detained.  The Cairo Criminal Court on Sunday ordered Mubarak to remain in jail for fifteen days while charges are probed; Mubarak can appeal the decision.  Mubarak is being detained pending the investigations of other corruption charges including taking funds allocated for maintenance of the presidential palaces for himself and his family.  The long-time autocrat was ousted during a 2011 public uprising and has spent more than two years in detention without a final verdict in the case, which alleges that he is responsible for the deaths of nearly 900 protesters during the uprising.

Despair drives Guantánamo detainees to revolt

04/25/13:  The New York Times reports in the early afternoon quiet, guards in camouflage fatigues walked the two-tiered cellblocks of Camp Six, where the most cooperative of the 166 terrorism suspects held in the military prison here are housed. From a darkened control room, other guards watched banks of surveillance monitors showing prisoners in white clothing — pacing, sleeping or reading — in their cells. But the relative calm on display to visiting reporters last week was deceiving. Days earlier, guards had raided Camp Six and locked down protesting prisoners who had blocked security cameras, forbidding them to congregate in a communal area. A hunger strike is now in its third month, with 93 prisoners considered to be participating — more than half the inmates and twice the number before the raid. “They are not done yet, and they will not be done until there is more than one death,” said a Muslim adviser to the military, identified as “Zak” for security reasons, who fears there may be suicides. Only one thing, he predicted, will satisfy the detainees: if someone is allowed to leave. The spark for the protest is disputed. Detainees, through their lawyers, say that when guards conducted a search of their cells on Feb. 6, they handled their Korans in a disrespectful way. Prison officials dispute that. But both military officials and lawyers for the detainees agree about the underlying cause of the turmoil: a growing sense among many prisoners, some of whom have been held without trial for more than 11 years, that they will never go home.

Analysis: Four reasons Senators Graham and McCain are wrong

04/20/13:  Lawfare posted, in an article by Benjamin Wittes, that Sens. Lindsey Graham and John McCain were quick out the box last night in declaring that the Obama administration should hold Dzhokar Tsarnaev in military detention: "Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes... Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks." Bobby quickly explained why this is both unncessary and a bad idea; this very find Wall Street Jouranl blog sketches out why it would pose legal problems as well. But the idea has had legs on Twitter, so I want to bring together in one place  and explain the several distinct but overlapping reasons why it would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant. First and most important, Tsarnaev may not be an enemy combatant.   Second, assuming for a moment that the facts as they emerge would support an enemy combatant designation, Tsarnaev is reportedly a naturalized American citizen, and the government’s appetite for the detention of American citizens under the laws of war has waned—and rightly so. This began under the Bush administration, which tried twice—in the early cases of Yaser Hamdi and Jose Padilla—to detain US citizens under the laws of war and ultimately backed down both times. The question of whether such detention is legally appropriate for a US citizen captured by law enforcement remains an open one.  He was certainly captured in the United States, and the military detention of domestic captures is problematic for many of the same reasons that the detention of the citizen poses difficulties. Fourth, military detention offers no clear advantages in this case and has several big disadvantages. 

Second Bombing Suspect caught after frenzied hunt paralyzes Boston

04/20/13:  The New York Times reports the teenage suspect in the Boston Marathon bombings, whose flight from the police after a furious gunfight overnight prompted an intense manhunt that virtually shut down the Boston area all day, was in serious condition at a Boston hospital Saturday morning after the police found him in nearby Watertown, Mass., officials said.  The suspect, Dzhokhar A. Tsarnaev, 19, was found hiding in a boat just outside the area where the police had been conducting door-to-door searches all day, the Boston police commissioner, Edward Davis, said at a news conference Friday night. “A man had gone out of his house after being inside the house all day, abiding by our request to stay inside,” Mr. Davis said, referring to the advice officials gave to residents to remain behind locked doors. “He walked outside and saw blood on a boat in the backyard. He then opened the tarp on the top of the boat, and he looked in and saw a man covered with blood. He retreated and called us.” “Over the course of the next hour or so we exchanged gunfire with the suspect, who was inside the boat, and ultimately the hostage rescue team of the FBI made an entry into the boat and removed the suspect, who was still alive,” Mr. Davis said. He said the suspect was in “serious condition” and had apparently been wounded in the gunfight that left his brother dead. A federal law enforcement official said Mr. Tsarnaev would not be read his Miranda rights because the authorities would invoke the public safety exception to question him extensively about other potential explosive devices or accomplices and to try to gain intelligence.

One of two suspects in Boston Bombing killed

04/19/13:  The Associated Press reports the two suspects in the Boston Marathon bombing killed an MIT police officer and hurled explosives at police in a car chase and gun battle overnight that left one of them dead and his brother on the loose, authorities said Friday as thousands of officers swarmed the streets in a manhunt that all but paralyzed the Boston area. The suspects were identified by law enforcement officials and a family member as Dzhokhar and Tamerlan Tsarnaev, brothers from a Russian region near Chechnya, which has been plagued by an Islamic insurgency that has carried out deadly bombings. They lived near Boston and had been in the US for about a decade, an uncle said. Tamerlan Tsarnaev, a 26-year-old who had been known to the FBI as Suspect No. 1 and was seen in surveillance footage in a black baseball cap, was killed overnight, officials said. His 19-year-old brother — dubbed Suspect No. 2 and seen wearing a white, backward baseball cap in the images from Monday's deadly bombing at the marathon finish line — escaped. The law enforcement officials spoke on condition of anonymity because of the sensitivity of the unfolding case. Authorities in Boston suspended all mass transit and warned close to 1 million people in the entire city and some of its suburbs to stay indoors as the hunt went on. Businesses were asked not to open. People waiting at bus and subway stops were told to go home. From Watertown to Cambridge, police surrounded various buildings as they searched for Suspect No. 2. Around 8:30 a.m., officers sprinted toward a house in Watertown, and reporters were pushed back more than a block as helicopters buzzed overhead. SWAT teams, FBI agents and armored vehicles assembled at the scene as sharpshooters across the street trained their guns at the house.

Pentagon accused of data breach in Gitmo ship case

04/11/13:  The Miami Herald reports the lawyer for a man accused in an attack on a US warship said Wednesday that a Pentagon computer server failure resulted in the loss of a large cache of documents used by military tribunal defense lawyers. Richard Kammen, a member of the team representing an alleged senior al-Qaida figure facing a war crimes tribunal at the US base in Guantanamo Bay, Cuba, also said officials mishandled more than 500,000 defense lawyer emails and appear to be monitoring their Internet searches as they prepare their cases. Kammen, an Indianapolis defense lawyer appointed to defend Abd al-Rahim al-Nashiri, has urged a military judge to cancel a hearing at Guantanamo next week because of the alleged breaches of attorney-client privilege and the server failure. The motion remains under seal until authorities review it for potential classified information. The lawyer said in an interview that the court needs to establish the extent of any breach of the attorney-client privilege. This is not the first time that tribunal defense teams have alleged improper monitoring. In February, proceedings in the case of five men charged in the Sept. 11 attacks were thrown into disarray after lawyers discovered microphones apparently disguised to look like smoke detectors in the rooms where they meet their clients. The military said it would disconnect the devices but said they had not been used to eavesdrop or record meetings between prisoners and their lawyers. Kammen said he was uncertain when the server failure occurred, but said it involved about 7 gigabytes of data, or many thousands of pages of documents. He said information pertaining to his case and others was recovered but defense teams still need time to review files to make sure nothing was lost or changed. The emails were turned over to prosecutors by mistake after the Court of Military Commissions Review asked for certain prosecution emails and hundreds of thousands from the defense were turned over as well, Kammen said. The defense cannot prepare their case if they suspect their work is being monitored by the prosecution, he added.

Kenya Supreme Court upholds election victory of accused war criminal Kenyatta

03/31/13: The New York Times reports Kenya’s Supreme Court Saturday unanimously upheld the election victory of Uhuru Kenyatta as the country’s president, dismissing allegations that the vote had been rigged.  But almost immediately, protests erupted in some opposition strongholds, with stone-throwing mobs squaring off against Kalashnikov-toting police officers – and Kenyatta’s legal battles are hardly over.  As Kenya’s next president, Kenyatta will soon be summoned to the International Criminal Court in The Hague to stand trial on charges of crimes against humanity, accused of using his vast family fortune to bankroll death squads during the chaos that exploded after Kenya’s last disputed election in 2007.  He says he is innocent and that the charges are based on gossip, but many Western officials believe otherwise.  Still, the US may now have little choice but to work with Kenyatta.

Egypt satirist arrested for insulting President, released on bail

03/31/13: Reuters reports Egyptian prosecutors questioned the country’s most prominent television satirist Sunday over allegations he insulted President Mohammed Morsi and Islam, a case that has increased opposition fears of a crackdown on dissent.  Bassem Youssef turned himself in after the prosecutor general issued an arrest warrant for him on Saturday.  Youssef rose to fame after the uprising that swept Hosni Mubarak from power in 2011, with a satirical online show.  His program, which has been compared the US Daily Show with Jon Stewart, is now broadcast on Egyptian TV.  The comedian is accused, among other things, of undermining the standing of the Islamist President Morsi.  The arrest warrant was issued after at least four legal complaints filed by Morsi supporters.

Judges question the use of cell phone tracking devices

03/28/13:  The Wall Street Journal reports Judges in California have expressed concerns about the federal use of cellphone tracking devices known as “stingrays,” suggesting that investigators have been using the technology without explaining to judges exactly what they are doing, according to internal Justice Department emails. Stingrays are devices that simulate a cellphone tower and can locate a phone even if it isn’t making a call. Several federal judges across the country have now expressed concerns about similar cellphone location technology, particularly because federal officers have been using it after getting lower court orders that don’t meet the same standard as search warrants. In California, emails among several U.S. attorneys in 2011 indicate that this has become what they describe as a “problem” in that state as well.  The WSJ Blog also provides more details.

Zimbabwe High Court orders release of human rights lawyer

03/25/13: The Miami Herald reports Zimbabwe’s High Court Monday ordered the immediate release of a prominent human rights lawyer detained for eight days for obstructing justice.  Court officials said Beatrice Mtetwa was asked to post a $500 bail and her release papers will be prepared Monday.  High Court Judge Joseph Musakwa ruled that Mtetwa was following professional legal procedures when she demanded to see a search warrant from police at the offices of four officials in Prime Minister Morgan Tsvangirai’s party.  Those officials are accused of illegally compiling information on high level corruption and will appeal for bail later Monday.  Mtetwa and the four officials deny any wrongdoing.  Lawyers’ groups have cited the arrests as intimidation against opponents of President Robert Mugabe by loyalist police and officials ahead of elections around July.

Court says South Korean Dictator, father of current President, violated Constitution

03/21/13:  The New York Times reports three emergency decrees issued in the 1970s by South Korea’s dictator at the time, Park Chung-hee, were unconstitutional, the nation’s Constitutional Court ruled on Thursday, in a landmark verdict on the legacy of the current president’s father. The ruling, which followed three years of deliberations, was closely watched in South Korea, which remains deeply divided over Mr. Park, whose eldest daughter, Park Geun-hye, was sworn in as president last month. Mr. Park, a former major general who led South Korea’s economic rise from the ashes of the 1950-53 Korean War and who died in 1979, remains the country’s most popular former president, but he is also the object of considerable hatred because of his regime’s brutality. To many of his detractors, the decrees that the court ruled unconstitutional — Emergency Decrees 1, 2 and 9 — symbolized his iron-fisted 18-year rule. Among other things, they outlawed criticism of his government, political protest rallies and the spreading of rumors deemed unhealthy by the government, as well as any reporting on such activities by the press. Those accused of violating the restrictions could be arrested without warrants and court-martialed. Thousands of students and other dissidents were arrested and in many cases tortured, according to victims, human rights groups and investigations by later, democratically elected governments.

 

Yemen begins dialogue over new constitution

03/18/13: Al Jazeera reports Yemen has launched a UN-backed national dialogue aimed at paving the way for a new constitution and elections.  At least 500 representatives of Yemen’s various political groups, including secessionists in the south, Zaidi Shi‘a rebels in the north, and civil society representatives, are taking part in the dialogue in Sanaa.  The participants in the dialogue aim to draft a new constitution and prepare for general elections in February 2014, after a two-year transition led by President Abdrabuh Mansur Hadi.  Yemen, the only country where the Arab Spring revolt led to a negotiated settlement, is holding the dialogue as part of a UN-brokered deal that eased former president Ali Abdullah Saleh out of office following an 11-month uprising against his 33-year rule.

California: Judge Strikes Down Law on National Security Letters

03/16/13:  The New York Times reports a federal judge on Friday struck down a law that allows the Federal Bureau of Investigation to secretly seize subscriber information from Internet companies and other communications service providers without a court warrant. The ruling, by Judge Susan Illston of Federal District Court in San Francisco, struck down the law because it forbids companies from disclosing that they had received such an order, called a National Security Letter, making the statute “impermissibly overbroad” under the First Amendment, she wrote. She also struck down a statute on legal challenges by recipients of the security letters, but stayed her ruling to allow the government to appeal.

Hungary approves disputed Constitutional amendment

03/12/13:  The Miami Herald reports Hungarian lawmakers on Monday overwhelmingly approved a long amendment to the constitution which critics say threatens certain democratic checks and balances. After smaller protests during the day, several thousand people gathered in the evening near the offices of President Janos Ader, asking him to veto the amendment. The bill enshrines in the Fundamental Law, as the new constitution is called, a number of policies that were previously been struck down as unconstitutional by the country's highest court. The vote drew swift reaction from European institutions, which along with the United States and many Hungarian legal experts and civic groups, say it puts too much unchecked power in government hands. Among the government policies struck down by the Constitutional Court over the past months and now added to the Fundamental Law are the possibility for local authorities to fine or jail homeless people living in public areas, a ban on political campaign ads on commercial radio and TV, and a contract obliging university students who accept state scholarships to work in Hungary for years after graduation. The amendment also prevents the president or the court from reviewing changes to the Fundamental Law other than for procedural errors and practically wipes out 20 years of jurisprudence by banning the court to refer to rulings or reasoning given while the previous constitution - originally a Stalin-era document nearly fully re-written in 1989 as communism ended in Hungary - was in force.
 

DC Circuit seeks reply on Government's petition for rehearing in war crimes case

03/11/13: SCOTUSBlog reports the US Court of Appeals for the District of Columbia Circuit on Friday afternoon asked lawyers for a foreign national convicted of war crimes at Guantánamo Bay to answer the Obama Administration’s plea for a new look by that court at the powers of the military commissions to try terrorist suspects.  The order does not assure that the court will pursue that issue further, but at least it raises the prospect that it could, as a prelude to a likely Supreme Court appeal.  On Tuesday, the Administration asked for en banc review the validity of the convictions of Yemeni national Ali Hamza Ahmad Suliman al Bahlul.  At the center of the controversy is a ruling by the court last October in a different case that military commissions cannot try offenses that took place before they were designated as war crimes by the Military Commissions Act of 2006.  The DC Circuit held the Act didn’t reach such offenses, concluding that otherwise a serious issue would arise under the Constitution’s Ex Post Facto Clause.  The government counters the offenses previously existed and were simply codified by Congress, and has asked the DC Circuit en banc to revisit its previous ruling.  In 2006, four members of the Supreme Court held in Hamdan v. Rumsfeld that the crime at issue - conspiracy - was not an internationally accepted war crime, but there was no majority holding on the issue.

Analysis: How a US citizen came to be in America's cross-hairs

03/10/13: The New York Times has this in-depth piece reporting on the hunt for Anwar al-Awlaki, the American citizen and al-Qaeda cleric who was killed by a CIA drone strike in Yemen in September 2011.  The account of what led to the Awlaki strike fills in new details of the legal, intelligence and military challenges faced by the Obama administration in what proved to be a landmark episode in American history and law.  The strike that killed Awlaki — a terrorist leader whose death lawyers in the Obama Administration believed to be justifiable — also killed Samir Khan, though officials had judged he was not a significant enough threat to warrant being specifically targeted.  The next month, another drone strike mistakenly killed Awlaki’s 16-year-old son, Abdulrahman, who had set off into the Yemeni desert in search of his father.  Within just two weeks, the American government had killed three of its own citizens in Yemen.  Only one had been killed on purpose.

Republicans blast New York trial for al-Qaeda spokesman

03/10/13: The Hill reports the Obama Administration’s decision to try former al-Qaeda spokesman Sulaiman Abu Ghaith, a relative of Osama bin Laden, in the US District Court for the Southern District of New York has sparked criticism from Republicans, who say he should be held at the Guantánamo Bay prison camp and tried by a military tribunal, not an Article III court.  “Gitmo, a naval vessel, Guam, anywhere other than New York, and anything other than a civilian trial,” said Congressman Trey Gowdy (R-S.C.).  Gowdy said a military tribunal would offer distinct advantages over a civilian jury trial, namely that military courts are made up of military officers and don’t require unanimous jury verdicts for conviction, although trials of terrorists have had much more success in regular federal courts than military ones.

Decades-old illegal wiretap inspires demand on CIA for more information

03/04/13: The Washington Post has this story about Jim Scott, the son of the late journalist Paul Scott, who is involved in a dispute with the CIA over the Agency’s spying on his father in the 1960’s.  In 2007 the CIA declassified a trove of documents popularly called “the family jewels,” which revealed the Agency’s unlawful surveillance of the Scott home in an operation code-named “Project Mockingbird.”  For the past five years, Jim has sought to declassify and make public any documents Langley might still have on his father and why he was wiretapped.  So far, the CIA has released to Jim a handful of intriguing documents, but Jim has been trying to compel the agency to cough up more. A federal declassification review panel is reviewing Jim’s case.  Paul Scott died in 2001.

Guantanamo Bay official reveals hidden microphone in meeting room

02/13/13: The Miami Herald reports a senior official for the Guantánamo Bay prison admitted Tuesday that the Government had placed a hidden microphone inside a meeting room but that he was assured it was not used to monitor the private conversations that prisoners have with their lawyers.  Navy Captain Thomas Welsh, the senior legal adviser to Guantánamo’s commander, conceded the microphone appeared to be intended to resemble a smoke detector in the ceiling of a meeting room for men labeled “high-value"” detainees by the Pentagon and held in a special top security camp.  “I agree with your point that it was not recognizable, it was not readily identifiable,” Welsh said on cross-examination by a detainee’s lawyer.  The admission came during a pretrial hearing.

Former SecDef Gates backs drones, but supports more oversight

02/11/13: CNN reports former Defense Secretary Robert Gates argued Sunday number of innocent victims of drone strikes remains “extremely small” and doesn’t outweigh the benefits of using drones against al-Qaeda operatives.  But Gates said a better system of checks and balances could be constructive when targeting Americans, aligning himself with lawmakers concerned about unfettered power in the hands of the President.  Gates served under George W. Bush during the beginnings of the drone program and later under President Barack Obama as the use of drones spiked.  Recently lawmakers, both Democrats and Republicans, have forcefully questioned the use and oversight of the lethal devices.  “I’m a big advocate of drones,” Gates said, that they can limit collateral damage more effectively than “any other weapons system.”

9/11 suspects' lawyers fear government eavesdropping at Guantanamo

02/11/13: The Miami Herald reports lawyers for the five Guantánamo Bay prisoners charged in the September 11 attacks want to know if government officials have been eavesdropping on their private conversations with the defendants.  The evidence for any such listening, the subject of a hearing scheduled to start Monday, is circumstantial.  At a hearing January 28, the sound system in the Guantánamo courtroom was suddenly cut.  The judge, Army Colonel James Pohl, later revealed that a government official following the proceedings from outside the courtroom intervened to prevent the potential release of classified information.  Pohl later said the information was not classified; he ordered the government to disconnect any equipment that could unilaterally cut the sound and released a transcript of the censored remarks.  But the incident has made defense counsel concerned about possible monitoring.

Analysis: Debating a court to vet drone strikes

02/10/13: The New York Times reports a proposal is gaining steam that would require court approval before targeting American citizens overseas for lethal force.  The idea is to apply the model exemplified by the Foreign Intelligence Surveillance Court – created by Congress so that surveillance had to be justified to a federal judge – to the targeted killing of suspected terrorists, or at least of American suspects.  A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts.  But with the war in Afghanistan winding down, al-Qaeda fragmenting into hard-to-read offshoots, and the 2001 terrorist attacks receding into the past, they said, it is time to consider how to forge a new, trustworthy and transparent system to govern lethal counterterrorism operations.

Analysis: Debating a court to vet drone strike

02/09/13:  The New York Times reports since 1978, a secret court in Washington has approved national security eavesdropping on American soil — operations that for decades had been conducted based on presidential authority alone.  Now, in response to broad dissatisfaction with the hidden bureaucracy directing lethal drone strikes, there is an interest in applying the model of the Forieign Intelligence Surveillance Act court to the targeted killing of suspected terrorists, or at least of American suspects.  A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts. But with the war in Afghanistan winding down, Al Qaeda fragmenting into hard-to-read offshoots and the 2001 terrorist attacks receding into the past, they said, it is time to consider how to forge a new, trustworthy and transparent system to govern lethal counterterrorism operations.

Commentary: President Obama, did or did you not kill Anwar al-Awlaki?

02/08/13:  The Washington Post published an op-ed by David Cole: there are plenty of problems with President Obama's targeted killings in the war against terrorism: The policy remains secret in most aspects, involves no judicial review, has resulted in the deaths of innocent civilians, has been employed far from any battlefield and has sparked deep anti-American resentment in countries where we can ill afford it.  But when it comes to the particular legal issue raised in a recently leaked "white paper" from the Justice Department — namely, whether it is legal to kill Americans with drones — one problem looms largest: The policy permits the government to kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.  There may be extraordinary occasions when killing a citizen is permissible, but it should never be acceptable for the government to refuse to acknowledge the act. How can we be free if our government has the power to kill us in secret? And how can sovereign authority be accountable to the people if the sovereign can refuse to own up to its actions?

Five things we learned from John Brennan's confirmation hearing

02/08/13:  CNN reports John Brennan came well-prepared Thursday and held his own during questioning at his Senate confirmation hearing to become the 21st director of the Central Intelligence Agency. It was in stark contrast to what was considered by many as an ill-prepared, lethargic performance by defense secretary nominee Chuck Hagel at his confirmation hearing last week.  Democrats on the Senate Intelligence Committee mostly grilled Brennan about his knowledge of the CIA's controversial interrogation and detention program and the lethal targeting of suspected terrorists. Republicans tended to focus on leaks of secret information about counterterrorism activities.  While on one hand Brennan was forceful with his answers, on the other he seemed very careful with his choice of words.

Congress to see memo backing drone attacks on Americans

02/07/13:  The New York Times reports the White House on Wednesday directed the Justice Department to release to the two Congressional Intelligence Committees classified documents discussing the legal justification for killing, by drone strikes and other means, American citizens abroad who are considered terrorists.  The White House announcement appears to refer to a long, detailed 2010 memo from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, an American-born cleric who had joined Al Qaeda in Yemen. He was killed in a CIA drone strike in September 2011. Members of Congress have long demanded access to the legal memorandum.  The decision to release the legal memo to the Intelligence Committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans.  The announcement also came on the eve of the confirmation hearing scheduled for Thursday afternoon for John O. Brennan, President Obama’s choice to be director of the CIA, who has been the chief architect of the drone program as Mr. Obama’s counterterrorism adviser.

Analysis: Report on targeted killing spurs desire for less secrecy

02/06/13: The New York Times has this piece discussing yesterday’s big news revealing the “white paper” describing the Obama Administration’s legal justifications for the use of lethal force against American citizens suspected of being unlawful combatants abroad (the paper is here courtesy of NBC News).  This piece discusses the Administration’s having kept its arguments secret, and the fact that its disclosure is fueling greater demand for information.

NYPD sued for spying on Muslims

02/05/13:  The Washington Times reports civil rights lawyers filed a suit against the New York Police Department on Monday, alleging law enforcement has created a climate of fear with its “widespread and intense” surveillance of Muslims.  Lawyers characterize New York's police surveillance of Muslims as an “all-encompassing dragnet” for intelligence, based on false premises — that “conservative Muslim beliefs and participation in Muslim organizations are themselves bases for investigation,” The Guardian writes.  Some of the complaints: The NYPD has wrongly sent spies into mosques to photograph and take notes. And a NYPD special unit used overly aggressive techniques to monitor restaurants and bookstores frequented by Muslims, The Guardian reported.

Report says 54 countries helped facilitate CIA rendition program

02/05/13:  The New York Times reports some 54 countries helped facilitate the CIA’s secret detention, rendition and interrogation program in the years after the Sept. 11, 2001, terrorist attacks, according to a new human rights report that documents broad international involvement in the American campaign against Al Qaeda.  The report, to be made public Tuesday by the Open Society Justice Initiative, a rights advocacy group, is the most detailed external account of other countries’ assistance to the United States, including things like permitting the CIA to run secret interrogation prisons on their soil and allowing the agency to use their airports for refueling while moving prisoners around the world.  The report identifies 136 people who had been held or transferred by the CIA, the largest list compiled to date, and describes what is known about when and where they were held. It adds new detail to what is known about the handling of both dedicated Qaeda operatives and innocent people caught up by accident in the global machinery of counterterrorism.

Analysis: DOJ White Paper on targeted killing of US citizens

02/05/13:  Opinio Juris posted two articles by Kevin Jon Heller analyzing the legal argumetns in the DOJ's White Paper on targeted killing of US citizens.  One discusses the requirement for organization in non-international armed conflict and the other discusses imminence and capture.

US memo details views on killing US citizens in Al Qaeda

02/05/13:  The New York Times reports Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible, according to a 16-page document made public on Monday.  The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies. Its legal analysis — citing a national right to self-defense as well as the laws of war — closely tracks the rationale in that document, as described to The New York Times in October 2011 by people who had read it.

Obama Administration concludes President has broad cyberwarfare powers

02/04/13: The New York Times reports a secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a preemptive strike if the United States detects credible evidence of a major digital attack looming from abroad.  That decision was among several reached in recent months as the administration moves, in the next few weeks, to approve the nation’s first rules for how the military can defend, or retaliate, against a major cyberattack.  The rules will be highly classified, like those governing drone strikes.  John Obama’s chief counterterrorism adviser and his nominee to run the Central Intelligence Agency, played a central role in developing the administration’s policies regarding both drones and cyberwarfare, the two newest and most politically sensitive weapons in the American arsenal.

Guantanamo defense lawyers request 48-hour visits

01/30/13: The New York Times reports defense lawyers for Khalid Sheikh Mohammed and four others accused of involvement in the September 11 attacks asked a military judge in Guantánamo Bay, Cuba, on Tuesday to let them stay in prison with their clients for 48-hour periods every six months.  Military said the defense should be allowed only a single two-hour visit.  The requested visit was one of several issues raised at a pretrial hearing that focused on information that could become a central focus if the defendants are eventually convicted and face the possibility of a death sentence.  Defense lawyers urged the judge overseeing the case, Army Colonel James Pohl, to allow them to document their clients’ lives and behavior in custody.  Such information could help them develop mitigating arguments against execution.

Analysis: Who decides the laws of war?

01/27/13: The New York Times today features this piece by Charlie Savage discussing Brigadier General Mark S. Martins, the chief prosecutor of the military commissions system who is leading the case against Khalid Sheikh Mohammed and four other Guantánamo Bay detainees accused of aiding the September 11 attacks.  General Martins is currently involved in a dispute with the Justice Department as to whether to defend a past conviction by those tribunals on a charge of conspiracy after that charge was invalidated by the US Court of Appeals for the District of Columbia Circuit in a separate case.  The dispute involves the thorny question, which has vexed national security law going back to the decision in Hamdan v. Rumsfeld in 2006, as to whether conspiracy to commit a war crime is a standalone offense under the laws of war.  On the other hand, Benjamin Wittes at Lawfare argues the dispute between General Martins and DOJ has less to do with substantive questions about the laws of war and as more about tactical legal positions.  Both pieces are worth a read.

Lawsuit permitted over immigration policy

01/26/13: The New York Times reports a federal judge in Dallas has ruled that a group of federal immigration agents can proceed with a lawsuit that seeks to halt an Obama administration program granting reprieves from deportation to young illegal immigrants. In a suit filed in August, several Immigration and Customs Enforcement agents argued that the administration had exceeded its constitutional authority in granting the reprieves, and said they were being forced to violate the law by obeying instructions to refrain from deporting the young immigrants. Judge Reed O’Connor rejected a Justice Department request to dismiss the case.

Senator Wyden asks John Brennan for legal opinions on killings of Americans

01/15/13:  The New York Times reports A Democratic member of the Senate Intelligence Committee demanded Monday that he and other committee members be allowed to review secret Justice Department legal opinions justifying the killing of American citizens in counterterrorism operations.  In a letter to Brennan, President Obama’s counterterrorism adviser and his nominee for CIA director, Senator Ron Wyden of Oregon said he had asked repeatedly but unsuccessfully to see the legal opinions, though he added that he had been given “some relevant information on the topic.”  The administration has fought in court to keep such legal opinions secret, including one justifying the killing of Anwar al-Awlaki, an American-born cleric and Al Qaeda propagandist who was killed in a drone strike in Yemen in 2011. A federal judge in Manhattan ruled on Jan. 2 against the ACLU and The NYTs, which sought the opinions under FOIA and plan to appeal the ruling.

Obama disputes limits on detainee transfers imposed in defense bill

01/04/13:  The New York Times reports President Obama set aside his veto threat and late Wednesday signed a defense bill, the National Defense Authorization Act of 2013, that imposes restrictions on transferring detainees out of military prisons in Afghanistan and Guantánamo Bay, Cuba. But he attached a signing statement claiming that he has the constitutional power to override the limits in the law. Lawmakers imposed statutory restrictions on transfers of prisoners to other countries or into the United States, either for continued detention or for prosecution.

Congressional negotiators drop ban on indefinite detention for citizens, Aids say

12/20/12:  The New York Times reports lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations. The Senate approved that amendment in a surprise vote last month. While it appeared to be a rare step to bolster protections for domestic civil liberties, rights groups opposed it because it did not cover other categories of people so they feared that it would implicitly open the door to using the military for domestic police purposes.

Senate panel approves findings critical of detainee interrogations

12/14/12:  The New York Times reports the Senate Intelligence Committee on Thursday approved a highly critical, classified report on the CIA's detention and interrogation program, the most comprehensive review of the brutal treatment of Qaeda prisoners in the years after the Sept. 11, 2001, terrorist attacks. The committee voted 9 to 6 in a closed meeting, mostly along party lines.  The long-awaited 6,000-page report contains 20 official conclusions and 35,000 footnotes.  The chairwoman stated the report, “includes details of each detainee in CIA custody, the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy — or inaccuracy — of CIA descriptions about the program to the White House, Department of Justice, Congress and others.”

DOD General Counsel Johnson on conditions for the end of the conflict

11/30/12:  OpinioJuris posted part of Department of Defense General Counsel Johnson's speech related to the conditions for the end of the conflict with al Qaeda.  "I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed."

White House presses for clear standards and procedures on drone use

11/25/12: The New York Times reports that the Obama Administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that in the event the President lost his bid for reelection, his successor would inherit clear standards and procedures.  Despite Obama’s victory, the Administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.  Though publicly the Executive Branch presents a united front on the use of drones, behind the scenes there is longstanding tension.  The Defense Department and the CIA continue to press for greater latitude to carry out strikes; Justice Department and State Department officials, as well as White House counterterrorism chief John O. Brennan, have argued for restraint.

Egypt judges condemn Morsi's new powers, call for judicial strike

11/25/12: Al Jazeera reports Egypt’s highest judicial authority has criticized President Mohamed Morsi’s move to grant himself sweeping new powers that would protect his decisions from being challenged.  In an emergency meeting on Saturday, the Supreme Judicial Council urged Morsi “to distance this decree from everything that violates the judicial authority.”  Morsi has also given himself sweeping powers that allowed him to sack the unpopular prosecutor-general and opened the door for a retrial for former President Hosni Mubarak and his aides.  Former prosecutor-general Abdel-Meguid Mahmoud said Saturday he is willing to go to court to dispute Morsi’s decision and warned “against any attempt to disrupt the work of the judicial system.”  The judges also called for a “suspension of work all in courts and prosecution administrations” in protest against the decree.