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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
February 06, 2013 at 10:17 AM in Congress, Executive Branch, Law Enforcement / Criminal Law, Intelligence, Military, Terrorism / Counterterrorism, Politics, International Law / Law of War / Human Rights, Constitutional Law, Secrecy / Transparency / FOIA, Middle East / Northern Africa, Analysis | Permalink
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.
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.
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.
January 27, 2013 at 11:42 AM in Judiciary / Cases, Executive Branch, Law Enforcement / Criminal Law, Military, Terrorism / Counterterrorism, International Law / Law of War / Human Rights, Constitutional Law, Detainees / Guantanamo, Terrorist Finance / Material Support, Commentary / Opinion, Analysis | Permalink
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.
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.
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.