All posts by Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate

Leon Panetta appeared on PBS Newshour not long after the raid that killed Osama bin Laden. He was the Director of the Central Intelligence Agency at that time, and during the course of the interview he took up the question of the CIA’s role in the attack. It had been “a ‘title 50’ operation,” he explained, invoking the section of the U.S. Code that  authorizes the activities of the CIA. As a result, Panetta added, he had exercised overall “command.”

This surely confused at least some observers. The mission had been executed by U.S. Navy SEALs from Joint Special Operations Command (JSOC) after all, and both operational and tactical command seemed to have resided at all times with JSOC personnel. But for those who had been following the evolution of the CIA and JSOC during the post-9/11 period, Panetta’s account would not have been surprising. The bin Laden raid was, from this perspective, merely the latest example of an ongoing process of convergence among military and intelligence activities, institutions, and
authorities.

 

United States v. Boyd (E.D.N.C. Sep. 14, 2011) (yes, another guilty

* United States v. Boyd (E.D.N.C. Sep. 14, 2011) (yes, another guilty plea)

Well, I spoke to soon.  Another DOJ win in a terrorism case. You have to admire the concatenation of inchoateness in this particular charge: aiding-and-abetting a conspiracy to provide material support to terrorists, where that underlying material support offense in turn is predicated on support being provided to persons involved in a conspiracy to commit murder abroad in violation of 18 USC 956(a).  Restated, that’s (i) aiding and abetting (ii) a conspiracy to provide (iii) material support to (iv) a conspiracy to (v) commit murder abroad).  Whew!  From the press release:

RALEIGH, N.C. – Dylan Boyd, aka “Mohammed,” pleaded guilty today in federal court in New Bern, N.C., to one count of aiding and abetting a conspiracy to provide material support to terrorists, announced Lisa Monaco, Assistant Attorney General for National Security; Thomas G. Walker, U.S. Attorney for the Eastern District of North Carolina; M. Chris Briese, Special Agent-in-Charge of the FBI Charlotte Division; and John F. Khin, Special Agent-in-Charge, Southeast Field Office, Defense Criminal Investigative Service (DCIS).

Boyd, 24, a U.S. citizen and resident of North Carolina, was first charged along with seven other defendants in a federal indictment returned on July 22, 2009.  He was arrested on July 29, 2009, and the indictment was unsealed.  On Sept. 24, 2009, a federal grand jury returned a superseding indictment in the case.

According to the superseding indictment, from before November 2006 through at least July 2009, Boyd aided and abetted other named defendants and others who conspired to provide material support and resources to terrorists, including currency, training, transportation and personnel.  The object of the conspiracy, according to the indictment, was to advance violent jihad, including supporting and participating in terrorist activities abroad and committing acts of murder, kidnapping or maiming persons abroad.

The indictment alleges that, as part of the conspiracy, Boyd assisted other defendants as they prepared themselves to engage in violent jihad and were willing to die as martyrs.  They also allegedly offered training in weapons and financing, and helped arrange overseas travel and contacts so others could wage violent jihad overseas.  In addition, as part of the conspiracy, the defendants raised money to support training efforts, disguised the destination of such monies from the donors and obtained assault weapons to develop skills with the weapons.  Some defendants also allegedly radicalized others to believe that violent jihad was a personal religious obligation.

At sentencing, Boyd faces a potential 15 years in prison followed by three years of supervised release for aiding and abetting a conspiracy to provide material support to terrorists.

Boyd’s father and co-defendant, Daniel Patrick Boyd, pleaded guilty on Feb. 9, 2011, to one count of conspiracy to provide material support to terrorists and one count of conspiracy to murder kidnap, maim and injure persons in a foreign country.  Boyd’s brother and co-defendant, Zakariya Boyd, pleaded guilty on June 7, 2011, to one count of conspiracy to provide material support to terrorists.  Trial for the remaining co-defendants in custody is scheduled for September 2011.

United States v. Harpham (E.D. Wash. Sep. 7, 2011)

* United States v. Harpham (E.D. Wash. Sep. 7, 2011) (guilty plea)

Ok, this should be it for today.  Last week was a busy one for DOJ in terrorism cases!

In this case, Kevin Harhpham has pled guilty to placing an IED along the planned route for the MLK Day parade in Spokane last January.  The details from the press release below.

SPOKANE, Wash. – Kevin William Harpham, 37, of Colville, Wash., pleaded guilty today to the placement of the improvised explosive device alongside the planned Martin Luther King Jr. Day Unity March on Jan. 17, 2011, in Spokane, Wash., announced the Department of Justice.

On March 9, 2011, Harpham was arrested and charged by complaint with the crimes of attempted use of a weapon of mass destruction and possession of an unregistered explosive device.  Today, Harpham pleaded guilty to two counts of a superseding indictment, charging Harpham with attempted use of a weapon of mass destruction and attempt to commit a federal hate crime.  The Martin Luther King Jr. Day Unity March was attended by hundreds of individuals, including racial minorities.  The explosive device placed by Harpham was capable of inflicting serious injury or death, according to laboratory analysis conducted by the FBI.

The plea agreement calls for a sentence of between 27 and 32 years in prison.  The plea agreement is subject to the district court’s review acceptance and determination of the final sentence.  The plea agreement also calls for a lifetime term of court supervision after Harpham is released from prison.

forthcoming scholarship

“The Evolution of Wiretapping”

Engage: The Journal of the Federalist Society, Vol. 12, No. 2, Fall 2011
Paul Rosenzweig,CYBERWARFARE: HOW CONFLICTS IN CYBERSPACE ARE CHALLENGING AMERICA AND CHANGING THE WORLD, Praeger, 2012

PAUL ROSENZWEIG, George Washington University School of Law, The Heritage Foundation

The technology for communications through cyberspace have begun to outstrip the capabilities of governments to intercept those communications. This is a circumstance that has occurred in the past and likely will recur in the future. This paper traces some of that history and concludes that the questions involved are more ones of policy than of law.

“Can Counter-Terrorist Internment Ever Be Legitimate?”

Human Rights Quarterly, Vol. 33, No. 1, pp. 593-619, 2011

FIONA DE LONDRAS, University College Dublin-School of Law

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs.

“Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield”

JOHN CHARLES RICHARDSON, JMR Portfolio Intelligence

In the field of international humanitarian law, there are a number of questions about the conduct of warfare in the cyber domain. In some cases, answers can be gleaned from treaties and customary international law but in other instances, solutions are seemingly intractable, begging for solutions that may only be answered by technology itself. From a legal perspective, such oversimplifications trivialize humanitarian law as well as other legal constructs already struggling to address complex issues in the cyber realm.

It is within this context that this paper focuses on a recent event known as Stuxnet, a computer virus that infected and damaged a nuclear research facility in Natanz, Iran. Reflecting on this particular cyber attack, this paper addresses two IHL issues: Does the Stuxnet attack rise to the level of an armed attack within the meaning of international humanitarian law? If so, did it adhere to the two core principles of IHL, namely distinction and proportionality? This paper finds that the Stuxnet attack does in fact rise to the level of an armed attack within the meaning of IHL and adheres to the principles of distinction and proportionality.

Electronic Surveillance of Terrorism in the United States

William Funk

Lewis & Clark Law School
Mississippi Law Journal, Vol. 80, No. 4, 2011
This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.

The latest volume of the Yearbook of International Humanitarian Law (Vol. 13, 2010) is out. Contents [behind a pay wall, alas] include:

  • Articles
    • Robert Chesney, Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
    • Galit Raguan, Adjudicating Armed Conflict in Domestic Courts: The Experience of Israel’s Supreme Court
    • Chris De Cock, Counter-Insurgency Operations in Afghanistan. What about the ‘Jus ad Bellum’ and the ‘Jus in Bello’: Is the Law Still Accurate?
    • Ian Henderson, Civilian Intelligence Agencies and the Use of Armed Drones
    • Christine Byron, International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage
    • Rob McLaughlin, The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications
    • Alon Margalit & Sarah Hibbin, Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel’s Permit Regime and Expulsions from the West Bank under the Law of Occupation
  • Current Developments
    • Louise Arimatsu & Mohbuba Choudhury, Year in Review
    • Michael N. Schmitt, Drone Attacks under the Jus ad Bellum And Jus in Bello: Clearing the ‘Fog of Law’
    • Ivana Vuco, Domestic, Legal or Other Proceedings Undertaken by Both the Government of Israel and the Palestinian Side
    • Robin Gei?, Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala
    • Stephanie Carvin, The US Department of Defense Law of War Manual: An Update
  • Focus Topic: The Gaza Blockade
    • James Kraska, Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?
    • Andrew Sanger, The Contemporary Law of Blockade and the Gaza Freedom Flotilla