Bawazir v. Obama; forthcoming scholarship

1. Bawazir v. Obama (D.D.C. Dec. 22, 2009)

Judge Kessler has dismissed (without prejudice) a GTMO habeas petition on the ground that the petitioner (Bawazir) does not wish to pursue it.

2. More GTMO transfers (Dec. 20, 2009)

Last week, the government transferred 12 detainees out of GTMO (press release here):

To Afghanistan: Abdul Hafiz, Sharifullah, Mohamed Rahim and Mohammed Hashim

To Somaliland: Mohammed Soliman Barre and Ismael Arale

To Yemen: Jamal Muhammad Alawi Mari, Farouq Ali Ahmed, Ayman Saeed Abdullah Batarfi, Muhammaed Yasir Ahmed Taher, Fayad Yahya Ahmed al Rami and Riyad Atiq Ali Abdu al Haf.

3. Judge Royce Lamberth, “Trying Terrorists in Article III Courts” (Dec. 17, 2009) — Remarks at Breakfast Event Sponsored by ABA Standing Committee on Law and National Security

Audio available here

4. Forthcoming Scholarship


Jon Sherman (WilmerHale)

11 University of Pennsylvania Journal of Constitutional Law 1475 (2009)

In a 2006 speech, former Deputy Attorney General Paul McNulty said the following: “In the wake of September 11, this aggressive, proactive, and preventative course is the only acceptable response from a department of government charged with enforcing our laws and protecting the American people. Awaiting an attack is not an option. That is why the Department of Justice is doing everything in its power to identify risks to our Nation’s security at the earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”1 Though the military’s counterterrorism tactics have dominated our post-9/11 consciousness of counterterrorism, federal criminal investigation and law enforcement directed by the Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) have adapted and expanded in an attempt to prevent terrorism with “forward-leaning” strategies. Observers have advanced a few theories for the accelerating shift to preventative policing and prosecutions: constitutional difficulties with military detention, most recently in Boumediene v. Bush,2 the irrelevance of immigration law enforcement to “homegrown” terrorists; the increasing decentralization of the global jihadist movement; and the prevalence of “unaffiliated” terrorists operating without any connection to a designated foreign terrorist organization (“FTO”).3

Whatever the precise reasons, federal criminal prosecutions have played an ever-expanding role in counterterrorism. According to the New York University Law Center on Law and Security, between September 11, 2001 and September 11, 2008, 228 persons have been charged and prosecuted under a “terrorism statute,” with another 465 persons charged under other statutes but “publicly associated with terrorism by the DOJ.”4 Of the 130 “Resolved Terrorism Trials” out of 228 resolved or pending terrorism prosecutions, 93 persons have been convicted; 12 have been acquitted; and 25 have seen a mistrial or dismissal.5 The other 465 defendants have been charged with general criminal conspiracy, general fraud, immigration violations, racketeering, and other offenses.6 Some scholars have noted that pretextual charging has played a significant role in the government’s early intervention strategy.7 The Justice Department’s focus on early intervention tactics and “anticipatory prosecution,” as Professor Robert Chesney has called it, under federal conspiracy statutes (18 U.S.C. § 956(a)–(b)) and material support statutes (18 U.S.C. § 2339A and § 2339B) has made undercover investigations followed by sting operations a more attractive strategy.8 The FBI increasingly relies on confidential informants to gather intelligence, conduct surveillance of mosques, and pursue suspected terrorist plots.9 In several recent cases, including United States v. Batiste,10 United States v. Hayat,11 United States v. Lakhani,12 and United States v. Siraj,13 an undercover agent has “played a crucial catalytic role” in the criminal plot.14 Though some cases involve career agents, many informants are often enlisted as part of a brokered deal with the government to eliminate or reduce criminal penalties, drop criminal charges, approve a political asylum application, or reverse a removal order.15 This growing reliance on undercover cooperating witnesses and sting operations for counterterrorism has dramatically increased the risk of entrapment.

This Article seeks to reexamine the entrapment defense against the rise of anticipatory terrorism prosecutions, and  specifically, the charging of material support in furtherance of a predicate offense under 18 U.S.C. § 2339A. I argue that entrapment doctrine must be restructured to keep FBI counterterrorism efforts targeted and focused and to safeguard innocent First Amendment activity from the reach of highly inchoate offenses, which are aggressively pursued with undercover informants.

Intervention to Stop Genocide and Mass Atrocities: International Norms and U.S. Policy

Matthew C. Waxman (Columbia Law School & Council on Foreign Relations)

Council on Foreign Relations Special Report

Recent events in Darfur raise again the familiar question of whether the current international legal system facilitates the kind of early, decisive, and coherent action—especially with respect to military force—needed to effectively combat genocide and mass atrocities. An international legal regime that puts decisions about international intervention solely in the hands of the UN Security Council risks undermining the threat or use of intervention when it may be most potent in stopping mass atrocities. The features of the UN Charter that help resolve security crises peacefully make it difficult to generate the rapid action needed to deter or roll back mass atrocities, especially with several permanent Security Council members ideologically hostile to such interventions generally or self-interestedly hostile to specific interventions.  This report urges steps to improve responsiveness of the existing UN Security Council while preparing and signaling a willingness, if the UN Security Council fails to act in future mass atrocity crises, to take necessary action to address them.

The Blank-Prose Crime of Aggression

Michael J. Glennon (Tufts University – The Fletcher School)

35 Yale Journal of International Law 71 (2010)

A review conference to be convened in May, 2010, will consider an amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court. The proposed definition would, this article argues, constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process. Repeated efforts to define aggression foundered throughout the 20th century for good reason: no consensus existed then or now as to what the term means, at least not at the level of specificity needed to impose individual criminal liability. Prosecution under the ambiguous definition that is proposed would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The definition is, moreover, so broad in its potential reach that, had it been effect for the last several decades, every U.S. president since John F. Kennedy, hundreds of American legislators and military leaders, as well as innumerable foreign military and political leaders could have been subjected to prosecution. These difficulties would be magnified by including the roulette wheel that is the United Nations Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the treaty does not render all this academic: it is possible that U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States continues to refuse to join.

“The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice”

Case Western Reserve Journal of International Law, Forthcoming
Hofstra Univ. Legal Studies Research Paper No. 09-27

JULIAN KU, Hofstra University – School of Law

I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrong-headed because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys’ constitutional rights under the U.S. Constitution’s First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

Author Profile

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.
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