Archive | Terrorism

Tarek Mehanna Conviction for Aiding al Qaeda Upheld

I’m on the road right now, and won’t have the time to blog further about this, but I suspect that some of our readers have followed the case — especially given the defendant’s First Amendment arguments — so I thought I’d note today’s First Circuit opinion. (Note that the title of the post is an oversimplification; Mehanna was charged with a variety of related crimes.) [UPDATE: Prof. Marty Lederman (Just Security) has more on the case.] Here’s a very brief excerpt that offers a general summary of the court’s First Amendment analysis:

[T]he district court’s instructions captured the essence of the controlling decision in [Holder v. Humanitarian Law Project], where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is “in coordination with foreign groups that the speaker knows to be terrorist organizations.” If speech fits within this taxonomy, it is not protected. This means that “advocacy performed in coordination with, or at the direction of,” [a Foreign Terrorist Organization] is not shielded by the First Amendment. The district court’s instructions tracked the contours of this legal framework. The court appropriately treated the question of whether enough coordination existed to criminalize the defendant’s translations as factbound and left that question to the jury.

I thought I’d also pass along something I wrote along similar lines three years ago, after Humanitarian Law Project was decided:

[Consider a fact pattern that] comes from the treason-by-propaganda cases, such as the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this “Vision of Invasion” broadcast while working for the Nazis:

This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated

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Ice-T, Volokh, and Kopel: Together at last in a feature film

The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. On-screen talking heads include Eugene Volokh, Alan Gura, Adam Winkler, Gary Kleck, Dan Gross (Brady Campaign), Bobbie Ross, and me.

The production values of the film are very high; there is even a recreation of the 1946 Battle of Athens, Tennessee.

I thought it was a very good film, although as with any documentary, there were a few parts with which I did not entirely agree. (And I certainly don’t agree with everything that Ice-T has ever said.) I should point out one correction regarding me: the film identifies me as having a Ph.D., which is incorrect; I have a J.D.

Assaulted is currently showing in 16 theaters around the nation; if you would like it to be screened in your town, the website provides a form to request that. Congratulations to Executive Producer Kris Koenig for creating the first documentary about the Second Amendment to make it the screens of ordinary movie theaters. [...]

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The Case for Drones

Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.”  (Available free and not behind the subscriber wall.)  It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.

The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right.  There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security.  It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones.  Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.

Commentary is a conservative magazine, obviously, and I’m writing there as a conservative [...]

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My Upcoming Testimony on Drones and The War on Terror Before the Senate Judiciary Subcomittee on the Constitution, Civil Rights, and Human Rights

For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.

I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.

UPDATE: The complete witness list is now available here. It is as follows:

General James Cartwright
United States Marine Corp (Ret.)
Washington, DC

Farea Al-Muslimi
Sana’a, Yemen

Peter Bergen
National Security Studies Program
New America Foundation
Washington, DC

Rosa Brooks
Professor of Law
Georgetown University Law Center
Washington, DC

Colonel Martha McSally
United States Air Force (Ret.)
Tucson, AZ

Ilya Somin
Professor of Law
George Mason University School of Law
Arlington, VA [...]

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Upcoming George Mason University Event on Drones and the War on Terror

This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120. [...]

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What the Definition of Piracy Means for UNCLOS & ATS

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from [...]

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Europe OK with Occupation – and With Hezbollah

Despite the recent United Nations Human Rights Council’s report, France and many other European countries are against attempts to revive the peace process, end the occupation and remove settlements. They prefer a “long-term stalemate” (which sounds like Boogie Yaalon’s “long term conflict management plan“). Outside pressure to push peace could backfire and benefit hardliners on both sides, according to European journalists interviewed recently by Reuters.

Of course, I am not talking about Israel’s occupation of parts of the League of Nations Mandate for Palestine previously occupied by Jordan, but rather about Turkey’s occupation of a full-fledged EU member state.

In other European contortions, while France bombs terrorists “on the footsteps of Europe” in Mali, thousands of Hezbollah members operate openly in Europe. Their activities are now known to include bus bombing. France and other European powers have long been reluctant to declare Hezbollah a terrorist organization – apparently because they only kill Jews, and most elsewhere, according to an astounding analysis in the New York Times:

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time,” said Sylke Tempel, editor in chief of the German foreign affairs magazine Internationale Politik.

Europe has recently been indicating that it will be pressuring Israel to take so-called risks for peace. But Europe is not unbiased, nor is its attitude towards Israel driven principally by Israel’s actions. European actors are driven by political agendas, fear, and a variety of factors. And given their fear of taking on Turkey, or even Hezbollah, they are ill placed to talk about risks for peace. [...]

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Pirates on Screen: My First Role

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself. [...]

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Foreign Commerce Authority for Universal Jurisdiction over Terrorists

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted [...]

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The Offenses Clause & Universal Jurisdiction Over Terrorists

A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.

While the statute has previously been used to prosecute extraterritorial conduct by foreigners that conducted significant dealings in the U.S., this is only the second apparently “universal” prosecution.

The Art I. authority for prosecuting conduct under universal jurisdiction is the “Define and Punish” clause. Yet the clause limits universal jurisdiction to crimes, like piracy, that are i) “offenses against the law of nations,” and ii) treated as universally cognizable by the law [...]

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How Syria is Iran’s route to the sea

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated PressThe GuardianThe Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? …when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen

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Defense bill will allow President to indefinitely detain American citizens

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt [...]

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Time to Codify a Miranda Exception for Terrorists?

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been [...]

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Is Obama Complacent about Terrorism?

According to Bob Woodward’s new book, Obama’s Wars, President Obama seemed to suggest that a terrorist attack on the United States might not be a big deal.  According to the Washington Post, the President remarked that “we can absorb a terrorist attack.”  In an instant, a campaign-season talking point was born: The President does not worry about our nation’s security and is complacent about the terrorist threat.  Yet as Benjamin Wittes reports on Lawfare, the quote is accurate, but woefully incomplete.  The relevant portion of Woodward’s book (reproduced on The Plum Line) reads as follows:

During my Oval Office inteview with the President, Obama volunteers some extended thoughts about terrorism.

“I said very early on, as a Senator and continue to believe, as a presidential candidate and now as president, that we can absorb a terrorist attack. We will do everything we can to prevent it. But even a 9/11, even the biggest attack ever, that ever took place on our soil, we absorbed it, and we are stronger. This is a strong, powerful country that we live in, and our people are incredibly resilient.”

Then he addressed his big concern. “A potential game changer would be a nuclear weapon in the hands of terrorists, blowing up a major American city. Or a weapon of mass destruction in a major American city. And so when I go down on the list of things I have to worry about all the time, that is at the top, because that’s one area where you can’t afford any mistakes. And so right away, coming in, we said, how are we going to start ramping up and putting that at the center of a lot of our national security discussion? Making sure that that occurence, even if remote,

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Peter Spiro on Lieberman’s Citizenship-Stripping Legislation

I am not an expert on the law of citizenship in the United States, but my Opinio Juris co-blogger Peter Spiro is.  Over at OJ he has a short doctrinal analysis of the case law that would likely be relevant to Joe Lieberman’s citizenship-stripping proposal.  It seems to me analytically sound, although I do not hold myself out as an expert in this:

Joe Lieberman has just rolled out a bill (text here) which would strip individuals associated with foreign terrorist groups of their US citizenship.

He’s been playing this as if it were a minor statutory fix.  It’s true, as he’s been stressing, that current law terminates citizenship for “entering, or serving in, the armed forces of a foreign state if (a) such armed forces are engaged in hostilities against the United States, or (b) such persons serves as a commissioned or non-commissioned officer.”  8 U.S.C. 1481.  But that applies only where such service is undertaken “with the intention of relinquishing United States nationality.”

That’s not just some statutory nicety.  The Supreme Court has found it a constitutional necessity. Afroyim v. Rusk (1967) is the lead case, in which the Court found unconstitutional expatriation for the act of voting in a foreign political election.  In Vance v. Terrazas (1968), the Court found that

“we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481(a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.”  But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to

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