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Basic category error by ten members of the Senate Judiciary Committee

Last Tuesday, AG-Designate Loretta Lynch, in her capacity as U.S. Attorney for the Eastern District of New York, announced the unsealing of a complaint and arrest warrant that had been filed almost six years ago, on April 15, 2009, charging Saddiq Al-Abbadi and Alvi with conspiracy to murder United States nationals abroad and providing material support to al-Qaeda.  The complaint alleges that Al-Abbadi and Alvi engaged in attacks against United States military forces stationed in Afghanistan between 2003 and 2008 on behalf of al Qaeda (and in Alvi’s case, briefly in 2008 on behalf of the Taliban, too), and that Al-Abbadi also fought as a member of al Qaeda against United States military forces in Iraq.

According to the announcement, “Al-Abbadi and Alvi were arrested in Saudi Arabia pursuant to the pending warrants in this case and lawfully expelled to the United States.”

The DOJ announcement prompted a letter to Attorney General Holder from ten of the eleven members of the Senate Judiciary Committee majority (all except Sen. Flake).  Most of the letter consists of questions about why the two criminal defendants were not transferred to U.S. custody earlier.  The ten Senators also say this, however, about the Executive’s choice of forum for trying the defendants:

“[W]e continue to have concerns with this Administration’s reluctance to use military commissions to prosecute foreign terrorists who were involved in attacks against U.S. military forces in Afghanistan and Iraq.”

This betrays a basic misunderstanding of the law.  Certain individuals can, indeed, be tried in military commissions for what the Military Commissions Act calls “murder in violation of the law of war”–but there is no basis for assuming that Al-Abbadi’s and Alvi’s attacks on U.S. forces violated the law of war, even where (as alleged to have happened in at least one case) they resulted in the death of U.S. military personnel.  Attacking and killing U.S. military forces in an armed conflict does not, without more, violate the law of war, even when undertaken by nonstate enemy forces such as al Qaeda.  (Such a killing could violate the law of war if it were done, e.g., perfidiously, or against captured prisoners; but there are no such allegations in the complaint here.)

To be sure, and as I’ve explained previously, such nonstate actors are not entitled to the combatant’s privilege, and therefore–unlike a nation state’s armed forces–their attacks on U.S. forces make them culpable, and eligible to be tried, for violations of domestic law.  Which is exactly what’s happened here:  Al-Abbadi and Alvi are being tried principally under 18 U.S.C. 2332(b)(2), which makes it unlawful to conspire to kill U.S. nationals outside the United States.  That’s an offense that can be tried in an Article III court, but not in a military commission (both because the Military Commissions Act does not recognize that offense and because prosecution of such a domestic law offense in a military tribunal would likely be unconstitutional even if Congress had authorized it).

Wholly apart from the allegations that Al-Abbadi and Alvi attacked U.S. forces, the complaint also alleges that the two defendants provided material support to al Qaeda, in the form of their alleged efforts to integrate a “confidential witness” into that terrorist organization.  Such material support to al Qaeda is an offense under the Military Commissions Act; and, in his separate opinion in al Bahlul v. United States, Judge Kavanaugh has suggested that it constitutionally may be charged in a military tribunal if the conduct occurred (as it did here) after Congress enacted that law in 2006.  Nevertheless, as Steve Vladeck and I have explained at length, that proposition is subject to serious constitutional doubts–doubts that would cast a dark cloud over any such military prosecution.  (It is notable, in this respect, that in the 9/11 case in the Commissions, the Chief Prosecutor has dropped all charges that raise this constitutional question, leaving the case focused only on conduct that undoubtedly did violate the law of war, namely, the al Qaeda attack on civilians.)  In any event, the fact that the more serious conspiracy-to-murder charges could only be brought against Al-Abbadi and Alvi in an Article III court presumably would have been a serious deterrent to bringing material support charges in a military tribunal.

Accordingly, from all that appears, there should have been no serious legal question within the Executive branch about where these two defendants would be tried.

Five Important Questions About DEA’s Vehicle Surveillance Program

With each week, we seem to learn about a new government location tracking program. This time, it’s the expanded use of license plate readers. According to the Wall Street Journal, relying on interviews with officials and documents obtained by the ACLU through a FOIA request, the Drug Enforcement Administration has been collecting hundreds of millions of records about cars traveling on U.S. roads. The uses for the data sound compelling: combating drug and weapons trafficking and finding suspects in serious crimes. But as usual, the devil is in the details, and plenty of important questions remain about those details.

First, who approved the program, and under what circumstances? We don’t know. The DEA is an arm of the Department of Justice, so presumably the Attorney General’s office has been involved, but details aren’t yet available. Also unknown is whether there has been any judicial oversight.

Second, are there any limitations on how the data can be used? This is also unknown. The emails obtained by the ACLU indicate that the main purpose of the program was to assist in seizures of cars, money, and other assets, often from people not charged with any crime, a program that has come under withering criticism. But the history of data collection programs is that information collected for one purpose quickly becomes attractive for other purposes. And the more information available (even for proper purposes), the more is available for misuse as well. Indeed, license plate information has been abused in the past, with peaceful protestors’ data shared with the FBI.

Third, how long can it be kept? The article reports that the DEA holds the data for three months, a significant drop from its previous two-year retention period. Much of this data is coming from readers set up by state and local law enforcement, though, and the retention periods for those jurisdictions are an inconsistent patchwork, with deletion times ranging from immediate (Ohio state patrol) to 90 days (Boston) to two years (Los Angeles County) to five years (New York City) to never (New York State Police). This is especially alarming given that a vanishingly small percentage of the millions of license plates scanned are actually connected to any crime or wrongdoing. At the same time, data collected by DEA reportedly goes back to state and local jurisdictions as well, setting up an endless loop of information with inadequate oversight.  Continue Reading »

News Roundup and Notes: January 30, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

Japan and Jordan are working together closely to establish the fate of the Japanese journalist and Jordanian pilot held hostage by the Islamic State. Jordan said yesterday that it was still detaining the convicted Iraqi terrorist, as the deadline set for her release by the militant group passed yesterday. [Reuters] Jordan demanded proof that its captured pilot is still alive before it goes ahead with the possible prisoner exchange, following an urgent ministerial meeting yesterday. [The Guardian’s Justin McCurry and Martin Chulov]

Kurdish Prime Minister Nechirvan Barzani has warned that the international coalition against the Islamic State is inadequate and predicted that a campaign to retake Mosul in northern Iraq would not happen until at least the fall. [Reuters’ Samia Nakhoul et al]

Dozens of Iraqi Sunnis are said to have been killed by government-allied Shi’ite militiamen this week. A spokesperson for the prime minister said that the claims are being investigated. [New York Times’ Kareem Fahim]

Belgian forces have detained four people following a series of raids across the country today, part of a bid to dismantle a jihadist cell suspected of recruiting fighters for Syria. [Reuters]

Mike Giglio speaks to an ISIS operative in Turkey about the militant group’s efforts to smuggle covert fighters to the West. [Buzzfeed News]

U.S.-led airstrikes continue. U.S. and Coalition military forces carried out six airstrikes against Islamic State targets in Syria on Jan. 28. Separately, U.S. and partner nations conducted a further 12 strikes in Iraq. [Central Command]

AFGHANISTAN

A shooting incident at a military base at Kabul’s international airport killed three American civilian contractors and an Afghan national yesterday. The Taliban claimed responsibility for the attack, stating the gunman had infiltrated the ranks of the Afghan security forces. [Washington Post’s Sudarsan Raghavan and Missy Ryan]  Continue Reading »

Global Magnitsky Act Re-Introduced

Senators Bill Cardin (D-Md) and John McCain (R-Ariz.) have re-introduced the Global Magnitsky Human Rights Accountability Act (S. 284) aimed at expanding the U.S.’s efforts to issue sanctions against certain human rights violators worldwide. Specifically, S284 would:

  • Direct the President to designate foreign nationals whom he determines—based on credible information—is responsible for extrajudicial killings, torture, or other human rights violations committed against individuals seeking to promote human rights or to expose illegal activity carried out by government officials.  Aliens on this list will be deemed ineligible to enter or be admitted to the United States; visas issued for persons on the list will be revoked.
  • Direct the President to freeze assets and prohibit U.S. property transactions of such individuals.

A prior version of this bill (S. 1933) was voted out of the Senate Foreign Relations Committee in June 2014, but got no farther at that time. Bipartisan cosponsors of the earlier legislation include U.S. Senators Dick Durbin (D-IL), Roger Wicker (R-MS), Carl Levin (D-MI), Richard Blumenthal (D-CT), Marco Rubio (R-FL), Jeanne Shaheen (D-NH), and Ed Markey (D-MA).  Senator Mark Kirk (R-IL) has co-sponsored S. 284 along with most of the previous co-sponsors.

The Global Magnitsky Human Rights Accountability Act (which has also been called the Global Human Rights Accountability Act) builds upon and expands the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (the Magnitsky Act)—named for the Russian corruption whistleblower Sergei Magnitsky who died in Russian custody in 2009 and which was also authored by Sen. Cardin. No one was ever prosecuted for Magnitsky’s death and, in fact, Magnitsky himself was posthumously convicted of tax evasion.  The Magnitsky Act passed in 2012 with unprecedented bipartisan support (365-43 in the House and 92-4 in the Senate).  The new legislation applies the same sanctions to individuals who would target human rights defenders and whistleblowers anywhere in the world.

The executive branch’s implementation of the Magnitsky Act has been criticized as being insufficiently robust.  Originally, President Obama designated the names of 18 mid-level officials; later, 12 more names were added. (The full list of names and alter egos is here). Additional names have not been forthcoming, to Congress’s chagrin, amid concerns that extending the law would exacerbate an already tense bilateral relationship. (Apparently, a classified list imposing a travel ban (but not financial sanctions) includes additional names of higher-ranked individuals).

Following passage of the original Magnitsky legislation, Russia retaliated by barring U.S. parents from adopting children from Russia and also issuing a “proportionate” list of its own sanctions against 18 U.S. individuals.  Included in this list is U.S. Attorney Preet Bharara, who successfully prosecuted Russian arms dealer/embargo-buster Viktor Bout, widely considered to be a key “enabler” of violence in central Africa, Afghanistan, and Colombia, among other atrocity situations.

See here for the legislative history of the Magnitsky Act.

Members Only: Al Qaeda’s Charter List Revealed After 13 Years in US Hands

A fascinating bit of evidence about al Qaeda’s early days emerged yesterday during the trial of alleged al Qaeda operative Khaled al-Fawwaz – what federal prosecutors call a list of 170 charter members of the Islamic terrorist organization, including the defendant. The FBI says U.S. forces recovered the list from a building in Kandahar, Afghanistan, two months after the invasion to retaliate for 9/11. The document, in U.S. hands for 13 years and being made public only now, was shown to the jury for the first time Wednesday. 

The document and testimony to vouch for its contents by a former al Qaeda member certainly dug a big hole for al-Fawwaz, a kind of forgotten man incarcerated for more than 16 years awaiting his day in court.

On the 26th floor of the Manhattan federal courthouse on Monday, FBI Agent Jennifer Hale Keenan explained how she discovered the purported membership list inside a three-foot-long, rectangular, metal locker filled with binders, notebooks, training manuals, maps, and videos. As the locker with its original shipping labels intact was wheeled before the jury, Keenan said it was one of 22 containers of al Qaeda booty to arrive December 15, 2001, at the U.S. embassy in Islamabad, Pakistan. The embassy, where she was based, became a clearinghouse for enemy materials retrieved by troops in neighboring Afghanistan.

Keenan forwarded the document to an FBI office in northern Virginia established after 9/11 to review such materials. There, FBI Agent Debbie Doran, got a hold of the five-page list, typewritten in Arabic, labeled “top secret” by its author.   Doran, a counter-terrorism investigator seasoned from the 1998 East Africa embassy bombings case, told the jury she had seen similar lists before. Translated into English, the list is a who’s who of original al Qaeda suspects, mostly named by their aliases and with notes about their location or status — for example, “Kabul,” “returned to his country” or “martyred in Chechnya.”  Continue Reading »

News Roundup and Notes: January 29, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

ISIS has set a deadline of sunset today for the release of a convicted terrorist in Jordan, after Jordan agreed to exchange her in return for a Jordanian pilot held hostage by the militants. The fate of a Japanese hostage has been “thrown into confusion” by recent developments, report Justin McCurry and Martin Chulov. [The Guardian]  Japan has said it is placing its trust in Jordan to assist in the release of its citizen, Kenji Goto. [AP]

ISIS has announced an expansion into “Khurasan,” an area encompassing Afghanistan, Pakistan and parts of India, naming a breakaway Pakistani Taliban leader as the region’s commander. The expansion comes four months after al-Qaeda announced its South Asian wing. [Hindustan Times’ Rezaul H Laskar]

Islamic State offshoots in countries such as Egypt, Yemen, Algeria, and Libya function autonomously, but are setting up increasingly close ties with the Islamic State leadership in Syria, according to diplomats and security officials. [Wall Street Journal’s Yaroslav Trofimov]

An Islamic State-related terror cell is soliciting for Bitcoins as part of its fundraising efforts, according to research by an Israeli cyber-analyst. The revelation forms part of a wider trend of extremist groups using the “dark web” to avoid detection by authorities, reports Danna Harman. [Haaretz]

Iraqi Sunnis in areas reclaimed by Kurds from the Islamic State are wary, concerned that because they come from the same ethnic group as the militants they will be treated as collaborators. [AP]

A notorious Islamic State militant, who was featured in a video purporting to show a boy execute two prisoners, has been killed in battle, according to a counterterrorism official. [ABC News’ James Gordon Meek and Lee Ferran]

U.S.-led airstrikes continue. The U.S. and Coalition military forces conducted 13 airstrikes against Islamic State targets in Syria on Jan. 27. Separately, the U.S. and partner nations carried out a further six strikes in Iraq. [Central Command]

GUANTÁNAMO BAY

Cuban President Raul Castro said the U.S. must return the military base at Guantanamo Bay and lift the trade embargo on his country before relations between the two nations can be normalized. [AP’s Javier Cordoba and Michael Weissenstein] Continue Reading »

Schiff Introduces Updated Proposal for AUMF to Fight the Islamic State

Earlier today, Rep. Adam Schiff (D-Calif.) introduced a new proposal for a limited authorization for the use of military force (AUMF) against the Islamic State.

Though largely similar to the AUMF he introduced last September (which we covered at the time), today’s proposal is updated and has several important modifications, including a significantly longer sunset provision.

Changes to the proposed language include:

  1. A clear statement that the geographic limitations (i.e., that the AUMF extends only to Iraq and Syria) does not include any the training of “indigenous Syrian or regional military forces;”
  2. A longer sunset provision, allowing the AUMF to stay in force for three years (rather than 18 months); and
  3. Added language relating to the recent executions of hostages from the U.S., the U.K., and Japan, and updates that acknowledge the redeployment of U.S. forces from Afghanistan.

The new draft also retains the immediate repeal of the 2002 AUMF, but extends the sunset period for the 2001 AUMF to three years (up from 18 months). This means that if Schiff’s latest AUMF proposal is passed soon, any debate over whether to reauthorize the mission in Iraq and Syria would happen in early 2018, the same year as the next Congressional midterm election cycle.

The looser geographic restrictions and extension of the sunset provision provide more discretion to the Executive Branch in carrying out combat operations against the Islamic State than Schiff’s earlier proposal.

It is also worth noting that Schiff’s proposal does not precisely define the scope of the mission. Is the purpose of the AUMF to limit the use of force to containing the Islamic State within its current territory or within Syria? Or does it contemplate the complete destruction of the group?

Also absent from both the prior and new AUMF proposals by Rep. Schiff are robust or specific reporting requirements (compare section 6 of the “Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL” published at Just Security)—this is especially conspicuous since Rep. Schiff has been a leader on the Hill in pressing for congressional oversight of US military operations in the conflict with al Qaeda.

The full proposed text of the joint resolution, “Authorization for Use of Military Force Against ISIL Resolution,” is available below.  Continue Reading »

You Should Care About Mutual Legal Assistance More Than You Do

About a year ago, I wrote here that the mutual legal assistance (MLA) regime – the legal system that regulates government-to-government requests for evidence in criminal investigations, including personal data – was badly in need of reform.  Today, the Global Network Initiative is releasing my report on the subject.  The report outlines some of the key reforms that can and ought to be implemented by states in the next year to improve the MLA process.  (The report is being launched at the Center for Strategic and International Studies (CSIS) in DC at 1pm EST today and will be live streamed here.)

Many of us live much of our lives “online” – meaning that we store our personal data on internet-connected servers, which are very often located in far away locations. As a result of our peripatetic lives, our data is flung across a number of different jurisdictions.  When governments seek access to this data – perhaps in connection with a criminal investigation – they increasingly find that it is beyond their jurisdictional reach.  (This is the problem raised by the much-discussed Microsoft Ireland case.)

If you care about privacy, you might think this is all good because it means that the government has a harder time getting access to the digital goods. But this view badly misunderstands the tradeoffs associated with the MLA regime.  Embracing the fact that MLA tends to prevent governments from gaining lawful access to personal data is both shortsighted and dangerous.

When governments do not get access to data through MLA, they occasionally try other tactics that do not have the same built-in due process constraints that MLA provides (tactics, in other words, that might make those of who care about privacy prefer MLA). When governments feel they cannot get access to data through the MLA process, they might assert that their laws apply extraterritorially – as the US has done in the Microsoft Ireland case – or they might demand that communications companies store data locally on servers (the easier to raid). Continue Reading »

One Way Sri Lanka Can Shield its ex-Defense Secretary from a U.S. Criminal Prosecution

Last week, Sri Lanka’s Justice Deputy Minister responded to an Op-Ed that I published in the New York Times, in which I described reasons that the United States can and should pursue a criminal investigation of U.S. citizen and Sri Lanka’s ex-Defense Secretary, Gotabaya Rajapaksa. In this post, I respond to the Deputy Minister’s statement that his administration would protect Mr. Rajapaksa from a criminal trial by the United States, if it ever came to that.

Here are the key parts of the Deputy Minister’s remarks, published in the state-owned newspaper News Daily:

“It is true according to the said U.S. war crimes statute enacted in 1996, that nationality requirement is easily satisfied in terms of Gotabhaya Rajapaksa’s U.S.citizenship for them to prosecute him.”

“But not within Sri Lanka’s jurisdiction,” he explained.

“No other country can do what it likes in our jurisdiction. Gotabhaya Rajapaksa is safe as long as he stays within the jurisdiction of Sri Lanka,” explained Deputy Minister Senasinghe. Asked what the government’s position was in regard to probing allegations of war crimes in Sri Lanka in view of the UN inquiry which is already underway in this respect, Senasinghe said: “our position is very clear. We will conduct a domestic probe with the assistance of the UN.”

Under the law, it is true that President Sirisena’s administration could legally secure Mr. Rajapaksa’s safety from a U.S. war crime prosecution if he stays in Sri Lanka—under one condition. The Sri Lankan government would have to prosecute him themselves.

The United States and Sri Lanka have a long-standing extradition agreement that would apply directly to Mr. Rajapaksa and to the offences he allegedly committed.  Unequivocally, article 1 of that agreement obligates Sri Lanka to extradite “persons sought by the authorities of the [United States] for trial or punishment for an extraditable offence.” Accordingly, although the Deputy Minister’s statement is true—that “no other country can do what it likes in our jurisdiction”—Sri Lanka has already formally agreed to give the United States access to criminal suspects in such cases.

The Deputy Minister may well recognize that the obligation to extradite would loom over the case. His statement that Mr. Rajapaksa “is safe as long as he stays within the jurisdiction of Sri Lanka” suggests he knows that Mr. Rajapaksa could also put himself in jeopardy by stepping foot in other countries that have an extradition agreement with the United States. As things stand, he cannot fly with ease to London for a weekend, an important conference, or a relative’s graduation—who knows whether a sealed US indictment may already be out there, in which case he could be apprehended at Heathrow and extradited to the United States (see Section 5(2) of the UK-US extradition agreement).

There is one legal “escape” from the obligation to extradite, however. Continue Reading »

News Roundup and Notes: January 28, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

Israel launched airstrikes targeting Syrian army posts in response to rockets fired yesterday from Syria into the Israeli-held Golan Heights, the military said today. [AP]  Israeli defense officials suspect that the rockets fired from Syria are a sign that Hezbollah, as well as Iran and Syria, want payback for the Jan. 18 strike that killed an Iranian general and six Hezbollah operatives. [Haaretz’s Amos Harel]  Meanwhile, Tehran is warning Israel of “consequences” via U.S. officials over the killing of the Iranian general in Syria. [Al Jazeera]

Jordan has agreed to release a convicted Iraqi terrorist in exchange for an air force pilot captured by the Islamic State in Syria one month ago. The statement from Jordan made no reference to the Japanese journalist also held hostage by the militant group. [New York Times’ Rod Nordland and Ranya Kadri]

The victory in Kobani demonstrates what can be achieved with a reliable, willing and capable partner, said Pentagon press secretary Rear Adm. John Kirby speaking yesterday, adding that the U.S.-led airstrikes “helped a lot.” [DoD News]

Former DIA chief Michael Flynn accused the Obama administration of being paralyzed and playing defense in the fight against ISIS. Flynn expressed support for the creation of a “single unified and international chain of command” akin to that between the Allies during World War II. [The Daily Beast’s Kimberly Dozier]

President Obama’s strategy against the Islamic State is a “feckless effort” behind which is a “cluster of mistaken notions,” writes the Washington Post editorial board, emphasizing that while the victory in Kobani is a relief, it “won’t alleviate the mounting catastrophe.” Continue Reading »