Show sidebar

Recap of Recent Posts at Just Security (Oct 18-24)

I. Ottawa Shootings

II. Regulation of Use of Force and Combat against al-Qaeda

III. Surveillance and Privacy

IV. Detentions & Trials

  1. Steve Vladeck, Military Commissions After Guantánamo (Monday, Oct. 20)
  2. Steve Vladeck, Five Quick Reactions to the al Bahlul Oral Argument (Wednesday, Oct. 22)
  3. Steve Vladeck, Due Process and the Military Commissions (Thursday, Oct. 23)
  4. Fionnuala Ní Aoláin, Decision on Secret Evidence by the European Court of Human Rights Worth Noting (Friday, Oct. 24)

V. Military Justice and Private Contractors

VI. Extraterritoriality of the Convention Against Torture

  1. David Luban, “Just Looking for Loopholes…” (Sunday, Oct. 19)
  2. Beth Van Schaack, Time to Give the Sleeves From Our Vest and Acknowledge the Extraterritoriality of the Convention Against Torture (Monday, Oct. 20)

VII. Cybersecurity

VIII. Afghanistan

IX. Syria and the Chemical Weapons Convention

X. Immunity of Foreign States and Officials

XI. Ebola

XII. Malaysia Air Flight 17

XIII. Miscellaneous

The Blackwater Trial: Part 1 – Two Factual Issues

Earlier this week, a jury in Washington D.C. convicted four Blackwater guards for a shooting at Nisour Square, Baghdad. The sniper Nicholas Slatten was convicted of premeditated murder. His three teammates, Evan Liberty, Paul Slough, Dustin Heard, were convicted of voluntary manslaughter and a weapons offence. For an excellent overview of the case and the verdict against each accused, see the Washington Post’s breakdown here.

Out of a shared interest in the intersection between commerce and criminality in war zones, we jointly attended every day of the guards’ trial except one. We also received help and information from both sides to the litigation. So, instead of rehearsing various views—that the case is “a watershed for accountability in war zones” or the first step toward more progressive regulation of the private military industry—we provide a summary of both sides to the case.

In the future, we will reflect on the trial from various analytic vantage points, but for now, we set out below competing evidence on two of the most important factual issues in this trial. In Part 2, which will follow separately, we will discuss two legal controversies that arise from the case, which may feature on appeal.

We resist the temptation to offer our own opinion about the case here (although we have done this to some degree during a talk last week at Columbia Law School, before these verdicts came down). Our purpose is more to orient readers around the core contested factual and legal issues in this historic trial, in ways that will hopefully create space for fulsome discussion and debate. Continue Reading »

Decision on Secret Evidence by the European Court of Human Rights Worth Noting

Two European Court of Human Rights (ECtHR) cases decided in July 2014 bring some clarity to the utility and compatibility of secret evidence with international human rights standards. In both cases the defendants challenged evidence used against them which they (and their legal counsel) were not allowed to see.  Given the importance of these questions to military commission proceedings, the ECtHR’s decisions are useful to report here. They add to a number of domestic judicial decisions in European states that explicitly prohibit relying on secret evidence in cases involving alleged terrorists.

In Nedim Şener v. Turkey and Şık v. Turkey (Nos. 38270/11 and 53413/11) a violation of Article 5 §3 of the Convention was claimed. This provision requires trial occur within a reasonable period, and was claimed on the basis of unjustified continued pre-detention; a claim of Article 5 §4 violation (the right to have the lawfulness of a detention speedily examined) was made as a result of domestic authorities’ failure to give the applicants the opportunity to challenge confidential evidences; finally violation of Article 10 (protection of freedom of expression) was also addressed on the basis of the chilling effect of an unreasonably long detention on the freedom of expression. Both cases concerned the length of a continued pre-detention for two investigative journalists, and both had been accused of “serious terrorist offences” under the Turkish criminal code. Both journalists were indicted for aiding and abetting the organization Ergenekon1 by participating in the production of two books accusing the government of promoting the infiltration of Islamists into the state apparatus. The books also insinuated that the Ergenekon trial had been diverted from its proper purpose by the same Islamist leaders, who sought to stifle opposition to the government. Continue Reading »

International Agreements—and Disagreements—on Cybersecurity

Russian media report here and here that Russia and China are preparing to sign a cybersecurity treaty when Vladimir Putin visits China on November 10. The reported agreement would be the latest addition to the increasingly complex landscape of international agreements related to various aspects of cybersecurity—an area that in recent months has also added an African Union treaty and a NATO declaration. The long-term effect of the bilateral and regional agreements is unclear: they could pave the way for broader multilateral treaties or less formal agreements, or they could entrench opposing views and thereby make broad international agreements more difficult. The most likely outcome may be somewhere in the middle.

Continue Reading »

Join Us Tuesday, October 28th in New York City!

This upcoming Tuesday in New York City, three Just Security editors will be on a panel addressing a vital question for international human rights law. We encourage anyone interested in our work to RSVP for a great lunchtime discussion.

What: Should international human rights law regulate the use of drones, detention, and surveillance extraterritorially?

When: October 28, 2014 12:30-2pm

Where: Furman Hall (245 Sullivan St), 9th Floor

RSVP required (space is limited). RSVP here, or email Audrey Watne at audrey.watne@nyu.edu. Lunch will be served.

National institutions and policymakers have long clashed with international human rights bodies and advocates over the application of international human rights law to actions taken beyond national borders. These disputes continue to intensify as the US, the UK, and other countries increasingly engage in national security operations abroad.  From the expanded use of drones outside of traditional battlefields, to the detention of individuals in covert and overt military operations, to surveillance programs that scrutinize whole populations and heads of state, controversies arise over whether and how such actions should be regulated by international human rights law.

Please join Just Security and the Center for Human Rights and Global Justice (CHRGJ) for a panel discussion with Shaheed Fatima, Ryan Goodman, and Harold Koh on the application of human rights law to extraterritorial national security policies and practices.

About the Panelists:

Shaheed Fatima is a London-based barrister, practicing from Blackstone Chambers. Her diverse practice focuses on international law, administrative/constitutional law and commercial law. She is Junior Counsel to the Crown (A Panel, 2011-present) and frequently acts for the British Government in both domestic and international litigation. A principal area of her expertise is national security law: she has taught intensive courses in this area, utilizing her wide-ranging national security litigation experience. She is a founding editor of Just Security.

Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law and Co-Chair of the Center for Human Rights and Global Justice at New York University School of Law. He is also Professor of Politics and Professor of Sociology at NYU. He was the inaugural Rita E. Hauser Professor of Human Rights and Humanitarian Law and the Director of the Human Rights Program at Harvard Law School. He is co-editor-in-chief of Just Security.

Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He returned to Yale in January 2013 after serving for nearly four years as the 22nd Legal Adviser of the U.S. Department of State, for which he received the Secretary of State’s Distinguished Service Award. For the 2014-2015 academic year, Koh also serves as a distinguished scholar in residence at NYU Law. Koh is a leading expert on public and private international law, national security law, and human rights. He is a founding editor of Just Security.

Visit www.chrgj.org to learn about other events and programs.

News Roundup and Notes: October 24, 2014

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

U.S. military forces carried out six strikes in Syria on Wednesday and Thursday, and a further nine strikes along with partner nations in Iraq, targeting ISIS militants around Mosul Dam, Bayji oil refinery, and Fallujah. [Central Command]  French airstrikes in Iraq have taken out 12 Islamic State buildings, holding an arsenal of weapons, according to France’s chief of staff of armed forces speaking today. [Reuters]

The U.S. and partner countries have carried out 632 airstrikes in Iraq and Syria and dropped more than 1,700 bombs in the campaign against the Islamic State, according to a Central Command statement. [Al Jazeera]

ISIS fighters and Syrian Kurds remain engaged in fierce battles for control of Kobani, with both sides making gains and losing territory in and around the Syrian border town on Thursday. [Wall Street Journal’s Rory Jones]

Cutting off the Islamic State’s access to revenue. The Treasury Department’s top counterterrorism official, David Cohen, said that the American-led strikes against ISIS-held oil refineries are threatening the group’s key revenue stream [New York Times’ Julie Hirschfeld Davis]  In an address yesterday, Cohen suggested Qatar and Kuwait are not doing enough to prevent the financing of ISIS activities [Wall Street Journal’s William Mauldin] Cohen also discussed U.S. efforts to disrupt the group’s method of fundraising through donations made on social media. [The Hill’s Justin Sink]

The Iraqi army is many months away from being ready to launch a sustained counteroffensive against the Islamic State, with any effort in Syria likely to take even longer, according to U.S. military and defense officials. [Reuters’ Phil Stewart]  However, officials remained positive that Baghdad airport was out of the Islamic State’s reach owing to strategic “spoiling attacks” carried out by Iraqi troops. [Wall Street Journal’s Julian E. Barnes]

Islamic State fighters used chlorine gas against Iraqi officers in an attack north of Baghdad last month, according to a report from Washington Post’s Loveday Morris. A National Security Council spokesperson said U.S. officials were investigating the report. [New York Times’ Kirk Semple and Eric Schmitt].

ISIS has identified members of the U.S. media as “desirable targets,” the FBI warned reporters yesterday. [Politico’s Dylan Byers]

President Obama will meet with members of the National Security Council and others at the State Department today to discuss U.S. efforts to combat the Islamic State. [The Hill’s Justin Sink] 

U.S. attempts to identify American citizens through the thousands of photos smuggled out of Syria last year have failed, frustrating plans to prosecute officials from the Assad regime in federal courts. [Wall Street Journal’s Jess Bravin and Adam Entous]

Lebanon will not accept any more refugees from Syria other than in “exceptional” cases, as the country cannot cope with any more, according to the Information Minister. [AP]

An increasing number of Western Muslim women are attempting to join the Islamic State and travel from Europe and beyond to Iraq and Syria. [New York Times’ Steven Erlanger]

The Obama administration has given the Syrian regime “another pass on chemical weapons,” argues the Washington Post editorial board, noting recent reports of fresh chemical weapons attacks on civilian areas.

The New York Times editorial board emphasizes the importance of saving Kobani, noting that a setback there would “show the fragility of the American plan and hand the Islamic State an important victory.”

Mark Perry considers the influence that Gen. Martin Dempsey had on President Obama’s decision to become involved in the situation in Iraq this August. [Politico Magazine]

OTTAWA SHOOTINGS

The man responsible for Wednesday’s attack, Michael Zehaf-Bibeau, was a Canadian citizen who had reportedly undergone a “radicalization process” and had recently applied for a passport, hoping to travel to Syria, according to Canadian police [Reuters’ Randall Palmer et al.]

A compilation of security video footage shows the movements of Zehaf-Bibeau as the events of the attack in Ottawa unfolded. [CBC News]

The targeting of soldiers “in a mainly tranquil land” is likely to lead to discussion around global action against terror, writes The Economist. And The Guardian editorial board cautions against the “understandable rush for new security legislation in Canada.”

RUSSIA and UKRAINE

Pro-Russian rebels indicated their plans to end the ceasefire in Ukraine’s east, with a rebel leader warning yesterday that “periods of intense hostilities will follow.” [Al Jazeera]

Reuters has found the remains of tanks in eastern Ukraine that have been identified as belonging to the Russian army, according to military experts, offering further evidence of Moscow’s involvement in the conflict.

OTHER DEVELOPMENTS

The CIA is trying to lessen the impact of the upcoming Senate Intelligence Committee’s report on the agency’s post-9/11 interrogation methods, by insisting on censoring the pseudonyms used for officers named in the document, according to committee member Sen. Ron Wyden. [AP’s Ken Dilanian]

A Russian who fought alongside insurgents in Afghanistan will be flown to the U.S. to face terrorism charges in a federal court; the first instance of a foreign combatant seized in Afghanistan being brought to the U.S. for trial. [Washington Post’s Adam Goldman]

The Obama administration is seeking support on a possible nuclear deal with Iran from Congress, U.S. policy makers, and other allies ahead of the November 24 deadline. [Wall Street Journal’s Jay Solomon and Carol E. Lee]

The United States and South Korea have reached an agreement for the wartime control of forces, during a meeting at the Pentagon yesterday. [DOD News]

A suspected Taliban attack on a vehicle in Afghanistan’s Nangahar province today killed five people and injured two. [AP]

Boko Haram militants have reportedly abducted more women close to the border with Cameroon, according to local sources. [New York Times' Adam Nossiter]  The Chad Foreign Ministry believes that Nigeria’s secret agreement with Boko Haram to free over 200 abducted girls will go ahead despite breaches of a ceasefire agreement. [Reuters]

Libya’s newly appointed foreign minister expresses hope for a negotiated settlement to end the standoff in Tripoli in an interview with the AP.

Violent unrest in Jerusalem, Israel, is the worst it has been since the first Palestinian uprising, as demonstrations and violence escalated the day after a Palestinian rammed his car into a crowed train station, writes Joshua Mitnick. [Wall Street Journal]

The Swedish government has called off a search for foreign submarines off the east coast of the country. [Wall Street Journal’s Charles Duxbury]  The Economist notes that this week’s search was “vividly reminiscent of a drama from an earlier era,” with comparisons drawn to the Cold War.

If you want to receive your news directly to your inbox, sign up here for the Just Security Early Edition. For the latest information from Just Security, follow us on Twitter (@just_security) and join the conversation on Facebook. To submit news articles and notes for inclusion in our daily post, please email us at news@justsecurity.org. Don’t forget to visit The Pipeline for a preview of upcoming events and blog posts on U.S. national security.

The Canadian Terrorist Attacks and Canadian Counter-Terrorism Law

Canada has been rocked by a series of home grown and apparently lone wolf terrorist attacks in the last few days. The attacks have left two brave members of the Canadian Forces dead.  One was run down by car in Montreal Oct. 20 and the second was shot at a war memorial next to Parliament in Ottawa on Oct. 22. The perpetrators in both cases were shot dead by the police.

Before these events are ascribed to a shortcoming in Canadian counter-terrorism care should be taken by both Canadians and their allies in order to avoid the tendency for legislative quick fixes in the wake of these shocking and tragic events.

The second and more spectacular attack involved Michael Zehaf-Bibeau, a person with past criminal convictions relating to drugs and uttering threats. Zehaf-Bibeau was shot dead by the Sergeant in Arms in the middle of Canada’s Parliament building after he shot and killed a soldier at Canada’s war memorial. It is not yet known if ideology played a role in this more recent crime. Zehaf-Bibeau had a prior criminal record and some have suggested that mental illness might be a factor.

The first incident while less dramatic, is more troubling from a legal perspective. This is because legal mechanisms aimed at thwarting such attacks are already in place. Continue Reading »

Due Process and the Military Commissions

As I noted yesterday, one of the more remarkable moments in the D.C. Circuit oral argument in al Bahlul v. United States–a challenge to the constitutionality of a conspiracy conviction rendered by a Guantánamo military commission–was the government’s concession that, notwithstanding the D.C. Circuit’s 2009 ruling Kiyemba v. Obama, the Fifth Amendment’s Due Process Clause (including the equal protection component thereof) does apply to the military commissions such that defendants may affirmatively invoke it as a defense. Whether or not such a concession was necessary (I’m not as convinced that Wong Wing requires it as al Bahlul’s counsel, Michel Paradis, seems to be), it was certainly striking…

In al Bahlul‘s case, the import of that concession is to give at least some credence to the defendant’s equal protection challenge to the Military Commissions Act–which only authorizes military commission trials of non-citizens (and thus facially discriminates on the basis of alienage, as Neal Katyal lamented in a 2007 Stanford Law Review essay). But the three-judge panel that heard yesterday’s argument need only reach the equal protection challenge if it rejects al Bahlul’s other challenges to his conspiracy conviction, including his (in my view, stronger) Article I and Article III challenges. If al Bahlul prevails on either the Article I or Article III issue, his equal protection claim will be moot.

Instead, the real significance of the government’s concession is likely to be felt in other pending military commission cases, especially the 9/11 trial and Nashiri. Whether or not those defendants now seek to raise their own equal protection challenges, the government’s concession (of which the commissions can–and likely should–take judicial notice) opens the door to a range of other due process challenges, including challenges to the pre-trial procedures employed by the commissions; challenges to the closing of certain of the proceedings; and challenges to evidentiary rulings if and when these cases get to trial, all in the name of procedural fairness. The government has long maintained that the rules and procedures prescribed to govern the commissions do not materially deviate from the rules and procedures that would apply in courts-martial; defense counsel have maintained for just as long that those rules and procedures are toothless without some kind of constitutional underpinnings. The real upshot of yesterday’s concession, then, may be in requiring the presiding judges in the 9/11 and Nashiri cases to finally decide who has the better of this argument…

Samantar v. Yousuf: What Happens Next?

As Beth Van Schaack reported last week, the Supreme Court has called for the views of the Solicitor General in Samantar v. Yousuf, a case raising questions about the immunity of a former foreign official from liability for torture and extrajudicial killing. Samantar was once Defense Minister and then Prime Minister of Somalia, where he was responsible for serious violations of human rights. He has lived in the United States since 1997. Some of Samantar’s victims also fled to the United States, and in 2004 they sued him in U.S. district court under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). Their claims are not mere allegations. In 2012, Samantar openly admitted liability for torture and extrajudicial killing, and the district court found that “Samantar not only knew about” the human rights violations “but he in fact ordered and affirmatively permitted such violations.”

The stakes are high. The Supreme Court has been chipping away at the ability of human rights victims to find redress in U.S. courts. Foreign corporations are largely shielded from personal jurisdiction with respect to human rights abuses abroad after the Court’s 2014 decision in Daimler AG v. Bauman. All corporations are exempt from claims under the TVPA for torture and extrajudicial killing following Mohamad v. Palestinian Authority in 2012. And the future of human rights suits against U.S. corporations under the ATS depends on how lower courts interpret the cryptic last paragraph of Chief Justice Roberts’s 2013 opinion in Kiobel v. Royal Dutch Petroleum Co. Kiobel left the door open to human rights claims against individuals under the ATS of the type brought in the landmark 1980 case of Filartiga v. Pena-Irala, and the TVPA provides an express cause of action against individuals for torture and extrajudicial killing under color of foreign law. But doctrines of foreign official immunity could extinguish such claims, leaving the victims of human rights violations no recourse in U.S. courts even when, as in Samantar, both the victims and the perpetrator are longstanding residents of the United States.

One might think the Supreme Court has had quite enough of the tangled history of Samantar’s case. As Beth noted, this is the third time Samantar has asked the Supreme Court for review. The first time, in 2010, the Court unanimously rejected his argument that the Foreign Sovereign Immunities Act (FSIA) shielded him from suit. The Court held that the immunity of foreign officials in U.S. courts was governed not by the FSIA but by federal common law. On remand to the district court, the State Department determined in 2011 that Samantar was not entitled to immunity, citing in particular the lack of a recognized government in Somalia and the fact that Samantar was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.”

Continue Reading »

News Roundup and Notes: October 23, 2014

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.

OTTAWA SHOOTINGS

The Canadian capital suffered its second terrorist attack this week when a gunman fatally shot a soldier guarding the National War Memorial before entering the Canadian Parliament building and firing multiple shots yesterday. The assailant, Michael Zehaf-Bibeau, was shot dead by Sergeant-at-Arms Kevin Vickers outside the MP’s caucus room. [CBC News]  Zehaf-Bibeau was a convert to Islam and had reportedly already been designated as “high-risk” by authorities. [NBC News]

Both President Barack Obama and Secretary of State John Kerry condemned the “heinous and evil” attacks on “close” ally Canada, and Obama spoke by phone with Prime Minister Stephen Harper to express America’s solidarity with Canada following this week’s attacks.

The U.S. has increased military presence at the Tomb of the Unknowns at Arlington National Cemetery after the fatal shootings, though both the FBI and Homeland Security Department said there was no specific threat posed to the U.S. [AP]

Justin Ling describes the incident as a “spectacular failure for Canadian intelligence” and notes the difficult questions facing Prime Minister Stephen Harper and his government. [The Guardian]  Marc Santora explores the threat of homegrown extremism facing Canada. [New York Times]  Tim Mak et al. question whether those responsible for this week’s attacks were part of a larger jihadist web. [The Daily Beast]

The Ottawa attack is “a reminder of the threat the free world still faces,” according to the Wall Street Journal editorial board, which suggests that the Secret Service should consider what the attack indicates about the vulnerability of U.S. government buildings.

CBC News has live updates on the shootings and the police response surrounding Parliament Hill.

IRAQ and SYRIA

American military forces conducted six airstrikes near Kobani over Tuesday and Wednesday, and a further 12 strikes with partner nations in Iraq, in the vicinity of Mosul Dam. [Central Command]

U.S.-led coalition airstrikes in Syria have killed 521 Islamist fighters and 32 civilians so far in the campaign against the Islamic State, according to the London-based Syrian Observatory for Human Rights. [Reuters]

One bundle of weapons and supplies airdropped by U.S. forces in Syria likely fell into ISIS hands, a Pentagon spokesperson confirmed yesterday. Continue Reading »