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LEGAL RESPONSES to TERRORISM Wayne Mccormack Supplement December 2012 TABLE of CONTENTS

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LEGAL RESPONSES to TERRORISM Wayne Mccormack Supplement December 2012 TABLE of CONTENTS LEGAL RESPONSES TO TERRORISM Wayne McCormack Supplement December 2012 TABLE OF CONTENTS Chapter 1 INTRODUCTION. 1 § 1.02 INTERLOCKING GOVERNMENTAL CONTROLS . 1 [A] Options – Force and Nonforce. 1 [C] Security and Law Enforcement. 2 Chapter 2 U.S. LAW AND GLOBALIZED TERRORISM. 4 § 2.02 EXTRATERRITORIAL JURISDICTION. 4 [A] Abduction for Trial in the U.S... 4 UNITED STATES v. GHAILANI.. 4 United States v. Slough. 8 [C] Investigation Abroad. 11 In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (Fourth Amendment Challenges). 11 In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (Fifth Amendment Challenges).. 17 Chapter 3 MATERIAL SUPPORT OF TERRORISM. 31 § 3.03 DESIGNATED FTO’S AND THE RIGHT OF ASSOCIATION. 31 [A] PROHIBITING MATERIAL SUPPORT. 31 HOLDER v. HUMANITARIAN LAW PROJECT .. 31 UNITED STATES v. FARHANE. 45 § 3.04 CONSPIRACY AND MATERIAL SUPPORT PROSECUTIONS. 51 Chapter 4 CIVIL ACTIONS. 59 § 4.01 CIVIL ACTIONS. 59 Boim v. Holy Land Found. for Relief & Dev... 59 In re Terrorist Attacks on September 11, 2001.. 62 § 4.02 ASSET SEIZURE AND FORFEITURE. 63 AL HARAMAIN ISLAMIC FOUNDATION v. U.S. DEPT. OF TREASURY.. 63 KINDHEARTS FOR CHARITABLE HUMANITARIAN DEVELOPMENT, INC. v. GEITHNER.. 72 Chapter 5 INVESTIGATION, PROSECUTION & SECRETS. 80 § 5.02 PATRIOT AND PRIVACY. 80 [B] Access to Third-Party Records. 80 DOE v. MUKASEY. 80 [C] The NSA Surveillance Program.. 81 In re NSA Telcomm. Records Litigation. 81 Al-Haramain Islamic Found., Inc. v. Obama. 84 § 5.03 CLASSIFIED INFORMATION PROCEDURES ACT. 85 UNITED STATES v. ABU ALI. 85 [B] The UK Special Advocate and Closed Materials Procedures.. 92 AL RAWI v. SECURITY SERVICE. 92 HOME OFFICE v. TARIQ. 103 Chapter 6 TOWARD AN INTERNATIONAL LAW OF TERRORISM. 110 § 6.02 DEVELOPING INTERNATIONAL CRIMINAL LAW. 110 [C] International Criminal Court and Other Tribunals.. 110 Chapter 7 ALIENS AND ETHNIC PROFILING. 112 § 7.01 ALIEN DETENTIONS AND SECRECY. 112 ASHCROFT v. AL-KIDD. 112 § 7.02 DETENTIONS AND ETHNIC PROFILING . 117 Ashcroft v. Iqbal. 117 Chapter 8 THE MILITARY OPTION. 118 Note on reorganizing Chapter 8.. 118 § 8.03 MILITARY DETENTIONS.. 118 [A] The 2004 Cases. 119 HAMDI v. RUMSFELD. 119 RASUL v. BUSH. 122 [B] Guantanamo Detention Revisited. 123 BOUMEDIENE v. BUSH. 128 PARHAT v. GATES.. 161 Kiyemba v. Obama. 162 President Obama and Guantanamo. 162 AL-BIHANI v. OBAMA. 167 ABDAH [ODAINI] v. OBAMA. 174 Bensayah v. Obama. 176 [C] Habeas Corpus in Iraq and Afghanistan.. 178 MUNAF v. GEREN.. 178 MAQALEH v. GATES.. 183 § 8.04 GUANTANAMO: MILITARY TRIBUNALS AND CONGRESS. 187 HAMDAN v. UNITED STATES . 187 Note on the Lawyers of Guantanamo. 190 § 8.05 DOMESTIC EXECUTIVE DETENTIONS. 191 Padilla v. Hanft. 192 PADILLA v. YOO. 193 Chapter 9 INTERROGATION & EMERGENCY POWERS. 201 UNITED STATES v. BELFAST.. 201 § 9.01 INTERROGATION & TORTURE. 204 Arar v. Ashcroft.. 206 § 9.02 EMERGENCY POWERS & CIVIL LIBERTIES.. 207 A v. United Kingdom. 207 Gillan & Quinton v. United Kingdom. 207 § 9.03 SUING GOVERNMENT OFFICIALS. 207 MOHAMED v. JEPPESEN DATAPLAN.. 208 Al-AULAQI v. OBAMA.. 224 Appendix – DOCUMENTS. 239 Statutes on Domestic Use of Military. 239 18 USC § 1385. Use of Army and Air Force as posse comitatus . 239 10 USC § 331. Federal aid for State governments . 239 10 USC § 332. Use of militia and armed forces to enforce Federal authority . 239 10 USC § 372. Use of military equipment and facilities . 239 Military Commission Act of 2006.. 240 10 USC § 950g. Review by the United States Court of Appeals . 240 10 USC § 950j. Finality of proceedings.. 240 Executive Order 13491 (Jan 22, 2009).. 241 UNITED KINGDOM Terrorism Act 2006. 242 Chapter 1 INTRODUCTION add at page 1: Among the important issues of this subject are the extent to which terrorism poses a genuine threat to society, and the extent to which normal practices of law enforcement and civil liberties should yield to an unusual threat. Most of the arguments have taken place as appeals to history, philosophy, or plain emotion. One more calculating approach was taken by looking at risk assessment techniques developed in dealing with such matters as nuclear power plant licensing, domestic chemical use, and pollution emissions: Many people hold that terrorism poses an existential threat to the United States. But a look at the actual statistics suggests that it presents an acceptable risk – one so low that spending to further reduce its likelihood or consequences is scarcely justified. John Mueller & Mark Stewart, Hardly Existential: Thinking Rationally About Terrorism, FOREIGN AFFAIRS (April 2, 2010). Comments on the Foreign Affairs blog responded that it would be inappropriate to count the successes of counter-terrorism against its continued funding, and that we can never know what plots were foiled as a result of counter-terrorism efforts. These themes recur throughout our study, particularly in relation to the employment of extreme measures such as harsh interrogation techniques or domestic wiretapping, let alone employment of military force. § 1.02 INTERLOCKING GOVERNMENTAL CONTROLS [A] Options – Force and Nonforce add at page 9: The question of whether the struggle against terrorism could be called a “war” or “armed conflict” has intensified with the realization of how many executive actions of the Bush administration turned on the “global war on terrorism” phrase. Within hours of the 9/11 attacks in the United States, President George W. Bush declared ‘a global war on terrorism’. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanise the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. 2 LEGAL RESPONSES TO TERRORISM (2D ED.) The [Use of Force Committee of the International Law Association] has found evidence of at least two characteristics with respect to all armed conflict: 1. The existence of organised armed groups 2. Engaged in fighting of some intensity Mary Ellen O’Connell, Defining Armed Conflict, 13 J. CONFLICT AND SECURITY LAW 393 (2008). [C] Security and Law Enforcement add at page 13: The law enforcement option involves acquisition of evidence pointed toward a criminal trial in a duly constituted court. The political emphasis on terrorism in the last few years has produced several demands for modification from that traditional approach, such as demands for a special terrorism court and demands for detention of dangerous persons without trial. These demands may proceed from the perception that convictions of shadow conspiracies are difficult, or that secret evidence may be necessary in some cases, or that some people are just too dangerous to be allowed a forum in which to plead their cause The idea of a special terrorism court has been promoted by some observers. The idea is to have a special court that deals with all criminal prosecutions of terrorist activity. In at least one version of the proposal, the court would be allowed to hear classified information that was not disclosed to the defendant so long as there was sufficient disclosed evidence to sustain a conviction. The “confidential intelligence information . may only be used to support an existing body of evidence known to the defendant and his counsel and introduced in open court proceedings.”Amos Guiora, Creating a Domestic Terror Court, 48 WASHBURN L.J. 617, 631 (2009). Detention without trial has garnered some well-known supporters under the auspices of the Brookings Institution: If the Obama administration chooses to maintain a system of non-criminal military detention – and for reasons set forth below, I think it should – it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. Jack Goldsmith, Long-Term Terrorist Detention and Our National Security C o.
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