Prosecuting Terrorism: the Legal Challenge

Issue No. 7 / April 2006 THE NYU REVIEW OF LAW AND SECURITY

A PUBLICATION OF THE CENTER ON LAW AND SECURITY AT NYU SCHOOL OF LAW

Prosecuting Terrorism: The Legal Challenge

committed to examining the legal dimensions of counterterrorism and national security in the age of terror Newsletter_NYU 3/29/06 7:00 AM Page 2

CENTER FACULTY AND STAFF The NYU Review of Law and Security Executive Director Issue No. 7 / April 2006 Karen J. Greenberg Table of

Editor Faculty Co-Directors Contents Karen J. Greenberg Noah Feldman David M. Golove Associate Editor Stephen Holmes Prosecuting Terrorism: Kristin Henderson Richard H. Pildes The Legal Challenge Assistant Editor Administrative Director Jennifer Buntman Heidi Lubov From the Editor: A Season of Reassessment Researchers Director of Programs and Page 3 Jonathan Voegele Publications Andrew Peterson Kristin Henderson Transparency and the Courts Eric Feder Page 4 Communications and Proofreader Development Associate Thwarted Terrorist Attacks Katie Sticklor Colleen Larkin Page 16 Design Director of Fellowships and Wendy Bedenbaugh Prosecuting Terrorism: Special Programs The National Challenge Jennifer Buntman Page 22 ABOUT THE CENTER The Center on Law and Security at 2005 – 2006 FELLOWS Terrorist Trial Updates NYU School of Law is a non-partisan Sidney Blumenthal research and policy institute estab- Page 30 lished for the purpose of examining Amos Elon the legal dimensions of national secu- Baltasar Garzón From the Student’s Corner: rity in the post 9/11 era. The Center Tara McKelvey Material Support Statutes brings together national and interna- Michael Vatis and the Role of Congress tional experts including policymakers, Lawrence Wright By Andrew Peterson law enforcement officials, legal schol- Page 32 ars, journalists and others in an arena BOARD OF ADVISORS that generates local, national, and CLS Summer Intern Reports: Daniel Benjamin international awareness of security Interpol issues.The Center’s work is focused on Peter Bergen Page 34 four main program areas: Rachel Bronson • Global Security Roger Cressey Books of Note • Domestic Security and the Joshua Dratel Page 35 Rule of Law Richard Greenberg • Special Programs Dana Priest • New Initiatives in Legal Samuel Rascoff Education Keith Weston

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From the Editor A Season of Reassessment

our and a half years have passed terrorist organizations. The courts, too, topics ranged from intelligence reform since the attack on the World are reviewing their own strengths and to law enforcement and counterterror- FTrade Center in downtown New weaknesses in the war on terror. The ism. Paul Clement, Viet Dinh, Richard York City. As we look forward to the Hamdan case (see page 30) revives the Posner, and David Cole were among the five-year anniversary of the attack, we question of whether or not foreign ter- guest speakers who addressed the class find ourselves in the midst of a season of rorist suspects have the right to file on key issues in the now vigorous debate reassessment. This volume, issue no. 7 habeas corpus petitions. The Padilla case taking place in the area of national security. of the NYU Review of Law and Security, (see page 30) questions the president’s Supplementing the focus on the legal presents a range of perspectives on what ability to detain enemy combatants system, this volume includes materials has been achieved and how best to pro- indefinitely. The legal discussion has which help contextualize the nature of ceed in the legal realm in the war on ter- also extended to the question of the the discussion, including a chronological ror. In these pages, contributors consider legality of the war in Iraq. Does the timeline of disrupted terrorist plots pro- these questions: What have we learned president have the constitutional right duced by the White House, which was since 9/11 about the effectiveness and to declare war, and if so, what role does then analyzed by researchers at the legitimacy of our policies? Should we Congress play? Center to determine how these incidents adhere to the reforms put in place In the following pages, leading figures were or were not reported in the media quickly and in the throes of emergency involved in these discussions present (see page 16). Also included is a report or does the distance from the time of their points of view. Joshua Dratel, Neil prepared by the Migration Policy immediate emergency counsel different, Katyal, Stephen Schulhofer and Richard Institute (see page 32) which demon- less radical measures? Are there policies Pildes share their thoughts on the strates the severe alterations in immigra- that have been instituted outside of the importance of maintaining legal rigor in tion policy that have occurred in the regular processes that need to be codi- matters of suspected terrorists, be they name of national security. Another fied? Do we need to rethink the separa- at Guantánamo or on home soil. report of note is a study conducted by tion of powers or are we content to live Andrew McCarthy, Tim Golden, Nat the German Marshall Fund (see page with the protections currently guaran- Hentoff, Donna Newman, and Burt 15) that compares the way Americans teed under the U.S. Constitution? Neuborne discuss, among other issues, and Europeans perceive threats such as The country’s legal system – the whether or not enhanced secrecy, mili- international terrorism, nuclear weapons Constitution, the courts, and Congress tary commissions, and coercive interro- and global warming. – lies at the center of this debate that gation have made the nation stronger All told, the pages that follow are has captivated the nation. Congress is and more effective than it might other- designed to enhance the season of currently engaged in discussions about wise have been in confronting the threat reassessment by providing some perspec- whether or not to extend the country’s of violent Islamic fundamentalism. tive on where we have come from and anti-terror legislation, the USA Each fall the Center runs the Law where we might be headed. PATRIOT Act. The Senate has begun and Security Colloquium, a seminar hearings on the limits of the Foreign open to NYU Law students in which Intelligence Surveillance Act (FISA) distinguished experts are invited to and is obtaining data on terrorists and address the class. This past fall, seminar

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This is not, Transparency and the Courts as the government The U.S. government’s war on terror and its detainment and has“ agreed, a prosecution of suspected terrorists have raised many questions and concerns regarding the amount of transparency in America’s judicial traditional war. system. When national security is at risk, is it acceptable for the government to withhold certain types of information? How much So, if it is not a and what type of information should be released to the public? How can the U.S. courts strike a balance between safeguarding traditional war, national security and maintaining judicial transparency? On March and it is a war that 23, 2005, the Center on Law and Security hosted an open forum, entitled “Transparency and the Courts” in which a panel of experts is going to last addressed these issues.

forever, are they Participants included: Tim Golden, Investigative reporter for the New York Times saying that the Nat Hentoff, Columnist for the Village Voice laws of war allow Andrew McCarthy, Senior Fellow at The Foundation for the Defense of Democracies and former Assistant U.S. Attorney for us to hold some- the Southern District of New York Donna Newman, Attorney representing enemy combatant body forever? Jose Padilla Donna Newman ” Burt Neuborne, Event Moderator, Inez Milholland Professor of Civil Liberties at NYU School of Law and Legal Director of the Brennan Center for Justice

Baltasar Garzón, Burt Neuborne, Karen J. Greenberg, Nat Hentoff, Andrew McCarthy, Donna Newman, and Tim Golden

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spiracy theories tend to carry the day in terms of shaping people’s perceptions. But it has been an extraordinary aspect of the past couple of years’ discussion of these policies that so much documentary information has come out. Another striking fact of this period, although maybe not a particularly surprising one, is how central a role lawyers have played in shaping the government’s response to al Qaeda and to other forms of terrorism. There is a famous statement by Cofer Black [former Director of the CIA’s Counterterrorist Center] quoted in Bob Woodward’s first book about the war in Afghanistan [Bush at War]. “After 9/11, the gloves come off.” That is very much the impression I think most people Tim Golden, Donna Newman, and Moderator Burt Neuborne have. When, in fact, some of the most Transparency vs. Security is, can we make these two values mesh? important and aggressive players in this Are they irreconcilable, or is it possible are a relatively small and nebbishy group Burt Neuborne for us to have both? of government lawyers – some of whom The basic issue that we will be dis- This is not the first time these ques- remain fairly anonymous people in the cussing tonight is the nature of trans- tions have arisen. During the Cold War, White House and the Justice parency in the judicial system. Courts espionage prosecutions had the same Department – who were determined to have always been a paradigm of open- concerns. Prosecutions during ongoing respond to the shocking brutality of the ness in the American system, from the investigations of certain types of organ- attacks by pushing the law as far as it constitutional protection of a public ized crime figures also had many of the would go. This became most obvious to trial to the various procedural protec- same concerns. Terrorism trials are, at a Americans with the Patriot Act, and that tions of confrontation, cross-examina- minimum, the third wave of prosecu- was what people primarily paid attention, and due process. These procedures tions that have gone through the courts tion to at that time. are all aimed at ensuring that the judi- where there has been the necessity of While that debate was going on, a cial process operates in the open, in the balancing these two values. series of other measures was being dis- view of the public. Yet, there are costs – cussed, measures which only later came namely, the information that comes to Origins of Terrorist Prosecution more clearly into focus. These measures light at trial may be information that Policies in the U.S. had to do with the detention, interroga- the government, for legitimate reasons, tion and prosecution of terror suspects would rather not have in the public Tim Golden outside the United States and those realm. We need to consider the collision It is interesting to consider what we coming from foreign countries. That between the government’s legitimate know about the thinking inside the discussion almost immediately rejected interest in controlling certain types of Bush administration in the aftermath of the federal courts as a viable option. In information and the extraordinarily 9/11, how the policies for prosecuting the first interagency discussion that took powerful mandate that we have in the terrorism originated, and what they were place, the people who dominated the judicial system to operate completely intended to accomplish. conversation–who were not necessarily openly, both to obtain public acceptance It is probably in the nature of this people with a great deal of experience in and to ensure a fair trial. The question kind of government secrecy that con- terrorism prosecutions–held the view

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that terrorism prosecutions, which took And they had great impatience, not only of this new approach would not work, place almost entirely in New York dur- with the Congress, but with the intera- that some of the powers that they were ing the nineties, had been a less than gency process within the government. asserting were not entirely necessary, successful endeavor. Some people had It is not accidental, I think, that the except perhaps in a small number of gotten away. Other people had evaded group of largely young lawyers who cases. And they realized that you risked questioning by the FBI, primarily in the came into the administration ended up such a public-relations backlash that you embassy bombings case. And there were in key positions on these issues: first and might create a problem as great or people who were hard to prosecute. foremost, David Addington, Dick greater than the one that you were going While the results that came out were Cheney’s counsel; Tim Flanigan, to solve. driven in part by a desire to throw the Deputy White House Counsel; Alberto Those kinds of complaints are being book at these people and exact justice, a Gonzales to a lesser extent; John Yoo at heard now from some of those people primary goal was to gain information the Justice Department’s Office of Legal publicly and from some of them more through interrogation. The core group Counsel; and a lesser known group of anonymously. They are not saying that of people who shaped the military’s other people on the White House- the system is too harsh or too unjust, NCI rules on detention and interroga- Justice Department periphery. This necessarily. They are not even saying tion and who created the structure of group included people whose resumes that we should revert to the federal military tribunals at Guantánamo and identities were forged in the politi- courts, or to military courts-martial to wanted to give interrogators more time. cal battles of the 1990s as well as in the deal with the prosecution and detention They wanted to get defense lawyers out academic discussions that were taking of terrorists. What I think they are say- of the mix, and they wanted to protect place at the time about the limits of ing instead is that big parts of this new classified information at trial. Those international law. People excluded from apparatus – interrogation methods, ren- were all primary goals. these discussions included many people ditions, military commissions, even But part of the documentary record at the State Department, the Pentagon, Guantánamo as a whole – are either not shows that they saw the possibilities in and the Justice Department, who might the most effective tools, or have become terms of higher-order issues. They were have questioned the lack of due process legally or politically untenable. people who had a very expansive view of in what was laid out. But, almost more In the case of Guantánamo, more presidential power, especially in war- importantly, the discussions excluded than three years after the president’s time. They had an aggressive lack of people at the Pentagon and/or in the November 13th military order establish- regard for the strictures of international military or in the CIA, who might have ing the Pentagon’s role and establishing law, which has become evident from the quarreled with these policies on practical commissions as a way to prosecute peo- debate over the Geneva Conventions. grounds. I think they thought that parts ple, not a single commission trial has Fall 2005 Law & Security Colloquium

David Cole, Professor of Law, Georgetown University Seminar topic: Security and Rights “The Rule of Law should be viewed as an asset, not an obstacle, in the war on terror. The administration, unfortunately, does not see it that way.”

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gone forward. Those cases may now be law. Actually, there’s a lot that United tied up in the appeals courts and the States interrogators can learn from their Supreme Court for at least another year. counterparts in Uzbekistan. One of the More than three years after the CIA and CIA’s jet planes used to render pur- the Pentagon began trying to sort out ported terrorists to other countries interrogation rules, we are almost back where information is extracted by any to square one. That may be going too means necessary, made ten trips to far, but a lot of things are now up in the Uzbekistan. On CBS’s recent 60 air, and I think people in those agencies Minutes program [March 9, 2005] on are very concerned about what they are these torture missions, former British supposed to do and how they are going Ambassador to Uzbekistan, Craig to do it effectively. Murray, told of the range of techniques The Pentagon is fairly desperate to Tim Golden used by Uzbek interrogators, including empty out Guantánamo and is at a loss out (and some that I have seen that have drowning and suffocation. Rape was for ways to do it. It is unclear where, not come out) in the back and forth used, as was the insertion of limbs into today, if you had two hundred new between the White House Counsel’s boiling liquid. Two nights later on detainees seized abroad who were bona Office and the Office of Legal Counsel ABC’s World News Tonight, Craig fide al Qaeda members, you would even in the Justice Department, for example, Murray told of photos he received of an put them. And so it seems to me that, in which very extraordinary measures are Uzbek interrogation which ended with like it or not – and the Congress has not being considered. What do we do if the prisoner being boiled to death. by any means been clamoring as a whole another plane is hijacked and we think Craig Murray, appalled, had for this discussion – society is now going it is flying toward some kind of target? protested to the British Foreign Office to have this discussion in a much more Do we shoot it down? If terrorists take in a confidential memorandum leaked open way, and that is what is starting to over an apartment building full of peo- to the Financial Times of London, not happen. ple, what do we do? The solutions that generally known as a left wing newspa- people posit are fairly extreme ones. At per. This appeared on October 11, Burt Neuborne the same time, I think that the fact that 2004. “Uzbek officials are torturing To what extent is the willingness to dis- the original discussion was so secretive prisoners to extract information about cuss this more openly today a function and so limited is also a defining element reported terrorist operations, which is of the fact that a number of years have of the delay in this debate. Tim supplied to the United States and passed, and we are no longer in the Flanigan told me that a sure way to set passed through its Central Intelligence post-9/11 situation where there was an people against a policy is to exclude Agency to the U.K.,” said Mr. Murray. almost desperate fear of where the next them from discussing it, and I think Prime Minister Tony Blair is apparently attack was coming from and there was a wise people like Flanigan, who endorsed not terribly sensitive to human rights. tremendous amount of anxiety and a lot of what was done, feel that some Craig Murray was removed as Ambas- ignorance that may have resulted in pol- tactical mistakes were made in that sense. sador to Uzbekistan. On the BBC the icy driven by panic? The panic may have next week, Steve Crenshaw, director of been justified at that point, but after a The U.S. and Uzbekistan: the London office of Human Rights couple of years, aren’t we now in a posi- Partners in Interrogation Watch, spoke plainly about the presi- tion to be able to take a more mature dent’s continual ardent assurances that look at it? Nat Hentoff this country would never engage in tor- The non-transparent CIA’s extraordinary ture. He once said, “It opposes our very Tim Golden renditions have become less and less soul as a nation.” Said the human rights I think that obviously there was that secret. What I want to focus on is how man in London, “You can’t wash your element of panic. I think you can read one of our partners in interrogation, hands and say, ‘We didn’t torture, but some of the documents that have come Uzbekistan, operates under its rule of we’ll use what comes out of torture.’”

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This goes back in terms of media, “Porter Goss claimed the CIA is not now thing that we stand for to send some- among other places, to Dana Priest’s using torture, and that waterboarding is a body to a place where we have every story in the Washington Post toward the ‘professional interrogation” technique. He reason to believe the person is going to end of 2002 about what was happening can’t have it both ways. be tortured, and then claim that we not in rendition, but at Bagram Airbase Waterboarding, known in Latin have no moral responsibility for it. But itself. One official, not named, said, America as the ‘submarino,’ entails foci- what if somebody is captured in some “After all, if you’re not in the room, bly pushing a person’s head under water horrible place around the world where what blame is there on you?” As for our until he believes he will drown. In prac- torture takes place and they torture ally, Uzbekistan, run by the merciless tice he often does. Waterboarding can information out of him, and the infor- dictator, Islam Karimov, Philip Stevens, be nothing less than torture in violation mation is valuable in protecting the an incisive columnist for the Financial of United States and international law.” United States against a terrorist attack? Times noted in that paper on October Reed Brody concluded, “Mr. Goss, by Would you accept that information and 19th, “Uzbekistan provides a vital base justifying the practice as a form of pro- use it to defend us? for U.S. operations in neighboring fessional interrogation, renders dubious Afghanistan. U.S. financial aid to his broader claim that the CIA is not Nat Hentoff Uzbekistan provides a bulwark against practicing torture today.” Well, first of all, it seems to be an Russian influence.” And, an October I cannot resist the temptation to almost universal truth that torture, Financial Times editorial emphasizes repeat what George W. Bush said on wherever it occurs, is hardly the most that because the Bush administration International Day, June 26, 2003, in reliable form of interrogation. Colin supports the vicious government of support of victims of torture, “The Powell found that out when he made President Karimov, the U.S. “has given United States is committed to the that famous, or not so famous, speech it the confidence to sell a long-running worldwide elimination of torture, and to the United Nations and included a campaign against internal dissidence as we are leading this fight by example. I piece of information that was obtained part of the campaign against al Qaeda.” call on all governments to join with the from a detainee who was held in a secret In 2003, Fatima Mukhadirova United States in prohibiting, investigat- interrogation center by the CIA. The showed photographs of her son, who ing, and prosecuting all acts of torture.” information was false. They had tor- had been tortured to death in an Uzbek To pursue that goal in Congress, how- tured it out of him by waterboarding. prison. Her son’s teeth were smashed. ever, is rather difficult, because in the So, no, I don’t care where the torture His fingers were stripped of nails. His Senate, although Jay Rockefeller is try- takes place. First of all, it does violate body had been cut, bruised, scalded. ing to get an independent investigation, those countries’ adherence to interna- His mother, as of the last I heard, Senator Roberts says he has blocked tional law. And, if we are going to take which was last year, is on trial for this, saying, “Let me assure you, the information given by that sort of coun- infringement of the constitutional order Senate Intelligence Committee is well try, it seems to me we are complicit in so that she can shut up about what was aware of what the CIA is doing overseas the violation, and more to the point, we done to her son. Meanwhile, Porter in the defense of our nation, and they don’t know what the hell we are getting. Goss, whose CIA benefits from infor- are not torturing detainees.” CIA men mation obtained by Uzbek torturers, may not be there when somebody is From the Founding Fathers to told the Senate Armed Services boiled to death, so I guess that is what Jose Padilla Committee on March 17th that one of George Orwell might have called “dou- the CIA’s own techniques, waterboarding, ble speak.” So, there is still a certain Donna Newman is “an area of what I call professional lack of transparency. I am going to start with our Founding interrogation techniques.” I wonder Fathers, because that is where we in the what the unprofessional ones are. Burt Neuborne Padilla case started (see page 30 for an Anyway, as Reed Brody, special counsel The easy point that you make, and I update on the Padilla case). What to Human Rights Watch, noted in a think that everybody would agree with, astounded us was the position that the March 21st letter to the New York Times, is that it would be a violation of every- government took in our case, a position

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contrary to everything that we had because Padilla was a citizen. learned and had practiced. I begin with Initially, we were not able to commu- Ben Franklin, who said, “They that can nicate with our client, but eventually the give up essential liberty to obtain a little court said, “Well yes, you can see your temporary safety deserve neither liberty client.” The government, by the way, nor safety.” The government now has has never said that that is the law; they changed our concept of a fear of terror have simply said, “We allow you now into a fear of freedom – that is, freedom out of the generosity of our heart to con- to know what is happening, freedom to fer with your client under strict limita- go to court. What we experienced in tions.” Now we are able to see our client, our case is that the government did but we have surveillance cameras watch- Donna Newman everything possible to avoid the courts, ing our interactions with the client. We do what I say, because I know better.” and they are still doing that. have somebody present in the room. This was actually how they conducted To this day, my client is not charged Now, I certainly don’t look like a terror- the beginning of this litigation. “You with a crime, and yet he is being ist, and I don’t have a terrorist back- have no right to information. We will detained in a naval brig in South ground. What was I going to do that give you an affidavit based on hearsay, Carolina. He was not allowed to see made all that surveillance necessary? based on informants we agree are not counsel until the government decided in The answer is, to my mind, that they particularly reliable, but we know better. their generosity after almost two years have a different approach to democracy, This is a matter of national security. that he could see counsel. But, once an approach that I suggest is contrary to And you, despite the fact that you are again, to see my client I had to agree to that of our Founding Fathers and to counsel, despite the fact that you now certain conditions dealing with secrecy. what we as a nation believe at the very have security clearance, trust me, you In other words, I was precluded from core is necessary for our freedom. don’t need to know anything.” Our having certain discussions with him. It One of the doctrines that I found country is not based on “trust me.” The came to the point where I said to my most offensive was what I call the “trust Founding Fathers, in fact, did not trust co-counsel, Andrew Patel, “Do you me” doctrine. I felt like I was a little girl King George, the other King George. think we could ask him what he had for again and my daddy was patting me on They set up separation of powers – checks breakfast without divulging a national the head, and he was saying to me, “I and balances – for the very reason that secret?” That is the nature of the limita- know better. Don’t ask questions, just they did not trust the imperial leader. tion. When you think about an attorney being assigned to a case, and the value Bios of Note of an attorney, certainly it has to do Donna Newman entered law school at the age of thirty-five, after having a career as a with communication with their client. speech pathologist and English teacher and in the midst raising two children. She grad- Yet the government argued at the very beginning of our case that such commu- uated cum laude from New York Law School, was the recipient of the Federal Litigation nication simply was unnecessary to pur- Award, and was a staff member of the Human Rights Journal. Currently, she is an attor- sue a habeas action. And while at first ney in the New York / New Jersey area, having opened her own practice in 1991. She we thought it was laughable, absurd predominantly practices in federal court, specializing in representing criminal defen- even, we went back to the Founding dants before the district court and the court of appeals. She has represented over five Fathers. We went back to English com- hundred clients in matters ranging from simple fraud to complex security fraud and mon law. We went back to the 1600s to racketeering. She currently represents Jose Padilla, who was designated an “enemy look at the Writ of Habeas Corpus. combatant” by President Bush in June 2002. She is a member of the National What was the foundation? What were we talking about? They had what we Association of Criminal Defense Lawyers, the American Bar Association – Criminal considered the audacity to say that we Division, the New Jersey Bar Association and the William J. Brennan Inns of Court. had a right to pursue a habeas action

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There is another problem, and that is me, to my astonishment. They agreed batant and is now in the brig. I also that the government keeps changing its and admitted that they took him because want to point out one very significant story. What they said about my client in they wanted to interrogate him. I simply example, and that is the case of John the beginning was that he was going to say that this is a violation of the most Walker Lindh. In his plea agreement it detonate a radioactive bomb. A year later essential part of our country’s core beliefs. says that he will never be designated an it was, “He never intended to do that. What else did they use the Padilla case enemy combatant. So, this policy had He intended to blow up an apartment for? They used it so that when other its inception at the beginning of the war house. Or maybe it was gas stations. people were taken as suspected terrorists, on terror. How does that sound?” I don’t know they could dangle “enemy combatant” In sum, the Padilla case is simply a whether it is because they received differ- before their eyes and say, “If you don’t fine example of what happens when you ent information, or because, as I believed cooperate, if you don’t give us the infor- change the way you view democracy. from the start, they had nothing on my mation that we want,” again essentially When you have a different slant on how client that was worth anything. Maybe, the goal is interrogation, “we’ll just stick to proceed, you can change the way we as Tim [Golden] said, what they really you in the black hole. You will be the as a nation want to look at fear. wanted to do was to interrogate him. next enemy combatant.” And we have Ironically we, as the terrorists wanted, I will never forget the very first day specific examples of that. In the fear our own freedom and are willing after my client was taken and designated Lackawanna Six case, the attorneys to give it up. an “enemy combatant.” I was astounded. reported that they were faced with the I didn’t even know what an enemy com- threat that, if their clients did not plead Crime vs. War batant was. I had never heard of it. But I guilty, if their clients did not cooperate, did know one thing: that detaining then they would be designated enemy Andrew McCarthy somebody for the purpose of interroga- combatants, too. It is also interesting In my experience, terrorism is a zero tion is unheard of. It is contrary to the that Ali Saleh Kahlah al-Marri, who is sum game. If terrorists are not deterred, principles laid out by the Founding not a citizen, when faced with a charge, they are encouraged. If you convince Fathers. It is contrary to our rights. And, refused to cooperate. He was threatened people that if they attack you, if they do you know what? They agreed with with being designated an enemy com- engage in the mass homicide of civilian

Fall 2005 Law & Security Colloquium

Viet Dinh, Professor of Law, Georgetown University and one of the authors of the USA PATRIOT Act Seminar topic: Emergency Powers and the War on Terror On why the USA PATRIOT Act was created: “We wanted to restore confidence to the American people. Congress wanted to show that they were doing something in order to maintain order and restore confidence in the rule of law in the face of this threat to national security.”

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laws. We presume innocence because security context, where the safety and the balance that our society has drawn is the existence of the country is at stake, that it is preferable to see a guilty person the balance we have to draw is that the go free than to see a single innocent per- government cannot afford to lose, because son convicted of a crime. That is our if the government loses in that context, criminal justice system. It is the envy of then none of the liberties that we enjoy the world, and I do not think we should are worthy of the name “liberties.” want it to be changed for anybody who So, I think that when we ask whether is properly in it. we are acting in a matter that is However, when we are dealing with American, whether we are acting in a national security, we are not dealing with manner that is constitutional, the answer Andrew McCarthy the executive branch’s domestic policing really depends on the paradigm. If you populations, your reaction is going to be power; we are dealing with its national accept that we are at war, if you accept to file indictments, that is not much of security powers. Contrary to the situa- that this is national security, nothing a deterrent. And when they do it again tion of domestic policing, where our that has been done is untraditional or – for example, when Osama bin Laden government has a monopoly on the un-American. Does that mean that mis- was indicted in the spring of 1998 and legitimate use of force, in the national takes haven’t been made, that excessive al Qaeda responded by blowing up our security arena other nations and sub- things haven’t happened? Of course, they embassies in Kenya and Tanzania – if national organizations – militias, terror- happen. They always happen. But I think our only response with respect to bin ist organizations – all claim the right to in this regard, context is everything. Laden is to add another few counts to use massive and lethal force. We are not the indictment, that is not a deterrent. correcting an errant member of the body Burt Neuborne With respect to a war situation where politic, we are dealing with external, The way you have described the process, the security of our people and our existential threats to American society national security becomes a trump card national security is at stake, it is simply and to the American system itself. These that can be played by the government in not acceptable to tell the enemy, “If you are threats to the order on which all of many different contexts that takes what do this, we are going to add six counts our liberties are based. In the national would ordinarily be something that to the indictment.” It does not do anything to protect the American people. Secrecy I think that this is probably a classic The Bush White House, for the most part, has been known for keeping a tight lid on case of trying to put a round peg in a leaks. Vice President Cheney defended that very secrecy in court and won (Cheney v. square hole. U.S. Dist. Court, 124 S. Ct. 2576 (2004)). That emphasis on secrecy extends far past the What we are dealing with here are White House. For example, consider the Bush administration: two very different species of executive • More documents have been classified by the Bush administration than ever power. In a domestic policing context, before. In 2004, 16 million documents were marked classified, the most since the which is the context that the criminal government began keeping statistics in 1980. justice system is made for, and is most apt for, the courts are imposed as a bul- • Numerous government agencies, like the Nuclear Regulatory Commission and wark to protect Americans from oppres- the Department of Defense, have begun taking down or limiting the amount of sive action by the executive branch. We unclassified information they make available to the public through their websites. impose burdens of proof before the gov- • The United States District Court for the Southern District of Florida has been ernment can invade privacy or remove publicly reprimanded by the Eleventh Circuit Court of Appeals for its use of secret liberty. When government acts, it is not dockets in sensitive, terrorism related cases. This is in spite of the fact that the to suppress an existential threat, it is to Eleventh Circuit itself used closed proceedings when hearing the appeal of a similar stop an errant member of the body case (United States v. Ochoa-Vasquez, No. 03-14400 (11th Cir. October 20, 2005)). politic who has violated the society’s

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would go through the criminal justice system with all of its protections, and Bios of Note moves it over into a kind of shadow area Patrick J. Fitzgerald is the U.S. Attorney for the Northern District of Illinois, a position where the executive has internal con- he was appointed to in 2001. He is currently serving as the special prosecutor inves- trols. Are you not just too lightly shrug- tigating the leak of covert CIA operative Valerie Plame's name to reporter and colum- ging your shoulders and saying, “Well, nist Robert Novak. In October 2005 he brought an indictment for five counts of false mistakes may be made under those cir- statements, perjury, and obstruction of justice against Lewis "Scooter" Libby, the for- cumstances, but we have to do it?” Isn’t mer Chief of Staff for Vice President Dick Cheney, in conjunction with the Plame affair. that what they told us when they said that we had to put Japanese Americans Mr. Fitzgerald began his career practicing civil law. In 1988 he became an Assistant into concentration camps during World U.S. Attorney in New York City, where he handled drug-trafficking cases and assisted War II? Isn’t that what they told us in the prosecution of mafia crime boss, John Gotti. In 1994, he prosecuted the case when they said that you have to go to a against Sheikh Omar Abdel Rahman and eleven other suspects charged in the 1993 national security state during the World Trade Center bombing. Three years later, as the National Security Coordinator McCarthy era and do all sorts of dread- ful things to people that turn out to be for the Office of the U.S. Attorney for the Southern District of New York, he served on things we wish we hadn’t done? How a team of prosecutors investigating Osama bin Laden and was the chief counsel in many times do we have to watch some- prosecutions related to the 1998 U.S. embassy bombings in Kenya and Tanzania. body play the national security trump card, and then ten years later feel terri- and holding them, there is nothing at all tainly has accepted that, then the laws of ble about what the inevitable conse- novel about that. That has gone on in war apply and you are allowed to hold quences of that will be to people’s lives? every war the United States has ever people until the hostilities have ended. fought. It has gone on, frankly, in every Andrew McCarthy war that any other country has ever I think what you don’t give due weight fought, and it will go on in every war Donna Newman to, number one, is a confidence in the that is fought hereafter. The laws of war This is not, as the government has American people and the ability of the permit, very sensibly, the capture and agreed, a traditional war. So, if it is not American people and the American gov- holding of enemy troops for two reasons. a traditional war, and it is a war that is ernment, particularly the Congress, in One is to try to obtain and exploit intel- going to last forever, are they saying that exercising its oversight authority to grow ligence. Frankly, when you are told that, the laws of war allow us to hold some- and to learn on the basis of what has I do think the government is to be criti- body forever? Well, of course not. That gone on in our national history. The cized somewhat for the way they have is not what the laws of war say. For Japanese internment example is a very handled some of this. I think there is a example, they like to use some of the fine one. We had over one hundred period of time for exploiting intelligence laws of war and then throw out the ones thousand people interned. What are we and there is a period of time for dimin- that they don’t like. An enemy combat- talking about today, particularly in con- ishing returns. If you haven’t gotten the ant, an unlawful combatant, is some- nection with the enemy combatants? good stuff after a reasonably prompt body who is actually on the battlefield We have exactly two United States citi- period of time, you are not likely to get it. who takes up arms but is not authorized zens who have been held as unlawful The other, more sensible, reason that to take up arms. That is where you get enemy combatants in a country of three you hold people is so that they do not the concept that uniforms must be hundred million people. This is after join the enemy again. Now, if we are in worn. If they are civilians and they four years of war, four years after 9/11. a domestic policing context, you are decide to take up arms and they are not Now, with respect to all the other sus- absolutely right. They have no right to authorized, then they are considered pected terrorists in detention, those are hold people. But if we are actually in a unlawful combatants, because they do enemy operatives who were captured on hot war, and I would point out here that not have the privileges of somebody the battlefield. With respect to capturing we are in a hot war, and Congress cer- who has immunity for killing because

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he is a soldier. There are actually rules in this war on terrorism, the president that we abide by when we kill people on does not get a blank check.” So I won- the battlefield. However, the laws of war der how you respond to Professor John say, “Once that civilian then puts down Yoo’s comment that there is no limit on his arms and now is no longer an the president if he wants to order tor- unlawful combatant, you cannot hold ture. And in that case, what do you him.” So, they cannot use the term think of these extraordinary renditions? “enemy combatant,” change its mean- ing, and then say, “Well, let’s look back Andrew McCarthy at what the laws of war have tradition- We could have a whole session on tor- ally done.” ture because that is a topic that would This is not the first war that we have certainly be worthy of one. I guess I engaged in. And, as Justice Sandra Day have a strange position on torture in O’Connor said, “You do not throw out that I disagree with everyone. I do not the Constitution because we are at war.” Nat Hentoff believe the president can order torture In fact, this is not the first president on his own hook, because the law of the who has tried to overuse his authority Nat Hentoff United States bars torture. Torture is by claiming it is a wartime authority, Andrew, there was a telling point you against the law. I am uncomfortable and the courts have responded, “Whoa, made when you said the government with the argument that has been made settle back. You cannot do that.” Why? cannot afford to lose. It seems to me, in that there is some reservoir of authority Because, we are a body of laws and that context, that it implies that there that the executive has to override laws nobody, no matter what, is above the are times when there are no constitu- that the executive actually signs into rule of law. So you have to find a basis, tional limits. Or, as Justice Sandra Day law. And in fact, I think that was pretty and the courts have said there is no basis O’Connor famously said in the Hamdi much decided in United States v. Nixon. to say we are in a war. Find for me case before the Supreme Court, “Even I don’t see that principle going away. where in the Constitution you have the basis to detain American citizens. I don’t care what you call them. Tell me where Markey Amendment it is. You cannot find it. So, I wanted to On June 16, 2005 the U.S. House of Representatives overwhelmingly passed an mention the laws of war, because the amendment sponsored by Representative Edward J. Markey (D-MA) to the Science, government is not using them properly. With respect to the Padilla case, of State, Justice Appropriations bill by a vote of 415-8-1. The Amendment prohibits the course, he was captured here on use of any funds included in the bills to be used in contravention of legal obligations American soil with no arms. He was under the Convention Against Torture, including the practice of “extraordinary ren- actually seized from the Metropolitan dition.” The House has also approved identical Markey amendments to the Correction Center in New York. I do Department of Defense Appropriations bill on June 20, 2005 and to the Emergency not think he was much of a danger Supplemental Appropriations bill on March 16, 2005. A modified version of the lat- there. But, be that as it may, it goes ter bill was signed into law by President Bush on May 11, 2005. back to what I am saying, that the government says that in this new paradigm, Representative Markey has also authored the Torture Outsourcing Prevention Act, they are allowed to detain somebody for which aims to “permanently end the current practice of rendering prisoners to interrogation. Now if that is what they countries that have been determined by the U.S. State Department to routinely want, and they say they have a right, I engage in torture and bar reliance on ‘diplomatic assurances’ from countries that say if it is so new and it is so strange, practice torture as the basis for rendering persons to that country.” The bill was don’t make up the rules. Go to introduced on February 17, 2005 and is currently being reviewed in subcommittee. Congress, that is who makes the laws.

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I do think, however that we really to torture” and the people who then say, Nat Hentoff ought to have a mature conversation “Well are you talking about a non-lethal But the question I have always wanted about torture that is not infected with application of force to somebody who is to ask Alan is what then, are the limits, rhetoric and stridency. If you ask the not a moral innocent in order to wring if any, within our system of law and average person, anyone sensible, whether information that you have a good reason international treaties? or not they favor torture, they will prob- to think under the circumstances will save ably look at you like you have three perhaps hundreds of thousands of lives?” Andrew McCarthy heads. They are going to say, “Of course I think that is a different calculation. I think, first of all, that the thing I dis- not, you are nuts.” If you then say to It would help this country, I think, if agree with most, with the people whom that same sensible person, “Okay, a we had a real conversation, not a I ordinarily agree with, is that you need device about to be exploded in New charged conversation about what we are to do this in a straightforward and hon- York Harbor could kill one hundred willing to accept and what we are not est way. I do not agree with an approach thousand people, maybe more, and the willing to accept, and then tried to cod- that basically takes the word torture and only way that we can get information is ify that to really enforce it. But I think tries to define it out of existence by say- from someone we are holding, who we that when you start throwing words like ing that it has to be the pain associated know is a terrorist and we know is com- terrorism and torture around, you can- with organ failure or death or whatever plicit in the plot, but is not being coop- not even have a sensible conversation. the definition was as in the Bybee erative. But if we get a little rough with Memo. I think you have to be honest, him, we may be able to wring some Nat Hentoff but I think what we need to do is to information out of him.” I think sud- Well then, you agree with my friend decide what we are willing to tolerate denly the percentages change a great Alan Dershowitz’s ticking bomb and then we need to codify it. And if deal between the people who tell you in approach. that means that we have to abandon the first instance, “I’m absolutely Andrew McCarthy some of our treaty obligations, let’s do opposed morally under all circumstances I do. that in a forthright way rather than try

Fall 2005 Law & Security Colloquium

Paul Clement, Solicitor General of the United States Seminar topic: Law Enforcement and Counterterrorism On enemy combatants: “One of the primary motivating factors–as a policy matter–that underlies the interest in designating somebody an enemy combatant is a sense that what is really important about this person is not so much that he be brought to justice (at least in the short run), but that we think this person has information that we desperately need to save lives as part of the operational war on terror.”

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Reports of Note: Transatlantic Trends 2005 This chart compares American and European perceptions of how likely they will be personally affected by various threats.

Transatlantic Trends 2005 is a project of the German Marshall Fund of the United States and the Compagnia de San Paolo, with additional support from Fundação Luso-Americana and Fundación BBVA.

to define terms out of existence and we’ve sort of front-loaded it. I guess my John Walker Lindh, an American cap- pretend that we are all comfortable with thought on the enemy combatant issue tured overseas, was tried in federal what we are doing under the present is that it is a similarly haphazard solu- court. Then Zacharias Moussaoui, a framework. tion to the problem. foreigner, was captured in the United The flip side of Andrew’s idea, I States but the DoD would not take Tim Golden guess, is that the government has failed him. Then there is Hamdi, who was I don’t think that the interrogators and utterly to demonstrate the need or the captured in Afghanistan and said that intelligence people that I talk to would, value of holding Padilla or Hamdi. It is he is an American citizen. It is not by any stretch, agree, Nat, that interro- not clear that the information that until he gets to Guantánamo and that gation is an ineffective tool or that Padilla has provided since being held fact is corroborated that he is taken because it is unreliable we should not as an enemy combatant has been vital out of Guantánamo and is put in the use it. I think that, among the people or that they have been able to protect brig in South Carolina. And then Jose who support very coercive interrogation information or evidence in that case in Padilla is grabbed coming into the techniques, the view is that the informa- some essential way. And the applica- country, held briefly in federal custody tion gained is unreliable so you have to tion of that law has been so haphazard and then turned over to the military. corroborate that information. But that it has almost erased any possible So there is no standard application of because the information is unreliable precedent going forward. For example, the law in these cases. does not necessarily mean it is not good. I actually had somebody say that to me – and I think one thing that is Bios of Note amazing to me about this whole lengthy Alice S. Fisher is the Assistant Attorney General in the Criminal Division of the discussion that is going on now – is that Department of Justice, a position to which she was nominated by President Bush in years into this, as far as I can tell, nobody in the government, at the CIA, April 2005. She was formerly a Partner with Latham & Watkins, LLP. She previously or almost certainly the DoD, has really served as Deputy Assistant Attorney General in the Criminal Division of the Department gone back and done a serious study of of Justice. Earlier in her career, Ms. Fisher served as Deputy Special Counsel to the what has worked. What techniques of U.S. Senate Special Committee to Investigate Whitewater Development and Related the many used have been most reliable? Matters. She earned her bachelor's degree from Vanderbilt University and her J.D. The Israelis have obviously taken from the Catholic University of America. decades to get to this same point, and

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Thwarted Terrorist Attacks On October 6, 2005, President Bush gave a speech at the National Endowment for Democracy where he stated that “the United States and our partners have disrupted at least ten serious al Qaeda terrorist plots since September 11 – including three al Qaeda plots to attack inside the United States. We have stopped at least five more al Qaeda efforts to case targets in the United States or infiltrate operatives into our country.” Soon after- wards, the White House released a list of those disrupted plots (see www.whitehouse.gov/news/releases/2005/10/20051006-7.html). The response from the media and the intelligence community was luke- warm. Many questioned the seriousness, and even the existence, of some of the plots included. Others wondered why some arguably more notewor- thy successes, such as the arrest of Richard Reid, were left off the list. What follows is a chronology of fifteen (ten plots, five taskings) acts of terrorism allegedly disrupted by the U.S. and its allies since September 11.

Summary of Findings Regarding 15 Plots / Taskings

No public record of any detention or legal proceeding Total 8

Detained Total 5

Convicted Total 2

1. 2001 Tasking Ali S. Kahlah al-Marri detained although charges were dropped

2. West Coast Airliner Plot No public record of any detention or legal proceeding

3. Jose Padilla Plot Jose Padilla detained with trial pending

4. 2002 Straits of Hormuz Plot No public record of any detention or legal proceeding

5. 2002 Arabian Gulf Shipping Port Plot Abd al-Rahim al-Nashri convicted and sentenced to death in Yemen

6. 2003 Tourist Site Plot No public record of any detention or legal proceeding

7. Heathrow Airport Plot No public record of any detention or legal proceeding

8. 2003 Karachi Plot No public record of any detention or legal proceeding

9. East Coast Airliner Plot No public record of any detention or legal proceeding

10. 2003 Tasking No public record of any detention or legal proceeding

11. Gas Station Tasking Majid Khan detained in Pakistan

12. Brooklyn Bridge Tasking Iyman Faris convicted on material support charges

13. US Government and Tourist Sites Tasking No public record of any detention or legal proceeding

West Coast Airliner Plot: 14. 2004 UK Plot Nine men of Pakistani descent detained in Britain with trial pending The Library Tower in Los Angeles 15. UK Urban Targets Plot Eight men including Issa al-Hindi detained in Britain with trial pending

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For each event, we have included the White House description of the event, followed by what was reported in the media at the time the event took place, followed by subsequent media reports.

1. 2001 Tasking Initial media reports: Subsequent media reports: Date: 2001 This plot was not specifically disclosed “Senior federal law enforcement offi- White House Description: at the time, though it was widely cials, who asked to remain anonymous In 2001, al Qaeda sent an individual to believed that a second wave of attacks because of departmental guidelines, said the United States to facilitate post-9/11 had been planned. In 2003, Los Angeles later that although Padilla was believed attacks there. U.S. law enforcement law enforcement was alerted to the fact to have discussed terrorist attacks in the authorities arrested the individual. that several sites in the city, including United States with the senior al Qaeda the Library Tower, had been targets of leadership in Pakistan, they hadn't Initial media reports: al Qaeda. found any evidence of co-conspirators Ali S. al-Marri, a thirty-seven year old inside the U.S. or other indication that Qatari graduate student, arrived in the Subsequent media reports: the plot had developed into any kind of United States on September 10, 2001. “The second wave apparently never rose operational plan.” In the fall of 2001 he was questioned by to the level of a coordinated plan. The Los Angeles Times, October 7, 2005 the FBI and held as a material witness. September 11 commission report [sic] He was arrested on credit card fraud said that Khalid Sheikh Mohammed, charges in January 2002 and in believed to be the mastermind behind 4. 2002 Straits of Hormuz Plot December 2002 was charged with lying the 2001 terrorist attacks, became ‘too Date: 2002 to the FBI for his denial that he made busy’ to complete the planning for sub- White House Description: calls to an individual in the United Arab sequent strikes and that the plots did In 2002, the U.S. and its partners dis- Emirates who was alleged to be a key not progress beyond theoretical stages.” rupted a plot to attack ships transiting coordinator of the 9/11 attacks. Los Angeles Times, October 7, 2005 the Straits of Hormuz. Subsequent media reports: In June 2003, the criminal charges Initial media reports: against Ali S. al-Marri were dropped. 3. The Jose Padilla Plot There was no report of any such plot at He was designated an enemy combatant Date: May 2002 the time. However, President Bush did and moved to the Naval Brig in South White House Description: make reference to disrupting this plot in Carolina. This was possibly related to In May 2002, the U.S. disrupted a plot his State of the Union Address on intelligence gathered from captured al that involved blowing up apartment January 28, 2003: “America and coali- Qaeda leader, Khalid Sheikh Moham- buildings in the United States. One of tion countries have uncovered and med, who identified him as “the point the plotters, Jose Padilla, also discussed stopped terrorist conspiracies targeting of contact for [al Qaeda] operatives the possibility of using a dirty bomb in the Embassy in Yemen, the American arriving in the U.S. for September 11 the U.S. Embassy in Singapore, a Saudi military follow-on operations.” base, ships in the Strait of Hormuz and Newsweek, June 23, 2003 Initial media reports: “We have captured a known terrorist the Strait of Gibraltar. We have broken who was exploring a plan to build and al Qaeda cells in Hamburg, Milan, 2. The West Coast Airliner Plot explode a radiological dispersion device, Madrid, London, Paris as well as Date: Mid-2002 or ‘dirty bomb,’ in the United States.” Buffalo, N.Y.” White House Description: – Attorney General John Ashcroft In mid-2002, the U.S. disrupted a plot Chicago Sun-Times, June 10, 2002 Subsequent media reports: to attack targets on the West Coast of “There was not an actual plan...We This plot has not been further reported the United States using hijacked air- stopped this man in the initial planning or analyzed. planes. The plotters included at least stages.” – Deputy Defense Secretary one major operational planner involved Paul D. Wolfowitz in planning the events of 9/11. Washington Post, June 11, 2002

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5. The 2002 Arabian Gulf In September 2004, al-Nashiri was sen- Subsequent media reports: Shipping Plot tenced to death in absentia by a Yemeni In response to the White House’s release Date: Late 2002 and 2003 court for his role in the U.S.S. Cole of this list, the British government pro- White House description: bombings. vided details of this plot, said to have In late 2002 and 2003, the U.S. and a been organized by Khalid Sheikh partner nation disrupted a plot by al 6. The 2003 Tourist Site Plot Mohammed. The British intelligence Qaeda operatives to attack ships in the Date: 2003 service, MI5, had received “detailed Arabian Gulf. White House description: intelligence” about a two-pronged attack In 2003, the U.S. and a partner nation involving launching shoulder fired rock- Initial media reports: disrupted a plot to attack a tourist site ets at departing planes and crashing The U.S. Navy issued a general warning outside the United States. planes hijacked in Eastern Europe into on the first anniversary of the 9/11 the airport terminal. It is not clear how attacks about possible threats to ship- Media reports about this plot: far along the plot was, but Mohammed ping in the region. The warning stated This plot has not been publicly reported admitted that operatives had been given that “according to unconfirmed reports or analyzed. money to begin casing the airport to circulating within the regional shipping determine weaknesses. community, the al Qaeda terrorist group 7. The Heathrow Airport Plot Sunday Times, October 9, 2005 has planned attacks against oil tankers Date: February 2003 transiting the Arabian Gulf and Horn White House description: 8. The 2003 Karachi Plot of Africa areas.” In 2003, the U.S. and several partners dis- Date: Spring 2003 rupted a plot to attack Heathrow Airport White House description: “While the U.S. Navy has no specific using hijacked commercial airliners. The In the Spring of 2003, the U.S. and a details on the timing or means of the planning for this attack was undertaken by partner disrupted a plot to attack planned attacks, and there are no indica- a major 9/11 operational figure. Westerners at several targets in Karachi, tions that an attack is imminent, the Pakistan. threat should be regarded seriously.” Intial media reports: The Scotsman, September 11, 2002 The threat was apparently taken so seri- Media reports about this plot: ously that the British government dis- It is unclear to what this refers but pre- In October 2002, off the coast of patched hundreds of troops and sumably this plot has not been publicly Yemen, the French oil tanker, Limburg, armored vehicles to the airport and con- reported or analyzed. was racked by explosions now considered temporarily shutting it down. firmed to have been caused by al Qaeda British intelligence sources at the time 9. The East Coast Airliner Plot terrorists. said, "We wouldn't do this without Date: Mid-2003 extremely good reason, I can assure White House description: Subsequent media reports: you…Our aim is to disrupt a potential In mid-2003, the U.S. and a partner This entry on the list may refer to the terrorist attack.” The plot was also disrupted a plot to attack targets on the arrest of Abd al-Rahim al-Nashiri in the described as “the most worrying threat East Coast of the United States using United Arab Emirates in December to Britain since September 11.” hijacked commercial airplanes. 2002. Believed to be the mastermind The Guardian, February 12, 2003 behind the 2000 attack on the U.S.S. Initial media reports: Cole, “he was said by the United Arab In July of 2003, the Department of Emirates to be planning new terror Homeland Security issued a warning of strikes against United States interests in possible hijackings planned for commer- the Persian Gulf at the time of his cap- cial airliners on the East Coast. However, ture, including shipping targets.” even at the time, “[t]he officials empha- New York Times, December 23, 2002 sized that the credibility of the informa-

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tion from the terrorists was not verified, and that there was no plan to raise the color-coded national threat level.” New York Times, July 30, 2003

Subsequent media reports: In response to the inclusion of the East Coast plot on the list, “two other U.S.- based plots cited by the White House involved plans to use hijacked airplanes to attack targets on the West Coast in 2002 and the East Coast in 2003. Senior law-enforcement officials said that while they know of no instance in which such a terrorist plot was dis- Iyman Faris Plot: A police officer patrols the Brooklyn Bridge. rupted, the White House mention of the 2002 plot apparently was a reference Initial media reports: player in the trial of Uzair Paracha who to the so-called second wave of suicide “According to Justice Department docu- was tried and convicted on charges of hijackings that was first disclosed last ments describing Khalid Sheikh Moham- conspiracy to provide material support year by a commission investigating the med's interrogation, he ‘tasked’ a former to al Qaeda. September 11 attacks.” resident of Baltimore named Majid Chicago Tribune, October 7, 2005 Khan to ‘move forward’ on Khan's plan to destroy several U.S. gas stations by 12. Iyman Faris and the 10. 2003 Tasking ‘simultaneously detonating explosives in Brooklyn Bridge Tasking Date: 2003 the stations' underground storage tanks.’ Date: April 2003 White House description: KSM was intimately involved in the White House description: In 2003, an individual was tasked by an details. When Khan reported that the In 2003, in conjunction with a partner al Qaeda leader to conduct reconnais- storage tanks were unprotected and easy nation, the U.S. government arrested sance on populated areas in the U.S. to attack, KSM wanted to be sure that and prosecuted Iyman Faris, who was explosive charges would cause a massive Media reports about this plot: exploring the destruction of the eruption of flame and destruction.Khan Brooklyn Bridge in New York. Faris ulti- It is unclear to what this refers, but it – a ‘confessed AQ [al Qaeda] member’ mately pleaded guilty to providing mate- has presumably not been publicly who was apparently captured in Pakis- rial support to al Qaeda and is now in a reported or analyzed. It could refer to tan, according to intelligence sources federal correctional institution. the surveillance of the financial sector –traveled at least briefly to the United conducted by Issa al-Hindi [see number States, where he tried unsuccessfully to Faris, an Ohio truck driver at the time 15 on next page]. seek asylum. His family members, intel- of his arrest, had traveled through ligence documents say, are longtime Pakistan and Afghanistan and accom- 11. The Gas Station Tasking Baltimore residents and own gas stations plished a variety of tasks for al Qaeda Date: approximately 2003 in that city (a detail Newsweek was able leaders. In 2003, he was tasked by White House description: to confirm).”Newsweek, June 23, 2003 Khalid Sheikh Mohammed to research a In approximately 2003, an individual variety of potential plots in the United was tasked to collect targeting informa- Subsequent media reports: States, including derailing trains and tion on U.S. gas stations and their sup- There has been limited reporting on bringing down the Brooklyn Bridge by port mechanisms on behalf of a senior al Khan except to note that he has been cutting the suspension cables with gas Qaeda planner. captured in Pakistan. He was a central torches. Though he scouted the bridge

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site, he quickly determined that the plan 13. The U.S. Government Initial media reports: was not feasible due to security and the and Tourist Sites Tasking “A plot by suspected al Qaeda terrorists bridge’s structure and wrote a coded e- Date: 2003 and 2004 to blow up a target in Britain, possibly a mail back to his superiors that winter White House description: shopping complex near the M25, is that “the weather is too hot.” His plea In 2003 and 2004, an individual was believed to have been foiled in the agreement involved cooperating with tasked by al Qaeda to case important biggest operation carried out by MI5 the federal authorities as an informant. U.S. government and tourist targets against suspected Islamic extremists… within the United States. Anti-terrorist sources believe that they Initial media reports: have prevented the first attack on “In a news conference here today, Media reports about this tasking: British soil by followers of al Qaeda.” Attorney General John Ashcroft said It is unclear to what this refers, but it The Independent, March 31, 2004 that the authorities took Mr. Faris's plot has presumably not been publicly very seriously and that the case ‘high- reported or analyzed. Subsequent media reports: lights the very real threats that still exist The men remain in British custody but here at home in the United States of further details of the plot have yet to America in the war against terrorism.’” 14. The 2004 U.K. Plot emerge.The first major Islamist terror Date: March 2004 attack in Britain took place July 7, 2005 The New York City Police Department, White House description: with the simultaneous bombings of sub- which was told of the plot in March, In the spring of 2004, the U.S. and way cars and a bus. said it considered the threat so serious partners, using a combination of law that it had increased land and marine enforcement and intelligence resources, patrols around the Brooklyn Bridge sev- disrupted a plot to conduct large-scale 15. The 2004 U.K. Urban eral months ago. "He is the principal bombings in the U.K. reason why we have the kind of security Targets Plot you see on the Brooklyn Bridge," a law In March and April 2004, in a series of Date: August 2004 enforcement official said of Mr. Faris. raids involving hundreds of officers, White House description: British police arrested nine men of In mid-2004 the U.S. and partners dis- An FBI official said investigators were Pakistani descent and seized half a ton rupted a plot that involved urban targets still seeking to determine just how far of ammonium nitrate fertilizer, which in the United Kingdom. These plots the plot proceeded and how serious a could be used to make a bomb. Six of involved using explosives against a vari- threat Mr. Faris posed. “‘Obviously he them were charged with a combination ety of sites. had contacts with people at al Qaeda so of conspiracy and terrorism charges. he has to be considered somewhat On August 3, 2004, spurred by new- important, but to say whether he really found Pakistani intelligence, British could have accomplished this or not, police arrested thirteen men in raids we're still not sure,’ the official said.” across the country. One of the men New York Times, June 20, 2003 arrested was believed to be senior al Qaeda leader, Issa al-Hindi (a.k.a. Eisa Subsequent media reports: al-Britani), whose alleged surveillance of Faris remains in prison and the Bush buildings in the United States had led to administration has repeatedly cited his the raising of the terror alerts for finan- case as evidence of the efficacy of the cial sector buildings in New York, New Patriot Act. Jersey and Washington, D.C., that summer when the results of the surveillance Secretary David Blunkett, right, and Secretary of were discovered on the computer of an Homeland Security Tom Ridge, background, speak to reporters following their meeting on United States- apprehended al Qaeda suspect in United Kingdom joint efforts to combat terrorism. Pakistan.

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Eight of the men were ultimately charged with conspiracy to commit Report Card murder and conspiracy to commit a Below are the grades given in the Final Report on the 9/11 Commission public nuisance using “radioactive mate- Recommendations, from the 9/11 Public Discourse Project, released December 5, 2005. rials, toxic gases, chemicals and/or HOMELAND SECURITY AND EMERGENCY RESPONSE explosives to cause disruption.” Three of Radio Spectrum for first responders F/C* those eight, including al-Hindi, were Incident Command System C charged with terrorism charges based on Risk-based homeland secuirty funds F/A* their possession of the reconnaissance Critical infrastructure assessment D Private sector preparedness C materials. National Strategy for Transportation Security C- Airline passenger pre-screening F Airline passenger pre-screening F Airline passenger explosive screening C Checked bag and cargo screening D Terrorist travel strategy I Comprehensive screening system C Biometric entry-exit screening system B International collaboration on borders and document security D Standardize secure identifications B-

INTELLIGENCE AND CONGRESSIONAL REFORM Director of National Intelligence B National Counterterrorism Center B FBI national security workforce C New missions for CIA Director I 2004 UK Urban Targets Plot: Police officers with assault Incentives for information sharing D rifles guard the entrance to the Prudential Financial Government-wide information sharing D building in Newark, N.J., Sunday, Aug. 1, 2004, after Northern Command planning for homeland defense B- federal authorities warned of a possible terrorist attack. Full debate on PATRIOT Act B Privacy and Civil Liberties Oversight Board D Guidelines for government sharing of personal information D Initial media reports: Intelligence oversight reform D “’The British were very concerned,’ a Homeland Security Committees B senior European counterterrorism offi- Unclassified top-line intelligence budget F cial said. ‘They have apprehended what Security clearance reform B they feel is a live cell.’ But it remains FOREIGN POLICY AND NONPROLIFERATION unclear what, if any, actions were taken Maximum effort to prevent terrorists from acquiring WMD D by those arrested in preparation for any Afghanistan B specific terrorist act.” Pakistan C+ New York Times, August 19, 2004 Saudi Arabia D Terrorist sanctuaries B Subsequent media reports: Coalition strategy against Islamist terrorism C The eight men remain in prison in Coalition detention standards F Economic policies B+ Britain. In April 2005, the three Terrorist financing A- charged with terrorist offenses were also Clear U.S. message abroad C indicted in the United States for con- International broadcasting B spiracy and providing material support Scholarship, exchange, and library programs D for terrorism due to their surveillance of Secular education in Muslim countries D *If pending legislation passes the financial sector targets.

ISSUE NO. 7 / April 2006 21 Newsletter_NYU 3/29/06 7:01 AM Page 22

...the hardest Prosecuting Terrorism: problem“ in a lot of The National Challenge these criminal court On April 14, 2005, the Center on Law and Security hosted an open cases is the question forum entitled “Prosecuting Terrorism: The National Challenge.” The forum’s panelists addressed the question of whether or not of producing circumvention of the criminal justice system is necessary in order to effectively interrogate and prosecute suspected terrorists. The witnesses that the discussion hinged not only on the courts’ ability to process highly sensitive information and the balance between the government’s government may right to protect its citizens and the right to privacy, but also on currently hold whether or not terrorism should be thought of as crime or an act of war. overseas, some of Debating these issues were: Joseph Bianco, Deputy Assistant Attorney General recently whom may be the appointed to a federal judgeship in Brooklyn Joshua Dratel, Attorney in New York City who defended highest level al Qaeda member Wadih el Hage and is assisting in the defense of Australian detainee David Hicks al Qaeda people Kenneth M. Karas, Judge for the U.S. District Court, Southern District of New York who have been Neil Katyal, Professor of Law at Georgetown University and captured. counsel for detainee Salim Hamdan Stephen Schulhofer, Robert B. McKay Professor of Law at Richard Pildes” NYU School of Law Richard Pildes, Event Moderator, Sudler Family Professor of Constitutional Law at NYU School of Law

Joe Bianco and Kenneth Karas Neal Katyal Richard Pildes Stephen Schulhofer Joshua Dratel

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Crime or War: Framing the institutional structures for dealing with with Spain at the turn of the twentieth Institutional Response to terrorism. There are courts. There are century, Americans saw searches of U.S. Terrorism military tribunals. There are courts-mar- civilians by Spanish authorities as being tial. There are intermediate institutions degrading and demeaning treatment, Richard Pildes that one might imagine being created. some of which made it into newspapers. For those of us who are inside the legal There is the congressional role, the pres- So this time is not unique. It does not system or think about the legal system, idential role, and the judicial role. require an abandonment of rules. And I terrorism poses a very difficult set of think it indicates, on the part of those questions, both conceptual and institu- Terrorism and the Post 9/11 who have made a decision essentially to tional, about how we deal with the Criminal Justice System forgo the courts and try to devise an kinds of issues that arise with terrorism. entirely new system without any legiti- One way these questions are often Joshua Dratel mate analogue, a concept based on two framed is whether terrorism should be I would like to debunk the notion that I things. One is obviously a lack of histor- thought of as crime. It is obviously think underlies the abandonment of the ical perspective and a lack of recogni- crime, but should it be thought of court process which is that somehow the tion. The other is a panicked bureau- exclusively through the model of the threat of terrorism, and al Qaeda in par- cratic reflex. Neither is particularly san- criminal justice system? Is it analogous ticular, presents a new and unique para- guine for us going forward. The irony is to an act of war, or is it an act of war? digm that requires something outside that, in abandoning the context of the And should it be thought of in the way the rules as we know them. I do not pre-9/11 approach to terrorism, they we think of acts of war and dealt with think it does. Certainly al Qaeda does are essentially saying that because the institutionally in the way we have not present militarily a challenge any criminal justice system did not work, tended to deal with that issue? More worse or more threatening than, let's we are now going to move to another generally, as institutions constantly have say, the Nazis or the Japanese Empire in methodology. to adapt in response to changing prob- World War II. Certainly as a military Actually, the irony is that the pre- lems and changing circumstances, ter- issue, it cannot be considered even close 9/11 context, among the various rorism raises questions about our to that kind of threat. As a question of approaches to terrorism, was the only existing institutional structures: whether policy or a question of global control, I one that was comprehensive and suc- they are appropriate; whether they don't think it is comparable to the cessful in using the criminal justice sys- ought to be modified, and if so, for threat that was perceived from the tem. I think the military and diplomatic what reasons and in what particular Soviet Union. And with respect to civil- approach prior to 9/11 was a complete ways. So the large question that I hope ian casualties, a critical element of our failure for many reasons: a lack of will; our discussion today will be framed entry into World War I was the sinking a lack of recognition; a lack of industri- around is that set of questions about of the Lusitania. And in the conflict ousness on the issue; and a short-term political view rather than a long-term In looking for a scapegoat for 9/11 security view. The fact that we have added military and diplomatic measures failures, the bureaucratic reflex was to cast with some teeth to them does not mean that we should abandon the thing that “blame somewhere and say that the criminal was actually successful. Looking at the pre-9/11 criminal justice system approach justice system does not work because it is to terrorism, it was, in fact, successful. It incapacitated a significant number of people in terms of jail and conviction, either inefficient or has problems with regardless of whether those convictions were valid and will stand up on appeal. secrecy. Joshua Dratel But there was also tremendously reliable ” ISSUE NO. 7 / April 2006 23 Newsletter_NYU 3/29/06 7:01 AM Page 24

and valuable intelligence that was Another problem with abandoning the United States’ decision-making, gleaned from those cases that did not the criminal justice system for other sys- regardless of whether that decision-mak- offend the conscience of the nation as tems that do not have the same levels of ing is right or wrong. do certain methodologies that are being due process and fairness is that the lack employed now. of transparency hurts the United States Post 9/11 Tools for Fighting In this context, I think it is unfortu- in making its case against terrorism. Terrorism nate that in looking for a scapegoat for One of the most demonstrable pieces of 9/11 failures, the bureaucratic reflex was evidence of the existence, the intentions, [Editor’s note: In an excised portion of to cast blame somewhere and say that and the conduct of al Qaeda was the this transcript, a participant describes the criminal justice system does not embassy bombings trial and the testi- the following hypothetical: the U.S. work because it is either inefficient or mony and public information that came Attorney General receives reliable infor- has problems with secrecy. Yet there's from that trial. Without that informa- mation from a foreign government that not really a single case of a classified tion, you would not have had the ability a suspect has plans to launch a biologi- piece of information leaking from any of to make a global case for al Qaeda’s cal attack in the U.S. However, the for- these cases. In the embassy bombings responsibility for 9/11. Without that eign government says that they obtained case, we litigated an extraordinary and kind of transparency, without the public this information from their intelligence probably unprecedented amount of clas- trials that are necessary to build confi- service, and they do not want it used in sified hearings with CIPA [Classified dence, you lose not only the context of any court proceeding because that Information Protection Act]. I think the the results that have occurred but the would destroy the intelligence operation only case that will probably eclipse it confidence that they are the right results in their country. In this case, what can by the time it is done is that of and that you are prosecuting the right the Attorney General do?] Moussaoui, if it ever goes to trial. But people. I do not think that you would the point is that there was not a single have this confidence without such a Stephen Schulhofer case of leaking. I think the U.S. public trial. We are losing that opportu- In this hypothetical, there is probable Attorney's office in that case was really nity now, and we see it globally in the cause to make an arrest. There is no the gold standard in terms of leaking. lack of confidence across the board in doubt about that. You don't have to

Fall 2005 Law & Security Colloquium

Owen Bonheimer, Co-wrote Amicus brief filed in 2004 in the Hamdan case Joshua Dratel, Defense Attorney for Guantánamo Detainee, David Hicks Donna Newman, Defense Attorney for Jose Padilla

Seminar topic: Hamdi, Padilla, Hamdan and the Matter of Detainees “The Iraqi tribunal that is trying Hussein and the commission in Guantánamo are the direct result of the president’s commander- in-chief power and his exercise of his authorization to use force. The process through which these trials are conducted will really affect the rule of law everywhere.” – Owen Bonheimer

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...in actual practice, it has turned out that CIPA has provided a mechanism for preserving a completely vigorous adversary system “without threatening the government's legitimate interest in

protecting confidential national security information. Stephen Schulhofer

disclose the source. What happens includes the lists of contributors to every the courts can” solve every problem. I after that is another issue. CIPA might charity in which the government might don't know anybody who suggests that provide a mechanism. Another alterna- be interested, including many that are we did not need to attack the Taliban in tive could be preventive detention, very much affected by this because they Afghanistan. None of us are saying that which also is possible on the basis of are engaged in human rights work and the courts are a substitute for military hearsay evidence, but subject to control relief work overseas; the World Church action overseas. The question is whether in an Article III court. This takes us Council, for example. So it touches on the courts can handle cases and whether many steps down the road before we things quite a bit more sensitive than the Article III courts can handle cases have to worry about turning loose a business records. that require some kind of adjudication completely dangerous person. There is Some people say the allegations that and some kind of punishment for an massive Supreme Court case law grant- people are held incommunicado with no individual who has been captured. ing the police huge discretion to use opportunity to contact their counsel and There are dilemmas, and although reliable tips from unidentified inform- that they are held in that situation for some hypotheticals perhaps have ants as a basis for arrest. years is simply not the case. Well, it's answers, I am sure there are hypotheti- I want to discuss claims regarding simply not the case that it's simply not cals that are hard to answer and that Section 215 of the Patriot Act and the the case because Padilla has been held pose real dilemmas. But, in actual prac- material witness statute. Section 215 is incommunicado since June 9, 2002. I tice, it has turned out that CIPA has captioned for certain business records. think the issue we want to focus on is provided a mechanism for preserving a But that caption predates the Patriot whether the courts should be the focus completely vigorous adversary system Act. What the Patriot Act did was to for trying people accused of terrorist without threatening the government's change the content of the section which offenses. Those of us who believe, as I legitimate interest in protecting confi- referred to certain business records, and do, that these cases should be kept in dential national security information. to change that language so that it now the courts certainly do not suggest that And even where it has perhaps posed a referred to any tangible thing. It is the Justice Department's position that Graham-Levin Amendment Section 215 of the Patriot Act is no On November 15, 2005, in a 84-14 vote, the Senate passed an amendment sponsored by longer limited to certain business Senators Lindsey Graham (R-SC) and Carl Levin (D-MI) that potentially bars foreign records. The Justice Department says, for example, that it can include even the terror suspects from challenging their detentions in American courts. Under the provi- key held by a landlord to a tenant's sion, Guantánamo Bay detainees would be allowed to appeal their “enemy combatant” apartment. It includes not only library status one time to the Court of Appeals for the District of Columbia Circuit in books – which is something that has Washington, but they would not be able to file writs of habeas corpus, which is a writ produced an uproar in middle America used to challenge unlawful detentions that may be filed in any federal court. – but it also includes the membership lists of political organizations. It There is currently a dispute in the courts and the Amendment’s sponsors over whether includes the membership lists of syna- it applies to habeus corpus petitions already filed or only new petitions. gogues, churches and mosques. It

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dilemma, a hard one, like in the Mous- whom may be the highest level al So what would your answer be to the saoui case, at least we can be confident Qaeda people who have been captured. question, not just about whether we are that the effort to solve that dilemma is In the background of these cases, going to have a good dialogue about being handled by the individuals in whether it is the Moussaoui case, which this in the federal courts, but whether whom we have, in our governmental has been tied up over this issue, or the criminal prosecution should be able to structure, the most confidence. That is Padilla case, one of the hardest prob- go forward in the absence of producing not officers trained to fight wars, but lems is the question of whether the gov- those witnesses? Do you think those judges. They may not make perfect ernment should have to produce witnesses have to be produced to have decisions every time, but it is the best witnesses whom the defendants want to a legitimate criminal trial? Is there mechanism we have. So I think there bring forward and whom they say will some substitute for their testimony has been no case made for abandoning have exculpatory evidence. The govern- that you would find acceptable and this system that demands confidence ment says they have very profound rea- still allow this to stay in the Article III and the throwing of cases into a new sons for not producing these witnesses. court system? and untried system staffed by people Maybe they are legitimate reasons or who lack all the characteristics and fea- maybe they are not legitimate reasons. Stephen Schulhofer tures that give justice legitimacy. The most common justification is that That question puts the spotlight on we want to be able to continue the CIPA and on the details of how CIPA Richard Pildes process of interrogating some of these functions. The hypothetical that you are Let me ask one follow-up question high level al Qaeda people without the posing is very much like the dilemma before we turn to military tribunals and interrogation process being interrupted that has in fact arisen in the Moussaoui Neal Katyal. It seems to me that the in a way that will compromise it. It case. Moussaoui wants to call as a wit- hardest problem in a lot of these crimi- seems to me that one of the big ques- ness at his trial Khalid Sheikh Moham- nal court cases is the question of pro- tions that has to be confronted here is med and several other al Qaeda ducing witnesses that the government about whether the ordinary criminal operatives. Normally, absent some par- may currently hold overseas, some of courts can be used. ticularly sensitive situation like this, a

Fall 2005 Law & Security Colloquium

Judge Richard Posner Senior Lecturer in Law, University of Chicago Seminar topic: Intelligence Reform “As the intelligence system became more complicated and more agencies were established, it was no longer feasible to have the head of the Central Intelligence Agency also try to coordinate the activities of all the other fifteen or so agencies. So the challenge of intelligence coordination remains.”

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criminal trial could not go forward without that. The defendant has a constitu- The president is acting as prosecutor, tional right to compulsory process, to produce witnesses in his favor. The pur- as defense attorney, as jury, as judge, pose of CIPA is to try to deal with situations like this. CIPA, in fact, was not “as sentencer, and as appeals court. really designed to deal with a situation of this type; it was designed to deal with This is not just a question of some minor other situations which are analogous in the sense that there would be a constitu- technical tinkering with Sixth Amendment tional right to produce evidence that is, in fact, classified or too sensitive. rights to justify a new system. This is a The hypothetical that you are describing is something that probably was not wholesale revolution in the way we do anticipated under CIPA. What the courts have done is to model solutions Neal Katyal analogous to the ones that CIPA lays things. out. To try to give a short answer to what the court gave a thirty or forty the other alternatives” that nobody has pitting national security against power, page answer for, the trial judge said that discussed here. Congress has explicitly is that the president does have a broad, the solution is that you cannot bring said that courts-martial can try violations robust military detention power. But them into court but you can take their of the laws of war. So there exists this that power cannot justify what the depositions by videotape and have a whole other alternative, yet the adminis- administration is now doing or not delay mechanism so that if something is tration has moved to resurrect a system doing. It is not looking prospectively, said that should not be heard it can be from the 1940s. The system did not work but rather retrospectively, to say that we bleeped out. The same thing was done well then, and after that it was made are going to set up an entirely new sys- during the trial of Admiral Poindexter even worse with procedures that were tem to assess guilt and innocence, a sys- with the testimony of President Reagan. more problematic than those of the 1940s. tem that is done not by Congress but by It seems to me that the move to mili- the administration wholesale. The presi- Presidential Powers tary commissions is emblematic of a dent and these military commissions at and Military Commissions larger problem, with a larger revolution Guantánamo are, after all, criminal trials in constitutional law. You can call it the where death is on the line as is life Neal Katyal unrooted presidency, or the elevation of imprisonment and where the president I am inclined to defer to the president the president so that he is beyond is acting as the architect of the tribunals, on certain things. If the president thinks Congress, beyond treaties, and beyond the person who defines what is triable in al Qaeda is a serious threat, so be it. standard principles that have guided the a military commission. Some bureaucrat What I am not inclined to do is to use way we have done things since the at the Pentagon wrote a twenty-one page that deference to bootstrap wholesale founding. The pinnacle of this is, of list of offenses as to what should be tried. the U.S. Constitution and the course, the “torture memo,” which said The president is acting as prosecutor, as Declaration of Independence in the that the president is above all of these defense attorney, as jury, as judge, as process. What you have with military traditional constraints on law. sentencer, and as appeals court. This is commissions is a complete bypassing of I am not one of these people who not just a question of some minor traditional constitutional procedures, believes, for example, that the president technical tinkering with Sixth Amend- with courts established by the U.S. should be largely fettered in his power ment rights to justify a new system. Congress. Those courts are either Article to detain enemy combatants. I actually This is a wholesale revolution in the III courts, or courts-martial, which are think that the solution to hypotheticals way we do things.

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I believe in a unitary executive. I believe bunal one will face. We have seen dis- of statutes of the Constitution is so far in a strong president. But I actually crimination in terms of who can get some from the realm of minor article issues, think that people who believe in a plum federal job or welfare benefits or the like Sixth Amendment confrontation strong presidency should abhor what is like, but there is a reason why our federal rights, and the nice hypotheticals with going on at Guantánamo. Because if it government has not made these distinc- which we have been dealing. It very is allowed to persist in the way it is, the tions in this way since the Civil War. well may be that we might need to presidential power, the idea of a unitary The writers of the Equal Protection have departures, but first I would want presidency, is going to collapse of its Clause, unlike when they guaranteed to see that the court-martial system is own weight. The claim is not what you privileges and immunities to all citizens, incapable of addressing the problem. hear here, which is that the U.S. guaranteed equal protection to all per- Secondly, I would like to at least see Constitution and CIPA constrain us, sons. They used the phrase “all persons” Congress authorize those departures but that the government is saying that for a very simple reason: they wanted to rather than merely relying on the they get to bypass all of that. And they overrule the 1857 decision in Dredd executive say-so. do not just bypass it with Congress' Scott which said the Constitution only blessing, but, rather, the president's applies to and only guarantees citizens’ Richard Pildes mere say-so that this threat is enough to rights. The writers wanted to ensure These military commissions have been justify what is going on at Guantánamo. that rights are given to all. The used in the past to deal with what are If the threat is as severe as these gen- November 13th military order, for the called enemy combatants or unlawful tlemen make it out to be and as the first time in any military commission combatants. My impression is that, in president does too, then it should be with which we are historically familiar, some respects at least, there is a lot more really quite easy to do what they did excludes citizens. It says if you are a procedural protection in the current ver- with the Patriot Act and to go get U.S. citizen, then you get the Cadillac sion of these commissions than has approval from Congress for these dra- version of justice–Article III courts–and existed in the past when they have been matic departures from standard criminal all of its nice procedural protections. If used. So you point out at least one procedural arrangements. The commis- you are an alien, you get this other thing that you think is very disturbing sions going on at Guantánamo Bay rough, inferior system of justice. about the structure, the lack of the right guarantee no one the right to be pres- One last point to make about the to be present for substantial periods of ent. They can be excluded by the military commissions is that they are time. What are the other big defects request of the prosecutor. To my knowl- trampling on international law. I have to that you see? Is it wrong that there is edge, this is the first time in American believe that the Justice Department res- much more procedural protection in history in which a criminal trial has been urrected these commissions using the these commissions than has been the closed to a defendant. World War II format without somehow case historically? A couple of other things I find partic- realizing that the Geneva Conventions ularly problematic about military com- of 1949, enacted in the interim, dramat- Neal Katyal missions is that, in instances where there ically changed the way in which the There are literally no procedural protec- was an authorization by Congress in one government can do things. One thing tions in the commissions. Yes, there is form or another, military commissions that changed is that you now have to an order that the Secretary of Defense were always applied symmetrically both give people Article V hearings if there is wrote that said you have the right to be to citizens and to aliens. President doubt about whether or not they are a present unless the prosecution says oth- Bush’s November 13th order excludes prisoner of war. Until you grant these erwise. But the very last lines of that U.S. citizens from its reach. This is the hearings, you are bound by Article 102 order suggest that it confers no rights first time since the Civil War, to my of the Geneva Conventions, which says that are enforceable in any court or mil- knowledge, in which the government you must treat these people the way you itary commission proceeding, and that has so dramatically distinguished would an ordinary serviceman in a it can be changed at any time. between citizens and aliens on a matter court-martial proceeding. Of course, the historical benchmark as fundamental as justice and what tri- And so the bypassing of treaties and for military commissions has been the

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rules for courts-martial. Every military treatise that you look at for military McCain Amendment commissions says that the procedures Senator John McCain (R-AZ) has sponsored an Anti-Torture Amendment to the for military commissions are the rules Department of Defense Appropriations Act of 2006. The Anti-Torture Amendment for courts-martial. What the adminis- contains two separate provisions. The first provision describes standards for the tration has tried to do is to write a new interrogation of people detained by the U.S. Department of Defense. These guide- set of rules because they think that the court-martial rules are not fair enough lines "expressly prohibit acts of violence or intimidation, including physical or men- to the prosecution. tal torture, threats, insults, or exposure to inhumane treatment as a means of or aid There are other fundamental prob- to interrogation." lems as well. For example, the defen- The second provision creates a general prohibition on cruel, inhuman, or degrading dant’s right to be present at trial. The treatment of any person in the custody or under the control of the U.S. Government. government last week in the Hamdan The language extends protections to all individuals held by any agency of the U.S. argument claimed that this is the first Government, not just the Department of Defense. It also defines cruel, unusual, and war in which intelligence has been so inhuman treatment or punishment as that which is prohibited by the Fifth, Eighth, and important that there is a need to keep Fourteenth Amendments to the Constitution of the United States. defendants from the courtroom simply because of the value of this national The Anti-Torture Amendment was passed in the Defense Appropriations Bill. security information. The Ex Parte Quirin case took place in the midst of President Bush signed this bill on December 30, 2005, he wrote the following: "The World War II. There is no information executive branch shall construe Title X in Division A of the Act, relating to detainees, more valuable than how we captured in a manner consistent with the constitutional authority of the President to supervise the eight defendants in that case the unitary executive branch and as Commander in Chief and consistent with the con- because President Franklin D. Roosevelt stitutional limitations on the judicial power, which will assist in achieving the shared had created a whole myth that it was objective of the Congress and the President, evidenced in Title X, of protecting the the FBI's bravado and our monitoring American people from further terrorist attacks." The effect of the signing statement on of the beaches that led to the capture of the implementation of the McCain Amendment is still unknown. the eight Nazi saboteurs on the beach. In truth, it was the fact that one of them had misgivings and defected. For national security threat in the trial of guaranteed Saddam Hussein and all of that reason, in World War II the com- bin Laden's alleged driver than in the his accomplices the right to be present mission proceedings were closed to the Nazi saboteur trial. We had an amicus at trial. Again, the idea that national public entirely. Everything was classified, brief in our case by another professor at security information is not going to but the defendants stood in that pro- NYU, Noah Feldman, who helped come out there but will come out in the ceeding day-in and day-out, everyday. write the rules for the Iraqi tribunals trial of these really minor players It is spectacularly implausible that which the Defense Department over- detained at Guantánamo Bay is just there would have been some greater saw. Lo-and-behold, these tribunals ludicrous.

For more information about U.S. courts and the war on terror, read the NYU Review of Law and Security, Issue no. 4, April 1, 2005, “Torture, the Courts and the War on Terror.” Visit our Web site at www.law.nyu.edu/centers/lawsecurity/publications

ISSUE NO. 7 / April 2006 29 Newsletter_NYU 3/29/06 7:01 AM Page 30

Terrorist Trial Updates The following are notable cases in the U.S. government's war on terror. These trial updates are current as of April 1, 2006. For continuing updates on these and other cases, please visit our Web site at www.law.nyu.edu/centers/lawsecurity/trials.

Ahmed Omar Abu Ali the authority to detain Jose Padilla, a Salim Hamdan Ahmed Omar Abu Ali, born in Houston former gang member and U.S. citizen The Supreme Court and a resident of Northern Virginia, was who was arrested in Chicago in 2002 decided to hear charged with conspiracy to assassinate the and was designated an enemy combatant Hamdan v. Rumsfeld, president, providing material support to by President Bush one month later. a case challenging al Qaeda, conspiracy to commit aircraft The government contends that the government's piracy, and other associated crimes. Padilla trained at al Qaeda camps and use of military tri- In a 113-page decision, U.S. was planning to detonate a radioactive bunals to try foreign- District Judge Gerald Bruce Lee ruled dirty bomb to blow up apartment build- ers suspected of war on October 24, 2005 that prosecutors ings in the United States. Padilla has crimes. can use a confession by the defendant. been held without trial in a U.S. naval Salim Hamdan, a The ruling was a result of a six-day hear- brig for more than three years. The Yemeni man said to ing in which the defendant testified that unanimous opinion, written by Judge J. be Osama bin he was tortured by the Mubahith (Saudi Michael Luttig, cited the joint resolution Laden’s former security forces) while detained in Saudi by Congress authorizing military action driver, is being held Arabia in June of 2003. The deposition following the September 11, 2001, at the U.S. detention camp in Guan- of Saudi security agents refuted that attacks in New York, as well as the June tánamo Bay, Cuba. His lawyers argue claim, suggesting instead that Abu Ali 2004 ruling concerning Yaser Hamdi. that military trials due to be held there confessed voluntarily after being con- The ruling limits the president's are unconstitutional as they deny defen- fronted with evidence obtained from power to detain Padilla to the duration dants their basic legal rights and are in other cellmates. of hostilities against al Qaeda, but the breach of the U.S. Constitution. Chief In the confession, Abu Ali suggested Bush administration has said that the Justice Roberts has said in U.S. Senate that he joined al Qaeda out of his war could go on indefinitely. Padilla’s testimony that he would recuse himself hatred for the United States’ support for lawyers have appealed to the Supreme if the Hamdan case is heard by the Israel. The jury was allowed to hear the Court. On December 28, 2005, the gov- Supreme Court due to his involvement defendant’s claim of torture, but testi- ernment asked the Fourth Circuit to in the case at the U.S. Court of Appeals mony from a Briton and a Canadian authorize Padilla’s transfer to federal for the DC Circuit. After the passage of man who also claimed to have been tor- prison, out of military custody. The the “Graham-Levin” amendment, which tured by Saudi authorities was excluded. Fourth Circuit, in an almost unheard of limited the ability of federal courts to In November 2005, Abu Ali was found move, denied the request, arguing that it review habeas corpus petitions of guilty of all nine counts. appeared the government was seeking to Guantánamo detainees, the government evade Supreme Court review of its asked the Supreme Court to dismiss Jose Padilla September 9, 2005 opinion. The Supreme Hamdan’s case. On September 9, 2005, a three-judge Court ordered Padilla’s transfer. In January Hamdan’s case was heard by the panel of the U.S. Circuit Court of 2006, he pled not guilty to an eleven Supeme Court on Tuesday, March 28th. Appeals for the Fourth Circuit ruled count indictment charging him with pro- A ruling will probably be handed down that President Bush does indeed have viding material support to terrorists. this summer.

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David Hicks Government officials claim al- jury acquitted him of most charges, but David Hicks, an Marri was a sleeper cell operative who deadlocked on nine charges. It is unclear Australian held in had communications with high-ranking at this time whether he will be retried Guantánamo, was members of al Qaeda and worked to set- on the deadlocked charges. scheduled to be tle foreign terrorists in the United tried by a military States. The Defense Department has tribunal at the end denied in court papers filed that al- Statistics of Note of last year. All mil- Marri was “subjected to any inhumane, Guantánamo Bay Statistics as of itary tribunals at degrading or dangerous conditions” Guantánamo were held, however, pend- while detained at the CNCB. The plain- March 16, 2006: ing the Supeme Court review of the tri- tiff, however, alleges that the staff at the • 490 Total Detainees* bunal system in the Hamden case. In CNCB purposefully kept his cell exces- addition, Hicks has been trying to get sively cold, psychologically brutalized • At least 100 are from Saudi Arabia relief from the British government. him in interrogations, limited sanitation • 80 are from Yemen Recently, Hicks’s attorneys have in his cell, denied him basic medical • 65 are from Pakistan care and put him in solitary confine- been attempting to obtain British citi- • 50 are from Afghanistan zenship for their client. The British ment with little to no recreational time. • 2 are from Syria High Court found that he has a right to British citizenship, but the British • 358 have had Administrative Review Home Secretary has appealed the ruling. Sami al-Arian Board hearings Britain has refused to allow its citizens A former University • 187 former Guantánamo prisoners have of South Florida to be tried by U.S. military commission been released and the British Attorney General, Lord professor, Sami al- • 87 have been transferred to other Goldsmith, has publicly criticized the Arian and co-defen- military tribunals. dants Sameeh countires. Hammoudeh, • 37% of those hearings resulted in Hatem Fariz and decisions to continue to detain the Ghassan Ballut are Ali Saleh prisoner accused of using Islamic charities as Kahlah al-Marri fronts in a conspiracy to finance terrorist • 20% of those hearings resulted in Three months after attacks by Palestinian Islamic Jihad (PIJ) decisions to transfer the prisoner 9/11, Ali al-Marri in Israel and the occupied territories. • 40% of those hearings have no decision was arrested in The men deny they supported violence • 3% of those hearings resulted in Peoria, Illinois on and say they are being persecuted for decision to release the prisoner charges of credit card views that are unpopular in the United fraud and making States. • At least one of the prisoners found false statements to the FBI. In June After the prosecution rested, U.S. innocent remains in detention because 2003, on the eve of a hearing to sup- District Judge James Moody denied the United States cannot find a country press crucial evidence against him that motions to find al-Arian and Ham- willing to accept him. ** his lawyers argued had been illegally moudeh not guilty of the conspiracy obtained, al-Marri’s charges were charges. Defense lawyers for al-Arian Sources: dropped and he was moved to the and Ballut rested their cases without Wall Street Journal Charleston Naval Consolidated Brig calling any witnesses. Counsel for *U.S. Military Detainee Affairs Website (CNCB) in South Carolina after being Hammoudeh and Fariz presented their declared an enemy combatant by witnesses and rested their cases shortly **Washington Post President Bush. thereafter. In December 2005, al-Arian’s

ISSUE NO. 7 / April 2006 31 From the Student’s Corner Material Support Statutes and the Role of Congress By Andrew Peterson

(1) the term "material support or U.S.C. § 2339A and 18 U.S.C. § lies not with the Department of Justice, resources" means any property, tangible or 2339B, which criminalize the provision but with Congress. intangible, or service, including currency of “material support” to terrorists or for- The crime of providing “material sup- or monetary instruments or financial secu- eign terrorist organizations. The broad port” is unique to the context of terror- rities, financial services, lodging, training, and increasing use of these statutes, in ism. To practitioners of federal criminal expert advice or assistance, safehouses, false cases which are obviously terror-related law (or those who regularly watch “Law documentation or identification, commu- and many which are not, has been criti- and Order”), the familiar term used to nications equipment, facilities, weapons, cized as an affront to constitutional describe prohibited assistance to crimi- lethal substances, explosives, personnel rights, an attack on civil liberties, and a nals is “aiding and abetting.” To “aid (one or more individuals who may be or massive expansion of executive power in and abet” a crime, there must be a con- include oneself), and transportation, the name of security. These claims may nection between the assistance provided except medicine or religious materials; or may not be warranted, but the pur- and the crime that occurred. The defen- –18 U.S.C. § 2339A pose of this essay is not to restate or dant must also have the criminal intent There has been a lot of criticism refute them; it is to direct them toward necessary to commit the crime. For terror- lately about the Department of Justice’s their proper target. Credit or blame for ists, however, that approach was deemed use of the material support statutes, 18 the use of the material support statutes insufficient. Congress wanted to reach Reports of Note

Blurring the Lines: A Profile of State and Local Police Enforcement of Immigration Law Using the NCIC Database, 2002-2004 By Hannah Gladstein, Annie Lai, Jennifer Wagner, and Michael Wishnie

The findings contained in this report confirm that the immigration records in the National Crime Information Center (NCIC) are not effective for wide- spread use. Not only do these inaccurate records clutter the database, they also appear to divert officer time and attention from local public safety priorities. The increasing frequency of local police recording NCIC immigration hits almost certainly results in more police detentions and arrests for civil immigration violations, consuming increasing amounts of police resources over time. Wrongful detentions and the high rate of absconder arrests seem likely to undermine community trust in local police forces. Additionally, demographic information of immigrants identified by NCIC indicates that the NCIC immigration files are not being used to further a targeted anti-terrorism Region/Country of Origin of Confirmed NCIC agenda, the principal justification offered for the Department of Justice's policy. Immigration Violations Rather, the use of these records has mostly resulted in indiscriminate arrests of Mexican and other Latin American nationals.

While immigration enforcement currently constitutes a modest portion of state and local law enforcement NCIC activity, the number of immigration identifications is rapidly growing. This information indicates that now, while police engage in immigration enforcement but only modestly, is a critical time to reevaluate the nature, purpose, and on-the-ground effects of making enforcement of immigration laws the responsibility of state and local law enforcement.

This report was written by Washington Square Legal Services, Inc. at New York University School of Law for the Migration Policy Institute. For a full copy of the report, go to www.migrationpolicy.org

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persons not directly involved with ter- bly intended to require some sort of instead of explaining how any type of rorist acts, such as those who raised funds connection between the aid given and “support” becomes “material” (thus pro- or who were members of terrorist groups. the terrorist act, but less of a connection viding a working operational definition Congress first used the phrase “mate- than the criminal standard. That of this relatively new statutory term), rial support” in the 1990 Immigration Congress chose a broader standard than Congress has simply provided a list of Act, and it was the product of extensive “aiding and abetting” for the terrorist the prohibited items that may never be debates over just how much interaction immigration exclusion is understand- given to any terrorist or designated ter- with terrorists or terrorist organizations able. There is no need for criminal levels rorist organization. There is still no should be acceptable. The Immigration of proof, as no criminal punishment strong explanation for exactly what the Act rewrote the grounds upon which the results from an immigration action. In difference is between “material support” government could exclude or deport addition, in the area of exclusion and “aiding and abetting,” and “material immigrants. An early version of the bill actions, there are hundreds of thousands support” lacks a common law history to stated that those who had “organiz[ed], of immigrants seeking entry to the flesh out any potential limits. The list abet[ed], or participat[ed] in terrorist United States each year, and Congress approach makes the statute incredibly activity” should be excluded. This lan- cannot be faulted for choosing only to broad, and also prevents courts from guage, criticized by opponents for not admit those who are not suspected of limiting its scope.3 reaching members of groups like the any terrorist involvement whatsoever. It should come as no surprise, then, Irish Republican Army or the Palestin- Problems arose, however, when that the Department of Justice is able to ian Liberation Organization, was de- Congress chose to import this category charge large numbers of people with fended by its drafter, Representative of prohibited acts from the immigration material support of terrorism or terrorist Barney Frank, as much broader than the context to the criminal context. organizations. The statute is drawn so traditional “connection” approach associ- After the World Trade Center bomb- broadly that if the government can draw ated with criminal “aiding and abetting:” ings in 1993, Congress imported the a line from a terrorist’s property to any [W]e did not want to have a narrow material support standard from the individual, that individual can be thing where you had to prove that they Immigration Act into the criminal code. charged with support for terrorism. were going to do this – we do not have Although it excluded humanitarian and Although this is obviously a powerful the criminal standard here, we have religious assistance, for a criminal prohi- tool in the prosecutor’s toolbox, the much more flexibility in keeping people bition the language was incredibly uncertainty surrounding the statute out – we picked up some legal defini- broad. It has not narrowed. Instead, makes it prone to over-extension. Both tions of terrorism, including organizing, Congress has responded to domestic ter- civil libertarians and the Department of abetting, or participating...It was clearly rorist attacks by repeatedly broadening Justice would benefit from a more our intention...to cover fund raisers as the definition of what constitutes crimi- clearly defined statute. Until Congress people who abet. I would say that if you nal material support of terrorism. The provides a useful measure to determine raise money to buy the sustenance – humanitarian assistance exclusion now when support is “material,” challenges whether it is guns or food – for people includes only “medicine,” and the list of of these statutes will continue. who are engaged in terrorist activity, you prohibited support includes every type are abetting...that is both prospective of property or service. and retroactive...I would think that, for The Department of Justice has also 1Exclusion and Deportation of Aliens: Hearing on H.R. most members of the IRA, you would encountered problems with the breadth 1119 Before the House Comm. on the Judiciary, 100th Cong. 191 (1987) (statement of Rep. Barney Frank, be able to show that they had abetted of the statute. Courts have responded to Member, House Comm. on the Judicary). terrorists in the past by their member- the massive breadth of the material sup- 2 ship and activity.1 port statutes by striking down some See, e.g., Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000). The “abetting” language was rejected, parts of the definition as unconstitu- and, in its place, the committee used tionally vague.2 In response, Congress 3United States v. Singh-Kaur, 385 F.3d 293 (3rd Cir. 2004) (holding that provision of food to militants is “material support.” passed new, slightly more precise defini- “material support” under the terms of the statute At first, “material support” was proba- tions of its already broad terms. Now, regardless of the connection to actual terrorist violence).

ISSUE NO. 7 / April 2006 33 Newsletter_NYU 3/29/06 7:01 AM Page 34

CLS Intern Reports Interpol

Gina Magel classified as “dependent.” The project hibits the Organization from engaging involved analysis of Article IV of in activities of political, racial, religious, Interpol is the Interpol’s Constitution, which outlines or military natures. world’s largest inter- membership requirements, and its appli- Article III cases come to the Office of national police cation to dependent territories. I was Legal Affairs via two principle means. organization, with called on to make recommendations First, Interpol specialists will review 184 member coun- regarding what the essential characteris- confidential police information in tries. It was estab- tics of membership status should be determining whether the underlying lished in 1923 to when dealing with dependent territories. circumstances of the case indicate there enhance and promote cross-border These questions required the review of may be an Article III issue. If a member police cooperation. Interpol’s stated mis- past precedent of other dependent terri- country requests information regarding sion is “To be the world’s pre-eminent tories that currently have membership a suspect, a suspect may petition police organization in support of all status in Interpol, namely Aruba and Interpol directly to challenge that organizations, authorities and services the Netherlands, Antilles as well as ana- request. My role in Article III work was whose mission is preventing, detecting, lyzing the political situation involved in to review the cases, and outline opin- and suppressing crime.” granting member status to this particu- ions based on Interpol legal texts, While at Interpol, I worked in the lar dependent territory. national, and international law. Office of Legal Affairs (OLA). I was Later in the fellowship, I was tasked assigned to the Article 3 Task Force, by Secretary General Ron Noble to whose job it was to verify that Red Sheridan England attend each of the Interpol Regional Notices (international arrest warrants) Having estab- Conferences. In Cyprus, Peru, and issued by countries did not violate lished a strong Ghana, I was principally tasked to draft, Article III of Interpol’s Constitution. trust with edit, and modify Interpol Regional His article states that “It is strictly for- Interpol, the Conference Recommendations, which bidden for the Organization to under- Center on Law are submitted to the General Assembly. take any intervention of activities of a and Security was This process was handled through an political, military, religious or racial able to secure a elected Ad Hoc Committee, which I character.” Therefore any Red Notices year-long post- chaired in Peru, and second seated in that presented a political, military, reli- doctoral fellowship for NYU Law Cyprus and Ghana. gious or racial question had to be Students. I was fortunate to be awarded reviewed by OLA to ensure that the first for the 2004-2005 year. Interpol was not interfering in areas that My practice began as an Article III Announcing our Current Fellow were outside its constitutional authority. specialist. Recognizing the sensitivity of in Global Counterterrorism I was also tasked to draft legal memo- coordinating police efforts with 184 at Interpol: randa regarding the application of a Member Countries, each with differing Yaron Gottlieb dependent territory to become a mem- legal systems, Interpol created Article III Yaron began his Post-Doctoral ber country of Interpol. This presented to allow the Organization to be flexible Fellowship in September 2005. interesting legal questions as to enough to facilitate police cooperation He received his L.L.M. Degree at Interpol’s membership procedures and without infringing on international NYU School of Law in May 2004. requirements for territories that were human rights. Article III, in sum, pro-

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Books of Note

DIVIDED BY GOD: AL QAEDA NOW: RETHINKING THE THE TORTURE DEBATE America's Church-State Understanding PATRIOT ACT: in America Problem--and What We Today’s Terrorists Keeping America edited by Should Do About It edited by Safe and Free Karen J. Greenberg by Noah Feldman Karen J. Greenberg by Stephen Schulhofer

For more information about the Center on Law and Security’s publications and to download past issues of The NYU Review of Law and Security, visit our Web site at www.law.nyu.edu/centers/lawsecurity/publications. Terrorism Blogs of Note Balkinization: balkin.blogspot.com Both Jack Balkin and Marty Lederman, bloggers at this sight, frequently post comments about changes in government policy that relate to torture and detainees at Guantánamo Bay. Mr. Balkin is a professor at the Yale Law School and Mr. Lederman was an attorney-advisor in the MAKING SENSE OF Department of Justice's Office of Legal Counsel. Other contributors comment on terrorism SUICIDE MISSIONS policy as well. The Volokh Conspiracy: www.volokh.com edited by Orin Kerr, a professor of law at George Washington University, posts frequently on national Diego Gambetta security law issues and the war on terror. with an essay by SCOTUSBLOG: www.scotusblog.com Stephen Holmes, Lyle Denniston, an independent legal reporter, posts frequent updates on the progress of legal “Al-Qaeda, cases related to the war on terror in the federal court system. September 11, 2001” The Counterterrorism Blog: counterterror.typepad.com Numerous experts on terrorism policy posts frequent updates on the conflicts in Afghanistan and Iraq, and the Global War on Terror. This blog focuses on policy, not law although some of the contributors have legal backgrounds as well.

ISSUE NO. 7 / April 2006 35 Newsletter_NYU 3/29/06 7:01 AM Page 36

Upcoming Events at the Center Fall 2006 Schedule Locations TBA September 15 Conferences Terrorism and the Laws of War Jeremy Waldron Presidential Powers: An American Debate Professor, Columbia University Leading figures in law, history, journalism, and public policy will discuss School of Law fundamental questions facing Congress, the courts and the American People. September 29 Speakers include: Combatants and the Commander in Chief Mary Ellen O’Connell John Dean, John Brademas, Viet Dinh, Noah Feldman, Barton Gellman, Professor, University of Notre Dame David Golove, Nat Hentoff, Stephen Holmes, Bob Kerrey, Marty Lederman, Law School Anthony Lewis, Donna Newman, Patrick Philbin, Richard H. Pildes, October 13 Richard Posner, Dean Richard Revesz, Jeffrey Smith, Suzanne Spaulding, Is al-Qaeda the Product of Saudi Arabia's Jeffrey Toobin, Michael Vatis and Sean Wilentz Politics and Wahhabi Religious Ideology? Bernard Haykel April 25th 2006, 9:15 am – 5:15 pm Assistant Professor of Islamic Studies Greenberg Lounge, Vanderbilt Hall New York University 40 Washington Square South, New York, NY October 27 Co-sponsored with The Henry Luce Foundation and the John Brademas Center Detainee Abuse: The Role of Female for the Study of Congress at NYU’s Robert F. Wagner Graduate School of Public Service Torturers and Interrogators Tara McKelvey Senior Editor, The American Prospect Prosecuting Terrorism: The Global Challenge November 3 At this year’s annual spring conference, the following topics will be addressed: Inside the Black Box: Social Processes • New York, London, Madrid: Lessons Learned within Terrorist Groups Dr. Ami Pedahzur • Al Qaeda and the Radicalization of Islam: Recruitment of Today’s Terrorists Professor of Government and Middle • Secrecy and Democracy in Europe and the United States: A Comparison Eastern Studies, University of Texas

• Terrorism and Security: Cooperation and Coordination Date TBD • Black Sites and Europe as a Transfer Point for Renditions. How Bush Rules: Chronicles of a Radical Regime Sidney Blumenthal For more information on upcoming events at the Center on Law and Security, Senior Fellow, Center on Law and Security visit our Web site at www.law.nyu.edu/centers/lawsecurity/events. at NYU School of Law

NYU Center on Law and Security New York University School of Law 110 West Third Street New York, NY 10012