Although there is no specific mention of cyber issues, I expect that the new Academy for Leadership in International Affairs founded by Chatham House would be open to a proposal concerning cyber security. From the Chatham House website:
The Academy offers potential and established leaders from around the world the opportunity to spend up to twelve months as Academy Fellows at Chatham House. Fellows of the Academy will develop their thinking on the most pressing national and international challenges facing their countries and regions and work together to craft innovative responses.
Fellows are drawn from government and the broader policy community, the private sector and civil society. There are two tiers of Fellowship within the Academy – Fellows and Senior Fellows.
- Academy Fellows
Academy Fellows are promising ‘next generation’ leaders in the early stages of their careers. Working alongside one of the institute’s research teams, Fellows spend up to one year at Chatham House in order to develop their thinking on the most pressing national and international challenges and opportunities facing their countries and regions.
- Academy Senior Fellows
Academy Senior Fellows are at a more advanced stage in their career. Senior Fellowships provide established experts and practitioners with time to explore a topic of interest in depth and to take part in the Academy’s activities for up to six months, on the basis of a flexible structure.
The research teams clearly include cyber.
New security challenges continue to grow in importance, especially in cyberspace, threats to global health and the ongoing dangers posed by drugs and organized crime. The International Security department brings together thinking in these areas with more traditional security concerns – whether in the areas of nuclear technology, ensuring reliable energy supplies or managing the Western troop draw-down in Afghanistan.
[Full disclosure: Your author is pleased to be a member of Chatham House.]
A brochure about the fellowships can be found here.
“All nations have the right to use military force in self-defense, but Syria has not attacked the United States. If we, the U.S., are to use force against another nation in order to enforce international law rather than in self-defense, then as members of the United Nations we must wait for authorization by the Security Council. It makes no sense to enforce one international treaty (the chemical weapons ban) by breaking another (the UN Charter). I hope that the UN Security Council authorizes the use of force against and the prosecution of those who used chemical weapons in Syria, but absent that or an armed attack by Syria on the U.S. or our treaty allies, we would be wrong to use military force against Syria.
“If, however, a nation with whom we have a defense treaty — including but not limited to all members of NATO plus Israel — were to be attacked by Syria, then we must defend ourselves collectively with any and all force necessary at a time and place and in a manner of our choosing. The same would be true, of course, if the United States were attacked by Syria. The Syrian military should view an attack upon U.S. Navy destroyers in the Mediterranean as tantamount to suicide.
“There might be some more extreme circumstances in which the United States would have a lawful duty to protect the people of Syria from their own government. Whatever might be the contours of the legal duty to protect is not yet clear, but it has not been triggered by events as of September 2, 2013.
“Law and morality are not the same. It might not be immoral for the United States to kill those responsible for the chemical weapons attack, but it would be a violation of international law and of treaties, and it would be bad policy. On that last point, Congressional policy makers should consider that we cannot attack the Assad government at this time without assisting al Qaeda-back forces.
“In general, international law and good policy both require that civil wars be fought by the domestic antagonists. If any of the domestic antagonists spread the war beyond the national borders, however, then the matter becomes one for international action.
“Meanwhile, the United Nations Security Council already could and should authorize the use of force against those persons or governments it determines are responsible for the recent use of chemical weapons. The United State military should maintain a high state of preparedness to enforce a resolution by the Security Council or to defend itself, the United States or our allies regardless of UN action.”
Click here to download the actual order from the Foreign Intelligence Surveillance Court to produce daily “all call detail records or ‘telephony metadata’ created by [redacted] for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls,” pursuant to Section 1861 of the Foreign Intelligence Surveillance Act.
I’ve tried to stay out of this, but now Snowden has blundered into areas of my expertise and about which he either knows nothing or chooses to lie. This is not a matter of policy or morality or political persuasion. This is just something he asserts as a fact that simply is not true.
As reported by Time and many others, yesterday he stated:
I believe in the principle declared at Nuremberg in 1945: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”
Espionage is not a crime against peace and humanity. Espionage is not a crime under International Law. This is not my opinion or my position. This is not something about which reasonable people disagree. It is just a fact. There is no authority whatsoever for the proposition that espionage is a violation of International Law. Espionage is not a crime under International Law.
Moreover, as Time continues:
Nuremberg did establish that a person is legally responsible for committing war crimes even if ordered to do so by higher authorities in what is known as the superior orders defense (although the tribunal’s principles do not appear to include the second sentence Snowden attributes to it in several online versions of his statement). (emphasis added)
So, he claims he did what he did, because of a non-existent duty to violate domestic laws that conflict with non-existent international law.
A post on SCOTUS Blog by Lyle Denniston reports that, on Tuesday, the D.C. Circuit Court voted to review congressional authority to apply war crime laws to terrorist acts that took place prior to the enactment of the laws making such acts criminal.
As described by Denniston, Bahlul was sentenced to life in prison after a military tribunal convicted him of providing material support to terrorists, conspiracy to commit terrorist acts, and soliciting others to do so. The Circuit Court “wiped out” Bahlul’s conviction based on the ruling rendered in the Hamdan case.
In the Hamdan case, the Circuit Court overturned the Yemeni national’s conviction effectively narrowing the powers of a military commission to try crimes that didn’t exist at the time the defendant engaged in the activities.
According to SCOTUS Blog, the Obama administration asked for en banc review in the Bahlul case, which was granted. The Circuit Court has asked the attorneys to prepare to argue the issues decided by the Hamdan panel in addition to the following:
- Whether the Ex Post Facto Clause of the United States Constitution protects Guantanamo detainees.
- Assuming the Hamdan panel was correct in “concluding that Congress can only make war crimes out of conduct that violated the international law of war,” whether Bahlul’s alleged conspiracy crimes were violations of international law at the time they were committed.
Denniston comments as follows on the potential legal significance of the coming hearing:
The coming decision by the seven-judge Circuit Court almost certainly will be appealed to the Supreme Court, by whoever loses at the Circuit Court, and that could lead to a major new ruling on the powers of the special military commissions that have had a troubled seven-year history at the U.S. military prison [in] Cuba.
The hearing has been scheduled for September 30.
You can read the full SCOTUS Blog post here.
Here’s a link to the Hamdan decision by Judge Kavanaugh.
Professor William C. Snyder weighed in on the weapon of mass destruction (WMD) charges against Dzhokar Tsarnaev, one of the alleged Boston bombers, in an article by Emily Feldman of NBC.
Snyder points out that prosecutors may have trouble meeting the statute’s jurisdictional requirement, which requires proof that the crime impacted interstate or foreign commerce, but doesn’t anticipate any problem arising from their classification of pressure cooker bombs as WMDs.
You can find the full article here.
NY District Court Finds USCs Guilty of Conspiring to Acquire Anti-Aircraft Missiles, Providing Material Support to the Taliban
According to the Department of Justice press release, last week, the U.S. District Court for the Southern District of New York found Alwar Pouryan and Oded Orbach, United States Citizens (USCs) guilty of conspiring to provide material support to the Taliban and conspiring to acquire anti-aircraft missiles. The mandatory minimum sentence for these charges is twenty-five years and the maximum is life in prison.
The pair were arrested last year in Romania following an undercover operation by the Drug Enforcement Agency (DEA) that revealed Pouryan and Orbach’s attempts to sell lethal, military-grade weapons to drug organizations with links to the Taliban. The DOJ press release further reports that one such weapon was a heat-seeking surface-to-air missile.
Sentencing for both men is scheduled to take place September 4.
You can read the full press release here.
I have been asked this question a lot by students:
I have a question regarding the charges and trial of the Boston bomber. I took your Prosecuting Terrorists course two years ago, and I vividly recall the semester long debate over how and where to try suspected terrorists. It was my understanding that we had the option to try a suspected terrorist in federal court or in a tribunal as an enemy combatant; the issue was always where should we do it?? Further, when tying this information into all the courses I took with Professors ____ and ___, it was clear that once an American citizen took up arms against the US then they lose their protections as a citizen. This was elaborated on in the discussions in class and then later by the controversial targeted killing of American citizens (Anwar al-Awlaki being one). The White House justified their targeted killings (rightly I believe) by designating them as enemy combatants–regardless of citizenship. So, to my question: How/why could the White House make statements today regarding the trial of Tsarnaev, and state that he cannot be tried as an enemy combatant because he is a US citizen? Per the Washington Post: “White House spokesman Jay Carney said that under U.S. law, American citizens such as Tsarnaev cannot be tried by military commissions.” This seems to contradict their own justifications for targeted killings.
Any insight would be greatly appreciated.
The conflict is a statute. The Constitution and Supreme Court, see Quirin, permit trying U.S. citizens as enemy combatants. The Military Commissions Act of 2009 (MCA) authorizes the use of military commissions against only aliens. It is unquestionably true to say that the military commissions established by Congress may only be used to try aliens, because Congress so limited them in the Military Commissions Act.
There are two complications from that straightforward statement. First, the citizen could be held (detained) as an enemy combatant until the end of hostilities (unless they are expected to go on forever). Detention as an enemy combatant is separate from prosecution for a crime. Note Jose Padilla and others who were U.S. citizens detained and interrogated for a long time prior to transfer to the Article III court system and the start of its speedy trial act. That is what some Senators were proposing. So, when Senators proposed that, and people responded, “but it would be illegal to try him as an enemy combatant,” they were talking right past each other – apples and oranges, if you like.
Second, a U.S. citizen could be tried by a military commission other than the one established by the Military Commissions Acts of 2006 and 2009. The President could establish a military commission under his own authority. But, the Supreme Court in Hamdan said that there are three types of military commissions with preconditions to establishing them. Most importantly under Hamdan, the President cannot create a military commission under his own authority to try offenses like conspiracy that were not cognizable under the law of war. Thus, said the Court, he needed Congressional authorization to try Hamdan for conspiracy. Congress gave that to him in the form of the MCAs of 2006 and 2009, but limited those statutes to aliens. Congress could also create a new military commission now or amend the MCA to authorize prosecutions of U.S. citizens by military tribunals.
So, a more correct statement from the White House would be: “White House spokesman Jay Carney said that under U.S. law the Military Commissions Act of 2009, American citizens such as Tsarnaev cannot be tried by the military commission it created.”
Does that help?
Dzhokhar Tsarnaev, the surviving suspect in the Boston bombings, has been charged with using weapons of mass destruction (WMDs) and malicious destruction of property resulting in death. The Washington Post reports that the defendant will not be tried as an “enemy combatant” but as a civilian.
The choice to prosecute Tsarnaev as a civilian is significant as it precludes the government from trying him in a military tribunal. Tsarnaev, thus, will be tried in U.S. federal court.
You can read the criminal complaint here.
You can read The Post article here.
You can find the Department of Justice press release here.
The Constitution Project has published a non-partisan report wherein the eleven-member task force conclude, “[I]t is indisputable that the United States engaged in the practice of torture” in the years following the 9/11 attacks. Furthermore, “The nation’s most senior officials . . . bear ultimate responsibility” for such practices, according to the task force. You can find the full report either by clicking the link above or the image below.
- National Security Law » Congress’s War Crimes Power at Issue on Court Vacates Hamdan’s Conviction
- National Security Law » Professor Snyder Weighs in on WMD Charges Against Tsarnaev on Actual Charging Document for Tsarnaev in Federal District Court
- National Security Law » Judge Raises Prosecutor’s Burden in Espionage Act Case on Judge Rules: Participant in Bin Laden Raid May Testify in Case Against Manning
- National Security Law » USS Cole Conspiracy Trial at Gitmo Postponed Due to Apparent Security Breach on Guantanamo Prisoner Alleges Guard Mistreatment
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