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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Does the Fourth Amendment Permit House-to-House Searches?

Apr 21st, 2013 Terrorism

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In light of the recent events in Boston, Orin Kerr posed the following question on The Volokh Conspiracy: “Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment?” Kerr suggests that it would depend on the outcome of a fact-specific analysis of the entry’s “reasonableness.” This determination, he explains, requires balancing the government’s interest in searching and the “scope of the privacy invasion.”

 The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.

 

Kerr notes there is very little case law on this general issue and that which is relevant isn’t very fact-specific. (He references City of Indianapolis v. Edmond, 531 U.S. 32, 32 (2000) and United States v. Paetsch, 2012 WL 5213011 at *1 (D.Colo)).

In closing, Kerr emphasizes how the standing requirement creates obstacles to adjudicating such cases:

 The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. . . . As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

 

You can read the full post by Orin Kerr here.

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A nation apart | The Economist Compares U.S. Response to Terrorism

An Economist editorial from the April 20, 2013, print edition (but appearing on their website on 4/18/13) offers a comparative, internationalist discussion of why the United States is different from some other countries in its reaction to terrorism.  In an observation consistent with what my students learn in National Security Law and in Counterterrorism Law, the editorial observes that: “Seldom was a founding document [the U.S. Constitution] more focused on making it hard for politicians to change the law at times of national panic.”  As our textbook’s authors point out, the U.S. government is one of separate institutions with shared powers, rather than one based upon separation of powers.  For this reason and for others, The Economist concludes that: “In America, for good and ill, horrors are an unreliable way to force change.”

Lexington: A nation apart | The Economist

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U.S. Army Spec. Millay Sentenced on Espionage Charges

The Washington Post reports U.S. Army policeman William Colton Millay was sentenced by a panel of 8 military officials on Tuesday to sixteen years in prison and dishonorable discharge for attempting to sell secrets to someone he believed was a Russian spy. Millay’s arrest came after he was caught trading an envelope of information for $3,000.00, although the person to whom he traded the information was not, in fact, a spy. Reportedly, Millay also said he would be willing to work for the Russian government if they “made it worth his while.” The Post article goes on to state:

Prosecutors said Millay was a white supremacist, sick and tired of the military and his country, and didn’t care that his sale of secrets would put his fellow soldiers in harm’s way, AP said. Defense lawyers countered that Millay was emotionally immature and that his attempt at espionage was aimed only at getting him some attention, AP reported.

You can read the full Post article here.

You can read the AP report here.

 

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Piece-by-Piece Book on Obama Administration’s Counterterrorism Methods is Released by Lawfare Blog

Apr 17th, 2013 Books

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Lawfare blog has announced the launch of a book by Benjamin Wittes and Kenneth Anderson and published by the Hoover Institution Task Force on National Security and Law that exclusively analyzes the Obama Administration’s approach to national security legal issues.

The book, Speaking the Law: The Obama Administration’s Addresses on National Security Law, will be released one chapter at a time on Lawfare blog until it is complete and hardcover versions are available.

As Wittes and Anderson describe,

Consider it the White Paper the administration has never issued—a single document that brings together in one place everything the administration has said publicly about the law of the conflict with transnational terrorist groups.

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Judge Raises Prosecutor’s Burden in Espionage Act Case

Col. Denise Lind ruled during a pre-trial hearing last week in the case against Bradley Manning that military prosecutors must prove “beyond a reasonable doubt” that Manning had “reason to believe” the leaked secret government files could be used to harm the United States or aid a foreign power, The New York Times reports.

Manning is charged with a violation of the Espionage Act, which prohibits relaying military information to an unauthorized party. Two clauses of the Espionage Act are relevant to the charges against Manning. The first covers documents and requires proof of willful disclosure. The second covers generic “information” and requires proof that Manning had reason to believe release of such “information” could cause harm to the United States.

Since the “government elected to charge the communications” under the latter provision, Col. Lind adopted the language requiring prosecutors to prove Manning had reason to believe the communications would result in harm. As paraphrased by Times correspondent Charlie Savage, a military legal spokesperson described the potential impact of the judge’s decision on Manning’s case as follows:

[T]he decision may make little difference because the judge previously ruled that Private Manning’s motive — whether he thought of himself as trying to help society — was irrelevant to whether he intentionally broke the law. The fact that many of the documents were classified, he said, was a reason for Private Manning to believe that their disclosure could cause harm.

 

You can read the full article here.

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USS Cole Conspiracy Trial at Gitmo Postponed Due to Apparent Security Breach

The Miami Herald reports that Gitmo chief judge Army Col. James L. Pohl ordered a two-month delay in pre-trial proceedings in the USS Cole conspiracy case “in the interest of justice” following reports that portions of the Pentagon computer system housing defense and prosecution court documents is not secure.

After certain defense documents disappeared from a “secure” hard drive at the Office of Military Commissions, chief defense counsel Air Force Col. Karen Mayberry ordered all war court defense attorneys to halt use of their computers and email accounts, according to the article. In light of the complications with the computer system, the attorney for alleged USS Cole bomber Abd al Rahim al Nashiri requested a delay early last week.

Col. Mayberry commented on the situation as follows:

I honestly don’t know how bad it is. All I know is that the information systems have been impacted, corrupted, lost.

 

You can read the full Miami Herald article here.

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DOD to Gain Exclusive Control of U.S. Drone Program

Senior U.S. government officials reportedly disclosed to The Daily Beast that the U.S. drone program, which is currently dually run out of the CIA and Department of Defense (DOD), will soon shift such that it will be within the exclusive control of the DOD.

Daniel Klaidman, contributor for The Daily Beast, offers the following likely changes that will take place after the shift:

  • The criteria to issue a drone strike may become more stringent and will likely become more regulated as the program’s transparency and, therefore, accountability increases.
  • The command and control structure of UAV strikes will merge creating a more uniform set of standards to be applied.
  • The CIA may remain involved; however, the operational control of the program will reside with the military and be governed by chapter 10 of the United States Code rather than chapter 50. Chapter 10 governs military operations and chapter 50 governs intelligence and covert activities.

According to The Daily Beast, one senior official commented on the change as follows, “This is a big deal. [The shift] would be a pretty strong statement.”

 

You can read the full Daily Beast article here.

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National Security Investigations & Prosecutions, 2nd ed.

Great news! David Kris and Douglas Wilson have updated National Security Investigations & Prosecutions for a second edition.  Thomson Reuters has it for sale at this link.  It shows a 2012 copyright, so maybe it has been out for a while and I missed it.  Hat tip to Lawfare Blog for reviewing it and brining it to my attention.  I used the 2007 1st Edition as the textbook for my course Prosecuting Terrorists in Article III Courts at the Syracuse University College of Law.  The book was most excellent and had no equal in the marketplace, but was quickly outdated by the 2008 amendments to the Foreign Intelligence Surveillance Act.  At the time, neither Kris not Wilson was available to update it, because of official duties in the Department of Justice.  So, I went back to using my own materials.  In fact, after nine iterations of the course, next year’s curriculum will not include the course (although Counterterrorism Law & National Security Law will continue, as well as many more offerings through the Institute for National Security & Counterterrorism).  Maybe I’ll get to teach from it again someday.  In any event, it is a wonderful resource for practitioners and policymakers, as well.

Lawfare › National Security Investigations & Prosecutions, 2nd ed. (Vols. 1 & 2)

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Judge Rules: Participant in Bin Laden Raid May Testify in Case Against Manning

According to an article by The Washington Post, Army Col. Denise Lind ruled yesterday that a member of the team that raided Osama bin Laden’s compound may testify for the prosecution in the case against former Army intelligence analyst Bradley Manning.

Manning is awaiting a court martial for his role in the WikiLeaks security breach whereby approximately 700,000 documents and national security materials were leaked. As The Post reports, last month at Fort Meade Manning pleaded guilty to ten charges, although the prosecution is pursuing twenty-two additional charges, including aiding the enemy.

The article states that, during Wednesday’s hearing, prosecutors argued that the potential witness, who is presumed to be a member of Navy SEAL Team 6 but who has only been identified as “John Doe,” has relevant knowledge about digital media that was found in bin Laden’s compound. This material, the prosecution submitted, will prove bin Laden had access to some of the leaked material. Manning’s defense countered that any evidence obtained during the raid “was not relevant to the charges against Manning.”

The judge will permit the witness to testify in a closed session at a secure location and with a light disguise but, she ruled, the prosecution must prove beyond a reasonable doubt that the “enemy received” the material.

 

You can read the full Washington Post article here.

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U.S. Navy to Unveil Laser Attack Weapon

According to The New York Times, the U.S. Navy will soon (and for the first time) deploy a laser attack weapon reportedly capable of disabling patrol boats and destroying surveillance unmanned aerial vehicles (UAVs). Although the laser will not be operational until next year, the Navy has released a video taken during test firing to illustrate the instrument’s utility.

VIDEO: Navy Laser Attack Weapon Demonstration

The unveiling, if you will, will take place aboard a converted amphibious transport and docking ship in the Persian Gulf, “where Iranian fast-attack boats have harassed American warships and where the government in Tehran is building remotely piloted aircraft carrying surveillance pods and, someday potentially, rockets,” The Times reports.

 

You can read the full article here.

Again, the video is available here: VIDEO: Navy Laser Attack Weapon Demonstration

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