Some Preliminary Thoughts on the Bin Laden Operation

I’m guest blogging over at Opinio Juris, below is a repost of something I wrote there:

First off, there is a lot of talk about this operation being a “human operation” involving special operations forces.  Some readers may assume that this meant there were no air assets involved (e.g. no Predators and no bombs dropped).  This is highly unlikely.  What probably occurred was that ground troops staged outside of wherever Bin Laden was housed, called in air strikes, then moved-in to exploit the objective.  This is not inconsistent with the idea that a firefight took place, it’s just a more likely and more complete description of how things probably played out.  This is especially likely given reports that Bin Laden was killed in a heavily fortified compound with 12-18 foot high walls with a significant security presence.  We will hear more about this in the coming days, but I’m guessing there was airpower in support of the ground operation.

Second, the fact that this took place in Abottabad, Pakistan tells us something about the credibility of the Pakistani government’s repeated claims that Bin Laden was not in Pakistan.

Third, Peter Bergen just said on CNN that killing Bin Laden is “The end of the war on terror.”  I’m skeptical of this claim and imagine that one year from now we will still be employing armed forces around the world in search of al Qaeda members.

I’ll have some more detailed thoughts once the speculation dies down.

A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements

I’ve posted the abstract to a recent symposium article A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements” to SSRN, but unfortunately I don’t have a .PDF of the final page proofs to post yet.  Here is the abstract of the article which appears in Volume 59 of the DePaul Law Review (official citation 59 DePaul Law Review 943 (2010):

This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

ABA National Security Law Report: Winter 2010 Issue

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The Winter 2010 Issue of the ABA National Security Law Report, the flagship publication of the Standing Committee on Law and National Security is now available on-line here.

Here’s a look at the Table of Contents:

In The Problem With Law Avoidance, Geoffrey S. Corn (South Texas) discusses the controversy associated with defining what role international law plays in constraining U.S. counterterrorism activities. Laurie Blank (Emory Law) responds.

Laurie Blank argues that In Counterterrorism, The Law of War is a Key Source of Law for the Courts while Geoff Corn responds, offering additional thoughts on the history of how courts for over 60 years.

Tung Yin reviews Alan Dershowitz’s Is There A Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11.

General John D. Altenburg reviews Homeland Security: Legal and Policy Issues.

Adrian Snead, Redefining Fourth Amendment Rights in the Digital Age: Suspicionless Border Searches of Electronic Data Storage Devices.

Since 1991, the flagship of the Standing Committee’s publications program has been the National Security Law Report. The Report is regularly distributed to attorneys, government officials, professors, and legal scholars. It includes: reports of committee conferences, pertinent law and national security updates, recent cases, book reviews, pending legislation, and other writings relevant to the field. To receive future copies of the National Security Law Report, please submit your full address to the Standing Committee’s mailing list.

Chesney on The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

Over at Lawfare, Bobby Chesney writes:

In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed changes by giving an utterly misleading impression of the legal status quo at GTMO.  It’s really quite bizarre, though not unprecedented.

The problem is that the editorial seems at pains to depict GTMO and detention policy as things stood circa spring 2004 or earlier.  The detainees are in a ‘legal limbo,’ the editors claim, giving the uninformed reader little reason to suspect the following:

– that detainees have had the right to seek habeas relief in federal court since 2008 (though as I note below the editors do offer an obscure reference in that direction late in the editorial)

– that many detainees have actually prevailed in the habeas process

– that from 2005 to 2008, detainees had a right to judicial review in the D.C. Circuit Court of Appeals (though the process was much less robust than habeas has turned out to be, and though only the Uighurs ever got anywhere under that system as other detainees concentrated on pursuing the right to file habeas petitions)

– and, last but not least, that an annual ‘administrative review board’ system for reconsideration of the need for continued detention already has been operating since 2005, and thus that the issue at hand is whether to substantially enhance the procedures associated with that review rather than invent the idea of annual re-screening from scratch (in fairness, the editors do offer an indirect reference to the existing system mid-way through the editorial).

Judge for yourself by reading the whole thing, and asking what an uninformed reader might assume about the status quo…

(Read the full post at Lawfare.)

Law Enforcement or Intelligence? Divergent Organizational Goals in US Counterterrorism


I will be in London today, appearing at the International Center for the Study of Radicalisation at Kings College.  My talk is entitled “Law Enforcement or Intelligence? Divergent Organizational Goals in U.S. Counterterrorism.”

The talk will describe the organizational structure of the U.S. Department of Justice National Security Division, the organization’s relationship with the U.S. Attorney’s Offices and their relationship with FBI field offices.  The talk is interdisciplinary in nature, drawing on studies in organizational theory, public administration, public policy and law.  After describing the organizational structure and relationships I will shift my attention to the normative, analyzing the risks and benefits associated with the U.S. approach.

ICSR is a unique partnership which brings together four great academic institutions: King’s College London; the University of Pennsylvania; the Interdisciplinary Center Herzliya (Israel); and the Jordan Institute of Diplomacy.  The aim and mission of ICSR is to educate the public in relation to diplomacy and strategy, public administration and policy, security and counter-terrorism and international conflict resolution.

ICSR maintains a great blog “FREErad!cals” here.

National Security Law Fellowship

Here is the announcement from Georgetown:

The Georgetown Center on National Security and the Law is pleased to announce a new two-year National Security Law Fellowship designed for a highly-qualified law graduate specializing in national security law who intends to pursue a law teaching career.  We seek applicants who have demonstrated an aptitude for independent scholarly research, as demonstrated by their scholarly work in law school, research related to other graduate degree programs, and/or their professional activities after law school. The Fellow’s time will be spent producing significant scholarship for publication. The Fellow also will contribute to the intellectual life of the Center, by regularly contributing commentary to the Security Law Brief blog run by the Center, and will have the opportunity to take part in the Georgetown Law Fellows’ Collaborative in preparation for the academic job market. This fellowship is designed for individuals intending to go onto the legal academic job market within two years.

Please visit for more details, including application instructions.


Al Qaeda on the Arabian Peninsula: More Dangerous than Pakistan based Al Qaeda

Yemeni based Al Qaeda on the Arabian Peninsula is a greater threat to the United States than the main Al Qaeda group located in Pakistan.  


According to a CIA report, summarized by The Washington Post the increasing threat posed by AQAP “has helped prompt senior Obama administration officials to call for an escalation of U.S. operations there – including a proposal to add armed CIA drones to a clandestine campaign of U.S. military strikes, the officials said.”

Islamic Group Recruits for Civil War, Not Jihad—File This Story Under Stupid

Well, it hasn’t taken long for The New York Times to show that they are fully on board with the Obama-Brennan nameless “extremist ideologies,” please don’t call it a war, and definitely don’t call it jihad garbage.  Consider today’s headline which reads “Islamic Extremist Group Recruits for Civil War, Not Jihad.” This comes on the heels of two Americans who were picked up at JFK after training for…wait for it…. jihad!

According to the complaint (h/t Bobby Chesney), one defendant stated “I leave this time, God Willing, I never come back. I’ll never see this crap hole. Only way I would come back here is if I was in the land of jihad and the leader ordered me to come back here and do something here. Ah, I love that.” According to the Department of Justice, the defendants “preparations included saving thousands of dollars, physically conditioning themselves, engaging in paintball and other tactical training, acquiring military gear and apparel for use overseas, and purchasing airline tickets to Egypt with the intent to then travel to Somalia. The defendants also discussed their obligation to wage violent jihad and at times expressed a willingness to commit acts of violence in the United States.” I’m not a fancy journalist for the New York Times, but it sure sounds like these guys believed they were going to fight jihad, not some civil war, but why believe that our enemies mean what they say?

Sadly, the average reader of this article would never know what motivated these guys to fight (and it’s not just the headline, note the HTML header “Al Shabab Recruits Americans for Somali Civil War”) as the piece goes on to characterize the fight in Somalia this way: “For several years, an intense civil war has raged in Somalia between a weak American-backed government and radical Islamist groups that are trying to overthrow it. The insurgents include fighters from Al Shabab, which has sent hundreds of young recruits to the Somali capital, Mogadishu, and a rival group, Hizbul Islam.”

Ahhhh yes, a Civil War, between that evil American-backed government and radical Islamist groups, this must just be some dispute about self governance without the interference of evil colonialist Americans, or maybe it’s about religious liberty, or minority representation in the legislature?  Or maybe it’s about, oh, I don’t know, the establishment of an Islamic state, which I know I read somewhere (Tip: let’s try Ayman al-Zawahiri’s statement that Shabab gains in Somalia were “a step on the path of victory for Islam.”)  Of course these types of fights are the point of jihad, it’s not a holy war for the sake of war, it’s a holy war to achieve an end, that end is the establishment of a global Islamist caliphate governed by sharia law.  And it’s on that point that the New York Times really struggles to get this story wrong.  For example, they note that both al-Shabab and Hizbul Islam share a “hard line Islamist” ideology…which called for amputations and public stonings for violations of Islamic law” plus “harsh rules prohibiting music, television and even bras.” Unfortunately this is buried in the story, chopped up between paragraphs, as the authors and their headline writer do verbal backflips to avoid calling a jihad what it is.  This isn’t the first time we’ve seen this, as Andy McCarthy notes in The Grand Jihad (pp. 335-336):

“Despite the extensive history of Muslims flocking to any ‘field of jihad’ where Islamists are in combat, the Bureau was instinctively quick to rationalize that ‘the primary motivation’ for their travel to Somalia was ‘to defend their place of birth [i.e., the place they couldn’t get out of fast enough] from the Ethiopian invasion.’  But the criminal charges filed by the Justice Department tell a different story:  one of a call to jihad that sounded in mosques from Minneapolis to Mecca.  Thus, even the FBI has had to concede, however grudgingly, that ‘an appeal was also made based on their shared Islamic identity.'”

And so it goes, despite ample evidence to the contrary it looks like the Obama-Brennan nameless “extremist ideologies” narrative is beginning to take hold.  How this is a good thing for our national security is beyond me, but at least we’ve got that narrative thing down.

Paging Andy McCarthy, please send a copy of The Grand Jihad to Eric Schmitt c/o The New York Times.


Zarein Ahmedzay Pleads Guilty to Terror Violations in Connection with Al-Qaeda New York Subway Plot

The Justice Department announced Zarein Ahmedzay, a U.S. citizen and resident of Queens, N.Y., pleaded guilty today in the Eastern District of New York to terrorism violations stemming from, among other activities, his role in an al-Qaeda plot to conduct coordinated suicide bombings on New York’s subway system in September 2009.

At a hearing this afternoon before Chief U.S. Magistrate Judge Steven M. Gold, Ahmedzay, 25, pleaded guilty to the following violations: conspiracy to use a weapon of mass of destruction (explosive bombs) against persons or property in the United States; conspiracy to commit murder in a foreign country; and providing material support to a foreign terrorist organization, namely al-Qaeda. Ahmedzay faces a sentence of up to life in prison.

Ahmedzay was first indicted on Jan. 8, 2010, in the Eastern District of New York on charges of making false statements to the FBI about his travels to Pakistan and Afghanistan. On Feb. 25, 2010, he was charged in a superseding indictment in the Eastern District of New York with conspiracy to use weapons of mass destruction; conspiracy to commit murder in a foreign country; providing material support to al-Qaeda; receiving military-type training from al-Qaeda; and making false statements.

‘The facts disclosed today add chilling details to what we know was a deadly plot hatched by al-Qaeda leaders overseas to kill scores of Americans in the New York City subway system in September 2009,’ said Attorney General Eric Holder. ‘This plot, as well as others we have encountered, makes clear we face a continued threat from al-Qaeda and its affiliates overseas. With three guilty pleas already and the investigation continuing, this prosecution underscores the importance of using every tool we have available to both disrupt plots against our nation and hold suspected terrorists accountable.’ (more…)