Author: Jeffrey Kahn

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Thanks, Concurring Opinions, April was fun!

Shipley CoverMy month as a guest blogger ends today.  Contra T.S. Eliot, my April at Concurring Opinions was great fun.  So I want to express my thanks to Danielle Citron for the invitation, and to her co-bloggers at Concurring Opinions for such a great platform on which to share my ideas.

Most of my posts this month concerned recent developments concerning terrorist watchlists, and especially the No Fly List, which are ongoing research interests of mine.  For those interested in the subject, the University of Michigan Press has expedited the publication of the paperback edition of my book, Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.  Reviews have been published in The Chronicle of Higher Education and the Journal on Migration and Human Security.  The Dallas NPR affiliate also featured the book on a one-hour radio program.

And for those interested in the latest No Fly List cases, including Tanvir v. Holder, Ibrahim v. DHS, and others, I am in the process of developing a clearinghouse on my personal website that will keep track of developments in the growing number of such cases.  This project is in its early, conceptual stages; I hope that I can launch it sometime this summer.  If anyone has created and administered such an online resource, I’d be interested in learning from your experience.

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“It’s déjà vu all over again”: Tanvir v. Holder — The Latest No Fly List Case

On Tuesday, attorneys for the Center for Constitutional Rights, the CLEAR Project, and Debevoise & Plimpton filed a First Amended Complaint in the latest federal lawsuit to challenge the No Fly List.  The case is captioned Tanvir v. Holder.  The lawsuit, filed in the United States District Court for the Southern District of New York, seeks declaratory, injunctive, and monetary relief under the APA, Religious Freedom Restoration Act (RFRA), and Bivens.  There are four causes of action — (1) Retaliation in Violation of Plaintiffs’ First Amendment Rights, (2) Violation of RFRA, (3) Violation of Procedural Due Process under the Fifth Amendment, and (4) Unlawful agency action under the APA.

That is all a rather technical way of expressing the headline-grabbing — but not particularly new — allegation at the heart of the case.  What is new about this case is the depth of detail in the 58-page, 228-paragraph newly amended complaint.  The plaintiffs allege that the FBI used the No Fly List as a crude tool of coercion to try to press them to become informants in Muslim communities.  The four plaintiffs are a United States Citizen and three Lawful Permanent Residents.  All four plaintiffs identify themselves as Muslims.  And each tells a similar story of catch-and-release pressure by FBI agents who wanted them to become informants or agents provocateurs against members of their religious communities.  In addition to naming Attorney General Eric Holder, FBI Director James Comey, Terrorist Screening Center Director Christopher Piehota, and DHS Secretary Jeh Johnson as defendants, the plaintiffs also include twenty-four FBI agents and one DHS agent either by full name, partial name, or “John Doe” reference.

The First Amended Complaint may be read here.  The lawsuit has been assigned to Judge Ronnie Abrams.  The Government’s response is due June 23.  I think a motion to dismiss, rather than an answer, is a fairly safe prediction.  More interesting, although a bit more inside baseball, will be whether an AUSA from the U.S. Attorney’s Office for the Southern District of New York runs the case (as the docket currently indicates) or attorneys from the Department of Justice in Washington D.C. take it over.  The Southern District has historically been fairly autonomous from Main Justice with regard to its cases, successfully resisting such takeovers.  But the Justice Department’s Federal Programs Branch (a part of the Civil Division) has developed a cadre of attorneys with experience in No Fly List cases, including most recently both Latif v. Holder (in Oregon) and Ibrahim v. DHS (in California).  (Full disclosure:  I served as a testifying expert for the plaintiff in Ibrahim  in 2013 and served as a trial attorney in Federal Programs Branch from October 2003 to April 2006, although I had no exposure there to any No Fly List cases.)

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Res Ipsa Loquitur: The Justice Department’s Censored Judicial Opinion Revealed At Last

Dr. Rahinah Ibrahim challenged the constitutionality of her inclusion on the No Fly List and won.  She was the first such plaintiff to obtain an actual trial — let alone victory — in federal court.  That bench trial took place in December in San Francisco.  The Court’s “Findings of Fact, Conclusions of Law, and Order for Relief” was filed under seal in mid-January and accessible to the public in a redacted form in early February.  But until Wednesday, when it was completely unsealed, no one but the lawyers in the case could read the entire document.  Not even the plaintiff herself.  Why?

Until this week, all the public could know were the most visible parameters of the plaintiff’s injury and three-quarters of the Court’s remedy.  The Court found in favor of Dr. Ibrahim, who had been handcuffed, jailed, and denied boarding at San Francisco Airport way back in January 2005, when she was a Stanford University graduate student.  On January 14, 2014, Judge William Alsup ordered various federal agencies to search, cleanse, and correct all entries on terrorist watchlists and databases that the Court held could contain mistakes resulting from the incompetent conduct of an FBI Special Agent.  (Full Disclosure: I testified as an expert witness for the plaintiff in this case.)

But until Wednesday, the details were sealed up in 82 partially or completely blacked out lines of an otherwise public 38-page document.  This redaction was at the insistence of the Justice Department.  Similarly, the Justice Department demanded at least ten times during the trial (by Judge Alsup’s count) that the courtroom be closed.  The press and public were commanded to leave while the trial proceeded in secret session.  Dr. Ibrahim wasn’t at the trial.  The Government did not permit her return to the United States from her home in Malaysia to take the witness stand and hear the testimony in her own case.

Just what was so sensitive that it had to be censored?  What values were served by the insistence on secrecy, so contrary to our expectations for open judicial process?  The unsealing of this record shines a rare light on those questions.  The answers are revealing, but not very comforting. Read More

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There & Back Again: John Rizzo & Yuri Nosenko

John Rizzo gave thirty-four years of service as an attorney for the Central Intelligence Agency, serving with distinction under eleven directors and rising to acting general counsel.  Yuri Nosenko, who died in 2008, was a lieutenant colonel in the KGB, a Soviet defector, and suspected double agent.

RizzoNosenkoWhat do they have in common?  A late night, one-on-one, vodka-soaked discussion of Nosenko’s three years of unremitting torture by Rizzo’s employer. The torture produced nothing, neither confirmation that Nosenko was a Soviet mole nor confidence that he was not.  In his new memoir, Company Man, Rizzo asserts that this meeting left an indelible impression on him as a young lawyer. But just how did he put that experience to use when he evaluated the legality of the “Enhanced Interrogation Program” that landed on his desk in the CIA General Counsel’s office after 9/11?

His answer is not found in his memoir.  But he did give an answer last week, when I asked him this question at an outstanding symposium on the future of national security law held at Pepperdine Law School.  The conference was organized by Professor Greg McNeal ably assisted by 3L Shelby Doyle and her team of student editors at the Pepperdine Law Review.

Comrade Nosenko’s story, and Mr. Rizzo’s answer, follow after the break. Read More

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“Would Winston Smith and Josef K. please return to the gate? Your flight is ready to depart.”

Yesterday the United States Court of Appeals for the Ninth Circuit released its opinion in Latif v. Holder.  Ayman Latif is a U.S. Citizen and disabled Marine Corps veteran who lives in Egypt.  Airport officials in Cairo prevented him from boarding a plane to return to the United States, where he needed to attend a scheduled disability evaluation.  Latif sought help from the U.S. Embassy, but he alleges that months later, after lengthy FBI interviews and polygraph tests, American officials told him that he could fly to the United States only as a “one-time thing,” without any guarantee that he would be allowed to return to his wife and daughters in Egypt.  He refused the offer and his benefits as a disabled veteran were cut.

Latif filed suit, along with other citizens and lawful permanent residents in the U.S. and abroad who alleged similar treatment.  They all claimed that they were prevented from traveling because the United States Government  placed them on its No Fly List.  This unanimous court of appeals decision opens a door to judicial review that, until yesterday, the Government had succeeded in keeping tightly shut.  After the break, I’ll provide a brief review of the current system and then analyze how the Ninth Circuit’s opinion presents a substantial opportunity for change.

(Full Disclosure:  Readers might recall me as a past guest at Concurring Opinions.  My bio is here and my interest in this case comes from my work on a book to be published in December by the University of Michigan Press called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.) Read More

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Happy New Year, Time to Go

The New Year has rung in and it is time for me to ring out.  I’ve enjoyed being a guest blogger again at Concurring Opinions very much.  Thanks to Danielle Citron for inviting me back.  It’s been great fun!

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Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

Russian President Dmitrii Medvedev met Tuesday with Mikhail Fedotov, Chairman of Medvedev's Human Rights Council. The Khodorkovsky report was the first topic that Mr. Fedotov raised.

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

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When Worlds Collide: Russia, the Internet, and Nothing to Hide (or, Интернет в России)

Danielle Citron and Daniel Solove — whose guest I am here at CO — always offer great insights into the brave new world of cyber law.  I find their work fascinating and worth a careful read.  But readers tend to bring a bit of themselves to whatever they read, and I’m no exception.  That part of my scholarship that focuses on Russian law sometimes makes it hard for me to avoid thinking about the original model for Big Brother that George Orwell had in mind when I read about the latest anxieties about the state’s relationship to cyberspace.

So today I was not entirely surprised to learn that the recent mass protests in Russia have a cyber-angle to them beyond the emphasis in news reports on how protesters have used Facebook and flash mobs.  Two angles, actually, that readers might miss and that I thought worth sharing.  The protests, as many know, were catalyzed by elections to the lower house of the Russian parliament, the State Duma, which were held Sunday, December 4. 

The first one was reported yesterday by Mark Franchetti in Moscow for the The Sunday Times (UK):

The dirtiest election in the country’s post-Soviet era began with a cyber attack, unprecedented both in its scale and its efficacy, on several websites critical of the Kremlin.

It was launched 90 minutes before polling stations opened and ended 90 minutes after they closed.  Half a dozen sites were shut down completely.

According to security experts employed by one of those affected, the onslaught came from 200,000 hacked computers across the world.  Unbeknown to their users, they requested simultaneous access to the sites, which crashed under the weight of demand.

“This was a concerted, well-organized attack which was very expensive to sustain.  It’s not some lone hacker causing trouble — rather something far more sinister, almost certainly linked to the security services,”  said one web security exeprt.

United Russia, the country’s largest party, led by Putin, denied any involvement but suspicion fell on the state — especially the FSB, the former KGB.  The only common link between the targeted sites was that all had posted an interactive map detailing alleged pre-election violations reported by ordinary citizens.

The map, which listed 6,000 alleged violations, was created by Golos, Russia’s only independent election monitoring group, whose site was among those disabled.

The offices of Golos, which is funded partly by the United States and European Union, waere raided by prosecutors in the run-up to the polling.  The Kremlin claimed that the West was meddling and Putin, who served in the KGB for 16 years, compared Russian recipients of foreign money to Judas.

The second report comes from ITAR-TASS, a Russian state-owned news service.  A report on its wire service suggested that someone (and probably a lot more than one)  in the Russian Interior Ministry really ought to read some of Solove’s and Citron’s work.  According to ITAR-TASS:

Alexei Moshkov, head of the bureau of special technical activities under the Interior Ministry, suggested on Thursday the taking of measures against anonymity in the Internet.  In his opinion, “today social networks not only have some advantages, but also create a potential threat to the fundamentals of society.”  Some mass media organs linked his proposal with the growth of protest activity of Russians after the parliamentary elections, in which the Internet is playing an important role.

Major General Moshkov believes that stability of the fundamentals of society may be ensured by banning the publication of anonymous reports, The Novye Izvestia [a Moscow newspaper -- ed.] writes.  “One may get registered under his real name, may report his address and after that communicate with others.  An honest and law-abiding person does not have to hide.  Let me remind you that there is no censorship in the Internet.  The “K” Department will not search for anybody or arrest anybody for criticism,” he stated point-blank.

Not everybody in Russia seems to agree with the general.  His boss, for example, Rashid Nurgaliyev, the Minister of the Interior.  Another ITAR-TASS post (which I’ve only been able to find in Russian) states:

 Head of the MVD [the Interior Ministry -- ed.] Rashid Nurgaliyev expressed his negative attitude toward required registration of the names and surnames of Internet users.  He declared this in answering a question of news agency  journalists concerning “face-control” on the network.

“This is stupidity and no one is planning to introduce this,” said Nurgaliyev.

Well, maybe there’s a reader out there after all!

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What if the Boy Who Cried Wolf Could Testify under a Pseudonym … as an Expert Witness on Canis Lupus?

What would the Daubert Hearing for "Shepherd X" look like?

“Major Lior” is the pseudonym for an Israeli Defense Force officer who testified in Dallas not long ago in what has been called the “largest terrorism financing investigation in American history.”  His name was pronounced “Major Lee-OR” at the trial.  Snarky commentators suggested that defense counsel should mispronounce his name to rhyme with “fire.”  After all, what defense counsel would not want to refer the jury to the testimony of a major liar?  But the joke exposed a real problem for the defense: how can you “attack a witness’s reputation for having a character for truthfulness or untruthfulness” under FRE 608 or engage in more typically frutiful areas of inquiry into credibility or expertise if — thanks to a court-sanctioned pseudonym — you don’t even know his name and must rely on your adversary for information in place of any investigative legwork of your own?

Last week, the Fifth Circuit handed down an important opinion upholding the convictions in that case.  The unanimous and enormous (172 page) opinion written by Judge Carolyn King (joined by Judges Emilio Garza and James Graves) received virtually no media attention.  That’s strange, considering that the convictions that the court upheld concerned an international conspiracy to fund Hamas and the defendants once ran the largest Muslim charity in the United States.

But the silence is stranger still when you consider the importance of the issue (one of many) before the court: Did the district court deprive the defendants of their rights to due process and to confront witnesses against them when it allowed two witnesses to testify using pseudonyms?  As far as I know, such a practice would be unusual but not entirely unprecedented were it to concern the typical fact witness.  Children, informers, and undercover agents are sometimes allowed various levels of shielding from the ordinary requirement of fully public testimony in a completely open court.  But these witnesses were far from ordinary.  Both were officers in the Israeli Defense Force.  “Major Lior” was a fact witness whose role was to authenticate documents obtained by the IDF during a military operation.  The other, “Avi,” testified as an expert witness, providing his opinion to the jury about the financial structure of Hamas.

After the break, I’ll give some background on the case and then explore the appellate court’s conclusion that this testimony worked no constitutional injury.  Given that the Supreme Court granted only 1.1% of the petitions for review last term, I doubt that the appeal will go any farther.  But I think it should and, though I certainly would give no quarter to Hamas or its allies, I think the use of these anonymous witnesses violated the defendants’ rights.

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AALS “Hot Topics” Program: Russia’s “Dictatorship of Law”

I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

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