This post will remain at the top of the page as long as it is usefully collecting data. For commentary on President Obama’s speech today, and other new content, see below this poll–but please fill it out first.

This time last year, we posted a readership survey that a larger number of Lawfare readers were kind enough to fill out. The results were extremely helpful, so we thought we’d do it again. We very much appreciate your taking the time to fill out the survey that follows below the jump and give us your thoughts and suggestions. Read more »

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In his speech this afternoon, the President is expected to announce a renewed effort to close Guantanamo.   This will require hard work, both with Congress and with other countries.   When the President originally announced his intent to shutter Guantanamo, I supported that effort, but I recognized that it would be harder than the President envisioned.

Many officials in this Administration came into office apparently believing that the Bush Administration hadn’t worked very hard at resolving the problem and that there were dozens of “innocent” detainees who could either be released or tried in federal courts.  In fact, neither supposition was true.

Many of us who served in the previous Administration had worked hard to close Guantanamo and had successfully reduced the detainee population by more than 500 through arduous diplomacy.

Here is an op-ed I wrote in the New York Times in January 2009, on the eve of the Obama Presidency, describing the work the Bush Administration had done to close Guantanamo and calling for more assistance from our allies, who had steadfastly refused to provide any help to close Guantanamo, even as they benefited from the continued detention of dangerous individuals.  I closed as follows:

But closing Guantánamo is not a simple matter of letting detainees go. Concerns about how detainees will be treated upon return could prevent us from repatriating up to one-fifth of the remaining detainees, and we will likely need to find third countries willing to accept them.

Of the remaining detainees, a significant number are responsible for the deaths on Sept. 11 and in other terrorist attacks, or are dangerous individuals who pose a significant threat to America or other countries if allowed to go free.

However you do the math, a significant number of these detainees will likely remain in U.S. hands, and difficult decisions will have to be made about where to hold them and what legal rules apply. Even with other countries’ help, the problem of closing Guantánamo will continue to defy an easy solution.

More than four years later, closing Guantanamo continues to defy an easy solution.   But Guantanamo cannot remain open for another fifty years, like Spandau Prison holding Rudolf Hess after World War II.  Both Congress and other countries should support President Obama’s efforts to devise a long-term solution.

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I recently posted an essay, with co-author Sam Issacharoff, on what we conceive to be the key legal, institutional, and process issues concerning the use of drones for targeted killings — and even more importantly, what the underlying forces are that make these the critical issues. President Obama’s speech at the National Archives on Thursday will surely address these issues. The essay will be a chapter in a unique Cambridge University Press book due out this fall, Drone Wars: The Transformation of Armed Conflict and the Promise of Law, edited by Peter Bergen and Daniel Rothenberg. In addition to expert analyses of the issues, the book includes interviews (some anonymous) of those connected in various ways to the drone issue, including Afghani residents in affected areas, drone pilots, and others.

Here’s the abstract of the essay [as soon as the SSRN link becomes active today, I will link to the full essay]:

This essay argues that four commonly repeated concerns surrounding the use of drones to target identifiable individuals for lethal force rest on various legal and historical misconceptions and misunderstandings. These concerns are that: (1) that targeting specific individuals for death is a modern innovation in military practice; (2) that greater modern technological capacity to project force from a distance itself raises entirely new legal issues; (3) that drones and targeted killing pose a major threat to the humanitarian purposes and aims of the laws of war; and (4) that drone warfare is likely to make the use of force “too easy.” After addressing these issues, the essay turns to what is instead most distinctive about drone strikes from a legal, moral, and policy perspective. The issues that are truly critical revolve around an emerging transformation of the nature and norms of modern warfare; these issues reflect the more profound fact that we are moving toward a world that requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is considered justified, at least as a moral and political matter.

This transformation is pervasive, with sweeping ramifications. Even as the U.S. government asserts that it is at war, it is not mechanically applying the traditional law of war principle that lethal force can be directed against any member of the enemy armed forces. Instead, the government is individuating the responsibility of specific enemies and targeting only those engaged in specific acts or employed in specific roles. The government is making what has all the appearance (and reality) of adjudicative-like judgments based on highly specific facts about the alleged actions of particular individuals. The key legal, moral, and policy questions then become how an appropriate framework for making such individualized decisions should be structured. From an ex ante perspective, what kinds of processes should be considered adequate to make these judgments? Which institutions should play what roles in such individuated judgments about the identity of “the enemy?” From an ex post perspective, what kind of review and accountability ought to be required of these decisions? After clearing the ground of the more common misperceptions about the use of drones, the essay begins to develop a general framework for designing processes and institutions that offer appropriate answers to these essential questions.

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Today, counsel for Saeed Mohammed Hatim filed an “Emergency Motion Concerning Access to Counsel,” both in the Yemeni detainee’s recently reactivated habeas action, and in In Re: Guantanamo Bay Detainee Continued Access to Counsel, a separate matter on the district court’s miscellaneous docket.  In the latter, the filing was made both on Hatim’s behalf and that of various other detainees, who suffered or might suffer infringements on their counsel access rights.

The gist of the motion—which cites a number of declarations and exhibits—is that certain GTMO protocols, including body search procedures, chill detainees from meeting with lawyers.  From Hatim’s filing:

Most Guantánamo detainees are held in two closely-adjacent prisons, known as Camp 5 and Camp 6.  (The so-called “high value” detainees are held in a separate facility.)  Historically, counsel have met with their clients either in Camp 5 or Camp 6, i.e., in the prisons where they are being held, or in a separate nearby facility known as Camp Echo.  Ex. A, Declaration of David H. Remes, ¶ 5 (“Remes Dec.”).  Camp Echo contains huts where meetings between detainees and counsel can take place.  Compared to meetings in Camp Echo, meetings with counsel in Camp 5 or Camp 6 are more convenient for the detainee and the prison staff because they do not require that the detainee be transported by van from his prison camp to Camp Echo.  Detainees have telephone calls with their lawyers in another facility, Camp Delta.  Id.

Counsel for Hatim travelled to Guantánamo in late April 2013, to meet with Hatim and other clients.  Ex. A, Remes Dec. ¶ 9.  The meeting with Hatim was to take place on May 1, two days before a prehearing conference in Hatim’s habeas case.  Among other things, counsel ntended to consult with Hatim concerning his newly-reactivated habeas case.  Id.  The Government scheduled the meeting for Camp Echo, which would require that Hatim be transported by van from his cell in Camp 6.  Hatim reported that he would meet with counsel in Camp 6, but not at Camp Echo.  Id. ¶ 10.  Counsel was ready, willing and able to meet Hatim in Camp 6, but the Government refused, stating that it would not allow meetings in Camp 6 “in any circumstances.”  Id. ¶¶ 11–12.

The Government neither then nor now has provided any justification for its refusal to allow Hatim to meet with his counsel in Camp 6, which constituted a reversal of long-standing practice.  Read more »

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In advance of the President’s speech tomorrow, the Attorney General has just sent this letter to Senator Leahy, Chairman of the Senate Judiciary Committee, describing the Administration’s legal basis for killing Anwar al-Aulaqi and targeting other U.S. citizens outside the United States.

The letter confirms that the U.S. specifically targeted al-Aulaqi because of “his direct personal involvement in the continued planning and execution of terrorist attacks against the U.S. homeland.”  The letter describes al-Aulaqi’s involvement in detail.  The letter also states that the operation against al-Aulaqi was “undertaken consistent with Yemeni sovereignty,” which presumably means that the Government of Yemen consented.

The letter also names three other U.S. citizens killed during U.S. counterterrorism operations since 2009 but who were not specifically targeted.

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Yesterday, Bobby and I wrote this post about what the President could say in his speech tomorrow on counterterrorism, and we highlighted as one important element the President’s repeated pledges of greater transparency on targeting.

As another move in that direction, Attorney General Holder today sent this letter to Senator Leahy.  Among other things, it declassifies the fact of the al Awlaki strike and some details about it, as well as the standards the government uses in U.S. citizen-targeting cases.  It also previews a document institutionalizing the “standards and processes for reviewing and approving operations to capture or use lethal force against terrorist targets outside the United States and areas of active hostilities,” including some of the substantive standards that govern when and how such operations are conducted.

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The press scandals keep on coming for the Obama Administration. Hot on the heels of revelations that the administration subpoenaed the Associated Press’s phone records as part of a leak investigation, the Washington Post reported on Monday that the Department of Justice (DOJ) targeted James Rosen, a Fox News reporter, in the Espionage Act investigation of Stephen Jin-Woo Kim, a former State Department contractor who allegedly disclosed to Rosen classified information about a North Korean nuclear test. As Jack noted on Monday, the DOJ affidavit behind the search warrant for Rosen’s emails stated that “there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d) [of the Espionage Act], as an aider and abettor and/or co-conspirator, to which the materials relate.”

These revelations fit in a now-longstanding narrative about the Obama Administration’s “war” on leaks (or on whistleblowers or journalists, depending on whom you ask). While some of the leak prosecutions — e.g., those of Thomas Drake and Jeffrey Sterling — began during the Bush Administration, it is nevertheless true that the Obama Administration has both started its own prosecutions and has, overall, prosecuted more leak cases than all other administrations in history combined.

This post offers some background on the relevant law, as well as on the aspect of leak prosecutions that has become particularly controversial and deeply troubling to many both in and outside the media: the use of the Espionage Act to prosecute the recipients of the leaked information in addition to the leakers themselves.

The Espionage Act

In the United States, unauthorized disclosure of national security information is not subject to a blanket prohibition. The United States, for instance, has no formal analogue to Britain’s Official Secrets Act. However, the Espionage Act of 1917, codified at 18 U.S.C. § 793–-798, imposes broad and wide-ranging criminal liability on individuals who disclose, and in some cases receive, classified national-security information. (For useful background on the Espionage Act, see this CRS report.) The Espionage Act is only one of numerous anti-leaking and -disclosure statutes. See, e.g., 18 U.S.C. § 1030(a)(1) (criminalizing the use of a computer in accessing classified foreign-relation or national-security information); 50 U.S.C. § 421 (prohibiting unauthorized disclosure of a covert agent’s identity). This post focuses on the Espionage Act, because it is the most high-profile of the anti-leak statutes and because of its role in the controversial search of Rosen’s email.

The history of the Espionage Act is interesting, although often overlooked today. As David Greenberg, a professor of history, journalism, and media studies at Rutgers University writes, “[t]he Espionage Act had a legitimate purpose: to try to stop the real threat of subversion, sabotage, and malicious interference with the war effort, including the controversial reinstatement of the draft.” At the time, the threat of (particularly German) sabotage was a real one, and the Espionage Act, while broad (and, to Greenberg, overly so), was actually less than what the Wilson Administration wanted. Congress refused, for instance, to allow press censorship, and circumscribed the postmaster general’s powers to filter the mails. In the end, Greenberg argues, “the act wasn’t meant, as it has often been represented, to stifle antiwar dissent, but to address particular wartime problems that officials had good reason to worry about: draft avoidance, sabotage, espionage.”

The statute has a number of different provisions, addressing different elements of unauthorized disclosures of information. Two provisions in particular speak to the unauthorized receipt of sensitive information and its subsequent retransmission: Read more »

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In one of the strangest stories I’ve come across in a long time—and there have been many—news reports say an FBI agent shot and killed an Orlando man with ties to deceased Boston bombing suspect Tamerlan Tsarnaev.  Ibragim Todashev was not suspected of playing a role in the bombings, but, during questioning, confessed nevertheless to playing a role in a triple homicide in the Boston area.  After his confession, Todashev allegedly attacked the agent with a knife and was shot dead. NBC News has the story, as does Michael S. Schmidt of the New York Times.

Just in time for President Obama’s big speech tomorrow, Scott Shane of the Times reports that the raw number of drone strikes has declined in Pakistan, Yemen, and Somalia.

Also in time for President Obama’s big speech tomorrow (no, I was not offered any compensation for promoting his address) Ted Barrett of CNN tells us that authorities have identified—by name—five men who they believe were involved in the Benghazi attacks.

Scott Wilson and Karen DeYoung of the Washington Post discuss the role ex-CIA director David Petraeus played in developing the Benghazi talking points.

Be afraid. Be very afraid. Kim Jong Un has appointed a new military chief: one Kim Kyok Sik. Expect nothing to change in the country’s posturing. The Associated Press has more.

Carol Rosenberg of the Miami Herald reports that Army Capt. Jason Wright, defense counsel for Khalid Sheikh Mohammed, has sent a letter to Secretary of Defense Chuck Hagel.  In it, Wright likens conditions at Guantanamo Bay to the failures that led to the My Lai massacre during the Vietnam War. Secretary Hagel is a veteran of that war.

According to Donna Cassata of the AP, the Department of Defense is asking Congress for $450 million to maintain and upgrade America’s favorite prison—the one at Guantanamo, of course.  And yet Jeremy Herb of the Hill tells us that President Obama is gearing up to push for the closure of the Guantanamo detention center.  File under “mixed signals.”

Meanwhile, in an effort to tackle WMDs in the Middle East and North Africa, Sen. Jeanne Shaheen (D-N.H.) today introduced The Next Generation Cooperative Threat Reduction Act.  Its objectives include “expanded training, professional networking and engagement with civil society, as well as tighter export and border controls,” says Julian Pecquet of the Hill.

The Times’s Room for Debate blog focuses on whether the Obama administration’s recent leak investigations advance national security or trample on the First Amendment. Contributors include Glenn Greenwald of the Guardian, Kori Schake of the Hoover Institution, and John Deutch, a former Director of Central Intelligence.

The Times editorial board argues that the Obama administration has gone too far with its investigation of Fox News reporter James Rosen and is now “threatening fundamental freedoms of the press to gather news.”

In a particularly gruesome story, Rod Nordland of the Times reports that an Afghan man missing since November has been found near a U.S. special forces base—footless.

And, I’ll conclude with this piece, on how the recently-released Star Trek Into Darkness is really about our targeted killing program.  It’s Today’s Moment of Zen.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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With President Obama’s big speech tomorrow on counterterrorism policy at National Defense University in mind, Commentary Magazine has been nice enough to post today my June cover essay, “The Case for Drones.”  (It’s free; no subscriber wall.)  Lawfare readers will probably immediately understand it as a mixture of the arguments Ben and I made at the Oxford Union debate and arguments spelled out in more detail in our new book, Speaking the Law; but offered as a specifically conservative political argument in a conservative magazine, and directed to Republican members of Congress particularly.  It’s a call for institutional settlement as we have often made it here at Lawfare, and as Ben and I make it as a neutral, centrist policy in Speaking the Law, but this time in a specifically political form. That said, it offers a list of arguments, objections and replies, around drone warfare and targeted killing, that I hope would be broadly useful in the debate, whatever side one is on.   (I discuss the article more at Volokh; also, as things stand now, I will be on To The Point on NPR tomorrow discussing the President’s speech.)

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Today we will appear before the House Judiciary Committee, and will argue that Congress should put to rest the question of military detention for domestic captures.  More specifically, we will argue that Congress should state explicitly that such detention is not an option under the AUMF or the NDAA FY’12.  Here is the complete text of our written statement:

Thank you Chairman Goodlatte, Ranking Member Conyers, and members of the committee for this opportunity to give our views on the subject of military detention under the laws of war of terrorist suspects arrested within the United States.

This written statement represents the views of Robert Chesney, Professor of Law at the University of Texas School of Law and Non-Resident Senior Fellow at the Brookings Institution, and Benjamin Wittes, Senior Fellow at the Brookings Institution.

We would like to make four major points today, points which lead to a single recommendation: Read more »

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Bill Keller of the NYT urges President Obama to order the Justice Department “to appoint an independent investigator with bulldog instincts and bipartisan credibility” to fully examine the IRS imbroglio and determine “whether the treatment of conservative groups seeking special tax status was (a) a ham-handed shortcut by overworked and badly guided bureaucrats, (b) a systematic persecution of political opponents, or (c) some combination of the two.”  Keller gives three reasons why Obama should do this:

First, it would demonstrate that the president understands that, in the cascade of controversies that have knocked his second term off course, the I.R.S. case is the one that matters most.  . . . The second reason to bring in a special prosecutor is that it’s the surest way to get answers the public might trust.  . . . The third reason for a special counsel is that the government has serious business to conduct, and the scandal circus on Capitol Hill is a terrible distraction.

These are sounds reasons.  And even in the absence of a DOJ conflict of interest, the relevant regulations (28 CFR 600.1) permit appointment of a Special Counsel in “extraordinary circumstances” or when “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”  But in urging a Special Counsel on Obama, Keller neglects a major potential downside for the President: a Special Counsel is a more powerful and competent investigator than Congress that is more likely to find any wrongdoing (if it exists), and that in any event would almost certainly prove more disruptive and distracting to the White House and Executive branch generally than Congress.

A Special Counsel can strengthen the White House’s hand in resisting partisan congressional inquiries on the ground of not wanting to jeopardize the Special Counsel investigation.   However, the President has fewer political arguments and weaker legal tools (such as executive and related privileges) to resist Special Counsel requests for information, interviews, and testimony.  A Special Counsel would also be a more competent and thorough investigator than Congress, and would possess the power to prosecute.  Depending on the scope of his or her mandate (Keller urges a broad one), a Special Counsel, can dig deeper and can do a better job of finding the truth – which is why Keller recommends one.  But (and this is what Keller overlooks) these very same qualities of independence, power, and competence would almost certainly mean that even if there is no White House or Executive branch wrongdoing to be discovered, the Special Counsel would impose more (and perhaps many more) costs on the White House and involved Executive agencies – in terms of time not spent on normal presidential business, the expense of lawyering up, the possibility of legal jeopardy for false statements, and the psychological distractions inherent in all of these things – than would Congress.

I don’t know whether those costs to the President and White House are worth the benefits Keller describes – we will see.  My only point is that the choice of Special Counsel is not all upside for the White House, and portends some of the very downsides (distraction from governance) Keller wants to avoid.  Keller says we should appoint a Special Counsel because “we have some governing to do,” implying that the appointment would free up Congress to govern.  Maybe so, but the appointment might make it harder for the White House to focus on governance, and might be a more dangerous route for it on the whole.

PS: Eric Posner and Adrian Vermeule wrote a terrific paper, The Credible Executive, that (simplifying a great deal) explores the tradeoffs between the  benefits of credibility and the costs of independent scrutiny that the Executive faces in deciding whether to go the Special Counsel route.

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Just in time for the President’s speech on Thursday, the Hoover Institution has released Chapter 2 of our serialized book: Speaking the Law: The Obama Administration’s Addresses on National Security Law.

The Introduction and Chapter 1 came out in March.

Chapter 2 offers a normative account of where we think the administration’s speeches on national security legal questions get things right, where they miss the mark, and where they require further development. We have also added Chapter 2 to the Speaking the Law page, which contains the entire project.

Speaking the Law (Chapter 2), by Kenneth Anderson and Benjamin Wittes

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An administration national security official writes in with the following thoughts on the furor over the warrant application against James Rosen of Fox News:

There is a great deal of hyperventilation—much of it self-interested on the part of the press—about the Administration’s “assault on the First Amendment.” In particular, the Administration has been roundly [criticized] for suggesting that a reporter who knowingly solicits classified information might be committing a crime. At the risk of violating the old adage about not picking a fight with someone who buys printer’s ink by the barrel, I want to take this on.

The Department of Justice did not claim that the Fox News reporter in the [Stephen Jin-Woo] Kim case committed a crime merely by publishing classified information. According to the Government’s filing in the case, the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and “dead drop” email accounts to do so. In other words, he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so. Remember, there’s no doubt that—assuming Mr. Kim is the guilty party—he violated the law if he disclosed properly classified information to a reporter.

Let’s look at an analogy. If a reporter finds Justin Bieber’s private diary on the street and publishes it, that’s journalism (of a sort). But if she pays someone to break into Bieber’s house to steal the diary, hasn’t she has aided and abetted, or conspired in, a crime, even if her intent is to get material to publish? That’s exactly what the Government says happened here—a reporter soliciting, and aiding and abetting criminal activity.

Now, it’s one thing to say someone may have committed a crime, and another thing to prosecute him for it.  It’s noteworthy that the Department of Justice did not charge the Fox News reporter but simply used his potential criminal activity as a basis for a search warrant, and identified him as an unindicted co-conspirator.  This was a damaging leak and the Government had every right to investigate to try to find the person who leaked it, and certainly there is a strong circumstantial case that they found him in this case.  The fact that the First Amendment affords protection to the publication of truthful information doesn’t give reporters license to do anything they want to get that information.

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William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:

While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak vigorously. The leak — which resulted in a May 2012 article by The A.P. about the disruption of a Yemen-based terrorist plot to bomb an airliner — significantly damaged our national security. . . .

The leak of such sensitive source information not only denies us an invaluable insight into our adversaries’ plans and operations. It is also devastating to our overall ability to thwart terrorist threats, because it discourages our allies from working and sharing intelligence with us and deters would-be sources from providing intelligence about our adversaries. Unless we can demonstrate the willingness and ability to stop this kind of leak, those critical intelligence resources may be lost to us.

An odd move from Guatemala’s highest court: it invalidated proceedings from April 19th onward, in the trial of Efrain Rios Montt for genocide and crimes against humanity.  That period includes Montt’s recent conviction for both crimes—which the court’s ruling effectively overturned.  As this BBC report  explains, the decision has its roots in an April 18 walkout by Montt’s defense counsel. Elisabeth Malkin of the New York Times also has a story.

Ryan Fogle, a U.S. diplomat and alleged CIA officer, is not the only American to be expelled from Mother Russia in recent weeks.  Also getting the boot is Tom Firestone, former legal adviser at the U.S. Embassy in Moscow and now senior counsel at Baker McKenzie’s office there. The New York Times says  Firestone was approached about becoming an informant for the FSB, Russia’s domestic security service, but declined.  That, it seems, prompted Russian officials to declare Firestone persona non grata.   Robert Beckhusen of Wired  analyzes the Firestone story here.

The Washington Post editorial board thinks l’affaire Fogle was a frame job:

The way Mr. Fogle’s arrest was turned into a public spectacle suggests it was a setup by the Russian security service. Over the weekend, a Russian news agency, quoting an FSB officer, identified by name the CIA station chief in Moscow, a breach of long-standing protocol.

The Times’s Thom Shanker profiles the outgoing deputy commander of Special Operations forces in Afghanistan, Brig. Gen. Don Bolduc.  The latter trains Afghan villagers to defend themselves against insurgents. Bolduc’s program is blessed by senior Afghan government officials; boasts the participation of more than 22,000 villagers in 55 village districts; and, according to Special Operations HQ, has a lower attrition rate than the Afghan National Army and Afghan National Police.  Still, for all these successes, Bolduc’s initiative is not controversy-free, as Shanker notes.

It’s official: the Pentagon has taken control of some drone operations, particularly those in Yemen.  According to this Reuters story, operations in Pakistan still will be run by the CIA, in order to maintain their covert status and ensure deniability for the U.S. and Pakistan.

Over at CFR, Micah Zenko excerpts the transcript from last week’s Senate Armed Services Committee hearing on the AUMF.

Pervez Musharraf, Pakistan’s embattled ex-president, was granted bail on Monday.  But he’s still under house arrest, and three different cases against him continue to move forward, according to Salman Masood and Ismail Khan of the Times.

With the latest round of Benghazi hearings done, the State Department is focused on implementing the Accountability Review Board’s security recommendations. Read Eric Schmitt‘s piece in the Times. And the Post’s Anne Gearan covered SecState Kerry’s remarks yesterday, about new restrictions on diplomats’ activities while posted in dangerous locales.  He said that, in order to perform their duties, foreign service officers must work “outdoors,” sometimes even beyond security barriers.

A 2010 Chinese cyberattack on Google sought information about U.S. surveillance targets, who were then believed to be Chinese intelligence operatives. Ellen Nakashima has more on the story in the Washington Post.

The Times’s Nicole Perlroth dives into the investigation into the Syrian Electronic Army’s recent cyberattacks.

And the GSA has taken the next step in setting standard cybersecurity contract requirements, as mandated by President Obama’s cybersecurity executive order. Here’s the agency’s request for information in the Federal Register.

A weekend Washington Post editorial called for cybersecurity legislation. It concluded:

To protect what we hold dear — from mobile apps to mutual funds — it is vital that the United States erect better defenses. Congress stalled in the last session over legislation that would improve cooperation between the private sector, which controls most of the networks, and the government, which could help defend those networks. An unreasonable business allergy to regulation was the main obstacle. The need for legislation is more urgent than ever.

Speaking of cyber, GTMO has turned off its WiFi and blocked access to social networking sites, as a result of a threat by Anonymous.  The notorious hacking outfit apparently has deployed its technical prowess in a show of solidarity with the detainees. Here’s the BBC story.

GTMO detainee and hunger striker Shaker Aamer has launched a Twitter campaign—or, at least, UK human rights group Reprieve has launched one on Aamer’s behalf.  Spencer Ackerman at Wired says that Aamer’s Twitter proxies are asking supporters to call the U.S. embassy and demand action on GTMO.

Congressman Adam Smith, Democrat of Washington State, has sent this letter to the White House.  Smith therein repeats his call to close GTMO—among other things by transferring cleared people, and prosecuting eligible detainees in federal courts or military commissions.

Brazilian police arrested one Hamzi Ahmad Barakat, a suspected member of Hezbollah and U.S.-designated global terrorist. This Times story has more.

Sulaiman Abu Ghaith, UBL’s son-in-law, stands charged with conspiring to kill Americans.  He seeks the help of defense lawyer Stanley Cohen, who has deep experience in terrorism cases but who also faces some legal troubles of his own.  It turns out Cohen is under federal investigation; Judge Lewis Kaplan said this might compromise Cohen’s ability to obtain the security clearance needed to review classified materials in Abu Ghaith’s case. Ben Weiser of the Times gives us a play-by-play of last week’s hearings.

In the New York Times, Clyde Haberman profiles Karen Greenberg, director of Fordham Law’s Center on National Security.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Ben and Bobby will be testifying in front of the House Judiciary Committee on “Protecting U.S. Citizens’ Constitutional Rights During the War on Terror” at 10 am tomorrow at 2141 Rayburn House Office Building.  The two other witnesses will be Steven A. Engel, partner at Dechert and former Deputy Assistant Attorney General, and Mary Ellen O’Connell of Notre Dame Law School. Their testimonies are as follows:

Steven A. Engel’s begins:

Chairman Goodlatte, Ranking Member Conyers, and the Members of the Committee, thank you for the invitation to testify today on protecting U.S. citizens’ constitutional rights during the War on Terror.

For more than ten years now, the United States has been engaged in an armed conflict against Al Qaeda, the Taliban, and associated forces. That conflict, while centered outside our borders, has not been limited to external threats. To the contrary, on September 11th, Al Qaeda proved that it had the military capability to inflict an attack on our homeland as devastating as anything that our Nation had experienced before.

While Al Qaeda clearly demonstrated that it represented a military threat to our country, the group and its associated forces are quite different from prior enemies. Al Qaeda is not a nation state, and its forces neither wear uniforms nor control territory in a conventional sense. Rather, Al Qaeda operates outside of, or in the shadows of, the laws of nation states, by exploiting power vacuums in failed states, making opportunistic alliances where available, and operating covertly within nations. As time has passed, the nature of Al Qaeda itself has changed, as the group has shifted, fragmented, and associated with regional groups outside of the Afghanistan and Pakistan region.

The War on Terror, as this armed conflict has been described, is thus a very different kind of conflict from ones we have seen in the past. And the nature of that conflict—with an ill-defined enemy, operating covertly and opportunistically—has itself raised special issues when it comes to defining the laws of war that govern this conflicts. The traditional laws of war are premised upon a conventional armed conflict or, in some cases, civil wars. The established legal framework provides clear answers to who may be detained, how they must be treated, and where they should be prosecuted. None of these questions is self-evident when it comes to the War on Terror.

The War on Terror poses special issues as well when it comes to the rights secured to United States citizens under our Constitution. With the nature of the enemy less defined, and the enemy set on attacking our homeland, the War on Terror requires that the Government work to detect and stop terrorist plots at home. The means by which we seek to stop such threats, and the rights of those, including American citizens, detained on our soil pose special challenges to ensure that we protect the constitutional rights of Americans at the same time as we protect their lives.

Read more »

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On Thursday, President Obama will be giving a major address on national security and counterterrorism, styled as a companion to the 2009 National Archives address.  That 2009 speech adopted a pragmatic approach blending a renewed emphasis on criminal prosecution and closure of Guantanamo with an embrace of the continued use of military detention and military commissions (albeit somewhere other than Guantanamo) in those instances in which those tools are both lawful and the best available option.

In that speech and since then, the President has repeatedly emphasized three major elements of a counterterrorism legal-policy agenda, but his administration has not followed through in a serious way: (1) closing Guantanamo; (2) working with Congress to put forceful counterterrorism actions (including detention and targeting) on sound and durable legal footing; and (3) making targeted killing more transparent.  If the President intends to use this speech to reinvigorate these initiatives, here is an overview of what he might say:

1. A True Policy, Not Just a Slogan, for Closing Guantanamo

There are now 166 detainees at Guantanamo.  Many of them are already approved for transfer or release, some of them are slated to be prosecuted by military commission, and others the President already acknowledged are likely not prosecutable yet are too dangerous to release or transfer.

Although there are fewer detainees at Guantanamo than when he came to office, Congress has since then imposed legislative restrictions on the President’s discretion to move them out (whether to the United States or to any other location) – so arguably the President is farther from his goal of Guantanamo closure today than when he started.  The President also cast into doubt his own position on this issue a few weeks ago, when in remarks to the press he seemed to reverse his view that it is appropriate to detain some Guantanamo detainees without trial for the long-run under color of the law of war (that is to say, under color of the legal theory that his own administration has advanced successfully in court for the past five years).

If the President is serious about closing Guantanamo now, he needs to put something concrete on the table and his administration needs to launch a political effort worthy of an issue it calls a national security imperative.  There are some short-term things he could do, and some longer-term initiatives he could outline.  As for short-term items:

• Restart periodic, individualized review of the need for continued detention in particular cases at Guantanamo (a process that used to occur on a regular basis, and which is way overdue for revival), while also making the case that it is not in America’s national security interest to continue to hold detainees in those situations where other available options can reasonably mitigate their threat.
• Direct the Secretary of Defense to issue the requisite certifications to transfer detainees from Guantanamo, something that can in fact be done under current statutory restrictions if the administration has sufficient political will to do it.
• Restart aggressive diplomacy to return transferable detainees, including to Yemen.

It is worth emphasizing that the core substance of those three items were all part of the Bush Administration’s Guantanamo policy as well, and used to have bipartisan support.  That said, it is also worth emphasizing that even if these short-term items are effective, this will only reduce the population, not empty Guantanamo altogether; the hardest cases will remain, just as President Obama explained in his 2009 National Archives address.  Which brings us to the topic of long-term initiatives relating to Guantanamo.

Under the long-term heading, it is clear the President is not interested in defending the current location of detention (presumably no matter how robust a review process he establishes and uses). What then?  The President might begin spending the political capital needed to move remaining detainees to an alternative facility inside the United States, as he planned in 2009, such as the facility in South Carolina where former military detainees Yaser Hamdi, Jose Padilla, and Ali al-Marri were held in the past, or the civilian facility in Thompson, Illinois that DOJ purchased last fall.  It is almost impossible to imagine a scenario for closing Guantanamo that does not involve moving some of them here.  Perhaps he might go about this by reopening the possibility of a “grand bargain” with some influential congressional Republicans who may be open to closing Guantanamo but would insist on other counterterrorism legislative reforms.  This brings us to the second major agenda element. Read more »

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When I wrote, last week, about the insecurity of Gmail, I was intending to gently mock the idea that the CIA might have such a bad sense of how Gmail works (and the Terms of Service under which it is provided) that it could possibly think Gmail was a secure platform for covert communications.  One correspondent did take me slightly to task (suggesting that the CIA might use Gmail under the principle of “security through obscurity”) but I was reasonably confident that nobody could have that sort of misunderstanding of systemic operations.  Two recent events, however, point in opposite directions:

First, we learn from today’s Washington Post that when Chinese hackers breached Google back in 2010, they may have gained access to files that indicated which Gmail accounts were under surveillance by the FBI — evidently with the intention of trying to figure out which Chinese agents were known to the FBI and subject to scrutiny.  This suggest two things, of course:  First, that since the FBI was using Gmail accounts to try and track Chinese agents, the possibility that Gmail was insecure (in this case through appropriate domestic legal process) was well known.  And, second, not only was it known to the US government but also apparently to the Chinese who demonstrated Gmail’s insecurity to inappropriate non-legal process as well.  Given the events of 2010, it strikes me as even =more= unlikely that using Gmail would be part of CIA tradecraft in 2013.

On the other hand, we now also know (again thanks to the Washington Post) that James Rosen, the Fox News reporter almost certainly communicated some of the time with his alleged source Stephen Jin-Woo Kim through a Gmail account.  Those communications are at the heart of a leak investigation in which DOJ is, as Jack has noted, pushing very hard.  So, apparently what I consider an obvious lapse in tradecraft is, to at least one sophisticated news reporter, …. a surprise. And if Fox News doesn’t know that Gmail is insecure, maybe it is too much to expect that the CIA would know.

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[Editor's Note: below you'll find a fourth and final post in our series by David Kris, on possible reforms to surveillance statutes.  The first post, an introduction, can be found here; two posts, on current challenges and a possible approach to reform, respectively, are here and here.]  

I need to make two points in closing.  First, of course, the profusion of possible values-based distinctions itself threatens another important value – simplicity.  As discussed above, intolerable complexity is the most likely spur for a blue-sky project.  But simplicity will require limiting governmental authority.  At the extreme, the simplest set of collection rules, applicable to any kind of collection, is also the most restrictive.  If we want one set of rules governing both non-consensual collection of content from the home of a U.S. person in the United States, and consensual collection of metadata from a non-U.S. person abroad, we will be using the more restrictive rules in both cases.  This tension between simplicity and maximum authority is, I believe, not always understood by government officials who decry the complexity of the current regime.  The balance between the two may be out of whack, but a balance will have to be struck.

Second, if a blue-sky project proceeds, the final challenge – perhaps the hardest of all – will be to escape, wherever possible, the zero-sum game between liberty and security.  There are certainly times when those values conflict, and we simply need to plant our flag and take a position somewhere along the continuum between them.  But there are also times, I believe, when changes in rules can enhance both values.  For example, I have argued that lowering the so-called FISA “wall,” which kept intelligence and law enforcement officials separated, enhanced both liberty and security.[1]  The best blue-sky approach would look hard for these win-win possibilities.  But that, like the rest of the project, will not be easy.

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My Brookings colleague Suzanne Maloney today launched a blog that will interest a lot of Lawfare readers. Suzanne is an Iran expert, and her new site—Iran@Saban—is devoted, as she writes, “to advanc[ing] a better understanding of the internal dynamics of the Islamic Republic and promot[ing] effective international strategies for dealing with the challenges its policies pose.”

Writes Suzanne:

We’ve timed our kick-off to coincide with the upcoming Iranian presidential election, in hopes of enriching the discussion that has already emerged around the ballot. As current president Mahmoud Ahmadinejad prepares to leave office, Iran’s internal power struggles will enter a new phase. From now through the vote on June 14^th and presumably well beyond, we’ll closely follow the twists and turns of Iran’s frequently unexpected electoral dynamics and consider what the future may bring for Iran. This discussion will delve into the major issues confronting Tehran today, especially the economic crisis and the impact of sanctions.

Although the electoral interplay will consume a great deal of attention in the next few weeks, the focus of the blog will extend well beyond the events of the election and Iran’s domestic dramas. We will be tackling Iran’s approach to the region and the world, its relationship with established and emerging powers, and the strategies and tactics of various players, including the United States, toward Tehran. Inevitably, we’ll spend a lot of time examining the nuclear issue, starting with the prospects for revitalizing the stalled negotiations between Tehran and the international community and discussions around alternative approaches if dialogue fails to produce a diplomatic resolution of Iran’s nuclear ambitions. However, the sense of urgency surrounding the nuclear issue has narrowed the American debate on Iran in recent years, problematically in my opinion. For that reason, watch the space for a robust discussion of the range of issues and threats related to Iran, including terrorism, human rights, the peace process and the Syrian civil war, the rise of new regional and global powers, and the impact of technology and changes in energy markets on Iranian politics and the policy options of the international community.

Suzanne already has an additional post on “Why Iran’s Presidential Election Matters“—advancing the counterintuitive thesis that it actually matters very much:

It would be tempting . . . to dismiss the election scheduled for June 14 as mere window-dressing or to disregard the brewing antagonisms within Iran’s political establishment as irrelevant. This would be a mistake, however, and yet another misreading of Iran’s complicated domestic dynamics. Don’t get me wrong— I don’t mean to suggest that the election will bear any resemblance to a truly democratic enterprise; even in the best of times, the Islamic Republic fell far short of meeting international standards for free and fair elections. However, while the outcome will be engineered, the element of improvisation is real, and the outcome of this latest twist in the thirty-four year power struggle within Iran will have significant implications for the future of the country and its role in the world.

If the past eight years of Ahmadinejad’s antics have taught us nothing else, they have demonstrated over and over again that Iran’s presidency matters. Despite its electoral illegitimacy, its institutional constraints, and the assiduous efforts of a system built around a divine mandate, the office of the presidency has emerged as one with real power to shape the context for domestic and foreign policy. The post exerts considerable authority over the Iranian budget, the framework for internal political activities, the social and cultural atmosphere, and even the most sensitive aspects of Iran’s security policies. Whoever assumes the office in August of this year will find himself near the apex of power, at a time of unprecedented external pressure and at the cusp of generational change within the Iranian regime. For this reason, the election and its outcome will have enormous sway over the future course of the Islamic Republic.

She also has this fascinating post on the recently-failed wrestling diplomacy between Iran and the United States—and Suzanne’s own experiences in people-to-people exchanges with Iran during the late 1990s.

This will be a site very much worth watching over the coming weeks and beyond.

(Full Disclosure: Suzanne works at the Brookings Institution’s Saban Center for Middle East Policy, which my wife—Tamara Cofman Wittes—directs.)

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As Jack posted yesterday—and as everyone is buzzing about—President Obama will give a major counterterrorism speech on Thursday at the National Defense University.  The Wall Street Journal, CNN, and Politico all report on the talk, and subjects that the President will likely address.

Speaking of Jack, he noted another of today’s big stories: the Washington Post’s piece on the FBI’s search, a few years back,  of an email account belonging to Fox News reporter James Rosen.

Naureen Shah and Tarek Z. Ismail of Columbia Law School’s Human Rights Institute have this op-ed in the Hill about the push to expand the FBI’s surveillance powers after the Boston marathon bombings:

Where ideology plays a larger role in terrorism, the best prevention is counter-ideas. Perversely, fear of FBI surveillance has made some American Muslim leaders feel they must shun or silence, rather than engage with, youth who show interest in violent extremism. Less surveillance, not more, is likely to free these communities to address violent extremist beliefs with anti-violence principles of Islam and democratic values already abundant within them.

Matt Waxman offered another perspective on this issue, and New York University’s Brennan Center for Justice has a fact sheet entitled “Just What Is An FBI Investigation?” which lays out the broad categories and features of FBI investigations.

The Times editorial board describes the FBI’s new proposal to eavesdrop on internet communications, arguing that the “rules will have to strike the right balance between privacy and cybersecurity and the government’s need to monitor criminal activity.”

The Associated Press reports that a gentleman and gentlewoman from Florida have been arrested and charged with possession of an explosive device.  Authorities had discovered pipe bombs and an arsenal of weapons in their home.

Chinese army hackers have resumed their hacktivities, after being accused earlier this year of stealing information from American companies and government agencies.  So says the Times. BBC also has the story.

The Washington Post editorial board explains why cyberattacks matter and why the United States urgently needs to pass legislation to deal with vulnerabilities in cyberspace.

For all of you who were trying to read Al Qaeda’s latest issue of Inspire over the weekend—and found it a scrambled mess—Western intelligence agencies may have been the reason. CNN reports.

CNN also informs us that the Obama administration is flexing its Benghazi  muscles.  The military has updated its “capture or kill” plans for the attacks’ alleged perpetrators.

Violence in Iraq continues to leave a devastating death toll: At least 48 people were killed and 170 injured as car bombs exploded across Baghdad and Basra today, reports Duraid Adnan of the New York Times.

According to the BBC, Russian counterterrorism officials prevented a terrorist attack in Moscow over the weekend; the suspects allegedly had undergone training in the “Afghanistan-Pakistan region.”

One Fazliddin Kurbanov, of Boise, Idaho, has pleaded not guilty to federal terrorism charges. He was arrested last Thursday, indicted in both Idaho and Utah, and has been charged with “one count of conspiracy to provide material support to a designated foreign terrorist organization, one count of conspiracy to provide material support to terrorists and one count of possessing an unregistered destructive device.” CNN has the scoop.

The Toronto Star investigates the Canadians who have joined the jihad in Africa, from al-Shabaab to Al Qaeda in the Islamic Maghreb.

The Times says that Rasul Mohseni, the powerful head of a provisional council in Afghanistan, was killed by a suicide bomber today.

Good news from the Frenemies: The AP announces that Pakistan has taken significant steps to regulate the sale of fertilizer produced at two factories in the country–and thus also to prevent the fertilizer’s use in IEDs in Afghanistan. And Pakistan’s powerful military general Ashfaq Kayani met with incoming prime minister Nawaz Sharif about a host of issues, according to the Post.

Michael Sheehan, Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict, told the Senate Armed Services Committee at last week’s hearing (at which Jack testified) that the War on Terror would last “10 to 20 years,” reports the Hill.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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A few years ago I wrote an op-ed that gave these reasons (among others) why the USG should not prosecute Julian Assange for the WikiLeaks disclosures of State Department cables:

A conviction [of Assange] would also cause collateral damage to American media freedoms.  It is difficult to distinguish Assange or WikiLeaks from The Washington Post.  National security reporters for The Post solicit and receive classified information regularly.  And The Post regularly publishes it.  The Obama administration has suggested it can prosecute Assange without impinging on press freedoms by charging him not with publishing classified information but with conspiring with Bradley Manning, the alleged government leaker, to steal and share the information.  News reports suggest that this theory is falling apart because the government cannot find evidence that Assange induced Bradley to leak.  Even if it could, such evidence would not distinguish the many American journalists who actively aid leakers of classified information.

The assumption of my argument was that the extension of anti-leak laws to include press solicitation of classified information would be novel and potentially constitutionally problematic.

Today, the Washington Post reports that the Obama administration has now crossed that line (or, more accurately, crossed the line several years ago).  The story makes clear that the Justice Department leak investigation of a former State Department contractor Stephen Jin-Woo Kim, who was indicted in 2010, is now operating on the theory that solicitation of classified information by a reporter can constitute a violation of a component of the Espionage Act.  In a 2010 application for a search warrant of the email account of Fox News correspondent James Rosen, FBI Agent Reginald B. Reyes stated his belief that the account would contain evidence of Mr. Kim’s allegedly illegal leak of classified information, and added: “there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate” (emphasis added).

Steven Aftergood of Secrecy News notes that the legal theory underlying the warrant constitutes “a startling expansion of the Obama Administration’s war on leaks.”  Aftergood adds:

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

After quoting FBI descriptions of Rosen soliciting and encouraging Kim to disclose the information, and comparisons of Rosen to “an intelligence officer would run an [sic] clandestine intelligence source,” Aftergood says: “What makes this alarming is that ‘soliciting’ and ‘encouraging’ the disclosure of classified information are routine, daily activities in national security reporting.”

Aftergood’s analysis is worth a full read, as is Glenn Greenwald’s.

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I meant to post on this last week and clean forgot until I heard a bit of it on CSPAN radio yesterday. The Heritage Foundation held this event on detainee policy featuring all four people who have held the job of deputy assistant secretary of defense for detainee affairs: Charles Stimson, who hosted the event, our own Matt Waxman, Sandra Hodgkinson, and the incumbent, William Lietzau. It’s a very interesting conversation about the detainee policy office, its history, and the challenges two administrations have faced.

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[Editor's Note: below you'll find the third in a series of posts by David Kris on surveillance reform.  In the first two installments, David introduced his subject, and then overviewed the challenges facing an attempt to overhaul the legal rules for surveillance.  Below he sketches a possible approach to a "blue-sky" reform effort.] 

The first task in any overhaul effort would probably be to define the conduct to be regulated.  In part for convenience, I have referred here to an overhaul of “surveillance” laws, but the project would need to consider more than just electronic surveillance.  It could include physical searches, and other methods of collecting information.  Current law governing intelligence collection offers a starting point for defining the scope of the project, but perhaps we would want to regulate more, or less, than we currently do.  The Fourth Amendment provides another starting point, but it may be too narrow because many current statutes (e.g., those governing pen-trap surveillance) regulate conduct that is not a Fourth Amendment search or seizure.[1]  Extant foreign intelligence collection activity (as opposed to regulation) might also serve as a guide, but that too is subject to change, and not all current foreign intelligence activity is equally regulated.  Moreover, a focus on intelligence leaves the question whether to address law enforcement collection, because differences between the two regimes may themselves create severe anomalies – particularly for the FBI[2] – where the same information can be obtained under each.

A related question concerns the nature of the overhaul.  For example, if limited to legislative change, we may want to ignore some collection activity altogether, and leave it to internal executive branch regulation, as Congress did when it enacted FISA in 1978.[3]  Today, a good deal of foreign intelligence collection is regulated by the Fourth Amendment and Executive Order 12333 and its subordinate procedures, but not in any meaningful way by statute; bringing all of that activity under statutory control would be a radical step.  In short, defining the conduct to be regulated is not as straightforward as it might sound, but will fundamentally affect the basic scope of the project.

The next step, and in some ways the hardest and most important one, would be to divide the universe of relevant conduct into meaningful pieces, which can be regulated in different ways, at different levels of intensity.  This process of division probably should begin with our values.  For example, where do we most and least value privacy? [4]  Where do we want or need broad governmental power, and the famous “speed and agility” that apparently motivated the Terrorist Surveillance Program?[5]  Whatever proposals emerge from the overhaul, they would likely need to distinguish in some way between different forms of collection – e.g., between non-consensual surveillance of the words spoken in a telephone call between two American citizens in the United States, and the consensual monitoring of the telephone numbers dialed (but not the words spoken) in a call between two citizens of Afghanistan located in that country, or the mere physical surveillance of the Afghans when they visit a public market in Kabul.  What are the values that inform this distinction?

Rather than beginning with a clean slate, and an attempt to discern our values from scratch, it may help to note the distinctions that have in fact been used in prior and current statutes and rules, which reflect values we have adopted, or at least enacted into law, from time to time.  A blue-sky project would critically review these distinctions and consider whether to adopt, reject, modify, or supplement them.  Here is a list of some (not all) of those distinctions: Read more »

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[Editor's Note: this is the second in a series of four posts by David Kris, on large-scale surveillance reform.  The first, an introduction, can be found here.  Below, David discusses the challenges facing any "blue-sky" overhaul.] 

A blue-sky overhaul, while easy to imagine, would be extraordinarily difficult to execute, fraught with risk, and likely to fail in practice.  Savvy officials in government know this, which is one of the main reasons that comprehensive reform does not occur.  Looking back, for example, it appears that some of the issues addressed by the FAA may have been recognized as early as 1987, at least to some degree, but deferred for 20 years precisely because of the challenges inherent in seeking their resolution.[1]  As I have explained elsewhere:

In 1990, DOJ’s Office of Intelligence Policy and Review (OIPR) wrote a memo to the Office of the Deputy Attorney General explaining that it had been “working with the National Security Agency for the past three years to develop possible amendments to the Foreign Intelligence Surveillance Act to meet a need created by technological advances.”  In particular, these technological advances appear to have affected “NSA’s collection of international and foreign communications,” creating a “practical imperative” for legislation.  The 1990 memo cited draft legislation on which DOJ and the NSA were “close to agreement,” and which would have “provide[d] for Attorney General certification, rather than court order” for the surveillance.  However, the 1990 memo also identified several “policy and tactical issues” counseling against seeking new legislation.  These policy and tactical issues appear to have overcome the practical imperative in 1990, resulting in no amendments to FISA.[2]

These “policy and tactical” issues, the government’s 1990 memo explained, included the following:

• the fact that “committee jurisdiction in both the House and Senate is concurrent between the Intelligence and Judiciary Committees,” and while the “problems giving rise to the possible amendments have all been discussed with the Intelligence Committees,” they had not been discussed “with the Judiciary Committees”;

• concerns about separation of powers, and the question whether “putting the proposed new collection under the statute, albeit on the basis of Attorney General certification, pose[s] greater separation of powers problems than attempting to exclude the collection from the statute?”

• “the risk of added congressional restrictions if the statute is opened up to amendment”; and

• the fact that “the proposed amendment to FISA to resolve the NSA problem . . . is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them,” thus risking “speculation in the media about what is really intended and probably deep suspicion that something sinister is going on.”[3]

All of these concerns, and others, could apply even more strongly to a blue-sky overhaul of surveillance laws in general.  The official commencement of such an effort, if disclosed, could produce ripple effects of the sort outlined above – e.g., “deep suspicion that something sinister is going on.”  Moreover, even if there were a policy decision within the executive branch to develop an overhaul package, and even if it were conducted in a protected, sandbox environment with no ripple effects, the government officials best suited to perform it will be most needed for daily operations.  This is something outsiders may not appreciate:  even within the vast U.S. Intelligence Community, relatively few officials have the truly deep knowledge and skills to properly perform a blue-sky review of our surveillance laws.  Some of that scarcity results from legal complexity, some from technical and operational complexity, and some from the perfect storm where they converge.  Most of the officials who have the legal and technical knowledge and skills cannot retreat from day-to-day operational responsibilities – in fact, the work of meeting those responsibilities is part of what qualifies them to conduct an overhaul.  Outsiders, who may have more free time than their government counterparts, have less operational and other knowledge, and a blue-sky endeavor uninformed by ground-truth will almost surely fail.

Nonetheless, if complexity pains escalate sufficiently, or if there is a crisis of some sort, an overhaul may become possible or required despite the risks and costs.  More importantly, even if it would not yield a viable legislative product, the process and results of an overhaul might, by identifying a preferred end state, serve as a polestar for more realistic incremental change over time.  It might also help triage efforts to address anomalies in current law, allowing officials to focus on those most in need of correction.  This is probably its chief value.

As a former government official with at least a lingering sense of the legal and operational challenges, I have given some thought to how we might conduct a blue-sky overhaul if we wanted or needed to do so.  Without suggesting that it is in fact a good idea, what follows beginning in tomorrow’s post is a sketch of one way we might proceed.[4]

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The President will give a speech on counterterrorism at the National Defense University on Thursday, reports the WP:

A White House official, speaking Saturday on the condition of anonymity to describe the speech in advance, said Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

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On the Lawfare menu this week was a lot of discussion of the 2001 Authorization for the Use of Military Force, docket updates in a number of related court cases, detention matters, surveillance law, two new podcasts, and quite a lot of recommended readings.

There was a host of analysis of possible revisions to the AUMF: Bobby and Matt fleshed out a few issues that readers raised in response to their Hoover Institution paper, which was jointly written with Ben and Jack; Steve and Jen Daskal co-wrote an alternative to the foursome’s framework for a new AUMF, a version of which appeared as a New York Times op-ed later in the week; the Washington Post editorialized on the prospect, and Steve reacted to that editorial.

We shared the testimony from the Senate Armed Services Committee hearing on AUMF reauthorization, and Jack provided two read-outs on the hearing here and here.

Ben’s pretty excited that David Kris is writing a series of guest posts on surveillance law. Here’s the first; three more are to follow. Read more »

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[Editor's Note: This is the first in a series of four posts, in which David S. Kris discusses the possibility of wide-ranging reform to U.S. surveillance law.] 

A paper I wrote for Ben Wittes a few years ago discussed the “modernization” of our foreign intelligence surveillance laws after September 11, 2001, culminating in the FISA Amendments Act (FAA) of 2008.[1]  The FAA, which was recently renewed by Congress,[2] resolved two difficult issues, at least for the short run.  First, the new law addressed the growing indeterminacy of location in the world of communications by regulating some types of electronic surveillance based on a “reasonable belief,” rather than actual knowledge, of the location of the surveillance target, regardless of the location of his interlocutors.[3]  For this class of surveillance, involving foreign targets reasonably believed to be located abroad, the FAA expanded the government’s authority, requiring less advance judicial review than prior law.[4]  Second, the FAA was politically viable in part because it also contracted the government’s authority in one respect, requiring more advance judicial review than prior law demanded in the surveillance of Americans (rather than foreigners) reasonably believed to be located abroad.[5]

FISA modernization unquestionably solved some problems, but also increased the law’s complexity.  By defining certain new classes of surveillance, and establishing new rules to govern them, the FAA established a more intricate legal regime for the nation’s eavesdroppers.  The FBI and the National Security Agency, for example, now face at least nine legally distinct categories of foreign intelligence collection (ignoring, for the moment, the FBI’s law enforcement collection authorities), each with separate but sometimes related requirements:  (1) electronic surveillance under the 1978 elements of FISA;[6] (2) FISA physical searches;[7] (3) FISA surveillance for certain foreign embassies and other establishments;[8] (4) FISA searches of such establishments;[9] (5) FAA surveillance of non-U.S. persons reasonably believed to be located abroad;[10] (6) FAA surveillance of U.S. persons reasonably believed to be located abroad;[11] (7) collection of certain metadata under FISA’s pen-register provisions;[12] (8) collection of business records and other tangible things under another FISA provision;[13] and (9) other collection not regulated by FISA or the FAA.[14]  Complexity at the legal level, moreover, compounds significantly at the operational level, where surveillance targets may fall under different categories as they travel or switch communications methods, and particularly where laws have to be applied in an environment of rapid technological change, like the Internet (although I cannot say much here about operational challenges).  There has long been a demand for technology-neutral approaches to regulation of surveillance (a generally sound approach), but sometimes new technology creates new opportunities and challenges that outstrip even the most agnostic regulatory scheme, or the government’s ability to implement it.

Combined legal and operational complexity threatens both national security and civil liberties.  It threatens security where risk-averse officials abstain from surveillance in the face of uncertainty to avoid possible transgressions and associated liability.  Where that occurs, in a specific case or a class of cases, officials may be collecting less intelligence than they should (according to the law as it actually is).  The opposite problem exists where complexity masks a legal prohibition and officials proceed without realizing that they should not.  In short, where the line is hard to discern, government officials will more likely stop short and overstep, committing what statisticians call Type I and Type II errors.  Meaningful public debate about surveillance rules, already difficult in a classified environment, also suffers with increased complexity.

For these reasons, I wrote in 2008, although the FAA represented a reasonable approach, we might some day want – or need – to consider a more radical overhaul of our surveillance laws.[15]  As Judge Royce Lamberth, the former Presiding Judge of the FISA Court, explained in 2007, “The years since September 11, 2001, have witnessed a remarkable transformation in the law and practice of national security . . . . The transformation, however, has not been systematic.  Rather . . . it has been incremental, and at times even chaotic.”[16]  One possible response to this would be a blue-sky review and possible overhaul of our surveillance (and information-collection) laws as a whole, with everything but the Constitution in play.  That is the subject of this series of Lawfare posts.

[1] David S. Kris, Modernizing the Foreign Intelligence Surveillance Act, in Ben Wittes ed., Legislating the War on Terror (2009).  An earlier version of the paper is available at http://www.brookings.edu/papers/2007/1115/nationalsecurity/kris.aspx.  For a discussion of FISA (the Foreign Intelligence Surveillance Act) and the FAA, see 1 David Kris and Doug Wilson, National Security Investigations and Prosecutions, especially Chapters 16-17 (2d. ed 2012) [hereinafter 1 NSIP].

[2] See 126 Stat. 1631; Clapper v. Amnesty Int’l USA, 2013 WL 673253 at *4 n.2 (U.S. Feb. 26, 2013).  For the Obama Administration’s position on renewal of the Act, see Statement of Administration Policy: H.R. 5949 – FISA Amendments Act Reauthorization Act of 2012, Sept. 10, 2012 (available at http://www.whitehouse.gov/omb/112/legislative_sap_date_2012).

[3] See 50 U.S.C. § 1881a(a).  As explained in NSIP, “With the advent of web-based communication and other developments, the government cannot always determine—consistently, reliably, and in real time—the location of parties to an e-mail message.”  1 NSIP § 16:3 at 532.

[4] See 1 NSIP Chapter 17.

[5] See 1 NSIP Chapter 17.

[6] See 50 U.S.C. § 1801; 1 NSIP Chapter 6.

[7] See 50 U.S.C. § 1821; 1 NSIP Chapter 6.

[8] See 50 U.S.C. § 1802; 1 NSIP §§ 12:2-12:5.

[9] See 50 U.S.C. § 1822; 1 NSIP §§ 12:2-12:5.

[10] See 50 U.S.C. § 1881a; 1 NSIP Chapter 17.

[11] See 50 U.S.C. § 1881b-c; 1 NSIP Chapter 17.

[12] See 50 U.S.C. § 1841; 1 NSIP Chapter 18.

[13] See 50 U.S.C. § 1861; 1 NSIP Chapter 19.

[14] See Executive Order 12333; USSID-18; 1 NSIP Chapter 16.  The nine categories listed here are only the major ones, and many of them would admit of sub-categories.

[15] See, e.g., David S. Kris, Modernizing the Foreign Intelligence Surveillance Act, in Ben Wittes ed., Legislating the War on Terror at 218 (2009).

[16] 1 NSIP Preface at v.

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The dictionary defines a “kris” as “a Malayan and Indonesian stabbing or slashing knife with a scalloped edge.” On this site, however, The Way of the Kris is not some new Mark Mazzetti book about Obama administration counterterrorism policy. It is a series of guest posts that will appear over the next few days by David Kris, former head of the National Security Division at the Justice Department. David, the co-author of this treatise on national security investigations and prosecutions, which we reviewed here, has tried to imagine what he terms a “blue sky” rewrite of U.S. surveillance law. Specifically, he has tried to lay out all of the axes along which U.S. surveillance law makes choices, and he poses the question of whether radical simplification of the law is possible in a fashion that might better protect both national security and civil liberties. David knows as much about the nitty gritty of national security surveillance law as anyone does—and he knows a great deal more than anyone else who talks about it publicly. His posts are a must-read for anyone interested in the subject.

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Melissa Hathaway has a new essay that argues for putting cybersecurity and related issues on the G20 agenda:

To counteract these [cybersecurity] risks, some governments and businesses are turning to international venues, seeking mechanisms to drive a path toward international cooperation and increased government intervention to “assert control,” all as part of an effort to manage exposure to cyber insecurity.  These diplomatic discussions are emerging in dozens of international bodies, including: the United Nations, the Group of Eight (G8), the Organization for Security and Co-operation in Europe, the North Atlantic Treaty Organization, the European Union, the Council of Europe, the Asia-Pacific Economic Cooperation forum, the Association of Southeast Asian Nations, the Organization of American States, the Organisation for Economic Co-operation and Development (OECD), the International Telecommunications Union (ITU) and the International Organization for Standardization.  Unfortunately, these fora are suffering from an operational collision of competing interests — privacy, piracy (for example, intellectual property protection), sovereignty and security (for example, corruption, theft, crime, espionage, war) — that are stifling progress.  The cacophony of voices and lack of clarity of an action agenda of what to do suggests that it is time to change the conversation and establish executive ownership among those who have the most to lose.

Why not then place this agenda item on the G20 table?  It is time to couple diplomacy with our national interest. The G20 represents 90 percent of global GDP, 80 percent of international trade and 64 percent of the world’s population. The leaders of the G20 could simplify the cybersecurity conversation and focus the world on enabling GDP growth, while limiting GDP erosion. This approach has a built-in advantage in that its membership includes Brazil, Russia, India, China and South Africa (the BRICS) with equal voices at the diplomatic table. In fact, it may be the only international forum that could propagate a simple narrative that communicates why a sustainable cyberspace is linked to GDP growth for every nation.

Melissa writes in to add: Read more »

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Carrie Cordero, Georgetown’s Director of National Security Studies and a former Justice Department official, writes in with these thoughts on the AP subpoenas controversy and background law:

In light of the hysteria over reports that the Department of Justice subpoenaed AP records during the course of a leak investigation, it might be useful to step back and keep in mind what the law actually is when it comes to telephone records (also known as toll records and dialed digits), regardless of whose records they are.

In a nutshell: there is no right to privacy in dialed digits, under longstanding law.  The relevant foundational cases go back to Smith v. Maryland, 442 U.S. 735 (1979), which addressed whether a pen register was a search under the 4th amendment, and considered whether there is a legitimate expectation of privacy in dialed digits. The court’s answer to that question was “no.” Smith cited to a case a few years prior, U.S. v. Miller, 425 U.S. 435 (1976), which stands for the proposition that there is no legitimate expectation of privacy in records voluntarily turned over to a third party.  (Miller concerned the production of bank records.)  These cases are old hat to a lot of Lawfare readers.  But when we discuss them in class, my law students are generally shocked, as they have a much different understanding of what the law “should be” in relation to “private” communications; so many of their own, of course, taking place on digital devices.

Had the records request by subpoena been directed at anyone other than journalists, it would be wholly unremarkable: relevant records without constitutional privacy protection were sought in an authorized investigation, pursuant to a subpoena which itself covered only a limited period of time and applied only to specific telephone numbers. No news there; it happens all the time in criminal investigations. What makes these subpoenas of interest, of course, is that the information was requested from news media. However, there is no indication that news media personnel are subjects or targets of the investigation; reports say only that they have information relevant to an authorized investigation. The Department of Justice has heightened approval processes for requesting third party records from a media organization, as Alan explained in an earlier post. Read more »

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Earlier today, the House Judiciary Committee held a hearing entitled “Eyes in the Sky: the Domestic Use of Unmanned Aerial Systems.”  The four-witness panel included two experts familiar to Lawfare readers: UCLA professor and Brookings Non-Resident Fellow John Villasenor, and Pepperdine Law’s Greg McNeal.

You can find an archived webcast (memo to Congress: please, please make embeddable video available!) and links to witness statements here.

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Peter Margulies, of Roger Williams School of Law, writes in with these comments on law, ethics, and the hunger strike ongoing at Guantanamo:

The hunger strike at Guantanamo has put bioethics on the frontlines of lawfare.  The government’s critics, including Penn State’s Jonathan Marks and Brown’s Scott Allen, argue that forced feeding of hunger-striking detainees violates medical ethics and that the strike is a useful reminder of Guantanamo’s adverse effect on America’s reputation.  Critics are right on the latter policy point, but their ethical analysis is incomplete at best.

Opponents pose the issue of forced feeding as a classic bioethics throwdown between the competing values of autonomy and beneficence.  Autonomy bespeaks regard for individual decisions made knowingly and voluntarily.  Beneficence involves protection of the individual, memorably expressed in the injunction of the Hippocratic oath: “First, do no harm.” The critics rightly point out that in most situations involving competent adults, modern bioethics has resolved clashes between these values in favor of autonomy.  But this account omits two vital caveats relevant to the Guantanamo hunger strike: 1) Which outcome serves autonomy best is not always clear; and 2) For that very reason, the law has carved out significant exceptions where beneficence is the default position.  Not letting hunger-striking detainees die – President Obama’s simple but eloquent summary of the administration’s position – is one such exception.  Read more »

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The Department of Justice’s Inspector General released an interim report on the Department’s handling of “known or suspected” terrorists who have entered the government’s witness protection program.  The report found, among other things, that information on some program participants had not been turned over to no-fly list authorities; and, that two such people could not be located—though one is abroad, and the other is believed to be.  Here are related stories by NPR (times two) and Spencer Ackerman at Wired.

Much attention was paid to yesterday’s Senate Armed Services Committee hearing on the 2001 AUMF. The New York Times’s Charlie Savage and The Hill’s Carlo Munoz both have stories. Check out Jack’s readout of the hearing here, and get your witness testimony here.

Cato’s Christopher Preble reacts to Steve and Jen Daskal’s op-ed/working paper on the AUMF over at Cato At Liberty.

Federal authorities have arrested a Uzbek in Boise, Idaho. Here’s the unsealed indictment, an NPR’s story and a Times report.

The Times’s Scott Shane and Ellen Barry discuss federal agents’ repeated questioning of a Chechen refugee and former separatist fighter, who had links to Tamerlan Tsarnaev.

On to Syria matters: Ben Hubbard of the Times says the conflict is breaking the country apart. The same newspaper’s Michael Gordon and Eric Schmitt cover allegations that Russia has sent advanced anti-ship cruise missiles to the Assad regime. And USA Today’s Jim Michaels has this piece on the possible U.S. deployment of cyber weapons against the Assad regime.

Turkey’s Prime Minister Tayyep Erdogan is in the U.S., and meeting with governmental officials about Syria, among other pressing issues. He spoke at a Brookings event today. This Times op-ed  examines the implications of the Syria crisis for Turkey, both domestically and internationally.  The authors are Turkey experts Soner Cagaptay and former Ambassador James Jeffrey, of the Washington Institute for Near East Policy.

The Washington Post’s Outlook section has a “Five Myths” piece focused on Benghazi, penned by National Journal’s chief correspondent Michael Hirsh.

The Pakistani Taliban are believed to be responsible for a pair of bombings at mosques in northwestern Pakistan today. At least 13 people are dead, says the AP.

And a car bomb targeted U.S. military vehicles and killed at least 16 people on Thursday in Kabul, Afghanistan, write Matthew Rosenberg and Sangar Rahimi in the Times.

The World Health Organization and Saudi doctors say that the SARS-like virus that emerged in the Middle East last spring spreads primarily through close, person-to-person contact. This implicates health care workers treating infected patients; a doctor and a nurse are the latest victims.  (There are now 40 confirmed cases.)  Here’s the Wall Street Journal with more details.

Adam Nossiter discusses the challenges of rebuilding Mali, notwithstanding the international community’s recent $4.2B pledge of support for those efforts.

Earlier, we noted the conviction of Efrain Rios Montt, in a court in his Guatemalan homeland, for his role in the genocide there in 1982-83. Elisabeth Malkin in the Times highlights the absence, during the trial, of reference to the United States’ role in engineering Guatemala’s 1954 military coup, or to the United States’ general support for the military during its rule.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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A common assumption in the debate about the appropriate legal regime for extra-AUMF threats is that the AUMF is cabined and cannot be extended to newly threatening Islamist terrorist threats.  Yesterday’s SASC hearing exploded this assumption.  The hearing made clear that the Obama administration’s long insistence that it is deeply legally restrained under the AUMF is misleading and at a minimum requires much more extensive scrutiny.  It also made clear that the SASC’s oversight of the basic legal regime for DOD operations has not been (until yesterday) serious.

DOD officials insisted that they are satisfied with their AUMF authorities and don’t at this time need new ones.  In the course of explaining why this is so, they articulated a very broad vision of the scope of the AUMF.  As Senator King said: “[Y]ou’re saying we don’t need any change [in the AUMF] because of the way you read it we can do anything.  . . . The way you read it there’s no limit.”

Consider some of the DOD positions articulated yesterday.  When asked by Senator McCain whether “the 2001 AUMF be read to authorize lethal force against al Qaeda’s associated forces in additional countries where they are now present, such as Mali, Libya and Syria,” Acting DOD General Counsel Robert Taylor said: “On the domestic law side, yes sir.”  When asked by Senator Graham whether the President has domestic authority to put boots on the ground in Yemen and Congo, Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Michael Sheehan answered that “under domestic authority he would have that authority” (Yemen) and “Yes sir he does” (Congo).

Then Senator Donnelly and the DOD officials had this exchange on the al-Nusra front, the powerful AQ-associated rebel group in Syria:

Donnelly: Would you call the al Nusra front in Syria an AQ affiliated terrorist group?

Sheehan: Yes sir, I would.

Donnelly: Would you say that the AUMF applies to the al Nusra front? . . .

Taylor: As with many things with Syria, we’re looking very hard and very carefully and I don’t have a definitive answer for you at the moment.

Donnelly: . . . Would we have the ability to act against al Nusra today under the AUMF?

Sheehan:  Yes sir, we’d have that ability to act against al Nusra if we felt they were threatening our security.  We would have the authority to do that today.

Donnelly: Do we feel today that al Nusra is threatening our security?

Sheehan: I don’t want to get in in this setting for how we target different groups and organizations around the world. Read more »

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The New York Times has a story about the problems of expanding CALEA to on peer-to-peer communications.  The story discusses a Center for Democracy and Technology report on the topic by several experts.  One signatory is Susan Landau, who writes in:   

Our first concern is something that I have written about on multiple occasions, namely that an architected security breach—which is what a wiretap is—is exploitable not only by law enforcement but also by criminals, other nation states, etc. Then, to satisfy law enforcement, companies must either enable a 24/7 capability for wiretapping whenever law enforcement requires it or — very dangerous — give any law-enforcement organization, no matter how small and poorly secured, the ability to conduct the tap on its own. This is really dangerous. Finally, as Steve Bellovin, Matt Blaze, Sandy Clark, and I have written about elsewhere, ultimately this effort will be ineffective, and other tools will be needed. It will simply be too easy for sophisticated criminals to develop their own communications tools that omit the wiretapping capabilities the FBI is demanding. The result will be a weakened communications system that simultaneously doesn’t provide what law enforcement claims it needs.

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It’s been a rough week for the Obama Administration. In addition to outrage over IRS targeting of conservative groups and continued conspiratorial rumblings about the Administration’s response to the Benghazi attack, the Department of Justice (DOJ) faces blowback over subpoenas it issued for Associated Press (AP) reporters’ telephone records. The subpoenas were part of an investigation into potential national-security leaks that underlay media coverage last May of secret CIA counterterrorism operations. This post gives an overview of the investigation, the current scandal, and the relevant law.

The AP subpoena

In May 2012, the AP published an article detailing how the CIA had foiled a plot by Al-Qaeda in the Arabian Peninsula (AQAP), a Yemeni Al-Qaeda offshoot group, to blow up a U.S.-bound airliner. The AP had delayed the story for several days in response to a request by the U.S. government, which cited an ongoing intelligence operation. Satisfied that security concerns had been mitigated, the AP eventually published its account — despite further requests to hold off, and one day before the government’s official announcement of the scheme’s thwarting. At the center of the AP piece was a would-be suicide bomber, whom authorities strangely had not apprehended. “[I]t is not immediately clear what happened to the alleged bomber,” the article observed. The picture quickly grew clearer. The next day, the New York Times, ABC, and other outlets reported that the the bomber was in fact a double agent who had infiltrated AQAP, obtained his bomb from Ibrahim Hassan al-Asiri, AQAP’s notorious explosives maker, and then passed the weapon to the FBI. NPR’s Dina Temple-Raston noted that officials had planned to reintroduce the double agent back into AQAP, but that the AP and subsequent stories made that impossible.

The leaks that led to the AP report were denounced at the time, both in and out of government. FBI director Robert Mueller testified before the Senate Judiciary Committee that “[l]eaks such as this threaten ongoing operations, put[] at risk the lives of sources, make[] it much more difficult to recruit sources, and damage[] our relationships with our foreign partners.” (Indeed, one former CIA official predicted that British intelligence services, which had played an important role in the operation, would be upset with their U.S. counterparts over the leaks.) Matthew Olson, director of the National Counterterrorism Center, went further and called the media leaks “devastating.” Sen. Chuck Grassley (R-IA) urged the FBI to “get to the bottom of it . . . [r]egardless of the political consequences.” Ditto Rep. Peter King (R-NY), who said the “FBI has to do a full and complete investigation, because this really is criminal in the literal sense of the word.” Following suit, Sen. Dianne Feinstein (D-CA) called for the leaker to be prosecuted.

The FBI began its investigation of the leak soon after the AP story. Among other things, it subpoenaed two months of phone records of various AP reporters and offices, including the AP’s telephone number at the House press gallery and several reporters and an editor who had contributed to the May story. Although the Justice Department did not notify the AP beforehand, it afterwards sent the AP a letter informing the organization of the subpoenas. The AP received the letter on Friday. (See below for a summary of regulations governing the subpoenas’ issuance.) According to the AP, the DOJ letter did not explain why it had sought the telephone records.

Both the White House and Attorney General Eric Holder have distanced themselves from the subpoenas. White House Press Secretary Jay Carney said in a statement that the White House did not know about the subpoenas. And at a press conference yesterday, Holder explained that, although the applicable regulations require the Attorney General to approve subpoenas issued to media (see below), the subpoenas were authorized by Deputy Attorney General James Cole. Holder had recused himself from the investigation after the FBI interviewed him regarding the leak; thus he did not know the details of the investigation as it proceeded. Nevertheless, Holder defended the DOJ’s actions, calling the leak among “the top two or three most serious” he’d seen in his career.

The fallout

The Administration has drawn sharp criticism over the subpoenas. AP head Gary Pruitt sent a furious letter to the Attorney General, charging that the subpoenas had “no possible justification” and were “a serious interference with AP’s constitutional rights to gather and report the news.” In response, Cole wrote a letter defending the subpoenas as “limited in both time and scope” and “strik[ing] the proper balance between the public’s interest in the free flow of information and the public’s interest in the protection of national security and effective enforcement of our criminal laws.” The AP’s response is here. In addition, the Reporters Committee for Freedom of the Press sent Holder a letter, signed by many major media outlets, protesting the subpoenas. The ACLU lastly blasted them as “press intimidation” and an “unacceptable abuse of power.”

In Congress, Republicans and Democrats also decried perceived abuses. At yesterday’s House Judiciary Committee hearing, Committee Chairman Bob Goodlatte (R-VA) argued that the DOJ’s investigation was “contrary to the law and standard procedure,” and Rep. Zoe Lofgren (D-CA) stated that “the actions of the department have in fact impaired the First Amendment.” Ranking Democrat John Conyers (D-MI) said that he was “deeply troubled by the notion that our government would secretly pursue such a broad array of media phone records over such a long period of time.” However, both Holder and another committee member, Rep. Jerry Nadler (D-NY), pointed out that lawmakers (in particular Republicans) had called for the administration to vigorously investigate the leak the past May, and had criticized the administration for not doing enough to stop leaks. That irony was not lost on Holder, either: “It strikes me as interesting now that in some ways we’re being criticized for being too aggressive. There was certainly a clarion call [in May] from many that the attorney general needed to do more.”

Holder nevertheless recognized the need for the DOJ investigation to itself be investigated. During the hearing, he said, “I do think at the conclusion of this matter, given the attention that it has generated, that some kind of after-action analysis would be appropriate. I will pledge to this committee and the American people that I will engage in such an analysis.” The White House has also asked Sen. Chuck Schumer (D-NY) to reintroduce a “shield law” to protect journalists from being forced to reveal their sources that Schumer had introduced in 2009. That law, the “Free Flow of Information Act,” carved out certain exceptions for national security cases. The bill passed the Senate Judiciary Committee but was stalled by the WikiLeaks scandal and ultimately died.

The applicable law

Justice Department policy for subpoenas of the press is set out in department regulations, codified at 28 C.F.R. § 50.10. Section 50.10 begins with the reason for restrictions on the subpoena power: “Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.”

The main provisions relevant in this case are:

1. The government must “strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”
2. The government must make “[a]ll reasonable attempts” to get the desired information from other sources and/or negotiate with the media before seeking a subpoena.
3. The Attorney General must approve all subpoenas to non-consenting media targets.
4. Subpoenas of telephone records must be “be as narrowly drawn as possible” and “should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” In addition, ”[t]here should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
5. Unless the government has given the target before-the-fact notice of the subpoena, it must notify the target after the fact..
6. The regulations are “not intended to create or recognize any legally enforceable right in any person.”

Section 50.10 is further discussed in the U.S. Attorneys’ Manual, § 9-13.400. The Manual reiterates and expands on the importance of restrictions on the subpoena power:

In recognition of the importance of freedom of the press to a free and democratic society, it is the Department’s policy that the prosecutorial power of the Government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues. Accordingly, Government attorneys should ordinarily refrain from imposing upon members of the news media forms of compulsory process which might impair the news gathering function. In all cases, members of the Department must balance the public’s interest in the free dissemination of ideas and information with the public’s interest in effective law enforcement and the fair administration of justice.

In a 1999 law-review article, Adam Liptak, then a senior counsel to the New York Times and now its Supreme Court reporter, gave an overview of § 50.10. It was developed between 1970 and 1973, in response to the increasing number of subpoenas being issued by the Department of Justice at the time. Since then, as Liptak notes, it’s remained unclear whether the courts can enforce the regulations. In In re Shain, 978 F.2d 850 (4th Cir. 1992), the Fourth Circuit refused to enforce § 50.10 against the Department of Justice. The case was about four reporters who who were held in contempt for refusing to testify in the bribery trial of state legislators. The Department of Justice sought subpoenas for their testimony, and one of the reporters’ asserted defenses was that the subpoenas had been issued in violation of § 50.10′s requirements. The court rejected this argument, concluding that § 50.10 was “a departmental policy with a purely internal enforcement mechanism” and “expressly disclaim[ed] any intent ‘to create or recognize any legally enforceable right in any person.’” Yet in other cases — like In re Williams, 766 F. Supp. 358 (W.D. Pa. 1991) and United States v. Blanton, 534 F. Supp. 295 (S.D. Fla. 1982) — courts have quashed subpoenas on the grounds that the the DOJ did not follow § 50.10.

*     *     *

For those who think that the DOJ’s actions were inappropriate, explanations differ. Slate‘s Emily Bazelon believes the episode reflects the Obama Administration’s “war on journalism.” By contrast, Politico‘s Josh Gerstein argues that the Obama White House has taken the lessons of the Bush Administration too much to heart, and has adopted an overly hands-off approach to DOJ investigations. Whatever the explanation, there is little doubt that the AP controversy is a serious one — at least for the moment. As Politico notes, it’s never a good idea to turn “all three D.C. stakeholders” — the press, Republicans, and Democrats — against you simultaneously, especially when other scandals are brewing and might impact future elections.

Although the political costs of the subpoenas are clear, the appropriate response is far from. Consider Liptak’s positive verdict on § 50.10:

The Justice Department guidelines have served as a shadow federal shield law for three decades. They are sensible, rigorous, and predictable. Courts have routinely embraced them, even in situations where they are arguably inapplicable or unenforceable. The Supreme Court has stated that the guidelines render a shield law rooted in the Constitution superfluous in the cases in which it is available. All of the foregoing considerations suggest that the Justice Department should be commended for bearing the self-imposed burdens presented by the regulations, that courts should continue to enforce them liberally, and that Congress might consider them a model for a true federal shield law statute.

Thus, even if § 50.10′s requirements are tightened further, or (as seems possible for now) a press-shield law is enacted, it remains hard to say whether the government’s approach to media subpoenas will change over time. Whether or not the DOJ overreached in this case, the need to balance freedom of the press against national security is a real one. And given that § 50.10 appears to have served this balance well for over four decades, there may not be obvious improvements to be had. But we shall see.

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There’s been a flurry of Lawfare posts on today’s hearing, before the Senate Armed Services Committee, on the 2001 Authorization for the Use of Military Force. The video of the hearing can be viewed here, and we’ve got links to the witnesses’ testimony below. Read more »

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Let’s begin with the 100 pages of Benghazi emails released by the White House yesterday, as it went into full damage control mode. Reuters reports that the talking points on Benghazi were scrubbed of references to terrorist groups before Susan Rice’s fateful appearances on Sunday talk shows, and that the emails confirm much of what was already known. The Wall Street Journal has more on what the emails reveal about the Obama administration’s handling of the issue, as does the Washington Post.

The DOJ seizure of Associated Press phone records continues to spark controversy. The Post reports that some are questioning whether the leak about a foiled terrorist plot actually endangered U.S. national security.

Spencer Ackerman of Wired’s Danger Room has the latest on the bizarre story of Ryan Christopher Fogle, the American “spy” who was ousted from Russia. Here is Fogle’s (translated) letter, with which he allegedly sought to recruit a Russian agent to spy for the United States.  Found in Fogle’s backpack, the letter instructed the Russian to communicate through this email address: unbacggdA@gmail.com (email at your own risk). Paul’s thoughts on Gmail and the CIA are here.

The New York Times reports that both countries say this will all blow over, and CNN’s Jill Dougherty speculates that Russia could be retaliating: recall that critics claimed that the country had not told U.S. authorities everything it knew about Boston bomber Tamerlan Tsarnaev.

Speaking of Tsarnaev, the Washington Post editorial board praises the decision to finally bury him and to end a media circus that was doing a disservice to the bombings’ victims.

NYU Law’s Brennan Center for Justice and the Center for American Progress have released a report, entitled Foreign Law Bans: Legal Uncertainties and Practical Problems and written by Faiza Patel, Amos Toh, and Matthew Duss. The group overviews (among other things) the unintended consequences of foreign law bans in states in America.  A short summary is below:

Over the last two years, lawmakers in 32 states have introduced and debated bills seeking to ban foreign, international, and religious laws in state courts. Five states—Oklahoma, Kansas, Louisiana, Tennessee and Arizona—have already enacted foreign law bans and many more are picking up speed. Fueled by a growing tide of anti-Muslim sentiment, these bans create a host of unintended consequences ranging from confusion over how courts should treat marriages, divorces and premarital agreements with religious or foreign origins to uncertainty over how international businesses conduct commercial transactions in the United States.

Take heart, Obama administration: it turns out terrorists may employ less than effective public relations strategies.  In the Atlantic, Tony Busch, an Arabic social media analyst, argues that Twitter and similar networks can undermine Al Qaeda’s messaging and outreach.  The idea is dilution: Social media provide a platform for affiliates to promote their sometimes conflicting views, which precludes Al Qaeda from broadcasting a cohesive message.

Carol Rosenberg of the Miami Herald puts the number of detainees being tube-fed at thirty.

Reuters reports that the European Union, in a show of confidence for Somalia’s stability, will now train Somali troops in Mogadishu instead of Uganda.  The Somali troops are being trained to oust Al Shabaab militants from the country; African Union’s Amisom peacekeeping troops have been doing this for several years.

The New York Times editorial board argues that Pakistan’s elections were “a welcome repudiation of militants who are trying to overthrow the state.”

The Times tells us that a powerful car bomb killed six American military advisors and scores of other people in Kabul today. Hezb-i-Islami claimed responsibility for the attack. The Hill also has the story. The blast comes two days after one that killed at least three soldiers in Kandahar, according to this Times piece.

In a gesture of goodwill towards Turkey, the Afghan Taliban released four Turkish citizens who had been kidnapped last month, according to Reuters.  This marks something of a trend: four others were released earlier this week.

Senators are seething about the CIA’s handing bags of cash to President Karzai, reports Julian Pecquet of the Hill.

Javid Ahmad of the German Marshall Fund of the United States discusses in the Times whether India should provide direct military assistance to Afghanistan.

And, yesterday’s House Judiciary Committee hearing at which Attorney General Eric Holder testified, generated this wonderful clip from Rep. Louie Gohmert of Texas (who readers will remember was awarded a similar recognition after Ben, Bobby, John, and Steve testified in front of the same committee last month): it’s Today’s Moment of Asparagus Zen.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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I participated in an extraordinary hearing before the Armed Services Committee today on the scope of the AUMF.  Lawfare readers interested in the scope of the AUMF will want to watch the hearing video carefully (or read the transcript, when available).  I have not had a chance to watch the hearing video, and I won’t today.  According to my notes of the hearing (and thus this is all provisional, pending review of the tape) DOD officials:

• Acknowledged that they had domestic authority to use force in Mali, Syria, Libya, and Congo, against Islamist terrorist threats there.  At first they strongly suggested that the AUMF provided the domestic authority, but at the very end one DOD representative tried to walk back that suggestion and said that the authority to use force in those places didn’t necessarily rest (or some such formulation) on the AUMF.  As best I can tell he did not walk back the claim that some authority exists and that it might be the AUMF.

• Emphasized that they were satisfied that current authorities suffice to meet the threat.  In light of the extraordinarily broad interpretation of extant authorities on display today, and the secrecy of AUMF determinations, it is hard to assess that claim.  DOD officials also said that they were actively considering emerging threats and stated that it was possible they would need to return to Congress for new authorities against those threats but did not at present need new authorities.

• Discussed the “murkiness” and “shifting” nature of memberships and alliances among al Qaeda affiliates, and how challenging it is to make “associated forces” determinations under the AUMF.

• Emphasized that the conflict authorized by the AUMF was not nearly over.  At one point one DOD official claimed that the end of the AUMF conflict was “a long way off.”  At another point an official said the conflict would last “at least 2-3 years.”  At another point an official used the figure of 10-20 years, although as Senator Levin pointed out this may have been a reference that included extra-AUMF Islamist terrorist threats, and not AUMF groups themselves.

• Stated that they would provide the Committee with a list of terrorist groups covered by the AUMF.  (That should be an interesting (and probably classified) list.  But: Why does the Armed Services Committee – which supposedly receives regular briefings from DOD about the shadow war – not know the answer to that question!?)

• Appeared to state that the legal determination of groups covered by the AUMF is made within DOD subject to inter-agency scrutiny.

My general impression of the hearing was that (1) DOD officials were very uncomfortable talking about how they interpret the AUMF and what groups are covered by it, (2) those officials interpret the AUMF very broadly, and (3) several members of the Committee were surprised by the breadth of DOD’s interpretation of the AUMF.  I came away thinking that Congress cannot address the problem of extra-AUMF threats until it gets a handle on how the AUMF is being interpreted and deployed.  I also came away thinking more than ever that Congress needs to re-engage in a serious way about the nature and scope of the conflict against al Qaeda and affiliates.  Amazingly, there is a very large question even in the Armed Services Committee about who the United States is at war against and where, and how those determinations are made.

PS: I want to emphasize again that I wrote this post quickly and the representations made above are based on my notes.  Anyone inclined to rely on my representations should first consult the actual hearing video.

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I’ve been in Germany all week (at the George C. Marshall Center which, for those who don’t know, is a joint US-Germany military think tank and an altogether wonderful place to visit) so I missed some of the details of the recent arrest of an alleged CIA operative and his expulsion from Russia until recently.

I will leave it to others to unpack the allegations (though, honestly, they strike me as a bit trumped up — the CIA doesn’t have $100K to throw around) but one aspect of the story of his arrest struck me as having a cybersecurity connection (yes … I know … everything strikes me that way).  But this aspect was sufficiently implausible that it seemed to deserve comment.

According to news reports the American spy instructed his agent to communicate with him through a purported CIA’s e-mail address: unbacggdA@gmail.com.   On its face this allegation suggest one of two things: Either, the CIA is utterly unaware of how Gmail works and our tradecraft has seriously deterioriated, or this factual allegation is a fiction.  I can’t think of any other option.

A word of explanation:  Gmail accounts are not secure.  Yes, Google, encrypts your mail from end-to-end so that the communication cannot generally be penetrated by an outsider.  But Google itself keeps a copy of your email and is capable of decrypting it.  This it may do for its own purposes (e.g. in order to decide what ads to push to you) or in response to a lawful court order and criminal investigation (as General Petraeus found out to his regret).  I find it difficult, if not impossible, to believe that it would be affirmative US spycraft to instruct our valued covert assets to use Gmail as a means of communication.  Maybe I’m wrong — after all, the Petraeus case itself suggests a blind spot.  But I sure hope not and, candidly, expect that this is not the case.

And that in turn leads me to wonder about the rest of the story ….after all, the legal maxim is “false in one thing; false in all.”

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Ben quotes from this morning’s Washington Post editorial on AUMF reform, the last two sentences of which assert that “Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to ensure that this president and his successors have the authority they need to defend the country.”

There are at least two problems with this statement, both of which go right to the core of the editorial–and of the larger debate over whether a new AUMF is necessary: First, is it really “wise” for Congress to spend its limited time providing the President with use-of-force authority he doesn’t think he needs?

Second, and more significantly, a lack of congressional action does not prevent the President from acting in self-defense where necessary. The age-old debate over the scope of the President’s “inherent war powers” is primarily about their scope, not their existence. Put another way, the Post‘s not-so-subtle insinuation to the contrary notwithstanding, it wasn’t the absence of an AUMF-like statute that prevented the Bush Administration from stopping the 9/11 attacks; it was a breakdown in the sharing of intelligence and law enforcement information. (That’s why Jen and I dismissed this argument in our paper as a “red herring.”) Instead, the real question is why self-defense authorities would be inadequate in cases in which law enforcement and intelligence tools prove insufficient and/or unavailable. To that, this morning’s editorial has no answer.

[Update: As several readers have written in to point out, the best evidence that the U.S. did not lack legal authority to use force against al Qaeda on or before September 11 is the fact that we did in fact use such force--e.g., in response to the 1998 embassy bombings.]

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The Washington Post this morning has this editorial on AUMF reauthorization. It opens:

THE OBAMA administration’s political and legal authority to wage war against al-Qaeda has steadily eroded. Both liberal and conservative members of Congress have challenged the administration’s lack of transparency in conducting drone attacks against alleged al-Qaeda operatives in Pakistan, Yemen and Somalia. Foreign allies as well as adversaries have asked whether the United States has arrogated the right to kill enemies anywhere in the world. Meanwhile, the appearance of new branches of al-Qaeda in northern Africa and, most recently, Syria has raised the question of whether the legal authority Congress granted in September 2001 for using military force applies to those groups.

Lower down, it discusses the SASC hearing today, at which Jack will be testifying, and it discusses as well the paper on which Jack’s testimony is based:

[W]e support an effort by the Senate Armed Services Committee to explore, beginning at a hearing Thursday, whether the 2001 Authorization to Use Military Force (AUMF) should be revised.

The law authorizes the president to use force against “those nations, organizations, or persons” responsible for the attacks on New York and Washington. The Bush and Obama administrations have been backed by the courts in interpreting that language to allow attacks on the Taliban and al-Qaeda as well as “substantial supporters” and “associated forces.” But many legal experts have questioned whether a law aimed at Osama bin Laden and his cadre could be used to justify a drone strike against jihadists plotting an attack against the United States more than a decade later and thousands of miles from Afghanistan.

A group of legal experts, including Robert Chesney of the University of Texas, Jack Goldsmith of Harvard, Matthew Waxman of Columbia and Benjamin Wittes of the Brookings Institution, has proposed that Congress consider revising the AUMF to authorize presidents to designate emerging al-Qaeda affiliates that pose a threat to the United States as covered by the force authorization. Such legislation could put into law criteria for adding militants outside conventional battle zones to strike lists and require greater disclosure. Sen. John McCain (R-Ariz.) has said he will seek to put together a bipartisan group to consider such reforms.

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For those who’d prefer the shorter version of Jen Daskal and my draft paper on life “After the AUMF,” we’ve got a short op-ed out in today’s New York Times with a far less alliterative title: “Don’t Expand the War on Terror.”

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Over the next few weeks, we will be starting our rollout of the Lawfare Wiki Document Library. The library will have many facets, and we will be introducing it piece by piece, sometimes page by page. The first page, a kind of template for what we hope to do with a lot of cases in the future, is a case summary page for the long-running case of Ali Hamza Ahmad Suliman Al-Bahlul, which started in a military commission and has made its way to the D.C. Circuit Court of Appeals. As the reader will see, the effort is to provide the key documents from all stages of the case with a minimum of commentary and no opinion at all—and to maintain it and expand it as the case progresses in the future. We would welcome help from readers who follow the case in managing this page, which was created by Raffaela Wakeman, and from readers who follow other cases in creating their case- and docket pages. Those interested in helping out should email Raffaela for information about how to get involved in editing and helping build the library.

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Lawyers for Hani Saleh Rashid Abdullah, a Yemeni detained at Guantanamo, yesterday petitioned the D.C. Circuit for a writ of mandamus.   The gist: Abdullah wants the circuit court to force the district court decide a long-pending motion of his.

While pursuing his habeas case, in 2010, Abdullah moved for a preliminary injunction.  Among other things, this challenged his continued detention as contrary to a 1946 executive agreement between the United States and Yemen.  The government naturally opposed the bid.  But the district court did not resolve the matter.  Exasperated, the detainee’s lawyers this April filed a supplemental memorandum in support of preliminary relief.  It also prompted no reaction from the district judge.

The protracted delay seemingly brought on Abdullah’s mandamus petition, which begins as follows:

On April 5, 2013, the United Nations High Commissioner for Human Rights concluded in a public statement that the designation of prisoners at Guantanamo for indefinite detention puts the “United States … in clear breach not just of its own commitments but also of international laws and standards that it is obliged to uphold. When other countries breach these standards, the US – quite rightly – strongly criticizes them for it.”

In his motion for a preliminary injunction filed October 10, 2010, Abdullah made exactly this point and requested an injunction declaring the illegality of indefinite detention and restraining respondents from so detaining him. The court has taken no action on this motion. The High Commissioner also observed that when the legality of detention is tested in court “Any ensuing judicial proceedings must scrupulously respect due process and fair trial standards.” Id. Read more »

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The Benghazi attacks get more polarizing by the minute: Karen DeYoung of the Washington Post reports that White House Press Secretary Jay Carney has accused Republicans of leaking a falsified email to the media last week about the the talking points. Read about the saga from CNN’s Jake Tapper and Justin Sink of the Hill.

The Associated Press reports on Guantanamo Bay detainee Musa’ab Omar Al Madhwani’s declaration in federal court last month—and on the state of limbo many of the other prisoners are in. A Yemeni national, Al Madhwani is currently participating in a hunger strike at the prison to protest his detention; he has been held at Guantanamo Bay for eleven years. The D.C. Circuit affirmed his detention in this decision in May 2011.

Carol Rosenberg of the Miami Herald tells us that twenty human rights organizations have written a letter to Secretary of Defense Chuck Hagel asking him to stop the “inherently cruel, inhuman, and degrading” process of force-feeding detainees at Guantanamo Bay. Apparently it’s not inherently cruel, inhuman or degrading to let them die.

Speaking of Secretary Hagel’s woes, Stephanie Gaskell of Politico reports that Hagel announced yesterday that he will furlough 800,000 civilian employees for eleven days this summer because of sequestration. The furloughs are expected to save the Pentagon $1.8 billion this fiscal year.

House lawmakers, meanwhile, have also sent Secretary Hagel a letter, saying that the furloughs are “misguided” and his decision “flies in the face of implementing sequestration prudently.” The Hill has more.

In a bizarre comedy of errors, one Ryan C. Fogle, a low-level diplomat at the U.S. embassy in Moscow, was ousted from Russia after a theatrical arrest for allegedly attempting to recruit a Russian to spy for the CIA. Here is the New York Times with more.

Four Somali gentlemen from Minneapolis have been sentenced to time in prison—two for providing material support to terrorists, and two for conspiracy to provide such material support. The Associated Press has the story, as do Randy Furst of the Minneapolis Star Tribune and Brandt Williams of Minnesota Public Radio.

After UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson chatted with Ben and me yesterday for a special edition of the Lawfare Podcast, he gave a public talk at the New America Foundation. Here is the video:

According to the New York Times, cyberattacks are targeting American corporations, and—wait for it—the Chinese don’t seem to be behind them. Officials say the attacks are from somewhere in the Middle East, and are likely meant to sabotage companies.

For all of you (like my mom) who are planning to fly and take a pressure cooker with you on the plane (she flew me one from Thailand last year), consider this a Public Service Announcement: Don’t do it. (That means you, Mom!) CNN’s Todd Sperry reports on a Saudi man who has been detained in Detroit with missing pages in his passport and a conflicting story about the pressure cooker in his luggage. (My mom’s passport was intact.)

David Sedney, deputy assistant secretary of defense for Afghanistan, Pakistan, and Central Asia, will leave his very relaxing job at the end of the month, reports Foreign Policy.

Ahmed Rashid writes in the New York Review of Books about new Pakistani Prime Minister Nawaz Sharif’s resounding victory in the Pakistani elections over the weekend, and the country’s future relations with Washington. Bruce Riedel of Brookings does the same at the Daily Beast, as do Andrew Wilder and Colin Cookman at Foreign Policy.

And, in this excellent story from The Onion, we learn who else is developing anxieties about the Obama administration’s spin on Benghazi: it’s Today’s Moment of Zen:

Sasha Obama Suspicious After Doing A Little Digging Around On Benghazi

WASHINGTON—Saying that none of the facts quite add up, first daughter Sasha Obama, 11, reported being “highly suspicious” today after poking around the details of the 2012 Benghazi attack. “I’m sorry, but it just doesn’t make sense—first they blame the attack on a spontaneous demonstration, but now we find out the CIA talking points were secretly revised?” said the sixth-grader, sitting in the darkened White House library intensely scrolling through pages of articles about the controversy and classified Pentagon briefings. “Obviously, someone’s hiding something: the poor security; the al-Qaeda link; the leaked emails. All I’m asking for here is a simple explanation from the State Department and the White House, and I’m not getting one. I mean, who are they protecting here? And why?” Sasha went on to tell reporters she felt even more suspicious after former defense secretary Leon Panetta failed to respond to any of her 24 voicemails.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Charlie Savage has this story on the pre-trial agreement concluded over two years ago between the government and Noor Muhammed, a Guantanamo detainee and military commission defendant.   The piece begins:

WASHINGTON — Lawyers for a detainee at Guantánamo Bay, Cuba, who is scheduled to be transferred out of the prison in December under a 2011 plea deal have asked a judge to order the Pentagon to live up to its agreement, recently unsealed tribunal papers show.

The circumstances of the unusual request are raising new legal quandaries about the tribunal court system. The possibility that the detainee may not be released threatens to undermine the ability of prosecutors to persuade other detainees to plead guilty — and to cooperate by serving as witnesses in more important cases — in exchange for a definitive date by which they would be allowed to leave the prison.

The dispute centers on Noor Uthman Muhammed, a Sudanese man who pleaded guilty to conspiracy and providing material support to terrorism in early 2011 before a military commission. Under the terms of his arrangement, he was to serve an additional 34 months on top of the nine years he had already been imprisoned as a wartime detainee, which would position him to be repatriated in December.

But Mr. Noor’s lawyers said that the Pentagon official who oversees the tribunal system, known as the convening authority, had yet to officially approve the final disposition of his case, even though it essentially wrapped up two years ago. They contend that the official’s approval is necessary to set in motion the time-consuming bureaucratic and diplomatic process of repatriating Mr. Noor.

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In advance of Thursday’s Senate Armed Services Committee hearing on the 2001 Authorization for the Use of Military Force (AUMF), Jen Daskal and I have expanded upon our exchanges with Bobby, Jack, Matt, and Ben in a new (draft) working paper titled “After the AUMF,” a copy of which is available here.

The paper is a more comprehensive effort to explain our view re: why proposals for an expanded, open-ended AUMF, from whatever quarter and with whatever caveats, are unneccessary, counterproductive, and unwise. Instead, we offer out an alternative vision for the next generation of U.S. counterterrorism policy—one in which law enforcement and intelligence-gathering capabilities, with the backstop of self-defense authorities, are the baseline. We hope that this is an approach that Congress will take seriously if and when it decides to revisit the AUMF.

As this is an early draft of the paper, we’d both (1) welcome comments of all shapes and sizes (whether online or via e-mail); and (2) beg readers’ indulgence for typos or other early-draft indiscretions.

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The D.C. Circuit wants to know whether Ali Hamza Ahmad Suliman Al-Bahlul desires to continue challenging his conviction by a military commission.  And the appeals court wants an answer from the accused himself, as it made clear in an order issued today.   (The D.C. Circuit granted the government’s petition for en banc review; the full court will hear oral argument later this year.)

In April, Al-Bahlul had passed a note to a JTF-GTMO guard, wherein he said both that he wished to withdraw his appeal, and that he had not authorized any attorneys to file a case on his behalf in the U.S. legal system.  GTMO officials then filed Al-Bahlul’s no-go note with the appeals court; his lawyers promptly responded with a letter of their own.  In it, defense attorneys represented that they had since met with their client, and that “Mr. Bahlul … stated in no uncertain terms that, having had the opportunity to consult with counsel, he wanted to pursue his appeal at least through this Court’s review.”  Accordingly, the attorneys asked the D.C. Circuit to disregard Al-Bahlul’s earlier missive—and even offered to provide additional information, on an ex parte basis, regarding their client’s current intentions.

Now it seems the court of appeals indeed desires more information—from Al-Bahlul.  Here is the operative part of today’s order:  Read more »

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UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, came by the Brookings Institution this morning for a wide-ranging discussion on his investigation of drone strikes. We had planned the interview as a video, but Emmerson’s remarks broke enough new ground that we thought we should release the audio right away. The video will follow in due course. Hence today’s special edition of the Lawfare Podcast.

Emmerson is very impressive, and this interview might give grounds for second thoughts to those inclined to dismiss him as just another special rapporteur investigating U.S. activities on behalf of the United Nation’s Human Rights Council. He seemed surprisingly open to the possibility that, as the United States argues, the U.S. may be in a non-international armed conflict with a non-state actor, and said early in our conversation:

There is a really wide spectrum of informed, intelligent and reasonable opinion on what the basic framework issues are. And I’ve taken part now in too many high-level seminars with people who are all genuine experts in their fields addressing a problem which has multi dimensions and within each dimension multiple facets, in which it is it almost impossible to find a common agreement on the core principles. . . . There are fundamental differences on first principles, but there are also fundamental differences on all of the refinements within those principles. I am unable amongst informed opinion at present to discern a critical mass of concurrent opinion, which to me in itself is a conclusion—and is also a conclusion which points towards the need for some fairly urgent discussions in the face of a technology that is technology that is proliferating . . . at a remarkable speed.

He candidly said that he had started the investigation with certain preconceived notions about the legal paradigm that governs the American conflict with Al Qaeda and its affiliates, but says he has had those preconceptions challenged by his conversations:

I think it’s absolutely fair for me to acknowledge that . . . I did start from a position in common with other international lawyers from my side of the world, which found the new paradigm [the U.S. view] difficult to accept and follow. But I have to say that like all good conversations, the moment one begins to talk to others and see things from a different point of view, what has become clearer and clearer to me is that we get nowhere by the continuance and maintenance of entrenched positions and that, crucially, we need to listen to one another’s point of view and see what is the way forward.

Moreover, while Emmerson’s public statement on the Pakistani government’s consent to drone strikes seemed to downplay—even ignore—the possibility of private consent by the military, in this conversation, he directly acknowledged the likelihood of secret deals and permissions. It’s been a “known open secret” for some time, he said, that

there has been the provision of quite high levels of cooperation between the ISI and the Agency and indeed that members of the Pakistani military may well have provided levels of cooperation. And I don’t rule out by any means—indeed I am far from ruling out—the proposition that that cooperation on a military and intelligence level continues.

The discussion also covered Emmerson’s plans for the rest of his investigation, why Pakistan doesn’t shoot down U.S. drones, and Emmerson’s view of John Brennan’s ascension to CIA director.

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