For those readers who haven’t noticed, Lawfare has been experiencing significant technical difficulties over the past 36 hours—intermittent outages ranging from a few minutes to, in a couple of cases, a few hours. We do not know why this is happening, but it appears to be a server problem and we are assuming for the time being that it is nothing nefarious.

To try to address the problems, we will be migrating the site to a different set of servers over the next few days. The migration may cause some technical glitches of its own. In particular, it’s possible that content added to the site during the move will temporarily disappear when the old site goes down permanently and the new one comes online. We will restore all content as quickly as we can, and hope to have everything working normally quite quickly. In the meantime, we apologize for the inconvenience and ask everyone’s indulgence as we get things ironed out. Please bear with us.

Those who follow my blog posts devoutly (both of you :-)) will be sad to learn that I will be off-line from now until the July 4th holiday.  Of course, as with everything I write about, the underlying reason for being off-line has a cybersecurity connection.

You see, I will be traveling for pleasure to China with my wife and one of my grandsons.  For obvious reasons, none of us will be taking any personal electronics with us.  For equally obvious reasons, I won’t be using any public computers to login remotely to any of my email accounts.  And because I certainly don’t want to place the Lawfare blog at risk, I also won’t be accessing our blog remotely to post  …. even if I have something to say.

It will be odd to be so completely disconnected from the network.  The fact that I feel the necessity of doing so is a testament to how perilous the current cybersecurity situation seems.

Carol Rosenberg wrote about yesterday’s arguments in the 9/11 hearings on defense counsel’s request for access to the Red Cross’s reports of its interviews with the five accused. That’s in the Miami Herald.

Yesterday’s House intelligence committee hearing with top intelligence agency and DOJ officials drew a big crowd and much news: Wired explains the DOJ’s efforts to conceal the NSA’s role in collecting evidence against a man convicted for providing material support to Al Shabab; Peter Finn and Gregg Miller of the Washington Post explore another aspect of the hearing: the collaboration between U.S. and U.K. intelligence agencies in foiling two other terrorist attacks.

Dana Milbank’s column in the Post today branded the hearing a “pep rally” for the FISC. Watch video from the hearing here.

The New York Times editorial today focuses on President Obama’s interview with Charlie Rose and yesterday’s House intelligence hearing. It argues:

If the president is serious about declassifying some secrets, he should have said he would start with the court. And at the top of the list should be its opinion that broadened the Patriot Act to allow the collection of every phone record, a power that surprised even the Republican lawmakers who wrote the act. The opinion is the subject of a federal lawsuit, and the Obama administration has fought its release. Mr. Obama should publicly support a bill, sponsored by a bipartisan group of at least eight senators, that would require the court’s opinions to be made public.

Senate Armed Services Committee Chairman Carl Levin isn’t so sure about the prospects of passing the Senate’s version of the defense authorization bill prior to its August recess. Jeremy Herb reports in The Hill.

Additional developments in Afghanistan beyond the formal takeover of Afghan security force control broke yesterday: the Taliban there announced it’s open to talks with the Afghan government, reopening its Doha office, and the United States signaled that it’s open to talks with the Taliban (BBC News and The Hill). This latest item has displeased Afghan President Hamid Karzai, who announced hes’s suspending negotiations with the United States (The Hill). The Taliban, meanwhile, attacked an American convoy in Qatar, killing four Americans. Rod Nordland and Sharifullah Sahak recap these events at the Times.

The Washington Post editorializes on the prospect of a U.S.-Taliban peace talk, urging U.S. negotiators to adopt a tough line to make it clear that “waiting it out” is not an option for the Taliban.

Ernesto Londono reports in the Post on the U.S./international community’s response to past and future uses of WMD by the Assad regime.

Times appear to be hard at the International Criminal Tribunal for the former Yugoslavia, where a few recent war crimes suspects have been acquitted and someone leaked a damning email authored by one of the Court’s judges that claimed that external influence on the court was taking its toll. There’s a BBC story documenting all of that.

Al Qaeda attacked a U.N. compound in Mogadishu today; three guards were killed along with nine militants. Here’s the Wall Street Journal with more.

The Times tells us the latest in the Sprint-SoftBank-Clearwire-Dish saga: Dish is backing out of its bid for Sprint, but will forge ahead in its efforts to acquire Clearwire.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, 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.

Despite the lack of any hearings in the Bradley Manning trial today, your correspondents are still working out of Burba Cottage at Fort Meade for our third day of CCTV-broadcasted coverage of pre-trial hearings in United States v. Mohammed et al. We are scheduled to start (presumably with testimony from former GTMO commanding officer Rear Admiral David Woods) at 0900.

We’ll link to individual posts below as usual, but you can also catch them on our Events Coverage page. Read our coverage of Monday’s hearing here, and Tuesday’s hearing here.

6/19 Motions Session #1: Last Words on ICRC Reports

6/19 Motions Session #2: Another Day, Another Admiral

6/19 Motions Session #3: Fits and Starts

6/19 Motions Session #4: The MCA 2009 and Congress’s Intent

6/19 Motions Session #5: How the Woods Order Worked

6/19 Motions Hearing #6: Woods’ Words

The following is a guest post by Susan Landau, author of Surveillance or Security? The Risks Posed by New Wiretapping Technologies.  That work is obviously relevant to current events, and to her chosen topic of minimization:

Things we should know include:

o Does the metadata minimization mean that the target’s metadata can be searched if the target is a member of several groups, none of which are questionable on their own, but whose combination does trigger a search? The groups might be a mosque where there is some political discussion happening, a student group in support of a Palestinian state, and an Islamic study group? (Or it could be the St. Andrew’s Lodge, the Long Room Club, and the Boston Committee of Correspondence; see Shin-Kap Han’s charming study of Paul Revere’s role in the American revolution.)

o Does minimization mean that the target’s metadata can be searched because she is in frequent close proximity of a known target (where close proximity might be location, or it might be some other criteria)? What if the known target is in a popular location, say if Tamerlan Tsarnaev had been working and thus leaving his daughter in day care each morning? Would the parents whose children attended the same center also be under reasonable suspicion based on the specific and articulable facts because their phone was in close daily proximity with Tsarnaev’s?

o Does minimization mean that that the target’s metadata can be searched because he is “distance two” from a target (the target communicates with someone who communicates with the person)? What controls are in place if the person in the middle is someone who communicates frequently with many people, e.g., a plumber or taxi dispatcher?

Read more »

I’m pleased to announce two new collections of resources for the Lawfare Wiki Document Library. Thanks to Alan Rozenshtein, we now have a page devoted to war powers—which includes everything from declarations of war from throughout U.S. history to OLC opinions on war powers and much more. Samantha Goldstein, meanwhile, has developed a series of pages collecting resources on targeted killings.

These pages, like Raffaela’s earlier page on the Al Bahlul case, are meant as works in progress. We will keep adding material to them, and building out other pages, and users who would like to contribute to building the library should get involved. These are meant as intellectual platforms on which to build.

I have created a set of sidebar links to the Wiki Library resources, which you can find just above the link to the Lawfare Store on the right.

I hope these collections will be of use to readers and researchers.

A three-judge panel (Judges Henderson, Griffith and Edwards) of the D.C. Circuit has affirmed the District Court’s decision to deny Guantanamo detainee Abdul al Qader Ahmed Hussain’s petition for a writ of habeas corpus.  The appellate court concluded that the habeas court’s findings of fact were not “clearly erroneous,” and that the findings support the conclusion that Hussain was more likely than not a member of enemy forces. The majority opinion was authored by Judge Griffith.

Senior Circuit Judge Harry Edwards wrote a concurring opinion. It ended with this provocative language:

Is it really surprising that a teenager, or someone recounting his teenage years, sounds unbelievable? What is a judge to make of this, especially here, where there is not one iota of evidence that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons”? I do not mean to suggest that a teenager cannot be a terrorist or an enemy combatant or that, if so, he should get a pass because of his age. Rather, the salient point is quite simple: the burden of proof was on the Government to make the case against Hussain by a preponderance of the evidence. In my view, it failed to carry this burden.

This said, I am constrained by the law of the circuit to concur in the judgment of the court. The majority opinion is unassailable in holding that our precedent (which conflates the preponderance of the evidence and substantial evidence standards) supports the result reached. I have no authority to stray from precedent. However, when I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases.

Here are both the opinions.

I am participating today and tomorrow at a seminar at Roger Williams University Law School, entitled Cyber Threats and Cyber Realities.  It is being hosted by our Lawfare guest contributor Peter Marguiles.

On today’s first panel, I was particularly struck by two observations made by panelist Jonathan Schneider.  Schneider is an energy lawyer in Washington DC  who is closely following the ongoing process at NIST that is designed to develop a “Cybersecurity Framework.”  This Framework is styled as a “best practices” system that will be voluntary for the effected industries.  I asked Schneider about this and he said two things:  First, he noted that no responsible energy company CEO could ignore the Framework standards, even if they were voluntary.   For one thing, he expected that the fact of non-compliance would have to be reported to the local public utility commission.  For another, he assumed that the fact of compliance or non-compliance would eventually be known to the utilities customers.

Both those seem right to me and suggest to me that even if the voluntary framework does NOT result in actually liability for non-compliance it is likely that other collateral factors will drive us so that the Framework becomes, effectively, semi-mandatory.  And if you think that the government’s capability to define good standards is high, this will please you.  If you doubt the capability this will be off-putting.

The second observation, which builds on the first, was Schneider’s opinion that that Framework will have sufficient “bite” to it and enough semi-mandatory character, that the White House will likely decide that it does not need a statute providing mandatory statutory requirements.  Which, in turn, might explain something that has puzzled me — namely why the Senate Democrats have yet to reintroduce an updated version of last year’s Cybersecurity Act with a regulatory title?  Perhaps they, and the White House, are increasingly convinced that they don’t need it.

As Ben already noted, the Miami Herald’s Carol Rosenberg has released a GTMO Detainee Task Force document acquired through a Freedom of Information Act request. It includes a roster dated January 2010 listing detainees who are counted among those being held in indefinite detention. The Atlantic published a map incorporating this data.

Wells and I are not the only ones watching this week’s hearings in the 9/11 military commission trial. Jane Sutton of Reuters has a story on this week’s agenda.

Afghan security forces have taken the security lead in all regions of their countr, as NATO transitions out—just in time for new attacks in the capital. Here are the Washington Post story, NPR report, The Hill story, and New York Times report.

Meanwhile, Senator Bob Corker is putting a hold on future aid to Afghanistan until he receives assurances from the White House that the bags of cash delivered to Afghan President Karzai by the CIA are not fueling corruption in the country. Matthew Rosenberg in the Times has the details.
Anyone who’s anyone joined the Guardian web chat with Edward Snowden yesterday. Ellen Nakashima of the Post has a post mortem.

Nina Totenberg of NPR has this lengthy piece on the FISC.

Republican Senator Dan Coats penned an op-ed in the Wall Street Journal that calls on his party colleagues to halt their “NSA grandstanding”:

As a result of these leaks and subsequent spread of misinformation, the federal government faces a Catch-22. The administration must disclose more information about the use of these programs to regain the people’s trust and ensure the protection of civil liberties, but doing so also compromises the programs. As the NSA chief said in his recent testimony, “Everything depends on trust. . . . We do not see a trade-off between security and liberty. It is not a choice, and we can and must do both simultaneously.”

The government’s interest in carrying out these programs is the most compelling imaginable: an enduring defense against terrorist attacks that could take thousands of innocent lives. I have no doubt that returning to a pre-9/11 security posture will make this country less safe. A majority of Americans agree, and their support is likely to grow as sensationalism and fear are replaced with facts.

Meanwhile, the House intelligence committee hosts NSA director General Keith Alexander, but he won’t be alone; joining him will be the Deputy Attorney General, the Deputy Director of the FBI, and the General Counsel of the DNI. I just wonder what on earth could be on that hearing’s agenda?

And Marc Ambinder documents presumed FBI Director nominee James Comey’s reaction as Deputy AG to the Bush administration’s exploitation of warrantless wiretaps over at Foreign Policy.

US News & World Report’s “Debate Club” features contributors discussing the prospect of repealing the 2001 AUMF.

NPR’s Morning Edition has this report on a forthcoming book entitled Anonymous Sources by former NPR reporter Mary Louise Kelly. It’s a work of fiction that draws on her experience on the national security beat.

U.S. and Russia have signed a bilateral agreement that will take the place of the now-expired Nunn-Lugar threat reduction program, and which will also encourage cooperation and information sharing on cybersecurity and other national security threats. Ellen Nakashima reports on the details in the Post.

Perhaps not national security law focused, but it’s Bitcoin-related, the Government Accountability Office has released a report on steps the IRS needs to take with regards to virtual currencies. Citizens don’t understand the tax implications of using such moneys. Peter Schroeder of The Hill recaps the report’s conclusions.

The Sprint-SoftBank-Clearwire-Dish saga continues: Sprint has now filed a lawsuit against Dish Network for its bid on Clearwire. Here’s a Reuters story on the ensuing legal drama.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, 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.

Dew glistens on the lawn just outside Fort Meade’s Burba Cottage—-our usual haunt, Smallwood Hall, being unavailable on account of the ongoing Bradley Manning trial.  Lawfare is in the house for a second day of CCTV-broadcasted motions hearings in United States v. Mohammed et al.  At 0900, the defense presumably will continue its examination of former Convening Authority Admiral Bruce MacDonald.

Y’all know the drill: posts throughout the day in our “Event Coverage” section, with handy links to those posts below. Here’s yesterday’s coverage.

6/18 Motions Session #1: Can You Hear Me Now?

6/18 Motions Session #2: On Defense Access to ICRC Reports

6/18 Motions Session #3: Bormann to MacDonald: How Have You Bin Attash?

6/18 Motions Session #4: A Prosecutor Asks, and MacDonald Answers

6/18 Motions Session #5: A Farewell to the Admiral

There is a subtle connection between the unfolding NSA metadata controversy and the controversy that has long plagued the administration’s position on drone strikes, involving the impact of transparency on the legitimacy of the underlying legal architecture.

Transparency and the substantive legal foundations for controversial programs

First, consider the extent to which the substantive legal foundations for these programs are (or at least were) classified.  In both the metadata and drone settings, the administration predicates the legality of its actions on statutory authority (the AUMF for drones, the FISA third-party records provision for metadata pre-collection).  So far so good from a transparency viewpoint; statutes are of course known to the public.  But in critical respects, both programs also require some important and non-obvious elements of statutory interpretation in order to get from the text to the particular elements of these programs that seem to cause the most controversy.  The point is very clear with the metadata program, which depends on a non-obvious interpretation of the “relevant to an investigation” standard.  And for drone strikes?  The administration has been quite public in explaining its view that the AUMF authorizes them, including through an interpretation of the AUMF that extends beyond al Qaeda as such to reach al Qaeda’s associated forces (at least when such groups engage in hostilities against the United States).  But the administration has resisted public disclosure of which groups come within the scope of that understanding in its view, and has not made clear what factors suffice to make a group an associated force in this sense (nor, for that matter, has it been particularly forthcoming on these issues with Congress–in apparent contrast to the inter-branch transparency that may have occurred with the metadata program).

To be clear, I’m not suggesting that either interpretation is inappropriate.  Nor am I suggesting that they involve comparable degrees of, well, creativity.  I am simply pointing out that if a program depends on a classified and non-obvious interpretation of what the law permits, it is more likely to generate legal criticism if and when the details of the program leak.  All other things being equal, this is an argument for bringing such interpretations into the light in advance, and entrenching them in statute if at all possible.

Procedural safeguards and transparency

Next, consider the extent to which the legitimacy of both the metadata program and the drone program also depend on the rigor of the procedural safeguards involved in their operation, and the impact on that dynamic of transparency.  To be sure, we have heard a fair amount about the process involved in vetting nominations to kill lists, in recent years, but (i) the details are particularly patchy vis-a-vis the CIA and (ii) all of it depends on executive discretion in any event.  As for the metadata program, we are beginning to hear details suggesting a very high-degree of rigor (particularly when it comes to accessing the resulting database in order to conduct target-specific queries), but though this appears likely to stem from a FISC mandate of some kind the fact remains that it is not an express part of a statutory architecture.  Once more, all things being equal these programs would be far more legitimate and sustainable if these elements were brought into the light and entrenched in statute.

The Miami Herald has obtained under the Freedom of Information Act the list of dispositions for Guantanamo detainees from the Obama administration’s Guantanamo task force. Here’s Carol Rosenberg’s story on the subject:

GUANTANAMO BAY NAVY BASE, Cuba – The Obama administration Monday lifted a veil of secrecy surrounding the status of the detainees at Guantánamo, for the first time publicly naming the four dozen captives it defined as indefinite detainees — men too dangerous to transfer but who cannot be tried in a court of law.

The names had been a closely held secret since a multi-agency task force sifted through the files of the Guantánamo detainees in 2009 trying to achieve President Barack Obama’s executive order to close the detention center. In January 2010, the task force revealed that it classified 48 Guantánamo captives as dangerous but ineligible for trial because of a lack of evidence, or because the evidence was too tainted.

They became so-called “indefinite detainees,” a form of war prisoner held under Congress’ 2001 “Authorization for Use of Military Force.”

The Defense Department released the list to The Miami Herald, which, with the assistance of Yale Law School students, had sued for it in federal court in Washington, D.C. The Pentagon also sent the list to the House and Senate Armed Services Committees on Monday, a Defense Department official said.

According to the list, the men designated for indefinite detention are 26 Yemenis, 12 Afghans, 3 Saudis, 2 Kuwaitis, 2 Libyans, a Kenyan, a Moroccan and a Somali.

Last week I noted that Ayman al Zawahiri, head of AQ, issued a statement directing that AQI and al Nusrah remain separate entities within the AQ system, and I pointed out various questions this raised from the perspective of the 2001 AUMF.  Now things are getting still more interesting, as a recent message from AQI’s leader defies Zawahiri’s command and insists that the AQI/al Nusrah merger will continue.  From an AUMF perspective, it will be quite interesting to see whether AQ proves willing to and capable of asserting its will over AQI in this matter, though it seems quite possible that AQI has little real ability to put teeth into the merger in any event since al Nusrah thusfar appears hostile to the idea (preferring, instead, an independent and direct connection to AQ itself).

As John noted over the weekend, Clifford Sloan has been selected as the Department of State’s envoy for closing the GTMO detention center. Here are the Washington Post story and Politico story on the decision.

The Guardian has released yet another wave of classified materials, this time from the British agency GCHQ. They indicate that foreign government officials’ communications were monitored during international conferences. Here are Scott Shane and Ravi Somaiya with details in the Times.

Edward Snowden will be answering reader questions live at 11AM eastern time at the Guardian’s website.

Now that the House has passed its version of the NDAA, attention shifts to the Senate’s deliberations on the appropriations bill. Late last week, the Senate Armed Services committee approved its iteration, which is markedly different from the House-approved version. Here’s Carlo Munoz in The Hill with the details.

Afghan President Hamid Karzai is coming out swinging against U.S. drone strikes in Pakistan. His remarks as released by his office included the following statement:

Just as I have stood against American military operations in Afghanistan where civilians were killed, where civilians were wounded, where civilian homes were destroyed, I fully will stand with Pakistan against any activity by any foreign power that causes civilian casualties in Pakistan. . .

Yaroslav Trofimov discusses President Karzai’s remarks at the Wall Street Journal.

Former top-CIA official John McLaughlin blogs at Foreign Policy about the public debate, and makes predictions about the ultimate outcome:

In the end, we will all get comfortable with some not-so-very different version of it, perhaps buttressed by a more consensus-based legal foundation. In the process, we will have created a public guidebook to how we do this type of intelligence, and our citizens will be much more educated and sophisticated about our intelligence methods.

But so will those who want to know all of this even more desperately than we do. There is no having it both ways.

Over the weekend, Facebook and Microsoft released data about information they’ve supplied to the NSA, but Google says the permissions granted by the U.S. government aren’t as permissive as it would like. Nicole Perlroth reports in the New York Times

The Times’s David Sanger and Nicole Perlroth discuss the implications of the Snowden leaks on his former employer, defense contractor Booz Allen Hamilton.

Meanwhile, intelligence officials seconded U.S. Senators’ defense of the PRISM program, arguing that it’s thwarted dozens of terrorist plots. Here’s Michael Isikoff reporting at NBC.

The way in which President Obama was persuaded to change his tack on Syria—a pincer action by SecState Kerry and British Foreign Secretary William Hague—emerged over the weekend. Here’s the Daily Mail with the play-by-play.

And the U.S. will leave a number of F-16s and Patriot missiles in Jordan in an attempt to pressure the Assad regime, the Times tells us. The Journal also has a story.

A Washington Post editorial over the weekend focused on the still-classified the cyber operations policy directive that was leaked by Edward Snowden. It concludes:

Certainly, this leak must have pained the White House. But on balance, it is a good sign that the imponderables of fighting a cyberwar are being examined and clarified. Better now, before trouble arrives, than in the midst of crisis or after conflict has broken out.

Major Nidal Hassan won’t be permitted to argue that he was protecting the Taliban when he opened fire in Fort Hood back in 2009. The Times explains the military judge’s decision.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, 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.

The Fort Meade CCTV screen comes to life, as your correspondents return for another week of pre-trial proceedings in United States v. Mohammed et al.  Look for posts in our Event Coverage section; we’ll link to those posts below, throughout the day. We expect a rapping of the Guantanamo gavel at 0900.

6/17 Motions Session #1: Testing, Testing

6/17 Motions Session #2: Admiral MacDonald Returns

6/17 Motions Session #3: More from Admiral MacDonald

6/17 Motions Session #4: Still More From MacDonald—Will This Be a One-Witness Day?

6/17 Motions Session #5: Definitely a MacDonald-Focused Day

6/17 Motions Session #6: Make That a MacDonald-Only Day

Last Friday the government filed this brief in CA2  in the NYT’s and ACLU’s appeal in the case involving FOIA requests  on targeted killing. (Here is our account of the decision below, which the government largely won, and here is the ACLU brief on appeal).  I’m headed for vacation this morning and don’t have time to read carefully and analyze the brief.  Suffice it to say that the government takes an aggressive anti-disclosure stance.  In particular, it reads the President’s acknowledgment of USG involvement in the al-Awlaki strike narrowly, to require as little disclosure as possible.  To give you a flavor, the government argues that it cannot disclose “whether OLC provided legal advice to the CIA on the lawfulness of targeted lethal force” because “it would reveal whether the CIA itself was operationally involved in lethal targeting operations or was authorized to conduct such operations, as well as CIA interest in specific operations against identified individuals.”  And it adds that “even with the President’s acknowledgment of the previously properly classified fact that the United States carried out this particular operation, DOJ is not in a position to disclose additional details about the dates, nature, recipients, or contents of the classified responsive DOJ records, because such details would tend to reveal information protected under FOIA Exemptions 1, 3, and 5.”

As Ben noted on the day of President Obama’s big counterterrorism speech last month, one of the speech’s most notable elements was President Obama’s strong reaffirmation of the utility of military commissions, and his announcement that he wanted them to be used inside the United States.  I have built on Ben’s point in an essay published last week by the Hoover institution on the continuing importance of military commissions.  Commissions have obviously suffered setbacks, big and small, legal and political, over the last dozen years.  But I think they are on track to carving out an important legitimate niche in the long war against terrorism, and I think President Obama’s commitment helps.  I explain why in this essay (there are many reasons), and I also seek to defuse some of the recent “Kangaroo Court” charges against commissions, which in my view are exaggerated.

Two updates to the essay based on events around the time of its publication:  First, last week a commander testified that the microphone devices have been removed from the rooms where defense attorneys met with their clients.  Second, I noted in the essay “the possibility of rare future instances of closing trial proceedings to the public”; last week the possibility became a reality as commissions went into closed session for the first time.  For an understanding of the legal basis for the closure, how it relates to the law that prevails in civilian courts, and how the defendant’s rights were protected, I recommend Chief Prosecutor Mark Martins’ explanation (pp. 4-6).

Ask and you shall receive…

No sooner had I observed on Friday that the President had still not named the two senior envoys at the State and Defense Departments to help with Guantanamo transfers than the Huffington Post reports that on Monday Secretary Kerry will name Clifford Sloan, a partner at Skadden Arps in Washington (where he is a law partner of former White House Counsel Greg Craig), to be the State Department envoy.  Sloan is the former publisher of Slate magazine and previously served as Associate Counsel to President Bill Clinton.  From the Huff Post story, it sounds like Mr. Sloan may spend as much time negotiating with Congress as with foreign countries.

This strikes me as a potentially very good appointment with the right mandate.

No word yet on a senior envoy at DoD.

Tomorrow at 9 a.m., Lawfare returns to Fort Meade, for a week’s worth of CCTV-broadcasted-from-Guantanamo hearings in United States v. Mohammed et al.  

The docketing order for our five-day session can be found here.  Since the order’s issuance, various accused and the prosecution have filed requests with the court, seeking to add items to the week’s agenda or to propose a particular sequence in which to address currently-scheduled motions.  These submissions could inform an off-the-record Rule 802 session, later today.  We’ll thus likely learn more about precisely what will be up for argument, first thing tomorrow.

[UPDATE 5:50 p.m.]: here’s a statement about this week’s hearing from the Chief Prosecutor.  The opening paragraphs are as follows:

Good afternoon, and happy Father’s Day to all the fathers in attendance or within earshot.  Today, I recall the reflections of one father who lost his daughter on September 11th and, undaunted by the relatively austere accommodations of Guantanamo Bay, traveled here within the past year to bear witness to these proceedings.  He told us how on September 11th his daughter was on her first business trip, putting every bit of her talents and effort into her work according to the values by which he and her mother had raised her—and as she went to work, our nation was attacked, and she was killed, along with 2,975 other persons from approximately 90 countries.  We appreciated that father’s commitment to seeing for himself the pursuit of justice under law, however long it takes, just as we appreciate today the presence here this week of all family members who lost loved ones, including those who lost their father or a husband who was a father, and of all who were wounded on September 11th.

We also welcome members of the media and representatives of observing organizations, and we recognize the logistical support provided by the Soldiers, Sailors, Airmen, Marines, and Coastguardsmen of Joint Task Force Guantanamo.

The administration issued this statement yesterday on NSA collection under Sections 702 and 215. The entire statement—which describes controls on the programs, their broad parameters, and their value in counterterrorism cases—is worth a read. This excerpt, however, describes a significantly new fact—just how few times the database actually gets queried:

The Washington Post this morning has another big NSA story, this one historical in nature. I’m still digesting it, so for now, I’ll just flag key aspects of it. Reporter Barton Gellman has obtained “a classified NSA history of STELLARWIND”—the series of four domestic collection programs that began during the Bush adminstration, one of which caused the huge internal crisis within the Bush administration that led to the famous hospital bed-side showdown.

“Two of the four collection programs, one each for telephony and the Internet,” Gellman writes, “process trillions of ‘metadata’ records for storage and analysis in systems called MAINWAY and MARINA, respectively. The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called ­NUCLEON.”

In some respects, the story adds texture to what we knew previously. With respect to telephony metadata, the telecommunications companies were participating in these programs voluntarily prior to their disclosure by the New York Times. They then sought protection by asking the government to force them to participate by seeking a court order. The result were the Section 215 orders for bulk production, one of which the Guardian recently disclosed.

The issue that precipitated the hospital room crisis, however, involved email metadata, not telephony metadata. Writes Gellman:

The legal challenge for the NSA was that its practice of collecting high volumes of data from digital links did not seem to meet even the relatively low requirements of Bush’s authorization, which allowed collection of Internet metadata “for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States,” the NSA inspector general’s report said.

Lawyers for the agency came up with an interpretation that said the NSA did not “acquire” the communications, a term with formal meaning in surveillance law, until analysts ran searches against it. The NSA could “obtain” metadata in bulk, they argued, without meeting the required standards for acquisition.

[Jack] Goldsmith and [Jim] Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today.

Three months after the crisis, Gellman reports, the FISA court “allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as ‘pen register, trap and trace,’ that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line.” In other words, just as the FISA court ultimately permitted the telephony metadata collection pursuant to its own order under Section 215, it also ultimately permitted bulk email metadata collection—though apparently under a different provision of law.

But the article concludes with the suggestion that this program is not still ongoing:

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

All in all, this article is highly informative—and for exactly that reason, I suspect, highly damaging.

It is dated this Friday, and begins as follows:

Dear Mr. Speaker: (Dear Mr. President:)

I am providing this supplemental consolidated report, prepared by my Administration and consistent with the War Powers Resolution (Public Law 93-148), as part of my efforts to keep the Congress informed about deployments of U.S. Armed Forces equipped for combat.

MILITARY OPERATIONS IN SUPPORT OF U.S. COUNTERTERRORISM OBJECTIVES

In furtherance of U.S. counterterrorism efforts, the United States continues to work with partners around the globe, with a particular focus on the U.S. Central Command’s and U.S. Africa Command’s areas of responsibility. In this context, the United States has deployed U.S. combat-equipped forces to enhance the counterterrorism capabilities and support the counterterrorism operations of our friends and allies, including special operations and other forces for sensitive operations in various locations around the world. Specific information about counterterrorism deployments to select countries is provided below, and a classified annex to this report provides further information.

Military Operations Against al-Qa’ida, the Taliban, and Associated Forces and in Support of Related U.S. Counterterrorism Objectives

Since October 7, 2001, the United States has conducted combat operations in Afghanistan against al-Qa’ida, the Taliban, and associated forces. In support of these and other overseas operations, the United States has deployed combat-equipped forces to a number of locations in the U.S. Central, Pacific, European, Southern, and Africa Command areas of operation. Previously, such operations and deployments have been reported, consistent with Public Law 107-40 and the War Powers Resolution, and operations and deployments remain ongoing. These operations, which the United States has carried out with the assistance of numerous international partners, have been successful in seriously degrading al-Qa’ida’s capabilities and brought an end to the Taliban’s leadership of Afghanistan. The United States is committed to thwarting the efforts of al-Qa’ida, the Taliban, and associated forces to carry out future acts of international terrorism, and we have continued to work with our counterterrorism partners to disrupt and degrade the capabilities of al-Qa’ida, the Taliban, and associated forces. As necessary, in response to this terrorist threat, I will direct additional measures to protect U.S. citizens and interests. It is not possible to know at this time the precise scope or the duration of the deployments of U.S. Armed Forces necessary to counter this terrorist threat to the United States.

The following is a guest post from Professor Kathleen Clark of Washington University Law.  

Robert O’Harrow recently wrote in the Washington Post that ”given the threat of terrorism and the national security mandates from Congress, the intelligence community had little choice” but to rely on contractor personnel.

What he failed to mention was an additional factor that actually has driven the government’s increasing reliance on contractor personnel: congressional and executive branch policies limiting the number of government employees.

Politicians often speak of “downsizing” government when what  they actually mean is decreasing the number of government employees.

Over the course of 25 years, they increased the federal budget and decreased the number of federal employees, resulting in an 85% increase in service contractor spending (adjusted for inflation), as the figures below show.  (These figures are taken from a report that I wrote for the Administrative Conference of the United States, which can be found here or here.)

Like most people accessing the Internet this week, we at Lawfare were a bit focused on everything related to the Edward Snowden leaks. We had some other valuable commentary, though, including a rather intensive three-day liveblogfest of the renewal of hearings in United States v. Al-Nashiri.

Let’s start with the Snowden stuff. Bobby noted the Guardian’s disclosure that Edward Snowden was its source for the FISC order over the weekend, and Ashley wrote about the different ways by which the United States might procure Snowden’s return to the States. We shared DNI Clapper’s statement outlining the facts surrounding intelligence collection under Section 702 of FISA.

Ben and Bobby co-authored a piece at The New Republic about the differences between the two leaks, and Paul wrote about how one could learn in which Hong Kong hotel Snowden was hiding. Joel Brenner guest posted on oversight of intelligence collection. Paul was dismayed by the communication he, along with anyone else who holds a security clearance, received regarding the Snowden leaks. Bill Galston, Senior Fellow at Brookings, authored a guest post discussing Alexander Hamilton’s arguments in Federalist No. 8 on the intersection of national security and civil liberties. Ben commented on friend of the site John Villasenor’s Forbes op-ed on the implications of the leaks on economic espionage. Read more »

Over the last 24 hours, the House debated and voted on nearly 200 amendments to the National Defense Authorization Act of 2014 (H.R. 1960). Many of these amendments were approved via “voice vote” (there was no formal recording of how members voted); quite a few others were approved en bloc (grouped together and voted on as a package) on the floor.

Unsurprisingly, many of the amendments fall squarely within the Lawfare wheelhouse. They are summarized below.

Read more »

You’ll find Brig. Gen. Mark Martins’s six-page statement here.  The opening paragraphs are as follows:

Good afternoon. This week, the Military Commission convened to try the charges against Abd Al-Rahim Hussayn Muhammad Al Nashiri considered pre-trial issues raised by the defense and the prosecution. The judge examined the parties’ written briefs and heard oral argument. These pre-trial sessions are an indispensable part of this sharply adversarial process and are necessary to the fair and open administration of justice.

This week, the judge ruled on nine motions, raising the total number of rulings to 103. The defense tabled two motions, and three others were dismissed as moot. Other motions argued, once ruled upon, will settle the outstanding issues regarding the conspiracy and terrorism charge, and will enable the case to move forward toward trial.

Senator Rand Paul has said he is “reserving judgment” about Edward Snowden, but nevertheless characterized Snowden’s conduct as “civil disobedience.”  Is that right?

From Socrates through Thoreau, Gandhi, and King, the great theorists and practitioners of this form of resistance to law have told us in words and actions that civil disobedience requires the disobedient citizen to suffer the legal consequences of his or her unlawful act. In Socrates’s case, the consequence was death at the hands of the Athenian authorities. For Thoreau, Ghandi, and King, the consequence was jail. Through their suffering and example, they sought to undermine the moral position of law they found objectionable. Because unless the disobedient citizen takes the legal consequences of his unlawful action – he’s nothing but a criminal or a rebel.

Snowden has fled the country. And where has he gone? To Hong Kong, a Chinese dependency that is far from being a bastion of free expression he foolishly says it is, and as people who know it better than he does will tell you, a place whose security apparatus is controlled by the People’s Republic of China. They will find him before we will. And what is he threatening? To release thousands more top-secret documents.

You tell me, dear reader, how young Mr. Snowden measures up to Socrates, Thoreau, Ghandi, and King.

Three weeks ago yesterday, in his NDU speech, President Obama announced:

I’m appointing a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries.

Obviously, the President was responding to the criticism that former Guantanamo envoy and unsung hero Dan Fried (who slogged away for four years without much White House support) had taken on new duties earlier this year and had not been replaced.  But the grammar and meaning of the President’s statement were opaque at the time.   Did the President mean he was appointing one envoy, or two?   If two, how would they work together?

But more important, where are these envoys?   The word on the street is that the White House not only had not selected the envoys at the time of the President’s speech but had not even consulted the Departments of State and Defense.   Now the Administration is having difficulty filling the two positions.

Although I am sure the White House will make good on the President’s pledge sooner or later, it seems to me that at the time it was made the announcement was largely rhetorical and not carefully thought out.

Before anyone cries hypocrisy, I would note that I (and Matt Waxman and others) worked quite hard to close Guantanamo in the second term of the Bush Administration.  At the time President Obama ordered the closure of Guantanamo, I applauded the decision, but warned that it would be harder than he thought.

Ritika has withdrawn to an undisclosed location for a few weeks of well-deserved R&R. You’re stuck with me for a while.

First, to non-Edward Snowden/NSA stories:

The United States has concluded that the Syrian government has used chemical weapons on rebel forces, prompting the Obama administration to commit direct U.S. military support to the anti-Assad forces—-although what that support might look like exactly remains to be seen. Here are stories from the Washington Post, NPR, and The Hill, and Deputy National Security Adviser Ben Rhodes’ statement.

Last night there was a flurry of House activity on the 2014 NDAA. A host of amendments were adopted on the floor, and the bill may be passed in the House today, says Pete Kasperowicz. We’ll have more on the amendments later today.

From two at the Arab American Institute comes this op-ed in The Hill arguing in favor of a revision to the AUMF.

Secretary of Energy Ernie Moniz discussed his new cybersecurity council before the House Energy and Commerce Department this week, reports Ben Geman in The Hill . Read SecEn Moniz’s testimony here.

Wednesday’s exchange between Senator Ron Johnson and Chairman of the Joint Chiefs of Staff General Martin Dempsey caught Mark Thompson’s eye over at Time’s Battleland Blog. Thompson notes the distrust with which members seemed to view the military leader:

The latest example took place Wednesday before the Senate Budget Committee, generally not viewed as a center of national-security thinking. Nonetheless, if every senator sees herself or himself as a President, he or she also can pretend to be chair(wo)man of the Joint Chiefs of Staff.

It’s the way that the lawmakers went after Army General Martin Dempsey, who actually holds that job, that is disconcerting. There’s a clear sense they don’t believe him, that he’s hiding something, somewhere.

As Ben noted this morning, a CIA paramilitary officer is suing his employer. Time’s Jeff Stein reports on the complaint as well.

The AP breaks this surprising story: a Ukranian-born man who’s been in the U.S. since 1949 lied to the United States about being a top commander of a Nazi SS-led unit during World War II. The story explains how the DOJ uses such information to deport suspected war criminals; the man could be prosecuted in Poland, or in Germany if there’s enough “initial suspicion” of his role in war crimes.

The Times’s Joseph Goldstein explores the growing effort by local law enforcement agencies to build DNA databases—ones operating outside of state and federal regulations.

OK, back to Edward Snowden Watch 2013. Keith Bradsher writes in the New York Times on the Chinese media’s reaction to Snowden’s comments about U.S. surveillance in China. On the minds of our intelligence community leaders is this question: what if the leaker has other classified documents? That’s the focus of Greg Miller and Sari Horwitz’s Washington Post story.

According to Danny Yadron and Evan Perez of the Wall Street Journal, T-Mobile USA and Verizon Wireless do not—yet—fork over data to the NSA pursuant to court order. The authors say the two companies are foreign-owned, unlike Verizon Business Network Services, the subject of the recently-leaked FISC order and a U.S. subsidiary considered a separate from Verizon’s wireless network.

Brookings guest scholar Richard Lempert wrote this piece, on the Brookings blog, about the PRISM program and privacy.

The Times’s Claire Cain Miller describes Yahoo’s 2008 failed challenge to the FISC order, which resulted in its joining the PRISM program.

And this weekend’s “Five Myths” feature in the Post’s Outlook section, penned by GWU law’s Daniel Solove, goes to the heart of the battle between privacy and national security.

The United Kingdom has asked airlines around the world to not allow Edward Snowden on their planes. Read Reuters and the Daily Mail for the details. Meanwhile, the director of Hong Kong Human Rights Monitor Law Yuk-kai authored this op-ed in the Times explaining why that place might not be the best locale for Snowden.

Two Siobhans (Hughes and Gorman) at the Wall Street Journal report on remarks by the Chair and Ranking Member of the House Intelligence Committee. These followed a 3-hour, classified hearing with NSA director Gen. Keith Alexander. We can guess what they talked about.

Michael Gerson dedicates his Washington Post column today a critique of hard core conservatives. They are going “too far” in their criticism of the NSA, Gerson says:

It is one thing to oppose the policies of the administration; it is another to call for resistance against a “regime” and a “police state.” It is the difference between skepticism about government and hatred for government. And it raises the question: How is it even possible to love such an Amerika?

This distinction between opposition and resistance is illustrated in attitudes toward the leaker Edward Snowden. If our country is being run by a regime, then those who expose its machinations are heroes, as some on the right have called Snowden. If the U.S. government is a fallible institution doing its best to protect citizens from terrorist violence, then a libertarian loner who reveals classified material (including U.S. cyberwarfare plans) and bolts for a communist country might be viewed in a different light.

Bloomberg’s editorial today speaks in favor of Senator Jeff Merkley’s proposal to declassify some opinions of FISA courts. Senator Merkley, in the meantime, queried General Keith Alexander on the wisdom of the idea. Alexander seemingly surprised the Oregon Senator, when he spoke in favor of it. There’s video over at the Huffington Post.

Meanwhile, Senator Dianne Feinstein is working on a legislative proposal that would limit the access that federal contractors have to highly classified information. Carlo Munoz covers this over at The Hill.

House Minority Leader Nancy Pelosi wants Snowden to be prosecuted, and is preparing a fact sheet outlining the differences between surveillance under the Bush and Obama administrations. So writes Mike Lillis at 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 blog, 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.

Over at Forbes, John Villasenor has this interesting piece arguing that the NSA revelations will tend to increase economic espionage against U.S. companies:

In addition to spurring discussion on the tension between civil liberties and antiterrorism policies, the NSA leaks will have another, less widely recognized consequence: They will significantly increase the level of state-sponsored economic espionage directed against American companies. Why? Because many people overseas will view the NSA’s data collection itself as the defining attribute of the story, with less consideration of the larger American security context that frames it. Some of them will conclude that leveling the playing field requires ramping up their own countries’ efforts to eavesdrop on data from American companies.

NSA is almost certainly using the data it gathers under PRISM and from Verizon (and perhaps other carriers) solely for identifying potential terrorism or espionage threats to the United States. It is exceedingly unlikely that NSA would use PRISM, for example, to help an American company gain a competitive advantage in a bidding war against a foreign rival.

But perception can sometimes matter as much as reality, and some overseas observers appear to believe that the NSA surveillance has an economic component. As Volker Perthes, director of the German Institute for International and Security Affairs, reportedly said, “The German business community is on high alert . . . The suspicion in large parts of the business sector is that Americans would also be interested in our patent applications.”

Surveillance in the name of national security is still surveillance, and last week’s developments remind us all in irrefutable terms that nations have often felt much freer to spy on foreigners than on their own citizens. What varies among nations is the set of priorities that motivate the eavesdropping. In the United States, national security provides the motivation. For some other nations, the goal of maximizing economic success in the global marketplace is viewed as justifying espionage against foreign companies.

I suspect Villasenor is right about this. As Jack has argued many times, the U.S. position on cybersecurity is not exactly a model of consistency—amounting in effect to shock that anyone would conduct cyber attacks on us. Our position on espionage is similar: We engage in it unapologetically for our strategic purposes but we object strenuously to other countries—whose strategic purposes may be more economic than ours—conducting espionage against our companies.

This is pretty interesting. From Foreign Policy:

A new lawsuit brought by a current CIA officer hints at the existence of a secret overseas paramilitary operation that triggered war crimes allegations, The Cable has learned.

On Friday, “John Doe,” an undercover paramilitary officer will file suit against the CIA for “unreasonable delay” of an Inspector General investigation into “alleged war crimes committed in an overseas location.” (The operation remains highly classified; details about when and where it occurred remain secret.)

According to his lawyer Mark Zaid, Doe was engaged in “offensive operations against individuals designated or viewed as enemies of the United States.” His client believes he did nothing wrong, according to Zaid, but witnessed events that “concerned him.” Zaid declined to outline what those concerning events might be.

Here’s the complaint:

Complaint – FINAL

The article further informs:

following the operation, Zaid says his client’s computer and cell phone were compromised by cyber hackers. At first, the client believed a foreign power was responsible and notified the FBI, which opened an investigation but could not determine the origin of the attack. After working with the FBI in its investigation, and finding it unusually cooperative, Zaid suspects the CIA was spying on his client.

The suit also reveals that the Department of Justice opened, and eventually closed, a criminal investigation into alleged war crimes carried out by CIA personnel. The IG investigation is believed to have been started between 2010 and 2011.

This week, Rep. Adam Smith (D-WA) filed two amendments to the National Defense Authorization Act for 2014 (H.R. 1960).  The first, co-sponsored by Rep. Jerrold Nadler (D-NY) and James Moran (D-VA), provides a framework to close the Guantanamo Bay detention facility by December 31, 2014 (full text here).  Smith advances a six-part plan for achieving that goal.  As summarized by the House Armed Services Committee Democrats, the plan

1.  Enhances the authority of a senior official in the Pentagon (pursuant to Section 1037 of HR 1960, the FY14 NDAA), who will be appointed by the President, by granting the authority to close the detention facility at Guantanamo Bay, Cuba. The underlying bill provides authority only to coordinate detainee transfers. This official must work with the intelligence community, the Department of Defense, the Joint Chiefs of Staff, the Department of State, and other interested Departments.

2.  All current limitations on the transfer of GTMO detainees in HR 1960 or existing statutes are removed. Sections 1032-34 of HR 1960, which ban the use of funds for the construction or modification of facilities in the United States for GTMO detainees, require certifications by the Secretary of Defense for transfer to foreign countries, and a ban on the transfer of GTMO detainees to the United States, are removed. Parallel restrictions in appropriations statutes and the current Continuing Resolution are also removed.

3.  Strikes the request for $247 million for military construction at GTMO in Section 2901 of HR 1960.

4.  Requires 30-day notice to Congress and a comprehensive report prior to any transfer of a GTMO detainee to a foreign country or to the United States for prosecution or continued law-of-war detention. The report includes an assessment by the Secretary of Defense and the intelligence community of security concerns about the individual. No transfer notice will be sent to Congress unless it is the consensus opinion of the military and intelligence communities that transfer of the detainee is appropriate.

5.  Eliminates all funding for the GTMO detention facility by December 31, 2014.

6.  Expedites requirements for a comprehensive plan from the President and the Department of Defense on how to close GTMO (within 60 days of enactment). Read more »

Yesterday’s Senate Appropriations Committee hearing attracted quite a lot of attention, unsurprisingly, as General Keith Alexander, the head of the NSA, testified regarding the PRISM program. Ellen Nakashima and Jerry Markon report in the Washington Post, a trio at the New York Times also have a story, as does The Hill.

Edward Snowden will fight an extradition order, should it come to that, writes Keith Bradsher in the Times. Ashley had a post earlier this week on the options available to the United States in its efforts to collect Snowden.

For technophobes among us, NPR has assembled this guide to key terms in the story. Here’s a Wall Street Journal story discussing technological advances that have made the PRISM program possible.

CoinDesk, an ‘online currency’ news source, analyzes the impact of the disclosure of the PRISM program and subsequent details on the value of Bitcoin.

Dick Morris opines in The Hill on how he’d like to reform the NSA, while Brian Fung of National Journal shares aggregate FISA requests and NSLs since 2001.

And perhaps unsurprisingly, Snowden’s comment that the U.S. is executing cyberattacks on China caught that country’s officials’ attention, as Jia Lynn Yang explains in the Post. Gerry Mullany and Didi Kirsten Tatlow report in the Times on the suggestion by state-run media in China that the leaks will negatively impact the two governments’ relations.

Meanwhile, tech companies are doing their utmost to share as much as possible with the public about what exactly they’ve handed over to U.S. authorities: Google explained it used rather un-techy methods, including FTP transfers and in-person delivery. Here’s Claire Cain Miller in the Times and Michael Auslen in USA Today. And the Justice Department is reviewing Google’s request that it provide aggregate data on the number of FISA warrants to the public, as Main Justice’s Jennifer Koons writes.

The Washington Post editorial board has something to say about that request:

The Obama administration should allow Google and other tech firms to say a little more about their relationship with the government. But the transparency should not stop there. The revelation that so surprised Google — that the NSA is collecting all that phone metadata — apparently relies on a novel interpretation of Section 215 of the Patriot Act, a provision that allows the government to obtain business records relevant to national security investigations. We don’t see why the program itself had to be a secret, and we don’t see why the legal rationale for it shouldn’t be released, as well.

Contrary to what you may believe, there are a few other national security-related news stories besides those mentioning “Snowden,” “PRISM” and “NSA.”

Chairman of the Joint Chiefs of Staff General Martin Dempsey testified on the Hill yesterday, alongside SecDef Hagel and Undersecretary of Defense Robert Hale. Here’s a link to their testimony. The Hill notes that Gen. Dempsey denied that special forces were ordered to stand down during the Benghazi attack last fall, as diplomat Gregory Hicks described in his congressional testimony in May. Here’s the gist of his response, as reported by Carlo Munoz.

They were told … that the mission they were asked to perform was not in Benghazi, but was at Tripoli airport. . . .[The team] would contribute more by going to the Tripoli airport to meet the casualties upon return. . . [rather than being sent into Benghazi].

Let the FY2014 appropriations wars begin: The House Armed Services Committee’s markup of the 2014 NDAA prohibits the Defense Clandestine Service from spending more than 50 percent of its appropriated funds until the SecDef certifies to Congress regarding a variety of matters related to the new intelligence agency’s purpose and design. The White House is none too pleased with this restriction, and said as much in its official statement of policy (Bobby mentioned earlier that it’s threatened a veto over the bill generally). Carlo Munoz of The Hill has the details. You can read the Chairman’s mark here, and the White House’s statement here.

John shared the news that President Obama will appoint Avril Haines to be the next Deputy Director of the CIA, rather than to continue seeking Senate approval of her nomination to be Legal Advisor to SecState. Here are Karen DeYoung and Greg Miller in the Post.

Japanese telecommunications company SoftBank raised its offer for Sprint to $21.6B, in response to Dish Network’s competing proposal to purchase all of Sprint. Here’s a Times piece by Michael J. de la Merced.

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 blog, 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.

Your correspondent returns to Fort Meade’ Burba Cottage—our usual CCTV venue, Smallwood Hall, being unavailable—to take in another day of piped-in-from-Guantanamo hearings in United States v. Al-Nashiri.  As always, the gong will sound at 9 p.m.; as always, we’ll have almost-live posts up throughout the day in our Events Coverage section, with links to the posts displayed here.  Stay tuned.

June 13 Session #1: Hamdan II and Terrorism Charges

June 13 Session #2: Rule 703(c)

June 13 Session #3:  A Trip to Echo II, Part One

June 13 Session  #4:  A Trip to Echo II, Part Two; Spiral Bound v. Trapper Keeper‘

June 13 Session #5: Final Words on Spiral Notebooks, and A Postponement

In an unusual personnel move, the White House announced this afternoon that the President has withdrawn the nomination of Avril Haines to be the Legal Adviser of the State Department and is appointing her instead to be the Deputy Director of the CIA, to succeed Mike Morrell, who is retiring.   The Deputy Director position does not require Senate confirmation.

Avril currently serves as Deputy Counsel to the President and Legal Adviser to the NSC, where she had been at John Brennan’s right hand for three years until he became CIA Director earlier this year.

Avril is widely respected among national security lawyers as extremely smart, non-partisan, hard-working, conscientious, and humble.   She was not expected to have any confirmation problems.   But she has worked very closely with Brennan on counter-terrorism and sensitive intelligence issues, and Brennan and the White House apparently believed that she could make a better contribution to the Obama team at the CIA.   As NSC Legal Adviser, Avril has also participated regularly in meetings of NSC Principals and Deputies relating to intelligence programs and other national security matters.

This will come as a bitter disappointment for the State Department, where Avril had previously served as Assistant Legal Adviser for Treaty Affairs (while I served as Legal Adviser).   She would have been a fantastic Legal Adviser, given her previous experience in the Legal Adviser’s office, at the Senate Foreign Relations Committee, and as NSC Legal Adviser.   And she would have worked seamlessly with other Administration national security lawyers with whom she has worked for the last several years, including current CIA General Counsel Stephen Preston, who has been nominated to be DoD General Counsel.

But the CIA will be getting a real gem.   Having served at CIA (and as NSC Legal Adviser), I can attest that CIA does not adjust easily to outsiders.   But I think Avril will be different and that CIA officials will quickly come to love and respect her.  Although this move is unsual, Avril will be a good pick for CIA.

The ACLU has filed a lawsuit against the NSA in the Southern District of New York challenging the constitutionality of the program that collects phone metadata. The ACLU statement says:

This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens. . . .It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.

The Washington Post, Politico, New York Times, and the Associated Press all have more details on the suit.

NYU Law’s Brennan Center for Justice has released a fact sheet about the surveillance programs: “Are They Allowed to Do that? A Breakdown of Selected Government Surveillance Programs.”

Elizabeth Goitein of the Brennan Center argues in Time that our classification laws are insufficient to deal with the reality—and that “we need fundamental reform of the classification system, so that leaks are no longer the only way to provide the public with information it has a right to know.”

The well-intentioned advice for Edward Snowden just keeps pouring in. Thomas Drake, also a former NSA employee who was accused of revealing classified NSA information, says Snowden should: “Be lawyered up to the max and find a place where it’s going to be that much more difficult for the United States to make arrangements for his return. . . . And always check six, as we said when I used to be a flyer in the Air Force. Always make sure you know what’s behind you.” Reuters has more.

The Economist distills the “real problem” behind the leak controversy: not that the government is spying on us, but that the government is asking Google to turn over what it knows about us.

Paul R. Pillar, nonresident senior fellow at the Brookings Institution, put things in perspective in the National Interest, pointing out that when he was involved in a Department of Defense study in 1997 about data collection, everyone was excited about it:

The resulting report recommended aggressive exploitation of the then-new World Wide Web and data-handling technology available in the private sector to perform such collection and exploitation. The report talked about the importance of exploiting “meta-information” on use of the Internet as well as substantive information possibly pertinent to terrorist threats. The term “data mining” was used, not as a dirty word but instead as a descriptor of the kind of technology that the government ought to employ more extensively. Perhaps as a reflection of the fact that it was mainly scientists and engineers and not lawyers who wrote this part of the report, there was no mention of drawing fine lines or indeed any lines between collection abroad and within the United States.

Snowden may have overstated the authority he—and the NSA—had to wiretap individuals, according to experts interviewed on National Public Radio’s Morning Edition.

Greg Miller describes the parallels between Snowden and Bradley Manning in the Post.

The AP has the latest on concerns from lawmakers on Capitol Hill about the surveillance programs. Members of the House received a full briefing on the programs from NSA, Department of Justice, and FBI officials this morning—and are saying they remain unsatisfied with the information they received. The Hill reports.

In other news, as Bobby noted this morning, the White House has threatened to veto the House version of the NDAA. Jeremy Herb of the Hill explains.

Peter Bergen and Jennifer Rowland write in CNN about Ayman al-Zawahiri’s letter banning the merger of Al Qaeda in Iraq and the Syrian Al Nusra Front—demonstrating that “Zawahiri considers himself and the al Qaeda core to be still relevant and very much in charge of the global jihadist movement.”

CNN also reports that jury selection for Maj. Nidal Hasan’s court martial has been stalled after Hasan fired his lawyers. He is accused of killing thirteen people and injuring dozens in a shooting rampage at Fort Hood.

According to Agence France Presse, NATO’s military chief Secretary General Anders Fogh Rasmussen has warned that the alliance lacks readiness to respond to threats and is suffering from capacity shortfalls because its members aren’t doing enough.

Rod Nordland of the Times has more on yesterday’s Taliban attack near the Kabul Supreme Court.

Four Lebanese citizens have been sanctioned by the Treasury Department for allegedly fundraising and recruiting for Hezbollah, says Reuters.

Bagram prison may now be in Afghan hands—but the U.S. continues to maintain control of the approximately sixty non-Afghan detainees that are still held there. AFP has the details.

And, forget tipping the pizza delivery guy—”DomiCopter” is here. From Fox News, it’s today’s Moment of Drone 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 blog, 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.

OMB has issued a Statement of Administration Policy (SAP) pointing out White House objections to various elements in pending NDAA legislation (H.R. 1960, the HASC NDAA FY’14 bill), and threatening to veto the legislation if changes are not made.  There are, of course, many different points of contention.  I’ll highlight two sections of the SAP that may particularly interest Lawfare readers: Read more »

Wells already flagged yesterday’s news re: General Martins’ apparent skepticism about the availability of conspiracy and military commission charges in future military commission cases (at least those brought against the current Guantánamo detainees, all of whom could raise the same ex post facto argument as the one at the heart of Hamdan II). As Wells rightly suggests, it certainly seems as if the Chief Prosecutor is not optimistic that the en banc D.C. Circuit will come out the other way in Al-Bahlul (and as we’ve suggested before, it’s hard to disagree given the current composition of the court). Even with the addition of Judge Srinavasan (who may well recuse based upon his recent stint in the SG’s Office), the government would still need to sway two Democratic appointees given that Judge Kavanaugh wrote for the majority–and was not materially constrained by prior circuit precedent–in Hamdan II.

With that in mind, I thought I’d flag an amicus brief filed on Monday that I co-authored on behalf of the National Institute of Military Justice (NIMJ) in support of Al-Bahlul before the en banc D.C. Circuit, which may help to reinforce General Martins’ skepticism. (Details below the fold…)

Read more »

We are back at Fort Meade, ready to cover today’s almost live motions hearing in United States v. Al-Nashiri. The festivities will begin at 0900. Read our coverage of yesterday’s hearings here. We will update this post with links to our coverage; those individual posts will be published on our Event Coverage Page.

June 12 Session #1: Housekeeping

June 12 Session #2: Rules for Exclusion and Inclusion

June 12 Session #3: Testimony on Monitoring, Part I

June 12 Session #4: On Vicarious Liability

June 12 Session #5: Final Thoughts on the Conspiracy Charge, and Defense Security Officers

Last week (which seems almost an age ago) when the NSA telephone call meta-data portion of the NSA disclosures first broke, Ben wondered about how an application could be written that would satisfy Section 215′s requirements.  As Ben noted, Section 215 only allows an order of disclosure based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”   How, he asked, could anyone write such an application for what is, in essence, the metadata for every telephone call that happens inside the United States and every call that occurred between the United States and another country?  [And, as an aside, if I had to guess why foreign-to-foreign metadata is not covered it is because the US believes that no FISA order is required for that data ... so it may be collected even without an order.]

Turns out that, at least in my view, writing such an application would be pretty easy.  And when I say “easy” here I mean easy  in the sense of technical description.  I really don’t know how a whole database might be construed as a “tangible thing,” though I assume there is a legal opinion saying so.  What I am talking about is just the question of big data manipulation.

And on that score the science of big data analytics is clear — large databases are effective in establishing patterns only to the extent they are actually comprehensive.  If your argument is that we need to do a social network analysis to find terrorist connections, then you need the entire network to provide the grist for the mill, so to speak.  That, almost surely, is what DNI Clapper meant when he said: “The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time.”

And, so, that brings us to Paul Revere.  Readers who want to see how social network analysis can be done from data sets will find most interesting (and amusing) this post by Kieran Healey (a sociology professor at Duke) — “Using Metadata to find Paul Revere.”  Healy did a very simple form of matrix analysis using only two factors — the name of a person and the name of the political clubs he belonged to — and applied it to the colonist revolutionaries.  The names were familiar — Sam and John Adams — as were the clubs (the North Party and the Long Room Club, for example).  He used data collected from historical records by David Hackett Fisher that might well have been available to the British at the time of the revolution.

The results demonstrate the power of matrix analysis.  And, notably, this is only analysis of metadata (who belonged to which clubs) and not at all related to any of the content of what happened inside those clubs.

What he found is quite stunning for those who don’t know big data.  Perhaps it’s a bit of a spoiler to say so (and I urge you, if you are interested, to read the whole paper, which is quite entertaining) but it turns out that the data pop out one man as the lynchpin for a large fraction of the organization of the clubs and the men in Boston — Paul Revere.  And while, in historical retrospect he may not have been THE leader of the revolution, it is pretty clear that he was a significant operative in the revolutionary operations.  And with just two fields of data British counter-intelligence of the era might have learned about his significance.  [Note, of course, that more fields of data gives even greater granularity and fidelity to the conclusions.]

And that, I think, is the answer to the relevance question.  It is quite easy, in fact, to say that the large data set can, with appropriate manipulation, reveal the organizational details of social structures.  Terrorist activities are social structures of that sort.  To my mind it is pretty clear that there are reasonable grounds to believe that the telephone call metadata data base is relevant to the discovery of that structure and therefore relevant to an investigation of those terrorists.  I’m not at all surprised that the FISA Court agreed.

Two final points:  I’m being descriptive here, not normative.  Just because it’s effective and legal doesn’t mean it is wise.  And, the technique is, of course, value neutral.  It can be used to discover links for other types of groups and it can be used in other large data sets.  The limits we set are only constraints of law — the technology is not self-limiting.

My Brookings colleague William Galston—political theorist, former White House domestic policy adviser, and all-around wise mind—writes in with the following thoughts on the NSA and data-mining:

Alexander Hamilton is not famous as a foe of robust governmental power, but even he worried about the impact of national security concerns on civil liberties.  In Federalist  No. 8, he observed that

Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel [even] nations the most attached to liberty to resort to institutions which have a tendency to destroy their civil and political rights.  To be more safe, they at length become willing to run the risk of being less free.

Hamilton’s argument is at the heart of my reservations about the surveillance state we have

built in the wake of 9/11.  I do not doubt the good faith of the presidents who have pushed for these powers, the legislators who have granted them, or the judges who have overseen their use. I am open to the argument that the programs recently revealed do not breach the bounds of existing statutes—although, as Robert Chesney and Ben Wittes have recently pointed out, the executive branch’s expansive interpretation of Section 215 of FISA is at least surprising.  And I have no idea whether the FISA Court’s order to Verizon would survive a 4^th Amendment challenge.

My concerns are civic and constitutional in a much broader sense.  On paper, checks and balances are built into the surveillance system.  In practice, it’s not so clear. Members of Congress in possession of the relevant facts were barred from discussing them publicly, and a skeptic might worry that the FISA Court—which almost never turns down surveillance requests—has acted as a rubber-stamp for the executive branch.

The driving principle of our constitution is the fear of tyranny. Madisonian institutionalism is designed to prevent dangerous concentrations of power, in part by setting constitutional institutions against one another, in part by allowing the people to see and assess what is being done in their name. I am increasingly skeptical that our surveillance state meets either of these tests.

I never thought that George W. Bush had tyrannical tendencies, and I certainly don’t think that Barack Obama does. But the new mechanisms of surveillance are like a weapon that can be used for both benign and malign purposes. To honor our constitution’s anti-tyranny principle, our institutions must be designed to safeguard our liberties even when the holders of public power are determined to override them.

It is true that guns don’t kill people; people kill people. It is also true that guns make it easier to kill people. It may be true that as currently staffed and administered, the new institutions of surveillance do not threaten our liberties. It is also true that in the wrong hands, they would make it much easier to do so.

While the framing of survey questions on this question affects the results, it is probably the case that a majority of Americans is prepared to accept current policies. But that’s Hamilton’s point: fear can drive us to subordinate liberty to security. Obama is right: there are real tradeoffs here, and we can’t have 100 percent of everything we value. It is time for us to ask ourselves—as a country—whether the balance we’re striking is the right one.  To do that, the people and their representatives must be in possession of the facts—and empowered to discuss them freely.  Our government should stop asking us to sacrifice democratic deliberation on the altar of secrecy.

Five years ago today, the Supreme Court handed down its 5-4 decision in Boumediene v. Bush, holding that the Constitution’s Suspension Clause “has full effect” at Guantánamo Bay, and that the review scheme provided by the Detainee Treatment Act of 2005 was an inadequate substitute for the judicial review thus required by the Constitution. Boumediene thereby ushered in the flood of habeas litigation that has been such a jobs program for, among others, many of those who write for this blog.

On its fifth anniversary, it’s tempting to revisit the interminable debate over why the Supreme Court’s decision hasn’t had a more decisive impact in helping to close Guantánamo–and why 166 men remain detained there today (both of which probably have a lot to do with the lack of attention otherwise being paid to this date). But I thought I’d offer a somewhat different reflection–which is to remind ourselves of what the alternative was…

Read more »

A slew of news reports have discussed whether Snowden’s choice of Hong Kong as a haven of sorts was a wise one.  These reports tend to note the existence of a U.S.-Hong Kong extradition treaty and to describe the relatively smooth extradition practice that exists between those governments.  But the stories tend to overlook the fact that extradition is not the only means by which foreign states (or governments) can transfer people to the United States to stand trial.  As the State Department’s Foreign Affairs Manual makes clear, the United States may ask other countries to return individuals to the United States by means of deportation or expulsion.  (See, for example, 7 FAM 1642 – Deportation of Fugitives to the United States.)  This is particularly viable where the wanted person is a U.S. national.  According to the FAM, U.S. authorities set this type of request in motion as follows: The Department of Justice gives the Department of State a copy of the arrest warrant for the fugitive and asks State to revoke the fugitive’s passport.  After State revokes the passport, it notifies the U.S. Embassy (or, in a case such as Hong Kong, the U.S. consulate) in the country in which the fugitive is located.  The Embassy or Consulate then approaches the host government with a request for expulsion or deportation, if such a process is authorized by the host government’s laws.

Different states have different deportation processes, presumably with varying levels of procedural protections.  While I am no expert on the laws of Hong Kong, it appears from this report submitted by the Hong Kong Human Rights Commission to the Human Rights Committee (which oversees states’ implementation of the ICCPR) that the Chief Executive of Hong Kong may issue a removal or deportation order and that the person subject to that order (assuming he lacks a “right of abode” in Hong Kong) does not have a right of review of that decision under Hong Kong’s Bill of Rights.  [If I am wrong about this, I would welcome corrections.]

Assuming Snowden remains in Hong Kong, the United States might decide to try to obtain custody of Snowden through the extradition process because it concludes that extradition is the most legally airtight process.  But it might decide instead to pursue the deportation/expulsion avenue for purposes of expediency (and because U.S. courts have tended to uphold U.S. prosecutions of individuals brought before the court via means other than extradition).  Thus, even if Snowden flees to a state with which the United States does not have an extradition treaty, he is hardly home-free.  Snowden can breathe a little easier only if the state in which he ends up has a very bad political relationship with the United States, is willing to grant Snowden asylum, has very stringent laws regulating deportation, or has in place other legal bars that render it difficult for the requested state to accommodate a U.S. deportation or expulsion request.

So the only people who are NOT allowed to read any of the material that Snowden disclosed are Federal employees or contractors who still carry security clearances (like me).  I got the following earlier today:

Per Computer Network Defense Service Provider (CNDSP)/ U.S. CYBERCOM

06072013

Importance: High

Classification: UNCLASSIFIED

Caveats: FOUO

ALCON,

Description:

Recently, news source websites some operated by CNN, MSN, ABC News, and other reputable news provider companies, have recently posted possible Classified content on their website.  At this time, ARCYBER is treating incidents where unclassified DOD systems view the classified document(s) that are posted on the news source sites as information spillage.  To prevent further incidents of spillage, USCYBERCOM recommends refraining from browsing/navigating/opening the web link to the content that are hosted on the news source sites until further notice.

As a reminder if you detect a spillage incident related to this issue, report the incident immediately through your government management chain they will make the decision on how to handle the situation, also notify the our appropriate component IMO and/or the Help Desk.

Mitigation:

Awaiting further guidance from USCYBERCOM, until then please refrain From browsing/navigating/opening the web link to the classified content Until further notice.

Seems a bit like closing the barn door after the horse is gone, no?

The White House has now officially announced the President’s intent to nominate Stephen Preston as General Counsel of the Pentagon.

The statement says in relevant part:

Stephen W. Preston, Nominee for General Counsel, Department of Defense
Stephen W. Preston is General Counsel for the Central Intelligence Agency.  Prior to his appointment in 2009, he was a partner at WilmerHale, where he was Co-Chair of the Defense and National Security Practice.  He joined WilmerHale in 1986, and later returned in 2001 after serving at both the Pentagon and the U.S. Department of Justice.  From 1998 to 2000, Mr. Preston was General Counsel of the Department of the Navy.  From 1995 to 1998, he was Deputy Assistant Attorney General at the U.S. Department of Justice.  From 1993 to 1995, Mr. Preston was Principal Deputy General Counsel of the Department of Defense, during which time he also served as Acting General Counsel.  Mr. Preston received a B.A. from Yale University and a J.D. from Harvard Law School.

CIA Director John Brennan sent around the following message to the agency’s workforce:

Subject: Message from the Director:  President Obama to Nominate Stephen Preston as DOD General Counsel

Colleagues:

The White House today announced President Obama’s intent to nominate our General Counsel, Stephen Preston, to be General Counsel of the Department of Defense.  The White House statement is attached below. Read more »

That’s the essence of Jane Sutton’s Reuters story.    Not exactly unexpected news, given recent D.C. Circuit decisions, a likely-though-still-uncertain ruling from that same court sitting en banc, and prior statements by the Chief Prosecutor.  At any rate, the piece begins as follows:

Far fewer prisoners will be tried in the Guantanamo war crimes tribunals than the Obama administration originally planned because a recent court ruling cast doubts on the viability of some charges, the chief prosecutor for the tribunals said.

The president’s Guantanamo Review Task Force had said 36 detainees could be prosecuted, but the tribunal’s chief prosecutor put the figure at 20 at most.

The number set by the task force after a review completed in 2010 was “ambitious” in light of a recent court ruling, said Army Brigadier General Mark Martins, the chief prosecutor for the tribunals.

He said captives who would be prosecuted by the Guantanamo tribunals included the seven whose trials are finished and the six facing pre-trial hearings this week and next.

The drastic scaling back of the Guantanamo prosecutions comes after a U.S. appeals court in Washington threw out the conviction of Osama bin Laden’s former driver, Salim Hamdan, who was found guilty in 2008 of providing material support for terrorism.

Keith Bradsher of the New York Times reports that Hong Kong is likely to extradite Edward Snowden if asked to by the U.S. government.

From the Department of You Really Can’t Make This Up: Russia has called Snowden a “human rights activist” and has said it would consider an asylum request from him. Julian Assange, meanwhile, has invaluable advice for Snowden: “I would strongly advise him to go to Latin America.” CNN has more.

The Post tells us that a full-scale investigation has begun into how Snowden was able to gain access to the information he leaked. The Times also reports on how and why Snowden gave his media contacts the information he did. And Kim Zetter of Wired magazine explains why what Snowden did was the “ultimate insider attack.”

The Los Angeles Times, however, reports that Snowden’s claims that “at any time [he could] target anyone, any selector, anywhere” are a huge overstatement of what the NSA can legally do.

Politico has ten things to know about Edward Snowden for the next time you’re playing Trivial Pursuit.

To those who thought these revelations would lead to a robust public debate about the government’s surveillance capabilities: the Times thinks otherwise, saying the highly classified nature of these programs and the lack of political pressure from Congress may not lead to much. The Post also discusses the reluctance of the courts to stand up to the government in the face of national security concerns. Bobby is quoted in the piece.

Glenn Kessler of the Post gives President Obama “one Pinnochio” for the president’s claim over the weekend that “every member of Congress has been briefed on this program.”

Anjali Dalal, Resident Fellow at the Yale Law School, explains in Balkinization why the secrecy surrounding surveillance “threatens both the deliberative process and public accountability.”

Editorials abound: The Times,on the questions our leaders could answer about these surveillance programs. The Wall Street Journal arguing that the only real scandal here is that Snowden leaked highly classified material. And the Post, arguing that:

there is no indication that the court or principal members of Congress were cut out of the loop as the government applied this authority. Nor is there any evidence that the authorities were abused or that the privacy of any American was illegally or improperly invaded. If there is a scandal here, it is that a government contractor of Mr. Snowden’s stature had access to highly classified material.

Carlo Munoz of the Hill reports that a bipartisan group of eight senators introduced legislation today requiring the Attorney General to declassify significant FISA court opinions.

Beyond the Beltway, a Washington Post-Pew Research Center poll reveals that most Americans aren’t fussed about this scandal:

Fully 45 percent of all Americans say the government should be able to go further than it is, saying that it should be able to monitor everyone’s online activity if doing so would prevent terrorist attacks. A slender majority, 52 percent, say no such broad-based monitoring should occur.

In other news, Ellen Nakashima of the Post reports that the U.S. intelligence community sabotaged the publication of the latest issue of Al Qaeda’s Inspire magazine.

As Wells noted last night, Guantanamo Bay detainee Abd Al Hadi Al-Iraqi has been charged in the military commissions. Reuters has more, as does the Associated Press.

Carol Rosenberg of the Miami Herald previews Abd al Rahim al Nashiri’s pre-trial hearings, which Wells and Raffaela are live reporting from Fort Meade.

Jason Burke of the Guardian discusses de-radicalization camps, and whether they actually work, at the Guardian.

According to Carlo Munoz of the Hill, Taliban militants have targeted members of the country’s supreme court in their latest attack. 17 civilians were killed and 40 were critically wounded.

And, as Jen and Steve mentioned yesterday, Rep. Adam Schiff has introduced a bill today to sunset the AUMF by the end of 2014, reports Tal Kopan of Politico.

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 blog, 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.

I know it is hard to turn our attention away from the NSA spying programs, but it might be worthwhile to consider that other significant threats to American security exist, possibly even ones greater the potential for government abuse.  To that end, this report, that came across my desk today, is chilling.  In a paper entitled “Breakthrough Silicon Scanning Discovers Backdoor in Military Chips” two researchers from the UK discovered evidence of manipulations in the actual silicon wafers themselves (not any firmware on the chip) that rendered chips vulnerable to exploitation. To my knowledge (which is not comprehensive!) this is the first such instance of this type of exploit ever publicly disclosed.  Here’s the abstract:

This paper is a short summary of the first real world detection of a backdoor in a military grade FPGA. Using an innovative patented technique we were able to detect and analyse in the first documented case of its kind, a backdoor inserted into the Actel/Microsemi ProASIC3 chips. The backdoor was found to exist on the silicon itself, it was not present in any firmware loaded onto the chip. Using Pipeline Emission Analysis (PEA), a technique pioneered by our sponsor, we were able to extract the secret key to activate the backdoor. This way an attacker can disable all the security on the chip,reprogram crypto and access keys, modify low-level silicon features, accessun encrypted configuration bitstream or permanently damage the device.Clearly this means the device is wide open to intellectual property theft, fraud,re-programming as well as reverse engineering of the design which allows the introduction of a new backdoor or Trojan. Most concerning, it is not possible to patch the backdoor in chips already deployed, meaning those using this family of chips have to accept the fact it can be easily compromised or it will have to be physically replaced after a redesign of the silicon itself.

Your correspondents return to Fort Meade in order to observe—via almost live, closed circuit television—four days of pretrial proceedings in United States v. Al-Nashiri.  The hearing in the capital military commission is set to begin at 9 a.m. down at Guantanamo. Read our preview post and the Chief Prosecutor’s statement about this week’s hearings.

The format is the same as always: posts will appear throughout the day, in our “Events Coverage” section, with links to the posts noted below.

June 11 Session #1: Departures and Arrivals

June 11 Session #2: Who Gets to Talk about IT Issues

June 11 Session #3: COL Bogdan Will Do Just Fine

June 11 Session #4: Spiraling Towards Contraband Policy

June 11 Session #5: A DIVO, No?

June 11 Session #6: On Recording 802 Conferences

June 11 Session #7: “It’s All Hearsay”

June 11 Session #8: What Habeas Counsel Knows

June 11 Session #9: A PSR Challenge

Americans deeply distrust power and secrecy and are right to do so.  Intelligence agencies are powerful and secret—but necessary. Reconciling these propositions is a fundamental task in a democracy. We accomplish it only when the rules under which the agencies operate are approved by the Congress after public debate, when the operational details are kept secret, and when we have a robust oversight apparatus to give us comfort that the rules are being followed. So how are we doing?

We have supposedly learned three things in recent days. First, that the National Security Agency, under orders of the Foreign Intelligence Surveillance Court, systematically collects call records in the country.  Second, that NSA, under orders of the same court, also collects the contents and records of foreigners’ communications touching the U.S. And third, that our military actually makes contingency plans to fight a cyber war if push came to shove.

Let’s dispose of this last item first.  It is the military’s job to be prepared.  If they were not preparing for a cyber war contingency, they’d be derelict.  Few military issues have had a more vigorous public airing recently.  The only news here is that a low-level contract employee saw fit to release top-secret military planning documents.  Only the perpetually dyspeptic will regard this crime as a public service.

As for intelligence collection, members of the public who haven’t been paying attention now know two things that those who were paying attention have known for some time:  First, that telephone companies keep call records, that the government has the legal ability to obtain and store those records and does so, and that those records are not protected under the Fourth Amendment’s warrant requirement.  Call records show such things as whom you called, when and for how long.  Unlike contents of a call or letter, they’re not constitutionally protected because they are like the information on the outside of an envelope, which lots of people can see and are thus not private.

What may be genuinely surprising in some quarters, however, is that this collection can occur under the Foreign Intelligence Surveillance Act.  For that to happen, at least one, and probably several, federal judges had to approve the arrangement, and so did the House and Senate intelligence committees.  That’s because even though NSA can collect the data, it cannot review it without FISA approval, based on a specific need.

Why is this necessary?  Because if we find someone associated with a terrorist network operating in this country, we cannot roll up that network without knowing whom that person has already been talking to.  Hence the need to examine historical data.  At that point, the Justice Department (not the NSA) goes to the FISA Court, explains the situation, and gets a specific approval.

The second thing we supposedly learned about intelligence collection is that NSA collects foreign communications from U.S. carriers even if the communications involve Americans—but only if the FISA court approves how it’s done.  (Americans cannot be targeted without specific approval.)  Previously there was no disagreement that NSA could collect information that touched our shores if NSA collected it overseas, but it was forbidden to collect it here.  This rule did not protect privacy.  It simply governed the place where collection could be done.  We were telling NSA, you can collect these communications if you do it the hard way—overseas.  But you can’t do it the easy way, here at home.  Not to mince words, this was idiotic.  That’s why Congress changed the rule after vigorous debate when it reauthorized FISA in 2008.

The President has welcomed a public debate on these arrangements, but let’s not kid ourselves that they are news. And let’s not kid ourselves about something else:  Given the current danger, no President and no Congress will fail to operate programs like these. They have been effective. And after a bomb goes off, no President and no Congress will be able to explain why such programs were halted. A large majority of Americans understands this.

This brings us to the last question:  Are the rules being followed?  If we want to actually do something to limit governmental intrusion in our lives, this is the rub.

The United States has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth.  We have well staffed intelligence committees in the House and Senate.  The National Security Division of the Justice Department rides herd on the intelligence agencies.  The FISA Court gets detailed reports of collection under its orders.  NSA has a robust compliance organization.  It also has an inspector general with wide powers operating outside the chain of command.  None of our European allies controls intelligence activities with comparable rigor.

When I became NSA inspector general in 2002, my office had been examining collection rules and the training program for collectors and analysts.  It assumed that if the rules were compliant with law and if the training was good, the rules were being followed.  I rejected that approach, and my office began to audit actual collection practices.  This practice—and only this practice—can assure the public that the law is obeyed, and it should be designed into every sensitive collection program.