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The Week That Will Be

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Monday, January 26, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, January 27th at 9:30 am: The Brookings Institution will host Ambassador Victoria Nuland, Assistant Secretary of State for Europe and Eurasia, for an address entitled Unity in Challenging Times: Building on Transatlantic Resolve. In her speech, Ambassador Nuland will discuss how the events of the last year have breathed new life into the Transatlantic alliance. Brookings Senior Fellow Fiona Hill will provide introductory remarks and moderate the conversation. RSVP here.

Wednesday, January 28th at 11:30 am: At the Williard InterContinental Hotel, the Center for a New American Security will host a Transatlantic forum discussion on The Third US Offset Strategy and its Implications for Partners and Allies. Robert Work, Deputy Secretary of Defense, will deliver a keynote address and General Jean-Paul Palmeros, Supreme Allied Commander Transformation NATO, will provide additional remarks. Michele Flournoy will moderate. Register here.

Wednesday, January 28th at 1 pm: In October, the leadership of the Chinese Communist Party declared the “rule of law” the central theme for the Fourth Plenum of the 18th Central Committee, committing to reforms that will transform China’s legal culture and history. Following this historic announcement, the Brookings Institution will host Madame Tao Kaiyuan, Vice President of the Supreme People’s Court of China for a conversation on the Rule of Law in China. Senior Fellow Cheng Li will provide introductory marks and moderate the discussion. RSVP.

Thursday, January 29th at 10 am: The Wilson Center invites you to join them for a major address by Jeh Johnson, Secretary of the Department of Homeland Security. Jane Harman, director of the Wilson Center, will moderate the discussion afterwards. For more information, visit the event announcement.

Friday, January 30th at 4:30 pm: The Institute of World Politics will host Kenneth Daigler for a discussion entitled Spies and Intelligence: The American Revolution and Contemporary Parallels. Daigler is a former CIA officer and author of Spies, Patriots, and Traitors: American Intelligence in the Revolutionary War, and will highlight portions of his book to illustrate the historical paradigm of early intelligence activities and the logical connection between those early American intelligence actions and more modern operations. RSVP.

Supreme Court to Decide Another Foreign Sovereign Immunities Act Case

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Sunday, January 25, 2015 at 2:56 PM

The Supreme Court granted certiorari on Friday in OBB Personenverkehr AG v. Sachs, a case involving the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA).  Although the case was the subject of an en banc decision by the Ninth Circuit, the grant nonetheless comes as a bit of a surprise, both because the United States government opposed it and because the issues presented are not the subject of a clear conflict among the courts. Nevertheless, the case is likely to be of broad significance for FSIA litigation in part because it has been more than two decades since the Court directly addressed the statute’s commercial activity exception. It will also contribute to the Roberts Court’s growing legacy of significant foreign relations-related cases.

The first issue presented is whether the activities of a ticket agent in the United States can be imputed to state-owned, Austrian rail company OBB Personenverkehr AG (a “foreign state” under FSIA)—to show that the latter engaged in “commercial activity carried on in the United States.” This issue might be resolved based solely on the statute’s definitions of an “agency” and of a “foreign state” under 28 U.S.C. §1603 (a) and (b) or also by application of the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec) and other common law principles of agency.  Although the statutory definition may appeal to the Court, the government argues that the definitions in § 1603 were not meant to resolve issues of attribution and imputed conduct under 28 U.S.C. § 1605(a)(2), which are governed in part by the alter ego analysis used (in a different context) by the Court in Bancec and by other agency principles.  The issue of imputed conduct arises in a variety of ways under the FSIA, so the Court’s resolution of this issue could be significant beyond the first prong of the commercial activity exception.

The second issue presented is whether a tort action for personal injuries sustained outside of the United States is “based upon” the sale of the ticket in the United States, when the ticket sale is necessary to the duty of care element of the plaintiff’s claim.  The Supreme Court reasoned in footnote 4 of Saudi Arabia v. Nelson that “based upon” does not necessarily “require that each and every element of a claim be commercial activity by a foreign state.” The Court has not opined on whether a claim is “based upon” commercial activity if that activity is necessary to only one element of the claim, although lower courts, like the Ninth Circuit in this case, have held that it is.

The case may also give the Court an opportunity to bring its recent personal jurisdiction cases to bear on the interpretation of the FSIA, and to decide whether the Fifth Amendment Due Process Clause applies to some or all entities defined as “foreign states” by the FSIA, a definition which includes agencies and instrumentalities of foreign states. The Court assumed but did not decide in Republic of Argentina v. Weltover that foreign states are “persons” for the purposes of the Due Process Clause.

Beyond its potential significance for FSIA cases, OBB Personenverkehr v. Sachs may provide a window on longer-running trends in the Court’s approach to foreign relations cases.  The Court took the case shortly after the Solicitor General filed a brief opposing certiorari. In Samantar, the Court did just the opposite in 2014 by denying certiorari after the government argued that the Court should grant, vacate, and remand (although that case may still reach the Supreme Court again). These actions by the Court may be tied to what I have argued is a broader trend of waning deference to the executive branch in foreign relations cases. It will be interesting to see how the Court deals in OBB Personenverkehr with the concern that interpreting the commercial activity exception broadly could generate friction with other countries and put the United States out of step with international practice. The U.S. government’s brief evinces little concern about these issues, contrary to the amicus brief by the Netherlands and to then-Chief Judge Kozinski’s dissent from the Ninth Circuit’s en banc opinion. The Court has recently appeared to give the government’s views on such matters little weight, as illustrated both by questioning directed to the Solicitor General at the Zivotofksy oral argument in November and by the Court’s decision last Term in another Foreign Sovereign Immunities Act case, NML Capital v. Argentina.

The Foreign Policy Essay: The Kurdish Right to Self-Governance

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Sunday, January 25, 2015 at 10:00 AM

Editor’s Note: The question of the Kurds is one of the knottiest in the Middle East—and that is saying something. Kurdish rebellions have led to tens of thousands of deaths in Iran, Iraq, and Turkey, and now the Kurds in Syria are at the heart of that country’s civil war. Michael Eppel of the University of Haifa argues that the current upheaval in the region may be creating a historic opportunity for the Kurds in their quest for independence and notes that important countries like Turkey are slowly accepting that the Kurds should have more mastery of their own fate.

***

The Kurds, numbering 25 to 35 million, are the world’s largest population group with a developed, modern national movement but without a state. Although Kurdish distinctiveness and the signifiers kurd and akrad have existed in the discourse of the Kurds and among their neighbors since ancient times and certainly since the beginnings of Islam and the Arab conquest, there has never been an independent Kurdish state in Kurdistan.

Throughout most of its history, the mountainous and landlocked Kurdistan region was divided among strong neighbor states that arose in the plateau of Iran; the kingdoms and empires of Mesopotamia; and the states that developed in Anatolia: Byzantium in the Middle Ages, the Ottoman Empire since the sixteenth century, and Turkey in the twentieth century. Until the end of World War I, Kurdistan was divided between the Ottoman and Iranian empires, and since then has been divided among Turkey, Iran, Iraq, and Syria.

Eppel photo with borderThe direct reasons for the non-establishment of a Kurdish state after WWI were the British decision to include southern Kurdistan within the Iraqi state and the weakness of the Kurdish national movement and Kurdish political forces. The development of modern Kurdish nationalism was accelerated after the end of WWI with the demise of the Ottoman Empire and the ascendancy of Turkish nationalism and Kemal Ataturk’s authoritarian nationalist ideology; however, tribal, clannish, and local solidarities remained dominant in Kurdish society. With the foundation of the Kurdish Democratic Party in Iraq in 1946 (later renamed Kurdistani Democratic Party, or KDP), the modern nationalist movement became a central Kurdish force, and the mainstream of the political forces of the Kurdish national movement became one of the most progressive nationalist movements in the Middle East.

Since WWI, the possibility of an independent Kurdish state has been a nightmare for Turkey, Iraq, Iran, and Syria. Creation of a Kurdish state would tear wide territories from those states, and their leaders fear it would encourage other minorities to demand independence or autonomy. The threat of Kurdish nationalism has been used by regimes in Turkey, Iraq, and Iran as a pretext to build forceful militaries and to preserve the dictatorial, autocratic characteristics of the regimes. The danger of Kurdish separation was used by the Kemalists in Turkey to forge Turkish nationalism and as the justification for building and preserving the authoritarian regime and its complex military establishment. The Kurdish insurrections in Turkey in the 1920s and 1930s were suppressed brutally by the Turkish army, which killed thousands of Kurds and annihilated the Kurdish population of the Dersim region in 1937. The Turkish insistence on denying Kurdish demands for autonomy and cultural rights led to an insurrection led since the 1970s by the PKK (leftist nationalist Kurdish organization in Turkey). Between 30,000 and 50,000 people were killed in the prolonged, bloody struggle.

The Iranian regime destroyed the Kurdish republic that existed for a few months in 1946. After the Islamic revolution in Iran in 1979, the Iranian forces suppressed the Kurdish nationalist forces and executed Kurdish nationalists. The persecution of Kurdish nationalists and Kurdish political forces by the Iranian authorities continues today. In Iraq, Kurdish demands for autonomy and the efforts of the Iraqi regimes to suppress the Kurdish national movement formed the background of a long chain of Kurdish rebellions and destruction of Kurdistan by the Iraqi army from 1961 to 1991. Read more »

UNCLOS on Trial in the South China Sea

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Saturday, January 24, 2015 at 4:00 PM

The latest installation of the Asia Maritime Transparency Initiative covers several recent developments in the region, including China and Japan’s progress towards an East China Sea crisis mechanism, Japan’s new record defense budget, and Taiwan’s decision to delay development work on Itu Aba island, following the revelation that a Chinese vessel was involved in the construction. This issue’s analysis, however, covers subject matter that should be of great interest to Lawfare readers—the ongoing arbitration between the Philippines and China over the South China Sea.

Jay Batongbacal leads off with Arbitration 101, a terrific primer on what has happened so far in the arbitration and what we might expect from the South China Sea case in the coming months. Batongbacal reviews the events that led the Philippines to initiate arbitration in 2013 and explores the legal basis within UNCLOS for it doing so. He explains how the International Tribunal on the Law of the Sea (ITLOS) has proceeded with the case despite China’s refusal to participate and discusses the submissions that have taken place so far, including the Philippines’ Memorial submission in March 2014, and the relevant papers released by China, Vietnam, and the United States in December 2014. He also documents how diplomatic tensions between the parties have ebbed and flowed since arbitration began.

Batongbacal reviews the core of the Philippines’ argument in the case: China’s nine-dash line claim is inconsistent with UNCLOS; China has illegally occupied or controlled eight features in the South China Sea and claims excessive maritime entitlements from them; China has unlawfully claimed or exploited resources within the Philippines’ EEZ and Continental Shelf. He also summarizes China’s counter-arguments in its December 2014 position paper: The arbitration is a dispute over territorial sovereignty over features in the Spratly Islands and Scarborough Shoal, which UNCLOS does not address and the Tribunal cannot solve; Even if the Tribunal could resolve the maritime dispute without dealing with sovereignty, it cannot rule on the Philippines’ claims without first undertaking a maritime delimitation, and the Philippines’ own maritime jurisdiction is still undetermined; China has previously opted out of compulsory dispute settlement under UNCLOS, and the Philippines’ decision to bring the case contravenes previous bilateral negotiation efforts between the two states. Finally, Batongbacal speculates on events that may occur in 2015 and influence the proceedings. He notes that the Philippines now has until March 15 to submit a response to China’s position paper, and that the Tribunal’s ruling on whether or not it has jurisdiction in the case will likely come sometime between mid-August and mid-December 2015.

Renato Cruz de Castro argues that South China Sea arbitration demonstrates how liberalism/legalism can be used to blunt realpolitik. The Philippines’ filing with the Tribunal shows that it won’t be cowed by China’s strong-arm tactics, he argues, and invokes the international community’s stake in the outcome of the case. Matthew Waxman disagrees: the arbitration is not a stark test of law versus might. Instead, the case has demonstrated that legal arguments and processes are elements of power that states can employ in pragmatic and nuanced ways, and integrate with their broader strategies towards maritime and territorial disputes. The Philippines has been able to challenge China’s nine-dash line before an international audience; China has boycotted the proceedings and refused to acknowledge the tribunal’s legitimacy, yet submitted its own brief nonetheless; Vietnam refused to formally join the case but submitted its own statement unexpectedly to support its Philippine neighbors and advance its own claims; And despite its neutral position on sovereignty disputes and its non-ratification of UNCLOS, the United States has cast doubt on China’s claims through its Limits in the Seas paper. Read more »

New Addition to Lawfare’s Roster: Herb Lin

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Saturday, January 24, 2015 at 2:52 PM

I’m delighted to announce that Herb Lin has joined Lawfare as a contributing editor. Herb has actually been writing for us for a while, so he needs little introduction to Lawfare reader. He is currently a senior research scholar for cyber policy and security at the Center for International Security and Cooperation and Research Fellow at the Hoover Institution, both at Stanford University. His research interests relate broadly to policy-related dimensions of cybersecurity and cyberspace, and he is particularly interested in and knowledgeable about the use of offensive operations in cyberspace, especially as instruments of national policy. In addition to his positions at Stanford University, he is Chief Scientist, Emeritus for the Computer Science and Telecommunications Board, National Research Council (NRC) of the National Academies, where he served from 1990 through 2014 as study director of major projects on public policy and information technology. In this capacity, over the years, he coordinated a number of reports on cybersecurity and biosecurity issues that had a deep impact on my thinking. Prior to his NRC service, he was a professional staff member and staff scientist for the House Armed Services Committee (1986-1990), where his portfolio included defense policy and arms control issues. He received his doctorate in physics from MIT.

It’s great to have him aboard.

The Lawfare Podcast, Episode #107: Tanvi Madan on the Future of the US-India Relationship

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Saturday, January 24, 2015 at 1:55 PM

With President Barack Obama on his way to India early next week, we asked Tanvi Madan, Fellow and Director of the India Project here at Brookings, onto the podcast to preview Obama’s trip and discuss what we can expect from the President’s second India summit in less than four months. It’s a trip that comes with much fanfare: it’s the first time that an American president has been invited as chief guest to Republic Day, and it’s also the first time a sitting American president has visited India twice. Some commentators have noted that this proximity of exchange reflects a shift in the fundamental nature of US-India relations. But can we expect the results of the meetings to match their hype? Practically speaking, what can be done to advance the bilateral relationship on trade, defense cooperation, and regional integration? And what role does India play in the broader US strategy in the Asia-Pacific region? Are the two powers “natural allies,” as Obama said in 2009, or just “strategic partners,” and why does the distinction matter in how we view ties to South Asia?

Earlier this week, Tanvi moderated an excellent discussion at Brookings with South Asia experts from around Washington previewing the President’s trip. The event also marked the launch of a briefing book, co-produced by the Brookings India Center in New Delhi and The India Project in Washington, D.C., on how the two countries can build a better relationship.

The Week that Was: All of Lawfare in One Post

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Saturday, January 24, 2015 at 10:00 AM

During President Obama’s sixth State of the Union address, Ben shared relevant passages from the text of the speech. After the address, Carrie Cordero pointed out the incongruence between the president’s statement that “The shadow of crisis has passed” and the myriad current global crises the country currently faces. Carrie went on to argue that the speech focused too much on process—getting an AUMF passed and reforming surveillance protocols—and not enough on results. Jack noted that President Obama’s calls for a new AUMF, reiterated (again) in the State of the Union address, hardly match his actual actions on the matter. Jack posited that the administration’s foot-dragging on the AUMF question reveals a greater concern for the president’s legacy than for effectively prosecuting the war. After President Barack Obama advocated the closure of Guantanamo in his State of the Union address, Ben decried the current state of the Guantanamo debate. Those against closing the facility rely on a mischaracterization of those actually detained in GITMO and their risk of recidivism, while those who argue for closure ignore the fact that our current detention will continue even if Guantanamo is closed and act as if Guantanamo is a bigger recruitment tool for terrorists than it really is.

Herb Lin drew some lessons from the Sony hack, ranging from the depth of the attribution problem to the avenues of proactive cyber action available to victims of a hack. In response to a New York Times piece that revealed that NSA had drilled into the Chinese networks that serviced North Korea (creating a covert cyber vantage point that provided some of the evidence of North Korea’s role in the Sony hack), Jack discussed how this leak indicates the relatively free hand that journalists have today in publishing classified material. Bruce Schneier pointed us to another Snowden document dump that details the NSA’s offensive capabilities in cyberspace.

In this week’s Foreign Policy Essay, Brookings scholar Jeremy Shapiro addressed France’s response to the Charlie Hebdo attacks, arguing that a few radical extremists are not the largest threat facing French society. The bigger threat, Jeremy explains, lies in overreactions to the threat of these radical extremists, which risk further alienating the target population while curbing the liberties of all citizens. Yishai Schwartz covered the blitz of arrests in France that followed the attacks, pointing out that, contra popular belief, the civil liberties enjoyed by the French–especially in relation to detention, judicial independence, and free speech–are actually narrower in some regards than those enjoyed by US citizens.

David Cameron has responded to the Paris attacks by pushing for legislation banning encrypted communications. Susan Landau explained that this will actually make the country more vulnerable to attack. Paul Rosenzweig wondered if the Paris attacks might push the EU to adopt a Passenger Name Records system similar to the American one that the EU has repeatedly criticized.

Ben and Andy Wang took the BBC—and other news media—to task on two counts. First, many press outlets have ignored the massacre of thousands of Nigerians by Boko Haram in Baga; second, whatever coverage this massacre does get has at times been superseded by coverage of GITMO that is fundamentally flawed.

Ben also shared some thoughts on the release of Ali Saleh Al-Marri from Guantanamo. The release of Al-Marri illustrates that any short-term gains in intelligence gleaned from interrogations held in military custody may come at the cost of long-term capacity to disrupt serious threats.

Wells informed us that the Obama administration has, in light of the chaos in Yemen, reinstituted an informal ban on transfers of GTMO detainees to Yemen. This ban, as well as Senator Kelly Ayotte’s (R-NH) proposed legislation banning the same thing, is somewhat redundant given that just one GTMO detainee was transferred there since 2009.

Recently, new Chairman of the Senate Select Committee on Intelligence Senator Richard Burr (R-NC) sent a letter to the Obama administration asking it to return all copies of the SSCI’s full report on the CIA’s detention and interrogation practices. Wells put us in the mind of an executive branch lawyer debating whether or not to heed the request.

Yishai discussed Israeli Prime Minister Benjamin Netanyahu’s decision to speak before Congress without consulting the White House, and noted that, while the speech may benefit Prime Minister Netanyahu in his upcoming election, the decision makes the Israeli issue a more partisan one in the US, thus hurting Israel in the long-term.

Andy walked us through the National Research Council’s recent report on alternatives to bulk collection by the intelligence community. Herb extracted several key points from the report, including that the distinction between bulk and targeted collection is far blurrier than the terms imply.

Paul gave us some of the cyber-news stories that we missed last week, one of which involves some frightful things called “Zombie Cookies.”

Bobby brought us the news that two Yemeni members of Al Qaeda have been captured in Saudi Arabia and transferred to New York, where they will face trial. He also mentioned the nature of the evidence involved in the case, which appears to be based on human, rather than signals, intelligence.

In a new installment of Lawfares Throwback Thursday series, Cody and I explored the history of the enclaves on the border between India and Bangladesh and the problems they pose for security, economic development, and diplomacy.

Ben shared news that Mexican authorities have found a drone that crashed en route to the US border while carry six pounds of methamphetamine.

Stephanie Leutert explained some of the intricacies of US immigration policy that complicate the answers to such seemingly simple questions as “How many people do we actually deport?”

This week’s Lawfare Podcast (Episode #106) featured a conversation with Daniel Reisner, former head of the International Law Branch of the Israeli Defense Forces. Daniel, Matt Waxman, and Ben’s discussion touched on the law of targeted killings, the role of morality in giving operational law advice, and much more.

The third episode of the Rational Security podcast resisted the urge to rehash the State of the Union and instead focused on the UAE,  among other non-State of the Union things.

In this week’s Steptoe Cyberlaw Podcast, Stewart Baker interviewed David Sanger, the reporter who broke the Stuxnet story, about the Sony hack, North Korea’s cyber capabilities, and the NSA’s offensive cyber operations.

And that was the week that was.

Today’s Headlines and Commentary

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Friday, January 23, 2015 at 1:33 PM

King Abdullah, the leader of Saudi Arabia, has died at 90, the New York Times reports. He assumed power in 1995 when his predecessor suffered a stroke, and then ascended to the throne in 2005. World leaders have eulogized the king as a careful reformer who maintained his country’s stability throughout the Arab Spring. His death sets up a complex transition of power within in the House of Saud as the critical US ally faces a multitude of challenges, including the specter of Islamic extremism and falling oil prices. The Washington Post explains the process, noting that the King’s 79-year-old brother, Prince Salman, will take power.

A less peaceful transition has occurred in Yemen: Days after his presidential palace was seized by Houthi rebels, the Yemeni president has resigned. The BBC notes the move came after the rebels appeared to renege on a peace deal mere hours after agreeing to it. In response to the ongoing upheaval, Reuters tells us, the US has removed more staff from its embassy, though officials insist that the embassy will remain open. Craig Whitlock covers how the chaos may threaten US counterterrorism efforts as the man who personally approved US drone strikes recedes from the scene. The Washington Post Editorial Board argues that the collapse of the Yemeni government, along with the Paris attacks allegedly orchestrated by the al Qaeda branch operating in Yemen, show the complete failure of President Barack Obama’s ‘partners’ strategy in counterterrorism.

A day after Iraqi and Kurdish forces mounted assaults around the Iraqi city of Mosul, a US general announced plans for a joint Iraqi-US offensive to retake the city this summer, according to the Wall Street Journal. General Lloyd Austin, the head of US Central Command, described the emerging contours of the Mosul operation, which will combine US-trained Sunni forces with Kurdish peshmerga. At the same time, US Ambassador to Iraq Stuart Jones claimed that the US-led coalition had killed more than 6,000 ISIS fighters since June – a claim that US Secretary of Defense Chuck Hagel later disputed, noting that was no measure of success in the conflict.

In London, the foreign ministers of 21 countries met yesterday to discuss strategy in addressing ISIS. The Journal reports that US Secretary of State John Kerry, speaking after the meeting, hailed significant progress in the coalition’s campaign against the terrorist group. At the same gathering, Iraqi Prime Minister Haider al-Abadi asked Western countries to allow deferred payment for weapons; the steep fall in oil prices has been disastrous for the oil-based Iraqi economy, making it difficult for the country to pay for the weapons it needs. The New York Times has more.

Reuters notes that the deadline for the ransom of two Japanese hostages imposed by their ISIS captors has passed with no indication of what has happened to the two men. Japan continued to fight for their release, but would not say if it would pay the $200 million ransom demanded by the group. The Daily Beast reveals that the current hostage crisis may have been averted, had the Japanese government not “interfered” in an attempt last year to negotiate for the release of the first hostage. A later, independent attempt resulted in the capture of the second hostage.

Rumors of an emerging ISIS stronghold in Afghanistan are still just rumors, the Christian Science Monitor explains. While there have been scattered reports of ISIS-affiliated Afghanis building followings in the country, these appear to mostly stem from rifts within militant groups, rather than from widespread acceptance of ISIS’s ideology and strategy.

In response to the news that Israeli Prime Minister Benjamin Netanyahu scheduled a visit to Congress without consulting the White House, neither President Obama nor Secretary Kerry will meet with the prime minister, Al-Monitor reports. The official justification for the move is that Prime Minister Netanyahu will face elections soon after his visit, though officials also intimated that the rejection is also retaliation for the prime minister’s secrecy in planning the congressional address.

In a letter posted on the website of a Hamas-run news channel, Mohammed Deif, Hamas’s military leader, exhorted Hezbollah to join with the group in fighting Israel. While the two groups support opposing sides in the Syrian civil war, the letter asserts that “The true enemy … is the Zionist enemy.” Reuters has more.

Days after Boko Haram rebels massacred thousands in northeastern Nigeria, the Nigerian national security adviser has said the country does not need UN assistance and that it and its neighbors are “in good shape” to fight the insurgents of Boko Haram, the BBC reports. The adviser claimed that nearly half of the Nigerian army was deployed to fight the group. However, the purported leader of Boko Haram said that his group had captured enough weapons in Baga, the scene of the massacre earlier this month, to crush the government’s forces.

The Nigerian national security adviser also called for a delay in next month’s national elections. The Financial Times notes that out of 68.8 million registered voters, 30 million have not yet received the requisite voting cards.

The Associated Press notes that, in Ukraine, separatist rebels flush with new Russian military machinery seem to be preparing for a major offensive on government forces. NATO officials have stated that previous flows of Russian heavy weapons have been followed by rebel advances. Additionally, the leader of the separatists has rejected any further peace talks and said that the rebels will continue to fight for more land.

The Paris terrorist attacks have exposed a split within German leaders over mass data collection, Bloomberg writes. German Prime Minister Angela Merkel and members of her cabinet have pushed for both national and EU laws enabling law enforcement to search the social networks of citizens for while looking for criminal or terrorist activity. However, the German envoy to the EU on digital affairs, who is affiliated with the ruling coalition’s junior party, has publicly denounced the mass collection of online data as a counterterrorism tool.

US and Cuban diplomats met yesterday to discuss the process of normalizing relations between the long-estranged neighbors, the Associated Press reports. Roberta Jacobson, the US State Department’s main diplomat for Latin America, led the US delegation; she stated that progress had been made, though the sides still had serious differences to address.

The Daily Beast breaks the news that the CIA’s top spy will step down from his post and retire from the agency. The retirement of the head of the CIA’s National Clandestine Service comes as the CIA’s director, John Brennan, considers restructuring the entire agency.

Bloomberg shares that Wesam El-Hanafi, a former Lehman Brothers employee, has received a 15-year sentence for aiding al Qaeda. El-Hanafi admitted to scouting the New York Stock Exchange for al Qaeda as it planned a terrorist attack there. El-Hanafi’s co-conspirator was previously sentenced to 18 years.

Lt. Col. Judge Advocate General Jay Morse explains General Raymond Odinero’s Regionally Aligned Forces concept in Small Wars Journal.

Parting Shot: If you’re serving alphabet soup this winter, remember: people like the CIA and NSA, but not the IRS.

ICYMI: Yesterday on Lawfare

Cody and Sebastian explored the enclaves that dot the border between India and Bangladesh, and looked at the legal, economic, and development issues surrounding them in this week’s Throwback Thursday piece.

Ben responded to the recent release of Ali Saleh Al-Marri, noting, among other things, that Al-Marri’s case illustrates the difficult balance between short-term intelligence and long-term detention interests.

Yishai Schwartz posited that Israeli Prime Minister Benjamin Netanyahu’s planned speech before Congress in March, while perhaps politically shrewd in the short-term, actually harms Israeli interests in the long-term.

Ben told us that Mexican authorities found a drone heading for the US border with six pounds of methamphetamines in tow.

Wells noted that the Obama administration has recognized that security conditions preclude the transfer of GTMO detainees to Yemen—which seems to make Senator Kelly Ayotte’s (R-NH) own bill banning transfers to Yemen unnecessary. Apparently lost in this shuffle of bans, Wells continues, is the fact that all of one GTMO detainee has been transferred to Yemen since 2009.

Ben gave us this week’s Rational Security podcast (Episode #3), which eschewed the banalities of State of the Union rehashes in favor of a searching discussion of the United Arab Emirates.

Thursday also brought us the Steptoe Cyberlaw Podcast (Episode #50), in which Stewart Baker talks with David Sanger, the New York Times reporter who broke the Stuxnet story.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

 

Learning from the Attack against Sony

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Friday, January 23, 2015 at 10:38 AM

On June 26, 2014, the BBC reported that North Korea threatened war against the United States if a Sony-produced movie (“The Interview”) was released. On November 24, 2014, Sony Pictures Entertainment was the victim of a cyberattack that compromised unreleased films, private correspondence, and other sensitive information. A group calling itself Guardians of Peace (GOP) takes credit for the attack, and North Korea officially denies involvement, though it says that hack may be the “righteous” work of its supporters. On November 28, media reports first surface that the attack on Sony was the result of North Korean displeasure about the forthcoming release of the movie. In the wake of GOP threats of violence, Sony cancels theater release of The Interview in mid-December. Facing substantial criticism, Sony reverses this decision a week later.

It’s premature to conclude that the Sony saga is over, but since the fury seems to have calmed down a bit, it seems appropriate to consider what lessons so far should be highlighted for policy makers. Here are some of them.

Theft of intellectual property for profit is not the only possible outcome of a hack. Reinforcing lessons learned from destructive cyberattacks against Aramco and South Korean banks, the perpetrators wiped computer systems at Sony clean, rendering them largely inoperable and crippling business operations. They also obtained and released sensitive and embarrassing correspondence and some unreleased films. None of these actions appear to have financially benefited any party.

Attribution of a hostile cyber operation by responsible government authorities is uncertain and slow. On December 9, assistant FBI director (cyber division) Joseph Demarest said regarding the Sony incident that “there is no attribution to North Korea at this point.” On December 19, the FBI released a statement saying that “As a result of our investigation, and in close collaboration with other U.S. government departments and agencies, the FBI now has enough information to conclude that the North Korean government is responsible for these actions.” The FBI reiterated its conclusion on January 7, with Director James Comey saying “I have every confidence about this attribution, as does the entire intelligence community.” That is, it took several weeks—not hours, not days—for the U.S. government to ascertain North Korea’s responsibility. Note also that the government’s position changed at least once—not a surprising outcome in the uncertain environment of cyberspace. In the absence of prior evidence and other sources, attributing responsibility is likely to take much longer.

Government statements about attribution will face skeptics who have a significant public voice.   A few days after the initial FBI’s attribution of the attack on Sony to North Korea, Marc Rogers, a security researcher for the mobile security company, Cloudflare, said that “calling out a foreign nation over a cybercrime of this magnitude should never have been undertaken on such weak evidence. The evidence used to attribute a nation state in such a case should be solid enough that it would be both admissible and effective in a court of law. As it stands, I do not believe we are anywhere close to meeting that standard.” This analysis and others like it received a great deal of media attention, and thus, for much of the public, authoritative attribution has not yet been established. (In a satirical posting about the attribution saga, a number of pranksters developed a Sony Hack Attribution Generator that allows a user to display a seemingly authoritative page with “evidence” to support a variety of scenarios.) Read more »

Throwback Thursday: The Indo-Bangladesh Enclaves

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Thursday, January 22, 2015 at 9:32 PM

Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Last year, Lawfare decided to get in on the action—by each week turning back in time to a specific event, and briefly explaining how it relates to today’s security and/or legal environment. The weekly feature took a brief holiday hiatus, having last appeared on Lawfare in December; this evening, #tbt resumes with a look at the Indo-Bangladesh enclaves. 

When we think of the Partition of India, we usually focus on the perilous border drawn down the Punjab—which divided what would become India from what was at the time West Pakistan, and which sparked much of the violence between the two nuclear powers. But there is another border story on the opposite side of India, where the Indian state of West Bengal was split from what is now Bangladesh.

The border between Bangladesh and the Indian state of West Bengal is a nightmare to trace on a map, and even more of one for people caught up in some it its most messy divisions. If a resident of Dahala Khagrabari, India wishes to reach her nation’s capital in Delhi, she must cross four international borders: first over into Bangladesh, then into India, back into Bangladesh again, and then, finally, into India proper. This convoluted journey is not the fault of some serpentine road or winding train track, however; the unfortunate traveler is forced through so many borders because she resides in the world’s only third-order enclave—that is, a state within a state within a state within a state.14130658843_8a118de346

The border separating India and Bangladesh is dotted with 162 of these enclaves, of which Dahala Khagrabari is merely the most extreme example. Caught up in a ridiculous geo-political game that advances no one’s interests, the enclaves are chunks of ungoverned territory, physically divorced from their homeland and beyond the reach of government services. The problem is serious: as many as 50,000 people reside in such places. Moreover, the enclave problem complicates ties between India and Bangladesh, and poses obstacles for development and security.

With the new Modi government in India promising to address the issue and US President Barack Obama traveling to India next week, this edition of Lawfare’s Throwback Thursday delves into the origins of these geographic anomalies, the failed attempts to address them, their current status, and their possible future. Read more »

Rational Security, Episode 3: The State of the Union is Boring

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Thursday, January 22, 2015 at 3:27 PM

The new episode of Rational Security is out, featuring a general agreement to ignore the State of the Union and talk about the state of the United Arab Emirates instead.

Of particular interest to readers of this site, Shane Harris takes on FBI Director James Comey’s irritation at the New York Times for giving anonymity to AQAP sources—offering a strong defense of anonymous sourcing for terrorist informants. And there’s lots of other fun stuff too. If you haven’t checked Rational Security out yet, Episode #3 is a great place to start.

Netanyahu’s Foolish Speech

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Thursday, January 22, 2015 at 2:59 PM

Yesterday, Speaker John Boehner announced that Israeli Prime Minister Benjamin Netanyahu had accepted his invitation to address a joint session of Congress. In what reporters are calling “breach of protocol,” the White House appears to have been blindsided, receiving notification only shortly before the news became public. The decision to invite Netanyahu for a speech addressing the Iranian threat, and announce it a day after President Obama’s State of the Union opposed new Iran sanctions legislation, has been widely (and correctly) viewed as a Republican maneuver against the President. It is precisely for that reason that Netanyahu’s acceptance of that invitation represents a serious strategic blunder.

For Netanyahu, it is easy to understand the appeal of the invitation. He perceives American negotiators as too eager and too credulous, and he has watched as the specter of Sunni extremism, particularly the Islamic State, has sapped attention from the threat of an Iranian nuclear weapon. In Syria and Ukraine, he senses a general weakening of American commitments abroad. He believes Congress and the public share his dark view of Iranian intentions, and it suits his ego to see himself rallying the American people to force a spine into their flimsy administration. It also does not hurt that delivering this speech, his third to a joint session, would put him a category of world leaders that includes only Winston Churchill.

Netanyahu, however, is no Churchill. The primary motivation for his acceptance of Speaker Boehner’s invitation is not Israel’s welfare—something his speech will likely harm—but petty domestic politics. With Israeli elections fast approaching, delivering an indictment against Iran on the floor of Congress bolsters Netanyahu’s credentials as a stalwart defender of Israeli security. It focuses Israeli public debate on defense issues where his Likud party is strongest. And most of all, the image of the entire American Congress on its feet cheering him will do much to blunt his opponents’ charges that Netanyahu’s personal arrogance and political hawkishness have jeopardized Israel’s strategic relationships abroad. With these potential political dividends, it is no accident that Netanyahu acted quickly to reschedule the speech for just two weeks before Israelis head for the polls.

But while Netanyahu stands to gain personally, Israel itself stands to lose a great deal. In Congress, sanctions legislation already enjoys broad support, and those Democratic hold-outs whose votes could uphold a presidential veto are unlikely to be swayed by Republican-engineered slap at the President. And after the Israeli right has spent years accusing American governments of attempting to influence their domestic politics, Netanyahu’s cynical use of Congress as a campaign prop is hardly endearing. One hopes, of course, that our elected representatives will cast their votes purely on what they believe are the best interests of the American people. But one cannot discount the possibility that Netanyahu’s maneuver will actually make Democrats less cooperative.

In tweaking Democrats, Netanyahu is playing with fire. For decades, backing Israel has been the quintessential bipartisan issue. Resolutions expressing support for, and authorizing aid to, Israel are passed regularly with near-unanimity. Condemnations of its enemies are a sine qua non for a live political career. But in recent years, some fringe Democratic constituencies have begun to turn on Israel—viewing Israeli distrust, rather than Palestinian intransigence, as the core reason for the Israeli-Palestinian conflict’s stubborn persistence. Sensing an opening, Republicans have pounced, hoping to use Israel as a wedge that pushes Democrats onto the losing side of a key public debate.

For Republicans, partisan-ing Israel represents excellent politics; for Israel, it’s a strategic nightmare. Unless Republicans win every future presidential and congressional election, Israel will continue to rely heavily on Democratic support. Any Israeli prime minister who underestimates that truth does so at his country’s peril. What’s more, the aura of consensus that permeates political discussion of Israel is a key factor in preserving American popular support for the Jewish state. Elite opinion and public opinion exist in a mutually reinforcing symbiosis. The more that partisan cracks show in Washington, the more they filter down to the American people—and the bigger those cracks will grow. In a world that has become increasingly hostile to Israel’s interests, the creation of these fractures in America is something Israel can ill afford.

Boehner’s invitation offered Netanyahu the opportunity to choose between being a politician and becoming a statesman. He has made his choice; Churchill would be dismayed.

Today’s Headlines and Commentary

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Thursday, January 22, 2015 at 2:10 PM

The main terminal of the Donetsk airport in eastern Ukraine has been captured by rebels, the Los Angeles Times tells us. The airport has seen fierce fighting in the past several months and has taken on symbolic significance in the battle between pro-Russian separatists and the Ukrainian military. The BBC adds that although Ukrainian forces still control parts of the airport, the partial retreat represents a major loss for the Ukrainian government. Also in Donetsk, which is currently held by rebels, a city bus was hit in shelling that killed 13 civilians.

After multilateral peace talks on the Ukrainian crisis Wednesday, Russia expressed its interest in an immediate cease-fire. At the World Economic Forum in Davos, Switzerland, however, Ukrainian President Petro Poroshenko accused Russia of sending 9,000 troops into Ukraine. The New York Times covers the diplomatic exchange, along with reports of fighting across eastern Ukraine. Also at the Davos forum, Christine Lagarde, managing director of the International Monetary Fund, expressed support for further economic aid for Ukraine, according to Reuters. Reuters also reports that NATO Secretary General Jens Stoltenberg announced that there has been an increase in Russian military equipment in Ukraine and called for Russia to withdraw. Defense News shares that the US will send soldiers into Ukraine to train the Ukrainian military.

Japan is struggling to free two hostages held by ISIS. The Associated Press reveals that Japanese counter-offers to the militant group have gone unanswered as the group’s deadline for a $200 million ransom payment draws near. Japanese government officials have repeatedly claimed that aid given to the region, the apparent inspiration for ISIS’s threats, is solely meant to help refugees, the BBC reports.

Asharq Al-Awsat shares that Iraqi and Kurdish military forces have launched a joint operation against ISIS outside of Mosul. The attacks serve as a prelude to a planned major military operation later this year to liberate the city. The Washington Post breaks the news that, per a Kurdish spokesperson, Kurdish peshmerga have pushed ISIS out of a significant area in northern Iraq.

According to the Express Tribune, Pakistani security forces captured an ISIS commander in Lahore. The commander has admitted to being ISIS’s representative in the country. Reuters explains that the commander’s activity in Pakistan represents a broader foray by ISIS into South Asia, as militants disappointed with the Taliban in both Afghanistan and Pakistan are drawn to the new group by its recent successes.

Pakistan also took steps to weaken another militant group operating within its borders, Dawn reports. The government has frozen all assets held by Jamaatud Dawa, the political branch of the terrorist group Lashkar-e-Taiba, and imposed a foreign travel ban on the group’s leader.

In the New York Times, Jayne Huckerby writes of the significant flow of female fighters–roughly 10 percent of Western recruits–into the ranks of ISIS and the oft-overlooked role they play in the group’s operations.

The Wall Street Journal tells us that the Houthi rebels who took control of the Yemeni presidential palace yesterday have agreed to a power-sharing agreement with the government. However, CNN reports, hours later a Yemeni official claimed that the rebels had not yet released a key presidential aide, thus jeopardizing the tenuous peace plan. Representatives of the Houthis have expressed satisfaction with the deal, but rebel gunmen continue to patrol the presidential palace, according to Reuters.

The instability of Yemen has already altered the Obama administration’s Guantanamo policy. While the president has not reinstated the ban on transferring detainees to Yemen, administration officials have intimated that detainees will not be transferred to the volatile country in the near future. The AP has the story.

In other Guantanamo news, the commander of the base, Navy Capt. John Nettleton, has been relieved of his duties, the Miami Herald reports. The move comes during an NCIS investigation into the mysterious death of a base employee earlier this month. Nico Hines of the Daily Beast covers another development casting a pall over the base’s operations, namely allegations by the Guantanamo diarist that he was gang-raped by female guards. Over at Politico, Rich Lowry argues against closing Guantanamo, saying, among other things, that if detainees are brought to the US, jihadists will mount violent rescue operations to free them.

In a move signalling the GOP’s increasing willingness to challenge President Barack Obama’s foreign policy, House Speaker John Boehner (R-OH) invited Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress. The Post reports that the prime minister’s speech, organized without consultation from the White House, will likely express Israeli opposition to the Obama administration’s negotiations with Iran and support new sanctions on the country.

Elsewhere yesterday, former national security advisers Brent Scowcroft and Zbigniew Brzezinski appeared before the Senate Armed Services Committee and opposed a new Iran sanctions bill, the Hill notes. A collection of foreign policy chiefs from Germany, France, Britain, and the European Union wrote an op-ed in the Post explaining the successes already achieved by the ongoing talks and the importance of delaying new sanctions until diplomacy has been given a fair chance.

An opinion piece at Reuters dives into the horrific statistics of Boko Haram’s campaign in Nigeria and details just how little coverage the conflict has received in the media.

Responding to the Paris attacks and the continuing threat of returning foreign fighters, the US European Command has directed all US military bases in Europe to increase security, CNN reports. In the aftermath of those same attacks, Microsoft turned over data requested by the FBI on behalf of the French government in just 45 minutes, according to Bloomberg.

Osama bin Laden’s ex-secretary, Wadih El-Hage, has lost his appeal in the 2nd Circuit Court. El-Hage was fighting the life sentence handed down for his role in the bombing of US embassies in Kenya and Tanzania. Reuters has more.

In the lead-up to President Obama’s visit to India next week, Reuters explores the success India has already had in countering Chinese influence in the region, including (unofficially) helping unseat a pro-Chinese president in Sri Lanka.

At the Daily Beast, Shane Harris informs us that a recently disclosed NSA document reveals that South Korea, in addition to spying on its northern neighbor, also spies on the US. The US, Harris notes, doesn’t seem to care that much.

National Geographic has a powerful collection of stories from soldiers using art to address the brain trauma they absorbed during battle.

Parting shot: Beating Amazon to the punch, Mexican drug cartels have already started drone deliveries. Authorities in Tijuana, Mexico found a crashed drone that was carrying six pounds of crystal meth on its way across the US-Mexico border.

ICYMI: Yesterday on Lawfare

The president’s State of the Union address on Tuesday engendered several responses on Lawfare. Jack argued that, despite President Obama’s call for a new AUMF, his administration’s actions consistently show that the president wants no such thing.

Also in the speech, the president reiterated his commitment to closing Guantanamo. Ben took the opportunity to note the serious shortcomings on both sides of the Guantanamo debate.

Carrie Cordero wrote that the counterterrorism sections of the president’s remarks failed both to adequately address the current reality of the counterterrorism mission and to lay out an effective future strategy.

Yishai Schwartz detailed the storm of counterterrorism-related detentions and prosecutions in France that have followed the Paris attacks, noting that, despite assumptions to the contrary, French civil liberties are in many ways less robust than those in the US.

Wells put us in the shoes of an executive branch lawyer who has just received a letter from Senator Richard Burr (R-NC) asking the entire executive branch to return all copies of the Senate Select Committee on Intelligence’s recent report on the CIA’s detention and interrogation practices.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Steptoe Cyberlaw Podcast, Episode #50: An Interview with David Sanger

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Thursday, January 22, 2015 at 2:00 PM

Our guest for Episode 50 of the Steptoe Cyberlaw Podcast is David Sanger, the New York Times reporter who broke the detailed story of Stuxnet in his book,  Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power.  David talks about his latest story, recounting how North Korea developed its cyberattack network, and how the National Security Agency managed to compromise the network sufficiently to attribute the Sony attack.  We talk about how understanding the White House helped him break a story that seemed to be about NSA and the FBI, North Korean hackers’ resemblance to East German Olympic swimmers, and the future of cyberwar.

Michael Vatis and I also cover a news-rich week, beginning with capsule summaries of the President’s State of the Union proposals for legislation on cybersecurity information sharing, breach notification, and Computer Fraud and Abuse Act amendments.

We touch on Europe’s new commitment to antiterrorism surveillance, which officially puts a still-Snowden-ridden United States out of step with just about every developed nation.

I try to summarize the new National Academy of Sciences’ study on why there isn’t an easy software substitute for bulk collection.  (Short answer:  If you want to recreate the past, you have to bulk-collect the present.)

We ask whether the DEA was the inspiration for NSA’s 215 bulk collection program, call out Rep. Sensenbrenner, who evidently skipped the DEA briefings as well as NSA’s, and wonder why Justice didn’t explain to Congress last year that NSA’s program wasn’t that big a leap from the Justice Department’s own bulk collection – instead of quietly trying to bury its program when the heat built up on NSA.  (OK, we didn’t really wonder why Justice did that.)

If you judge by their joint press conference, Prime Minister Cameron seems to have done more to convert President Obama to skepticism about widespread unbreakable encryption than Jim Comey did.  Save your Clipper Chips, key escrow will rise again!

Finally, Centcom’s public affairs team, which can’t keep ISIS sympathizers out of its Twitter and YouTube feeds, deserves 24 hours of deep embarrassment, which is surprisingly exactly what it gets.

Breaking Bad Drones

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Thursday, January 22, 2015 at 12:32 PM

Just in time for Gabriella Blum and my forthcoming book, The Future of Violence: Robots and Germs, Hackers and Drones: —Confronting A New Age of Threatcomes this story from the Associated Press:

Police in a Mexican border city said Wednesday that a drone overloaded with illicit methamphetamine crashed into a supermarket parking lot.

Tijuana police spokesman Jorge Morrua said authorities were alerted after the drone fell Tuesday night near the San Ysidro crossing at Mexico’s border with California.

Six packets of the drug, weighing more than six pounds, were taped to the six-propeller remote-controlled aircraft. Morrua said authorities are investigating where the flight originated and who was controlling it. He said it was not the first time they had seen drones used for smuggling drugs across the border.

Thoughts on the Al-Marri Release

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Thursday, January 22, 2015 at 10:28 AM

In October 2009, Ali Saleh Al-Marri was sentenced to more than eight years in prison under a plea deal the Al Qaeda sleeper agent had struck with federal prosecutors. Quietly, on January 16, Al-Marri was released—having served just over five years of his time.Screen Shot 2015-01-22 at 8.59.12 AM

Reports the Washington Post:

Ali Saleh Mohammad Kahlah al-Marri, 49, was released from a maximum security prison in Florence, Colo., on Friday, officials at U.S. Immigration and Customs Enforcement (ICE) said. Hours later, he boarded a commercial flight at Denver International Airport, escorted by ICE officers, and began his journey back to the Qatari capital, Doha.

Marri’s release and deportation, carried out without fanfare, is a milestone for the Obama administration as it seeks to unwind the web of military detentions and legal cases that resulted from the Sept. 11, 2001, attacks on the United States.

You remember Al-Marri. He’s the Al Qaeda guy who was first held as a material witness, then prosecuted in federal court, then whisked to military detention for several years and then—at the start of the Obama administration—brought back to federal court, where he pled guilty to conspiracy to aid Al Qaeda. He’s bad and scary guy who came here on the eve of the September 11 attacks, having volunteered his services to Khalid Sheikh Mohammed.

And now he’s free. Read more »

A Return of the Executive Branch Ban on GTMO Transfers to Yemen?

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Thursday, January 22, 2015 at 9:51 AM

From this ABC/Associated Press piece:

In another challenge to President Barack Obama’s efforts to close the Guantanamo Bay prison, a ban on transferring detainees to Yemen has been effectively pushed back into place because of security concerns in the volatile Middle Eastern nation, administration officials say.

While Obama approved sending detainees back to Yemen nearly two years ago, his administration has yet to use that authority. And officials say deep concerns about the threat posed by a Yemeni-based al-Qaida offshoot have removed that option for the foreseeable future, although that could change if conditions improve. The officials described the stance on condition of anonymity without authority to speak on the record.

Obama insisted in his State of the Union address Tuesday that he will not relent in his determination to close Guantanamo before he leaves office, and the administration is working on agreements with third countries willing to take Yemenis who are clear to leave the U.S. prison in Cuba. Nearly two-thirds of the remaining 122 detainees are from Yemen, including 47 of the 54 who have been approved for transfer.

The question is what this means for GTMO transfer policy—as practiced.

On that subject, readers will recall a forehead-slappingly bad proposal, put forth recently by Senator Kelly Ayotte and others, to greatly restrict the executive branch’s ability to offload Guantanamo detainees. One of the would-be law’s odder features is a block on all GTMO transfers to Yemen. The provision very much has a solution-in-search-of-a-problem quality to it: No detainee has been sent from GTMO to Yemen since 2009, bar one Yemeni national who prevailed before a habeas judge.

Of course, shortly thereafter, in response to Abdulmutallab’s attempted airline bombing, the White House unilaterally imposed its own Yemen “ban,” only to rescind it in 2013 and adopt a “case by case” approach to potential Yemen transfers from GTMO. Yet that rhetorical shifting of gears didn’t lead to a raft of Yemeni repatriations or transfers. Indeed, it didn’t lead to any, in part because of the deteriorating security situation in Yemen and the Hadi regime’s tenuous grip on power. The executive branch has monitored that closely, and thus proceeded with caution—by moving Yemeni nationals and other detainees at GTMO to places other than Yemen.  (As for non-GTMO detainees, to my knowledge, only two Yemenis have been repatriated—from the United States’ facility at Parwan.)

Despite all this, Senator Ayotte and company would insist on a statutory prohibition on Yemen transfers—evidently on the theory that the blinkered executive branch might overlook the discouraging facts on the ground, and recklessly whisk detainees to Yemen en masse. If true, then today’s news ought to take that reality-ignoring scenario off the table, at least for the foreseeable future. And maybe that will give Senator Ayotte pause, and encourage her to rethink—withdraw—her unwise bill.

You Are a Lawyer in the Executive Branch

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Wednesday, January 21, 2015 at 8:24 PM

Correspondence finds its way into your inbox, bearing the signature of the newly-installed Chairman of the Senate Select Committee on Intelligence, Senator Richard Burr.

His letter (per today’s New York Times) last week was sent to the White House, and sets forth an unusual request: In it Senator Burr allegedly asks “the executive branch” to return all copies of the Committee’s study of the CIA’s detention and interrogation practices—meaning, of course, not the declassified and widely-circulated Executive Summary of the study, but the still-classified, Big Kahuna.

The question is how to proceed. Copies of the study, as you know, are in your client’s possession precisely because the Committee earlier—under the leadership of its prior Chairman, Senator Dianne Feinstein—transmitted the document to the White House and some three-letter agencies. Further complicating matters is this fact: The study has been sought for some time now, in thus far unresolved litigation brought against the CIA under the Freedom of Information Act (“FOIA”). But the Committee is not subject to that famed statute—as you, and your colleagues in the Justice Department who handling the FOIA case, are also well aware.

So: Do you hand the thing over—and thus risk undermining the FOIA suit, offending a federal court, and causing a public backlash?

No.

Odds are Senator Burr’s request likely won’t be honored any time soon by the executive branch. And indeed it absolutely shouldn’t be, to the extent it seeks materials requested in a pending FOIA action. (And this is not to say there might not be other reasons to brush the letter aside, either; I know counsel in the high-value detainee military commission cases will want to get their hands on the study, given the defense’s long-standing desire to litigate the relationship between pre-trial abuse and the possible criminal penalty.  There’s also the question of precedent-setting in congressional-executive relations. I would wonder about what the long-run consequences of returning the study to the Committee might be in this respect as well.)

Perhaps we’ll learn more from a CIA filing in the FOIA case—which I understand is due to be filed tomorrow.

[This post was updated this morning.]

The State of the Union on Counterterrorism: Does The Rhetoric Match the Policies?

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Wednesday, January 21, 2015 at 4:28 PM

On counterterrorism, the President’s speech was a study in mismatches—as was apparent last night in at least two respects.

First: The address began with an odd intermix of statements related, on one hand, to the economy, and on the other hand, to post-9/11 military engagement and the subsequent end of the wars in Afghanistan and Iraq. The President then stated, “The shadow of crisis has passed.”

If only.

In the past month it has become absolutely obvious that, despite success in dismantling so-called “core” al Qaeda and the killing of Bin Laden, the global Islamist threat has undergone a resurgence in the past few years. Leadership vacuums in Iraq, Syria, and Yemen, for example, have allowed next generation al Qaeda outfits such as the Islamic State in Iraq and the Levant (ISIL) and al Qaeda in the Arabian Peninsula (AQAP) to thrive. And the smallest sampling of recent press reports reveals that a new generation of terrorist networks across Europe have emerged; ISIL is, literally, crucifying people; and journalists continue to be targeted and murdered. That, and over 250 girls in Nigeria were kidnapped by Islamist terrorist organization Boko Haram nine months ago, and no one has apparently tried hard enough to find and rescue them.

His characterization of the terrorism threat to one side, what to make of the President’s plans for countering that threat?  Here a second if somewhat different disconnect was in evidence.  On one hand, last night’s speech contained the requisite tough talk—a commitment to “hunt[ing] down” and “tak[ing] out” terrorists, as well as dismantling their networks. President Obama likewise mentioned the coalition effort to “stop the advance” of ISIL. But this bold-sounding stuff didn’t really link up to the ideas noted in the address, which mostly struck me as more oriented to process than substance.

The President called on Congress formally to authorize the ISIL campaign, for example—despite having quietly concluded, earlier on, that he has the necessary authority already—but he didn’t say much about long-term strategy, or operational tactics. The surveillance discussion was along similar lines. Unlike his clear call for Congress to take up cybersecurity legislation, the President notably did not highlight legislative proposals for surveillance reform. He did not, for example, call on Congress to pass the sweeping surveillance reform act that would end the telephone counterterrorism metadata program and add an institutional advocate to litigate national security surveillance before it can be implemented by national security agencies, among other things. Instead the President argued in general terms that America’s commitment to civil liberties must be upheld, so as to ensure optimal cooperation from foreign nations and industry; in this regard he noted the executive branch plans to issue a new report next month, on its progress in implementing surveillance reforms throughout the intelligence community. Read more »

Today’s Headlines and Commentary

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Wednesday, January 21, 2015 at 2:05 PM

Last night, President Barack Obama gave his sixth State of the Union address.Throughout the speech, the Associated Press notes, the president returned to the theme of “turning the page,” both in domestic and foreign policy. In doing so, he touched on a number of issues of interest to Lawfare readers. Below, we have included relevant passages from the speech and paired them with the day’s news in those subjects.

“As Americans, we cherish our civil liberties, and we need to uphold that commitment if we want maximum cooperation from other countries and industry in our fight against terrorist networks.  So while some have moved on from the debates over our surveillance programs, I have not.”

The European Union is considering a series of initiatives aimed at preventing further terrorist attacks, including a new data retention law that would authorize the collection and storage of large amounts of personal data. The Intercept notes that a similar law was struck down by the European Court of Justice last year as “suspicionless mass surveillance.” In France and Europe, government officials have demanded that US tech firms, including Google, Twitter, and Facebook, police their websites and remove content that promotes terrorism. Otherwise, the Wall Street Journal reports, these countries have threatened to pass laws forcing the firms to do so.

“As Americans, we respect human dignity, even when we’re threatened, which is why I have prohibited torture, and worked to make sure our use of new technology like drones is properly constrained.”

The New York Times reports that an internal CIA report commissioned in 2009 by former CIA director Leon Panetta found that the agency consistently inflated the value of intelligence gleaned through brutal interrogations. The CIA has publicly criticized the report, saying that its review of the relevant documents was shoddy and incomplete.

“No foreign nation, no hacker, should be able to shut down our networks, steal our trade secrets, or invade the privacy of American families … So we’re making sure our government integrates intelligence to combat cyber threats, just as we have done to combat terrorism.”

An annual report released by the Pentagon’s chief weapons tester reveals that almost all US weapons systems tested last year presented “significant vulnerabilities” to cyber attacks, according to Reuters. While the director credited the Department of Defense with working to address previously-discovered weak spots, this year’s tests revealed software problems and other vulnerabilities that left programs open to even basic hacking techniques.

“In Iraq and Syria, American leadership — including our military power — is stopping ISIL’s advance … Now, this effort will take time.  It will require focus.  But we will succeed.  And tonight, I call on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.  We need that authority.”

The United Nations has stated that ISIS has committed dozens of executions in Iraq over the past month, the Times writes. These executions are often preceded by show trials serving no purpose other than to announce the accused’s crimes, and have targeted children, female professionals, and ISIS fighters themselves, among others. A new video from ISIS surfaced Tuesday, showing a masked man threatening to kill two Japanese hostages if Japan fails to pay $200 million in ransom. The Wall Street Journal reports that Japanese prime minister Shinzo Abe has vowed to use all diplomatic means available to secure the hostages’ release and that Japanese officials have stated that the nonmilitary aid Japan provides in the region is “not aimed at killing Muslims.”

In Iraq and Syria yesterday, the US-led coalition conducted 19 airstrikes, Reuters informs us. In Syria, attacks clustered around the now-symbolic border town of Kobani, while airstrikes in Iraq hit positions near a number of major cities.

Further clashes between Yemeni government forces and Houthi rebels erupted in the country’s capital of Sana’a Tuesday, Reuters reveals. According to the Wall Street Journal, Houthi forces captured the presidential palace. Reuters and the Daily Beast carry conflicting reports on whether or not Yemeni President Abed Rabbo Mansour Hadi was in the residence at the time of the attack. In the same Daily Beast piece, Jamie Dettmer details the complications that the upheaval creates for the US campaign against al Qaeda in the Arabian Peninsula (AQAP) in Yemen, which had been presented as an example of the success of drone-strike counterterrorism.

The Times provides a brief look into the Houthis’ identity, noting the rebels are in conflict with AQAP, as well as the government, and are allegedly backed by Iran. Gregory D. Johnsen of Buzzfeed has a similar piece, tracing the rebels’ history from Yemen’s civil war in the 1960s to today.

“We’re upholding the principle that bigger nations can’t bully the small — by opposing Russian aggression, and supporting Ukraine’s democracy, and reassuring our NATO allies.”

Reuters reports that Russia will seek an immediate ceasefire in the Ukrainian crisis during today’s multilateral talks with representatives from Ukraine, Germany, and France. Meanwhile, however, another Reuters report details accusations by the Ukrainian military that Russian regular forces have attacked Ukrainian army units.

“Between now and this spring, we have a chance to negotiate a comprehensive agreement that prevents a nuclear-armed Iran, secures America and our allies — including Israel, while avoiding yet another Middle East conflict.”

The AP notes that a new confidential UN report credits Iran with thus far upholding its pledge to halt the expansion of its nuclear capabilities during multilateral negotiations on its nuclear program. However, Iran has signed a military cooperation deal with Russia in response to US “interference,” according to Agence France-Presse.

In Tel Aviv, 12 Israelis were stabbed by a Palestinian man on a city bus, Haaretz shares. Three victims were in critical condition after the attack, and the assailant was shot in the leg. Israeli Prime Minister Benjamin Netanyahu blamed the attack on the Palestinian Authority and its “venomous incitement against the Jews and their state.”

“Instead of sending large ground forces overseas, we’re partnering with nations from South Asia to North Africa to deny safe haven to terrorists who threaten America.”

Dominic Ongwen, a commander in the Lord’s Resistance Army recently handed over to the US military, has been transferred to the custody of the International Criminal Court, the AP reports. Ongwen surrendered to a rebel group in the Central African Republic, who in turn gave Ongwen to the US and is now attempting to claim the $5 million bounty placed on Ongwen by the US State Department.

ICYMI: Yesterday on Lawfare

During President Obama’s State of the Union Address, Ben shared passages from the speech relevant to the Lawfare community.

Ben and Andy Wang took aim at the news media on two counts yesterday, criticizing major news outlets for ignoring the atrocities being perpetrated by Boko Haram in Nigeria and for misreporting the release of a memoir by a Guantanamo detainee.

Andy also brought us a broad overview of the recent National Research Council recent report that found no viable software-based alternative to the bulk collection of data.

Bobby flagged the news that two Yemeni members of al Qaeda were captured in Saudi Arabia and have been brought to New York to face a civilian trial.

Susan Landau responded to David Cameron’s recent proposal to ban encrypted communications to increase security by arguing that the biggest threat to a nation’s security is posed by less, not more, secure communications.

Paul Rosenzweig explored the security aspects of Passenger Name Records (PNR) systems, and wondered if the EU’s previous opposition to such tools would be reversed in the aftermath of the Charlie Hebdo attacks.

Stephanie Leutert looked into the nuances of deportation statistics and the intricacies of the administration’s deportation policies.

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