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Senator Leahy’s NSA Reform Bill: A Quick and Dirty Summary

By and
Tuesday, July 29, 2014 at 7:21 PM

As Wells reported this morning, Senate Judiciary Committee Chairman Patrick Leahy unveiled his version of the NSA reform bill today. Leahy’s bill is important because, well, it’s not just Leahy’s bill. It’s the bill. It represents a compromise between the intelligence community, the administration more generally, civil liberties groups, industry, and fairly wide range of senators. And it will be the legislative vehicle that’s going to move forward with the sometimes nose-holding support of most of the major parties. It thus warrants close attention.

Leahy’s 97-page bill is decidedly tougher in its requirements on NSA than was the 43-page bill the House of Representatives passed back in May, the perceived laxness of which had drawn vociferous objections from civil libertarians. Leahy’s bill, by contrast, has civil libertarian hearts aflutter. On Sunday, even before the bill’s public release, the New York Times editorial page issued a ringing endorsement, commending it as “a breakthrough in the struggle against the growth of government surveillance power.” The ACLU also has endorsed the bill, in rather strong terms:

To put this in historical context: If the Senate passes the bill, it will be the first time since passage of the Foreign Intelligence Surveillance Act in 1978 that the chamber has taken action to constrain the intelligence community, and the first time Congress has a real shot at restoring the crucial privacy protections lost in the Patriot Act. To quote Joe Biden during the signing of the healthcare bill, “This is a big f—ing deal.”

But the administration also makes significant gains here. Most importantly, it codifies an authority that is now highly contested, and it pushes back a scheduled sunset of that authority that is approaching rather quickly.

In this post, we refrain from opining on the bill’s merits and instead describe what it would do, how it differs from the House bill, and where in the bill lie the major advances that make the various parties with stakes in NSA reform all line up behind it.

Read more »

Steptoe Cyberlaw Podcast, Episode #30: An Interview with Richard Danzig

Tuesday, July 29, 2014 at 3:28 PM

Wow, that was quick. I haven’t even turned on the air conditioning at home yet, and already we’ve done the last podcast of the summer.  The Steptoe Cyberlaw Podcast will go on hiatus for August and return after Labor Day!

This week in NSA: The Senate Judiciary Committee, the most anti-NSA of the Senate committees with jurisdiction over the agency, says that it has come up with a new version of the section 215 reform bill passed by the House.  Chairman Leahy says his draft does a better job of protecting privacy than the House bill, and privacy activists agree. Ordinarily that would mean it’s worse for security, but based on press reports, the bill may actually be an improvement on the lame “selection term” menu proposed by the House. (And, now that I’ve seen the Leahy bill, that prediction turns out to be right; its definition of “specific selection term” is much more workable.)

Looking distinctly like the proprietor of a fireworks display whose finale fizzled, Glenn Greenwald strains ever harder to find outrage in the quotidian.  NSA, he discloses, has a limited intelligence sharing arrangement with Saudi Arabia.  The Saudis, of course, have a lot of terrorists and jihadists, some of whom have also attacked the United States (Osama bin Laden, to name one).  But none of that matters to Greenwald, who seems to think we should learn about terrorists only from countries with no human rights violations.

The effort to cripple NSA’s overseas intelligence collection program almost as thoroughly as its section 215 program has picked up four Senators – Tester, Begich, Merkley, and Walsh, who send a letter to that effect.

In other news: Sony settles its traumatic, service-suspending hack for $15 million worth of free stuff for users.  Hats off to Sony’s GC, who struck a brilliant deal.

The 9/11 Commission issues a soft endorsement of “direct action” by private parties who are hacked. Stewart Baker celebrates.

The phenomenon of dueling celebrity magistrates continues.  Is this the first time someone outside of the FISC has felt obliged to write an opinion granting a search warrant?  How sad is that?

Vladimir Putin signs legislation to keep Russian data in Russia.  And the Russian government offers a bounty for attacks on the TOR network.

The Washington Post tells us that the FBI “Going Dark” is real, quoting our own Jason Weinstein.   We’re sure there’s a drinking game to be built around the President’s plan to talk about drone privacy, but we’re not imaginative enough to find it.  And Congress votes to end DMCA protection for locked cell phones.

Our guest for the day is the eminent Richard Danzig, former Secretary of the Navy, and a defense intellectual’s defense intellectual.  Richard has at last turned his attention to cyber insecurity, with a paper entitled “Surviving on a Diet of Poisoned Fruit.”

Richard’s view is that we can’t treat cyber insecurity as a technical problem, or assume that there are technical solutions.  He advocates for limiting the use of digital technology when it comes to managing critical national security systems, and he defines critical national security assets in a refreshingly direct way.  If the deliberate crashing of a digital system could dissuade the US government from pursuing its national security interests, that system is critical to national security. Stewart wonders if we aren’t already past that point.

Richard argues for international norms limiting cyberattacks, focusing on those that would destabilize mutual assured nuclear destruction.  Stewart expresses doubts about the durability and verifiability of such norms.  We agree on the need for deterrence but not on the mechanisms.

It’s a great workout for cybersecurity wonks, and a good way to ease into Richard’s thoughtful paper.

Senator Leahy Unveils New USA Freedom Act

Tuesday, July 29, 2014 at 11:48 AM

Here is Senator Patrick Leahy’s (D-Vt.) proposal to restrict various forms of surveillance–which he is discussing, at this hour, on the Senate floor.  We hope to post some analysis of the bill shortly.

Today’s Headlines and Commentary

Tuesday, July 29, 2014 at 11:00 AM

The conflict between Israel and Hamas has intensified. The AP reports that Israeli Prime Minister Benjamin Netanyahu suggested that Israel should prepare itself for a drawn-out conflict, and that he has no immediate plans to end the violence. The BBC, The Wall Street Journal, the New York Times, and the Washington Post all cover the most recent violence, including destruction of the home of Hamas’ top political leader.

The Post tells us that this morning marked some of the “heaviest bombardments” of Gaza by Israeli missiles since the conflict began.  Meanwhile, the Times walks us through the Gaza tunnels, some which reach far into Israeli territory. The current Israeli offensive seeks to destroy the Hamas-controlled tunnels.  And David Ignatius pens an opinion piece over at the Post, arguing that Secretary of State Kerry has handled the Israel-Hamas conflict particularly poorly.

The Daily Beast profiles the Islamic Caliphate, formerly known as ISIS. The piece identifies locales where the group is most powerful, and discusses if and how ISIS can continue to hold on to power in parts of Syria and Iraq.

Reuters has a special report looking at where and how Ukrainian’s separatist rebels are getting their weapons. The story presents strong evidence of a large and steady flow of weapons into Ukraine from Russia.

The Times explains that yesterday the U.S. and Europe agreed to “sharply” escalate sanctions against Russia, amidst growing worries that Russia is increasing its role in the Ukrainian conflict.

As for the United States, the Times informs us that it claims Russia has violated an arms control treaty by “testing a ground-launched cruise missile.” The allegation is the most serious one that the Obama administration has leveled against Russia, and only adds to the increasingly strained relationship between the two countries.

The Post looks at the final stages of the U.S. military operation in Afghanistan. The piece highlights an elite squad of paratroopers that hopes to take out a few more Taliban targets before leaving the country for good.

Reuters reports that Libya is “sliding into chaos.” Violence between rival militias has spread across the country, and yesterday a fuel depot in Tripoli was set ablaze, burning out of control spreading disorder across the capital.

The Al Jazeera journalists jailed in Egypt have been denied a presidential pardon. The Huffington Post has the story.

The Chinese government has announced an investigation of the former head of domestic security, Zhou Yongkang. The Times calls the move President Xi Jinping’s “most audacious move yet to impose his authority by targeting elite corruption.”

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.

Why Indictments Won’t Stop China’s Cybersnooping

Tuesday, July 29, 2014 at 8:58 AM

The Chinese government and its proxies have recently ratcheted up harassment of U.S. IT firms doing business in China.  In the last week, China has deployed its antitrust laws against Qualcomm and Microsoft.  This comes on the heels of recent attacks in China on Apple and Cisco and IBM.  China has also increased its harassment of non-IT U.S. firms.  And these are just the cases that have been reported.  What is going on?  Retaliation for Snowden-disclosed USG cybersnooping in China?  For the indictments in May of Chinese officials for cybersnooping?  For U.S. barriers to entry for Chinese IT firms in the United States?  Old-fashioned protectionism?

Who knows.  But these episodes do make apparent the weakness of the U.S. hand in trying to sanction China for cybersnooping, including with indictments against officials who will never be brought to the United States.  The essential problem is that China appears to be able to do more damage to U.S. interests in China than the United States can do to Chinese interests in the United States.  Cybertheft in the United States can be carried out from China without any “presence” in the United States, and thus essentially beyond the reach of U.S. regulators (including the Justice Department); but U.S. firms must have a presence in China – assets, employees, and the like – to do business in China.  And because of good old fashioned territorial sovereignty, that means that China has more leverage.  Of course there are broader factors in play, and of course there are many things that China firms and officials want to do in the United States (think, Huawei, U.S. educational institutions, etc.) that gives the United States leverage.  But if standard news reports about the modest retaliation games going on right now are a proper guide, it appears that China has greater leverage, much greater leverage, in virtue of its size and huge potential market for U.S. products and services.

In a post trying to put the best face on the U.S. indictments in May, I wrote: “I am skeptical that the USG will in fact continue to ratchet up the stakes to a degree that will make it irrational for China to continue on its current course, because doing so can quickly become very costly to many U.S. interests, and because China’s bounty from cybertheft is so great that it can absorb quite a lot of USG retaliation in any event.”  Several months on, my skepticism has increased.

Huh? Rep. McKeon on the White House and the Iraq AUMF

Monday, July 28, 2014 at 5:30 PM

A little postscript to my note about Friday’s vote in the House, regarding military operations in Iraq: this quite critical statement, which House Armed Services Committee Chairman Howard “Buck” McKeon released on Friday. Its gist is to scold the White House, in light of a letter Susan Rice had sent to House Speaker John Boehner in advance of the vote.

Recall that Rice’s letter said essentially two things: first, that in the White House’s view, Friday’s vote, to bar the President from deploying our military to any “sustained combat role” in Iraq, was all fine and good; but second, that Congress would actually do better to carry out the Administration’s wishes, by repealing the 2002 Iraq AUMF altogether.

Rep. McKeon greeted all this with quite a broadside (emphasis supplied):

When Speaker Boehner told me about Ms. Rice’s letter, I thought he was joking.

Obama Administration officials are warning us daily that the Islamic State in Iraq and Syria (ISIS) is ‘worse than al-Qaeda’ and an extreme threat to the American people. The American people aren’t worried that the President will send the military back to Iraq. They’re worried about a deadly terrorist state that can hit us from Wall Street to Main Street. They’re worried that this President refuses to do anything, at anytime, in anyway, to stop the flood of national security crises that are popping up around the globe.

Why on earth is the President’s National Security Advisor pleading with Congress to help build Americans’ confidence that the President will not confront a clear and present danger to the United States? He needs no help there.  Where is her plan to stop this looming threat? Where is her request for additional intelligence, surveillance, and reconnaissance assets to monitor the situation? Why isn’t she over here, building support to stop a common enemy? Why is she fighting Congress instead of ISIS? Why on earth is she refighting the 2003 Iraq War in 2014?

This isn’t just absurd. We’re past absurd. This is dangerous. This Administration is fiddling while the world burns, and now they’re demanding Congress play with them.

If the Administration fought terrorists with half the tenacity they fight straw men, we wouldn’t be in this mess. It is my sincere hope that someone comes to their senses on Pennsylvania Avenue, before something worse happens.

The subtext is plain enough: we ought to be taking ISIS on, and in aggressive fashion. And anything that makes it tougher to beat back the “clear and present danger” posed by ISIS—like, say, a decision to narrow the President’s power to use force in Iraq against that very group—would be bad.

Below you will find a tally of votes in favor of Friday’s resolution—which, again, would prohibit the military from big-time combat in Iraq, against ISIS or anyone else: Read more »

What Lisa Monaco Actually Said

Monday, July 28, 2014 at 4:21 PM

Over at Just Security, Steve Vladeck objects to the piece Jack, Bobby, Matt and I wrote over the weekend on Lisa Monaco’s AUMF comments at the Aspen Security Forum. He argues that we are over-reading her comments. I’ll let readers judge that for themselves. Here’s a transcript (thanks to our intrepid intern, Tara Hofbauer) of what Monaco actually said in relevant part:

Margaret Warner: Actually, a follow-up I’d like to ask to Cathy’s question, which has to do with Guantanamo: When U.S. – major part of U.S. forces leave Afghanistan at the end of the year, will there be any reason to have the AUMF continue? And if so, then under what basis will you be able to continue to hold anyone at Guantanamo?

Lisa Monaco: Yeah, so it’s an interesting question, and one that is going to be the subject of, I think, a lot of debate and discussion over the coming months, and one that I have personally been engaging members of Congress on. There’s nothing in the AUMF statute that is a time delimiter on it. Folks have read it. It’s quite brief. But it does not speak to any time limitation. So, you know, there is—there’s nothing to say—I think you might have some arguments about whether or not—and now I’m drawing on my former legal training, so—I’m a recovering lawyer, as many know. To the extent we’re no longer in a conflict with the Taliban, there may not be a basis to hold those individuals.

Warner: Or directly related to 9/11 or even associated with groups that are associated with those groups.

Monaco: But to your question of is there a reason to have an AUMF—whether it’s the 2001 AUMF—I think is something that we’ll have discussions about. I think there absolutely is a reason to have an authority to enable us to take the fight to these evolving terrorists that we’ve talked about. So the threat from core Al Qaeda is greatly degraded, and what we’re now facing—as has been remarked upon, I think, probably ad nauseam over the last few days—is the emergence of affiliates: the emergence on the one hand of affiliates and the greater determination of groups like AQAP, and we need to continue to have an authority to go after them.

. . .

Raha Wala: Hi, thanks for this really interesting conversation. Raha Wala, Human Rights First. So I wanted to follow up on something that I think you said a couple minutes ago about counterterrorism authorities. You said that, I think you said that, there absolutely does need to be an authority to deal with emerging threats. I wanted to ask you to clarify whether you meant by that a federal statutory use of force authority or some other authority. And if it’s the former, in other words another AUMF or new AUMF, how such an authority would be consistent with the President’s commitment that he gave at the National Defense University in May of last year to get off a permanent war footing for dealing with terrorism and not sign into law any legislation that would expand or increase the AUMF’s mandate? Thank you very much.

Monaco: Sure, it’s a really good question, and it bespeaks the very difficult path we need to tread. So the 2001 AUMF has provided us authority to go after terrorist actors and address the threats that they pose that fit within that definition. We are now 13, 14 years on from that, and we’re seeing the emergence of other actors. The President said at NDU that he wanted to refine and ultimately repeal that authority. It does not mean, however, that we wouldn’t want to seek a narrowed—potentially narrowed—version of that to allow us to go after and address emerging terrorist threats that may not come under this current 2001 authority, because I think it is his preference to always be acting with congressional and statutory authority when at all possible.

Warner: Have you started those discussions with Congress?

Monaco: Yes, yup.

Warner: So that’s very much in the works?

Monaco: It is.

Today’s Headlines and Commentary

By and
Monday, July 28, 2014 at 1:43 PM

Violence and confusion rages on between Israel and Gaza. Apropos of the latter, accounts differ as to whether and to what extent Israeli Defense Forces have taken responsibility for the shelling of a U.N. school in Gaza. USA Today and Time report that Israel has acknowledged striking the school, while CNN and the New York Times declare that Israel has not.

Yesterday, President Obama spoke over the phone with Israeli Prime Minister Benjamin Netanyahu and called for “an immediate, unconditional humanitarian ceasefire.” For the most part, Israel suspended operations last night. Today, however, bombs fell on a major hospital in Gaza, resulting in a number of casualties. The Washington Post shares that while Hamas has blamed Israel for the attack, Israel claims that the explosions are a result of “failed rocket launches from Gaza.” The Times examines why it has been so difficult for U.S. Secretary of State John Kerry to achieve an end to the hostilities, while Jeffrey Goldberg of the Atlantic explains why Israel is losing in the court of public opinion.

Iraq: the Times reports that on Friday, a gang of Shiite militiamen in eight black S.U.V.s abducted a Sunni politician and his four bodyguards, holding them in a secret location and beating them for hours under accusations that the politician was preparing to support an invasion of Sunni militants into Baghdad. According to the Times, the incident is just one vivid portrayal of the new gangland nature of Iraqi politics. At the same time, the Post writes that Maliki’s days at the helm in Iraq seem to be coming to an end, as his own party released a statement advising politicians not to “cling” to their positions and instead to “adhere to the principle of sacrifice.”

There was lots of news on the AUMF this weekend. Writing in Politico, Josh Gerstein reports that Lisa Monaco, the White House’s counterterrorism czar has called on Congress to pass new legislation to support the Administration’s ability to combat terrorists groups not clearly linked to the attacks of September 11, 2001. Citing the emergence of “other actors,” Monaco said the White House needed to statutory authority to “take the fight to these evolving terrorists.” Bobby, Jack, Matt, and Ben shared their thoughts on Monaco’s remarks, and what they might mean for proposed reform, on Lawfare yesterday.  At Just Security, Steve said the four had over-read Monaco’s comments.

On Friday, the House of Representatives passed a bill that seeks to prevent President Obama from sending forces to Iraq in a “sustained combat role” without Congressional approval, the Associated Press reports. Before the vote, Susan Rice, National Security Adviser, had written a letter to Speaker Boehner supporting the repeal of the 2002 AUMF for Iraq.

Meanwhile, the Obama administration has quietly moved an additional 62 military advisers to Iraq over the past three weeks, bringing the total number of advisers in the country to 242. In June, Obama authorized a total of 300 advisers. For those counting along at home, there are now 807 U.S. forces deployed in Iraq. The Hill has more.

All this comes as the Daily Beast tells us that ISIS’s black flags are flying in The Hague. Did the Dutch government authorize what it knew to be a pro-Islamic State rally?

The Wall Street Journal brings us a report into the ongoing investigation of photos of more than 10,000 dead taken at Hospital 601 in Damascus. The facility, not far from the presidential palace, is suspected to have stored the bodies of political opponents whom the Syrian regime systematically tortured and murdered in its sprawling network of prisons.

The Post writes that along the Turkey-Syria border, the United States has finally ramped up its effort to arm the moderate Syrian opposition. The Free Syrian Army, as the group is called, is now fighting on two separate fronts—one against the Assad regime, the other against Sunni Islamists.

According to the Times, Taliban militants are gaining ground near the Afghan capital, casting doubt on whether Afghanistan will be able to defend itself once U.S. troops pull out. Indeed, the U.S. News and World Report assesses that “weapons are once again at risk of falling into the wrong hands in Afghanistan.”

The Times reports that U.S. diplomats in Libya have evacuated the embassy there, amid fighting in Tripoli.

Yesterday, shortly after the Malaysian government reached a deal with Ukrainian insurgents that would ensure access to the crash site of Malaysia Airlines Flight 17, the Ukrainian military began an operation to retake the area. According to the Times, this action has further delayed international attempts to secure and investigate the plane’s downing. As fighting continues in east Ukraine, the Obama administration released photos yesterday that allegedly show that Russia has been firing across its Ukrainian border in support of the rebels. The Post reports that the pictures come as Secretary Kerry and Russian Foreign Minister Sergei Lavrov spoke over the phone on Sunday about the conflict, the need for a ceasefire, and the flow of Russian weapons into Ukraine.

In an interview with CNN yesterday, Deputy National Security Adviser Ben Rhodes announced that the U.S. and Europe will be issuing tougher sanctions on Russia later this week. According to the Wall Street Journal, the Berlin government is attempting to prepare the German public for the consequences of the sanctions.

Meanwhile, the Times shares that the U.S. is working on plans for potential intelligence-sharing with Ukraine. In a Post op-ed, Ukrainian President Petro Poroshenko outlines why Ukraine needs greater assistance from the U.S. and the West.

A Cameroon spokesperson announced that in separate attacks yesterday, Boko Haram militants kidnapped the wife of Cameroon’s vice prime minister, killed three people, and abducted a local religious leader and five members of his family. The Post shares further details.

Police in Norway have stated that the risk of a terror attack in the country has fallen slightly, but that a high level of security remains necessary. The Wall Street Journal has more.

State Department deputy spokesperson Marie Harf announced Friday that China has designed and tested an anti-satellite missile system. The AP shares details.

Meanwhile, in a speech yesterday, a North Korean military leader declared that if the U.S. continues to imperil North Korean sovereignty,  “our troops will fire our nuclear-armed rockets at the White House and the Pentagon— the sources of all evil.”  Agence France-Presse has more on the statements.

In a Post op-ed, Fred Hiatt examines the effects of a more withdrawn U.S. foreign policy:

We have witnessed as close to a laboratory experiment on the effects of U.S. disengagement as the real world is ever likely to provide… Obama thought he would engineer a cautious, modulated retreat from U.S. leadership. What we have gotten is a far more dangerous world.

It would appear that the Times Editorial Board has obtained a copy of Senator Patrick Leahy’s surveillance bill. In an editorial published yesterday, the Board states that the bill will be introduced on Tuesday, and that it marks a “significant improvement over the halfhearted measure passed by the House in May.”According to the Hill, the Senate bill limits how much data the NSA can request, creates a panel of advocates to argue in support of privacy rights and civil liberties in front of the Foreign Intelligence Surveillance Court, and requires the court to issue public summaries of its decisions.

Relatedly, the NSA is looking for someone to lead its communications shop. If you’d like to work for a high-profile brand that is continually in the news and currently looking to re-craft its global and local image, the Hill has information on the dream job for you.

The Post comes to us with a worrisome story.  It seems federal law enforcement and intelligence authorities are increasingly unable to conduct court-ordered wiretaps on suspects because of a surge in chat services, instant messaging platforms, and other online communications that are not required by law to build in the technical means to facilitate interception. FBI officials said that a “large percentage” of wiretap orders are not being fulfilled.  On that point, over the weekend, Carrie wrote a piece about, among other things, the increasingly adversarial relationship between government surveillance officials and the private sector.

Democratic Senator Ron Wyden has signaled that he will consider invoking a seldom used procedure to declassify an Intelligence Committee report on the use of torture by the CIA, if the White House does not move quickly to get parts of the report out to the public. Roll Call has more specifics on the procedure.

The Times reports that former CIA director George Tenet has quietly led a counterattack against the Senate Committee’s report, attempting to discredit its findings before they become public.

The AP writes that the ongoing fight over the report is coming to a head, as several former officials named in the report have been notified that they will not be able to review it before it becomes public.

And, in the latest battle between the Senate and the CIA, McClatchy reports that the CIA obtained an email between whistleblower officials and lawmakers this spring, prompting fears that the CIA may have been intercepting communications of officials who handle whistleblower cases and raising questions about the holes in existing whistleblower protection systems.

The Miami Herald informs us that the Periodic Review Board has approved the repatriation of Guantanamo detainee Fawzi al Odah to his home country, Kuwait. The Los Angeles Times also has the story.

War Is Boring shares details of a new U.S. Army drone that can remain in the air “forever.”

U.S. lawmakers have reached a bipartisan agreement to fix the Department of Veterans’ Affairs. The AP has more on the deal.

The Times reports that the Justice Department has temporarily stopped an anti-Iran advocacy organization, United Against Nuclear Iran, from having to disclose “its donor list and other internal documents” during a defamation case brought by a Greek shipping fleet owner.

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.

Reading the AUMF Tea Leaves, 2002 Edition

Monday, July 28, 2014 at 12:42 PM

Nowadays figuring out what sort of post-2001 AUMF authority the White House wants is a bit of a tea leaf-reading exercise. Potentially relevant to it are the events of last Friday concerning the 2002 AUMF, which Congress passed in advance of the Iraq war.

Friday evening saw the House’s approval of H. Con. Res. 105, a concurrent resolution apparently filed pursuant to Section 5(c) of the War Powers Resolution. Apparently, the proposal arose from congressional concern over the executive branch’s possible invocation—or stretching, depending on your point of view—of the 2002 Iraq AUMF, as a source of authority to take further action against ISIS or other current, Iraq-related threats. The legislation—which, so far as I know, hasn’t been taken up in the Senate—thus instructed the executive branch:


The President shall not deploy or maintain United States Armed Forces in a sustained combat role in Iraq without specific statutory authorization for such use enacted after the date of the adoption of this concurrent resolution.


Nothing in this concurrent resolution supersedes the requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.).

Prior to a vote on this, President Obama’s national security advisor, Susan Rice, had written to House Speaker John Boehner and said, in so many words, that the resolution was “consistent with the Administration’s views;” but also that Congress would be better off dispensing with a disapproval of future military force, and instead simply repealing the 2002 Iraq AUMF altogether: Read more »

The Administration Needs a Confirmed Legal Adviser

Monday, July 28, 2014 at 10:25 AM

Six months ago today, I wondered aloud on this blog when President Obama might nominate a new Legal Adviser.   At that point, the position had been vacant for over a year since Harold Koh stepped down in January 2013.  The Administration has now been without a Legal Adviser and the Legal Adviser’s office has been without a confirmed head for over eighteen months, the longest vacancy in recent memory. Even if the President nominates a Legal Adviser this week before the Senate goes on recess, the nominee might well not be confirmed until 2015.

To be clear, this is not a case where the Senate has been slow to act on a nomination. The President has simply failed to nominate a Legal Adviser (after he withdrew his nomination of Avril Haines in June 2013 and instead appointed her as Deputy Director of the CIA). As I noted in January, this is surprising for a President who was a law professor and who touted his strong commitment to international law. The absence of a confirmed Legal Adviser has made it more difficult for the Administration to engage as forcefully as it might to defend U.S. legal positions on drones and NSA surveillance, to criticize other countries who have violated international law (such as Russia for its annexation of Crimea and Syrian President Assad for his use of chemical weapons), or to push important treaties (such as the UN Disabilities Convention) through the Senate.

This is not to detract from the very fine work done by Mary McLeod, the Principal Deputy Legal Adviser who has led the office for the last eighteen months (and who served as Acting Legal Adviser for as long as permitted under the Vacancies Act).   But it is much more difficult for an unconfirmed, career official to deliver forceful bilateral messages or defenses of Administration positions, to give major public speeches on international law, or to make use of social media (such as blogging) in the manner that both Harold Koh and I were able to do.

The names of a several qualified candidates have been circulating for many months.   If President Obama and the White House are serious about their commitment to international law, the President must nominate a new Legal Adviser – either Mary McLeod or another experienced candidate – in the next few weeks.


The Week that Will Be

Monday, July 28, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, July 28 at 3 pm: The Carnegie Endowment for International Peace and the Korean Economic Institute of America will co-host a conference at Carnegie entitled Nuclear Politics on the Korean Peninsula. Panelists will examine the evolving security environment in north-east Asia, and how South Korean aspirations for full nuclear fuel cycle capabilities will affect negotiations with North Korea and the regional balance of power. The list of speakers includes Douglas H. Paal, Donald A. Manzullo, Park Jin, Kang Choi, Chung-min Lee, James Schoff, Troy Stangarone, while Duyeon Kim will moderate. RSVP here.

Monday, July 28 at 4:30 pm: Dr. Christine Fair will launch her latest book entitled Fighting to the End: The Pakistan Army’s Way of War, at the Institute of World Politics. You can find more information and RSVP here.

Tuesday, July 29 at 10 am: The House Armed Services Committee will hold a hearing on the Security Situation in Iraq and Syria: U.S. Policy Options and Implications for the Region. Dr. Steven Biddle, Mr. Max Boot, Mr. Brian Fishmann, and Lt. Gen. (Ret.) Richard Natonski will testify. The hearing will be in 2118 Rayburn. More information here.

Tuesday, July 29 at 10 am: The Senate Foreign Relations Committee will hold a hearing entitled Iran: Status of the P5+1 in Dirksen 419. Wendy Sherman, David S. Cohen, Gary Samore, Olli Heinonen, and Michael Singh will testify. The Committee website has more information.

Tuesday, July 29 at 2 pm: Later in the afternoon, the House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will hold a hearing in 311 Cannon House Office Building entitled Protecting the Homeland from Nuclear and Radiological Threats. Rep. Patrick Meehan (R-PA) will provide opening statements. Witnesses to be announced. More information can be found here.

Tuesday, July 29 at 2 pm: Occurring at the same time, the Woodrow Wilson International Center for Scholars will host a discussion on National Security and Climate Change: What Do We Need to Know? Speakers will cover the military’s perspective, and President’s priorities, and strategies for addressing current climate trends. For a list of speakers and to RSVP, visit the Wilson Center website.

Wednesday, July 30 at 10 am: The House Armed Services Committee hosts a hearing on the Risks to Stability in Afghanistan: Politics, Security, and International Commitment. Witnesses will include Anthony Cordesman, Catherine Dale, Ronald Neumann, and Michael O’Hanlon. The hearing will be live streamed here, or you can attend in 2118 Rayburn.

Wednesday, July 30 at 2 pm: The House Foreign Affairs Subcommittee on Asia and the Pacific will host a hearing reviewing Twenty Years of U.S. Policy on North Korea: From Agreed Framework to Strategic Patience. Glyn Davies, Special Representative for North Korea Policy in Bureau of East Asian and Pacific Affairs at the State Department, and Robert King, Special Envoy for North Korean Human Rights at the Department of State, will testify. The hearing will take place in 2172 Rayburn. More here.


Employment Announcements (More details on the Job Board)

Intern, American Bar Association Standing Committee on Law and National Security

The American Bar Association Standing Committee on Law and National Security seeks an intern for the Fall semester 2014.  Unpaid internship will include research and writing in preparation for the 24th Annual Review of the Field of National Security Law Conference in Washington, DC.  Intern will also have the opportunity to attend and provide summaries of pertinent Congressional hearings, and participate in monthly breakfast programs featuring prominent speakers in the area of national security law. Fall applicants may be undergraduates or currently in law school. (full or part time)   Deadline for submission: September 10, 2014.

Interested applicants should submit a cover letter and resume to: 

Holly McMahon, Staff Director
ABA Standing Committee on Law and National Security
1050 Connecticut Avenue N.W., Suite 400
Washington, DC 20036
[email protected]

CC: [email protected]


Intern, National War College

The National War College seeks interns to assist in developing a course on Politics and the Law for senior military officers.  Terrific opportunity for an unpaid intern to work directly with the Dean of the College. Send resumes and cover letter of interest to [email protected]


Legal Intern, International Committee of the Red Cross

FUNCTION: Legal Intern

DEPARTMENT: International Humanitarian Law (IHL)



FUNCTION DESCRIPTION Intern – International Humanitarian Law


The Intern in the IHL Department at the Washington Regional Delegation of the International Committee of the Red Cross (ICRC) provides research and writing on topics of IHL, other branches of international law, and U.S. law as needed, thus contributing to the thematic and operational priorities of the legal team. Minimum required knowledge & experience:

  • Basic knowledge of IHL and a related legal field (e.g. National Security or Human Rights Law).
  • Excellent oral and written English skills, good understanding of French an asset
  • Currently pursuing a U.S. J.D. or LLM degree or a U.S. J.D. graduate enrolled in a graduate-level program.


Work with the IHL team to provide legal advice to the delegation in Washington, and to the ICRC as a whole on matters of IHL, human rights law, national security law, or other U.S. legal issues.

  1. Research and Writing. Research such topics as scope of application of IHL, detention, conduct of hostilities, cyber/new technology and weapons, and other related topics. Possibility of authoring articles or other short pieces for the ICRC’s U.S. blog (
  2. Monitor Legal Developments Regular monitoring of legal blogs and news coverage to identify significant legal developments of interest to the delegation. In addition to research, the intern will attend conferences and meetings in order to monitor developments on specific legal issues on behalf of the legal team.
  3. Reporting. Regular and timely reporting and analysis on meetings and events attended, as well as a weekly report on any relevant legal developments reported in external sources such as legal blogs. Reports are written for the purpose of ensuring the institution is informed of developments in U.S. policy, as well as to advance its thinking on key issues.

Management and Reporting Line. The IHL Intern reports directly to the IHL Legal Advisor. He/she is expected to collaborate with colleagues throughout the delegation in order to carry out these and other reasonably related duties. The intern will be expected to work 20 hours a week for the Fall Semester, starting at the beginning of September. This is a paid internship. For information about the position, please contact Andrea Harrison at [email protected] To apply, please contact Laure Macabrey at [email protected] Applications are due August 1st, 2014. The position will start on September 2 and go until December 31. It is 20 hours per week, and is a paid internship.

Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States

Sunday, July 27, 2014 at 8:53 PM

While Lawfare readers have been focused on other parts of the world, federal appellate courts have recently issued two significant, and potentially conflicting (in result, if not reasoning), decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision.   In June, a Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States. Last week, a split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by a group of Colombians against Chiquita Brands in connection with its alleged payments to paramilitary forces in Colombia; the panel said that “There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.” Together, the pair of decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations. Read more »

Senators Express Concern on 702 Interpretation

Sunday, July 27, 2014 at 3:43 PM

Ellen Nakashima at the Washington Post reports that four U.S. Senators—Jon Tester, Jeff Merkley, Mark Begich, and John Walsh—wrote a July 24th letter to DNI Clapper expressing their concerns with NSA’s interpretation of Section 702 of the FISA Amendments Act of 2008.

They pull heavily from the PCLOB report released earlier this month, in which the Board observed that Section 702 shifts the government’s burden from showing “probable cause to believe that an individual targeted is an agent of a foreign power” to identifying “categories of information to be collected, which must meet the statutory definition of foreign intelligence information.”

The four Senators conclude that Section 702 collection represents an “unconstitutional violation of privacy rights, wholly inconsistent with American values.” (It’s worth noting that PCLOB itself reached the opposite conclusion, finding that the core of the Section 702 program is constitutional. The Board warned, though, that certain aspects of the Section 702 program—namely, the breadth of incidental collections, “the use of ‘about’ collection to acquire Internet communications that are neither to nor from the target of surveillance,” and the practice of querying for communications of specific U.S. persons—”push the program close to the line of constitutional reasonableness.”)

The letter also included a battery of questions for DNI Clapper: Read more »

A New White House Signal on AUMF Reform?

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Sunday, July 27, 2014 at 1:51 PM

Josh Gerstein of Politico reports that “[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.”  

Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: “The 2001 AUMF has provided us authority to go after terrorist actors and address the threats that they pose that fit within that definition. We are now 13, 14 years on from that and we’re seeing the emergence of other actors. … I think there absolutely is a reason to have an authority to enable us to take the fight to these evolving terrorists that we’ve talked about.”  Monaco’s statement, if we’re understanding it correctly, seems to represent a shift from the White House’s prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.

The commentary that follows in Gerstein’s article plays into a narrative that describes this issue as a stark choice between perpetual and expanded war or a complete end to it.  That’s a poor way to think about it.

As we have been arguing for some time, there are responsible ways to pair new force authorities with substantive and procedural constraints that take account of the past decade’s experience and realistic assessments of current and future threats. There should be serious debate about how to structure and refine such authorities and constraints.

Here is video of Monaco’s speech:

The Foreign Policy Essay: Iran—Maliki’s BFF

Sunday, July 27, 2014 at 10:00 AM

Editor’s Note: The Middle East makes strange bedfellows, and one of the oddest pairings is the de facto alliance between Iran and the United States in Iraq. Across the border in Syria, Iran and the United States support opposing armies, but both countries are helping the Iraqi government confront the jihadist fighters of the Islamic State of Iraq and Syria (ISIS). Iran’s help, however, is likely to be far more substantial, and thus far more important. Afshon Ostovar, a Middle East analyst at CNA Strategic Studies, assesses the purposes and types of Iranian military support and its implications for Iraq and the United States.


Iran, like the United States, is confronting a Middle East that is on fire—but for Iran, the fire is on its doorstep. Syria’s civil war gave new life to the jihadist group formerly known as the Islamic State of Iraq and al-Sham (ISIS), now simply called the Islamic State, which has emerged from the conflict rich in spoils, arms, and recruits. The former Al Qaeda affiliate’s swift movement into Iraq, which culminated in the seizing of Mosul, the country’s second-largest city, as well as a number of other northwestern villages and towns, has plunged Iraq into civil war. Iraq’s embattled prime minister, Nouri Al-Maliki, has turned to his major allies—the United States, Russia, and Iran—for help. All have offered military aid of some sort, but it is Iran that will be the most deeply involved.

Iran considers Baghdad a close friend and has offered to help in any way it can. On June 14, Iranian president Hassan Rouhani unequivocally stated, “If the Iraqi government asks us for help, we may provide any assistance the Iraqi nation would like us to provide in the fight against terrorism.” Iran’s interests in Iraq are many and are fueled by intersecting strategic, religious, and personal impulses, but its immediate concerns and goals are more limited. Above all, Iran wants to maintain the stability of its neighbor and second closest ally after Syria. It wants to preserve its influence in Iraq and its close ties with the leadership in Baghdad, which means keeping Maliki in place and preventing outside pressure (such as from the United States and Saudi Arabia) from replacing him with someone less inclined toward Iran. More practically, it seeks to protect Iranians and Iranian interests in Iraq, particularly Iranian pilgrims, government investments, and businesses in the Shia south. Iran is also concerned with defending Shia holy sites­­––especially the shrines in Najaf, Karbala, and Samarra—from destruction by ISIS militants, which is how Iran’s activities in Iraq are described in the Iranian press. Iran is equally concerned with maintaining border security and preventing ISIS from gaining footholds along the border that could place the group within striking distance of Iranian cities.

Ostovar photo with borderIran will be working discreetly at both the political and military levels to achieve these objectives. Politically, Iran’s foremost task will be mustering support for Maliki among allied Iraqi politicians and Shia militant groups. Iran does not have a monopoly of influence in Iraq—many Iraqi politicians, clergy, and tribal leaders resent Iran’s sway in their country—but it does maintain close ties with individuals and groups (such as the Badr Organization and Kitaib Hezbollah) that can, through various means, affect what happens on the ground and shape decision-making in Baghdad. In the short term, this effort will be aimed at buffering Maliki from U.S. attempts to push him out of office. Iran could live without Maliki, and might have alternative candidates in mind if the push to oust Maliki gains steam, but for now, Iran sees Maliki as a guarantor of the status quo and has put its chips on him remaining in office.

Iran’s political efforts in Iraq will lay the groundwork for its military assistance. This support will involve six main areas: command and control (C2); logistics and planning; intelligence, surveillance, and reconnaissance (ISR); training and organizing; materiel; and limited combat operations. Iran’s effort is being led by the special operations forces branch of the Islamic Revolutionary Guard Corps (IRGC), known as the Quds Force, and its commander, Brig. Gen. Qassem Suleimani. The Quds Force has close ties to Iran’s supreme leader and operates as an official arm of the Iranian regime in areas such as intelligence and military support in foreign countries. Through this work it has developed strong links with segments of Iraq’s military, security forces, and armed Shia militias. It has coordinated with these elements in Iraqi operations in the past, and has led the integration of Shia militias into the Syrian conflict, where Iraqi fighters from groups such as Asaib Ahl al-Haqq, Liwa Abu al-Fadl al-Abbas, and Kitaib Hezbollah were used to guard the shrine of Sayyida Zaynab near Damascus. Suleimani will utilize this network, as well as his extensive connections within Iraq’s security and political establishments, to distribute Iran’s military aid and oversee all operations in Iraq.

The Iraqi government’s military and security forces suffer from inept leadership, deficient logistics, and poor morale. These factors contributed to the near disintegration of Iraqi forces at the Syrian border and in Mosul, paving the way for ISIS’s near-effortless victories. Iran’s effort in refining C2 operations in Syria appear to have helped solidify Asad’s forces in that conflict, and it is likely that Iran intends to affect the fight against ISIS in Iraq through similar C2—as well as logistical—assistance. Read more »

On “Going Dark”

Saturday, July 26, 2014 at 4:00 PM

Today’s Washington Post piece by Ellen Nakashima speaks of “going dark”—or the “growing gap between the government’s legal authority and its practical ability to capture communications.”  The article highlights what is, in my assessment, the most significant long-term consequence of the Snowden disclosures: the increasingly adversarial relationship between the government and the private sector. What follows is my assessment of the operational harms that have resulted from the Snowden disclosures, touching on the issue discussed in Nakashima’s piece, last.

There have been at least four different categories of operational degradation caused by the disclosures. First, there are the actions taken by terrorists, other nations and/or organizations or groups that believe (and may now have confirmation based on leaked documents) that they have been targets of NSA surveillance in the past. Armed with detailed information about how, where, and to some extent, against exactly whom, the NSA has been conducting surveillance, these targets have already or will soon change their behavior and operational security. In some cases, that may mean that the NSA will no longer have visibility on a particular target. In other cases, it may mean that Intelligence Community operators and analysts will devote additional time, effort and attention to discovering a target’s new methods of communication, if possible.

Second, there are the actions taken by the U.S. Government in the past year to scale back collection. Some of this scaling back is in accordance with the recommendations of two outside reviews that were conducted, one by the President’s Review Group and another by the Privacy and Civil Liberties Oversight Board (PCLOB). The President adopted a series of interim reforms which he issued on January 17, 2014, through a new directive, Presidential Policy Directive 28 (PPD-28). PPD-28 provides both clarity regarding current practice for signals intelligence, and additional restrictions on collection, use and information sharing of foreign intelligence information.[1] In addition, the President announced that the government generally would no longer conduct collection activities against specific persons or official positions. The Executive Branch has “made determinations to not pursue surveillance on dozens of heads of state and government,” according to a senior administration official.[2] Read more »

The Lawfare Podcast, Episode #85: Fernando Reinares on “Madrid 3/11 Bombings and the Future of Terrorism in Europe”

Saturday, July 26, 2014 at 1:55 PM

Last week, Professor Fernando Reinares, a senior analyst on International Terrorism at the Elcano Royal Institute, delivered a talk at Brookings on his new book, entitled in English, “Kill Them! Who was Behind 3/11 and Why Spain was Targeted.” The talk covered the March 11, 2004 Madrid bombings, the rise and shape of jihadist networks in Spain, and the evolution of terrorism in Western Europe. In his speech, Reinares provides evidence that the decision to attack Spain was made not in response to the Iraq War, but instead in December 2001 in Pakistan by Moroccan Amer Azizi—previously a charismatic member of Al Qaeda’s Spanish Abu Dahdah cell—and that the Madrid bombing network began its formation in March 2002, more than one year before the start of the Iraq war. He also highlights that as in much of the West today, Spain battles the challenge of jihadist radicalization and recruitment networks that are sending fighters to join the wars in Syria and elsewhere.

Full event information can be found here.

The Week That Was: All of Lawfare in One Post

Saturday, July 26, 2014 at 10:00 AM

As we noted last week, Lawfare recently received 501(c)(3) tax exempt status. Ben offered thanks to those who have already donated—bringing us about halfway to our fundraising goal. For those of you who have not yet contributed, please consider a tax deductible donation. We are looking to redesign and rebuild the site and need the support of dedicated followers like you.

On Wednesday, Jeremy Scahill and Ryan Devereaux published an Intercept article on the National Counterterrorism Center’s (NCTC) rules for classifying someone a terrorist. Wells shared the story with us.

Ben noted the Guardian’s recent interview with Edward Snowden and remarked that the differing accounts of the former contractor’s job at the National Security Agency (NSA) “warrant clarification.”

Susan Landau considered “the NSA’s subversion of the National Institute of Standard’s (NIST) random number generator” and recommended that Congress act to expand the NIST’s budget.

On Tuesday, Paul flagged news that Senate Judiciary Chairman Patrick Leahy (D-VT) and the Obama administration are close to a deal on a Senate NSA reform bill, which appears to be stricter than the House’s USA Freedom Act.

Paul also highlighted some of the major provisions of the Cybersecurity Information Sharing Act of 2014, which was recently voted out of the Senate Intelligence Committee.

In Bits and Bytes this week, Paul noted a number of “conflict-oriented” headlines.

Ben shared the most recent installment of the Lawfare Research Paper Series. In “The Growth of Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Industry Leaders,” Jonah Force Hill, a technology and international affairs consultant, examines the post-Snowden trend toward data localization laws, the problem with such legislation, and methods for countering the negative effects.

Across the pond, Hugo Rosemont analyzed the Data Retention and Investigatory Powers (DRIP) bill, which recently passed the British Parliament. This emergency legislation enables “the retention of communications data and associated powers of interception.”

Cody noted the release of the U.K.’s Independent Reviewer of Terrorism Legislation’s report on 2013 British counterterror laws.

Wells flagged the European Court of Human Rights’ rulings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland.

Ben shared news that Russia has placed a travel ban on Congressman Jim Moran (D-VA), Rear Adm. Richard Butler, Brig. Gen. Ricardo Sanchez (ret.), Col. Janis Karpsinky (ret.), Judge Gladys Kessler, and Lynndie England.

In this week’s Foreign Policy Essay, former Under Secretary of Defense (Comptroller) Dov Zakheim argued that the United States should allow other countries to take the lead on international development. “America has many strengths, but nation-building is not one of them.”

Stewart Baker provided the Steptoe Cyberlaw Podcast. Orin Kerr, a professor at George Washington University Law School, served as this week’s guest speaker.

Ben posted this week’s Lawfare Podcast, which featured a discussion with Steve Vladeck and Wells on the D.C. Circuit Court’s en banc opinion in United States v. Al Bahlul.

This week, the U.S. District Court for D.C. denied two former Guantanamo detainees’ petitions. Cody shared Judge Ellen Segal’s opinion in Ameziane v. Obama, while Ben provided Judge Richard Leon’s ruling in Rimi v. Obama.

Jody Liu examined recent updates to the Second Circuit case involving the New York Times and the ACLU’s Freedom of Information Act (FOIA) requests on U.S. targeted killing.

Wells flagged news that the military judge in the 9/11 case has severed Ramzi Binalshibh from the terrorism trial proceedings.

Wells also shared news that a defense lawyer for former Guantanamo detainee Omar Khadr got in trouble over documents related to U.S. v. Khadr given to Lawfare.

In media criticism this week: Jack noted a piece written by the Washington Post’s Chris Cillizza on the many, seemingly intractable, problems that modern American presidents face. Jack recommended an essay by Arthur Schlesinger, Jr., which explains why Cillizza’s view is wrong.

Charles Blanchard reviewed Robert Farley’s new book, Grounded: The Case for Abolishing the United States Air Force. He found the book, which argues against an independent U.S. Air Force, to be “fundamentally flawed.”

And that was the week that was.

“Omar Khadr’s Lawyers in U.S. Threatened Over Release of Court Documents”

Friday, July 25, 2014 at 4:59 PM

That is the headline to an article in the Winnipeg Free Presswhich I came across today. The piece concerns recent proceedings in Omar Khadr’s (stayed) appeal before the Court of Military Commission Review.  It opens thus:

TORONTO – A U.S. military commission court is threatening to strip the security clearance from Omar Khadr’s Pentagon-appointed lawyers as part of what they call an unconstitutional attempt to keep the public in the dark about the Canadian’s fight for exoneration.

At issue, according to submissions made Friday, is a demand by a senior court official that all appeal documents be kept secret until they can be vetted for national security concerns.

Documents already filed with the Court of Military Commission Review include, for example, the former Guantanamo Bay prisoner’s reasons for having his conviction for five war crimes quashed. The court has yet to release the brief, filed last November, although The Canadian Press obtained a copy at the time and reported on its contents.

The matter came to a head earlier this month when Clerk of Court, Mark Harvey, essentially accused the lawyers of giving a defence filing and government response to the U.S.-based blog Lawfare in apparent violation of security procedures he had implemented.

On NSA’s Subversion of NIST’s Algorithm

Friday, July 25, 2014 at 2:00 PM

Of all the revelations from the Snowden leaks, I find the NSA’s subversion of the National Institute of Standards’s (NIST) random number generator to be particularly disturbing. Our security is only as good as the tools we use to protect it, and compromising a widely used cryptography algorithm makes many Internet communications insecure.

Last fall the Snowden leaks revealed the NSA had influenced cryptography specifications as an “exercise in finesse.” It wasn’t hard to figure out which algorithm had been tampered with. Questions had been raised earlier about Dual EC-DRBG, a “pseudo random bit generator.” (A pseudo random bit generator means the algorithm provides a longer string whose properties mathematically approximate those of a shorter random string; uses of the longer string include providing a key for encrypting communications.) There were two problems here. The removal of the compromised algorithm was handled quickly. The more subtle issue was the impact of NSA’s compromise. This has undermined NIST’s role in developing security and cryptography standards and is likely to have serious long-term effects on global cybersecurity.

This might sound surprising, since NIST’s Computer Security Division (CSD) is solely responsible for developing security and cryptographic standards for “non-national security”— civilian—agencies of the US government. But CSD’s success at promulgating strong cryptography through an open consultative process has given rise to standards widely adopted by industry, both domestically and internationally. Now that success is at risk. To understand the current situation, we need to go back several decades. Read more »