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The Lawfare Podcast: A Conversation with James Comey

Saturday, May 30, 2015 at 2:19 PM

It isn’t every day that a former general counsel at one security agency interviews the current head of another security agency. And it really isn’t every day that the director of the FBI calls big company general counsels “obstructionist weenies.” But last week, FBI Director James Comey spoke at the 3rd Annual Cybersecurity Law Institute. The interviewer was Benjamin Powell, former general counsel to the director of national intelligence and currently a partner at WilmerHale. It’s a wide-ranging and unusually informative conversation–about ISIS, about cyber threats, about encryption, and about recruiting tech talent to the government.

And yes, Comey really does call big company GCs “obstructionist weenies”—albeit jokingly.


You can watch the video here:


The Week That Was: All of Lawfare in One Post

Saturday, May 30, 2015 at 9:54 AM

On Monday, the United States celebrated Memorial Day. President Obama marked the holiday by giving an address at Arlington Cemetery. He noted that this was “the first Memorial Day in 14 years that the United States is not engaged in a major ground war.” Cody and Ben pointed out, however, that though the President’s rhetoric has affirmed the end of the war in Afghanistan, the Justice Department continues to argue in court that operations there are ongoing. Nathalie Weizmann discussed exactly what constitutes the end of hostilities and what that meant for individuals still being detained at the military prison at Guantanamo Bay. Ganesh Sitaraman and David Zionts introduced the role that behavioral psychology plays in decisions about war.

In summary: The war is over. Long live the war.

Unless Congress acts during its emergency session tomorrow, Section 215 of the USA Patriot Act will expire on Monday, but as Susan Landau noted yesterday, “Congress is playing brinksmanship again [so] what will happen this weekend remains unclear.” Susan examined the USA Freedom Act, a compromise bill supported by President Obama and accepted by the intelligence community, arguing that Congress should approve the legislation.

Meanwhile, Dan Geer examined six points, at which science is driving forward cybersecurity policy, and discussed the implications of these ideas. They include, in his formulation: identity; ownership as perimeter; control diffusion; communications provenance; everything is unique; opaqueness is forever.

This week’s Foreign Policy Essay considered the role of militia forces in maintaining security in the Middle East. Ariel I. Ahram and Frederic Wehrey used the Iraqi National Guard as a case study, analyzing the lessons it offers for Arab states’ continued reliance on militias for the preservation of order.

Yishai Schwartz considered the P5+1 nuclear negotiations with Iran and their “aura of inevitability.” He examined the steps that might lead to an alternative agreement—that “better deal” critics have been calling for—and notes that “either path represents a seismic gamble. . . . All choices carry risks.”

On Tuesday, Beijing released its first public white paper on Chinese military strategy. Cody linked to the document, which discusses, among other things, cybersecurity, the situation in the South China Sea, and relations between Beijing and the United States.

Vice President Joe Biden visited the Brookings Institution on Wednesday and gave an address on the ongoing conflict in Ukraine; Cody shared the live footage of the Vice President’s remarks:

Cody also posted this week’s Lawfare Podcast, which featured a roundtable discussion on the success of Indian Prime Minister Narendra Modi’s government one year after it took office. The panelists—Tanvi Madan, Bruce Jones, Diane Farrell, Vikram Singh Mehta, and Milan Vaishnav—considered Indian public policy, expectations for the future, and implications for the United States.

Stewart Baker brought us the Steptoe Cyberlaw Podcast. This week’s episode included a conversation with CATO Institute senior fellow Julian Sanchez.

Meanwhile, Ben shared the most recent Rational Security podcast. Tamara was out this week, so Ben and Shane Harris “settled in” with some scotch to discuss privacy erosion, tiny drones, and relations between the press and the intelligence community. (Pour yourself a glass while listening!)

Jack informed us of the passing of a friend and colleague, Dan Meltzer. A professor at Harvard Law School, Meltzer served as Deputy White House Counsel during the Obama administration and then later on the Intelligence Oversight Board. Jack noted, “Dan was always, really always, kind and generous and gracious in dealing with others.” Matthew Olsen added his thoughts, saying, “As a national security lawyer, Dan is a model for all of us, though it is hard to imagine anyone in the field matching Dan’s intellect, dedication, and integrity. As a person, Dan will be remembered for his humility, generosity, and grace.”

Time to Resolve the Metadata Fight

Friday, May 29, 2015 at 5:29 PM

Congress is playing brinksmanship again, this time over the national-security metadata collection program. Until the Second Circuit concluded that Section 215 of the USA PATRIOT Act did not authorize bulk metadata collection, it looked as if the law would be renewed before its expiration at midnight on May 31. Because of the court decision, a simple reauthorization of Section 215 is no longer possible. A hard decision has to happen. That has proved highly problematic.Last week the Senate failed to pass the USA FREEDOM Act, with opposition on various sides of the aisle. Tim has a good analysis of this; the short version is some hope to pass new legislation preserving bulk collection while others feel the USA FREEDOM Act doesn’t go far enough.  What will happen this weekend remains unclear.  USA FREEDOM has been endorsed by many, including the president. The bill enables the IC to do its job while protecting the letter and spirit of the Fourth Amendment, and I believe it is a good solution.  It’s worth examining the alternatives to see what is going on, and why the USA FREEDOM Act should be passed.

As Jodie and Ben have already described, the USA FREEDOM Act requires that any government collection of a metadata be based on a narrowly focused “specific selection term.”  This precludes the broad collection that Section 215 had been alleged to permit before the Second Circuit ruling.  By allowing call records can be obtained two “hops” from the initial data, the bill follows the standard for using the call metadata that has been in place since early 2014.  The bill also provides an adversarial process in the Foreign Intelligence Surveillance Court (FISC) — amici curae to be appointed by the FISC. Finally the bill requires some public exposure: the government must disclose the number of orders and estimates on the number of people targeted and affected by the orders. While significantly more detail is available on Title III wiretaps in the annual Wiretap Reports, it is not unreasonable that information on national-security surveillance should be more limited.

The objections to USA FREEDOM largely lie in whether or not the call metadata the government might seek will actually be obtainable when the government needs it. Under the bill, government access to call records is limited to data that telephone companies store — and by the length of time they happen to store it. Thus instead of USA FREEDOM, some in Congress would prefer a “data retention” bill requiring telephone companies to store call detail records for a period of two to five years. This would change the system from government retention of bulk communications metadata to company retention.  That is not a requirement that the telephone companies want, and they will fight hard against such a proposal. So decisions about which approach to pursue all come down to “How necessary is the data?”

Read more »

Today’s Headlines and Commentary

Friday, May 29, 2015 at 2:23 PM

As Iraqi forces focus on driving ISIS out of Ramadi, two bombings rocked Baghdad yesterday, killing 15 and wounding 42 more. The Associated Press reports that the two car bombs detonated late Thursday night at two hotels in the capital city. While ISIS did not immediately claim responsibility, a government spokesman blamed the group and warned that such attacks will continue while government forces and Shiite militias prosecute their campaign against ISIS militants. “Iraq is in a state of war and what happened in Baghdad is a product of that war.”

As the United States reevaluates the campaign against ISIS in Iraq after the fall of Ramadi, the U.S. Army Chief of Staff indicated he was open to embedding U.S. troops with Iraqi forces. DefenseOne writes that Gen. Raymond Odierno said yesterday that “Embedded advisors, with increased risk to our soldiers, probably would make this more effective.” While also voicing approval for deploying more Army trainers to Iraq, he warned that an increased U.S. military presence could worsen sectarian or ISIS violence in the country.

Elsewhere in Iraq, Iraqi security forces and Shiite militias are fighting to retake the Beiji oil refinery from ISIS militants. Al Jazeera reports that significant sections of the large refinery complex, which has been violently contested for months, came under ISIS control in early May. A combinaton of police, soldiers, and special forces remain in the complex, however, and reportedly have designs on quickly rooting out the ISIS militants.

Across the border in Syria, ISIS is working to solidify its control of Palmyra, the ancient city it seized last week. The New York Times details these efforts, which vacillate between terrorizing and courting the locals. Soon after ISIS captured the city, for example, militants executed dozens of people and left their bodies strewn in the streets, only to then reopen the city’s sole bakery and begin giving out free bread to residents.

As ISIS works to subdue Palmyra, other Islamist rebels, including militants from the al Qaeda affiliate al Nusra Front, took control of Ariha, one of the Syrian government’s last remaining strongholds in the western Idlib Province, according to activists on the ground. The BBC notes that the victory would mark the latest in a string of rebel victories in Idlib and would leave most of the province, which borders Turkey, under rebel control. However, the Syrian army has claimed that there is still intense fighting ongoing in Ariha.

The Washington Post reveals that a Tajik special forces commander trained by the United States has defected to Syria to join ISIS. Col. Gulmurod Khalimov, who led the Tajik Interior Ministry’s special forces and received training in both Russia and the United States, appeared in a recent video proclaiming his allegiance to ISIS and warning that he’s been joined by a significant number of other Tajik men who are now fighting for ISIS.

A car bomb exploded outside of a Shiite mosque in Saudi Arabia earlier today, killing four people. ISIS has claimed responsibility for the attack, which follows another similar attack on Shiite Saudis that it claimed last week. Reuters explains that the militant group has been open about its goal of stirring sectarian conflict in the country as a way to bring about the overthrow of the Saudi ruling family.

ISIS also continues to take advantage of the chaos in Libya. The AP reports that ISIS’s Libyan affiliate has taken control of a civilian air base in the central city of Sirte, which has served as the group’s stronghold in the country.

In northern Afghanistan, civilians are bearing the brunt of the fighting between Afghan security forces and Taliban militants. The AP writes that already 100,000 people have been forced from their homes in the region. Those that remain are often used by militants as human shields, hampering government efforts to beat back the Taliban.

U.S. surveillance imagery shows that China has placed weaponry on one of the islands it has constructed in the South China Sea, the Wall Street Journal reports. U.S. officials noted that the weaponry couldn’t threaten U.S. ships or planes, but could reach nearby islands, including one claimed by Vietnam. These revelations come just as the Chinese ambassador to the United States accused the U.S. government of overreacting to China’s land-reclamation efforts in the disputed waters of the South China Sea. In an interview with the Journal, Ambassador Cui Tiankai claimed that the U.S. response to China’s aggressive territorial claims in the sea has raised many questions in China, including if “there [is] an attempt to replay the Cold War in Asia?”

As the June 1 sunset of key provisions of the USA Patriot Act looms, top Senate Democrats are pushing Senate Majority Leader Mitch McConnell (R-KY) to drop his opposition to the USA Freedom Act, which would reform the NSA’s intelligence practices while preserving some of the law’s expiring powers. In a statement released ahead of a Sunday Senate session, the Senate’s top four Democrats said that “we have not moved any closer towards a solution,” and took Sen. McConnell to task for his decision to block USA Freedom. That decision, the statement notes, has “left our country without a clear path forward when it comes to our national security and civil liberties.” The Hill has more.

If the Senate fails to reach a compromise, and certain government surveillance authorities do expire on Monday, those authorities may be gone for good, writes Shane Harris. Indeed, lawmakers note that a vote to reinstate lapsed surveillance powers requires a much different calculation than a vote to reform but largely maintain those same powers. According to Sen. Mike Lee (R-UT), “There were members who voted for the USA Freedom Act who would feel differently about reinstating those provisions” if they sunset.

A new Pew poll suggests that a majority of Americans continue to support drone strikes against extremists. 58 percent of Americans surveyed approved of U.S. drone strikes against extremists in places such as Pakistan, Yemen, and Somalia; 35 percent disapproved. However, 48 percent said they were “very concerned” that drone attacks endanger innocent civilians. The Hill covers the poll.

Parting Shot: All Drones Great and Small: Popular Science details China’s “Divine Eagle,” the world’s biggest drone, while DefenseOne reveals that U.S. Special Forces are experimenting with the 18-gram “Black Hornet,” the smallest drone to ever be used in combat operations.

ICYMI: Yesterday, on Lawfare

Nathalie Weizmann teased out some of the crucial legal distinctions between the end of active hostilities and the end of armed conflict.

Ganesh Sitaraman and David Zionts pointed us to their new NYU Law Review article on the lessons that behavioral psychology has for constitutional debates on war powers.

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.

Where the Science is Taking Us in Cybersecurity

Friday, May 29, 2015 at 10:37 AM

Science tends to take us places where policy cannot follow. Policy tends to take us places where science cannot follow. Yet neither science nor policy can be unmindful of the other. Here I will confine myself to six points where I see science, including applied science, asking us to look ahead (The following is necessarily short; for a longer treatment of the science of security, per se, see “T.S. Kuhn Revisited,” keynote to biennial meeting of NSF Principal Investigators, February 6, 2015.):

  1. Identity
  2. Ownership as perimeter
  3. Control diffusion
  4. Communications provenance
  5. Everything is unique
  6. Opaqueness is forever

1. Identity

Miniaturization will continue its long-running progression and, in consequence, devices will continue to proliferate into spaces in which they were never before present. Burgeoning proliferation demands device autonomy, and will get it. For autonomy to not itself be a source of irredeemable failure modes, devices will have individual identities and some degree of decision-making capacity.

As device counts grow, device identity eclipses (human) user identity because user identity can be derived from device identity insofar as the proliferation of devices means that users are each and severally surrounded by multiple devices, devices whose identity is baked into their individual hardware, as is already the case in mobile telephony.

There is then neither need nor process to assert “My name is Dan” as Dan’s several devices will collectively confirm that this is Dan, perhaps in consultation with each other. As per Zuboff’s Laws (Everything that can be automated will be automated. Everything that can be informated will be informated. Every digital application that can be used for surveillance and control will be used for surveillance and control.), all devices are therefore sensors and as the devices themselves have immutable device identities, Dan’s claim to being Dan is decided algorithmically. And distally.

Cryptographic keys for users thus become irrelevant as devices will have them, thereby freeing users from key management, much less password drills. The Fifth Amendment is entirely mooted, as Courts have already ruled that only something you know is protected thereunder, not something you are or have—that is to say that production of devices under subpoena cannot be thwarted. (See Virginia v. Baust, CR 14-1439, 28 Oct 2014.)

The longstanding debate over whether identity should be name-centric (where “Dan” is the identity and some key is an attribute of “Dan”) or key-centric (where the key is the identity and “Dan” is an attribute of that key) is thus decided in favor of key-centricity though the keys are now held in a fog of small devices. This setting mimics how a stratum of elite people carry neither identification nor money—in the context of their retinue there is no need for such.

For the result of this data fusion to not be a unitary identity for the individual user, policy will have to demarcate data fusion with a vigor it has never before dared. (Privacy is the effective capacity to misrepresent yourself, ergo, it is your devices that give pawns to fortune. See “Tradeoffs in Cyber Security.”) Read more »

Rational Security: “The ‘How Much is a Copy of Orgasm?’ Edition”

Friday, May 29, 2015 at 7:49 AM

Shane and I were alone for yesterday’s taping of Rational Security, Tamara being away on an overseas trip, so we pulled out the Scotch and had a conversation about two of my recent pieces of work: Jodie Liu and my paper about The “Privacy Paradox: The Privacy Benefits of Privacy Threats” and an idea I floated last week for ameliorating press-intelligence community tensions over classified information. It’s a good conversation—one that also touches this fascinating story about tiny drones that special forces are using. (I will have more to say about that in a separate post.)

For those who are new to Rational Security, you can subscribe through its RSS feed, on iTunes, or on Stitcher.

Psychology and War Powers

By and
Thursday, May 28, 2015 at 4:00 PM

The common denominator of nettlesome war powers questions is who should make the difficult and freighted decisions about whether the nation goes to war, how it fights a war, and when it ends a war. Surprisingly, however, scholars and commentators rarely (if ever) discuss how psychological research on decisionmaking impacts the constitutional design  and doctrine around war powers issues. In the last four decades, psychologists have demonstrated systematic biases in individual and group decisionmaking processes. This behavioral revolution has been no stranger to legal scholarship, particularly in the field of law and economics, where it has been used as a corrective to some of the oversights of the more rationalist approaches that preceded it. The behavioral revolution has also provided important insights to scholars of international relations, where political scientists increasingly write in the subfield of political psychology and international relations. In fact, psychologist Daniel Kahneman and political scientist Jonathan Renshon have recently collaborated on an important article that argues that behavioral psychology has valuable lessons for decisionmaking on war and peace.

Over at the NYU Law Review, we have a new Article that introduces important lessons from behavioral psychology into constitutional debates on the doctrine, structure, and design of war powers. We explore how a variety of behavioral lessons (we don’t cover everything, but hit the big ones) can be applied to contemporary doctrinal debates in war powers—debates about threatening wars, initiating wars, fighting wars, and ending wars. These debates include some of the most important from the last fifteen years, including the ability of the President to use force without prior congressional approval, as well as the scope of the Commander-in-Chief power in allowing the President to override congressional restrictions on war-fighting tactics. We also identify broad insights and particular design strategies that, independent of contemporary debates or doctrinal constraints, are worth considering when assessing the design of war powers (though they might be particularly of interest to those engaged in debates over the design of a new AUMF or a revised War Powers Resolution).

Our hope is that introducing these psychological considerations into the conversation will help us to better understand persistent problems affecting decisions on war and peace, and to identify ways of addressing them.

Ganesh Sitaraman is an Assistant Professor of Law at Vanderbilt Law School

David Zionts is a lawyer in Washington, D.C. 

The End of Active Hostilities Versus the End of Armed Conflict  

Thursday, May 28, 2015 at 2:17 PM

On Tuesday, Ben and Cody noted the apparent tension between President Obama’s Memorial Day comments about the end of the war in Afghanistan and the Justice Department’s arguments in the Al Warafi case. The following day, in a post over at Just Security on the “end of war” dispute in that case, Marty Lederman highlighted the crux of the debate between the US government and attorneys for Al Warafi on whether or not international law now requires his release.

Under international humanitarian law, what defines the point at which a detainee must go free? Is it the end of active hostilities? The end of the conflict? (And are those points the same or different?) Is it the word of the President? Facts on the ground? Or something else?

Attorneys for both the detainee and the Department of Justice are correct in their understanding of the law governing international armed conflict, which informs the interpretation of the detention authority under the 2001 AUMF. IHL requires release at the end of active hostilities (if not before) unless the person is being prosecuted or serving a sentence. The rationale is as follows: “[i]n time of war, the internment of captives is justified by a legitimate concern to prevent military personnel from taking up arms once more against the captor State. That reason no longer exists once the fighting is over.” (The same rationale applies in non-international armed conflict: “measures restricting people’s liberty, taken for reasons related to the conflict, should cease at the end of active hostilities.”).

Lawyers for Al Warafi argue that active hostilities have necessarily ceased if the war in Afghanistan is now over, as numerous Presidential statements claim. In response, the DoJ argues: “Although the United States has ended its combat mission in Afghanistan, the fighting there has not stopped. … the end of the combat mission does not mean the cessation of active hostilities.” In other words, the petitioner is arguing that hostilities have ended because the entire conflict has ended, while the DoJ appears to be saying active hostilities continue and only the specific offensive combat mission has ended. Read more »

Today’s Headlines and Commentary

Thursday, May 28, 2015 at 2:04 PM

In Iraq, Shia militia forces fighting to retake Anbar province and its capital Ramadi have decided to rename their military campaign. Originally, the title referenced a figure holy to Shia Islam, thus exacerbating sectarian tensions, as Anbar province is home to a Sunni Iraqis majority. According to Reuters, the campaign’s new name translates to “At Your Service, Iraq.” CNN shares updates on the fight to retake Ramadi.

An Iraqi soldier who had been part of the withdrawal from Ramadi shared his account of the events with Radio Free Europe. He claimed that Iraqi forces’ retreat prevented a “massacre,” as they had insufficient weapons and munitions and little air cover. In reference to U.S. Defense Secretary Ash Carter’s statements that Iraqi troops had “no will to fight,” the soldier said, “I would be lying if I said we don’t have the desire. But desire without the needed wherewithal is not enough.”

Secretary Carter announced today that U.S. military officials are reviewing how they can better train and equip Iraqi security forces, following the fall of Ramadi. Reuters shares more on Secretary Carter’s statements.

The Associated Press notes that in particular, the Defense Department is looking into how it can better empower Sunni tribes in the fight against the Islamic State.

The Washington Examiner wonders whether Baiji will be the next Iraqi city to fall to the Islamic State, as the elements that made Ramadi vulnerable to the militant group similarly exist in Baiji. According to Kenneth Katzman, a senior analyst at the Congressional Research Service, “The same problems that plague Iraqi forces elsewhere are in play at Baiji – ineffective leadership, confused chains of command, interference by political loyalists, and apathy, at best, from the surrounding Sunni population that continues to distrust Baghdad.”

According to the New York Times, there are more internally displaced Iraqi civilians now than there were during the height of fighting following the U.S. invasion of Iraq in 2003. Approximately three million people are currently on the run from the Islamic State, and almost eighty-five percent of them are Sunnis. The displaced Sunnis are at the mercy of their Shia neighbors, but unfortunately, “doors in Iraq are closing” with Sunnis “frequently treated as security threats rather than as suffering fellow citizens.”

In a Washington Post editorial, John McLaughlin, who served as deputy director and acting director of the Central Intelligence Agency from 2000 to 2004, examines what it would take for the Islamic State to win in the Middle East.

Following its takeover of the Syrian city of Palmyra last week, the Islamic State has posted photos of the UNESCO World Heritage site, showing that its ancient ruins remain unharmed. Reuters was unable to independently verify the images, but notes that activists still inside the city have confirmed that the ruins have not sustained damage thus far.

The Post describes what remains of Kobani, a strategic Syrian border town retaken by Kurdish forces from the Islamic State earlier this year. According to a report released yesterday by Handicap International, the “people [of Kobani] must contend with a horrific array of unexploded ordnance, ranging from bombs and mortars to corpses that have been booby-trapped with improvised explosive devices.” The Post shares photos and charts, showing the destruction sustained by Kobani.

The Long War Journal reports that an airstrike, conducted in Syria a few days ago by the U.S.-led coalition against the Islamic State, killed Said Arif, the leader of Jund al Asqa, a Syrian rebel group associated with al Qaeda. “The US State Department designated Arif as a terrorist on Aug. 18, 2014, identifying him as an ‘Algerian army officer deserter, who traveled to Afghanistan in the 1990s, where he trained in al Qaeda camps with weapons and explosives.’”

Over at Overt Action, Kevin Strouse, a former Army Ranger and a former CIA counterterrorism analyst, explains the bureaucratic process that follows the killing of a terrorist leader.

Reuters shares an exclusive report that Russia is amassing troops and firepower just thirty miles from its Ukrainian border. Moscow has created a makeshift base in the area, where it has stationed “mobile rocket launchers, tanks, and artillery.” None of the weapons or servicemembers bear insignia or plates identifying them as Russian. Reuters notes, “As such, they match the appearance of some of the forces spotted in eastern Ukraine, which Kiev and its Western allies allege are covert Russian detachments.”

Meanwhile, the AP reports that Russian President Vladimir Putin has issued a new decree, classifying the deaths of Russian troops involved in “special operations.” Given that Moscow is currently in a state of peace, “the decree comes as [further] evidence of Russian involvement in the conflict in eastern Ukraine.”

Vice President Joe Biden spoke at the Brookings Institution yesterday, where he discussed the conflict in Ukraine. He called the current situation there a “humanitarian tragedy created by Russian aggression” and affirmed that Moscow’s actions have “literally transformed the landscape of European security.” Here at Lawfare, Cody linked to video footage from the event. Politico notes that the Vice President’s statements “did not directly contradict those of Secretary of State John Kerry… [though] Biden did strike a tougher tone in dealing with the Russian government.”

NATO Secretary-General Jens Stoltenberg spoke at the Center for Strategic and International Studies (CSIS) yesterday, where he noted that Moscow’s threats to build nuclear weapons systems in Kaliningrad (near Poland) and Crimea (near Ukraine) “would fundamentally change the balance of security in Europe.” Moreover, he asserted that “Russia’s nuclear sabre-rattling is unjustified, destabilizing and dangerous.” The Wall Street Journal shares details.

In a speech in Hawaii yesterday, Secretary Carter took a firm stance against China’s land reclamation practices in the South China Sea, saying, “China is out of step with both international norms that underscore the Asia-Pacific’s security architecture, and the regional consensus in favor of non-coercive approaches to this and other long-standing disputes.” According to the Post, Secretary Carter also maintained that the U.S. will continue to patrol international waters and airspace in the region, despite recent bluster from Beijing.

The official state paper in China revealed today that the Beijing government is working on a five-year cybersecurity plan that is expected to better safeguard state secrets and other information. According to Reuters, the plan will likely force Chinese government agencies to buy technological software from domestic purveyors.

Nuclear negotiators from Iran and the P5+1 group are working to come up with a comprehensive agreement by their self-imposed June 30 deadline. Today, after meeting with his Greek counterpart in Athens, Iranian Foreign Minister Mohammad Javad Zarif said he believes a final deal can be achieved “within a reasonable period of time. He noted, however, that “if people insist on excessive demands, on renegotiation, then it will be difficult to envisage an agreement even without a deadline.” Reuters shares more.

Meanwhile, the Times reports that the top U.S. nuclear negotiator announced yesterday that she will step down from the State Department following the June 30 deadline. Wendy Sherman has served as Undersecretary of State for Policy since 2013. “With her departure, all the top officials who have negotiated with Iran over those two years will have left the administration, leaving questions about who will coordinate the complex process of carrying out a deal if one is struck by the deadline.”

Yesterday, Saudi Arabia sanctioned two Hezbollah leaders, Khalil Yusif Harb and Muhammad Qabalan, for their involvement in regional terrorism. The Wall Street Journal notes that the announcement is “a sign of the kingdom’s growing coordination with the U.S. Treasury Department.”

The Times reports that airstrikes conducted in Yemen yesterday by the Saudi-led Arab military coalition allegedly killed eighty people, the highest death toll for a single day since the start of the campaign in March. According to the World Health Organization, a third of the Yemeni population is “in urgent need of medical care.”

The Obama administration has warned that Congress is “playing national security Russian roulette” by waiting until the last second to potentially renew key provisions of the USA Patriot Act. The White House has backed the USA Freedom Act, which authorizes metadata collection programs, but institutes significant reforms. The Post notes that the administration’s recent statements constitute its last “big push to try to sway public opinion as Senator Rand Paul (R-Ky.), a presidential candidate, appears intent on taking a stand against mass surveillance that could well take Congress past a June 1 deadline to renew the authorities.”

Defense One examines what Senator Rand Paul (R-KY)’s endgame might be with regard to reform of the NSA metadata collection program.

ICYMI: Yesterday, on Lawfare

Matthew Olsen eulogized Dan Meltzer, who died over the weekend.

Cody shared video footage from Vice President Joe Biden’s remarks at the Brookings Institution on the conflict in Ukraine.

Stewart Baker posted this week’s Steptoe Cyberlaw Podcast, which featured a conversation with CATO Institute senior fellow Julian Sanchez

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 #68: An Interview with Julian Sanchez

Wednesday, May 27, 2015 at 5:04 PM

Our guests for Episode 68 include Julian Sanchez, senior fellow at the CATO Institute where he studies issues at the busy intersection of technology, privacy, and civil liberties, with a particular focus on national security and intelligence surveillance. They also include the entire May meeting of ISSA- NOVA, which kindly invited the Cyberlaw Podcast to go walkabout once again. The audience provides useful feedback on several of the topics covered in this episode.

We begin with This Week in NSA.  And even though we had no idea how the Senate process would end up, neither it turns out did Majority Leader McConnell or anyone else. Our remarks on the Congressional dynamic remain as relevant now as when we made them, despite our intimations of obsolescence. We also cover an early judicial decision on insurance coverage for data breaches (subscription required), the US indictment of (another!) six Chinese economic espionage agents, and the personal data orphaned by Radio Shack’s bankruptcy.

More importantly, we seize on a flimsy pretext to revisit Max Mosley’s five-hour, five hooker sadomasochistic orgy (subscription required) and his self-defeating efforts to wipe it from the internet by threats of lawsuit. It turns out he’s now reached a settlement with Google. I speculate that perhaps we’ve misread Mosley all this time. Maybe he’s doing this because of the Streisand effect, not in spite of it. It’s like he wants the internet to punish him, or something …

Returning to serious coverage, we note that CCIPS and the Justice Department may be suffering from Baker Derangement Syndrome in the face of my defense of private cyber-investigation that goes beyond network boundaries. The Department’s latest effort involves persuading CSIS and a group of CISOs to join a draft paper that looks suspiciously like a DOJ brief in opposition to the Cyberlaw Podcast. And the supposed consensus among CISOs that’s identified in the paper breaks down quickly, rejected ten to one in an informal poll of the ISSA-NOVA audience.

Julian and I mix it up over the new, revived Crypto Wars, as I challenge the claim that building access to encryption systems is always a bad idea. That, I say, will come as news to all the network security administrators who access end-to-end TLS sessions on a routine basis because the security consequences of not “breaking” that crypto are worse than the corporate front door. He recommends that I ask Dan Kaminsky to comment on that statement, and since Dan will be a guest on the podcast soon, we’ll all get to hear his answer.

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to [email protected].  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Download the sixty-eighth episode (mp3).

Subscribe to the Cyberlaw Podcast here. We are also now on iTunes and Pocket Casts!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Today’s Headlines and Commentary

Wednesday, May 27, 2015 at 2:40 PM

Shiite militias launched an offensive yesterday to take back Ramadi, relieving Iraqi security forces who lost the territory just over a week ago. The “popular mobilization units,” another name for the militias, plan to secure the Baiji oil refinery and other areas in the neighboring Salahuddin province, before continuing on to Ramadi within the week.

In a sign of what many fear is a coming sectarian battle, the Shiite militias have named the battle for Ramadi “Labayka ya Hussein” — a reference to one of Shiite Islam’s most revered figures. Pentagon spokesman Col. Steve Warren called the code name “unhelpful.” However, the mood on the ground is different. The Washington Post quotes an officer in the Iraqi army as saying, “[t]he unit’s religious fervor is needed in the face of the Islamic State’s extremism. They fight with faith. we need their energy.”

Even so, the early battle has already taken a dark turn, with ISIS extremists launching a wave of suicide attacks against the Iraqi army in Anbar province, killing at least 17 troops yesterday. According the the Associated Press, the attacks were launched just outside the ISIS-held city of Fallujah. Sandstorms apparently once again played a role, with the militants using the storms as cover to initiate the deadly wave of attacks.

Pentagon officials told Al Jazeera that the Iraqi army held a 10-to-1 advantage over advancing ISIS forces in Ramadi. That news follows a report by Politico, which divulges that while Secretary of Defense Ashton Carter may have taken some fire for his recent comments suggesting the Iraqi army lacked the will to fight, he was “hailed as a hero of sorts by the top brass” for saying loud and clear what they had been warning for months.

After Hamas fired rockets into the port city of Ashdod yesterday, Israeli aircraft struck a number of sites in the along the Gaza Strip, reports Reuters. The Israeli military said that it had hit four “terror infrastructures.” At the time of writing, no casualties had been reported.

Airstrikes also continued in Yemen, as the Saudi-led coalition bombed “police commando”  facilities in the capital of Sanaa, killing at least 36 people according to the Associated Press. Witnesses told the AP that the coalition also bombed a naval base in western Hodeida and the northern Houthi strongholds of Saada and Hajjah. In total, the World Health Organization estimates that the violence has killed at least 2,000 people since March 26.

International negotiations with Iran over its nuclear program are likely to extend beyond the June 30th deadline according to Gerard Araud, the French ambassador to the United States. Speaking alongside him on a panel at the Atlantic Council, British Ambassador Peter Westmacott seemed to agree, saying in reference to the deal, “it’s not yet in the bag.”

And from Iran comes leaked video from inside a closed session of parliament in which hardline lawmaker Mahdi Kouchakzadeh accuses Foreign Minister and chief nuclear negotiator Javad Zarif of being a “traitor.” The video pulls back the curtain a bit on some of the ongoing internal arguments erupting throughout the Iranian political establishment over just how much Tehran should concede in order to reach a nuclear deal with world powers.

Overnight in Kabul, four Taliban gunmen stormed a guesthouse near the diplomatic quarter, fighting local security forces until they were killed early on Wednesday. No casualties other than the attackers have been reported. The assault is the latest in a string of attacks on Kabul which started two weeks ago when a Taliban attack killed more than a dozen people at the Park Palace Hotel. Reuters has more on the assault.

The Long War Journal shares the news that the Pakistani Taliban has released a statement rejecting the Islamic State’s “self-professed caliphate.” Seen as new evidence of the growing rivalry between traditional jihadists groups in South Asia and the Islamic State, the nearly 60-page publication, purportedly written by a jihadist known as Abu Usman Salarzai, attempts to “expose errors in Abu Bakr al Baghdadi’s claim to be the new Caliph.” The manual also praises Afghan Taliban leader Mullah Omar as well as al Qaeda leader Ayman al Zawahiri.

Newly recovered video footage found in Boko Haram camps shows foreign fighters in positions of power within the Nigerian Islamist militant organization. Reuters notes that this is the first evidence demonstrating that foreign fighters hold significant influence in the organization. The video also demonstrates the group’s brutality in the land it previously controlled, holding open Sharia courts and dolling out brutal punishments such as flogging, stoning, and amputations as crowds cheer.

Yesterday, the People’s Republic of China released its first public Chinese Military Strategy white paper. As the New York Times writes, the paper outlines an “active defense posture” and clarifies Chinese intentions to develop a larger naval presence capable of operating farther from its shores. The strategy also contains a few veiled criticisms of the United States, accusing outside powers of “meddling” in South China Sea affairs. Even so, Pentagon spokesman Col. Steve Warren welcomed the strategy, saying “we have repeatedly called on the Chinese for transparency, and frankly, this is an example of transparency.” See more specifics on the paper in The Diplomat; Lawfare covered the release here.

Stars and Stripes brings us the news that a German court is scheduled to hear arguments highlighting the extensive role that Ramstein Air Base plays in the U.S. drone program. The case, filed by the family of a victim in a 2012 drone strike in Yemen, seeks to force Germany to accept responsibility for the U.S. drone program and to ban the use of Ramstein for such operations.

A new rule at Guantanamo Bay will forbid legal counsel from bringing outside food to detainees held in the facility. According to the Miami Herald, the prison says that the ban is for the health and safety of the detainees; however, lawyers have criticized the move, which they argue is aimed at breaking the rapport currently held between defense counsel and their clients.

The AP reports that the travel ban on the the Taliban Five, the senior leaders of the Taliban released from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl last year, is set to expire next week. While the White House is in talks with the Qataris regarding the possibility of extending the travel ban, no agreement has been announced. At least one of the five allegedly contacted militants during the last year.

Time Out: In a move that is bound to send shock waves through the international sports world, the Justice Department has indicted several FIFA officials on corruption charges. The New York Times has more.

Peter Baker at the New York Times writes that President Barack Obama has renewed his support of the USA Freedom Act, calling on the Senate to pass the legislation that will renew (and reform) the surveillance programs scheduled to expire on June 1. In a press conference with NATO Secretary General Jens Stoltenberg, the President warned, “You have a whole range of authorities that are also embodied in the Patriot Act that are noncontroversial, that everybody agrees are necessary to keep us safe and secure, he said. “Those are at risk of lapsing. So this needs to be done.”

The U.S. Department of Justice has charged yet another American with conspiracy to provide material support to the Islamic State for attempting to travel and fight for the group in Syria. Asher Abid Khan, a 20-year-old man from the Houston area, plotted via facebook to join the Islamic State in January 2014, leaving for Syria the following month. Khan returned to the United States from Turkey, after being tricked by his family, who told him his mother had been hospitalized. On Friday of last week, U.S. prosecutors arrested two California men on similar charges.

In Brooklyn, Saddiq al-Abbadi, a member of al Qaeda who led a firefight in Afghanistan that led to the death of an Army Ranger, pleaded guilty to four counts related to terrorism activities on Tuesday. The charges include conspiracy to murder American nationals abroad, providing material support to a terrorist group, conspiracy to provide that support, and unlawful use of firearms. Mr. Al-Abbadi faces a minimum of 30 years in prison.

The Wall Street Journal notes that one of those charges, stemming from the material support statute, has become a key weapon in counterterrorism efforts. However, it isn’t entirely clear exactly what constitutes “material support” for terrorism. One big question sticks out: what role does promoting the group’s message on social media play? And where does the fight to preempt the spread of ISIS propaganda begin to infringe on First Amendment rights?

Parting Shot: “No Gestapo in Bastropo.” That’s the mood in Bastrop, Texas, where the military still can’t convince some Texans that Jade Helm is not a secret plot to conquer the state and institute martial law. The newest conspiracy theory has revealed the “deep distrust that has emerged in conservative parts of the country,” writes Matt Viser of the Boston Globe. His first-hand account of a recent information session on the operation raises a good question: “How did America become so divided, the state of the union so fractured, that the secretary of defense is forced to deny the Army is planning the hostile takeover of a state?”

ICYMI: Yesterday, on Lawfare

The President says the war in Afghanistan is over. But, the Departments of Justice and Defense are busy arguing that he doesn’t really mean it. Cody and Ben explain.

Yishai outlined the often poorly articulated alternative to the Iran deal, which he argues is a much more viable option than is commonly suggested.

Jack shared the sad news of the passing of Daniel Meltzer.

Finally, Cody linked us to China’s first publicly released Military Strategy white paper. Read it here.

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.


LIVE: Brookings Host Vice President Joe Biden

Wednesday, May 27, 2015 at 12:00 PM

At 12:15 pm, Vice President Joe Biden is scheduled to deliver remarks at Brookings on the Russia-Ukraine conflict and its implications for European security.

You can watch the discussion below or follow along on Twitter at #BidenAtBrookings

Remembering Dan Meltzer

Wednesday, May 27, 2015 at 7:53 AM

I want to add briefly to Jack’s note and pay tribute to Dan Meltzer, who died Sunday.  I had the privilege of working with Dan when he served as Deputy White Counsel under President Obama and then as a member of the President’s Intelligence Advisory Board.

Dan tackled head-on some of the most difficult and consequential legal and policy national security issues facing the new Obama administration. He was the point person in the White House on Guantanamo detainees; on the scope of detention authority; on the interrogation and prosecution of suspected terrorists; and on surveillance issues. Dan approached these questions with a combination of common sense practicality and scholarly rigor and imagination. He was inquisitive and inclusive in considering the views of others. And he always seemed to home in on the crux of a matter, finding new ways to think about and resolve a problem. When we worked together on the review of detainees at Guantanamo, Dan brought a thoughtful and fresh perspective to the issues, applying both his law professor approach and his wise and practical judgment. Beyond this, he was unfailingly kind. Dan was the smartest guy in the room, but never made you feel like he knew it.

As a national security lawyer, Dan is a model for all of us, though it is hard to imagine anyone in the field matching Dan’s intellect, dedication, and integrity. As a person, Dan will be remembered for his humility, generosity and grace.

Matthew Olsen is the former director of the National Counterterrorism Center.  He is the co-founder of IronNet Cybersecurity and a lecturer at Harvard Law School.

China Releases 2015 Military Strategy

Tuesday, May 26, 2015 at 6:35 PM

Today, the People’s Republic of China released its first public Chinese Military Strategy white paper. Issued by the Chinese Ministry of National Defense and the State Council Information Office, the paper outlines an “active defense posture” and asserts the importance of a larger Chinese naval presence that is capable of operating farther from its shores. The strategy also highlights China’s growing concerns over cyber security and cyberwar, noting that “China will expedite the development of a cyber force” capable of providing defense and “maintain[ing] national security.” 

While the paper contains at least a few veiled criticisms of the United States, which it accuses of “meddling in South China Sea affairs,” it also suggests a peaceful path forward, concluding that “China’s armed forces will continue to foster a new model of military relationship with the U.S. armed forces that conforms to the new model of major-country relations.”

It opens as follows:

The world today is undergoing unprecedented changes, and China is at a critical stage of reform and development. In their endeavor to realize the Chinese Dream of great national rejuvenation, the Chinese people aspire to join hands with the rest of the world to maintain peace, pursue development and share prosperity.

China’s destiny is vitally interrelated with that of the world as a whole. A prosperous and stable world would provide China with opportunities, while China’s peaceful development also offers an opportunity for the whole world. China will unswervingly follow the path of peaceful development, pursue an independent foreign policy of peace and a national defense policy that is defensive in nature, oppose hegemonism and power politics in all forms, and will never seek hegemony or expansion. China’s armed forces will remain a staunch force in maintaining world peace.

Building a strong national defense and powerful armed forces is a strategic task of China’s modernization drive and a security guarantee for China’s peaceful development. Subordinate to and serving the national strategic goal, China’s military strategy is an overarching guidance for blueprinting and directing the building and employment of the country’s armed forces. At this new historical starting point, China’s armed forces will adapt themselves to new changes in the national security environment, firmly follow the goal of the Communist Party of China (CPC) to build a strong military for the new situation, implement the military strategic guideline of active defense in the new situation, accelerate the modernization of national defense and armed forces, resolutely safeguard China’s sovereignty, security and development interests, and provide a strong guarantee for achieving the national strategic goal of the “two centenaries” and for realizing the Chinese Dream of achieving the great rejuvenation of the Chinese nation.

You can read the rest of the strategy document here.

Daniel Meltzer, R.I.P.

Tuesday, May 26, 2015 at 5:29 PM

My colleague and friend Dan Meltzer passed away Sunday night after a long battle with cancer. Here is what Dean Martha Minow wrote:

Colleagues, it is with profound sadness that I write to let you know that Dan Meltzer, our beloved friend, teacher, and colleague, has passed away.  No one has better exemplified the highest qualities of judgment, rigorous analysis, devotion to public service, and sheer kindness.  What a privilege it was to know Dan and to work alongside him!  Faculty and staff, deans and students, Presidents and other public leaders sought out Dan for his exceptional counsel and wisdom.  He made the world better in countless ways.  As a teacher and mentor to hundreds of students; as a trusted and thoughtful academic colleague; as an outstanding legal scholar and collaborator; and as a distinguished lawyer in public service and private practice, he demonstrated what it is to act with integrity, to reason with clarity, and to greet all with kindness.  With his remarkable wife Ellen and sons Joshua and Jonathan by his side, Dan battled his cancer with grace and courage and remained optimistic throughout, leaving us all with a model for how to bring our best selves to every day.  The absence of this great man, true mensch, and exceptional friend will be felt deeply and widely throughout our community, our School, our profession, and our nation.

Dan was an important scholar of federal courts and criminal law and procedure. Perhaps less well known, he was also—based on his experiences as Deputy White House Counsel in the Obama administration, and then on the Intelligence Oversight Board—a hugely insightful analyst of national security law and policy.   Numerous people in the Obama administration described Dan’s counsel on these matters as invaluable. (Here is Charlie Savage’s story on Dan when he left the White House; here is a brief tribute from his former colleague Marty Lederman.)

Dan was also one of the very finest human beings I ever met. He was immensely valued at the Harvard Law School, and in the Obama administration, and among friends, for the wisdom and good judgment that he brought to hard decisions in law and life. Dan possessed the elusive ability to see a problem in the round, to dig very deep into the details, to appreciate in a detached manner the consequences of various proposed solutions to the problem, and to ensure that the course of action chosen (or recommended) always adhered to the higher principles that governed the issue.

Just as important, Dan was always, really always, kind and generous and gracious in dealing with others. And he was a genuinely modest man whose modesty highlighted his extraordinary mind and character and integrity.

I will miss Dan so much.

Today’s Headlines and Commentary

Tuesday, May 26, 2015 at 1:41 PM

Shia militias in Iraq announced today that they have taken control of efforts to reclaim Ramadi, the capital of the country’s Anbar province which fell to the Islamic State about a week ago. Paramilitary troops have advanced to within a few kilometers of the city’s southwestern edge. Reuters reports, however, that the sectarian nature of the military campaign could actually exacerbate tensions with the majority Sunni population of the Anbar province.

The Wall Street Journal examines exactly how Ramadi fell to the Islamic State. According to the newspaper, the militant group “executed a complex battle plan.” For instance, the Islamic State remained silent on social media, helping to evade online surveillance tactics. Additionally, the group used “formidable new weapons” created “by converting captured U.S. military armored vehicles designed to be impervious to small-arms fire into megabombs with payloads equal to the force of the Oklahoma City bombing.” These new weapons enabled the unremitting detonation of deadly suicide bombs, which ultimately forced the retreat of Iraqi and U.S.-trained forces.

On Sunday, U.S. Defense Secretary Ash Carter blamed the Iraqi forces for the fall of Ramadi, saying they lacked “the will… to fight ISIL and defend themselves.” According to the Associated Press, Iraqi and Iranian officials have angrily pushed back against Secretary Carter’s characterization of the situation.

Meanwhile, DefenseOne gives three reasons for why the Iraqi military is in pretty bad shape: 1) the Bush administration’s 2003 decision to disband the existing Iraqi army; 2) corruption resulting from the legacy of former Prime Minister Nouri al-Maliki; and 3) sectarian divisions.

As General Martin Dempsey prepares to step down from his post as Chairman of the Joint Chiefs of Staff, the Washington Post examines the role that the military leader has had in shaping current U.S. policy toward the Islamic State. The paper notes that General Dempsey has been cautious and deliberative in his approach toward the situation in Iraq and Syria, a trait “derived from his own history in Iraq and across the Middle East.” According to one Obama administration official quoted in the article, “What we’re trying to do with the Iraqis [now] is what he said we should have done back then.”

The Post’s Walter Pincus discusses what lessons from its experience in Vietnam the U.S. can apply to the current situation in Iraq.

China held a groundbreaking ceremony today for the construction of two lighthouses in the South China Sea. The U.S. and the Philippines have called on Beijing to halt the building of the two structures, which are likely to exacerbate geopolitical issues in that region. Reuters informs us that the country’s ruling Communist party also released a policy document today, outlining its new strategy for “open seas protection.” You can read that document here.

Meanwhile, Reuters reports that as tensions in the South China Sea escalate, Southeast Asian nations with ties to the conflict are spending increasing amounts of money on defense capabilities.

Reuters also updates us on violence in Afghanistan: Two Afghan police officers are dead after Taliban militants bombed a courthouse in the country’s Wardak province. Both jihadists were also killed. Meanwhile, an overnight ambush in Afghanistan’s eastern Paktika province left eight security officers dead. The two attacks follow a series of violent encounters in the southern Helmand province yesterday. “At least 14 police officers [including the deputy chief of police] and seven army servicemen were killed” in those encounters.

The New York Times explains how the Afghan government has placed itself in a precarious position by appealing to local militias and area strongmen to safeguard cities and municipalities from Taliban militants. This strategy undermines assurances that Afghan security forces are capable of defending the country. Furthermore, it may lead to “factional rivalries and civil strife.” Still, the Kabul government swears this new direction, prompted by the Taliban’s April attack on the northeastern city of Kunduz, will be “controlled.”

The Wall Street Journal shares the story of one Afghan militiaman, Hanif Bai, a former security guard who has raised a 400-strong private militia in order to defend him home from the Taliban.

The Miami Herald’s Carol Rosenberg informs us that a former Guantanamo Bay detainee, who was resettled in Kazakhstan in December, has died there. Asim Thabit Abdullah al-Khalaqi passed on May 7, allegedly of kidney failure.

ICYMI: This Weekend, on Lawfare

Bruce Schneier explained why the current debate regarding reform of Section 215 of the USA Patriot Act is actually not all that important.

Yishai Schwartz discussed the importance of certainty in scholarly discussions of Israeli military advantage over Palestinian militant groups.

Wells shared Al Warafi’s reply brief to the government’s opposition to his motion for release from the detention facility at Guantanamo Bay.

Ben proposed an idea that might improve communication between the press and the intelligence community over issues involving the disclosure of classified information.

Cody posted this week’s Lawfare Podcast, which featured a roundtable discussion on the success of Indian Prime Minister Narendra Modi’s government one year after it took office.

Ariel I. Ahram and Frederic Wehrey wrote this week’s Foreign Policy Essay, analyzing the Iraqi National Guard and teasing out the lessons it offers for future partnerships between the U.S. and local militias in the Middle East.

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.

An Alternative to the Iran Deal?

Tuesday, May 26, 2015 at 9:00 AM

In the last few weeks, nuclear negotiations with Iran have taken on an aura of inevitability. Even as critics of the forthcoming deal have successfully highlighted its flaws—the sunset date, the unfeasability of “snapback” provisions, the empowerment of the major source of regional instability—they have failed completely in convincing the public that an alternative exists.

Opponents lamely protest that there is still a “better deal” to be had, but they are dismissed as wishful thinkers detached from reality. There is a simple reason for this: Rarely do any of the deal’s critics articulate how they intend to get from point A (now) to point B (a better deal). It is too easy to suggest that if our strategy were different, if our negotiators push harder, if we tighten sanctions a little further, a better offer should up on the table. But without specific arguments and explanations for why and how an alternative is achievable, the president’s way seems like the only way.

After a number of conversations with some of these critics, however, I’m increasingly convinced that there is an alternative, albeit a poorly articulated one. To be sure, it has question marks and uncertainties—and the deal currently being hammered out may yet offer the best balance of risks and benefits. But there is another side of the ledger. Here, then, is a roadmap to that alternative path.

First, American negotiators would have to allow the current round of negotiations to fail, but without blowing up or reneging on any already-made commitments. Doing so should not be too difficult. There are enough unresolved issues that adopting a hard (and reasonable) line on, say, the timing of sanctions relief or the reach of inspections would either force Iranian capitulation (good) or lead to an impasse—which from this perspective would be fine as well.

Simultaneously, the US would have to engage energetically with other members of the P5+1 to ensure that a such an impasse doesn’t result in the unraveling of existing sanctions. Given current relations with Russia in particular, significantly expanding international sanctions would likely be a stretch, but with the help of the French and the Gulf states, maintaining the existing regime should still be possible. Certainly, it is more likely (and vastly simpler) than re-implementing sanctions in response to an Iranian violation, five or ten years down the line. Read more »

The War in Afghanistan is Over, says the President. Not, Says the Justice Department

By and
Tuesday, May 26, 2015 at 7:16 AM

Yesterday, President Barack Obama delivered remarks before a Memorial Day service at Arlington Cemetery in Virginia, in which he celebrated the day as the first Memorial Day since the end of the war in Afghanistan.

For many of us, this Memorial Day is especially meaningful; it is the first since our war in Afghanistan came to an end. Today is the first Memorial Day in 14 years that the United States is not engaged in a major ground war. So on this day, we honor the sacrifice of the thousands of American servicemembers—men and women—who gave their lives since 9/11, including more than 2,200 American patriots who made the ultimate sacrifice in Afghanistan.

Our war in Afghanistan came to an end. Well, sort of.

The United States and NATO did formally end the war in Afghanistan, amidst some ceremony, in December 2014. However, in many ways, it is hard to see that the changing of the guard was little more than the changing of a flag. And President Obama’s own Justice Department—for its part—is busily arguing in court that the war is not, in fact, over.

In the United States’ opposition to a Guantanamo Bay detainee’s “End of War” motion, the President’s lawyers write, “active hostilities” are continuing against the Taliban in Afghanistan, and that the President and the Congress are “in agreement” that this is the case: Read more »

The Week That Will Be

Monday, May 25, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, May 25th: Happy Memorial Day!

Tuesday, May 26th at 10 am: The Atlantic Council will host the Ambassadors to the United States from France, Britain, and Germany for a discussion on Europe and the Iran Nuclear Deal. Barbara Slavin will moderate the conversation. For more information, see the event announcement.

Wednesday, May 27th at 11 am: At the Center for Strategic and International Studies’ Statesmen’s Forum, NATO Secretary General Jens Stoltenberg will deliver a speech on the new challenges to which the transatlantic alliance must adapt. John J. Harme will deliver introductory remarks, while Heather A. Conley will moderate the conversation. RSVP.

Wednesday, May 27th at 2:30 pm: To launch Contested Terrain: Reflections with Afghan Women Leaders, a new book by Sally L. Kitch, the Wilson Center will host an event entitled Afghanistan’s Unsung Heroes: Reflections on Afghan Women Leaders and the Implications for U.S. Policy. Speakers will include Professor Kitch, Jamila Afghani, a women’s education activist, and Marzia Basel, an Afghan judge and women’s legal right’s activist. Register here.

Thursday, May 28th from 8:30 am to 4:30 pm: The Brennan Center for Justice invites you to a symposium on Strengthening Intelligence Oversight: Lessons from the Church Committee. The conference, held at New York University’s facility in Washington, D.C. will feature a keynote discussion with Walter Mondale, Gary Hart, and Frederick A.O. Schwarz, Jr. For a full list of speakers and panels, or to RSVP, visit the Brennan Center’s web announcement.

Thursday, May 28th at 2 pm: The Atlantic Council and the Free Russia Foundation will host an event entitled Hiding in Plain Sight: Putin’s War in Ukraine and Boris Nemtsov’s Putin, where they will launch two new reports “Hiding in Plain Sight: Putin’s War in Ukraine” and the English-language version of Boris Nemtsov’s “Putin. War.” See more information on the Atlantic Council’s event posting.


Employment Announcements (More details on the Job Board)

Deputy Chief - Counterintelligence and Export Control Section

ORGANIZATION:                         Department of Justice

SALARY RANGE: $126,245 – $158,700
DEADLINE: June 3, 2015


Job Summary:

The National Security Division (NSD) of the Department of Justice (DOJ) seeks a Deputy Chief for its Counterintelligence and Export Control Section, focused on cases involving the illegal export of military and strategic commodities and violations of U.S. sanctions laws.

Under the direction of the Chief, the Deputy Chief will be responsible for providing legal advice to federal prosecutors concerning federal statutes relating to export control and other threats to the national security. In these areas, the Deputy Chief will develop, implement, and coordinate sensitive Department initiatives. The Deputy Chief will:

  • work with federal prosecutors and law enforcement agencies to develop effective strategies in national security investigations and prosecutions, and maximize the use of federal statutes;
  • plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities;
  • provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prospective models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;
  • coordinate the formation of response teams of experienced prosecutors to assist in the design of investigations and the prosecution of cases;
  • coordinate cases and provide legal advice, guidance, and litigative support to U.S. Attorneys’ Offices involved in national security prosecutions;
  • provide advice and assistance to the Chief and other senior officials in the Division and in the Department;
  • serve as a liaison between NSD and the Federal Bureau of Investigation, other members of the USIC, Department of the Treasury, the Department of State, and various international officials on export control, cyber, and other national security-related issues;
  • design and implement targeted outreach to the private sector to help disrupt and prevent the transfer of goods and technology in violations of U.S. export control and sanctions laws; and
  • prepare testimony for Congressional Committees and subcommittees, briefing materials for Department officials, legal monographs for national security prosecutors, and comments on proposed legislation.

The Deputy Chief will establish program emphasis, develop operating policies and guidelines, communicate policies and priorities, and determine and implement internal organization practices, training, and improvements.


Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, Territory, or the District of Columbia, and have at least five years of post-JD professional experience. Applicants must have superior academic credentials, possess excellent analytical and writing skills, and have the dedication and capacity to work independently in a very demanding environment. Past experience in the national security or intelligence field is not required, but is preferred. Prior federal litigation experience also strongly preferred.

Applicants must be able to obtain and maintain a TS/SCI security clearance.

How to Apply: 

To apply, please submit a cover letter highlighting your relevant skills and experience, a copy of your resume with a writing sample (we encourage you to submit a legal memorandum or brief), and a current performance appraisal, if applicable, to:

U.S. Department of Justice
National Security Division
600 E Street, NW 10th Floor, Room 10340
Washington, D.C. 20530
Attn: Bronnetta Rawles
[email protected]

Read more »

The Foreign Policy Essay: Harnessing Militia Power—Lessons of the Iraqi National Guard

By and
Sunday, May 24, 2015 at 10:00 AM

Editor’s Note: National governments seem to be failing throughout the Middle East. The United States, unfortunately, does not usually have the luxury of waiting until a strong government returns, and building a strong state is often beyond what the United States is able or willing to do. One option to fight terrorists and otherwise fill the governance void is to work more with local militias. Ariel I. Ahram of Virginia Tech and Frederic Wehrey of Carnegie draw on the U.S. experience in Iraq and offer lessons for what to do—and what to avoid—when going down this road.


Faced with the breakdown of national armies in Iraq, Libya, Syria, and Yemen, Arab states have increasingly turned toward alliances with armed militias to ensure security. Popular, anti-government protests and insurgencies for the most part precipitated the breakdown of regime military institutions, yet pre-existing internal ethnic, clan, and ideological cleavages helped to hasten the breakdown. The beleaguered state security forces have now entered into a variety of alliances—tacit or active—with militias they deem sympathetic to their interests, often organized on the basis of entrenched ethno-sectarian or tribal identities. Such militia forces supplement and at times even stand in for the weak or absent army and police as providers of local security.

Ahram_Ariel photoOn the one hand, militia forces have in certain circumstances proven effective at counterinsurgency and counterterrorism. On the other hand, they have also committed atrocities against civilians that hamper long-term efforts to build trust and stability. Their greatest risk is that, by eroding the central government’s monopolization on force, they jeopardize the territorial cohesion of the state.

In Iraq, the rise of powerful communal militias has paralleled the growth of the threat from the Islamic State. This has presented the United States with a quandary: how to combat the Islamic State by mobilizing local Sunnis while at the same time safeguarding the broader integrity of the Iraqi state and its security institutions. The national guard concept, which successive Iraqi governments have tried in the past, was seen as one way to do this. A national guard force would retain the militias’ local knowledge and roots, both unique tools necessary for a successful counterinsurgency against the Islamic State. At the same time, the guard would (at least in theory) be subject to increased oversight and control by the central government.

Wehrey photoOther fractured Arab states, most notably Libya, have tried to implement a national guard model as a way to harness militia power, but this too has failed. Variations of hybrid, provincially-organized military forces exist in Yemen and Syria. While each case is different, the failure of national guards bears certain similarities. Examining the Iraqi case in particular can highlight the potential utility of national guards but also the parallel political and institutional reforms that are necessary to make the concept work.

False Analogies and False Starts in Iraq

The idea of creating a national guard in Iraq has been a centerpiece of U.S. engagement since the dramatic advance of the Islamic State on Tikrit and Mosul in 2014. President Obama specifically mentioned U.S. support for a national guard as a means to help Iraqi Sunnis “secure their own freedom” from the Islamic State. Much of U.S. thinking about the Iraqi National Guard (ING) was guided by the example of the Sunni Awakening of 2006 and 2007, when the United States actively recruited and “flipped” Sunni tribes that had supported the al-Qaeda-inspired insurgency. In return for guarantees of autonomy and military, financial, and political backing, the Sunni tribes were able to turn the tables on the insurgent fighters and impose a measure of peace and stability. The 2014 initiative essentially sought to reproduce this arrangement. The idea was that given proper incentives, the Sunni tribes would again fight the radical Islamists who threatened their supremacy. Over the long term, such national guard forces could be integrated formally as auxiliary troops in a federal structure, comparable in many ways to the U.S. National Guard. Read more »