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The Week That Will Be

Monday, May 4, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, May 4th at 1 pm: The Center for East Asia Policy Studies at Brookings will host a panel of distinguished politicians and analysts for a discussion of issues significant to Japan’s relationship with the United States and its neighbors in East Asia entitled The Path Forward in U.S.-Japan Relations: Trade, Diplomacy, and Security. Yasutoshi Nishimura, state minister of the cabinet office of Japan and member of the Liberal Democratic Party; Isamu Ueda of the Komeito; Koichiro Gemba of the Democratic Party of Japan and former foreign minister of Japan; and Tetsuro Fukuyama of the Democratic Party of Japan will address issues such as the Trans-Pacific Partnership Agreement, Japan’s economy and trade policy, its energy outlook and policy, and its plans for investment in Asia. Brookings experts Jeffrey A. Bader and Mireya Solís will provide commentary, and Brookings President Strobe Talbott will provide introductory remarks. RSVP.

Wednesday, May 6th at 6:30 pm: The World Affairs Council will host an event on Cyberspace Security in the Global Sphere. With individuals or groups able to exploit the instantaneous, anonymity, and open nature of the internet across the world, how can the United States effectively engage the international community in the future of cyber security? Brigadier General John C. “Chris” Inglis, former Deputy Director of the National Security Agency, will deliver remarks. Register here.

Thursday, May 7th at 10 am: On Thursday morning, the Senate Committee on Homeland Security and Governmental Affairs will hold a hearing on Jihad 2.0: Social Media in the Next Evolution of Terrorist Recruitment. See the committee’s website for more information.

Thursday, May 7th at 10 am: The Senate Committee on Foreign Relations will hold a hearing on Safeguarding American Interests in the East and South China Seas. Daniel R. Russel, Assistant Secretary of State for East Asian and Pacific Affairs, and David B. Shear, Assistant Secretary of Defense for Asian and Pacific Security Affairs will testify. Watch live on the committee’s website.

Friday, May 8th at 12 pm: At Georgetown’s Berkley Center for Religion, Peace, and World Affairs, Graeme Wood will join Jocelyne Cesari, Ayesha Chaudry, Anver Emon, and Emma Tomalin for a conversation on Representations of ISIS and the Public Understanding of Religion. Register here.


Employment Announcements (More details on the Job Board)

Senior Associate General Counsel 

ORGANIZATION:                         Office of the Director of National Intelligence

SALARY RANGE: $126,245 – $158,700
DEADLINE: June 2, 2015


Job Summary:

Provide expert legal advice to the Assistant Director for National Intelligence/Acquisition, Technology & Facilities (ADNI/AT&F), IARPA, and other senior ODNI leaders.

Provide expert legal counsel to support the development, review, and interpretation of IC-wide policies, procedures, guidelines, rules, and standards governing IC Major System Acquisitions, to include Requirements, Performance Management Plans, and Independent Cost Estimates.

Senior attorney for the OGC team that provides advice and counsel on complex legal issues including procurement law, major system acquisitions, intellectual property, fiscal law, and procurement integrity, and provides innovative and highly effective guidance on possible courses of action; and, expertly prepares complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.

Position has the potential for supervisory responsibilities depending on the qualifications of the selected candidate.


Superior multi-disciplinary legal skills and experience dealing with complex legal issues, as well as an expert ability to interpret laws, regulations, judicial decisions, Executive Orders, and statutes involving complex concepts and issues.

Expert-level knowledge of one or more of the general or specialized areas of OGC’s law practice, such as: intelligence oversight, privacy and civil liberties, federal employee ethics, National Security Law, Equal Employment Opportunity law, operations law, acquisition and appropriations, administrative law, and litigation.

Superior research abilities, including the ability to quickly integrate and synthesize the facts and law to make legally sound decisions, and recommendations pertaining to the most complex situations, or in the context of ambiguous or ill-defined situations.

How to Apply: 

Applications should be sent to either [email protected] (classified email system) or [email protected] (unclassified email system). Applicants submitting via JWICS are requested to submit their materials to both [email protected](Candace R. McPherson) and [email protected] (Greta A. Hoyle) in lieu of the group address above. All attachments should be in Microsoft Word or Adobe PDF format.

Applications submitted through the classified email system should NOT contain classified information above the TS//SI/TK//NOFORN level.

To verify receipt of your application package ONLY, you may call (703) 275-3881.


Phone: (703)275-3811
Email: [email protected]

Agency Information:
1234 Business St
Washington, DC 20505

The Foreign Policy Essay: Can Terrorists be Scared Straight?

By and
Sunday, May 3, 2015 at 10:00 AM

Editor’s Note: Blowhards and wannabes pose a dilemma for domestic counterterrorism. On the one hand, if a fool makes empty threats that he (yes, it’s usually a he) can’t make good on, it seems an overreaction to jail him and throw away the key. On the other hand, incompetent fools can and do kill people, and ignoring their rantings risks at least a few successful attacks. John Mueller and Mark Stewart, two of my favorite iconoclasts at Cato/Ohio State and the University of Newcastle respectively, argue for a new option: having law enforcement officers let the blowhards know they are being watched in some cases and scaring them away from terrorism.


Since the shock of 9/11, the FBI and other policing agencies have shifted how they deal with terrorism. Instead of seeking to bring terrorists to justice after they have committed, or tried to commit, violence, the police now seek to catch them before they do so.

This has led to the development of a technique where, instead of simply surveilling a potential terrorist plot, they infiltrate police operatives into the plot itself, essentially creating or facilitating the plots in a major way.

Mueller photoSince 9/11 there have been a few dozen plots in which Islamist extremist terrorists have sought, or apparently have sought, to do damage in the United States, and over half of these have been disrupted by this technique. Moreover, the use of the technique is on the rise. Since 2010, some 21 plots to do damage within the United States have been disrupted, and fully 15 of these have used undercover operatives. In most of these plots, police operatives have outnumbered actual would-be terrorists.

The question is whether the (mostly knuckle-headed) would-be terrorists in these cases would have been able to get their act together enough to do much of anything without the participation of the undercover officers. Indeed, at times it seems to be an exercise in dueling delusions: a Muslim hothead has delusions about changing the world by blowing something up, and the authorities have delusions that he might actually be able to overcome his patent inadequacies to do so.

Mark Stewart photoThis is a question that was vividly raised by the judge in a case in Newburgh, New York, that has been the subject of an award-winning documentary film. While acknowledging that the men, who were convicted of plotting to bomb Bronx synagogues and shoot down military planes, were “prepared to do real violence,” Judge Colleen McMahon also noted that they were “utterly inept” and on a “fantasy terror operation” and that “only the government could have made a ‘terrorist’” out of the plot’s leader, “whose buffoonery is positively Shakespearean in its scope.” She concluded that, “I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition.”

But the experience with another case suggests that there could be an alternative, and far less costly, approach to dealing with would-be terrorists, one that might generally (but not always) be effective at stopping them without actually having to jail them. Read more »

The Lawfare Podcast, Episode #121: Striking a Balance—Whistleblowing, Leaks, and Security Secrets

Saturday, May 2, 2015 at 1:50 PM

Last weekend, the New York Times published an article outlining the strength of congressional support for the CIA targeted killing program. In the story, the Times also purported to reveal the identities of three covert CIA operatives who now hold senior leadership roles within the Agency.

As you might expect, the decision generated a great deal of controversy, which Lawfare covered here and here. Later in the week, Jack Goldsmith interviewed Executive Editor of the New York Times Dean Baquet to discuss the decision. That conversation also prompted responses from Ben, Mark Mazzetti (one of the authors of the piece), and an anonymous intelligence community reader.

Following Times’ story, the Johns Hopkins University Center for Advanced Governmental Studies, along with the James Madison Project and our friends at Just Security, hosted an a timely conference on Secrecy, Openness and National Security: Lessons and Issues for the Next Administration. In a panel entitled Whistleblowing and America’s Secrets: Ensuring a Viable Balance, Bob Litt, General Counsel for the Office of the Director of National Security, blasted the Times, saying that the paper had “disgraced itself.”

However, the panel—which with permission from the Center for Advanced Governmental Studies, we now present in full—covered much more than the latest leak published in the Times. In a conversation moderated by Mark Zaid, the Executive Director of the James Madison Project, Litt, along with Ken Dilanian, Dr. Gabriel Schoenfeld, and Steve Vladeck, tackled a vast array of important legal and policy questions surrounding classified leak prosecutions, the responsibilities of the press, whistleblower protections, and the future of the Espionage Act.

It’s a jam-packed discussion full of candid exchanges—some testy, most cordial—that greatly raises the dialogue on the recent history of leaks, prosecutions, and future lessons for the next Administration.

The Week that Was: All of Lawfare in One Post

Saturday, May 2, 2015 at 9:22 AM

Don’t forget: the Triple Entente Beer Summit is coming up! On May 7, the cast of characters behind the Lawfare Podcast, the Rational Security Podcast, and the Steptoe Cyberlaw Podcast will meet at the Washington Firehouse for a first-of-its-kind, clash-of-the-titans live-taping extravaganza-palooza. You don’t want to miss it. Get your tickets here.

Last weekend, the New York Times published a story detailing the “unwavering support” in Congress for the CIA’s drone program. In the course of the story, the Times named three covert CIA operatives involved in conducting the program. Robert Litt, the General Counsel for the Director of National Intelligence, was none too impressed with the leaks, and said as much on Monday. The paper “disgraced itself” by publishing the names, he said.

Jack later interviewed Dean Baquet, the Executive Editor of the Times and the person who made the call to publish the operatives’ names. Baquet made a variety of points in his defense of the leak, which Ben summarized as follows:

The drone program is more of a military operation than a traditional covert intelligence program. It’s highly controversial and much debated. Some of the people who have run it are the same people who earlier ran the CIA’s interrogation program. So there’s an accountability need to describe who they are. Moreover, the CIA didn’t make a strong case for keeping their names secret.

Ben conceded that Baquet made some solid points in his defense, but pointed out that the comparison between CIA officers and military officers isn’t apt. Outing CIA officers can have a much greater negative impact than naming military officers, especially given the delicate relationships CIA operatives must maintain with the foreign governments that play host to these officers.

Mark Mazzetti, one of the authors of the piece, also weighed in, pointing out that the positions held by the exposed officers have historically not been undercover positions. Indeed, Mazzetti noted that even some CIA officials have privately expressed concern to him about the fact that more and more senior level officials now remain undercover.

Ben also shared a response from an intelligence community reader who noted that, even if the Times discounts the risk that leaking the officers’ names poses to those officers, its argument can’t countenance the risk it creates for those connected to the officers.

Whatever the merits of the Times’s arguments, Jack argued that the leak was just “the latest example of how much the norms governing the publication of classified information have loosened since 9/11.” Jack attributed this looseness to a variety of factors, including government acceptance of these new, weaker norms. This acceptance, he wrote, simply further loosens the norms: “And so the NYT has crossed another line, the government will likely do nothing material in response, and the norms against publication of classified information will spiral further downward. It is a very different new world of transparency for the U.S. intelligence community.”

The Times article that started this whole flap was, of course, brought about by revelations that a U.S. drone strike near the Afghanistan-Pakistan border inadvertently killed two Al Qaeda hostages, one of whom was an American. Late Sunday night, Bobby reported the news that the CIA’s drone operations in Pakistan have thus far been exempt from the “imminent threat to U.S. persons” requirement for the use of lethal force outside areas of “active combat operations” laid out in President Obama’s May 2013 Presidential Policy Directive. The import of the hitherto classified waiver, Bobby posited, may have been that it allowed greater flexibility in targeting individuals who did not pose an imminent threat to Americans. Whatever the backlash to this latest drone revelation, Cody pointed out a new poll indicating that 60 percent of Americans favor the use of drones to “target and kill people belonging to terrorist groups like Al Qaeda.” Only 13 percent of respondents opposed that proposition.

Jack noted a recent push by Republicans to add amendments to the Iran Review bill that would, at least by some estimations, kill the legislation. While the move by lawmakers who are generally skeptical of an Iran deal may at first seem odd—without an Iran Review bill, President Obama would have a much easier time reaching and implementing a deal—Jack laid out some reasons why the push for such “poison pill” amendments might make sense.

But while these amendments might make an Iran deal easier to conclude by torpedoing the review legislation, an apparent fundamental misunderstanding between Iran and the United States about the deal may complicate things, Jack added. On the one hand, the Obama administration has consistently said that any deal would be non-binding under international law. On the other, Iranian Foreign Minister Mohammad Javad Zarif said on Wednesday that the U.N. Security Council resolution that would accompany a deal with Iran would obligate the United States under international law to lift sanctions on Iran. The two positions are simply incompatible, and Jack noted that, if senators are worried that the deal may match Zarif’s position, then there is all the more reason to pass the Iran Review bill.

Wells linked us to the U.S. government’s response brief in the habeas case of Al-Warafi v. Obama. The brief responds to Warafi’s claim that, because President Obama has publicly stated that the U.S. war in Afghanistan is over, there is no legal basis for Warafi’s continued detention.

In other GITMO-related news, Omar Khadr, the convicted war criminal transferred from Guantanamo to Canadian custody in 2012, has been granted bail by a Canadian court. At GITMO, Khadr pled guilty to throwing a grenade that killed a U.S. soldier in Afghanistan and was sentenced to eight years in 2010. Ben shared the news and posted the judge’s bail order.

With the June 1 sunset of Section 215 of the Patriot Act fast approaching, Ben informed us that Senate Majority Leader Mitch McConnell has thrown down a gauntlet in the fight for reauthorization (or not). Carrie Cordero followed by noting that Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) introduced a revised version of the USA Freedom Act.

Ben also told us that last Friday night, in response to a FOIA lawsuit, the Times received a 750-page report on Stellarwind, the NSA’s once-secret post-9/11 surveillance program and that preceded the NSA’s current surveillance activities. The report was a 2009 joint project of the inspectors general of five intelligence and law enforcement agencies. According to the Times, it reveals that the program’s effectiveness was hampered by the secrecy surrounding it and that members of the intelligence community “struggled to identify any specific terrorist attacks it thwarted.”

Ingrid Weurth explained how a case in which the Supreme Court recently granted certiorari with seemingly little connection to national security and foreign relations law is actually quite germane to these topics. The case, Spokeo v. Robbins, is a Fair Credit Reporting Act case about standing, specifically about “Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute.” Given that standing arises repeatedly in foreign relations cases, “the Court’s opinion in Spokeo will likely have important implications for Congress’s ability to create standing in foreign relations and national security cases more generally.”

In this week’s Foreign Policy Essay, Khalid Homayun Nadiri explored the ways in which Pakistan’s efforts to influence Afghanistan have both helped the Taliban and made Pakistan itself less stable. Despite the fact that this approach to Afghan relations actively harms Pakistan, Khalid argued, changing this approach is no easy matter.

Paul Rosenzweig updated us on efforts by state legal advisers from dozens of countries to produce Tallinn 2.0, the follow-up to the Tallinn Manual on the International Law Applicable to Cyber Warfare that will examine “the international legal framework that applies to cyber operations that do NOT rise to the level of an armed attack.”

Paul also rounded up the latest cyber goings-on in “Bits and Bytes,” and noted the cool (to put it lightly) welcome given to the intelligence and defense community at RSA, the “premier convention of cybersecurity professionals in America.”

Yishai Schwartz and Jennifer Williams kept us apprised of the latest news out of the Middle East.

Wells linked us to a video feed of the House Armed Services Committee markup of the FY 2016 defense bill.

Kenneth Anderson reviewed Documents on the Law of UN Peace Operations, a new sourcebook containing exactly what you would think such a book would contain: documents related to the law of U.N. peace operations.

Cody reported the news that Stephen Preston will step down as General Counsel of the Defense Department at the end of June. Preston has served as DoD General Counsel since October 2013, and before that served as General Counsel at the CIA from 2009 to 2013. We wish him the best of luck in his future endeavors.

Ben visited the Strauss Center for International Security and Law at the University of Texas to talk about The Future of Violence: Robots and Germs, Hackers and Drones—Confronting A New Age of Threat, his new book co-written with Gabriella Blum. Audio from the talk served as this week’s Lawfare Podcast.

Relatedly, he also provided us with yet another example of the New Age of Threat: really strong tiny robots.

While Ben was away, Wells admirably filled his shoes in the “Hell in a Yemeni Handbasket” Edition of the Rational Security Podcast. The gang reunited sans Wells for the newest episode, the “Drones Who Cannot Be Named” Edition.

 In this week’s Steptoe Cyberlaw Podcast, Stewart Baker sat down with Mary DeRosa, who served as Legal Adviser to the National Security Council during the early years of the Obama administration.

And that was the week that was.

Spokeo and National Security/Foreign Relations Law – Especially Zivotofsky

Friday, May 1, 2015 at 3:02 PM

The Supreme Court recently granted certiorari in Spokeo v. Robins, a Fair Credit Reporting Act case which might appear to have little connection to national security and foreign relations law.  But the case is about standing, in particular Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute.   Standing is a recurring issue in foreign relations cases; Bond was ordered dismissed by the Third Circuit for lack of standing to raise the 10th Amendment issue, but was reversed by the Supreme Court; Zivotofksy was initially dismissed by the district court for lace of standing, but was reversed by the D.C. Circuit; and of course the Supreme Court held in Clapper v. Amnesty International that the plaintiffs lacked standing to challenge as unconstitutional the government’s mass electronic surveillance under section 702 of the Foreign Intelligence Surveillance Act.

In Spokeo itself, the plaintiff alleged that Spokeo falsely reported that he had more education and experience than was true.  His amended Complaint alleged that the false information harmed his “employment prospects,” which the district court held failed to satisfy Article III’s injury-in-fact requirement because it did not allege actual or imminent harm.  The Ninth Circuit reversed, holding that actual harm was unnecessary because Article III was satisfied by the violation of the statutory right itself, even if plaintiff suffered no other injury.

The same issue arose in Zivotofsky.  The district court dismissed for lacking of standing (and based on the political question doctrine) because Menachem Zivotofsky alleged only a conjectural harm, not an actual or imminent injury, from having Jersualem listed as his place of birth on his passport in violation of the statute. Like the Ninth Circuit opinion in Spokeo, The D.C. Circuit reasoned in Zivotofsky that the invasion of the statutory right itself creates standing, even when the plaintiff would otherwise have suffered no judicially cognizable injury.  And although Lujan v. Defenders of Wildlife held that Congress cannot create standing for private plaintiffs who suffer only a generalized injury, that limitation applied in neither Zivotofsky  nor Spokeo, because in both cases the plaintiffs alleged a particularized injury.  However, the reasoning in these cases arguably runs afoul of the Court’s language in Raines v. Byrd.

The Court is, of course, expected to issue its opinion in Zivotofsky II any day now—the case was argued back in November.  As standing is one component of subject matter jurisdiction, the Court must raise it whether or not the parties have, and one amicus brief in Zivotofsky II does in any event raise the standing issue.  It will be interesting to see whether any Justices discuss standing, which was not raised at oral argument in Zivotofsky II.  In the first Zivotofsky opinion, which addressed the political question doctrine (a doctrine with a close relationship to standing), Justice Breyer (writing in dissent), characterized the injury suffered by Menachem Zivotofsky as “ideological” and best addressed by the political branches not the courts.  It would be disappointing for the Court to hold for Zivotofsky but then reverse in Spokeo based on reasoning that suggests Zivotofsky also lacked standing.

Beyond Zivotofsky, the Court’s opinion in Spokeo will likely have important implications for Congress’s ability to create standing in foreign relations and national security cases more generally.  For example, Congress could seek to reverse Clapper by amending the cause of action created by FISA to more clearly confer standing on private parties, an issue addressed by Steve Vladeck, but it is unclear whether such an attempt would be constitutional.  Spokeo promises to be an important separation of power case, with implications well beyond the consumer protection context.


Today’s Headlines and Commentary

By and
Friday, May 1, 2015 at 2:11 PM

Saudi-led airstrikes hit the Yemeni capital of Sanaa overnight, targeting a residential district and killing several civilians, according to residents. Reuters notes that the strikes, which also hit a military airbase near the capital, follow earlier attacks on an airport in Sanaa that may have closed off a crucial hub for humanitarian aid. The impact of that attack is especially worrying because, as the New York Times reports, the Yemeni civil war has created a humanitarian crisis, with at least 300,000 people forced from their homes. Yesterday, U.N. Secretary General Ban Ki-moon noted that the fighting in Yemen is crippling aid efforts and, insofar as it has targeted civilian and U.N. facilities, is in violation of the laws of war. McClatchy has more.

Regardless, Houthi rebels mounted a fresh attack near the Saudi border last night. The Associated Press notes that, according to Saudi Arabia, the rebels killed three Saudi soldiers and suffered “dozens” of casualties themselves. The attack is the latest in a string of such border attacks following the beginning of Saudi-led airstrikes in Yemen more than a month ago.

As the conflict continues, the connection between Iran and the Houthis is becoming clearer. Agence France-Presse reports that, according to evidence cited in a classified U.N. report, Iran has been shipping arms to the Houthis since at least 2009. Moreover, Iran announced yesterday that two Iranian destroyers had arrived at the entrance to a strategic strait between Yemen and Djibouti. The move, ostensibly meant to protect Iranian commercial vessels, comes after an Iranian convoy allegedly carrying arms to the Houthi rebels turned back when U.S. ships approached. AFP has more.

Following the seizing of a Marshall Islands cargo ship earlier this week, the U.S. Navy has announced that it will protect American commercial vessels with destroyers in order to prevent harassment by Iranian ships as they pass through the Strait. The Times notes that U.S. officials took care to characterize the operation as “accompanying” vessels, rather than escorting, which would imply a greater role for U.S. warships. The Wall Street Journal notes that the move comes as U.S. officials try to insulate ongoing nuclear negotiations with Iran from regional security concerns.

An Islamic State branch in Yemen has released a video depicting the executions of 14 Yemeni soldiers, Reuters reveals. While the group has previously claimed responsibility for attacks in the country and had already released a video showing militants training, this is the first execution video from inside Yemen the group has released.

And while ISIS’s main branch in Iraq and Syria has absorbed recent losses on the battlefield, the group’s recruitment of foreign fighters has not suffered. Nancy Youssef writes in the Daily Beast that, according to one U.S. official, the number of foreign fighters from Europe in the region has jumped from 5,000 to 8,000 in the last six months. “The recruitment channels continue unabated,” the official explained.

As the Iraqi government tries to roll back ISIS’s territorial gains in the country, Baghdad continues to be wracked by bombings. Yesterday, just after the director of the E.U. humanitarian aid department spoke of the deteriorating situation in Iraq and the rest of the world’s lack of attention to it, a series of car bombs rocked the capital, killing 21 people and wounding at least 65. The Times has more.

For the Social Science Research Council’s blog The Immanent Frame, Georgetown professor Alexander Thurston outlines the Islamic State’s intellectual genealogy, introducing ten thinkers who influenced ISIS and linking to one English-language source and one Arabic-language primary document for each. Thurston concludes, “analysts would do better to examine how ISIS’ peculiar religious genealogies have intersected with the tragic and complex politics of Iraq and Syria.”

Fresh congressional authorization for the United States’s fight against ISIS does not appear to be forthcoming. While a bipartisan group of lawmakers sent a formal letter to Speaker of the House John Boehner (R-OH) yesterday urging him to force action on President Obama’s proposed AUMF, the Washington Post writes that “the subject appears to be dying a quiet death.”

While the AUMF languishes in Congress, another ISIS-related legislative proposal has triggered fears in Iraq that the United States is seeking to break up the country. The Times reveals that language in the defense authorization bill released by the House Armed Services Committee proposing to directly arm Kurdish, local, and tribal forces in Iraq has stoked a “firestorm of Iraqi outrage.” That outrage comes as the progress of Iranian-backed militias fighting ISIS has provided support for the sentiment of some segments of Iraq’s Shiite majority that Iran is a more reliable partner.

In yet another sign that the Assad regime is facing increased pressure from Islamist rebels, Reuters reports that the Syrian army and Islamist rebels have engaged in fierce battles in Latakia, the government-held heartland of the Alawite community from which President Assad hails. The area, Reuters adds, is one of the most important government-held regions in the country.

In Congress, moves by critics of those negotiations are threatening to upset the Iran Review bill that has so far received bipartisan support. Senators Tom Cotton (R-AR) and Marco Rubio (R-FL) used a parliamentary procedure yesterday to force votes on two amendments to the bill—one that would require Iran to give up all its nuclear facilities before receiving any sanctions relief and one that would require Iran to recognize Israel—that jeopardize the bill’s prospects of passage, Politico reports. However, in the Post, Jennifer Rubin argues the amendments are unlikely to threaten the bill and we should see them for what they are—just another “obvious effort to raise senators’ visibility.”

In Pakistan, Prime Minister Nawaz Sharif lauded the Pakistani military for defeating militants in North Waziristan, once considered the Pakistani Taliban’s main base. The AP notes that the army has pushed militants out of most of the region and have formed a plan to help the more than 80,000 people displaced by the fighting return home.

At the same time, NBC News reports that ISIS-linked fighters are capturing territory in northern Afghanistan. The advances by the militants, reportedly mostly from Pakistan, Uzbekistan, Tajikistan, and the Caucuses, indicate that ISIS has spread its reach beyond the Middle East and North Africa. In doing so, locals say, the militants have exceeded the brutality employed by the Afghan Taliban, who they are oftentimes displacing.

Fighting appears to be intensifying in Mali, jeopardizing the peace deal and cease-fire reached between the government and northern rebels in March. The Times reports that the last week has seen armed factions in northern Mali fighting among themselves as well as with Malian soldiers and U.N. peacekeepers. The attacks have left nine soldiers, along with several civilians, dead.

Speaking before the Senate Armed Services Committee yesterday, NATO’s top commander said that Russia may be using a recent lull in fighting in eastern Ukraine to set up for a new military offensive in the region, Reuters writes. While noting that he could not predict Russia’s next move, General Philip Breedlove told the committee that Russia appeared to be building the capacity for another offensive and added, “In the past they have not wasted their effort.” Indeed, U.S. officials have explained that the Russian force now on the border with Ukraine is the biggest it has been since October, and that it has deployed more air defense systems than at any time since August.

Patrick Tucker writes in DefenseOne that the Defense Department’s new cyber strategy, in conjunction with cybersecurity information-sharing legislation making its way through Congress, could lead the Pentagon to share Americans’ data with foreign militaries. The Cyber Information Sharing Act, one of the information-sharing bills currently in Congress, would protect U.S. companies that share data about their users with the government. In turn, the new cyber strategy, which was released last week, indicates that the U.S. will share critical threat information with allied foreign militaries. Some of that information, Tucker argues, could be the same data which the CISA is helping U.S. companies to share.

On the topic of Americans’ data, the Times reports that the USA Freedom Act, which would stop the NSA’s bulk collection of telephony metadata, among other things, was overwhelmingly passed by the House Judiciary Committee and “was heading to almost certain passage in that chamber this month.” An identical bill has also been introduced in the Senate with bipartisan support. However, a series of hurdles in the Senate remain, where a fight is brewing between Majority Leader Mitch McConnell (R-KY)—who has put forth a clean reauthorization of the program—and other members of his party who are adamant that the program must be curtailed.

Following revelations in the German media that it was the subject of industrial espionage, Airbus announced yesterday that it would file criminal complaints in the matter against persons unknown. AFP reports that a German paper alleged that U.S. spy agencies had, through the German intelligence agency BND, targeted Airbus and other companies for years, and that the German government had been aware of the practice.

U.S. and Qatar have entered talks to extend security assurances for the five Taliban members released from Guantanamo last year to gain the release of Sgt. Bowe Bergdahl, the Post reports. As part of the terms of the release, the Qatari government committed to surveilling the militants and preventing them from leaving the country for one year. The agreement expires at the end of May, though there are indications that Qatar is open to extending the agreement.

According to the Miami Herald, language inserted into the House Armed Services Committee draft 2016 National Defense Authorization Act (NDAA) would forbid the White House from cancelling its lease of the American naval base located at Guantanamo Bay, Cuba. Other restrictions continue to block the transfer of detainees to the United States.

A new AP-GFK poll released today finds broad swaths of the American public continue to strongly support the U.S. targeted killing program. The poll finds 60 percent of Americans favor the use of drones to “target and kill people belonging to terrorist groups like al-Qaida,” while only 13 percent oppose. Most strikingly, of those who “support” or “neither favor nor oppose” the targeted killing program, 86 percent believe it is acceptable for the United States to target and kill American citizens overseas who are members of terrorist groups.

Parting shot: Yesterday marked the 40th anniversary of the fall of Saigon. A new four-part series published in a Vietnamese military journal, and covered by Newsweek, looks at how Hanoi’s intelligence services were able to “neutralize virtually every spying operation mounted against it by the CIA.”

Weekend long-read: The latest edition of Newsweek carries a cover story that asks, “Can America Win a War?” Roving from Roman battles, to Vietnam, to the ongoing forever war, Jeff Stein and Jonathan Broder explore the limits of American power and the necessity of a new way of thinking about conflict.

ICYMI: Yesterday, on Lawfare

Jennifer William and Yishai Schwartz brought us the latest news from the Middle East in the Middle East Ticker.

Jack outlined the disagreements between President Obama and Iranian Foreign Minister Javad Zarif’s interpretation of what the Iran Deal will do, and noted that eventually one side will be proven wrong.

Finally, Ben shared this week’s episode of Rational Security, which tackles the New York Times’ decision to name senior CIA officers.

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.

New AP Poll on U.S. Targeted Killing Program

Friday, May 1, 2015 at 11:16 AM

A new AP-GFK poll released today finds broad swaths of the American public continue to strongly support the U.S. targeted killing program. The poll was conducted in the days immediately following President Barack Obama’s announcement that the United States had mistakenly killed an American and Italian hostage in a drone strike on a suspected al Qaeda compound.

The poll finds 60 percent of Americans favor the use of drones to “target and kill people belonging to terrorist groups like al-Qaida,” while only 13 percent oppose. Most strikingly, of those who “support” or “neither favor nor oppose” the targeted killing program, 86 percent believe it is acceptable for the United States to target and kill American citizens overseas who are members of terrorist groups.

You can read the full AP write up here. The topline numbers from the poll are available here.

Bits and Bytes

Friday, May 1, 2015 at 8:38 AM

China Worried By New US Cyber Strategy.  “China’s Defence Ministry expressed concern on Thursday at the Pentagon’s updated cyber strategy that stresses the U.S. military’s ability to retaliate with cyber weapons, saying this would only worsen tension over Internet security.”  Maybe this is a good thing ….

Controlling Internet Infrastructure.  Still not sure exactly how the internet naming system works?  “This paper is the first in a series on the IANA transition. The initial paper explains the nature of the challenges and the opportunities presented by the transition. Subsequent papers will address in greater detail the substance of specific transition proposals now under development, and provide recommendations concerning the key components of a successful transition process.”

Lost in the Clouds.  “Our lives are digital now. Everything we do online leaves a trail that leads directly to us; something privacy advocates are fighting to eliminate. However, we’re our own worst enemy when it comes to privacy, and personal cloud adoption has done nothing to help the situation. Each day millions of people across the globe create backups of their files. These backups are supposed to offer a measure of assurance that their files are safe and easily recovered if needed. But that’s not entirely true.  In fact, depending on how you’ve configured the device, your backups are freely available online to anyone who knows what they’re looking for.”

Artificial Intelligence and Spying. “China has constructed the largest and most automated system for surveillance of its citizens ever seen in human history. As argued in my book, Cyber Policy in China, when it comes to choosing between e-democracy and i-dictatorship, the Chinese government has opted for the latter. China is already using highly automated systems for taking down internet traffic that it deems offensive. It has constructed a national database of all of its citizens, and it is building key grid-by-grid locality surveillance maps, including residency data, for sensitive parts of the country (such as Beijing and Lhasa). While the surveillance task China has set itself is for now beyond its technological means, a rapid development and application of AI to political censorship and surveillance by China could shift the current balance of power between Chinese netizens and their government heavily in favor of the latter.”


The Middle East Ticker

By and
Thursday, April 30, 2015 at 10:32 PM

UN inquiry finds Israeli munitions killed civilians sheltering in UNRWA schools, also finds Hamas used (separate) UNRWA schools to store missiles and fire at Israelis. A special investigative panel designated by UN Secretary General Ban Ki Moon and led by Dutch general Patrick Cammaert submitted its full report to the parties this week. The 207 page report has not yet been released to the public, although a summary and letter from Ban have been published. (According to Israeli media, the full report will be released in June.) The summary concludes that there were seven incidents of Israeli fire at, or near, UN schools, and three incidents of Hamas munitions stashed in UN schools from which Hamas “probably” directed fire. Although Israel is not cooperating with a separate probe from the UN Human Rights Council, it did with the Cammaert inquiry. The Israeli foreign ministry cites this cooperation as “evidence that when asked to assist in a professional investigation that is not biased against it, Israel responds with full cooperation.”

Two Naval War College scholars have concluded an extended “legal and operational assessment of Israel’s targeting practices” during this last Gaza war: The assessment, by John Merriam and Michael Schmitt, was based on visits to Israeli military sites, and Hamas infrastructure, reviews of combat footage and operational directives, and extensive interviews with IDF legal advisors and combat commanders. They conclude: “Israel’s positions on targeting law are consistent with mainstream contemporary State practice. While some of them may be controversial, they are generally reasonable and in great part closely aligned with those of the United States.”

The Israeli military announced its first indictments for conduct during this summer’s Gaza war. Two soldiers are charged with looting the equivalent of about 600 dollars from a home in the Shajaiya neighborhood, and a third is charged with helping the first two cover up attempt to cover up the evidence. The theft, which was quickly discovered and reported by the soldiers’ commanders, is one of the most straightforward decisions facing Israeli military prosecutors: Currently, an additional 120 incidents—including allegations of disproportionate force, torture of detainees, and firing on a woman carrying a white flag—are at various stages of investigation. The decision to proceed with many of these, especially those investigations that appear to second guess operational decisions made in real-time, are expected to meet with resistance from the Israeli right. The Israeli Military Advocate General is well aware of the political pressures and has repeatedly insisted that politics will play no role in his decisions, saying both: “We will not put soldiers on trial only in order to satisfy the media, which is disturbed by the large number of civilians killed in the war” and “The explanation I sometimes hear, to the effect that everything we do is aimed only at protecting the soldiers from the court in The Hague, is a miserable statement. A Military Police probe is not an insurance policy for the IDF.”

Israel’s next military Advocate General will be selected soon, slightly ahead of schedule. According to reports in Israeli media, Defense Minister Moshe Yaalon and Army Chief of Staff Gadi Eisenkot have begun deliberations to select Israel’s next military Advocate General, replacing incumbent Danny Efroni. The Advocate General wields an enormous amount of authority within the IDF, offering (often binding) legal advice on operations, and overseeing investigations and prosecutions of soldiers and West Bank civilians subject to military tribunals.

King Salman bin Abdulaziz Al Saud, the king of Saudi Arabia who was crowned in January of this year following the death of his half-brother, King Abdullah, issued a series of royal decrees on Saudi state television on April 29 that dramatically shook up the line of succession in Saudi Arabia and pushed a younger generation of royals (and the odd non-royal) much closer to the top echelons of power. The biggest change to come out of the decrees was King Salman’s decision to designate Mohammed bin Nayef, the country’s powerful interior minister and counterterrorism chief, as the crown prince and heir to the Kingdom. As The Guardian aptly explained, “By dismissing his half-brother and Abdulaziz’s youngest son, Prince Muqrin, 69, as crown prince, Salman has performed the equivalent, in British terms, of defenestrating Prince Charles and installing Prince William as the Prince of Wales.” In American terms, I suppose that would be like the Clintons deciding Chelsea should run for president in 2016 instead of Hillary.

Iranian naval forces seized a Danish-owned cargo ship flying under the flag of the Marshall Islands on April 29 in the Persian Gulf, prompting the U.S. military to dispatch a military destroyer to the location to monitor the situation. As reported by The Guardian, “According to a ‘free association compact’ with Washington, the US has sole responsibility for international defence of the Marshall Islands in return for exclusive military basing rights. The current compact expires in 2023.” The day after the incident, Iran’s Foreign Ministry released a statement saying that the seizure of a cargo ship was related to a years-old debt. The company that owns the ship is insisting that Iran let the ship go. In a statement, the Iranian foreign ministry said that Iran was following international law, and hoped the ship would be released “once debts have been settled, and hopefully the ship can carry on its course.”

Today’s Headlines and Commentary

By and
Thursday, April 30, 2015 at 1:08 PM

The Wall Street Journal reveals that the FBI helped facilitate a ransom payment to al Qaeda for Warren Weinstein, the kidnapped U.S. aid worker who, it was revealed last week, was inadvertently killed by a U.S. drone strike in January. Despite a longstanding U.S. policy of refusing to pay ransoms for hostages, the FBI reportedly vetted a Pakistani middleman that Weinstein’s family used to transport the $250,000 ransom to al Qaeda militants. U.S. officials claim, however, that the agency didn’t “directly authorize or approve the ransom payment,” and so didn’t violate any policy.

But Shane Harris writes that White House statements on the government’s refusal to pay ransoms are at best half-truths, according to veteran hostage negotiators and U.S. lawmakers. Indeed, Charles Regini, who served in the FBI for 21 years, said, “The FBI has always supported and assisted families with ransom payments. That has never changed.”

Syrian activists are reporting another suspected chemical attack in the Syrian province of Idlib, the Associated Press reports. According to groups based in Idlib, government helicopters flying over the town of Saraqeb dropped at least two barrel bombs containing chlorine yesterday. While the reports could not be independently verified, they are the latest in a string of reported chemical attacks by the Syrian regime since the U.N. Security Council adopted a resolution threatening action in response to the use of chemical weapons.

The reports come as U.S. allies in the Middle East have reportedly stepped up their aid to opposition fighters in Syria. The Washington Post reports that Saudi Arabia, Turkey, and Qatar have recently delivered extra weapons and financial aid to a coalition of Islamist and purportedly moderate rebel groups. The groups have capitalized on the increased support, mounting an offensive against Syrian government forces in the northwest of the country. But the increase in aid may also widen the gap between these countries and the United States, which has insisted on a slow-moving strategy of arming moderate rebels who will primarily combat ISIS.

The United States is also facing pressure from within the international coalition it helped form to fight ISIS to expand operations against the militant group. The New York Times explains that, as ISIS has broadened its reach beyond Iraq and Syria, some coalition partners have become increasingly worried about ISIS-linked groups nearer them. Egypt, for example, is concerned with the recent uptick in ISIS support for Ansar al-Sharia, a terrorist group across its western border in Libya, and with ISIS’s financial support for Ansar Beit al-Maqdis, a terrorist group operating in the Sinai Peninsula.

In Iraq, the government may soon deploy Shiite paramilitaries to fight ISIS in the mainly Sunni areas west of Baghdad. Reuters reports that Iraqi officials are now openly discussing deploying these Iranian-backed militias to reinforce an army campaign that has faltered, though sending Shiite militias to fight in Sunni tribal areas may increase sectarian tensions. But, while the army’s offensive in Anbar province has been stalled, ISIS losses in Iraq have forced the militant group to request reinforcements from its stronghold in Syria.

In War on the Rocks, Craig Whiteside offers his take on the recent Der Spiegel article describing the role of a former Ba’athist from Saddam Hussein’s regime in the rise of ISIS in Syria. The key takeaway, Whiteside argues, is not the revelation that a former Ba’athist helped design the group’s strategy, but rather the description of that strategy: a collection of “small ball” tactics used to slowly seize control over individual towns.

The Yemeni city of Aden is seeing its most intense fighting since combat began there over a month ago, according to residents. Houthi rebels and local militias have been exchanging tank and mortar fire in the city, while a Saudi-led coalition continues its bombing campaign on Houthi targets. Reuters has more.

Yesterday, senators blocked an amendment to the Iran Review bill that would have connected a final nuclear agreement with Iran to Iran’s support for terrorism. The Hill reports that the Senate rejected the amendment, which senator Ben Cardin (D-MD) called a “poison pill” for the bill, by a 45-54 vote. But while the review bill cleared that hurdle, Republican senator and presidential candidate Marco Rubio (R-FL) maintained yesterday that he will demand a vote on what Politico described as seven “politically charged” amendments. Per Politico, the latter include an amendment that would tie any Iran deal to a requirement that Iran recognize Israel; Senator Cardin called this proposal a “poison pill” as well.

One person seemingly unworried about the attachment of these amendments to the Iran Review bill is Iranian Foreign Minister Mohammad Javad Zarif. Speaking at an event at NYU yesterday, Foreign Minister Zarif warned that the United States would isolate itself if lawmakers act to nullify a deal, the Post writes. “I believe the United States will risk isolating itself in the world if there is an agreement and it decides to break it … the United States is bound by international law, whether some senators like it or not.”

Foreign Minister Zarif went on seemingly to boast that Iran has nothing to hide regarding its nuclear program, saying “If you’re looking for a smoking gun, you’re going to wait a long, long time before you get one.” But Reuters reveals that Britain has apparently informed a U.N. sanctions panel of an active Iranian nuclear procurement network with links to two companies currently under sanctions for their connection to Iran’s nuclear program. If such a network does indeed exist, Reuters notes, it would raise serious questions about the Iran’s willingness to comply with a potential nuclear deal.

Yesterday, President Barack Obama announced that the United States will boost its funding to help France in the fight against terrorist organizations in Mali, Niger, and Chad. The Pentagon will release $35 million in emergency defense aid, according to the AP. The news comes as the Wall Street Journal confirms that France will increase its own military spending over the next four years by $4.2 billion while dedicating 7,000 soldiers to countering the threat of extremist attacks.

According to the AP, the United States has termed the rebel groups fighting in eastern Ukraine “combined Russian-separatist forces” in order to indicate what U.S. officials call a significantly deepened command and control role for Russian military officials. The officials also noted that Russia’s air defenses in Ukraine are the most concentrated since August, while Moscow has more ground forces at the border than at any time since October.

More nuclear news out of North Korea today, as experts from the Institute for Science and International Security suggest that satellite images taken this month show the Yongbyon nuclear reactor may now be operating again. If correct, the news would be in line with recent reporting from the Wall Street Journal that Chinese officials had warned that the DPRK may be able to double its arsenal of nuclear weapons by next year. Reuters has more.

Whoa: France24 today reports that the German intelligence agency BND helped the U.S. National Security Agency spy on the French presidential palace, foreign ministry officials, and members of the European Commission, according to a source from inside the BND. The report, if true, could prove uncomfortable for German Chancellor Angela Merkel—who has vociferously complained about U.S. surveillance practices.

Across the Channel, the Guardian shares that an investigatory powers tribunal in the United Kingdom has ruled that British intelligence agency GCHQ must destroy all legally privileged information it unlawfully collected on Libyan Sami al-Saadi. The Guardian also notes that this is the first time in its 15-year existence that the tribunal has upheld an individual complaint against an intelligence agency.

More news from spy trials: Pakistani police have dropped a case recently registered against former CIA station chief Jonathan Bank and former acting CIA general counsel John Rizzo over a 2009 drone strike that killed two people. The case was dismissed as it did not happen in the jurisdiction of the Islamabad police station, where the complaint was filed. The AP carries the story.

In a night-owl session, the House Armed Services Committee passed a $612 billion defense authorization bill by a vote of 60-2. The annual NDAA will radically reform military retirement, but, Leo Shane of the Military Times notes, it rejects a series of other benefit adjustments proposed by the Pentagon. The bill rejects another round of base closures, fully funds commissary operations, and provides support for a 2.3 percent pay raise. The new retirement reforms will update the current 20-years of service, all-or-nothing system with a program of blended benefits featuring 401(K) style investment packages for all troops. The bill also includes new provisions for handling sexual assault cases, “including expanded access to legal resources for victims and improves services for male victims.”

Today, the House Judiciary Committee referred the USA Freedom Act to the full house by a vote of 25-2. The bill is designed to curb the NSA bulk collection program initiated under Section 215 of the Patriot Act. The Wall Street Journal has more on the measure, which is expected to move easily through the House.

The New York Times writes that, according to a report from a group of dissident health professionals and human rights activists, the American Psychological Association “secretly collaborated with the administration of President George W. Bush to bolster a legal and ethical justification for the torture of prisoners.” The Times notes that the involvement of the APA was significant because it allowed lawyers from the Justice Department to argue the program was legal and did not constitute torture. However, a spokesman from the APA denied the allegations, stating that there “has never been any coordination between the APA and the Bush administration.”

Finally, Carol Rosenberg of the Miami Herald reports that Air Force Col. Vance Spath, a military commissions judge at Guantanamo Bay, has denied a request by the attorneys of Abd al Rahim al Nashiri for a full copy of the Senate Select Committee on Intelligence’s study on Enhanced Interrogation Techniques or the “Torture Report.” Nashiri is on trial as the alleged mastermind behind the bombings of the USS Cole in 2000.

Parting Shot: Overshadowing the upcoming Mayweather-Pacquiao fight, Sen. Tom Cotton (R-AR) has challenged Iranian Foreign Minister Javad Zarif to a constitutional smackdown. The Wall Street Journal explains.

ICYMI: Yesterday, on Lawfare

Jack interviewed Dean Baquet, the Executive Editor of the New York Times, about the Times’s recent decision to publish the names of three covert CIA operatives. Ben weighed in on the matter, which brought a response from Mark Mazetti, the Times reporter who wrote the piece in question. Ben later shared another response he received from a reader in the intelligence community.

Cody broke the news that Stephen Preston is stepping down as General Counsel of the Defense Department.

Stewart Baker brought us the newest episode of the Steptoe Cyberlaw Podcast, in which the Steptoe gang rounds up the latest cyber news.

Kenneth Anderson reviewed Documents on the Law of UN Peace Operations, a sourcebook containing, well, documents on the law of UN peace operations.

Wells tipped us off to the House Armed Services Committee’s markup of the NDAA.

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.


The Obama Administration-Zarif Disagreement About What the Iran Deal Will Do, and the Implications for the Iran Review Bill

Thursday, April 30, 2015 at 10:37 AM

One side is wrong.

The Obama administration has made plain that the deal it is negotiating with Iran will be non-binding under international law, will not be converted to a binding international agreement that affects U.S. sanctions via Security Council approval, and will not be implemented until Iran demonstrates compliance. Moreover, under the Iran Review Bill, which the administration supports, the President will be disabled from lifting sanctions for 30-82 days, depending on the circumstances. (If the Iran Review Bill does not pass, the President can lift sanctions whenever he likes, with proper certifications.)

But yesterday, according to Josh Rogin, Iranian Foreign Minister Mohammad Javad Zarif told a New York audience a quite different story. Zarif stated that no matter what Congress does, President Obama must eliminate sanctions within days or weeks of the deal. Zarif also said that the Security Council vote would obligate the United States to lift sanctions, and bind Obama and his successors under international law.   Rogin paraphrases Zarif as saying that the “United Nations Security Council would pass a resolution lifting all UN sanctions and requiring Obama to stop enforcing all of the U.S. sanctions immediately.” He then quotes Zarif as follows: “The American president is bound by international law, whether they like it or not. And international law requires the United States live up to any agreement this government enters into,” he said.

The Obama administration position on the deal is simply not compatible with what Zarif says about the deal. One side has to be wrong. If Congress is worried that Zarif rather than the administration is more accurately describing the deal, then that is a reason, I think, to support to Iran Review bill. That bill is the only mechanism on the table that would delay the President from immediately waiving U.S. sanctions. The delay would give Congress time to assess the deal, look at what the Security Council does, and figure out if it (Congress) wants to (and has the super-majority votes to) stop the President from lifting U.S. sanctions. True, passage of the Iran bill raises the political stakes for Republicans.  If Congress cannot during the review period overcome a presidential veto to stop the lifting of sanctions, the President will look stronger and could claim extra legitimacy for the deal if Congress formally looks at the deal and does not object.

But if Zarif is right about what the deal will look like, then without the Iran Review bill’s statutory delay period, Congress will have no mechanism to stop the President from implementing the deal quickly. The most hawkish Republicans (Senator Cotton and others) view the Iran Review bill as a political trap. But if they succeed in killing the bill, they will also have killed the only realistic (though slim) opportunity Congress has to stop Obama from implementing the deal by lifting U.S. sanctions if it turns out Congress does not like the deal. And of course if Congress does not act before Obama lifts the sanctions (a possibility that only the Iran Review bill enables), it will have a much harder time re-imposing the sanctions later, as will the next President, no matter what his or her views.

Rational Security is Back on Schedule

Thursday, April 30, 2015 at 9:14 AM

Here’s this week’s episode:

The Triple Entente Beer Summit is Fast Approaching

Thursday, April 30, 2015 at 8:00 AM


Book Review: Documents on the Law of UN Peace Operations by Bruce Oswald, Helen Durham, and Adrian Bates

Published by Oxford UP (2010)
Reviewed by His Serenity, the Book Reviews Editor
Wednesday, April 29, 2015 at 10:00 PM

As United Nations peace operations have increased in number and ambition since 1990, international law governing them has grown increasingly important.  This includes particularly law and practice of the United Nations.  The legal relationships and terms governing the deployment of forces under a United Nations Security Council mandate are complex as to many issues; these complexities are driven, among other things, by the fact that the UN, lacking its own forces, operates through the military forces of member states, and so even such basic questions as command authority and command coordination among several different states’ militaries providing forces are difficult to untangle.

Over the decades, ways of working through such issues have gradually emerged, but many of them remain informal, and even ones that are formalized are often done through bilateral agreements between the UN and the country where such forces are sent, and bilateral agreements between the UN and the countries contributing forces.  For that matter, even the legal nature of a peace operation from the standpoint of jus ad bellum raises important mission issues:  is it a peacekeeping mission, for example, in which the peacekeepers do not have a mandate for offensive operations? Or, alternatively, is it an enforcement mission, with a mandate from the UNSC to undertake hostilities as required to reach certain ends, such as restoring security and order by quelling one or another non-state actor organized armed group?  What is the legal status of UN-authorized forces in a conflict with respect to the law of armed conflict, jus in bello, particularly in relation to the enemy?  Can UN forces, for example, be lawfully targeted by adversary forces under the jus in bello “combatant’s privilege” — and does it matter in answering the question whether those UN forces are “neutral” peacekeeping forces or, instead, whether are they (some form of) “peace enforcement” forces authorized to undertake hostilities? (Continued)

Another Response to the New York Times Flap

Wednesday, April 29, 2015 at 7:03 PM

An intelligence community reader writes in with the following response to my post this morning on Dean Baquet’s interview with Jack:

The issue is not [only] whether the true name and affiliation [of the covert officer] are known to the editors and reporters of the New York Times, and to the persons in their professional and social circles.  It is [also] whether that true name and affiliation are known to vast numbers of additional people around the world. Broadcasting the identity of a covert officer to a global audience places at risk many persons who have come in contact with that officer over the years, whether or not those persons knew of the officer’s true role or had anything to do with the activities and operations that are the subject of the media’s interest.  Publishing the names, therefore, risks causing serious harm, up to and including death, for those who were in contact with the covert officer and in many cases for their families as well. Whatever the Times may think about the risk to the specific covert officer it names, its rationale does not address the very real risks to others that it creates by its actions.

DoD Announces Departure of General Counsel Stephen Preston

Wednesday, April 29, 2015 at 4:24 PM

That’s the news from the Pentagon this hour. Preston will step down from his position as General Counsel at the end of June to join the faculty at Yale Law School.

The Defense Department released the following statement:

The Pentagon’s top lawyer, Stephen Preston, general counsel of the Department of Defense, notified President Barack Obama and Secretary of Defense Ash Carter that he will be leaving federal service at the end of June, after completing six years in the Obama administration.
Preston was appointed DoD general counsel by the president, with the advice and consent of the Senate, on Oct. 25, 2013.  He previously served as general counsel of the Central Intelligence Agency from July 2009 to October 2013.  From 1993 to 2000, during the Clinton administration, he held a series of positions at the Departments of Defense and Justice, including general counsel of the Navy.
Preston has played a leading role within the Obama administration in ensuring that the United States’ use of military force complies fully with all applicable U.S. and international law.  While at CIA, he was the government lawyer principally involved in planning for the May 2011 operation in which Usama bin Laden was brought to justice.  At DoD, he was instrumental in resolving authorities issues relating to the ongoing U.S. mission in Afghanistan after 2014 and the emerging U.S. mission to counter ISIL in Iraq and Syria.  Throughout his time in government, Preston has been a vocal proponent of greater transparency in matters of national security, speaking publicly on the legal justifications for U.S. counterterrorism operations abroad.
“Over the past six years, Stephen has served two secretaries of defense and three directors of the CIA with distinction – as a trusted legal advisor, wise counselor and effective advocate – helping to confront some of the most difficult challenges to our national security.  I had the pleasure of working with him at the Pentagon in the 1990s, and I was pleased to have a hand in getting him back here when I was deputy secretary.  On behalf of the men and women of the Defense Department, I thank Stephen for his many contributions to the national defense and for his years of selfless service to our country,” said Secretary Carter.
“It has been a rare honor to serve in the Obama administration, under truly inspiring leaders – most recently Secretary Carter, to whom I am very grateful.  My highest calling as a government lawyer has been to protect from legal exposure the men and women who are put at risk to protect our country.  The opportunity to serve those who serve us has been the great privilege of my professional life,” said Preston.
Preston looks forward to spending time with his family before returning to work in the private sector.  He has accepted an adjunct faculty appointment at Yale and, in addition to pursuing other opportunities, will be teaching a course at Yale Law School in the fall.

Steptoe Cyberlaw Podcast: An Interview with Mary DeRosa

Wednesday, April 29, 2015 at 3:07 PM

Our guest for episode 64 of the Cyberlaw Podcast is Podcast 64-1Mary DeRosa, the chief lawyer for the National Security Council during the early years of the Obama Administration, and now a Distinguished Visitor at Georgetown University Law Center. We ask Mary to walk us through a hypothetical set of NSC meetings on the Sony breach and the US response, flagging the legal issues and offices that come to the table. She helps me unpack the differences between the use of force, countermeasures, and an armed attack – and confirms that I have no future at the State Department – an overdetermined outcome if ever there was one. It’s a great primer on the practical ways in which cyberconflict is lawyered (or, in my view, overlawyered).

In the news roundup, I have to choose between defending the New York Times and defending Hillary Clinton. I choose Hillary, arguing that despite NYT innuendo the Russians aren’t dumb enough to pay tens of millions for a State Department “yes’ vote in CFIUS. Because as far as anyone knows, the State Department has never voted anything but “yes” in CFIUS.

The House has passed two cyber information sharing bills ‒ H.R. 1560 and H.R. 1731 ‒ and at every stage of the process, the sponsors made concessions to the privacy lobby, which simply pocketed the concessions and moved the goal posts. Michael Vatis and I note that the bill that came out of the Intelligence Committee contained a “privacy tax” on private sector information sharing that will discourage sharing. And the bill as amended on the floor was worse – potentially stripping encryption of its status as a protected “defensive measure” under the act. If privacy groups hadn’t demanded the change, they’d already be screaming about how the House hates crypto. Now the bill moves to the Senate, where it is wrapped around the axle of NSA’s215 metadata program. Debate over that program must conclude by May 22 and will, I predict, be Hobbesian: nasty, brutish, and short.

Maury Shenk and I Podcast 64-2discuss the EU’s gift that keeps on giving:  “Mad Dog” Oettinger, the high European official who finally threw away the mask, admitting a determination to regulate US tech companies until Europeans can climb back into the ring. There are rumors that his office is considering a vast new regulatory program for electronic platforms. Meanwhile, a bunch of senior UK intelligence officials are calling US Internet companies ‘terrorist-friendly’ for enabling encrypted communications.

We quickly reprise the news from RSA: Jeh JohnsonAsh Carter, John Carlin, Tom Wheeler, and Michael Daniel were all in San Francisco last week.  Carter announced a DOD cyberwar strategy that looked at best like a plan to plan for cyberwar but still managed to be an improvement over past DOD efforts. Jeh Johnson wants DHS to have an office in Silicon Valley. And Michael Daniel admitted that the government is still looking for an escrow-type crypto solution.

Finally, another FTC privacy case is settled, as the Commission declares that the lack of an instore-tracking opt-out is unfair, or deceptive, or newsworthy, or whatever the FTC’s standard for prosecution is these days. Jason Weinstein introduces me to my new heroes –  Maureen Ohlhausen and Joshua Wright‒ the two FTC commissioners who dissented from this lawless decision.

As always, send your questions and suggestions for interview candidates to [email protected] or leave a message at +1 202 862 5785.

Download the sixty-fourth 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.

Mark Mazzetti of the New York Times Weighs In

Wednesday, April 29, 2015 at 2:34 PM

The estimable Mark Mazzetti—the New York Times national security reporter who wrote the story over the weekend that prompted the outing-CIA-officers flap—writes in with the following note in response to my post this morning reflecting on Jack’s interview with Times Executive Editor Dean Baquet:

You summarized Dean’s points pretty well, but I would strongly emphasize another point.

These individuals have ascended into the most senior jobs at the agency, jobs that historically have been overt jobs. The head of the Counterterrorism Center is responsible for a staff of over 1,000 officers, and manages a budget of more than $1 billion. It’s a departure for the head of the CTC to be an undercover officer. Rober Grenier, who was Mike D’Andrea’s predecessor at CTC, was not undercover in the job.  Remember how famous CTC Chief Cofer Black became after the September 11 attacks, when he was quoted about how al Qaeda operatives would have “flies on their eyeballs?” The CIA even arranged for Bob Woodward to interview Cofer Black—and some of Black’s deputies—for Woodward’s book “Bush at War.”

The head of the Directorate of Operations is an even more striking case. The person in that job has almost never been undercover. Of course George Tenet called Greg Vogel “Greg V.” in his memoir—a book that was cleared through the agency’s Publications Review Board—so the agency has already taken the first steps toward making his name public to all.

I’ve spoke to many, many former CIA officer who believe it is wrong for the senior most CIA officials to remain undercover. They said that when they got to the 7th floor, it used to be a requirement that they had their cover lifted because they had become senior representatives of the agency.

Obviously, it’s the prerogative of the CIA to make its own decisions about whether to lift cover identities or not—and believe me, no decisions we make about publishing names are taken lightly. But we also have to consider that what is going on now is something of a change of practice for the agency. These officers are no longer out in the field running sources. They have become managers of an extremely important lethal program that has become embedded in the new American way of war.

Today’s Headlines and Commentary

By and
Wednesday, April 29, 2015 at 2:06 PM

The Afghan government is sending thousands of troops to Kunduz province in an effort to stem a large Taliban offensive in the province, the Times reports. The Afghan Taliban’s assault in Kunduz, which began on Friday, reportedly surrounded an entire Afghan battalion along with the province’s capital city. The Taliban’s offensive is bolstered by foreign fighters that, according to the Afghan government, are flooding into northern Afghanistan by way of Pakistan, where a military operation against extremists is putting renewed pressure on local groups.

Reuters adds that the U.S. military has sent fighter jets to the province, though their mission there remains unclear; a military spokesman explained that the planes had not dropped any munitions in their flights. The Times reveals, however, that despite the official end to the U.S. combat mission in the country, the U.S. military is “regularly conducting” airstrikes against insurgents across Afghanistan. Moreover, the military is routinely sending Special Operations forces into combat, obfuscating their direct combat missions as “training and advising.” These raids, the Times writes, “have in practice stretched or broken the parameters publicly described by the White House.”

After firing warning shots across its bow, Iranian troops boarded a Marshall Islands-flagged ship yesterday in the Strait of Hormuz, Reuters reports. While Saudi-owned Al Arabiya initially reported that 34 U.S. soldiers were on board the ship, the Pentagon said there were no U.S. citizens aboard. The company operating the ship said that there were 24 crew members aboard, mostly from eastern Europe and Asia. The Wall Street Journal adds that the operating company, Rickmers Shipmanagement, reported this morning that it had made contact with the crewmembers, who appeared to be in good condition.

In response, the United States is sending a Navy destroyer to the Strait of Hormuz, a move that comes amid growing worries that Iran is increasing its harassment of commercial ships in the Strait, the Wall Street Journal notes. Just last week, four Iranian patrol boats tried to make contact with and then encircle a U.S.-flagged ship in the Persian Gulf. Indeed, one U.S. official said that Iran may have mistaken the ship it boarded yesterday for a U.S. ship: “They were going after a U.S. vessel. That is what they wanted.”

The Times writes that American officials were quick to downplay the importance of the incident in relation to ongoing nuclear negotiations with Iran. But the Hill reports that members of Congress both for and against a deal with Iran expressed concern about the incident, though those against the deal generally attributed to it much greater significance.

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A Thought on Dean Baquet’s Comments to Jack

Wednesday, April 29, 2015 at 11:47 AM

This morning, Jack published an interview he conducted yesterday with New York Times Executive Editor Dean Baquet about the paper’s decision the other day to publish the names of three covert CIA officers. Earlier this week, DNI General Counsel Robert Litt blasted this decision, and—among other things—Baquet in the interview defends it.

Baquet offers a relatively complicated defense, which I hope I am not distorting or oversimplifying when I summarize it as follows: The drone program is more of a military operation than a traditional covert intelligence program. It’s highly controversial and much debated. Some of the people who have run it are the same people who earlier ran the CIA’s interrogation program. So there’s an accountability need to describe who they are. Moreover, the CIA didn’t make a strong case for keeping their names secret:

These guys may technically be undercover. But even the CIA admitted when they called – and this was a big factor in the decision – that they are widely known, and they were known to the governments where they were stationed. The CIA’s pitch was not that these guys are secret or that people don’t know about them. The CIA’s pitch to me was, “Look, its one thing to be widely known, and to be known to governments and to be on web sites; but when they appear on the front page of the New York Times, that has a larger meaning.” So they were known anyway. The gentleman at the very top [of the CTC] runs a thousand-person agency, and makes huge decisions, personally, that have tremendous repercussions for national security. I’m not making judgments about him, but that’s the reality.

In other words, these guys are running a military program and their identities aren’t really that secret anyway.

Baquet makes some strong points, but I don’t think his analogy between CIA officers and military officers—whom papers will nearly always name—is a good one. The reason is that a CIA officer whose name is protected will often have a long history of recruiting sources in foreign countries and of working with foreign governments. Yes, it’s true that those foreign governments might, in fact, know that the operative is CIA, might in fact work with that person because he or she is CIA. But the fiction that the person is part of the State Department, or isn’t in the country at all, can often make that cooperation possible, because it gives the liaison government deniability. Moreover, while the person may be relatively well-known in some stations in which he or she has served, that may not be true in all. And there may be sources that he or she recruited a while back who become exposed when the officer is outed now.

The outing of a covert officer can thus not only reveal his or her affiliation—or identity—to people who didn’t, in fact, know it before. It can also have an “emperor has no clothes” effect on people who did know it—forcing them to deal publicly or openly with a reality that everyone had agreed not to acknowledge before and whose non-acknowledgement made other things possible.

I’m not saying that’s what happened here, but there is a reason that the CIA takes extraordinary measures to protect clandestine service officers’ identities—and that Congress passed a law generally making it a crime to intentionally out protected operatives and agents.