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Some Implications of President Obama’s Plans to Sidestep Congress on Iranian Sanctions

Tuesday, October 21, 2014 at 9:28 AM

David Sanger recently reported that the Executive branch thinks it can suspend “the vast majority” of congressional sanctions unilaterally if it reaches a deal with Iran to forestall that nation’s nuclear weapons program.  “President Obama will do everything in his power to avoid letting Congress vote on” the matter, Sanger tells us.  “We wouldn’t seek congressional legislation in any comprehensive agreement for years,” says one senior official.

There are many different statutory sanctions against Iran, and Congress’s most recent word – from 2012 – tightens and narrows the President’s authority to waive the sanctions.  Without getting into the details, it nonetheless appears that the President can waive most if not all sanctions against Iran for the remaining two years of his term if he is willing to make the requisite findings.  If he does so, what are the implications for any nuclear deal with Iran?  Answer: The deal will be tenuous.

The fact that the President does not think he can get Congress on board for any deal with Iran signals to Iran that any deal would be with the President alone, and would last only as long as his waiver authority – i.e. two more years.  The deal could last longer, as it did with the last major unilateral presidential deal with Iran, the 1981 Algiers Accords that effectuated the release of the hostages.  In the transition between the Carter and Reagan administrations in January 1981 some in Congress and the press questioned whether President Reagan should honor the deal that Carter struck with Iran through Algerian intermediaries.  President Reagan did honor it, of course, and the courts upheld his and Carter’s actions.  But the situation with Iran today is different than 1981.  Among other differences, (1) Congress appears more skeptical of this deal-to-be than it did of the deal in 1981, (2) President Reagan and Congress faced powerful financial incentives to stand by the deal struck by President Carter (namely, the ability of American firms to recover property expropriated by Iran) that are not present in the current negotiation, and (3) Congress’s consent is probably necessary to make any deal now with Iran work over the medium term in a way that it was not necessary to make the deal work in 1981.

The bottom line, then, is that any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous.  And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.

Here we can see the underappreciated benefits that accrue when the President succeeds in winning congressional approval for a foreign policy deal (whether it is a treaty, a congressional-executive agreement, or something short of those things).  To win such approval the President must expend political capital and convince the American people and its representatives about the value of the deal.  The expenditure of presidential capital signals the importance of the deal to the President.  If he succeeds in winning approval from Congress, that approval credibly conveys that the nation, as opposed to a particular president, is behind the deal.  The negotiating partner thus receives meaningful information about the depth of the United States’(as opposed to the President’s) commitment, which makes possible (but does not guarantee) a deeper and more meaningful commitment by the negotiating partner.  Vladimir Putin understood this when he rejected President Bush’s handshake deal on nuclear weapons reduction and insisted instead on ratification of what became the Treaty of Moscow, which significantly cut U.S. and American nuclear weapons arsenals.

Of course, winning legislative approval for initiatives such as these is hard and sometimes impossible – which is precisely why such approval sends such strong signals about the nature and degree of the nation’s commitment.  President Obama believes, certainly correctly, that Congress is simply not going to cooperate on this issue right now.  (Sanger’s article will likely make Congress even more ornery on this topic.)  So if he wants a deal with Iran (which he clearly does), Obama must strike the deal on his own.  The President’s team might think that a short-term and tenuous deal with Iran – with the implication that Iran’s commitment to the deal will be tenuous as well – is better than no deal at all.  And it likely further thinks that the deal will prove its worth over two years, and might persuade the next President and Congress that it is worth continuing.  (Count me as doubtful on this last point.)

A final point.  Sanger notes that, just as Iran must assess the domestic support in the United States for any deal the President strikes, the United States similarly must assess whether the Iranian negotiator, Mohammad Javad Zarif, can sell his deal to the Iranian Revolutionary Guard and many of the mullahs.  Both sides are playing two-level games, and each is trying to understand how the domestic game by the adversary informs what is achievable in the international negotiation.  And surely there is much bluffing and posturing going on in each of these three negotiations (Obama-Congress, Obama-Zarif, Zarif-Revolutionary Guard).  Even with these complications, I still believe that Obama’s plan to sidestep Congress suggests that the United States’ commitment to any deal with Iran would be fragile, and that Iran will understand this, and shape its commitment to the deal (and its future plans for nuclear weapons development) accordingly.

Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

Monday, October 20, 2014 at 4:11 PM

U.N. Special Rapporteur Ben Emmerson’s report on “mass surveillance” may signal increasing conflict between the US and world bodies on surveillance issues.  The U.N. report makes sweeping normative claims but fails to ground those claims in an accurate description of the US surveillance program.  The report claims, for example, that a state must impose the same restrictions on surveillance of foreign nationals overseas that it imposes on surveillance of its own citizens within sovereign territory.  Universal state practice clashes with this claim.  Furthermore, no tribunal, domestic, regional, or international, has ever embraced such a sweeping limitation.  The U.N. report makes a valuable point on the need for independent checks on surveillance, but its casual legal analysis and cavalier posture on facts undermine its value.

The first problem with the U.N. report is its failure to include widely available factual descriptions of US surveillance that rebut the report’s findings.  Take the excellent U.S. Privacy and Civil Liberties Oversight Board (PCLOB) report on § 702 of the Foreign Intelligence Surveillance Act, which governs U.S. surveillance overseas.  The Special Rapporteur suggests that US surveillance abroad, such as surveillance authorized by § 702, constitutes illegal “mass surveillance.”  However, the U.N. report does not incorporate the PCLOB’s extensive discussion (at pp. 32-36), of the nuanced nature of § 702 surveillance.

While Special Rapporteur Emmerson suggests that the US indiscriminately collects communications off the Internet’s backbone, the United States’ approach is far more tailored.  The text and structure of § 702 require targeted surveillance, not indiscriminate collection.  Surveillance methods have to be approved by the Foreign Intelligence Surveillance Court (FISC); persons targeted include those working with international terrorists, such as ISIS, international nuclear weapons dealers, and individuals evading sanctions that the US and global bodies have imposed on terrorists. (Section 702 also permits targeting that serves the “foreign affairs” of the US, a less concrete category.  Congress should consider refining this category, as I say in a forthcoming Hastings Law Journal paper on § 702, although the largest use of this category may be targeting of foreign governments and firms that engage in anti-competitive practices.)   Read more »

Pushing Treaty Limits?

Monday, October 20, 2014 at 2:49 PM

Suppose the United States government helps to negotiate, and subsequently champions, certain framework treaties–ones justly viewed as imposing significant constraints on all signatories. Down the road, the United States occasionally even calls out counterparties for their looser policy innovations, when the latter push the outer boundaries of what’s permitted under the treaties; a treaty-created monitoring body does likewise in its annual reporting. This pattern essentially holds year in and year out and from one presidential administration to the next.

But then the facts on the ground change radically. History shifts course. Unforeseen challenges arise. Some quite unprecedented changes insist upon–in the view of the executive branch–a more flexible approach, one in visible tension with the treaties’ express (and now seemingly outdated) language.  The United States claims that instruments once thought to be airtight are in fact rather capacious, and that the treaties build in enough discretion to permit states parties to decide, unilaterally, how best to further the accords’ larger aims. This in turn permits the United States to oppose any calls to revisit the treaties, and to avoid the messy, uncertain business of international negotiation and (shudder) eventually winning Senate approval.

Here’s a Lawfare thought experiment: what’s the body of law in play here? And what’s the policy shift now confronting that law?

Read more »

Today’s Headlines and Commentary

Monday, October 20, 2014 at 11:14 AM

The US-led coalition fighting against the Islamic State of Iraq and Syria (ISIS) launched new airstrikes in Kobani, a Syrian town along the Syrian-Turkish border. Reuters reports on the airstrikes.

CNN reports that at least 70 ISIS militants were brought to a western Syrian hospital over the weekend, a direct result of the US-led airstrikes in Kobani, along with a reinvigorated military offensive on the part of Iraqi and Kurdish forces.

The AP tells us that the US also airdropped weapons, ammunition and other supplies into the city of Kobani. The aid is meant to help the Kurdish forces who have been helping to push back ISIS.

But the Daily Beast breaks some pretty distressing news: while the airstrikes have indeed been hitting ISIS, apparently, US humanitarian aid—everything from medical supplies to food—has been inadvertently landing in ISIS’ lap. The aid is intended for displaced Syrians, but ISIS has increasingly been gaining control of the various shipments, often holding them ransom or even distributing the goods as if ISIS militants were the ones to provide struggling Syrians with support.

Ibrahim Kalin, the Deputy Undersecretary of State and Senior Adviser to the Prime Minister of Turkey, has penned an opinion piece for the Wall Street Journal addressing Turkey’s role in the ongoing crisis in Syria. Kalin says that asking Turkey to send in ground troops to Syria—which many have encouraged the country to do—“defies any logic.” Kalin lists many reasons why Turkey shouldn’t send troops into Syria, and reminds us that Turkey has done the most to help displaced Syrians since the beginning of the conflict. Finally, Kalin argues, strongly, that the only way to a path to stability in Syria is to finally bring down Bashar al-Assad.

Still, it seems Turkey will help to “facilitate the movement of Iraqi Kurdish forces, known as pesh merga, to the embattled Syrian town of Kobani to join the fighting there.” The New York Times reports.

Lawfare’s Sean Mirski has a written a piece for The National Interest arguing that ISIS may be further in decline that we might realize. Mirski argues that ISIS’ strategy of attempting to establish itself as a legitimate “state” will ultimately be its undoing:

By creating a caliphate, ISIS has also created a new vulnerability for itself: it has become governor of a territory encompassing millions. Its statehood has brought it fame, funding and foreign fighters, but it has also established fixed assets that the United States and its allies can easily hold at risk. It is hard for the United States to pin down shifting and elusive people-based networks like Al Qaeda; it is much easier to target the infrastructure and operations of a territorial government.

Iraq has formed a new unity government.  But many concerns still remain about the longevity of the unity in parliament, and a new UN report highlights the extraordinarily high use of the death penalty in the country as a potential challenge to unity. The Atlantic covers the report. Also in Iraq, per the Times: at least 43 have been killed in suicide and car bomb attacks.

“Denmark Tries a Soft-Handed Approach to Returned Islamist Fighters.”  That’s the headline from this piece in the Post. 

The Pentagon has announced plans to help address the Ebola crisis in America. The Washington Post tells us that the Pentagon’s Northern Command is compiling a team of 30 medical experts that will be ready to “quickly leap into a region” if new Ebola cases materialize.

Apropos, the Times’ Helene Cooper hails originally from Ebola-stricken Liberia. In this article, she shares her unique perspective on the crisis.

Al Jazeera reports of an increase in violence in Benghazi, and across Libya generally. Libya is in a state of internal chaos: two competing governments continue to vie for power, while terrorist organizations have also taken retreating to Libya as a kind of safe haven.

Rhe crisis in Libya shows no signs of dying down, but the US and its European allies have “called” for an end to the violence, according to the Telegraph. The countries released a statement expressing disappointment at the continued fighting and also threatened sanctions should it continue.

It was a messy weekend for Nigeria. First, on Saturday, the AP told us that the Nigerian government announced a truce had been struck with the militant organization Boko Haram. The group is still holding over 200 schoolgirls captive after kidnapping them over six months ago. But, on Sunday, a wave of violence across the country at the hands of Boko Haram put serious doubt into the success of any kind of a ceasefire, dampening the hopes that the girls might soon be recovered.

Sweden is searching for a suspected Russian submarine in waters east of Stockholm. DW explains that the Swedish government received a report of “foreign underwater activity,” which prompted the search.

The AP reports that there was an exchange of gunfire along the border of North Korea and South Korea on Sunday. The South Korean army placed the blame on North Korea, explaining that some of their soldiers had aggressively approached the military demarcation line. After both sides traded fire, the North Koreans retreated.

The United States has been accused of misleading the British government concerning the conditions of Shaker Aamer, a British citizen held at Guantanamo. Earlier this year, US officials assured the British government that Aamer was not subject to force-feeding and other harsh tactics, despite reports indicating otherwise from fellow Guantanamo detainees. But, the Guardian explains, the director of British legal charity Repreive isn’t buying it. Clive Stafford Smith insists that that reassurance is deceptive.

The National Security Agency has launched an internal review of its Chief Technical Officer, Patrick Dowd, and his part-time work for former NSA director Keith Alexander’s private corporation. Reuters reports that Dowd’s part-time work for IronNet Cybersecurity Inc, though somewhat unprecendented, had been approved by the upper echelon of the NSA. But the arrangement is now under review, amid concerns that Dowd’s work might “blur” the lines between government and business.

Lastly, new research suggests that a key pay-gap may be closing the Washington-area job market: the pay differential between security-cleared workers and their un-cleared counterparts has been on the decline.  Read more in the Post.  

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.

Chertoff Ties Visa Waiver Program With Surveillance Tools

Monday, October 20, 2014 at 11:00 AM

In a recent speech at The Heritage Foundation, former Secretary of Homeland Security Michael Chertoff made the case for continuing the Visa Waiver Program (VWP). On the surface, his speech addressed only why the United States should keep and expand the program. But it did far more. Subtly yet forcefully, it made the case for robust surveillance programs that work hand in glove with the VWP.

For those not familiar with the VWP, it is a program where participating countries (38 to date) agree to share basic data and security information with the United States about travelers from their countries and offers privileges to U.S. citizens travelling to their countries. Participating countries also must have a visa refusal rate below 3 percent.

According to a Heritage paper by a colleague, prior to travel, “VWP tourists are prescreened using the databases of all VWP member through the Electronic System for Travel Authorization (ESTA), which determines whether or not they are eligible to travel to the U.S.”  The national security benefit to us is obvious, and VWP has also allowed for greater economic flow between the United States and VWP member states.

Secretary Chertoff said that “we are in a dangerous place in the world, perhaps more dangerous than in the past 10 years.  And that is because of the proliferation of terrorist groups.”  He rejected the call by some in Congress to scale back the VWP, saying that “it would be a huge mistake.” Read more »

The Week That Will Be

Monday, October 20, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, October 20th at 3 pm: The Brookings Institution will host a panel discussion on US-Russia Relations: Beyond the Crisis in Ukraine. Victoria Panova, Steven Pifer, Jeremy Shapiro, and Michael E. O’Hanlon will speak on the future of U.S.-Russia cooperation on the two countries many common interests, including Iran, Afghanistan, and to some extent, North Korea. More information here.

Tuesday, October 21st at 12 pm: At the Woodrow Wilson Center, Jubin Goodarzi, will give a speech on Iranian Policy Toward the Iraqi and Syrian Crises, providing an overview of the evolving situation and focusing on Iran’s policies, perspectives, interests, and options in the ongoing Syrian and Iraqi crises. RSVP here

Wednesday, October 22nd at 3 pm: The entangled threat of crime, corruption, and terrorism remain important security challenges in the twenty-first century. In her new book, Dirty Entanglements: Corruption, Crime, and Terrorism, Louise Shelley argues that their continued spread can be traced to economic and demographic inequalities, the rise of ethnic and sectarian violence, climate change, the growth of technology, and the past failure of international institutions to respond to these challenges when they first emerged. Join Carnegie for a discussion with Louise Shelley. Milan Vaishnev will act as discussant, and Moisés Naím will moderate. Register to attend here.

Thursday, October 23rd at 9:30 am: The Stimson Center will hold a panel discussion entitled Iran and the Arab World After the Nuclear Deadline: Possible Scenarios. Discussants will cover Iran’s involvement and interventions in the Middle East and whether recent developments in nuclear talks will cause Iran to adopt a different course in the region. Geneive Abdo will moderate a conversation with Mehrzad Boroujerdi and Abbas Kadhim. RSVP here

Thursday, October 23rd at 10 am: The Carnegie Endowment for International Peace will host a discussion with David S. Cohen on Disrupting ISIL’s Money Trail. With a broad international effort underway to degrade and defeat the Islamic State of Iraq and the Levant (ISIL), David S. Cohen will outline the United States’ strategy to undermine the organization’s financial foundation. He will discuss the terrorist financing challenge posed by ISIL, the group’s sources of revenue, and explain how the Treasury Department, together with its counterparts across the U.S. government and its international partners, is working to address the threat. Marwan Muasher will moderate. Register here.


Employment Announcements (More details on the Job Board)

Senior Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence


SALARY RANGE: $124,995-$157,100 / Per Year
OPEN PERIOD: Sept. 11, 2014 to Sept. 11, 2015


The Office of General Counsel (OSG) of the Office of the Director of National Intelligence provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law, procurement and acquisition law, personnel law, government ethics, budget and fiscal law, general administrative law, legislative support, government information practices, and intellectual property law.MAJOR DUTIES AND RESPONSIBILITIES:

  • Provide expert legal advice and guidance to senior ODNI leadership on complex areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.
  • Provide expert legal counsel to support the development, review, and preparation of US Government-wide policies, procedures, guidelines, rules, and standards.
  • Counsel clients, including senior ODNI leaders, on complex legal issues and provide innovative and highly effective guidance on possible courses of action; expertly prepare complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.
  • Provide timely reviews of planned ODNI and IC activities for compliance with the Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief ODNI leaders on potential legal and policy issues, and develop solutions to address difficult legal problems having potential high-level or large-scale impact on the ODNI’s or the IC missions and activities.
  • Provide expert briefings and advocate for ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; cogently brief senior ODNI leaders on legal issues that relate to or effect ODNI and IC activities.

For more information and for directions on how to apply, please visit the employment announcement.

Ask Wells: #ComeyCrypto, Our Mysterious Publisher, and Cancelled Hearings

Sunday, October 19, 2014 at 5:00 PM

I am stoked to post the first installment of Lawfare’s latest (and perhaps most peculiar) experimental feature: “Ask Wells.”

The format, as Benjamin Wittes explained earlier, is straightforward.  Readers can write in and ask questions on most any topic—from national security law to the site’s content and editorial choices to whatever other things may be on their minds. I will do my best to answer—though I obviously do not promise to answer every single question.

Here are three queries.

The first didn’t come via the newly-minted “Ask Wells” channel at all, but instead over Twitter—where the ACLU’s technologist, Chris Soghoian, challenged Wittes about why nobody with a technical background would share the stage with FBI Director James Comey on Thursday. As you likely know by now, the latter made public remarks at Brookings, followed by questions from Ben and members of the audience. As you also likely know, the gist of Comey’s speech was to warn that new and more rigorous default cellphone encryption protocols will keep law enforcement from accessing data at rest in a timely fashion, and thereby block investigations of serious crime.

I gather from Chris’ Tweet that, in his view, the addition of a tech-savvy person to the program was needed in order to push back against the FBI Director’s assertions about the bad consequences of “going dark”—to borrow government folks’ preferred and rather ominous term for the consequences of strengthened encryption. The absence of a technical voice, the worry went, doomed Thursday’s discussion to lopsidedness or inaccuracy; Ben and Brookings thus ought to explain the programming choice.

I asked Ben for an explanation. Here’s what he said:

First off, this is really a Brookings issue, not a Lawfare issue. But I make no apologies for giving the FBI director an opportunity to have a direct dialog with the Brookings audience without being part of a panel. To be sure, sometimes think tanks host panel discussions on this or that issue, along the lines Soghoian suggested in his tweet. But normally, when senior government officials want to give policy addresses, we don’t put them on panels. Comey wanted to give a brief speech and then have a conversation with the audience about encryption. That’s what we did, and I think the results speak for themselves. I’m proud of the event.

For what it’s worth, I would add that I think there was a good, rather skeptical back-and-forth between Comey and folks in the audience—which indeed comprised some tech-minded people, including Soghoian himself. He asked the morning’s first question, which was a strong challenge to Comey’s premise, and at least one other civil liberties activist asked a question too. I have invited Soghoian to expound upon his thoughts on Comey’s ideas in next week’s Lawfare Podcast.

This brings us to the week’s second question: Nick Rostow, formerly of Yale Law School and these days of National Defense University, wrote in and asked who “puts [Lawfare] out.”

That’s an easy one: A non-profit corporation called the Lawfare Institute publishes Lawfare, with a big assist from Brookings—where Ben and Cody and I all work.  It’s roughly a partnership-type setup: the non-profit controls Lawfare’ s editorial and other policies, but the project very much depends on Brookings’ support; the two therefore work together closely from one day to the next. Lawfare also draws on any number of Brookings scholars in the context of the weekly Foreign Policy Essay, which is edited by Brookings Senior Fellow Daniel Byman.

I’ll close with a query from the estimable journalist Margot Williams, who just joined the team over at The Intercept.  She asked why a scheduled hearing in the 9/11 military commissions case this week was abruptly cancelled by a military judge at Guantanamo. Public records made it hard to tell. As is maddeningly typical, the court’s order canning the hearing was noted on the military commissions’ website but not available for reads or downloads—owing to the automatic and almost always needless delay, imposed on all litigation documents by the Department of Defense, so as to ensure that filings do not contain national security secrets.

So what gives? By now you may have read an update from the dean of GTMO journalism, the Miami Herald‘s Carol Rosenberg. She reported this week that, in essence, the military judge thought that going forward with this week’s hearing would be unproductive. These days the 9/11 case moves at a glacial pace for many reasons, one of which has to do with recent allegations regarding conflicts of interest in the representation of the accused. Such allegations were to be the subject of the scheduled session this week. (Because of the nature of the allegations, only the defense and specially-appointed Justice Department lawyers—ones entirely walled off from the 9/11 prosecution—were to take part.)

From Carol’s piece:

Progress in the case has mostly been paralyzed since an attorney for accused 9/11 plot deputy Ramzi bin al Shibh told Pohl in April that FBI agents had compromised his team by questioning a member, and then trying to turn him into a secret informant. Other Sept. 11 defense team members alleged that their attorney-client privilege may also have been compromised by what the FBI agents were investigating, too.

A special Justice Department prosecution team has told the judge that the probe is now closed, that information was forwarded to a Department of Defense security team and, from what they’ve seen of the FBI activity, no conflict-of-interest exists.

Pohl tried to remedy it over the summer by severing Bin al Shibh from the five-man death penalty trial and planning to proceed with a four-man trial of alleged mastermind Khalid Sheik Mohammed and three other accused accomplices. The Pentagon prosecutors objected, however, and the judge reinstated the joint five-man prosecution at the last hearing in August.

Pohl’s order seeks a filing from the defense lawyers. “It was clear that there’s more information on the investigation yet to come and any litigation on this topic would be premature and unproductive,” said defense attorney Cheryl Bormann, the lawyer for alleged Sept. 11 conspirator Walid bin Attash.

I asked around a little bit and heard stuff along the same lines.  It seems some discovery issues relating to the conflict question are still being litigated; the court also apparently wants to hear more from the defense about the nature of the alleged conflict before proceeding further.

Got a pressing national security law question? Ask Wells. Got a complaint about Lawfare? Ask Wells. Need relationship or professional advice? Ask Wells. Need to know if your contemplated military action complies with the separation of powers or international law? Ask Wells. Got a question about the D.C. oughties music scene? Ask Wells. Send along good, interesting, or intelligent questions, and I’ll do my best to post answers.

The Foreign Policy Essay: The Arab World’s Foreign Fighter Problem

Sunday, October 19, 2014 at 10:00 AM

The Arab world’s foreign fighter problem makes the West’s concerns seem minor. Specific numbers should be treated with suspicion, but the current estimate is that there are roughly 15,000 foreign fighters in Iraq and Syria, of which the vast majority are from the Arab world. When these fighters return home, they may further radicalize Arab politics, reorient existing terrorist groups in a more dangerous direction, create new violent organizations, and otherwise make the Middle East’s already bleak prospects even worse.

As my Brookings colleague Jeremy Shapiro and I have argued, the terrorism threat from European and American volunteers fighting in Iraq and Syria is real but manageable. To summarize our arguments, we contend that the Syria and Iraq wars are dangerous because they are pulling in large numbers of Western volunteers who may become more skilled and indoctrinated into anti-Western ideologies. Several mitigating factors, however, lessen the danger: some of the volunteers will die; some will stay in the region as professional jihadists; some will return home disillusioned or with no interest in further violence; some will be tied to terrorist groups focused on the Arab world, not the West; and many of the remaining dangerous ones will be caught by competent security services that are focused on this problem. The foreign volunteers’ propensity to use social media to broadcast every detail of their jihadist lives makes them even more likely to be caught. Better policies, ranging from de-radicalization programs to improved prison monitoring, can further reduce the risk. The likely result is not a complete absence of terrorism, but rather fewer acts than many observers fear.

Jeremy and I may be wrong, but suspend disbelief for now and assume, as our mothers do, that we’ve nailed it. Some of these mitigating factors are present in the Arab world—jihadist volunteers will still die on Syria’s battlefields, and some will come home disillusioned—but most are lacking or are much-reduced. More to the point, these countries begin with much greater societal problems than the U.S. or Europe—problems that returning foreign fighters will likely make much worse.

Let’s begin with the numbers. Several thousand Europeans are fighting in Syria and Iraq. Western governments are fearful because this flow comprises more Western fighters than went to Iraq, Somalia, and other jihads combined. The Arab world should be so lucky. Tiny Tunisia, with about one-sixth of Britain’s population, has sent perhaps 3,000 fighters, and 1,500 have gone from neighboring Morocco. Not surprisingly, Syria’s neighbors Jordan and Lebanon and nearby states like Saudi Arabia are also in deep: over 2,000 for Jordan, around 890 for Lebanon, and roughly 2,500 for Saudi Arabia. There are also thousands of Shi’a foreign fighters, who often travel as members of groups (such as the Lebanese Hizballah), which I’ve written about for Lawfare readers already.

Although some Western jihadists have burned their passports and will never return home, that’s not good news for the region. Individuals traveling to Syria and Iraq may end up fighting in Lebanon, Jordan, or another nearby country, simply shifting the threat. Even more important, the biggest magnet for foreign fighters—the Islamic State—has an ambitious regional agenda. The group for now has not prioritized attacks on the United States or Europe, but it has done or attempted strikes in Lebanon, Saudi Arabia, and Turkey. Indeed, the group seeks to use the territory it controls in Syria and Iraq as a base and expand further into these countries and into neighboring territory. Read more »

The Week That Was: All of Lawfare in One Post

Saturday, October 18, 2014 at 9:54 AM

This Thursday, FBI Director James B. Comey gave a speech at the Brookings Institution and was interviewed by our very own Benjamin Wittes. Besides giving a shoutout to Lawfare, which Comey apparently reads “every single day,” he spoke about the need for law enforcement to adapt in the post-Snowden, phone encryption era. Cody shared a live feed of the event and copied his prepared remarks. Additionally, Ben provided audio of the speech and subsequent Q&A, which doubled as this week’s Lawfare Podcast.

Apropos of surveillance, Jack shared Susan Landau’s new paper on NSA’s efforts to secure private sector telecommunications infrastructure.

Wells linked to a UN Special Rapporteur report on mass digital surveillance and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which obligates states to respect the privacy and security of digital communications.

Ben publicized an event that was held at the Center for Democracy and Technology on the paper he and Wells recently published entitled, “Databuse and a Trusteeship Model of Consumer Protection in the Big Data Era.” He also shared a New Yorker profile of Laura Poitras and her upcoming film, and commented on the latest Intercept story about alleged NSA activities abroad, positing that its lack of traction may be due to “Snowden fatigue.” Later, he linked to the recent Jane Mayer interview of Snowden himself, and explained why Glenn Greenwald’s challenge to people who think they have nothing to hide is “asking the wrong question.”

Last Saturday, Jack asked a question that remains unanswered: what will US troops in Baghdad do if/when ISIS militants arrive at the Iraqi capital? Later, he and Matt Waxman shared their recent essay in the New Republic that maintains that Obama’s precedents “will constitute a remarkable legacy of expanded presidential power to use military force.” Jack also shared the administration’s recent explanation as to why it thinks strikes against ISIS comply with the War Powers Resolution, and discussed the never-ending “Forever War.”

Jodie provided a video of a recent speech Matthew Olsen, former director of the National Counterterrorism Center, gave at Harvard Law School. Olsen offered his perspective “on the changing nature” of the threat posed by ISIS and other emerging terrorist groups.

Bobby flagged a conference being held at the University of Texas at Austin entitled, “Intelligence Reform and Counterterrorism After a Decade: Are we Smarter and Safer?” The conference, which kicked off on Thursday, aims to “explore lessons learned from a decade’s worth of experience with ODNI and NCTC.”

Lauren Bateman provided a blow-by-blow readout of the hearing on the Department of Justice’s state secrets claim in Restis v. UANI.

Andy Wang noted that the Supreme Court asked for the views of the Solicitor General in Samantar v. Yousuf. He also summarized the arguments in the Fox-DOJ subpoena fight. That case was prompted after a reporter for Fox News, Mike Levine, broke a story about “federal prosecutors secretly filing terrorism charges against…Somali-Americans” using confidential information “leaked to him by various unidentified government officials.”

Jane flagged the government’s response to the detainees’ petition for an en banc rehearing in Hatim v. Obama.

In this week’s Foreign Policy Essay, Raphael S. Cohen, a scholar at the RAND Corporation, advised the US to dispense with attempts to win “hearts and minds” among the local population and instead focus on defeating ISIL militarily.

In the 38th episode of the Steptoe Cyberlaw Podcast, Stewart Baker spoke with Shaun Waterman, editor of POLITICO Pro Cybersecurity and an expert on cybersecurity and counterterrorism. The two discussed Edward Snowden, the right to be forgotten, and the recent Twitter lawsuit, among other topics.

Last week’s Lawfare Podcast featured a speech at Brookings by Ambassador Shivshankar Menon, former national security adviser and former foreign secretary to the government of India. Ambassador Menon’s speech, entitled, “India’s Role in the World,” touched on many topics, including the “new optimism in US-India bilateral relations” and “how leaders can capitalize on this new momentum.”

Ben urged readers to support Lawfare and be a part of improving it and thereby contributing to the national conversation about security law. He later noted that you can also support Lawfare without spending “a dime” by using AmazonSmile, a feature where Amazon donates a small percentage of objects bought there to select non-profits, i.e. Lawfare. The AmazonSmile box is on the website’s sidebar.

Ben also announced an exciting new feature to the Lawfare website: “Ask Wells.” Part Q&A, part advice column, Wells is open to any good, interesting, or intelligent questions, and will respond accordingly.

Finally, for all those fearful of drones taking over, Ben posted a video showing that Mother Nature still has some tricks up her sleeve.

And that was the week that was.

Today’s Headlines and Commentary

Friday, October 17, 2014 at 1:00 PM

According to Military Times, “Air Force drones in Turkey have received the OK to join the fight” against ISIS. While Ankara is not allowing the use of manned aircraft from Incirlik Air Base, it will allow the use of unmanned aircraft for reconnaissance. Incirlik is home to 1,500 US military members, as well as the 414th Expeditionary Reconnaissance Squadron, which flies the MQ-1B Predator.

Reuters, in conjunction with other news sites, is reporting that Saddam Hussein’s former pilots are training ISIS militants to fly fighter jets captured from the Syrian military. The report by the Syrian Observatory for Human Rights says that three flight-capable MiG-21 and MiG-23 jets are in the hands of ISIS, although it remains “unclear if they are equipped with missiles.” Fighters from the militant group have reportedly been flying them “over the captured al Jarrah military airport east of Aleppo.”

There are new heroes in Kurdistan: the PKK. The separatist group’s success in repelling ISIS is galvanizing support from Kurds throughout the region, which puts the Iraqi Kurdistan government in an “awkward position.” Al Jazeera has more.

Stephen Walt at Foreign Policy asserts that “Washington is making all its favorite mistakes in (another) Iraq war.

Amid continuing gains by ISIS forces in Iraq’s perennially-restive Anbar province, the Iraqi government has decided to impose a curfew on Friday in its capital, the imperiled western city of Ramadi. The curfew is “part of an effort to limit movement in and out of the city as government forces prepare to eliminate pockets of resistance there.” Ramadi is the linchpin of the Sunni-majority province, and is located only 70 miles west of Baghdad. Al Sharq Al Awsat has more. Read more »

Another Way to Support Lawfare

Thursday, October 16, 2014 at 9:43 PM

Yesterday, I posted an appeal for reader support—one that should make you feel all warm and fuzzy about donating to Lawfare:

Here’s another way to support Lawfare, one that won’t cost you a dime: AmazonSmile. AmazonSmile is a program under which donates to non-profits whenever Amazon designates them as recipients. If you designate us, a small percentage of the proceeds of everything you buy from Amazon goes to us. So particularly if you’re a regular Amazon customer, please designate the Lawfare Institute as your AmazonSmile beneficiary. Just click on the AmazonSmile box I have added to our sidebar.

Susan Landau on NSA Efforts to Secure Private Sector Telecommunications Infrastructure

Thursday, October 16, 2014 at 5:44 PM

Susan Landau has a new paper – entitled Under the Radar: NSA’s Efforts to Secure Private-Sector Telecommunications Infrastructure – up at the Journal of National Security Law and Policy.  From the abstract:

Landau explains the National Security Agency’s little-known function of providing communications security (COMSEC) to private companies, which has involved an improvement of security and privacy of the domestic communications infrastructure. She examines the history of the program and how the NSA’s behavior towards the private sector has shifted since the 1950’s, as well as the rationale behind these radical changes. Ultimately, Landau argues that providing national security tools to the private sector is outside the mission of the NSA and should be done by an entity more in sync with the private sector and international community.

UT-Austin Conference on ODNI and NCTC at the 1-Decade Mark: “Intelligence Reform and Counterterrorism after a Decade: Are We Smarter and Safer?”

Thursday, October 16, 2014 at 4:50 PM

Happening between now and Saturday: an important conference at the University of Texas at Austin (sponsored by UT’s Robert Strauss Center for International Security and Law, which I direct, as well as UT’s Clements Center for History, Strategy & Statecraft (directed by Will Inboden) and the Intelligence and National Security Alliance). The conference is entitled “Intelligence Reform and Counterterrorism after a Decade: Are We Smarter and Safer?” and it aims to explore lessons learned from a decade’s worth of experience with ODNI and NCTC.

The program kicks off today at 5:00 EST, with a discussion in which Will Inboden and I will interview Adm. William McRaven, former head of U.S. Special Operations Command (and now Chancellor-designate of the University of Texas System). Remarks will follow thereafter by James Clapper, the Director of National Intelligence.  There will be no shortage of high-profile sessions on Friday and Saturday, either; keynote address will be given by former National Security Advisor Steve Hadley and Reps. Mac Thornberry and Michael McCaul.

For reader convenience, we’ll re-post this notice during the conference’s keynote sessions. Throughout, though, live streaming coverage of all conference events—keynote speeches as well as panel discussions and other programming—can be found in Lawfare’s “Special Events” section (drop-down menu above; link here).


Today’s Headlines and Commentary

By and
Thursday, October 16, 2014 at 4:37 PM

The director of the FBI, James B. Comey, came to the Brookings Institution today to give a speech that was moderated by Lawfare’s own Benjamin Wittes. During his talk, Comey warned that “crimes could go unsolved if law enforcement officers cannot gain access to information that technology companies…are protecting using increasingly sophisticated encryption technology.” He also noted that “the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem.”

His remarks come on the heels of similar warnings made by the FBI to industry about a “group of highly skilled Chinese government hackers” that are “in the midst of a long-running campaign to steal valuable data from US companies and government agencies.” According to the New York Times, the threat posed by this group is just as significant, “if not more so,” than that posed by Unit 61398, which is a cyberhacking group in the People’s Liberation Army that was disclosed in February 2013.

Throughout the United States, the Ebola panic appears to be reaching a, pun intended, fever pitch. After news emerged that a second health care worker in Dallas was infected with the virus and flew on a commercial plane just before symptoms manifested, the top political echelons in the country rushed to respond. While President Obama canceled travel plans for the second day in a row to talk with his cabinet about the virus’s spread, Chairman of the Joint Chiefs of Staff General Martin Dempsey described the strain as an “incredibly serious” problem. At the New York Times, Benedict Carey is concerned about “another kind of contagion:” “full-blown hysteria.”

Yesterday, the fight against ISIS in Iraq and Syria finally received a mission name: Operation Inherent Resolve. The Associated Press reports that the name (and this is a shocker) is “intended to reflect the unwavering resolve and deep commitment of U.S. and partner nations.” (emphasis added) Perhaps more interestingly, Julian Barnes reported earlier this month that the name “Operation Inherent Resolve” had been rejected because it was “kind of bleh.” Indeed.

Read more »

Steptoe Cyberlaw Podcast, Episode #38: An Interview with Shaun Waterman

Thursday, October 16, 2014 at 4:30 PM

Our guest for the podcast is Shaun Waterman, editor of POLITICO Pro Cybersecurity. Shaun is an award-winning journalist who has worked for the BBC and United Press International; and an expert on counterterrorism and cybersecurity.

We begin as usual with the week’s NSA news. NSA has released its second privacy transparency report. We’ve invited Becky Richards, NSA’s privacy and civil liberties watchdog, on the program to talk about it, so I’m using this post to lobby her to become a guest soon: Come on in, Becky, it’s a new day at the NSA!

Laura Poitras’s new film about Snowden gets a quick review. We question the hyped claim that there’s a “second leaker” at NSA; most of the leaked information described in the film was already pretty widely known.

Two more post-Snowden pieces of litigation are also in the news. As promised, we dig deeper into the Justice Department’s botched handling of the notice that must be given to parties on the receiving end of FISA taps and section 702 of FISA. As often turns out to be the case, the Justice Department develops a limp, and all the other agencies have to put stones in their shoes: It looks as though OFAC is going to be dragged into this comedy of errors.

The second piece of litigation began as a humdrum piece of FOIA litigation (though with a bit of Glomar for spice). It has now has produced a much more interesting result: Judge Pauley, ordinarily a good friend to the government, declares that he has lost confidence in the Justice Department’s representations about the risks of releasing FISA opinions; he insists on reviewing the FIS court’s opinions himself in camera to decide what can be released.

In other national security litigation, we all know that a canary can emit a twitter, but can Twitter emit a canary? The social media giant is going to court to get approval for its “warrant canary,” claiming a first amendment right to list the orders it has not (yet) received under national security surveillance laws.  Meanwhile, on the opposite coast, the government’s authority to issue gag orders in national security letters is argued before the Ninth Circuit, which seems to find the issue at least a little troubling.

Maybe it’s a coincidence, but just as Europol is raising the possibility that the internet might be used to kill people, the FDA is trying to do something about it, issuing cybersecurity guidelines for manufacturers. We damn them with faint praise, note that our refrigerators have been trying to kill us slowly for years, and wonder when the National Highway Safety Administration will issue security guidelines for self-driving cars.

The pendulum may be swinging toward privacy in the US but it swings hard the other way in the Southern Hemisphere. First New Zealand gives Snowden a swift kick and now the Australian government is enacting surveillance reforms that increase government authority to conduct national security intercepts.

There’s a bit of good news in our update on the right to be forgotten. The European Commission has poured cold water on the European Court of Justice, hinting strongly that the court’s enthusiasm for sacrificing free expression is a bad idea. Sad to say, though, the notion seems as communicable as Ebola; even Japan is getting in the act, as a Tokyo court orders Google to take down search links at the request of an individual.

The prize for Dumbest Judicial Opinion of the Month goes (where else?) to the Ninth Circuit, which expressed shock and dismay over the idea that a Navy investigator conducted “surveillance of all the civilian computers in an entire state” in the course of looking for military personnel trading child porn. Turns out that the investigator in question simply looked at images being shared publicly online using a common file-sharing program, Gnutella. And when he had the IP address of someone sharing child porn images he checked to see if the suspect worked for the military. When that turned out not to be the case, he turned the information over to civilian law enforcement, giving the Ninth Circuit a severe case of the vapors and ultimately leading to exclusion of the evidence. Because posse comitatus. You won’t want to miss my translation from the Latin.

We unpack the controversy over Ross Ulbricht and how the FBI managed to captcha him. And we congratulate the FCC for a regulatory action near and dear to anyone who’s ever paid too much for bad Wi-Fi in a good hotel.

Finally, we remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast[at] or voicemail (+1 202 862 5785). And to prove it, I read a message from Dick Mills, a libertarian blogger who started out tagging me as the Great Satan of statism but ended by admitting that the podcast occasionally changed his mind. We can’t ask for more than that.

The Lawfare Podcast, Episode #96: James Comey on “Going Dark”

Thursday, October 16, 2014 at 2:34 PM


Photo Credit: Paul Morigi

I was delighted this morning to host FBI Director James Comey at a discussion at the Brookings Institution entitled, “Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?” The event was structured less as a speech—though Comey began by offering some brief remarks—than as a discussion with me and, particularly, the audience. The audience included a number of people—activists, technologists, and journalists, extremely well-versed in the subject of encryption. So the engagement from the floor is lively, smart, and interesting.

The Lawfare Podcast actually owes something of a debt to Comey. Sometime back, before he was FBI Director, I was thinking of canceling the podcast. At a conference, however, Comey told me that he had recently listened to a marathon session of back episodes and found them very useful. So the podcast lived, and thrived. At the event this morning, Comey opened his remarks by saying: “I’m told also that I am going to be the subject of a recorded podcast for Lawfare, which is a blog I read every single day. So that’s actually the real reason I am here and so excited.”

It’s a terrific discussion, about which I will be posting some thoughts separately in the next few days.

You can also watch the discussion here:

FBI Director Comey’s Remarks as Delivered

Thursday, October 16, 2014 at 12:31 PM

You can find the text of FBI Directory James Comey’s remarks as delivered today at Brookings here or below.

They begin:

Good morning. It’s an honor to be here.

I have been on the job as FBI Director for one year and one month. I like to express my tenure in terms of months, and I joke that I have eight years and 11 months to go, as if I’m incarcerated. But the truth is, I love this job, and I wake up every day excited to be part of the FBI.

Over the past year, I have confirmed what I long believed—that the FBI is filled with amazing people, doing an amazing array of things around the world, and doing them well. I have also confirmed what I have long known: that a commitment to the rule of law and civil liberties is at the core of the FBI. It is the organization’s spine.

But we confront serious threats—threats that are changing every day. So I want to make sure I have every lawful tool available to keep you safe from those threats.

Read more »

Happening Now: FBI Director James Comey at Brookings

Thursday, October 16, 2014 at 10:15 AM

At 10:30 am, FBI Director James Comey will be at Brookings delivering a talk entitled, Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course? 

You can watch the livesteam below and join the conversation on Twitter using #ComeyCrypto.

Here’s how Brookings is describing the event:

Issues of privacy and security are at the forefront of public debate, particularly in light of recent national security disclosures and increasingly pernicious cyber attacks that target our personal information, our ideas, our money, and our secrets. But are privacy rights trumping public safety interests?  And if so, at what cost?  Has the post-Snowden pendulum swung too far in one direction?

On Thursday, October 16, Governance Studies at Brookings will host FBI Director James Comey for a discussion of the impact of technology on the work of law enforcement. Law enforcement officials worry that the explosion in the volume and the means by which we all communicate threatens its access to the evidence it needs to investigate and prosecute crime and to prevent acts of terrorism.

In particular, officials worry that the emergence of default encryption settings and encrypted devices and networks – designed to increase security and privacy – may leave law enforcement in the dark. Director Comey will talk about the need for better cooperation between the private sector and law enforcement agencies. He will also discuss potential solutions to the challenge of “going dark,” as well as the FBI’s dedication to protecting public safety while safeguarding privacy and promoting network security and innovation.

Following these remarks, Brookings Senior Fellow Benjamin Wittes will moderate a discussion with Director Comey and audience questions.

Obama Administration Explains Why It Thinks Islamic State Strikes Comply With War Powers Resolution

Thursday, October 16, 2014 at 8:44 AM

Last week I explained that a likely major reason for the Obama administration’s switch from an Article II rationale for air strikes against the Islamic State to an AUMF rationale (2001 and 2002) was compliance with the War Power s Resolution (WPR).  Section 5(b) of the WPR requires the President to “terminate any use of United States Armed Forces” 60 days after he introduces such forces into “hostilities” unless Congress “has enacted a specific authorization for such use of United States Armed Forces.”  If the 2001 and 2002 AUMFs, properly interpreted, authorize the strikes against the Islamic State – a contested issue, of course – then the administration faces no legal issue under the WPR.

Last night Spencer Ackerman reported that this is precisely the administration’s position.  “Because the 2001 and 2002 AUMFs constitute specific authorization within the meaning of the War Powers Resolution, the War Powers Resolution’s 60-day limitation on operations does not apply here,” said Bernadette Meehan, a spokeswoman for the National Security Council.

Support Lawfare, Feel All Warm and Fuzzy, and Get Something Back!

Wednesday, October 15, 2014 at 2:00 PM

The other day, I listened to a fascinating episode of Freakonomics Radio featuring a lengthy discussion with a noted economist about what actually works in non-profit fundraising. I listened to this with, I suspect, more-than-average attention, as we have been working hard recently to raise money to grow Lawfare. The secret, according to University of Chicago economist John List, is relatively simple and boils down to the following: Don’t appeal to pure altruism, but use a pitch that makes people feel warm and fuzzy about themselves for giving; make clear that they gain transactional benefits from giving; and make sure all your requests for funds—to men, at least—are made by beautiful blonde women. No, I’m not making that last bit up. Listen to the episode if you don’t believe me:

Recruiting a cadre of young blondes to canvas for Lawfare is probably impractical, but the other two points are well taken. Lawfare is growing constantly. We have ambitious plans for new content, live events, and a revamped web site—all of which takes resources to make happen.

So here’s my warm-and-fuzzy pitch: You can be part of it. Make a donation and you’ll know that you helped develop Lawfare, that you helped improve the national conversation about security and law, and that you pushed back against the polarized left-right shouting match. You’ll know that because of you, more people got better information before making hard and fateful decisions that affect real people’s lives and liberty. You’ll know that because of you, new voices in the field are emerging, as are new forms of scholarship. You’ll feel incredibly good about yourself: warm and fuzzy. Really. I promise.

And here are some transactional benefits, benefits beyond the hand-written thank-you note from me or Wells and the tax deduction that comes from giving to a 501(c)(3) organization like the Lawfare Institute. Every dollar of any contribution you give will enter you separately in a drawing for an array of cool prizes—Lawfare swag, mugs, t-shirts, etc.—the grand prize being dinner with an available Lawfare writer of your choice. That’s right: For $100, you get a hundred different chances to win dinner with a Lawfare contributor and a hundred other chances to win the world-famous Lawfare mug.

That and the warm and fuzzy feeling.

Click here or send a check to: The Lawfare Institute, P.O. Box 33226, Washington DC 20033-3226.