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The Second Circuit Hears Oral Argument This Week in Challenge to Section 215 Surveillance

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Monday, September 1, 2014 at 4:14 PM

On Tuesday, the Second Circuit will hear oral argument in ACLU v. Clapper, one of the cases challenging the Section 215 bulk telephony metadata program. The Second Circuit is reviewing Judge Pauley’s decision upholding the program. You can read all the briefs in the case here. This will be the first federal appellate argument on the Section 215 challenges. The DC Circuit’s argument, reviewing Judge Leon’s opinion, is not scheduled until November 4.

The ACLU has drawn a favorable panel for its challenge: Judge Lynch, Judge Sack, and District Judge Broderick. Notably, Judges Lynch and Sack were (respectively) the author and one of the joiners of the Second Circuit’s surprising 2011 decision making it very easy to establish standing to challenge secret surveillance under Section 702 of FISA. The 2011 opinion was written in a way to attract Supreme Court review, and it did: The Supreme Court granted cert and reversed that decision by a vote of 5-4 along R/D lines. Given the votes of Judges Lynch and Sack in the earlier Clapper litigation, their appearance on Tuesday’s panel seems to bode well for the ACLU.

I don’t know much about the third judge on the panel, Judge Vernon Broderick, who is a recent Obama appointee to the district court. But Broderick’s resume has an interesting entry that suggests that he may be another good draw for the ACLU: At least as of last year, Broderick was a member of the National Association of Criminal Defense Lawyers, a group that (among other things) “seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual” and “continue[s] to thrive in the digital age.”

Unfortunately, the Second Circuit does not post the audio of its oral arguments. But the news accounts of the argument should be worth following closely.

UPDATE: Via Twitter, ACLU arguing counsel Alex Abdo chimes in: “One addendum to your post is that C-SPAN will likely cover the argument (although maybe not live).”

Today’s Headlines and Commentary

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Monday, September 1, 2014 at 11:27 AM

On Sunday, Russian President Vladimir Putin called for immediate talks on “the statehood” of southeastern Ukraine, a “vague and provocative turn of phrase,” notes the New York Times, that comes only days after Putin upped the rhetorical ante with an address hailing the success of “the militias of Novorossiya,” or New Russia. Reuters writes that while the Western media has interpreted the statement as Putin’s backing for the pro-Russian separatists’ demand for independence, the Kremlin has so far stopped short of express public endorsement for the rebels’ position. Hours after Putin’s statement, Ukraine stated that land-based forces attacked a border guard vessel in the Azov Seareports the Associated Press; pro-separatists have recently begun a new offensive along the coast.
Over the weekend, Senator Robert Menendez (D-NJ), chair of the Senate Foreign Relations Committee, told CNN that the U.S. should be providing Ukraine with defensive weapons to fight Russian aggression. Reuters notes that on Sunday Senator John McCain also called for the U.S. to offer Ukraine intelligence data and weapons and Representative Mike Rogers stated that the U.S. and Europe need to lend strategic help.
Iraqi government forces broke a six-week siege by the Islamic State on the Shiite town of Amirli, where at least 12,000 people were trapped for over two months and had threatened mass suicide if the city fell to IS. Al Jazeera reports that it is unclear whether the U.S. provided air support for the coalition that broke the siege, while the Wall Street Journal writes that the breakthrough was aided by three U.S. airstrikes conducted in apparent coordination with ground attacks by Shiite militias, local civilian fighters and Kurdish troops.
Germany’s Parliament has just voted to approve the delivery of machine guns, hand grenades and anti-tank missiles to Kurdish forces fighting the Islamic State, a move that the Times describes as “an indication of Germany’s growing role on the world stage.”
Charles Blow had an op-ed in the Times over the weekend criticizing the “war hawks” and “right-wing media machine” for pushing the U.S. to escalate military operations against the Islamic State and using fear tactics to turn the tide of public opinion in favor of war. A ballpark price tag for the military mission in Iraq: the U.S. has spent over $600 million since mid-June on airstrikes and humanitarian operations in the country, estimates the Washington Post, citing average figures offered last Friday by Navy Rear Adm. John Kirby, the Pentagon’s press secretary.
The U.S. is urging Israel to reverse its decision to lay claim to almost 1,000 acres in the Etzion settlement bloc near Bethlehem, reports the Guardian, in the latest of a series of Israeli settlement activities that have come under intense international criticism.
On Sunday, the Israeli military shot down a drone that flew from Syria into Israeli-controlled airspace over the Golan Heights, reports Reuters.
Violent clashes continued over the weekend in Islamabad between police and protesters demanding the resignation of Pakistani Prime Minister Nawaz Sharif. The BBC reports that police used tear gas shells and rubber bullets to disperse protesters marching toward Sharif’s residence with batons, gas masks and slingshots.
Less than a month after the U.S. evacuated its personnel from a U.S. embassy compound in Tripoli, the compound has been taken over by the Dawn of Libya, an umbrella group for Islamist militias, writes Al Jazeera America. And the Guardian reports that Libya’s head religious authority, the grand mufti Sheikh Sadik al-Ghariani, is believed to have fled the UK for Qatar after the government began examining evidence that he was helping to direct the capture of Tripoli.
Last week, one of Khalid Sheikh Mohammed’s lawyer’s, Maj. Jason Wright, resigned from the Army after denial of his request to defer completion of a required graduate course—which he regarded as being asked to abandon his client in violation of his ethical obligations as a lawyer. NPR reports that Wright has accused the U.S. government of “abhorrent leadership” on human rights and “stacking the deck” against the defense.
This morning the Times zeroes in on the physical decay of facilities at Guantanamo, a fitting backdrop to the continuing political deadlock over the future of the prison.
Only a matter of time before Hollywood gives this AP story the silver-screen treatment: in the early days of the Cold War, the U.S. government apparently recruited and trained fisherman and other private citizens across Alaska to feed wartime intelligence to the military and ward off a Russian invasion. Spoiler: there was no invasion.

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 Week That Will Be

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Monday, September 1, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, September 2nd at 4 pm: The Elliott School of International Affairs at George Washington University hosts an event entitled War of Words: The Impact of Russian State Television Propaganda on the Russian Internet. The presentation will look at the central aspects of the Kremlin’s effort to frame recent world events in WWII and Cold War terms and how Russia’s netizens have responded to those frames. Christina Cottiero, Katherine Kucharski, Eugenia Olimpieva, and Robert Orttung will speak. RSVP here.

Wednesday, September 3rd at 8 am: At the National Press Club, ComDef 2014: Sustaining the Defense Industrial Base returns to Washington to provide further insight, discussions, and networking for government, military, academic, and industry with an industrial base focus. Dozens of speakers will cover a variety of defense industry related questions throughout this full day event. Find more details here and register here.

Wednesday, September 3rd at 9 am: This year marks the 2,000th anniversary of the death of Rome’s first emperor, Caesar Augustus. On Wednesday, the American Enterprise Institute invits you to attend From Anarchy to Augustus: Lessons on Dealing with Disorder from Rome’s First Emperor, a two panel discussion on how Augustus created order from domestic civil war and political chaos and what lessons the West can draw from the history of the Roman Empire. Michael Austin, Thomas Donnelly, Jonah Goldberg, Adrian Goldsworthy, Jakub Grygiel, and Josiah Osgood will speak. More information can be found on the AEI website.

Wednesday, September 3rd at 10 am: The U.S.-Japan Research Institute will host an event at the Embassy Row Hotel on current Opportunities and Challenges in the U.S.-Japan Alliance. Abraham Denmark will moderate, while Hiroshi Nakanishi and Michael J. Green will examine steps policymakers in Tokyo and Washington can take to strengthen their relationship. Register here.

Wednesday, September 3rd at 12 pm: Georgetown University will host a conversation on the State of the Scottish Independence Referendum Campaign. Dr. Jan Eichhorm from the University of Edinburgh will describe the state of the debate and public opinion in Scotland two weeks before the public casts its vote, and what key issues may sway voters in the last few days before they take to the polls. You can find more information here.

Wednesday, September 3rd at 2 pm: The Elliott School at George Washington University will host Sigur Center Visiting Scholar Yasuyo Sakata in a discussion on the U.S.-ROK Alliance, its origin, and its potential as an Asia-Pacific alliance. More information can be found here.

Thursday, September 4th at 10 am: The U.S. Department of Defense is one of the largest organizations in the world, managing global security responsibilities with numerous international allies and partners. What does it take to fund DoD? Where does that money go? How is DoD coping in the current fiscal environment? What gaps exist between the strategy outlined in the Quadrennial Defense Review and the capabilities funded by the latest budget request?  Thursday the Center for Strategic and Budgetary Assessments will hold a live-stream of the release of CSBA’s new report, Analysis of the FY 2015 Defense Budget. Todd Harrison will present the findings and take questions. View the event here. For more information, contact Natalya Anfilofyeva at [email protected] 

Thursday, September 4th at 12 pm: Georgetown University will host a lecture with Stephan Leibfried, University of Bremen, on The European Union at the Crossroads: Completing Integration or Hastening Disintegration. More information here.

Thursday, September 4th at 2 pm: The U.S. Institute of Peace will host a discussion of a report by the National Defense Panel, Ensuring a Strong U.S. Defense for the Future. Amb. Eric Edelman and the Hon. Michele Flournoy, co-lead authors, will speak. RSVP here.

Thursday, September 4th at 3 pm: At the Carnegie Endowment for International Peace, the Brookings Institution hosts a conversation on President Erdogan: Turkey’s Election and the Future. How should the recent election results in Turkey be interpreted? Will Erdogan succeed in transforming Turkey from a parliamentary system to a presidential one? And, what does this outcome mean for Turkey’s economic performance and its foreign policy at a time when the neighborhood is sliding deeper into instability, if not chaos? Kemal Kirisci, TUSIAD senior fellow and Turkey project director, will moderate the conversation. Panelists will include Robert Wexler of the S. Daniel Abraham Center for Middle East Peace, Kadir Ustun of the SETA Foundation, and Brookings Nonresident Senior Fellow Omer Taspinar. Register here

Thursday, September 4th at 5:30 pm: The Global War on Terrorism: Is it Time to Double Down? That question will be evaluated by the McCain Institute for International Leadership at the U.S. Navy Memorial, Burke Theater. Confirmed panelists include: Fran Townsend, Former Assistant to President George W. Bush for Homeland Security & Counterterrorism; Mike Morrell, Former Acting Director, CIA; Daniel Benjamin, Former Ambassador-at-Large, U.S. State Department; and Philip Mudd, Former Deputy Director, CIA Counterterrorist Center. Juan C. Zarate, Former Deputy National Security Advisor for Combating Terrorism, will serve as the panel moderator.  RSVP here

Friday, September 5th at 10 am: The Brookings Institution will hold a conversation on the Lingering Questions on President Reagan’s Role in the Iran-Contra Scandal. In a new book, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power (University Press of Kansas, 2014), Malcolm Byrne, deputy director of the nongovernmental National Security Archive, offers a comprehensive history of the affair that makes use of previously unavailable materials and wide-ranging interviews with key players. Byrne will provide remarks on his findings, while Bruce Riedel will moderate the conversation. Please RSVP here

Friday, September 5th at 3:30 pm: The Institute of World Politics will host a program entitled Both Hands Tied Behind Their Backs: Today’s U.S. Rules of Engagement. Kenneth A. Cohen will provide a lecture, followed by comments from Jeffery Addicott, Monica Morrill, Billy Vaughn, and Ryan Zinke, Former Commander at SEAL Team VI. More information can be found here.

 

Employment Announcements (More details on the Job Board)

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

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

Interested applicants should submit a cover letter and resume to: 

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

CC: [email protected]

The Foreign Policy Essay: Why Iran Won’t Leave Afghanistan

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Sunday, August 31, 2014 at 10:00 AM

Editor’s Note: The United States plans to draw down its military forces in Afghanistan at the end of this year, and for most Americans, this move will put the conflict behind us. One country, however, will continue to play an active role: Iran. Afghanistan offers Iran’s leaders an opportunity for influence, but instability there is a threat to Iran’s security. Sumitha Kutty, a foreign affairs specialist who works on Iran and South Asia, contends that Iran’s interests in Afghanistan are lasting and that Tehran will remain deeply involved its neighbor’s politics in the years to come.

***

As the United States begins to disengage from Afghanistan, there is renewed interest in Washington to understand the extent of Iran’s involvement in the region.

Kutty photo with border 2It’s not exactly breaking  news that the Iranians are unhappy with an American military presence in Afghanistan—whether small or large, short or long term. At the same time, Iran does not want to see instability and chaos in Afghanistan. Although Pakistan has traditionally been the United States’ ally in the region, Iran has perhaps more in common with the United States in Afghanistan than Pakistan does. Like the United States, Iran wants a stable Afghanistan that will deny the Taliban sanctuary and will not threaten the region.

Since the 2001 U.S. intervention to overthrow the Taliban, there has been “reluctant recognition” in Tehran that Afghanistan can’t hold its own against insurgents without external assistance. But Tehran has no inclination to fill this security void itself. As General Joseph F. Dunford, Jr. (USMC), the top U.S. general in Afghanistan, shared earlier this year, “the answer the Iranians gave to the Afghans is, ‘we recognize your sovereign right to do what you think you must do in order to provide security for your country.’” In other words, do what you need to do, but don’t ask us for help.

Iran’s wishlist

When it comes to Afghanistan, Iran’s influence is here to stay. Nevertheless, there are no indications that Iran looks to involve itself militarily in the country after 2016.

Iran has lasting political, economic, religious, ethnic, and cultural assets in Afghanistan, given that the latter area was historically part of the Persian Empire. The two countries share a 582-mile border along a plain in western Afghanistan. About one-fifth of Afghanistan’s population is Shi’ite, and this remains the focal point of Iran’s interaction. Twenty percent of Afghans speak Dari, a dialect of Persian. The two countries have never fought a war with each other. Yet, despite these deep ties, the bilateral relationship remains fettered by issue-based rivalries over conflicting economic interests, shared river waters, and treatment of ethnic and sectarian minorities in Afghanistan.

Given these circumstances, Iran has four long-standing strategic objectives in Afghanistan. Read more »

Judge Scheindlin Dismisses Remaining ATS Claims Against Ford and IBM in Long-running Apartheid Litigation

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Saturday, August 30, 2014 at 1:44 PM

As Lawfare readers may have seen from press reports, on Thursday, SDNY Judge Shira Scheindlin dismissed the Alien Tort Statute suit against Ford Motor Company and IBM in connection with their business activities in Apartheid-era South Africa, thus ending the granddaddy of all ATS litigation and what may have been the largest, longest-running, and most expensive lawfare battle in history. Judge Scheindlin denied the plaintiffs’ motion to amend their complaint in light of the Supreme Court’s decision in Kiobel, holding that they could not show that their claims “touch and concern the territory of the United States” with sufficient force to overcome the presumption against extraterritorial application of the ATS enunciated in Kiobel. She specifically distinguished the plaintiffs’ claims from those in the Al-Shimari case, where the Fourth Circuit recently concluded that claims against the U.S. defense contractor CACI for abuse and detention at Abu Ghraib could proceed.

The Apartheid litigation involved several ATS suits, the first of which was filed in 2002, against more than fifty U.S. and non-U.S. manufacturing companies and financial institutions. Plaintiffs alleged that the defendant companies had aided and abetted the Apartheid government by doing business in South Africa. The litigation outlasted several SDNY judges and reached the Second Circuit several times. Read more »

Lawfare Podcast, Episode #89: Bone-Crushing Zombie Action

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Saturday, August 30, 2014 at 10:24 AM

robert-chesneyHere at Lawfare, we try to spot critical legal issues impacting national security before they’re really upon us . . . and eating our brains. Too often, American policymakers have not taken emerging threats seriously, only to find themselves on the wrong side of finger-pointing national commissions after tragedy strikes. Underreaction to threats prospectively often leads to overreaction after the fact. If we don’t prepare for flesh-eating ghouls before they strike, we will react dangerously when the time comes.

Fortunately, the Pentagon is thinking about how to respond to a zombie apocalypse. The CDC is too. And a fair bit of thought, particularly from the estimable Dan Drezner (the author of a book on the subject), has gone into the question of how a zombie apocalypse would affect international relations.

The legal community, however, is behind this particular curve. What would a zombie AUMF look like, and do we need one? What are the civil liberties implications of fighting zombies? Do zombies have due process rights or are they legitimately subject to summary execution? Are there legal precedents for fighting zombies?

Today, on the Lawfare Podcast, it’s Bone-Crushing Zombie Action. Shane Harris of Foreign Policy magazine hosts a discussion featuring Bobby Chesney, Jennifer Daskal and me. If ISIS hasn’t scared you enough, our late-summer horror classic will turn your blood to jelly—and eat it.

The Week That Was: All of Lawfare in One Post

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Saturday, August 30, 2014 at 9:55 AM

As the debate in Washington over how to deal with ISIS intensifies, Jack outlined how to make an authorization of force against the militant group politically palatable for both the President and Congress. His answer? Narrow it down. Ben agreed that a narrow instrument may make an authorization more feasible politically, but warned that it would sacrifice both flexibility as well as an opportunity to reform the structural issues underlying congressional approval for force against emerging threats.

If the Obama administration seeks congressional approval for airstrikes against ISIS in Syria, John considered how it would square that effort with the President’s speech last year at the National Defense University, in which he promised to refine, and ultimately repeal, the AUMF.

On Saturday, Ashley examined a range of legal theories government lawyers might employ to justify whether U.S. airstrikes against ISIS in Syria would be compatible with international law.

Ben criticized U.S. News and World Report for suggesting that the ISIS militant who killed U.S. journalist James Foley might be tried by military commission at Guantanamo Bay.

Andy Wang analyzed the cert petition filed a few weeks ago by several non-Afghan detainees at Bagram Air Force Base, Afghanistan, and how it might be impacted by the release on Monday of Yemeni nationals Fadi Al-Maqaleh and Amin Al-Bakri.

Cody tipped us off about the release of a new, albeit heavily redacted, FISC opinion. Jodie Liu provided a summary.

Jack examined a recent piece in the New York Times on President Obama’s climate change accord ambitions, finding that the story exaggerates any real power the accord might have. Still, that might be just what the administration wants for the midterm elections.

Ben noted that Guantanamo detainee Abdul Razak Ali replied to his own cert petition, and made a glaring typo along the way.

Ben also flagged the administration’s response to the GAO report concluding that the Bergdahl trade violated the law.

John asked why the Executive failed to file a Suggestion of Immunity for actions the former Indian Prime Minister undertook when he was Finance Minister in litigation in the district court in D.C. He predicted the Executive will right course when the decision is appealed to the D.C. Circuit. He also noted in another post that the Second Circuit affirmed Official Acts Immunity for two former directors of Pakistan’s ISI that were alleged to be involved in the 2008 Mumbai attacks.

Following the recent filing of a petition for rehearing en banc by the detainees in the Allaithi v. Rumsfeld case, Jane explained the two important questions that the detainees allege the panel’s decision raised as well as how they plan to argue them.

As Eastern Europe continues to convulse, Cody brought us a timely Lawfare Podcast entitled, “Russia Breaking Bad and the Future of the International Order.” Thomas Wright, fellow with the Project on International Order and Strategy (IOS) at Brookings, moderated a conversation between Brookings President Strobe Talbott, Senior Fellow Clifford Gaddy of the institution’s Center on the United States and Europe (CUSE), and Susan Glasser, editor at Politico magazine.

In this week’s Foreign Policy Essay, Eric Heginbotham, a senior political scientist at the RAND Corporation, argued that the U.S. and Japan should stop wasting time examining the legality of China’s ADIZ and instead press issues that directly influence their national security, such as persuading Beijing to avoid dangerous airborne intercepts.

And that was the week that was.

Second Circuit Affirms Official Acts Immunity for Pakistani ISI Chiefs; Rejects Jus Cogens Exception

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Friday, August 29, 2014 at 2:28 PM

In a summary order yesterday, a panel of the Second Circuit affirmed the dismissal by EDNY Judge Dora Irizarry of an Alien Tort Statute suit against two former directors of the Pakistani Inter-Services Intelligence Directorate alleged to have been complicit in the 2008 Mumbai bombing, based on a Suggestion of Immunity provided by the Executive branch. (The DoJ Statement of Interest, which condemned the bombing and obviously took no view on the merits of the claims against the former ISI chiefs, attached a letter from then-Legal Adviser Harold Koh determining that the defendants enjoyed residual immunity for acts taken in an official capacity and that “acts of defendant foreign officials who are sued for exercising the powers of their office are treated as acts taken in an official capacity.”)  The Second Circuit panel rejected the plaintiffs’ arguments that courts are not required to defer to Executive branch SoIs and that there is, or should be, a jus cogens exception to official acts immunity, holding that it was bound by the Circuit’s prior decision in Matar v. Dichter.

The panel specifically rejected the plaintiffs’ invitation that it should follow the Fourth Circuit’s 2012 decision in Samantar, which concluded that Executive branch SoIs for official acts are not controlling and there is no foreign official immunity for alleged jus cogens violations. This clarifies further that there is a circuit split on the jus cogens issue, which counsel for Samantar have argued in their cert petition, as well as on the issue of whether courts must defer to Executive branch SoIs for official acts. I have previously explained why I think the Fourth Circuit’s decision was wrong as a matter of both international and domestic law, why it should be troubling for the Executive branch, and how it creates reciprocal risks for US officials not to have their immunity recognized in foreign courts.

It is worth recalling that the Dichter case was an ATS suit filed by a group of Palestinians against the former head of Israel’s General Security Service in connection with the targeted killing of a Hamas leader in Gaza in 2002. The Second Circuit held that “in the common law context, we defer to the Executive’s determination of the scope of immunity” and that “[a] claim premised on a violation of jus cogens does not withstand foreign sovereign immunity.”  If U.S. courts were instead to decide (as the Fourth Circuit has) that foreign government officials do not have immunity for their officials acts that might constitute jus cogens violations, then U.S. defense and intelligence officials (such as Chuck Hagel or John Brennan) could be stripped of their immunity for drone strikes and other official acts in other countries.

I will end by noting my friend Bill Dodge’s recent response at Just Security to my post earlier this week about Judge Boasberg’s ruling regarding the immunity of former Indian Prime Minister Singh. While noting that Singh may well be entitled to immunity for his official acts, Bill argues that U.S. courts have “consistently and correctly held that torture and other gross violations of human rights are not official acts to which conduct-based immunity attaches under federal common law.” Although the Second Circuit has not specifically addressed the issue of whether extrajudicial killings can be official acts, clearly the Second Circuit does not believe there is a jus cogens exception to official immunity. The issue will continue to be debated amongst international lawyers and in the courts and is likely ultimately to require resolution inside the United States by the Supreme Court.

[Addendum:  I also want to use this opportunity to remind law students of this post I wrote one year ago suggesting that students consider how, if they were U.S. government lawyers (eg, for the White House, or for State, DoD, or DoJ), they would promote accountability for human rights violations by foreign government officials without encouraging frivolous lawsuits against U.S. officials.  Would you encourage a new jus cogens exception to immunity, even though international law does not currently recognize such an exception?  Would you advise the President and the Secretaries of State and Defense that they shouldn’t object if other countries do not recognize their immunities (or create new exceptions to them) because even if their immunities are lifted at the beginning of a case, at the end of the litigation the U.S. will be able to defend them successfully (even if they also have to retain private counsel)?]

Today’s Headlines and Commentary

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Friday, August 29, 2014 at 1:36 PM

If there were any doubt as to who Russian President Putin is supporting in Ukraine, there sure isn’t now: today, Putin directly applauded pro-Russian separatist rebels there. Putin attributed the offensive to the rebels—and made no mention of Russian involvement—but did address his remarks to something he called  “New Russia.” The New York Times explains that the recent militant offensive caught the Ukrainian military off-guard, and that key strategic areas, including a port-city, are under threat.

In his address, Putin called on the separatists to release Ukrainian soldiers that are currently trapped in key areas of the country. The Washington Post covers that crucial element of Putin’s remarks, which are believed to have been made in earnest.

President Obama addressed the nation yesterday, covering the situation in Ukraine and the threat posed by the Islamic State (“IS”). He said the U.S. “doesn’t have a strategy yet” for combating the terror group. President Obama explained that the Pentagon is preparing multiple options. Politico also covers the President’s comments.

Perhaps Obama need not be so reluctant to intervene in Syria. According to a recent poll by the Pew Research Center, Americans would like to see the government take a “tougher” approach to foreign policy. In a stark departure from polling taken in recent years, Americans are now more amenable to foreign intervention to address what they see as increasing threats from abroad. The Los Angeles Times covers the report.

The Globe and Mail reports that Syrian militants have captured 43 UN peacekeepers. The UN workers were seized in the Golan Heights, the northern part of Israel that borders Syria. An additional 81 peacekeepers are trapped in the region and surrounded by militants.

The United States has identified “nearly a dozen” American citizens who have traveled to Syria to fight for IS. The Times explains that American intelligence officials believe that nearly 100 Americans have gone to Syria to fight alongside rebels there—not necessarily IS—since the beginning of the Syrian conflict in 2011. Meanwhile, nearly 1,000 Europeans have done the same.

The Post reports on torture tactics that IS members employ against their captives, including waterboarding. The latter may be a direct jab at the United States, given the awful technique’s widely-criticized use by the CIA after 9/11. There have been other allusions to American military and interrogation tactics, too; IS has released videos in which captives wear orange jumpsuits like those worn by Guantanamo detainees. That story is also in the Post.

From the Times: Next week jury deliberations will commence in the long-running trial of four ex-Blackwater contractors. The Times updates us on the murder and manslaughter charges, which arise from the notorious Nisour Square shooting of 2007.

Reuters reports that the United States may intervene in a private lawsuit involving the non-profit group United Against A Nuclear Iran (“UANI”), on the basis that the suit might jeopardize national security. In short, UANI claims that businessman Victor Restis is engaged in illegal economic activity with Iran. The United States’ involvement with the case remains unconfirmed; the government has until September 12th to decide whether it wishes to invoke the state secrets privilege—and thus potentially prevent some or even all of the case from going forward.

CNN tells us that China is demanding that the U.S. cease its practice of sending military surveillance flights near Chinese territory. A spokesperson for the Chinese Defense Ministry insisted that the move would help repair the otherwise tense relations between the two countries. This news comes after yesterday’s Reuters story that a Chinese fighter plane had engaged in dangerous maneuvers near a U.S. aircraft—a charge the Chinese denied.

Amidst all this news, the Post reports that the “Twitter Nation” was so distracted by President Obama’s choice of apparel during his news conference yesterday, that it could not pay much attention to the leader’s words.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us onTwitter 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 Latest FISC Opinion: A Summary

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Friday, August 29, 2014 at 8:31 AM

On February 19, 2013, the Foreign Intelligence Surveillance Court granted an order for the production of certain tangible things, applied for by the FBI pursuant to 50 U.S.C. § 1861, and issued an opinion explaining its decision to grant the order. A key issue with the order is whether the investigation to which it relates is “not conducted solely upon the basis the activities protected by the First Amendment,” as required by statute. Judge John D. Bates concludes the investigation is not; the order thus complies with FISA.

A heavily redacted facts section reveals simply that the FBI sought an order requiring the production of certain tangible things in connection to an investigation, “to protect against international terrorism,” of a United States person. Under 50 U.S.C. § 1861, the FBI may apply to the FISC for “an order requiring the production of . . . tangible things” that are related to an investigation of a United States person, so long as the investigation’s purpose is to “protect against international terrorism or clandestine intelligence activities,” and “provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.”

Judge Bates first dispenses quickly with the issues (1) whether “the records sought are relevant to the investigation” and (2) whether “the investigation is one to protect against international terrorism,” finding that both requirements are met here. Just why, however, we don’t know: the reasoning as to these two points is entirely redacted.

He then turns to the crux of the opinion, “whether the application shows reasonable grounds to believe that the investigation . . . is not being conducted solely upon the basis of activities protected by the first amendment.” At first blush, the application seems deficient on this point. The conduct and speech attributed to the United States person under investigation here, all of which are redacted, “seem[] to fall well short of the sort of incitement to imminent violence or ‘true threat’ that would take it outside the protection of the First Amendment,” and even the government seems to have acknowledged the possibility that the speech at issue is protected.

However, the FISC reads § 1861 to “permit[] the consideration of . . . related conduct”—rather than “only the activities of the subject of the investigation”—in determining whether the investigation complies with the First Amendment (emphasis added). That is, an investigation of a United States person can be “not conducted solely on the basis of activities protected by the First Amendment” even if the United States person’s conduct and speech all seem to fall under the First Amendment. This is key to Judge Bates’s ruling. Conduct related to the United States person under investigation that is not protected by the First Amendment may serve as “reasonable grounds to believe” that the investigation is not being “conducted solely on the basis” of constitutionally protected activities. Here, Judge Bates explains, the redacted related activities do just that.

All the statutory requirements thus having been met, FISC grants the order.

Newly Declassified FISC Surveillance Order

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Thursday, August 28, 2014 at 4:20 PM

The Foreign Intelligence Surveillance Court has released a heavily redacted opinion issued on February 19, 2013. The opinion applies Section 1861 of Title 50. We will have a summary.

The Case for a Broader ISIS AUMF

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Thursday, August 28, 2014 at 3:33 PM

Like all red-blooded national security law nerds, I have been following Jack’s excellent posts over the past week on the politics and the advisability of a potential ISIS AUMF—the last of which post, which ran yesterday, offered strategies for narrowing a potential authorization to make it more politically doable. Jack writes: “One way to make an IS authorization politically palatable to both the President and Congress is to make it narrow.”

Towards this end, Jack offers several legislative strategies: (1) authorizing force only against ISIS, (2) limiting the authorization geographically, (3) making plain that ground forces are not authorized, and (4) including a sunset provision. Jack does not treat the question of whether a narrow ISIS authorization is, on the merits, a good idea, regarding narrowness as a political necessity for getting a resolution passed. On this point he is probably right, but it’s worth at least pausing over the question of what sort of AUMF in the abstract makes most sense. Putting political palatability aside for the moment, I don’t think a narrow one of the type Jack describes is ideal.

The main reason to prefer a broader instrument is flexibility and agility. ISIS arose rather suddenly. Only a few months ago, the group everyone was talking about was AQAP. And remember AQIM and Al Shabbab? The threat environment we face is very fluid—mutability, to paraphrase Shelley, being the only constant. An instrument that authorizes force in a specific location against a specific group will very likely become irrelevant quickly. This is, of course, a virtue if your main goal is to constrain executive flexibility. But constraint on the executive is only one relevant goal here. Jack and I—along with Bobby and Matt—were arguing for a more flexible and accountable AUMF long before the current debate over an ISIS authorization arose. Those arguments still stand, and while the politics may militate against consolidating the question of what to do about ISIS with the larger question of what to do about next-generation extra-AUMF threats, the better way to think about ISIS—in my view, at least—is to regard it as the most developed and threatening example of the larger problem of emergent threats that, to one degree or another, the 2001 AUMF addresses badly.

The consequences of a narrow AUMF of the type Jack describes, I fear, would be merely to defer, not to answer, the larger questions about how structurally to deal with congressional authorization for these emergent threats. The next time one crops up, the administration will either have to be back knocking at Congress’s door—hardly ideal for a Congress that, as Jack rightly notes, wants to avoid accountability by not voting—or will have to operate on the basis of inherent Article II authority, which is not desirable for a lot of reasons. That is to say, we’ll be right back where we are now.

The much better approach—whether it’s politically doable or not is a different question—is to put the whole enterprise on a statutory basis and sunset the whole thing, thus making the structure itself time-delimited but flexible within the period of authorization.

Today’s Headlines and Commentary

By and
Thursday, August 28, 2014 at 3:15 PM

Over the last 24 hours, the situation in eastern Ukraine has rapidly deteriorated. Ukrainian President Petro Poroshenko canceled a visit to Turkey after declaring that Russian soldiers are officially operating within Ukraine. Official Russian sources continue to deny reports as bearing “no relation to reality,” putting the earlier capture of 10 Russian paratroopers in Ukraine down to them getting lost and entering Ukraine accidentally. Separatist leaders have made similar pronouncements, asserting that active-duty Russian troops are operating in Ukraine, but only those who are on leave and who feel personally compelled to fight.

However, a Reuters report quotes a NATO military officer saying: “We assess well over 1,000 Russian troops are now operating inside Ukraine.”

Some Russian media sources are also beginning to challenge the official Russian narrative, using the Russian equivalents of “invasion” (vtorzhenie) and “war” (voina). Others continue to use the word for “incursion.”

The BBC first picked up on this trend a few hours ago, pointing to the change in language on the websites of liberal radio station Ekho Moskvy and popular daily Moskovskiy Komsomolets. Vedomosti asks: “Are we fighting a war?” Famous blogger Andrei Malgin is more direct, writing, “it is war.”

Reuters informs us that pro-Russian separatists have taken the city of Novoazovsk, reportedly with significant support from Russian forces. Ukrainian forces have pulled back and dug in around the vital city of Mariupol, Ukraine’s 10th-largest. Alexander Zakharchenko, a pro-Russia separatist leader, estimates 3-4,000 Russian soldiers are currently operating in Ukraine.

A Putin critic, exiled oligarch Mikhail Khodorkovsky, hours ago posted the following message on his website: “We are at war with Ukraine. For real. We are sending soldiers and technical equipment there. Ukrainians are fighting well, but retreating. The sides’ strength is, of course, unequal.”

Separatist leaders do seem emboldened. In an interview with Russian news outfit Gazeta today, separatist leader Borodai predicted that rebel forces will soon return to Slaviansk, a town which was taken by Ukrainian forces from the rebels on July 5th.

NATO is attempting to consolidate in reaction to these developments, and plans to have ambassadors from 28 NATO members and Ukraine meet on Friday to formulate a response. The UN Security Council and the EU are also scheduled to meet. The BBC has more. Leaders from several European countries have slammed Russia, with German Chancellor Angela Merkel saying she will discuss the possibility of further sanctions with Russia at an EU summit on Saturday.

NATO has already promised to send troops to new bases in Eastern Europe. Foreign Policy has details.

Reuters has live updates on the unfolding crisis.

The New York Times reports on possible reasons behind the latest hostilities, suggesting Putin is loathe to face the prospect of separatist defeat in eastern Ukraine and the resulting domestic backlash. Moscow may also be eager to open up a new corridor to Crimea, a territory it annexed earlier this year.

At the Washington Post, commentators are calling this conflict a “hybrid war,” but said onlookers should not be fooled by the Kremlin’s tactics.

The Wall Street Journal reports that Switzerland is extending new requirements on Russian banks in order to better enforce Western sanctions.

Finally, Bloomberg reveals that the FBI is currently probing whether or not Russian hackers were to blame for the theft of data from at least two U.S. banks earlier this month.

At this point, it is hard to even track the volume of news, commentary, and analysis surrounding ISIS and the possibility of expanded American and allied intervention in Iraq and Syria.

President Obama will meet with his national security team this afternoon at 4 pm to discuss the ongoing crisis in Iraq and Syria, reports the Hill. The President is considering expanded airstrikes into Syria as well as an operation to aid Turkmen currently under siege in the small town of Amirli.

Writing in the Daily Beast, Josh Rogin and Eli Lake suggest that the President is searching for a new war plan to battle ISIS on both sides of the Iraq-Syria border. Yet while Mr. Obama wants to make a decision about additional strikes by the end of this week, administration officials have said that everything from the goals, to on-the-ground intelligence, to overall strategy remain in flux. One administration official working on Syria policy perhaps surmised the situation best when he said the purpose of the meetings on Tuesday was “to convince one man, Barack Obama” that widened action was necessary to destroy ISIS.

The complexities and unknowns of such an operation remain a major theme of current debate. Foreign Policy notes that as the mission progresses, it will take shape in stages, but that target selection would likely become more difficult and the consequences more complex as they progress. Initially, they write, the U.S. would most likely hit “low-hanging fruit” such as armored vehicles and other easily identified targets. Another possibility is that U.S. forces would create a “no-drive” zone between Iraq and Syria in order to prevent ISIS from crossing the border. More critically, it remains unknown whether the Assad government would employ the Syrian air defense system against U.S. aircraft, even if they are targeting his enemy.

In Iraq, the United States continued airstrikes against ISIS forces near Irbil and the Mosul Damaccording to a release from U.S. Central Command. The strikes yesterday brought the total number of airstrikes across Iraq to 101. However, the Wall Street Journal reports that the air campaign has leveled off in recent days as President Obama considers plans for a broader mission. The lull in strikes may also be a reflection of the success of the initial campaign coupled with renewed strength of Iraqi security forces and Kurdish peshmerga fighters. U.S. officials were quoted as saying, “If they can clean the underbrush, we do not need to come in with a bulldozer.” However, for this to remain true, the Iraqi government will have to form a coalition to face the threat. In Foreign Policy, John Hudson has a profile on the man Iraqis have chosen to do just that – new Prime Minister Haider al-Abadi.

The Guardian reports that hundreds, if not thousands, of Iraqis remain on Mount Sinjar. The British outlet provides interactive satellite images from the firm ImageSat International that it claims shows a still ongoing humanitarian emergency atop the mountain.

Yesterday, the mother of American journalist Steven Sotloff issued a plea to ISIS to release her son. Steven Sotloff had been missing in Syria for over a year before ISIS militants threatened to kill him if the United States does not stop airstrikes against the group. The New York Times has more on the heart wrenching story.

While U.S. airstrikes may have halted the advance of the Islamic State in Iraq, it has done little to slow the march of its forces in Syria. The Long War Journal has a graphic collection of photographs that the Islamic State took while overrunning the Tabqa air force base earlier this week. The photographs document both the military hardware ISIS collected as well as the gruesome punishment they inflicted on the Syrian security forces they captured. In line with those photos, the New York Times reports that the United Nations has determined that beheadings, public executions, and other harsh punishments are now a “common spectacle” in parts of Syria under the rule of Islamic militants.

How to get smart about ISIS fast: The Associated Press has an excellent primer on the Islamic State militants in Syria, including a look at the scope and size of the area they control, the city of Raqqa, governing structure, and military strength. Elsewhere, Jihadology has a new post on the Islamic State’s public administration is the small city of Manbij, Syria.

William McCants, fellow with The Brookings Institution, corrects five popular myths about ISIS, while the New York Times has an incredible series of maps, photos, and video on the ongoing crisis in Iraq and Syria. In the Atlantic, Kathy Gilsinan explains the many ways to map the Islamic “State,” and how it is more accurate to describe the land ISIS controls as a “network of roads.” The New York Times also explains how an army infused with an extremist zeal has gained the combination of military skills and terrorist techniques that fueled ISIS’s remarkable success.

Has the Washington echo chamber resulted in a dramatic inflation of the threat ISIS presents? Wayne White, former Deputy Director of the State Department’s Middle East/South Asia Intelligence Office seems to think so. He argues that the United States should keep ISIS in perspective, and that there are clear “vulnerabilities to be exploited.” In the Atlantic, Conor Friedersdorf writes that we need to look “squarely at what war in Syria would mean.” He suggests that either the United States will empower Sunni extremists or the Assad government, and the tradeoff is something “Americans ought to confront with open eyes.”

The New York Times editorial board also weighs in on the pending intervention, saying “there are too many unanswered questions to make a decision now.” The Times continues: “If Mr. Obama seeks any further escalation of military action, he will have to explain how airstrikes against ISIS in Syria fit into a broader strategy, how they could be successful, what success means and how they might be done without benefiting Syria’s dictator, Bashar al-Assad, who is under attack by ISIS and other Sunni opposition forces.”

In the Wall Street Journal, Senator Rand Paul (R-KY) writes, “Our Middle Eastern policy is unhinged, flailing about to see who to act against next, with little thought to the consequences. This is not a foreign policy.”

In Lawfare, Jack outlines a politically palatable authorization to use force against ISIS. The key: make it narrow, ISIS specific, and include a sunset clause. Along the same theme, Robert Golan-Vilella has a long piece in the National Interest, entitled “A Tale of Two AUMFs.” The piece’s postscript explains why Congress should vote on any action against ISIS in Syria, and how the new crisis in Iraq and Obama’s handling of it will affect the future of war powers.

Elsewhere, Reuters reports that 43 peacekeepers from the U.N. have been detained by militants fighting the Syrian army in the Golan Heights.

Ynetnews, via Jordanian paper Al-Ghad, reports that Israeli Prime Minister Benjamin Netanyahu and Palestinian Authority President Mahmoud Abbas met secretly before the latest ceasefire deal was reached between Israel and Hamas. No further details about the topics discussed are available.

Israeli news outfit Mako divulges that the Israeli Shin Bet just arrested four Arab-Israelis suspected of working for Hezbollah. The agency accuses the four of being part of a drug smuggling ring that also brought weapons to Israel intended for use in terrorist activities. The Times of Israel has more details.

Reuters reports that Recep Tayyip Erdogan, the most powerful leader modern Turkish history, will be sworn in today as the country’s president. In a speech to supporters, he vowed to continue Turkey’s economic and geopolitical ascent, and to crush the forces of his former ally, the U.S.-based cleric Fethullah Gulen.

The BBC carried today comments from French President Francois Hollande, who urged “exceptional support” for Libya. His exhortation for outside intervention comes as the security situation in the north African country continues to collapse amidst infighting between Islamists and anti-Islamist military forces. Frederic Wehrey, David Bishop, and Ala’ Alrababa’h at the Carnegie Endowment for International Peace analyze the worsening situation as well as the attempts by Egypt and the UAE in recent days to support the anti-Islamists through targeted airstrikes.

Speaking of Egypt, the Washington Post today reports that the military government there has initiated a new investigation into whether or not ousted president Mohammed Morsi sent secret documents to Qatar via Al-Jazeera. If it progresses, this will be the fourth case underway against the former head of state.

Chinese President Xi Jinping met on Wednesday with special envoy from Vietnam Le Hong Anh in an attempt to restore the two countries’ relations following spats over the South China Sea. While some point to the meeting as a clear sign of rapprochement, others worry fundamental disagreements between the two over extraterritorial rights in the area will preclude long-lasting stability. The Wall Street Journal has more.

Similarly, the Economist has a daily chart of all the territorial disputes China currently has with its neighbors. Spoiler: there’s a lot of them.

According to Fox News, China today dismissed U.S. accusations that its fighter pilots acted recklessly in recent intercepts with U.S. aircraft near its coast, with Defense Ministry spokesman Yang Yujun calling for the United States to end such flights altogether.

The New York Times reports on the growing feeling of war along the India-Pakistan border in Kashmir where nightly skirmishes have killed two Indian and four Pakistani civilians.  The AP tells us that 2,000 residents of Kashmir stayed in shelters last night.

In Islamabad, political instability is pushing the government to the brink, writes Shuja Nawaz. Even so, the crisis caused by large protests against the Sharif government has not spread elsewhere and remains contained to the capital. Reuters notes that Pakistani politician Imran Khan now appears to be isolated in his efforts to unseat the current government, as Tahir ul-Qadri, another protest leader, announced that he would tell thousands of his demonstrators to go home. It remains unclear whether the crisis is abating and if Khan will also withdraw his protest.

It appears that the declassification of the Senate report on the CIA’s detention and interrogation methods, scheduled for August 29th, will be delayed again by a month or more. Politico writes that the decision comes at the behest of both President Obama as well as Senate Intelligence Chairwoman Dianne Feinstein. Senate Democrats have been resisting efforts by the administration to redact significant parts of the document, which is alleged to cover topics including overseas prisons and waterboarding techniques.

According to Reuters, U.S. District Judge Alvin Hellerstein of New York indicated yesterday that he may order the federal government to release thousands of photos regarding the treatment of prisoners by U.S. authorities at Abu Ghraib prison and other sites.

Laura Pitter at Foreign Policy criticizes the “list of government perversions” that have kept the  trial of five men accused of plotting 9/11 “languishing in limbo” and castigates the prosecution of terrorism cases in military commissions.

Closing arguments in a case involving four former Blackwater security guards continued on Wednesday. The case investigates the shootings at Nisur Square in 2007, where 14 Iraqi civilians were killed. The four guards are accused of shooting the people in the back as they ran away. The jury is expected to begin deliberations within a week. Al-Arabiya has more.

The Somali Current writes that the Somali Army and AMISOM have driven Al-Shabaab militants out of several towns formerly under the group’s control in the southern portion of the country.

Businessweek is reporting that in addition to Humvees and body armor, U.S. domestic police forces apparently have access to another “military-grade” technology: a sophisticated surveillance system codenamed “Stingray.” According to the report, the Department of Homeland Security provided grants allowing the police force in Tacoma, Washington to buy and secretly use the equipment, which can collect all text messages, telephone calls, and data transfers within a half-mile radius, for the past six years. In addition, more than 40 other law enforcement agencies in 17 states use similar equipment.

According to the Guardian, BT supplied a multi-million dollar high-speed fiber-optic cable to facilitate U.S. drone strikes on targets in Yemen and Somalia. In Yemen, approximately 71 people have been killed in drone strikes this year alone.

And since crises around the world appear to be in overdrive, here’s a tip for getting through your day: drink coffee before you take your nap. Seriously. The folks over at Vox explain why.

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.

Today’s Headlines and Commentary

By and
Wednesday, August 27, 2014 at 3:32 PM

Obama administration officials said that they have begun to mobilize allies towards potential American military action in Syriareports the New York Times. The Times suggests that Australia, Britain, Jordan, Qatar, Saudi Arabia, Turkey, and the United Arab Emirates may be enlisted for the campaign. Speaking on the condition of anonymity, officials said that the President stands to broaden action against ISIS and is nearing a decision to authorize strikes and humanitarian aid around the northern Iraqi town of Amerli, where 12,000 Turkmen have been under siege for more than two months. However, the Obama Administration has ruled out any coordination with President Bashar al-Assad’s government in Syria.

This follows an announcement from the Department of Defense that seven nations—Albania, Canada, Croatia, Denmark, Italy, France, and the United Kingdom—have committed to arming the Kurdish forces in northern Iraq. However, Josh Gerstein, writing in Politico, highlights the skepticism of critics who wonder whether “Obama’s foreign policy message is coherent enough to win support across the globe.”

Following an attack on Tabqa air base, Reuters reports that ISIS militants have executed Syrian army soldiers and are holding another group hostage. In total, the assault on the air base is reported to have taken the lives of 346 ISIS fighters and at least 170 members of Syrian security forces.

In troubling news, an American, Douglas McAuthur McCain, has been killed in Syria while fighting for ISISaccording to reports from the Associated Press. The New York Times notes that McCain, a 33-year-old from San Diego, is the first American to die while fighting for the militant group.

The Guardian also shares news that a 26-year-old American woman is being held hostage by ISIS. She was captured last year while working with three humanitarian groups in Syria. At this time, the terror group is demanding $6.6 million for the life of the young woman, reports ABC News.

U.S. journalist Peter Theo Curtis has been reunited with his family in Cambridge, Massachusetts. Curtis had been held hostage by the Al-Nusra Front, but was set free after the Qatari government negotiated for his release.

Brian Castner, in the Washington Posttells us that just as the United States has learned that large-scale industrial warfare will not win the wars of the Middle East, so has ISIS. The evidence? He claims it can be found in the targeted killing of Americans both on the battlefield and in front of the camera, as in the case of James Foley. The Wall Street Journal reports on other tactics ISIS employs, including heavily mining defensive positions in order to stall Kurdish and Iraqi advances. And while these tactics are directed by strong leadership, Clint Hinote explains that targeting Abu Bakr al-Baghdadi may not have its desired effect and would hardly prove decisive in the battle against ISIS.

If you only read one article today on ISIS, make it this one by Faisal Al Yafai in the National, a publication out of the United Arab Emirates. Yafai provides a fantastic review of the warped theory of war that led to the creation of the Islamic State.

Read more »

A Politically Palatable Authorization to Use Force Against IS [UPDATED]

By
Wednesday, August 27, 2014 at 2:20 PM

One senses growing pressure, within and without the White House, for the President to seek authorization from Congress for what he and his aides say will be a long battle against the Islamic State (IS).  Last week I outlined the political concerns in Congress and the White House, and earlier this week I argued that the President should seek congressional authorization despite these political concerns.  One way to make an IS authorization politically palatable to both the President and Congress is to make it narrow.  Politically palatable narrowness could be accomplished in four easy steps:

Authorize force only against ISIS.  One criticism of the 2001 AUMF is that it identifies the enemy too broadly, allowing all manner of entities to come under its force authorization.  Identifying IS specifically will attenuate this concern.  And if Congress (or the President) worries about the authorization being extended by interpretation to associates of IS (as two administrations have now done with the 2001 AUMF), Congress can specify that associated forces are not included within the IS force authorization.  If associates of ISIS present a dangerous threat, the President can always rely on Article II.      

Authorize force only in Iraq and, if the President deems necessary, in Syria.  One objection to the 2001 AUMF is that it lacks geographical limitation.  To address this, Congress can simply limit the geographic scope of its authorization, perhaps to Iraq and Syria.  If dangerous and threatening ISIS members show up in other countries, the President can still rely on Article II.

Make plain that the authorization doesn’t include the introduction of U.S. ground troops in either country.  The President keeps mentioning this, and so it should not be a problem to put this limit in the authorization itself.  And again, the President always has Article II as a basis to introduce Special Operations Forces, CIA operatives, and even ground troops in a true emergency.  (Or Congress could go further and affirmatively ban the introduction of traditional ground troops, perhaps with an exception for emergency situations to protect U.S. lives.)

Place a time limit – a sunset clause – on the authorization.  The 2001 AUMF has been criticized for being too old to authorize current operations against al Qaeda and affiliates.  The 2001 Congress addressed a far different threat from the one AQ and its friends pose today.  This problem too can be fixed in an AUMF for IS.  Simply make the authorization good for a year, or two, or, perhaps three years, so that Congress is not forced again to address the issue during Obama’s tenure.  But put some time limit on the authorization so that the President must return to Congress within a few years to revisit the nature of the threat and appropriateness of the authorization.

Three quick notes about an IS AUMF of the type outlined above.

First, every one of these limitations has a precedent, and most of them have several precedents.  (For quick summary, see pages 2072-2078 of this article by Curtis Bradley and me.)

Second, the ISIS AUMF will need to make clear that the limits above are limits on what Congress authorizes, and not limits on presidential power outside the authorization.  (I assume here that, with the possible exception of introducing traditional ground troops, neither Congress nor the President would want to forbid the President from acting outside the authorization, when necessity requires, pursuant to his Article II powers.)  This can be accomplished in many ways, including by a preambular statement that makes plain that, except where specified, the authorization does not affect the President’s independent powers of self-defense under Article II.  (Other AUMFs, and not just the 2001 one, contain such language.)

Third, a narrow AUMF of the type described should give cover to members of Congress who don’t cherish an AUMF vote, for they can emphasize how narrow and limited the authorization is, especially by comparison with the 2001 one.  The narrow AUMF also helps the President.  It gives his actions against IS enormous domestic legitimacy, as I explained earlier this week.  And it also helps him reconcile his current actions with past statements.  With only a little stretching and a tad of revisionist history, the President could claim that an IS AUMF is consistent with his 2013 NDU speech because it narrows presidential power.  An IS AUMF of the type described above technically would not narrow presidential power, of course.  It would expand it, because it would add to the President’s Article II power and his power under the 2001 AUMF.  But the President could, and surely would, fudge the issue, emphasizing how much more narrow and limited and sober and prudent “his AUMF” is, compared to the 2001 one he inherited.

UPDATE: One challenge to an AUMF against IS in Syria is that, as many have noted, degrading IS in Syria helps, or might help, Bashar al-Assad, contrary to U.S. policy in Syria.  There are precedents for dealing with and fudging such policy conflicts in AUMFs.  Basically, Congress simply conditions the use of force on findings by the President that the use of force serves or is consistent with some policy goal.  For example, the 2002 Iraq AUMF conditioned force on a determination by the President that diplomatic initiatives alone would not meet the threat or result in enforcement of U.N. Security Council resolutions.  Similarly, an IS AUMF could condition the use of force in Syria on a finding that the use of force would serve U.S. policy goals in Syria, however defined (enhancing the position of moderate rebels, degrading Assad’s position along some dimension, etc.)

Behind the NYT Climate Accord Story

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Wednesday, August 27, 2014 at 10:50 AM

I am no expert at all on climate change.  With that large caveat, I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline (paper copy, not digital edition), which says: “Nations Would Commit to Curb Pollution, in Nonbinding Deal.” A nonbinding deal can do many things, but it is not much of a commitment. Davenport then opens her story with this sentence: “The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress” (my emphasis). But Davenport goes on to say that nations will not in fact be compelled—at least not legally—to cut fossil fuel emissions. “President Obama’s climate negotiators are devising what they call a ‘politically binding’ deal that would ‘name and shame’ countries into cutting their emissions.” “Politically binding” is another way of saying “not legally binding.” i.e., it is a handshake.  Handshakes can matter in international politics, and “naming and shaming” based on political agreements can sometimes work (the Helsinki accords are a famous example).  But we don’t typically think of this form of international political pressure as “compulsion.”

But that is only the first layer of complexity in Davenport’s story.  She also writes:

American negotiators are . . . homing in on a hybrid agreement—a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

The 1992 treaty is the United Nations Framework Convention on Climate Change, which the United States has ratified.  The President knows he cannot get the 2/3 of the Senate to consent to update this treaty or to consent to a new emissions-reduction treaty.  And the President wants to do as much as he can on his own authority to forge global emissions reduction.  So the President appears set to enter into an Executive agreement that would update the treaty in ways that (might) pressure other nations to reduce their emissions and that might be the basis for further unilateral presidential actions to reduce emissions.  The President has some power, of a very uncertain nature and scope, to enter in to legally binding executive agreements pursuant to treaties (i.e. a new legally binding international agreement joined via the President’s delegated power from the original treaty). Whether the new agreement the President has in mind would be legally binding in some of its aspects is entirely unclear—the story largely implies not, but the devil would be in the details.

One reason that I think the President might have more than a mere political commitment in mind is this:

Countries would be legally required to enact domestic climate change policies—but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

I seriously doubt that the President can lawfully (under the U.S. Constitution) commit the United States to international legal obligations of this sort and degree, beyond what is in the 1992 treaty. But much more importantly, even if what the President signs is somehow “legally binding” under international and even domestic law, that obligation wouldn’t force Congress to “enact domestic climate change policies” or to “channel money to poor countries to help them adapt to climate change.”  Nor, I think, would the President’s name on such an accord assist in shaming Congress into action. I doubt that future Congresses will be much swayed by “name and shame” pressure based on a legally controversial accord signed by a lame-duck President on a topic with strong domestic political salience.  Certainly the past does not suggest a happy future for shaming Congress in this way.  (I am definitely not saying that no future Congress will ever support global emissions reduction. Domestic politics can change, and can be influenced by international events.  I just think, to repeat, that a legally and politically controversial agreement entered in to by a lame duck president will not be the basis for the domestic change. It is conceivable, of course, that the Obama initiative will change the global politics of emissions reduction in a way that sparks domestic change; but again, that strategy has not worked in the past and is very speculative.)

The Obama administration understands all this. As do the other nations with which it is negotiating. Its main aims here thus seem to be twofold: (1) Do as much as possible to seem to commit the United States to reduce emissions, with the aim of forcing or encouraging other nations to assume obligations to reduce emissions, and (2) make clear to domestic political audiences and future legacy-makers that the President is taking a bold and controversial step to reduce global emissions. I am not sure whether the administration will succeed on the first aim, but on the second one it will likely succeed—because of the Republicans’ reaction. For even though the President’s international efforts will have no domestic legal effect, the Republicans, especially in the Senate, and especially ones in close elections in states harmed economically by emissions-reduction commitments (i.e. Senator McConnell), are likely to make the President’s initiative seem like a very big deal. That in turn could have an impact on the degree to which the bases in both political parties turn out to vote in November. In short, the biggest domestic impact of the President’s international emissions reduction initiative is likely to be in the mid-term elections.

A Cert Petition in Maqaleh [UPDATED]

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Wednesday, August 27, 2014 at 9:45 AM

A couple of weeks ago, several non-Afghan detainees at Bagram Air Force Base, Afghanistan filed a cert petition with the Supreme Court after the D.C. Circuit affirmed the district court’s ruling that it lacked subject matter jurisdiction to review the prisoners’ habeas actions. The prisoners, citizens of states not at war with the United States—such as Yemen or Thailand—have been at Bagram for over a decade after they were brought there from abroad.

The more than-50-page petition opens with two questions:

  1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366 Stat. 2600 (2006), violates the Suspension Clause in its application to citizens of countries other than the United States or Afghanistan whom the Executive captured outside of either country, far from any recognized battlefield, and has imprisoned for more than a decade without charge or reliable process under its exclusive custody and control at Bagram Air Base in Afghanistan.
  2. Whether the court below erred in relying on Johnson v. Eisentrager, 229 U.S. 763 (1950), to dismiss Petitioners’ habeas corpus actions, without according proper deference to this Court’s subsequent holding in Boumediene v. Bush, 553 U.S. 723 (2008).

Relying heavily on Boumediene v. Bush, 553 U.S. 738 (2008), which held that foreign nationals imprisoned by the Executive at the U.S. Naval Station at Guantanamo Bay could petition courts for habeas review, the petition opens by noting the matter is of “urgent and national importance” and imploring the Court to grant review. The petition then proceeds to advance six separable and independent arguments as to why the Court should grant review.

First, that the D.C. Circuit misapplied Boumediene’s multi-factor test by giving controlling weight to the government’s claim of practical difficulties to giving habeas review when the factors are not independently dispositive or of fixed weight. Second, that the D.C. Circuit misinterpreted the “practical difficulties” factor in Boumediene’s multi-factor test by looking at outdated and inapposite language from Eisentrager. Third, that the D.C. Circuit further misapplied the practical difficulties factor by failing to consider that the government’s actions caused all of the potential difficulties. Fourth, that the D.C. Circuit failed to give sufficient credit to the general inadequacy of process given to the Bagram prisoners as compared to the Guantanamo prisoners in Boumediene. Fifth, that the D.C. Circuit inappropriately viewed citizenship in a binary framework of either U.S. citizens or foreign nationals when those of foreign citizenship should be further distinguished between citizens of enemy states and citizens of non-enemy states. And finally, that the D.C. Circuit inappropriately concluded that giving the prisoners an avenue to pursue their habeas claims would lead to a slippery slope resulting in jurisdiction for all Bagram prisoners, because Bagram contains jurisdictionally distinct and separable categories of prisoners.

The petition concludes by, again, noting that the prisoners have had no access to any judicial review and asking the Court to take up the issue.

UPDATE: Both the Washington Post and Politico are reporting that Fadi Al-Maqaleh was released on Monday, ending what was a decade long detention at Bagram Air Base. Al-Maqaleh, along with his fellow Yemenite Amin al-Bakri—who is apparently sick with leukemia—was repatriated on Tuesday. It is unclear what bearing, if any, the release would have on the other Bagram detainees named on the cert. petition, and thus whether it raises any mootness issue for the cert. petition.

Today’s Headlines and Commentary

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Tuesday, August 26, 2014 at 2:42 PM

ISIS continues to dominate headlines today as debate sharpens around expanded U.S. intervention in the crisis.

The New York Times reports that President Obama has authorized surveillance flights over Syria, a move that could be a precursor for airstrikes in the country. The Defense Department said the military would conduct the flights using a combination of drones and U2 spy planes. In an attempt to avoid inadvertently assisting the Assad regime, the Pentagon is preparing options that would strike ISIS along the Syria-Iraq border, instead of more deeply inside of Syria itself. The Wall Street Journal has more.

According to the Associated Press, Syrian Foreign Minister Walid al-Moallem told reporters that Syria is ready “to cooperate and coordinate,” but suggested that “any strike which is not coordinated with the government will be considered as aggression.”  The statement is a sign that the Assad government is eager to capitalize on how much the international, and specifically American posture, has changed over the last year. However, the White House made clear that it has no plans to notify or collaborate with Assad.

The folks at the Washington Post have compiled a list of everything that the United States has already hit with airstrikes in Iraq. Yet ABC News  is quoting an unnamed U.S. Special Ops source saying, “these guys aren’t bugging out, they’re tactically withdrawing. [They’re] very professional, well trained, motivated and equipped.” The New York Post cites footage from a new propaganda video released by the group that shows ISIS fighters even used a drone to help plan their recent capture of a key Syrian air base. That level of sophistication is backed by “an ability to self-finance on a staggering scale” says Indira Lakshmanan of Bloomberg, who reports that ISIS now resembles the Taliban, but with oil fields that raise more than $2 million a day, instead of opium poppy.

The Times of London is reporting that British intelligence officials in MI5 and MI6 have identified the British fighter suspected of murdering American journalist James Foley. While sources did not confirm the identity, the Times notes that a key suspect is Abdel-Majed Abdel Bary, who left London and recently tweeted a picture of himself holding a severed head. USA Today notes that American officials have yet to confirm the killer’s identity. Foreign Policy has a profile of Bary, in which Elias Groll examines the angry music of the former west London-based rapper.

In a shed of good news, Jane told us yesterday that Syrian rebels had released Peter Theo Curtis, an American journalist who had been held hostage for almost two years. Today, the Washington Post has more information on how Qatar helped broker the release of Curtis, while Reuters reports that the country is currently working to help free four other Americans who are held hostage in Syria by various rebel and militant groups.

Read more »

U.S. News Gets it Wrong on Guantanamo and Foley’s Killer

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Tuesday, August 26, 2014 at 11:27 AM

If terrorist capture comes, can a debate over Guantanamo vs. federal court be far behind?

Apparently not. This time, the debate is coming even before the terrorist’s capture—or even his positive identification. And U.S. News and World Report, at least, is getting the answer wrong.

The magazine reports that “Legal experts say it’s possible the jihadist who beheaded American journalist James Foley will be brought to Guantánamo Bay and tried by the U.S. military.”

Um, no, actually. It isn’t possible—at least not without a major change in policy.

The story quotes two such legal experts:

Mike Newton, a professor of the practice of law at Vanderbilt Law School, says Guantánamo may be an appealing option if the culprit is captured from the Islamic State’s realm in eastern Syria and northwestern Iraq.

“The debate you’re going to have is whether you put him on trial in normal federal court or whether you take him to the military commissions at Guantánamo,” Newton tells U.S. News. “Part of the answer will be the sourcing of the evidence – if you’ve got evidence that you can get through the federal rules of evidence, great, [but] the rules of evidence at Guantánamo are different.”

A primary difference, he says, is “in layman terms, you can admit hearsay” in the military proceedings.

. . .

Erwin Chemerinsky, dean of the University of California at Irvine School of Law and a defense attorney for a Guantánamo inmate, agrees that the U.S. base in Cuba is a possible destination for the suspect.

“Assuming the government could apprehend the killer, I, too, could imagine the government placing the individual in Guantánamo and if tried, it would be before a military tribunal,” he says. “Obviously, the authority for this would be challenged, but I easily could imagine that would be the government’s choice.”

What neither expert mentions is that the Obama administration has a clearly-stated policy against bringing new detainees to Guantanamo—something it has never done. What’s more, Congress’s efforts to restrict transfers from Guantanamo have made bringing anyone new to the base a perilous enterprise, since doing so effectively guts executive flexibility in the subsequent disposition of the detainee’s case. So whatever happens with Foley’s killer—assuming we identify him and assuming also that we capture him—one thing that will not happen is that he will ever set foot in Guantanamo Bay.

I would also bet my left hand that he will not face trial by military commission. The Obama administration has not sought to use military commissions for a single non-legacy case. In each case of a new capture, detainees have found their way into the custody of civilian law enforcement and prosecution in U.S. federal courts. Why? Both because the administration is keen to return to peacetime authorities to the extent that it can and because the performance of the federal courts has been faster and more confidence-inducing than has the performance of the military commissions. I would not be surprised to see a non-legacy case eventually show up in a military commission (somewhere other than Guantanamo), but it won’t be a case like this one—which does not involve Al Qaeda or the Taliban or a clearly-AUMF covered group—and involves the relatively simple murder of an American citizen that can be tried in federal court.

Detainees File Petition for Rehearing En Banc in Allaithi v. Rumsfeld

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Tuesday, August 26, 2014 at 8:58 AM

Yesterday, plaintiff-appellants in Allaithi v. Rumsfeld filed their petition for a rehearing en banc, two months after the D.C. Circuit affirmed the district court’s ruling that six detainees subjected to prolonged detention and alleged mistreatment at Guantanamo did not sufficiently allege that the officials who authorized and supervised their detention acted outside the scope of their employment.

The 21-page filing opens by stating that the decision rendered by the three-judge panel (Judges Janice Rogers Brown, David Tatel and Senior Judge A. Raymond Randolph) in June raises two questions of exceptional importance:

1. Whether Plaintiffs, who were held in detention facilities at Guantanamo Bay, which the Supreme Court has previously characterized as a possession or territory of the United States, are “persons” who may avail themselves of the protections of the Religious Freedom Restoration Act (“RFRA”);

2. Whether Plaintiffs have stated a plausible claim that the prolonged detention and abuse of individuals who had been expressly determined by Combatant Status Review Tribunals not to be enemy combatants falls outside the scope of employment of Defendants and individual guards.

The crux of the detainees’ argument on the first question? The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).  Specifically, the detainees contend that Hobby Lobby establishes that they are “persons” under the Religious Freedom and Restoration Act (RFRA), and as such, are entitled to freedom from substantial burdens on their religious practices; Rasul I is no longer good law insofar as it limits RFRA’s protection to persons who have successfully brought a free-exercise claim under the Constitution.

The second question raises what has been the detainees’ central argument in proceedings below: the detainees contend that the panel wrongly relied on Rasul I to find that the abuse and prolonged detention of non-enemy combatants was within the defendants’ scope of employment, as Rasul I applies only to known and suspected enemy combatants. Moreover, the petition argues, the panel misapplied the relevant scope-of-employment test and the motion-to-dismiss standard by making inferences in favor of the government that were unwarranted at the motion-to-dismiss stage.

For background on the decision below, see our summary of the D.C. Circuit’s June 10, 2014 ruling against the appellants.