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Today’s Headlines and Commentary

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Wednesday, August 20, 2014 at 2:31 PM

“No just God would stand for what they did yesterday and what they do every single day,” President Obama said earlier this afternoon, in reaction to the appalling video of the beheading of American journalist James Foley by an Islamic State militant.  Obama stressed that the United States would not change course in Iraq, stating, “We will be vigilant and we will be relentless.”

U.S. intelligence officials have confirmed the video to be authenticaccording to multiple media sources, including the Wall Street Journal. Mr. Foley was captured by militants while on assignment in Syria in 2012.

In the video, a militant speaking in British-accented English warns that the life of another American prisoner, identified as Steven Sotloff, depends on President Obama’s “next decision.”  Footage begins with a two-minute segment of President Obama’s announcement of air strikes in Iraq on August 7th, 2014; the film thus essential deems Foley’s execution to be retaliation for American strikes targeting the Islamic State. The Guardian notes that Scotland Yard is working to identify the British militant in the video.

According to the Washington Post, senior White House and counterterrorism officials met early today to discuss the U.S. response. When asked about the possible suspension of strikes, one official who spoke off-record, suggested that the “only question is if we do more.”

The Post has more on the video and the U.S. government response, while CNN sheds light on the life of James Foley and his work in war-torn areas.

Meanwhile, the Wall Street Journal reports that the U.S. military’s recent successes against the Islamic State may create momentum for a broader campaign against the militant group. While Pentagon spokesman Rear Adm. John Kirby denied reports that U.S. troops were on the ground near Mosul Dam this weekend, as Kurdish and Iraqi troops retook the dam, military planners are now considering a series of air strikes that would prevent militants from seizing another strategic site, Anbar province’s Haditha Dam.

There are now more than 1,000 U.S. troops in Iraq, and U.S. aircraft have conducted at least 70 airstrikes, according to the Army Times. Writing in Foreign Policy, Gordon Lubold and Kate Brannan explain that as the operation expands, it is becoming harder for missions to fit under President Obama’s initial rationale for renewed operations in Iraq. But neither Congress nor the President apparently desire a congressional vote to authorize force, says the New York Times. Here at Lawfare, Jack summarizes the politics of war powers with regard to Iraq: Congress seeks the greatest possible flexibility to criticize the Iraq operation; an up or down vote would get in the way there, by requiring legislators more explicitly to express approval or disapproval. 

The Times notes how U.S. intervention is changing the conflict. After the battle for Mosul Dam, the scene was riddled with evidence of American air power and destruction:“[B]uildings reduced to rubble; cars churned into twisted metal; mammoth craters gouged from the road.” The Post suggests that the U.S. intervention “appeared to have energized Iraqi forces further south,” but reports that the Iraqi army’s attempt to retake Tikrit yesterday stalled as Iraqi forces faced stiff resistance and heavy fire from Islamic militants.

The Times also has a story on Iraq’s next leader, Haider al-Abadi. Iraqis hope that his education, urban upbringing, and decades of living in Britain will mean better results. Already, Reuters reports that Kurdish ministers who had quit the outgoing government of Prime Minister Nouri-al-Malaki have rejoined the administration.

The United Nations announced on Tuesday that it is preparing a large relief effort aimed at bringing supplies to the more than 500,000 refugees and displaced persons in northern Iraq. According to the Wall Street Journal, a four-day airlift campaign, as well as 10-day sea and land shipments from Dubai via Iran, will begin today. The shipments will include 3,300 tents, 20,000 plastic sheets, 18,500 kitchen sets and 16,500 fuel cans.

Time tells us that the fighting in Iraq is causing weapons prices to skyrocket as people arm themselves to fight ISIS. Buried in the story is this concerning detail: a 34-year-old driver brandishes his brand new M-16, stamped, “Property of the U.S. GOVT,” which he bought for $3,000. According to Time, acquisition of the weapon raises questions about the fate of foreign arms provided to fight ISIS.

Army Gen. Gordon R. Sullivan (ret.) and Lt. Gen. James M. Dubik (ret.) share their thoughts on what they call the “no boots on the ground” mantra.

The most recent ceasefire between Israel and Hamas came to an end yesterday. According to the AP, Israeli negotiators in Cairo left the peace table after Gaza militants fired rockets on Israel. Since then, Israeli Defense Forces have been conducting airstrikes on Gaza. The Times reports that the strikes have killed the wife and child of Hamas military commander Mohammed Deif.

Reuters shares an exclusive, first-hand account of the underground tunnels that still exist beneath the Gaza Strip, despite efforts by the Israeli Defense Forces to destroy the entire tunnel network.

The Post reports of growing worries about possible violence, as the deadline to inaugurate a new Afghan president nears. Indeed, Afghan security forces fought some 700 Taliban insurgents yesterday in Logar province, just south of Kabul. Reuters shares the news. Still, President Obama intends to stick to his withdrawal timeline, according to the Times. As the fated hour looms, Agence France-Presse examines U.S. training of Afghan troops.

The Times shares news that Matthew Rosenberg, one of its foreign correspondents, is being interrogated by the Afghan government over a recent article he wrote for the newspaper regarding Afghanistan’s current political impasse. The AP also informs us that Rosenberg is not free to leave the country.

From Reuters: the Austrian government has detained nine people with alleged plans to join rebels in Syria.

The Wall Street Journal Editorial Board examines difficulties associated with ensuring Syrian chemical weapons disarmament.

At the U.S. Embassy in Jordan, a shooting accident has left two local guards wounded. The AP has details.

Al Jazeera reports that rockets fired by Libyan rebels on a wealthy neighborhood in Tripoli have killed three people.

The Times analyzes current relations between India and Pakistan, following Indian Prime Minister Narendra Modi’s cancellation of foreign-minister level meetings between the two countries.

Russian President Vladimir Putin and Ukrainian President Petro Poroshenko are scheduled to meet in Minsk, Belarus next week. The Wall Street Journal examines the statements that have been issued so far about the upcoming talks.

Meanwhile, Ukrainian troops continue to push back the rebels, reports the AP. As the pro-Russian separatists increasingly seem to be fighting a losing battle, the command structure among them has changed dramatically. The Times shares details.

Yesterday, Russian Defense Minister Sergei Shoigu announced plans to strengthen the Russian navy over the next six years. According to Agence France-Presse, this statement is a “response to NATO’s vow to halt the Kremlin’s push into Ukraine.” However, German Chancellor Angela Merkel declared yesterday that NATO will not be stationing combat troops in eastern Europe. Bloomberg News has the story.

Strobe Talbott, president of the Brookings Institution, details President Putin’s background and explains why his history explains his current aggression.

The Guardian reports that activists in Moscow painted the Soviet star atop “Stalin’s Tower” the blue and yellow colors of Ukraine and then affixed the Ukrainian flag to it.

On Monday, Jane shared news that German intelligence officers had tapped the phones of current U.S. Secretary of State John Kerry and then Secretary of State Hillary Clinton. In an op-ed for the Wall Street Journal, Josef Joffe examines the irony of the situation, given Berlin’s righteous indignation over reports that the U.S. had bugged German Chancellor Angela Merkel’s phone.

According to the AP, the Justice Department has announced that within the next six months, it will change the process by which someone is added to the “no-fly” list. This news follows a recent ruling in Latif v. Holder, in which the U.S. District Court for the District of Oregon held the current system unconstitutional. Matt Danzer summarized the opinion for Lawfare.

In Ferguson, Missouri, protests over a police officer’s shooting of Michael Brown may have reached a turning point.  Or at least that is how an officer with the Missouri State Highway Patrol characterized things, per this Post report.

Wired highlights a study conducted by researchers of the University of California at San Diego, the University of Michigan, and Johns Hopkins University on the Transportation Security Administration (TSA)’s X-ray body scanners. They found that weapons and explosives can easily be concealed in order to make it through the scanners.

MIT Technology Review describes the results of a University of Michigan study, which analyzed the security of local, networked traffic lights. According to the findings, “unencrypted wireless connections, the use of default usernames and passwords that could be found online, and a debugging port that is easy to attack” contribute to American infrastructure vulnerabilities.

BBC News reports that hackers, exploiting the “Heartbleed” vulnerability, have stolen the personal information of 4.5 million patients of the U.S.’s Community Health Systems.

Wired shares a series of proposals from Internet experts and stakeholders on “how to save the net.”

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.

Another Clue on Anwar Al-Aulaqi

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Wednesday, August 20, 2014 at 2:23 PM

A few weeks ago, I wrote a pair of posts analyzing where the notion of imminence comes from in the government’s thinking about targeted killing—and in David Barron’s OLC memo on the Al-Aulaqi strike. In one, I wrote:

I am speculating, and I could well be wrong. But I think the source of law for imminence in Holder’s speech, in the white paper, and in this memo is a presidential covert action finding. That is, I think the president, in issuing whatever finding gave rise to the killing of Al-Aulaqi, limited the authorization to situations involving imminent threats. This invocation was prudential, not legally required by any other source of law, but it operates as law for the executive branch.

. . .

I think the imminence requirement in the targeted killing program—in the administration’s view, at least—is not legally required but purely a prudential policy requirement even with respect to U.S. citizens

In the second, I noted that “there’s another dog that doesn’t bark in David Barron’s memo: The assassination ban in Executive Order 12333, which does not seem to be discussed at all in the unredacted parts of the memo.” I speculated that “the assassination ban offers a key—-perhaps the key—to understanding the role of imminence in the administration’s legal views. That is, if my theory about whence imminence comes is correct, the assassination ban explains why the finding limits targeted killings to situations of continuing and imminent threat.” In a nutshell:

when the CIA and the Bush administration in the immediate wake of 9/11 confronted the problem of how to construct a finding that would not run afoul of the assassination ban, the answer was . . . sitting there in their laps: if they simply wrote the finding so as to limit the lethal force authorization to situations of imminent threat, then by definition they would not be authorizing assassinations (at least under the executive branch’s view of the assassination ban’s scope).

This is, I believe, what they did: The findings, I suspect, authorized lethal force only in situations of continuing and imminent threat so as to avoid conflict with the assassination ban.

Last week, the executive branch released a second Barron memo (which Wells posted), which dates from several months earlier than the previously-released one. It’s almost entirely redacted and is thus of relatively limited use. Yet the memo contains some interesting suggestions that my earlier speculation is correct.

On the first page of the memo, David Barron writes: “Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believe that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any applicable constitutional limitations due to Aulaqi’s United States citizenship.” Later in the memo, on page 4, Barron writes a passage that is redacted except the words “consistent with the assassination ban in Executive Order 12333 . . . killings in self-defense are not assassinations. . . .”

I do not hold this out as conclusive proof of my theory, but it’s suggestive.

The Politics of War Powers in Iraq

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Wednesday, August 20, 2014 at 7:39 AM

The WSJ reports that the initial success of American airstrikes in Iraq is spurring a push for broader military engagement against the Islamic State (IS, or ISIS, or ISIL) in Iraq.  Our deepening military involvement in Iraq accentuates the dysfunctional politics of war powers that Julie Hirschfeld Davis writes about in the NYT.  President Obama has reinstituted the use of force in Iraq without congressional authorization based on his inherent Article II powers.  Whatever one thinks of the legality of unilateral force in Iraq right now – as the mission expands away from protecting “U.S. personnel and facilities,” it becomes harder to justify legally – there is a powerful prudential case for congressional participation in the decision to use force.  “A country faces few decisions as grave as using military force, even when that force is limited,” and “the people’s representatives must be invested in what America does abroad.”  Those are but a few of the President’s words on the need for congressional authorization in his speech last August on Syria.

But although the principles of the Syria speech apply with even greater force to Iraq, the President is not seeking congressional authorization for Iraq.  Davis offers two plausible explanations why: (1) “most lawmakers have little appetite for” a vote on Iraq, and (2) President Obama “spent considerable political capital last year on a lobbying campaign to persuade lawmakers in both parties to back military action in Syria” – a campaign that “yielded paltry support” and that the President does not want to repeat this year.

Congress doesn’t want to vote on the issue because it doesn’t want any responsibility for the mission.  Davis quotes the President last summer addressing Senate Democrats:

“Guys, you can’t have it both ways here,” Mr. Obama told the group, according to Senator Tim Kaine of Virginia. “You can’t be ducking and dodging and hiding under the table when it comes time to vote, and then complain about the president not coming to you”

One hopes that Davis is right in saying that President made this statement in humor, for Congress can have it both ways.  It can complain about unilateralism and then try to dodge a vote.  And more importantly, it can stay on the sidelines, let the President own the Iraq endeavor, and criticize, criticize, criticize, especially when things go wrong (as they will, as a result of either too much force in the wrong place, or not enough force in the right place).

Congress’s pusillanimous calculus is easy to understand.  So too is the President’s thinking.  He cannot shirk responsibility for national security threats.  But he can meet those responsibilities in ways that minimize political costs – at least in the short term.  “Mr. Obama has little patience for repeating the episode now [of seeking congressional authorization], three months before midterm congressional elections,” says Davis.  The President has no interest in spending political capital on a war vote that Congress doesn’t want to take, concerning a country where the President promised to end war (and bragged about doing so), especially since the expenditure will only diminish the enthusiasm of his political base in the midterms.  Another important consideration is that the President likes the flexibility of unilateral war powers.  The Obama administration has long pushed the canard that it doesn’t want congressional authorization for military force against Islamist terrorists for fear that Congress will give it too much power.  This is nonsense as it concerns the use of force against IS, for at least four reasons: (1) Davis makes clear that the administration’s worry is whether Congress will authorize any force against IS, not too much force; (2) the President has enormous leverage in the negotiations over authorizations of force and could refuse to sign any authorization that did not suit him, especially since he claims to possess Article II powers to meet the threat if Congress does not give him what he wants; (3) if Congress gives him too broad an authorization for force, he need not exercise force beyond what he thinks fit; and (4) the administration that purports to worry about receiving too much power from Congress has pushed unilateral Article II war powers beyond past limits during the past six years.

And so again we witness presidential unilateralism in the use of military force because unilateralism advances the short-term interests of both political branches.  Tim Kaine is quite right to say (in the NYT piece) that “[w]e should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary.”   This was the premise of the the President’s speech on Syria a year ago.  Today the President no longer thinks congressional support for the use of force “is the right thing to do for our democracy,” or that “our power is rooted . . . in our example as a government of the people, by the people, and for the people,” or that that “all of us should be accountable as we move forward, and that can only be accomplished with a vote.”  And that in turn suggests that the President’s eloquent paean last August to the vital importance of congressional participation in the decision to use force was opportunistic or insincere or both.

So Where Do War Powers Reports Come From?

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Tuesday, August 19, 2014 at 11:26 PM

Over the last nine weeks, President Obama has sent five war powers notices to Congress in what may be the most concentrated period of Presidential war powers reporting in history.  These notices include four notices regarding Iraq (on June 16 and June 30, and August 8 and 17) and one notice regarding Libya (on July 27).

So, how are war powers reports prepared?  Unless the process has changed in the Obama Administration, the draft report to Congress is prepared by lawyers in the the State Department’s office of Political-Military Affairs, based on factual input about the actual deployment or use of military force provided by the Legal Adviser to the Chairman of the Joint Chiefs.   The State Department then clears the draft with the Office of Legal Counsel and the DoD General Counsel’s office, and then submits the recommended report to the National Security Adviser for signature by the President.  The NSC Legal Adviser may make revisions in the report, after further consultations with interagency lawyers.  The NSC Legal Adviser and the NSC Defense Directorate prepare a cover memo for the National Security Adviser to send to the President with the report.

Consistent with the requirements of the War Powers Resolution (even though Presidents of both parties do not concede that the Resolution is actually binding), Presidential war powers reports state (A) the circumstances necessitating the introduction of U.S. Armed Forces; (B) the constitutional and legislative authority under which such introduction took place (and usually the international law authority as well); and (C) the estimated scope and duration of the hostilities or involvement.

Because the War Powers Resolution purports to require that notices be submitted to Congress within 48 hours of the initiation of hostilities or deployment of U.S. Armed Forces into the territory or airspace of another country, the drafting and clearance processes must all happen very quickly, and the White House Staff Secretary must occasionally take the report to the Residence or send the report to the President on the road for his signature in order to meet the deadline.

Steptoe Cyberlaw Podcast, Episode #31: A Debate Over Sen. Leahy’s USA Freedom Act

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Tuesday, August 19, 2014 at 1:55 PM

The Steptoe Cyberlaw Podcast is on hiatus in August, but we’ve brought it back for a special appearance – a debate over Senator Patrick Leahy’s version of the USA Freedom Act sponsored by the Federalist Society. Moderated by Christian Corrigan, the debate pitted me against Harley Geiger, Senior Counsel and Deputy Director for the Freedom, Security and Surveillance Project at the Center for Democracy and Technology. Surprisingly, Harley and I manage to find some significant points of agreement, not only on the superiority of the Senate’s definition of ‘special selection term’ over the House’s, but also on the need to deal with what ethical and conflicts standards should apply to special advocates appearing before the Foreign Intelligence Surveillance Court – a topic that neither the House nor the Senate bill presently addresses.

Today’s Headlines and Commentary

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Tuesday, August 19, 2014 at 10:26 AM

The New York Times reports that rockets may have been fired from Gaza into Israel today. If the reports are correct, this action would break the cease-fire between Israel and Hamas that was reported to have been renewed for an additional twenty-four hours yesterday. But, as the Globe and Mail explains, there hasn’t been much progress in the negotiations between the two parties and there was a high risk of renewed violence when the extension was signed.

In remarks yesterday, President Obama hailed the progress made by Iraqi and Kurdish forces against Islamic State fighters, reports the Washington Post. Yesterday, Iraqi and Kurdish militaries, aided by U.S. airstrikes, were able to recapture the Mosul Dam and to push Islamic State militants away from the Kurdish capital.

The United States has banned flights over Syria, after a report released by the Federal Aviation Administration confirmed that extremists in Syria are armed with anti-aircraft weaponry. The Guardian has the details.

The Hill reports that the U.S. has nearly finished destroying its share of Syria’s stockpile of chemical weapons. The announcement came as part of President Obama’s remarks yesterday.

The Australian government is coming under heavy criticism after emails within the Australian immigration department reveal that the agency was trying to deny asylum for Syrian refugees. The Guardian reports that the emails, obtained under freedom of information laws, also indicate that the Australian immigration authorities were attempting to repatriate the Syrian asylum seekers, a move that the Australia director of Human Rights Watch has labeled “unthinkable.”

Afghanistan remains leaderless. The Times tells us that, as the standoff between presidential candidates Ashraf Ghani and Abdullah Abdullah continues, a group of Afghan government officials have signaled that they will seize power if the political stalemate is not resolved soon.

The Yemeni government paid more than $1 million to the families of those injured or killed in a U.S. drone strike. Greg Miller of Post combed through official Yemini government documents to find the details of the payments. Here’s the full story.

Violence continues in Ukraine. The Times reports that separatist rebels have killed “dozens” of Ukrainian citizens who were attempting to flee the eastern region of the country.

Things are not getting any better in Ferguson, Missouri. Jane covered the news that the National Guard had been deployed to Ferguson to help control the situation, but the Times reports that, notwithstanding the Guard’s deployment, violence plagued the city once again last night. Politico also has additional details: in connection with last night, 31 people were arrested. President Obama sent Attorney General Eric Holder to Ferguson to head up the federal investigation into the killing of unarmed teenager Michael Brown: the Hill covers Holder’s progress.

Alexander Joel, civil liberties protection officer over at the Office of the Director of National Intelligence, has penned an op-ed in Politico in which he discusses Executive Order 12333. The piece comes as a reaction to an earlier New York Times article by Charlie Savage regarding the Order, and the possible collection of intelligence about American citizens.  Joel argues that this collection is not as widespread or worrying as Savage would have us believe, explaining that there are a variety of checks in place to limit the “incidental” gathering of American citizens’ information, and to protect Americans’ identities if and when that information is gathered:

… EO 12333 requires procedures to minimize how an agency collects, retains or disseminates U.S. person information. These procedures must be approved by the attorney general, providing an important additional check.

[…]

And even if the NSA determines that information about an American constitutes foreign intelligence, it routinely uses a generic label like “U.S. Person 1” in intelligence reporting to safeguard the person’s identity. The underlying identity may be provided only in a very limited set of circumstances, such as if it’s necessary to understand the particular foreign intelligence being conveyed.

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.

Three More Amicus Briefs in Support of Petitioner in al-Bahlul v. United States

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Tuesday, August 19, 2014 at 9:31 AM

Yesterday we flagged two amicus briefs filed on behalf of the petitioner in al-Bahlul v. United States by (1) the National Institute of Military Justice and (2) Professor David Glazier of Loyola Law School. The day saw three more briefs filed on Ali al-Bahlul’s behalf, each presenting different arguments for why the D.C. Circuit should reverse al-Bahlul’s military-commission conviction for conspiracy to commit war crimes.

(3) Amicus brief of the Japanese American Citizens League, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice—AAJC, Asian American Advancing Justice—Asian Law Caucus, Asian Americans Advancing Justice—Los Angeles, and the National Asian Pacific American Bar Association

In their filing, amici take aim at what it describes as two different systems of justice for citizens and non-citizens. The argument is two-part. First, the Military Commissions Act triggers, and fails, heightened scrutiny under the Equal Protection Clause by according non-citizen criminal defendants lesser rights. Second, amici cite the internment of Japanese citizens during World War II and McCarthy-era political repression as historical examples of how national security measures directed specifically against non-citizens often lead to widespread abridgment of citizens’ rights.

(4) Amicus brief of Robert D. Steele and other former members of the U.S. intelligence community

Amici argue that al Bahlul’s conviction and sentence to life imprisonment amount to punishment for First Amendment-protected speech—specifically, for his role in creating a 2001 propaganda video directed towards a U.S. audience, titled State of the Ummah, compiled from already publicly available information. Not only would failing to apply constitutional protections to the video interfere with Americans’ First Amendment “right to know,” amici argue, it would actually also damage national security by interfering with open source intelligence relied upon by the Intelligence Community.

(5) Amicus brief of the First Amendment Scholars and Historians and the Montana Pardon Project

Amici urge the D.C. Circuit to consider the First Amendment implications of allowing al-Bahlul’s conviction to stand, and highlight several prominent historical examples of when the U.S. government overstepped its bounds by punishing citizens or non-citizens for expressing their beliefs, only to pardon the alleged offenders later. Arguing that al-Bahlul’s work in creating State of the Ummah constitutes religious speech that “inspired” others to act, rather than an incitement to murder, amici argue that it thus falls beyond the historical reach of war crimes tribunals or prosecution in a military commission.

Another Amicus Brief Filed in Support of Petitioners in al Bahlul v. United States

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Monday, August 18, 2014 at 7:04 PM

This morning Steve summarized the amicus brief he co-authored on behalf of the National Institute of Military Justice in support of the petitioner in al Bahlul v. United States. Professor David Glazier of Loyola Law School has also just filed an amicus brief in support of petitioner, supplementing historical arguments he initially presented in an earlier briefing with Professor Gary Solis, contending that the military commission trying Ali al Bahlul exeeded its lawful jurisdiction by trying him for conspiracy.

From the brief:

Amicus respectfully submits this brief to expand the previous analysis on why the Define and Punish Clause does not permit al Bahlul’s trial by military commission, to address the Article III issue, and, more specifically, to explain why the key examples relied upon by the en banc opinion, the Lincoln assassination conspiracy trial and supporting legal opinion of Attorney General James Speed, the 1942 Nazi Saboteur trial, and the 1945 spy trial of William Colepaugh and Erich Gimpel, are not credible precedents for the government’s arguments. Indeed, the Speed opinion actually provides explicit support for both of al Bahlul’s arguments.

The “Economist” On Lawfare Against the British Military

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Monday, August 18, 2014 at 2:23 PM

Last week’s Economist had an excellent article about lawfare against Britain’s Ministry of Defence relating to actions of the British military in Iraq and Afghanistan entitled “Lawyers to right of them, lawyers to left of them: The army increasingly feels under legal siege.”  The entire article is worth a read (especially by U.S. JAGs), but here are a couple of interesting excerpts:

So far there have been two public inquiries, more than 200 judicial reviews and more than 1,000 damages claims made against the MoD on human-rights grounds. The cost of these legal challenges so far is around £85m ($145m), over half of which has gone on inquiries into the killings of Baha Mousa and Al-Sweady by British troops in Iraq in 2003 and 2004.

Many of the legal challenges come from former enemy combatants and their relatives. But another class of case, known as “duty of care” lawsuits, which are brought by the families of soldiers who have died on active service or during training, is also absorbing much time and money. Many relate to deaths that might have been avoided had better kit been provided, such as body armour, tougher vehicles or equipment to prevent “friendly-fire” accidents.

One explanation for the legal barrage is the activism triggered in 1998 by the incorporation into English law of the European Convention on Human Rights (ECHR) through the Human Rights Act. Another is that, since the Falklands War, Britain has taken to bringing home the bodies of soldiers killed in action, which makes military deaths subject to civilian coroners’ inquests. In 2004 the use of narrative verdicts became widespread, allowing coroners to comment critically on the conduct of operations.

But the armed forces and many politicians are now losing patience with what Mr Hammond describes as “ambulance-chasing lawyers…aggressively seeking out foreign claimants” and are trying hard to cut off the legal assault. One measure already being taken is stopping the flow of legal aid to people who have little or no connection with Britain by imposing a residency test. The government might also argue that, as case law and precedent have extended the ECHR to combat operations with perverse results, Britain should derogate from the convention during operational deployments. As far as combat immunity is concerned, Mr Hammond has already suggested that the government will have to legislate to restore it in full if legal decisions go against it.

The armed forces should urgently consider another reform, too: introducing much more rigorous legal training for all ranks. “Lawfare”, as it has been called, is not going to go away.

The title of the article, by the way, is an allusion to the famous line in Tennyson’s “The Charge of the Light Brigade” (“Cannon to right of them, Cannon to left of them…”) about the charge of British light cavalry against a Russian artillery battery in the Battle of Balaclava in the Crimean War in 1854.   And we know what happened to the Light Brigade…

Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court of Appeals’ decision is to bring to the forefront a critically important constitutional question that, until now, the commissions have been able to duck: Does Article III apply to (and, thus, prohibit) military commission trials for offenses against the domestic–but not international–laws of war?

In Ex parte Quirin, the Supreme Court held that Article III does not apply to “offenses committed by enemy belligerents against the law of war,” which is why the war crimes trials after World War II–and the 9/11 trial at Guantánamo–haven’t raised Article III questions. But Quirin was necessarily (and logically) limited to violations of the international laws of war, and, as the government now concedes, standalone conspiracy (the only remaining charge against al Bahlul) is not such an offense. Thus, unless the panel invalidates al Bahlul’s conviction on one of the other three remaining grounds, it will have to resolve the Article III question.

In a new amicus brief filed today (which I co-authored), the National Institute of Military Justice argues that, even if “conspiracy” is an offense against the “U.S. common law of war,” Article III mandates that such offenses be tried before civilian, rather than military, federal courts. [NIMJ had filed similar briefs before the original three-judge panel andthe en banc court; the new brief responds to government's arguments and Judge Kavanaugh's en banc concurrence.] As the brief explains, “no U.S. court has ever upheld the jurisdiction of a military tribunal to try an offense that that court believed to be a violation of the domestic—but not international—laws of war. As the Supreme Court has made clear, Article III demands far more historical evidence—and far more compelling prudential justifications—before Congress may depart from its mandate.”

Oral argument is scheduled for October 22.

The Internet Metadata Memo: A Summary

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Monday, August 18, 2014 at 11:45 AM

There is much to pore over in last week’s release by the Director National Intelligence. Responding to FOIA litigation, the DNI’s office posted more than thirty legal filings and related documents bearing on NSA’s historical, bulk collection of certain internet metadata—the addressing, routing, and header information in e-mails. Some of this stuff is old, including the well-known fact of the program’s cessation some time back; some of it new.

In the latter category, and likely of interest to anyone seeking to know more about the larger bulk collection story, is this 2004 submission to the Foreign Intelligence Surveillance Court (“FISC”). The brief sought—and evidently, for a time, won—FISC sign-off for the NSA to collect internet metadata in bulk, pursuant to the Foreign Intelligence Surveillance Act’s (“FISA”) pen register and trap and trace rules. That’s consequential, considering what had happened earlier. As is well known, that year Department of Justice officials, including then-Deputy Attorney General James Comey and then-Assistant Attorney General Jack Goldsmith (who had no role in editing this post) had protested the legality of highly secret surveillance program that President George W. Bush had authorized pursuant to his independent constitutional powers. The White House relented and agreed to changes—one being, apparently, a bid to bring the surveillance within the FISA framework.

Unsurprisingly, there’s a lot of detail missing here: about sixteen of the filing’s sixty-two pages are mostly or completely blacked out by redactions. Still, there’s more than enough to piece together some of the main arguments set forward in the brief. It bears signatures of then-Attorney General John Ashcroft, Comey, Goldsmith, and Justice Department Attorney James Baker, and consists of two essential parts: an introduction, and a legal analysis. This post broadly overviews both below.   Read more »

Today’s Headlines and Commentary

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Monday, August 18, 2014 at 9:45 AM

The Associated Press cites conflicting reports as to whether Kurdish and Iraqi forces have retaken Mosul Dam from Islamic State fighters, with militants claiming it is still in control of the facility after two days of U.S. airstrikes despite the Iraqi army’s statements to the contrary. The BBC writes that U.S. Central Command carried out nine air strikes on Saturday to aid Kurdish forces in retaking the strategic dam, and cites new reports that Islamic State militants have massacred hundreds of people in northern Iraq and eastern Syria. Over the weekend, the AP also reported that Islamic extremists shot 80 Yazidi men to death before abducting their wives and children.
The AP reports controversy and uncertainty in Britain after statements from British government officials suggesting that the country’s reconnaissance actions in Iraq can no longer be characterized as strictly humanitarian, although Prime Minister David Cameron has also vowed not to be putting boots on the ground.
The five-day ceasefire between Israel and Hamas is scheduled to run out today at 2100 GMT (5:00 EDT), but, as the Wall Street Journal reports, there have been no apparent breakthroughs in Egyptian-mediated negotiations on ending the Gaza war. The Times reports that Gaza’s infrastructure has incurred more damage in the current conflict than in either of its last two wars. The AP cites the psychological devastation wrought by the violence in Gaza, with the U.N. estimating that about 373,000 children need direct psychological intervention after witnessing violence, losing a relative or being displaced.
Similarly, no progress has been made on negotiating a ceasefire in eastern Ukrainewrites the WSJ, although Russian Foreign Minister Sergei Lavrov has claimed that an agreement had been reached for the delivery of what Moscow has described as humanitarian aid to the region, via a convoy of almost 300 armored trucks. Reuters writes that on Monday, Ukraine accused pro-Russian separatists of hitting a refugee convoy with rocket fire near Luhansk, causing an unknown number of casualties. A Ukrainian fighter jet was shot down on Sunday morning while flying over rebel-held eastern territory; according to Al Jazeera, the Ukrainian military says pro-Russian separatists are responsible for the attack, and that Russia has sent over three missile systems and deployed drones that have violated Ukrainian air space.
Over at Foreign Policy, Michael Weiss wonders why Vladimir Putin has been allowed to perpetrate a humanitarian farce as part of a strategy to legitimize more transparent warfare.

This is win-win for Putin: If Ukraine declares war on Russia, he gets to ride in to save his faltering rebellion. If it doesn’t, he keeps waging deniable “incursions” to send the rebels heavy machinery.

German magazine Der Spiegel claims that Germany’s foreign intelligence agency eavesdropped on calls made by U.S. Secretary of State John Kerry and his predecessor Hillary ClintonAl Jazeera notes that if true, the news would mark an embarrassing turn in the U.S.-Germany spy saga, emerging only a month after Germany asked CIA station chief in Berlin to leave the country in response to allegations of U.S. spying.
Speaking of Germany: the AP writes that German authorities have charged a German-Iranian man with supplying Iran with 463,000 euros’ worth of components for use in its missile program.
Yukiya Amano, head of the International Atomic Energy Agency, made what he has described as a “useful” visit to Tehran, during which Iran committed to cooperating with the UN nuclear watchdog investigation into suspected atomic bomb research. Reuters has the story.
About 55,000 people have occupied two streets in central Islamabad to rally for the resignation of Pakastani Prime Minister Nawaz Sharif. Reuters reports that opposition leader Imran Khan is urging Pakistanis not to pay taxes or utility bills until Sharif steps down.
WikiLeaks founder Julian Assange has announced his plans to “soon” leave the Ecuadorean Embassy in London, where he has spent two years avoiding extradition to Sweden for alleged sexual assault. So writes the Washington Post. Assange has been granted asylum in Ecuador but is expected to be arrested by British law enforcement if he ventures off embassy ground.
Foreign Policy notes that Ayatollah Ali Khamenei himself has taken to Twitter to criticize the eruption in Ferguson as evidence of U.S. hypocrisy on the human rights front. The Times reported this morning that Missouri Governor Jay Nixon will deploy the National Guard to Ferguson in an attempt to quell the violence that has erupted on the streets this week in the wake of a police officer’s killing of unarmed teenager Michael Brownwho was shot six times; law enforcement officers have used tear gas and rubber bullets against protesters, allegedly without provocation; police claim that protesters have engaged in “premeditated criminal acts.”
Over the weekend, Carol Rosenberg of the Miami Herald reported that the letter that Khalid Sheik Mohammed has written to President Obama, describing views on Gaza, Iran nuclear sanctions and other current affairs, may be dropped in the mail by U.S. troops if it clears prison review for non-legal communications.
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 Week that Will Be

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Monday, August 18, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, August 19th at 12 pm: The Heritage Foundation hosts a conversation on  Philanthropy in Defense of Freedom. The panel will explore the history of philanthropic support for innovative defense technologies and areas where that investment is most needed. James Jay Carafano, Colonel Richard J. Dunn III, Dr. Daniel Goure, and Dr. Patrick Linehan will speak. For more information and to RSVP, visit the Heritage website.

Tuesday, August 19th at 2 pm: Later at Heritage, two panels will discuss how History Impedes Future Progress in Northeast Asia between Japan and South Korea, and how those unresolved issues might be addressed in order to facilitate strong cooperation among trilateral U.S.-Japan-Relations. Admiral Dennis C. Blair (Ret.) and Ahn Ho-Young, Ambassador of the Republic of Korea to the United States will deliver keynote addresses. Lee Sung-yoon, Scott Snyder, and Yuki Tatsumi will be on the first panel; Victor Cha, Bruce Klingner, and Evans Revere will participate on the second. RSVP here.

Wednesday, August 20th at 7:30 am: Government Executive Events hosts its third installment of the Cybersecurity Series at the Ronald Reagan Building, entitled Innovations in Cybersecurity. Roberta Stempfley, Michael walker, Barry West, and Adam Firestone will discuss new technology, how to escape shrinking budgets, and the future of government cybersecurity. RSVP here.

Wednesday, August 20th at 10 am: The Woodrow Wilson Center will host an event entitled Preempting Environmental and Human Security Crises in Africa: Science-Based Planning for Climate Variability Threats. Speakers will include Monde Muyangwa, Coleen Vogel, Abdulahi Sanusi, Ezechiel Long, Kevin Rosner, Abebe Aynete, Marius Claassen, Tony Otoa, Elizabth Khaka, and Raymond Gilpin. RSVP here.

Wednesday, August 20th at 2 pm:  The Brookings Institution will host a discussion at the Carnegie Endowment for International Peace on the Ukraine Crisis and Russia’s Place in the International Order, and how Russia’s foreign policy turn impacts America’s own foreign and security policy. Thomas Wright will moderate the conversation with Strobe Talbott, Clifford Gaddy, and Susan Glasser. Visit the Brookings website for more information.

Wednesday, August 20th at 4:30 pm: The Institute of World Politics will hold an event entitled Scientific Statecraft: What is It, Who Does It, and Why it’s Important? Barbara P. Billauer will give an overview of all the areas in which science can impact policy, and discuss the work of several scientists who left their mark on world policy. RSVP here.

  Read more »

Article II and Iraq: Justifications for the Mosul Dam Operation in the WPR Notification

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Sunday, August 17, 2014 at 10:43 PM

In a very positive development, Iraqi and Pesh Merga forces are in the midst of what appears thusfar to be a successful joint operation to take back the Mosul Dam from ISIS fighters. But it’s not just the Iraqis and Kurds; the U.S. military has conducted 14 airstrikes in support of the operation. This prompted the White House to issue a new War Powers Resolution notification (here), the key language from which states:

On August 14, 2014, I authorized the U.S. Armed Forces to conduct targeted air strikes to support operations by Iraqi forces to recapture the Mosul Dam. These military operations will be limited in their scope and duration as necessary to support the Iraqi forces in their efforts to retake and establish control of this critical infrastructure site, as part of their ongoing campaign against the terrorist group the Islamic State of Iraq and the Levant (ISIL). The failure of the Mosul Dam could threaten the lives of large numbers of civilians, endanger U.S. personnel and facilities, including the U.S. Embassy in Baghdad, and prevent the Iraqi government from providing critical services to the Iraqi populace.

(emphasis added). The notification not surprisingly goes on to cite the President’s Article II authority as the domestic law justification (specifically, his power to conduct foreign relations and his role as Commander-in-Chief).

How does this compare to the prior White House justifications for proceeding without Congressional authorization? The earlier justification had two distinct elements, each treated as a sufficient condition for authorizing force on Article II grounds. First, there was the prospect of harm to US personnel in Erbil; this force-protection argument undergirded airstrikes on ISIS personnel and military equipment threatening that city. Second, there was the prospect of a humanitarian disaster at Mt. Sinjar, supporting airstrikes on the ISIS cordon there. Both humanitarian and force-protection themes appear in today’s Mosul Dam notification, of course, but the context for each is different. The dam is far from Erbil, and its fate poses no direct threat to US personnel there; the force-protection argument instead is linked to US personnel downstream in Baghdad. That’s not wholly unreasonable; my limited understanding is that a failure of the dam would cause significant problems in Baghdad. I defer to others who know more about the consequences of a dam failure to determine if this illustrates a problematic flexibility to the force-protection argument (i.e., whether it shows that the logic of the argument is too capacious). It does at least draw further attention to the question of just where the boundaries of the force-protection argument are.

As for the humanitarian argument? Something similar might be said, insofar as it is correct that ISIS had strong incentive both to try to keep the dam operating (so as to provide electricity in its own territory) and to avoid a breach (which would cause huge damage to Mosul, which ISIS controls). As I understand it, the core of the pure-humanitarian argument here is that ISIS just would not prove able over time to keep the dam in order, and thus sooner or later there would be either losses of power or an outright breach. Again, it’s by no means wholly unreasonable, but it also highlights the breadth of the more-controversial Article II humanitarian argument.

Perhaps more significantly, isn’t all of this argumentation pretty distant from the much more obvious motivation for this operation–i.e., that possession of the Dam was simply intolerable insofar as it substantially bolstered the ability of ISIS to control territory while also serving as a threat that could be held over Iraqi/Kurdish forces should they succeed (when the attempt inevitably comes) in ousting ISIS from Mosul? As the situation continues to unfold, I predict we will see situations in which US air support will be needed and will be provided, but that will be even more remote from the force-protection and humanitarian arguments that currently have been placed front-and-center; there have been many hints, after all, that a more robust US role may be in the offing once al-Maliki is gone. As Jack wrote previously, there already is a strong argument to be made that the President should go to Congress for authorization for this operation. That case got a bit stronger with the Mosul Dam operation, and would grow much stronger should we see still further migration from the original Sinjar/Erbil emergency-response scenarios.

The Foreign Policy Essay: Where is Japan Headed?

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Sunday, August 17, 2014 at 10:00 AM

Editor’s Note: Sixty-nine years ago, on August 15, 1945, Japanese emperor Hirohito took to the airwaves to deliver the Imperial Rescript on the Termination of the War, announcing to the Japanese people that the government had accepted the terms of the Potsdam Declaration calling for the unconditional surrender of the Japanese military to the allied forces. Just last month, Japan’s cabinet made the historic decision to embrace collective self-defense and expand its national security role. Although neighboring states and many Japanese remain skeptical, Prime Minister Shinzo Abe believes that Japan’s changing security position requires a more regionally- and globally-engaged Japan. Jonathan D. Pollack, my colleague at Brookings who is a senior fellow in the John L. Thornton China Center and the Center for East Asia Policy Studies, analyzes Abe’s decision, offering insights into why the prime minister has pushed the change and the security implications of this move.

***

On July 1, 2014, Prime Minister Shinzo Abe announced long-anticipated measures that could result in the most important changes in Japanese national security strategy in more than six decades. Unveiled as a cabinet decision, the changes represent the biggest revisions in the country’s defense policy since adoption of the 1947 constitution prepared during the American occupation of Japan. Rather than propose constitutional revision, the Abe administration is advocating constitutional reinterpretation, for which the barriers to legislative approval are far less demanding. These steps presume an inherent right to collective self-defense, as permitted under the United Nations charter, though the cabinet document does not make explicit reference to this term. If implemented, the changes will extend Japanese security policy well beyond the constraints operative throughout Japan’s postwar history. Given that we have just marked the 69th anniversary of Japan’s unconditional surrender to the allied forces in World War II, it is a fitting time to examine what these policy changes could mean for Japan, the region, and the world.

The pronouncements represent the most recent efforts to redefine Japan’s contributions to international security following the end of the Cold War. Prime Minister Abe believes that current national defense policy limits Japan’s ability to protect its fundamental interests. The United States has welcomed these efforts, believing that Tokyo should assume a role more commensurate with its standing as a major power. By design, there is an inherent asymmetry in the U.S.-Japan security relationship. U.S. forces are unequivocally committed to the defense of Japan, without clarity in Japan’s precise contributions to U.S. strategy. This uneven alliance bargain was inherent in the security arrangements that the United States established decades ago. The question is whether these arrangements are sustainable for either Japan or the United States and the consequences for East Asia if they are not.

J Pollack photo with borderThe cabinet announcement argues that growing threats to Japanese security necessitate these changes. The document states that “the international environment surrounding Japan has become increasingly severe.” It advocates more active measures to prevent conflict and deter possible threats to national security. The principal factors preoccupying Japanese defense planners are North Korea’s nuclear and missile capabilities and China’s increased military reach, especially Beijing’s maritime and air patrols near the Senkaku Islands (known to the Chinese as the Diaoyus), where China openly contests Japan’s claims to sovereignty. The cabinet document also draws attention to broader technological changes in warfare and to new risks such as cybersecurity, claiming that “any threats, irrespective of where they originate in the world, could have a direct influence on the security of Japan.”

The announced changes are fraught with implications that have yet to receive full scrutiny within Japan and have triggered very sharp responses from neighboring states, especially China and South Korea. Prime Minister Abe argues that extant policies do not permit sufficient integration with U.S. forces that are essential to addressing Japan’s security needs. But he also contends that Japan is not trying to modify Article IX of the constitution (widely known as the “no war” clause) and is not advocating direct involvement of Japanese forces in overseas combat missions.

However, neither China nor South Korea seems assured by these statements. The principal objections raised by both countries are rooted in history, contending that Abe remains unreconciled to the outcome of World War II and unprepared to admit fully to Japan’s conduct during the conflict. The prime minister’s December 2013 visit to the Yasukuni Shrine, where the souls of Japan’s war dead (including 14 wartime leaders convicted of Class-A war crimes at the Tokyo tribunals) are interred, provoked intense reactions from both capitals. The Abe administration’s equivocal reaffirmation of earlier Japanese declarations of regret over its wartime behavior and acknowledgment of the Imperial Army’s role in organizing forced prostitution for its troops caused additional damage. For these reasons alone, China and South Korea voice grave suspicions about the prime minister’s intentions. Read more »

The Lawfare Podcast is on Vacation

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Saturday, August 16, 2014 at 1:55 PM

The Lawfare Podcast is at the beach this week. We can neither confirm nor deny that we will be back next week.

The Week That Was: All of Lawfare in One Post

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Saturday, August 16, 2014 at 10:00 AM

With the continuation of the crisis in Iraq, President Obama announced last week that U.S. airstrikes there would be “a long-term project.” In light of this news, Jack pointed out that “the case for seeking authorization from Congress… just grew stronger.” Meanwhile, Cody highlighted the National Security Network’s report outlining ways to successfully repeal the 2001 Authorization for Use of Military Force (AUMF).

On Monday, Iraqi President Fuad Masum tapped Haider al-Abadi to succeed Nouri al-Maliki as the country’s prime minister. Originally, Maliki intended to contest the nomination before Iraq’s Federal Supreme Court. Ashley Deeks considered Maliki’s constitutional argument. However, the case is now moot, as Maliki has decided to back Abadi.

Wells flagged Vice News’ five-part video series, depicting the “inner workings” of the Islamic State.

Bruce Riedel, director of the Brookings Institution’s Intelligence Project, wrote this week’s Foreign Policy Essay, which analyzed lessons learned from America’s Soviet-era conflict in Afghanistan.

Cody brought us the Lawfare Podcast, which featured a conversation with Somali President Hassan Sheikh Mohamud on the future of Somali democracy, development, and security.

Ben, who is currently travelling through Iceland, considered what it must be like to grow up and live in a country free from external security threats.

Jack examined criticism of President Obama’s foreign policy and noted that many assessments of the President’s decisions rely in some way on the Nirvana fallacy—the flawed comparison of bad things caused by an actual, flawed foreign policy with the good things caused by better, hypothetical ones.

In GTMO News: pre-trial hearings in the 9/11 case resumed this week. Wells shared Chief Prosecutor Mark Martins’ opening statement. On Monday, he brought us dispatches from the proceedings. After a coverage update, Wells noted Matt Danzer’s digests of the transcripts of the August 13 and August 14 sessions. In U.S. v. Al-Nashiri, Air Force Col. Judge Vance Spath dismissed charges regarding a 2002 terrorist attack on a French oil ship. Wells flagged the initial story and then brought us the actual ruling.

Jane Chong noted Ali al-Bahlul’s brief seeking to overturn his military commission conviction for conspiracy to commit war crimes.

Jane also flagged plaintiffs-appellees’ response to the government’s appeal of Judge Richard Leon’s opinion in Klayman v. Obama.

Wells highlighted the release of the Office of Legal Counsel (OLC)’s February 2010 opinion on the Central Intelligence Agency (CIA)’s targeted killing of Anwar al-Aulaqi.

Ben shared the text of Secretary of Homeland Security Jeh Johnson’s speech at the American Bar Association’s annual convention.

I noted a number of recently declassified documents regarding the National Security Agency (NSA)’s bulk collection of electronic communications metadata.

Last week, Paul attended DefCon and Black Hat in Las Vegas. On Tuesday, he shared his thoughts on the events there.

And that was the week that was.

February 2010 OLC Opinion on the Al-Aulaqi Strike and the CIA

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Friday, August 15, 2014 at 9:41 PM

Here it is.

The seven-page, heavily redacted legal analysis was apparently released earlier today, as a consequence of the FOIA action brought by the New York Times and the ACLU.

 

Today’s Headlines and Commentary

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Friday, August 15, 2014 at 2:21 PM

Ukrainian artillery forces have shelled a Russian military convoy moving inside Ukraine this morning, reports Reuters.Yesterday, a series of Russian armored personnel carriers crossed over the border into Ukraine, providing, according to the Guardian, “incontrovertible evidence of what Ukraine has long claimed – that Russian troops are active inside its borders.” Reuters also shares that Russia has stationed over 40,000 troops near the Ukrainian border. Ironically, in a speech yesterday, Russian President Vladimir Putin “struck a conciliatory note and called for peace,” says the AP.

Yesterday, Iraqi Prime Minister Nouri al-Maliki announced he will step down, allowing Haider al-Abadi to assume the role. The Wall Street Journal reports that “the surprise move deflates a potential [political] crisis.” According to Reuters, Sunni Iraqi leaders have announced their willingness to join a new, more inclusive government, given certain conditions.

Reuters also informs us that the U.S. has pledged to help the governor of Iraq’s Anbar province rout Islamic State militants from the region. While Governor Ahmed Khalaf al-Dulaimi confirmed the agreement, Deputy State Department spokesperson Marie Harf shared no details.

Yesterday, President Obama claimed credit for halting a potential genocide on Iraq’s Mount Sinjar. The Associated Press reports that U.S. airstrikes on Islamic State targets will continue, though further humanitarian airdrops no longer appear likely. According to the AP, “a U.S. team who spent Wednesday on the mountaintop reported numbers far smaller and circumstances less dire than feared.” About 4,500 people remain on Mount Sinjar. The Washington Post and the Daily Beast examine how U.S. estimates regarding the situation atop Mount Sinjar changed so rapidly.

Meanwhile, the Post shares news that the Islamic State is expanding its reach beyond Iraq and Syria. According to the Guardian, the U.S. is set to provide Lebanon with additional arms and supplies to help combat the threat posed by Islamist militants. The Daily Beast considers the intelligence challenges that the Islamic State poses for U.S. officials.

In an opinion piece in the Wall Street Journal, former National Security Advisor Gen. James L. Jones (ret.) offers his advice for handling the situation in Iraq.

In neighboring Syria, the rebel-held city of Mleiha was recaptured yesterday by President Bashar al-Assad’s forces. Reuters provides details.

As a new five-day ceasefire holds between Israel and Hamas, the Wall Street Journal examines the divide between the demands of Israeli and Palestinian negotiators working on a long-term agreement in Cairo. Meanwhile, Israel responds to the beginnings of a U.N. war crimes investigation. The New York Times has details.

More troubling news out of Afghanistan: Radio Free Europe is reporting that an Afghan regional security chief has ordered the execution of all detained militants. The order violates the Geneva Convention on the treatment of prisoners of war, but the commander said that it was his “own, personal” decision after several militants that were transferred for trial had eventually been set free and returned to combat.

In Pakistan, opposition leader Imran Khan has claimed that the convoy of protesters he is leading from Lahore to Islamabad was fired upon by pro-government mobs. The government has insisted that no shots were fired and promised an investigation. Reuters has the story, as tens of thousands of protesters approach the Pakistani capital.

Away from the capital, Pakistani security forces fought off two militant attacks against two separate military bases near Quetta in western Pakistan. Security forces claimed that 10 militants were killed while several security officials were injured. A wing of the Pakistani Taliban claimed responsibility for the attack, with a spokesman for the group saying “there will be more attacks in the coming days.” The Times has more.

ABC News reports that al Qaeda has issued a more urgent plea calling on the family of American hostage Warren Weinstein to pressure Washington to negotiate a prisoner exchange for his release. Weinstein, a former USAID worker, is suspected to be held against his will by al Qaeda in Pakistan.

Al Qaeda in the Arabian Peninsula (AQAP) has called on Islamic militants to target the United States following the U.S. air campaign against ISIS in Iraq, according to Reuters.  The statement, released via Twitter, called on “every Muslim, especially anyone who can enter America, to champion his brothers by going to war against America with everything he can.” AQAP, which is based in Yemen and has been subject to an extensive U.S. drone campaign, also offered tactical advice to “brothers” in Iraq. The statement tells them to “be careful when dealing with telephones and internet networks, and to disperse in fields if there is a heavy concentration of planes.”

The statement comes as Reuters also reports that three Yemeni soldiers and two al Qaeda militants were killed on Thursday, when security forces disrupted a car bomb attack. Separately, security officials claimed to have also unearthed a plot to assassinate Yemen’s former president Ali Abdullah Saleh. Saleh has already survived two previous assassination attempts. Reuters has the details.

In an opinion in the Post, Charles Krauthammer considers a quote from Hillary Clinton’s interview with Jeffrey Goldberg last week: “Great nations need organizing principles, and ‘Don’t do stupid stuff’ is not an organizing principle.” Krauthammer notes that “the only consistency [in President Obama’s foreign policy] is president’s inability (unwillingness?) to see the bigger picture.” Yet, James Fallows at the Atlantic presents two different ways of looking at the Clinton interview – neither of which he finds particularly appealing for the future of the country.  And in case you missed it, on Lawfare, Jack has weighed in with his own thoughts on the Foreign Policy Nirvana fallacy.

Despite global focus on the crises in the Middle East and Ukraine, President Obama’s “Asia pivot [is still] on track,”according to the Hill. Defense Department spokesperson Rear Adm. John Kirby announced, “We’re very committed to that region.”

Work has begun on a new Marine Corps runway on Okinawa, reports Stars and Stripes.  The project is considered part of the U.S. Pacific realignment.

On that subject, the Wall Street Journal has a review of the ongoing transition of U.S. personnel to a base outside of Darwin, Australia, where seven nations are currently staging one of Asia’s biggest air combat exercises.

Boko Haram has abducted dozens of boys and men in Nigeria, Reuters tells us. Following a raid on a small fishing village, the terrorist group loaded the hostages onto trucks and drove off with them. 97 people remain missing.

The Wall Street Journal reports that due to the Ebola outbreak, the State Department has begun pulling family members of embassy personnel out of Sierra Leone.

U.S. District Judge Gladys Kessler has ordered Guantanamo Bay authorities to answer questions about the force-feeding of detainee Mohammed Abu Wa’el Dhiab, McClatchy reports. Specifically, Judge Kessler has requested to know whether the insertion of the tube is painful, and if it is safe to leave the tube in for three days at a time.  The order also asks why Dhiab was not allowed to use a wheelchair for transport to and from enteral feedings.

Yesterday, in a hearing on the 9/11 case, attorneys for five Guantanamo detainees sought details regarding the FBI’s questioning of defense team members. Army Col. Judge James Pohl did not rule on the matter. At the hearing, the accused wore Palestinian attire in support for the people of Gaza. Carol Rosenberg of the Miami Herald has the story.

The New Republic tells us that Khalid Sheikh Mohammed tried to send a letter to President Obama on the current crisis in Gaza, but the government refused to allow him to do so. Navy Captain Tom Gresback could not confirm whether detainees in Camp 7 have the right to send mail. According to TNR, Mohammed’s attorney noted the irony that his client cannot write to the president since “the president after all, under the Military Commissions Act, is the person who is required to sign off on the execution of any death warrant that is issued as a result of the culmination of these proceedings.”

Meanwhile, the AP reports that Mr. Mohammed’s civilian defense attorney, David Nevin, has said that he may withdraw from the case unless the judge orders the government to provide details about FBI investigations of defense team members.

You can follow the daily Guantanamo proceedings at the Lawfare Events Coverage page which is updated daily.

Military.com shares that yesterday, Maj. Gen. Harold Greene, the highest ranking U.S. officer to die in combat since the Vietnam War, was buried in Arlington Cemetery.

In September, the North American Treaty Organization (NATO) is set to amend its charter in order to deal with issues of cybersecurity. According to U.S. News and World Report, while cyberattacks will now be covered by Article 5, the alliance’s mutual defense agreement, there will be no set definition for when a cyberassault necessitates a collective response. International Business Times considers the challenges that cyber poses for NATO.

To combat hackers, law enforcement personnel have begun treating them like organized crime gangs, employing techniques used against the Mafia. U.S. News and World Report shares more.

The Arab Bank trial opened yesterday in the United States, wherein the plaintiffs allege that Arab Bank PLC transferred millions of dollars for Hamas, knowing that the group was likely to use the money to finance terrorism. The suit was filed under the Antiterrorism Act of 1990. The Wall Street Journal has details.

Bloomberg informs us that on September 24, the Pentagon is expected to release new rules for government contractors on the disclosure of network breaches.

A report from the Federal Bureau of Investigation’s Inspector General (IG) held that the Bureau has made better use of national security letters since the IG’s last findings. However, further improvements are still necessary. The AP has the story.

Amy Schafer of Task and Purpose offers ideas for bridging the U.S. civilian-military divide.

We leave you with a note from the the Economist, which writes on the cold realism of America’s defense secretary.

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.

9/11 Case Motions Hearing: 8/14 Session

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Friday, August 15, 2014 at 11:28 AM

Working off transripts, Lawfare’s Matt Danzer has a rundown of yesterday’s pre-trial proceedings in the 9/11 case.  We’ll post his dispatches in our “Events Coverage” section, while linking to them as they come in throughout the day.  Keep your eye on this space.

8/14 Motions Session #1: Conflicts, Conflicts Everywhere

8/14 Session #2: On Severing Al-Hawsawi