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Today’s Headlines and Commentary

By and
Thursday, April 24, 2014 at 1:05 PM

We begin with foreign affairs: Israel just halted peace talks with Palestine, reports the Associated Press. The move comes as a response to the unity pact signed by the PLO and Hamas yesterday evening, in which the two factions agreed to form a government in five weeks that would hold elections in Palestine six months later. The deal was harshly condemned by Israel and the United States—no surprise there. Here are the New York Times, the Washington Post, and the Wall Street Journal.

Reuters informs us that the United States might have to reassess its assistance to the PLO after yesterday’s pact. America lists Hamas a terrorist organization.

Lest anyone think that all is quiet on the Eastern front: The Times and Journal report on Russian military exercises recently launched on the Ukrainian border, and escalating threats of intervention if the Ukrainian military advance continues.

Meanwhile, Gen. Abdurrashid Dostum, a colorful and divisive warlord in Afghanistan, is the vice-presidential candidate on the ticket of Ashraf Ghani—one of the two front-runners in Afghanistan’s election. The Post describes his tumultuous relationship with the United States, and his relationship to President Karzai.

Reuters reports that the Obama administration is set to respond to a congressional mandate that it provide information on prisoners currently detained in the Parwan detention center, a U.S. military prison north of Kabul. The fates of some of the prisoners there are nearly as complicated as those of some Guantanamo detainees.

Another day, another red line: President Obama has reaffirmed his commitment to a defense treaty obligating the US to protect Japan in its confrontation with China over islands in the East China Sea. The Times describes the President’s carefully calibrated attempt to reassure the Japanese without antagonizing China.

Scotland Yard is working with charitable organizations to prevent British Muslims from joining the ongoing war in Syria. The Guardian has more.

Maher Abdul-Hafiz Hajjar, a Syrian lawmaker, has registered to run against Syrian President Bashar al-Assad in the June 3 presidential election.

National Public Radio reports that the CIA is quietly ramping up military aid and training to moderate Syrian rebels.

Two senior Al Qaeda leaders have moved up in life: Ibrahim Ali Abu Bakr Tantoush “has taken control of a secretive training facility set up by U.S. special operations forces on the Libyan coastline to help hunt down Islamic militants,” Eli Lake at the Daily Beast tells us. And Sanafi al Nasr, a third cousin of Osama bin Laden, has relocated to Syria and is openly planning and conducting operations, says Catherine Herridge at Fox News.

And Tony Blair, former British prime minister, spoke about the challenges posed by the spread of Islamic radicalism.

In domestic developments: Regulators from the Federal Communications Commission are set to propose new rules allowing broadband providers to give preferential treatment to content providers, on “commercially reasonable” terms. The shift marks a major tweak to the FCC’s traditional approach to “internet neutrality.” The Journal has the story.

In the Times, Mark Mazzetti reports that a hacker-turned FBI informant coordinated a campaign of hundreds of cyberattacks on foreign websites in 2012. Based on court documents, Mazzetti writes that the informant, Hector Xavier Monsegur aka Sabu, directed other hackers to upload data stolen from the servers of other countries onto a server monitored by FBI.

For those of us convinced that oversight is the key to good governance, here’s some disturbing news: According to a new report from a Senate panel, Charles K. Edwards, acting DHS inspector general from 2011 through 2013, developed extremely cozy relationships with department leaders, providing them with inside information about ongoing investigations and ordering favorable changes to oversight reports. The Post has the story and the Senate report.

Not everyone is satisfied with Monday’s court ruling ordering the release of a redacted legal memo authorizing the killing of US citizens actively engaged in hostilities against the US abroad: According to The Hill, Senator Chuck Grassley is demanding that the unredacted OLC memo be made available to the Senate Judiciary Committee.

Sam Kleiner, of the Yale Law Information Society Project, argues in the New Republic for greater government transparency in national security matters in the wake of the ruling.

A search and rescue organization has filed a lawsuit in federal court seeking to overturn an FAA order prohibiting their use of drones. Fox News has the story.

The Post editorial board criticizes DNI James Clapper’s “gag order” from March 20, saying:

It is unfortunate that Mr. Clapper’s directive works in the opposite direction of what is needed. After the Edward Snowden affair, the intelligence community needs to build trust in its work, which is vital to the nation. Instead, the new directive will lead to more isolation and suspicion.

Jack Shafer has a similar reaction in his Reuters  column.

Carol Rosenberg has yesterday’s recap from the ongoing military commission trial of Abd al Rahim al Nashiri. Matt Danzer is poring through the transcripts; be sure to check out his excellent recap.

And, the AP says the Senate SSCI report on enhanced interrogation, when declassified, could further complicate the trials of the terrorist suspects at Guantanamo Bay.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.


New Draft Article, “The Fourth Amendment and the Global Internet”

Thursday, April 24, 2014 at 12:32 PM

I have a new forthcoming article that may be of interest to readers: The Fourth Amendment and the Global Internet, forthcoming in the Stanford Law Review. Here’s the abstract:

This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet addressed by courts. First, the Supreme Court’s decision in United States v. Verdugo-Urquidez prompts several puzzles about how the Fourth Amendment treats monitoring on a global network where many lack Fourth Amendment rights. For example, can online contacts help create those rights? What if the government mistakenly believes that a target lacks Fourth Amendment rights? How does the law apply to monitoring of communications between those who have and those who lack Fourth Amendment rights? The second category of problems follows from different standards of reasonableness that apply outside the United States and at the international border. Does the border search exception apply to purely electronic transmission? And if reasonableness varies by location, is the relevant location the search, the seizure, or the physical person?

The article explores and answers each of these questions through the lens of equilibrium-adjustment. Today’s Fourth Amendment doctrine is heavily territorial. The article aims to adapt existing principles for the transition from a domestic physical environment to a global networked world in ways that maintain the preexisting balance of Fourth Amendment protection. On the first question, it rejects online contacts as a basis for Fourth Amendment protection; allows monitoring when the government wrongly but reasonably believes that a target lacks Fourth Amendment rights; and limits monitoring between those who have and those who lack Fourth Amendment rights. On the second question, it contends that the border search exception should not apply to electronic transmission and that reasonableness should follow the location of data seizure. The Internet requires search and seizure law to account for the new facts of international investigations. The solutions offered in this article offer a set of Fourth Amendment rules tailored to the reality of global computer networks.

Comments on the draft are very welcome, as the editing process for the article won’t begin for a while. You can download the draft at the link above; send any comments to me at okerr [at]

The Al-Awlaki Decision: No Triumph for Transparency?

Thursday, April 24, 2014 at 7:37 AM

On Monday, a three-judge Second Circuit panel ordered the Obama administration to disclose a redacted copy of the Office of Legal Counsel memorandum outlining its legal justification for the targeted killing of New Mexico-born Anwar al-Awlaki. The decision is being cast as a triumph for transparency, and a clear admonition of presidential secrecy with respect to the government’s drone program. But the court’s analysis could also be read as just the opposite: the Obama administration’s mistake lies not in saying too little, but in saying too much.

The careful wording of the court’s key finding is revealing: “After senior Government officials have assured the public that targeted killings are ‘lawful’ and that OLC advice ‘establishes the legal boundaries within which we can operate,’ and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.” If allowed to stand, the decision would seem to give President Obama and future administrations strong reason to publicly concede as little as possible with respect to any program for which they seek to invoke exemptions under FOIA.

Steve makes this very point over at Just Security. But Steve expresses concern about the ways in which the court’s decision may disincentivize selective disclosure despite also contending that selective disclosure of secret legal rationales is anyway of little value to either the government (because it only emboldens the government’s critics) or the public (because it does not advance public understanding of the government’s actual justifications). Over at the emptywheel blog, Marcy Wheeler has espoused a stronger variation of this premise—that selective disclosure is more bad than good insofar as it amounts to “false transparency”—but has taken this to what I see as the more logical endpoint: that eliminating the administration’s ability to rely on this particular “release valve” may be a positive development. Read more »

Al-Nashiri Motions Hearing: April 23 Session

Wednesday, April 23, 2014 at 4:28 PM

As Wells mentioned earlier today, we will be in transcript mode for the remainder of this week’s pre-trial motions proceedings in United States v. Al-Nashiri. Stay tuned for updates on today’s hearing in our “Events Coverage” section, with links to the updates below.

4/23 Motions Hearing #1: More Arguments Against Capital Punishment

4/23 Motion Hearings #2: In Defense of Ex Parte Letters Rogatory

4/23 Motion Hearings #3: Discovery, Discovery, Discovery

4/23 Motion Hearings #4: Still More Discovery & Jury Sequester

DHS Unity of Effort

Wednesday, April 23, 2014 at 2:05 PM

Big news over at the Department of Homeland Security.  Now in its 11th year, the Department continues to be operationally disaggregated into its component parts, with little of the cross-cutting economies of scale and efficiencies of effort that were a promised result of its creation.  Prior Secretaries have tried to tame the process with limited success.  It appears that Secretary Jeh Johnson is going to try again — and he looks to have a pretty solid plan of action.  That, at least, is the impression I get from his memorandum yesterday on DHS Unity of Effort.  It appears that Secretary Johnson is going to try and mold DHS management processes into a more coherent process.  Most notably, the Secretary has suspended development of the DHS Strategic Play for FY14-18, pending a complete review.  For years, I’ve thought that DHS’s biggest problem was its lack of a coherent centralized management structure.  This is a step in the right direction.

Steptoe Cyberlaw Podcast, Episode #16: An Interview with Alex Joel

Wednesday, April 23, 2014 at 1:46 PM

Our guest for Episode 16 of the Steptoe Cyberlaw Podcast is Alex Joel, and he gets plenty of tough questions: Is it a violation of the new Obama administration policy directive for the intelligence community to look for evidence that Vladimir Putin is gay?  How did DNI Clapper manage to make his fateful misrepresentation to Congress?  Why did the Administration snark on HPSCI’s 215 reform bill, and will it compound the error by producing its own bill?  What exactly does the DNI’s Civil Liberties Protection Officer do?  Alex Joel manages to navigate these questions with grace, and even to answer some of them.

In the news roundup, NSA finally has a decent week, as Edward Snowden makes himself look like a patsy or an accomplice in Putin’s propaganda show and the Bloomberg story that NSA exploited the Heartbleed vulnerability steadily loses altitude and believers.

The SEC releases thoughtful and detailed set of cybersecurity questions for its examiners to use in dealing with the private sector — the first regulatory use of the NIST cybersecurity framework and a likely bellwether for other financial regulators.

US magistrate Facciola extends his fifteen minutes of fame by calling for an amicus brief on cell-site data.  Kentucky comes in 47th in the race to adopt state breach notice laws.  And the Weev walks free — for now — without making any of the Computer Fraud and Abuse Act law that his defenders hoped.

We tackle the implications of giving first amendment protection to censored search results.  Will the first amendment eventually be used by foreign governments to keep Americans from learning things that are already hidden from Russian or Chinese nationals?

And in bitcoin news, a more plausible candidate for Satoshi Nakamoto has emerged, even as Mt. Gox begins the corporate equivalent of looking for nickels under the couch cushions.

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

An Update on the Status of FISA Transparency Reporting

Wednesday, April 23, 2014 at 1:21 PM

What follows is a quick recap on the status of FISA transparency reporting (most of this was news in late January but is summarized here with some useful links) along with a couple of observations on what may lay ahead.

Up until the unauthorized disclosures regarding surveillance activities, communications providers on the receiving end of requests for information pursuant to FISA were precluded from including statistics in their periodic transparency reports. (These transparency reports traditionally concerned compliance with law enforcement requests.) Following the disclosures, as a result of advocacy by the companies concerned with the effects of the disclosures on their business both present and future, the government said the companies could publicly disclose overall numbers that combined criminal process, FISA orders and National Security Letters (NSLs). Not satisfied by this result or by progress of continued negotiations with the government, five companies filed suit in the Foreign Intelligence Surveillance Court (FISC) challenging the government’s restrictions. The companies argued, generally, that FISA does not prohibit public disclosure of the specific information sought by each company, and that the government’s restrictions violated the First Amendment.

The companies’ filings and government responses are available here on the FISC’s public docket page. The docket page includes other pending public matters before the FISC. For ease of reference, the initial filings are as follows, by company: Case No. Misc. 13-03 (Google), 13-04 (Microsoft), 13-05 (Yahoo), 13-06 (Facebook), and 13-07 (LinkedIn). The initial motions for relief were made in June (Google and Microsoft) and September (Yahoo, Facebook and LinkedIn). Apple filed a brief as amicus in each, in November.

It appears that sometime in December 2013, perhaps, and into January 2014, additional negotiations took place between the companies and the Department of Justice, presumably on behalf of the Intelligence Community. The result of those negotiations was revealed in a January 27, 2014 letter from the Deputy Attorney General to the general counsels of the five companies. This was ten days after the President’s speech on reforms of signals intelligence activities, and issuance of Presidential Policy Directive-28. The agreement letter provided for a new level of transparency on national security process compliance reporting. The government offered two options of public reporting. One allows for the reporting of aggregate data in separate categories including all of the following, in bands of 1000: numbers of NSLs received; customer accounts affected by NSLs; number of “FISA orders for content;” number of “customer selectors targeted under FISA content orders;” number of “FISA orders for non-content;” and the number of “customer selectors targeted under FISA non-content orders.” Companies may report on criminal process with “no restrictions.”

The second option allows for the reporting of aggregate data in separate categories including the following, in bands of 250: either “the total number of all national security process received, including all NSLs and FISA orders;” and “the total number of customer selectors targeted under all national security process, including all NSLs and FISA orders.” Again, if this option is followed, companies may report on criminal process with “no restrictions.” Read more »

Programming Note: Al-Nashiri Coverage This Week

Wednesday, April 23, 2014 at 10:02 AM

A little reminder, for the military commissions-inclined and from Lawfare HQ: for the rest of this week, Lawfare unfortunately won’t be almost-live-blogging pre-trial motions litigation in United States v. Al-Nashiri Instead, and in keeping with our past “backup” procedure, we’ll opt today, tomorrow and Friday for a different coverage format. That is, Lawfare, in the person of Matt Danzer, will read the transcript of each day’s proceedings—as soon as one becomes available—and thereafter write one or more posts digesting the day’s most significant developments.

Which is to say: stay tuned.


Catherine Tucker on Google Trends and NSA Surveillance

Wednesday, April 23, 2014 at 8:27 AM

Catherine Tucker, the Mark Hyman Jr. Career Development Professor at MIT’s Sloan School of Management, writes in with the following thoughts on measuring public reaction to the NSA revelations using Google Trends search data:

When I saw Ben’s recent post recommending using Google Trends data to examine the effects of surveillance revelations, I realized I had been doing a terrible job of highlighting a new academic paper where I do just that.

There are many possible reasons to think that the surveillance revelations would not affect Google users’ search behavior. As Ben suggests, the revelations could simply be of limited interest to people outside the Beltway, and therefore would have a negligible impact on overall US or international search behavior. Google users in general could be apathetic or ill-informed enough about surveillance that they did not change their behavior; alternatively, they could be well enough informed that they had already factored in at least the possibility of government surveillance of what they were searching for. My coauthor, who runs the advocacy group Digital Fourth, thought there might be an impact; I suspected there wouldn’t be;    but as it turns out, the impact was significant and measurable.

Using lists of possibly troublesome search terms from the Department of Homeland Security’s Social Media Monitoring Unit and elsewhere, we identified 282 search terms that were then independently evaluated for whether raters thought they would get you in trouble with the government or with a friend if it became known you had used this search term. We employed coders to download weekly data from Google Trends for each of these search terms for the U. S. and for its top ten trading partners, covering the whole of 2013. We found that U. S.-based search traffic falls by around 5% in the Google Trends index for government-sensitive terms after the PRISM revelations. This is the first academic empirical evidence of a chilling effect on users’ willingness to enter search terms that raters thought would get you into trouble with the U. S. government. Read more »

Today’s Headlines and Commentary

Wednesday, April 23, 2014 at 7:41 AM

Tensions are rising again in Ukraine. The Guardian reports that the country’s acting president, Oleksandr Turchynov, called for a resumption of military operations against pro-Russian separatists, accusing them of violently torturing and killing two members of his political party. The move, along with constant violence scattered in the east of the country, further calls into question the efficacy of the Geneva agreement that was hastily put together last week by ministers from the Ukraine, the EU and the U.S..

The struggle in Homs, a city in the center of Syria, is turning out to be a pivotal strategic moment for both sides of the ongoing Syrian conflict. The New York Times explains that the Syrian government is close to pushing out rebels from the city, which would be a turning point for the country. The rebels hope to sustain power in the city, which they believe is to their struggle against the regime. As with most things in this conflict, the AP explains that any resolution in regards to the status of the city is still far off and will likely involve further bloodshed.

In more optimistic news regarding Syria, the Los Angeles Times is reporting that almost 90 percent of Syrian chemical weapons have been removed from the country. An international monitor charged with overseeing the removal of chemical weapons from the country has confirmed that the Syrian government might just be on track to meet a Sunday deadline to comply with a disarmament accord.

France is clamping down on the “radicalization” of potential future Syria jihadists. Following the release of four French journalists who were held captive in Syria for nearly a year and information that suggests that some of their captors could have come from France, the French foreign minister, Laurent Fabius, is putting measures in place to prevent radical youth from going to Syria. The Guardian reports that measures put in place include a plan to stop minors from leaving France without parental consent, more surveillance of Islamist websites and their users and a “system to encourage parents to signal suspicious behavior in their children.”

France isn’t the only country paying careful attention to Islamic extremism. Tony Blair, former Prime Minister of the United Kingdom, is slated to address Bloomberg in London today, where he will speak out about combating extremism and will encourage the U.K. to not be afraid to “take sides” in some conflicts. That’s over at the Guardian.

The Israel-Palestine situation goes beyond two clashing governments. Al Jazeera reports that rival Palestinian factions are coming together to try to unite since the first time since 2006 to present more united front to Israel, the U.S. and to the world.

The United States has announced that it will partially resume military aid to Egypt. The Washington Post reports that the Pentagon announced that it will resume delivery of Apache helicopters to Egypt. Though the Obama administration cannot fully resume aid because it lacks congressional approval, it will complete the delivery of these aircraft to aid in the combating of extremist cells in the Sinai.

The ongoing trial of ousted Egyptian president Mohamed Mursi has been adjourned until April 28 and a media ban on all aspects of the trial renewed. EuroNews has—what it can get—of the story.

President Obama has quite a bit of work to do to convince his Asian allies that the U.S. can be a counterweight to China, or Russia. The AP reports that the optics aren’t great currently; the situation in Crimea has countries, like the Philippines, worried that the U.S. won’t always follow through on its commitments to defending its allies.

The United Nations is encouraging the global community to pay attention to the situation in South Sudan. A BBC special reports focuses on Toby Lanzer, the U.N.’s top humanitarian official, who compares the situation to events in Rwanda 20 years ago.

The White House has responded to the U.N.’s call, calling the situation in South Sudan “horrific” and called the recent acts of violence in the country, like the attack of the U.N. mission in Bor, an “abomination,” according to Reuters.

Over 200 young women are still missing in Nigeria, one week after their abduction from their school. The Wire reports that the capture of the girls, allegedly abducted by the Islamist extremist group Boko Haram, points to an increase of violence in the country—violence that the government cannot seem to control.

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.

Daniel Byman and My Article in Foreign Affairs on NSA

Tuesday, April 22, 2014 at 5:27 PM

My Brookings colleague, sometime coauthor, and Lawfare‘s Foreign Policy Editor, Daniel Byman, and I have written a lengthy article Foreign Affairs, on NSA matters. It’s a high-altitude, non-legal look at the issue of how NSA should operate in a world in which it cannot rely to the same degree it traditionally has relied on secrecy, but it draws on many of the themes I’ve been developing on Lawfare. It opens:

The long-running debate over the tradeoffs the United States should make between national security and civil liberties flared up spectacularly last summer, when Edward Snowden, a National Security Agency contractor, handed journalists a huge trove of heavily classified documents that exposed, in excruciating detail, electronic surveillance programs and other operations carried out by the NSA. Americans suddenly learned that in recent years, the NSA had been acquiring the phone and Internet communications of hundreds of thousands of U.S. citizens, as well as collecting massive volumes of bulk telephone records known as “metadata”—phone numbers and the time and length of calls. Along with the rest of the world, Americans found out that the NSA had broken common forms of online encryption, tapped the phones of various foreign heads of state, and monitored global communications far more aggressively than was previously understood.

Howls of outrage erupted. Brazilian President Dilma Rousseff, who learned from the Snowden leaks that the NSA had been monitoring her personal conversations, described the NSA’s activities as a “violation of human rights and civil liberties,” decrying the “disrespect to national sovereignty.” In the United States, both ends of the political spectrum denounced the NSA’s activities. Rand Paul, a Republican senator from Kentucky, called them “an all-out assault on the Constitution,” and the former Democratic vice president Al Gore said they were “obscenely outrageous.”

Today’s Headlines and Commentary

Tuesday, April 22, 2014 at 12:51 PM

We begin with news from Guantanamo Bay:

Carol Rosenberg of the Miami Herald has the latest order from Judge Pohl in the Al Nashiri military commission case, requiring the prosecution to turn over to the defense the details of the CIA’s arrest, detention, rendition and interrogation of Al Nashiri. Wells is at Ft. Meade covering the hearing today.

Josh Gerstein of Politico tells us that the FBI investigation at Guantanamo Bay is not looking into Khalid Sheikh Mohammed’s writings, such as his Huffington Post manifesto from January. A DOJ attorney assigned to look into the matter submitted a new legal filing yesterday saying as much.

Salem bin Kanad, a prisoner at Guantanamo, did not show up for his parole hearing and did not have an attorney represent him.

Meanwhile, Ben Wizner, one of Edward Snowden’s lawyers, says Snowden regrets asking Russian President Vladimir Putin the cute little surveillance question that generated a harsh reaction from his opponents as well as some of his supporters last week. Noah Shachtman of the Daily Beast writes:

Wizner said he understood the revulsion: The interchange looked like cheap agitprop. “I know this is hard to believe. I know if I was just watching from afar, I’d think, ‘Wow, they forced him [Snowden] to do this,’” the ACLU attorney added. “But it’s not true. He just fucking did it.”

Snowden was mortified by the reaction, said Wizner and others. Within hours, the leaker decided to write an op-ed to clarify his position. Snowden decided to run it with the Guardian because of his long-standing relationship with the paper—which ran his first leak—and because he knew it would publish the piece instantly.

Drone strikes and counterterrorism operations  in Yemen over the weekend killed dozens of militants linked to Al Qaeda in the Arabian Peninsula. The official statement from the Yemeni government puts the number of militants killed at 55, but accounts and estimates have varied, reports Agence France Presse. The New York Times has more. The strikes continued on Monday; three suspected militants were killed as they were traveling in a car, says the BBC.

Vice President Joe Biden, in Kiev, said the United States would stand with Ukraine, and offered a $50 million economic assistance package to the country. At the same time, Russian Foreign Minister Sergei Lavrov lashed out at the Ukrainian government and threatened Russian intervention in Eastern Ukraine. Both Russia and Ukraine are accusing each other of violating the Geneva agreement, according to the Wall Street Journal and the Times.

The State Department is investigating allegations that Syrian President Bashar al-Assad used toxic chemicals, likely chlorine, against rebels.

The Associated Press informs us that at least 33 people have been killed and 80 more wounded in deadly suicide attacks on Monday in Iraq.

The number of U.S. troops remaining in Afghanistan after this year could be under 10,000, says Reuters, given how smoothly the Afghan election went.

The pivot to Asia is really happening this time; President Obama is finally taking that long-planned trip to the continent, and a new agreement with the Philippines will be announced next week.

And, the Department of Energy’s Office of Inspector General issued an inspection report reviewing the controls over the department’s classification of national security information.

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.

Al Nashiri Motions Hearing: April 22 Session

Tuesday, April 22, 2014 at 8:54 AM

Your correspondent returns to Fort Meade, where Lawfare will take in a closed circuit broadcast, from Guantanamo, of pre-trial litigation in United States v. Al-Nashiri.   Throughout the day, we’ll have updates on the proceedings in our “Events Coverage” section, with links to the updates below.

A programming note: today will be the only one to feature “almost live-blog” coverage.  For the remainder of the week, our format will be different. During those days Lawfare will read the transcript of the day’s proceedings—as soon as one becomes available—and thereafter write one or more posts digesting that day’s most significant developments.  Enjoy.

4/22 Session #1: In Which Recusal is Revisited

4/22 Session #2: More on Hollander

4/22 Session #3: Confrontation 

4/22 Session #4: Chain of Custody Now, Chain of Custody Later 

4/22 Session #5: Lots of Reasons Not to Impose the Death Penalty

4/22 Session #6: Reprisal


Chief Prosecutor Statement on This Week’s Hearing in Al-Nashiri

Monday, April 21, 2014 at 6:47 PM

Here it is.  The remarks, by Chief Prosecutor Brig. Gen. Mark Martins, open thusly:

Good evening. Abd Al Rahim Hussayn Muhammad Al Nashiri stands charged with serious violations of the law of war for his alleged role in attacking the United States warship USS Cole (DDG 67) and the French vessel MV Limburg and in attempting to attack the United States warship USS The Sullivans (DDG 68).
I emphasize that the charges are only allegations. Mr. Al Nashiri is presumed innocent unless and until proven guilty beyond a reasonable doubt. This is what the law requires, and this is what all who have responsibilities within this process must ensure. I also emphasize that matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding judge and that any comments below addressing systemic issues that are the subject of frequent questions by observers should always be understood to defer to specific judicial rulings, if applicable.
Tomorrow, the Military Commission convened to try Mr. Al Nashiri will hold another series of sessions without panel members present. To the survivors and victim family members who have either traveled here or are watching from CCTV sites in the United States to bear witness to these proceedings, we welcome you. We honor you and those whom you have lost, recognizing that our words can never equal your loss.
The Judge’s order listing the motions currently on the docket is publicly available on the military commissions’ website. The Judge granted a government motion to add 27 motions to the docket for oral argument. The amended docket is Appellate Exhibit 243B. The parties’ filings for these motions, and the transcripts from prior proceedings, are also available on the website to aid the public in its assessment of the issues litigated during these pre-trial sessions. We again are providing DVDs with all the pleadings, as well as other source materials, for still greater ease of access to these documents.

Supreme Court Grants Cert. in Zivotofsky

Monday, April 21, 2014 at 3:43 PM

The Supreme Court granted cert. today in Zivotofsky v. Clinton.  In that case the D.C. Circuit, on remand from the Supreme Courtheld that Section 214(d) of the 2003 Foreign Relations Authorization Act, which requires the Secretary of State to record “Israel” as the place of birth on a U.S. citizen’s passport, is an unconstitutional intrusion on the President’s exclusive power to recognize foreign nations.   Here is Curt Bradley’s summary of the facts and legal issues in the case, here is Samantha Goldstein’s summary of the D.C. Circuit’s opinion, and here is my quick reaction to that opinion.  The case is very important for many reasons.  The main reason, in my view, is that the Court will need address the scope of the President’s exclusive power in a foreign relations context – something it has rarely (if ever) squarely done.  And although that context is the discreet and arguably textually distinctive one of the President’s recognition power, the Court’s methodology for determining exclusivity in that context will almost certainly have implications in other contexts.  Zivotofsky, in short, is a potentially huge separation of powers case.

Order to Release the OLC Targeted Killing Memo: A Summary

Monday, April 21, 2014 at 3:08 PM

As Ben noted this morning, the Second Circuit has ordered the release of a redacted version of the OLC memorandum that justified the targeted killing of U.S. citizen Anwar al-Awlaki. Specifically, the three-judge panel has ordered the government to disclose redacted versions of the requested memoranda on the legal status of targeted killings generally and of the targeting of U.S. citizens specifically. The government must also release a redacted version of the classified “Vaughn index” that agencies must typically provide to justify withholding information under a FOIA exemption, and the DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determinations as to the appropriate disclosure and redaction.

The decision is a long time coming. In June 2010 and October 2010, Scott Shane and Charlie Savage of the New York Times submitted separate FOIA requests to OLC. They sought, respectively, all post-2001 OLC opinions or memoranda that addressed the legal status of targeted killings or killing of al-Qaeda suspects, and all OLC memoranda analyzing the circumstances under which it would be lawful for the U.S. to target a U.S. citizen. OLC denied both requests. In October 2011, the ACLU submitted similar FOIA requests to DOJ, DOD and CIA, seeking various documents related to the targeted killings of U.S. citizens in general as well as those specifically concerning the killing of al-Awlaki, his 16-year-old son and Samir Khan.

The opinion, authored by Judge Newman, lays out a four-part overview of the relevant background in the case. That trek through the marshes simultaneously builds the logical underpinnings of the panel’s conclusion that the government must disclose the OLC memorandum and its justifications for withholding other documents.

The opinion summarizes (1) the FOIA requests submitted by the New York Times and the ACLU, (2) the government’s reliance on FOIA exemptions in refusing to confirm or deny the existence of the requested documents, (3) the analysis accompanying the district court’s decision to uphold the government’s claims to various exemptions, and (4) the subsequent public disclosure of the DOJ White Paper on targeted killings and Attorney General Eric Holder’s letter conceding that the U.S. had targeted al-Awlaki. All of this tees up the crux of the panel’s discussion, on page 37 of its opinion:

After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

The court emphasizes at the outset of its decision that the FOIA suits in question ”do not challenge the lawfulness of drone attacks or targeted killings” but rather” seek information concerning those attacks.” It should be noted that some of the decision, including one of its holdings, has been redacted.

Heartbleed as Metaphor

Monday, April 21, 2014 at 1:30 PM

I begin with a paragraph from Wikipedia:

Self-organized criticality is one of a number of important discoveries made in statistical physics and related fields over the latter half of the 20th century, discoveries which relate particularly to the study of complexity in nature.  For example, the study of cellular automata, from the early discoveries of Stanislaw Ulam and John von Neumann through to John Conway’s Game of Life and the extensive work of Stephen Wolfram, made it clear that complexity could be generated as an emergent feature of extended systems with simple local interactions.  Over a similar period of time, Benoît Mandelbrot’s large body of work on fractals showed that much complexity in nature could be described by certain ubiquitous mathematical laws, while the extensive study of phase transitions carried out in the 1960s and 1970s showed how scale invariant phenomena such as fractals and power laws emerged at the critical point between phases.

That may or may not leave you cold.  I begin with those lines because they say that complexity in the large can arise from locally simple things.  I  begin with those lines because the chief enemy of security is complexity.  I begin with those lines because it explains why it is that we humans build systems that we can’t then administer.

In your bones, you know all that.  You also know that Nature teaches that  where there is enough prey, there will be predators.  Nature teaches that when a predator gains an advantage, it will consume prey as fast as it can metabolize them, until the prey are too few to sustain the predators’ numbers.  Nature teaches that monocultures are so unnatural as to require constant intervention to maintain.

How might this inform policy?  A worked example seems the best answer to that question.

Recent headlines have been all about a coding error in a core Internet protocol that got named “Heartbleed.”  It is serious.  It was hiding in plain view.  If it wasn’t exploited before its announcement, it most certainly has been after.  It is hard to fix.

That Heartbleed is hard to fix is not because there is some technical difficulty in fixing a single line of code; it is hard to fix operationally — the error is so widely deployed that removing its effects will take time.  Whether such a simple error could have been detected before it was so widely deployed is being debated with all the vigor of stiff-necked 20/20 hindsight.

When deployment is wide enough, it takes on the misfeatures of monoculture.  Heartbleed is instructive; its deployment was not wide enough to be called an Internet-scale monoculture and yet the costs are substantial.  What if Heartbleed had been a thoroughgoing monoculture, a flaw that affected not just the server side of a fractional share of merchants but every client as well? Read more »

It Ain’t the Name, It’s the Search, Stupid …..

Monday, April 21, 2014 at 12:00 PM

Debate continues to swirl around the proposed transfer of control of the internet’s naming function (IANA) to the Internet Corporation for Assigned Names and Numbers (ICANN).  But one of the grounds of concern (censorship) seems, the more I think about it, to be less of a problem.  To be sure, internet names have symbolic first amendment functions.  There is a reason why gTLD names like .gay and .islam generate some attention.  [One of my favorite stories in this regard is the conflict between the book store company Amazon and the governments of Brazil and Peru over a proposed .amazon domain name.]  But, in the end, I am coming to the conclusion that names matter less than search functions.  After all (as my friend Martin Libicki recently reminded me) if you want to buy something (say underwear) you don’t navigate to the .underwear domain.  You just type in your search query to your Google/Bing/Safari/Yahoo/etc. search engine and go where that leads you.  For all you care in practice the domain you go to could just be a string of random numbers (a common practice in China, for example) that your search engine identifies as responsive to your query.  The same is true for more politically oriented speech (just try searching for “abortion” and you’ll see the wide range of results).  So the actual domain name seems to matter much less than the search algorithms being employed.

All of this was brought home to me the other day, by this blog post at the Wall St. Journal:  “In a move that experts say could make it harder to spy on Web users, Google is considering giving a boost in its search-engine results to websites that use encryption, the engineer in charge of fighting spam in search results hinted at a recent conference.”  Fundamentally, this would be a good thing for the network — driving users to greater security.  But it also emphasizes a) how relatively irrelevant the IANA function is to that question; b) how dependent we are on search engines; and c) how essential it is that the search engines uses their position as gate-keeper for beneficent purposes.

Second Circuit Orders Release of Al Awlaki Memo

Monday, April 21, 2014 at 11:35 AM

The U.S. Court of Appeals for the Second Circuit has reversed a lower court opinion and ordered the government to release key portions of the legal memos that lie behind the targeted killing of Anwar Al Awlaki. Here’s the opinion, which I have not yet read, by a unanimous three-judge panel. Here’s coverage from the New York Times‘s Benjamin Weiser.

The 52-page opinion, by Judge Jon Newman for himself, Jose Cabranes, and Rosemary Pooler, opens:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act (“FOIA”) presents important issues arising at the intersection of the public’s opportunity to obtain information about their government’s activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs-Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively “N.Y. Times”), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively “ACLU”) appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U. S. Dep’t of Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y. 2013). The suits were brought against the Defendants-Appellees United States Department of Justice (“DOJ”), the United States Department of Defense (“DOD”), and the Central Intelligence Agency (“CIA”) (sometimes collectively the “Government”).  Read more »

Cert Denial Comment from Justice Breyer in Hussain

Monday, April 21, 2014 at 10:28 AM

The Supreme Court this morning denied cert in the Guantanamo habeas case of Hussain v. Obama. A few weeks back, Marty Lederman flagged this case over the Just Security as likely to provoke at least one justice to write a dissenting or concurring statement in connection with the denial of cert. Marty nailed it. Justice Breyer writes the following, suggesting that at least one justice wants to consider the substantive scope of detention authority under the AUMF given a case properly postured and argued for the purpose:

Statement of JUSTICE BREYER respecting the denial of certiorari.

The Authorization for Use of Military Force (AUMF), passed in September 2001, empowers the President to “useall necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by suchnations, organizations or persons.” §2(a), 115 Stat. 224. In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court agreed that the AUMF authorizes the President to detain enemy combatants. Id., at 517–518 (plurality opinion); id., at 587 (THOMAS, J., dissenting). In her opinion for a plurality of the Court, Justice O’Connor understood enemy combatants to include “an individualwho . . . was part of or supporting forces hostile to theUnited States or coalition partners in Afghanistan and who engaged in an armed conflict against the UnitedStates there.” Id., at 516 (internal quotation marks omitted). She concluded that the “detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured,” is “an exercise of the ‘necessary and appropriate force’” that Congress authorized under the AUMF. Id., at 518 (emphasis added). She explained, however, that the President’s power to detain under the AUMF may be different when the “practical circumstances” of the relevant conflict are “entirely unlike those of the conflicts thatinformed the development of the law of war.” Id., at 521. Read more »