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Throwback Thursday: Thanksgiving Edition

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Thursday, November 27, 2014 at 8:35 AM

Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Now Lawfare has decided to get in on the action by means of a new feature. Each week, Lawfare will turn back in time to a specific event, and briefly explain how it relates to today’s security and/or legal environment.  

If you clicked on Lawfare in the middle of Thanksgiving dinner, something must be horribly wrong. Trying to temper the boredom of forced family fun? Desperately looking for conversation starters with Awkward Cousin Martha? Attempting to stave off the relentless tidal pull of a gravy-based food coma? Looking for a relentlessly patriotic reading for your Thanksgiving table? Whatever it is, Lawfare’s got you covered. To celebrate the occasion, we’re throwing back far—real far—with a focus on a unique exercise of executive authority: Presidential Thanksgiving Proclamations. All of them.

Almost all Presidents, with a few notable exceptions, took the time during their tenure to issue a statement in honor of the holiday. But while most sites focus on what the current President’s statement will be, we were feeling gluttonous: Why restrict ourselves to the bland, dry offerings of one Presidential Proclamation when we can cut and paste sentences from all of them into one glorious turducken of a decree?

All of the sentences in the below statement are amalgamated from nearly 250 years worth of Proclamations. Each highlighted link denotes the first word of a different president’s address. While the following does hew to a rough chronological progression, see if you can guess which Presidents said which sentences.

A Synthetic Thanksgiving Proclamation from the Presidency

Forasmuch as it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; and as the United States of America are at present placed in a hazardous and afflictive situation by the unfriendly disposition, conduct, and demands of a foreign power; and as it is likewise a plain dictate of duty and a strong sentiment of nature that in circumstances of great urgency and seasons of imminent danger earnest and particular supplications should be made to Him who is able to defend or to destroy; no people ought to feel greater obligations to celebrate the goodness of the Great Disposer of Events of the Destiny of Nations than the people of the United States.

It has pleased Almighty God to prolong our national life another year. He has permitted us to multiply ships upon our lakes and rivers and upon the high seas; with local exceptions, health has been among the many blessings enjoyed. Under a sense of these infinite obligations to the Great Ruler of Times and Seasons and Events, the falling leaf admonishes us that the time of our sacred duty is at hand. Constant thanksgiving and gratitude are due from the American people, a highly favored people. No great pestilence has invaded our shores. Liberal employment waits upon labor. Abundant crops have rewarded the efforts of the husbandman. Increased comforts have come to the home. The national finances have been strengthened, and public credit has been sustained and made firmer. Read more »

Steptoe Cyberlaw Podcast, Episode #44: An Interview with Sal Stolfo

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Wednesday, November 26, 2014 at 3:36 PM

Our guest for episode 44 of the Steptoe Cyberlaw Podcast is Sal Stolfo, Professor at Columbia University’s Computer Science Department and CEO of Allure Software.  Stolfo brings an attacker’s sensibility to network security approaches usually dominated by defensive thinking.  His approach to computer security includes flooding the network with plausible fake documents wired to alarm when touched by a user.  The alarm, in turn, shuts down a user’s access and prompts for a second form of authentication.  Documents that are successfully exfiltrated persistently attempt to beacon back to the home network, betraying the attacker and his customers long after the hack.  He’s already deploying some of these concepts commercially.  It’s the kind of active defense even the Justice Department should love.

In our news roundup, This Week in NSA is dominated by speculation that the 215 program will never die.  Conventional wisdom says that the metadata program will ride into the sunset on June 1, 2015.  But a “transition” note could allow the program to last for years.   Meanwhile, the NSA director, Adm. Mike Rogers, is warning that China and one or two other countries have the ability to bring down the electric grid in the United States.

The FTC has gone to mediation with Wyndham, but no one is betting that the mediation will succeed.  And the FTC’s settlement with TRUSTe puts the privacy certification company under the FTC’s thumb for years.

Telephone companies have long been the most government-friendly of technology firms, but that may be changing.  Now even the heir of Ma Bell’s name, AT&T, has filed an amicus brief demanding clearer standards before the government could get access to location information.

One solution is for the government to cut out the middleman and get the location information directly from the consumer – by offering fake cell towers to connect to. But that tactic, and the secrecy surrounding “stingray” collection, has its costs.  Baltimore has abandoned a criminal case to keep from describing the technology and how it’s used.  And a North Carolina judge has unsealed hundreds of stingray orders.

In the words of the old country song, how can I forget you if you won’t go away?  Much as we wish the right to be forgotten would go away, that’s looking less and less likely. Google’s Global Privacy Council, Peter Fleischer, has disclosed new details about how the search giant administers the right.  And Norway has (unsurprisingly) followed the rest of Europe in adopting the doctrine.  But most troubling is the news from France, where Google is facing fines of €1000 a day for refusing to apply a French defamation takedown order to its Google.com domain – or, more accurately, for not letting a French judge censor what Americans can read.

Finally, in our first item derived from a listener request (h/t Lee Baumgardner), we look at the regulatorily challenged transport company, Uber, and its potential liability for a steady stream of privacy flaps, including its unwisely but appropriately named “God Mode.”

Tune in next week when our guest will be Troels Oerting the Assistant Director, Head of European Cyercrime Centre (EC3).

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates or topics to [email protected].  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

 


 

Jeh Johnson for Secretary of Homeland Security

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Wednesday, November 26, 2014 at 3:01 PM

Rumor has it, that Jeh Johnson, the current Secretary of DHS, is being considered for appointment as the next Secretary of Defense.  Don’t do it Mr. Johnson.  Don’t do it President Obama.

I say this, not because I think Johnson would do a bad job.  To the contrary, I’m sure that as a dedicated public servant he would do an able job in the position.  I say it, instead, because it would send a horrible message to the employees of DHS and an equally bad message about how we value Homeland Security.  Some might say that creating DHS was a mistake — but having done it we are obliged to make it work if we possibly can.

DHS doesn’t work that well now.  Morale is poor.  Public perception even worse though happily, the IRS is still worse yet.  The Department faces challenges ranging from Ebola in the US to implementation of the President’s new immigration plan (which, whatever its merits, will double the throughput for adjudications at USCIS this year).  In short, this is no time for DHS to be without senior leadership.  And Secretary Johnson has only been on the job for 11 months.  Nothing would be worse than for the public (and the Department’s employees) than to perceive that leadership of DHS is viewed as a “temp” job.

I understand why the President might turn to a trusted counselor for a difficult job.  But Secretary Johnson took on a mission — to see the Department through to the end of President Obama’s term — and he should complete that mission, not toss it aside for a better opportunity.

One man’s opinion …..

What Does the Swiss Coat of Arms Have to do with the Immigration Imbroglio?

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Wednesday, November 26, 2014 at 2:36 PM

If you peruse the darker corners of the U.S. criminal code—as I used to do in my youthful efforts to educate myself in law without going to law school—you’ll eventually stumble across 18 U.S.C. § 708, which bizarrely makes it a federal crime to “willfully use[] . . . for any trade or commercial purpose, the coat of arms of the Swiss Confederation, consisting of an upright white cross with equal arms and lines on a red ground, or any simulation thereof.” The statute appears alongside a number of other oddities of federal criminal law. You probably didn’t know, for example, that it’s a federal crime to fraudulently use the 4H emblem, to make commercial use of the Smokey Bear and Woodsy Owl characters, or to make imitation military cremation urns. I suspect that the many vendors of shirts emblazoned with the Swiss Confederation coat of harms have no idea they are committing a federal crime. On Amazon.com, for example, you can buy this from a third-party vendor:

And not to put too fine a point on it, but my link to this shirt is itself a commercial exploitation of the Swiss coat of arms and thus on its face a violation of the law.

Yet I venture the further guess that the third-party vendor in question is not quaking in fear of federal enforcement in defense of the Swiss coat of arms. Neither is Amazon. And neither, having posted this link in apparent technical violation of the statute, am I. The reason is prosecutorial discretion. No sane executive branch official is going to waste a minute contemplating prosecuting anyone under this law. And, indeed, it appears that no sane executive branch official ever has. I asked Lauren Bateman to run down the enforcement history of the statute. She could find none, though she tells me the Patent and Trademark Office has cited it as a basis to reject trademark applications on occasion. It has been cited only four times in federal judicial opinions, twice in apparent error, once in reference to its historical purpose and once in this amused quip from Judge Richard Posner: “The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising . . . or using ‘Johnny Horizon’ as a trade name without the authorization of the Department of the Interior.” A vibrant trade exists in items branded with the Swiss coat of arms. We don’t even call it a black market. And nobody for a moment raises the question of whether the presidents who, one after another, have rendered this poor sad law a nullity through some collective policy of ignoring Congress’s will have violated their obligations to take care that the laws be faithfully executed.

In the time since President Obama announced his immigration action, a flood of complaints has issued forth from diverse quarters about how the President is ignoring or nullifying the immigration law, how he is violating the Take Clause Clause and supplanting Congress’s will with his own. Immigration policy itself is, except at the margins, beyond the scope of what Lawfare normally talks about, but presidential power is not. And a huge amount of what is being said on the subject strikes me as wrong. So I thought I would lay out some thoughts on presidential discretion, congressional power, the interaction of the two, and how the current immigration imbroglio fits into the discussion.

Read more »

Today’s Headlines and Commentary

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Wednesday, November 26, 2014 at 12:35 PM

Shortly after Secretary of Defense Chuck Hagel announced he would be stepping down, it appears that two top contenders to serve as his replacement have taken themselves out of the running. In a letter to the board of directors of the Center for a New American Security (CNAS), Michele Flournoy, a former undersecretary of defense for policy and the current CEO of CNAS, announced she was not interested in leading the Pentagon. The Washington Post reports that the needs of her family prevent Flournoy from taking the post.

The Los Angeles Times informs us that Senator Jack Reed (D-RI) has also preemptively removed himself from consideration. That apparently leaves only former deputy secretary of defense Ashton Carter among the top contenders for the position.

Foreign Policy notes that although Carter is “respected for his intellect and management skills,” he has a tendency to be “acerbic and condescending.” Two former administration officials believe Air Force Secretary Deborah Lee James, Army Secretary John McHugh, and Navy Secretary Ray Mabus are also contenders for the position of Secretary of Defense.

Whoever is ultimately nominated will face a difficult confirmation, according to Military Times. The Senate’s new Republican majority will likely take the opportunity “to pick apart the White House’s foreign policy and defense spending plans.”

McClatchy reports that Ramadi, the capital of Iraq’s Anbar province, is close to falling to the Islamic State. According to local Iraqi security officials and tribesmen, “a lack of continuous air support and reinforcements has made it impossible to hold that territory.” The fall of Ramadi would be the most significant victory in months for the terrorist militant group.

According to the Daily Beast, efforts to train and equip moderate Syrian rebels to fight Islamic State forces likely will not begin until March or April. Congress approved a “train-and-equip mission” in September. Since then, U.S. officials have been working to vet rebel groups.

Meanwhile, the Syrian government regime yesterday launched at least eight airstrikes on the northern Syrian city of Raqqa, an Islamic State stronghold. The Wall Street Journal informs us that the areas hit were “largely residential or commercial.”

Reuters explains why Russia’s most recent efforts to renew Syrian peace talks are unlikely to prove successful.

Although nuclear talks with Iran have been extended through June, the Guardian reports that negotiators are looking to reach some kind of agreement by January 6, when a new Republican-controlled Congress takes office in the U.S. “After that date, the Democratic leadership will no longer be able to stop a new Iran sanctions bill from going to a vote.”

Still, even with more time, the Associated Press notes that major problems remain. Iran appears to be digging in its heels, refusing to budge on enrichment demands.

Reuters informs us that the U.S. is planning to leave more troops in Afghanistan than originally intended. An additional 1,000 American soldiers may be stationed in Afghanistan “to fill a gap left in the NATO mission by other contributing nations.”

Meanwhile, Afghan President Ashraf Ghani has initiated a full-scale review of his country’s military forces. The AP has details.

Ukrainian officials are again accusing Moscow of dispatching equipment to pro-Russian separatists. According to Reuters, “five columns of heavy equipment were seen crossing onto Ukrainian territory on Monday.”

Still, the Pentagon has not changed its mind about sending military assistance to Ukrainian forces. During a briefing yesterday, defense spokesperson Rear Adm. John Kirby stated, “We continue to evaluate all Ukrainian requests for military aid and assistance but right now the focus remains on nonlethal.” The Hill has more.

Meanwhile, France has delayed transfer of two Mistral-class warships to Russia, citing the current controversy in Ukraine. The LA Times shares details.

Officials have corrected reports regarding Tuesday’s U.S.-led raid in Yemen. Originally, sources stated that troops had freed seven Yemeni citizens and one American, all of whom were being held hostage by al-Qaeda affiliates. The New York Times notes that it was actually six Yemeni nationals, a Saudi, and an Ethiopian who were rescued.

The Pentagon’s Defense Advanced Research Projects Agency (DARPA) is looking to develop a “portable ‘Care Cube’” so that health officials can help Ebola patients without having to wear bulky suits. USA Today has details.

Real Clear Defense explains why future conflicts in the Asia-Pacific region will be land-centric, as opposed to air- or sea-based.

Yesterday, U.S. Magistrate Judge John O’Sullivan ruled that Irfan Kahn, a Pakistani-American man suing the U.S. government for malicious prosecution, has the right to review “up to 700 previously unreleased calls in which he was a participant.” The Federal Bureau of Investigation (FBI) claimed that turning over such information would jeopardize national security. However, Kahn intends to use the calls to demonstrate that the FBI knew he was innocent before charging him with conspiracy to provide financial support to the Pakistani Taliban. The AP reports the story.

The FBI has charged two Somali Americans with conspiring to provide material support to the Islamic State militant group. In May, officials intercepted Abdullah Yusuf before he flew from Minnesota to Turkey. According to the National Journal, Yusuf was arrested yesterday. His partner Abdi Nur, however, is believed to have successfully reached Syria.

And from the Lawfare family to yours – Happy Thanksgiving!

ICYMI: Yesterday, On Lawfare

Phil Walter argued that Congress should require more strategic planning on the part of the President before U.S. troops are deployed to hostile situations.

Rachel Brand explained why it is impossible for the National Security Agency (NSA) to apply the Fair Information Protection Principles (FIPP).

Matthew Waxman examines the import of China’s Air Defense Identification Zone one year since its declaration.

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.

China’s ADIZ at One Year

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Tuesday, November 25, 2014 at 4:10 PM

A year ago this week, China abruptly declared an Air Defense Identification Zone (ADIZ) covering a large area of the East China Sea, including islands the legal possession of which China disputes with Japan.  Over on the Asia Maritime Transparency Initiative – a terrific new online resource for information, analysis and commentary on Asian maritime issues, and for which I serve on the editorial board – there are several essays discussing this controversy from a variety of perspectives.  In a piece titled “China’s ADIZ at One Year: International Legal Issues,” I argue:

Especially because China has sent signals that it might enact another such zone in the South China Sea, this anniversary provides a moment to reflect on the international legality of the East China Sea ADIZ and international rules applicable to it. In general, China’s establishment of an ADIZ is not per se illegal as a matter of international law; however, the requirements China has declared for its East China Sea ADIZ are much broader than recent customary practice by others and China could enforce it in particular ways that would violate international law. Because international law does not yet have much to say about ADIZs, the practices worked out between China, the United States, Japan and others in this case will serve as important baselines for future ADIZs in Asia.

I conclude:

The greatest danger of China’s move is not that it significantly reshapes the core territorial disputes. It is that expanded Chinese military patrols in the air, like its activities at sea, in such close proximity to those of rival players could lead to accidents, provocations, or miscommunications that might easily escalate. So as with maritime activities, for now diplomacy on air activities should focus on creating workable rules of the road and crisis communication mechanisms – and should not be distracted by claims that the ADIZ will substantially affect competing territorial claims. Non-binding codes of conduct would help mitigate dangers in the East China Sea ADIZ. They would also establish a template that could – in the absence of detailed, binding international law on this issue – be used elsewhere should China or other states establish additional zones, especially in other areas encompassing competing territorial claims like the South China Sea.

Today’s Headlines and Commentary

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Tuesday, November 25, 2014 at 1:19 PM

In Washington, analysts and pundits are continuing to pick apart the resignation yesterday of Secretary of Defense Chuck Hagel. In Foreign Policy, David Rothkopf argues that sacking Hagel is not a cure for President Obama’s foreign policy woes; Hagel’s supposedly rocky performance was, instead, “a symptom of the disease.” Several news sources have written about why Hagel was dismissed, with an unnamed senior administration official saying he was not up to the job—and other figures disputing that account. At Politico, Josh Gerstein writes that part of what alienated Hagel from Obama was the former’s reluctance to whittle down Guantanamo’s detainee count. The New York Times reports that if no other senior national security staffers are fired, Hagel’s dismissal only tightens the foreign policy grip of the White House, which has long been accused of micromanagement. And while Hagel might be the most recent Secretary of Defense to clash with the White House, he was certainly not the first, as the Wall Street Journal notes.

Speculation continues to swirl over who Hagel’s successor will be. Foreign Policy writes that finding a candidate that can deal with the multitude of existing challenges will be difficult. The Military Times’ Andrew Tilghman asserts that, regardless of who is tapped, the incoming Defense chief will face major challenges in revamping the Pentagon’s budget, mission and culture. Defense News quotes a Senate source as saying that it is “logistically impossible” to move a nomination this year. The Hill reports that Senator Jack Reed (D-RI), whose name has been mentioned in the past for the post, is not interested.

A nuclear deal between the P5+1 powers and Iran appears to have slipped away again. The New York Times has more on why no agreement was forged by the November 24th deadline. BBC reports that there is “optimism” as all sides nevertheless have agreed to a seven-month extension in talks. According to the report, the parties are aiming to reach a “high-level political agreement” by March 1st and confirm the full technical details by July 1st. Relatedly, Reuters reports that Iran is taking action to comply with an interim nuclear deal.

Some are more pessimistic than this though; in Foreign Policy, Jeffrey Lewis asserts that the Iran nuclear extension is a “death sentence” due to hardliner pressure on both sides. If that is true, it may be time for another reminder: The cost of a war with Iran over its nuclear stockpiles would be incredibly high.

McClatchy brings us news that in the battle for Iraq and Syria, the Islamic State has toughened its tactics in Anbar, carrying out its own “counterinsurgency campaign” intended to root out any local tribes that may be sympathetic to the U.S.-led coalition. In its most recent attack on Ramadi, ISIS did not rely on local Sunni tribes for support, instead launching the attack on its own.

Read more »

Memo to NSA: Stop Saying You Apply the FIPPs

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Tuesday, November 25, 2014 at 11:51 AM

The intelligence community has no set of general principles for judging the privacy impact of their programs.  Some privacy scholars believe that the Fair Information Protection Principles (FIPPs) serve this purpose and can apply to intelligence programs as they do to myriad other government programs.  The NSA itself said in a recent report on collection under Executive Order 12333 that it was applying the FIPPs for the first time. But however appealing it may seem to apply generally applicable privacy principles to intelligence programs, it is simply impossible for the intelligence community to apply the FIPPs literally.    

The FIPPs are a bad fit for clandestine intelligence programs.  This is obvious from the text of the FIPPs and from the fact that the NSA, after saying it was applying the FIPPs to 12333 collection, turned right around and said it could not apply two core FIPPs principles (transparency and individual participation).  Although I applaud the NSA for taking a step forward in assessing the privacy impact of its activities, there is little point in adopting a set of principles that the agency admittedly cannot apply.  Instead, the intelligence community should craft a new set of information privacy principles for intelligence programs.  I suggested as much to the government witnesses during a recent PCLOB public hearing, and ODNI privacy officer Alex Joel agreed that it would be a good idea to have a new privacy framework for the intelligence community.  

The version of the FIPPs that NSA said it is applying was published in 2008 by the Department of Homeland Security. Some of its principles—data security, for example—can and should apply to data collected in clandestine intelligence programs just as they do in other government programs.   But the DHS FIPPs includes some provisions that cannot possibly be implemented in a clandestine intelligence program and lacks other important principles that can protect individual privacy in that context. 

The most obvious problem with applying the FIPPs to intelligence programs is the “individual participation” principle.  The DHS FIPPs state that the agency “should involve the individual in the process of using [personally identifiable information] and, to the extent possible, seek individual consent for the collection, use, dissemination, and maintenance of PII.” It is quite obvious why this requirement cannot be applied to a clandestine intelligence program such as NSA’s collection under Section 702 of FISA or Executive Order 12333.  For that matter, it is not clear how DHS could apply this rule to all of its own activities. While this principle makes sense for the many DHS programs in which individuals come into contact voluntarily—or at least wittingly—with the agency, DHS has law enforcement and intelligence functions to which the individual participation principle cannot fully apply.    Read more »

Risking Money and Risking Lives: Disproportionate Congressional Oversight

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Tuesday, November 25, 2014 at 8:00 AM

The Government Performance Results Act (GPRA) requires the Executive Branch to conduct detailed strategic planning prior to spending money.  The laws that govern the President when he introduces the men and women of the United States (U.S.) Armed Forces into hostilities, specifically Article II of the Constitution, the War Powers Resolution, and the Authorizations for the Use of Military Force for both Iraq and Afghanistan, have no similar strategic planning requirement.  Congress should fix this disparity to demonstrate that it cares as much about how the men and women of our Armed Forces are introduced into hostilities as they do about the way money is spent.

In 1993, Congress wrote the GPRA “[t]o provide for the establishment of strategic planning and performance measurement in the Federal Government, and for other purposes.” On January 4th, 2011, President Barack Obama updated existing legislation by signing the GPRA Modernization Act of 2010 into law. The GPRA requires each agency within the Executive Branch to write a strategic plan that covers a four year timespan. These are highly detailed documents that contain a mission statement, general goals and objectives, and a description of how the goals and objectives are to be achieved.  The text of the GPRA Modernization Act contains a variation of the word “strategy” 27 times, the word “mission” 7 times, a variation of the word “goal” 151 times, and “objective” 16 times.  The repeated use of these words demonstrates the serious view Congress takes of the strategic planning done by the Executive Branch prior to spending money.  There is nothing comparable in any of the statutes that variously authorize the use of military force or require other forms of reporting to Congress in relation to the use of force.  This is a striking contrast.

The President’s authority as Commander-in-Chief of the U.S. Armed Forces is established in Article II of the Constitution and limited by the War Powers Resolution. The President can only introduce the U.S. Armed Forces into hostilities pursuant to a declaration of war, specific statutory authorization, or a national emergency created by an attack—or an imminent attack—upon the U.S., its territories or possessions, or its armed forces.  When exercising this authority the President must submit a report to Congress within 48 hours setting forth the circumstances necessitating the introduction of U.S. armed forces into hostilities; the constitutional and legislative authority under which such introduction took place; and the estimated scope and duration of the hostilities or involvement. Although this report provides some details to Congress, it does not speak to strategic planning as does the GPRA.  Additionally, the words “strategy”, “mission”, “goal”, or “objective” are nowhere to be found within the War Powers Resolution. The lack of these words—particularly when contrasted with the detail required by the GPRA—suggests that Congress is comfortable allowing the President to introduce the men and women of the U.S. Armed Forces into hostilities without a strategic plan.

The War Powers Resolution was signed on November 7, 1973, whereas the first GPRA was signed 20 years later. Based upon this difference in time, it may not be appropriate to compare the congressional reporting requirements of the War Powers Resolution to the strategic planning requirements detailed in both version of the GPRA.  However, since Bill Clinton signed the first GPRA in 1993, the President has been given additional specific statutory authorities whereby he can introduce the U.S. Armed Forces into hostilities.

The President recently exercised these additional statutory authorities when introducing the men and women of the U.S. Armed Forces into hostilities against the Islamic State of Iraq and the Levant (ISIL).  There is ongoing debate regarding the legal basis to strike ISIL, which centers around the President’s authority under Article II of the Constitution, Public Law 107-40 signed on September 18, 2001 authorizing the use of U.S. Armed Forces against those responsible for the attacks of September 11, 2001, and Public Law 107-243 signed on October 16, 2002, “Authorization for Use of Military Force Against Iraq.” Regardless of which authority the President is currently using to strike ISIL, none of them requires strategic planning as the current GPRA does.  One is entitled, particularly given the blood and treasure expended during over ten years of overseas contingency operations, to wonder why not.  And at least in my view, they really should.

Somewhere between the voluminous information the President must provide to Congress as part of the annual budget request and the scarce information he must provide when introducing the men and women of the U.S. Armed Forces into hostilities, a balance must be struck.  As a taxpayer, I am pleased that Congress demands so much strategic planning as part of the budget process.  As a Veteran, I am disappointed that Congress does not demand a near-equal level of strategic planning when the President sends the men and women of the U.S. Armed Forces “once more unto the breech.” I look forward to the day when a morally courageous member of Congress puts forth legislation that enhances the reporting requirements contained in the War Powers Resolution or does the same in future authorizations for the use of military force.  At a minimum, this reporting should mirror the strategy, mission statement, goals, and objectives structure in both versions of the GPRA.  If Congress truly wants to serve its constituents, it should focus its oversight equally on the expenditure of funds and the risking of lives.

Phil Walter is a former Infantryman, Intelligence Officer, and Counterterrorism Planner.  He currently serves in a policy role in the Executive Branch of the United States Government. The views expressed in this article are those of the author alone and do not contain information of an official nature.  Phil Tweets @philwalter1058 and his blog can be viewed here:  www.philwalter1058.com 

A Quick Summary of Oral Argument in In Re Directives

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Monday, November 24, 2014 at 4:30 PM

Earlier this Fall I wrote about how certain materials from the In Re Directives litigation before the Foreign Intelligence Surveillance Court of Review (“FISCR” or “Court”) had been declassified. Last Monday, the Office of the Director of National Intelligence released the transcript from oral argument in the FISCR case, which was held on June 19, 2008, before Chief Judge Bruce Selya, and Senior Circuit Judges Morris Arnold and Frank Winter.

By way of reminder: Yahoo! had petitioned for review of an earlier decision by the Foreign Intelligence Surveillance Court (“FISC”) which had rejected the tech company’s challenge to directives issued under the Protect America Act of 2007 (“PAA”), and targeting persons—foreigners and US persons alike—thought  to be abroad.  As prescribed by the PAA, the directives had required Yahoo! to open up a still-undisclosed number of user accounts to government surveillance. But Yahoo! protested.  Before the FISCR the company argued that, to the extent it was directed at US persons, the surveillance ran counter to the Fourth Amendment’s warrant provision; or alternatively that, to the extent that a “foreign intelligence surveillance” exception to the warrant requirement permitted the surveillance in principle, the surveillance was nevertheless unreasonable. Ultimately, neither claim carried the day, as the FISCR sustained the directives’ lawfulness and ordered compliance with them.

Below you’ll find a thematically-organized account the argument’s highlights.  Read more »

Huawei at Fed Ex Field

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Monday, November 24, 2014 at 3:16 PM

So … Huawei has announced that it will sponsor the Wi-Fi at Fed Ex field for the Suite level.  Any one out there worried, in the least, that Huawei might tap the communications there?  Given how “movers and shakers” all use the Suite level, the richness of the target environment is insanely large.  And how many Washingtonians log into their work emails from Fed Ex?  Or take selfies of themselves?  Maybe even with a non-spouse?  The mind boggles at the intelligence opportunities for Huawei.  Unless it’s all a great counter-intel op ….

Confiscating Passports: Is this a Good Way to Stop Citizens from Joining Jihadists in Syria and Iraq?

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Monday, November 24, 2014 at 2:00 PM

Thousands of westerners, including at least 100 Americans and more than 500 Britons, are known to have joined ISIS or the Al Nusra Front in Syria and Iraq. In the United States and the United Kingdom small numbers may have already come back, and some of these may have nefarious plots in mind. An undisclosed number of  Americans fighting with terror groups are said to have returned to the United States and four British jihadis who swore allegiance to ISIS were arrested in London, thwarting a terror attack on the streets of London.

In recent weeks, reports (here and here, for example) have indicated that some of the traveling would-be jihadists have become disillusioned, and want to return home. Despite this, more Westerners continue to leave their homes to join the jihadists. In September and early October, the media was full of reports of the growing trend of women being recruited to ISIS or al-Shabaab, both from the United States and United Kingdom. Now it appears that would-be jihadis are booking passages on cruise ships as a way of getting into Syria and Iraq without being stopped at airports in Turkey.

Once the would-be jihadists return home, those that are suspected of having committed terrorist offenses can be arrested and charged with various offenses. Those who cannot immediately be charged with any offense can be put on no-fly lists to prevent further travel overseas, and they can be placed under surveillance, with a view to arresting and prosecuting them if they take sufficient steps towards committing a terrorist offense.

But what can be done to prevent westerners from leaving their homes to join the extremists in the first instance? In the United States and the United Kingdom, several people have been arrested prior to departure, because law enforcers have a wide range of terror-related charges to choose from. In Europe many countries are scrambling to pass laws to stop would-be jihadists in their tracks. For example, in France, legislation is being debated that would block the travel of citizens suspected of being involved in terrorism, or of wanting to join terror groups abroad.

Two of the most controversial measures currently being widely contemplated in different countries are the stripping of citizenship and confiscation of passports. Read more »

Live Q&A Today with NSA’s Civil Liberties and Privacy Director

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Monday, November 24, 2014 at 12:12 PM

The Office of the Director of National Intelligence is hosting an “online, interactive” Q&A today with Rebecca Richards, the NSA’s point person for civil liberties and privacy. Users can submit their questions via Tumblr here, and Ms. Richards will answer them live beginning at 2 PM EST.

Video: President Obama on Resignation of Secretary of Defense Chuck Hagel

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Monday, November 24, 2014 at 11:35 AM

Here is the video of President Obama’s remarks, followed by a few statements from Sec. of Defense Chuck Hagel. The proceedings start at about 32:30.

WSJ on the FAA’s Draft Rules for Commercial Use of Small Drones

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Monday, November 24, 2014 at 11:32 AM

I missed yesterday’s intriguing little report from Jack Nicas and Andy Pasztor, which opens:

Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.

The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.

While the FAA wants to open the skies to unmanned commercial flights, the expected rules are more restrictive than drone supporters sought and wouldn’t address privacy concerns over the use of drones, people familiar with the matter said.

The agency also plans to group all drones weighing less than 55 pounds under one set of rules. That would dash hopes for looser rules on the smallest drones, such as the 2.8-pound Phantom line of camera-equipped, four-rotor helicopters made by China’s SZ DJI Technology Co. Similar-sized devices are seen as the most commercially viable drones and have surged in popularity in the last two years.

Small-drone supporters say such models are less risky to people and structures than heavier drones like Boeing Co. ’s ScanEagle, a gas-powered, 40-pound aircraft with a 10-foot wingspan that can stay aloft for more than 24 hours. ConocoPhillips Co. uses the ScanEagle to gather data on Arctic ice pack and whale migrations.

In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.

Two quick reactions.  First, and as the Journal piece suggests, industry will vigorously oppose this approach, likely more so than it has opposed the FAA’s handling of domestic UAS integration to date.  This isn’t merely because the agency’s draft rules, if made final, would torpedo Jeff Bezos’ dream of on-demand drone delivery. It’s also because the the agency seems poised, among other things, to take some cross-cutting, integration-slowing actions—like conditioning FAA permission to fly any small unmanned aircraft on the operator’s prior experience flying manned aircraft. Yikes.

The Journal article also says rather ambiguously that the forthcoming draft “wouldn’t address privacy concerns over the use of drones.”  Perhaps this means only that the FAA, given its longstanding desire not to get into the drone privacy business generally, might acknowledge privacy’s importance or hand down superficial privacy requirements, while also stressing FAA jurisdiction over air safety only.  (There’s precedent for the agency’s “drone privacy matters but we only touch it a little bit” approach: the FAA has taken it at experimental UAS test ranges throughout the country; and Congress mostly has followed suit, emphasizing the FAA’s safety mission while also asking it. among other things, to study privacy issues raised by drone integration.)

But there’s also another possibility, too.  Yesterday’s news also might mean that there’s nothing in the draft rule with respect to privacy at all.  A final rule along those lines would effectively leave drone-related privacy regulation to existing law, along with operators’ pledges—to the extent made—to obey voluntary privacy standards.  (We learned some time back that the White House will order the National Telecommunications and Information Administration to promulgate voluntary guidelines for certain commercial operators.)

Of course the draft rule hasn’t yet been released—and it will only be a draft rule, after all.  Perhaps the contours will change during the comment process.

Today’s Headlines and Commentary

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Monday, November 24, 2014 at 10:32 AM

Secretary of Defense Chuck Hagel will step down from his post, according to the New York Times. Hagel will do so “under pressure” from the administration, but the exact reasons are still unclear. Per the Times:

The officials described Mr. Obama’s decision to remove Mr. Hagel, 68, as a recognition that the threat from the Islamic State would require a different kind of skills than those that Mr. Hagel was brought on to employ. A Republican with military experience who was skeptical about the Iraq war, Mr. Hagel came in to manage the Afghanistan combat withdrawal and the shrinking Pentagon budget in the era of budget sequestration.

The Washington Post reports that President Obama has signed off on a continued American presence in Afghanistan even after combat operations end. While the number of American troops in Afghanistan will be dramatically diminished, at least 1,000 military personnel are expected to remain in Afghanistan through 2016.

Khamma Press, the Afghan news agency, reports that a drone strike killed six militants in Nuristan province on Sunday.  The drone strike followed a bloody exchange between militants and soldiers and soldiers of the Afghan National Army at a military base on Saturday.

The Times takes a look at the situation on the ground in Afghanistan. In many rural areas surrounding Kabul, the government and army forces have been rendered obsolete, the Taliban instead reigning in those parts. Though American forces have been working hard to “flush” the area of insurgents, the Afghan Army has proved to be a somewhat lackluster partner in the efforts.

America’s partnership with the Afghan Army isn’t the only worrisome one. The Times reports that the U.S. effort to combat the Islamic State in Iraq is being undermined by the Iraqi army’s lack of organization and potential corruption within the ranks.

The United States will furnish Sunni tribesmen in Iraq with powerful artillery weapons to help in the push against the Islamic State. Reuters explains that the Pentagon will spend $24.1 million on arming the Sunni groups. That amount is but a small fraction of the $1.6 billion that is being requested to train Iraqi and Kurdish forces. You can see a breakdown of the proposed budget here.

Of all the issues the Pentagon is dealing with, now it can add semantics to its list. The LA Times explains that its operation name for the U.S. mission against the Islamic State, “Operation Inherent Resolve,” has been the butt of many jokes in the media.

The Hill tells us that Senator Rand Paul (R. – Ky.) is calling for the United States to formally declare war on the Islamic State. Here on Lawfare, Jack has already addressed Paul’s move. He’s not impressed.

Vice President Biden apparently has begun to mend American-Turkish relations. The Post reports that after a fruitful visit to Turkey, President Biden pledged more than $100 million in humanitarian assistance to help feed and care for the thousands of Syrian refugees in Turkey. Though no other formal agreement was made between Biden and Turkish President Erdogan, officials from both governments were optimistic about a long term relationship and shared interests in addressing the ongoing crisis in Syria.

It seems the talk will go on: negotiators plan to extend talks on the future of Iran’s nuclear program.  The New York Times reports.

After all the conspiratorially-flavored talk about the attack on the American compound in Benghazi on September 11, 2012, the Republican-led House committee report found “no wrongdoing by Obama administration officials,” according to the AP.  The latter tells us that the House Intelligence Committee report was released relatively quietly on Friday evening, reinforcing many of the findings of the six previous reports on Benghazi.

In surveillance news, Motherboard profiles the experiences of Michael Ossmann, a famous researcher in the hacker community.  After Der Spiegel published leaked, classified information regarding surveillance  gadgets produced by NSA’s Advanced Network Technology (ANT) division, Ossman reportedly to to work—that is, he quickly learned how to replicate some of the gadgets, which he now sells on his website.

But fear not.  If all that publicly available spygear has increased your privacy woes, then there’s help. Tech2 has released a primer on how best to protect your privacy using different web browsers.

On Friday, we relayed the news that five Guantanamo detainees were transferred to Georgia and Slovakia. On Saturday, the Pentgaon announced the release of one more detainee, Muhammed Mursi Issa al Zahrani. The Times reports that al Zahrani, a Saudi citizen, is being transferred back to his home country. The Pentagon has indicated that the public should anticipate more prisoner releases in the coming weeks. There are 142 men left at Guantanamo.

And Russia’s recent provocations have Finland asking: should we join NATO? Read about it in the Washington Post

ICYMI: This Weekend, on Lawfare

Peter Marguiles addressed President Obama’s recent executive action on immigration.

Jack also weighed in on the confusing immigration situation, and how the immigration debate is reflective of a wider shift in the administration’s attitude towards executive power.

In this week’s Foreign Policy Essay. Victor Asal, Richard Legault, Ora Szekely and Jonathan Wilkenfeld discuss the “buffet” of options that political groups have when choosing to engage with the state and why some groups pick violent over nonviolent action.

For our 101st podcast episode,  we posted a recording of a debate between Bob Litt, general counsel to the DNI, Jameel Jaffer of the ACLU, and Bill Banks of Syracuse University law school on the Foreign Intelligence Surveillance Act.

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

On the Oddity of the Patriot Act Sunset Provisions

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Monday, November 24, 2014 at 10:00 AM

Last week, the New York Times‘s Charlie Savage had what seems to me a pretty big, if under-discussed, scoop—or perhaps we should say that he channelled to the public a pretty big scoop by former Senate Intelligence Committee chief counsel Michael Davidson. The news, which certainly caught me unawares, is that the Patriot Act sunset provision—stated in Section 105 of this law and extended until June 1, 2015 in this one—doesn’t quite say what everyone—from advocates to members of Congress to the administration itself—seems to think it says. Writes Savage:

The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

“It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

In the story, Savage quotes a number of sources dismissing Davidson’s point—or diminishing its significance. Jameel Jaffer of the ACLU, for example, “said it would be ‘perverse’ to interpret the exception as permitting the government to ‘bootstrap itself into permanent Section 215 authority.’” And the administration itself appeared not to be treating this language as a valve that releases the pressure to pass new legislation:

The White House press office said the administration would study the provision and was not ready to comment about it, but provided a statement expressing disappointment that the [USA FREEDOM ACT] had failed. It repeated that the program faced expiration.

“Going forward, we will work with Congress to formulate and pass legislation that strikes a similar balance,” the statement said. “We recognize the importance of doing so urgently—but carefully—given the impending June expiration of important national security tools.”

For what it’s worth, here’s my sense of why Davidson’s discovery does, in fact, change a lot in the short-term, though probably little in the longer term.

The reason Davidson’s point matters is that it turns a hard-stop deadline of June 1, 2015 for new legislation into a very soft deadline. The government has a lot of national security investigations focused on counterterrorism open at any given time. Given that the 215 program involves orders to the telephone companies to produce all metadata records, on the theory that the group of them is—as a whole—relevant to an investigation, the wording of the sunset would appear to allow any one of these investigations to support continuation of metadata collection for as long as that investigation persists. Some of these investigations, moreover, will persist for a very long time—years and years and years. So the text, in principle, perhaps perversely seems to me to do pretty nearly what Jaffer says it would be “perverse” to read it to do—that is, bootstrap itself to long-term, if not quite permanent, 215 authority, at least as to some broad investigations.

This seems to me have significant political implications vis a vis the renewal the government purports to need by June 1. That governmental need gives civil libertarians their primary legislative leverage in the FISA reform discussions. If the 215 program is important, after all—I’m not convinced myself that it is all that important, but the government regards it as important—and it turns into a pumpkin on June 1, then it follows that the administration needs legislation by that date. But what if it doesn’t really expire on that date? If what expires is merely the authority to seek orders under 215 for new investigations, then the deadline is really less of a deadline and more of the day in which the tool begins a perhaps slow process of degrading in utility. All of a sudden, the government’s negotiating hand seems a lot stronger because its timeframe is potentially a lot longer.

To use a college metaphor, this turns out not to be a class in which the professor won’t accept late papers; it’s a class in which the professor gives incrementally lower grades for increasing lateness. And relatively long delays may produce relatively small incremental decrease in grades. In such a class, lateness may be a good tactical move if the result is a better paper.

But here’s the thing: the government still does need a bill—for a variety of reasons. It needs a bill because the authority to use 215 for metadata will ultimately degrade—though at what pace I do not purport to know. It needs a bill as well because it uses 215 for things other than the metadata program. More importantly, it needs a bill because its litigation position in the variety of cases challenging the metadata collection program would be immeasurably stronger if the program interacted differently with its statutory authority. And its litigation position would be far weaker if, in addition to relying on a theory of relevance that many (including me) regard as somewhat attenuated, it relies on an underlying authority that has itself sunset except with respect to increasingly aging extant investigations.

Relying on this sunset language for any length of time will, in short, add significant litigation risk even as the utility of the 215 toolbox gradually declines.

In short, Davidson’s point is undoubtedly significant and undoubtedly strengthens the intelligence community’s hand—already strengthened by Republican gains in the midterm election—in the complicated negotiation over 215′s revamping and renewal. But I think the effect will be subtle. It’s another reason to believe the intelligence community is likely to come out of the current legislative chess match in a better position (from its point of view) than that reflected by the USA FREEDOM Act compromise text that the Senate last week killed.

Secretary of Defense Chuck Hagel is Stepping Down “Under Pressure”

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Monday, November 24, 2014 at 9:30 AM

Helene Cooper of the New York Times has the scoop today. There is still speculation as to why Hagel is being forced out — stay tuned for more news. Here are some key passages from the article:

Defense Secretary Chuck Hagel is stepping down under pressure, the first cabinet-level casualty of the collapse of President Obama’s Democratic majority in the Senate and a beleaguered national security team that has struggled to stay ahead of an onslaught of global crises.

The president, who is expected to announce Mr. Hagel’s resignation in a Rose Garden appearance on Monday, made the decision to ask his defense secretary — the sole Republican on his national security team — to step down last Friday after a series of meetings over the past two weeks, senior administration officials said.

The officials described Mr. Obama’s decision to remove Mr. Hagel, 68, as a recognition that the threat from the Islamic State would require a different kind of skills than those that Mr. Hagel was brought on to employ. A Republican with military experience who was skeptical about the Iraq war, Mr. Hagel came in to manage the Afghanistan combat withdrawal and the shrinking Pentagon budget in the era of budget sequestration.

But now “the next couple of years will demand a different kind of focus,” one administration official said, speaking on the condition of anonymity. He insisted that Mr. Hagel was not fired, saying that he initiated discussions about his future two weeks ago with the president, and that the two men mutually agreed that it was time for him to leave.

But Mr. Hagel’s aides had maintained in recent weeks that he expected to serve the full four years as defense secretary. His removal appears to be an effort by the White House to show that it is sensitive to critics who have pointed to stumbles in the government’s early response to several national security issues, including the Ebola crisis and the threat posed by the Islamic State.

Even before the announcement of Mr. Hagel’s removal, Obama officials were speculating on his possible replacement. At the top of the list are Michèle Flournoy, the former under secretary of defense; Senator Jack Reed, Democrat of Rhode Island and a former officer with the Army’s 82nd Airborne; and Ashton B. Carter, a former deputy secretary of defense.

It’s worth noting here that Chuck Hagel’s handling of the recent crises has been under scrutiny for a while. DefenseOne reported two weeks ago that Hagel’s approval rating among national security workers and troops was only 26%.

A Charlie Brown Congress

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Monday, November 24, 2014 at 9:12 AM

Sometimes metaphors are subtle … but sometimes they just slap you in the face.CB Xmas  So it has been the past two days as my wife and I went walking on Capitol Hill.  As we did we saw the Congressional Christmas tree being planted in all its splendor.

Except it wasn’t that splendid.  It reminded us of nothing more than a Charlie Brown Christmas tree — small, spindly, with too few branches.  [I sooooo wish that I'd brought a camera but .... the picture adjacent gives you an idea.]

So why the metaphor?  We saw some valiant workers from the Architect of the Capitol working on the tree and stopped to chat with a couple of Capitol Hill police officers to ask them what the workers were doing.  Turns out they were “fixing” the tree by adding more branches to it.  In order to make it work, they were stapling branches on with nail guns and using wire mesh to hold the extra branches in place.  When (if?) they successfully complete their work we will have a perfectly wonderful facsimile of a real Christmas tree on the Capitol grounds.

And that it seems to me captures Congress these days — it doesn’t really work right; but we are trying to hide that from everyone by covering it over with baling wire and fake branches.  Sigh ……

Analysis of Senator Paul’s Proposed Declaration of War (and Authorization of Force) Against the Islamic State

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Monday, November 24, 2014 at 8:15 AM

Senator Paul has proposed a declaration of war and authorization of force against the Islamic State.  A few reflections, drawn in part from an article I wrote a decade ago with Curtis Bradley:

1.     The United States has declared war in five armed conflicts in American history: The War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.

2      It’s not clear why Senator Paul wants to make the conflict against the Islamic State the sixth declared war in U.S. history.  Perhaps it is because Article I, Section 8 expressly gives Congress the power “To declare war,” and not the power to authorize force.  But this alone would not be a good reason.  Since at least the Quasi-War in the 1790s, and continuing until today, it has been clear that Congress has the power – perhaps implied in the Declare War clause and surrounding war-related clauses – to authorize the President to use force in the absence of a declaration of war.

3.     There is much debate about the original understanding of the Declare War clause, and the role of declared wars at the founding.  At least one role for declared wars was probably to trigger various international law rights and duties (of belligerency and neutrality) under international law.  But whatever role declared wars served under international law in the 1780s, and whatever the original understanding of the Declare War clause might have been, international law has changed quite a lot.  Since World War II, “war” has generally been replaced with concepts like “use of force (in the U.N. Charter) and “armed conflict” (in the Geneva Conventions).  In the modern world. it is not clear what if any purpose might be served under international law by a war declaration, and that is perhaps why there have been few if any war declarations in any the hundreds of wars since World War II.

4.     Under domestic law, a declaration of war is not a substitute for an authorization of force.   Every declared war in U.S. history also contained a congressional authorization for the President to use force.  So too does Senator Paul’s.  In addition to declaring war against the Islamic State in Section 2(a), Senator Paul also proposes in Section 2(b): “The President is hereby authorized and directed to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by” the Islamic State.  This is a narrow authorization of force.  Among other things, it authorizes force only in Iraq and Syria and, if I am reading “threats poised thereto” correctly, it does not authorize the President to use force against the Islamic State to protect threats to the American homeland.  I am not sure why Senator Paul would want to limit the President’s authorized force to address threats posed to American people and facilities in Iraq and Syria and not to the homeland, and I am not sure whether it matters since the President always has Article II.  But the juxtaposition between the full-throated declaration of war in Section 2(a) of Paul’s draft and the very narrow authorization of force in Section 2(b) is strange, and has no precursor in the five earlier declared wars.  Among other things, the disjunction between Sections 2(a) and 2(b), and the narrow geographical scope and purposes of the force authorization, highlight that Senator Paul is proposing to use a war declaration in a conflict far different, and much less momentous, than prior U.S. declared wars.

5.     What, then, might be added in 2014 by including a declaration of war with an authorization of force against the Islamic State?  There are a few old statutes that are triggered by war declarations specifically, see, e.g., 2 U.S.C. § 198(b) (2000) (concerning adjournment by Congress).  I doubt that Senator Paul included a war declaration to trigger these statutes.  Another possibility is that adding the war declaration to the force authorization might be designed to signal the seriousness of the conflict, at home (to the American people) and abroad (to allies and adversaries).  The very oddity of a war declaration might thus serve an educative function, and might spark more serious reflection and debate about the conflict.  I speculate that this reason, along with a vague intention to adhere to the text of Article I, is why Senator Paul has proposed a war declaration.

6.     Senator Paul’s proposal has other interesting features besides its war declaration and narrow-purpose force authorization.  It authorizes ground troops for narrow purposes in Iraq and Syria.  It sunsets its declaration and authorization against the Islamic State after one year, it abrogates the 2002 AUMF, and it sunsets the 2001 AUMF after a year.  It also expressly states that its authorization of force does not extend to other organizations or to Islamic State affiliates, and it contains a rule of construction that precludes the 2001 AUMF from authorizing force against the Islamic State.  If all of these provisions came into force, Congress would either need to reauthorize force against the Islamic State, al Qaeda, and AQ affiliates in a year or the President would have to rely on Article II to fight those threats (and, if the 2001 AUMF was not re-authorized, the President would additionally likely need to release GTMO detainees not scheduled for trial).

7.     In sum, the declaration of war element to Senator Paul’s proposal that has received all of the attention serves little functional legal role but might serve to raise awareness about the stakes of the conflict with the Islamic State.  The work in Senator Paul’s proposal is done by his narrow and temporally short authorization of force against the Islamic State and his narrow construction and repeal or sunset of prior AUMFs.