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The Lawfare Podcast, Episode #92: Benjamin Wittes on “A Constitution Under Chronic Stress”

Saturday, September 20, 2014 at 1:55 PM

This week, the nation once again celebrated Constitution Day, for which Ben gave an address at Kenyon College, which we provide to you in full. In his talk, Ben covered what he calls a “Constitution Under Stress,” and how the post-9/11 world has catalyzed a prolonged debate over liberties in the United States and in turn, how the Constitutional framework has shaped our response to the challenges of drones, cyber security, surveillance, detention, and extended overseas military operations. Ben provides an overview of the challenges that remain in sorting out these issues and offers a few thoughts on how these tensions can be reconciled.

The Encryption Wars Continue

Saturday, September 20, 2014 at 12:31 PM

For quite a while it has been the case that properly implemented encryption will defeat efforts to crack it (at least using current technology). Yet it has been the case for an equally long time that very few people actually use encryption to protect their vital secrets – not journalists, not criminals, and most assuredly not the (perhaps mythical) “average layman user.”

Why is that the case? Nobody knows for sure of course, but speculation reasonably focuses on a range of possibilities: ignorance; complexity; laziness and hubris lead the list. User error is a frequent issue. Of all of these, I tend to think complexity and laziness lead the list – that is, most encryption programs are difficult to use and need to be installed. They don’t have “one button” applications and they are not “on” by default.

That seems to be changing. And the reason is, as many have predicted, less about the utility of encryption and more about the business necessity of appearing resistant to government surveillance. That explains Apple’s recent decision to make encryption the default in its new operating system iOS8, that is being delivered in the new iPhone6. For data stored on a device the user (and only the user) will have the passphrase to unlock the data. The move is so widely lauded that Google moved quickly to follow with its own Android operating system.

There are a number of legal and practical implications of this transition, almost all of which reset the balance between security and liberty in a way that tends to favor more libertarian impulses:

  • The transition will essentially render moot last terms decision in Riley v. California (proving once again that by the time the Supreme Court addresses a technological issue the issue is irrelevant!). Riley held that, as a general matter, law enforcement will need a search warrant to access data on a cell phone. While that certainly raises the bar for access, it does not do so to an impossible degree. Probable cause is, after all, a standard that law enforcement establishes every day around the country.
  • By contrast, however, the new operating systems act technologically to divest Apple and Google of any ability to respond to a warrant – they can’t produce what they don’t have. So this Fourth Amendment question now becomes converted to a Fifth Amendment question – whether or not the owner of the cell phone can be compelled to unlock his phone by providing the passphrase. Unlike the Fourth Amendment context, this privilege is absolute. If courts recognize the Fifth Amendment protection then the data on the phone is absolutely unavailable to law enforcement – which would be a significantly greater crimp in law enforcement (or counter-terrorism) investigations.
  • That makes the growing debate over the extent of a Fifth Amendment privilege even more salient. When last I wrote about it, the latest word was an Eleventh Circuit case In Re: Grand Jury Subpoena (US v. Doe), which held that disclosure of the passphrase could not be compelled. That debate is not, however, over. Earlier this year, the Massachusetts Supreme Judicial Court ruled to the contrary. In Commonwealth v. Gelfgatt, the Court held that disclosing the passphrase disclosed only the capacity to decrypt, which was a “foregone conclusion” and did not implicate any proof of authenticity, control, or knowledge. That seems to me a highly suspect conclusion – but it is evidence that the legal question is not settled in the least.
  • Notwithstanding all of the strum und drang there may actually be less to these announcements than meets the eye. Why? Because the encryption default lock applies =only= to data on the phone itself. As we’ve noted before, unless you encrypt data before you store it with a cloud service provider then it is the provider’s encryption, not the user’s, that matters. And, of course, most Apple users store data in the iCloud (they like to synchronize data across all their devices) and Android users store their data in Google’s cloud storage for the same reason. And that sort of synchronicity remains the default “on” function in both operating systems. So, all that data stored behind a hard encryption lock on your phone is accessible from your cloud storage provider as a back up. And that data may sometimes be accessed with a subpoena – that is, on a basis requiring less than probable cause. So the only way to be completely privacy protective is to turn off the cloud storage portions of your new iPhone or Android tablet – hardly a way to advance efficiency and productivity (and also, perhaps, a sign that law enforcement fears are overstated).
  • Meanwhile the same business reasons that are driving the adoption of encryption are likely to frustrate any effort to end the synchronicity default. Apple makes its money by offering you the seamless cross-platform product. And Google’s business model involves its access to your data for advertising purposes. So don’t expect a default “off” switch for cloud storage anytime soon.
  • Finally, it is worth pondering the larger individual trade-off question. While I certainly respect the opinion of those who perceive government surveillance as a threat, I sometimes wonder if they are forgoing too many technological advantages in the pursuit of personal privacy. Encrypting your data and turning off your synchronization means that if you forget your passphrase your data is gone … totally gone. It means that you can’t automatically see a picture you took on your iPhone when you go to create a family newsletter on your Mac. One answer, of course, is differential encryption (protecting only sensitive data), which is what I do with my client files. But overall, we sometimes don’t recognize, I think, the efficiency/security tradeoff.

The Week That Was: All of Lawfare in One Post

Saturday, September 20, 2014 at 9:38 AM

On Friday, Ben pointed out that while it may be fashionable to blame the NSA as the only “bad guys” collecting your data; many organizations, including even the Library of Congress, are actively collating and analyzing your personal information.

Wells noted that the US government has appealed the dismissal of French oil tanker charges in the capital military commission case against Abd al-Rahim al-Nashiri.

Ben commended Senator Tim Kaine of Virginia for his assiduous work, rare in Congress these days, in introducing a well-informed, albeit imperfect, bill to authorize the fight against the Islamist group.

On Thursday, John welcomed the long-delayed nomination of Brian Egan to be the new State Department Legal Adviser, and urged the Senate to quickly confirm him.

Jack flagged comments made by Senator Udall at Wednesday’s Senate Arms Services Committee hearing regarding US covert actions to train 2-3,000 moderate rebels in Syria. He also tipped us off about the CIA’s recent declassification of hundreds of articles from its in-house journal, “Studies in Intelligence.”

Paul Rosenzweig assessed the constitutionality of the FBI’s new facial recognition program as well as what kinds of risks it poses to civil liberties and privacy.

Jack argued that two of the draft AUMFs currently under consideration in Congress do not really limit authorization for the President to use force against the Islamic State, even though they purport to do so.

Jane noted on Wednesday that the government filed a response in the Al-Bahlul v. United States case and summarized its arguments.

Bobby asserted that while the President’s invocation of the 2001 AUMF may “stick” insofar as it is not challenged by Congress or the courts, this does not mean everyone accepts the alleged merits of the administration’s approach, as Cody pointed out earlier with respect to Senator Kaine’s AUMF. Cody also shared Rep. Adam Schiff’s ISIS AUMF, as well as the amendment released by the House Rules Committee that would authorize the DoD to begin training and arming moderate Syrian rebels.

Paul speculated as to whether cybersecurity has “jumped the shark” with the recent announcement of the new TV series, CSI: Cyber.

Wells promised that while he could not personally attend a two-day pre-trial hearing in the case of United States v. Abd al Hadi al-Iraqi, Lawfare would follow it closely. He shared the Chief Prosecutor’s statement on the hearing and later linked to Matt Danzer’s read-out of the afternoon’s proceedings.

Kenneth Anderson and Matthew Waxman shared their recently published article on law and autonomous weapons, which was co-written with Daniel Reisner, the former head of the IDF’s International Law Department, entitled, “Adapting the Law of Armed Conflict to Autonomous Weapon Systems.”

Alex Ely combed through the documents from the In Re Directives litigation that were declassified last week and summarized the key features of the FISCR’s 2008 ruling.

Bobby continued Lawfare’s coverage of the Transatlantic Dialogue on International Law and Armed Conflict, and linked to a response by Lawrence Hill-Cawthorne to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. He also shared the discussion paper that Geoff Corn authored on “how criminal responsibility relates to battlefield regulation.”

Stewart Baker brought us the 34th episode of the Steptoe Cyberlaw Podcast, which featured an interview with Dr. Phyllis Schneck, the Deputy Undersecretary for Cybersecurity at the Department of Homeland Security’s National Protection and Programs Directorate (NPPD).

Jane noted that the appellees in the Hatim v. Obama case filed for an en banc rehearing and summarized their arguments. She also pointed out that the D.C. Circuit denied on Monday the appellees’ motion in Klayman v. Obama to televise the oral argument. The appellees subsequently filed a similar motion for rehearing en banc.

Cody linked to a conversation the Brookings Institution hosted entitled, “The Future of Civilian Robotics. The lively discussion featured Ben as moderator and Wells, John Villasenor, and Gregory McNeal as panelists.

On Monday, R. Taj Moore provided an overview of the draft UN Security Council resolution aimed at mitigating the threat posed by foreign terrorist fighters (FTFs).

Ben criticized the New York Times’ Monday oped by philosophy professor Firmin DeBrabander that claimed drone warfare means the end of democracy in the United States.

In this week’s Foreign Policy Essay, Audrey Kurth Cronin, Distinguished Service Professor at George Mason University’s School of Policy, Government, and International Affairs, argued that without a clear idea of what the end of the war on terror looks like, the US’s strategy is “fundamentally flawed.”

On Saturday, John pointed out that the administration still has not explained its international legal basis in attacking ISIL in Syria, and urged it to do so.

In this week’s Lawfare Podcast, Ben, Bobby, Wells, and Foreign Policy magazine’s Shane Harris discussed the WPR, the prospects of Congress voting on authorization for action against ISIS, and the Obama administration’s legal theory for action, among other topics.

And that was the week that was.

Al-Nashiri: USG Appeals Dismissal of French Oil Tanker Charges

Friday, September 19, 2014 at 2:48 PM

The United States today appealed an adverse ruling in the capital military commission case against Abd al-Rahim al-Nashiri. The Guantanamo detainee stands accused, among other things, of orchestrating the 2000 attack on the U.S.S. Cole—and in playing a role in another attack against the M/V Limburg, a French oil tanker.

Only legally controversial counts regarding the latter are it issue for purposes of the new appeal. During pre-trial litigation, prosecutors had alleged in their briefs—but did present evidence to support—facts that, in the government’s thinking, were sufficient to confer military commission jurisdiction over the Limburg-related charges. That prompted the military judge, Air Force Col. Vance Spath, to knock them out last month.

At the time, I speculated that the United States would ask seek reconsideration pronto, and they did. This week, Judge Spath rejected prosecutors’ motion in that regard (the ruling is noted on the commissions’ website but not yet available); I now understand that the United States today has filed an interlocutory appeal, to the United States Court of Military Commission Review, regarding the Limburg charges

Stay tuned…

Today’s Headlines and Commentary

By and
Friday, September 19, 2014 at 1:16 PM

Last night, Scotland rejected rupturing its 307-year old bond with the United Kingdom, with 54-55% of registered voters voting against independence. According to the Washington Post, the tally for the “no” camp was higher than most polls predicted, in light of an unprecedented, 85% turnout across the territory. In a speech after the loss, SNP leader Alex Salmond conceded defeat but said that he would “hold British leaders accountable for pledges they made,” including promising to disperse ever more power from London to Holyrood, the Scottish Parliament. For his part, UK Prime Minister David Cameron said that the result was “clear” and that the Scottish referendum represented “an opportunity to change the way the British people are governed.” The BBC has details.

Yesterday, the Senate approved the White House’s plans to train and arm Syrian rebels by a vote of 78-22. However, the vote set up what some are already calling the “Syria Cliff,” as legal authority to train the moderate Free Syrian Army will expire on December 11. Tucked at the bottom of a New York Times article on the vote is this revealing line: “There were moments that made it seem as if the Senate were debating something far more routine than military action. Only 15 senators spoke, and the chamber was often empty.”

The vote comes as a widening gap between Obama and senior U.S. military officials has become visible. According to the Washington Post, retired General James Mattis became the latest high-profile military skeptic yesterday, telling the House Intelligence Committee that “Half-hearted or tentative efforts, or airstrikes alone, can backfire on us and actually strengthen our foes’ credibility.”

However, the coalition that President Obama and senior leadership have been building is beginning to act. Reuters reports that French fighter jets have struck ISIS targets inside Iraq earlier today. French President Francois Hollande’s office released a statement noting that the strikes hit a logistics depot in northeast Iraq and that there would be further operations in the coming days.

Even so, as air strikes intensify, the much more difficult ground operations to take back key Iraqi cities such as Mosul and Fallujah must begin. The Times notes that in recent days, military officials have been increasingly willing to acknowledge that rolling back ISIS will require American Special Forces on the ground to call in airstrikes and direct Iraqi troops as they advance on ISIS positions. Military officials plan to use Iraqi security forces, Kurdish fighters, and local Sunnis, but assembling those ground forces will take time. The New York Times details Iraq’s new national guard strategy that will set up local forces under the authority of provincial governors.

The Long War Journal has detailed coverage, including maps and videos, of the ongoing siege of the northern Syria of Kobane, where ISIS fighters are battling Kurdish forces for the third consecutive day.

Finally, Defense News reports that ISIS may be conducting its on pivot to the Pacific as the militant group looks to expand its reach into East and Southeast Asia.

In the New York Times, Charlie Savage, citing our own Jack Goldsmith, writes that Congress’s refusal to act on ISIS could create a precedent that grants the executive branch even greater war powers. Elsewhere in the Times, Mark Landler explains how the White House’s definition of war, combat operations, and ground troops so narrow that is rejected by “virtually every military expert.”

Finally, the Daily Beast suggests that “even a top Democrat thinks Obama’s legal case for war makes no sense.”

According to AFP, the new round of talks on Iran’s nuclear program open today at the United Nations and are slated to continue until the end of next week. Analysts predict there will not be any new breakthroughs in this latest round of negotiations, which are being held between Iran and the P5+1 – the UK, China, France, Russia, and the US, plus Germany.

In an address to a joint session of Congress yesterday, Ukrainian President Petro Poroshenko urged the United States to support his country militarily against Russia by supplying “heavy military equipment.” However, after a later meeting with President Obama, Poroshenko accepted a US aid package of $46 million of nonlethal kit that fell short of his request, saying, “I got everything possible.” The New York Times has details on the equipment being provided, as well as other assurances President Obama made to the Ukrainian government in its continuing confrontation with Russia and separatist rebels.

While sanctions appear to be hobbling manifold sectors across the Russian economy, if the Kremlin has its way, one will be impervious: the Yamal natural gas plan. Yamal is a $27 billion natural gas venture hoping to tap into the tremendous reserves hidden under the Siberian plain and double Russia’s stake in the worldwide LNG market. Yet that success is now imperiled; while Yamal’s shareholders have already dumped $6 billion into the project, increasingly-strict US and EU sanctions threaten to throttle their funding. Still, the Russian government, which holds the third-largest foreign exchange reserves at $460 billion, has pledged to support the program no matter what. Reuters has more.

In its continuing campaign against Islamist militants from Boko Haram, the Nigerian military and police have been accused by Amnesty International of not just condoning torture of captured suspects, but making it such “an integral part of policing in Nigeria that many stations have an informal torture officer.” According to the BBC, Nigeria’s police have denied the allegations, saying they have a “zero tolerance for torture.” Amnesty International asserts that the organizations’ methods include “beatings, nail and teeth extractions, and other sexual violence.”

The Telegraph divulges that the International Committee of the Red Cross is negotiating a secret prisoner swap between the Nigerian government and Boko Haram to exchange some of the militant group’s jailed senior leaders for the 220 schoolgirls Boko Haram captured earlier. This is the first official confirmation that the Nigerian government is involved in negotiations with Boko Haram, but Nigeria’s president, Goodluck Jonathan, continues to deny that any talks are taking place.

Reuters reports that on Thursday in New Delhi, Chinese President Xi Jinping responded to Indian assertions of Chinese border violations in the Himalayas by saying, “China is not a warlike nation.” While officials have branded President Xi’s trip to India as deepening Sino-Indian ties, with over $20 billion in deals signed over the past few days, a recent border skirmish along the two countries’ disputed boundary in the Himalayan plateau is overshadowing bilateral talks. Still, officials did confirm that soldiers pulled back from their positions near Ladakh in an effort to ease the tensions.

According to Time, the White House announced on Thursday that Richard Verma will be the new US ambassador to India. After his confirmation by the Senate, Verma will be the first Indian-American to hold the post. His nomination comes just before President Obama greets Indian Prime Minister Narendra Modi to the United States on September 29th and attempts to broker deals with him to offset China’s growing influence. US officials denied Modi a visa to visit the US in 2005 when he was chief minister of Gujarat, in part because of his alleged role in communal violence there that killed over 1,000 people.

According to Reuters, Aafia Siddiqui, commonly known as Lady al-Qaeda, is abandoning her most recent appeal. The 42-year old neuroscientist received an 86-year sentence in 2010 for attempting “to shoot and kill a group of FBI agents, US soldiers, and interpreters who were about to interrogate her for alleged links to al-Qaeda.” Siddiqui has become a banner for militant groups around the world, who have demand her freedom. Siddiqui is trying to be released to Pakistan through diplomatic channels, but her lawyer, Robert Boyle, believes she does not fully understand US law and may be giving up her only chance at release.

On Thursday, the CIA released a comprehensive grouping of declassified articles from its internal journal, “Studies in Intelligence.” Jack covered the release on for Lawfare. The documents offer a perspective into the agency’s research on topics ranging from al-Qaeda to how to manage “public relations crises.” The Washington Post has more.

Finally, if you are in the market for an aircraft carrier, look past Russia. Kyle Mizokami of War is Boring writes on the harrowing ordeal of the INS Vikramaditya and the Russian construction firm that almost sunk it.

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.

Breaking News: Government Agency Bulk Collecting Twitter Data

Friday, September 19, 2014 at 10:06 AM

I was at the National Security Agency yesterday giving a Constitution Day speech and I learned details of a shocking collection program: The government is bulk collecting all traffic on Twitter. Under a program menacingly called “Bulk Data in Social Media” and abbreviated—appropriately enough—as BDSM, Twitter has been providing all public traffic since 2010 for a massive government database that, as of early last year, contained 170 billion tweets. The goal of this program? To “collect the story of America” and to “acquire collections that will have research value” to analysts and others. Believe it or not, Twitter has been cooperating with the BDSM program since its inception in 2010 without any court order or FISA Court review. Even tweets you delete from accounts and from accounts that have been deactivated have been collected. And what’s more, the government appears to use no minimization procedures in processing this material; U.S. person data and that of non-U.S. persons are intermixed. Even worse, the government is actively contemplating the use of the BDSM database to examine activity that is clearly protected by the First Amendment: “broad topics of interest . . . run from patterns in the rise of citizen journalism and elected officials’ communications to tracking vaccination rates and predicting stock market activity.”

Why would NSA do all this?

It wouldn’t. The agency I’m talking about here is the Library of Congress. That said, the only part of the above description that isn’t true is the name “Bulk Data in Social Media” and the abbreviation BDSM; the actual program is called, more prosaically, the “Twitter Archive at the Library of Congress.” Ironically, while researchers all over—including you—will be able to search and collect the tweets, including the deleted tweets, from 15-year-olds all over the world, NSA will probably not. After all, it just can’t go willy-nilly through databases containing material on U.S. persons.

So here’s the question: If you were shocked when you read the first paragraph of this post and relieved when you read that the agency doing all this collection is not NSA but the good guys over at the Library of Congress, and that the good guys are actually planning to make that data available widely, why did you have those reactions? And do those reactions make sense?

Honorable Mention: Sen. Tim Kaine

Friday, September 19, 2014 at 9:21 AM

I have spent a lot of time over the past several years—as have many Americans—marveling at the horribleness of the United States Congress. And like many people of a romantically historical bent, I have often wondered how political institutions created and once occupied by such intellectual giants as were ours came to be dominated by people of such middling talent and limited intellectual horizons. Partly because my contempt for the general performance of the institution is as strong as it is, I want to take a moment to appreciate the work that Senator Tim Kaine has been doing over the past several weeks and months, which really is a picture of what we, as citizens, ought to demand from our elected representatives.

As readers know, Kaine introduced the other day a bill to authorize the fight against the Islamic State. Jack has already commented upon the bill’s merits and perhaps promblematic interactions with the 2001 AUMF. I may well have more to say about the bill’s text and implications later on too.

For now, however, I want to highlight briefly the terrific process Sen. Kaine undertook in putting this bill together. He read a lot about both the problems that call out for legislation and the various possible approaches to that legislation. He became conversant in granular details of the issues. He sought input from what seems to be a pretty wide variety of sources. While his staff work has been exemplary, his own personal work has been extremely impressive too. He has acted, in short, exactly the way one would want a legislator thinking about a big problem of international affairs, democratic government, and separation of powers to act. In an age in which congressional approval ratings often barely make the double digits, it’s worth noting that some members—agree or disagree with them—are working hard to do their jobs.

At Last, a Legal Adviser Nominee!

Thursday, September 18, 2014 at 11:01 PM

This afternoon, President Obama finally nominated a new State Department Legal Adviser — Brian Egan, who currently serves as Deputy Counsel to the President and NSC Legal Adviser.  Here is Brian’s bio:

Brian James Egan is Legal Adviser to the National Security Council and Deputy Assistant to the President and Deputy Counsel to the President at the White House, positions he has held since 2013.  Previously, he was Assistant General Counsel for Enforcement and Intelligence at the Department of the Treasury from 2012 to 2013.  Mr. Egan was Deputy Legal Adviser to the National Security Staff as well as Special Assistant to the President and Associate Counsel to the President from 2011 to 2012.  He served as Deputy Legal Adviser to the National Security Staff from 2009 to 2011.  He was an Attorney-Adviser at the Department of State from 2005 to 2009, and from 2000 to 2005 he was an Associate at Goodwin Procter, LLP (formerly Shea and Gardner) in Washington, D.C.  Earlier in his career, he was a paralegal in the Antitrust Division of the Department of Justice in Washington, D.C. and San Francisco, California.  Mr. Egan received a B.A. from Stanford University and a J.D. from the University of California, Berkeley School of Law.

Although inexplicably delayed, this is a smart choice.   Brian is an experienced public international lawyer who is widely respected in the national security community.   He is well-known to the President and the NSC Principals, including Secretary Kerry, and he knows the hot issues facing the Obama Administration, including the Islamic State, Russia/Ukraine, Iran, and Syria.  (I had served as NSC Legal Adviser prior to serving as State Department Legal Adviser and found the prior White House and interagency experience extremely beneficial.)   Brian has the additional advantage of having previously served as a career lawyer in the State Department Legal Adviser’s office (including during the four years while I was Legal Adviser), so he knows the Department and most of the lawyers in the Legal Adviser’s office already.

The Senate should act quickly to confirm him.  The Administration needs a Legal Adviser to explain its international legal positions and coordinate with foreign governments.

Today’s Headlines and Commentary

Thursday, September 18, 2014 at 2:30 PM

It’s decision day in Scotland. Over 4 million eligible voters have the chance today to vote on breaking the 307-year union with the United Kingdom and going it alone as an independent country. The latest polls seem to have given the “no” camp a narrow lead, but it’s anybody’s guess now. The BBC has pictures of Scotland residents going to the polls, and the New York Times reports on the conflicting feelings of pride and pragmatism inherent to many voters’ calculations. The Guardian has a live feed of the vote as it evolves throughout the day and a map of referendum declaration times by constituency.

ISIS released a new video today that is startlingly different from others. In this clip, a captive British journalist, John Cantlie, stares calmly into the camera and explains the group’s message while simultaneously castigating Western countries for heading into an unwinnable war. The Times has more.

The Times also writes that in Australia, police have thwarted beheading attempts by ISIS supporters in Sydney. Officers raided more than a dozen properties and have taken six people into custody, in addition to identifying a suspected ringleader. The planned target(s) of the beheading plot remain unclear, but could have simply been random people.

In Washington, the House of Representatives voted on Wednesday to authorize aid to Syrian rebels locked in a fight against ISIS. According to the Times, the 273-to-156 vote authorized the training and arming of 5000 “moderate” Syrian rebels in its first year at sites in Saudi Arabia. The vote was a rare bipartisan initiative that came in the wake of a personal appeals by President Obama for its passage. Still, the Washington Post writes that the proposal found detractors on both sides of the aisle: Democrats, more than 40% of whom opposed the proposal, worried it would lead to new military campaigns in the region without a clear strategy, while Republicans fretted that the proposal was too limited. The Senate is expected to vote on it today, where Foreign Policy reports it may find a skeptical audience.

That skepticism appears reflected in the general public; according to a new New York Times/CBS poll released today, for the first time since he was elected president, more Americans disapprove of President Obama’s management of terrorism than approve of it. While 71% and 69% favor airstrikes against ISIS militants in Iraq and Syria, respectively, only 39% approve of how President Obama is handling the situation there, while 48% disapprove.

In an effort to stave off conflicting stories and simplify the message, the White House published a press release of 5 things to know about the campaign against ISIS in Iraq and Syria, in addition to linking to the speech President Obama gave on the subject yesterday in Tampa, Florida.

In an article at Politico, Philip Ewing writes that ever since the rise of ISIS, US Secretary of Defense Chuck Hagel has had to renounce his earlier caution towards intervening in Syria in favor of selling a new war on Capitol Hill. Needless to say, his term at the DOD “has not turned out the way most people expected.”

In the latest instance of the White House and the Pentagon talking past each other over the necessity of ground forces in the battle against ISIS, Gen. Ray Odierno warned Wednesday that victory over ISIS would only succeed “with the use of ground forces.” According to the Times, his comments came a day after Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, said before the Senate Armed Services Committee that “American ground troops might be needed in Iraq.”

The Wall Street Journal reports that the President Obama plans to exert a high degree of control over airstrikes against ISIS militants in Syria, and may go so far as “to require that the military obtain presidential signoff for strikes in Syrian territory.” The requirements for the campaign in Syria are far more restrictive than those for the one in Iraq, and are meant to reduce the possibility that the US is drawn deeper into the Syrian civil war.

Muslim groups across the UK are calling for the release of British hostage Alan Henning. According to Reuters, more than 100 Muslim leaders signed the letter, which was sent to the Independent newspaper. The Times writes that the UK is having to second-guess its participation in an attack on ISIS abroad because of the impacts such a campaign might have on extremist Muslims at home. Up to 500 Britons have joined militant Islamist groups in Syria so far.

In Iraq, a series of bombings have killed at least 15 around Baghdad. According to the Times, no group has claimed responsibility, but the attacks come as ISIS seeks to increase its territorial holdings around the capital.

The same newspaper also writes that ISIS seized 21 villages in northern Syria and encircled a Kurdish city, prompting a commander to request help from other Kurdish forces in the area. The Guardian has more on the advance of ISIS from its strongholds in Raqqa and Deir al-Zour provinces towards Kobani. Additionally, the Syrian Observatory for Human Rights reported on Thursday that a surveillance drone was observed for the first time over ISIS-controlled territory near Aleppo. The operator of the drone remains unclear.

The Times has news that the Syrian army under Bashar al-Assad is stepping up air attacks and assassinations against ISIS and other anti-government rebels. Reuters reports that the Syrian army is spread thin, but is still powerful and successfully repelling rebels and Islamist militants in some areas. Still, the situation remains tense; just this week, insurgents pushed into an area of Damascus that had been free of attacks for over a year and half.

In Politico, commentators ask: “is this a new war on terror?” Opinions vary, but Lawfare contributor John Bellinger suggests that, “as a matter of international law, both administrations have treated the U.S. confrontation with al-Qaeda and associated groups as an “armed conflict,” and the Obama administration is very likely to do the same with ISIL.”

At the National Security Network, Bill French and J. Dana Stuster released a policy brief entitled, “Navigating an AUMF for the Islamic State: Toward a High-Standard Authorization.” They offer the following advice for constructing a new AUMF: “First, Congress should ensure that the Administration meets it burden of justifying an escalation of conflict and demonstrates the soundness of its developing, but incomplete, strategy…Second, if the Administration can meet its burden, any AUMF against the Islamic State should be constructed to take into account American interests relevant to the appropriate scope of the conflict.”

According to the Guardian, local clerics in Saudi Arabia have declared ISIS terrorism a “heinous crime” under sharia law. The fatwa by the country’s senior clerical leadership comes amid a continuing crackdown by state authorities against extremist groups.

Turkey is reportedly mulling an anti-ISIS buffer zone along its border with Syria and Iraq. President Recep Tayyip Erdogan, who announced the news, gave no further indication as to when or how the zone would be constructed. The BBC has more. In a report entitled, “Turks and Arabs,” Tarek Osman of the Cairo Review of Global Affairs examines the Turkish-Arab relationship vis-a-vis the viability of the anti-ISIS coalition the US is seeking to construct. Over at Reuters, Andrew Finkel claims that Turkey won’t, and maybe can’t, help against ISIS.

More tragic news out of insurgent-held northern Syria: as many as 50 children are reportedly dead after a medical mix-up or sabotage tainted a measles vaccine. The Times has more.

The Iran nuclear negotiations resume in New York this week, although analysts are not expecting any breakthroughs. On the eve of the talks, Iranian Foreign Minister Mohammad Javad Sharif claimed that the US was “obsessed” with sanctions on Iran.

The Post reports that Shiite rebels have reached Shamlan, a suburb of the Yemeni capital of Sanaa. The rebels are currently besieging Iman University, an institution run by Sunni radicals in the area.

In Afghanistan, militants murdered the 7th journalist this year. Palwasha Tokhi, a reporter at Bayan Radio, received a knock on her door from someone claiming to have a wedding invitation for her. Once she stepped outside, she was stabbed fatally. 2014 is by far the deadliest year on record for journalists since the Taliban were ousted from the country. The Times has more.

Somini Sengupta, also at the Times, argues that while airstrikes in Iraq may be an easy sell internationally, similar actions in Syria are bound to invite controversy and rancor. Russia has already promised that if the UN Security Council does not sign off on airstrikes within Syria, actions taken there would be illegal under international law.

Speaking of Russia, prominent Russian writer Mikhail Shishkin writes in the Guardian that Putin’s invasion of Ukraine is a “black hole” for Europe and is leading towards a “pre-war” state. For his part, Putin today alleged that Western sanctions against Russia run contrary to the principles of the World Trade Organization, and that Russia would develop its domestic market in response. Reuters has more.

President Obama is meeting with Ukrainian President Poroshenko today in Washington. In a rare address before a joint session of Congress, President Poroshenko said that the Ukrainians were fighting a “war for the free world” against Russian aggression. He urged the US government to provide both non-lethal and lethal arms, but BBC reports the administration is unlikely to approve the latter. There are preliminary reports that President Obama will announce a $46 million security assistance package for Ukraine, but will “stop short of providing lethal aid.” Steven Pifer and Strobe Talbott of the Brookings Institution argue why President Obama should give Ukraine defensive weapons.

In response to Ebola’s continuing spread across West Africa, United Nations secretary general Ban Ki-moon announced on Wednesday that the UN would establish a new mission in the region to coordinate groups against the deadly virus. The Times has details. Fox News reports that a French staff working in the region with Doctors Without Borders contracted the disease today, and will reportedly be evacuated to France.

The Times of Israel reports that the future of the UNDOF force is in doubt as Syria continues to disintegrate. In the words of one ex-liasion officer: “their mandate is just not relevant anymore.” Late Wednesday, Israeli Foreign Minister Avigdor Lieberman assured US Secretary of State John Kerry that Israel will support US efforts against ISIS, but will also be conscious of sensitivities among coalition members regarding its participation.

A top US cybersecurity official is in Tel Aviv to speak at the Fourth Annual International Cybersecurity Conference at Tel Aviv University. Christopher Painter, Coordinator for Cyber Issues, is attending the four-day conference focusing on evolving cyber technologies. Israeli Prime Minister Benjamin Netanyahu gave the keynote address.

According to the Times of Israel, Hamas leader Mahmoud al-Zahar declared today that Hamas will not break the ceasefire in Gaza after the September 26th deadline for talks, saying the “ceasefire continues and is not one month long.” He also criticized political leader Khaled Mashaal for relocating to Qatar instead of Lebanon. Indirect talks on a long-term truce are slated to begin within a week between Palestinians and Israel. Also on Thursday, Ynet reports that Saudi Arabia agreed to transfer $500 million for reconstruction in Gaza. Finally, the New York Times quotes jailed Fatah leader Marwan Barghouti as saying that the Gaza war was a victory for Palestinians, and that the resistance’s focus should turn towards boycotts that make Israel’s occupation of the West Bank too costly.

Chinese President Xi Jinping’s visit to New Delhi appears to be bearing fruit. The two leaders announced a raft of trade deals in recent days, including Chinese promises to cooperate in developing India’s civilian nuclear energy sector and to invest $20 billion over the next five years into Indian infrastructure projects. That number, while substantial, is less than some analysts had been expecting. While bilateral trade is growing rapidly, hitting $70 billion last year, the two countries share mutual suspicion of each other, and have had a tense standoff near their disputed border in the Himalayas. Just last week, Indian officials asserted that hundreds of Chinese troops crossed the frontier between the two countries. In addition, Indian officials are also concerned about the country’s growing trade deficit with China. The Guardian has more.

In China, moderate Uyghur leader Ilham Tohti goes on trial on charges of separatism, where he could receive life in prison, or even the death penalty. The New YorkTimes has more details.

And in Pakistan, liberal professor Mohammad Shakil Auj, famous for his liberal views on religion, was shot dead in Karachi on his way to an Iranian cultural center.

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Senator Udall Discusses Covert Action in Syria to Train 2-3K Moderate Rebels

Thursday, September 18, 2014 at 1:46 PM

From yesterday’s Senate Arms Services Committee Hearing (at about the 2:23 mark):

Senator UDALL (NM):  And my question to you has to do with – and this is all public information, but everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years. And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?

Secretary of State KERRY:  Uh, Senator, I hate to — I hate to do this, but I know it’s been written about in the public domain, that there is, quote, “a covert operation.” But I can’t — and I can’t confirm or deny whatever that’s been written about and I can’t really go into any kind of possible program.

Senator UDALL: OK, well, I want to say to Chairman Menendez, to me the key here on effectiveness is what has happened these past two years.  So I think we should have a briefing, by our Committee, specifically on what has gone on in that area from our intelligence people.

Declassified Articles from the CIA’s In-House Intelligence Journal

Thursday, September 18, 2014 at 12:41 PM

Via  Steve Aftergood, I learned that the CIA “has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence.”  The articles are here.  I have just skimmed the articles—there appear to be several hundred—and I do not know which ones were previously classified and unavailable to the public.  But on the whole they look fascinating.

The FBI’s Facial Recognition Program

Thursday, September 18, 2014 at 8:30 AM

Earlier this week, the FBI announced the completion of its “next generation” facial recognition program.  The system, now “fully operational” will house more than 52 million faces, which (assuming no duplication) is roughly 1 in 6 Americans.  The system is said to be only moderately effective — it will typically return 50 possible matches for an inquiry and operates to the level that there is an 85% chance that the correct identity will be on the list.  Still, that seems a vast improvement from the broader sea of identity matching problems.

Still, the new program raises a number of interesting legal and policy questions.  Here are just a few:

  • Is it Constitutional?  Almost certainly under current doctrine, I think.  The Court has approached the issue of limits on large scale data collection but has, so far, declined to revise its Fourth Amendment doctrine.  The recent cell phone case, Riley v. California, may hold out some hope for challenges, but in general since the photos are collected from public sources the Court is likely to deem the collection of photos as not of Constitutional significance.  Indeed, to the extent that the data base is limited to mug shots of arrestees, it seems likely that the collection would be presumptively Constitutional, much as DNA collection was approved in Maryland v. King.
  • Are there any Federal statutes that limit facial recognition technology?  None that I am aware of [anyone know of any?].  Indeed, “since 1921, a series of Federal statutes have granted the Attorney General broad authority to collect and preserve general identification records, criminal identification records, and other records, and to exchange these records and information with, and for the official use of, authorized officials of the Federal Government, including the United States Sentencing Commission, the States, cities, and penal and other institutions. Current statutory authority is primarily codified at 28 U.S.C. § 534.”
  • Are there privacy or civil liberties risks?  Probably.
  • The FBI says that it will only use the system to match photos to mug shots.  But little is known about the predication for the matching.  According to the FBI, the new system “will provide an increased ability to locate potentially related photos (and other records associated with the photos) that might not otherwise be discovered as quickly or efficiently, or might never be discovered at all. However, this additional privacy impact is outweighed by the advantages of being able to better locate responsive information–within information already lawfully acquired by the FBI–permitting better personal identifications and more complete and timely investigative analysis, including more effective and efficient identification of perpetrators and generation of leads to potential suspects.”

  • The greater danger, it seems, lies in the potential for additional integration of this new database with other data sources (both biometric and non-biometric).  Thus, the privacy challenge seems more to lie in the differential increase in capability combined with the threat of misuse, rather than in any direct injury to civil liberties.


The Draft AUMFs for the Islamic State Do Not Limit Congressional Authorization on Ground Troops, or Geography, or Associated Forces

Thursday, September 18, 2014 at 8:12 AM

The two most promising Islamic State AUMFs I have seen are the one sponsored by Representative Schiff and the one sponsored by Senator Kaine.  Both drafts, in different ways, purport to limit the authorization for the President to use force against the Islamic State in at least three respects: (1) They authorize force only in Iraq and Syria, (2) They do not authorize ground troops (except for training or rescue situations, and the like), and (3) They do not authorize force against associated forces (though Kaine’s does if a certain report is filed).

The draft AUMFs appear to be entirely ineffective in limiting congressional authorization to use force against the Islamic State in these three respects.  The reason is that the limitations in the draft AUMFs, by their terms, apply only to the specific authorizations in the draft AUMFs.  They do not affect Congress’s authorization of force under the 2001 AUMF.  The Obama administration interprets the 2001 AUMF as an independent authorization of force against the Islamic State, and the 2001 AUMF does not contain any of the limitations.  Assume that one of the draft AUMFs becomes law.  If the President decides that he wants to use ground troops in combat against the Islamic State, or that he wants to use force against Islamic State in Lebanon, or that he wants to go after forces associated with the Islamic State, he can simply choose to base his action on the 2001 AUMF.  And he could still maintain that Congress authorized the action despite the newer AUMFs.

If Congress wants to limit its authorization of force as applied to the Islamic State concerning geography, ground troops, and associated forces, it must  also specifically amend the 2001 AUMF to make plain that the 2001 AUMF itself does not authorize force against the Islamic State outside of Iraq and Syria, or against associated forces of the Islamic State, or involving ground troops against the Islamic State.   (I note that the Schiff AUMF sunsets the 2001 AUMF after 18 months, and thus would eliminate all independent authorizations under the 2001 AUMF 18 months after the new Islamic State AUMF comes in to force.)

Government Files Response in Al Bahlul v. United States

Thursday, September 18, 2014 at 6:57 AM

Last month Guantanamo detainee Ali al Bahlul filed his opening brief in Al Bahlul v. United States, in a bid to overturn his conviction for conspiracy to commit war crimes, the single military commission conviction against Bahlul that the D.C. Circuit left standing in its July 14, 2014 en banc ruling (the court vacated his convictions for material support and solicitation). Yesterday the government filed its response.

The new 96-page filing tracks the four-part structure of the petitioner’s brief, and leads with the government’s central argument: that Congress acted within its Article I powers in making conspiracy a crime triable by military commission. The government contends that to challenge his conspiracy conviction, Bahlul relies on the erroneous premise that the Define and Punish Clause is the only available basis for congressional codification of offenses subject to trial by military commission, when in fact Congress’s authority to codify such offenses stems from its broad Article I war powers, coupled with the Necessary and Proper Clause. The government further asserts that  “longstanding practice” confirms that Congress may make non-international law offenses triable by military commission, and that this position is consistent with the reasoning of Ex parte Quirin, in which the Supreme Court looked to domestic precedents, and not merely international law, when deciding whether spying can be lawfully tried by military commission. Even if Congress’s authority to codify offenses rose under the Define and Punish Clause alone, the government argues, that provision combined with the Necessary and Proper Clause allows Congress to proscribe conspiracy to commit offenses that are themselves violations of the law of nations.
Responding briefly to the petitioner’s remaining arguments, the government contends: (2) Bahlul’s trial by military commission for conspiracy did not violate any right to a jury trial in an Article III court, (3) Bahlul’s conviction does not violate the First Amendment, and (4) the 2006 Military Commissions Act does not impermissibly discriminate against aliens in violation of the equal protection component of the Due Process Clause.
For more on the case, check out the numerous amicus briefs we flagged last month, all filed on behalf of the petitioner: by (1) the National Institute of Military Justice, (2) First Amendment Scholars and Historians and Montana Pardon Project,  (3) the Japanese American Citizens League et al., (4) Robert D. Steele and other former members of the U.S. intelligence community, and (5) Professor David Glazier.
Oral argument is scheduled for October 22, 2014.

Too Soon to Assess the President’s Invocation of the 2001 AUMF as to ISIS?

Wednesday, September 17, 2014 at 4:17 PM

Over the past week there has been much talk about the President’s invocation of the 2001 AUMF in connection with ISIS. Many (including me) expressed considerable surprise, and doubt, about the merits of that argument. Which raises the question: will anything come of objections? One view is that this ship has sailed. Writing today at Opinio Juris, for example, Peter Spiro concludes that the President’s 2001 AUMF argument is likely to “stick.”

If by “stick” he means that neither Congress nor the courts are likely to take an action that would cause the administration to back down from this claim, or that would effectively reject this claim, no doubt he is correct. We all understand that litigation almost certainly would go nowhere, barring the capture and detention in the US or GTMO of an ISIS member who might then bring a habeas action testing the issue. And there are many reasons why Congress is unlikely to take effective action of its own. Not knowing what the future holds, the most attractive position for many members of Congress is to remain in a position to claim credit should the policy unfold well (for example, by passing legislation to fund the training of Syrian fighters) while still being free to object if it instead unfolds poorly. There is little incentive to stand on principle by trying to induce the institution as a whole to take some action to show disagreement with the 2001 AUMF argument, and indeed it is unclear what effective action could be taken given that many members in fact do want the administration to step up its use of force against IS. (This dynamic is precisely why it is much in the administration’s interest to get more explicit Congressional buy-in for the policy as soon as it can be had).

If instead “stick” means something stronger–i.e., if this is a claim that the consensus of opinion has or will come to accept the merits of the 2001 AUMF argument–I’m not convinced. To take just one notable example–one that Cody notes here– Senator Kaine has made clear he is not buying it, even though he does support passage of a fresh and tailored AUMF to support the President’s policy.

Today’s Headlines and Commentary

Wednesday, September 17, 2014 at 1:39 PM

“To be clear, if we reach the point where I believe our advisors should accompany Iraqi troops on attacks against specific ISIL targets, I will recommend that to the President,” Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey told the Senate Armed Services Committee yesterday. He and Secretary of Defense Chuck Hagel gave testimony regarding the U.S. plan to counter the Islamic State. Foreign Policy notes that Gen. Dempsey’s remarks conflict with President Obama’s declaration last week that “American forces [in Iraq] will not have a combat mission.” The Washington Post provides transcripts of Secretary Hagel and Gen. Dempsey’s statements before the committee.

Following the Hill testimony, White House Press Secretary Josh Earnest reiterated that the President “will not deploy ground troops in a combat role into Iraq or Syria.” However, David Ignatius of the Post explains how paramilitary operations led by the Central Intelligence Agency (CIA) could enable the President to provide combat support to the Iraqi army, while maintaining his promise to the American people to keep boots off the ground.

According to the Associated Press, the House of Representatives is expected to approve a spending bill today that will include an amendment authorizing funding to train and arm moderate Syrian rebels. Politico anticipates that on Thursday, the Senate will pass the House’s legislation.

ABC News informs us that, in a letter sent to U.S. House leaders regarding the proposed funding of moderate rebels, Speaker of the Syrian Parliament Jihad al-Lahham warns, “There is nothing to prevent those groups from selling the U.S. weapons to ISIL as it is their proven common practice.”

The Islamic State yesterday released a new video, which largely resembles a Hollywood movie trailer. According to the New York Times, it is a response to President Obama’s intended plans to “degrade and ultimately destroy” the militant group. At the Billington Cyber Security Summit yesterday, National Security Agency (NSA) Director Adm. Mike Rogers remarked, “Clearly, ISIL has been very aggressive in the use of media, in the use of technology, in the use of the Internet. It’s something I’m watching.” Reuters has the story.

In Time, Rita Katz of the SITE Intelligence Group explains why the U.S. State Department’s “Think Again Turn Away” Twitter campaign “is not only ineffective, but also provides jihadists with a stage to voice their arguments.”

Meanwhile, the Wall Street Journal reports that the Iraqi Parliament yesterday rejected Prime Minister Haider al-Abadi’s Defense and Interior Minister nominees. Sectarian divisions have made filling the posts difficult. Likewise, the Times explains how the prevalence of Shia militias in Iraq complicates U.S. military assistance.

Reuters reports that Syrian government air strikes have killed at least 48 people in the town of Talbiseh in the Homs province.

Yesterday, Ben Bissell highlighted news of the ratification of a trade and political agreement between the European Union and Ukraine. The Wall Street Journal explains why Kiev is actually in a weaker position than meets the eye. Thanks to pressure from Russia, the EU deal will not take effect for some time. Furthermore, the Ukrainian Parliament just approved a bill granting rebel-held Donetsk and Luhansk “special status” for at least three years. Time highlights pro-Russian separatists’ hesitant response to the legislation. Meanwhile, Ukrainian President Petro Poroshenko is in North America, seeking U.S. aid. According to the Times, on Thursday, he will meet with President Obama and address a joint-session of Congress.

Agence France-Presse reports that “Russia is to reinforce its troop deployments in annexed Crimea and southern Russia.”

Afghanistan needs a bailout, according to Alhaj M. Aqa, director general of the treasury at the Afghan Finance Ministry. Apparently, unless the Afghan government receives $537 million from the U.S. and international donors this week, it “will have to begin deferring payment of bills for items ranging from fuel for government vehicles to official stationery,” reports the Post. Meanwhile, Defense One shares that, according to Afghanistan Reconstruction Inspector General John Sopko, “The prognosis for rebuilding Afghanistan… is bleak unless that nation and its American allies get a handle on sustainability, corruption and narcotics trafficking.”

In an ambush late last night, Taliban militants killed six Afghan police officers. The AP has the story.

Foreign Policy informs us that the United Nations has taken over the African Union’s peacekeeping mission in the Central African Republic, which has been embroiled in violent sectarian conflict for nearly two years. The U.S. has also decided to reopen its embassy in the country’s capital Bangui. In a statement Monday, U.S. Secretary of State John Kerry noted, “The people and leaders of the Central African Republic have made progress in ending the violence and putting their nation on a path toward peace and stability.”

Yesterday, Ben Bissell noted President Obama’s plan to help contain and manage the Ebola outbreak in western Africa. The Wall Street Journal explains that the President’s strategy poses a number of challenges for U.S. forces, as “the operation will require the military to fuse its experience in responding to natural disasters with its training in biowarfare to minimize the risks of Americans contracting the disease.”

Reuters shares an exclusive interview with South Korean President Park Geun-hye, during which Park indicated her willingness to engage in high-level dialogue with her neighbors to the North during the upcoming U.N. General Assembly.

The Hill reports that members of the House and Senate Armed Services Committees have begun holding discussions regarding the 2015 National Defense Authorization Act (NDAA). The full House has already passed its draft of the NDAA, but the Senate Armed Services Committee has yet to receive a floor vote on its version. Staffers for the two committees are expected to work on the legislation during the election recess, so that members can pass a bill during Congress’ lame duck session. Roll Call examines the differences between the House and Senate versions of the bill.

Defense One examines statements made yesterday by NSA Director Adm. Mike Rogers at the Billington Cyber Security Summit. There, he noted, “I fundamentally reject the premise of the question that says the NSA is no longer in a position where it has a relationship with foreign counterparts or with the corporate sector, or that foreign counterparts have walked away from the NSA. That’s not what I’ve observed in my five months as director.”

Politico considers the Defense Department’s new rules for government contractors in the wake of former NSA contractor Edward Snowden’s disclosure of classified information.

Yesterday, in New York, the U.S. indicted Yemen-born Mufid A. Elfgeeh for “attempting to provide support to the terrorist group Islamic State.” USA Today has the story.

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Senator Kaine’s ISIS AUMF

Wednesday, September 17, 2014 at 12:59 PM

Senator Tim Kaine (D-VA) will introduce an authorization for the use of military force against the Islamic State of Iraq and the Levant (ISIL) today. The proposal comes as no surprise. Earlier this week, Senator Kaine penned an op-ed in the New York Times, both arguing that “when the mission shifts from defense to offense, congressional approval is essential;” and objecting specifically to the Administration’s plan to invoke the 2001 AUMF for authority to target ISIS.

In a press release, Senator Kaine notes four key limitations in his proposed legislation:

1. No U.S. ground troops;

2. Repeal of the 2002 Iraq Authorization for Use of Military Force;

3. Sunset after one year;

4. Narrow definition of “associated forces.”

Despite the general withholding of authorization for ground troops, it appears that the Senator’s proposal nevertheless would allow for limited, on-the-ground U.S. combat operations beyond training and arming Kurdish, Iraqi, and rebel forces. A key provision explains that the bill includes no “(1) authorization for the use of United States ground combat forces, except for the purposes set forth in subsection (a)(2) [regarding training and arming the Kurds, Iraqis, and/or rebels] or as necessary for the protection or rescue of members of the United States Armed Forces or United States citizens from imminent danger posed by ISIL, or for limited operations against high value targets.” (Emphasis added.)

The full text of Senator Kaine’s AUMF is below:

Read more »

Cyber Jumps The Shark

Wednesday, September 17, 2014 at 12:23 PM

To “jump the shark” is a symbol for when a phenomenon (usually a TV show) reaches its apex and begin declining in quality.  It’s named after a famous “Happy Days” episode where Fonzie gets on a water skis and actually jumps over a shark.  Though usually directed at artistic media, the phrase sometimes resonates with other cultural or political ideas.

One has to wonder if cybersecurity has jumped the shark.  Not that it is going to decrease in importance, far from it.  But you have to wonder, when the idea becomes so commonplace that they actually make a TV show out of it.  I’m talking about CSI: Cyber, coming this Spring, with Patricia Arquette and Luke Perry.  If the trailer is any indication, those of us who work in the field will hate the show.  Here’s a description:

“CSI: Cyber” stars Emmy Award winner Patricia Arquette in a drama inspired by the advanced technological work of real-life CyberPsychologist Mary Aiken. Special Agent Avery Ryan (Arquette) heads the Cyber Crime Division of the FBI, a unit at the forefront of solving illegal activities that start in the mind, live online, and play out in the real world. She also knows firsthand how today’s technology allows people to hide in the shadows of the Internet and commit serious crimes of global proportion. While other agents search for criminals in dark homes and alleys, Ryan searches the “dark net,” a place deep in the bowels of the Web where criminals are anonymous, money is untraceable and where everything is for sale with just a keystroke.

“Everything for sale …”???  Oh well …

Monday’s Hearing in al-Hadi

Wednesday, September 17, 2014 at 9:19 AM

This week’s hearing in the military commission case of United States v. Abd al Hadi al-Iraqi turned out to be a quick one.  Monday afternoon was evidently sufficient time for court and counsel to debate the government’s motion for an order to protect national security information; the proceedings were recessed thereafter.

You can read all about it over in our “Events Coverage” section, where Matt Danzer has just posted a read-out of the afternoon’s proceedings.

Readings: Adapting the Law of Armed Conflict to Autonomous Weapon Systems

By and
Wednesday, September 17, 2014 at 12:08 AM

We are pleased to share our recently published article on law and autonomous weapons, on which we teamed up with our good friend Daniel Reisner (formerly head of the Israel Defense Forces International Law Department). The article, “Adapting the Law of Armed Conflict to Autonomous Weapon Systems,” appears as 90 International Law Studies 386 (2014), available online at SSRN (free pdf download).

Back in February of this year, the International Law Department of the U.S. Naval War College, the West Point Center for the Rule of Law, and Roger Williams University School of Law sponsored an expert forum on autonomous weapon systems at the NWC in Newport, Rhode Island. It was an outstanding roundtable discussion with experts from a wide range of backgrounds and views, in which we were privileged to take part. Papers from the forum (including ours) are appearing in the “Blue Book” – the venerable journal International Law Studies, published by NWC’s Stockton Center for the Study of International Law.

The article is a broad-ranging essay about autonomous weapon systems, discussing issues running from defining autonomy to the practicalities of international politics in weapons development. In the growing debate whether the law and ethics of weapons should remain focused on ends (such as reducing collateral damage while protecting one’s forces) irrespective of means, or should instead affirmatively favor human actors in targeting as a morally desirable or even required means, our article presses the first position:

“[W]hat matters is ever greater compliance with the core obligations of the law of armed conflict: necessity, distinction, proportionality, and humanity. Whether the actor on the battlefield is a “who” or a “what” is not truly the issue, but rather how well that actor performs according to the law of armed conflict. Debate over standards or rules for automated or autonomous weapon systems should remain scrupulously neutral as between human or machine, and should affirmatively reject any a priori preference for human over machine. Even seemingly indisputable calls for a first principle of “meaningful human control” mistake the issue, which is lessening the harms of armed conflict within the law by the means that are most effective. The principle of humanity is fundamental, but it refers, not to some idea that humans must operate weapons, but instead to the promotion of means or methods of warfare that best protect humanity within the lawful bounds of war, irrespective of whether the means to that end is human or machine or some combination of the two.”

We conclude the paper with a set of recommendations for how the existing law of armed conflict framework should be adapted to meet the challenges of greater and greater weapon system autonomy.