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Today’s Headlines and Commentary

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Thursday, April 11, 2013 at 4:53 PM

Let’s start with big news in the Bradley Manning case.  The presiding military judge, Colonel Denise Lind, ruled that in order to convict Manning on Espionage Act charges, the prosecution must show that he had “reason to believe” that the secret materials he passed to Wikileaks could be used to harm the United States or to help a foreign country.  The court also will allow the government to present evidence that Al Qaeda acquired documents that Manning had disclosed. A member of SEAL Team 6 may testify about the latter, writes Josh Gerstein of Politico.  Also be sure to check out Charlie Savage’s story in the New York Times and Julie Tate’s report in the Washington Post.

A fascinating development in Germany’s longstanding prosecution of Holocaust perpetrators: Germany’s Central Office for the Investigation of Nazi Crimes has identified fifty former guards from the Auschwitz concentration camp—who are still living.  But can the men be prosecuted?  That’s part of today’s story by the Times’ Chris Cottrell.  Sobibor camp guard John Demjanjuk’s conviction 2 years ago suggests that, in fact, prosecutors may have an easier time convicting the newly-found Auschwitz personnel:

Mr. Demjanjuk was found guilty even though he was not directly linked to any specific crime. Instead the court, in Munich, ruled that his work as a guard at the camp automatically made him an accessory to any murders carried out there. It convicted him of being an accessory to the murder of all 28,060 people who died at the camp during his tenure as a guard there. He died before a higher court could rule on his appeal.

Back to the U.S., where pundits, reporters, and analysts are poring over President Obama’s budget request. The Washington Post’s Ernesto Londono says military spending will remain steady under the White House’s proposed budget.

Niche-market publication Correctional News identifies the budget’s GTMO improvement line item: $170M for a new prison building, barracks, and mess hall.

And all you special operators out there can breathe a big sigh of relief—your budget will increase under the President’s plan. Walter Pincus focuses his Post column on the U.S. Special Operations Command (“SOCOM”), and some budget-related Senate testimony by SOCOM’s chief, Admiral William McRaven. Wired’s Spencer Ackerman also noted some special operations line items, including $46.8M set aside for “Special Operations Advanced Technology Development.” Be careful not to confuse that with “Special Operations Technology Development.”  The latter will receive a $29.2M outlay.

The President’s budget also calls for an overall diminution in 2014 funding for DoD and DHS.  And yet funding for DoD’s cybersecurity activities still would increase from last year to $4.7B, while DHS would see $44M added to its cyber budget, too.  So we learn from this NBC News analysis, and from this Bloomberg in report. The National Institute of Standards and Technology’s ["NIST"] budget request also swelled by $15M, in order to fund 25 new full-time employees working on the cybersecurity R&D standards. That’s the word from Molly Bernhart Walker of Fierce Government IT, who found the numbers in this budget brief for the Department of Commerce—NIST’s parent agency.

Meanwhile, the House Intelligence Committee approved a slightly-revised cybersecurity bill, as Paul noted this morning. Here are the committee’s press release, and the AP‘s and The Hill’s  stories on the almost-unanimous (18-2) committee vote. Democrats Adam Schiff and Jan Schakowsky voted “nay” after the committee rejected their privacy-related amendments. Meanwhile, the bill’s opponents are preparing to take it down, according to CNET.

Senator Jay Rockefeller, ever the Senate’s advocate for cybersecurity reform, wants the SEC to provide guidance to Wall Street on cybersecurity risks. Law 360′s Allison Grande explains.

Meanwhile, Cato’s Daniel Ikenson opines  on provisions in the latest continuing resolution.  These preclude certain agencies from acquiring Chinese technology, without first clearing the purchase with federal law enforcement.  Ikenson derides this approach as “regulatory protectionism.”  (Earlier, Volokh’s Stewart Baker commented on the pre-clearance rule; Paul called it “the first serious attempt to punish” China for alleged cyberattacks.)

Down at GTMO, military commission defense attorneys say their computers are insecure, and may have been compromised.  It seems certain electronic documents mysteriously disappeared from the defense’s servers.  The AP’s Ben Fox has this story. It quotes Richard Kammen, lawyer for Abd al-Rahim al-Nashiri—who stands accused of plotting the 2000 attack on the USS Cole.  Kammen and company asked for, and today received, a postponement of next week’s hearings, apparently in light of the security breach.  For the same reason, counsel in the 9/11 case likewise have requested an abatement of proceedings.

There’s more information, but certainly no more clarity, about the Senate’s compromise immigration bill.  Consider the legislation’s requirement that DHS must, before issuing green cards to any illegal immigrants, demonstrate that it stops at least 90% of unlawful border crossings.  At Lawfare we continue to puzzle over how immigration officials will be able to learn of all such crossings.  (What if an illegal entry goes undetected?)  It seems a similar thing occurred to Julia Preston and Ashley Parker of the New York Times.  Their piece found no specific guidance to DHS about how the agency should measure enforcement.

The American Civil Liberties Union petitions on behalf of John Walker Lindh, the so-called “American Taliban” now imprisoned in Indiana. The group claims that Lindh’s prison warden is defying a court order which permitted Muslim inmates to pray five times a day—and that, therefore, the warden should be held in contempt. Here’s Tal Kopan at Politico with details.

Florida’s state senate passed its drone restriction bill on a 39-0 vote; CNN reports on the details.

New York Times authors Azam Ahmed and Taimoor Shah have this missive on the death of an Afghan man connected to President Karzai’s “inner circle.”  This much is clear: he was killed during a joint U.S./Afghan special operations raid in Oruzgan province.  The provincial governor says the decedent was an innocent civilian.  But the military says an insurgent—the Karzai-connected fellow or someone else—fired upon special operators, who were justified in shooting back.  According to Ahmed and Shah, the episode illustrates ongoing U.S.-Afghan tensions.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.