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Executive Order on Cyber Sanctions

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Wednesday, April 1, 2015 at 2:00 PM

President Obama has, today, issued an executive order entitled, “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities.”  On first glance it looks like a strong step in the right direction.

The EO is notable not just for what it does, but for how it characterizes the malicious cyber activity.  It is particularly welcome that assaults are now a “national emergency.”  It is worth reflecting that this precise language is an essential trigger for the laws invoked — happily, it does not mean that the infrastructure of the United States is about to crumble.  Some may complain that in using this phrase the President is overstating the case somewhat — and that may be a fair criticism, on its own terms.  But within the legal context in which the EO arises, the use of “national emergency” is reflective, I think, of the seriousness with the Administration views the problem — and that’s a good thing.

The other good, meta-thing that is going on here is that the Administration is reinforcing the view that its response to cyber maliciousness is not constrained to the cyber domain.  Cyber events require a “whole of government” response — and this EO builds on that concept by invoking the property-blocking authority of the Department of the Treasury.

The order itself has several useful components to it:

  • First, the order requires the blocking of property for any person (either an individual or entity) that does significant cyber damage to critical infrastructure;
  • It also blocks the property of anyone using cyber capabilities to cause “a significant misappropriation of funds or economic resources, trade secrets, personal identifiers, or financial information for commercial or competitive advantage or private financial gain.”
  • Notably, these two provisions, working together, would seem to NOT directly address the Sony hack, as Sony would not be critical infrastructure; nor was the hack for competitive advantage or private gain … or at least it would seem not to be so;
  • Second, the order also blocks property of those found to “be responsible for or complicit in, or to have engaged in, the receipt or use for commercial or competitive advantage or private financial gain, or by a commercial entity, outside the United States of trade secrets misappropriated through cyber-enabled means.”
  • This portion of the order, if seriously implemented, would have huge implications — it, in effect is an order to freeze the assets of any foreign (i.e. Chinese) company found here in the US that uses stolen American intellectual property for commercial advantage.  Taken to its logical conclusion, we might see the seizure of Alibaba’s new data center in Silicon Valley.
  • Third, the order uses immigration authority to restrict the entry into the United States of any individual engaged in or having contributed to the malicious cyber attack.  Again, if used aggressively this could have far reaching implications for many foreign executives who will no longer be able to travel to the US.

In the end, what is most notable about the order is how strongly the US is flexing its economic muscle.  If access to US markets is of value, the Administration is signalling, strongly, that continued access may be conditioned on good cyber behavior.  The proof, as they say, will be in the pudding — are these just words on paper or part of a real enforcement effort?  Only time will tell, but this is a good first step.

The Bergdahl Roadmap to Unilateral Presidential Closure of GTMO

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Wednesday, April 1, 2015 at 11:15 AM

We have not paid enough attention to the significance of the administration’s legal argument in support of the Bergdahl trade for President Obama’s goal of closing GTMO.  The Article II logic in the administration’s disregard of the congressional notice requirement in swapping the Taliban five for Bergdahl could be the basis for transferring the remaining GTMO detainees to the United States despite a congressional ban.

Recall that the transfer of Taliban detainees for Bergdahl without prior notice to Congress seemed to fly in the face of Section 1035 of the 2014 NDAA, which requires the Defense Secretary to notify the appropriate Committees of a transfer from GTMO “not later than thirty days before the transfer or release,” and Section 8011 of the Fiscal Year 2014 Consolidated Appropriations Act, which prohibited use of appropriated funds to transfer GTMO detainees except in accordance with Section 1035.  DOD argued to GAO that “section 1035 does not make notice a precondition of transfer,” and thus that the transfer violated neither Section 1035 nor the funding restriction in Section 8011. Whatever one thinks of this statutory argument—I argued previously that it is unconvincing—DOD also argued to GAO that the President could disregard the statute (i.e. ignore its restrictions) because the notice requirement in section 1035, applied to the transfer of the Taliban five for Bergdahl, would violate “the constitutionally-mandated separation of powers.”  DOD reasoned that compliance with a 30 days’ notice requirement “in these circumstances would have “‘prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,’ Morrison v. Olson, 487 U.S. 654, 695 (1988),” which included protecting the life of a U.S. solider, “without being ‘justified by an overriding need’ to promote legitimate objectives of Congress, Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).”  Thus Section 1035 “would have been unconstitutional to the extent it applied to the unique circumstances of this transfer” and the spending limitation in section 8111 “would likewise be unconstitutional as applied to that transfer.”

The validity of these arguments as applied to the Bergdahl swap is not my present concern.  DOD thinks the arguments are valid.  And even more importantly, a December 2014 letter from DOD to the GAO states that the Department of Justice “concur[s]” in this analysis.  So the analysis has the imprimatur of OLC and the Attorney General.  The question that interests me is how these arguments might be used to defy the statutory restrictions on transferring detainees to the United States in connection with closing the GTMO detention facility. Read more »

On the 2014 Gaza War Assessment

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Wednesday, April 1, 2015 at 9:03 AM

The recent “2014 Gaza War Assessment: The New Face of Conflict” deserves careful reading and consideration by all LOAC scholars and practitioners.  The report was written by five richly experienced retired U.S. military officers, all of whom have served during times of armed conflict and understand the inherent difficulties of modern urban conflict.

One of the most forceful arguments these past battlefield commanders makes is that the U.S. needs to carefully observe the conduct of modern urban hostilities and prepare for similar future conflicts based on those lessons learned.  They argue

“Future, and perhaps even ongoing, conflicts will match the U.S. military against adversaries employing Hamas’s unlawful tactics that increase civilian casualties so as to undermine the legitimacy of U.S. military operations, encourage international actors to condemn and pressure the United States and sap its will to continue such campaigns.  When confronting such a foe, unnecessary greater restraint in U.S. military operations will not deliver victory.”

To be clear, the Generals who wrote the Report are not suggesting that policy constraints should never be superimposed on LOAC authority. Instead, they emphasize that such constraints – constraints they all operated under or perhaps even dictated in the form of rules of engagement – be implemented only when balanced against the imperatives of mission accomplishment, and not in response to erroneous or distorted claims of law violations.

Whether or not you agree with the application of their reasoning to the Gaza conflict, their perspective on the legal and operational difficulties in modern urban conflict deserves respect and due consideration.  They urge the US to prepare for an enemy who uses military resources to raise the costs to civilians and military forces, deliberately provokes and exacerbates the collateral damage caused by lawful military responses, and deploys a well-orchestrated information campaign of distorted facts and legal principles to undermine the legitimacy of responsive actions.  As the United States continues to develop advanced weapons based on emerging technology, its opponents will rely more heavily on similar tactics as the only “effective” road to victory. The conclusions the Report draws and the warning voice it raises deserves close attention.

In addition to the substance of the Report, one of its key benefits is that it keeps military commanders in the discussion.  Over the past century, academics and lawyers have carried increasing influence in the law of armed conflict debate. If the law is going to continue to be responsive to developing military tactics and capabilities, military commanders have to be engaged in the conversation to ensure that legal evolution remains grounded in the practical realities of military operations.

Eric Jensen is Associate Professor of Law at BYU Law School.  He teaches and writes in the areas of Public International Law, Criminal Law, The Law of Armed Conflict, International Criminal Law, and National Security Law. Prior to joining the BYU law faculty in 2011, Professor Jensen spent 2 years teaching at Fordham Law School in New York City and 20 years in the United States Army as both a Cavalry Officer and as a Judge Advocate.

 

The Zero Dark Thirtieth Birthday Cake

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Tuesday, March 31, 2015 at 5:14 PM

From the baker of hard national security choices, who once brought you the “drone strike cake“—called “notorious” by Rolling Stone magazine—it’s the Zero Dark Thirtieth Birthday Cake:

Intelligence Squared US Debate: “The President Has Exceeded His Constitutional Authority By Waging War Without Congressional Authorization”

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Tuesday, March 31, 2015 at 4:51 PM

This evening, at 6:45 pm, Intelligence Squared US is holding a debate on the resolution: “The president has exceeded his constitutional authority by waging war without congressional authorization.” Arguing for the motion will be Gene Healy of the Cato Institute and Deborah Pearlstein of Cardozo Law. Arguing against it will be Philip Bobbitt of Columbia Law School and Akhil Reed Amar of Yale Law School. You can watch the livestream here:

Steptoe Cyberlaw Podcast, Episode #60: An Interview with Paul Rosenzweig

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Tuesday, March 31, 2015 at 4:23 PM

Podcast 60 - 1Episode 60 of the Cyberlaw Podcast features Paul Rosenzweig, founder of Red Branch Consulting PLLC and Senior Advisor to The Chertoff Group.  Most importantly he was a superb Deputy Assistant Secretary for Policy in the Department of Homeland Security when I was Assistant Secretary.

Paul discusses the latest developments in ICANN, almost persuading me that I should find them interesting.  He expresses skepticism about the US government’s effort to win WTO scrutiny of China’s indigenous bank technology rules; he also sees the DDOS attack on GitHub as a cheap exercise in Chinese extraterritorial censorship.

Michael Vatis, meanwhile, fills us in on two new cyberlaw cases whose importance is only outweighed by their weirdness. And I dissect the House cybersecurity information sharing bill, concluding that it has gone so far to appease the unappeasable privacy lobby that it may actually discourage information sharing.

As always, send your questions and suggestions for interview candidates to [email protected]or leave a message at +1 202 862 5785.

Download the sixtieth episode (mp3).

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

Judicialization of Warfare in the U.K.

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Tuesday, March 31, 2015 at 2:00 PM

A British think tank called Policy Exchange has released a very interesting report on judicialization of British warfare. Entitled “Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat,” the 50-page report by Richard Elkins, Jonathan Morgan, and Tom Tugendhat opens: “The judiciary is pioneering a revolution in military affairs. Empowered by the Human Rights Act 1998, its spectre now haunts commanders in both war and peace. Our courts, once kept away from judging the confusion of the battlefield, can now consider with the benefit of hindsight how those commanders should have trained, prepared and equipped for—or even how they should have fought—the very conflicts in which they serve.” I have not yet read the report, but here’s its executive summary:

The British military is now thoroughly entangled in the net of human rights law—often to the benefit of our country’s adversaries. The British armed forces remain the most accomplished in Europe; but they suffer courtroom defeat after
courtroom defeat in London and Strasbourg.

The tipping point was Smith v Ministry of Defence (2013). The UK Supreme Court established for the first time that soldiers injured in battle or the families of those killed in action may sue the Government for negligence in tort law—and for breach of the “Right to Life” under Article 2 of the European Convention on Human Rights (ECHR).

This judgment built upon the earlier Strasbourg case of Al Skeini v UK (2011), which extended the reach of the ECHR to British troops fighting in Iraq—a foreign country which is, of course, not a signatory to that Convention. The High Court’s decision in Serdar Mohammed v Secretary of State for Defence (2015) further stretched the ECHR’s reach to Afghanistan.

Only this month, in Al Saadoon & Others v Secretary of State for Defence, the High Court made it clear that the consequence of these judgments is that the ECHR applies wherever and whenever a British soldier employs force: shooting an individual is now enough to bring that foreign national into the jurisdiction of the UK under the terms of Article 1 of the ECHR. So foreign nationals, including enemy combatants, may now sue Britain for breach of the ECHR—both in domestic courts, by virtue of the Human Rights Act 1998, and in Strasbourg.

These judicial developments have paved the way for a “spike” in litigation: at the beginning of 2014, some 190 public law claims had been filed against the Ministry of Defence in relation to British military action in Iraq; by the end of March 2015 this number is likely to have grown to 1,230 public law claims. This is in addition to a further 1000 private law claims—of which more than 700 remain live.

So where next for Britain’s increasingly powerful judges? As the military’s expeditionary capabilities decline, those of the judiciary seem to grow …

This new form of judicial imperialism should urgently be reversed. The judiciary is  the wrong body to hold the Government and the armed forces to account for the way that war is waged—by retrospectively reviewing their  purchasing, training and combat  decisions. This is properly a  matter for Ministerial accountability, to Parliament and through Parliament to the public. The extension of the common law of negligence to military action has already had damaging effects on the forces. The result will be an  excessive degree of caution which is antithetical to the war-fighting ethos that is vital for success on the battlefield. The Government should immediately exercise its existing statutory powers to restore Crown immunity to claims in tort, including for alleged negligence.

The British armed forces should not be above the law. But which law? The ever-expanding reach of the ECHR is now supplanting far more practical laws of war—the current Geneva Conventions and later Protocols under which our forces
have fought since 1949.

By contrast, the ECHR—which is partly incorporated into British domestic law under the Human Rights Act 1998—is designed for conditions of peace in post-war Europe. It is a wholly impracticable code for regulating the conduct of the British military in violent combat scenarios. What place do peacetime concepts of “proportionality” have on the battlefield?

This folly reaches its apogee on the question of the detention of insurgents. It is surely absurd that European and British courts now expect our forces to operate in violent combat conditions according to a system more suited to the regulation of police powers on a Saturday night in the West End of London.

The result is a highly confusing variable legal geometry for British commanders. Are the Geneva Conventions supreme, or is it the ECHR/Human Rights Act? The Government has failed to convince the Strasbourg Court or the UK Supreme Court to discipline themselves by limiting the reach of the ECHR. The way to restore the Geneva Conventions as the controlling law that governs how British forces fight is to set aside the ECHR—by exercising the power under Article 15 of the ECHR itself to derogate.

Recommendations

The Government must take prompt action to close down these multiple avenues of legal assault:

  • The Government should derogate from the European Convention on Human Rights in respect of future overseas armed conflicts – using the mechanism of Article 15 of the ECHR.
  • The Government should introduce primary legislation to amend the Human Rights Act 1998 to prevent military personnel relying on Article 2 of the ECHR against the Ministry of Defence in respect of injuries sustained on active operations.
  • The Government should revive the Armed Forces’ Crown immunity from actions in tort during all future “warlike operations” overseas, by Ministerial Order under the Crown Proceedings (Armed Forces) Act 1987.
  • The Government should undertake to pay compensation, on the full tort “restoration” measure, to all military personnel killed or wounded during active operations—without need to prove fault.
  • The Government should take the lead in supporting the efforts by the International Committee of the Red Cross to strengthen the Geneva Conventions for the conditions of modern warfare.
  • The Government should make an authoritative pronouncement of state policy—declaring the primacy of the Geneva Conventions in governing the conduct of British forces on the battlefield.

Read more »

Today’s Headlines and Commentary

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Tuesday, March 31, 2015 at 1:40 PM

In advance of tonight’s midnight deadline, nuclear negotiators in Switzerland have been working hard and working late. Yesterday, U.S. Secretary of State John Kerry stated, “We are working late into the night and obviously into tomorrow.” The Washington Post has the tick-tock on diplomats “scurry[ing] to reach” a settlement.

Still, even if Iran and the P5+1, the permanent members of the U.N. Security Council plus Germany, manage to reach some kind of settlement by midnight, the New York Times notes that some of the major sticking points will not be resolved until late June: “The main points that the negotiators have been grappling with include the pace of lifting United Nations sanctions, restriction on the research and development of new types of centrifuges, the length of the agreement and even whether it would be detailed in a public document.”

According to the Associated Press, the P5+1 and the Islamic Republic will issue a “general statement” today, which agrees to continue discussions into a new phase. “The joint statement is to be accompanied by additional documents that outline more detailed understandings, allowing the sides to claim enough progress has been made thus far to merit a new round.”

The AP also provides a guide for understanding where the negotiations currently stand, while the Atlantic’s Jeffrey Goldberg offers some questions he has about the contours and effects of any proposed deal.

The Council on Foreign Relations shares an interview with Lawfare’s own John Bellinger, who discusses Congress’ role in any future nuclear deal.

Meanwhile, a recently released Washington Post-ABC News poll finds that fifty-nine percent of Americans support a nuclear deal with Iran, though that same percentage of respondents believes that such an agreement would not actually stop the Islamic Republic from developing nuclear weapons.

Even if an agreement is reached, Iran has no intentions of normalizing relations with the U.S. Reuters quotes an Iranian official, who maintains, “You cannot erase decades of hostility with a deal. We should wait and see, and Americans need to gain Iran’s trust. Ties with America is still a taboo in Iran.”

Yesterday, the Pentagon denied reports that a U.S. drone strike near Tikrit killed two Iranian Revolutionary Guard members on March 23. Currently, the Iraqi army and Shia militias, with the support of U.S. coalition airstrikes, are battling to retake the city from the Islamic State. Al Jazeera has more.

Leaders of Shia paramilitary groups involved in the fight for Tikrit announced yesterday that the U.S. has allegedly agreed to halt airstrikes on the city. The Post points out that doing so “would mean that the airstrikes had essentially been used to ease the militiamen’s path into the city.” Washington has been hesitant of being perceived as assisting the Iranian-backed militia groups.

The Defense Department has released seven photos, which show U.S. forces training Iraqi soldiers to fight the Islamic State.

Yesterday, Defense Secretary Ash Carter announced U.S. support for a joint Arab military force, noting, “The willingness of the parties there to step up and do more for stability in the Middle East is a good thing.” The Times shares his statements.

However, the Post Editorial Board explains why a unified Arab military force could exacerbate issues in the Middle East.

In northern Yemen, dozens died yesterday when an airstrike rocked a camp for displaced civilians. The Times describes this bombing as the deadliest incident since the Saudi-led coalition decided almost a week ago to beat back gains made by Iranian-supported Houthi rebels.

Meanwhile, the Wall Street Journal informs us that Saudi-led naval forces have blockaded Yemeni ports.

The New Yorker profiles Chinese President Xi Jinping and explains how “an unremarkable provincial administrator became China’s most authoritarian leader since Mao.”

Yesterday, National Security Agency police officers at Fort Meade opened fire on a Ford Escape after its driver failed to heed instructions to stop near “a restricted exit leading to a security post.” The incident apparently “was not a deliberate attempt to breach the security of the NSA.” Instead, the Post reports that the two men in the car may have taken a wrong exit on the Baltimore-Washington Parkway and then refused to stop because there were drugs in the car. One of the men died, while his companion was hospitalized for his injuries.

In the case against alleged U.S.S. Cole bomber Abd al Rahim al Nashiri, judge Air Force Col. Vance Spath ruled yesterday that Nashiri receives adequate healthcare from the prison at Guantanamo Bay. Carol Rosenberg of the Miami Herald reports.

Lawyers for five Afghan men being held at GTMO sent a letter to the Obama administration yesterday, asking for the release their clients. According to the lawyers, the prisoners’ “continued detention is illegal because the hostilities in Afghanistan, the only possible justification for detention, have ended.” The Miami Herald has that story, as well.

Morris D. Davis, a retired Air Force colonel who served as the chief prosecutor of the military commissions at Guantanamo Bay from 2005 to 2007, has an op-ed in the Times, in which he describes “Guantanamo’s charade of justice.”

ICYMI: Yesterday, on Lawfare

Ashley Deeks examined the international legal justification for the Saudi-led coalition’s airstrikes in Yemen.

Ben shared audio from his appearance on the Diane Rehm show promoting his new book with Gabriella Blum, The Future of Violence: Robots and Germs, Hackers and Drones – Confronting a New Age of Threat.

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.

The Tenth Year Anniversary of UNSCR 1593, which Referred the Situation in Darfur to the International Criminal Court

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Tuesday, March 31, 2015 at 12:48 AM

Ten years ago today, on March 31, 2005, the U.N. Security Council adopted resolution 1593, which referred the situation in Darfur, Sudan, to the Prosecutor of the International Criminal Court for investigation. Although not a party to the Rome Statute, the United States abstained on the resolution, marking the beginning of a shift by the Bush Administration towards a pragmatic approach of ad hoc cooperation with the ICC in the Administration’s second term.   UNSCR 1593 also marked the first time the Security Council had referred a matter to the ICC where the Court did not have jurisdiction under the Rome Statute. In this retrospective post, I discuss: 1) the status of the ICC’s decade-long investigation of the Darfur situation; 2) the Bush Administration’s second-term “pivot” to a cooperative approach towards the ICC in certain cases; and 3) the Security Council’s referral of situations to the ICC, including Darfur and Libya.

Read more »

“The Future of Violence” on Diane Rehm

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Monday, March 30, 2015 at 5:02 PM

This morning, Gabriella Blum and I had the pleasure of appearing on the Diane Rehm Show to discuss The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. It was a good discussion for those who missed the book’s launch event at Brookings. Here’s the audio:

Today’s Headlines and Commentary

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Monday, March 30, 2015 at 3:09 PM

Shots were fired this morning at Fort Meade after two people in a vehicle attempted to ram a gate leading to the National Security Agency. The Washington Post reports that one person was killed and at least one other injured. According to police officials, the situation is now under control. Information on the episode is still trickling out.

Emerging from a League of Arab States meeting in Egypt on Sunday, leaders of the Arab states announced that they had  agreed to create a combined military force aimed at countering what they view as an expansionist Iran and the growing threat of Islamic extremism. Similar to Saudi Arabia’s recent decision to avoid consulting the United States before striking Yemen, many analysts view the creation of the military as part of a drive for greater independence from Washington.

As the Arab allies rally together, the battle in Yemen continues. A new video has emerged showing oversized military transports traveling through Saudi Arabia headed towards Yemen, CNN reports. According to sources on the ground, the convoys may mean that suggestions of a ground incursion into the country “may be more than just talk.”  However, Arab diplomats insist that is an unlikely possibility.

Reuters brings us news that amid heavy airstrikes by the Saudi-led coalition, Houthi rebels in the country continue to push southward towards Aden. According to local residents, Houthi fighters shelled opponents with artillery on Monday, killing at least five civilians. Yet, the Houthis’ push south is a gamble, as they will be further and further from their supply lines.

Back in Sanaa, jets struck around the presidential palace and a weapons depot in the Nugum mountain, which overlooks the capital. The New York Times also reports that an aerial assault on a camp for thousands of displaced Yemenis has killed at least 40 people and wounded 200 more, according to the International Organization for Migration. It was not immediately clear who was responsible for the attacks.

And, in a dramatic political setback, the Houthis most powerful ally, former President Ali Abdullah Saleh, has now called for peace talks with his Saudi-backed rival, current Yemeni President Abed Rabbo Mansour Hadi. The Wall Street Journal has more.

At the moment, it remains unclear how the most recent Sunni-Shia flare up will affect progress with Iran on a nuclear deal. However, with the deadline just two days away, the New York Times writes that Iranian officials on Sunday retreated from an earlier proposal that would force Tehran to ship its atomic fuel out of the country to Russia, where it would remain inaccessible for use in any potential future weapons program. Iranian Deputy Foreign Minister Abbas Araqchi told reporters “the export of stocks of enriched uranium is not in our program.” Western officials have suggested other options, such as blending the uranium into a more diluted form; however, the new revelation is likely to rouse even more intensified pressure from parties opposed to the nuclear deal.

In the face of this pressure, the Wall Street Journal notes that the Obama administration is now displaying a willingness to accept legislation that would give Congress some oversight of any nuclear deal. According to the Journal, the administration has privately expressed its acceptance of some form of compromise legislation as long as such legislation does not include automatic new sanctions.

In Politico, Michael Crowley outlines the six core issues to be tackled as the deadline for negotiations closes in.

The United States faces new doubts as to whether it is capable of filling the gap created by the withdrawal of Shiite militias around Tikrit. “Right now we need them, and honestly, they’ve achieved a lot of victories,” said Lt. Gen. Abdulwahab al-Saidi, the commander of Iraq’s special forces in the battle for Tikrit. At present, government forces are weighing the costs of U.S. airstrikes as its ground force capacity diminishes in light of recent Iranian-backed Shiite militia withdrawals. While the U.S. strikes have killed top ISIS commanders and pinned militants down,  Shiite militias have strongly protested U.S. involvement in the fight.

And today, Iran’s Revolutionary Guard claimed that a U.S. drone strike killed two of its advisers near Tikrit. However, U.S. Central Command has disputed the claims, noting that at the time the officers were killed, the United States had not yet began targeting militant locations around the city. The Associated Press has more.

To the second front: Syria. In a move that will lock out displaced Syrian refugees, Turkey has moved to close the two remaining border gates between it and Syria. According to the Times, “The closing of the gates has underscored the conundrum Turkey faces as it tries to balance a commitment to taking in refugees with security and pressure from Western allies to tighten its borders.” An anonymous Turkish intelligence official claimed that the closure of the gates was on account of an intelligence tip that the forces of Syrian President Bashar al Assad were planning an attack in the area.

The New York Times reports that the northern Syrian city of Idlib now appears to be solidly in the hands of a coalition of Islamist insurgents. Among the coalition is a branch of al Qaeda called the al Nusra Front. The victory follows four days of heavy fighting in the city, and if the militants hold their positions, it would mark only the second provincial capital to fall completely out of government control. While residents celebrated the victory on Saturday, the Syrian American Medical Society has estimated that as many as 100,000 people could be displaced by the fighting in Idlib.

And, according to a recent interview with Syrian President Bashar al Assad, Russia is supplying weapons to Damascus under contracts originally signed at the start of the war. Russia has claimed that any arms exported to the embattled country were as a result of deals executed before the conflict began, but Mr. Assad’s claims now put Moscow’s line in contradiction. In response, Reuters reports a Kremlin spokesman to have said  “there are no legal limitations on us,” noting that there are “no embargoes on military cooperation.” For a transcript of Charlie Rose’s 60 Minutes interview with Mr. Assad, which aired yesterday, see CBS News.

Finally, in a snapshot for Foreign Affairs, Hassan Hassan argues that “Iraq isn’t’ the right front” and that a Syria-first strategy is necessary to defeat ISIS.

The New York Times reports that Tunisian security forces have killed the commander of the group responsible for the recent terrorist attack at the National Bardo Museum in Tunis. Tunisia’s interior minister said that the commander, Khaled Chayeb, was killed along with eight other militants during a raid by the national guard. The news came as thousands of people marched in Tunis to denounce the attack.

Early this morning, Nigeria’s election officials began counting the votes from this weekend’s election. The election was hampered by technical problems and militant attacks, with Boko Haram fighters attacking polling stations and killing at least 41 people. According to the Wall Street Journal, which has a great round-up of the election, early returns showed Muhammadu Buhari, a retired general and former military dictator, ahead of President Goodluck Jonathan.

A sadly evergreen headline: Violence continued in Kabul this weekend, where a suicide attack against a member of parliament left 3 dead while injuring 8 others. Afghanistan’s TOLONews has more.

And while violence in Ukraine has declined, Reuters shares that one Ukrainian serviceman was killed and three more were wounded in fighting with Russian-backed rebels on Sunday.

The AP’s Ken Dilanian reported yesterday that in the months before the Snowdon leaks, the NSA considered dropping its secret metadata collection program. Counterterrorism officials believed that the costs of the program outweighed its benefits, but after the leaks, NSA leaders launched a campaign to strongly defend the program. While the proposal never reached the desk of then NSA Director Gen. Keith Alexander, the new revelations could have an impact on Congress as it weighs whether or not to modify or reauthorize the phone-records program.

Defense Secretary Ashton Carter is considering easing some of the military enlistment standards in order to attract and retain service-members and civilians in critical areas needed by the military and Department of Defense. Some of the proposed changes include lowering standards for cyber jobs and allowing members to participate in a 401k-type program since as many as 80 percent of service-members do not stay in the military long enough to earn retirement benefits.

ICYMI: This Weekend, on Lawfare

The Lawfare Podcast featured Jessica Stern, J.M. Berger and William McCants on Stern and Berger’s new book, ISIS: The State of Terror.

On Friday, Sebastian and Cody shared a review of the ISIS Guide to Holy War, or Lonely Planet: Islamic State–a new English language guide for would-be jihadists on how to prepare for and get to the Islamic State.

For Sunday’s Foreign Policy Essay, Andrew Scobell and Mark Cozad described China’s North Korea challenge, where diplomatic, economic, and military entanglements dictate that China is likely to keep its current course with the Hermit Kingdom.

Finally, Mira Rapp-Hooper brought us the latest issue from the Asia Maritime Transparency Initiative. This edition covers defense budgets in the Pacific littoral.

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.

 

International Legal Justification for the Yemen Intervention: Blink and Miss It

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Monday, March 30, 2015 at 12:31 PM

There has been surprisingly little discussion about the international legal justification for the airstrikes in Yemen that are being led by the Saudis. Other than a Just Security post that tackles some of the legal issues, the media and those using force have spent almost no time discussing whether the Saudi-led coalition’s intervention raises legal questions. That in itself is notable. States seem to be making fewer efforts these days to discuss their international justifications for using force (with a few exceptions), and few other states are demanding clear explanations for the force. (Consider, for example, the airstrikes by Egypt and the UAE in Libya in August 2014, which both states refused to discuss.) This could become an even more salient problem if the regional military force that the Arab League is discussing takes shape. The existence of such a force increases the likelihood that we will see military interventions by states that do not seem committed to articulating legal justifications.

The coalition’s justification is that they have the consent of Yemeni President Abed Rabbo Mansour Hadi. Hadi himself wrote a letter to the Security Council in which he asked the Security Council to authorize a military intervention to “deter Houthi aggression” and stated that he had asked members of the Gulf Cooperation Council and the Arab League to intervene militarily. He also invoked Article 51 of the Charter. This is odd, because Article 51 would only be relevant if Yemen (or the Saudi coalition) were asserting that Yemen was responding to an external armed attack. The Houthis are a rebel group whose roots are internal to Yemen. So unless Hadi intended to signal that he sees the Houthis as a front for Iran and plans to treat Iran as the true author of the Houthis’ violence, this invocation of Article 51 is misplaced. (And if he and the Saudi coalition believe that they are acting under individual and collective self-defense against Iran, they should file Article 51 letters. I have previously written about the increasing lack of such filings here.) More cynically, claiming self-defense to respond to “external” problems is a way to divert blame away from a regime’s own internal failures.

Assuming that the Saudi coalition is acting on Hadi’s consent to avoid any Article 2(4) problems, we might wonder about the strength of that consent, given that Hadi effectively has been forced out of Yemen. His consent is not as robust as it would be if he remained in power in Yemen and was merely seeking outside assistance to suppress a modest rebellion. The situation on the ground clearly has moved beyond that. Nevertheless, there are a significant number of examples in the past decades in which states have acted militarily in support of and with the consent of leaders who have lost effective control of their countries. This is just another example to add to the pile.

The Week That Will Be

By
Monday, March 30, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, March 30th at 4:30 pm: The Atlantic Council will host General Wesley Clark, former NATO Allied Commander, for an Exclusive Briefing from Ukraine’s Front Lines. General Clark just returned from Ukraine and will offer his thoughts on how the United States and NATO can help Ukraine withstand Russian aggression. Jan Lodal will moderate. RSVP.

Wednesday, April 1st at 10 am: As talks with Iran come down to the wire, the Brookings’ Center for Middle East Policy and the Arms Control and Non-Proliferation Initiative will host a discussion entitled Deal or No Deal? Negotiating with Iran. The panel, which includes Robert Einhorn, Suzanne Maloney, William Galston, will examine progress to date, the structure of a credible deal, and the politics of the deal in the United States and Iran. Daniel Byman will moderate. Register here.

Wednesday, April 1st at 10:30 am: At the Center for Strategic and International Studies, Brad R. Carson, Under Secretary of the Army, will off his thoughts on Tomorrow’s Army: The Future of Landpower and Army Innovation. Maren Leed will moderate. For more information, visit the CSIS announcement.

Wednesday, April 1st at 12:30 pm: The Center for Strategic and International Studies will also host an event on Information Sharing for Cybersecurity. Should the government participate, facilitate, or control the sharing of cyber threat intelligence by and between governmetn and commercial critical infrastructure? Are U.S. privacy protections adaptable to the Internet environment? Michael Daniel will provide a keynote address before a conversation with Tim Roxey, Shane McGee, Greg Nojeim, Michael Smith, Scott Aaronson and David Grannis. Register here.

Thursday, April 2nd at 12:30 pm: At the Atlantic Council, Bruce Hoffman, Bruce Riedel, Barry Pavel, and Bilal Y. Saab will discuss ISIS and al-Qaeda: Assessing Terrorist Threats to the Homeland and Beyond. Is one more dangerous to the United States than the other? Or, are they equally dangerous, but in different ways? RSVP here.

Thursday, April 2nd at 3 pm: Pakistan has vowed to step up its efforts to combat militancy and to eliminate its historical policy of separating between “good” and “bad” militants. In light of this, the Woodrow Wilson Center will host Zahid Hussain for a discussion entitled Pakistan’s Intensified Countermilitancy Push: Real Deal or False Hope. More information here.

 

Employment Announcements (More details on the Job Board)

Lawfare Intern

Internship Summary

This summer internship, beginning in June 2015, is a paid opportunity for undergraduate students, recent college graduates or graduate students with an interest in national security.  Interns will be responsible for helping to run and maintain Lawfare, a website devoted to serious, non-ideological discussion of national security legal and policy issues.

Lawfare has emerged as the internet’s indispensable resource for information and analysis on the law of national security. Devoted to “Hard National Security Choices,” the site features top-quality writing and analysis from experts on developing stories in the national security arena, relevant legislation, and judicial opinions. It is a digital magazine that includes a podcast, a book review, research tools, a daily news roundup, an events calendar, and exhaustive coverage of events other media touch only glancingly.

This internship pays an hourly rate of $10.50, and ideally applicants will work full-time (40 hours per week) but no less than 28- 32 hours per week, during regular business hours (dependent on the applicant’s school schedule), with some flexibility around an academic course schedule. The internship is based in Washington, DC and will last approximately 10- 12 weeks (depending on the start date).

Primary Responsibilities

The Lawfare intern’s responsibilities fall into three categories:

Writing:

  • Work with Associate Editor to monitor national security and foreign policy developments, and 2-3 times per week, co-write “Today’s Headlines and Commentary.”
  • Work with Associate Editor to co-write “The Week that Will Be,” a weekly feature that outlines upcoming events, academic announcements, and employment announcements.
  • Work with the Associate Editor to co-write a regular deep-dive analytical piece on a relevant national security law and policy issue.
  • Sole-author “The Week that Was,” a weekly piece that provides a guide to the week’s Lawfare

Research:

  • Provide research support to the Lawfare editorial team as needed. Current projects include a book manuscript on data and technology proliferation and their implications for security; a paper on technology and privacy; and a paper on military justice.
  • Work to develop the Lawfare Wiki by taking a deep research dive into one or two areas of national security law. The intern will identify key primary source materials, summarize relevant documents, and create and develop the topic page on Lawfare.

Maintaining the blog:

  • Tag and categorize all Lawfare posts
  • Track relevant Congressional hearings
  • Track and add relevant events to the Events Calendar

In addition to providing support to the Lawfare directly, interns will have the opportunity to attend internal meetings, hearings on Capitol Hill, local think tank events, professional development workshops, and public Brookings events as well as participate on Brookings sports teams and network with other interns throughout the Institution.

Education/Skills/ Experience

Graduate or undergraduate students (who has completed their sophomore year) working towards a degree in government, political science and law are encouraged to apply.  Recent college graduates are also eligible to apply.  Our most successful interns have very strong writing, analytical, and research skills, as well as excellent verbal and organizational skills—preferably demonstrated through prior independent research or previous experience as a research assistant.

Application Procedure

Applications will be considered on a rolling basis until the position is filled. To be considered, applicants must be authorized to work in the United States.

 A complete application will include the following items:

  • Cover letter highlighting your educational experience and skills, along with an explanation of how this internship will contribute to your professional career goals.
  • Resume
  • Names and contact information for three academic or professional references
  • Original writing sample ( no more than two pages)

Please email a complete application with “Your Name — Lawfare” in the subject line to Cody Poplin at [email protected] 

Brookings is an equal-opportunity employer that is committed to promoting a diverse and inclusive workplace. We welcome applications from all qualified individuals regardless of race, color, national origin, gender, sexual orientation, age, religion, physical or mental disability, marital status, veteran status, or other factors protected by law.

Successful completion of a background investigation is required for employment at Brookings. No phone calls please.

For examples of previous intern projects, see the author pages below:

Sebastian Brady

Benjamin Bissell

Tara Hofbauer

Read more »

The Foreign Policy Essay: China’s North Korean Challenge

By and
Sunday, March 29, 2015 at 10:00 AM

Editor’s Note: North Korea has long been a thorny problem for the United States as an erratic nuclear power that threatens America’s regional allies. Yet the problem may be even bigger for China, which has long propped up the North Korean regime but must live with its destabilizing behavior. Andrew Scobell and Mark Cozad of RAND describe China’s diplomatic, economic, and military entanglement with North Korea and contend that despite the many problems, inertia is likely to keep China on its current course.

***

The Democratic People’s Republic of Korea (DPRK) has proved to be a near-constant headache for the People’s Republic of China (PRC) since the early 1990s. Unlike relations across the Taiwan Strait with Taipei, which have improved appreciably since 2008, and relations with Washington and Tokyo, which has its ups and downs but remains cordial if not exactly friendly, Beijing’s Pyongyang problem has not abated and appears to be chronic. China’s unruly neighbor has conducted a series of nuclear tests and missile launches. Pyongyang’s provocations have come in swift succession: two incidents in 2010—the torpedoing of a Republic of Korea naval vessel and the shelling of an island near the demilitarized zone (DMZ), which killed a total of 48 South Korean military personnel and two civilians—and subsequent moves, including a declaration that Pyongyang would no longer abide by the 1953 armistice agreement and severing its hotline to Seoul; blocking South Korean access to Kaesong Industrial Zone; and executing Pyongyang’s key interlocutor with Beijing in the course of a political purge. For the PRC, there has been no respite where the DPRK is concerned.

andrew scobell, S0845North Korea besmirches China’s prestige and threatens its national security. Beijing has been accused of consorting with unsavory regimes around the world. For example, in the lead-up to the 2008 Olympics, China found itself tarred as the bad guy in a humanitarian tragedy in Darfur because of Beijing’s association with a Khartoum regime accused of perpetrating atrocities. China craves the reputation of a responsible global citizen and a force for good in the world. However, Pyongyang is not akin to Khartoum in Beijing’s eyes. After all, North Korea is not some far-off Third World state like Sudan. Rather, it is a radioactive Darfur on China’s doorstep—a humanitarian disaster that is the subject of enormous international attention, led by a repressive dictator armed with ballistic missiles and weapons of mass destruction. Instability immediately across the Yalu River directly threatens domestic stability in China’s heartland, if only because of the specter of many hundreds of thousands of refugees flooding into Northeast China. As a result, Beijing is ultra-sensitive to any hint of turmoil on the Korean Peninsula.

Under paramount leader Xi Jinping, China has—at least in official rhetoric—prioritized “denuclearization” above “peace and stability.” While Beijing is undoubtedly sincere about desiring a non-nuclear Korean Peninsula, the reality is that denuclearization is a much lower priority than maintaining peace and stability on China’s doorstep. Foreign Minister Wang Yi underscored these priorities in early 2014 when he said that Korea was China’s “doorway” and no one should foment instability there.

Why China Doesn’t Confront North Korea

Mark CozadBeijing is extremely risk averse, and alarm over the prospect of instability across the Yalu River is paramount in the minds of China’s senior leaders. They are afraid that if China gets too tough on North Korea it will only exacerbate matters—Pyongyang will pull away, Beijing will lose what little influence it has, and/or Pyongyang will escalate its provocations. While China is not happy with the current situation, maintaining the fragile status quo is preferable to the uncertainty of change, which from Beijing’s alarmist perspective increases the potential for instability. Although Beijing was not enthusiastic about dynastic succession following the December 2011 death of North Korean dictator Kim Jong Il, China accepted it believing it would provide some semblance of continuity and hence would be conducive to stability both in Pyongyang and in bilateral relations. But this assumption was called into question two years later, when Kim Jong Un executed his elderly uncle who had been North Korea’s lead interlocutor with the Chinese.

Bolstering the Buffer

The public discourse that has arisen in China in recent years urging Beijing to abandon its most truculent and troublesome neighbor appears to be the manifestation of more relaxed censorship rather than any indicator of policy change. On the contrary, Chinese leaders believe that they have no choice but to redouble their efforts of the past decade or so to bolster China’s DPRK buffer. Following the 2002-2003 Korean nuclear crisis, China decided that North Korea could not be allowed to fail. Beijing desires a neutral or pro-China buffer south of the Yalu River between it and South Korea—a U.S. ally with American military forces stationed within its borders. As such, Beijing has decided to go big and go strong in an all-embracing approach toward Pyongyang to strengthen the regime on its doorstep. This initiative includes diplomatic, economic, and military dimensions. Read more »

The Maritime Top Line: Defense Budgets in the Pacific Littoral

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Saturday, March 28, 2015 at 4:00 PM

In recent years, analysts have devoted much attention to the fact that China continues to increase its defense spending by double-digit percentages annually. They have also focused on fiscal constraints in the United States, and how these may impact Washington’s ability to sustain its presence in East Asia. Less well documented, however, is what these trends have meant for other countries in the region. With a rising superpower rapidly expanding its defense capabilities, we might expect its neighbors to follow suit. But is this actually happening? This issue of the Asia Maritime Transparency Initiative investigates.

Richard Heydarian argues that the Philippines has begun a defense overhaul under President Benigno Aquino III, implementing a 2012 act to modernize the Armed Forces of the Philippines. The aim of this initiative is to develop Manila’s minimum deterrence capability, and to improve its maritime domain awareness in the waters in its Exclusive Economic Zone (EEZ)—a priority that became especially urgent after Manila was ejected by China from the Scarborough Shoal in 2012. The Philippines’ defense spending increased from $1.24 billion in 2004 to $2.3 billion in 2009 and $3.47 billion in 2013. As a percentage of GDP, however, it hovers around just 2.5 percent. But Aquino has also taken steps to ensure that these funds are being used to beef up Manila’s maritime capabilities, and has seriously pursued peace negotiations with leading rebel groups. The Philippines’ Air Force and its rather paltry Navy have been the beneficiaries of these bumps, but establishing minimum deterrence at sea will still be a major challenge for Manila.

Vietnam has boosted its defense budget more than any other country in South East Asia, note Murray Hiebert and Phuong Nguyen, with a 113 percent increase between 2004 and 2013. Hanoi still spends just two percent of GDP on defense, however. A major turning point for Vietnam came when the Central Committee of the Communist Party released a maritime strategy, making its sovereignty and economic claims at sea major national security priorities. As in the Philippines, the Air Force and the Navy have benefitted the most from these modernization efforts. For many of its big-ticket aircraft and vessels, Vietnam has turned to Russia, with whom it maintains close defense ties dating back to the Cold War. In something of a realignment, however, Vietnam increasingly sees its security interests as tied to those of the United States and Japan, as a consequence of China’s increased assertiveness in the South China Sea. Washington has provided a maritime security assistance aid package to Hanoi, and both the United States and Japan are furnishing it with vessels. As is the case in the Philippines, however, a key question is whether Vietnam will be able to absorb this aid and make good use of its new acquisitions. Read more »

The Lawfare Podcast: “ISIS: The State of Terror”

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Saturday, March 28, 2015 at 1:50 PM

This week, Brookings hosted a book launch with Jessica Stern and co-author J.M. Berger for their new book, ISIS: The State of Terror. The panel, which also featured Brookings Fellow William McCants, details ISIS’s uniquely disturbing strategies and techniques—its unprecedented mix of brutality, media savvy, territorial gain, and recruitment. The authors also outline their recommendations for how the United States and its allies should respond to the ISIS threat.  It’s a timely discussion of an evolving threat.

Lawfare ran four excerpts from the book this week, which you can read below.

The Week that Was: All of Lawfare in One Post

By
Saturday, March 28, 2015 at 9:55 AM

On Wednesday, Cody shared the news that Sgt. Bowe Bergdahl has been charged with desertion and misbehavior before the enemy. The New York Times editorial board responded to the news by questioning the wisdom of prosecuting Sgt. Bergdahl, given the amount of suffering he has already experienced at the hands of the Taliban. Ben agreed that this suffering should probably preclude him from serving any jail time if convicted. But Ben also noted that Bergdahl’s desertion forced the Army to expend resources and put other soldiers in danger trying to find him, and that the Army has a compelling interest in prosecuting him to deter other soldiers from acting similarly.

The formal charges come as debate continues over whether President Obama violated the law by releasing five Taliban militants held at Guantanamo in order to secure Sgt. Bergdahl’s release. Jack gave us his take on the issue: the move probably violated three separate statutes and, if the President predicated his violation of these statutes on his Article II power, then he has veered into a legal gray area with little precedent as a guide. Jack also posted the Department of Defense’s “very strained statutory interpretation arguments” in response to a GAO memo that identified the same potential violation of those three statutes.

This week, Lawfare published four excerpts from ISIS: The State of Terror, a new book by Jessica Stern and J.M. Berger. In the first excerpt, the authors discussed the success of the ISIS online propaganda machine, which they argue is so successful not just because of its production value but also because of its content. While the videos and print productions include enough gore to both instill fear in opposing forces and inspire potential foreign fighters, they also include depictions of civil society in the Islamic State to draw the less-violent minded. The narrative, they note, is powerful: “come to the Islamic State and be part of something.”

The second excerpt described the media crews within ISIS that help disseminate this propaganda and the emphasis that the group placed on civil society during initial the expansion of its so-called caliphate. “Unlike its counterparts in Yemen and North Africa,” they write,  “ISIS seemed to relish providing services, rather than simply seeing it as a PR strategy.”

In the third excerpt, the authors described ISIS’s practice of sex slavery, as well as the religious justification for the practice that the group expounds. And in the fourth and final excerpt, they delved into the the social psychology of cults, and what studies of previous cults can tell us about ISIS and its future.

Dan Byman and Jenn Williams also discussed ISIS, describing the differences and similarities between it and Al Qaeda in this week’s Foreign Policy Essay. The difference between the two groups lies in what enemy each focuses on. Al Qaeda focuses on the “far enemy”—the United States; convincing the United States to withdraw from the region will leave the corrupt dictatorships it has long propped up vulnerable to overthrow. ISIS, on the other hand, looks to the “near enemy”—the first order of business is the overthrow of apostate regimes in the region; the United States will be handled later.

Cody and I also dealt with ISIS this week in the form of a travel guide written by an ISIS militant to help aspiring jihadis reach the Islamic State. While pointing out the basic absurdity of the document, we also noted the emphasis it places on Twitter as a tool of jihad. The use of Twitter and other online platforms as a means of radicalization presents a challenge for policymakers: aggressively blocking jihadist content can help prevent radicalization, but carries costs both in lost intelligence and the limiting of free speech.

Ingrid Wuerth wondered if the Supreme Court listens to the Solicitor General’s recommendations when deciding whether to hear foreign relations cases to which the U.S. government is not a party. The data she analyzed indicates that, in instances which the Court formally requests a “call for the view of the Solicitor General,” the Court listens to the SG about two-thirds of the time. That rate represents a slight drop from the 79.5 percent rate for all cases that an empirical study found more than a decade ago. While that drop is by no means statistically significant, it could be taken to mean that “the Court seems increasingly skeptical of the views of the Executive Branch.”

Nevertheless, Ben told us about an instance in which a court was all ears when the government gave its advice. In New York this week, a federal judge threw out a defamation suit between two private parties at the government’s request. The suit involved a claim by a Greek shipping magnate that an anti-Iranian advocacy group had defamed him and his company by accusing him of violating sanctions on Iran. The government filed an intervening motion asserting that the completion of the case could result in the disclosure of state secrets, and the judge acquiesced by tossing the case.

Speaking of Iran, next Tuesday is the deadline for reaching a political agreement on Iran’s nuclear program. While U.S. negotiators wrestle over centrifuges and monitoring requirements, U.S. politicians wrestle with what role Congress should play in the approval of any deal. Jack took a closer look at the “Iran Nuclear Agreement Review Act of 2015” introduced by Sen. Bob Corker (R-TN) and noted that the provisions of the bill seem fairly reasonable. Jack says of it, “I don’t think the Bill makes any unreasonable demand or possesses any constitutional infirmity.”

Jack also discussed the U.S. government’s position on economic espionage, which he takes to be this: the U.S. government doesn’t hide the fact that it conducts economic espionage, but it does limit itself to not conducting this espionage on behalf of U.S. firms. This limit, Jack noted, doesn’t mean all that much, especially because the government’s “economic espionage benefits U.S. firms in the aggregate.”

Herb detailed the three main pieces to the argument against the stance that there should be a technological mechanism allowing law enforcement—but nobody else—to decrypt information.

On the topic of government access to communications data, the June 1 sunset of Section 215 is fast approaching. The Obama administration has said that if the provision sunsets the program will be shut down. But complicating congressional action to reauthorize the program (or not) are three pending circuit court cases dealing with Section 215. Orin Kerr noted that the outcomes of these cases will have significant implications for the program, whether decisions are published before or after Congress takes action on Section 215.

Marko Milanovic teased out some interesting results from a recent international poll on public attitudes toward government  surveillance. He pointed out, among other things, a distinct citizenship bias: people are generally more OK with government surveillance of foreign nationals than of citizens, no matter what country you’re in.

In light of growing concerns regarding China’s reclamation efforts in the South China Sea, Ingrid explained the four key features of U.S. policy in the region, but noted that these may not be enough to address the contested maritime claims between regional powers.

Cody tipped us off to the release of the FBI 9/11 Commission Report, which found that the Bureau has made “measurable progress” but that there is more ground to cover in “building key intelligence programs.”

Yishai Schwartz and Jennifer Williams provided a round-up of the latest news out of the Middle East, breaking down the Israeli elections and the newly launched war in Yemen. Yishai also argued against allowing anger at Benjamin Netanyahu to push the United States to support  a U.N. Security Council resolution condemning Israeli construction in contested territories.

Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast, which, in addition to its usual round up of cyber news and lawsuits, features an interview with Richard Bejtlich.

Major General Michael Lehnert appeared on this week’s Lawfare Podcast. General Lehnert was the first commander of the Guantanamo detention facility and has since become one of the most prominent voices calling for its closure.

Ben also linked us to a new episode of Rational Security, wherein the gang tackles the Israeli elections and continuing White House-Israel tensions. On the Chess Clock Debates, Ryan Evans of War on the Rocks and Kori Schake of the Hoover Institution debate arming the Ukrainians.

And that was the week that was.

 

The ISIS Guide to Holy War, or Lonely Planet: Islamic State

By and
Friday, March 27, 2015 at 4:36 PM

“You can also bring cardigans.”  This is sartorial advice from the hardened jihadist recruiter behind a new travel guide for the Islamic State.

Are you looking to fulfill your ambitions of touring the newest state in the world? Excited for the prospect of perpetual war against people of your own faith? Enticed by an apocalyptic promise of battle? Want a guide that is laden with gender specific travel options? Well, do we have the guide for you.Screen Shot 2015-03-26 at 6.24.32 PM  “Hijrah to the Islamic State: What to Packup, Who to Contact, Where to Go, Stories & More!” is an e-book published by an ISIS militant, offering tips on how to make the trip to Syria in order to commit jihad.

Released in February, the book is remarkably detailed. As we discuss below, it gives aspiring jihadists advice on things like how to avoid suspicion when traveling, how to avoid government surveillance online, and even how to fill out tourist visas properly, even if illegally. The volume also—and quite importantly, given the legal and policy issues in play—touches on how to find ISIS contacts on Twitter if their accounts are deactivated.

A “Lonely Planet” for Jihadists

Though interesting, the how-to-ish details are not the most striking thing about “Hijrah to the Islamic State.” What struck us most, instead, was the basic banality of the book. Filled with jokes and attempts at witty quips, the volume is basically an ISIS travel guide. In fact, it could have more appropriately been called, “Lonely Planet: Islamic State”.

Take the section on packing. A helpful itemized packing list is provided, and it includes the usual: handkerchiefs, tissue paper, band-aids (war is dangerous, after all), and wet wipes. Because there’s nothing worse than getting to the caliphate only to realize you left your wet wipes in Turkey, am I right? Even CamelBak gets a shout out.

And while travelers are encouraged to bring an MP3 player (“For lectures and Qur’an”), it’s really important to bring a solar charger. It turns out that electricity is a bit of an issue in the caliphate. Who knew? But, the solar charger apparently also serves another purpose. Not only is solar power the caliphate’s only reliable source of electricity, but it’s so much more friendly to the environment. “It doesn’t mean that because you’re making hijra, you can now start dirtying the Earth which belongs to Allah.” After all, it’s no good building a worldwide Islamic empire if climate change sinks your ambitions.

Once you’ve gotten your tissues and MP3 players packed, it’s time to pick out your clothes. The author, well-versed in gender stereotypes, gives a shout-out to the ladies struggling to consolidate their wardrobes. “Bring only the strict minimum (okay, so some sisters fainted after reading this bit, but continue reading, in shā Allah).” A true jihadi apparently only needs four pairs of clothes. Bring a sewing kit, though, because ISIS doesn’t operate any stores where you can replace the pants you ripped while out committing jihad.

Most importantly, while planning your trip, stay on your parents’ good side! If you get grounded, they might take your phone, and nothing throws a wrench in your hijrah like having your phone confiscated. As our trusty author says, “duh… Please don’t attempt to make hijra if your parents confiscated your phone.”

Screen Shot 2015-03-26 at 6.24.47 PM (1)

In order to avoid suspicion, make sure you buy a round trip ticket, even though you “plan on never using the return ticket.” The guide also recommends arriving in Spain or Greece and then traveling by ship or car to Turkey. But no matter where you land, make sure you brush up on the tourist attractions in Turkey itself. If stopped by a border agent and questioned, you’ll raise eyebrows if you don’t know where the Blue Mosque is located. On a more serious note, there’s even a link to a CIA manual leaked by wikileaks explaining how operatives get through airport security without blowing their cover.

The guide closes with a series of personal testimonials from those who have successfully crossed the Turkish border into Syria. One writer tells of being asked for bribes of $6,000 at the Turkish border. Later he says that a different Turkish guard at a separate border crossing asked only for his gloves. It also concludes with stories of easy escapes, even when under surveillance. There is no way to independently verify these stories, but that does not matter. The point is to convince those who want to come that they can do so if they only try.

None of this suggests a very fun trip. Our guide notes that you will be running often and that you should also bring knee-pads because “there is much crawling you will have to do here.” Remember, “here you might have to sleep in uncommon places at odd hours.” And, when on your way to al-Dawlah, “don’t get scared if you notice…the place seems kinda drab.” If you’re a “single sister” and you don’t want to get married, the author says, “I don’t think anyone can force you to.” (emphasis added).

The guide even projects an odd level of self-awareness. At one point the writer catches himself referring to “the numbers” repeatedly, and then clarifies that by “the numbers” he means the contacts and handlers in Syria, but “saying ‘the numbers’ is just more dramatic y’know!” In a photoshopped Turkish VISA application, the guide highlights the checkbox for “Tourism,” advising you to avoid checking the newly inserted box “Commit Jihad in Syria.”

Screen Shot 2015-03-26 at 6.25.36 PM (1)
 

To be sure, even though the e-book is at times comical, and its directions rather goofy, its implications are profoundly serious. Quoting Ibn Taymiyyah, one of the intellectual forefathers of Salifism, the book begins: “Islam in the end of times will be more manifest in Sham (Greater Syria). […] So the best of the people on the earth in the end of times will be those who keep to the land of Ibrahim’s hijrah, which is Sham.” This message resonates with young recruits who are desperate to belong to something greater than themselves. And, what could be greater than the cosmic mission of fighting for God in the end times?

The Role of Twitter, and the Legal and Policy Response

Another important feature: Our little manual also makes clear the paramount role that Twitter plays in connecting would-be jihadists to the Islamic State.

Radicalizing often begins on the social media platform; 140-character encouragement likewise can sustain a newbie’s momentum in journeying to link up with the like-minded. It also helps logistically: When a would-be foreign fighter arrives in Turkey, for example, he is instructed to get in touch with someone in Syria, something “often done by a known Twitter contact.” The guide’s concluding part accordingly provides a long list of Twitter accounts to try. And while the latter move would seem to tip off authorities, ISIS already has a plan for that. They’ll just remake the same accounts, and simply add a higher number to it. So, @ISISFAN_2 becomes @ISISFAN_3, becomes @ISISFAN_4, ad infinitum.

While the role Twitter plays in ISIS’s recruiting is well-documented—see this survey conducted by J.M. Berger, for example—it’s unclear what to do about jihadists’ extensive use of the technology. One possibility is to have Twitter itself crack down on online propaganda. Earlier this month, members of the House Foreign Affairs Committee sent a letter to Twitter’s CEO Dick Costolo, urging his company to be more aggressive in blocking content supporting terrorism. (The signatories acknowledged First Amendment concerns, but ultimately dismissed them: “When Twitter accounts are used to support terrorism, such content does not deserve protections.”) Meanwhile, Australia’s Attorney General recently met with officials from Facebook, Youtube, and Google to press the tech firms to crack down more on the spread of documents like this on their online platforms. The United Kingdom has taken an even more aggressive stance on such propaganda. There, a simple download could potentially land you 10 years in prison under Section 58 of the Terrorism Act of 2000.

Screen Shot 2015-03-26 at 6.25.05 PM (1)

So far, as Berger explains, social media platforms have  “tak[en] shelter” under laws devised to exempt telephone companies “from liability for illegal acts carried out using a phone”—like executing a drug deal or communicating threats or sending harassing messages. But, as he also points out, at moment social media harassment per se is not illegal. The current legal framework, in other words, seems to leave companies with far-reaching authority to police speech on Twitter and comparable platforms.

Such leeway might or might not last. While the State Department has attempted to counter violent extremism on Twitter with its Think Again Turn Away campaign, it is not immediately clear how effective a U.S. government agency can be at trolling ISIS fighters while attempting to also establish itself as an authority on Islam. It may only be a matter of time until Congress decides to act on its own, and to compel companies to more pro-actively police radical propaganda and extremist networks on their social media platforms.

That is a risky proposition—the risks comprising (among other things) possible impingement on First Amendment values as well as the frustration of technological growth and development. Still, as Berger has argued, there is also “a clear intelligence value to be extracted” from ISIS Twitter and other online activity. Berger thus describes the challenge as building a system to “sufficiently degrade the performance of the network to make a difference without driving the less visible and more valuable ISIS supporters out of the social network in large numbers.” It remains to be seen whether policymakers will seek to develop such a system, consistent with free speech principles.

Today’s Headlines and Commentary

By
Friday, March 27, 2015 at 3:24 PM

A Saudi-led coalition continued its bombing campaign in Yemen on Friday, targeting Houthi forces and installations for the second straight day. The Associated Press reports that the strikes hit at least six provinces, but were focused on Sadaa, the northern province home to the Houthis, and military facilities around the Yemeni capital of Sana’a. These facilities were reportedly managed by factions of Yemen’s Republican Guard loyal to former President Ali Abdullah Saleh.

As the conflict in Yemen heats up, recently ousted President Abd-Rabbu Mansour Hadi surfaced in Riyadh yesterday, Al Jazeera notes, and was said to be traveling to Egypt, where he will join a two-day Arab League summit and attempt to secure further Arab support for airstrikes. Reuters has a helpful ‘Factbox’ detailing the current coalition. Thus far, all members of the Gulf Cooperation Council except Oman have joined the coalition, along with Jordan, Sudan, and Egypt, which has also raised the possibility of contributing ground forces. Morocco announced earlier today that it would make troops already stationed in the UAE available for the campaign. But Pakistan, which Saudi Arabia said yesterday had joined the coalition, announced today that it had not yet made that decision.

The AP writes that the current coalition may catalyze the creation of a joint Arab military force, a longtime goal of some in the region. Many members of the Arab League are pushing for such a force as a way to counter Islamist extremism or Iranian aggression, but Iraq and Syria, beneficiaries of Iran, remain reluctant to go along with such a plan.

The United States was quick to approve of the coalition’s actions and to note that it had provided “logistical and intelligence support” for the strikes, but it appears that the Saudis kept the U.S. government partially in the dark about the operation—a potential sign of the Kingdom’s growing independence from the United States. Reuters reports that Saudi Arabia didn’t reveal key details of the planned strikes until just before they began. The Washington Post adds that Republican politicians quickly claimed that this is due to a lack of trust between the two nations thanks to the Obama administration’s hesitance to upset Iran during ongoing nuclear negotiations. The Saudi ambassador to Washington, however, discounted these allegations, noting that “When push comes to shove, this relationship is unshakable.”

Saudi and U.S. officials also argued that a Saudi-led operation is key in dissuading Yemeni citizens from supporting al Qaeda in the Arabian Peninsula. The Sunni AQAP, the Wall Street Journal notes, is attempting to convince the majority Sunni Yemenis that it is the only force that can fight back against the Shiite Houthis. While attention has been focused on Sana’a and Aden, the terrorist group has already advanced elsewhere in the country, capturing bases in Shabwa and Lahij provinces.

While the United States is playing second fiddle in the Yemen campaign, it has apparently just “just declared ownership over the war in Iraq,” according to Jacob Siegel and Nancy Youssef, because of its recent decision to begin providing air support to the Iraqi government’s assault on Tikrit. That appears to be a problem for the Shiite militias who were spearheading the Tikrit assault until U.S. airstrikes, now in their second day, began. The New York Times reports that thousands of Shiite fighters are now boycotting the fight against the last ISIS militants in the city.

“We won’t let the Americans take the glory.” That’s the sentiment from Iran-backed Shiite militias as they withdraw from the battlefields of Tikrit, according to a spokesman for the militias. One militant took an even more hostile tone toward U.S. support: “We are staying in Tikrit, we are not leaving and we are going to target the American-led coalition in Tikrit and their creation, ISIS.”

Muscling Shiite militias out of the Tikrit campaign helped the U.S. government temporarily avoid directly supporting these paramilitary forces, many of which have been accused of spreading sectarian violence. But such maneuvering is becoming increasingly difficult as the militias fuse with official Iraqi security forces. The Post writes that this makes ensuring that U.S. weaponry doesn’t fall into the hands of these militias extremely difficult. While Iraqi officials claim that all U.S. weaponry given to Iraq remains in Iraqi government hands, numerous photos have surfaced showing militias using U.S. guns and military vehicles. “The Obama administration,” Missy Ryan writes, “appears to have accepted that [militias] will, at least sometimes, be using U.S.-provided weaponry.”

Even as conflict erupts in the region, negotiators in Switzerland are hoping to reach a framework agreement on the Iranian nuclear program by March 29th, Bloomberg reports. Diplomats involved in the negotiations said that the current round of talks, which resumed yesterday ahead of a March 31st deadline for a political agreement, has made progress, though envoys are still wrestling over how to define the agreement and how much of the agreement to make public.

Potentially complicating the final days of negotiations was a spurt of Twitter diplomacy by Iranian President Hassan Rouhani. The Times notes that President Rouhani tweeted the details of a letter he sent to President Obama detailing Iran’s position in the talks, and apparently followed the letter up with calls to several European leaders. In his calls, he reportedly pressed for the speedy end of sanctions on Iran, a position western negotiators have been loath to adopt.

Stateside, the Senate went the other direction, setting the stage for further sanctions on Iran. The Hill reports that the Senate yesterday unanimously passed an amendment supporting reimposing and broadening sanctions on Iran if President Obama can’t verify that the country is complying with the nuclear deal. But the broad support for the amendment is mostly due to its ambiguous nature. Politico explains that Democrats believe that it gives President Obama more room to negotiate, while Republicans think they’ve finally gotten Democratic support for Iran sanctions.

Yesterday, we reported that Pakistan has deployed ‘Burraq,’ its new armed drone, in its campaign against militants. But while Pakistani officials hailed the new drone as an entirely Pakistani creation, it turns out that they may have gotten a little help from a friend. IHS Jane’s writes that initial analysis of video showing ‘Burraq’ firing off a missile reveals a striking similarity between ‘Burraq’ and China’s CH-3 UAV. As frequent readers will note, China has recently become very interested in tamping down insurgencies in Pakistan.

Two attacks by the Pakistani Taliban left five police officers dead and wounded ten others, the AP reports. The first attack was a rocket strike late last night on a vehicle in Baluchistan. That was followed by a roadside bomb attack in Karachi.

Immediately ahead of tomorrow’s elections in Nigeria, the Nigerian military announced that it had destroyed Boko Haram’s headquarters in Gwoza. Reuters writes that Boko Haram captured Gwoza last August and was believed to hold some 200 of the schoolgirls whom the militant group kidnapped last year there.

Reuters also reports that a day after a suspected Islamist attack killed one police officer in Mombasa, Kenyan authorities arrested 52 people suspected of some connection to the attack. But, diplomats note, it is precisely these massive roundups that are helping fuel the rise of militancy in the country.

One year after Russia’s annexation of Crimea, are western sanctions actually hurting Russia? The Post asks the question, and argues that the current dismal state of the Russian economy is mostly due to factors other than western sanctions, like the precipitous drop in the price of oil. The biggest thing the sanctions have achieved is to help increase anti-Americanism to “heights not seen since Stalin.”

Australian lawmakers have passed new data-retention laws in an attempt to counter terrorist threats. The Wall Street Journal reports that the laws will require telephone operators and Internet providers to store records of their customers’ email and other communications for at least two years. The records include metadata from communications but not the content of the communications themselves.

According to newly released documents, the Pentagon is considering prosecuting up to seven more Guantanamo detainees, Carol Rosenberg writes. These additional prosecutions would increase the number of the 122 detainees currently at Guantanamo who could be accused of war crimes to 17.

The Times gives us the rundown on the unusual “misbehavior before the enemy” charge facing Sgt. Bowe Bergdahl.

A National Guardsman has been arrested in Indiana for allegedly trying to travel to Libya in order to fight for the Islamic State there, the Times reports. This is reportedly the first time an American has been arrested for trying to join ISIS somewhere other than Syria.

Kate Martin, the director of the Center for National Security Studies, writes about Congress’s failure to vote on the Obama administration’s proposed AUMF for ISIS in the Hill today. While noting that Democrats fear the AUMF would be a blank check for war, Kate counters that “adopting a new AUMF for the war against IS won’t be a blank check for war; doing nothing, failing to vote on a new AUMF, will be the blank check.”

Parting shot: British Muslim scholars trying to counter the spread of extremist ideology through online media have published the first issue of a digital magazine exposing the reality of Islamist movements. Check out the first issue of Haqiqah here.

ICYMI: Yesterday, on Lawfare

Ingrid Wuerth assessed the current U.S. policy toward the South China Sea.

Yishai argued against the Obama administration’s potential shift toward supporting a UNSC resolution condemning the Israeli construction of settlements in disputed territory.

Ben brought us a new episode of Rational Security and the newest Chess Clock Debate, which features Kori Schake of the Hoover Institution and Ryan Evans from War on the Rocks debating the merits of arming Ukraine.

Ben also broke the news that a federal judge threw out a defamation suit between two private parties at the behest of the U.S. government.

Jessica Stern and J.M. Berger posted the last of four excerpts from their new book, ISIS: The State of Terror.

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.

 

Where are the Section 215 Cases — and What Impact Will They Have?

By
Friday, March 27, 2015 at 3:12 PM

Section 215, the law that has been interpreted to authorize the controversial bulk telephony metadata program, will sunset in about two months — on June 1, 2015 — unless Congress acts. The White House recently confirmed that if Section 215 sunsets, the program will be shut down. I can’t predict what Congress might do, but I think it’s interesting to ponder one aspect of the story: Where are the circuit court rulings on Section 215, and what impact might their late arrival have on Congress and the Supreme Court?

Three circuits have heard oral argument on challenges to the bulk telephony metadata program. The Second Circuit held a long oral argument on September 2, 2014, almost seven months ago; the DC Circuit heard argument on November 4, 2014, almost five months ago; and the Ninth Circuit heard argument on December 9, 2014, almost four months ago.

So far, though, no decisions have been handed down. And there are only two more months to go before the provision sunsets. If none of the three courts weighs in before June 1, then presumably Congress’s path won’t be affected directly by the courts. After June 1, the question would become what happens to the circuit cases still pending. Some of them may become moot, depending on what Congress does or doesn’t do.

On the other hand, one or more circuit courts might weigh in on the program, either soon or closer to June 1. It’s very hard to game out the impact of those hypothetical rulings. The three cases, and the panels that heard them, are all different. The oral arguments gave hints, but no clear signs, about how the courts might rule.

But that’s no fun, so let me offer some guesses to make this interesting. Based on the oral arguments, my entirely speculative guess is that the Second Circuit is likely to reach the statutory issue but not the constitutional one and conclude that the program is not authorized by statute. On the other hand, my entirely speculative guess is that the DC Circuit and Ninth Circuit are likely to reject the constitutional challenges, either on standing or ‘search’ grounds, without weighing in on the statutory issues.

If my guesses are right — a big if, of course — the Second Circuit’s case is the one most likely to impact the congressional debate. A ruling by the Second Circuit rejecting the statutory basis of the program, just weeks before the program sunsets, would be a big deal. The Second Circuit would presumably stay any ruling pending appeal, and given the timing, we would hit June 1 before the stay ran out. So the ruling wouldn’t directly stop anything. But it could give Section 215 opponents in Congress significant ammunition to oppose renewal. And as a practical matter, Congress would probably have to assume the correctness of the Second Circuit’s statutory interpretation if the votes are there for some kind of compromise legislation that retains some aspects of the program.

Finally, the prospects of Supreme Court review any time soon seem relatively remote. Because the current version of Section 215 will sunset before the Supreme Court can act, I don’t see the Court interested in the statutory issues. The Ninth and DC Circuit cases might get bounced on standing grounds, so we might not get rulings on the Fourth Amendment questions. Even if we get rulings on the Fourth Amendment questions, I doubt the Supreme Court would be eager to step in unless a circuit court rules the program unconstitutional. There are just too many moving parts, and the records at this point are pretty weak.

If any circuit enjoins the program on constitutional grounds, then the Supreme Court would very likely grant cert if DOJ asks them to do so. But even such a circuit ruling might not lead to Supreme Court review in light of the sunset. If the program is not renewed, or is renewed in substantially modified form, it’s not clear what would be enjoined. The matter may very well get resolved in the lower courts without the Supreme Court stepping in.