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Regulating Foreign Surveillance Through International Law

Monday, September 8, 2014 at 1:45 PM

This Friday, the U.N. Human Rights Council will hold a session to discuss the right to privacy in the digital age. The Council is considering these issues in the wake of a General Assembly Resolution adopted in December (which affirmed that the same rights that people have offline must also be protected online) and a report by U.N. Special Rapporteur Frank La Rue on the protection of the right to privacy in the context of domestic and extraterritorial communications surveillance. That report offered some robust critiques of the ways in which states have conducted mass interception of internet and telephonic data and metadata, and in which they have used “national security exceptions” to allow expansive electronic surveillance.

Pulling together experts from civil society, academia, and private industry, this week’s discussion seems intended to bear down on those critiques, including by identifying challenges that states face as they try to strike the appropriate balance between their security goals and individual privacy rights of citizens and foreigners. Given that states historically have not used international law to regulate spying, is there reason to think – at this point in time – that states may (or should) turn to international law to regulate their conduct of foreign surveillance? There is, I believe, but not necessarily in the manner or form in which many human rights and civil liberties groups advocate. I’ve posted on SSRN a draft of a forthcoming article on this issue, entitled An International Legal Framework for Surveillance. I welcome comments on it. The abstract is here:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and subjects of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

My argument about how states should proceed diverges from the approach of many human rights groups. In my view, new international norms, at least in the first instance, should be procedural rather than substantive, both because a consensus about procedural norms is easier to achieve in the context of secret activity, and because a focus on procedural norms will allow states to avoid, for the time being, contentious discussions about their disparate views on fundamental aspects of personal privacy.

This approach rejects both an aggressively cynical view of the ability to regulate foreign surveillance and an unduly optimistic view that states will converge around robust international privacy protections in the short term. The cynics assume that pressures to modify the status quo will diminish in short order, overtaken by subsequent geopolitical crises. The optimists argue that states should develop the substantive principle of privacy contained in the ICCPR, and have robust aspirations for what that principle should contain. In my view, both of these approaches are unsatisfying, predictively and normatively. The cynics underestimate both the enduring nature of human rights pressures on states and the benefits to states of creating new international legal rules in this area. The optimists underestimate the difficulty of agreeing on concrete, substantive norms in a multilateral setting among states with varied incentives. For this reason, states should focus first on establishing procedural limitations that will reduce (though not eliminate) differences between the way in which they treat citizens and foreigners.

At the same time, my proposed approach is not meant to exclude the parallel process of international law development that undoubtedly will take place: the ongoing interpretation of the privacy provisions in the ICCPR and the European Convention on Human Rights. Both states and other actors that undertake treaty interpretation will continue to engage in the process of claim and counterclaim about what those provisions mean and how to apply them to this new world of foreign surveillance. This interpretive process can coexist with a decision by certain states to adopt new procedural norms regulating surveillance, and likely would prove complementary in establishing appropriate standards.

Even if states coalesce around the norms I identify in the article, the project is just starting. Many substantive questions remain unanswered: Should states treat bulk collection differently from collection on individual targets? Should states conclude that it is more permissible to collect on foreign officials, who presumably are on greater notice that they are engaged in matters of interest to other states, than to collect on average citizens? How wide a gap is acceptable between the treatment of the communications of a state’s nationals and foreign nationals? And does it make sense to draw geographic distinctions about where data is collected, held, or reviewed, as contemporary approaches do? My article proposes a launching point for basic international procedural norms of foreign surveillance. Conversations about these other thorny questions, many of which will occur as states flesh out the meaning of ICCPR article 17, almost certainly will take far longer to resolve. For now, the sense — among governments, elites, and average citizens — that something must fill in international law’s silence on foreign surveillance means that states should pursue basic procedural norms that restrain their foreign collection activities, at a cost they can bear.

Get Yer Guantanamo Recidivism Report Here!

Monday, September 8, 2014 at 12:03 PM

The latest DNI Guantanamo recidivism report is available here. The last such report is here. As you’ll see, not a a lot of change. Here are the numbers:
















Today’s Headlines and Commentary

Monday, September 8, 2014 at 9:00 AM

The Washington Post reports that the Islamic State has anti-tank weapons that have been seized from Syrian rebels. The news comes from a report by Conflict Armament Research, which concluded that ISIS fighters have captured a “significant” number of U.S.-manufactured arms.

The L.A. Times tells us that President Obama is slated to announce his strategy to combat the Islamic State on Wednesday. In an interview with NBC’s “Meet the Press” yesterday, the president hinted that he is likely to announce a more aggressive policy, stating that the United States would “start going on some offense” to push back against ISIS.

As we wait for President Obama, senior administration officials have indicated that successfully defeating ISIS could take years. The New York Times takes a look at the plan that the Obama administration is putting together—a plan that could extend well beyond President Obama’s time in office and through to the next president’s term.

David Carr of the Times explains that ISIS has used social media and video technology unlike any other terror organization has before. Writing on the recent videos of members of the terrorist group beheading foreign journalists, Carr insists that the footage is “spread[ing] fear and terror” unlike any other virtual campaign from similar groups in the past.

The New Yorker has a follow-up piece on the “failed raid to save [journalists] Foley and Sotloff” in Syria. (The Post, among other outlets, reported on the failed operation back in late August.)

Denmark is offering a form of amnesty to Danish Muslims who have gone to Syria to fight alongside extremist rebel factions. Al Jazeera reports that the Danish government is offering its citizens safe passage home and to help them find job opportunities to reintegrate back into Danish society.

The Times informs us that the Iraqi parliament is scheduled to proceed with a vote to confirm the new cabinet proposed by Prime Minister-designate Haider al-Abadi. The United States had previously pledged support of a new Iraqi government, provided that Mr. al-Abadi took the Prime Minister post, and that the cabinet was multisectarian.

Zeid Ra’ad Zeid al-Hussein, the new United Nations human rights chief, released a statement today urging action in Iraq and Syria to end the conflicts there. The Times covers the remarks.

Libya has expelled the Sudanese military attaché to the country over allegations that Sudan is helping to support extremist rebels in Libya. Al Jazeera reports that Libya intercepted a Sudanese military plane loaded with weapons, which the Libyan government determined was intended to reach rebel groups inside the country. Sudan confirmed that the plane was sent to Libya, but explained that the actual intended recipient was the Libyan government, and that the arms were meant for a joint Libyan-Sudanese border force.

The unity pact between Hamas and the Palestinian Authority is apparently on shaky ground. President Mahmoud Abbas, speaking after a meeting of the Arab League, threatened to break off the unity agreement with Hamas if the movement doesn’t allow the Palestine Authority proper governance over the Gaza Strip. The Times has the story.

Reuters reports that a large of group of Palestinians rioted in East Jerusalem yesterday after hearing the news that a young Palestinian had died of wounds from a clash with Israeli police that took place last week.

Afghanistan remains leaderless, and President Obama is urging the country’s two presidential candidates to enter into a power-sharing deal as soon as possible. The AP reports that President Obama spoke to both candidates, Ashraf Ghani Ahmadzai and Abdullah Abdullah, over the weekend.

The Senate has been delayed in publishing its CIA “torture report” that will declassify an enormous cache of CIA documents detailing CIA interrogation practices after 9/11.  While the Senate continues to deal with numerous hurdles on the way to final publication, the Telegraph has had an exclusive look at what the report might contain. The paper has had contact with two sources familiar with the contents of the report and the details are expected to be “deeply shocking.” For example, one source explained that the water-boarding tactics employed were vastly more brutal than than earlier thought: some detainees were apparently drowned in water baths, and thus brought close “to the point of death”.

A new exhibit in the National September 11 Memorial and Museum displays artifacts from the raid that killed Osama bin Laden. Newsweek has the details.

The ceasefire in east Ukraine appears to be unraveling, as fighting broke out early yesterday morning in the outskirts of Donetsk. Reuters reports that a woman died from the shelling.

North Korea has announced that its supreme court will try detained American Matthew Todd Miller on September 14. CNN has the story.

The United States is stepping up its role in the global fight against the ebola virus. The Post tells us that President Obama has announced that the U.S. military will begin to assist efforts to fight against the epidemic growing in west Africa.

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

The Week That Will Be

Monday, September 8, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, September 8th at 9 am: The Carnegie Endowment for International Peace will host Chief of Naval Operations Admiral Jonathan Greenert on the Asia-Pacific Rebalance. Admiral Greenert has recently returned from visiting his counterpart, Admiral Wu Shengli of the People’s Liberation Army Navy in Beijing. During the most recent visit, the two navy heads continued their discussions on ways to improve cooperation, and steps to increase their mutual confidence. Admiral Greenert will share his thoughts on the U.S. Navy’s relationship with the People’s Liberation Army Navy. Douglas H. Paal will moderate. RSVP here.

Monday, September 8th at 10 am: The United States Institute of Peace hosts an event entitled Countering Terrorism in Pakistan’s Megacities: Exploring the Role of the Pakistan Police. With violence from terrorism, secessionist insurgency, sectarian conflict and ethnic turf escalating in Pakistan’s megacities, the panel will discuss ways to increase the capacity of Pakistan’s local police to counter terrorism in the nation’s urban centers.Tariq Parvez, Ambassador Robin Raphel, Robert Perito, and Moeed Yuseuf will speak. RSVP or watch the live webcast here.

Monday, September 8th at 6 pm: In New York City, Fordham University will host a conversation on Terrorism Prosecutions: Lessons Learned and Future Challenges. What are the major challenges today facing terrorism investigations and prosecutions? How have counterterrorism strategies evolved? Have the criticisms of human rights advocates and civil libertarians about the way these cases are handled made an impact on the strategies of law enforcement? Panelists will address these and other questions. Seth DuCharme, Linda Moreno, John Dolan, and Andrea Prasow will speak. Register here

Tuesday, September 9th at 9:30 am: At the Atlantic Council, Daryl Kimball, Stephen Rademaker, and Barbara Slavin will provide an Iran Negotiations Update: Verification vs. Breakout Capacity. For more information or to RSVP, visit the Atlantic Council website.

Tuesday, September 9th at 12 pm: The Information Technology and Innovation Foundation will host an event entitled Resolving Cross-Border Internet Policy Conflicts. In a new report to be released at this event, ITIF President Rob Atkinson and Senior Analyst Daniel Castro argue that the dominant approaches to Internet policy, which typically calls for either universal rules applied to all nations or a complete free-for-all among countries – fail to provide a pragmatic path forward to resolve the inevitable conflicts that arise. Instead, will suggest a new framework for evaluating cross-border Internet policy conflicts that respects both the global nature of the Internet and national laws and norms. Register here

Wednesday, September 10th at 2 pm: The Institute of World Politics will hold an event entitled Ukraine: Summer’s Over. Having explored the crisis-riven Central and Eastern European country in July, Dr. Marek Jan Chodakiewicz will share his observations on the situation in post-Maidan Ukraine, including the eastern Donetsk region plagued by a Russian-supported irredentist insurgency and the area of the MH17 crash site. RSVP here

Wednesday, September 10th at 3 pm: Among the many atrocities of the Syrian civil war, the use of chemical weapons stands out as particularly brutal. The Assad regime’s accession to the Chemical Weapons Convention last year and the subsequent destruction of its declared chemical arsenal has helped reduce the risk of chemical weapons use again in that region. Destroying that arsenal quickly, securely and safely in a war-torn country, however, presented huge challenges. Thomas Countryman, Laura Holgate, Andrew Weber, and Sharon Squassoni will provide an assessment of Destroying Syria’s Chemical Weapons: One Year Later  at the Center for Strategic and International Studies. Please RSVP to the Proliferation Prevention Program at [email protected] or 202-741-3921.

Wednesday, September 10th at 4:30 pm: Author Joshua Muravchik will discuss his new book, “Making David into Goliath: How the World Turned Against Israel” at the Institute of World Politics.  His, we presume controversial, new book traces the process by which material pressures and intellectual fashions reshaped the world opinion of Israel. You can find more information here

Wednesday, September 10th at 6:30 pm: In New York City, the New York City Bar will host a panel conversation on The Legality Under International Law of Targeted Killings by Drones Launched by the United States. The event will be held in the Great Hall of the Association, at 42 West 44th St., New York, NY. Rory O. Millson will moderate a conversation between John B. Bellinger III, Sarah Knuckey, James Ross, and Scott Shane.

Thursday, September 11th at 12 pm: Turkey’s Presidential Elections 2014: What do they mean for Turkey’s democratization process, the Kurdish question and Turkey’s foreign policy? The Woodrow Wilson Center will host a round table discussion on these questions and more with Etyen Mahcupyan, Mesut Yegen, Gonul Tol, and Marina Ottaway. For more information or to register, please visit with Woodrow Wilson Center’s website.

Friday, September 12th at 9 am to 5 pm: The Middle East Institute will host an all-day event at the Park Hyatt Hotel entitled Egypt: Facing Challenges, Harnessing Potential. This will be MEI’s second annual conference on Egypt, and will include panels on Reforming the State, Fostering Inclusion, Unlocking Egypt’s Economic Potential, and Engaging Youth in the Future of Egypt. For a listing of times and a directory of panelists, visit MEI’s event announcement. Read more »

If We Don’t Need an AUMF for Iraq, Why Would Repeal of the 2001 AUMF Matter?

Sunday, September 7, 2014 at 6:59 PM

This coming Wednesday evening, President Obama will address the country on the topic of Iraq and the Islamic State, describing his strategy and making the case to the public to support an approach that not only will involve a continuation of the ongoing pattern of airstrikes (see here for a description of the latest set of airstrikes). Speaking on Meet the Press this weekend, the President explained that, though we will not put boots on the ground, this will not be an exercise in mere containment. As quoted in the Times, he said:

“We are going to systematically degrade their capabilities; we’re going to shrink the territory that they control; and, ultimately, we’re going to defeat them,” he added.

It does not follow, though, that the President will be asking Congress for an AUMF. On the contrary:

The president said he planned to meet with congressional leaders on Tuesday to outline his strategy, but suggested he did not need a vote to move forward with his campaign against ISIS, saying he was “confident” that he has the authorization he needs. Still, Mr. Obama hinted that he might ask for more money for the mission, saying, “It’s going to require some resources, I suspect, above what we are currently doing in the region.”

Jack has repeatedly made the case for why it is problematic (not to mention in great tension with his prior statements) for the President to proceed without asking Congress for an authorization. Rather than pile on as to that point, I want to make a different point here: If the President believes that Article II standing alone empowers him to engage in a military campaign of the magnitude contemplated for Iraq (and Syria?), why would anyone think that the continuing existence or repeal of the 2001 AUMF matters in legal terms for the way we use force in Pakistan, Yemen, Somalia, Afghanistan, Somalia, etc., aside of course from a repeal’s impact on the fate of the legacy population at GTMO? From a lethal force perspective, is there anything we currently do in those places that could not continue on the Article II model?

More on CIA Drone Strikes, Covert Action, TMA, and the Fifth Function

Sunday, September 7, 2014 at 6:16 PM

Yesterday Kevin Heller and I exchanged views on the possible sources of domestic authorization for the CIA to conduct drone strikes. His two initial posts are here and here; my response is here; and the first part of Kevin’s reply (focused on whether the drone strike program counts as covert action given the traditional military activity exception) is here. Here is my response to Kevin’s latest, focused on the Title 50 questions we’ve been discussing:

1. The TMA Issue Read more »

Consequence, Weapons of Mass Destruction, and the Fourth Amendment’s ‘No-Win’ Scenario

Sunday, September 7, 2014 at 10:29 AM

And, since I’m catching up on my blogging this morning, let me also recommend this paper by Scott Glick from the National Security Division of DOJ.   Very much relevant to the ongoing meta-data debate and other post-9/11 domestic law enforcement issues.  You may not agree, but it is worth a read. Here’s the abstract:

What is the role that consequence should play in a Fourth Amendment analysis? Should our view of reasonableness be affected by the nature of the consequence that the government seeks to prevent, such as stopping a terrorist from using a weapon of mass destruction (WMD)? While some may consider the use of a WMD by a terrorist to be a plot for an action movie, since the September 11, 2001, attacks, there have been increasing indications that malicious actors or organizations are attempting to obtain a WMD in order to cause massive devastation or catastrophic loss of life. Aside from advancements in technology that may enable the government to deploy an effective system of WMD sensors in the future, one of the most effective methods that the government could employ to locate a suspected terrorist who intended to use a WMD in an American city would be to monitor the terrorist’s communications.

But what if the government did not know the specific telephone or e-mail account that the suspected terrorist was using, even though it had specific and credible information that he intended to assemble and use the WMD sometime within the next 30 to 45 days? If the nation was not at war, how should a federal court resolve the constitutional tension that would arise if, instead of seeking a wiretap order that targeted a particular telephone or e-mail account, the government sought an order permitting it to target an indeterminate number of communications devices within that city, because that is the only way to find the terrorist and prevent the use of the WMD? Should the court refuse to issue such an order because the Fourth Amendment tolerates no other result, even though it could lead to massive destruction or catastrophic loss of life?

The hypothetical presents what some may call the Fourth Amendment’s “no-win” scenario, and it enables us to explore what very well may be some of the most challenging constitutional questions of our time. First, should consequence – that is, the nature and gravity of harm the government seeks to prevent – ever play an outcome-determinative role in a Fourth Amendment analysis? Equally important: who should decide whether consequence has a role to play? And, finally, how can government officials, who are responsible for protecting the nation from terrorists who seek to cause massive destruction or a catastrophic loss of life, obtain greater ex ante certainty in regard to the constitutionality of their preventative actions?

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based on publicly available information, Part II briefly explores the differences between chemical, biological, radiological, and nuclear WMDs, and the different consequences that can be reasonably anticipated from their respective use. Identifying these differences is critical to understanding how the significant definitional issues identified in Part III might affect the implementation of any new doctrinal solution. Part IV then looks at these issues through what I have elsewhere described as the “Fourth Amendment’s protective lens” and proposes that we use a probability-consequence matrix as an analytical framework to solve the “no-win” scenario. Finally, Part V seeks to lay out a path forward so that the Congress can consider and enact sensible legislation that will enable us to identify the limited circumstances in which consequence should be considered a factor in a Fourth Amendment calculus, particularly when a terrorist threatens to use a WMD.

Exploding Gas Tanks: Risk, Liability and Internet of Things

Sunday, September 7, 2014 at 10:24 AM

Well, summer is over now and it’s time to get back to the real world.  For starters, I had a chance to participate in a podcast for The Security Ledger on the topic of the vulnerability of the Internet of Things.  Here’s a summary and the full podcast is at the Security Ledger web page:

We like to construct Hollywood friendly plots around a lot of the seminal moments in our collective history. For Civil Rights, we like to picture the integration of Little Rock High School, Rosa Parks’ courageous protest on a Birmingham bus or the March on Washington. For environmentalism, we talk about Rachel Carson’s Silent Spring or, maybe, the burning Cuyahoga River in Cleveland. (This vintage news footage of the 1969 fire calls it the fire that “sparked the environmental movement” without any apparent irony.) For automobile safety, we imagine Ralph Nader and the image of a 1972 crash test that shows the gas tank of the Ford Pinto exploding in a rear impact collision, engulfing both cars in flames.

But those memories are often way oversimplified. Little Rock and the Birmingham bus strike were just two battles in a fight for civil rights that went back to the end of the Civil War. Likewise, the Cuyahoga fire in 1969 was just one of a string of similar fires on the same river, going back decades. By some accounts – it wasn’t even the worst of them. And the fight for better automobile safety, likewise, began long before Ralph Nader or the Pinto came onto the scene.

In other words, progress is slow and almost always incremental, rather than revolutionary.  And so it will be with the kinds of privacy and security issues we face today as a whole universe of new, intelligent and Internet connected technology invades our homes, workplaces, automobiles and clothing.

The Foreign Policy Essay: The Price of “Novorossiya”

Sunday, September 7, 2014 at 10:00 AM

Editor’s Note: Pundits in the United States and Europe worry that Russia’s invasion of Ukraine heralds the rebirth of an aggressive and dangerous adversary. Yet while Russia’s so-far successful military campaign in Ukraine and annexation of Crimea appear to be major advances for Moscow, the regime of President Vladimir Putin is also paying a heavy price. Carol R. Saivetz, a research affiliate in the Security Studies Program at MIT, contends that Russia’s economy, control over its far-flung territory, and foreign policy goals are all likely to suffer because of Moscow’s recent spate of adventurism.


Even as fighting in eastern Ukraine continues between forces loyal to Kyiv and pro-Russian separatists aided by Russian regular forces, we still don’t know President Vladimir Putin’s real goal. Does Putin simply want to destabilize the southeast to weaken Kyiv? Is he more ambitious and trying to create a quasi-independent statelet there? Or is his ultimate goal to control a swath of land from the Russian-Ukrainian border through Odessa to TransDniestr—so-called “Novorossiya”? (“Novorossiya” is a term coined by Catherine the Great for lands wrested from the Ottoman Empire.) Regardless of what Putin really wants, or whether he has even made up his own mind, Russia is already paying a high price—both economic and political—for Putin’s Ukrainian adventurism.

Western sanctions have damaged Russia’s already slowing economy, reducing the growth rate to “zero, with a minus sign,” while precipitating capital flight through August 2014 in amounts surpassing all of 2013. Additionally, the reverse sanctions imposed by Moscow have already led to significant increases in the price of food, ranging from 6 percent in the western parts of Russia to 26 percent in the Far East. For the rest of 2014, the overall inflation rate will be between 7-7.5 percent. Russian companies, now cut off from Western financial markets, are facing difficulties refinancing their debts. For example, Sibur, partially owned by Gennady Timchenko (who is on the sanctions list), borrowed $780 million from Sberbank and Rosneft asked for $42 billion from the state.

Carol Saivetz photo with borderLeaving aside the cost of sanctions, Russia is hard pressed to finance the absorption of Crimea, annexed in March. Russia will have to invest heavily to modernize infrastructure, raise pensions to levels comparable to Russia, and subsidize farmers who have lost access to the Ukrainian market. Should Russia successfully detach Donetsk and Luhansk, costs will grow exponentially. Both were highly subsidized by Kyiv, and Moscow would not only have to replace those subsidies, but also undertake a massive reconstruction effort. The estimates of reconstruction run to the billions of dollars because the separatists have destroyed roads, bridges, and most particularly the mines.

Russia cannot afford this. In the short term, funds earmarked for infrastructure projects in Siberia and in the troubled North Caucasus are being diverted to cover the burgeoning costs of the Crimean annexation. Over time, both regions will suffer and links to Moscow will be further attenuated. A second source of revenue for Crimea and beyond is money from individual pension accounts. Variously estimated at approximately $7 billion, the pension funds are being used to plug holes in the state budget. It has always been presumed that the “social contract” between Putin and the people is based on promises of better living standards. For the moment, people appear willing to endure hardships to support Putin; yet it seems reasonable to assume that Putin’s popularity would be diminished if people found everyday living harder as the costs are passed on to the average Russian citizen.

In the political sphere, one has to question how popular an open war with Ukraine would be. For all practical purposes, the war has thus far been hidden from public view. Now, suddenly, there are reports of mysterious funerals and unmarked graves. In Stavropol alone, the Committee of Soldiers’ Mothers reported at least 400 dead or wounded. Russian forces may help separatists seize Donetsk and Luhansk, but military analysts believe that Moscow would need over 100,000 troops to hold the territory. Those soldiers would not be welcomed as they were in Crimea, thus risking the loss of many more men. One need only remember the Soviet experience in Afghanistan: support for the war waned as coffins came home to the larger cities. For the moment, Putin’s soaring popularity is clearly based on propaganda, the promotion of ethnic Russian nationalism, and the restoration of national pride. Yet only 5 percent of those polled favor sending troops to Ukraine. To be clear, none of this is meant to predict the demise of the Putin power structure, but it does portend a significant weakening of the regime. Read more »

DOJ Declassifies Memos On Domestic Surveillance Program

Sunday, September 7, 2014 at 8:36 AM

The Department of Justice recently released two Office of Legal Counsel opinions by Lawfare‘s own Jack Goldsmith from 2004. The first memo provides a lengthy and at times heavily-redacted justification for the National Security Agency’s STELLAR WIND program—a suite of domestic surveillance authorities that began in the Bush administration. The second, much shorter memo analyzes the implications of the Supreme Court’s ruling in Hamdi v. Rumsfeld for the legality of STELLAR WIND.

We will have a summary of these memos out soon, so stay tuned.

CIA Drone Strikes and the Public-Authority Justification

Saturday, September 6, 2014 at 4:01 PM

In a pair of posts (here and here), Kevin Heller at Opinio Juris explores a very interesting question: What exactly is the domestic legal foundation for the CIA’s use of lethal force given that the 2001 AUMF refers explicitly to US armed forces only? As he points out, the question matters especially in connection with the drone strike that killed US citizen Anwar al-Aulaqi, since 18 USC 1119 criminalizes the killing of US citizens abroad, and CIA officials could only avoid liability via the “public authority” justification if there is a proper domestic law justification.

Kevin highlights two possible sources of authority, and rejects them both as inapplicable. First, he rejects the 2001 AUMF on the ground that it refers explicitly, and only, to the use of US armed forces. Second, he rejects the argument that Title 50’s covert action provisions can provide the justification, reasoning that drone strikes cannot be considered “covert action” within the statute’s meaning because they qualify, instead as “traditional military activity” (“TMA”)—a category that is excluded by statute from the definition of covert action.

I disagree with Kevin’s ultimate conclusion for several reasons. Read more »

The Lawfare Podcast, Episode #90: The ISIL Threat—A National Counterterrorism Assessment

Saturday, September 6, 2014 at 1:55 PM

It’s already made the headlines, but earlier this week, Matthew Olsen, Director of the National Counterterrorism Center, delivered a threat assessment of the Islamic State of Iraq and Syria at the Brookings Institution. Olsen’s assessment stood out among the many others that have been released into the Washington echo chamber: it was alarming yet measured; it addressed the structural factors both propelling and limiting ISIL; and it outlined a series of steps the United States could take to limit the threat to the U.S. homeland and its interests abroad. Overall, Olsen paints a picture of a radical group with unnerving capabilities, but one that he says is certainly not “invincible.” Bruce Riedel, Director of the Intelligence Project and Senior Fellow at Brookings, introduced Olsen and moderated the discussion.

The full event video is below, and you can find a text version of Mr. Olsen’s remarks here.

The Week That Was: All of Lawfare in One Post

Saturday, September 6, 2014 at 9:55 AM

This week, Bobby began providing a discussion from the Transatlantic Dialogue on International Law and Armed Conflict exploring when the Law of Armed Conflict ceases to apply, especially in instances of non-international armed conflict. Over the next few weeks, Lawfare will host a series of short pieces that provide readers with a sample of topics addressed at this summer’s second annual Transatlantic Dialogue on International Law and Armed Conflict.

On Saturday, Ben brought us a Lawfare Podcast devoted to an emerging threat that has dominated public discourse recently: brain-eating zombies. Shane Harris of Foreign Policy magazine moderated “Bone-Crushing Zombie Action,” which featured a discussion between Bobby Chesney, Jennifer Daskal, and Ben focusing on the legal questions inherent in zombie apocalypses. Spoiler alert: there’s a reason the post has a zombified picture of Bobby on it.

Speaking of podcasts, Ben recommended a series of podcasts by Dan Carlin entitled, “Hardcore History,” which explore World War I in depth.

Cody brought us a letter sent by Attorney General Eric Holder and Director of National Intelligence James Clapper to Senator Patrick Leahy that endorses the Senator’s version of the USA FREEDOM Act.

On Friday, Zoe Bedell summarized the recent decision of the European Court of Human Rights on extraditions to the United States: Trabelsi v. Belgium.

Jane and Ben tipped us off to their newest Brookings Institution paper, “Our Cyborg Future: Law and Policy Implications,” which analyzes the legal questions surrounding our existence as “adolescent cyborgs.” Unlike the zombies, this paper is actually serious.

Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured a discussion with David Hoffman, Intel’s Chief Privacy Officer, on, among other topics, the European Court of Justice’s decision regarding the right to be forgotten.

On Friday, Cody shared a White House statement that confirmed the death of Ahmed Godane, the leader of Al-Shabaab in Somalia, in an airstrike last weekend.

Earlier in the week, Bobby discussed the legal dynamics of the same reported drone strike in Somalia, and if true, whether the Obama Administration could reasonably invoke authority granted under the 2001 AUMF.

Ben flagged National Counterterrorism Center Director Matthew Olsen’s Wednesday speech at the Brookings Institution on the ISIS threat. To listen to the speech, make sure to check out this week’s Lawfare Podcast.

On Wednesday, Cody tipped us off about the recent resignation from the U.S. Army of Major Jason Wright, a (former) lawyer for Khalid Sheikh Mohammed. Wright reportedly resigned after the Army forced him to leave the legal team representing Mohammed in order to complete a graduate school program that would enable his promotion.

Wells flagged the Second Circuit’s decision to affirm the denial by the Southern District of New York of a Freedom of Information Act suit filed to gain access to videos and photos of Mohammed Al-Qahtani, a high-profile Guantanamo detainee.

Tuesday, Jack asked whether the President’s unusual, frequent, and repeated War Powers Resolution letters to Congress are a new tactic to avoid the Resolution’s time limits on operations without statutory Congressional approval.

On Monday, Orin Kerr previewed the oral arguments in ACLU v. Clapper, a challenge to Section 215, heard on Tuesday in front of the Second Circuit. Kerr also provided the video of the argument after the day’s hearing closed. Later on Tuesday, Kerr summarized the CA2 ACLU v. Clapper proceedings and offered his impressions.

Ben highlighted the recent seminar that Anne Neuberger, the director of the NSA’s Commercial Solutions Center, gave at the Long Now Foundation.

In this week’s Foreign Policy Essay, Sumitha Narayanan Kutty, a foreign affairs analyst and journalist specializing in Iran and South Asia, detailed Iran’s four long-standing strategic objectives in Afghanistan as well as the potential challenges to its influence there.

John Bellinger brought us news that SDNY Judge Scheindlin had dismissed the remaining Alien Tort Statute suits against Ford and IBM in what he characterized as the “largest, longest-running, and most expensive lawfare battle in history.”

And that was the week that was.

Transatlantic Dialogue on Int’l Law and Armed Conflict: Ken Watkin on the IHL/IHRL Interface

Friday, September 5, 2014 at 6:59 PM

The next installment in the series of posts derived from this summer’s Transatlantic Dialogue on International Law and Armed Conflict is now live at the ICRC’s Intercross blog. It is from Ken Watkin, and it concerns the overlap of IHL and IHRL. A taste:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

Today’s Headlines and Commentary

Friday, September 5, 2014 at 2:43 PM

Today has been characterized as “Decision Day” at the NATO Summit in Wales, and so far, the moment appears to be living up to its appellation.

The Ukrainian government and pro-Russian separatist forces have agreed to a cease-firereports the New York Times. According to negotiators from both sides, the cease-fire will begin today. However, fighting around the Ukrainian city of Mariupol had escalated dramatically just before the ceasefire, calling into question the strength of the agreement. The Guardian suggests that the shelling has since died down and may have been part of a strategy to push Ukraine to sign the agreement. The agreement comes after Russia intervened in the conflict in order to prevent the defeat of the rebels. The Washington Post has more on the story.

Even as the cease-fire begins, President Obama and European leaders are finalizing a new round of sanctions on Russia’s financial, defense, and energy sectorswrites the Wall Street Journal. President Obama expressed skepticism that the separatists will uphold their end of the agreement or that Russia will stop violating Ukrainian sovereignty, proposing that it might be better to impose sanctions, and then lift them if there is progress. The sanctions could be imposed as early as todayrelays the Times.

According to the Associated Press, NATO leaders approved the creation of a 4000-troop rapid response force with a headquarters in Eastern Europe. While NATO Secretary-General Anders Fogh Rasumussen seemed reticent to name any specific threat the force was intended to deter, it is widely seen as a response to recent Russian aggression in the region. British Prime Minister David Cameron said that the new force would be able to deploy anywhere in the world within two to five days.

Writing in Christian Science Monitor, Howard LaFranchi explains how after a decade of sitting adrift, Russian President Vladimir Putin has breathed new life into an alliance many people thought outdated. In Foreign Policy, former U.S. Secretary of State Madeline Albright calls for a “united front,” arguing that only a strong NATO can stop Russian aggression.

The Guardian has live updates on the NATO Summit as it happens.

Turning our attention to Iraq and Syria: A coalition appears to be emerging that will take the fight to ISIS. This morning, Secretary of State John Kerry identified a “core coalition” of ten countries that would support U.S.-led efforts to disrupt and destroy the Islamic State, reports Politico. Britain, France, Germany, Canada, Australia, Turkey, Italy, Poland, and Denmark have all agreed to join the United States, although officials have offered few details of the commitments.

In many ways, it also appears that a strategy, however limited, is developing. Philip Ewing in Politico writes, “The overall message so far is that if the U.S. does most of the flying and attacking in a potential campaign against ISIL in Syria, it will at least have assistance and diplomatic cover from as many allies as possible.”

In a joint statement from Secretary Kerry and U.S. Defense Secretary Chuck Hagel, specific U.S. goals appeared for the first time: military support for Iraq, curbing the flow of foreign fighters into the region, cutting off ISIS’s financing and funding, assisting with the region’s humanitarian crisis, and “delegitimizing” ISIS’s ideology.

However, the Secretary of State told the assembled leaders, “Obviously I think that’s a redline for everybody here: no boots on the ground.

While concrete actions have yet to be announced, the Daily Beast reports that Britain is preparing for strikes against ISIS. The Financial Times has more on the potential UK military operations in Iraq.

Far away from Wales, a most unlikely coalition partner has signaled its willingness to coordinate with the United States against ISIS. The BBC reports that Iran’s Supreme Leader Ayatollah Khamenei has authorized his top commander to coordinate with the U.S., Iraqi, and Kurdish forces. While the Iranian government immediately denied the report, such coordination would not be unprecedented – Iran cooperated with the U.S. in Afghanistan by arming the Northern Alliance in 2001. Indeed, the BBC notes that this cooperation may have already started as General Qasem Soleimani, Commander of the elite Qud’s Force, was pictured in Northern Iraq near Amerli at the time of the breaking of the siege.

Even so, those hoping that the United States will expand its operations into Syria are likely to be disappointed in the immediate term. The Washington Post adds that as the U.S. has sought commitments for the fight against the Islamic State, it has focused “tightly” on Iraq.

In Iraq itself, sectarian violence continued yesterday, with two bombs killing at least 20 people in Baghdad. The BBC also carries the story.

On Thursday, an air strike in the ISIS-held city of Mosul killed Abu Bakr al-Baghdadi’s top aideaccording to the Iraqi defense ministry. In Syria, an Assad-government air raid has killed eighteen ISIS militants – many of whom were foreign fighters. Among the dead was an American jihadist. Reuters reports that a second raid on Thursday targeted a former intelligence headquarters in Abu Kamal that was used by the Islamic State. It is unknown how many militants were killed.

Reuters also has an exclusive report detailing a troubling new level of cooperation between ISIS militants and Ansar Bayt al-Maqdis, a militant group in Egypt that has killed hundred of government security forces over the last year.

Following a briefing from Sigrid Kaag, the head of the United Nations’ effort to remove chemical weapons in Syria, U.S. Ambassador to the United Nations Samantha Power noted discrepancies in Syria’s declared stockpile of chemical weapons and those actually destroyed. The differences, according to Power, have sparked concerns that ISIS may get a hold of chemical weapons left in Syria. The Associated Press has more.

Al-Monitor has coverage of a depressing new turn in the conversation regarding a potential U.S. mission in Syria. Citing a Lebanese source close to the Syrian government, they report that Assad’s forces may be deliberately focusing on defeating moderate rebel groups other than ISIS in order to eliminate possible alternatives to for Western military collaboration against ISIS.

And because American forces in Syria would either benefit Assad or ISIS, writing in the Daily Beast, Representative Adam Schiff (D-California), a member of the House Intelligence Committee, argues that American airstrikes in Syria against ISIS would do more harm than good.

Finally, the Washington Post has an excellent new interactive graphic that tracks the rise of the Islamic State.

The New York Times sheds new light on Hamas’s role in the murder of three Israeli teenagers that sparked the latest Gaza war. According to new documents released from the ongoing investigation, the kidnapper was indeed associated with Hamas, but there is no evidence that top Hamas leaders directed the plot.

NATO leaders breathed a sigh of relief on Thursday as Afghanistan’s two presidential candidates signaled that they would form a government of national unity and sign an agreement permitting foreign troops to stay in the country. The announcement comes as the Independent Election Commission spokesman in Afghanistan confirmed that election officials have completed the U.N. supervised audit of votes. However, it remains unclear when the final results of the audit will be announced. Reuters has more coverage on the political crisis that has taken a back seat to Ukraine, Iraq, and Syria in recent weeks.

Now to Africa: Following the apparent capture of the town of Bama on Thursday, Reuters reports that Nigerian warplanes have initiated strikes against Boko Haram bases in Borno, a state in the northeast of the country. The New York Times reports that amid fears that the major city of Maiduguri may also be overrun, hundreds of residents have fled. This comes as the United States announced plans to launch a major border security program to help Nigeria combat the extremists.

Today, the White House confirmed that Ahmed Godane, the leader of al-Shabaab in Somalia, was killed last weekend in a targeted U.S. military strike.

Across the Atlantic, Vice News covers the upcoming hearing wherein a federal judge will rule on the possible release of 2,100 photos of U.S. soldiers abusing Afghan and Iraqi prisoners. The hearing is on September 8th, when the government will be given the opportunity to provide additional evidence to justify withholding the images. Judge Alvin Hellerstein has already stated in a 21-page ruling that he believes the “government has failed to submit to this Court evidence supporting the Secretary of Defense’s determination that there is a risk of harm” to U.S. national security should the photos be released. The hearing follows this week’s federal court ruling that the U.S. government can withhold photographs and videotapes of a Guantanamo Bay detainee.

The BBC reports that the British High Court has approved the extradition of Haroon Aswat to the United States. Aswat is accused of conspiring with radical cleric Abu Hamza al-Masri to establish a terrorist training camp in Oregon.

Finally, in Politico’s 50, Editor Michael Hirsh examines the future for Gleen Greenwald’s Brazilian-based journalistic enterpriseasking, “Has Greenwald, Inc. Peaked?”

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.

DOD Confirms Death of Ahmed Godane

Friday, September 5, 2014 at 12:12 PM

The White House has just released a statement confirming the death of Ahmed Godane, the leader of Al Shabaab in Somalia. According to the statement, the U.S. military targeted Godane in a successful air strike last weekend. The full statement is below:

Today, the Department of Defense confirmed that Ahmed Godane, the leader of al-Shabaab, is dead as a result of a U.S. military targeted airstrike in Somalia undertaken over the weekend. Godane’s removal is a major symbolic and operational loss to the largest al-Qaida affiliate in Africa and reflects years of painstaking work by our intelligence, military and law enforcement professionals. Even as this is an important step forward in the fight against al-Shabaab, the United States will continue to use the tools at our disposal—financial, diplomatic, intelligence and military—to address the threat that al-Shabaab and other terrorist groups pose to the United States and the American people. We will also continue to support our international partners, particularly the African Union Mission in Somalia, that are working to support the Federal Government of Somalia build a secure and stable future for the Somali people.

The U.S. Department of State named al-Shabaab a Foreign Terrorist Organization under Section 219 of the Immigration and Nationality Act (as amended) on February 26, 2008, and a Specially Designated Global Terrorist entity under Executive Order 13224 on February 29, 2008.

In September 2013, Godane publicly claimed al-Shabaab was responsible for the Westgate Mall attack, which killed and injured dozens in Nairobi, Kenya, calling the attack “revenge” for Kenyan and Western involvement in Somalia and highlighting its proximity to the anniversary of the attacks of September 11, 2001.  Under his leadership, the group has claimed responsibility for many bombings—including various types of suicide attacks—in Mogadishu and in central and northern Somalia, typically targeting officials and perceived allies of the Somali Government as well as the former Transitional Federal Government (TFG) of Somalia. Godane has also continued to oversee plots targeting Westerners, including U.S. persons, in East Africa.  In recent months, al-Shabaab claimed responsibility for a suicide bombing in Djibouti that killed a Turkish national and wounded several Western soldiers as well a car bomb at the Mogadishu airport that targeted and killed members of a United Nations convoy.   Al-Shabaab was responsible for the twin suicide bombings in Kampala, Uganda, on July 11, 2010, which killed more than 70 people, including one American. The group has also been responsible for the assassination of Somali peace activists, international aid workers, numerous civil society figures, and journalists. In February 2012, al-Shabaab and al-Qaida announced their formal alliance through a statement in which Godane swore allegiance to al-Qaida and promised to follow “the road of jihad and martyrdom in the footsteps that our martyr Osama bin Laden has drawn for us.”

Cyborgs! Law and Policy Implications

By and
Friday, September 5, 2014 at 10:27 AM

And now for something completely different: Cyborgs. No, this is not a joke. For years, certain technology enthusiasts have floated variations on the question of whether we are becoming cyborgs—or already are cyborgs. In our newly released paper, titled “Our Cyborg Future: Law and Policy Implications,” we take a different, more legal angle.

The law remains embryonic on virtually all points of interest to the adolescent cyborg: everything from your right to access your own data, to your right to restrict access to your data, to your ability to secure something more than property restitution when an airline destroys your custom mobility assistance device and leaves you bedridden for a year. That’s right: whether you rely on a pacemaker to stay alive or on a cellphone to stay connected, when we say “adolescent cyborg,” we are talking about you.

Here’s the introduction:

In June 2014, the Supreme Court handed down its decision in Riley v. California, in which the justices unanimously ruled that police officers may not, without a warrant, search the data on a cell phone seized during an arrest. Writing for eight justices, Chief Justice John Roberts declared that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”This may be the first time the Supreme Court has explicitly contemplated the cyborg in case law—admittedly as a kind of metaphor. But the idea that the law will have to accommodate the integration of technology into the human being has actually been kicking around for a while.Speaking at the Brookings Institution in 2011 at an event on the future of the Constitution in the face of technological change, Columbia Law Professor Tim Wu mused that “we’re talking about something different than we realize.” Because our cell phones are not attached to us, not embedded in us, Wu argued, we are missing the magnitude of the questions we contemplate as we make law and policy regulating human interactions with these ubiquitous machines that mediate so much of our lives. We are, in fact, he argued, reaching “the very beginnings of [a] sort of understanding [of] cyborg law, that is to say the law of augmented humans.” As Wu explained,

[I]n all these science fiction stories, there’s always this thing that bolts into somebody’s head or you become half robot or you have a really strong arm that can throw boulders or something. But what is the difference between that and having a phone with you—sorry, a computer with you—all the time that is tracking where you are, which you’re using for storing all of your personal information, your memories, your friends, your communications, that knows where you are and does all kinds of powerful things and speaks different languages? I mean, with our phones we are actually technologically enhanced creatures, and those technological enhancements, which we have basically attached to our bodies, also make us vulnerable to more government supervision, privacy invasions, and so on and so forth.

And so what we’re doing now is taking the very first, very confusing steps in what is actually a law of cyborgs as opposed to human law, which is what we’ve been used to. And what we’re confused about is that this cyborg thing, you know, the part of us that’s not human, non-organic, has no rights. But we as humans have rights, but the divide is becoming very small. I mean, it’s on your body at all times.

Humans have rights, under which they retain some measure of dominion over their bodies. Machines, meanwhile, remain slaves with uncertain masters. Our laws may, directly and indirectly, protect people’s right to use certain machines—freedom of the press, the right to keep and bear arms. But our laws do not recognize the rights of machines themselves. Nor do the laws recognize cyborgs—hybrids that add machine functionalities and capabilities to human bodies and consciousness.

European Court of Human Rights Takes on Extraditions to the U.S.: Trabelsi v. Belgium

Friday, September 5, 2014 at 7:06 AM

The European Court of Human Rights released its opinion in the case of Trabelsi v. Belgium on yesterday, holding that by extraditing Nizar Trabelsi to the United States, where he possibly faced an irreducible life sentence, Belgium had violated Trabelsi’s rights under Article 3 of the European Convention on Human Rights (which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”).

As the opinion describes, Nizar Trabelsi, a Tunisian national, was arrested in Belgium in the days following the attacks of September 11, 2001. Based on, among other things, the “false passports, automatic weapons and ammunition, . . . chemical formulae [for explosives], and a detailed plan of the United States Embassy” that were found during the execution of a search warrant (pg. 2), Trabelsi pled guilty to the offenses of criminal conspiracy, destruction by explosion, possession of combat weapons, and belonging to a private militia. The court stated that Trabelsi “attempted to commit one of the most serious crimes since Belgian independence” (pg. 2), and he was sentenced in September 2003 to ten years imprisonment.

In November 2007, the United States government issued an arrest warrant for Trabelsi on charges that he conspired with and provided support to Al Qaeda in order to kill U.S. nationals and use weapons of mass destruction to destroy property used by the U.S. government in Europe. The United States submitted an extradition request to the Belgian government in April 2008. As the case wound its way through the Belgian system, the U.S. Department of Justice provided a series of assurances in accordance with Belgian law, including that Trabelsi would only be detained in civilian facilities, that he would not be tried before a military commission, and that he did not face an irreducible life sentence. The Minister of Justice ultimately issued the extradition order in November 2011. Read more »

DOJ AND ODNI Support Leahy NSA Reform Bill

Thursday, September 4, 2014 at 4:36 PM

It looks like it’s time for Lawfare to update an old post of ours, “Who is Saying What about the Leahy Surveillance Bill.”

On September 2, Attorney General Eric Holder and Director of National Intelligence James Clapper sent a letter to Senator Patrick Leahy endorsing the Senator’s version of the USA FREEDOM Act.  Key passages are highlighted below:

The Intelligence Community believes that your bill preserves essential Intelligence Community capabilities: and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency.

The letter continues:

The Intelligence Community believes that, based on communications providers’ existing practices in retaining metadata, the bill will retain the essential operational capabilities of the existing bulk telephone metadata program while eliminating bulk collection.

On the creation of an amicus curiae to the FISA Court:

We believe that the appontment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government.


Overall, the bill’s significant reforms should provide the public greater confidence in our programs and the checks and balances in the system.

You can read the full letter here.

You may also find a copy of Senator Leahy’s bill here and Lawfare’s summary here.


Today’s Headlines and Commentary

By and
Thursday, September 4, 2014 at 3:58 PM

As ambassadors from NATO member countries gather in Europe to discuss crises in Ukraine, Iraq, Syria, and elsewhere, more details about a possible ceasefire in Eastern Europe are emerging. Russian President Vladimir V. Putin laid out a seven-point plan to stop the fighting between Ukraine, pro-Kremlin separatists, and their Russian patrons. Putin apparently wrote the list while flying across Siberia to a state visit in Mongolia, and drew its details from an involved telephone call with Ukrainian President Petro Poroshenko. The New York Times has a read out of Putin’s proposal. Critically, Putin did not specify a mechanism to make sure all of the listed demands are carried out, nor is he yet willing to admit to Russia’s part in the instability. A piece at CBC News tells us that on his Twitter account, Poroshenko wrote that a ceasefire could be signed on Friday in Minsk.

Still, danger lurks. According to the Hill, Russia’s foreign minister Sergey Lavrov warned on Thursday that any Ukrainian attempts to seek to NATO membership could derail the peace talks. The comments come a day after Putin’s plan was revealed, and shortly after President Obama made a strong speech in Estonia promising resolve in the face of further Russian advances into eastern Europe. The Atlantic characterized the speech as especially “forceful.” Air Force News quotes Obama as calling the conflict in Ukraine a “moment of testing” for the Western World. To all this, add a Hill story revealing that approximately 200 U.S. troops are set to head to Ukraine in mid-September for “peacekeeping exercises.” For his part, Putin has made a number of strong, and arguably bizarre, speeches in recent days. The Times has a list of notables.

Per the Associated Press, French President Francois Hollande announced yesterday that his country is suspending the delivery of a Mistral-class amphibious assault ship, the Vladivostok, to Russia. The vessel was originally slated for shipping for next month. The Vladivostok is the first of two ships; the second is named (ironically enough) the Sevastopol, after an important port city in Russia-annexed Crimea. France could lose over 1.1 billion euros on the deal if it is ultimately canceled. The Times reports that the ships are capable of holding up to 30 helicopters, 60 armored vehicles, 13 tanks, and 700 soldiers.

Speaking of warships, the Navy Times divulges that the destroyer USS Ross began heading into the Black Sea, allegedly to promote “peace and stability” in the region. 3 other NATO warships are set to sail into the Black Sea before September 7th, according to RT.  The latter also analyzes recent overtures by Russia to its Caucasian client states amidst efforts by the Kremlin to create a new military alliance in the former Soviet Union to counter NATO’s reach.

What if the sanctions on Russia do not arrest Putin’s advance across Europe? Jamila Trindle at Foreign Policy speculates that the sanctions may hurt the bottom line for average Russians—but not be enough to dissuade Putin. Relatedly, the Moscow Times has a poll today that shows that more than 70% of Russians would support banning foreign booze or cigarettes from Western countries in retaliation for sanctions; 77% would support blacklisting foreign hotels. However, only 43% would support banning the import of foreign cars. Importantly, the poll was conducted in mid-August, right after the latest round of sanctions against the country by the U.S. and the EU.

Vladimir Soloviev at Foreign Policy contemplates the fate of Putin’s next possible victim, Moldova, and the very low probability Europe would do anything significant to protect it.

Also on the agenda at the NATO Summit: developing a response to ISIS. Today, British Prime Minister David Cameron and President Barack Obama published an op-ed in the Times of London, saying that the two powers will not “waiver in our determination to confront ISIL.” The pair conclude that the United States and Britain “will not be cowed by barbaric killers.” Rounding out the rhetoric against ISIS, Vice President Joe Biden declared yesterday that the United States would follow ISIS “to the gates of hell until they are brought to justice.”

The Wall Street Journal reports that Iraqi politicians are beginning to unite in urging U.S. forces to return to the war-torn country. The Journal notes that even once anti-American politicians are calling for U.S. forces to bring “an end to terrorism in Iraq.” At the same time, President Obama announced that he has approved the deployment of 350 additional U.S. troops to provide security at diplomatic facilities in Iraq. Defense One notes that this puts the number of U.S. military personnel in Iraq well north of 1,100. In fact, the figure is now four times higher than when President Obama stated in June that “American combat troops are not going to be fighting in Iraq again.”

What are all those troops doing? A few days ago, we provided a report from the Daily Beast that suggested U.S. and potentially German forces were embedded in combat battalions with Kurdish Peshmerga fighters. The Pentagon denied this, stating that “there are no U.S. troops on the ground in or around Zumar.” However, writing in The Week, Marc Ambinder explains all the reasons why U.S. forces probably are already on the ground fighting ISIS, despite what the Pentagon keeps saying.

Al Jazeera reports that Iraqi forces have launched a massive ground and air offensive around northern Iraqi cities, including Tikrit. Initial reports suggested that significant numbers of ISIS militants were withdrawing. It is unknown whether the air strikes were carried out by the United States; we do know that U.S. aircraft dropped leaflets warning residents of the impending strikes.

Reuters reports that Islamic State militants have kidnapped 40 men from Kirkuk, a northern province in Iraq. It remains unclear why the men were taken.

According to the Associated Press, Human Rights Watch has determined that in a horrific, mass killing in June, ISIS militants killed 770 Iraqi troops—several times more than was previously thought. The incident occurred after militants overran Camp Speicher, an Iraqi airbase near Tirkrit. The New York Times has one survivor’s harrowing story. 

The BBC tells us that the British government is funding international investigators to compile evidence against Islamic State fighters who have carried out atrocities in Iraq and Syria. Apparently, documents show a “command responsibility” for the Islamic State’s massacres, beheadings, kidnappings, torture, executions, and crucifixions. The report also includes an outline of the Islamic State’s command structure.

The propaganda war with ISIS looks more and more like a game of wack-a-mole, with pro-Islamic State accounts being created faster than Twitter can take them down. NBC News reports that at least 28,000 Twitter accounts supporting the Islamic State have been created since the beheading of American James Foley.

The Iraqi Defense Ministry has provided photographs that allegedly show a captured Chinese man fighting for ISIS. If true, this would be the first Chinese citizen fighting with ISIS; the group has drawn members from around the world. The New York Times has more.

Apropos of foreign jihadists in Iraq and Syria, the Associated Press covers the global drive to stop would-be militants from traveling to the two countries. The efforts include new laws that make it easier to seize passports, block finances, and close radical mosques. Private firms are also working to clean extremist content from websites, social media, and other internet forums that could serve as propaganda and recruitment channels. The Wall Street Journal details how Turkey is struggling to close the “jihadist highway,” a route that has previously allowed militants to slip across the border into Syria. However, Turkey’s ability to crack down on the militant flow is hampered by the Islamic State’s kidnapping of 49 Turkish diplomats and their families in June.

Even so, yesterday, U.S. National Counterterrorism Center Director Matt Olsen told an audience at the Brookings Institution that “ISIL is not al Qaeda pre-9/11.” He continued, saying that there is “no indication at this point of a cell of foreign fighters operating in the United States.” Lawfare covered the speech yesterday, and Shane Harris has an excellent article on Mr. Olsen’s remarks today in Foreign Policy.

Remember the North Carolina man who was arrested by U.S. officials at JFK airport in New York City a few weeks ago on a weapons charge? NBC News has a profile on him. It explains how a Catholic-born, military school student, and former law enforcement officer ended up on a path to jihad.

Team America, Assad and the Ayatollah? That seems to be what what Senator Rand Paul believes to be necessary in order to stop ISIS. The Daily Beast has coverage of the Senator’s remarks.

The ongoing operations in Iraq, potential for strikes in Syria, and the brutal murder of two Americans by ISIS have pushed Congress to more directly engage the question of American military involvement in the region. Wednesday, Senator Tim Kaine repeated calls for President Obama to consult legislators, saying the Administration should “come to Congress with clear objectives and scope of mission to combat the ISIL threat, and Congress should immediately debate an authorization to use military force.” Earlier in the week, Senator Bill Nelson said that he would introduce a bill to allow the president to strike ISIS in Syria when Congress returns from recess next week.

On the other side of the aisle, House Intelligence Committee Chairman Mike Rogers said that Congress should give the president “authority to go after ISIS where they find them.” Rogers suggested that no effort to defeat ISIS would be successful without operations inside Syria, saying “that’s where their headquarters is.” Echoing the words of his colleague, Representative Frank Wolf (R-VA) announced that he will introduce legislation next week to authorize the use of military force against international terrorist groups such as ISIS, al Qaeda and affiliates, al Nusra, Ansar al Sharia, al Shabaab, and Boko Haram. Wolf’s announcement is here, and the full text of the proposed authorization here. At Just Security, Jennifer Daskal argues that the proposal shows exactly how not to authorize armed conflict.

Roll Call explains how the House and Senate are both laying the groundwork for war on ISIS, while Defense News notes that the short session before Congress leaves for midterm election campaigning could postpone any authorization of force. However, Senator John McCain told reporters yesterday that Congress should not leave before authorizing force, saying “We should stay in session until we work this issue out.”

The New York Times reports that the Taliban have attacked an intelligence base in the southeastern city of Ghazni. 14 people were killed in the offensive, including 12 Afghan security personnel. The attack on the provincial headquarters of the National Directorate of Security, the domestic intelligence entity of Afghanistan, was the second in less than a week. Elsewhere in the country, Reuters announces that Afghan security forces are currently hunting for Qari Bilal, a senior Islamist militant who was allowed to return to the country under a 2011 peace plan. But now he is leading hundreds of insurgents in Kunduz province. And struggles may be ahead for the Pakistani Taliban: according to Medium, the organization is currently losing foreign fighters to “sexier” conflicts in Syria and North Africa.

In its latest bid to quell rising inter-ethnic violence in Xinjiang, its restive province to the west, the Chinese government is pushing intermarriage between the Uighur minority group and the majority Han. According to the Times, the plan offers annual payments of approximately $1,600 for five years to couples. where one partner is a minority and one is Han, in addition to other benefits in healthcare, education, public sector jobs and housing.

The Guardian reports that South Korea is set to create an army unit with the U.S. in the event of a war with the North Korean regime. The mechanized unit will be led by a U.S. major general, and should be set up by early next year.

The Jerusalem Post announces that Israel’s fourth Dolphin-class submarine is currently on its way to Haifa from Germany after finishing final tests. The latest addition to Israel’s burgeoning naval forces is among the most capable and advanced of conventionally-powered submarines, and the largest built by Germany since World War II. The vessels reportedly can fire cruise missiles equipped with nuclear warheads from Israel’s Dimona nuclear plant. If true, the submarines would give Israel second-strike capability in the event of a war with Iran. A fifth submarine is slated to be delivered by the end of this year, with a sixth currently under construction.

The Times of Israel reports that a group of private companies has concluded a $15 billion deal to sell natural gas from Israel’s Leviathan reservoir to Jordan. The transaction, if approved by the governments of Israel and Jordan, would cement ties between the two countries as well as with Egypt, who would liquefy the gas. Foreign Policy has more on Israel’s rise as a “linchpin” in the region’s energy grid.

The New York Times reveals that Steven Sotloff, the journalist recently beheaded by ISIS militants, was Israeli-American. It analyzes why and how authorities withheld the man’s background until they could confirm his death. The Times also reports that the reconstruction in Gaza may end up costing $7.8 billion.

Foreign Policy reports a story we’ve been following for a few days now: there is growing unrest in Israeli Prime Minister Benjamin Netanyahu’s coalition government.

The New York Times brings us troubling news that al Qaeda has announced a new branch on the Indian subcontinent.  Appearing on an hour-long video, Ayman al-Zawahri, the group’s leader, tells would-be sympathizers in Burma, Bangladesh, Assam, Gujarat, Ahmedabad, and Kashmir that al Qaeda “did not forget you and that [it is] doing what [it] can to rescue you.” The new group represents the fifth official branch of the militant network. Some experts have suggested the video is meant to present a counter-narrative to ISIS, calling on Muslims to unite against the West instead of killing each other. The Indian Express and Vice News have more.

Foreign Policy has information on the Indian government’s response to the video, while the Washington Post explores why al-Qaeda is opening a new wing in South Asia.

In War on the Rocks, Myra MacDonald reports on the soft coup in Pakistan that has stalled, signaling what might be a watershed moment for Pakistan’s fragile democracy. In the Long War Journal, Bill Roggio examines the Pakistani military’s claim that their most recent operation in the tribal regions of North Waziristan has killed 910 terrorists. Also in War on the Rocks, Michael Kugelman asks, is Omar Khalid Khorasani as “Bad as Baghdadi?”

The BBC reports that Islamist militant group Boko Haram has reportedly taken the town of Banki in Nigeria’s northeastern state of Borno. The rebels are quickly advancing towards the state’s capital, Maiduguri. One prominent think tank, the Nigeria Security Network, warns that if the city falls, it would represent a “symbolic and strategic victory unparalleled so far in the conflict.”

Across the continent, Businessweek writes that the Somali government is currently working to identify Al-Shabaab militants killed in recent U.S. airstrikes. No word yet on whether the airstrikes ended the life of Ahmed Abdi Godane, leader of the Islamist group.

In Washington, the Hill reports that U.S. Attorney General Eric Holder and Director of National Intelligence James Clapper support a leading Senate proposal to reform certain NSA surveillance practices. Politico has a PDF of the letter sent by them to Senator Patrick Leahy, the Chairman of the Judiciary Committee.

Suspected Al-Qaeda operative Anas al-Liby decided to stick with his defense lawyer, despite a potential conflict of interest due to the fact that the Libyan government is paying his fees. Reuters has more.

And finally, the New York Post reports that police officers today arrested a man alleged to have flown a drone outside of a U.S. Open, during a quarter-final match featuring Serena Williams and Flavia Panetta. Charges against the man, Daniel Feighery, 34, are still pending.

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