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The Week that Will Be

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Monday, July 7, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Mon, July 7, 2014: Duke Law School’s DC Summer Institute on Law and Policy begins its first session.  The institute offers two-week courses in important, timely topics for those interested in pursuing a career in fields related to law, government, politics, and policy. This summer’s evening courses will take place from July 7-17, 2014 and July 21-31, 2014. 

Mon, July 7, 2014 at 4 pm: The New America Foundation is hosting a panel discussion entitled National Insecurity Agency: How the NSA’s Surveillance Programs Undermine Internet Security. Panelists will cover how the NSA’s actions threaten internet security and the Internet economy that relies on it, and how the U.S. can address the threat on a policy level. 

Tues, July 8, 2014 at 9 am: The Atlantic Council is holding an event with Carl Bildt on the challenges presented to Europe and the United States in Facing a Revisionist Russia.

Tues, July 8, 2014 at 9:30 am:  At Johns Hopkins SAIS, Irfan Saeed, senior policy advisor in the Office for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security, will lead a Conflict Prevention and Resolution Forum on Where Peacebuilding and Countering Violent Extremism Meet

Tues, July 8, 2014 at 9:30 am: U.S. Institute of Peace will be hosting the last of its three-part series on the Iran Sanctions: What the U.S. Cedes in a Nuclear Deal. Speakers will discuss the complex questions and challenges of sanctions in the Iran nuclear talks as the July 20 deadline for an agreement approaches.

Tues, July 8, 2014 at 2:30 pm: Bruce Reidel will be launching his newest book at Brookings entitled What We Won: America’s Secret War in Afghanistan, 1979-1989. The launch will include a conversation about the Afghan War, and will delve into the lessons it offers for future intelligence operations, and America’s future role in Afghanistan. 

Tues, July 8, 2014 at 4:30 pm: Where is China Going? Current Affairs and Foreign Policy Implications – that will be the conversation at the Institute of World Politics Tuesday afternoon. Frank Lavin will lead the discussion on the performance of China’s economy, domestic social stability, leadership cohesion, and foreign policy goals. 

Wed, July 9, 2014 at 10 am: The New America Foundation hosts an event entitled The Wartime Press: Civil Liberties During War. What is the proper role of the media during wartime? How do reporters decide what the public has a right to know? Panelists will discuss these questions and more. 

Wed, July 9, 2014 at 2 pm: The Asia Society will host a conversation on Afghanistan’s Future: Politics, Prosperity, and Security Under New Leaders. Experts will explore the next era in Afghan politics and what the U.S. can expect from the new Afghan administration. 

 

Employment Announcements (More details on the Job Board)

Lawfare Internship, Fall 2014. 

The Governance Studies Program at Brookings is currently accepting applications for a National Security Intern for Fall 2014. Interns will be responsible for helping to run and maintain Lawfare, a website devoted to serious, non-ideological discussion of national security legal issues. This internship will run from mid-August to mid-December. Please note that the position is unpaid and interns must be on-site for the duration of the internship. Applicants must be able to commit to a minimum of 4 full-time work days a week.

Undergraduate students, especially juniors and seniors, and recent college graduates with backgrounds in government, political science, and law are encouraged 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.

Information on how to apply can be found on the Job Board. 

A Quick Read of the Post’s Latest NSA Story

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Sunday, July 6, 2014 at 11:14 AM

The Washington Post has a dramatic new NSA story today, one that is qualitatively different from any of the previous Edward Snowden revelations. Written by Barton Gellman, Julie Tate, and Ashkan Soltani, the story describes a large cache of intercepted communications (roughly 160,000 email and instant message exchanges) and the benefits and privacy costs of the collection they reflect. The bottom line is that the benefits were huge but the costs were big too. As the story’s lead reflects,

Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

Some thoughts on the story:

This is incredibly sensitive stuff, both from a national security perspective and from a civil liberties and privacy perspective. In contrast to a lot of prior reporting, the Post here appears to have done a pretty thoughtful job of deciding what information to report and what information to withhold. It describes the sorts of information the cache contains and its value without describing a lot of details: Read more »

The Foreign Policy Essay: Calculated Caliphate

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Sunday, July 6, 2014 at 10:00 AM

Editor’s Note: The conquest of Mosul and other cities in Iraq by the Islamic State in Iraq and Syria (ISIS) has alarmed the United States and its allies and electrified the Sunni jihadist community. On Monday, ISIS went one step further, changing its name to the “Islamic State” and declaring a caliphate with its leader Abu Bakr al-Baghdadi as the caliph. The implications of this decision, and the strategy behind it, remain uncertain. Thomas Hegghammer, director of terrorism research at the Norwegian Defence Research Establishment and a leading scholar of the jihadist movement, explores ISIS’s motivations, both strategic and ideological, and the effect this brazen move might have on both the group and the broader conflict. 

***

On June 29, the Islamic State in Iraq and Syria (ISIS) declared itself a caliphate with its leader Abu Bakr al-Baghdadi as the caliph. The declaration struck the jihadi movement like a bombshell. Hani al-Siba’i, a radical ideologue based in the United Kingdom, said on Twitter that he nearly choked on his Ramadan breakfast when he heard the news.

The move is bold and unprecedented. The caliphate is a form of government associated with early Islam and with the successive Islamic empires that dominated the Muslim world until the early 1920s. While most Muslims today view the caliphate as a thing of the past, jihadis see it as an ideal form of government that ought to be reinstated. Still, jihadis have thus far viewed the caliphate as a utopia—much like Marxist groups viewed the perfect communist society—because the Islamic legal conditions for establishing a caliphate are difficult to meet in the modern international system. For decades, restoring the caliphate has been the declared end objective of all jihadi groups, but none of them has had the audacity to declare one—until now.

Hegghammer photo with borderFor “old” jihadi groups like al-Qaida, ISIS’s move is utterly preposterous. The veterans see themselves as having spent a lifetime fighting superpowers, all the while holding back on declaring a caliphate—only to see a bunch of newcomers come in from the sidelines and steal the trophy. Adding insult to injury, ISIS is now demanding that the veterans submit to the authority of a young, obscure (at least until yesterday) caliph. That demand comes because in theory, the leader of a caliphate rules all Muslims and has supreme executive authority in military matters. All this while ISIS supporters taunt the old guard on social media with comments such as: “If Al-Qaida and al-Taliban could not establish khilafah [caliphate] with all their power and territory for all these years, how can we expect them to suddenly unite upon haqq [truth] now? Al-Khilafah does not need them, rather, they need al-khilafah.”

As J.M. Berger has pointed out, ISIS’s strategy is a risky one. There is a very real chance that they will emerge from this verbal fistfight heavily bruised. A number of the world’s most senior jihadi ideologues have already come out against ISIS on the caliphate question, and the criticism from supporters of al-Qaida and groups like Jabhat al-Nusra, the al-Qaida-anointed jihadi group in Syria, has been scathing. Meanwhile, ISIS has so far only received the pledge of allegiance (bay’a) from a small number of minor clerics, dissidents from al-Qaida in the Arabian Peninsula (AQAP) and al-Qaida in the Islamic Maghreb (AQIM), and groups in the Syrian-Iraqi theater that were at risk of being swallowed by ISIS anyway. To be sure, ISIS has also seen many declarations of support from grassroots sympathizers around the world, but it is unclear whether these are newly won adherents or people who were cheering on ISIS already. As Berger put it in another article, it looks like “ISIS threw a party and nobody came.”

This raises the question: why did they do it? It is hard to believe that ISIS simply miscalculated and genuinely thought the entire jihadi movement would submit to their authority. ISIS is not an isolated sect, but a tech-savvy bureaucracy that monitors enemy Twitter accounts and consumes academic literature (in fact, they will probably read this very article). They must have known the lay of the ideological land. We should therefore not dismiss the move as ideological excess, but rather assume it was based on a careful calculus. Read more »

Lawfare Podcast Episode #82: Brad Smith on the Balance of National Security and Privacy

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Saturday, July 5, 2014 at 1:55 PM

Brad Smith, Executive Vice President and General Counsel of Microsoft, recently discussed the future of privacy in an increasingly digital age at a Brookings event entitled, “The Future of Global Technology, Privacy, and Regulation.” In his talk, Smith takes on questions about the role of the Fourth Amendment in the era of cloud computing; he talks about issues of data-sovereignty; and he outlines how laws and regulations need to change in order to facilitate the adoption of new and powerful technologies, while also preventing criminal abuse of those same technological innovations. He calls for Congress to close the door on bulk collection, speaks to the role of the FISA court, and sketches a framework for balancing privacy and national security. Cameron F. Kerry, visiting fellow at Brookings, introduced Smith and moderated the discussion.

The full event video is below:

The Week that Was: All of Lawfare in One Post

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Saturday, July 5, 2014 at 10:00 AM

Ahmed Abu Khattala, the suspect allegedly behind the attack on the American embassy in Libya, arrived in Washington this week. Bobby brought us the initial news, while Ben shared the government’s memo regarding pre-trial detention. Wells summarized the detention proceedings that took place before the District Court in D.C. on Wednesday. Meanwhile, Jane considered cases that perhaps hold “precedential value for the coming litigation over Abu Khattala’s capture and interrogation.”

In other news on terrorism trials: in the 9/11 case, defense attorneys for Ammar al Baluchi have filed a motion to force the government to turn over evidence concerning CIA torture of the Guantanamo detainee. Wells brought us the defense’s statement.

On 7/02, the Privacy and Civil Liberties Oversight Board (PCLOB) released its report on Section 702 of the Foreign Intelligence Surveillance Act (FISA). Ben notified us beforehand, and Wells shared a pre-release copy of the Board’s findings. Peter Margulies then examined the report’s treatment of human rights concerns.

Lawyers for Canadian former detainee and military commission convict Omar Khadr filed a motion on Monday in support of the reversal of Khadr’s 2010 conviction. Wells linked to the defense filing.

Susan Landau, a professor of Cybersecurity Policy at Worcester Polytechnic Institute, analyzed Riley v. California, the recent Fourth Amendment case, and highlighted the Supreme Court’s decision to rely not on expectation of privacy, but search as the basis of the opinion.

Jack examined House Republicans’ decision to sue President Obama and pointed out that there are many other ways for Congress “to fight back politically to preserve its prerogatives.”

On Monday, I shared the ODNI’s recently released Statistical Transparency Report Regarding Use of National Security Authorities.

In media criticism this week: Ben noted the peculiarity of the New York Times’ objection to Japanese Prime Minister Shinzo Abe’s new interpretation of his country’s constitution. Ben also highlighted news regarding Glenn Greenwald’s next anticipated NSA disclosure. Apparently, “a journalist is reporting that an activist is reporting that a journalist will at some point publish a story.”

In Bits and Bytes this week, Paul brought us a wealth of cyber news. He later provided some writing he has been doing on the intersection of international humanitarian law and cyber warfare.

Paul also flagged a new app, Blue Force Tracker, which shares reports about the military and international affairs that most news sources miss.

Stewart Baker shared the latest Steptoe Cyberlaw Podcast. This week’s guest speaker was Dmitri Alperovich, co-founder and CTO of Crowdstrike, a cybersecurity technology and service provider.

Ben brought us this week’s Lawfare Podcast, featuring a conversation with Suzanne Maloney, a senior fellow at the Brookings Institution. She shared her thoughts on Iran, ISIS, and the prospects of the nuclear negotiations.

This week’s Foreign Policy Essay considered the U.S. Department of State’s Foreign Terrorist Organization list. Author Brian Fishman, a counterterrorism research fellow at the New America Foundation, focused specifically on al Qaeda in Iraq (AQI), the Islamic State of Iraq and al-Sham (ISIS) and Jabhat al-Nusrah (JN).

Ben highlighted the satirical “Moderate Syrian Rebel Application Form” from the New Yorker’s Borowitz Report.

Ritika noted that Lawfare is looking for an intern to replace me in the fall. Please send a cover letter and resume to Hillary Schaub at [email protected]

Jack commented on a New York Times story on Obama’s counterterrorism blueprint—and its collision with reality.

Paul, in celebration of July 4, shared an a cappella rendition of the Star Spangled Banner.

Finally, as Thursday marked Ritika’s last day as Lawfare’s associate editor, Ben shared some remarks on her time with us.

And that was the week that was.

Happy Fourth of July

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Friday, July 4, 2014 at 12:04 PM

A great version from the Gaither Vocal Band:

Obama’s Blueprint for Fighting Terrorism Collides With Reality in Iraq

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Friday, July 4, 2014 at 8:42 AM

That is the title of a NYT story this morning by Landler, Gordon, and Mazzetti.  The “Blueprint” they have in mind is the one the President laid out at West Point, which (in their words) “relies less on American soldiers . . . and more on training troops in countries where those threats had taken root.”  This “indirect approach,” the NYT says, has “collided with reality when a lethal jihadi insurgency swept across the same Iraqi battlefields where thousands of Americans had lost their lives,” an insurgency “hastened by the collapse of the American-trained Iraqi Army” that has “stunned the White House and has laid bare the limitations of a policy that depends on the cooperation of often balky and overmatched partners.”  (For a broader critique of administration policy long the same lines, see this essay by Sarah Chayes and Frederic Wehrey in Politico a few weeks ago.)

The “training” blueprint is not the only blueprint left in tatters by the insurgency in Iraq and Syria.  So too is the broader blueprint of declaring the “war” against jihadists over.  For a while now the administration has sent signals that core al Qaeda is near defeat and that the AUMF-“war” is nearly over.  (I take this to be the import of President Obama’s NDU speech, as well as former DOD/GC Jeh Johnson’s Oxford Speech and former Legal Advisor Harold Koh’s Oxford Speech and recent testimony.)  The hopeful picture in these speeches and in other signals sent by the administration is that the main contest is winding down, leaving only residual terrorist threats that can be dealt with under pre-9/11 authorities – namely, allied forces trained by the United States, U.S. law enforcement and intelligence resources, and an occasional dollop of military force under Article II.

The rise of ISIS in Iraq and Syria, the failure of U.S. trained forces in Iraq to maintain ISIS, the continuing and growing threats to the homeland from AQAP in Yemen (see this scary Ken Dilanian story), not to mention rising jihadist forces in many other places, call this hopeful picture into serious question.  Set aside the legal question whether Article II suffices as a basis for needed U.S. counterterrorism operations to meet these threats after the AUMF is declared otiose (an issue I have discussed many times, most recently here.)  The politics of declaring the war to be over seem fraught as well.  Even if core al Qaeda is entirely defeated, AQ-associated forces like AQAP remain robust, and ISIS is now a huge problem, not just in Iraq, but also potentially in the homeland because (see here and here) thousands of westerners have joined the jihadist fight in Syria and Iraq and can return to the West, including the United States, with relative ease.  Declaring the war to be “over,” even declaring the AUMF-war to be over (which I think is hard to do), will now only highlight how little has been accomplished overall in defeating the jihadist threat.  The notion that the main conflict is over and only residual threats remain is entirely contrary to reality, and attempts to repeal the AUMF or to declare it dead will only highlight this fact – as well as the fact that the President is meeting these new and growing extra-AUMF threats mostly if not entirely on the basis of unilateral Article II authorities.

The Atlantic Reports that the ACLU Reports that Glenn Greenwald Will Report Bad Surveillance Stuff

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Thursday, July 3, 2014 at 12:19 PM

Over at the Atlantic, Conor Friedersdorf is reporting that Anthony Romero of the ACLU in a speech in Aspen is reporting that Glenn Greenwald someday soon will report that really bad surveillance stuff is happening:

Anthony D. Romero, executive director of the American Civil Liberties Union, told an Aspen Ideas Festival panel Wednesday that forthcoming revelations about the NSA will provoke new debate about the propriety of government spying. According to Romero, Glenn Greenwald will reveal that Muslim Americans in public life were “subject to the kind of surveillance that Hoover did on Martin Luther King.” 

Without apparent irony, Friedersdorf goes on to report that he asked Romero for details and got, well, this:

Romero said he could speak openly about the forthcoming story due to another press report, but that he didn’t know many details because, although the ACLU represents Edward Snowden, these stories are being worked on by journalists, not his organization. “It will be interesting to see who is on this list but I don’t know,” he said. “It will be interesting to see if there were members of Congress on this list, what kind of judicial review was provided.” He said that ferreting out this information is harder than it once was. “This isn’t a manila folder put in a filing cabinet. This is a database. So all the data is there. The question is, what have they pulled from the database. So you actually have to recreate the queries from the databases to see that which they’ve pulled. It’s very labor intensive. It doesn’t just spit out something that says, ‘Romero, they followed him’ … you have to read the code, it involves a lot of technologists, and part of the reason the journalists have taken as long as they have with these stories is that it’s very complicated to pull them out of these massive amounts of data. So we’ll stay tuned.”

So let me get this straight: A journalist is reporting that an activist is reporting that a journalist will at some point publish a story about which the activist knows no details but about which he’s prepared to draw dramatic conclusions.

For what it’s worth, there’s a reason that responsible journalists don’t spent weeks flacking a story that has not yet been fully reported—as Greenwald has done on this one. For my part, I’ll wait until Greenwald actually publishes his story, which was supposed to go live this week but didn’t, before commenting on it.

Today’s Headlines and Commentary

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Thursday, July 3, 2014 at 12:15 PM

The final round of nuclear negotiations between Iran and the P5+1 group began yesterday in Vienna. According to BBC News, Iranian Foreign Minister Javad Zarif announced that though the Islamic Republic was ready to negotiate seriously, it would not “kneel in submission” to other nations. However, Reuters indicates that during the resumed talks, Iran reduced the number of uranium enrichment centrifuges it seeks. Still, former State Department official and current Brookings Institution senior fellow Robert Einhorn noted that it will be difficult for the parties to reach an agreement by the July 20 deadline.  But, he said, “an extension is more advantageous to the U.S. than Iran.” The Wall Street Journal has more on his remarks.

Coverage of Iraq continues. The New York Times today provides a helpful geographical explanation of the situation. Meanwhile, a Quinnipiac University poll indicates that the majority of Americans disapprove of President Obama’s current handling of the Iraq crisis. Politico has more.

Al Jazeera reports that Saudi Arabia has deployed 30,000 troops to its border with Iraq, following alleged accounts that Iraqi border guards had been ordered to abandon their posts. Iraqi military spokesperson Lieutenant General Qassim Atta vehemently denied the reports, announcing, “[t]his is false news aimed at affecting the morale of our people and the morale of our heroic fighters.” BBC News also has the story.

Yesterday, President Obama spoke with Saudi King Abdullah after the Middle East leader pledged $500 million to help ease the Iraqi humanitarian crisis. The President thanked the King, and the two discussed the ongoing situation in Iraq and its implications for the entire region. In a press statement, Secretary of State John Kerry supported the Saudis’ generosity. The Hill has more.

Meanwhile, Vice President Biden called the Speaker of the previous session of Iraq’s Council of Representatives, Osama al-Nujaifi. The Hill highlights the two leaders’ discussion of the need for a new Iraqi unity government.

Yesterday, Senator John McCain (R-AZ) met with Syrian rebel leaders. Afterward, he announced, “[f]urther reluctance to support moderate Syrian opposition forces in fighting more effectively against both Assad and ISIS will only fuel the growing danger that the current threats in Syria and Iraq now pose to the United States and our national interests.” The Hill shares his remarks.

The Defense Department says the U.S. vessel Cape Ray has finished receiving Syrian chemical weapons from the Danish container ship Ark Futura. The U.S. ship is now headed into international waters, where it will neutralize the chemicals.

The Department of Homeland Security releases news that the Transportation Security Administration (TSA) will be enforcing “enhanced security measures.” In an interview with MSNBC, Secretary Jeh Johnson noted his concern over foreign militants traveling to join the fighting in Syria. His statements follow a report from the Hill of the arrest of a Colorado woman who sought to join ISIS.

Yesterday, Clara shared news of the alleged revenge killing of Palestinian teenager Muhammad Hussein Abu Khdeir. Secretary Kerry responded to the tragic news.

The Washington Post reports that since then, intense fighting has broken out between Israeli security forces and Palestinian protesters in East Jerusalem. The Times notes that Palestinians today shot roughly 30 rockets at southern Israel, resulting in major property damage. Meanwhile, Al Jazeera shares that Israel conducted air strikes on 15 sites in the Gaza Strip, leaving eleven people hurt. According to the Post, tensions between Israelis and Palestinians [have] flared to their worst level in years.”

Following the announcement of U.S. fines against French bank BNP Paribas, Russian President Vladimir Putin declared the U.S. guilty of blackmailing France into not supplying Russia with Mistral-class warships. The Post has more.

After talks with North Korean officials yesterday, Japan has agreed to lift some unilateral sanctions against Pyongyang. Al Jazeera has details.

Meanwhile, the Times shares that President Xi Jinping of China and President Park Geun-hye of South Korea are meeting today. Chun Yungwoo, the national security adviser to the former South Korean President, remarked, “China is trying to draw the Republic of Korea as far away as possible from Japan and the United States.”

According to BBC News, the two leaders affirmed their mutual opposition to North Korea’s nuclear program in a joint press conference.

Yesterday, Clara noted that U.S. World Cup fans had temporarily changed the Wikipedia page of the U.S. Secretary of Defense from Chuck Hagel to Tim Howard. Secretary Hagel has since called Howard to congratulate him on his performance during Tuesday’s game between the U.S. and Belgium. Politico and the Hill share the story.

Last week, Ritika shared that House of Cards was looking to  film a couple of episodes at the UN Security Council in New York. Alas, Foreign Policy reports that Russia has denied the show’s request.

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.

A Taxonomy of Cyber War IHL Questions

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Thursday, July 3, 2014 at 11:50 AM

I have been asked to write a chapter, tentatively entitled “Law and Warfare in the Cyber Domain,” for the next edition of Moore, Roberts & Turner, eds., National Security Law.  As part of that effort, I have been thinking about where the gaps are in the domain of international humanitarian law as applied in cyberspace.  What follows below is a portion of the chapter and it is my best effort to create a taxonomy of cyber war questions (I tend to like taxonomies).

I offer it for two reasons — first, as we head into the 4th of July holiday, I imagine some of you are looking for something “fun” to read over the weekend (not!).  Second, and more importantly for me, I do not pretend to comprehensive knowledge of IHL.  If any reader has constructive ways of improving this analysis, I would welcome your feedback:

A Taxonomy of Cyber War IHL Questions –

Questions of jus ad bello and jus in bellum barely begin to delimit the scope of legal questions relating to the nature of cyber conflict in this new domain. Few, if any, of the conflicts we can imagine will involve actions that rise to the level of an armed attack sufficient to trigger the application of international humanitarian law. Even the pseudo-conflict in the cyber domain between Russian and Ukrainian actors seems not to have involved “armed attacks” as international humanitarian law would define them.

More to the point, even fewer of the conflicts will involve armed actions between the military of nation states. Even if the tools used rise to the level of sufficient significance to merit classification as an armed attack, the likely combatants may well be non-state actors. To be sure a true cyber war between nation states may occur – but it is most likely to occur in the context of a kinetic armed conflict. Put colloquially, our cyber war with China will be coincident with a military confrontation over Taiwan.

As a consequence, much of the discussion of the application of international humanitarian law to cyber seems rather mis-focused on events that are unlikely to occur. Instead, we can imagine any number of far more plausible conflicts that involve a nation state and a group of non-state actors (whether those actors are organized groups or ad hoc amalgams of individuals, and whether those groups are motivated by profit, pride, or politics) and we can equally imagine conflicts where the tools of choice involve activity that is below the level of an armed attack in international law – acts we might call “sub war” acts involving the degradation of information, the disruption of communications, or even the destruction of capabilities. Read more »

A Lawfare Farewell: Ritika Singh

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Thursday, July 3, 2014 at 10:20 AM

Today is a sad day in the history of Lawfare; it marks the departure of Ritika Singh, our intrepid associate editor. Ritika has been a key part of Lawfare almost from its beginning. She started at the Brookings Institution as an intern, helping me fact-check a book I was writing, and she later returned to Brookings as my research assistant after she graduated from college a few months after Lawfare was born. Since then, she has become a fixture on the site—whether it’s piloting Today’s Headlines and Commentary, which she and Raffaela Wakeman created, making sure readers have access to documents, recording podcasts, or writing analytical posts about civilian casualties in drone strikes or South Asian politics. Behind the scenes, she’s been one of the people who makes the trains run, let alone run on time, on the site and in a wide range of my other Brookings work too. Ritika is leaving Brookings to go to graduate school. I have asked her to stay involved and keep writing for Lawfare, so she will not—I trust—disappear entirely from the site. Here’s wishing her all the best in her next chapter.

The PCLOB on Human Rights & 702: Punt or Long Game?

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Thursday, July 3, 2014 at 10:15 AM

One of the most eagerly awaited aspects of the Privacy and Civil Liberties Oversight Board (“PCLOB”) report on section 702 surveillance was how the PCLOB would treat human rights issues.  In January, 2014, President Obama issued PPD-28, acknowledging that individuals all over the world had privacy interests in data collected by the NSA.  Would the PCLOB take a stand on whether human rights agreements like the International Covenant on Civil and Political Rights (“ICCPR”) apply extraterritorially, and whether the U.S. complied with that treaty?  At first blush, the PCLOB seems to reserve the question, declaring that it will work within the inter-agency PPD-28 process to address the issue.  Some, like Amie Stepanovich at Just Security, are disappointed in this absence of definitive conclusions.

However, a couple of observations are in order: 1) the PCLOB recommends measures that will help meet any human rights standard that might plausibly be applied to the U.S.; and, 2) the PCLOB can best further the goal of human rights compliance by working within the PPD-28 process, although this approach also raises the stakes for the Board.

In exploring the first point, assume world bodies will find that ICCPR duties, like the duty to refrain from arbitrary intrusions on privacy, apply extraterritorially; the U.N. Human Rights Committee has suggested this, and the U.N. High Commissioner on Human Rights report, due in August, will likely draw the same conclusion.  (See Harold Koh’s memo here, as well as Beth Van Schaack’s excellent paper and Ashley Deeks’s post.)  That brings us to the ICCPR’s substantive guidance, found in Article 17, to refrain from arbitrary intrusions on privacy.  What is “arbitrary” collection?  As my Fordham article on NSA surveillance and human rights argues, a state complies with Article 17 if its foreign surveillance has some relationship to an important governmental objective.

The arbitrariness standard is more deferential than certain readings of the proportionality standard often used in human rights law. The text of a treaty is a key factor in interpretation, under article 31 of the Vienna Convention on the Law of Treaties.  Article 17’s use of the term, “arbitrary,” acknowledges that surveillance in law enforcement and national security is inherently overinclusive—as it must be to close gaps that allow criminals, terrorists, and rogue state officials to operate with impunity. The NSA’s foreign surveillance, which is tailored to subjects of foreign intelligence value, meets this standard.     Read more »

The New York Times Editorial Page Discovers Originalism—In Japan

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Thursday, July 3, 2014 at 8:10 AM

The New York Times this morning has an editorial objecting to the reinterpretation of Japan’s constitution to make it a bit less pacifist:

Mr. Abe has long argued for changing the Constitution on the grounds that Japan should assert itself as a “normal” country, freed of postwar constraints imposed as a consequence of its wartime atrocities and defeat. He now has another argument for expanding the military’s role: Japan, the world’s third-largest economy after the United States and China, needs to be a fuller partner with the United States in countering China as it increasingly challenges the conflicting claims of Japan and other countries in the South China and East Asia Seas. Washington has long urged Tokyo to assume more of the regional security burden.

What stood in Mr. Abe’s way was Article 9 of the Constitution. It says the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” Any change should have required a constitutional revision, which would mean winning two-thirds approval in both houses of Parliament, followed by a referendum. Instead, Mr. Abe circumvented that process by having his government reinterpret the Constitution.

It’s interesting how skeptical the Times is about such interpretive methodologies in Japan given its insistence on its own right to reinterpret the U.S. Constitution to mean whatever it wishes on any given day.

Fall 2014 Lawfare Internship

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Wednesday, July 2, 2014 at 5:25 PM

We are currently accepting applications for a fall intern. A description of responsibilities and information on how to apply is below:

Lawfare Internship, Fall 2014

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.

The Governance Studies Program at Brookings is currently accepting applications for a National Security Intern for Fall 2014. Interns will be responsible for helping to run and maintain Lawfare, a website devoted to serious, non-ideological discussion of national security legal issues. This internship will run from mid-August to mid-December. Please note that the position is unpaid and interns must be on-site for the duration of the internship. Applicants must be able to commit to a minimum of 4 full-time work days a week.The Lawfare intern’s responsibilities fall into three categories:

Read more »

Abu Khattala Subject to Pre-Trial Detention

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Wednesday, July 2, 2014 at 1:11 PM

Such was the exceedingly unshocking result of this morning’s exceedingly brief detention hearing in the criminal case against Ahmed Abu Khattala.

In his remarks, prosecutor Michael DiLorenzo essentially summarized his side’s written filing. It had put forth various reasons why, under the Bail Reform Act, no conditions of release would ensure the public safety in advance of Abu Khattala’s trial. The lawyer stressed, among other things, the accused’s dangerousness, the weight of the evidence against him, his possession of a gun when apprehended, and the gravity of the crime in question. And DiLorenzo separately pointed out a rebuttable presumption of detainability—which applied under the circumstances, and shifted the burden to the defendant.

Abu Khattala’s attorney, Michelle Henderson, contested DiLorenzo’s case only partially.  She thought her client’s carrying of a gun in war-torn Libya was especially inconsequential; she also complained of difficulty in beating back some of the government’s other allegations—which, as she explained, have yet to be substantiated at all. On that point, Henderson said her side had not yet received discovery bearing on the government’s factual claims.

But with those objections registered, the defense lawyer went on to concede that her client is (pending Peterson’s receipt of further information) properly subject to pre-trial detention, given Abu Khattala’s status as a foreign national, and the nature and seriousness of the crime with which he is charged: conspiracy to provide material support and resources to terrorists resulting in death, under 18 USC 2339A.

The case is set for a status hearing next week.

Defense: OLC Memo Supports Invalidation of Omar Khadr’s Conviction

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Wednesday, July 2, 2014 at 10:20 AM

I am actually a tad surprised that Monday’s filing did not come a touch more quickly.  It seemingly deals quite a whack to Omar Khadr’s 2010 plea of guilty to violations of the Military Commissions Act—including conspiracy, material support, and “murder in violation of the laws of war.”  (The latter is roughly synonymous with participating in hostilities but without also obeying rules that otherwise would immunize someone for prosecution as a consequence of such participation.)

The basis of Khadr’s liability was actions that predated the statute’s passage—a feature of a number of prosecutions at Guantanamo, with which readers are familiar. Apparently spurred by the panel’s ruling in Hamdan II, Khadr appealed to the Court of Military Commission Review (“CMCR”) late last year.  He argued, among other things, that his conduct at the time did not amount to a war crime under the international laws of war. (The government, for its part, rejoins that such conduct did violate a body of domestic law, the so-called “U.S. common law of war,” and that Khadr therefore was properly subject to trial by commission.) The CMCR in turn put the case on hold, pending action by the full D.C. Circuit in Al-Bahlul.

Now Khadr’s lawyers emphasize the OLC memo—its 44th footnote in particular—as further evidence in support of the conviction’s reversal, and as a reason not to await further input from the civilian court.  They also criticize the executive branch’s internal and external positions on the issue: on the one hand, say Khadr’s attorneys, there was OLC’s 2010 view, that mere participation by the CIA in hostilities was not itself a war crime; on the other, there was the Khadr prosecution’s seemingly contrary view vis a vis the accused—which government lawyers put forward in Khadr’s criminal prosecution and afterwards.

On March 7, 2014, the Court ordered this case to be held in abeyance pending the D.C. Circuit’s decision in Al Bahlul v. United States, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013) (per  curiam), en banc rev. granted and panel order vacated, No. 11-1324 (D.C. Cir. Apr. 23, 2013)  (en banc). However, the disclosure of a previously secret memorandum by the Justice Department’s Office of Legal Counsel (“OLC”), which provided authoritative legal guidance to the Department of Defense several months prior to Mr. Khadr’s guilty plea, vitiates the theory of criminality underlying this prosecution and therefore defeats the premise of the Court’s order.

On June 23, 2014, the Second Circuit issued the latest opinion in a long-running Freedom of Information Act dispute concerning the disclosure of classified information related to the government’s policy of using lethal force against terrorism suspects. New York Times v. U.S. Dep’t of Justice, 13-422-cv, slip op. (2d Cir. June 23, 2014) (copy attached as Exhibit A). The appendix to the court’s opinion discloses a previously secret memorandum prepared by OLC at  the request of the Department of Defense (“OLC Memo”), which “set[s] forth the Government’s  reasoning as to the lawfulness of the attacks.” Id. at *5. Dated July 16, 2010, the court found – and the government concedes – that OLC’s analysis of the legal framework for the use of military force in counterterrorism operations is binding on the Executive Branch and therefore “establishes the legal boundaries within which [it] can operate.” Id. at *27, 39, 43.

The government had been reluctant to officially acknowledge that officers from the Central Intelligence Agency (“CIA”), who are not members of the armed forces and therefore not privileged belligerents entitled to combatant immunity, directly participate in combat operations.1 The OLC’s legal analysis, however, emphatically rejects the view that “any hostile acts performed by unprivileged belligerents are for that reason violations of the laws of war.” OLC Memo at 33, n.44 (original emphasis). To the contrary, as long as an unprivileged belligerent’s “lethal activities [are] conducted in accord with the laws of war,” he cannot be branded a war criminal merely because he is “not entitled to the combatant’s privilege.” Id. Thus, the OLC Memo concludes that war criminality turns on a person’s actions, not his belligerent status. That is, whereas a member of the armed forces can commit a war crime, an unprivileged belligerent can participate in hostilities without necessarily violating the law of war.

Insofar as certain dicta in Ex Parte Quirin, 317 U.S. 1 (1942) has sometimes been read to suggest otherwise, the OLC Memo points out that the Supreme Court’s actual holding “focused on [the defendants’] conduct behind enemy lines.” OLC Memo at 33, n.44. Moreover, “the authorities the Court cited (the Lieber Code and Colonel Winthrop’s military law treatise) do not provide clear support” for the view that unprivileged belligerency, by itself, is a violation of the modern law of war. Id. “The contrary view ‘arises … from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection.’” Id., quoting Richard R. Baxter, So-Called “Unprivileged Belligerency”: Spies, Guerillas, and Saboteurs, 28 BR. Y.B. INT’L L. 323, 342 (1951).

The OLC Memo’s analysis is not limited to international legal authorities. It also analyzes at length whether the participation of CIA officers in combat operations violates the domestic law of the United States. Conspicuously absent from that discussion is any reference to a putative “U.S. common law of war.” The only plausible interpretation of the analysis is that no such law exists. If it did, OLC certainly would have felt compelled to address it in order to evaluate the lawfulness of the government’s conduct under that body of law. Accordingly, the only law relevant to assessing Mr. Khadr’s actions is the international law of war.

Read more »

Today’s Headlines and Commentary

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Wednesday, July 2, 2014 at 8:03 AM

Abu Khattala, the man suspected of playing a key role in the September 2012 attack in Benghazi, is scheduled to appear in a Washington, D.C. district court for a detention hearing this morning. The prosecution is fighting for pretrial detention, arguing “[t]here is no condition or combination of conditions that will reasonably assure the defendant’s appearance in court and assure the safety of any person and the community.”  The New York Times explains that Abu Khatalla has allegedly confirmed his involvement in the assault and, as such, should not be released before the trial, as he still poses a threat to American security. The Washington Post has more details.

As the Iraqi government remains in a state of relative chaos, the Post reports that the “skies are getting crowded” over Iraq. As President Obama tries to limit the number of American troops sent to the country, more and more aircraft are flying over Iraq, making the air traffic pretty busy. Consistent with this is the other recent news, over at The Hill, that the Pentagon is sending attack helicopters to Iraq.

Meanwhile, C.J. Chivers of the Times reports that some Iraqi soldiers who retreated from combat against insurgents did so not out of cowardice, but instead because their superiors acted incompetently.  One Iraqi army brigade was “eager to fight but [] undermined by high commanders who failed to provide border forces with water and food, causing the brigade to abandon positions in the searing desert heat.”

Prior to joining the U.S. Army, now-Sgt. Bowe Bergdahl lead an interesting, and at times seemingly contradictory life—into which military investigators  and the Times are now looking.

Yesterday, Tara mentioned recent Israeli strikes on sites in the Gaza Strip, understood to be retaliation for the murder of three Israeli teenagers. Today, the Times breaks the disturbing news that the body of an Arab teenager was found in an East Jerusalem neighborhood. The boy is thought to have been targeted as a “revenge killing.”

The AP reports that North Korea fired two short-range projectiles into waters off of the country’s east coast yesterday. The move is seen as a show of protest, as Chinese president Xi Jingping arrives in Seoul, South Korea today for talks on North Korea’s nuclear program.

Violence once again plagues Ukraine after the ending of a cease-fire between supporters of the Ukraine government and separatist rebels. At the same time, talks between the two sides in Kiev also seemed to be on the brink of collapse. The Hill informs us that Secretary of State John Kerry is trying his best to make the two sides come to the negotiating table, but isn’t having much luck.

As Wells pointed out last night, The Privacy and Civil Liberties oversight board released a report on NSA surveillance activities under FISA Section 702. The panel justifies, under law, the targeting of foreign citizens, stating:

The Board also concludes that the core of the Section 702 program — acquiring the communications of specifically targeted foreign persons who are located outside the United States, upon a belief that those persons are likely to communicate foreign intelligence, using specific communications identifiers, subject to FISA court–approved targeting rules and multiple layers of oversight — fits within the “totality of the circumstances” standard for reasonableness under the Fourth Amendment, as that standard has been defined by the courts to date.

The Post has more on the report.

The FAA recently released new rules on UAVs. BoingBoing takes a closer look at those rules, and explains that even small, toy UAVs are now technically classed as illegal drones.

The Wall Street Journal has an interesting insight into the U.S. military’s recruitment woes: apparently, 71% of American 17-to-24-year-olds are ineligible to serve in the military, due to things like medical conditions, past felony charges, or a failure to pass the military’s aptitude test.

And, for a short while, we had a new Secretary of Defense yesterday:

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Fans of the U.S. men’s soccer team, who were defeated by Belgium in yesterday’s thrilling Round-of-16 match, honored goalkeeper Tim Howard by editing the Secretary of Defense’s Wikipedia page. The edit was taken down soon thereafter.

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 Government’s Abu Khatallah Detention Memo

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Tuesday, July 1, 2014 at 10:01 PM

Get yer copy right here. Highlights:

In the days before the Attack, the defendant voiced concern and opposition to the presence of an American facility in Benghazi. On September 11, 2012, at approximately 9:45 p.m., a group of twenty or more armed men assembled outside the United States Special Mission in Benghazi (“Mission”) and then aggressively breached the Mission gate. Several Benghazi-based AAS members have been identified among this group, many of whom are known associates of the defendant. The initial attackers were armed with AK-47-type rifles, handguns, and rocket-propelled grenade launchers. After the initial breach, the attackers stole a Mission vehicle, forcibly entered and damaged Mission buildings, and stole Mission property. During this initial attack, buildings within the Mission were set on fire. The fires that were set during the attack ultimately led to the deaths of Ambassador J. Christopher Stevens and Information Management Officer (“IMO”) Sean Patrick Smith. The remaining DOS personnel were able to escape to a nearby U.S. facility, known as the Annex. It also soon came under attack, which continued throughout the early morning hours of September 12, 2012, culminating in a precision mortar attack that resulted in the deaths of Security Officers Tyrone Snowden Woods and Glen Anthony Doherty.

Shortly after the U.S personnel evacuated from the Mission, the defendant entered the compound and supervised the exploitation of material from the scene by numerous men, many of whom were armed. Following the attack on the Mission, the defendant returned to an AAS camp in Benghazi, where a large group of armed AAS members began assembling for the attack on the Annex.

In the days that followed the Attack, the defendant attempted to obtain various types of equipment, including weapons, to defend himself from feared American retaliation for the Attack. The defendant also took other steps to protect himself against a future U.S. capture operation. For example, in late 2013, the defendant expressed anger that the U.S. conducted a capture operation of a Libyan fugitive in Tripoli, and the defendant took steps to retaliate against the U.S. by targeting U.S. interests in the region. The defendant also expressed concern that the U.S. might try to capture him in Libya and, as a result, he increased his personal security. The defendant has continued to make efforts to target American personnel and property since the Attack and discuss with others his deadly and destructive intentions. As a commander in an extremist militia group who is fully committed to causing death and destruction to American personnel and property, the defendant could continue to communicate his plans for additional deadly attacks to other extremists and encourage them to carry out those plans, if not detained.

The defendant has extensive contacts with senior-level members of extremist groups throughout Libya and many of the groups’ other members, including his close associates who participated in the Attack, and those individuals are similarly dedicated to carrying out plots to attack American and Western interests. The defendant’s possession of a loaded firearm at the time of his capture is further indication of his proclivity for violence. Without the defendant’s detention, he could communicate and further conspire with many of those extremist individuals.

In short, there is no condition or combination of conditions that will reasonably assure the defendant’s appearance in Court and assure the safety of any person and the community. This inescapable conclusion is based on the defendant’s demonstrated and continued interest and actions to harm American personnel and property, which have already led to the deaths of American citizens and the destruction of American property in Benghazi. This conclusion is also based on his significant relationships with active leaders and members of extremist groups in Libya, including AAS, who are similarly bent on harming American personnel and property. Given the defendant’s proclivity for violence as well as his ability to readily communicate with other similar-minded individuals, as demonstrated by his status as a commander of an extremist brigade, his detention is the only means available to neutralize that threat.

Pre-Release PCLOB Report on Section 702 of FISA

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Tuesday, July 1, 2014 at 9:29 PM

Here is a “pre-release” version of the report; the PCLOB will adopt a final version at its meeting tomorrow morning.  It therefore has offered the still-not-yet-official document to the press and public, now, “so as to preview the Board’s findings and recommendations.”

The main report’s executive summary overviews the Board’s legal and policy analysis, as well as its policy recommendations.  The legal analysis is summarized as follows:

The Board’s legal analysis of the Section 702 program includes an evaluation of whether it comports with the terms of the statute, an evaluation of the Fourth Amendment issues raised by the program, and a discussion of the treatment of non-U.S. persons under the program.

In reviewing the program’s compliance with the text of Section 702, the Board has assessed the operation of the program overall and has separately evaluated PRISM and upstream collection. On the whole, the text of Section 702 provides the public with transparency into the legal framework for collection, and it publicly outlines the basic structure of the program. The Board concludes that PRISM collection is clearly authorized by the statute and that, with respect to the “about” collection, which occurs in the upstream component of the program, the statute can permissibly be interpreted as allowing such collection as it is currently implemented.

The Board also concludes that the core of the Section 702 program — acquiring the communications of specifically targeted foreign persons who are located outside the United States, upon a belief that those persons are likely to communicate foreign intelligence, using specific communications identifiers, subject to FISA court–approved targeting rules and multiple layers of oversight — fits within the “totality of the circumstances” standard for reasonableness under the Fourth Amendment, as that standard has been defined by the courts to date. Outside of this fundamental core, certain aspects of the Section 702 program push the program close to the line of constitutional reasonableness. Such aspects include the unknown and potentially large scope of the incidental collection of U.S. persons’ communications, the use of “about” collection to acquire Internet communications that are neither to nor from the target of surveillance, and the use of queries to search for the communications of specific U.S. persons within the information that has been collected. With these concerns in mind, this Report offers a set of policy proposals designed to push the program more comfortably into the sphere of reasonableness, ensuring that the program remains tied to its constitutionally legitimate core.

Finally, the Board discusses the fact that privacy is a human right that has been recognized in the International Covenant on Civil and Political Rights (“ICCPR”), an international treaty ratified by the U.S. Senate, and that the treatment of non-U.S. persons in U.S. surveillance programs raises important but difficult legal and policy questions. Many of the generally applicable protections that already exist under U.S. surveillance laws apply to U.S. and non-U.S. persons alike. The President’s recent initiative under Presidential Policy Directive 28 on Signals Intelligence (“PPD-28”) will further address the extent to which non-U.S. persons should be afforded the same protections as U.S. persons under U.S. surveillance laws.12 Because PPD-28 invites the PCLOB to be involved in its implementation, the Board has concluded that it can make its most productive contribution in assessing these issues in the context of the PPD-28 review process.

The executive summary sums up the Board’s policy analysis:  Read more »

Privacy and Civil Liberties Board to Issue 702 Report on . . . 7/02

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Tuesday, July 1, 2014 at 4:29 PM

Get it? Actually, I don’t think they did either. It’s a cute coincidence. But at any rate, the PCLOB has announced that it will be releasing its report on FISA 702 collection this evening at 9:00 pm:

The Board’s report will contain a detailed analysis of the Section 702 program, with a focus on increasing transparency to the public regarding the surveillance program. It will address the Section 702 program’s development and operation, statutory basis, constitutional implications, and whether it strikes the right balance between national security and privacy and civil liberties, and will make recommendations for policy reforms. The report will be unclassified and available to the public. Previously, on January 23, 2014, the Board released a separate unclassified report regarding operation of the telephone records program under Section 215 of the USA PATRIOT Act, as well as on the operations of the Foreign Intelligence Surveillance Court. The Board’s review of these surveillance programs has included three public meetings, receipt of dozens of public comments, meetings with congressional committee staff, advocates and private sector representatives, analysis of classified materials, and briefings by government agencies.