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NRC Study on (The Lack of) Software-Based Replacements for Bulk Collection

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Friday, January 16, 2015 at 11:34 AM

Scientific Computing had this news yesterday, about the important DNI-ordered study from the National Research Council:

WASHINGTON, DC — No software-based technique can fully replace the bulk collection of signals intelligence, but methods can be developed to more effectively conduct targeted collection and to control the usage of collected data, says a new report from the National Research Council. Automated systems for isolating collected data, restricting queries that can be made against those data, and auditing usage of the data can help to enforce privacy protections and allay some civil liberty concerns, the unclassified report says.

The study was a result of an activity called for in Presidential Policy Directive 28, issued by President Obama in January 2014, to evaluate U.S. signals intelligence practices. The directive instructed the Office of the Director of National Intelligence to produce a report within one year “assessing the feasibility of creating software that would allow the intelligence community more easily to conduct targeted information acquisition rather than bulk collection.”

In response, Neema Singh Guliani, ACLU legislative counsel wrote:

It would be a mistake to misinterpret this finding as justification for continuing dragnet surveillance or rejecting reform efforts. Such conclusions both misread the report and ignore the core of the surveillance debate.

One, the National Academies did not find that existing mass surveillance programs have been effective intelligence tools. For example, it does not rebut findings by thePrivacy and Civil Liberties Oversight Board, President’s Review Group, and others that the domestic nationwide call detail record program has never stopped an act of terrorism or led to the identification of a terrorist suspect. Indeed, the report does not even attempt to provide one concrete example of a case where bulk collection was essential to a national security investigation.

What the report says is that information collected in bulk, and retained indefinitely, could theoretically be of use in a terrorist investigation. But, it doesn’t suggest that this theoretical possibility has happened, is likely to happen, or justifies mass surveillance.

Two, the report did not find that the resource costs, privacy impacts, and economic harms associated with bulk collection are balanced by any concrete benefits in intelligence capabilities. In fact, the report emphasizes that the policy and legal arguments that weigh in favor of ending mass surveillance programs are not at conflict with their conclusions.

Finally, the report acknowledges that there are additional steps that the intelligence community can take to increase transparency, improve oversight, and limit the use of information collected through surveillance.

Fundamentally, the surveillance question is about whether our country is willing to trade constitutional liberties for dragnet surveillance programs that have yet to prove their effectiveness.

What President Obama Should Say About Guantanamo in the State of the Union

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Thursday, January 15, 2015 at 5:38 PM

In his State of the Union address, President Obama will undoubtedly address issues of terrorism, including the new threats posed by ISIS and Al Qaida and the recent attacks in Paris.   Much has changed since his remarks at NDU in May 2013 when he announced his understandable but unrealistic desire to declare the conflict with Al Qaida to be over and to repeal the 2001 AUMF.

Given recent press reports of his plan to try to close Guantanamo before the end of his Presidency, and the introduction of legislation by Congressional Republicans to prevent him from doing so, it seems likely that the President will also say  something about Guantanamo. In my view, that would be appropriate. But he should be careful about what he says. As I have said repeatedly on this blog, if he really wants to close Guantanamo, he needs to stop politicizing the issue (even if Republicans do so).

Towards that end, the President should stop saying (as he said in his NDU remarks) that Guantanamo is “a facility that should have never been opened” and insist that closing it is a “moral” issue.  This is a needless slap at the Bush Administration and an effort by the Obama Administration to impugn the character of its predecessor.  Such statements tend only to rile up Republicans in Congress, whose support Obama needs if he actually wants to close Guantanamo. It seems politically tone-deaf for the White House to ask a Republican Congress to help clean up a Republican Administration’s “mistake.” And it is especially inappropriate to condemn prior policy – a policy that Obama has seemed perfectly satisfied to defend in court – as immoral when he has not put forward an alternative for detention of al Qaida and Taliban detainees that would suddenly restore American values.

The President would do better to acknowledge that there were legitimate national security reasons to open a detention facility at Guantanamo in 2002 but to state that the facility has now outlived its original purposes. As I have explained before, even if aspects of the decision to open Guantanamo can be criticized, there was indisputably an urgent need to detain and question members of the Taliban and Al Qaida captured in Afghanistan and elsewhere in some secure location, and US military commanders did not want to hold them in Afghanistan (and the American people would not have been anxious to have them moved to the United States so soon after 9/11). Thirteen years later, after all detainees have been comprehensively questioned about their ties to terrorism, and roughly 650 detainees have been transferred out of Guantanamo, the remaining detainees can be transferred into maximum security detention facilities in the United States, either for prosecution or continued detention. Read more »

Why Are Commentators So Quick to Call Paris a Lone Wolf Attack?

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Thursday, January 15, 2015 at 5:30 PM

Although new facts are emerging each day, and we can anticipate that the facts will continue to develop, I have been surprised by recent commentary (this for example), suggesting that the Paris attacks are indicative of the “lone wolf” phenomenon. In my view, it is too soon to tell whether the attacks were directed, controlled, sponsored and/or inspired by an international terrorism organization. But an attack must not necessarily be directed and controlled, in order to be conducted for or on behalf of a terrorist organization. And given that there were two separate attacks the same week, conducted by multiple people, with authorities quickly identifying the individuals involved and some of their international connections, the lone wolf label strikes me as significantly off-base.

According to a variety of press reports as of January 15th:

  • There were two assailants in the Charlie Hebdo attack, and one assailant and possibly one or more co-conspirators in the kosher market attack;
  • The Kouachi brothers, who executed the Charlie Hebdo attack, received al Qaeda training in Yemen;
  • An individual with possible connections to the Paris assailants was detained in Bulgaria; and
  • Al Qaeda in the Arab Peninsula (AQAP) has claimed responsibility for the attack (whether this is an accurate claim, French or U.S. authorities have not confirmed).

As far as I know, there is no domestic statute defining what constitutes a “lone wolf.” The Foreign Intelligence Surveillance Act (FISA), however, was amended by the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, so as to add a provision enabling surveillance of a so-called lone wolf.

In summary, in order to conduct electronic surveillance or physical search within the United States of a suspected lone wolf, the government must make a showing of probable cause (among other things), that the individual “engages in international terrorism or activities in preparation therefore[.]” 50 USC §1801(b)(1)(C). The provision only applies to non-U.S. persons, and does not require a factual demonstration that the targeted individual is engaging in the international terrorism activities for or on behalf of a foreign power, such as a particular international terrorism organization. If there are facts demonstrating probable cause that a potential target is acting on behalf of an international terrorism organization, then the requested authority would be presented to the Foreign Intelligence Surveillance Court (FISC) under the provision that connects the international terrorism activities with a foreign power. See 50 U.S.C. 1801(b)(2)(C).

I would suggest that FISA’s pleading structure is instructive for how these types of investigations unfold more generally: if there are facts connecting an individual or group to an international terrorist organization, investigators identify and pursue them. Armed attacks with even just the four simple bulleted facts above, very quickly start to look like something awfully different than the actions of a single unaffiliated actor.

China Releases a “Position Paper” in the Ongoing Philippines-China Arbitration

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Thursday, January 15, 2015 at 3:30 PM

As readers might recall, two years ago the Philippines launched an arbitration process against China under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). Although its exact claims remain shrouded from public scrutiny, Manila apparently asserted that—to simplify a bit—Beijing had violated the international law of the sea by claiming sovereignty over vast swathes of the South China Sea.

From the start, China has steadfastly refused to participate in the arbitration process. So it was no surprise when Beijing “missed” the December 15 deadline to submit its counter-memorial. Instead, however, China released a “position paper” to the public on December 7. For all intents and purposes, this paper is the functional equivalent of China’s brief on the tribunal’s jurisdiction. Given the paper’s importance to the case, we’ve decided to provide Lawfare readers with a detailed summary of the arguments and an initial take, with an eye toward providing more meticulous analysis in the future.

In Part I, the position paper opens with its one overriding purpose: to show that the tribunal lacks jurisdiction over the case brought by the Philippines. Accordingly, Beijing explains, the paper should not be taken as either accepting the Philippines’s arguments or indicating China’s participation in the arbitration. Then, the paper lays out its four arguments: the tribunal lacks jurisdiction because (1) the case concerns a territorial dispute; (2) the Philippines has committed to negotiating any issues related to the South China Sea dispute; (3) the case implicates factors related to the delimitation of maritime boundaries; and (4) China has not given its consent to the compulsory arbitration procedure. I’ll summarize each claim in turn, and then provide my initial reaction.

Read more »

Today’s Headlines and Commentary

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Thursday, January 15, 2015 at 1:44 PM

Yesterday, the U.S. released five Yemeni inmates from Guantanamo Bay. Oman, which shares a border with Yemen, has accepted four of the five detainees, while the fifth man has been resettled in Estonia. Following this transfer, 122 prisoners remain at GTMO. The New York Times remarks, “The release of the five men continues the brisk pace of releases set by the administration in 2014.” Wells shared the news here at Lawfare.

The CIA Accountability Review Board has concluded its probe into allegations that agency members had spied on Senate Intelligence Committee staffers, who were investigating the CIA torture program. Its report maintains that CIA members did not improperly access the computers of the committee staffers. These findings conflict with an earlier assessment reached by the CIA Inspector General. Vice News reports the story. Wells flagged the information here.

According to the Daily Beast, despite U.S. airstrikes, the Islamic State has continued to gain substantial ground in Syria. The jihadist group has persevered in capturing rural territory without suffering any major setbacks due to American air assaults. Still, a Pentagon official asserts, “Yes, they have gained some ground. But we have stopped their momentum.”

In Iraq, Islamic State militants are still firing on the al Asad air base, where U.S. troops, charged with training Iraqi security forces, have been stationed. Defense News reports the story.

Meanwhile, Iraqi citizens have begun criticizing U.S. efforts to combat the Islamic State – calling the U.S.-led campaign “too slow and too small.” Still, the Wall Street Journal points out that “the rising public frustrations with the campaign are fueled by political posturing over what the coalition should be doing.”

The Washington Post informs us that a former Guantanamo Bay detainee has been working to recruit Islamic State followers in Afghanistan.

Yesterday, the FBI arrested an Ohio man named Christopher Lee Cornell, who was planning to attack the U.S. Capitol Building with guns and pipe bombs. Politico reports that Cornell had declared his allegiance to the Islamic State via Twitter. In response to this news, here at Lawfare, Bobby considered the problem of homegrown terrorists.

As Sebastian and Cody mentioned yesterday, Al Qaeda in the Arabian Peninsula (AQAP) has taken credit for last week’s attack on the French satirical newspaper, Charlie Hebdo. McClatchy notes, however, that the terrorist group has “provided no hard evidence for its claims.” Instead, it only asserts its responsibility. Indeed, according to White House Press Secretary Josh Earnest, the U.S. government has yet to conclude that AQAP is culpable for the attack, which killed twelve.

The U.S. and Iran are looking to speed up international nuclear negotiations. According to the Associated Press, U.S. Secretary of State John Kerry and Iranian Foreign Minister Javad Zarif met for five hours yesterday.

However, congressional action may pose problems for continued talks. Bloomberg View reports that Senate lawmakers have finalized a sanctions bill targeted against Iran.

In order to focus on the cyber threats of tomorrow, the Defense Informations Systems Agency (DISA) will actually shrink its cybersecurity division. Breaking Defense has more on how this plan will work.

Defense One considers the limits of the Obama administration’s cybersecurity proposals.

British Prime Minister David Cameron and U.S. President Obama have an article in the Times together, which asserts, “We won’t let the voice of freedom be muzzled.”

Yesterday, the House approved a bill that would fund the Department of Homeland Security. However, because the measure includes provisions that would defund President Obama’s recent immigration action, Defense News predicts that “it likely is DOA in the Senate.”

Roll Call shares highlights from an interview with the new House Armed Services Committee Chairman, Congressman Mac Thornberry (R-TX), who intends to focus the committee on unconventional warfare.

ICYMI: Yesterday, on Lawfare

Paul considered the legal questions surround what the U.S. should do with Dominic Ongwen, a leader of the Lord’s Resistance Army, who had been transferred to our custody, but may already have been given over to African Union troops.

Ben shared some ideas on the erosion of the norms of armed conflict, following a conference he attended at Columbia Law School.

Wells shared news that the CIA Accountability Review Board has concluded that agency members did not spy on staffers of the Senate Intelligence Committee during the investigation into the CIA torture program.

Bobby informed us of the FBI’s arrest of a homegrown jihadist.

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.

Accountability as a Security System

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Thursday, January 15, 2015 at 11:30 AM

At a CATO surveillance event last month, Ben Wittes talked about inherent presidential powers of surveillance with this hypothetical: “What should Congress have to say about the rules when Barack Obama wants to know what Vladimir Putin is talking about?” His answer was basically that Congress should have no say: “I think most people, going back to my Vladimir Putin question, would say that is actually an area of inherent presidential authority.” Edward Snowden, a surprise remote participant at the event, said the opposite, although using the courts in general rather than specifically Congress as his example. “…there is no court in the world — well, at least, no court outside Russia — who would not go, ‘This man is an agent of the foreign government. I mean, he’s the head of the government.’ Of course, they will say, ‘this guy has access to some kind of foreign intelligence value. We’ll sign the warrant for him.'”

There’s a principle here worth discussing at length. I’m not talking about the legal principle, as in what kind of court should oversee US intelligence collection. I’m not even talking about the constitutional principle, as in what are the US president’s inherent powers. I am talking about the philosophical principle: what sorts of secret unaccountable actions do we want individuals to be able to take on behalf of their country?

Put that way, I think the answer is obvious: as little as possible.

I am not a lawyer or a political scientist. I am a security technologist. And to me, the separation of powers and the checks and balances written into the US constitution are a security system. The more Barack Obama can do by himself in secret, the more power he has—and the more dangerous that is to all of us. By limiting the actions individuals and groups can take on their own, and forcing differing institutions to approve the actions of each other, the system reduces the ability for those in power to abuse their power. It holds them accountable.

We have enshrined the principle of different groups overseeing each other in many of our social and political systems. The courts issue warrants, limiting police power. Independent audit companies verify corporate balance sheets, limiting corporate power. And the executive, the legislative, and the judicial branches of government get to have their say in our laws. Sometimes accountability takes the form of prior approval, and sometimes it takes the form of ex post facto review. It’s all inefficient, of course, but it’s an inefficiency we accept because it makes us all safer. Read more »

We Are Losing Money

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Thursday, January 15, 2015 at 9:37 AM

As part of our ongoing series on Bitcoin, I thought I would note today’s report that the value of Bitcoin has fallen below $200/XBT.  Since buying the coin on December 31 it has lost more than 33% of its value.  I sure am glad that Lawfare bought the coin, and not me personally.

Five More Transfers From GTMO

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Thursday, January 15, 2015 at 9:09 AM

The five detainees are Yemeni; four went to Oman, and one to Estonia, apparently. Here’s Helene Cooper, of the New York Times

WASHINGTON — The United States transferred five more detainees — all of them Yemenis — from the military prison at Guantánamo Bay, Cuba, on Wednesday, the Defense Department announced. Their release intensified the dispute between the Obama administration and several Republican senators over President Obama’s recent flurry of transfers as he seeks to empty the American-run prison.

The latest transfers came one day after several Republican senators, including John McCain of Arizona, proposed legislation that would place a moratorium on the release of most of the prisoners held at Guantánamo. The move was widely interpreted as an attempt to halt the recent surge in releases.

The proposed legislation would bar transfers to Yemen for two years and would suspend virtually all transfers from Guantánamo for the same period, repealing the law that has allowed the administration to transfer 33 prisoners in the last year.

The Senators’ wrong-headed legislative proposal—about which I hope to say more shortly—can be found here.

Rational Security, Episode #2: The “I Have Marshall McLuhan Right Here” Episode

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Thursday, January 15, 2015 at 7:34 AM

Last week, I introduced a new podcast that Shane Harris, Tamara Cofman Wittes, and I are doing entitled, Rational Security. Episode #2 is now out, featuring a discussion with Brookings scholar Jeremy Shapiro about his new paper with Daniel Byman on returning foreign fighters, “Be Afraid. Be a Little Afraid,” which I posted a few days ago. We also talked about why everyone makes such a fetish of condemnations of terrorist attacks. And we talked about the emerging new vocabulary of cybersecurity, in which the President talks about “cyber vandalism” by foreign states. We hope you’ll check it out.

Did the FBI Just Prevent an Attack in DC from a Homegrown ISIS Supporter?

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Wednesday, January 14, 2015 at 6:12 PM

A very, very big arrest in Cincinnati today, involving allegations that a man named Christopher Cornell (online alias Raheel Mahrus Ubaydah) had planned to travel to DC in order to carry out an attack (via assault rifle) at the Capitol. It appears Cornell was arrested today after he purchased two ArmaLite M-15s. How did the FBI know? Because Cornell had been in communication with a confidential informant, someone who (according to the affidavit sworn in support of the criminal complaint) “began cooperating with the FBI in order to obtain favorable treatment with respect to his criminal exposure on an unrelated case.” (affidavit para. 8(d)) As the affidavit further explains, the informant came across Raheel Mahrus Ubaydah posting pro-ISIS material on Twitter, and alerted the FBI. Cornell and the informant proceeded to open communications with each other (it is not clear from the affidavit whether this was at the FBI’s direction), and Cornell claimed that he had been in touch with someone overseas who had not specifically authorized him to carry out an attack in the United States…but that he wished to do it anyway since al-Awlaki and others had blessed such attacks. Cornell allegedly added that his plan was to “make our own group in alliance with the Islamic State here and plan operations ourselves.” (affidavit para. 8(f)).

If the allegations in the affidavit are true, this is a disturbing reminder that the problem of homegrown would-be jihadis is by no means limited to France. And perhaps more significantly, it also is a reminder that it is not necessary for ISIS, AQAP, or any other formal group to be the moving force in funding, planning, or directing someone to carry out acts of mass murder; the practical barriers to an attack like this or the attack on Charlie Hebdo are not so high that one must have the direct involvement of such groups. The tricky part is the inspiration to act, which as we have seen can indeed be generated in indirect, diffused ways. Perhaps that is what happened here, though you can bet that the defense will argue that Cornell was not in fact independently inspired to carry out an attack, but rather was led into it by the informant. That familiar tension–between the immense utility of informants and cooperating witnesses when it comes to smoking out such threats in advance, and the real dangers of entrapment–will be a central point of contention as the homegrown threat evolves.

CIA Review: CIA Didn’t Snoop Improperly on SSCI Staff

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Wednesday, January 14, 2015 at 4:47 PM

That’s the gist of Jason Leopold’s extraordinary article this afternoon for Vice, which in turn cites this report by a CIA Accountability Review Board.  (The latter document, as I can now see thumbing through it, says the Board was “directed to limit its investigation only to the conduct of Agency officers, [sic] not to investigate the conduct of SSCI staff members.”)

From Leopold’s piece:

There is a new twist in the long-running soap opera — and potential constitutional crisis — between the CIA and Senate. Contrary to accusations leveled by the Senate, a 38-page report has found that the CIA did not breach the computers of Senate Intelligence Committee staffers and spy on them while they were investigating the CIA’s torture program.

The report was released today by the CIA. And is based on a review conducted by a CIA accountability board.

More coverage from the Washington Post can be found here:

An internal CIA review concluded that agency employees committed no wrongdoing when they surreptitiously searched a computer system used by Senate investigators in a multiyear probe of the agency’s brutal interrogations of terrorism suspects.

The CIA panel found that “no disciplinary actions are warranted” for agency lawyers and computer experts who were involved in the incident, which led to an extraordinary public rupture between the CIA and the Senate Intelligence Committee last year.

The search of the Senate computers by CIA employees was “reasonable in light of their responsibilities to manage an unprecedented computer system” the agency had set up at a secret facility in northern Virginia exclusively for the Senate probe.

Update: Readers may note that I tweaked both our own little headline above, and the post’s text.  After reading through both Leopold’s article and the Accountability Review Board’s (ARB) report, I don’t think that, as Leopold suggested, the CIA documents contain any formal findings of theft by Senate staff.  (The Post’s piece, you’ll notice, does not suggest as much.)    Read more »

Today’s Headlines and Commentary

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Wednesday, January 14, 2015 at 1:58 PM

The New York Times reports that, in a new video and printed statement, al Qaeda in the Arabian Peninsula (AQAP) has formally claimed responsibility for the Charlie Hebdo attacks, calling them revenge for the newspaper’s cartoons of the Prophet Muhammad. Both the video and the statement also assert that Anwar al-Awlaki was involved in arranging the attack, despite his 2011 death. France24 notes that AQAP also claimed responsibility for selecting the target, planning the operation and financing the gunmen.

As the French laid the three policemen slain in the attacks to rest, its lower house of Parliament voted to continue the country’s military operations against Islamic extremism in Iraq, according to the Times. The Wall Street Journal reveals that French Prime Minister Manuel Valls is pushing for a new law that would enhance domestic surveillance of the internet and social networks. This legislative move comes alongside greater government pressure on technology firms to share information with intelligence agencies.

The Paris attacks have triggered a debate in Britain over what surveillance powers intelligence agencies should have. The Washington Post details British Prime Minister David Cameron’s push for a law allowing intelligence agencies to crack encrypted communications, as well as the heated backlash against that proposal. Elsewhere in Europe, the German cabinet approved a plan to take identification cards away from Islamic extremists. The Associated Press explains that this move, along with an earlier restriction on passports, effectively bars these suspects from leaving the country. In light of the roiling debate across Europe. the Times has a story describing the growing challenges European intelligence agencies face as they chase an enemy that has become more diffuse but no less dangerous.

In eastern Ukraine, 12 people were killed when a passenger bus came under intense fire. Reuters reports that Ukrainian officials have blamed pro-Russian separatists, who denied responsibility. The Times notes that the attack is part of a recent resurgence in violence surrounding the crumbling of negotiations that were scheduled for this week.

The Times covers the Chinese government’s emerging role as mediator between the Afghan government and the Afghan Taliban, revealing reports of multiple meetings between Chinese officials and Taliban officials. Reuters reports that China has arrested 10 Turks it suspects supplied fake passports to Uighurs in China’s Xinjiang province, which has seen a rise in separatist-fueled violence. The arrests come as part of a broader government crackdown, which also includes colorful Chinese propaganda. The BBC has the story.

The Wall Street Journal covers Boko Haram’s recent incursions into Cameroon, including a five-hour firefight yesterday that left scores of people dead and thousands fleeing the region. The AP discusses how the attention paid to the Charlie Hebdo attacks has meant the violence in Nigeria has received next to no response, even from Nigerian President Goodluck Jonathan. The BBC explores the difficulties of getting hard facts in the Nigerian conflict, where casualty counts are often downplayed or disputed.

The Post describes the legal issues facing the US after Lord’s Resistance Army commander Dominic Ongwen was captured and handed over to US forces. Ongwen is wanted by the International Criminal Court, but the US is not a member of the tribunal, thus complicating any transfer to the Hague. Additionally, the Central African Republic, where Ongwen was captured, is in disarray and lacks an effective judicial system.

The new Republican Congress has begun a new attempt to block President Barack Obama’s plan to transfer Guantanamo detainees, DefenseOne writes. A new bill introduced by Senator Kelly Ayotte (R-NH) would bar the administration from transferring detainees to Yemen or the United States, along with placing further restrictions on all transfers. John Hudson at Foreign Policy says that the bill will effectively block any further Guantanamo transfers.

In other Guantanamo news, the Miami Herald divulges that defense lawyers for a suspect in the USS Cole bombing have filed a motion protesting the recent Pentagon directive mandating that judges in the Guantanamo cases move to Guantanamo for the duration of the case. The suspect’s lawyers are arguing that this directive constitutes unlawful meddling and have asked for the case to be thrown out.

In an announcement coinciding with Secretary of State John Kerry’s visit to Pakistan, the United States has declared Pakistan Taliban leader Mullah Fazlullah a Specially Designated Global Terrorist under Executive Order 13224. The designation will allow the US government to seize any of his property or interests in the United States, including any that may be under the control of US citizens.

The Times of India reports that Delhi will employ “never-seen-before” security measures when President Barack Obama and Prime Minister Narendra Modi share the stage at India’s Republic Day parade on January 26th. US and Indian intelligence agencies will work in cooperation sharing intelligence while the US Secret Service, US Navy Seals, Indian Special Protection Group, and Indian paramilitary forces secure the ground. New Delhi expects to deploy 40,000 police to secure the city. In addition, metro stations within a six kilometer radius will be closed and air traffic to Delhi will be completely halted during the parade. When Obama visited India in 2010, the US brought 13 heavy lift aircraft and four helicopters aside from Air Force One; security analysts expect the US will do at least as much during this visit. In more lighthearted preparation, Indian officials are also deploying extra workers to keep stray cows, monkeys, and dogs off the streets during Obama’s visit.

The Post notes that President Obama may also break with tradition by choosing to make a ceremonial entrance to the event in a separate car than India’s president due to security concerns. If you are confused by why this matters, the Post’s video displays the pomp of the ceremonial entrance.

The judge in the Boston bomber’s trial has refused the defense’s request for a delay in jury selection, Reuters discloses. Defense lawyers argued that that the recent attacks in Paris would make it harder to select a fair jury, but the judge expressed confidence the selected jury would be impartial.

At Foreign Policy, David Kenner describes the failure of radical Sunnis to foment sectarian violence in Lebanon, despite the civil war raging across the Syrian border. Lebanese Sunnis, Kenner notes, have largely turned their backs on ISIS. In Iraq and Syria, the US-led coalition hit ISIS with 11 airstrikes, according to Reuters. Foreign Policy also posts an account of a shocking new ISIS video, which shows a Kazakh child soldier executing two self-identified Russian spies.

The Los Angeles Times carries the story of why the Iraqi army has been so ineffective despite massive sums of US money. The article identifies the usual suspects for the root causes of the army’s failure: poor leadership, inadequate equipment, rampant corruption, lack of discipline, and a general lack of trust of commanders by soldiers.

The White House released a summary of the administration’s proposals and initiatives on cybersecurity, which center on information sharing, law enforcement modernization, and national data breach reporting. Politico notes that, although similar proposals have fizzled in Congress before, increased public concern over cybersecurity may create an opening for passage of these proposals.

Bloomberg reports that President Obama informed congressional leaders that he will introduce terms for a new Authorization for Use of Military Force that will put the US campaign against ISIS in Iraq and Syria on firmer legal footing. But the Hill revealed that partisan bickering continues over who, exactly, is responsible for the AUMF and its contents.

The Department of Justice pushed forward in the trial of former CIA official Jeffrey Sterling on Tuesday, charging that much of the information New York Times reporter James Risen used in his 2006 book “State of War” was known only to Mr. Sterling. In opening arguments, the prosecution said Mr. Sterling caused lasting harm to the security of the United States with his disclosures. The Times covers the trial.

Parting Shot: China’s drone program keeps stealthily inching forward. That’s the headline from Foreign Policy.

ICYMI: Yesterday, on Lawfare

Ben brought us audio from a recent Brookings event on the threat of Western fighters in Syria and Iraq, as well as the introductory text of a new paper by Brookings scholars Daniel Byman and Jeremy Shapiro on the same topic.

Wells tipped us off to a new congressional move to block transfers of Guantanamo detainees, and later shared the text of the bill.

Cody pointed us to the White House’s summary of President Obama’s new cybersecurity proposals.

Paul Rosenzweig broke down some of the legal issues surrounding the capture of a Lord’s Resistance Army commander, and linked to the Post’s in-depth coverage of the same.

Paul also mused on what the hack of Central Command’s social media accounts really means.

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.

 

Notes on the Erosion of Norms of Armed Conflict

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Wednesday, January 14, 2015 at 10:28 AM

I spent the last two days at a terrific conference in at Columbia Law School on asymmetric warfare and the laws of armed conflict, organized by Matthew Waxman and the great Stanford international relations scholar, Steve Krasner. The conference was interesting in bringing together top-flight international relations theorists and international law experts to discuss an issue both think about—but for whom the vocabularies and methodologies of inquiry are totally different. The essential question on the table was whether the laws of armed conflict are useful in situations in which non-state groups predicate their entire strategies in conflict on the violation of those rules and how the law might adapt to incentivize greater compliance. I have adapted the following notes, which I wrote up initially for the conference participants and modified in response to participant comments, for Lawfare readers.

It seems to me that if we are seriously to examine how to define the laws of war for asymmetric conflicts between states and non-state groupings, we would do well to start with the question of why we have the problem we find ourselves addressing in the first place. Why is it that we are now, rather suddenly in the broad scheme of things, concerned with the relative powerlessness of major state militaries to confront relatively small groups of people from targeting civilians and shielding themselves among other civilians? Surely this problem is not some creature of new technology or globalization—as Al Qaeda, by contrast, just as surely is. The technologies used by Hamas and Hezbollah and the Taliban are mostly pretty primitive, after all. People have been capable of rocketing civilians for a long time, and strapping bombs onto one’s body is hardly—pardon the pun—rocket science.

Nor is the modern era the first time that states have faced insurgencies. There’s rather a long tradition of insurgent groups’, of one sort or another, impolitely refusing to fight according to rules that powerful, established armies have defined and insisted were civilized—yet just happened grossly to favor the interests of those very states and parties.

So we should start with the question why we are talking about this issue now. Why is it that we are suddenly anxious that a body of law that has never commanded universal acceptance and compliance and has always offered certain advantage to those who flout it today does not today command universal acceptance and offers certain advantages to those who flout it? The answer to this question, in my view at least, should condition the answer of what to do about the problem of asymmetries in respect for and compliance with the law of armed conflict. Read more »

What to Do About Ongwen?

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Wednesday, January 14, 2015 at 9:00 AM

The Washington Post has a fascinating article today about the legal issues arising from the surrender of one of the the notorious brutal leaders of the Lords Resistance Army, Dominic Ongwen.  Apparently he surrendered to Muslim rebels in the Central African Republic who, in turn, transferred custody of Ongwen to American forces on January 5.  He has been in our custody every since.  The question is what to do with him.  Our troops were there as advisors to the African Union who were searching for Joseph Kony, the leader of the LRA, but now they have involuntarily been thurst into an operational role.

Since there are no US charges against Ongwen, continued detention seems unlikely.  He will be transferred to someone else — but who?  Do we directly transfer him to the International Criminal Court (where he is facing charges, but whose treaty of creation we have never acceded to)?  Do we give him to the Ugandan authorities who may, or may not, want to try him for crimes against their citizens (he is alleged to have participated in genocide in Uganda)?  Do we give him to the  authorities in the Central African Republic (which is now riven by conflict itself and, effectively, cannot deal with his capture)?  Do we (as it appears we plan to) turn Ongwen over to the soldiers of the African Union whom we are there to support, knowing that they, in turn, will render Ongwen to the ICC?  And, as a bonus question — since the US offered a $5 million reward for Ongwen, do we now give that bounty money to the Muslim rebels, to whom we are generally opposed and whom we have previously condemned?  (Our own John Bellinger earlier addressed the United States’ issuance of a reward for Joseph Kony’s transfer to the ICC, here.)

I have no idea what the right legal answer is, nor what the right policy answer is.  As I said, fascinating ….

The CENTCOM Twitter Hack

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Tuesday, January 13, 2015 at 5:33 PM

By now, most readers of this blog are well aware that, for a brief period of time yesterday, ISIS cyber warriors (going under the hashtag #CyberCaliphate) took control of the CENTCOM Twitter and You-Tube accounts.  Twitter and You-Tube are, of course, public facing PR sites, not operational ones, but still, the image is jarring.

CENTCOM-hacked-3So, what are we to think of this?  Is it a “major problem” or is it reflective of nothing more than a minor prank?  Should we be concerned or not?  Herewith a few thoughts:

First, and foremost, this demonstrates a truism of the cyber-realm — there is no place that is absolutely safe.  We can do a great deal in risk reduction but no silver bullet exists to eliminate risk.  All systems are vulnerable.

Second, it is unsurprising that the Twitter and You-Tube accounts were vulnerable.  If I had to guess, I would speculate that the both of the accounts were “open” accounts — ones that CENTCOM was hoping that many of its public relations staff would post to.  As such, I am going to guess that the password protection on the sites was relatively weak — and therefore pretty easy to crack.

At least, I’m hoping that is how ISIS got in.  Because if they compromised the web sites through a phishing attack against a CENTCOM IT administrator, then the possibility of greater compromise exists.    For if they were able to access the Twitter account through an IT administrator, then, of course, the other systems that administrator manages are also potentially vulnerable.

Third, on the merits this hack is meaningless.  Attacking a public-facing account that has no operational significance is … well,

xkcd cia

not terribly significant.  One of my favorite exposition on the subject is a cartoon from XKCD (which if you have not found it, is the perfect source for geek cyber humor!).  Here is how they would view this “assault.

On the other hand (there is always an “other hand” in cyber) my (our?) understanding of the minor nature of the intrusion is not reflective of how the world will look at it.  Many who are not tech-savvy will not understand that this intrusion was insignificant.  To them it will look like “ISIS beat CENTCOM” and that is a narrative that ISIS will gladly advance.  So even though the substantive problem is minor, I would assess this as a reasonably significant success for ISIS as an Information Operation.

Finally, this does raise the question of whether and to what extent the Federal government is effective at cyber defense.  To be sure, as I said, the Twitter accounts are not high-value targets.  But it is nonetheless somewhat concerning that the accounts were so readily penetrated.  I am always reminded of Federal vulnerability when I hear officials of the government assert that “all will be well” if only the Feds took a greater role in cybersecurity.  I continue to be skeptical that the Federal government is any better (or worse!) than the private sector.

President Obama’s New Cybersecurity Legislative Proposal

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Tuesday, January 13, 2015 at 3:51 PM

The White House has released an overview of the proposal previewed in today’s Washington Post which you can read here or below:

Since the start of his Administration, when he issued the Cyberspace Policy Review — the first top-to-bottom, Administration-wide review of cybersecurity — President Obama has led efforts to better prepare our government, our economy, and our nation as a whole for the growing cyber threats we face.

That’s why in 2011 he issued his Cybersecurity Legislative Proposal, calling on Congress to take urgent action to give the private sector and government the tools they need to combat cyber threats at home and abroad.  It’s why he issued the International Strategy for Cyberspace to make clear to nations abroad the foreign policy priority cybersecurity issues have become.  And when Congress failed to pass comprehensive cybersecurity legislation, the Administration pressed forward, issuing an Executive Order to protect critical infrastructure by establishing baseline cybersecurity standards that we developed collaboratively with industry.

Today, at a time when public and private networks are facing an unprecedented threat from rogue hackers as well as organized crime and even state actors, the President is unveiling the next steps in his plan to defend the nation’s systems.  These include a new legislative proposal, building on important work in Congress, to solve the challenges of information sharing that can cripple response to a cyberattack.  They also include revisions to those provisions of our 2011 legislative proposal on which Congress has yet to take action, and along with them, the President is extending an invitation to work in a bipartisan, bicameral manner to advance this urgent priority for the American people.

Specifically, today’s announcements include: Read more »

Text of Senator Ayotte’s GTMO Transfers Bill

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Tuesday, January 13, 2015 at 2:20 PM

As promised, here it is.

The rather unfortunate-seeming proposal provides, in full:

114TH CONGRESS 1ST SESSION S.__

To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes.

IN THE SENATE OF THE UNITED STATES

Ms. AYOTTE (for herself, Mr. GRAHAM, Mr. BURR, and Mr. MCCAIN) introduced the following bill; which was read twice and referred to the Committee on l______

A BILL

To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. PROHIBITION ON USE OF FUNDS TO CONSTRUCT OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

(a) PROHIBITION.—No amounts appropriated or otherwise available for any department or agency of the United States Government may be used, during the period beginning on the date of the enactment of this Act and ending on the date that is two years after the date of the enactment of this Act, to construct or modify any facility in the United States, its territories, or possessions to house an individual detained at Guantanamo for the purpose of detention or imprisonment in the custody or control of the United States Government unless authorized by Congress.

(b) EXCEPTION.—The prohibition in subsection (a) shall not apply to any modification of facilities at United States Naval Station, Guantanamo Bay, Cuba.

(c) INDIVIDUAL DETAINED AT GUANTANAMO DEFINED.—In this section, the term ‘‘individual detained at Guantanamo’’ means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—

(1) is not a citizen of the United States or a member of the Armed Forces of the United States;
and

(2) is—

(A) in the custody or under the control of the Department of Defense; or

(B) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

(d) REPEAL OF SUPERSEDED PROHIBITION.—Section 1033 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 127 Stat. 850), as amended by section 1032 of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act  for Fiscal Year 2015 (Public Law 113–291), is repealed.

Read more »

Today’s Headlines and Commentary

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Tuesday, January 13, 2015 at 1:15 PM

While French police continue to search for accomplices in the Charlie Hebdo shooting, the Guardian describes the details emerging about the gunmen and their associates. The plot has thickened, especially in its meaning for the future of counterterrorism. Video has surfaced of Amedy Coulibaly, the gunman who attacked the Kosher grocery, declaring his allegiance to the Islamic State, while Cherif and Said Kouachi, the two men who attacked Charlie Hebdo, reportedly claimed to be agents of al Qaeda in the Arabian Peninsula. As frequent readers will know, that’s an odd mix, considering al Qaeda and the Islamic State do not share leadership structures and have been in open conflict recently.

The New York Times may have the answer, with Jim Yardley explaining how jihadism was born in a Paris park and then later fueled in a prison just south of Paris. Both Coulibaly and Cherif Kouachi were jailed at the same time and together fell under the influence of Djamel Beghal, a charismatic radical jihadist who had been imprisoned after plotting to blow up the American embassy in Paris.

The tangled web of connections and allegiances left behind by these gunmen, a piece at War on the Rocks argues, points to the convergence of various terrorist groups into a “broad based jihad via a loose social movement” wherein attacks come in three phases: “directed,” “networked,” and “inspired.” In the New York Review of Books, Ahmed Rashid argues that it is time to wake up to the new al Qaeda—one that is much more dangerous to the West than the Islamic State.

Foreign Policy has more on the investigation, including video of Coulibaly’s partner arriving in Turkey with another French citizen, Mehdi Sabry Belhoucine. The two have since entered Syria and members of ISIS are now claiming they are in Islamic State territory. Back in France, authorities are concerned that as many as six members of the terror cell responsible for the attacks could still be on the loose.

In Britain, Prime Minister David Cameron has promised a new anti-terror law aimed at preventing domestic terror attacks. The law would allow British intelligence agencies to crack encrypted communications, the Guardian tells us, and has already drawn criticism from Deputy Prime Minister Nick Clegg. The AP shares an analysis of responses to the extremist threat by the governments of Australia, Europe, Canada and the US. The Times details the long-term struggles of the West in keeping its citizens from joining conflicts in Muslim countries.

Across the pond, Senator Bob Corker (R-TN) has predicted more Paris-type attacks in the future, according to Defense News. USA Today reports that the Department of Homeland Security has increased security at federal buildings and airports, though DHS Secretary Jeh Johnson described the measures as merely “precautionary.”

In response to negative coverage of President Barack Obama’s notable absence from Sunday’s 2 million person march in Paris, White House Press Secretary Josh Earnest admitted that the administration should have sent a higher-ranking official, McClatchy notes. The Times weighs the possible effect of the Paris attacks on the trial of Boston bomber Dzhokhar Tsarnaev.

The BBC covers one of the most deadly attacks by the militant group Boko Haram yet, noting that local officials claim as many as 2,000, a number supported by Amnesty International, people were massacred in the town of Baga last week. However, the Nigerian government estimates the insurgent group’s siege killed just 150 people. International aid groups have frequently accused the Nigerian government of downplaying casualty figures, but the defense ministry said that the higher estimates were simply “speculation and conjecture.”

United States Central Command, the US military outfit tasked with executing the war against the Islamic State, admitted yesterday that its Twitter and YouTube accounts had been briefly compromised in what it called an act of “cybervandalism.”  But it maintained that no operational networks were breached. Hackers briefly posted images and tweets showing support for ISIS, but the Daily Beast muses that although the hackers claimed membership in the Islamic State, their online activity suggests otherwise.

An unidentified suicide bomber blew up his vehicle north of Baghdad yesterday, the Associated Press reports. The attacks killed 12 Shiite militiamen and Iraqi soldiers, and set off clashes between ISIS militants and Iraqi security forces. Across the Libyan province of Tripoli, the New York Times shares, militants claiming to be aligned with ISIS took 21 Egyptian Christians hostage. The move now extends ISIS’s activity into all three Libyan provinces.

ISIS appears to be making inroads in Afghanistan as well. The AP reveals the first confirmation by Afghan officials that ISIS is now operating in southern Afghanistan, and the BBC tells us that the group’s activities include recruitment and, at times, battling the Taliban. Mullah Abdul Rauf, a former senior Taliban commander who spent six years in Guantanamo Bay prison, is said to lead the operations in the area for ISIS. Taliban commanders have issued warnings that people should stay away from him. But Afghan government officials also claim that the group has little chance of gaining real traction within the Afghan population.

Even so, the Long War Journal brings us a breakdown of a new seventeen-minute video in which a series of former Pakistani Taliban commanders swear allegiance to the Islamic State. The video was released by “Khorasan Media” group and  introduces Hafez Saeed Khan as the emir of the “Khorasan Shura.”

Also on Monday, the Afghanistan Analysts Network presented a full review of the new Afghan cabinet now awaiting approval by parliament. The proposed 25-member cabinet lacks heavyweights and is fairly inexperienced, and does not include any previous ministers or currently serving members of parliament.

It seems like we’re saying this almost every day now: Oil prices have hit a new six-year low, with Brent and West Texas Intermediate crude closing at $46 per barrel. The Times carries the story, which could be very bad news for the Islamic State. Writing for West Point’s Combating Terrorism Center, Geoff D. Porter explains how the Islamic State, which “unwittingly became a hydrocarbon state” may be the biggest loser as oil prices plummet, suffering from the “same economic volatility that plagues other rentier states” but without the benefit of a long built cash reserve.

The Washington Post covers the various cybersecurity measures that President Obama will propose today, which, among many other measures, will include protection for companies that share cyber threat information with the government. Over at Politico, Katy Bachman argues that even though voluntary industry initiatives will be ineffective at meeting the challenge, new legislative proposals have little chance of passage in Congress.

A White House press release showed that President Obama expressed the administration’s opposition to Palestine’s membership in the International Criminal Court in a phone call with Israeli Prime Minister Benjamin Netanyahu on Monday. Specifically, President Obama maintained that Palestine does not yet constitute a state, and thus cannot accede to the Rome Treaty.

Chinese security forces shot and killed 6 men on Monday after they attacked police officers near the city of Kashgar in the country’s restive Xinjiang region, reports the Times. According to a government website, the police opened fire on one man wielding an axe while the group attempted to set off explosives. The Times notes that in recent months, more than 100 people have been killed in exchanges between Chinese security forces and ethnic Uighurs.

Rebuffing North Korea’s offer to halt its nuclear tests if the US halted joint military exercises with South Korea, the US Navy began an anti-submarine warfare drill with the South Korean navy, Stars and Stripes reports.

The US announced yesterday that Cuba has freed all 53 prisoners tapped for release as part of the agreement to renew relations with the US. Reuters identifies this as a major step in the normalization of relations between the two countries.

Maj. Gen. Michael Lehnert (Ret.) called this week for the closure of Guantanamo, noting that what was meant to be a short-term holding facility has become a fiscal, legal, strategic, and moral liability.

The White House has signalled that it will veto any Department of Homeland Security funding bill that includes provisions to block President Obama’s executive actions on immigration, Reuters informs us.

Senator Dianne Feinstein (D-CA) plans to introduce legislation that would make the interrogation techniques included in the US Army Field Manual, which is now used by the CIA, the only approved interrogation techniques for all government agencies. According to DefenseOne, the US would also be required to notify the Red Cross of new detainees and provide access to them as soon as possible. In addition, the CIA would only be allowed to hold detainees for transitory purposes.

The Military Times reports that on Monday the US House of Representatives passed the veteran suicide prevention bill, again.

After 11 years, jury selection is set to begin in a $1 billion lawsuit filed against the Palestinian Authority and the Palestine Liberation Organization by victims of terror attacks in Israel. The case will be heard in a Manhattan federal court. The AP has more.

Parting shot: The Swiss manual on guerrilla warfare that advises hiding in atomic ruins and other ways to resist a Soviet invasion.

ICYMI: Yesterday, on Lawfare

In our ongoing conversation on the proper role of of law enforcement and traditional war tactics in counterterrorism, David Kris shared his still remarkably timely 2011 article on the topic.

John Bellinger jumped in the conversation as well, posting some excerpts from his 2006 speech at the London School of Economics—which touched on similar themes.

Jane Chong explained that those who would identify Charlie Hebdo’s provocative cartoons as the proximate cause of the Paris attacks misunderstand the nature of terrorism.

Ben Wittes responded to French President Francois Hollande’s declaration of war against radical Islam by asking if this means France will stop paying ransom for hostages.

A New Bid to Restrict GTMO Transfers

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Tuesday, January 13, 2015 at 12:58 PM

The  proposal, put forth today by Senator Kelly Ayotte and others, comes as no real surprise. The Hill reports:

Republican senators unveiled a new bill Tuesday to stop President Obama from releasing more detainees from Guantanamo Bay.

“Now is not the time to be emptying Guantanamo,” said Sen. Kelly Ayotte (R-N.H.), who introduced the bill.

The president is making a renewed push to close the detention facility in Cuba, and fulfill his campaign promise. He has released 22 detainees since the midterms — more than the three previous years combined.

Ayotte’s bill would bar any detainee transfers to Yemen, suspend transfers of high and medium-risk detainees, and require the Defense secretary to provide an unclassified report on detainees who have been deemed high or medium risk at any point.

The bill also extends a bar on detainee transfers to the U.S., as well as the use of any government funds in the Defense budget — or the budget of any other agency — to construct or modify facilities to house detainees.

I’ll post the text as soon as I come across it.

Byman and Shapiro on Returning Foreign Fighters

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Tuesday, January 13, 2015 at 6:44 AM

My Brookings colleagues Daniel Byman, Lawfare‘s Foreign Policy Editor, and Jeremy Shapiro have a new paper out on a very timely subject: returning foreign fighters from Syria and Iraq. Entitled, “Be Afraid. Be A Little Afraid: The Threat of Terrorism from Western Foreign Fighters in Syria and Iraq,” it was the subject of an event yesterday at Brookings—the audio of which you can listen to here:

View more details on Brookings.edu

Here’s the executive summary:

On May 24, 2014, a man walked into the Jewish Museum in Brussels and opened fire with a pistol and an AK-47, killing four people in just seconds. This attack was more than just another incident of senseless gun violence. The alleged perpetrator, Mehdi Nemmouche, was a French citizen who had spent the last year fighting Syria. As such, this attack appears to have been the very first instance of spillover of the Syrian civil war into the European Union. For many U.S. and European intelligence officials, it seemed a harbinger. They fear that a wave of terrorism will sweep over Europe, driven by the civil war in Syria and the crisis in Iraq.

Despite these fears and the real danger that motivates them, the Syrian and Iraqi foreign fighter threat can easily be exaggerated. Fears about foreign fighters were raised concerning many conflicts, especially after the 2003 U.S. invasion of Iraq; yet for the most part, these conflicts did not produce a surge in terrorism in Europe or the United States. Indeed, in the case of Iraq in particular, returning foreign fighters proved much less of a terrorist threat than originally predicted by security services. Previous cases and the information already emerging from Syria suggest several mitigating effects that reduce—but hardly eliminate—the potential terrorist threat from foreign fighters who have gone to Syria. Mitigating factors include:

  • Many die, blowing themselves up in suicide attacks or perishing quickly in firefights with opposing forces.
  • Many never return home, but continue fighting in the conflict zone or at the next battle for jihad.
  • Many of those who go quickly become disillusioned, and even many of those who return often are not violent.
  • Others are arrested or disrupted by intelligence services. Indeed, becoming a foreign fighter—particularly with today’s heavy use of social media—makes a terrorist far more likely to come to the attention of security services. Read more »