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Kerry Outlines Administration Vision of an AUMF

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Tuesday, December 9, 2014 at 4:20 PM

From Secretary of State John Kerry’s prepared testimony before the Senate Foreign Relations Committee today:

Toward that end, we ask you now to work closely with us on a bipartisan basis to develop language that provides a clear signal of support for our ongoing military operations against ISIL. Our position on the text is pretty straightforward – the Authorization – or AUMF – should give the President the clear mandate and flexibility he needs to successfully prosecute the armed conflict against ISIL and affiliated forces; but the Authorization should also be limited and specific to the threat posed by that group and by forces associated with it.

. . .

What do we envision? Importantly – we do not think an AUMF should include a geographic limitation. We don’t anticipate conducting operations in countries other than Iraq or Syria. But to the extent that ISIL poses a threat to American interests and personnel in other countries, we would not want an AUMF to constrain our ability to use appropriate force against ISIL in those locations if necessary. In our view, it would be a mistake to advertise to ISIL that there are safe havens for them outside of Iraq and Syria.

On the issue of combat operations: I know that this is hotly debated, with passionate and persuasive arguments on both sides. The President has been clear that his policy is that U.S. military forces will not be deployed to conduct ground combat operations against ISIL. That will be the responsibility of local forces because that is what our local partners and allies want, what is best for preserving our Coalition and, most importantly, what is in the best interest of the United States.

However, while we certainly believe this is the soundest policy, and while the president has been clear he’s open to clarifications on the use of U.S. combat troops to be outlined in an AUMF, that does not mean we should pre-emptively bind the hands of the Commander-in-Chief — or our commanders in the field — in responding to scenarios and contingencies that are impossible to foresee.

Finally, with respect to duration, we can be sure that this confrontation will not be over quickly. We understand, however, the desire of many to avoid a completely open-ended authorization. I note that Chairman Menendez has suggested a three-year limitation; we support that proposal, subject to provisions for extension that we would be happy to discuss.

To sum up, Mr. Chairman and members of the Committee, I ask for your help and support in approving – on a bipartisan basis – an Authorization for Use of Military Force in connection with our campaign and that of our many partners to defeat a terrible and dangerous enemy.

Happening Now: Secretary of State John Kerry Testifies on ISIS AUMF

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Tuesday, December 9, 2014 at 3:56 PM

Secretary of State John Kerry is currently testifying in front of the Senate Foreign Relations Committee on an authorization of the use of military force against the Islamic State. You can view the testimony live here.

Secretary Kerry’s opening remarks can be found here.

Released: SSCI Detention and Interrogation Study, Along With Minority Views and the CIA’s Response

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Tuesday, December 9, 2014 at 11:19 AM

Here is the long-awaited Executive Summary of the Senate Intelligence Committee’s Study of the CIA’s Detention and Interrogation Program.  The latter includes in a single file a foreword authored by Senator Feinstein, as well as the Study’s findings and conclusions.  Additionally, the Committee also has published these materials: Senator Feinstein’s statement;  a history of key dates in in the Committee’s study; and a timeline of the CIA’s Detention and Interrogation Program.

The Minority Views of Vice Chairman Chambliss, joined by Senators Burr, Risch, Coats, Rubio, and Coburn, can be found here. Senator Jay Rockefeller filed additional views.

Views from additional members of the Senate Select Committee on Intelligence (Senators Rockefeller, Wyden, Udall, Heinrich, King,  Collins) can be found here.

The CIA’s June 2013 response to the SSCI study is here. The statement from Director Brennan on the SSCI study can be found here. The CIA has also released a fact sheet.

The Director of National Intelligence’s statement to the Intelligence Community workforce can be found here; the President’s own statement is here.

Here are responses from:

Today’s Headlines and Commentary

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Tuesday, December 9, 2014 at 11:17 AM

The US is bracing for the expected release today of the most extensive review of CIA intelligence-gathering tactics “in generations.” The report is expected to be released at around 11:15 AM, right as Senator Dianne Feinstein, the Chairperson of the Senate Intelligence Committee, is scheduled to address the body’s floor. While the full document, which totals approximately 6,000 pages and 38,000 footnotes, will not be released, the public will be provided with its 480-page executive summary, in addition to a shorter Republican counter-assessment and the CIA’s own assessment.

Reportedly included in the report are “graphic details” about sexual threats and other interrogation tactics that the CIA employed on captured militants. In advance of the report’s controversial findings, the US military has put thousands of troops “on alert” amid fear that the disclosures could precipitate a violent backlash in countries worldwide. Additionally, some Republican lawmakers, citing “domestic and foreign intelligence reports,” have warned that a detailed account of the agency’s interrogation methods under George W. Bush’s administration could cause attacks against US military and diplomatic installations and possibly the death of Americans. While the White House has been outwardly supportive of the disclosures, US Secretary of State John Kerry did call Senator Feinstein last Friday and asked her to consider the timing of release.

Foreign Policy reports that in response to the report, former spies at the CIA have launched a website to rebut the report: CIAsavedlives.com. In a more official reaction to the alleged abuses, the secretive agency said that it “policed” its interrogators and referred over 20 cases of wrongdoing. Additionally, with regards to spies who worry that the new report will paint “targets” on their backs, the CIA is offering new security checks meant to help ensure their personal safety.

Time is out with a how-to guide for reading the report. It suggests readers focus on the facts, not the mutual recriminations, and look for answers to these questions: 1) what was done; 2) was it worth it; and 3) who screwed up?

In addition to our own commentary guide, Lawfare has also provided an outline of what readers can expect from our analysis of the document.

If you are looking for early commentary on the report, here is a list:

In other news, the Washington Post reports that outgoing US Secretary of Defense Chuck Hagel is in Baghdad today. According to the article, Iraq’s prime minister, Haider al-Abadi, told him that despite an increase in US support, Iraq needed additional help to defeat ISIS.

Relatedly, the New York Times writes that US allies in the campaign against ISIS have agreed to send an additional 1,500 troops to join US forces that are advising and training Iraqi and Kurdish troops.

DefenseOne divulges that the fight against ISIS is creating three separate armies in Iraq: the Iraqi army, the Kurdish peshmerga and the Shiite militias.

The New York Times reports that despite US warnings, Iraqi governmental and military officials are pushing for a winter offensive on Mosul, Iraq’s second city. ISIS occupied the metropolis in June of this year.

Alarmed over increasing instability in the region, the Gulf Cooperation Council is expected to soon inaugurate a new joint military command among its members, writes NPR. The “NATO-inspired force” will be established this week at a GCC summit Doha, Qatar, and will have its base in Riyadh, the capital of Saudi Arabia.

In a video on Monday, Nasr bin Ali al Ansi, an al Qaeda military strategist based in Yemen, came out publicly against the practice of beheading. His announcement, according to the New York Times, makes “clear” that the organization was more pragmatic and less extreme than ISIS, its rival in Syria and Iraq.

Politico writes that President Obama’s war against ISIS, and the continuing “lack” of explicit congressional authorization of it, will come to a head this week when Secretary of State John Kerry testifies before the Senate Foreign Relations Committee.

In response to reported airstrikes by Israel on targets inside of Syria, Damascus asked the UN Security Council yesterday to impose sanctions on its southern neighbor. Reuters has more.

In an interview on Monday, Lt. Gen. Joseph Anderson, the last American general to lead combat operations in Afghanistan, offered a “nuanced take” on the final year of America’s longest war. The New York Times provides more on the general’s comments.

The Washington Post reports that the Taliban is indoctrinating kids with jihadist textbooks that are–get this—paid for by the United States.

Also, Israel officially dissolved its Parliament after a raucous series of debates. The date for next year’s early elections is set for March 17th.

Nearly a year after President Obama pledged to end the NSA’s bulk collection of telephony metadata “in its current state,” the Foreign Intelligence Surveillance Court approved a 90-day extension of the program. The National Journal has more.

The Washington Post reports that yesterday, the Ninth Circuit held oral arguments in Smith v. Obama, which is the Fourth Amendment challenge to the telephony metadata program.

According to Politico, the Senate passed the FOIA Improvement Act, which was a “broadly supported bill” that aimed to reform the Freedom of Information Act by creating a “presumption of openness” among government agencies. The bill was sent to the House, which approved similar legislation earlier this year.

The six former Guantanamo inmates that were transferred to Uruguay began their new lives yesterday as “free men.” The Wall Street Journal has more on the former detainees’ first steps into Uruguayan life. Including the recent release, more than 600 former Guantanamo detainees have ended up in over 53 different countries. Time takes a look at where those freed inmates are now.

Finally, President Obama unveiled new curbs on racial profiling in the United States. The Guardian has more.

ICYMI: Yesterday, on Lawfare

Tara Hofbauer alerted us to newly declassified documents demonstrating that the government filed an application with FISC to extend the NSA’s telephony metadata collection program by 90 days.

Wells Bennett linked us to video of yesterday’s oral argument in Smith v. Obama, a challenge to the NSA’s call records program.

Matt Waxman commented on a recent silver lining for GITMO policy.

Finally, Bruce Schneier shared his thoughts on new reports of operations AURORAGOLD and NSA hacking of cell phone networks.

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.

Senator Feinstein to Speak on the Senate Floor Regarding the SSCI Report and Torture

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Tuesday, December 9, 2014 at 11:01 AM

We expect the Senate Intelligence Committee Chairman to address the chamber, and to discuss her Committee’s long-anticipated study, sometime between 11 and 11:15.

A link to C-SPAN’s coverage is here;  the Washington Post’s live feed is below.  We will publish Senator Feinstein’s remarks, if and when we see them in print.

Update: we have removed the live feed of Senator Feinstein’s speech, which concluded this morning. A copy of her speech is below.  Read more »

The Forthcoming SSCI Report: Preemptive Commentary and What to Expect on Lawfare

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Tuesday, December 9, 2014 at 8:26 AM

The Senate Intelligence Committee report on the CIA’s interrogation program is expected out today, but unsurprisingly, many people aren’t bothering to wait for it, the minority views, or the CIA’s response before commenting breathlessly on it. After all, actually reading it will be time consuming. Between all three documents, it’s many hundreds of pages. And since most people know what they think anyway, there’s really no reason to bother.

So to the outrage of many of his civil libertarian fellows, ACLU chief Anthony Romero is already calling for a pardon for the major Bushies. Cable television is full of people mouthing off about whether release of the report will cause violence overseas. And the moment the report comes out, an even greater tsunami of confident commentary is going to crash over the nation’s capital. Count me out.

The release of these three documents is not the way I would want a more authoritative history of the RDI program to emerge. It’s partisan—either because (as the CIA and many Republicans believe) Democrats were bent on a hit job or because (as many Democrats believe) Republicans blanched at telling the truth about what happened at the agency and in its relations with Congress over the program. A great deal of the report is apparently contested by the agency. So don’t expect the report to put to rest the controversy that has raged for 13 years over interrogation of high value terrorist suspects.

Still, these documents present an admittedly imperfect opportunity to learn a great deal about what is really contested about this program, about the degree of congressional buy-in to it, about its brutality, and about what the agency learned through the use of these interrogation methods. It will not settle the matter, to be sure, but it presents a real chance to narrow—or at least isolate–the field of actual dispute. And for, at least, it thus presents an opportunity to shape in my own mind which side has the better of the argument.

I intend to use that opportunity. So it might a while before I have much to say on the merits on the report or the responses to it. And I’m going to do my best in the meantime to ignore all of the commentary and focus on the documents themselves.

Suspecting that many Lawfare readers might feel similarly, here is how we are going to handle the material: We will post the documents as soon as they become public, along with various press releases and other statements from relevant actors. We will then summarize the material as we read, trying as best we can to isolate the areas of dispute between the various documents. And for those readers who are on Twitter, the @lawfareblog account will be tweeting particularly interesting findings and nuggets along the way in all three documents. And of course, Lawfare contributors will comment as they see fit on whatever aspects of the matter move them to speak. But it may be a little while. These documents are big, and they’re worth actually reading.

Lawfare Buys a Bitcoin — Introduction

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Tuesday, December 9, 2014 at 8:04 AM

Lawfare has decided to buy a bitcoin. We do this not as an investment but as an experiment in journalism. Buying a bitcoin will let us explore the mechanics of how the market works and also give us a fun platform to look at some of the legal and policy issues surrounding crypto-currency. This introductory article is the first in a series on the subject that will, we hope, serve as an enjoyable exploration of a novel technology. Herewith, as a way of getting started, we present a short, introductory primer on bitcoins ….

Bitcoin (often abbreviated BTC or XBT) is a digital, decentralized, partially anonymous currency/commodity/security that is not backed by any government or other legal entity. It was invented (or perhaps created is a better way of describing it) by a pseudonymous mathematician Satoshi Nakamoto, who described it in a 2008 paper as a peer-to-peer, electronic cash system. One of the fun mysteries about Bitcoin is that nobody knows who Nakamoto really is (he may even be a she or a group of individuals operating under as single name). He says he is Japanese, but his writing style suggests he learned his English in Britain rather than the United States.   Attempts to identify him by newspapers and magazines have, thus far, failed utterly. Read more »

DNI: FISC Reauthorizes Telephony Metadata Collection for 90 Days

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Monday, December 8, 2014 at 9:19 PM

Today, Director of National Intelligence (DNI) James R. Clapper declassified the fact that the government filed an application with the Foreign Intelligence Surveillance Court (FISC) to extend the National Security Agency’s telephony metadata collection program by ninety days. The FISC signed off on the request.

In March, President Obama had announced his intention to secure legislation that would reform the telephony metadata program, among other things by keeping the metadata in the possession of telephone companies. As such a bill has not yet passed (the Senate recently rejected legislation proposed by Senator Patrick Leahy), the government applied for a ninety-day extension of its current collection activities. On Thursday, the FISC approved such an extension—which will expire on February 27, 2015, and which will give the administration further time to advocate for changes to the statute that, in its view, authorizes it to collect telephony metadata in bulk.  (That authority itself will sunset next May.)

The DNI is currently declassifying the FISC’s order and will release it shortly.

NSA Hacking of Cell Phone Networks

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Monday, December 8, 2014 at 3:01 PM

The Intercept has published an article—based on the Snowden documents—about AURORAGOLD, an NSA surveillance operation against cell phone network operators and standards bodies worldwide. This is not a typical NSA surveillance operation where agents identify the bad guys and spy on them. This is an operation where the NSA spies on people designing and building a general communications infrastructure, looking for weaknesses and vulnerabilities that will allow it to spy on the bad guys at some later date.

In that way, AURORAGOLD is similar to the NSA’s program to hack sysadmins around the world, just in case that access will be useful at some later date; and to the GCHQ’s hacking of the Belgian phone company Belgacom. In both cases, the NSA/GCHQ is finding general vulnerabilities in systems that are protecting many innocent people, and exploiting them instead of fixing them.

It is unclear from the documents exactly what cell phone vulnerabilities the NSA is exploiting. Remember that cell phone calls go through the regular phone network, and are as vulnerable there as non-cell calls. (GSM encryption only protects calls from the handset to the tower, not within the phone operators’ networks.) For the NSA to target cell phone networks particularly rather than phone networks in general means that it is interested in information specific to the cell phone network: location is the most obvious. We already know that the NSA can eavesdrop on most of the world’s cell phone networks, and that it tracks location data. Read more »

Today’s Headlines and Commentary

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Monday, December 8, 2014 at 2:45 PM

If recent news reports and inflamed Twitter activity are to be believed, the long-awaited Senate report on the CIA’s enhanced interrogation program is “expected to be released Tuesday.” Already, former President George W. Bush’s team is pushing back on the report’s findings. The New York Times reports that former intelligence officials have privately pressured Bush administration officials, assuring them that they were not misled about the nature, extent, or results of the program, in an attempt to secure allies after the report’s release. On Sunday, President Bush told CNN’s Candy Crowley, “these are patriots and whatever the report says, if it diminishes their contributions to our country, it is way off base.”

In the Daily Beast, Shane Harris and Tim Mak write that the CIA is likely to offer a muted response to the report, refusing to stand up for the program or to disavow it.

On Saturday, Secretary of State John Kerry asked the Senate Intelligence Committee Chair, Senator Dianne Feinstein (D-CA) to “consider” the timing of the report’s release and its potential impact on the safety of Americans being held hostage around the world. State Department Spokeswoman Marie Harf told reporters that the Secretary had “directed all of our posts overseas to review their security posture in light of…a release of this report.”  The Guardian has more on Secretary Kerry’s comments.

When the report is released, Lawfare will host extensive coverage of the contents and debate. Stay tuned here.

Saddening news from Yemen today, as Reuters reports that thirteen people were killed, including U.S. hostage Luke Somers, in a failed rescue attempt. A second western hostage, a South African teacher named Pierre Korkie, was also killed. As U.S. special forces battled al Qaeda militants, another kidnapper in a different building shot the two hostages. The Wall Street Journal has more details of the operation, including how and why it may have failed. After the raid, U.S. officials at the Pentagon have suggested that there will not be a policy review for the use of special forces to rescue hostages.  

In a visit to Turkey this week, EU’s foreign policy chief, Federica Mogherini, will pressure Ankara to “participate fully” in the fight against ISIS in Syria. The BBC reports that Mogherini will also urge Turkey to stem the stream of foreign terrorist fighters across its borders.

Read more »

Smith v. Obama Oral Argument

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Monday, December 8, 2014 at 11:57 AM

The United States Court of Appeals for the Ninth Circuit has live-streaming video of this morning’s oral argument, in a challenge to the NSA’s call records program.

The live stream will get underway at 9:00 a.m. PST.  [Update: Smith is but one of six cases set before argument today before Circuit Judges Michael Hawkins, Margaret McKeown and Richard Tallman , but apparently isn’t the first.]

There Is a Recent Silver Lining for Gitmo Policy – But It’s Not What People Have Been Talking About

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Monday, December 8, 2014 at 7:06 AM

The new National Defense Authorization Act (NDAA) is likely to extend the ban on any transfers of Guantanamo detainees into the United States but ease restrictions on transfers to other countries. Some commentators are hailing this as a decent compromise, containing some silver lining for the White House’s proclaimed policy of closing Guantanamo (see here and here), especially in light of new momentum on transfers – momentum this weekend symbolized by the long-anticipated transfer of a half-dozen detainees to Uruguay. The White House itself will probably shrug and portray this new set of NDAA provisions as a so-so deal, too, having secured some concessions.

To call the new NDAA provisions a mildly positive step for the White House toward closing Guantanamo just reflects the dismal state of that policy and how far the goalposts of good news have moved. Congratulations: statutory law didn’t get any worse (while the President’s party still controlled a house of Congress). And congratulations: the law now allows the President to go back to the policy initiated and implemented also by the Bush Administration of transferring and releasing some detainees to third-countries or home-countries pursuant to adequate security and humane treatment assurances. Those transfers are very difficult to negotiate internally and diplomatically, and the President has appointed strong State and Defense Department envoys to work them.

But even if Guantanamo numbers are declining, statutory restrictions still legally bar the President from attaining his goal, since there is no plausible pathway to closing Guantanamo that won’t involve bringing some detainees into the United States. In that respect, although a reduced population may make some issues more manageable, and could set up a future political push to reverse the ban if the President decides on a plan for closing Guantanamo and decides finally to spend significant political capital on it, the President is still legally farther from his policy goal than when he started.

If there is a silver lining for the President’s desire to close Guantanamo, it’s not found in the new NDAA. Ironically, it’s that the Senate takeover puts John McCain at the helm of the Senate Armed Services Committee.

President Obama’s Guantanamo policy has never recovered from his administration’s initial decision to announce Guantanamo closure unilaterally through executive order, with no plan to get congressional backing (remember, it was his Democratic allies in Congress, not just Republicans, who abandoned him on that). For all his talk of working with Congress on this problem, he has never showed a serious willingness to jointly develop a plan – one that would necessarily involve some tough concessions by both sides. But McCain had declared during his presidential campaign that he supports closing Guantanamo, and he has reportedly signaled since then that he was open to working with the Obama administration on Guantanamo (though he has also reportedly requested but never received a detailed plan from the White House). Politically, McCain could prove to be a more valuable partner in this than Carl Levin – if Obama (or his successor) really wants a partner.

Don’t get me wrong: I still think Guantanamo closure during the remainder of Obama’s term is exceedingly unlikely. The greater legal flexibility to transfer many Yemeni detainees back to Yemen will be offset by conditions that seem to be deteriorating there, not getting better. Possible cooperation with McCain on this issue will be offset by presidential primary politics. And there’s so much more the President could have done on this issue in the past few years if were as serious about it as his occasional rhetoric made him sound.

More likely, the White House will during the next two years define success downward, and pat itself of the back for exaggerated efforts to, perhaps something like, “put ourselves on the path to closing Guantanamo.” Indeed, if it does that, the NDAA restrictions (allowing transfers abroad but prohibiting them into the United States) are actually quite convenient: they allow him to continue the long-standing policy of reducing the population there through transfers without having to come forward with a comprehensive plan or spend the huge political capital to implement the most challenging parts.

The Week That Will Be

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Monday, December 8, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

 Monday, December 8th at 12 pm: The Carnegie Endowment for International Peace will host a conversation on the Crisis in Jerusalem. Palestinian expert Khalil Toufakji will review the changing map of the city, including Israeli policies and the implications for Palestinian life. Israeli national security expert Shlomo Brom will discuss Israeli policies surrounding holy sites in the city, as well as the broader context of Jerusalem within current Israeli politics. Michele Dunne will moderate. RSVP here.

Tuesday, December 9th at 2 pm: Join the Arms Control and Non-Proliferation Initiative at Brookings for a panel discussion considering the impact of Russia’s action on security thinking in Ukraine and on the credibility of future security assurances in the global non-proliferation effort in light of Russia’s violations of the 1994 Budapest Memorandum. Robert Einhorn and Steven Pifer will be joined by Oleksandr Zaytsev. Register here.

Wednesday, December 10th at 10 am: The House Foreign Affairs Committee will hold a hear on Countering ISIS: Are We Making Progress? Brett McGurk, Deputy Special Presidential Envoy for the Global Coalition to Counter ISIL will provide testimony. More information in the Committee’s announcement.

Wednesday, December 10th at 10 am: The American Enterprise Institute will examine Government Surveillance: How Legal Intercept’s Tangled Web Impacts Trade, Economic Growth, and Civil Liberties. During this event, Theodore Moran of Georgetown University will lay the foundation for a robust and principled legal intercept framework by analyzing existing surveillance programs and discussing the challenges that lie ahead. A diverse panel with expertise in international trade, diplomacy, and national security will then discuss. For a full list of speaker biographies or to view the webcast, visit the AEI announcement

Thursday, December 11th at 10 am: The Woodrow Wilson Center will host General John Allen, Special Presidential Envoy for the Global Coalition to Counter ISIL, for his first public discussion of the threat posed by the Islamic State entitled Can We Ultimately Defeat ISIL? Jane Harman will introduce General Allen and moderate the conversation. RSVP here.

Friday, December 12th at 9 am: The Cato Institute will host its inaugural Surveillance Conference – an all day event exploring the critical and sweeping questions presented by government surveillance and the new sophisticated tracking technologies that are now in the hands of America’s spies and local law enforcement. Six panels will see a diverse array of experts: top journalists and privacy advocates; lawyers and technologists; intelligence officials; and those who have been the targets of surveillance. For a full list of panelists, RSVP information, or to watch the live webcast, see the Cato website.

Friday, December 12th at 12:15 pm: The New American Foundation will hold a panel discussion with six contributors to a new book entitled Drone Wars. Panelists will discuss the history, the future, and the policy, legal, and ethical implications of an era of drone warfare. For a full list of panelists or to RSVP, see the New American Foundation’s event announcement.

 

Employment Announcements (More details on the Job Board)

Senior Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence

SALARY RANGE: $124,995 – $157,100
OPEN PERIOD: 11/26/14 – 11/26/15
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

This position advertises at a GS-15. ODNI uses a rank-in-person system in which rank is attached to the individual. Lower graded employees may apply, but if selected would accept the position as a lateral reassignment at their current grade.

The Office of General Counsel (OGC) of the Office of the Director of National Intelligence (ODNI) provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law, procurement and acquisition law, personnel law, government ethics, budget and fiscal law, general administrative law, legislative support, government information practices (Freedom of Information Act/Privacy Act), and intellectual property law.

DUTIES: 

Lead attorneys in providing expert legal advice and guidance to senior Office of the Director of National Intelligence (ODNI) leadership on complex areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.

Lead attorneys in providing expert legal counsel to support the development, review, and preparation of United States (US) Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.

Oversee attorneys in counseling clients, including senior ODNI leaders, on complex legal issues and provide innovative and highly effective guidance on possible courses of action; expertly prepare complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.

Lead, oversee, and direct attorneys in conducting legal research and analysis on extremely complex or sensitive legal issues as well as on laws, regulations, and policies that have a significant impact on ODNI and IC interests and brief ODNI leadership on issues and findings.

Direct and oversee attorneys in providing timely reviews of planned ODNI and IC activities for compliance with the Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief ODNI leaders on potential legal and policy issues, and develop solutions to address difficult legal problems having potential high-level or large-scale impact on the ODNI’s or the IC missions or activities.

Lead and oversee attorneys in the analysis of statutes, bills, reports and Congressional materials, as well as proposed Executive Branch orders, directives, regulations and policies, to determine their effect on the ODNI and the IC; provide expert advice and counsel to senior management on legislative proposals, Congressional testimony, and related documents.

Oversee and direct attorneys in the preparation and presentation of briefings that advocate for ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; cogently brief senior ODNI leaders on legal issues that relate to or effect ODNI and IC activities.

Maintain productive working relationships with ODNI elements, IC colleagues, executive agencies, congressional personnel and members, congressional committees, and use these relationships to advocate ODNI and IC positions, support a continuing dialog, and provide insight into ongoing and planned ODNI and IC activities.

Lead a team of professional staff and assess performance, collaborate and oversee goal setting, and provide feedback on personal development.

How to Apply: 

For additional information, including a description of benefit packages, or to apply, please visit the full ODNI vacancy announcement. 

 

Associated General Counsel

ORGANIZATION: Office of the Director of National

OPEN PERIOD: 12/04/14 – 12/04/15
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

This position advertises as a GS-13. ODNI uses a rank-in-person system in which rank is attached to the individual. Lower graded employees may apply, but if selected would accept the position as a lateral reassignment at their current grade.

The Office of General Counsel (OGC) of the Office of the Director of National Intelligence (ODNI) provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law, procurement and acquisition law, personnel law, government ethics, budget and fiscal law, general administrative law, legislative support, government information practices (Freedom of Information Act/Privacy Act), and intellectual property law.

DUTIES:

Provide preliminary legal advice to Office of the Director of National Intelligence (ODNI) leadership on areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.

Provide recommendations to senior attorneys to support the development, review, and preparation of United States (US) Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.

Counsel clients, including ODNI leaders, on legal issues and provide effective guidance on possible courses of action; prepare documents on legal issues for a variety of internal and external recipients.

Conduct research and analysis on complex or sensitive legal issues as well as on laws, regulations, and policies that have an impact on ODNI and IC interests and brief senior attorneys on issues and findings.

Provide initial reviews of planned ODNI and IC activities for compliance with the US Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief senior attorneys on potential legal and policy issues, and recommend solutions to address legal problems having potential impact on the ODNI’s or the IC missions or activities.

Perform initial analyses of statutes, bills, reports and Congressional materials, as well as proposed Executive Branch orders, directives, regulations and policies, to determine their effect on the ODNI and the IC; provide advice and counsel to senior attorneys on legislative proposals, Congressional testimony, and related documents.

Develop initial briefings for senior attorneys to support ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; brief senior attorneys on legal issues that relate to or effect ODNI and IC activities.

Maintain productive working relationships with peers in ODNI elements, the IC, executive agencies, congressional personnel, congressional committees, and use these relationships to discuss ODNI and IC positions, support a continuing dialog, and provide insight into ongoing and planned ODNI and IC activities.

How to Apply: 

For more information, including benefits packages, or to apply, please visit the full opening announcement.

 

Internship, Office of General Counsel, ODNI

The Intelligence Community is committed to growing the next generation of intelligence professionals by offering current students a variety of temporary employment and scholarship opportunities. The Office of General Counsel for the Office of the Director or National Intelligence has openings for its Summer 2015 class of interns.

Who may apply: Current Law Students

Annual Salary Range: Unpaid (closes December 23, 2014)

APPLICATION PROCESS

All applicants must apply to a specific vacancy announcement. All applications must be submitted electronically. ODNI makes employment decisions based on a fair and equitable competitive hiring process where applicants’ qualifications (education, professional experience, and skill set) are reviewed and evaluated.

SECURITY CLEARANCE

The current opening requires an active Top Secret/Sentitive Comparmented Information (TS/SCI) security clearance.

FURTHER INFORMATION

Due to the volume of applications received, applicants will only be contacted if they have been selected for an interview.To verify receipt of your application package ONLY, you may call 703-275-3663.

AGENCY CONTACT INFO:

ODNI Recruitment
Phone: 703-275-3663
Email:[email protected]

 

Herbert Scoville Jr. Peace Fellow

ORGANIZATION: Herbert Scoville Jr. Peace Fellowship 
DEADLINE: January 5, 2015
STARTING DATE: Between July 15 and October 1, 2015
DURATION: Six to nine months
LOCATION: Washington, DC 
 
The Herbert Scoville Jr. Peace Fellowship provides full-time six to nine month fellowships for recent college and graduate school graduates to work on international peace and security issues with one of more than two dozen participating public-interest organizations in Washington, DC. Scoville Fellows have the opportunity to work with senior-level staff and to conduct research, write articles and reports, organize talks and conferences sponsored by their host organization, and do public education and advocacy on a range of issues including arms control and nonproliferation, conventional arms trade, environmental and energy security, defense budget, and peacekeeping. They may also attend coalition meetings, Congressional hearings, and policy briefings, as well as meetings with policy experts arranged by the program. Scoville Fellows are paid at an annual rate of $33,600 ($2,800 per month), and receive health insurance and travel costs to DC to begin the fellowship. The next application deadline is January 5, 2015 for the fall 2015 fellowship. For complete information see www.scoville.org.
 
Candidates must have an excellent academic record and a strong interest in issues of peace and security. Graduate study, a college major, course work, or substantial independent reading that reflects the substantive focus of the fellowship is also a plus. Prior experience with public-interest activism or advocacy is highly desirable. It is preferred, but not required, that such activities be focused on peace and security issues. Candidates are required to have completed a baccalaureate degree by the time the fellowship commences. The program is open to all U.S. citizens and to non-U.S. citizens living in the U.S. eligible for employment. Non-U.S. citizens living outside the United States are not eligible to apply. Preference will be given to individuals who have not had substantial prior public-interest or government experience in the Washington, DC area.

 

Deputy Chief, Counterespionage Section

ORGANIZATION: Department of Justice

SALARY RANGE: $124,995 – $157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

The Counterespionage Section (CES) investigates, prosecutes, and supervises the investigation and prosecution of cases affecting the national security and foreign relations of the United States, including espionage cases, cases involving the illegal export of military and strategic commodities and cases involving certain cyber-related activity. The Section has exclusive responsibility for coordinating and authorizing the prosecution of cases under criminal statutes relating to espionage, sabotage, neutrality, and atomic energy. It provides legal advice to U.S. Attorneys’ Offices and investigative agencies on all matters within its area of responsibility, which includes 90 federal statutes affecting the national security. The Section also coordinates criminal cases involving the application of the Classified Information Procedures Act and administers and enforces the Foreign Agents Registration Act and related disclosure statutes.

Job Description:

National Security Division of the Department of Justice seeks a Deputy Chief for its Counterespionage Section, focused on investigations and related matters involving cyber threats to the national security, including economic espionage and illegal export of military and strategic commodities conducted via computer hacking, as well as related matters.

Under the direction of the Chief, the Deputy Chief (Cyber) will be responsible for providing legal advice to federal prosecutors concerning the disruption of cyber threats to the national security. In these areas, the Deputy Chief will develop, implement, and coordinate sensitive Department initiatives. The Deputy Chief will:

· work with federal prosecutors and law enforcement agencies to develop effective strategies in national security investigations and prosecutions, and maximize the use of the full range of federal statutes;

· plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities;

· provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prosecutive models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;

· coordinate the formation of response teams of experienced prosecutors to assist in the investigation and prosecution of cases;

· coordinate cases and provide legal advice, guidance, and litigative support to U.S. Attorneys’ Offices involved in national security prosecutions;

· provide advice and assistance to the Chief and other senior officials in the Division and in the Department;

· serve as a liaison between NSD and the Federal Bureau of Investigation, other members of the USIC, Department of the Treasury, the Department of State, and various international officials on cyber and other national security-related issues;

· prepare testimony for Congressional Committees and subcommittees, briefing materials for Department officials, legal monographs for national security prosecutors, and comments on proposed legislation.

The Deputy Chief will establish program emphasis, develop operating policies and guidelines, communicate policies and priorities, and determine and implement internal organization practices, training, and improvements.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, Territory, or the District of Columbia, and have at least five years of post-JD professional experience. Applicants must have superior academic credentials, possess excellent analytical and writing skills, and have the dedication and capacity to work independently in a very demanding environment. Past experience in the national security or intelligence field is not required, but is preferred. Prior federal litigation experience also strongly preferred.

Applicants must be able to obtain and maintain a TS/SCI security clearance.

Salary:
GS-15: $124,995- $157,100 (per annum)
Travel:
Periodic travel will be required.
Application Process:

To apply, please submit a cover letter highlighting your relevant skills and experience, a copy of your resume with a writing sample (we encourage you to submit a legal memorandum or brief), and a current performance appraisal, if applicable, to:

U.S. Department of Justice
National Security Division
600 E Street, NW 10th Floor, Room 10340
Washington, D.C. 20530
Attn: Bronnetta Rawles

or

[email protected]

No telephone calls, please

Application Deadline:
Monday, December 8, 2014

 

ORGANIZATION: Department of Justice

SALARY RANGE: GS 14/15: $106,263 – 157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

Job Description: 

CES attorneys provide legal advice and guidance to the investigative and intelligence communities in the development of cases for prosecution, and they assist the United States Attorney’s Offices when prosecution is undertaken, ensuring, among other things, that intelligence community equities are identified and protected.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia and have at least 2.5 year of post-J.D. legal experience. Applicants should have an interest in national security matters and possess excellent writing skills. Significant experience in litigation involving, or a strong interest in, computer intrusion investigations is desirable. Applicants must be able to obtain a TS/SCI clearance.

Salary:
(GS-14): $106,263-$138,136 per annum (GS-15): $124,995-$157,100per annum.
Travel:
Occasional travel will be required.
Application Process:

To apply for this position, please submit a resume, a cover letter (highlighting relevant experience), a writing sample (not to exceed 10 pages), a current performance appraisal (if applicable) electronically to:

U.S. Department of Justice
Counterespionage Section
600 E Street, NW, Room10606
Washington, DC 20004
ATTN: Bronnetta Rawles
No telephone calls please.

Or apply by email to: [email protected]

with the subject line “Attorney Vacancy.

Application Deadline:
Monday, December 8, 2014
Relocation Expenses:
Relocation expenses are not authorized.
Number of Positions:
One or more.

 

Intern, Cyber Statecraft Initiative

ORGANIZATION: Atlantic Council

About Cyber Statecraft Initiative:

Through global engagement and thought leadership, the Atlantic Council’s Cyber Statecraft Initiative focuses on international cooperation, competition, and conflict in cyberspace.

Cyberspace is similar to many physical realms, but it truly stands apart as a unique domain. Accordingly, while some of the levers of statecraft that deal with cyberspace may be the same as in the real world; some may seem the same yet operate differently, and others may be completely novel. Cyber statecraft will be a key tool to guide policymakers through the maze of regulation in cyberspace.

Our experience is that the education and experience of most diplomats, government executives, and military officers is far more relevant than they have been led to believe. Accordingly, one of the Initiative’s main areas of emphasis is to bring together the new field of cyber statecraft with traditional national security and international relations to finally make progress on the many issues vexing the US and other governments.

Job Summary:

Our interns are an integral part of our team. With a small group, most of our projects are all-hands-on-deck and we encourage interns to actively engage with events, publications, and strategies. This position will expose the candidate to the writing process for publications and articles, logistical elements of event-planning, creating strategic initiatives within a think tank. 

Interns provide important research and logistical support to the Center. Interns work closely with the Director and Assistant Director. They are also encouraged to participate in and attend events hosted by other programs at the Atlantic Council.

The successful candidates will have a passion for the work, an entrepreneurial ethos and a collegial spirit while also being an effective communicator and enjoying the fast pace of learning and growing in an organization. Demonstrated interest in international affairs, particularly in the cyberspace field, through class work and/or experience is strongly preferred. Interns are also encouraged to pursue their own research projects and to write and publish their own policy briefs or blog posts.

The positions are unpaid, but candidates gain valuable skills, experience, knowledge, and contacts in the Washington, DC international policy community. A monthly metro reimbursement is offered, along with Interview and Resume Workshops, briefings with our Military and State Department Fellows, as well as other senior-level staff. 

Spring Internships at the Council generally begin on January 5, 2015 and are completed by the beginning of May. 

Responsibilities:

• Conduct research to support the activities of the Director and program staff.
• Manage program contacts and knowledge.
• Draft correspondence and take notes at Council roundtables and strategy sessions for program archives.
• Handle logistical issues for program events and activities. 
• Write analytical pieces for publication on the New Atlanticist blog.
• Help draft policy briefs and task force reports.

Senator Menendez’s Draft ISIL AUMF

By and
Sunday, December 7, 2014 at 9:25 PM

Last Thursday, Bloomberg View’s Josh Rogin had a piece on a draft ISIL authorization put forth by Senator Bob Menendez, the Chairman of the Senate Foreign Relations Committee. Based on Rogin’s report, it seems Menendez’s legislation was offered as an alternative to a bill authored by Senator Rand Paul. But as Rogin notes, of the pair, only Senator Paul’s bill repeals the 2001 AUMF. The Menendez proposal would not repeal or sunset, and actually barely comments upon, the 2001 AUMF and its current interpretation by the executive branch.

Senator Menendez’s bill is otherwise—with some significant differences—similar to other proposals that have been floating about for an Islamic State authorization for force. It shares with a recent proposal on Lawfare, for example, a sunset provision in three years and certain reporting requirements (though they are relatively thin). It differs in defining associated forces, against which it also authorizes force, quite narrowly and in seeking to limit the use of ground forces.

Perhaps the most important difference, however, is the treatment of the 2001 AUMF, which the proposal on Lawfare would repeal and the proposal published on Just Security would sunset. The Menendez language, by contrast, announces the demise of 2002 Iraq AUMF but has nothing to say (explicitly, anyway) about the statute enacted earlier, in response to the 9/11 attacks. That’s interesting, considering the well-demonstrated strains on 2001 AUMF, and the Obama Administration’s controversial claim that the statute furnishes legal authority to use force against ISIS in Iraq and Syria.

To be sure, the Menendez bill’s “applicability” clause does hint in the 2001 statute’s direction, in stating that the new proposal’s provisions “pertaining to the authorization of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force” (emphasis added). But it’s not at all clear what that means. Perhaps the idea is to take the 2001 AUMF off the table, with respect to ISIL operations only; maybe there’s a different, broader goal here.  It’s hard to say, given the drafters’ explicit repudiation, in neighboring language, of the 2002 AUMF.

It’s unclear why Senator Menendez’s legislation doesn’t specifically touch the 2001 AUMF.  There may be disagreement within the Foreign Relations Committee about how to handle residual counterterrorism operations that rely on the document—Guantanamo detention, for example, or ongoing operations against Al Qaeda or the Taliban. Another possibility is that Senator Menendez desires not to adjust the background law any more than is needed to give congressional sanction to a new campaign against ISIS; he may also want to hold the 2001 AUMF sunset discussion sometime later down the road.

Whatever the motivation, we expect to hear more about this and other AUMF issues during Monday afternoon’s Senate Foreign Relations Committee hearing on ISIL authorization.

The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

By
Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear the government‘s interlocutory appeal to the Court of Military Commission Review in Nashiri’s case were unconstitutionally appointed), the jurisdictional question the Court of Appeals must resolve first (whether it can even reach those merits at this stage) is potentially far more significant both to the practice before the commissions and their deeper legitimacy. Below the fold, I endeavor to explain both why the jurisdictional question is so important, and how, in my view, it should be resolved.

Read more »

The Foreign Policy Essay: Scandinavian Foreign Fighters—Trends and Lessons

By
Sunday, December 7, 2014 at 10:00 AM

Editor’s Note: Foreign fighters in Iraq and Syria are a bit of an obsession for those of us at the Foreign Policy Essay. In this contribution, we’re pleased to go deep on the problem in Scandinavia—a surprising, but important, contributor to the flow of Europeans going off to participate in jihad. Magnus Ranstorp, a well-known terrorism expert at the Swedish National Defence College, offers us an in-depth assessment of the Scandinavian problem, which exemplifies many of the challenges that Europe and the West in general face. (Please note we’ve avoided, but only with difficulty, the obvious “something is rotten” reference.)

***

In the autumn of 2013, I received a phone call from the distraught aunt of a 28-year-old Swedish man who had traveled to Syria to join the group known as the Islamic State or ISIS. Her nephew had radicalized in less than two months, a process seemingly accelerated by attending so-called garage mosques, surfing on radical ISIS-affiliated Facebook pages, and grooming activities offline by ISIS facilitators. Overnight, he suddenly left on a flight to Hatay airport in Turkey and then onwards to a safe house in Reyhanli that specializes in sheltering Swedish foreign fighters. Inside Syria, he underwent indoctrination and training in a Chechen-run ISIS camp, as he felt the Arab one was not sufficiently religiously devout. The aunt’s Kurdish relatives tracked him down inside the ISIS training camp through facilitators and lured him across the border to say a final farewell before his mission. The aunt’s relatives managed to persuade him to come back to Stockholm instead of returning to the battlefield.

But although he reluctantly accepted, his intention was ultimately to return to ISIS. Now he was determined to gather necessary financial resources for a future mission. The family was left to their own devices to cope with monitoring him around the clock so he would not go back into the fray. It turned out to be a losing battle—he left again to fight with ISIS in October 2014. Before he left he had managed to create two companies, purchasing and selling mobile phones on credit. In his wake, he left personal financial havoc.

magnus-ranstorp photo with borderHe seemed to be on a one-way mission, and there was little that his family or the Swedish authorities could do to stop him. The Swedish security service conducted so-called preventative talks where they made contact, signaled they were aware of his intention to depart for Syria and ISIS, and underscored obvious dangers and consequences. But that is as far as they could go legally. Under existing terrorism legislation it is not illegal to join a terrorist organization or train with them—only to provide instruction.

Scandinavia, like the rest of Europe, is experiencing remarkable rates of foreign fighters leaving for Syria. Often the official figures, with their strict criteria of verification, mask a higher number of foreign fighters actually on the ground. In Denmark, the official figure is over 100 foreign fighters, though the real number is likely to be 150 cases. In Norway, at least 60 foreign fighters have gone to Syria, with a high proportion of women joining ISIS to marry shaheeds (“martyrs”). In Sweden, the security service has put the official figure at 90, though they admit that the real number is at least double that. In fact, the head of the Swedish security service acknowledged that the real figure for Swedish foreign fighters were 250-300. Just in Gothenburg, Sweden’s second-largest city, over 60 foreign fighters have departed for ISIS’s ranks. Over 23 have died and—much more troubling—20 are back in Gothenburg.

All of this raises the question: what in the world is going on in Scandinavia? There are some interesting features and trends particular to Scandinavian foreign fighters that may help explain this phenomenon. Read more »

Six More Guantanamo Transfers—to Uruguay

By
Sunday, December 7, 2014 at 9:09 AM

Here’s the news from the New York Times this morning:

WASHINGTON– The United States transferred six detainees from the Guantánamo Bay prison to Uruguay this weekend, the Defense Department announced early Sunday. It was the largest single group of inmates to depart the wartime prison in Cuba since 2009, and the first detainees to be resettled in South America.

The transfer included a Syrian man who has been on a prolonged hunger strike to protest his indefinite detention without trial, and who has brought a high-profile lawsuit to challenge the military’s procedures for force-feeding him. His release may moot most of that case, although a dispute over whether videotapes of the procedure must be disclosed to the public is expected to continue.

The transfer was also notable because the deal has been publicly known since it was finalized last spring. Significantly, however, delays by Secretary of Defense Chuck Hagel in signing off on the arrangement placed it in jeopardy. Mr. Hagel’s slow pace this year in approving proposed transfers of low-level detainees contributed to larger tensions with the White House before his resignation under pressure last month.

Here’s the Pentagon press statement on the subject:

Detainee Transfer Announced

The Department of Defense announced today the transfer of Ahmed Adnan Ahjam, Ali Hussain Shaabaan, Omar Mahmoud Faraj, Abdul Bin Mohammed Abis Ourgy, Mohammed Tahanmatan, and Jihad Diyab from the detention facility at Guantanamo Bay to the Government of Uruguay.

As directed by the president’s Jan. 22, 2009, executive order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, which examined a number of factors, including security issues, these men were unanimously approved for transfer by the six departments and agencies comprising the task force.

In accordance with statutory requirements, the secretary of defense informed Congress of the United States’ intent to transfer these individuals and of his determination that this transfer meets the statutory standard.

The United States is grateful to the Government of Uruguay for its willingness to support ongoing U.S. efforts to close the Guantanamo Bay detention facility. The United States coordinated with the Government of Uruguay to ensure these transfers took place consistent with appropriate security and humane treatment measures.

Today, 136 detainees remain at Guantanamo Bay.

Lawfare Podcast, Episode #102: Israeli Politics, Oy Vey!

By
Saturday, December 6, 2014 at 2:00 PM

The Israeli government fell this week, and Prime Minister Bibi Netanyahu called new elections. Israeli politics are an endlessly fascinating Byzantine mess with significant security implications for the United States. The shape of Israeli politics, after all, conditions a lot of other U.S. interests in the region—everything from the degree of friction with key Arab allies to the prospects of a conflagration with Iran. So this week, I sat down with Natan Sachs, a fellow in the Brookings Center for Middle East Policy—which, full disclosure, is run by another person named Wittes. We talked about why Israel is heading towards new elections in March, whether those elections will strengthen or weaken Netanyahu’s hand, the prospects for a surge of support of the Israeli hard right, and what it all means for U.S. interests.

The Fortnight that Was: All of Lawfare in One (Very Long) Post

By
Saturday, December 6, 2014 at 8:59 AM

Because of the Thanksgiving holiday, Lawfare skipped our usual “The Week That Was” post last week. To make up for it, we present to you “The Fortnight That Was,” which includes posts made since late November.

About two weeks ago, CNN broke the news that Secretary of Defense Chuck Hagel was stepping down from his post “under pressure” from the White House. Here is the video of the announcement itself.

In response to widespread speculation that Secretary of Homeland Security Jeh Johnson was being considered for the position, a point that is moot now, Paul urged him to stay put. That Johnson will remain at DHS, we attribute entirely to the power of Paul’s argument.

Wells carried the news that President Obama nominated Ashton Carter to be the next Pentagon chief.

Jack analyzed Senator Paul’s proposed Declaration of War (and AUMF) against the Islamic State. He also took a look at Bruce Fein’s “revealing” defense of Senator Paul’s draft.

Ashley Deeks took a look at developing U.S.-Turkish discussions for a buffer- or no-fly zone to protect Syrian civilians.

Concerning the immigration imbroglio, Jack asserted that the important issue is not the President’s action, but rather, whether or not he has changed sub-constitutional norms and understanding.

Peter Margulies argued that President Obama’s action and the OLC’s unconvincing legal defense injured our constitutional framework.

And Ben noted that if you want to better understand the hubbub over the President’s immigration decision, the Swiss Coat of Arms might be a good place to start.

Ryan Vogel analyzed the recent decision by the ICC prosecutor to advance its examination of US detention policies in Afghanistan.

Sean Mirski examined the ongoing Rahmatullah saga.

Also, Bobby looked into President Obama’s recent decision to expand the set of circumstances in which the US military might use force in Afghanistan during 2015.

Cody noted that Senator Dianne Feinstein intends to introduce drone safety legislation in order to “protect US airline passengers and US airspace.”

Relatedly, Wells analyzed the Wall Street Journal’s analysis of the FAA’s draft rules for the commercial use of small drones.

Rachel Brand had a piece of advice for the NSA: to stop saying the agency applies the Fair Information Practice Principles.

Wells noted that Senators Leahy and Cornyn joined others in expressing concern over the CIA’s proposed e-mail destruction policy.

I linked to a live Q&A that featured the NSA’s Civil Liberties and Privacy Director, Rebecca Richards.

Carrie Cordero weighed in on the encryption and “going dark” debate.

Mieke Eoyang shared a proposal for reform of the legal authorities under which NSA collects communications content from U.S. technology companies.

Alex Ely provided a quick summary of the oral argument in In Re Directives, the FISC litigation from a few years back under the Protect America Act.

Following up on Charlie Savage’s scoop in the New York Times that the Section 215 sunset provision is not quite as a firm as people had thought, Ben remarked on the oddity of the Patriot Act’s sunset provisions and what it might mean for the USA Freedom Act debate.

Diane Webber analyzed whether or not confiscating passports is a good way to stop citizens from joining jihadists in Syria and Iraq. She later provided an update on the topic that focused on the UK’s new counter-terrorism bill.

Ben gave his take on the recent Elonis case at the Supreme Court and asserted that “threats are beyond the protection of the First Amendment because of their effects on other people.” He later added a further thought on the case based on a recent case of scary threats against a writer he knows.

For this week’s Throwback Thursday, I examined the Constitution of the People’s Republic of China and its significance for China’s legal reform drive.

Matthew Waxman shared his recent post at the Asia Maritime Transparency Initiative on China’s Air Defense Identification Zone at one year.

Paul shared the news that Chinese telecommunications giant Huawei plans to sponsor the Wi-Fi at Fedex Field for the Suite level.

I linked to a recent CNAS report that explains and contextualizes China’s cybersecurity strategy.

Paul examined the “Cyber Supply Chain Management and Transparency Act,” which aims to provide a different way of enhancing the country’s cyberdefenses.

For this week’s Steptoe Cyberlaw Podcast, Stewart Baker brought us an interview with Troels Oerting, who is the head of EC3, Europe’s new cybercrime coordination center. Last week, for the 44th Steptoe Cyberlaw Podcast, Stewart shared an interview with Sal Stolfo, Professor at Columbia University’s Computer Science Department and CEO of Allure Software.

For this week’s Foreign Policy Essay, Daniel Byman provided some thoughts on counterterrorism and “blowback.” In last week’s essay, Victor Asal, Richard Legault, Ora Szekely and Jonathan Wilkenfeld explored why some groups might choose to use both peaceful and violent tactics and why analysts should avoid lumping groups into the simple categories of “violent” or “nonviolent.”

Last week, the Lawfare Podcast went on a hiatus. However, the week before, the 101st episode featured a debate between Jameel Jaffer of the ACLU, Bob Litt of the DNI, and William Banks of Syracuse University law school over the Foreign Intelligence Surveillance Act.

Phil Walter argued that just like Congress mandates legislative oversight over spending money, it should also demand oversight over risking Americans’ lives in combat.

You might not think that labor relations are related to chemical security, but Paul explained how how the two are intimately connected.

Wells linked to the news that the White House is proposing new funds for police body cameras.

Jack ruminated on the sad collapse of the New Republic. Ben provided a further thought on the influential magazine’s “demise.”

Paul shared a not-so-subtle metaphor for Congress that he spotted while walking around Capitol Hill.

For last week’s Throwback Thursday, I amalgamated presidential thanksgiving decrees from over 250 years to make one ultimate, time-bending ode to the holiday.

Finally, Ben shared a novel method of safely deep frying a turkey.

And that was the fortnight that was.

A “Buffer Zone” Inside Syria, and Its Complications

By
Friday, December 5, 2014 at 6:34 PM

The United States and Turkey seem to be having increasingly detailed discussions about establishing a no-fly zone (or “buffer zone”) inside the northern Syrian border adjacent to Turkey. The press reports that Turkey is conditioning the U.S. use of Turkey’s Incirlik air base for armed flights on the U.S. willingness to establish such a zone. The Administration has been coy about its plans, but the topic surely is the subject of internal U.S. consideration right now.

The buffer zone idea raises both policy and legal questions. As a policy and factual matter, it is not entirely clear what proposals are on the table and what the goals of a buffer zone would be. The Post suggests that the protected buffer zone inside Syria would be up to 100 miles long and 20 miles deep into Syrian territory. (The Post article includes a map showing where the zone might be located.) According to the Times, the area could protect civilians from airstrikes by the Syrian government, but the article also suggests that the zone (which the article, somewhat confusingly, states might be inside Turkey rather than Syria) could protect Syrian rebels and civilians from attacks both by Assad’s government and by ISIS. The Post indicates that the zone would be part of an offensive to push back ISIS militants along the western part of Syria’s border with Turkey and create a safe zone for U.S.-backed Syrian rebel forces to move in. Establishing such a zone might require the United States to disable Syria’s air defense systems.

These descriptions seem to reflect at least two related but distinct goals: (1) to protect civilians against kinetic strikes by Assad and ISIS in the area covered by the zone and more generally to create a zone of security for internally displaced persons fleeing the conflict in other parts of Syria; and (2) to create a safe harbor within Syria for moderate Syrian rebels by expelling ISIS from within that zone. The actual goals and operational parameters of such a zone matter, I think, to the international and domestic legal analysis that the USG will undertake. Read more »