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John DeLong Interview on Fedscoop

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Thursday, May 22, 2014 at 4:22 PM

I’ve never heard of Fedscoop before, but it seems to have done a video interview with John DeLong, NSA’s compliance chief. Haven’t watched it yet.

John Carlin’s Speech at Brookings on “Defending Our Nation by Prosecuting State-Sponsored Cyber Theft”

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Thursday, May 22, 2014 at 2:00 PM

Watch the event with Assistant Attorney General John Carlin here:

And here are his remarks as prepared for delivery:

Defending Our Nation by Prosecuting State-Sponsored Cyber Theft

Thanks for that kind introduction. I’m grateful to be here at Brookings today discussing emerging national security threats. On Monday, the Department of Justice announced charges against five members of the Chinese military for computer hacking, economic espionage, and other offenses directed at six American victims in the U.S. nuclear power, metals, and solar products industries. Today, I’ll focus on this growing threat: state-sponsored cyber intrusions targeting, for profit, sensitive and proprietary information of U.S. companies.

These charges against uniformed members of the Chinese military were the first of their kind. Some said they could not be brought. At the Department, we follow the facts and evidence where they lead. Sometimes, the facts and evidence lead us to a lone hacker in a basement in the U.S., or an organized crime syndicate in Russia. And sometimes, they lead us to a uniformed member of the Chinese military. But, no matter where they lead, there can be no free passes. We should not stand idly by, tacitly giving permission to anyone to steal from us. We will hold accountable those who steal – no matter who they are, where they are, or whether they steal in person or through the Internet. Because cybercrime has real victims.

While cases like the one brought in Pittsburgh are extremely challenging, this week we proved that they are possible. The criminal justice system must be a critical component of our nation’s cybersecurity strategy. As long as criminals continue stealing from American businesses, we will continue pursuing those criminals. The charges announced on Monday were groundbreaking. They represent a significant step forward in our cyber approach. And they were many years in the making.

The National Security Division

Within the Justice Department, the National Security Division – or NSD – focuses on cyber threats to the national security – those posed by terrorists and nation states. Our approach to these threats is deeply rooted in our Division’s history, and our success in the cyber arena builds upon a solid foundation. NSD was created in response to the grave threat of terrorism. After the devastating attacks of September 11, it became clear that the Justice Department needed to reorganize to tackle terrorism and national security threats more effectively.

We needed a single Division to integrate the work of prosecutors and law enforcement officials with intelligence attorneys and the Intelligence Community. So, in 2006, Congress created the Department’s first new litigating division in almost half a century: NSD. NSD works closely with partners throughout the government to ensure we leverage all available tools to combat the terrorism threat. And we’ve proven, in that context, that the criminal justice system is a vital part of our nation’s counterterrorism strategy.

Just this week, Abu Hamza al-Masri was convicted by a jury in New York on eleven counts. He was involved in an attack in Yemen in December 1998 that resulted in the deaths of four hostages and provided material support to terrorists, including al Qaeda and the Taliban. In March, Sulaiman Abu Ghaith was convicted of conspiring to kill Americans and other terrorism charges. Abu Ghaith was the son-in-law of Usama bin Laden and a senior member of al Qaeda. He was the face and voice of al Qaeda in the days and weeks after the 9/11 attacks. In both of these cases, it took more than a decade, but as a result of our integrated approach to combating terrorism, these men were brought to justice. These cases are the two most recent in a long line of successful terrorism prosecutions.

Read more »

New Trial Date Set for February 2015 in Al-Nashiri

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Thursday, May 22, 2014 at 1:30 PM

This marks the most significant among many dates set by the Second Amended Scheduling Order, in the military commission case of United States v. Al-Nashiri.  The ruling was issued on May 9 (and in response to defense requests), but only recently made its way through Guantanamo’s security morass.

It remains to be seen whether this revised schedule will stick.  Litigation, both inside and outside of GTMO, could easily shift the timetable around.  (The Scheduling Order effectively postpones an earlier-set date, of December;  the document also acknowledges the possibility of further deviation—and asks counsel seeking changes to make their requests no less than twenty calendar days in advance of this or that milestone.)

Which reminds me: adjustment to the Guantanamo calendar draws attention to the timing of Al-Nashiri’s parallel civil case.  As y’all know, the detainee has supplemented his habeas petition and challenged the power of the Guantanamo military court to try him in the first place.  The government recently responded, both to Al-Nashiri’s supplemental petition and his bid for a preliminary injunction, and essentially asked the court to hold the habeas case in abeyance.  We’ll thus see a few more pleadings filed shortly, and then—at some as yet undefined point, I reckon well before next February—a hearing before the habeas court.

In the meantime, I wouldn’t be surprised to hear the parallel litigation issue get some airtime down at Guantanamo, if only in passing—perhaps during next week’s pre-trial hearings.

Today’s Headlines and Commentary

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Thursday, May 22, 2014 at 12:23 PM

President Obama has sent 80 U.S. troops to Chad to help the Nigerian government locate the 200 kidnapped schoolgirls. Keeping in line with the War Powers Resolution, here is the President’s letter to Congress.

It was only a matter of time: After almost half a year of political turmoil in Thailand, the Thai military finally intervened in the current crisis this morning, declaring a coup. Martial law was imposed earlier this week, and media freedoms were curtailed in an effort to control debate. Gen. Prayuth Chan-ocha, the head of the army, insisted that it wasn’t a coup at the time and summoned the leaders of all sides to the negotiating table. Talks were supposed to continue today.  Instead, the participants found themselves detained as a coup d’etat was announced.

In news from other countries with over-enthusiastic militaries, Pakistan’s military says it has killed 60 alleged militants in aerial raids in North Waziristan—the worst such strikes in recent months. The BBC and the New York Times report.

Bruce Riedel believes that newly-elected Indian Prime Minister Narendra Modi and President Obama should make counterterrorism their top security priority—specifically, the two countries should cooperate on bringing down Lakshaar-e-Taiba.

Barbara Starr of CNN informs us that there has been a steady “threat stream” from Al Qaeda groups to attack American and Western targets, which has gotten the intelligence community worried.

Remember Syria? Jonathan Stevenson, a professor at the United States Naval War College, has an op-ed in the Times describing the importance of providing covert assistance to the Syrian opposition.

There’s a lot going on in Congress: The House of Representatives is expected to vote soon on an NSA reform bill. The Judiciary and Intelligence Committees approved a compromise bill last week, but closed-door negotiations with the Obama administration led to changes in the legislation that have angered privacy advocates. Ben breaks down the proposal, and Charlie Savage of the New York Times and Siobhan Gorman of the Wall Street Journal have stories.

The House is also expected to vote on the NDAA today, after members debated amendments late into the night. Adam Smith (D-WA) introduced an amendment to end Guantanamo detainee transfer restrictions and make moves toward closing the prison—which the White House strongly supported—but it was defeated. Adam Schiff (D-CA) introduced an amendment to sunset the AUMF, which was also defeated this morning.

The White House threatened to veto the NDAA if Congress passes a bill that places further restrictions on the Obama administration’s ability to close the prison, says Josh Gerstein of Politico.

Nancy Pelosi appointed five Democrats to the House special committee investigating the Benghazi attacks.

David Barron’s confirmation vote is scheduled for 2 pm today after the Senate voted to advance his nomination yesterday. Sorry, Rand Paul.

The Journal editorial board discusses David Barron’s nomination, arguing that his “liberal judicial philosophy” is the real problem.

Wells gave us the details from yesterday’s hunger strike hearing at which U.S. District Judge Gladys Kessler ruled that the government had to turn over videotapes documenting Guantanamo detainee Abu Wa’el Dhiab’s force-feeding. Here is the Guardian with the story.

The FBI is officially closing its investigation into a member of a defense team at Guantanamo Bay.

Karen De Young assesses how many of President Obama counterterrorism policies have stalled or haven’t even begun a year after his National Defense University speech.

Eli Lake of the Daily Beast describes the clash between President Obama’s push to scale down the War on Terror and the intelligence community’s objections.

Another op-ed worth checking out in the Times, this one from Jacob Wood and Ken Harbaugh, both former military members who served in Afghanistan. They discuss the rise of drone warfare, and believe that “our military leadership has become so enamored of the technological mystique of drones that they have lost touch with the realities of the modern battlefield.”

And, in truly bad taste, Cannes filmmakers have announced that they are making a thriller based on the disappearance of MH370.

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.

Article II in the Spotlight at Wednesday’s AUMF Hearing before SFRC

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Thursday, May 22, 2014 at 9:10 AM

Wednesday’s AUMF hearing underscored a point that I develop at some length in my paper Postwar: repeal of the AUMF would not require, as a legal matter, that the government forgo the use of lethal force in the counterterrorism setting nearly so much as many assume. Why not? Because this administration, like many before it, believes that Article II of the Constitution confers unilateral authority to use force in a broad range of circumstances involving defense against groups that pose a continuous threat of violence against Americans.  Put another way: repeal of the AUMF undoubtedly would have some form of constraining impact on the political and diplomatic fronts, but not so from a domestic law perspective.

Bearing this in mind, is there anything we currently do in the targeting realm that could not be done, legally speaking, without the AUMF? Senators asked this question repeatedly (seriously, they must have asked it a dozen times total) and neither DOD General Counsel Stephon Preston nor State Department Principle Deputy Legal Advisor Mary Macleod were willing to say that there is. Indeed, both were unabashed in emphasizing the fallback authority Article II provides, so long as the government deems the target to be sufficiently linked to a continuing threat.  Somewhat to my surprise, this appeared to shock most if not all the committee members in attendance.  It certainly contributed to the manifest frustration many of the senators expressed.

As for the rest of the hearing?  If you want a blow-by-blow account, go to my twitter feed (@bobbychesney) and scroll through (I live-tweeted most of the hearing). Meanwhile, a few additional topics worth highlighting here:

Repealing the 2002 Iraq AUMF ­– The government witnesses broke some news, I think, when they stated that the Obama administration now affirmatively supports repeal of the Iraq AUMF from 2002.

Refining” the 2001 AUMF…or not? – The administration’s view on the 2001 al Qaeda AUMF remains as stated in the President’s 2013 speech on the subject: it should be “refined,” and one day it should be repealed. The government witnesses made clear that today is not the right day for repeal. The interesting question, then, is what it might mean to “refine” the AUMF in the interim. No light was shed there; the witnesses were not authorized to propose anything, and senators on both side of the aisle hammered the administration for failing to reach out to Congress with a specific reform proposal (or even to open a dialogue on the subject) despite the fact that in his 2013 speech the President said he planned to work with Congress on this subject.

Associated forces/Scope of the AUMF – Several senators asked which entities are thought by the government to be within the scope of the AUMF, aside from the previously-acknowledged determination that AQAP is covered.  The witnesses declined to answer outside a classified setting, not surprisingly.

More on the Administration’s AUMF Strategy

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Thursday, May 22, 2014 at 9:00 AM

A friend who is familiar with Obama administration thinking responds to my post on yesterday’s AUMF hearing:

The administration’s focus is not on ending the war, but on ensuring that future presidents don’t have the latitude the AUMF provides. The focus is on restraint. And the message is not intended to be read as supporting the arrogation of presidential power.

I know this is what many inside the administration think.  But the means do not match the aims.  In fact as well as appearance, saying that Article II gives you all that the AUMF does and more is not viewed as restraint and does not in fact restrain future presidents.  I think the administration is obsessed with ensuring that future presidents do not rely on the AUMF for new detentions, at GTMO or elsewhere.  That is a perfectly legitimate aim.  But to accomplish that aim, the administration is switching to a more expansive and less cabined legal justification for targeting and killing under Article II.  They are trying to restrain detention power at the price of placing targeting power on a more expansive, unilateral Article II basis.  And the latter is what everyone is focused on.

Predictably, Congress does not appear to like this approach, which implies endless Article II war at the President’s discretion.  Our argument in a nutshell for a revised AUMF is that the process of targeting and killing terrorists who pose threats should be grounded more in more precise statutory authority and subject to a more regularized and transparent process.  I believe that those who oppose such a statute fear (a) the imprimatur of endless war, (b) the Obama administration’s name on that endless war, and (c) renewed authorization of detention power.  But the targeting and killing of terrorists in many countries, as well as related actions against terrorists in many countries, is not going away.  It simply isn’t.   War, or whatever you want to call the jurisdiction that justifies targeted killing, will be with us no matter what. The President will address the threats that terrorists pose with force, and the switch to Article II as a basis for doing so will have President Obama’s name on it no less than a new AUMF (and perhaps more so, since the Article II basis for endless war is the President’s decision alone).  As for detention, there is no reason that a revised and narrowed AUMF need authorize detention going forward.  Congress could authorize force but make clear that force does not in this context entail a detention power.  That is, Congress can prohibit detention in its revised AUMF.  I am pretty sure the administration fears, however, that it would not be able to get from Congress a new and narrowly cabined AUMF that eliminated detention authority.

And so the administration faces the hard choice of (a) placing the Forever War on an Article II basis, with President Obama’s imprimatur, that will be seen as arrogating presidential power and making the war even less cabined than it now is, or (b) trying to get from Congress some combination of revised targeting authority without new detention authority that will also have the President’s name on it.  That is a tough one.   It seems to me that since the Administration has the veto power and Article II if it doesn’t get the Bill it likes, the statutory approach is worth trying.  But I predict it will continue to pursue the course of least resistance, which is unilaterally switching from the AUMF to Article II — especially since, I suspect, many in the administration like the extra flexibility in targeting that Article II provides.

Revised Counterinsurgency Field Manual

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Thursday, May 22, 2014 at 6:51 AM

The revised COIN Field manual is available here.  I have not read it but Small Wars Journal has critical commentary by Charles Dunlap, Bing West, Adam Elkus, and Robert Cassidy, and Ganesh Sitaraman weighs in at Foreign Policy.

Update: Steve Aftergood of Secrecy News has a review here.

Book Review: Asia’s Cauldron: The South China Sea and the End of a Stable Pacific by Robert D. Kaplan

Published by Random House (2014)
Reviewed by Ali Wyne
Wednesday, May 21, 2014 at 11:30 PM

The relationship between the United States and China will arguably shape international order more than any other phenomenon. The US Department of Justice’s recent indictment of five members of China’s military for economic espionage has focused attention on the two countries’ disagreements over the norms of cyberspace. One could argue, though, that competition between the US and China is most acute in the physical space of the Asia-Pacific region. While the US has been the preeminent power there for the past seven decades, it is China’s backyard and, dating back centuries, the center of its worldview. Zoom in a bit more, and the South China Sea emerges as a decisive register for three sets of interactions: those between the US and China, China and its neighbors, and the US and China’s neighbors.

In Asia’s Cauldron (his third book in four years), Robert Kaplan convincingly portrays this 1.35-million-square-mile body of water as a central crucible in which this century’s geopolitics will transpire. He emphasizes three points. First, Chinese primacy in the South China Sea “would go a long way toward making China more than merely the first among equals of Eastern Hemispheric powers.” Second, the principal risk for China’s smaller neighbors is not invasion, but “Finlandization.” The growing gravitational pull of China’s economy doubles as a carrot—your economy will continue to flourish if you keep yourself open to our exports and investments—and a stick—you will endanger an increasingly important component of your economy if you take actions that undermine our national interests. Behind that dual-use instrument is an increasingly capable People’s Liberation Army (PLA). Given its aspiration of achieving a peaceful rise, China would prefer that its smaller neighbors accommodate themselves to its perspectives on the territorial disputes that are roiling the region (essentially, Kaplan explains, “give in without violence”). Third, the US “must be prepared to allow, in some measure, for a rising Chinese navy to assume its rightful position, as the representative of the region’s largest indigenous power.”

While such judgments are commonly held, Kaplan lends them texture and urgency by including provocative observations by government officials. A few years ago, for example, an “official of a South China Sea littoral state” told him that “China simply waits until it becomes stronger. Economically, all these countries will come to be dominated by China.” Hinting at the South China Sea’s importance to China, PLA Navy Commander Wu Shengli asked an audience in Singapore: “How would you feel if I cut off your arms and legs?” And according to one US official, if “China can break off Vietnam they’ve won the South China Sea.”

These sorts of quotes pepper Kaplan’s account, lending narrative flair to a subject that, oddly enough, he depicts as almost tedious. The South China Sea, he remarks, is a “somewhat sterile landscape,” the realm of “austere power politics” that will leave “little for the intellectual journals of opinion to chew over.”

The author of an influential article in the May/June 2009 issue of Foreign Policy, “The Revenge of Geography” (which he subsequently developed into a book of the same title), Kaplan excels at probing the geographic insecurities of China’s smaller neighbors. China’s location makes its growing military muscle and economic heft more concerning than they otherwise would be. While China “is a geographical fact,” observes Kaplan, “the United States at least in Asia is merely a geopolitical concept. Translation: China is close by and therefore threatening.” Take, for example, the Vietnamese, who

know that geography dictates the terms of their relationship with China: they may win the battle, but then they are always off to Beijing to pay tribute …Vietnamese officials are impressed with the geographic asymmetry of their situation: as they say, a distant water can’t put out a nearby fire. (emphasis Kaplan’s)

Or consider his assessment of Filipino vulnerability:

The sea is the country’s economic lifeline for everything from fishing to energy exploration … the potential loss of access to new hydrocarbon reserves in areas of the South China Sea…as well as the loss of access to existing fisheries … constitutes a national security nightmare for Manila.

(Continued)

Reactions to Foreign Relations Committee Hearing on the AUMF

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Wednesday, May 21, 2014 at 9:12 PM

There is much to say about today’s hearing on the AUMF, and I am sure my colleagues will weigh in with much more.  But I have two quick reactions for now.

First, I suggest reading two recent Eli Lake articles together.  The first is about internal Executive branch debates about how to characterize the continuing threat from al Qaeda affiliates, with White House officials wanting to downplay the threat.  The second, a report on today’s hearing, is about how the administration’s plan to deal with the threat from al Qaeda affiliates relies on inherent Article II powers that Lake describes as Cheney-esque and that he reports “flabbergasted” many Senators.  Here is how Lake’s two pieces fit together.  The President in his NDU speech and other places wants (a) to characterize the Islamist terrorist threat as diminishing and the AUMF as increasingly unnecessary, but at the same time (b) to make clear that he retains authority to use force against all extant threats to American security via Article II.  The President and his administration seem to think that repealing or rejecting reliance on the AUMF will be, or will be seen as, a narrowing of presidential war power and a constriction of the war against Islamist terrorists.  But as today’s hearing shows, that is not how it will be seen.  The reasons is simple: Reliance on Article II, while it potentially narrows the President’s detention powers, at the same time unmoors the President’s power to use force from the already-broad language of the AUMF and rests that power on Article II alone, which allows the use of force, in the absence of congressional authorization, against an even broader array of threats.

Second, I was heartened by Harold Koh’s testimony at the hearing.  Koh repeated the administration’s line about how the AUMF is unnecessary because of Article II.  But importantly, he also said he understands “why Congress might prefer not to leave a matter of such importance to inherent constitutional authority.”  To address this concern, Koh said, “Congress could both clarify and narrow the scope of the AUMF going forward,” and in particular he proposed a statute that would authorize the President “to use force against those groups or individuals who pose a continuing and imminent threat to the U.S. by virtue of: (1) having already attacked the U.S.; (2) engaging in a concerted pattern of continuing armed activity directed against the U.S.; and (3) actively planning, threatening, or perpetrating armed attacks against the U.S.”  I like this formulation because it is very close to what Ben, Matthew, Bobby and I proposed in an essay last year, where we argued for a new AUMF that would authorize force against “an organization with sufficient capability and planning that it presents an imminent threat to the United States,” or against “any group or person that has committed a belligerent act against the U.S. or imminently threatens to do so.”  We also argued, like Koh, that one important reason for such a revised AUMF is that over time the use of force against different, morphing groups should not be left to the President’s inherent authority alone.  Koh did not address our proposal to embed a revised AUMF within an administrative framework in order to increase the transparency and legitimacy of adding new individuals or groups for targeting.  But since he aims to “give Congress greater say in authorizing force and bolster the constitutional legitimacy of counter-terrorism operations by giving the President’s current standards a shared legislative and executive imprimatur,” I don’t see why he would oppose making the process of adding individuals and groups to the President’s targeting list more transparent to Congress and the public.

Steptoe Cyberlaw Podcast, Episode #20: An Interview with Shane Harris

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Wednesday, May 21, 2014 at 4:38 PM

For the first time, we begin the podcast not with NSA on the defensive, but with breaking news of an American counterattack on Chinese cyberspying—the indictment of several PLA members for breaking into US computers to steal commercial information. Our guest for the day, Shane Harris, is ideally suited to analyze the case. Shane is a senior writer at Foreign Policy magazine, where he covers national security, intelligence, and cyber security. Shane’s book, The Watchers, offered thoughtful insights into the rise of surveillance in America.

Turning to the week in NSA, it turns out that the claim that no telcos challenged the 215 program is looking less true all the time. First we discovered that Verizon did; now new releases disclose that Sprint also objected. Glenn Greenwald’s book claims that NSA considers Israel the most effective at spying on the US after China and Russia. No surprise there, except maybe to the French. Greenwald also says that NSA modifies equipment after it’s been sold to make hacking easier. Finally, speaking of media leaks, Greenwald’s book has now been leaked to Bittorrent. Copyright infringement is almost as illegal as leaking classified documents, so let your conscience be your guide.

It looks as though LabMD is down to one lawsuit, at least for now. It’s hoping to persuade the Devil inside the Beltway to convert—pursuing its claims of mistreatment by the FTC to . . . the FTC.

The Justice Department is clearly under instructions to reassure the private sector that certain kinds of information sharing is legal. The department has released a not-very-surprising statement that some kinds of information sharing don’t violate the antitrust laws. Now it’s put out a white paper saying that ISPs can release aggregate information about cybersecurity without violating the Stored Communications Act’s prohibition on releasing customer information.

The two hot topics of the week, though, turn out to be net neutrality and the European Court of Justice’s mugging of Google, with the first amendment as collateral damage. On net neutrality, we clarify the difference between Title II and section 706 as a basis for net neutrality, and the prospects for the proposed regulatory regime. As a bonus, we ask whether the FCC could use its new authority under either of those provisions to require that internet companies work more closely with law enforcement in designing their services. As for the European court’s embrace of the “right to be forgotten,” we explore the ruling’s remarkable breadth. Apparently if you’ve lost a lot of weight recently, even your old photos can be pulled off Google. The jurisdictional assertions are as sweeping as the substantive ruling. Google’s US results, and US news sites, cannot assume that they are immune from the long arm of European censorship.

Finally, in a wide-ranging interview with Shane Harris, we delve deeply into the market—and possible regulation of the market—for zero-day vulnerabilities, the rapid evolution of Iran’s cyber warfare capabilities, and some of the problems with the US response to these challenges.

Read Out on Today’s GTMO Hunger Strike Hearing

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Wednesday, May 21, 2014 at 3:08 PM

Last week, U.S. District Judge Gladys Kessler entered a temporary restraining order in a habeas case filed by Guantanamo detainee Jihad Dhiab. Among other things, and most interestingly, her ruling temporarily forbade the government from engaging in “any Forcible Cell Extractions of Petitioner for purposes of enteral feeding and any enteral feeding of Petitioner until May 21, 2014,” when the parties would return to court for a status hearing (emphasis mine).

The command evidently had its roots in a discovery fight. Earlier on, Dhiab sought a preliminary injunction against force feeding; his request was briefed fully, and a hearing on the injunction set for today.  But in the meantime, Dhiab’s attorneys say they learned of new evidence—videotapes of cell extractions and force feeding sessions—bearing on Dhiab’s challenge.  (The government at that time also denied requests by Dhiab’s attorneys for other information.)  Petitioners’ counsel accordingly sought the evidence’s preservation, and limited discovery, on an emergency basis.  After reviewing a response from the government and a reply from Dhiab, Judge Collyer on Friday converted today’s hearing from one on preliminary relief to a status hearing on discovery issues raised by Dhiab—and also entered her temporary restraining order.

Which brings us to this morning, when the parties debated, and the court orally ruled upon, the government’s short-run discovery obligations.  Quite importantly, Judge Kessler overruled government objections and said she would require the United States to produce, among other things, 34 videotapes depicting instances in which Dhiab was forcibly taken from his cell and force fed.   Read more »

So What’s in that FISA Reform Bill Anyway?

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Wednesday, May 21, 2014 at 3:03 PM

Over at the New York Times, Charlie Savage has a good story about civil libertarian irritation over the latest version of the “USA FREEDOM Act,” H.R. 3361—which he has also posted. As this seems likely to be the version on which the House of Representatives actually votes, and it reflects input from both the intelligence and judiciary committees, as well as from the administration, I thought it might be useful to give a brief summary of exactly what’s in it. 

Title I of the bill deals with reform of Section 215 and its associated bulk metadata collection program. In brief, the new bill operates by terminating the authority to collect metadata in bulk but simultaneously providing a means for the FISA court to order production of metadata associated with individual identifiers and those within two hops of those identifiers.

The bill would end the current program by amending the FISA business records provision, effective 180 days from the date of its enactment,  to require, in an “application for the production on a daily basis of call detail records” in a counterterrorism investigation, that the records be tied to a “specific selection term,” that they be relevant to the investigation, and that the there are facts giving rise to “reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power.”

The bill then defines “specific selection term” as “a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought. . . .” As Charlie explains in his story, this is actually a loosening of the earlier language, which defined it as “a term used to uniquely describe a person, entity or account.”

More generally, the bill prohibits the bulk collection of tangible things by adding in, in a variety of places, requirements that specific selection terms be the basis for production. And it states flatly that “No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term. . . .” Title II, which is very brief, applies the same “specific selection term” requirement to the FISA pen register/trap and trace authority, thereby prohibiting bulk collection under that authority as well. (Remember that this authority was used for bulk email metadata collection under 2011.) And Title V does the same with various national security letter statutes, thereby preventing any of these laws from being used for bulk collection.

Title I goes on to give the FISA Court the authority to authorize production of telephone call records for up to 180 days and to allow for extensions of such orders on reapplication. It would allow the government to seek a second set of records (the second “hop”) based on those that have a “direct connection” to the “specific selection term.” It allows the government to require secrecy of it telecommunications partners, and it would require that minimization procedures provide for “prompt destruction” of all call records that are not legitimate foreign intelligence. The bill would also make the minimization procedures subject to judicial review. Read more »

Live: Senate Hearing on the AUMF

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Wednesday, May 21, 2014 at 10:40 AM

As Bobby noted earlier, the Senate Foreign Relations Committee is holding a hearing entitled: “Authorization For Use Of Military Force After Iraq And Afghanistan.” The witness list and prepared testimonies follow.

Witnesses

Panel One

  1. The Honorable Stephen W. Preston
    General Counsel
    Department of Defense
    Washington , DC
  2. Ms. Mary Mcleod
    Principal Deputy Legal Adviser
    Department of State
    Washington , DC

Panel Two

  1. The Honorable Harold Hongju Koh
    Sterling Professor Of International Law, Yale Law School
    Former State Department Legal Adviser
    New Haven , CT
  2. The Honorable Michael B. Mukasey
    Partner, Debevoise & Plimpton
    Former Attorney General of the United States
    New York , NY

Today’s Headlines Commentary

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Wednesday, May 21, 2014 at 9:14 AM

In response to “extensive” pressure on the administration, the Department of Justice will release a 2011 memo that provided the legal justification for the killing of American terrorist suspects overseas. The Washington Post reports that DOJ ultimately decided not to appeal a court order to disclose the memo. There is no official word on the exact date of the release of the memo, but a DOJ official has claimed it will be released in a “matter of weeks.” The New York Times also has the story.

The Times has a piece on NSA surveillance, but from a different angle than most. Rather than looking at how and how often the U.S. government collects data from companies or government agencies abroad, David Sanger of the Times considers perhaps a more compelling question: why does the NSA do it, and what does protecting “national security” interests really mean? The answer, Sanger concludes, is difficult to pin down and varies on a case-by-case basis, but the broad message from the piece is that NSA surveillance goes beyond eavesdropping on terror cells and those tenuously linked to them.

[T]he government does not deny it routinely spies to advance American economic advantage, which is part of its broad definition of how it protects American national security. In short, the officials say, while the N.S.A. cannot spy on Airbus and give the results to Boeing, it is free to spy on European or Asian trade negotiators and use the results to help American trade officials—and, by extension, the American industries and workers they are trying to bolster.

Ladar Levison, the founder of an encrypted email startup, has written a piece for the Guardian revealing the steps the U.S government took to install surveillance software to his program and limit users’ privacy. The site, Lavabit, by definition, was meant to ensure privacy to its users—among them, Edward Snowden—but government intervention ultimately caused Levison to shut down the service.

Russian President Putin has gone to China, the BBC reports, to reaffirm Russian-Chinese relations and to negotiate what would be a major natural gas deal. It’s not quite clear what was said or what was agreed upon between President Putin and Chinese President Xi Jinping, with different news outlets reporting different outcomes.  The Times reports that the two nations have agreed to build a pipeline that would bring gas from Siberia to China, but that the precise details of the agreement remain unclear: there is no report of an actual contract between the two governments, or if the agreement was just the beginning of a longer process of negotiations. Meanwhile, the Wall Street Journal is much more positive in its report of the meeting, claiming that the two nations “signed” an agreement. The BBC follows that report up, claiming that the agreement is a solid and definitive one. More to follow on this, we’re sure.

The United States has slapped a new set of sanctions against ten Russians. The Post reports that the Russian individuals in question have links to the death of Sergei Magnitsky, whose death highlighted the depth of human rights abuses in Russia.

Qusai Zakarya, a Syrian journalist who survived a chemical weapons attack in August of last year is hoping to raise awareness of the Syrian crisis in the United States. He has recorded a powerful video describing the attack; that’s over at Al Jazeera.

The Egyptian presidential campaign is quickly approaching, but the front-runner, Abdulfattah el-Sisi, is finding it difficult to campaign. The Telegraph reports that Sisi has not made any personal appearances for fear of assassination.

The United States is preparing for possible evacuations in Libya, as a response to the increased civil unrest in the country. The Hill reveals that the U.S. is increasing the number of Marines and aircraft in Sicily that would help to evacuate Americans from Libya.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issuesSign 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.

Questions that Should Be Asked at Today’s Senate AUMF Hearing

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Wednesday, May 21, 2014 at 9:10 AM

The Senate Foreign Relations Committee has a hearing this morning concerning the future of the AUMF, featuring DOD General Counsel Stephen Preston, State Department Principle Deputy Legal Adviser Mary Macleod, Harold Koh, and Michael Mukasey.  As it happens I’m in DC with some free time this morning, so I’ll do my best to be there and report back afterward.  But since they don’t take questions from the floor at these things, I thought I’d take this occasion to pitch a few questions that I hope the Senators will ask:

  • The President famously stated last year that there is a distinction between the use of force in a hot battlefield and using force elsewhere, and that as a matter of policy constraint the United States would only use lethal force outside the hot battlefield where the risk of civilian casualties is nearly zero, where capture is not feasible, and where the target poses a threat to American lives.  Is this still the policy?
  • Does the administration still consider Afghanistan to be a “hot battlefield”?
  • If so, what criteria will determine whether it remains a hot battlefield from 2015 forward?
  • Does the administration currently consider Yemen to be a “hot battlefield”?  What about Somalia?
  • Are there any locations other than Afghanistan that the administration considers a “hot battlefield” today?
  • Assume the AUMF is repealed.  Is there any circumstance in which the United States still could use lethal force for counterterrorism purposes, pursuant to the President’s Article II self-defense authorities?  If so, what are the boundaries of that authority?  And how does the scope of that authority differ, if at all, from current US policy governing the use of force outside of Afghanistan?
  • Does the administration take the view that the end of the AUMF is the same thing as the end of the armed conflict with al Qaeda?
  • Can the AUMF be declared terminated by the President acting alone?  If so, can it also be terminated solely as to a specific group (but not others)?
  • What are the specific metrics that are used to determine whether an armed group has “joined the fight” against the United States, alongside either core al Qaeda or the Taliban, such that the group qualifies as an “associated force”?  Is it enough for a group leader to pledge loyalty to al Qaeda?  To adopt the al Qaeda brand?  For there to be intelligence indicating that members of the group may be interested in carrying out an operation targeting US persons?

There is so much more that would be worth asking.  Asking these questions would certainly make for an interesting hearing, however!

The U.S. Corporate Theft Principle

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Wednesday, May 21, 2014 at 8:07 AM

David Sanger’s piece in this morning’s NYT explores the USG’s attempts to justify cracking down on cyber-theft of intellectual property of U.S. firms while at the same time continuing to spy on non-U.S. firms for different purposes.  We are familiar with the USG policy.  As DNI Clapper says in Sanger’s story, the USG does not use its “foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of — or give intelligence we collect to — U.S. companies to enhance their international competitiveness or increase their bottom line.”  This convoluted but carefully worded statement permits the USG to engage in a great deal of theft of foreign company trade secrets.  Sanger’s story talks about the United States stealing information from Petrobras (the Brazilian national oil company), China Telecom, Huawei, Pacnet (the Hong Kong operator of undersea fiber optic cables), and other state-owned oil companies, as well as Joaquín Almunia, the antitrust commissioner of the European Commission.  Sanger explains that USG policy allows spying on these firms and persons, and allows it to be done for the purpose of helping the American economy and American competitiveness in general.  Sanger cites USG officials who say that “while the N.S.A. cannot spy on Airbus and give the results to Boeing, it is free to spy on European or Asian trade negotiators and use the results to help American trade officials — and, by extension, the American industries and workers they are trying to bolster.”  The officials might have added that the NSA can also spy on Airbus itself for purposes of analyzing the French economy, or preparing for a trade negotiation, or any other purpose that would serve U.S. economic interests generally, as long as the spying is not done specifically for an American company and the information is not given to the American company.

Sanger reports that “every one of the examples of N.S.A. spying on corporations around the world is becoming Exhibit A in China’s argument that by indicting five members of the People’s Liberation Army, the Obama administration is giving new meaning to capitalistic hypocrisy.”  I have used the word “hypocrisy” in this context as well, but maybe that is not the right term.  Hypocrisy is professing to believe in certain principles while not in fact living up to them.  One could argue that the United States is not hypocritical because it believes in and lives up to this principle:  Spying on foreign firms is presumptively allowed, but not on behalf of a particular U.S. firm, and the information cannot be given to a U.S. firm.  Setting aside those aspects of the recent indictment that appeared to go after spying in connection with trade negotiations, let us posit that the United States lives up to this principle and is not hypocritical.  But is the principle – call it the U.S. corporate theft principle – defensible?

It does not find any basis that I know of in law.  International law has traditionally not regulated espionage, especially cross-border cyber-theft.  If this norm is changing after Snowden, it is not obviously changing in a way that conforms to the U.S. corporate theft principle.  As for domestic law, what the Chinese hackers are alleged to have done definitely violates U.S. law.  But they also would have violated U.S. law if they stole information from the Pentagon, or if they stole information from Google for purposes of enhancing China’s overall economic posture (i.e. consistent with the U.S. trade theft principle).  This is an important point: Most if not all cyber-snooping from abroad, against public or private entities, and for whatever purpose, violates U.S. domestic law.  And most if not all USG cyber-snooping abroad violates foreign domestic law.  With Monday’s indictment the United States is selectively enforcing its domestic criminal laws to serve (and be consistent with) a broader national security policy.  But the underlying federal laws – the Computer Fraud and Abuse Act, laws against private and public theft, and the like – are being violated every day on a much, much broader basis.

If the U.S. corporate theft principle has no basis in law, is it otherwise defensible as policy?  As I have written before, the policy seems obviously designed to serve the interests of a country, the United States, that possesses enormous intellectual property resources and does prodigious amounts of spying abroad against nations that have relatively few intellectual property resources.  If this is your position in the world, then you want a regime that maximizes room for cyber-espionage while carving out an exception of cyber-theft of intellectual property on behalf of, or to be given to, particular firms.   And that is what the United States does.  To China, of course, the situation is more or less the opposite.  And so China sees the world, as Sanger reports, like this:

In the Chinese view, the United States has designed its own system of rules about what constitutes “legal” spying and what is illegal.

That definition, the Chinese contend, is intended to benefit an American economy built around the sanctity of intellectual property belonging to private firms. And, in their mind, it is also designed to give the N.S.A. the broadest possible rights to intercept phone calls or email messages of state-owned companies from China to Saudi Arabia, or even private firms that are involved in activities the United States considers vital to its national security, with no regard to local laws.

For years U.S. officials have explained where it draws the line on spying on foreign firms.  What I have not heard is a response to China’s claim that the line is self-serving and unprincipled.  I imagine that the United States will try to find some basis in international law, perhaps international economic law, for its position, but all such arguments that I have seen are weak.

Of course there is nothing wrong with the United States trying to establish a principle of corporate espionage that serves its interests and that disserves our adversaries’ interests – that is what international relations are about.  As I have said before, “I would be quite pleased if the USG could establish a rule of espionage that allowed us to best serve our interests and that disserved China’s interests.”  The question, however, is whether the United States has a strategy for establishing this principle.  Indictments like the one we saw this week do not a strategy make, but perhaps other elements of a larger strategy are on the way.  What the United States needs is an explanation convincing to audiences outside the United States about why its principle of corporate espionage is attractive beyond its furtherance of U.S. corporate and national security interests.  I have never seen any such explanation.

The USA FREEDOM Act and a FISA “Special Advocate”

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Tuesday, May 20, 2014 at 4:19 PM

For those who haven’t been following super-closely, the Manager’s Amendment to H.R. 3361—the USA FREEDOM Act—is now slated to be considered by the full House of Representatives in the coming days. And although there’s a lot to be said about the various substantive surveillance reforms reflected in the current iteration of the bill, one of the points that has gone virtually unnoticed thus far is the extent to which the Amendment has so thoroughly watered down the provisions creating a “special advocate” (who would argue against the government before the FISA Court in at least some cases)— as to leave the status quo virtually unchanged.

Thus, the current section 401 of H.R. 3361 would constitute the “special advocate” as little more than an amicus—drawn from a standing pool of private lawyers to appear when appointed by the FISC. Such an appointment is mandatory in any case “that, in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate.” Amicus appointments are otherwise left to the discretion of the FISC in all other cases. And once a final judgment is entered in any case in which an amicus has appeared, that’s the end of the matter; the bill provides no mechanism for the amicus to pursue any form of rehearing or appellate review.

Reasonable people can certainly disagree over the optimal way to implement the “special advocate” idea. But this just ain’t it. Thus, as the Liberty and Security Committee of the Constitution Project has explained in an important letter sent to Congress earlier today,

Although the bill requires appointment of an amicus in certain cases, it provides an unreviewable means for FISC judges to sidestep that requirement simply by asserting that such an appointment is unnecessary. And insofar as FISC already possesses the authority to appoint amici in appropriate cases, but has seldom exercised it, it seems likely—if not certain—that H.R. 3361 will merely perpetuate the status quo. If all a FISC judge must do to avoid amicus participation is issue an unreviewable, and presumably classified, “written finding” that such an appointment is unnecessary, we believe H.R. 3361 will produce a negligible increase in adversarial presentation before the FISC.

Instead, the Committee explains that any “special advocate” proposal, in order to be effective, must include at least three elements:

1. The special advocate must have an unconditional right to participate in at least some cases.
2. The special advocate should be empowered to represent U.S. persons who are subject to the surveillance orders at issue.
3. Cases in which the special advocate participates should be “certified” to the FISCR to ensure meaningful appellate review.

As our more frequent readers know, I wholeheartedly endorse all three of these elements—along with the more general goal of increasing meaningful adversarial participation before the FISC as a means of increasing accountability. This is especially needed in those cases in which FISC is not just undertaking individualized probable cause assessments, but is instead signing off on bulk and/or programmatic surveillance (indeed, Congress has already provided for adversarial participation in those contexts—just not enough). And although Judge Bates, among others, has offered a series of constitutional and prudential objections to the idea of a “special advocate,” those objections are aimed at far more expansive—and unnuanced—conceptions of the role the special advocate should play in FISC cases going forward. Ultimately, if Congress is serious about meaningful reform not just of substantive surveillance authorities, but of the means by which those authorities are overseen, it should take the Constitution Project’s new letter very seriously—and reconsider section 401 of the Manager’s Amendment to H.R. 3361.

 

John Carlin at Brookings

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Tuesday, May 20, 2014 at 4:02 PM

Recently-confirmed Assistant Attorney General for National Security at DOJ, John Carlin, will give an address at Brookings on Thursday afternoon entitled Tackling Emerging National Security Threats through Law Enforcement.” Carlin’s keynote address on cybersecurity at American University’s Washington College of Law ran as a recent episode of the Lawfare Podcast. It will be especially interesting to hear from him in light of yesterday’s indictment against Chinese officials for cyber espionage. Ben will introduce and moderate the event, the details of which are below:

National security threats to the United States continue to evolve. How is the Department of Justice adapting to this evolution in the threat picture? Even as countering terrorism and protecting the nation’s security remain the Department’s top priority, how is the Department addressing the new types of threats that are emerging? One of the Government’s tools to combat these threats is law enforcement, including both investigation and prosecution.

On May 22, Governance Studies at Brookings will host John Carlin, Assistant Attorney General for National Security at the U.S. Department of Justice, for a discussion of how the Department is adapting and responding to the changing threat picture. Mr. Carlin will address, in particular, the role of the National Security Division in tackling emergent threats such as those in cyber space.

Register to attend in person or to watch the webcast. Join the conversation on Twitter at #NatSec.

Event details:

May 22, 2014

2:00 PM – 3:30 PM EDT

Brookings Institution

Saul Room/Zilkha Lounge

1775 Massachusetts Avenue NW

 

Event agenda:

Introduction and Moderator: Benjamin Wittes

Portrait: Benjamin Wittes

Benjamin Wittes

Senior Fellow, Governance Studies

View Bio

 

Featured Speaker: John Carlin

John Carlin

Assistant Attorney General, National Security

U.S. Department of Justice

View Bio

Schneier on Hoarding v. Patching Vulnerabilities

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Tuesday, May 20, 2014 at 12:11 PM

Bruce Schneier has a very good piece on whether the USG should “stockpile Internet vulnerabilities or disclose and fix them.”  Part of his  answer:

If vulnerabilities are sparse, then it’s obvious that every vulnerability we find and fix improves security. We render a vulnerability unusable, even if the Chinese government already knows about it. We make it impossible for criminals to find and use it. We improve the general security of our software, because we can find and fix most of the vulnerabilities.

If vulnerabilities are plentiful—and this seems to be true—the ones the U.S. finds and the ones the Chinese find will largely be different. This means that patching the vulnerabilities we find won’t make it appreciably harder for criminals to find the next one. We don’t really improve general software security by disclosing and patching unknown vulnerabilities, because the percentage we find and fix is small compared to the total number that are out there.

But while vulnerabilities are plentiful, they’re not uniformly distributed. There are easier-to-find ones, and harder-to-find ones. Tools that automatically find and fix entire classes of vulnerabilities, and coding practices that eliminate many easy-to-find ones, greatly improve software security.  And when person finds a vulnerability, it is likely that another person soon will, or recently has, found the same vulnerability.  Heartbleed, for example, remained undiscovered for two years, and then two independent researchers discovered it within two days of each other.  This is why it is important for the government to err on the side of disclosing and fixing.

Lots more of interest in this essay.

Today’s Headlines and Commentary

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Tuesday, May 20, 2014 at 10:03 AM

The Intercept reports that the NSA collects and stores essentially all cell phone calls inside the Bahamas and one other unnamed country. The collection of data, under the auspices of a program called SOMALGET, covers both metadata and content material. The report also explains that the NSA sweeps up metadata as part of the MYSTIC program in Mexico, Kenya and the Philippines. The intel comes from documents leaked by Edward Snowden.

Citing Church Committee-era materials, Walter Pincus of the Washington Post argues that the NSA has learned from lessons of the past and is not on its way to become a tool of a tyrannical government, as Glenn Greenwald has warned.

PC World reports that the head of Cisco Systems has written an open letter to President Obama, telling him that the controversy surrounding NSA surveillance impacts U.S. technology sales. In the letter, CEO John Chambers calls on President Obama to intervene in the operations of the NSA, and urges him to implement “new standards of conduct” in an effort to help appease foreign customers and investors.

As we explained yesterday, five Chinese military officers have been accused of hacking into the computers of U.S. nuclear energy companies. Jack has a piece here on Lawfare exploring why the DOJ indicted the officers. Today, we learn from Reuters that China has summoned the U.S. ambassador, Max Baucus, to discuss the foreign policy implications of the indictment. The Chinese foreign minister has “protested” the DOJ accusations and his comments so far indicate that the accusations will serve to further force a wedge in an already struggling relationship.

The New York Times explores what this all means to the U.S. companies based in China. Foreign Policy, meanwhile, poses the question: will China mimic the States in “coming after” American hackers?

The CIA has announced that it will no longer use vaccinations as a cover for intelligence gathering operations, as it has in the past—most prominently in the course of targeting Osama bin Laden in Pakistan. The Post and the Times have all the details on the end of this controversial program.

Mostafa Kamel Mostafa, most commonly known as Abu Hamza, has been convicted of all eleven terrorism charges leveled against him in New York federal court. Ben Weiser of the Times explains that the jury took less than two full days of deliberations to come to their verdict, after six weeks of trial and many years of legal battles. Judge Katherine B. Forrest will hand down a sentence in September; Mostafa faces life imprisonment.

The Times also reports that UK Prime Minister David Cameron has praised the verdict in the Mostafa trial, while also noting that there should have been a faster process in extraditing Mostafa from the UK to the United States.

Foreign Policy has a piece on the International Criminal Court’s inquiry into US conduct in Afghanistan. The piece suggests that the chances of the ICC ever prosecuting U.S. soldiers of officials “remain slim” but that the court still remains very interested in determining if the U.S. had a policy of committing torture or otherwise “humiliating and degrading” treatment of enemy combatants in Afghanistan.

Cpl. William Kyle Carpenter of the U.S. Marines will be awarded the Medal of Honor, the highest honor that can be bestowed unto any individual serving or who has served in the U.S. military. Cpl. Carpenter, 24, will be honored for his bravery in serving his country in Afghanistan, where he willingly threw himself onto a grenade in an effort to save a fellow Marine. The Post has the story.

Yesterday, Ritika caught us all up on the recent violence that has been plaguing Libya. Today, the Post reveals that Khalifa Hiftar, who orchestrated attacks on two major Libyan cities, resided in the United States – and may have even become a U.S. citizen – after being exiled from the country as the leader of a rebel group called the Libyan National Army. The LNA was formed after Colonel Gaddafi was brought to power in the late 1960s. Hiftar resided in Virginia for an unspecified amount of time—at least three decades—before returning to Libya in 2011.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issuesSign 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.