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Defense Counsel: 9/11 Case Halted, Pending Change in Judges’ Assignment Rule

Wednesday, February 25, 2015 at 3:14 PM

Wow.  This just in from J. Connell III, an attorney for 9/11 defendant Ammar al-Baluchi:

WASHINGTON, DC-Today, a military commissions judge ordered a halt to the 9/11 case at Guantanamo Bay because Department of Defense officials tried to unlawfully influence the military commissions judiciary.  The order, known as “abatement,” means that no further proceedings will take place until the DOD rescinds a controversial order for military commissions judges to move to Guantanamo.

On December 9, 2014, Major General Vaughn Ary, U.S.M.C. (Ret.), the “Convening Authority” in charge of the military commissions at Guantanamo, sent a memorandum to Deputy Secretary of Defense Robert Work asking him to require military commission judges to relocate to Guantanamo Bay “to accelerate the pace of litigation.”  On January 7, 2015, the Deputy Secretary of Defense issued the rule change requested by the MajGen Ary.

On January 30, defendants in the 9/11 case filed a motion to dismiss the case for unlawful influence over the military judiciary.  “Unlawful influence, an issue in some military cases with no direct analogue in the civilian courts, occurs when a government official attempts to influence the action of a military judge,” said Lt Col Sterling Thomas, a U.S. Air Force Judge Advocate General detailed to represent Ammar al Baluchi in the military commission.  In their motion, the defendants argued that the rule change was increased “the personal cost to military judges of time between hearings, as the military judges must spend that time at Guantanamo Bay rather than their current place of residence.”

On February 25, 2015, Chief Judge Colonel James Pohl, U.S. Army, ruled that the actions by the Deputy Secretary of Defense, on the recommendations of the Convening Authority, constitute at least the appearance of an unlawful attempt to pressure the military judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion, thereby compromising the independence of the military judge.  Military Judge Pohl ordered “abatement” of the case until the rule change is rescinded by the proper authority.   The prosecution has five days to appeal the new order, if it chooses to do so.

“The military commissions have been plagued by intrusions by the FBI, CIA, and now senior DOD officials,” said James Connell, civilian attorney for al Baluchi.  “It would not surprise me if the administration seizes on this latest problem as an excuse to move the cases back to the civilian courts.”  In April 2014, the military commission learned that the FBI had recruited a defense team member as a confidential informant, and earlier this month, a temporary courtroom interpreter was revealed as a former CIA contractor.

A public version of the defendants’ motion (AE343) is available at  Today’s order is still under seal.

Steptoe Cyberlaw Podcast, Episode #55: An Interview with Nuala O’Connor

Wednesday, February 25, 2015 at 2:40 PM

In Episode 55 of the Cyberlaw Podcast, we revive This Week in NSA to explore the claim that GCHQ stole mass quantities of cell phone encryption keys.  Meanwhile, Jason explains the complex political battles over Rule 41, Michael explains why so many

Nuala O’Connor, Stewart Baker, and Jason Weinstein

Nuala O’Connor, Stewart Baker, and Jason Weinstein

companies have rallied to Twitter’s first amendment claim against the Justice Department, and both of them explain how Yahoo! managed to beat the government’s indefinite gag order – and why Yahoo! might even be right.  After which we melt down into the bottomless hot mess of liability and litigation that surrounds the Lenovo/Superfish/Komodia/Lavasoft flap.

Our interview is with the charming and feisty CEO of the Center for Democracy and Technology, Nuala O’Connor.  Nuala and I square off over end-to-end encryption, privacy, and section 215, while managing to find common ground on TLS and even child-rearing.

As always, send your questions and suggestions for interview candidates to [email protected] or leave a message at +1 202 862 5785.

Senate Commerce Committee Hearing on “Preserving the Multistakeholder Model of Internet Governance”

Wednesday, February 25, 2015 at 9:55 AM

The Senate panel, led by Chairman John Thune (R-SD), will discuss internet governance matters this morning at 10:00 a.m. A livestream can be found at the Commerce Committee’s website; we’ll post embedded video if it is available.

The witnesses (with links to testimony):

  • Ambassador David Gross
    Partner, Wiley Rein LLP, and former U.S. Coordinator for International Communications and Information Policy, U.S. Department of State
  • Mr. Lawrence Strickling
    Assistant Secretary for Communications and Information and Administrator
    National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce



Book Review: The China-Pakistan Axis: Asia’s New Geopolitics by Andrew Small

Published by Oxford University Press (2015)
Reviewed by Bruce Riedel
Wednesday, February 25, 2015 at 8:26 AM

In December 2006, the Chinese People’s Liberation Army and the Pakistani Army conducted their first-ever joint counterterrorism exercises — practicing intelligence collection and sharing, special forces tactics, and other military operations to enable them to jointly fight terrorism five years after 9/11.  The Pakistanis hosted the exercise at their national military academy in Abbottabad, just north of the capital of Islamabad.  The exercise was a political symbol as well as a military and counterterrorism event:  it symbolized the “all weather” friendship of Islamic Pakistan and Communist China.

Meanwhile, just a half mile from the Kakul Military Academy, the most-wanted terrorist ever, Osama Bin Laden, was enjoying the new hideout he had moved into the year before.  Bin Laden no doubt followed the procession of helicopters over his lair, as senior Pakistani and Chinese dignitaries flew from Islamabad to Abbottabad to attend the exercise and laud the Chinese-Pakistan entente.  High value target number one was in Pakistan’s front yard as it discussed fighting terror with its closest ally.

Now we have an authoritative study of that pivotal entente.  Andrew Small’s The China-Pakistan Axis:  Asia’s New Geopolitics is a concise and informative study of one of the world’s most important state-to-state relationships.

The Beijing-Islamabad axis has its roots in the 1962 Sino-Indian war.  The rapid defeat of Indian forces in 1962 by the PLA was closely studied by India’s arch-rival.  The dictator in charge in Pakistan in 1962, Field Marshall Ayub Khan, tried to extort concessions from India on the Kashmir dispute during the war, but President John F. Kennedy told Ayub the U.S. would not tolerate Pakistan blackmailing India in its hour of weakness.  After the war Ayub tilted Pakistan increasingly toward China.

Pakistan’s next dictator, Yahya Khan, made possible Richard Nixon’s opening to China.  The Pakistani channel was the key to Henry Kissinger’s secret diplomacy with Mao Zedong.

Pakistan’s third dictator, General Zia ul Huq, moved the country ever further toward China.  Secret collaboration on nuclear weapons gave Zia the bomb and missiles to deliver them.  China provided the bulk of the arms for the mujaheddin fighting the Soviets in Afghanistan — arms paid for by the CIA and the Saudis.  If America was the quartermaster of the mujahedeen, then China was their armorer.

Small provides a well-researched account of how this axis emerged, offering a sharp focus on the nuclear dimension.  He has drawn on extensive interviews in both China and Pakistan as well as thorough research in the memoirs of the players involved.  The book is a wealth of data on a previously under-researched subject.

While geopolitics and arms are the core of the axis, extensive efforts at building economic infrastructure and trade have largely been expensive failures.  The Gwadar port development project on the Arabian Sea, for example, has not produced a Pakistani Dubai or a Chinese Gibraltar.  The Karakoram Highway linking China to Pakistan is an amazing engineering accomplishment, but there is little truck traffic on the road.  Economics don’t drive this relationship.

Terrorism is the biggest hurdle in the axis.  Pakistan is home to China’s top terrorist enemy, the East Turkestan Islamic Movement (ETIM), which fights for Uighur freedom in Xinjiang.  As Small relates, American drones have done far more damage to ETIM than Pakistan’s Inter Services Intelligence spies.  Indeed, the ISI plays many of the same games with the Uighurs that it does with Al Qaeda.  Al Qaeda and ETIM enjoy very close connections, according to Small’s research.

Beijing and Islamabad manage these tensions for the sake of their larger geopolitical goals.  As America exits Afghanistan, the China-Pakistan axis is preparing for the next phase in the great game in Central Asia.  This past January, when President Barack Obama traveled to India to watch the Republic Day parade in New Delhi with Prime Minister Narendra Modi, the Pakistani Chief of Army Staff General Raheel Sharif, the country’s strong man, was in China meeting his counterparts.  The geopolitics of Asia was on vivid display.   The region’s dual axes and their evolving relationships — India and America on the one hand, and Pakistan and China on the other — will be central to the global order in our times.

(Bruce Riedel is Director of the Intelligence Project at the Brookings Institution. His most recent book is What We Won: America’s Secret War in Afghanistan, 1979-1989.)

Today’s Headlines and Commentary

Tuesday, February 24, 2015 at 1:41 PM

Islamic State militants abducted some 70 to 100 Syrian Christians yesterday in a series of raids in Hassakeh province. Neighbors, friends, and relatives are unsure who has been taken or what will be their fate. According to the Associated Press, the targeted Assyrian group “trace their roots back to the ancient Mesopotamians.”

Newly installed Defense Secretary Ash Carter noted yesterday that “he doesn’t think the administration’s current strategy [toward the Islamic State] needs a fundamental overhaul.” Instead, the plan could use some sharpening and refining. Defense One has more on the Secretary’s remarks from Kuwait.

Reuters shares a special report on Hashid Shaabi, a newly formed and “secretive branch of the Iraqi government,” which “takes the lead in many of Iraq’s security operations.”

Pro-Russian separatists in eastern Ukraine say they are now willing to abide by the terms of a ceasefire negotiated earlier this year in Minsk. According to Reuters, fighting appears to have stopped, following a bitter battle last week for control of the strategic transport town Debaltseve, which rebels seized in seeming contravention of the ceasefire. Ukrainian officials emphasize that the militants are only obeying the terms of the agreement now so that they can build up their forces and weapons.

Foreign ministers from Ukraine, Germany, France, and Russia met in Paris today and reaffirmed their commitment to the Minsk ceasefire. Agence France-Presse points out that the European leaders were unable to agree on how to respond to the fighting in Debaltseve.

The Wall Street Journal reports that American and Iranian nuclear negotiators are working on a deal that would keep the Islamic Republic’s nuclear capabilities a year away from the development of a bomb for a period of ten years. This proposed timeline tracks largely with Iranian demands, as American negotiators had sought to establish a “breakout period” of twenty years.

The Wall Street Journal also examines the tensions inherent in the U.S. alliance with Qatar, a Persian Gulf nation known for its ties to militant groups, such as Hamas, the Taliban, and the Islamic State.

U.S. weapons manufacturer General Atomics is poised to sell the United Arab Emirates (UAE) eight unarmed Predator drones and associated equipment. According to Bloomberg News, the State Department has approved the transaction and all that is needed now is congressional sanction. The UAE would be the first non-NATO ally to buy drones from the U.S.

Although U.S. drone strikes in Afghanistan and Pakistan have traditionally endured significant criticism within the two countries targeted, a number of Afghan officials have recently praised the strikes, calling them “essential for effective intelligence operations.” Afghanistan’s TOLOnews shares their statements.

The Washington Post describes a law enforcement surveillance device, known as StingRay, which “simulates a cell tower” by drawing in signals information from mobile phones nearby. StingRay’s accuracy and effectiveness are remarkable, but it is unclear how the device comports with the Fourth Amendment’s guarantee against unreasonable search and seizure. “A gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public, and criminal defendants in the dark on how the tool works.”

Yesterday, a federal jury in Manhattan found both the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) guilty of supporting terrorist attacks in Israel. Under the U.S. Anti-Terrorism Act, American citizens may bring suit in federal court for damages sustained as a result of acts of international terror. The Post notes that in this case, “it is unclear whether the plaintiffs can ever collect.”

“Amid the exploding use of smartphones, social media, and other technologies,” CIA Director John Brennan intends to expand and reorganize the agency’s cyber-espionage operations and capabilities. The Post describes in more detail.

New America, Arizona State University, and Defense One have partnered to launch a new series on 21st century warfare. The project, entitled “The Future of War,” will feature reporting and analysis on “the new trends, technologies, and forces shaping war.” Defense One shares the project’s first post.

Following their Oscar win for Citizenfour, Laura Poitras, Glenn Greenwald, and Edward Snowden yesterday held an Ask Me Anything discussion on Reddit, during which they took questions and comments from users. See their conversation here.

ICYMI: Yesterday, on Lawfare

Tim Edgar questioned the notion that Europeans care more about privacy-related issues than Americans do.

Cody shared a statement from Chief Prosecutor Mark Martins in advance of this week’s Al Nashiri motions hearings.

Sebastian Brady compiled video footage from last week’s White House Summit on Countering Violent Extremism.

Jane Chong considered the power that journalists wield through their discretion over publishing information provided by leakers and whistleblowers (such as Edward Snowden).

Mira Rapp-Hooper analyzed China’s development of the Spratly Islands and international law.

Ben and Cody brought us the real story behind Citizenfour’s Oscar victory.

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.

Making Progress on the Encryption Debate

Tuesday, February 24, 2015 at 1:24 PM

In a recent debate between NSA director Mike Rogers and Yahoo Chief Information Security Officer Alex Stamos, the topic of law-enforcement restricted access to encrypted communications once again came up.

To summarize the debate as it has been expressed to date, one side believes in encryption that only the user can decrypt. Those on this side of the debate (call it Side A) include large technology companies such as Apple, Yahoo, Google, and Microsoft and also privacy advocates such as the ACLU and EFF. Those on the other side of the debate (call it Side B) acknowledge the value of strong encryption to protect confidential information, but want to be able to decrypt to the underlying information without the user’s knowledge or consent when they are legally authorized for such access. Those on Side B include the FBI and the Justice Department.

Side B proposes a technological solution to the problem—a mechanism to decrypt the information that can be accessed by law enforcement authorities and no one else—this is often known as a NOBUS solution, where “nobody but us” (NOBUS) can gain access. (According to the report of the debate referenced above—the NSA believes in the technological feasibility of a NOBUS solution.)

Side A argues that it’s already hard enough to build secure systems and that introducing a NOBUS solution will inevitably make the system vulnerable to unauthorized access to the decrypting mechanism. That is, they argue that technological impossibility of having access that is limited only to law enforcement authorities, and thus that NOBUS is not an appropriate feature (or bug, depending on how you see it) to introduce into any encryption system.

The debate—now 20 years old (think Clipper chip)—is entirely polarized, because there is no common ground in the middle. But when I unpack the claims on both sides, I find a real conceptual mess. No one taking Side A can provide a proof that the NOBUS mechanism will eventually become available to unauthorized parties. No one taking Side B can provide a proof that it is possible to build a tamperproof mechanism for NOBUS access. And so the argument continues to rage, as a clash of absolutes.

But the real technological issue is one of time scale. It is probably true that NOBUS access can’t be kept secure forever. But it doesn’t need to be kept forever. If a way to break NOBUS access takes 1000 years to develop, then it doesn’t matter. If NOBUS access lasts for 1 minute, then it’s clearly not workable. So somewhere between 1000 years and 1 minute, there’s a threshold (a fuzzy threshold with big error bars, to be sure) where the idea of NOBUS making sense technically changes over to not making sense.

Viewed in these terms, it seems to be a problem of risk management, namely “For any given NOBUS mechanism, how might one estimate the period that it might plausibly remain secure, and what are the error bars around that estimate?” If we had such numbers, we might be able to make reasonable decisions about whether a given NOBUS mechanism might be technologically feasible or not.

Taking this approach has the virtue of separating the values issue from the technical issue. Some (maybe many) on Side A are opposed in principle to the idea of any access to encrypted communications that are not authorized by the user. Others may favor Side A primarily because they do not believe that NOBUS is a viable technical approach, but would go along with Side B if it were.

[Note added after initial post.] I should also point out that NOBUS access does not necessarily presume that the holders of the encrypted data will have the ability to decrypt it. Thus, the tech companies will not themselves be able to decrypt data if and when other countries demand access.]

So I would propose that the debate move forward in the following way. Side B proponents should propose a specific NOBUS mechanism, much as they once did in the 1990s with the Clipper chip. And they should present an analysis that says why the mean time to compromise is closer to 1000 years than to one minute. Once that proposal is in hand for public scrutiny, Side A should show why the mean time to compromise is closer to one minute than to 1000 years. The analyses of Sides A and B can thus be compared. If it turns out that A’s analysis is more plausible than B’s, we can refrain from considering that mechanism further. If it turns out that B’s analysis is more plausible than A’s, then we can have an argument that is centered on the values proposition and not obscured by a technical smokescreen.

From my perspective, this would be progress.

Live: Benjamin Wittes and Michael O’Hanlon Take Questions on AUMF

Tuesday, February 24, 2015 at 10:30 AM

At the top of the hour, Brookings Senior Fellows Benjamin Wittes and Michael O’Hanlon will host a live webcast to discuss the president’s newly proposed Authorization for the Use of Military Force against the Islamic State in Iraq and the Levant, the legal issues involved, and the security stakes in the region. Ben and Michael will also take questions from the online audience.

Follow the live webcast here. Or, you can watch below:

Spreecast is the social video platform that connects people.

Check out Brookings experts on AUMF against ISIS on Spreecast.

Expanding on the International vs. U.S. Surveillance Law Comparisons

Tuesday, February 24, 2015 at 10:00 AM

Following my post from last week  regarding how the debate over the Snowden disclosures has blurred the distinctions between national security surveillance authorities and consumer privacy law, Tim Edgar pointed out yesterday  that U.S. law is probably one of the most, if not the most, protective legal structures concerning government access to data for national security purposes than any other nation. Tim’s post invites additional analysis of international surveillance laws versus U.S. laws.

Some time ago, I had looked more in-depth at a few of the reports and comparisons Tim highlights. Here is some of what I found, followed by a cursory summary of certain aspects of the oversight implemented under FISA:

Two reviews done after the Snowden disclosures provide some insight into other countries’ national security surveillance laws and practices. In June 2014, global communications provider Vodafone released a law enforcement transparency report that included statistics regarding its compliance with government requests, as well as a legal annex analysing the laws requiring cooperation in 29 different countries.[1] The report covered disclosure for law enforcement and national security purposes, to the extent that the laws of a particular country allowed disclosure. Even for law enforcement requests, many local laws prohibited Vodafone from disclosing any information regarding compliance.[2]

The second report, issued by the Center for Democracy and Technology (CDT) in November 2013, analyzed the laws in 13 countries. Of the 29 countries covered by the Vodafone report and the 13 countries covered by the CDT report, six countries were covered by both reports: Australia, France, Germany, India, Italy and the U.K. To further complicate the analysis, even where recent research has attempted to find clarity, what different countries’ laws state in text, may vary from how the law is actually being implemented.[3]

The Vodafone report’s legal annex summarizing the laws in the 29 countries reveals that, with possible[4] limited exceptions, all of the countries assessed authorize surveillance for national security purposes based on ministerial, or what would be comparable to our executive branch, authority. For example, with respect to several of the countries that are more relevant to the current public debate, Australia, France, Germany, India, Netherlands, New Zealand, Turkey and the U.K. all appear to provide for ministerial approval of national security surveillance within their country. Unlike national security surveillance conducted inside the United States, approval by a neutral and detached magistrate is not required in those countries. Notably, German law provides for not only individualized surveillance, but “strategic interception” that appears broad in scope and allows the government to target a particular geographic region, not just an individual, organization or entity. German law also appears to authorize surveillance against a person other than a suspect (referred to as a “third person”) if the person is “reasonably suspected of receiving or forwarding messages intended for, or stemming from, the suspect.”[5]

In some circumstances, the Vodafone legal annex describes the absence of legal authority providing for national security surveillance in a particular country. While it is possible that this absence of law indicates that that country’s government is not permitted, and does not, engage in surveillance for national security purposes, it is also just as possible, if not more likely, that the absence of law indicates that the security or intelligence service has wide latitude to engage in national security or foreign intelligence surveillance. Further, there are some countries that require a provider, such as Vodafone, to provide direct access to their systems enabling the government to conduct surveillance via direct link. Most, but not all, of the countries covered in the Vodafone report, require a court order issued by a judge for surveillance conducted for law enforcement purposes. Read more »

The Tricky Issue of Severing US “Control” Over ICANN

Tuesday, February 24, 2015 at 5:30 AM

I have written an essay for Hoover’s The Briefing series entitled The Tricky Issue of Severing US “Control” Over ICANN.  Tomorrow the Senate Commerce, Science, and Transportation committee will have an important hearing on this subject.  The hearing is specifically about the Commerce Department’s planned relinquishment of contractual control over the Internet’s domain name system in favor of ICANN independence over the matter.  The Commerce Department announced its intentions about a year ago.  But Congress late last year “intervened” (as Paul wrote) with a law that banned the Commerce Department from using appropriated funds “to relinquish the responsibility … during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.”  Independent of Congress’s intervention, the transition has not gone well because no one has yet been able to come up with a convincing mechanism to ensure ICANN accountability on Internet naming and numbering once the USG relinquishes its official involvement.  (Paul has written insightfully on this subject, as noted above, and here and here.)

I was originally motivated to write the Hoover essay in response to a long series of essays by Gordon Crovitz, a fierce critic of the transition.  I think Crovitz exaggerates the dangers of authoritarian states taking over the naming and numbering system.  “The worry with an independent ICANN,” I maintain, “is less that it will be overrun by authoritarian states than that it might be captured in more subtle and unpredictable ways by public and private interests that might push it to regulate in any number of directions, perhaps far beyond mere naming and numbering, and not necessarily in ways that promote a well-functioning or open Internet.”  I also think Crovitz exaggerates both the role of the United States in keeping authoritarian states at bay, and the virtues of U.S. control over the system for an open and free Internet:

Crovitz’s insistence that “American oversight protects the engineers and network operators who manage the Internet from political interference” is belied by the one instance when ICANN obviously caved to political pressure — by the United States.   A decade ago ICANN tentatively approved the .xxx top-level domain name in accordance with its policies.  The US government, under pressure from domestic groups and foreign governments, threatened to use its contractual rights to override ICANN’s decision, and the ICANN board buckled.  This is precisely the kind of overbearing government influence that Crovitz worries about from authoritarian states.  Yet the threat came from the United States, not an authoritarian state, and it was more credible than typical governmental rants against ICANN precisely because of the US contract with ICANN that Crovitz thinks is the key to ICANN independence and accountability.

All that said, in the end I came to agree with Crovitz that very serious unanswered questions remain about the transition, and that “[u]ntil an obviously satisfactory solution emerges, Congress … is quite right to leverage whatever uncertain power the United States has over ICANN via contract.”

The Real Story Behind Citizenfour’s Oscar

By and
Monday, February 23, 2015 at 4:21 PM

Like a lot of Lawfare readers, we were pretty surprised by Citizenfour‘s triumph at the Oscars last night. It wasn’t just that there was Glenn Greenwald, foe of all things mainstream, holding—of all things—that picture of establishment respectability, the Oscar. It was, more importantly, the question of who the heck decided to honor this paranoid and self-congratulatory film? At first, we thought the explanation must be the politics of Hollywood. That was before we took a close look at the photo of Greenwald holding the Oscar.

Untitled design

You might not notice it in the elegant zoomed-out photo of Greenwald and filmmaker Laura Poitras (top left). But at the suggestion of an anonymous source who contacted Lawfare through our InSecureDrop communications system, we zoomed in on the Oscar itself (top right) and something odd became visible on the base of the trophy. When we zoomed in more, it looked like there was some kind of a microchip embedded in the base of the Oscar. Or something.

Now who would install some kind of electronic device in an Oscar to put it in the hands of Glenn Greenwald and Laura Poitras? As they say in The Usual Suspects, it has to be “Somebody with power. Somebody who was capable of tracking [them] to L.A.”

It has to be someone who knows how to interfere with supply chains and turn anything into a surveillance device.

You see where we’re going with this.

Of course, we have no actual evidence that the NSA engineered the Citizenfour Oscar in order to put a listening device into the willing hands of its most implacable foes. Making that up will be tomorrow’s project.

Is China Reclaiming the Law of the Sea?

Monday, February 23, 2015 at 4:00 PM

The Asia Maritime Transparency Initiative has released a special issue on land reclamation and development activities in the South China Sea. As part of its ongoing effort to promote transparency in maritime Asia, AMTI obtained exclusive, never-before-published, imagery of China’s recent building efforts in the Spratly Islands. The collection of exclusive photographs includes coverage of developments on Mischief Reef, Fiery Cross Reef, Johnson South Reef, Cuarteron Reef, Hughes Reef, and Gaven Reef, all located in the Spratlys. These high resolution photos capture the scale of Beijing’s building activities, much of which have taken place in only the last year. The images also demonstrate that many of the structures that China is building on its new artificial islands appear to be similar, as though it is rolling out a systematic plan across these six land features. In addition to viewing these photos on an interactive map, you can also watch some of these Spratly features transform before your eyes through a “before-and-after” interactive.

Beyond this visuals, AMTI’s current analysis also draws some important connections between China’s development activities and international law. Before examining these, however, it is necessary to start with a bit of history. There are six countries that claim land features in the Spratly Islands. Taiwan was the first to establish a presence there, taking the largest island, Itu Aba, when the Japanese gave it up at the end of World War II. Taiwan has since built a military base and an airstrip on Itu Aba, and this is the only feature in the Spratlys that it holds. Vietnam, the Philippines, and Malaysia also established their presence in the Spratlys between the 1950s and 1970s, and Vietnam holds the most land features. China was the last to arrive in the area, establishing a presence there in 1988 after it used force to eject Vietnamese soldiers from Johnson South Reef. By the time it did so, the other claimants had occupied the islands and rocks in the area, and it was left with 7 reefs or partially submerged features.

In the last year, China has undertaken extensive efforts to transform at least 6 of these 7 reefs into artificial islands. China is not the only Spratly claimant to have engaged in serious construction efforts. Indeed, Taiwan, Malaysia, the Philippines, and Vietnam have all performed significant construction of some sort on the features that they occupy. Moreover, other claimant states have airstrips in the Spratlys, while it is presumed that China will acquire its first this year. China’s South China Sea development activities are, however, unprecedented in their size and scale. This, in turn, raises concerns among other states in the region and the United States about China’s territorial and maritime intentions. Moreover, these efforts have potentially far-reaching implications for international law. Read more »

Mysterious Discretion: When Journalists Wield Power We Don’t Understand

Monday, February 23, 2015 at 2:00 PM

Last night, Laura Poitras’s Citizenfour received an Academy Award for Best Documentary Feature, a win I have been anticipating since Glenn Greenwald won the Pulitzer Prize back in April for breaking the Edward Snowden leaks.

In honor of the occasion, let’s reflect on the single most compelling moment in Citizenfour. I am talking about the moment in the film when the question of journalistic discretion is raised and left unexcavated—when Snowden admits to Poitras and Greenwald that some of the documents he is handing them “are legitimately classified” but indicates that he believes they are in a better position than he to gauge what should be released. “I trust you’ll be responsible,” Snowden says.

Shortly after Citizenfour was released to audiences last October, critics like Fred Kaplan of Slate pointed to these and similar statements made by Snowden on other occasions as indicative of “a gigantic evasion” of personal accountability. I see Snowden’s comments a little differently: not as evidence of him “abrogat[ing] all responsibility” but as key insight into our outsized trust in the journalist in the age of the hacker-leaker.

I get it, without necessarily agreeing with it, this tendency of ours to expect whistleblowers and leakers to be ready and able to run the ball to the end zone as a condition of running the ball at all. After all, the Snowdens of the world should not be excused from thinking through the enormous ramifications of their decisions. But I don’t find it ethically baffling that a leaker would decide to entrust sensitive documents to a journalist whose work he has long respected. Rather, I wonder about the place from which such trust derives. I wonder whether we have come to conflate journalism with truth-telling, and whether the inherent nobility of the profession has come to obscure the simple reality that its individual members—like members of any other profession—are driven by their own distinct agendas and ambitions.  Read more »

The White House Summit on Countering Violent Extremism

Monday, February 23, 2015 at 11:45 AM

Last week, the White House convened a summit on countering violent extremism. The summit took place over three days and featured remarks by Obama administration officials, global leaders, law enforcement representatives, local activists, and President Barack Obama, among others. Below the fold, we’ve compiled video from the event. Read more »

Chief Prosecutor Statement on This Week’s Hearing in the al Nashiri Case

Monday, February 23, 2015 at 11:00 AM

Per our usual practice, Lawfare will be posting digests of the Al Nashiri military commission proceedings—which resume today at noon—throughout the week.

First up is the statement by Brig. Gen. Mark Martins, which you can find below:

Today’s Headlines and Commentary

Monday, February 23, 2015 at 10:50 AM

Nuclear talks between the United States and Iran continued today in Geneva. The New York Times points out that these talks are the first time that the “top nuclear officials” from both nations have joined their diplomatic counterparts at the negotiating table.

But there may be a bump in the road. Bloomberg informs us that, fifteen years ago, the CIA passed doctored blueprints of Iran’s alleged nuclear weapons program to the IAEA in an attempt to pressure the UN to impose sanctions against the country. The revelations come as a result of the trial of Jeffrey Sterling, who was convicted earlier this year of violating the Espionage Act when he leaked classified information about American attempts to undermine Iran’s nuclear infrastructure to journalist James Risen.

And that’s not all that may call into question the success of the ongoing nuclear talks. Earlier this month, The Intercept reported on a document that reveals a worrying growth of cyberwarfare between the United States and Iran. The Times now covers the importance of the document, and fills in some of the gaps that were left open: it’s now been confirmed that Iran’s cyberattacks against American targets came as direct retaliation for American attacks against Iran’s nuclear infrastructure.

New defense secretary Ash Carter wrapped up his time visiting Afghanistan without announcing any clear policies on U.S. presence in the region. The AP explains that Carter is preparing recommendations for President Obama about the future of American presence in Afghanistan, but declined to answer direct questions from reporters about the pace of U.S. military withdrawal.

On Saturday, the terrorist group Al-Shabaab released a propaganda video in which the group called for the direct targeting of shopping centers in the United States and the United Kingdom. The Guardian reports on how American and British security services responded to the threat. Meanwhile, CNN has a helpful primer on the history and organization of Al-Shabaab.

The Islamic State also released its own propaganda video over the weekend which shows Kurdish fighters caged and abused. The Telegraph tells us that IS’ most recent video is meant to instill fear into Kurds, and to warn them against fighting alongside the American-backed campaign against the Islamic State.

Reuters reports that Australia appears to be a likely purchaser of U.S. drone technology. Australian air force personnel arrived in the United States last week to begin training on armed drones, but according to the Australian defense department, no final decision has been made as to if Australia will definitely purchase any American drones.

Before heading to Geneva for the nuclear summit with Iran, Secretary of State John Kerry was in London to discuss the U.S. and its European allies’ next steps with regard to Russia and the ongoing Ukrainian conflict. Reuters explains that Kerry did not make any definitive pronouncements about what might come next, but instead indicated that President Obama will likely make an announcement in the coming days on heightened sanctions against Russia.

Gil Troy over at The Daily Beast, hopped on the “Do Americans value privacy?” opinion-piece train this weekend, addressing the fine balance between a new type of online “exhibitionism” measured against a deeply American-rooted desired for privacy. Ultimately, Troy argues, it’s on us to demand more of our government and internet service providers: American complacency has become the biggest risk to our personal security.

Last week, we covered the details of the “Equation Group” and its abilities, to use Bruce’s words, to “embed spyware deep inside computers, gaining pretty much total control of those computers while maintaining persistence in the face of reboots, operating system reinstalls, and commercial anti-virus products.” Wired takes a look at the hacking network, which most believed was developed and is in use by the NSA, and tells us what might be so troubling about it.

In op-ed in the Times, David Cole argues that the CIA was treated “unfairly” in the aftermath of the SSCI torture report. Specifically, Cole pushes back against the repeated SSCI conclusions that interrogations that included torture tactics did not yield any helpful information in preventing terrorist attacks or helping to capture other individuals. Cole also talks about his piece over at Just Security.

Last night, Laura Poitras and Glenn Greenwald’s documentary about Edward Snowden, Citizenfour, won the Academy Award for Best Documentary. Many of us at Lawfare haven’t seen the documentary feature, but here’s the Daily Beast’s lukewarm review back from October.

ICYMI: This Weekend, on Lawfare

Carol R. Saivetz penned this week’s Foreign Policy Essay, focusing on the conflict in Ukraine. Saivetz explains in detail why Russia has pushed such an aggressive policy in Ukraine, and recommends that the United States “proceed cautiously” in addressing the situation.

John takes us inside a Hamas attack tunnel leading from Gaza into Israel.

In our most recent podcast episode, we – finally – feature Ben’s September keynote address at the NSA on Constitution Day.

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

Why Should We Buy Into The Notion That The United States Doesn’t Care About Privacy?

Monday, February 23, 2015 at 8:23 AM

It is a common perception that Americans care less about privacy than Europeans, especially after the attacks of September 11, and the Snowden revelations only seemed to reinforce that perception. Last week, President Obama argued that European privacy complaints are really about something else. Europeans, he said, may simply be using privacy fears as a way to protect domestic companies against Google, Facebook, and other American firms that dominate the high technology industry.

This idea is not new; it was a common refrain I heard in the White House early in Obama’s presidency.   There even may be some truth in it. However, instead of questioning European motives, it would be more productive to set the record straight about how the United States stacks up against the rest of the world, including Europe, when it comes to controlling its intelligence agencies.

It is a mistake to think that European privacy objections to the practices of the NSA and Silicon Valley are simply a cynical mask for protecting domestic companies. They embody a deep European commitment to fundamental rights and the rule of law—values that are shared by the United States—and an understanding that these values require an enforceable set of rules to protect personal data.

The real issue is—what rules?

As my old colleague Carrie Cordero explained last week, Europe does have more comprehensive consumer privacy rules than the United States. She rightly points out that it does not make sense to compare European consumer rules for privacy and data protection with the American regime for overseeing national security surveillance. That is comparing apples to oranges. However, instead of simply objecting to the unfairness of this comparison, let’s compare apples to apples. How does American intelligence oversight stack up next to European intelligence oversight?

Here, the record is clear: the United States wins, hands down. A comprehensive analysis of worldwide surveillance laws undertaken by the Center for Democracy and Technology shows just how little is required in most countries around the world, including in Europe, for undertaking national security surveillance.   For example, under the UK’s Regulation of Investigatory Powers Act (RIPA), such surveillance can be obtained with the approval of a Secretary of State. Germany authorizes such surveillance through a parliamentary committee. These safeguards, structurally inferior to the court orders required by FISA, have been determined by European courts to satisfy the fundamental liberties required by the European Convention on Human Rights.  Read more »

The Week That Will Be

Monday, February 23, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, February 23rd: At the Ronald Reagan Building and International Trade Center, the New America Foundation will host a conference on Cybersecurity for a New America: Big Ideas and New Voices. In addition to featuring keynote remarks by Admiral Mike Rogers, Director of the National Security Agency, this event will convene experts and practitioners from the public and private sector, military, media, academia, non-governmental and intergovernmental organizations for a series of discussion panels and first person “pop-up” style speeches on a wide range of cybersecurity issues. For more information on panels and speakers, visit the event announcement.

Tuesday, February 24th and Wednesday, February 25th: Arizona State University and the New America Foundation will launch its Future of War Project with a two-day Future of War Conference. The theme of the conference is “How is Warfare Changing?” and throughout the two days, panelists will explore three sub-themes: “How are emerging technologies and strategies redefining the practice of war?”; “Are we living in a forever war?”; and “Can we better understand how warfare is evolving by reflecting on history?” CNN will live-stream panels on RSVP.

Wednesday, February 25th at 11:30 am: The House Committee on Homeland Security will host a hearing entitled Examining the President’s Cybersecurity Information Sharing Proposal. Department of Homeland Security Under Secretary Suzanne Spaulding, DHS Deputy Under Secretary Phyllis Schneck, and Congressional Research Service Senior Specialist Eric Fischer will testify. More information is available at the committee website.

Thursday, February 26th at 10 am: The House Armed Services Committee will hold a hearing to gather Outside Perspectives on the President’s Proposed Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant. Benjamin Wittes, General Jack Keane (Ret.), and Bobby Chesney will testify. More information is available at the committee website.

Friday, February 27th at 9 am: The Brookings Institution will host a two-part seminar entitled China’s Security and Foreign Policies: Comparing American and Japanese Perspectives. Over two sessions, leading China specialists from the United States and Japan will examine the factors that drive China’s policies and outline the implications those actions will have on the policies of the United States and Japan. For a full list of panelists and the agenda, visit the Brookings event announcement.

The Foreign Policy Essay: Much Ado about Ukraine

Sunday, February 22, 2015 at 10:00 AM

Editor’s Note: Russian support for separatists in eastern Ukraine and the civil war that has ensued have raised fears of a new Cold War. Indeed, many senior American and European officials have called for arming Kyiv against the Russian threat. Carol Saivetz of MIT explains why Russia is fomenting strife in Ukraine and calls for more support to bolster Ukraine’s fledgling democracy.


Over the past fourteen months, the confrontation in Ukraine has gone from a diplomatic standoff to a military conflict. The crisis has intensified in recent weeks as pro-Russian separatists, aided by Russian troops and heavy equipment, attacked and secured the Donetsk airport and generally expanded the territory under their control. In response to Russia’s escalation, the Obama administration is considering providing military equipment to Kyiv. What brought us to this point?

NATO expansion—both the earlier inclusion of the Baltic states and talk of possibly including Ukraine and Georgia—was the “background noise” to the conflict. We saw this in Putin’s 2007 infamous Munich speech, in which he excoriated NATO for expanding to the Baltic states, and in the 2010 and 2014 Russian military doctrines. It was also visible after the 2008 Georgian war, when then-President Dmitry Medvedev declared the post-Soviet space a “zone of privileged interests.” But, by itself, NATO expansion does not explain why Ukraine and why in late 2013. There are several other drivers of Russia’s Ukraine policy.

Carol Saivetz photo with borderFirst, Russian president Vladimir Putin has made creation of the Eurasian Union, supposedly a customs union and common market, a priority of his third term. (The three original signatories—Russia, Kazakhstan, and Belarus—have been joined within the past few months by Armenia, and Kyrgyzstan is finalizing its accession.) Indeed, as the second-largest economy in the former Soviet space, Ukraine would seem to be vital to the success of any integrative process. Russia, using both carrots and sticks, tried to lure Kyiv into the union and sought to prevent Ukraine from acceding to the European Union’s Association Agreement. The latter would allegedly hinder trade within the post-Soviet space and would flood Russia with re-exported European goods.

Second, Putin fears the so-called color revolutions—Rose (Georgia, 2003), Orange (Ukraine, 2004), and Tulip (Kyrgyzstan, 2005)—and the massive demonstrations of people power that swept the Middle East. Each of them in turn represented populations rising up to overthrow corrupt, undemocratic regimes. In this context, the EuroMaidan (the almost four-month long demonstrations on Maidan Square in downtown Kyiv) that began in November 2013 was not only emblematic of the power of the street, but also ultimately overthrew a corrupt pro-Russian ally of Vladimir Putin’s. One can only guess that Putin saw in former Ukrainian president Viktor Yanukovich’s overthrow what might await him. Indeed, this fear is reflected in the latest Russian military doctrine: at the top of the list of domestic threats is “violent attempts at changing the constitutional system.”

Third, status considerations seem to underlie Putin’s calculus. More than 15 years ago, Sergei Karaganov, allegedly one of Putin’s muses, argued that for Russia to be a great power, it first needed to be a regional hegemon. (See the discussion in Carol R. Saivetz, Making the Best of a Weak Hand: An Assessment of Current Trends in Russian Foreign Policy,” Post-Soviet Affairs, Vol. 22, No. 2, April-June, 2006) And Dmitry Trenin, well-known commentator and head of the Moscow Carnegie Center, wrote three years ago that “Russia has been trying hard to establish itself in the top league of the world’s major players and as the dominant power in its neighborhood.” One could of course wonder whether Russia can ever achieve these goals as corruption runs rampant, the economy stagnates, and it has now used persistent brute force against a neighbor. Read more »

Inside a Hamas Attack Tunnel…

Sunday, February 22, 2015 at 9:42 AM

As Yishai Schwartz and Jennifer Williams noted in their Middle East Tickler report on Thursday, Israel’s Military Advocate General hosted a conference outside of Tel Aviv last week on international law applicable to contemporary armed conflicts with non-state groups. The conference was attended by academics, NGOs, and military officers and defense officials from a dozen countries, including the U.S., U.K., Canada, Australia, Germany, Switzerland, Norway, Greece, and India. The presentations and discussions were balanced and thoughtful, focusing on the international law challenges for states in conflicts with organized armed groups like Al Qaida, Hamas, and the Islamic State.

IMG-20150218-00006A spooky highlight of the conference was a field trip to a tunnel apparently dug by Hamas (or an associated terrorist group) from Gaza into Israel near the village of Ein Hashlosha. Israeli Defence Forces discovered the unfinished tunnel in March 2014.  According to our IDF guides, the tunnel is more than 40 feet underground and is 2.5 km long, of which 1.1 km are in Israel. The passage is approximately 5.5 feet tall and 3 feet wide. It is lined with concrete, presumably diverted from international aid projects intended for Gaza’s civilians. In the category of a “picture is worth a thousand words,” here is a photo of the tunnel I took from my phone. (The builders of the tunnel rigged it with electricity and lighting, although the wires shown in this picture were added by the IDF after they severed the lines from Gaza.) It is a scary thing, and after seeing it, one can understand why Israel felt compelled to launch its military operation last summer to destroy the network of secret passages from Gaza into Israel (as well as to stop the then-escalating rocket attacks from Gaza).

The Lawfare Podcast: My Constitution Day Speech at NSA

Saturday, February 21, 2015 at 1:55 PM

In mid-September, I delivered the annual Constitution Day address at the National Security Agency.

I had meant to post the speech back then, except that it being NSA and all, I wasn’t allowed to bring my own recording equipment into the building and thus had to wait until the NSA folks released the audio of my own speech to me. This took a while—a long, long while, as it turned out.

For reasons still unclear to me, my speech had to go through a lengthy review before it could be released, even to its author. This was particularly odd, since the event was unclassified, since I am not cleared to receive classified information in any event, since I was free at any time in the interim to give exactly the same speech somewhere else, and since I requested only my own words—not the words of any NSA official or any of the Q&A.

In any event, five months later I am pleased to be able to provide the speech in full. The address itself covers some ground I have never spoken about elsewhere and some themes I am very interested in developing further. Specifically, it deals with the question of the complicated relationship between the intelligence community and the sort of neutral principles on which constitutional democracies normally operate. It explores just why so many people now struggle to trust the intelligence community, and concludes with three major challenges the community must address in order to maintain public confidence into the future. I would be very interested in reader and listener feedback and thoughts on these ideas.

On a personal note, yes,  I am fully aware that my critics will find my being the Constitution Day speaker at NSA amusing—all the proof they need both that I am in the tank for the agency and that the agency is only interested in hearing from, as ACLU technologist Chris Soghoian never tires of calling me, “self-described NSA apologists” like me.

So here’s my preemptive response: It was an honor and pleasure to give this speech before an agency in whose work I believe and whose workforce has taken a huge and largely unfair beating. I hope my comments stimulated thought and challenged people at the agency. And while people are free, of course, to decide that either the fact of the speech or its contents confirm whatever they already believed about me and NSA, I would hope they might instead—or in addition—engage some of the ideas I put forth.


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