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DNI Report on Implementation of Signals Intelligence Reforms: Some Highlights

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Sunday, February 8, 2015 at 8:14 PM

Last week the Office of the Director of National Intelligence released its 2015 Signals Intelligence Reform Report, designed to highlight the intelligence community’s implementation of Presidential Policy Directive (PPD)-28. The document is a mixed bag: There’s some aspirational, high-altitude language; the report also reaffirms previously known intelligence community views regarding the legality of certain operations and the importance of balancing intelligence collection with civil liberties and American alliance concerns abroad.

But there’s also more eye-catching stuff in here, too. The document notes a number of important changes, some announced by the President last January and undertaken since, as well as some more recent changes. I highlight some, but by no means all, of these below.

Before doing so, some context (as summarized by Ben following President Obama’s speech last January): PPD-28 and the accompanying review of signals intelligence and privacy protections was not meant as an overhaul of American intelligence law or collection methods. Indeed, President Obama has been largely supportive of these, and of the work of the intelligence community more generally. The idea was different: Instead, the President noted in his speech that the intelligence community, in order to be effective in the long-term, must “maintain the trust of the American people, and people around the world.” This is the benchmark by which the results of the IC’s implementation efforts should be judged, not on whether the review led to tectonic shifts in American surveillance policy.

As to those efforts: Read more »

What’s in a Confidence Building Measure?

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Sunday, February 8, 2015 at 3:00 PM

The latest installation of the Asia Maritime Transparency Initiative focuses on confidence-building measures, or CBMs.

Pioneered in the Cold War, CBMs are programs, activities, or agreements that aim to strengthen ties between two potentially-adversarial militaries. In so doing, CBMs aim to defuse tensions and the risk of destabilizing misperceptions between the states that sign them. In academic terms, CBMs endeavor to mitigate security dilemmas.

There has been a lot of talk of CBMs of late, particularly in maritime Asia, because there are at least three sets of agreements at various stages of negotiations among states in the Indo-Pacific region. These include the long-sought, binding maritime Code of Conduct between ASEAN and China in the South China Sea (which will probably be long-sought for a good while longer), a recently-rejuvenated Sino-Japanese crisis mechanism for the East China Sea, and two US-China agreements that were signed in November 2014. But when we get beyond the admirable and somewhat amorphous intended aims of these agreements, what’s in a CBM? Once these agreements are in place, how do we know if they are actually working? And what should we expect in 2015 from some of the proto-CBMs that have recently been put in place in maritime Asia? AMTI’s analysts focus on these questions.

Rory Medcalf argues that all military-to-military ties are not created equal, and that CBMs can be categorized as “direct” or “indirect” in character. Direct CBMs are measures that relate immediately to contested zones, contentious issues, and threatening capabilities, such as rules for avoiding dangerous encounters at sea or in the air. Indirect CBMs, by contrast, are not immediately germane to specific conflict areas, and include things like port visits or bilateral exercises. Indirect CBM measures may be as much intelligence-gathering efforts as they are about avoiding crises. As Medcalf notes, the United States and its allies have long admonished China for refusing to sign onto any meaningful CBM agreements, with Beijing maintaining the position that military transparency measures could expose its relative weakness. This appeared to have changed when the US and China negotiated two agreements in November—one a code of conduct for ship-to-ship encounters at sea, and the other for mutual notification of major military activities. In recent weeks, however, Washington and Beijing have been involved in a public spat over the United States’ decision to delay the visit of a US aircraft carrier to China pending the two countries’ negotiating a code of conduct for air encounters. In Medcalf’s terms, an indirect CBM was paused pending the implementation of a direct one, although other bilateral military exchanges will continue. This early hiccup raises the question of whether China is willing to “walk the walk” when it comes to these new agreements, he argues. Read more »

The Foreign Policy Essay: Hidden Victories

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Sunday, February 8, 2015 at 10:00 AM

Editor’s Note: U.S. foreign policy is a disaster. This lament is heard about every administration, but rarely is it true. Joshua Rovner, a professor at Southern Methodist University, points out that the judgment of history is often kinder than the critics of the day. Failures seem to abound, but in reality most presidents have numerous foreign policy successes that have kept America in a strong position. The greater danger, he writes, is failing to recognize what has worked in the first place.

***

President Obama fails all the time. That is the verdict of the op-ed pages, at least. His foreign policy is a muddle. His decisions to exit from Afghanistan and Iraq were disastrously premature. His responses to terrorism, Syria, Iran, and Russia revealed weakness. His response to the rise of China is a massive failure based on wishful thinking. America’s standing in the world is in steep decline because of all these errors.

DSC_7285Of course, the situation was no better in the last administration. Our summary judgment about President Bush is more or less summarized in the titles of two popular books from the time: Hubris and Fiasco. Our summary judgment of President Clinton was that he lacked any conception of grand strategy, concentrated on domestic policy at the expense of foreign affairs, and otherwise took a “holiday from history.” And we can go back much further. Indeed, read the news from any era and you may get the feeling that the United States is incapable of coherent foreign policy, that it is devoid of serious strategic thinkers, and that its whole history is a depressing catalog of blunders. Yet somehow we ended up as the world’s most prosperous and powerful country.

To be clear, the United States is certainly capable of blunders. Americans frequently misunderstand foreign crises but plow into them nonetheless. They are also capable of nationalist back-slapping and heroic myth-making that obscure the limits of American power. And sometimes they throw good money after bad in foolhardy attempts to rescue ill-conceived policies. We should not ignore these errors, however tragic and demoralizing. Exploring the causes and consequences of strategic failure is a necessary antidote to hubris.

But the United States has also done some things very well, blending activism and restraint in order to deal with present threats without getting mired in unsolvable long-term quagmires. It is historically secure and prosperous, and its position in the world is not simply a matter of geography or luck. For a number of reasons, however, we often fail to acknowledge our own triumphs. This has major implications. For analysts, the focus on failure makes it difficult to understand the sources of success. For policymakers, it encourages abandoning successful strategies and replacing them with bad ones. This leads to overreach, not because of victory fever but because of the inability to recognize victory in the first place.

Consider the conflict with Iraq during the 1990s. The decade began with the first Gulf War, which many worried would be an atrocious bloodbath. At the time, Iraq boasted the fourth-largest army in the world, battle-tested in the long war with Iran. Saddam Hussein was ruthless and aggressive, and the Iraqis had proven willing to suffer horrendous casualties rather than capitulate to their enemies. But Operation Desert Storm was a stunningly rapid victory with a historically low casualty rate for the U.S.-led coalition. In the process it destroyed the bulk of Iraq’s conventional military capabilities, and the sanctions that remained on Iraq over the next decade shattered Iraq’s economy and prevented it from rebuilding. During the 1990s, +weapons inspectors also located and destroyed Iraq’s chemical and biological weapons and caused Iraq to shelve its nuclear ambitions. Most important, Saddam Hussein’s behavior changed during that time. Before Desert Storm he harbored dreams of expanding Iraq’s regional power, but after the war he focused on holding on to power at home. Read more »

Is Jordan Attacking ISIS on a New Legal Theory?

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Saturday, February 7, 2015 at 4:00 PM

In the past few days, in the wake of ISIS’s horrific burning of a Jordanian air force pilot, Jordan has adopted a highly combative tone toward the group.  It has matched this rhetoric with action: Its air force carried out dozens of strikes against ISIS targets on Thursday.  This is a significant increase from the number and pace of strikes that Jordan previously had undertaken as part of the coalition using force against ISIS in Syria.  Jordanian Foreign Minister Nasser Judeh stated that these airstrikes mark the beginning of his country’s retaliation for the pilot’s death, and he vowed to destroy ISIS.  In his words, “We are upping the ante. We’re going after them wherever they are, with everything that we have.  But it’s not the beginning, and it’s certainly not the end.”
This clearly is an important shift politically, both for Jordan and for the anti-ISIS coalition, but does it mean anything legally?  It’s possible to construe Jordan’s statements as indicating that Jordan is now acting in individual self-defense, rather than — or in addition to — the collective self-defense of Iraq.  If Jordan believes that the burning of the pilot effectively constituted an armed attack on Jordan itself, an individual self-defense theory could flow from that.  (Many might be concerned about interpreting that event as an armed attack, though states historically have proven willing to use force to defend their nationals abroad when they come under threat, treating their uses of force in that context as a subset of individual self-defense.)
If Jordan is simply layering an additional international legal theory (individual self-defense) onto its existing legal theory (collective self-defense of Iraq), that should have no implication for the military actions Jordan undertakes.  If, however, it perceives some segment of its airstrikes as being conducted exclusively under its individual self-defense theory, that would affect its military actions because it would require a different proportionality calculation.  That is, its strikes against ISIS in individual self-defense would need to be proportional to the attack that triggered that right: the immolation of the pilot. That would seem to require a much more constrained response than that permitted in the collective defense of Iraq.
It is certainly possible that Jordan’s recent public statements are driven entirely by politics, and are not intended to signal a change in its legal approach to its airstrikes.  Future Jordanian statements and actions may illustrate more clearly how we should interpret the comments of the past two days.

The Lawfare Podcast, Episode #109: Robert Litt on US Surveillance Policy One Year After PPD-28

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Saturday, February 7, 2015 at 1:55 PM

On Tuesday, the White House released the Director of National Intelligence’s report on signals intelligence reform. As part of the release, Robert S. Litt, General Counsel of the Office of the Director of National Intelligence, gave a speech at the Brookings Institution on “US Intelligence Community Surveillance One Year after President Obama’s Address.” In his address, Litt discussed the progress the Administration and the intelligence community has made in carrying out Obama’s Presidential Policy Directive, or PPD-28. He outlined the legal authority for certain surveillance programs, particularly those set to expire in 2015, and explored their implications on privacy, civil liberties, competitiveness, and security. In the end, the conversation addressed many of the questions raised by the implementation of these reforms, and laid out an explanation of where we go from here.

You can watch the video of the event below:

The Week That Was: All of Lawfare in One Post

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Saturday, February 7, 2015 at 10:00 AM

On Tuesday, Wells shared the news that the Office of the Director of National Intelligence (ODNI) released a report that detailed how the U.S. intelligence community has implemented the reforms that President Barack Obama announced with Presidential Policy Directive-28, Signals Intelligence Activities (PPD-28) just over a year ago. Carrie Cordero gave us a first and second take on the report, which focused on the report’s sections on privacy and transparency, respectively. Harley Geiger discussed what would happen if Congress does not reauthorize Section 215 of the PATRIOT Act, which currently authorizes the bulk metadata program. Cody brought us video of ODNI’s General Counsel Bob Litt’s speech on his department’s report here at Brookings.

As President Obama continues to talk about closing Guantanamo, Ben looked at how the administration might actually get that done. He argued that many detainees simply cannot be released or face criminal trial, so these detainees will need to be transferred to U.S. soil. Gabor Rona answered that closing Guantanamo must mean either releasing all detainees or trying them in federal court, not bringing many indefinite detainees into the U.S. His argument in part rests on his assertion that bringing detainees here will mean more of the same for them, legally speaking. Steve Vladeck pointed out that, in fact, detainees would probably fare much better legally stateside than in Guantanamo. Handing the debate off to our elected officials, Ben shared video of the administration’s testimony on Guantanamo before the Senate Armed Services Committee this Thursday.

Steve also provided us with a preview of an upcoming hearing in a Guantanamo case before the D.C. Circuit, which will examine whether the D.C. Circuit can issue writs of mandamus to the Court of Military Commission Review and, if it can, whether the appointment of CMCR judges violates the Appointments or Commander in Chief clauses of the Constitution.

Last week, Ben wondered aloud whether the Intercept’s SecureDrop tool for leakers was really such a good idea. Since then, Ben’s been hounded on Twitter. Cody and Ben synthesized much of the criticism into three main categories, and pointed out that one of the pieces of evidence that Ben’s critics rely on doesn’t actually say what they claim it does.

Yishai Schwartz gave us a rundown on Iran sanctions, describing how we got from our first sanctions in 1979 to the current and potential future sanctions regime.

Bruce Schneier noted President Barack Obama’s recent statement that terrorism does not pose an existential threat to the United States and wondered if, after years of political overreaction to the threat of terrorism, this means we can finally begin to discuss it rationally.

In conjunction with the release of President Obama’s National Security Strategy report, National Security Adviser Susan Rice came to Brookings to discuss the president’s foreign policy plan. Cody shared the video with us.

Nathan Sales described the Visa Waiver Program (VWP), which currently allows citizens from 38 countries to travel to United States without a visa, and asserted that, despite recent calls to significantly alter the program, the VWP can actually become a security asset, rather than a liability.

Paul Rosenzweig linked us to an article on the New York Police Department’s integration of data analytics into its operations, musing that “This is what Big Data looks like in real world.”

Cody showed us the video of Secretary of Defense nominee Ash Carter’s confirmation hearing before the Senate Armed Services Committee. One question raised in the hearing was if the United States should arm Ukraine. Several of our Brookings colleagues have been debating that point, and Cody posted a play-by-play of their debate.

After Chris Soghoian erroneously tweeted that ex-NSA director Keith Alexander left his laptop unattended on a train, Ben tried to bring some clarity to the Twitter storm, and later shared his exchange with Chris.

Shibley Telhami and Katayoun Kishi penned this week’s Foreign Policy Essay, which looks at how to reconcile the odd collection of views that Americans hold on the Middle East.

In the newest installment of “Bits and Bytes,” Paul updated us on several developments in the cyberworld.

Sean Mirski linked to his recent article at The National Interest on how the South China Sea dispute has significantly changed recently.

Jack argued that, if Congress really wants to use an AUMF to assert its constitutional role in the prosecution of the conflict with ISIS, it must include a sunset provision.

After it was revealed that the CIA worked with Israel’s Mossad to a senior member of Hezbollah in 2008, Jack sketched out how the U.S. government might have legally justified the assassination.

Herb Lin detailed a recent report by the Federal Trade Commission on the cybersecurity of the Internet of Things, and noted how the need for cybersecurity and the need for innovation can conflict with one another.

Cody posted the Lawfare Podcast (Episode #108), which featured a speech by the former director of both the CIA and the NSA, General Michael Hayden, on the NSA and intelligence in a more transparent age.

Ben shared the latest episode of the Rational Security podcast (Episode #5), in which Ben, Shane Harris, and Tamara Cofman Wittes discuss, among other things, how ISIS’s execution of a Jordanian pilot changes the campaign to destroy the group.

In this week’s Steptoe Cyberlaw Podcast (Episode #52), Stewart Baker brought on Rebecca Richards, NSA’s director of privacy and civil liberties.

And that was the week that was.

Brookings Debates Arming Ukraine

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Friday, February 6, 2015 at 8:02 PM

Recent comments by Secretary of Defense-nominee Ashton Carter and Secretary of State John Kerry suggest that the United States is edging closer to arming the Ukrainian army. In response, a growing debate has kicked up on the main Brookings site about whether the United States should provide defensive arms to Ukraine.  If you are catching up on the debate over the weekend, below is a quick preview of four pieces from Brookings fellows on the future of European security.

The debate began with an op-ed  by Steven Pifer and Strobe Talbot previewing an accompanying report, and later continued on the Brookings website. They write:

First, our recommendations that the U.S. government provide Ukraine additional military assistance, including defensive weapons were not based on rage, though Russia’s actions—using military force to dismember a neighboring state—are outrageous. Our recommendations were based on a calculation of U.S. interest in view of the biggest security threat that Europe has faced since the end of the Cold War. Part of this calculation is based on the importance of the United States adhering to commitments. In 1994, the United States, along with Russia and the United Kingdom, committed in the Budapest Memorandum to respect the independence, sovereignty, and territorial integrity of Ukraine as part of the deal to get Kyiv to eliminate 2,000 strategic nuclear weapons…

Later, Brookings Fellow Jeremy Shapiro dissented. He begins:

Steve Pifer is a good friend and a treasured colleague. And Strobe Talbott is my boss—so it goes without saying that I greatly admire his work. But as important as friendship and job security are to me, I still can only conclude that their proposal to arm Ukrainians will lead only to further violence and instability, and possibly a dangerous confrontation with Russia.

Steve and Strobe’s article (and the supporting report with several other prominent authors) rings with fury at Russian actions. And Russian actions are indeed outrageous. But moral indignation, no matter how righteous and satisfying, is not a strategy. A strategy needs to describe just how provision of American arms would make the situation better.

Rather than such a description, the article suggests that a just cause and the Ukrainian need and desire for weapons are enough to justify their provision. But it is hardly surprising that the Ukrainians want American arms in their war against Russia and Russian-backed separatists—they face the possibility of territorial dismemberment and would run any risk to preserve their state intact…

Tim Boersma, a Fellow in Energy Security and Climate Initiative, issued a European view on sending arms to Ukraine.

Various flaws in this proposal have been pointed out already, including by other Brookings colleagues. In my view, the most questionable assumption that the authors seem to make, is that by increasing the amount of body bags being sent to Moscow, the Russian regime will be incentivized to negotiate peace. But for a European, and although I agree with many of the arguments already made, even the critics miss the central point. We are talking about a possible full-fledged war on Europe’s very doorstep. Many Americans seem awfully cavalier about risking that war in somebody else’s house. The authors of this report do not appear to have discussed their proposals with any European national officials outside NATO or even seriously considered European views on the subject. The rather stiff reaction of German Chancellor Angela Merkel to the idea implies that that may have been a mistake. The French defense minister dismissed the idea of sending lethal weapons too…

Back in the Washington Post, Senior Fellows Fiona Hill and Clifford Gaddy echoed Boersma and Shapiro, arguing that arming the Ukrainian military could push Putin into regional war.

Increasing the Ukrainian army’s fighting capacity, the thinking goes, would allow it to kill more rebels and Russian soldiers, generating a backlash in Russia and ultimately forcing the Russian president to the negotiating table.

We strongly disagree. The evidence points in a different direction. If we follow the recommendations of this report, the Ukrainians won’t be the only ones caught in an escalating military conflict with Russia.

In the jargon of geopolitics, Putin enjoys “escalation dominance” in Ukraine: Whatever move we make, he can match it and go further. In August, when it looked as though Ukraine might rout the rebels, Putin increased the stakes and countered the Ukrainian military. Drawing on those lessons, some Russian security analysts are now pushing for a preemptive invasion of Ukraine, arguing that Russia should go all the way to Kiev before the West takes further action. One recent such plan suggested that Moscow was losing momentum in the conflict and should not waste more time on fruitless negotiations. The Western press coverage of the issue of lethal weapons can only convince those in Moscow pushing “full war and invasion now” that their approach is correct.

Crowded Waters in the South China Sea

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Friday, February 6, 2015 at 4:48 PM

The South China Sea ranks high on any list of the world’s geopolitical hotspots. But though the region has been volatile for centuries, the last two decades have witnessed a subtle shift in the underlying drivers of conflict.

Over at The National Interest, I’ve written an article examining a significant change in the contours of the dispute. I argue that

[i]n the past, violence in the South China Sea was orchestrated from capitals far away. Today, though, a confrontation is far more likely to erupt unexpectedly on the frontlines, and these frontlines are multiplying across the breadth of the Sea. More than ever before, fishermen and coast guards from different states are motivated to venture deep into the heart of disputed areas. There, they are increasingly likely to bump prows with either foreign competitors or antagonistic coast guards. The outcome in either case could be disastrous.

If you’re interest in understanding the scope of this new driver of conflict, take a look!

Today’s Headlines and Commentary

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Friday, February 6, 2015 at 1:59 PM

ISIS claims that Jordanian airstrikes have killed a U.S. hostage held by the group, the New York Times reports. However, a senior U.S. official said that Jordan’s targets had been carefully vetted beforehand, with no indication that any hostages were present. Shane Harris reports that Jordanian officials have disparaged the claim, calling it “just another PR stunt” by the group.

The airstrikes were launched in retaliation for the execution of a Jordanian pilot held by the group, and are part of Jordan’s increased involvement in the conflict. “We are going after them … with everything we have,” Jordanian Foreign Minister Nasser Judeh told CNN. The Daily Beast reveals that, according to local sources, airstrikes that hit ISIS’s proclaimed capital of Raqqa on January 1st may have been part of an attempted rescue operation for the the Jordanian pilot captured by ISIS. The operation failed, however, and the group later burned the pilot to death.

The BBC reports that thousands of Jordanians marched in the capital of Amman today in support of their government’s fight against ISIS. The Associated Press provides a summary of Jordan’s past involvement in the campaign, what it can add to the fight, and how its involvement may be received in the region. At the Washington Post, Charles Krauthammer argues that ISIS’s goal in executing the Jordanian pilot may have actually been to draw Jordan into the conflict, so as to create internal domestic divisions.

After rebels struck the Syrian capital of Damascus yesterday, Reuters reports that the Syrian government launched dozens of airstrikes on rebel-held regions near the city, killing 82 people. Reuters also notes that the defeat of ISIS in the Syrian town of Kobani signals that the group is under significant pressure in the country, though it is far from being defeated. And the Kurds, who pushed ISIS out of Kobani last week, still face an uphill battle to secure their autonomy in northern Syria, the Post explains. Despite its recent defeat, ISIS continues to perpetrate atrocities, now focusing on children: CNN reports that the group is using children as suicide bombers and is selling them as slaves.

In Benghazi, a car bomb killed two people and wounded 20 others, Reuters reports. The violence comes as two rival governments continue to battle for control of the country.

As French Prime Minister Francois Hollande and German Chancellor Angela Merkel travelled from Ukraine to Russia in an effort to end the crisis in eastern Ukraine, Chancellor Merkel lowered expectations of reaching an accord, according to the Financial Times. The AP notes that Prime Minister Hollande explained that a ceasefire was a prerequisite in the process, but Chancellor Merkel said that it was “completely open” whether a ceasefire could actually be reached. In another report, the AP reveals that some progress was made, however, as the Ukrainian military and Russian-backed separatists opened a humanitarian corridor to allow civilians to escape the town of Debaltseve, which is currently at the center of a rebel offensive.

As debate over whether to arm Ukraine continues, Reuters shares that European defense ministers publicly opposed providing weapons to the Ukrainian military and said that a U.S. decision to do so could create a transatlantic split. In the Post, Brookings scholars Fiona Hill and Clifford Gaddy argue that arming Ukraine would push Russia to escalate the conflict into a regional war.

At the same time, NATO announced that it will create a 5,000-troop European rapid response “Spearhead Force,” backed by two additional rapid response forces. The Wall Street Journal shares that NATO has also completed plans for command centers in Eastern Europe in response to Russian aggression in the region.

The AP reports that Boko Haram responded to Cameroon’s involvement in an offensive against the militants by massacring nearly 100 villagers and wounding 500 more in northern Cameroon. African Union forces met the same day to complete plans for a 7,500-troop multinational force to take on the militant group. According to Reuters, the United Nations is pushing for greater regional military cooperation in West Africa to fight Boko Haram. The Times describes the group’s massacres, in which militants imprison and forcibly marry women and behead men, all while trying to buy civilian support with looted goods.

The United Nations is also calling for 1,000 more peacekeepers to be deployed in the Central African Republic to quell fighting between Christians and Muslims that has left more than 5,000 people dead since beginning in 2012. The AP covers the story.

Britain’s Investigatory Powers Tribunal ruled that the British intelligence agency GCHQ’s use of information obtained by the NSA was illegal under the European Convention on Human Rights until last year, the Guardian shares. At the same time, British officials have threatened to stop sharing intelligence with Germany if it continues its parliamentary inquiry into British intelligence activities. According to the Telegraph, Germany is taking the threat seriously.

The Wall Street Journal explains that domestic debate over an Iranian nuclear deal is much the same in both the United States and Iran. In both countries’ legislative bodies, some hard-liners are vehemently opposed to any potential deal. Over at DefenseOne, Derek Chollet argues that all the talk of political fallout over Israeli Prime Minister Benjamin Netanyahu’s planned speech before Congress on the danger of Iranian nuclear negotiations misses one key fact: under President Barack Obama, the security relationship between the United States and Israel is stronger than ever. The speech was the result of an invitation by House Speaker John Boehner (R-OH) made without the support of Congressional Democrats or consultation with the White House. But an Israeli officials now claims that the Prime Minister was led to believe that the invitation had the support of Congressional Democrats, Reuters shares.

Reuters reveals that U.S. officials are pressuring Cuba to let the United States open an embassy in Havana by this April. Cuba, however, is demanding that the United States remove it from the U.S. list of state sponsors of terror before allowing the embassy to open.

In a Senate Armed Services Committee hearing yesterday, a Defense Department official testified that proposed legislation to restrict the transfer of Guantanamo detainees to other countries would effectively bar all transfers, and that the Obama administration would oppose any such bill. The Miami Herald covers the hearing, which featured fiery debate and vocal protests from the audience. The Herald also reports that the first conviction by military commission of a Guantanamo detainee is standing on weak ground. In a legal filing, prosecutors of Australian David Hicks say that Hicks’s 2007 conviction may no longer be valid, but should be upheld nonetheless.

President Obama releases his second and final National Security Strategy report today, in which he will chart a course for U.S. leadership in the next two years while noting that United States does not have unlimited power to shape international affairs. The Times shares that the president will justify his conduct in international conflicts and assert the importance of addressing longer-term risks like climate change and cybersecurity. Foreign Policy notes that the report will make a case for “strategic patience,” a policy of restraint and strategic forethought rather than rash aggression. Foreign Policy also explains that these documents are as a rule underwhelming, and that President Obama’s newest report is unlikely to offer much in the way of actual strategy.

The BBC reveals that a bank that enables money transfers between the United States and Somalia is planning to stop this service out of fears that the transfers are funding Al Shabaab militants in Somalia.

Senator John McCain (R-AZ) told reporters yesterday that he expects Secretary of Defense nominee Ash Carter to be confirmed by the Senate next week, perhaps even as soon as Tuesday, according to the Hill.

As the tussle over funding the Department of Homeland Security continues in Congress, Democrats are using fears of terrorism to pressure Republicans to remove immigration-related amendments and pass a clean funding bill. The Post covers the story.

ICYMI: Yesterday, on Lawfare

In response to Ben’s earlier piece on what closing Guantanamo might actually look like, Gabor Rona argued that bringing detainees to the United States could flout both constitutional order and our responsibilities to international human rights laws. Steve Vladeck responded by pointing out that bringing detainees to U.S. soil would actually probably legally benefit the detainees, a point that Gabor overlooks in his argument. And Jack noted that Republican attacks on one of the Obama administration’s arguments for closure–that Guantanamo is a recruiting tool for terrorist groups–ignore the fact that the Bush administration made essentially the same argument during its second term.

Ben and Cody outlined some of the responses to Ben’s previous questioning of the wisdom of the Intercept’s SecureDrop system. In particular, they pointed out that the evidence many of these responders refer to does not actually say what they claim it does.

Jack explained that, if Congress wishes to reassert its role in the fight against ISIS, it must include a sunset provision in any new AUMF.

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

 

The Administration’s Guantanamo Testimony Yesterday

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Friday, February 6, 2015 at 1:31 PM

Here it is, given by Brian McKeon, Principal Deputy Under Secretary of Defense for Policy, before the Senate Armed Services Committee. And here’s the video of yesterday’s hearing:

Rational Security, Episode #5: “Until We Run Out of Fuel and Bullets”

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Friday, February 6, 2015 at 12:04 PM

Here’s the latest episode of Rational Security, hosted by Shane Harris of the Daily Beast. And yes, for those of you who are wondering, we did, as discussed at the end of this podcast, record the first episode of The Chess Clock Debates the other day—and it was pretty darn cool. You’ll have to listen to the episode if you want to know what I’m talking about.

Second Take on Government’s Surveillance Reform Update Report: What’s New in Transparency

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Friday, February 6, 2015 at 9:18 AM

Earlier this week I provided observations on new data retention and data query restrictions as outlined in the Government’s Signals Intelligence Reform 2015 Anniversary Report. Today’s post focuses on the section of Tuesday’s report entitled, “Enhancing Transparency.”

This section largely summarizes and outlines the types of information that the Intelligence Community released over the last year and a half since the Snowden disclosures. These include creating IC on the Record, declassifying thousands of pages of legal, policy and oversight documents, and releasing a new narrative and statistical transparency report. In addition, senior Intelligence Community officials have embarked on a sustained effort to engage in public dialogue through speeches and participating in numerous panels at think tanks, law schools, and through the media.

The one new document released in this week’s report is a one-page Principles of Intelligence Transparency for the Intelligence Community. The Principles are the result of a serious and collaborative effort to articulate in clear language the direction the DNI is providing to the Intelligence Community regarding transparency. On one hand, they are the culmination of this past process, but on the other, they are just the beginning for what will likely be new initiatives in the future. As one might expect, they are high-level and not particularly controversial. Of significance, in laying out the four main principles, the document states “The Intelligence Community WILL…” [caps added]. There is no room for individual agencies to just have good intentions, or just try, to implement more transparency. The document makes clear that the Intelligence Community will follow the Principles going forward. Period.

The surveillance reform update also reports that there is a “senior working group to continue these transparency efforts and proactively identify new ones.” One area that I hope the group will focus on is developing a different kind of transparency that I articulated last October:

[S]ubstantive transparency about what the intelligence community actually knows about national security threats, how the United States interprets this information, and how that interpretation is connected to policy choices.

Broadly, this type of transparency could fall under number 2.a of the new Principles:

[The Intelligence Community will….] provide timely transparency on matters of public interest.

Why are factual information and Intelligence Community analysis of worldwide threats important right now? Read more »

The Bush Administration Wanted to Close GTMO Because (in Part) of its Propaganda Value to Jihadists

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Thursday, February 5, 2015 at 8:31 PM

Senator Tom Cotton, whom I like, doesn’t support the closure of the Guantanamo Bay detention center.  As the SASC hearing today he said of the Guantanamo detainees, “every last one of them can rot in hell, but since they don’t do that, they can rot in Guantanamo Bay.”   Senator Cotton served in the U.S. Army for five years and is entitled to his opinion.  But I think he is wrong when he questions the Obama administration’s claims about the “propaganda value that terrorists get from Guantanamo Bay.”  I also think he is wrong when he says that the Obama administration’s claims about GTMO’s propaganda value are “a pretext to justify a political decision.”

This is now a common Republican sound bite.  But I did not hear any Republicans making this argument when the second-term Bush administration made the identical claims as part of its efforts to close GTMO.  As President Bush said in his memoir:  “While I believe opening Guantanamo after 9/11 was necessary, the detention facility had become a propaganda tool for our enemies and a distraction for our allies.  I worked to find a way to close the prison without compromising security.”  And as President Bush’s Legal Advisor in the State Department, John Bellinger, said in 2010, GTMO “has come to symbolize abuse of Muslim prisoners and serves as a powerful recruiting tool for al-Qaeda.”  Other Republicans thought and said similar things before 2009.

Of course to say that GTMO is a propaganda tool is not to say how weighty a tool it is, or that attacks against Americans and American interests would lessen materially were GTMO to close.  Senator Cotton doubts anything would change if GTMO closed.   I cannot assess this claim, and perhaps Senator Cotton has access to intelligence to support his doubts.  My point is only that it is probably wrong to say that Obama administration’s claims about GTMO’s propaganda value are pretextual, since President Obama’s predecessor said exactly the same thing on exactly the same issue, presumably based on similar intelligence.

The Meaningful Legal Differences Between Stateside and Guantánamo Detention

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Thursday, February 5, 2015 at 3:30 PM

Gabor’s post from this morning, which is styled as a response to Ben’s thoughtful analysis of what it will take to close Guantánamo (while ignoring some of the other responses), concludes that the only meaningful way to “close” Guantánamo is for President Obama “to either release all detainees or try them in our time-tested federal courts,” at least largely because moving the detainees into the United States wouldn’t actually accomplish all that much from the detainees’ perspective. As Ben has already pointed out, this point of view is either completely indifferent to, or based on a hopelessly naive view of, the current political and public reality. In the short post that follows, I want to make a different point–that, contra Gabor, moving the detainees stateside likely would redound to their legal benefit, which is exactly why, their preposterous and patently unconvincing nods to security concerns notwithstanding, certain political constituencies are so dead-set against it.

Politics aside, what that conclusion underscores is that it is meaningfully possible to “close Guantánamo” without ending all military detention. Reasonable folks like Gabor may not like that result. I don’t like that result. But it does a disservice to suggest that such a potentially “least-worst” solution is not legally available–even if it’s politically unpalatable (for different reasons) to folks across the ideological spectrum.

Read more »

The Intercept, SecureDrop, and Foreign Intelligence Services: A Response

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Thursday, February 5, 2015 at 2:30 PM

Those readers who do not spend a lot of time on Twitter may have missed the beating Ben has been taking there for this post last week suggesting that the folks at The Intercept may be overestimating their security capabilities relative to the offensive capabilities of nation state intelligence services. The claim in the original article was pretty modest: In flamboyantly inviting potential sources to commit crimes by leaking them classified materials, and in setting up a SecureDrop system to help them do it, The Intercept folks are also issuing an invitation to foreign intelligence services—and possibly a way into their systems.

The criticism, which included a huge volume of tweets, involved at least three distinct lines of criticism. One came from Barton Gelman, the reporter who broke a bunch of the Snowden stories for the Washington Post:

The second, and dominant, strain of criticism focused on a few stray lines in the piece disparaging the cybersecurity capabilities of The Intercept team relative to those of a professional intelligence agency:

The third strain was indignant at the suggestion that installing a SecureDrop system to protect leakers may create an opportunity for adversaries to spy on The Intercept:

As it happens, we have read the security review to which Appelbaum refers—and it’s an interesting read.

Just after SecureDrop’s first deployment by the New Yorker, a team of cybersecurity experts led by Alexi Cxeskis—and which also included Bruce Schneier and Appelbaum himself—conducted a detailed security assessment of the system in August 2013. They concluded that the system is a “step forward” and that there were no critical flaws in the code itself. But they “caution[ed] that the system will likely be unable to protect the source against the most powerful type of adversaries.” Hmmmm.

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Today’s Headlines and Commentary

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Thursday, February 5, 2015 at 1:15 PM

Yesterday, Secretary of Defense nominee Ash Carter appeared before the Senate Armed Services Committee for his confirmation hearing. Republicans were concerned over micromanagement by the Obama administration; Politico reports that Carter emphasized that he would maintain independence from the White House even under pressure. The Guardian provides a summary of the hearing, noting that Carter supported providing lethal aid for the Ukrainian military, a “conditions-based withdrawal” from Afghanistan, enhancing U.S. cyber capabilities, and asserted that he would not be pressured into hastening the release of Guantanamo detainees. The New York Times, Wall Street Journal and the Daily Beast also provide coverage of the hearing.

Who runs Raqqa? In the capital of the so-called Islamic State, Syrian nationals are notably absent. Rather, the Wall Street Journal notes that the group’s leadership there is dominated by foreign fighters who have flocked to Syria to join the group, changing the character of the city as much as they have changed the nature of the war. Elsewhere, rebels shelled the Syrian capital of Damascus, killing at least five people in the government stronghold, according to the Associated Press. For its part, the U.S.-led coalition fighting the group in both Iraq and Syria continued airstrikes yesterday, conducting 17 across both countries, Central Command shares.

The country of Jordan is seething with anger, writes the Guardian. According to Martin Chulov, images of Muadh al-Kasasbeh being burned alive have filled the streets of Amman, from tea houses to universities, with anger and a pulsing desire for revenge. In response to the killing of the Jordanian pilot by ISIS, Jordan unleashed its own series of airstrikes against the militant group. Al Arabiya reports that Jordan killed 55 ISIS militants in a series of strikes that also killed a senior ISIS commander. The Wall Street Journal reveals that Jordan is also mulling a longer-term increase in its commitment to the anti-ISIS coalition. It’s all part of a determination to retaliate that Kevin Baron, writing in DefenseOne, calls the “real Arab Awakening the Pentagon has been waiting for.” He notes that suddenly, in the Hashemite Kingdom, the war against ISIS has become “our war.” Jordan’s 250 strike fighters, 1,300 tanks, premier special operation forces–all wrapped in a $1.5 billion budget– sit waiting for whatever revenge King Abdullah determines to march forward.

In the United States, the Hill shares that President Barack Obama is preparing to formally request that Congress pass a new Authorization for Use of Military Force (AUMF) for the fight against ISIS, as part of a renewed effort to put the U.S. campaign against ISIS, which has already included thousands of airstrikes in the region, on firmer legal footing. At the same time, Russian Prime Minister Vladimir Putin is pushing to cut off a significant source of cash for ISIS. The AP notes that Russia is proposing a U.N. resolution that would keep terrorists from collecting ransom payments for hostages or illicitly selling oil.

In Yemen, a deadline for a power-sharing deal imposed by the Houthi rebels has passed. The rebels had threatened to seize power if a satisfactory compromise had not been reached by then, but the Wall Street Journal reports that the group appears to be allowing more time for talks.

Read more »

Why a Sunset Clause is Important in Any New AUMF

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Thursday, February 5, 2015 at 10:24 AM

The rumors circulating that the administration might in the next week finally present a draft AUMF against the Islamic State causes me to ask: What is the point of a new AUMF?

Military operations against al Qaeda and its associates and the Taliban – in Afghanistan, Pakistan, Yemen, Somalia, and almost certainly (according to Mark Mazzetti and other journalists) in many other countries not made public – have been justified under the sunset-less 2001 AUMF.  The President has also maintained (in his September 23, 2014 WPR letter) that he is conducting the armed conflict against the Islamic State  pursuant to his “constitutional and statutory authority as Commander in Chief (including the authority to carry out [the 2001 and 2001 AUMFs]) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.”  The President added that “it is not possible to know the duration of these deployments and operations,” and that he would “continue to direct” the use of force against the Islamic State “as necessary to protect and secure U.S. citizens and our interests against the threat posed by ISIL.”  In short, President Obama has claimed statutory and constitutional authority to use force against al Qaeda and its affiliates, and the Islamic State, in several countries around the world on an indefinite basis.

If Congress gives the Obama administration the broad and open-ended AUMF for the Islamic State that the administration appears to want (see Sunday’s NYT op-ed for links), what will Congress have accomplished?  The short answer: nothing in terms of substantive authorities, a bit in terms of democratic deliberation, but not nearly enough overall.

In a new AUMF for the Islamic State Congress would give its contemporary imprimatur to the conflict, presumably preceded by a debate about its wisdom and efficacy.  Hopefully the American people would be better informed about what is at stake, and our enemies better informed about our resolve.  The president would also have additional legal and especially political cover for fight against the Islamic State.  But the broadly interpreted 2001 AUMF would remain in place, as would the President’s very broad interpretation of the 2001 AUMF to apply to the Islamic State, and the precedent of many months of practice under that interpretation.  The idea that the enactment of a broad new AUMF will mark a reassertion of Congress’s constitutional prerogatives on basic questions of war is a bit of a joke.  A broad new AUMF that essentially ratifies the authorities the President has claimed for months under the 2001 AUMF – a new AUMF, in other words, that the President’s actions make clear he can do without – will not by constitute a reassertion of congressional prerogative.

What might a more serious and refined AUMF do?  There is a broad consensus that the President needs continuing legal authority to fight AQ and affiliates and the Islamic State.  There are debates about the contours of that authority, but they are relatively small.  The question of ground troops, for example, is relatively unimportant because (a) the President has already introduced thousands of troops on the ground in Iraq under the 2001 and 2002 AUMFs and Article II, (b) the draft AUMFs  that purport to limit authorization for ground troops (e.g. from Senator Kaine and Representative Schiff) have exceptions, and most importantly, (c) these drafts do not purport to ban the use of ground troops, but rather merely to limit the congressional authorization for them, thus leaving the President unencumbered Article II power (or power under any AUMFs not repealed) to introduce ground troops in self-defense.  I think geographical scope issues are relatively small for related reasons.  In sum, in terms of legal authorities for any foreseeable use of ground troops against the Islamic State, or military actions beyond Iraq and Syria against the Islamic State, there appears to be relatively little at stake.

A sunset clause of, say, three years is a less trivial issue. Read more »

Happening Now: SASC Hearing on GITMO

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Thursday, February 5, 2015 at 9:53 AM

The Senate Armed Services Committee is currently holding a hearing entitled “Guantanamo Detention Facility and the Future of US Detention Policy. Brian P. McKeon, Nicholas J. Rasmussen, and Rear Admiral Ross A. Myers are set to testify.

You can watch the hearing live here at the SASC website.

How Not to Close Guantanamo: Bring It Here

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Thursday, February 5, 2015 at 9:46 AM

Ben asks “What Would it Take to Close Guantanamo?” and he provides a thoughtful response weighted toward the political landscape. But there’s another not-so-merely-philosophical question that underlies his question: what does it mean to “close Guantanamo?”

For purposes of rapprochement with Cuba it may have to mean U.S. out of Guantanamo altogether. That’s not going to happen anytime soon, since our interests in the place stem well beyond detaining suspected terrorists to monitoring and interdiction of Caribbean drug traffic and population flows.

But even ending detention at Guantanamo doesn’t necessarily mean ending Guantanamo detention. Ben refers to the realistic possibility that the price of ending detention at Guantanamo would be to bring some number of detainees to U.S. detention facilities for indefinite imprisonment. In other words, perhaps for life, without charge or trial. Since we are a rule-of-law loving people, that result would have to be shoehorned into some semblance of legal regularity. This could happen in one of two ways. Either through convincing ourselves that henceforth, we will forever be in a state of war, or, with the passage of new laws that permit such detention despite the absence of war. Either way, we risk trashing some very basic understandings of our constitutional order, not to mention explicit international human rights law obligations. That’s how not to close Guantanamo.

Imagine there never was a Guantanamo—that the Bush administration never sent hundreds of people to a place it hoped, erroneously, would be beyond the reach of law. What if it had instead brought them to Leavenworth for “enhanced interrogation,” indefinite detention without charge or trial, or trials that violate the very essence of due process? Would we now say that both the legacy of abuse and continued injustice could be cured by merely moving the detainees to Alcatraz? If not, then why do some advocates for an end to Guantanamo endorse bringing detainees to U.S. soil as the price of closing down the infamous detention center? Perhaps the courts will be more inclined to respect the detainees’ constitutional and human rights if they are on U.S. soil, the argument goes. In fact, that’s likely the elevation of hope over experience by human rights advocates who have devoted over a decade of their work-lives to a worthy, but most elusive cause.

The U.S. Supreme Court has already recognized the detainees’ right to challenge their detention in court (habeas corpus), but has indicated no appetite for reviewing lower court decisions that have eviscerated that right by refusing to require the government to provide convincing evidence or to enable detainees to see and effectively challenge the government’s evidence. If the detainees are moved stateside, the same courts will likely continue to apply the same standards.

It’s been argued that the end of combat operations in Afghanistan will weaken, if not eliminate, the government’s claimed detention authority under the laws of war. First, not likely. Courts have been uniformly deferential to the administration’s claim that we’re at war not merely against the Taliban in Afghanistan, but also, against Al Qaeda and its conveniently unidentified “associated forces” (a concept unknown to the laws of war) anywhere and everywhere in the world. Second, even if the law-of-war rationale for detention does fade, the locus of detention will not likely effect whether and how the courts respond. Third, even if courts are inclined to be less deferential to law-of-war detention on U.S. soil than at Guantanamo, that doesn’t mean they will be inclined to end detention without trial or charge and trial by discredited, dysfunctional military commissions. And that’s where things can get really ugly through judicial and/or legislative action – where these practices could migrate from the relatively cabined realm of war, into our domestic legal system more generally, whether in response to terrorism or any other threat, real or perceived.  Read more »

First Take on Government’s Surveillance Reform Update Report

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Wednesday, February 4, 2015 at 3:12 PM

As Wells noted yesterday the Administration released its report on the implementation of Presidential Policy Directive (PPD)-28. I am still reading through the documents, which include twelve new agency-specific procedures that implement Section 4 of PPD-28, as well as additional restrictions on the counterterrorism telephone metadata program. For now, this post provides observations on two items contained in the section of yesterday’s report entitled, “Strengthening Privacy and Civil Liberties.”

This section highlights four initiatives: the establishment of the Section 4 procedures for safeguarding personal information of all persons, regardless of nationality or location; proposing legislation to remedy privacy violations; strengthening privacy protections for collection pursuant to Section 702 of FISA; and amending FBI National Security Letter non-disclosure policy.

Given world events, and the need to maintain a robust foreign intelligence collection capability, particularly through the use of SIGINT where other methods of collection may be weak, attention should be given to whether changes being implemented to Section 702 collection have the potential to degrade the United States’ ability to counter threats.

Of particular interest, therefore, is that the new policy includes an enhanced destruction requirement for information concerning non-U.S. persons acquired via SIGINT:

Now Intelligence Community elements must delete non-U.S. person information collected through SIGINT five years after collection unless the information has been determined to be relevant to, among other things, an authorized foreign intelligence requirement, or if the Director of National Intelligence determines, after considering the views of the Office of the Director of National Intelligence Civil Liberties Protection Officer and agency privacy and civil liberties officials, that continued retention is in the interest of national security.

Five years is actually not a very long time. The key here is whether information has “been determined to be relevant.” A logical interpretation of this provision is that in order for information to be “determined to be relevant” it must be reviewed or analyzed in some way. But that would mean that, even today, this provision risks the possibility that information collected in 2010 that has not yet been analyzed but might concern the activities of terrorist networks in, say, Iraq, might now be nearing age-off duration. For leadership responsible for counterterrorism, I would think that would be a hard policy to submit to.

So the policy enables the DNI to waive this destruction requirement. In practice, therefore, what this new destruction requirement may mean is more internal governmental processes and procedures will exist so that there is a more robust decision making process to determine whether information should be retained for a period longer than five years.

There is no legal reason to include a destruction requirement for information obtained for foreign intelligence purposes according to a statutory framework established by Congress, when targeting, for foreign intelligence purposes, non-U.S. persons reasonably believed to be located outside the United States. Instead, the new requirement is likely intended to address foreign (in particular, the European Union civil liberties representatives’) concerns about U.S. government retention of foreign persons’ personal information. Read more »