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Today’s Headlines and Commentary

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Thursday, October 9, 2014 at 1:42 PM

We start with a tweet from Jenan Moussa, a reporter on the ground just across from Kobani in Turkish territory:

The battle for Kobani rages on.

U.S. Central Command reports that yesterday the U.S.-led coalition conducted nine strikes in Syria, eight of which were around Kobani, with another three conducted in Iraq. According to the Command, the “eight strikes near Kobani destroyed five ISIL armed vehicles, an ISIL supply depot, an ISIL command and control compound, an ISIL logistics compound, and eight ISIL occupied barracks, plus damaged another.” The report also notes that “Kurdish militia there continue to control most of the city and are holding out against ISIL.”

However, the success yesterday may have been overcome in recent hours. According to Ms. Moussa, there have been at least five airstrikes around the city today. Yet, according to a breaking Reuters update, the Syrian Observatory for Human Rights is reporting that Islamic State fighters have seized more than a third of the town. The report notes that the commander of the Kurdish forces confirmed that ISIS had made significant gains, but put the area under ISIS control about a quarter of the city.

Yesterday, even as the Pentagon said that coalition airstrikes had forced some ISIS militants out of the town, they cautioned that it might still fall, with Pentagon press secretary Rear Adm. John Kirby saying, “Kobani could be taken. We recognize that.”

While almost everyone has acknowledged that airstrikes alone cannot save Kobani, a complicated web of alliances, political grievances, and competing interests has kept capable parties from intervening. The New York Times covers the divisions, noting that Kurds insist that Turkey allow Kurdish fighters and weapons to flow into the encircled town, but Turkey has refused to do so unless the beleaguered fighters distance themselves from an an outlawed Kurdish separatist party in Turkey. While Kurdish fighters in the region have suggested they do not want Turkish military intervention, the Washington Post reports that the United States is becoming increasingly frustrated with Turkish inaction to prevent what some fear will be a massacre. One senior White House official said, “Of course they could do more,” adding, “they want the U.S. to come in and take care of the problem.”

However, Turkey’s foreign minister said that “it is not realistic to expect Turkey to conduct a ground operation on its own.” Instead, Turkey has called for a no-fly zone and for the coalition to establish a buffer zone for refugees, and for the active effort of the coalition to remove Syrian President Bashar al-Assad from power. The BBC has more on the road blocks, which are certain to be discussed when President Obama’s emissary to the international coalition, U.S. General John Allen, holds high-level talks in Ankara today.

In the wake of U.S.-led coalition’s fight against ISIS, Assad has turned his guns exclusively on other rebel groups, reports the New York Times. Some in Syria have suggested that the U.S. laser-like focus on the Islamic State has given cover to Assad, allowing him to tackle less extreme and more moderate forces – those same forces the United States may eventually need to employ to defeat ISIS. The Times notes that the attacks, which occur from the same airspace that the U.S. now occupies, have triggered resentment from Syrians who feel betrayed. Many view the White House’s decision to focus on ISIS as playing into Assad’s strategy of eliminating moderate opposition, and forcing the international community to choose between him or the extremists.

Strikes also continue in Iraq, with U.S. aircraft hitting targets inside Mosul yesterday. However, while Pentagon officials continue to assert that they have partners on the ground in Iraq – partners they argue they do not have in Syria – the Daily Beast reports that Iraqi soldiers are bribing officers in order to avoid having to fight ISIS. One officer laments that the “phenomenon is destroying the Iraqi army.”

Finally, in Foreign Policy, Shane Harris dives into the murky efforts to free Americans held hostage in Syria, where uncoordinated and inconsistent policy means that “no one’s really in charge.”

Violence surged again in Kashmir today, with Indian and Pakistani defense ministers trading warnings. BBC notes that 19 civilians have been killed since fighting resumed last Friday. The BBC also has on-the-ground reporting, visiting both sides of the border to find out how people are coping with this latest round of violence. Yet, even as the situation continues to devolve, Indian Prime Minister Narendra Modi was quoted saying, “everything will be fine soon.” The newly elected leader gave no further explanation. The sparing continued online, as #CowardModi trended on Twitter in Pakistan, while #BuzdilPakistan (coward Pakistan), trended in India.

The U.S. conducted another drone strike in Pakistan today, Reuters reports. At least three people were killed and two wounded in the fourth strike in as many days.

In an unprecedented move, sitting Prime Minister Nawaz Sharif became the first Pakistani prime minister to visit the restive tribal region of North Waziristan, a trip designed to boost morale of security forces in the ongoing military operation in the province. Pakistan’s Dawn has more.

Instability continues rocking eastern Ukraine. According to the United Nations’ human rights office in Geneva, approximately 331 people have died since a ceasefire was announced in the conflict last month. That brings the total number of fatalities to at least 3,660, in addition to 8,756 wounded. The New York Times reports that “most civilian deaths had been caused by indiscriminate shelling of residential areas” by both sides. These totals do not include alleged mass graves by separatist groups, which have not been independently corroborated.

The Times also writes that the sanctions “tit for tat” continues between Western nations and Russia. In the saga’s latest development, the Russian Duma on Wednesday passed a law through first-round reading that would authorize the Kremlin to “seize foreign assets and use them to compensate individuals and businesses being hurt by Western sanctions.” The sanctions are causing jitters among large multinational corporations with billions of dollars at stake in Russia, including Pepsi, McDonald’s, and ExxonMobil. The legislation still requires two more readings and the signature of the President to become law.

Carol Rosenberg of the Miami Herald publicizes the recent reveal in Obama v. Dhiab that Guantanamo staff this year offered six hunger-striking detainees comfy seats, communal force-feedings, and television distraction “as a way to get them to stop their food protest.” Wells Bennett and Ben Bissell have also been tracking the details of this case for Lawfare in a three-part readout, which you can peruse here and here and here.

Speaking of Guantanamo, the Associated Press reports that on Wednesday, Uruguayan President Jose Mujica said he would have to consult with his successor “about whether Uruguay should let six prisoners…resettle in the…country.” Growing public opposition to the “humanitarian gesture” has put the plan under new scrutiny.

In the latest development in the Anas al Libi trial, al Libi’s lawyer told a federal judge yesterday that his client, “grilled for six days on a Navy warship by the CIA, should “not be held to what he later told the FBI.” His lawyer claims he was held under “extraordinary circumstances.” While al Libi signed a form that waived his Miranda rights, he later revoked it and pleaded not guilty to charges that “he assisted in the attacks on two US Embassies in 1998.” Courthouse News has more.

According to the Associated Press, a government lawyer argued in a case before the 9th US Circuit Court of Appeals that national security efforts would be endangered if the FBI was “barred from sending secretive demands for customer data,” known as national security letters, “to telecommunication companies, banks and other businesses.” The case is examining whether or not gag orders barring said recipients of national security letters are free speech violations.

In a round-table in Silicon Valley that examined “The Impact of Mass Surveillance on the Digital Economy,” Google Chairman Eric Schmidt said surveillance fears are going to end up “breaking the Internet.” The Washington Post reports that Schmidt was joined at the event by US Senator and Chairman of the Senate Finance Committee Ron Wyden (D-Ore.), as well as the heads of other major technology/Internet companies. According to the Associated Press, Senator Wyden also sounded the alarm, saying NSA spying could imperil the US digital economy.

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.

 

Dhiab Preliminary Injunction Hearing Read-Out, Part Three

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Thursday, October 9, 2014 at 1:38 PM

Today marks our last little dispatch about the preliminary injunction hearing in the case of Abu Wa’El (Jihad) Dhiab, Syrian national, cleared-for-release Guantanamo detainee, and—most relevantly for present purposes—intermittent hunger-striker.

Yesterday’s open proceedings can be summarized straightforwardly: in essence, the government concluded its evidence against Dhiab’s motion for a preliminary injunction with respect to certain Guantanamo force-feeding protocols. In keeping with the day before, such evidence was presented without the calling of witnesses; instead, attorneys for the United States highlighted, and read aloud from, key pieces of documentary proof.

There followed a lengthy closed session; upon its conclusion, and at the court’s direction, the parties’ forewent closing oral arguments on the motion.  Summation instead will be presented in forthcoming written briefs; presumably, a written ruling will come after that.

You will find a brief summary of yesterday’s action below the jump.

Read more »

Some Recent NSA Debates

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Thursday, October 9, 2014 at 11:33 AM

Here’s some video of some recent NSA debates.

Here’s one that took place a couple of weeks ago at Georgetown on “The NSA, Privacy & the Global Internet: Perspectives on EO 12333.” Participants included law professors Nathan Sales, Laura Donohue, DNI General Counsel Bob Litt, and former State Department official John Tyre.

This one, from Intelligence Squared US, took place the other day around the resolution: “Mass Collection of U.S. Phone Records Violates the Fourth Amendment.” Debaters include former NSA General Counsel Stewart Baker, law professor and former OLC official John Yoo, Alex Abdo of the ACLU, and Elizabeth Wydra of the Constitutional Accountability Project.

The Law and Policy of Ebola Interdiction

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Thursday, October 9, 2014 at 7:00 AM

A few days ago President Obama announced his intention to do greater screening of passengers arriving in the United States, as a way of interdicting the spread of the Ebola virus. According to the Washington Post, the new procedures will include “entry” screening – that is screening upon arrival in the United States – layered on top of the already existing “exit” screening that is being conducted at airports in West Africa. “The new screening possibilities being considered by the administration include taking the temperature of travelers from affected countries upon their arrival at major U.S. airports and more-closely tracking travel histories for international travelers arriving in the United States.” According to an NPR story today, the new screening will happen at the top 5 airports in the US (including Dulles) and will at least in part also involve CBP officers “looking at patients for signs of distress.”   [Traffic to the US from West Africa typically transits Europe. Given the current African focus of Ebola the other 4 airports being covered are also European-focused: JFK, Atlanta, O’Hare and Newark. Note that this still leaves large transit hubs like Miami and Dallas uncovered for now.]

It is useful, as this plan moves forward, to consider both some of the legal issues involved in such screening and some of the practical/policy considerations that are likely driving the discussion. Herewith a short synopsis [with the caveat that my own experience is exclusively in the DHS/homeland security law space – there are applicable public health laws, with which I’m generally familiar, but I lack expertise and may misstate slightly – corrections welcome]:

Legal Authority

In dealing with a pandemic from overseas, HHS has, pursuant to the Public Health Service Act, 42 U.S.C. 201 et seq., statutory and regulatory responsibility for preventing the introduction, transmission, and spread of communicable disease from foreign countries into the United States. Applicable HHS regulations are found in 42 C.F.R. Parts 34 and 71. These responsibilities are delegated to the Centers for Disease Control and Prevention (CDC), National Center for Infectious Diseases, Division of Quarantine. Read more »

Twitter Files Lawsuit Against Justice Department, FBI

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Wednesday, October 8, 2014 at 9:23 PM

Twitter filed suit yesterday against Attorney General Eric Holder, the Department of Justice, Federal Bureau of Investigation Director James Comey, and the FBI in the District Court for the Northern District of California. You can read the company’s announcement on their website, and a copy of the complaint is available here. The latter is—forgive the e-humor—a bit longer than 140 characters.

The company’s principal gripe with the government is that it has been prevented from publishing a Transparency Report detailing the number of Twitter accounts the government has sought to monitor for national security purposes. According to the complaint, Twitter submitted the document to the government on April 1, 2014; the United States informed the company in September that “information contained in the [Transparency Report] is classified and cannot be publicly released” because it does not comply with a framework for reporting data about government requests, as set forth under two surveillance laws.

The first of the pair: Section 2709 of the Stored Communications Act. This authorizes the FBI to issue National Security Letters (“NSLs”) to electronic communication service providers, compelling them to disclose subscriber information and billing records upon a certification by the FBI that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” The other statute in play is the Foreign Intelligence Surveillance Act.

The company claims that the non-disclosure and judicial review provisions of both statutes are unconstitutional, chiefly on First Amendment grounds. In particular, plaintiffs say the United States’ “position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.” Twitter also argues that Section 2709 is unconstitutional on separation of powers grounds because it requires courts to apply a more deferential standard of review than would otherwise be constitutionally permissible. (The challenge to Section 2709 is made on an  “as applied” as well as a facial basis.)

Finally, the company also rejects the notion that Twitter is “similarly situated” to the group of technology companies which settled a dispute with the Justice Department in January. Under that settlement, tech companies could report the number of surveillance requests in broad bands of 1000, but could not disclose more specific figures. Here, Twitter claims that imposing the requirements of the settlement on Twitter, a non-party, represents both a violation of the Administrative Procedure Act and Twitter’s First Amendment rights.

According to the complaint, Twitter met with representatives of the DOJ and FBI on January 29, 2014, and sought clarification about whether the government considered them a “similarly situated” party that would thus be bound by the terms of the previous settlement, set forth in a January 27, 2014 letter from Deputy Attorney General James M. Cole (the “DAG Letter”). That letter—sent to the General Counsels of Facebook, Google, Microsoft, LinkedIn and Yahoo!—laid out the permissible disclosure options for the tech companies, and provided guidelines for the types of aggregate data regarding surveillance requests that these companies could release to the public.

Although the government has not specifically commented on the substance of Twitter’s complaint, it seems—from the breakdown of negotiations and from Twitter’s complaint—that the government’s position is likely to be that Twitter is also bound by the same disclosure requirements, both for FISA-related information and for NSLs. Specifically, the complaint alleges that at the January 29th meeting, “the DOJ and FBI told Twitter that the DAG Letter sets forth the limits of permissible transparency-related speech for Twitter and that the letter would not be amended or supplemented with additional options of preapproved speech.” Crucially, under both disclosure options presented in the DAG letter, Twitter apparently cannot report if it received zero requests, and would instead have to report the number of requests in bands, i.e. 0-250 or 0-1000 (the specific options available under the framework are laid out on page 7 of the complaint).

In other words, if the government had never issued an NSL or a FISA order to Twitter (and keep in mind that Twitter accounts are generally public), Twitter could not report that fact to its users in order to put their minds at rest, because such disclosures—not having been previously authorized by the DOJ or FBI—would run afoul of 18 U.S.C. § 2709(c)(1), which provides that the recipient of an NSL shall not disclose “to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records.”

Government sources told the Washington Post that they are currently reviewing the complaint.

#StayTuned.

NSA Report on Civil Liberties and Privacy Protections under EO 12333

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Wednesday, October 8, 2014 at 4:00 PM

In January 2014, the NSA’s Civil Liberties and Privacy Office (CLPO) was created. The CLPO was tasked with ensuring that civil liberties and privacy protection considerations are integrated into the NSA’s mission activities. Yesterday—and importantly, given the disclosures about NSA surveillance, and subsequent developments—the CLPO released its Report on Civil Liberties and Privacy Protections for Targeted SIGINT Activities under Executive Order 12333.  (The latter, as readers well know, represents the legal basis for a great many of the United States’ signals intelligence programs.)

As the executive summary puts it, the report “addresses the general civil liberties and privacy protections employed by the NSA” and “documents additional procedures for targeted Signals Intelligence activities under Executive Order (E.O.) 12333.” Specifically, the report examines: 1) the NSA’s Management Activities that are applied throughout the Agency; and 2) the Mission Safeguards used in SIGINT missions conducted under E.O.12333. Significantly, the report is limited in scope: it “focuses only on U.S. person protections.”

Below, I overview the report’s contents.

Read more »

Steptoe Cyberlaw Podcast, Episode #37: An Interview with Rob Corbet

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Wednesday, October 8, 2014 at 3:00 PM

Our guest today is Rob Corbet, a partner and head of the Technology & Innovation group in Arthur Cox, a large Irish law firm. Ireland is a uniquely important jurisdiction for US companies dealing with data protection issue. I ask whether Ireland’s role is going to become more or less powerful under the proposed revision, and we talk about the replacement of its longstanding data protection commissioner.

This week in NSA: NSA is getting ever thinner, but there is still a knock-on effect from the Snowden revelations, which is now complicating the way Treasury designates people and institutions for sanctions. This is a complex tale, and we will dig deeper into it next week.

Web publishers are taking it on the chin everywhere. Russia has told Google, Twitter, and Facebook to register under Russian law and submit to Russian regulation, including local storage of Russian data. And the EU Article 29 Working Party is working on how to implement the right to be forgotten, combining its usual ineffectual bureaucratics with politically correct misrepresentations. Bet you didn’t know that the right to be forgotten isn’t censorship, apparently because you’re being censored first by companies, then by “independent” data protection agencies, and finally by the courts. That’s not censorship, say European regulators, it’s “balancing.” I’m reminded of Mary McCarthy, who famously said of Lillian Hellman, “Every word she writes is a lie, including “and” and ‘the’.” (Meanwhile the New York Times announces that it’s been hit by the right to be forgotten, with several of its stories going down the memory hole.)

In the US, the attack on web publishers is taking a different form, but it’s no less effective. When Apple screws up and allows the disclosure of celebrity nude photos, it’s Google that gets hit with the threat of a $100 million lawsuit, on grounds that are half copyright, and half a kind of right to be forgotten. Google immediately surrenders, claiming that it’s taken down links to the photos.

Finally, in the most troubling cybersecurity news of the month, maybe the year, JP Morgan acknowledges a deep penetration of its computer networks by sophisticated hackers – quite possibly aided by the Russian government.  Exactly what the hackers took and what they intended is still not clear, something that makes the intrusion more ominous not less, raising as it does the possibility that Russia intends to impose its own style of financial sanctions on the United States.

All of which raises the question whether JP Morgan should protect itself by adding a “Herod clause” to its terms of service: anyone accessing the site without authority automatically surrenders custody of his firstborn. If it worked for F-Secure’s free wi-fi service, maybe it will work for cybersecurity.

The Cyberlaw Podcast is now open to feedback. Send your questions, suggestions for interview candidates or topics to [email protected]. If you’d like to leave a message by phone, contact us at +1 202 862 5785.

ISIS Issues 11 Rules for Journalists

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Wednesday, October 8, 2014 at 2:58 PM

The blog Syria Deeply, one of the better sources for on-the-ground information in Syria, has a first-hand account of new strictures handed down from the Islamic State in Iraq and Syria for journalist in the Syrian province of Deir Ezzor. According to a journalist in the region, the new rules have caused many journalists to flee the area. Even so, another journalist notes that after leaving the province, he continued to receive threats—including crucifixion of his family if he did not return. A man simply listed as Maher, who was a media activist during the Assad regime, suggests the situation might have been better under Assad, when censorship included beatings and months-long periods of detainment, instead of summary death sentences, crucifixions, and beheadings. 

Here are the new rules controlling the press in the Islamic State:

  1. Correspondents must swear allegiance to the Caliph [Abu Bakr] al-Baghdadi . . . they are subjects of the Islamic State and, as subjects, they are obliged to swear loyalty to their imam.
  2. Their work will be under the exclusive supervision of the [ISIS] media offices.
  3. Journalists can work directly with international news agencies (such as Reuters, AFP and AP), but they are to avoid all international and local satellite TV channels. They are forbidden to provide any exclusive material or have any contact (sound or image) with them in any capacity.
  4. Journalists are forbidden to work in any way with the TV channels placed on the blacklist of channels that fight against Islamic countries (such as Al-Arabiya, Al Jazeera and Orient). Violators will be held accountable.
  5. Journalists are allowed to cover events in the governorate with either written or still images without having to refer back to the [ISIS] media office. All published pieces and photos must carry the journalist’s and photographer’s names.
  6. Journalists are not allowed to publish any reportage (print or broadcast) without referring to the [ISIS] media office first.
  7. Journalists may have their own social media accounts and blogs to disseminate news and pictures. However, the ISIS media office must have the addresses and name handles of these accounts and pages.
  8. Journalists must abide by the regulations when taking photos within [ISIS territory] and avoid filming locations or security events where taking pictures is prohibited.
  9. ISIS media offices will follow up on the work of local journalists within [ISIS territory] and in the state media. Any violation of the rules in place will lead to suspending the journalist from his work, and he will be held accountable.
  10. The rules are not final and are subject to change at any time depending on the circumstances and the degree of cooperation between journalists and their commitment to their brothers in the ISIS media offices.
  11. Journalists are given a license to practice their work after submitting a license request at the [ISIS] media office.

Today’s Headlines and Commentary

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Wednesday, October 8, 2014 at 1:20 PM

Redoubled U.S.-led airstrikes have successfully pushed back Islamic State militants fighting for the northern Syrian town of Kobani. Reuters quotes the deputy foreign minister of the Kobani district, Idris Nassan, who said, “They are now outside the entrances of the city of Kobani. The shelling and bombardment was very effective.”

According to Iraqi officials, Anbar province, a region which serves as a buffer between the Islamic State and the capital of Baghdad, “is at a new risk of falling to the militant group.” The Wall Street Journal reports that more U.S.-led airstrikes are necessary to prevent cities and crucial infrastructure, such as dams, from being overtaken.

At the Pentagon today, the Joint Chiefs of Staff and combatant commanders will brief President Obama on U.S. efforts to combat the Islamic State. Likely under discussion will be the success of American-led airstrikes in Iraq and Syria. Military Times quotes retired military officials’ predictions about today’s meeting.

In an interview with CNN yesterday, former Defense Secretary and CIA Director Leon Panetta reiterated his recent criticisms of President Obama’s strategy in the Middle East: “I take the position that when you’re commander in chief that you oughta keep all options on the table … to be able to have the flexibility to do what is necessary in order to defeat the enemy.”

Foreign Policy examines whether military officials should resign in protest if civilian leaders fail to implement their recommendations.

In London yesterday, British police and MI5 apprehended four men with ties to the Islamic State. According to the Telegraph, these individuals were “in the ‘early stages’ of planning a ‘significant’ attack.”

Stateside, the FBI has turned to social media to identify and combat foreign fighters. Yesterday, the Bureau took to Facebook and Twitter to ask for information regarding the identity of an Islamic State militant who has appeared in a number of propaganda videos and speaks English with a North American accent. The National Journal shares details.

The Guardian reports that at a meeting of the UN Security Council yesterday, a special representative of the UN secretary general informed diplomats that the Syrian government has disclosed the existence of four additional chemical weapons facilities. U.S. officials have expressed concerns that Islamic State militants could gain access to Syria’s secret chemical weapons stockpiles.

The Daily Beast informs us that the Free Syrian Army has overtaken what could be a Russian-Syrian “covert intelligence collection base” near the Golan Heights.

Ukrainian President Petro Poroshenko has called for more international monitors on his country’s border with Russia, accusing pro-Russian separatists of violating the terms of the ceasefire negotiated last month. The Wall Street Journal has details.

According to Reuters, “breaches of the ceasefire in eastern Ukraine have renewed Western diplomatic pressure on Moscow.” Polish Foreign Minister Grzegorz Schetyna announced yesterday that the European Union will toughen sanctions against Russia if it continues its current policy toward Ukraine.

The Associated Press reports that U.S. Secretary of State John Kerry will travel to Vienna next week to participate in P5+1 nuclear negotiations with Iran. With the late-November deadline looming, diplomats have seven weeks to make a deal.

On Monday, U.S. Special Inspector General for Afghanistan Reconstruction John Sopko released a report accusing the UN Development Program of “exercising a ‘baffling’ lack of oversight of a fraud-tainted, multibillion-dollar program that funds the payroll of the Afghan police.” Foreign Policy has the story.

Yesterday, Twitter filed suit against the U.S. government, “alleging that the Justice Department’s restrictions on what the company can say publicly about the government’s national security requests for user data violate the firm’s First Amendment rights.” Twitter would like to be able to announce publicly the number and types of information requests it receives. After failing to reach an out-of-court settlement, the company filed its complaint before the U.S. District Court for the Northern District of California. The Washington Post has more.

Air Force Col. Judge Vance Spath ruled yesterday against a defense motion to have doctors conduct an MRI scan of Guantanamo detainee Abd al Rahim al Nashiri’s brain in search of “organic brain damage.” The Miami Herald has the story.

Yesterday, Abu Anas al-Libi, a Libyan man facing charges for his suspected involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania, filed a motion with the U.S. District Court in Manhattan to suppress self-incriminating statements he made to the FBI. According to the Wall Street Journal, al-Libi alleges that he was tortured and his statements coerced.

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.

Dhiab Preliminary Injunction Hearing Read-Out, Part Two

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Wednesday, October 8, 2014 at 1:11 PM

We continue with our coverage of a preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab.

As before, we recount the prior day’s proceedings in summary fashion. In short, the day saw further cross-examination of one of the detainee’s experts, Dr. Stephen Xenakis; direct and cross-examination of another expert, Dr. Steven Miles; and the commencement of the government’s evidence. The latter called no witnesses. Its presentation instead comprised only documents, portions of which were highlighted by the United States’ lawyers. And, as before, there was a brief classified session—which only court, counsel and witnesses attended.

Read more »

More on the War Powers Resolution and the Use of Force Against the Islamic State

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Wednesday, October 8, 2014 at 12:56 PM

This morning I argued that the Obama administration had violated the War Powers Resolution unless its is correct in its contention that the 2001 and 2002 AUMFs together authorize the use of force against the Islamic State in Iraq and Syria.  Three follow-ups:

First, I speculated this morning that “the administration was pushed by the looming WPR deadline to switch from an Article II basis for the conflict against the Islamic State to a combined AUMF-Article II basis.”  This speculation finds some confirmation in this “on background” statement by a “senior administration official” at about the time of the switch to the AUMF theory:

“We believe that he can rely on the 2001 AUMF as statutory authority for the military airstrike operations he is directing against ISIL, for instance.  And we believe that he has the authority to continue these operations beyond 60 days, consistent with the War Powers Resolution, because the operations are authorized by a statute.”

Second, I said that “very few in Congress . . . seem to care how its vital framework war statutes are being construed.”  A staffer on the Hill pointed to this statement from the Senate Republican Policy Committee to show me I was wrong:

This abuse of the 2001 AUMF has significant consequences. Under section five of the War Powers Act, if the president introduces the U.S. military into hostilities, he may generally keep them there beyond 60 days only if Congress somehow acts to authorize such a use of military force. It is clear President Obama is claiming the authority to act against ISIS under the 2001 AUMF so he can avoid the requirement to seek congressional authorization under the War Powers Act. As one administration official admitted, the 2001 AUMF serves as the congressional authorization for these operations against ISIS, and thus the president “has the authority to continue these operations beyond 60 days.”

OK, fair point, but this has not exactly been an issue item for Republican party (or Democratic party) leadership.

Third, Ryan Goodman appears troubled by my last paragraph because, he says, I am “a firm believer that _2002_ AUMF may justify ISIL strikes.”  What I said about the 2002 AUMF is that it is “not at all hard” to apply it to strikes against the Islamic State in Iraq, and that it “arguably authorizes” force in Syria if certain conditions are met.  I have not seen anyone else who agrees with me on this interpretation (Ryan doesn’t), especially with regard to Syria, and I am not even sure that the administration is relying on the 2002 AUMF in Syria.  The relative weakness of the 2002 AUMF argument as applied to Syria is why I said, in my original post, that “compliance with the WPR, especially for airstrikes in Syria, depends on the administration’s tenuous interpretation of the 2001 AUMF.”  But if in fact the 2002 AUMF does authorize the use of force in the Islamic State in Iraq and Syria – any takers? – then there is no WPR problem.

The Administration Has Violated the War Powers Resolution Unless It is Right About the Applicability of the AUMFs to the Islamic State

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Wednesday, October 8, 2014 at 7:50 AM

On Monday, Senator Cruz maintained that the War Powers Resolution (WPR) clock had expired because 60 days had passed since the first air strikes against the Islamic State, which the President notified Congress about in a letter to Congress on August 8.  “Given that 60 days has expired,” the Senator argued, “the president should come to Congress and get proper authorization for this new military action.”

Section 5(b) of the WPR requires the President to “terminate any use of United States Armed Forces” 60 days after he introduces such forces into “hostilities” unless Congress “has enacted a specific authorization for such use of United States Armed Forces.”  Senator Cruz is thus right that the WPR requires the President to seek new congressional authorization from Congress unless the 2001 and 2002 AUMFs are specific authorization” for the airstrikes against the Islamic State.  Recall that the President originally (in August and September) relied on Article II alone as a basis for the strikes against IS.  He then switched about a month ago to say that the strikes are also based on the 2001 and 2002 AUMFs.  The switch in legal rationales has enormous significance for – and in my judgment was likely motivated by – compliance with the WPR.  For if the AUMFs are a proper basis for the strikes against the Islamic State, then there is no issue under the WPR because Congress has authorized the conflict.  Only if the President is wrong about the applicability of the AUMFs to the Islamic State is there a problem under the WPR.

If the administration was pushed by the looming WPR deadline to switch from an Article II basis for the conflict against the Islamic State to a combined AUMF-Article II basis, then it stretched at least one statute (the 2001 AUMF) in order to comply with another (the WPR).  (An alternative would have been to continue to rely on Article II alone and maintain that the WPR did not apply because U.S. troops were not in “hostilities,” or because each strike in Iraq was a discrete and terminated episode of hostilities – but both of these constructions of the WPR would have been even less plausible than the interpretation of the 2001 AUMF.)

Whatever the administration’s motives may be, the important point is that compliance with the WPR, especially for airstrikes in Syria, depends on the administration’s tenuous interpretation of the 2001 AUMF.  But very few in Congress – Senator Cruz and a few others – seem to care how its vital framework war statutes are being construed.

Plaintiffs File Reply in Klayman v. Obama

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Tuesday, October 7, 2014 at 11:51 PM

Last Friday plaintiffs (appellees/cross-appellants) in Klayman v. Obama filed their reply to the government’s response and reply brief. The plaintiffs’ new 38-page filing largely reiterates arguments from their August 13, 2014 brief—for example, contending again that Riley v. California, 134 S. Ct. 2473 (2014) changes the precedential effect of Smith v. Maryland: “The Supreme Court’s modern up-to-date view of today’s cellular phones has surely impacted the extent that the Government Defendants can lawfully intrude upon citizens’ rights. In fact, Riley in the context of this case, eliminates Smith. This is not a pen register, this is metadata; it is every aspect of our lives.”

The summary opens:

The Government Defendants, in their Response and Reply Brief, completely sidestep the crucial constitutional issues regarding the First and Fifth Amendments. This Court must decide these issues involving the First and Fifth Amendments because they are just as important as Plaintiffs’ Fourth Amendment claim, in which the United States District Court for the District of Columbia (“District Court”) found that Plaintiffs had standing to bring. The significance of metadata in addition to the district court’s ruling in the present case establishes standing to challenge the Section 215 illegal government surveillance of bulk telephony metadata. Further, the Government Defendants distort the significance of the Supreme Court’s groundbreaking decision in Riley v. California, 134 S.Ct. 2473 (2014), as Riley is controlling and Smith v. Maryland, 442 U.S. 735 (1979) is inapplicable under the circumstances in the present case. Finally, the government defendants cannot establish a “special need” to warrant the use of the Section 215 illegal government surveillance of bulk telephony metadata.

See the government’s opening brief, the plaintiffs’ response, and the government response and reply.

 

Oral Argument Tomorrow in Under Seal v. Holder

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Tuesday, October 7, 2014 at 10:23 PM

Speaking of National Security Letter (NSL) challenges: tomorrow morning Judges Ikuta, N. Randy Smith and Murguia of the Ninth Circuit will hear oral argument in In re National Security Letter, Under Seal v. Holder. These cases are sealed, but the Court has ordered the disclosure of party briefs and other documents, available here. [Just a note: Nos. 13-15957 and 13-16731 deal have been consolidated; No. 13-16732 deals with the same legal issues but a different NSL recipient and have been briefed separately but placed on the same briefing and oral argument schedule as the consolidated cases.]

Recall that on March 14, 2013, the EFF prevailed in its suit to set aside an NSL seeking subscriber information from its client, an unnamed electronic communication service provider. Judge Susan Illston of the Northern District of California ruled that the gag provisions of the NSL statute (18 U.S.C. § 2709(c)) violated the First Amendment, and that other provisions mandating the standard of review and level of deference to be applied by the reviewing court (§ 3511(b)) violated the First Amendment and separation of powers principles.

After the court’s ruling, the government filed an amended complaint again asking the court to compel the company to turn over subscriber information; the court granted EFF’s motion for a stay pending the government’s appeal of the court’s March ruling. On May 21 and May 23, 2013, the court denied an EFF petition filed on behalf of a second NSL recipient requesting the court set aside NSLs, and on August 12, 2013, the court denied another EFF petition to set aside NSLs filed on behalf of yet a third NSL recipient.

See the government’s opening brief (for Nos. 13-15957 & 13-16731); the EFF’s opening and responding briefs in Nos. 13-15957 & 13-16731 and 13-16732 (redacted); the government’s reply brief; and EFF’S appellee/appellant reply brief in Nos. 13-15957 & 13-16731 and 13-16732 (redacted). Additional briefs, including amicus briefs and motions to unseal the briefs, can be found at the Ninth Circuit link above.

Fourth Circuit Affirms Refusal to Vacate Sentence in United States v. Abu Ali

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Tuesday, October 7, 2014 at 4:04 PM

In an unpublished per curiam opinion, Chief Judge Traxler and Judges Wilkinson and Motz of the Fourth Circuit today dismissed Ahmed Omar Abu Ali’s bid to overturn the district court’s 2012 order denying relief on his 28 U.S.C. § 2255 motion to vacate his sentence.

Some background: Abu Ali—a U.S. citizen born in Texas and raised in Virginia—was arrested by the Saudi Ministry of the Interior in 2003 based on his alleged affiliation with the al Qaeda cell al-Faq’asi, responsible for the May 12, 2003 suicide attacks on foreign housing compounds in Riyadh that killed about three dozen people, including nine Americans. Abu Ali alleged he was tortured while in Saudi custody for two years, with FBI participation; in 2005, he was indicted by a federal grand jury in Virginia and flown to the United States.

The district court issued a 113-page opinion rejecting Abu Ali’s bid for suppression of his statements while in detention and dismissing his account of his alleged torture. On November 22, 2005, a jury convicted Abu Ali on all nine offenses charged, including plotting to kill President George W. Bush, and Judge Gerald Lee sentenced him to 30  years behind bars, to be followed by 30 years of supervised release. Abu Ali lost his appeal, but the government prevailed on its cross-appeal of his sentence—the district court imposed a life sentence on remand, which the Fourth Circuit affirmed in a 2011 unpublished opinion.

For a thorough discussion of the early procedural history and some of the novel issues the case raised, see Stephen Vladeck’s excellent 2010 ACS issue brief.

Petitioner Files Reply in Bahlul v. United States

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Tuesday, October 7, 2014 at 4:00 PM

Petitioner Ali al-Bahlul filed his reply brief yesterday in Bahlul v. United States, the D.C. Circuit case that will decide whether a military commission may render a stand-alone conspiracy conviction.

In the new filing, petitioner makes a point of rejecting the government’s claim for plain error review before elaborating on the four arguments put forth in his opening brief. The argument proceeds as follows:

(1) The government forfeited any claim to plain error review. 

In response to the government’s request that the court review the remaining issues in the case only for plain error, based on Bahlul’s alleged forfeiture of these issues at trial,  petitioner points out that the government waited “many years, multiple rounds of briefing, and two oral arguments” before asserting forfeiture or request plain error review on any issue.

(2) Congress exceeded its authority under the Define and Punish Clause by attempting to turn conspiracy into a war crime. 

This is the crux of the petitioner’s brief, and comprises five sections. First, petitioner contends that his argument under the Define and Punish Clause should be reviewed de novo. Second, petitioner rejects government’s claim that Congress’s power to codify war crimes could derive from its general war powers, arguing instead that it derives from the Define and Punish Clause alone. Third, petitioner attempts to poke holes in the government’s heavy reliance on the historic use of military tribunals to try spying and aiding enemy offenses as evidence of Congress’s broad power to proscribe law-of-war offenses, arguing instead that spying and aiding the enemy support the traditional scope of Congress’s power under the Define and Punish Clause. Fourth, petitioner argues that the government has failed in its attempts to characterize the military trials of the Nazi Saboteurs, the Lincoln Assassins and Ledger Grenfel as precedent, as none supports Bahlul’s conviction for the stand-alone war crime of conspiracy. Finally, petitioner dismisses the government’s alternative reliance on the Necessary and Proper Clause as a “fudge-factor” that allows Congress to criminalize offenses not recognized under international law as indistinguishable from an argument rejected by the Supreme Court in the 1955 case of Toth v. Quarles, 305 U.S. 11, where the Court held that Congress’s broad authority to regulate the Armed Forces does not allow it to circumvent Bill of Rights safeguards through the Necessary and Proper Clause.

 (3) Conspiracy is a domestic-law crime triable only in civilian court. 

First, petitioner argues that even if the government had not waived any reliance on procedural defaults to evade de novo review of the Article III issue, compliance with the jurisdictional limits imposed by Article III is properly reviewed de novo.  Second, Quirin establishes that conspiracy is not triable by military commission.

(4) The government cannot put thoughts, beliefs and ideals on trial.

The petitioner begins by contending that First Amendment issues present a special case on appellate review and must be reviewed de novo. Petitioner then criticizes the “cramped” view of the First Amendment underlying the government’s claim that it was under no obligation to respect freedom of speech in the course of Bahlul’s prosecution because he had no First Amendment rights in Afghanistan.

 (5) Segregating the criminal justice system is unconstitutional.

Petitioner argues that the military commissions’ discrimination on the basis of nationality is properly reviewed de novo. Petitioner then argues that this de jure segregation is subject to strict-scrutiny and that the extensive legislative record shows that the motivations for the segregation of terrorism trials evidence de jure discrimination that was invidious, irrational and unconstitutional.
Check out our summary of the government’s response. Oral argument is scheduled for October 22, 2014.

Today’s Headlines and Commentary

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Tuesday, October 7, 2014 at 2:56 PM

The Islamic State is closing in on the northern Syrian town of Kobani, reports Reuters. According to Turkish President Tayyip Erdogan, the Kurdish town located along the border is “about to fall” as ISIS militants advance into the south west of the city. Kobani has been under siege for three weeks, yet so far, Turkish authorities in Ankara have made no move to protect the city, even as the black flags of ISIS can now been seen just across the border.

The lack of action has stoked concerns that long-held anxieties regarding Kurdish separatism is stopping Turkey from intervening and preventing what some fear will be a massacre. Outrage and desperation have led Kurdish minorities in Turkey and in Europe to protest the Islamic State’s assault on Kobani, resulting in clashes between protesters and security forces.

Instead, the Wall Street Journal reports that Mr. Erdogan criticized the U.S.-led coalition, suggesting that air strikes were not enough while reiterating an earlier call for a no-fly zone, a parallel safety zone along the border, and increased training and arms for Syrian rebels operating on the ground.

In the Atlantic, Jeffrey Goldberg writes on the grim situation in Kobani, and the “terrible slaughter that is coming” if ISIS breaks through. According to various reports, women with no military training are being asked to defend their homes, and on Sunday, Syrian activists reported that a female Kurdish fighter blew herself up instead of surrendering to capture by the Islamic State.

From another Reuters report: “We either die or win. No fighter is leaving,” Esmat al-Sheikh, leader of the Kobani Defense Authority, told Reuters. “The world is watching, just watching and leaving these monsters to kill everyone, even children . . . but we will fight to the end with what weapons we have.” Read more »

Reporter’s Notebook: Covering the Hong Kong Protests

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Tuesday, October 7, 2014 at 2:00 PM

I have been left astonished by the protests that rocked Hong Kong last week, especially the organization, kindness and ambition of the youthful protesters asking Beijing for the right to choose who runs their city.

What was so impressive? Maybe it started with the trash. After days of protest, the students were still cleaning up after themselves. I saw them sort trash in the wee hours—paper here, plastic there.

“I can’t believe they were tear-gassed and pepper-sprayed, and then they pick up the garbage the next day,” a woman at the scene whispered to me.

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Young supporters handed out yellow ribbons, a symbol of solidarity. Students could be seen doing their homework in the middle of the night. Others offered biscuits to members of the same police force that days
earlier deployed tear gas against the crowds. Some found a creative use for umbrellas, which became a symbol of the protests after they were used to defend against pepper spray. Protesters used them as decoration or makeshift tents. They came in handy when it rained, too.

A few protesters zipped around on motorbikes making sure all protest areas were well-stocked with donated supplies. Nurses organized on Facebook, and staffed first aid tents at the three main protest sites. The students were quick to lend a hand, holding my camera and steadying me as I clambered over road barricades. One pressed a water bottle and cooling patch into my hands. “Take it, it’s too hot out here,” she said. “I have more.”photo 4

Signs were everywhere: First in Chinese, then English: “I love my home, I protect my city,” “The next generation thanks you” and “Keep calm and open your umbrella.” As the days went by, I lost count of the languages: Korean, Dutch, Greek, even Latin—”Hong Kong firmamentum in democratia.”

Protesters chanted slogans: “Hong Kong, add oil!” and “689, step down!” (The first is a literal translation from Chinese, and an encouragement to keep going—like adding oil to a flame. The second is the number of
votes cast for Chief Executive C.Y. Leung in 2012 out of an electoral committee of 1,200.) Read more »

Dhiab Preliminary Injunction Hearing Read-Out: Part One

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Tuesday, October 7, 2014 at 10:38 AM

Below you’ll find a read-out on the first of a three-day, preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab.

The Syrian national’s habeas case is likely familiar to readers by now. He has been cleared for release, and awaits a possible transfer to Uruguay after the latter’s upcoming presidential election. More important for present purposes, he also has long challenged GTMO force-feeding protocols, and thus seeks an order that (in essence) would block a force-feeding policy his attorneys decry as unlawful and punitive, and obligate officials to opt for more humane, less intrusive alternatives. There’s a transparency angle to this, too: in an unprecedented move last week, and over U.S. objections, U.S. District Judge Gladys Kessler granted a request to unseal once-classified videotape evidence in the case.

We recount yesterday’s proceedings in the summary below, and will follow up shortly with a further read-out on further developments in the case today and tomorrow. Broadly, the hearing comprised opening statements by both parties regarding the need (or not) for preliminary relief, followed by the questioning of two witnesses called by the detainee.

All the examination was conducted in open court, save only a roughly fifteen-minute, closed cross-examination of Dhiab’s first witness, Dr. Sondra Crosby (the latter apparently involved the showing of force-feeding videos, which Crosby called “disturbing”).

Read more »

History Suggests That Congress Will Only Authorize Force Against the Islamic State If the President Proposes and Pushes For an Authorization (or Screws Up Unilateral Force Badly)

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Tuesday, October 7, 2014 at 8:30 AM

President Obama says he would “welcome congressional support” but does not need authorization from Congress in order to use force against the Islamic State.  The President appears to have taken no steps to propose actual language to Congress or to move the idea of an authorization along.  And Congress appears to have done nothing significant as a body concerning an authorization of force.  Late last month Speaker Boehner said that Congress would vote on an authorization as soon as the President asked for one.  “The president typically in a situation like this would call for an authorization vote and go sell that to the American people and send a resolution to [Capitol] Hill,” Boehner told ABC. “The president has not done that. He believes he has authority under existing resolutions to do what he’s done.”

Many people think Boehner is ducking for cover, and maintain that Congress should act on its own initiative, even without a presidential request, to authorize force against the Islamic State.  “Since when do we sit around waiting, using the excuse ‘He didn’t ask’?” asked House Minority Leader Nancy Pelosi last week. “No, if you want to have an authorization that has any constraints on the president, you don’t wait for him to write it.”  Former Representative Tom Campbell claims that Congress’s inaction amounted to “running way from its responsibility.”

The truth is that neither the President nor the leadership in Congress wants a vote right now.  But the very notion that Congress is going to authorize force in the absence of a concrete presidential proposal and a significant presidential push to see it enacted is fanciful.  Congress is naturally responsibility-dodging.  And on top of that, its de-centralized structure makes it very hard for it to get its act together, on its own initiative, to authorize force.  I suspect that this has been generally true for all of American history.  But I have looked only at the post-World War II period.

Since World War II, six of the eight congressional authorizations to use force resulted from a formal request by the President to Congress, including essential terms and usually a draft proposal, all followed by executive branch engagement with Congress to see it through.  (The cases are: Formosa (1955), Taiwan (1957), Vietnam (1964), Iraq (1992), post-9/11 (2001), and Iraq (2002).)  Presidents affirmatively sought congressional support in these cases regardless of whether the President’s party controlled one or both houses of Congress, or neither.  Presidents did not get all of what they wanted in these cases, but they got most of what they wanted.  There are two exceptions where Congress initiated the authorization – in Lebanon (1983) and Somalia (1993).  But these are not happy precedents for the presidency, for they are instances in which presidential unilateralism went badly, and Congress in response took the initiative to insist on the applicability of the War Powers Resolution and to authorize force with President-constraining conditions.

In modern times, in sum, AUMFs have materialized in two situations: (1) Presidents affirmatively seek and make the case for congressional support, they propose terms, and they push hard for enactment on the president’s terms; or (2) Presidents act unilaterally, something goes wrong, the conflict becomes unpopular, and Congress pushes back with a conditional authorization and an insistence on the applicability of the WPR.

If history is any guide, therefore, President Obama won’t get an AUMF from Congress unless he formally asks Congress to act, proposes terms, and pushes for enactment; or unless the fight against Islamic State goes so badly that Congress intervenes in reaction.  The White House is well aware of the first point, and is very much hoping that the second does not come to pass.  Perhaps the White House is (as some have suggested) waiting until after the mid-term elections to ask for an AUMF.  If that is so, it should at that time propose a draft resolution, or commit to and push one of the proposals offered by individual members of Congress (such as Representative’s Schiff’s).  But the White House cannot seriously believe that an authorization for the use of force against the Islamic State will emerge from Congress without a strong presidential initiative of the type we have not yet seen.

A few more words about the possibility of an authorization after the mid-terms.  All but one of the force authorizations since World War II were sought by the President before he used any force, and the exception (Vietnam) involved use of unilateral force and a request for authorization that were close in time.  Modern history thus provides less clear guidance about what Congress will do months after the President commits to significant force without advance authorization from Congress.  (And the situation here is even more complex, because the President claims to rely in part on the 2001 and 2002 AUMFs.)  We have seen the two examples – Lebanon and Somalia – where the missions did not go well and Congress intervened with ex post conditional authorizations.  There are two other examples – Libya (2011) and Kosovo (1999) – where the President used significant force abroad without ever seeking or receiving ex post authorization from Congress.  And finally there are many examples of smaller-scale uses of force that never resulted in ex post congressional authorization.  So if the President does seek congressional authorization in December or January, many months after he began using significant force on his own authority (or old AUMFs), the request will come in a largely unprecedented posture.

Here are sketches of the eight historical episodes since World War II that led to an AUMF (followed by a note on sources): Read more »