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The Lawfare Podcast, Episode #81: Suzanne Maloney on Iran

Saturday, June 28, 2014 at 1:55 PM

All roads lead to Iran—at least in the news these days. There’s the nuclear talks, which are coming to a head. There’s common interests between the United States and the Islamic Republic in the conflict against ISIS and in the stabilization of Iraq. So I sat down yesterday with my Brookings colleague Suzanne Maloney to talk Iran. Suzanne is an Iran specialist at Brookings’s Saban Center for Middle East Policy, where she is the force behind the excellent Iran@Saban blog. She served on the policy planning staff at the State Department and is the author of the forthcoming book, The Political Economy of Iran, and of this essay from last year, entitled “Iran Surprises Itself and the World.”

Khatalla Transitions from Military to Civilian Custody

Saturday, June 28, 2014 at 12:00 PM

[Update:  A colleague writes in to say that Khatalla may have been in "civilian" custody, formally speaking, all along.  That may be; I recall a statement after the capture to the effect that the raid was conducted in some fashion under color of FBI authority, albeit with substantial SOF involvement under that umbrella.  This approach, if sustained throughout the voyage, has the virtue of reducing questions regarding what the affirmative authority for the detention might have been (assuming the AUMF did not apply, as officials have asserted it did not).  That said, the part that really interests me here is the handling of the interrogation during the voyage.  On that front, it seems very likely that there has been a transition from a non-prosecutorial interrogation phase into an ordinary criminal justice model at least by this point.]

Just a quick news update:  Benghazi suspect Ahmed Abu Khatalla’s transatlantic voyage has ended, as has his time in military custody.  The Washington Post reports he is now in civilian custody in DC, and likely will be arraigned shortly.  It is safe to assume that an FBI clean time sometime recently has taken over any ongoing interrogation, that Khatalla has now been Mirandized, and either has met or soon will meet with counsel.  The interesting question, about which I’ve seen nothing in the public record, is whether he was being cooperative with interrogators before that stage and whether, if so, he will continue to cooperate going forward.

The Week that Was: All of Lawfare in One Post

Saturday, June 28, 2014 at 9:55 AM

The week began with the Department of Justice’s release, under a Second Circuit court ruling, of a redacted version of an Office of Legal Counsel (OLC) memo that outlined the government’s justification for the targeted killing of U.S. citizens. Jane brought us the initial coverage, and Ben followed with an initial summary.

Ben then considered the use of the word “imminence” in the memo and the administration’s legal rhetoric generally. He speculated that the word originated from internal executive branch law, so it could mean anything the president decides it means. Wells found support for Ben’s theory in a 2010 Washington Post article by Dana Priest. Ben dug deeper and proposed that the term “imminent threat” actually comes from an effort to avoid violating the assassination ban in Executive Order 12333.

John Bellinger shared the recommendations of the Stimson Center Task Force on U.S. Drone Policy, which urges increased transparency, better oversight and accountability, and clearer international standards. The group also recommends that responsibility for executing drone strikes be transferred from the CIA to the U.S. military. Kenneth Anderson brought us a timely review of Ian Henderson’s essay on targeted killings by civilian intelligence entities.

Ashley Deeks noted that Kenya, Israel, and Syria, all of which have conducted air strikes against other countries in the past week, have not sent Article 51 letters to the U.N. Security Council.

Iraq was still pretty big this week. Yesterday, President Obama informed Congress that action taken there is being conducted “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” Wells shared the letter. This week’s Lawfare Podcast, provided by Ritika, featured a timely discussion of Iraq’s deterioration. Brookings Institution senior fellows Suzanne Maloney, Michael O’Hanlon, and Ken Pollack participated in the conversation. Tamara Cofman Wittes moderated.

Jack shared excerpts from a Daily Beast article on deployed American troops’ immunity from prosecution in Iraq.

The Foreign Policy Essay this week considered the role of the masses in countries ruled by dictators. Authors Andrea Kendall-Taylor, a member of the U.S. intelligence community, and Erica Frantz, an assistant professor at Bridgewater State University, argue that, now more than ever, popular protests pose a real threat to the authority of tyrants. The empowerment of people may, therefore, enable “opportunities for democratization in places they have not previously existed.”

Edwin Williamson joined in on last week’s Abu Khattala debate. Although Ben, Jack, John, Steve Vladeck, and Wells all found that the Libyan terrorist has to face trial in civil court, Edwin argued that “as a legal matter,” Abu Khattala is eligible for both trial before a military commission and for detention at Guantanamo.

This week, the Supreme Court ruled in Riley v. California that police officers cannot search a suspect’s cell phone without a warrant. Wells brought us the initial coverage. Tim Edgar considered the opinion and noted that now, “the intelligence community has some reason to be nervous.”

On Tuesday, Wells highlighted opinions from the federal District of Oregon in United States v. Mohamud and Latif v. Holder. Jane outlined the developments in Mohamud. Later, Matt Danzer summarized Judge Anna Brown’s ruling in Latif v. Holder. Bobby brought us a guest post from Professor Jeff Kahn of Southern Methodist University’s School of Law, who found that the opinion was “a long time in coming.”

Steve considered some of the possible consequences of a case from a few months ago, Aamer v. Obama, in which the D.C. Circuit Court found that Boumediene v. Bush “invalidated the habeas-stripping provisions of the 2006 Military Commissions Act in its entirety.”

Matt shared all of the important amendments offered to the House of Representatives’ recently passed FY 2015 Defense Appropriations Act. Paul later highlighted one amendment he found particularly foolish.

Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast. Ralph Langner, director of Langner Communications and a nonresident fellow at the Brookings Institution, contributed as the guest speaker. Under discussion were Stuxnet and other cyberattacks on commercial industrial control systems.

In this week’s Bits and Bytes, Paul noted cyberattacks sustained by Hong Kong’s online voting platform and Reuters, in addition to Google’s recently released “fork” on OpenSSL. He later flagged a request submitted to ICANN by a group of American terror victims and their families in order to seize Iran’s domain name. While he sympathized with the victims, Paul maintained that “if U.S. courts were seen as a forum for divesting a sovereign nation of its top-level country code domain that would simply reinforce the . . . view . . . that the U.S. is not a neutral custodian of the network.”

Ken highlighted a recent essay of his own on comparative constitutional law, the use of foreign case law in rulings by U.S. courts, and the Alien Tort Statute. Published by Social Science Research Network, the paper is entitled “Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication?”

And that was the week that was.

The US Intervention in Iraq Involves More than the 300: Armed Drones Above, Armed Contractors Below?

Friday, June 27, 2014 at 9:43 PM

I’m surprised this hasn’t generated more attention: First, an article in the New York Times yesterday mentioned, right at the very end, the possibility that in addition to the 300 special operators headed back to Iraq there might also be more than a 1000 armed contractors accompanying them to pull security detail:

Two Iraqi advisers to Mr. Maliki said there would be more than 1,000 American private security guards coming to Iraq to protect the 300 military and intelligence advisers that will be here to help the Iraqi government fight ISIS, far more Americans than previously acknowledged. One adviser said the number of private guards would reach 1,700.

Under a diplomatic agreement between the American and Iraqi governments, the military advisers will be protected from prosecution if they inadvertently harm someone while working in Iraq. However, it was unclear if immunity provisions for the private guards had been worked out as well, and one of Mr. Maliki’s advisers said the topic was still under discussion.

This may just be wrong, of course, and even if accurate it does not change the fact that the US role on the ground is advisory rather than involving direct participation in combat.  That said, if true it’s certainly a good example of something critics of reliance on private military contractors have long emphasized:  the misleading impression created by focusing solely on the number of U.S. armed forces on the ground when trying to comprehend the nature and extent of U.S. ground involvement.  That, plus the sheer oddity of outsourcing this sort of security function when you are talking about force protection in the context of a SOF deployment (as opposed to protection of diplomats); perhaps the quote above is overinclusive, and any inbound contractors will focus on protecting other U.S. personnel besides our SOF operators…

Of course, force protection is not just about boots on the ground.  It turns out we’ve got Predators bearing Hellfire missiles in the air over Iraq once more, also on a force protection mission, in addition to the more-widely appreciated surveillance flights.  This will be very convenient should key ISIS leaders rear their heads at the wrong time.

I do not mean to suggest that the President lacks authority to take these steps, or that they are bad steps as a matter of policy.  I do mean to suggest that in thinking about the nature of the U.S. intervention on both those dimensions, we need to account for its complete scale.

Al-Bahlul to D.C. Circuit: OLC Memo Further Undermines USG Position on Appeal

Friday, June 27, 2014 at 8:03 PM

That’s the gist of this Rule 28(j) letter, regarding pertinent post-argument authority.  It was filed today with the D.C. Circuit by lawyers for Ali Hamza Ahmad Suliman al Bahlul, whose case could be decided any day now by the full appeals court.

Here’s the key part:

The OLC Memo begins its analysis with the U.S. Code. It concludes that no statute forbids the use of lethal force or lacks an implied exception for the “public authority justification.” OLC Memo, at 19. It then evaluates whether the public authority justification is satisfied by lawful combat operations. “In determining whether the contemplated DoD operation would constitute the ‘lawful conduct of war’ … we next consider whether that operation would comply with the international rules to which it would be subject[.]” Id. at 23. It notes the DoD’s compliance “with the rules governing targeting in a non-international armed conflict – namely, international humanitarian law, commonly known as the law of war.” Id. at 28. And it concludes that the operation would be lawful because it “would comply with international law, including the laws of war applicable to this armed conflict[.]” Id. at 30.

Conspicuously absent from this analysis is any reference to a “U.S. common law of war” or to the archive of Civil War-era documents that ostensibly define it. Instead, the government assesses the legality of its conduct under the law of war using the established sources of statutory and international law that this Court correctly relied upon in Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012). Nothing in the OLC Memo suggests that the government believes a domestic common law of war modifies those authorities or even exists. This Court should not, therefore, create one to save a conviction in a criminal case.


Court Demands New Procedures for Challenging No-Fly List Determinations

Friday, June 27, 2014 at 5:00 PM

As Wells noted a few days ago, the U.S. District Court for the District of Oregon issued an opinion this week in Latif v. Holder, which held unconstitutional certain redress procedures for individuals on the Federal Bureau of Investigation’s No-Fly List.  This post overviews the opinion.

Judge Anna Brown begins with a recitation of the facts, briefly summarized here: Latif and the other plaintiffs, all citizens of the United States, were prevented from boarding flights over U.S. airspace since 2009. The plaintiffs each unsuccessfully sought redress through the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). The government has refused to provide the plaintiffs with confirmation that they are or are not on the No-Fly List, the reasons for their inclusion on the List, or any of the evidence underlying the decision to place and maintain their names on the List.

The plaintiffs first argue that the No-Fly List procedures violate their procedural due process under the Fifth Amendment. To evaluate this, the court runs through the familiar balancing-of-interests test articulated in the landmark case Mathews v. Eldridge. First, the court finds a constitutionally protected, private interest in international travel by air due to the burdens of such travel by other means. The No-Fly List is a severe and far-reaching impediment to the exercise of that interest. Further, placement on the No-Fly List harms plaintiffs’ constitutionally protected interest in their reputations, as it carries the stigma of being a suspected terrorist and deprives those on the List of access to commercial flight. This stigma theory is mitigated, however, by the fact that the disclosure is not broadly public, but rather, is limited to “a relatively small group of individuals in the same area of the airport as the traveler when the traveler is denied boarding.”

Next, the court says that there is “high risk” that the government will place travelers on the No-Fly List erroneously, first due to the low evidentiary standard required to do so (i.e., reasonable suspicion); and second, due to the lack of any “meaningful opportunity” for the listed person to correct an erroneous listing decision. Additional procedural safeguards would improve accuracy and have “significant probative value.” The court then provides examples of potential substitute procedures: notifying travelers of their inclusion on the No-Fly List after they are denied boarding, informing listed individuals of the reasons for their inclusion on the List, and providing listed individuals with an opportunity to present exculpatory evidence.

No procedural due process analysis is complete, however, without consideration of the government’s interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” The governmental interests in combating terrorism and protecting classified information are “particularly compelling,” says the court.  But after a reviewing the case law at length, Judge Brown concludes that the DHS TRIP process is “wholly ineffective” and “falls far short of satisfying the requirements of due process.” The government did not provide the plaintiffs with an explanation for their inclusion on the No-Fly List, nor even any confirmation that they were on the List at all, despite the low standard necessary to place someone on the List in the first place. Read more »

Seizing Iran’s Domain Name — .IR

Friday, June 27, 2014 at 3:08 PM

As we have noted in the past, there is a brewing fight over who controls the naming function for the internet.  I suspect that some who’ve read these posts have wondered if they were truly germane to national security — the nominal subject matter of this blog.  Today, we find a bit more evidence of the general relevance of the ongoing discussion.

A lawyer representing a “group of American victims of terror and family members of those who have been injured or killed in attacks sponsored by the Islamic Republic of Iran (Iran) have moved to attach and seize the ccTLD domain registry of Iran, .Ir  Yes, you read that right — a group of terrorist victims who have gotten a default judgment against the Iran are seeking an order from a US court, directed to ICANN, in which they take control of Iran’s country code domain name.    ICANN (the Internet Corporation for Assigned Names and Numbers) is, in the end, a non-profit corporation organized under the laws of California, and the plaintiff’s assert that they may satisfy their judgment by seizing Iranian assets, of which the .Ir domain is an eligible one.  According to one report, a provisional seizure order has been issued and ICANN has 10 days to respond.  The original filing in District Court for the District of Columbia is here.

I know virtually nothing about the underlying law of default judgments; terrorist actions; or attachment of assets.  And I certainly have some sympathy for the terrorist victims.  But my own instinct is that this would be a very, very unfortunate result if it were to come to pass.  If US courts were seen as a forum for divesting a sovereign nation of its top-level country code domain that would simply reinforce the growing view worldwide that the US is not a neutral custodian of the network.

Readings: Civilian Intelligence Agencies and the Use of Armed Drones by Ian Henderson

Friday, June 27, 2014 at 3:00 PM

Footnote 44 of the recently released and much-discussed OLC Awlaki memorandum is heavily redacted, but what’s left reads, in part:

Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war. It is true that CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war-an immunity that the armed forces enjoy by virtue of their status. See Report of the Special Rapporteur sec 71, at 22; see also Dinstein, Conduct of Hostilities, at 31. Nevertheless, lethal activities conducted in accord with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant’s privilege. The contrary view “arises … from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection.” Richard R. Baxter, So-Called “Unprivileged Belligerency”: Spies, Guerrillas, and Saboteurs, 28 Brit. Y.B. Int’l L. 323, 342 (1951) (“the law of nations has not ventured to require of states that they . . . refrain from the use of secret agents or that these activities upon the part of their military forces or civilian population be punished”). Accord Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 103-16 (Y. Dinstein ed., 1989) …

The footnote is not incorrect nor is it central to the memorandum’s overall conclusion (although it does indirectly run to the memo’s question of “unlawful killings”). Its quotation from the eminent law of war scholar Richard Baxter’s is well-taken of the legal difference between acts punishable under international law and acts with respect to which international law affords no protection.  We can add the third category mentioned in the footnote: acts which affirmatively benefit from immunity from domestic prosecution by reason of international law, which one core part of the combatant’s privilege. I flag it in this Readings post in order to point out some important controversies in the status of CIA officers taking direct part in hostilities through armed drone strikes or other ways.

International law does not prohibit civilians from taking direct part in hostilities, but as a general rule it does not confer privileges or immunities of combatancy on them, either.  However, there are certain exceptions. International law of armed conflict recognizes circumstances in armed conflict under which even civilian agents of a national intelligence service such as the CIA might benefit from combatant immunity and POW status. Doctrinally, it is a complicated discussion, principally because it cannot avoid getting entangled in the differences in rules between international armed conflict (IAC) and non-international armed conflict (NIAC).

Customary law has long recognized that a state mobilized for war might incorporate into its war fighting forces paramilitary, civilian, or other government entities as part of its “armed forces” that, in peacetime, perform other duties. Many states have special or unique traditions in this regard–the US Coast Guard, for example, is by statute part of the armed forces of the United States but is also a federal law enforcement agency. Other countries have, for example, border patrol agencies or territorial guardias, etc., that can be mobilized as part of the armed forces in time of war.  Special rules have also evolved for the merchant marine. Some countries locate their foreign or domestic intelligence services within the uniformed military, whether in peacetime or wartime–the Soviet NKVD, for example–while others have created them as civilian agencies, such as the CIA.

This customary law rule of “incorporation” into the armed forces of a state is codified in Article 43 of Protocol I (and so far as I’m aware the US accepts its substance as customary). It defines the “armed forces” of a Party to a conflict as consisting of “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.”  It goes on in Art. 43(3) to provide an additional rule which, in my view, was not customary law before Protocol I and likely not custom now, as an additional affirmative requirement, but rather a (rather sensible) innovation)–stating that whenever a Party “incorporates a paramilitary or armed law enforcement agency into its armed forces it shall notify the other Parties to the conflict.” I’m not aware of the US government ever publicly asserting POW status for CIA operatives either in particular cases or as a general legal claim in a particular armed conflict–since 2001 or earlier. I’ve been unable to find an example for the Vietnam War, if there was one, or for the first days of the Afghanistan conflict. It’s also unclear to me whether the US government’s legal analysis of the status of civilian CIA is altered if the time period is characterized as part of the “preparation of the battlefield.” I’m not sure there are any exactly parallel cases in earlier decades, because if one goes back very far historically, it’s not clear to me that we frame the legal categories today in the same way that they were framed back in earlier conflicts such as Vietnam.  I don’t know the answers to these questions, though my research has not gone to the ends of the earth; if anyone has any light to shed on these questions, by all means let me know.

Article 43 of Protocol I is applicable on its own terms only to an international armed conflict, because Protocol I as a treaty is applicable only to international armed conflict.  Yet, from the standpoint of custom, many of the core “conduct of hostilities” rules of Protocol I, such as targeting, are regarded today as applicable in either international or non-international armed conflict. Status of persons rules, addressing regarding various legal properties of combatancy, by contrast, are not so easy to translate across the IAC-NIAC divide.  Translation into the NIAC framework raises many serious questions about interpretation through relevant analogies or policy considerations, the relationship of any proposed IAC-NIAC rule to Protocol II, the subject of which is non-international armed conflict, and not to mention whether and to what extent any such extensions even enjoy genuine support as custom.  Things become even less clear in the case of the United States’ claim–disputed by many states–of the existence of a non-international armed conflict against a transnational non-state actor (as noted in this earlier Readings post). Given these uncertainties, then, what can be said about the legal status of CIA operatives, civilian agents of a state intelligence service with some paramilitary functions, engaged today directly or indirectly in the conduct of hostilities, and particularly hostilities carried out using armed drones, in what the US calls a NIAC against Al Qaeda and associated forces?

I’m able to punt the hard questions, however, because I can instead point readers to an expert, scholarly discussion–the most provocative and useful I’ve read on this subject.  It’s a 2011 article by Ian Henderson (well known and friend to many of us in the law of armed conflict community), “Civilian Intelligence Agencies and the Use of Armed Drones,” available on SSRN, and published as Chapter 4 in Michael N. Schmitt, et al., eds., 13 Yearbook of International Humanitarian Law (2010), pp. 133-173. Read more »

Today’s Headlines and Commentary

By and
Friday, June 27, 2014 at 1:14 PM

Today’s news coverage begins with Syria for a change. The Associated Press reports that President Obama has requested $500 million from Congress to arm and train vetted, pro-Western members of moderate Syrian opposition groups. The Hill notes that the $500 million is part of the $58.6 billion of wartime funding that the Department of Defense has proposed for FY 2015. Politico, the New York Times and the Washington Post also have the story.

President Obama’s decision to equip moderate rebels comes as the Guardian shares the story of 186 kidnapped Kurdish schoolboys from northern Syria. While the students were traveling on buses after taking their exams on May 30, jihadists belonging to the Islamic State of Iraq and Syria (ISIS) abducted them. Two managed to escape, but the rest remain in captivity. Foreign Policy says that the humanitarian crisis in Syria could become “much worse.”

Sylvie Kauffmann writes in the Times about France’s many homegrown terrorists; France has provided Syria with the largest number of foreign fighters from Europe.

An Egyptian commander, formerly with the Al Nusra Front, defected to ISIS earlier in the week. His decision could allow ISIS to “cement its control of both sides of the Syrian-Iraqi border along the Euphrates River,” say Bill Roggio and Oren Adaki at the Long War Journal.

Meanwhile, across the Syrian border, the Iraqi military initiated an airborne attack on militant-occupied Tikrit. However, insurgent fire caused at least one army helicopter to crash-land in a university stadium there. Reuters has the details.

The New York Times writes about the fragmentation of the country into three sectarian regions, finding that the “division of Iraq—while it may prove irreversible in the end—…is [not] likely to better address the Middle East’s sources of political and social failure.”

In an interview with BBC News, Iraqi Prime Minister Nouri al-Maliki announced that, after trying unsuccessfully to buy U.S. jet fighter planes, he has instead turned to Russia and Belarus, saying, “We were deluded when we signed the contract” with the U.S. The Hill also reports the story.

According to the New York Times, the first American predator drones took flight over Baghdad yesterday. They are intended to provide increased protection to U.S. military advisors deployed in the city. Reuters indicates that U.S. intelligence officials are still trying to construct a clearer picture of the ongoing situation in Iraq.

The Hill notes that in an interview yesterday, Congressman Adam Schiff (D-CA) called American airstrikes in Iraq potentially “counterproductive.” However, his opinion may not affect any decisions made by the Obama administration. In a letter to Congress, which Wells posted here, the President stated that U.S. action in Iraq is being conducted “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” Defense News has more.

ABC News indicates that Secretary of State John Kerry met yesterday with foreign ministers from Jordan, Saudi Arabia, and the United Arab Emirates (UAE) to discuss a Middle Eastern response to the crisis in Iraq. The Washington Post shares more.

A former Guantanamo Bay detainee by the name of Lahcen Ikassrien was arrested in Spain earlier this month. He is suspected of sending jihadists to fight with ISIS. Thomas Joscelyn of the Long War Journal details the man’s initial capture in Afghanistan in 2001, the evidence against him—which was ruled inadmissible by a Spanish court—his time at Guantanamo, and his eventual resettlement.

Reuters gives us the latest from Yemen, where a suicide bomber killed four soldiers at an army base. Militants also took control of an international airport, and the ensuing clashes killed many.

The Treasury Department added two senior Lashkar-e-Taiba leaders to its list of Specially Designated Global Terrorists.

Speaking of terrorist groups based in Pakistan, we learn that the Pakistani military’s continuing offensive in North Waziristan has displaced huge numbers of civilians. The military shelled Miram Shah yesterday, and a major ground offensive is on its way. 456,000 people have registered for aid, in a quickly-exploding humanitarian crisis. Pakistan is chiding Afghanistan for not doing enough to prevent militants from escaping, in the midst of this offensive, across the porous border between the two countries.

FOX News reports that yesterday, the Senate confirmed Stuart Jones as the U.S. ambassador to Iraq, and Robert Beecroft a the U.S. ambassador to Egypt. Meanwhile, the Hill notes that a recently released Government Accountability Office (GAO) report concluded that American diplomatic compounds abroad “still lack adequate or uniform security standards.” Read more on their findings here.

Goodluck Jonathan, the President of Nigeria, assured the world in an op-ed in the Washington Post that his top priority remains finding the abducted Nigerian schoolgirls and bringing the terrorists to justice.

Ahmed Abu Khattalah, the suspected ringleader of the attacks on the U.S. consulate in Benghazi, who was snatched up by U.S. special forces and is being held on the USS New York, could be stateside as soon as this weekend. He will be prosecuted in federal court in Washington.

In other news, the Supreme Court’s decision in Riley v. California has prompted some members of Congress to push for stronger privacy laws. The Washington Post indicates that the House’s proposed Email Privacy Act now has the support of 220 cosponsors and the Justice Department. It would force police officers to obtain a warrant before gaining access to a suspect’s emails.

Meanwhile, Facebook is in dispute with the Manhattan district attorney’s office over prosecutors’’ demands to see the complete account data of over 350 Facebook users. The New York Times has details.

In a Washington Post editorial, Gen. John Abizaid (ret.) and Rosa Brooks, the co-chairs of the Stimson Center Task Force on U.S. drone policy, argue that the U.S. should transfer the responsibility for executing drone strikes from the CIA to the U.S. military. Read more on their recommendations here.

And, because it is Friday, and because it’s Ritika’s last roundup, we’re bringing back the Moment of Zen—and we have not one, but two. President Obama finally called for funding moderate Syrian rebels, and this is the Moderate Syrian Rebel Application Form they are going to have to fill out. And, guess where two episodes for the next season of House of Cards might be filmed?

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.

White House Letter to Congress on Iraq Deployment

Friday, June 27, 2014 at 9:26 AM

President Obama yesterday sent the letter to the Speaker of the House, and to the President Pro Tempore of the Senate.  Its text reads as follows:

Dear Mr. Speaker: (Dear Mr. President:)

As I reported on June 16, 2014, U.S. Armed Forces personnel have deployed to Iraq to provide support and security for U.S. personnel and the U.S. Embassy in Baghdad.

I have since ordered further measures in response to the situation in Iraq. Specifically, as I announced publicly on June 19, I have ordered increased intelligence, surveillance, and reconnaissance that is focused on the threat posed by the Islamic State of Iraq and the Levant (ISIL). I also ordered up to approximately 300 additional U.S. Armed Forces personnel in Iraq to assess how we can best train, advise, and support Iraqi security forces and to establish joint operations centers with Iraqi security forces to share intelligence and coordinate planning to confront the threat posed by ISIL. Some of these personnel were already in Iraq as part of the U.S. Embassy’s Office of Security Cooperation, and others began deploying into Iraq on June 24. These forces will remain in Iraq until the security situation becomes such that they are no longer needed.

This action is being undertaken in coordination with the Government of Iraq and has been directed consistent with my responsibility to protect U.S. citizens both at home and abroad, and in furtherance of U.S. national security and foreign policy interests, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93-148). I appreciate the support of the Congress in these actions.



Report of the Stimson Center Task Force on Drone Policy

Thursday, June 26, 2014 at 3:27 PM

The Stimson Center released today the report of its Task Force on US Drone Policy.  The ten-member task force, of which I was a member, was chaired by General John Abizaid and Rosa Brooks.   The report makes eight recommendations for overhauling US drone strategy; improving oversight, accountability, transparency and clarifying the international legal framework applicable to lethal drones; and improving export controls for drone technology.

General Abizaid and Rosa Brooks have an op-ed in today’s Washington Post discussing the report’s conclusions.

In addition, my law partner and fellow task force member Jeff Smith (who served as General Counsel of the CIA) and I have an op-ed in Politico today that summarizes the Task Force’s recommendations relating to international law.  We argue that a long-term, secret U.S. drone program, even if it is authorized under U.S. law and defensible under international law, may not be consistent with “more basic rule-of-law principles that are at the core of the American identity and that we seek to promote around the world.”

We offer the following recommendations:

—First, improve transparency in drone strikes. The United States should at minimum disclose the number of strikes, the number killed, the affiliations of those targeted, the number of civilian casualties, and the procedures for targeting decisions. It is true that many foreign governments do not want us to acknowledge that drone strikes are being conducted from or on their soil, but the United States should begin the process of weaning those governments from the cloak of secrecy. Our long-term interests in combating terrorism are best served by strengthening democratic and responsible governments, not enabling secretive rulers. Improved transparency is critical to re-building the trust that our allies have in our leadership in international law.

—Second, institute more robust oversight and accountability. The president should, by executive order, establish an independent bi-partisan commission on lethal drone policy and strategy. The commission, which might be composed of respected former government officials as well as regional and human rights experts, should not be in the chain of command for drone operations, but it should have the power to review individual strikes, including the intelligence that underpinned the strike and the consequences of the strike. The commission should report annually to the president and to Congress and release an unclassified report to the public. We believe a report by an independent commission would help to address domestic and international concerns that the executive branch is accountable to no one for targeted killings and that U.S. drone strikes are not directed against appropriate targets or may kill too many civilians.

—Third, develop clear international legal norms for the use of lethal force outside a traditional battlefield. The traditional rules of war and for use of force do not address the complexities of modern conflicts between states and non-state terrorist groups. We believe the United States has acted responsibly in conducting drone strikes but unless our country clarifies the rules and practices it is following, other states with less justifiable motives can easily point to the U.S. program as grounds to conduct lethal drone strikes that are not remotely responsible. For example, on what legal grounds could we object to Russian lethal drone strikes on Ukrainian “terrorists” in Eastern Ukraine?

Why Imminence? The Assassinations Ban and that OLC Al-Aulaqi Memo

Thursday, June 26, 2014 at 1:44 PM

The other day, I tried to read the tea leaves and figure out where the notion of “imminent threat” comes from in the administration’s legal views of targeted killing. I speculated that the source of the “imminent” threat standard may well be language in the presidential covert action findings authorizing the CIA’s broad campaign against Al Qaeda in the wake of 9/11. The following day, Wells dug up some interesting journalistic evidence for this theory.

The basic idea, to summarize very briefly, is that the source of imminence in administration statements and legal analyses doesn’t appear to come from international law, from constitutional separation of powers, from the constitutional rights of possible targets, or from defenses against statutory prohibitions—at least not judging from the visible portions of the Barron memorandum. Based on a kind of dog that didn’t bark theory, therefore, I reasoned that the concept must be coming from some sort of internal executive branch law. I offered a few reasons to think that the relevant constraint is probably the presidential finding, which likely limits the basic authorization for lethal force to situations of “continuing and imminent” threat. (Over at emptywheel, the estimable Marcy Wheeler offers an alternative, very different theory.)

But it occurs to me that there’s another dog that doesn’t bark in David Barron’s memo: The assassination ban in Executive Order 12333, which does not seem to be discussed at all in the unredacted parts of the memo. In this post, I want to take my speculation a step further, because I think the assassination ban offers a key—perhaps the key—to understanding the role of imminence in the administration’s legal views. That is, if my theory about whence imminence comes is correct, the assassination ban explains why the finding limits targeted killings to situations of continuing and imminent threat. And it likely explains a bunch of other things too–things that remain redacted in Barron’s memo.

So with, once again, the caveat that I am speculating here and could be wrong, let’s unpack. Read more »

Section 702-Based Relief Denied in United States v. Mohamud

Thursday, June 26, 2014 at 1:28 PM

Mohamed Osman Mohamud, a Somali-born American citizen, was convicted in January of last year of attempting to detonate a weapon of mass destruction after he tried to set off what he thought was a car bomb in a crowded Portland square. The bomb was in fact a fake supplied to the 19-year-old by federal agents as part of a sting operation.  Since the verdict, the defendant has sought to undo his conviction, questioning both the government’s compliance with provisions of the Foreign Intelligence Surveillance Act (FISA), and those provisions’ very legality. This week, a federal court in Oregon rebuffed him; the following post summarizes the most recent developments in United States v. Mohamud, which upheld consequential parts of FISA against legal challenge.
On November 19, 2013, a month before Mohamud’s sentencing hearing, the government filed a Supplemental FISA Notification, informing the court that the government had offered into evidence, or otherwise used or disclosed during the proceedings, information collected under FISA section 702—itself a part of Title VII of the statute.  At Mohamud’s first appearance prior to trial, the government had notified him that it intended to make use of information derived from surveillance conducted under other provisions of FISA.  But afterwards, prosecutors determined “that information obtained or derived from Title I FISA collection may, in particular cases, also be ‘derived from’ prior Title VII FISA collection.” Given this possible overlap, and after a review of Mohamud’s case, the prosecution therefore made its supplemental advisory regarding section 702.  In light of that revelation, and in anticipation of the defendants’ FISA-related motions, Judge Garr King of the U.S. District Court for the District of Oregon canceled Mohamud’s sentencing.  The defendant then sought discovery of FISA-related material.
On March 19, 2014, Judge King shut that effort down, by denying Mohamud’s motions for full discovery and to compel immediate production. And on Tuesday Judge King did the same with Mohamud’s broader attempt to attack the section 702 surveillance, denying three motions in a 56-page decision and effectively closing out the defendant’s post-conviction bid for FISA-based relief.  (Judge King also filed a classified opinion to explain some of his reasoning.)

Read more »

Today’s Headlines and Commentary

Thursday, June 26, 2014 at 11:54 AM

We start with the current crisis in Iraq. The New York Times reports that the Islamic State in Iraq and Syria (ISIS) has its sights set on the second largest dam in the country, the Haditha Dam. Destruction of the structure, which sits 120 miles northwest of Baghdad on the Euphrates River, would cause crippling floods throughout the country.

Over at the Huffington Post, by way of the AP, we learn that Syrian warplanes bombed Sunni militants inside of Iraq. And, as Tara relayed to you yesterday, Iran is helping the Iraqi government by supplying intel and arms. The AP notes the “unusual twist” of the U.S., Iran and Syria all vying for a common goal: stabilizing Iraq’s government.

Although it is Sunnis who affiliated with ISIS, the Times explains that, within Baghdad, it is the Shiite majority that is responsible for most violence. The capital’s Sunnis are “trapped” within their neighborhoods, frightened by the newly emboldened Shiite militias and government forces. Worse still, because of heightened sectarian tensions, Baghdad’s Sunnis are sometimes wrongly suspected of colluding with violent militias.

Kirk Johnson has penned an opinion piece in the Times.  He argues that the United States has abandoned Iraqis who helped the U.S. during its prior military campaign, among other things by serving as drivers and interpreters. Such Iraqis already were having a hard enough time trying to acquire visas to come to the States; but now that the embassy in Baghdad has been evacuated, they have nowhere to turn for protection. Some have fled the country for fear of persecution, while others have stayed and been targeted as traitors.

Vestiges of the last Iraq war are coming alive in Washington, where four former Blackwater contractors face trial for the killing of 14 Iraqis in 2007, in Baghdad’s Nisoor Square. The Times covers the trial’s beginning.

According to TIME, Taliban militants in Afghanistan have been increasing the number of attacks in the south of the country. The increased violence highlights the deteriorating security situation, which is itself further complicated by Afghanistan’s recent and still unresolved presidential election.  (There is still no announced winner.) The Washington Post also covers the Taliban’s resurgence in Afghanistan.

A busy shopping center in Nigeria’s capital, Abuja, was attacked by bomb yesterday; more than twenty people were killed. The BBC reports that no group has claimed responsibility for the attack—but many suspect Boko Haram was involved.

Representatives of Ukraine’s government and separatist leaders have agreed to attend peace negotiations this Friday, and extended the cease-fire between the two groups. The Wall Street Journal has more.

As Tara pointed out yesterday, the Supreme Court delivered a huge victory to privacy groups in its Riley v. California ruling. Over at Politico, Josh Gerstein points out that the decision could put more weight behind lawsuits challenging NSA programs. Gerstein:

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.

The German government has canceled its contract with Verizon over fears that the company is letting the NSA collect data on confidential and official conversations. The AP has the story.

And, the NSA continues to insist that Edward Snowden never complained about NSA surveillance to superiors—despite his claims to the contrary. Tech Crunch informs us that the NSA responded to a Freedom of Information Act (FOIA) inquiry yesterday, and said that “there are no documents indicating that Mr. Snowden contacted agency officials to raise concerns about NSA programs.”

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A Failure of Protocol

Wednesday, June 25, 2014 at 7:48 PM

The Supreme Court’s decision requiring a warrant for searches of cell phones incident to arrest affirms that we are entitled to privacy in the digital age.  These expectations, the Chief Justice explains, are entirely reasonable.  “Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.”  The Fourth Amendment is supposed to be the rule, not the exception, and it doesn’t require us to live our lives as technophobes. The message the Supreme Court wants to send in Riley v. California is unmistakably clear when it comes to digital privacy. “Get a warrant,” the opinion says—bluntly and unanimously.

The message may be clear, but the devil is in the details—or, in this case, in footnote one.  As that footnote makes clear, it is crucial that everyone agreed the search of a cell phone was exactly that—a search—and a search presumptively requires a warrant.  What about data surveillance?  Riley implies the Supreme Court is uncomfortable with it, but this question—if and when pervasive data monitoring might be a search for constitutional purposes – is as unsettled now as it was when Justice Sotomayor floated this particular trial balloon in her concurrence in United States v. Jones.

What about telephone metadata?  Smith v. Maryland says that isn’t a search.  What about transactional records held by third parties?  United States v. Miller says that isn’t a search either.  Not only have these cases not been overruled, they remain the foundation of much Fourth Amendment law.  How these cases apply in the digital age is still very uncertain, although Riley does at least make clear that the Supreme Court is unanimously of the opinion that digital is different.

And what about the NSA?  The most important question here is whether the government needs a warrant for surveillance of communications of foreigners overseas for intelligence purposes.  United States v. Verdugo-Urquidez says foreign persons on foreign soil lack Fourth Amendment rights, but the issue with the NSA’s activities has always been the Americans who may be in contact with foreign targets.  Are their rights are violated by foreign surveillance?  Are minimization procedures and other internal safeguards enough to protect their rights?  The Supreme Court hasn’t decided that one.  Clapper v. Amnesty International is still a big hurdle for anyone to get standing to squarely make that challenge, but cases in the lower courts challenging evidence derived from FISA Amendments Act surveillance may yet present the Supreme Court with a chance to consider the Fourth Amendment question.

After Riley, the intelligence community has some reason to be nervous.  In defending its activities, the Obama Administration has pointed—entirely appropriately—at privacy protections, including detailed targeting and minimization procedures, and substantial internal and external oversight.  Despite real challenges, these protections are meaningful and far exceed anything that other nations provide to protect privacy in their intelligence activities.

The Chief Justice made short shrift of a similar argument in Riley, when the government said it would develop “protocols” to deal with the privacy problems its cell phone searches would create in an age of cloud computing.  “Proba­bly a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols,” he said.  As someone who wrote and reviewed many such guidelines for intelligence agencies, I couldn’t agree more!  I expect to see this quote in brief after brief, whenever the government says internal safeguards are good enough.

There is undoubtedly some heartburn at the NSA on this point.  Safeguards and oversight matter.  The Supreme Court reminds us that they are no substitute for the Constitution.


A Call for Article 51 Letters

Wednesday, June 25, 2014 at 6:30 PM

In past week, Kenya has conducted air strikes in Somalia against al Shabaab. Israel has undertaken airstrikes in Syria against Syrian military targets in response to a cross-border attack that killed an Israeli teenager.  And the Syrian air force reportedly has carried out air strikes in western Iraq against ISIS.  Each of these actions seems to have been taken in reliance on a theory of self-defense, and at least the first two strikes took place without the consent of the host state.  (It is not clear whether Iraq consented to Syrian air strikes against ISIS.)  But in none of these cases did the state using force submit an Article 51 letter to the U.N. Security Council.  Nor does it appear that these states provided a less formal form of notification to the UNSC (though if readers know otherwise, I’d welcome correction).
Article 51 states, in relevant part, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.  Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council.”
Article 51 letters generally inform the Security Council of the military action taken, as well as the legal rationale for the action and the circumstances that prompted it.  These letters give other states – as well as the Security Council itself – the opportunity to respond, whether by expressing concern about the initial action, condoning it, or raising additional questions about it.  A non-response by other states also may signal international support for the act of self-defense.  Further, the ICJ noted in the Nicaragua case that a state’s failure to report under Article 51 can undermine the credibility of its self-defense claim.
It’s not clear why Syria, Israel, and Kenya have not submitted Article 51 letters. Maybe it’s an oversight.  Maybe they would prefer to avoid having to defend their actions in writing.  Maybe Kenya and Syria seek plausible deniability.  (Israel has confirmed its actions publicly.)  But Article 51 letters allow international law on the use of force to develop in a clearer, more comprehensive way, and the Security Council should insist on stricter compliance with the Charter’s reporting requirement.  The UNSC could issue a resolution reminding states of their reporting obligations, or the President of the Security Council could make a statement to that effect.  Either way, states that have decided to use force across borders without consent should explain their actions publicly, and the UNSC serves as the key forum in which to do so.

Global (Statutory) Habeas After Aamer

Wednesday, June 25, 2014 at 4:00 PM

As my co-authors and I put the finishing touches on the 2014-15 Supplement to Aspen Publishers’ National Security Law and Counterterrorism Law casebooks, I had another thought about the potential consequences of the D.C. Circuit’s February 2014 decision in Aamer v. Obama—about which I’ve blogged a fair amount previously. Recall that, in Aamer, the D.C. Circuit held that the Supreme Court’s decision in Boumediene v. Bush necessarily invalidated the habeas-stripping provision of the 2006 Military Commissions Act in its entirety, and not just as applied to claims protected by the Suspension Clause. That is to say, Aamer holds that Boumediene renders 28 U.S.C. § 2241(e)(1) permanently unenforceable, and thereby restores the federal habeas statute to its pre-2005 status quo. As I’ve written previously, such a ruling, at the very least, re-opens the doors to pre-trial habeas challenges by military commission defendants.

But the pre-2005 status quo can also be divined from the Supreme Court’s decision ten years ago this Saturday in Rasul v. Bush, which held that the federal habeas statute allows federal courts to entertain any otherwise proper habeas petition from a detainee in U.S. custody so long as the court has jurisdiction over one of his custodians. As Justice Stevens wrote for the Court, “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.” Although it was discussed, the unique nature of U.S. control over Guantánamo, unlike in Boumediene,did not end up as a condition upon the Rasul Court’s statutory holding.

If that’s true, then why wouldn’t it be the case that Aamer thereby reopens the D.C. courts’ doors to habeas claims by individuals—including non-citizens—in U.S. custody elsewhere, including those detainees still in U.S. custody in Afghanistan? To be sure, there are a pair of D.C. Circuit decisions rejecting such jurisdiction. But both of those opinions were focused on whether such jurisdiction is mandated by the Suspension Clause—i.e., they turned on whether, after and in light of Boumediene, the Suspension Clause “has full effect” at Bagram. If Aamer meant what it said, then the applicability of the Suspension Clause is not dispositive of the courts’ jurisdiction. As an ordinary matter of statutory interpretation, the federal courts in general, and the D.C. courts, in particular, have jurisdiction over any habeas petition brought by an individual who alleges that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States,” and who names as custodian an official subject to the jurisdiction of U.S. courts. (And, just to be clear, neither D.C. Circuit opinion in the Bagram cases considered this statutory argument—and so neither would be prior precedent with which Aamer is inconsistent.)

Of course, the population of detainees at Bagram still in U.S. custody may be a vanishingly small set, and so this analysis may not have any immediate effect. But insofar as future extraterritorial habeas cases are concerned, Aamer suggests that Boumediene resolves as a matter of statute the availability of jurisdiction that courts had held was not required by the Suspension Clause. At least for the time being, that appears to be the law of the D.C. Circuit.

Guest Post from Jeff Kahn on Latif v. Holder (Striking Down the No-Fly List)

Wednesday, June 25, 2014 at 2:13 PM

Professor Jeff Kahn (SMU Law, also visiting at W&L Law) writes in with the following guest post on yesterday’s no-fly list decision.  Be sure to check out Jeff’s terrific book on the right to travel and terror watchlists (here).

Judge Anna Brown in the U.S. District Court for the District of Oregon issued an important opinion yesterday in Latif v. Holder that continues the slow dismantling of the United States No Fly List. The opinion finds that the FBI’s Terrorist Screening Center (the TSC, which composes the No Fly List and other watchlists) violated the plaintiffs’ right to due process because it lacks “any meaningful procedures” for them to contest their apparent placement on the No Fly List. The opinion is a long time in coming.

Although the case now moves to a remedy stage, the opinion brings with it the whiff of inevitability about not only the future of the No Fly List but of the larger government watchlisting program. Judge Brown joins an increasing number of federal judges finding constitutional deficiencies in their basic construction. As Jennifer Daskal and others have noted in the recent past, the Government is increasingly finding that its No Fly List arguments just aren’t flying.

The ACLU’s well-chosen plaintiffs are thirteen American citizens and permanent legal residents, including four veterans. Their allegations describe travel cut short by watchlisting that restricted their international air travel, domestic air travel, and even travel by ocean-going cargo freighter (putting paid to the frequent government response that those denied access to the friendly skies can take to the open waters). Their injuries range from lost veterans benefits to lost business to lost opportunities to visit family, or make religious pilgrimages. Several plaintiffs alleged FBI attempts to coerce their service as government informants in exchange for removal from the watchlists. The latter allegation is now at the center of a new No-Fly List case, Tanvir v. Holder. Read more »

Today’s Headlines and Commentary

Wednesday, June 25, 2014 at 1:35 PM

Iraq continues to dominate today’s headlines. Reuters indicates that early this morning, insurgents laid siege to one of Iraq’s largest air bases.

Meanwhile, the Associated Press reports that about half of the 300 American special forces troops that President Obama is sending to Iraq have reached Baghdad and begun operations there. Ken Pollack of the Brookings Institution examines the President’s decision to send such a small contingent of forces.  Pollack wonders what kind of access, authority, and strategy the military advisors will have; and analyzes the effect that the crisis will have on Iraqi oil production and the global economic market.

The Washington Post notes that in his weekly televised address, Iraqi Prime Minister Nouri al-Maliki called for “a united national stance to defy terrorism.” Despite such statements, Maliki has resisted appeals to form an emergency coalition containing all Iraqi ethnic groups. BBC News and The Hill have more.

According to the Washington Post, a senior U.S. intelligence official stated that, thanks to recent acquisitions of money and weapons, the Islamic State of Iraq and Syria (ISIS) “is the strongest it has been in several years.”

The militant group has also had much success recruiting new and committed members. CNN writes that among its most passionate fighters are western-born jihadists, who traveled to northern Syria and Iraq in hopes of creating a Sunni Islamic state. The Post reports that even a number of Kurdish young men have joined ISIS. David Ignatius’ Post op-ed indicates why Abu Bakr al-Baghdadi, the leader of ISIS, has been so successful in attracting new recruits.

The New York Times indicates that Turkey may bear some responsibility for the chaos in Iraq. Apropos of nearby states, according to the Post, the Syrian government bombed ISIS targets in Iraq yesterday. Likewise, Iran is providing the beleaguered Iraqi government with intelligence and supplies. The Times has details.

Iranian assistance to Maliki comes as three Iranian border guards were killed in an insurgent assault near the Islamic Republic’s Iraqi border. The Post shares the story.

In the same newspaper, Senator Tim Kaine (D-VA) argues that, despite what President Obama and high-ranking members of Congress have said, neither the 2001 nor 2002 AUMFs give the Obama administration authority to conduct military operations in Iraq. The Hill reports that a number of rank-and-file House Democrats are also concerned. Jack outlined President Obama’s position here.

On Monday, the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW) announced that Syria had surrendered the last of its reported chemical weapons stockpiles. Although these actions represent a “major landmark” on the way to a chemical weapons-free Syria, the Times points out that facilities with the capacity to make new chemical weapons still exist in Syria. NPR also has the story.

Also on Monday, President Obama spoke over the phone with Russian President Vladimir Putin. The two leaders discussed Syria’s chemical weapons disarmament, continued negotiations over an Iran nuclear deal, and the situation in Ukraine. Obama pressed Putin to work with Ukrainian President Petro Poroshenko in implementing a peace plan. Putin seemed to agree on the need for a ceasefire; The Moscow Times reports that the Kremlin anticipates “the start of direct negotiations between the opposing sides.” However, the U.S. remains unconvinced. The New York Times notes that the Obama administration has begun outlining increased sanctions against Russia.

Following the conviction and sentencing of a number of Al Jazeera journalists, Egyptian President Abdel Fattah el-Sisi yesterday said he “will not interfere in judicial rulings.”  He said further that “[i]f we desire state institutions, we must respect court rulings and not comment on them, even if others don’t understanding these rulings.” The New York Times and Al Jazeera report.

Roll Call indicates that, in response to the Egyptian court’s decision, Congressman Adam Schiff (D-CA) will introduce an amendment to the foreign aid bill currently being considered by the House Appropriations Committee. He wants to “cut and restructure American aid to Egypt” by moving money originally intended for security assistance to programs that support “education, democracy, and civil society.”

The Post editorial board criticized the Obama administration’s reaction to the sentencing, noting that if the U.S. is going to accept autocratic regimes, then human rights violations and political repression should come as no surprise.

The Supreme Court reached a decision today in Riley v. California, ruling that police officers must first obtain a warrant before searching the contents of a suspect’s cell phone. The Hill has the story. Read the opinion here.

In response to the release of an Office of Legal Counsel (OLC) memo, which authorized the drone strike on American Anwar al-Awlaki, two members of the Senate Intelligence Committee, Senators Ron Wyden (D-OR) and Mark Udall (D-CO), have asked for more information on U.S. policy regarding targeted killings of Americans. Roll Call has more details. For a summary of the OLC memo, see Ben’s post here.

The Post shares its third installment in a series of articles on U.S. drone crashes. This one focuses on civilian-operated unmanned aerial vehicles (UAVs), which seem to be proliferating. The Post reports that a drone in Seattle, spotted taking pictures outside a woman’s apartment window, raised legal questions and privacy concerns.

Two researchers have determined that many U.S. hospital systems are vulnerable to cyberattack. Wired has the story.

Politico writes that the CIA has finished making initial redaction recommendations on a report regarding their interrogation techniques. In April, the Senate Intelligence Committee voted to declassify the document.

Glenn Greenwald’s article on “the most important [documents] in the archive” shared with him by Edward Snowden is “very imminent.” Politico’s Dylan Byers has the story.

Marshall Erwin in Real Clear Defense examines how legal scholars arguing over U.S. surveillance and intelligence policy has actually “hurt America’s national security bottom line.”

Finally, the Guardian indicates that the U.S. may find itself at war with North Korea over a Seth Rogen and James Franco movie. In the film, the actors attempt to assassinate North Korea’s supreme leader Kim Jong-un. In response, a spokesperson for the North Korean government stated that the movie represents “a most wanton act of terror and act of war and is absolutely intolerable.”

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.

SCOTUS: Without a Warrant, Police Generally Cannot Search Digital Information on Arrestees’ Cell Phones

Wednesday, June 25, 2014 at 11:20 AM

You’ve likely heard the news, made earlier this morning by the opinion in Riley v. California.