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Four of The Would-be ISIS AUMFs

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Tuesday, September 9, 2014 at 6:32 PM

While Congressional leadership may be hesitant to take up a vote authorizing the president to use military force in Iraq and/or Syria against ISIS in the coming weeks, we’ve seen several different authorizations put into play—with different requirements, and by different members of Congress. Below, I note four of the would-be ISIS AUMFs that are kicking around right now in the House and Senate, along with remarks by the bills’ sponsors.

On September 3rd, Rep. Frank Wolf (R-VA) had introduced a sweepingly broad bill to “authorize the use of military force against international terrorism.”  The legislation appears to authorize force without imposing much at all in the way of constraint. For the sake of a flavor only (as preambular language can and often does matter to subsequent interpretation), here is the operative provision: 

SEC. 2. AUTHORIZATION FOR USE OF ARMED FORCES.

(a) IN GENERAL.—The President is authorized, with the close consultation, coordination, and cooperation with NATO and regional allies, to use all necessary and appropriate force against those countries, organizations, or persons associated with or supporting terrorist groups, including al Qaeda and its regional affiliates, the Islamic State of Iraq and Syria, al Shabaab, Boko Haram, and any other emerging regional terrorist groups that share a common violent extremist ideology with such terrorist groups, regional affiliates, or emerging terrorist groups, in order to eliminate all such terrorist groups and prevent any future acts of international terrorism against the United States or its allies by such terrorist groups, countries, organizations, or persons.

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Steptoe Cyberlaw Podcast, Episode #33: An Interview with Orin Kerr

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Tuesday, September 9, 2014 at 4:46 PM

Our guest this week is Orin Kerr, professor of law at George Washington University and well-known scholar in computer crime law and internet surveillance.  Orin is our second return guest, and he demonstrates why, opining authoritatively on the future of NSA’s 215 program and the “mosaic” theory of fourth amendment privacy as well as joining in our news roundup.

We begin the podcast with This Week in NSA, which again consists of news stories not written by Glenn Greenwald and the Snowdenistas. Most prominent are the stories claiming that Snowden’s leaks contributed to US intelligence failures against ISIS, the decision by Justice and DNI officials to support Sen. Leahy’s USA Freedom bill, and the release of a less-redacted version of Jack Goldsmith’s OLC opinion holding that the 215 program’s predecessor is not only legal but requires no FIS court approval, at least in time of war.  We find even more evidence that Snowden leaks harmed our ability to monitor ISIS, doubt that Sen. Leahy’s bill will pass before the elections, and speculate about whether OLC has a macro that inserts its plenary Article II article into every opinion it produces.

Meanwhile, Yelp prevails in an extreme case claiming that the company suppresses bad reviews – but only for advertisers.  To which the Ninth Circuit says, “So what? It’s Yelp’s site.”  If only the aggrieved shopowner had sued under EU privacy law, which might require Yelp to forget those bad reviews.

Speaking of the right to be forgotten, I explain what I’ve learned by actually filing censorship demands of my own.  The headline?  Google will suppress European search results for anyone anywhere.  You don’t have to be a European to have your peccadilloes forgotten.  The full post is here.

And, speaking of foreign censorship of US information, LinkedIn is being accused of applying Chinese censorship to Chinese customers, even on LinkedIn’s U.S. site.  Three cases make a trend, and censoring the news that Americans read by threatening to hold their news suppliers liable abroad is definitely a trend.

This week in data breaches:  Home Depot is accused, and Sen. Rockefeller calls on the company to respond.  Will “tokenization” solve the problem, at least for stores – or is that a solution only a lawyer could love?  We also look at the healthcare.gov hack and conclude that it’s been hyped.

In other regulatory action, Google takes a big hit for kids’ in-app purchases and Verizon agrees to pay $7.4 million for sending inadequate notices to customers.  But the class action bar isn’t likely to get rich off either case.

And Jason lays out the details of a Hasidic child abuse trial that has already produced not one but two noteworthy privacy rulings in New York.

Today’s Headlines and Commentary

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Tuesday, September 9, 2014 at 3:20 PM

The Iraqi parliament has approved a new cabinet to be led by Prime Minister Haider al-Abadi, the New York Times reports. However, lawmakers left what are perhaps the two most important positions for countering the country’s growing security threats, Defense and Interior Ministries, unfilled. Mr. Abadi announced that he would temporarily run the ministries himself, providing lawmakers one week to name new ministers before filling the posts with his own choices. Representatives of the Kurdish autonomous region have given approval, but specified certain conditions that must be met within three months, including an agreement on oil and gas revenue sharing. Elsewhere, the Wall Street Journal describes how the Kurds came to play a key role in U.S. plans to battle ISIS.

Reuters reports that the U.N. Security Council will issue a resolution for countries to “prevent and suppress” the recruitment and movement of foreign fighters attempting to join extremist groups like ISIS in Iraq and Syria. It will do so by ensuring that it is considered a serious criminal offense under domestic laws. In the U.S.-authored draft, all states would be required to prove that it is illegal for their citizens to travel abroad, collect funds, or provide for the travel of other individuals “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorists acts, or the providing or receiving of terrorist training.”

This comes as the Wall Street Journal reports that U.S. efforts to track Westerners for counterterrorism purposes are hitting a number of complications amid incongruous international approaches to information sharing and domestic security.

And if you needed proof as to how quickly the foreign policy debate in America has changed, look no further than this new ABC News/Washington Post poll. Apparently, 71 percent of Americans now favor airstrikes against ISIS in Iraq, an increase of 17 percent in the last month, while 65 percent now support strikes in Syria. Still, a majority of Americans in a recent CNN poll oppose putting U.S. soldiers on the ground 61 percent to 38 percent.

The polls were released a day before the President will explain his strategy to defeat ISIS to the nation. Writing in the New York Times, Peter Baker outlines the complexities and challenges the President will face as many of his past statements and assessments come back to haunt him.

As President Obama looks to ramp up American involvement in the conflict with ISIS, Congress continues to waiver on whether or not he has the necessary authority, and even if not, whether they want to be involved. While various members of Congress have introduced at least four different authorizations to use military force in recent weeks, Foreign Policy points out that many of their colleagues remain reluctant to take up an issue that is so inconvenient for their election schedules. The Hill has more on Congress’s attempt to pass the buck.

Finally, in an op-ed in the Times, Nawaf Obaid and Saud Al-Sarhan argue that far from being the driving force behind ISIS, it is the Saudis who can really “crush” the group.

In Donetsk, blasts around the airport and on the outskirts of the city threatened to derail a ceasefire reached only Friday between Ukraine, pro-Russia separatists, and Russia. Foreign Policy reports. The Organization for Security and Cooperation in Europe has the details of that agreement via the Kyiv Post. According to Reuters, while officials on all sides insist the ceasefire is still holding, the Ukrainian military admitted 5 of its servicemen have died in fighting since it was signed. Russia has urged Ukraine to begin negotiating with the separatists on the final political status of the region.

Yet, even as the ceasefire appears strained, Vladimir Isachenkov at the Associated Press believes Russian President Vladimir Putin has an interest in making sure these negotiations, unlike past rounds, are successful: his forces have the upper hand militarily, but only for now.

Whether the ceasefire holds or not, the BBC announced that the EU is pushing ahead with sanctions on Russia that would limit the ability of large Russian state-owned oil companies to raise money on European financial markets. The measures are slated to come into effect in the next few days.

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Yet Another Iraq War Powers Letter, and a Response to Lederman

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Tuesday, September 9, 2014 at 9:16 AM

Yesterday the President sent his seventh Iraq-related War Powers Resolution (WPR) letter since June, and the fourth in about a month.  The new letter concerns U.S. Armed Forces using “targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure site from ISIL.”  This development further confirms my theory that the administration is issuing piecemeal letters in an effort to argue later that “hostilities” under the WPR are mission-specific and that the WPR clock expires when the discrete in-country mission expires.  “On this logic,” I explained last week, “if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b).”

In connection with the latest WPR letter, Marty Lederman has a characteristically thoughtful and intelligent response to my post on this matter.  I urge interested readers to look at it.  A few responses:

Marty says that the “WPR reports in question describe discrete missions with very limited and targeted objectives.”  Yes, the letters describe the missions in that way, but I don’t buy the characterization.  Every mission is “targeted” – that is a requirement of the laws of war.  And I don’t think the missions possess “very . . . limited” objectives.   As of a week ago, the United States has conducted 120 air strikes in less than a month, killing many people in many places in Iraq, and it has conducted many more air strikes since then.  The United States is using this firepower to kill, degrade, and deter Islamic State fighters that have been described (outside of the WPR letters) by the President and other top officials as an enormous threat to the United States and its interests in the region and elsewhere, and part of a long campaign.  The President’s letter describes each discrete mission to serve these ends as “limited,” but the reality is that neither the fire nor the ends for which fire are used are “limited.”

I should note that Marty and I likely don’t have much of a disagreement on the law of the WPR if my characterization of events is right.  Marty simply assumes, as the President says in the WPR letters, that the various missions in Iraq are designed only to serve discrete and particular aims, and are not related to a broader effort to defeat the enemy.  I think this characterization is obviously inaccurate.  But perhaps a more fundamental point of disagreement between us is that I do not see why the highly manipulable characterization of airstrikes in a country as “limited and targeted” matters to the “spirit” of the WPR (which is the issue Marty is addressing).  The WPR is a dysfunctional statute, but one of its main aims was to ensure that the President ultimately had congressional approval before engaging in long-term “hostilities” in a nation.  I have explained (in the Libya context) why I think significant air fire of the type now deployed in Iraq counts as “hostilities” under the WPR.  In these situations, the WPR requires congressional authorization after 60 (or 90) days of hostilities.  That is what I meant when I said that the Obama “discrete mission” approach is contrary to the spirit of the WPR even though it is largely consistent with its language (which does not by its terms forbid a President from slicing and dicing missions in a country the way the administration is now doing.)

I also don’t see why it is relevant to the WPR that (as Marty says) “there is widespread support in Congress for these limited missions, and congressional leaders have given the President their blessing.”  Yes, Congress backs the President for now and doesn’t want the responsibility of a vote on the Iraq matter.  But the whole point of the WPR, for better or worse, was to force Congress to exercise its constitutional responsibilities by requiring a vote on the use of hostilities after 60 (or 90) days if the President wanted to continue to engaged in “hostilities” after that period.

Marty goes on to discuss in great detail, and with many precedents, the fact-dependent question of when hostilities are truly “intermittent” under the WPR.  I don’t have much to quarrel with in this analysis except to say that the air strikes in Iraq in the last month appear already to be more intense than any of the precedents Marty cites.  It is also very important to note that the 2011 Libya air strikes were described – not just in the WPR letter, but also in the OLC opinion – as “limited in their nature, duration, and scope.”  And yet there the administration followed the more usual practice of a single WPR letter with a regular update in the biannual consolidated WPR report.  But in Libya that approach led to the embarrassment of having to argue, after 60 days, that the extensive fire in Libya did not amount to “hostilities.”  And so in Iraq the administration appears to be adopting a different tactic to skirt the WPR’s clock.  If this is not the right interpretation, why did the “limited” action in Libya follow the usual practice, while the “limited” action in Iraq has generated a flurry of WPR letters?

A final note.  The Obama administration appears to believe, contrary to some prior administrations and perhaps more forcefully than others, that the WPR is constitutional.  And yet in Libya and now Iraq, the administration has, I think, done more through interpretation than any other administration to render the already-weak WPR a dead letter, especially in an era of war from a distance.

Transatlantic Dialogue on Int’l Law and Armed Conflict: Sarah Cleveland on Harmonizing Standards

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Monday, September 8, 2014 at 11:31 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Sarah Cleveland, and it explains the Project on Harmonizing Standards for Armed Conflict. A taste:

One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian law (IHL) treaty framework regulating such conflicts is inadequate. One interim solution that some states have pursued has been to apply the rules developed for international armed conflicts (IACs) in conflicts with non-state armed groups.

The United States, Australia, Canada, the Netherlands, the United Kingdom, and others, for example, have issued guidance stating that their armed forces will apply IAC rules as a matter of policy in NIACs. And since 2009,the US has taken the position that “[p]rinciples derived from law-of-war rules governing international armed conflicts. . . must inform the interpretation of [its Guantánamo] detention authority.” Yet the extent to which states look to IAC principles as a means of delimiting their authority is unclear.

The Project on Harmonizing Standards for Armed Conflict, which I co-direct with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute, seeks to augment such efforts by exploring the extent to which the IAC treaty regime can be practically applied, as a matter of law, in NIACs. The ultimate goal of the project is to help harmonize the IHL rules applicable in all armed conflicts to the higher standards established for IACs. States would adhere to the regime by registering a unilateral declaration of intent with an appropriate body, possibly the Swiss Federal Council (the depository for ratifications of the Geneva Conventions). The resulting regime would be legally binding on that state as a matter of international law.

World War II-Era Herbert Weschler Memo on Conspiracy as War Crime

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Monday, September 8, 2014 at 4:20 PM

This is a pretty interesting document: A 1944 memo from Herbert Weschler, then assistant attorney general, outlining the U.S. government’s developing view of conspiracy as a war crime. The interesting thing is how similar the internal discussion of the subject in 1944 is to the one going on now in the Bahlul case—and how similar Weschler’s conclusions are to those the government has come to after long internal deliberations.

The document was filed as as attachment to this pleading in the Nashiri military commission, which notes that the government’s current approach to conspiracy is “consistent with high-level Executive Branch consultations that have occurred in prior United States law of war prosecutions” and cites the memo as an example.

In fact, the similarities are pretty striking: Weschler in the memo acknowledges that there may be a U.S. common law of war approach under which inchoate conspiracy is available as a crime. But as this is not universally accepted, he instead urges—just as the military commission prosecutors are now and for much the same reason—limiting conspiracy liability to instances of a completed offense.

Here is the key exerpt from the memo, written to Attorney General Francis Biddle: Read more »

More on Iraq’s Implications for the Continuing Relevance of the 2001 AUMF

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Monday, September 8, 2014 at 3:55 PM

Yesterday I posed the question whether the 2001 AUMF has any continuing significance, legally-speaking, for counterterrorism activities (especially drone strikes) in Pakistan, Yemen, etc., given that the President is “confident that [he] has the authorization that [he] need[s]” to do what has been done in Iraq and also to support the expanded role that he will be describing to the nation tomorrow night. I don’t think the situations are distinguishable, but don’t take my word for it, take the President’s:

But this is not going to be an announcement about U.S. ground troops. This is not the equivalent of the Iraq war. What this is is similar to the kinds of counterterrorism campaigns that we’ve been engaging in consistently over the last five, six, seven years.

[emphasis added]. To be clear, I’m not questioning the strategy; it sounds to me like the right strategy based on what we know at this time and what we can realistically accomplish (leveraging host nation or allied ground forces with US (and allied) air power, logistics, training, etc.). But it does underscore the legal question I raised yesterday: If Article II is enough to do this in Iraq, why do we keep talking about the 2001 AUMF as if it is a necessary condition for the identical counterterrorism activities we conduct in Yemen, Pakistan, etc.? [update: This post by Peter Spiro at Opinio Juris reinforces my point, I think. In it, Peter argues that the President has no need for legislative authorization in circumstances short of a "real war" (which the multiyear campaign for Iraq would not be, apparently). That, of course, would include everything we currently do under the 2001 AUMF aside from GTMO and whatever remains of ground operations in Afghanistan.]

Regulating Foreign Surveillance Through International Law

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Monday, September 8, 2014 at 1:45 PM

This Friday, the U.N. Human Rights Council will hold a session to discuss the right to privacy in the digital age. The Council is considering these issues in the wake of a General Assembly Resolution adopted in December (which affirmed that the same rights that people have offline must also be protected online) and a report by U.N. Special Rapporteur Frank La Rue on the protection of the right to privacy in the context of domestic and extraterritorial communications surveillance. That report offered some robust critiques of the ways in which states have conducted mass interception of internet and telephonic data and metadata, and in which they have used “national security exceptions” to allow expansive electronic surveillance.

Pulling together experts from civil society, academia, and private industry, this week’s discussion seems intended to bear down on those critiques, including by identifying challenges that states face as they try to strike the appropriate balance between their security goals and individual privacy rights of citizens and foreigners. Given that states historically have not used international law to regulate spying, is there reason to think – at this point in time – that states may (or should) turn to international law to regulate their conduct of foreign surveillance? There is, I believe, but not necessarily in the manner or form in which many human rights and civil liberties groups advocate. I’ve posted on SSRN a draft of a forthcoming article on this issue, entitled An International Legal Framework for Surveillance. I welcome comments on it. The abstract is here:

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and subjects of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

My argument about how states should proceed diverges from the approach of many human rights groups. In my view, new international norms, at least in the first instance, should be procedural rather than substantive, both because a consensus about procedural norms is easier to achieve in the context of secret activity, and because a focus on procedural norms will allow states to avoid, for the time being, contentious discussions about their disparate views on fundamental aspects of personal privacy.

This approach rejects both an aggressively cynical view of the ability to regulate foreign surveillance and an unduly optimistic view that states will converge around robust international privacy protections in the short term. The cynics assume that pressures to modify the status quo will diminish in short order, overtaken by subsequent geopolitical crises. The optimists argue that states should develop the substantive principle of privacy contained in the ICCPR, and have robust aspirations for what that principle should contain. In my view, both of these approaches are unsatisfying, predictively and normatively. The cynics underestimate both the enduring nature of human rights pressures on states and the benefits to states of creating new international legal rules in this area. The optimists underestimate the difficulty of agreeing on concrete, substantive norms in a multilateral setting among states with varied incentives. For this reason, states should focus first on establishing procedural limitations that will reduce (though not eliminate) differences between the way in which they treat citizens and foreigners.

At the same time, my proposed approach is not meant to exclude the parallel process of international law development that undoubtedly will take place: the ongoing interpretation of the privacy provisions in the ICCPR and the European Convention on Human Rights. Both states and other actors that undertake treaty interpretation will continue to engage in the process of claim and counterclaim about what those provisions mean and how to apply them to this new world of foreign surveillance. This interpretive process can coexist with a decision by certain states to adopt new procedural norms regulating surveillance, and likely would prove complementary in establishing appropriate standards.

Even if states coalesce around the norms I identify in the article, the project is just starting. Many substantive questions remain unanswered: Should states treat bulk collection differently from collection on individual targets? Should states conclude that it is more permissible to collect on foreign officials, who presumably are on greater notice that they are engaged in matters of interest to other states, than to collect on average citizens? How wide a gap is acceptable between the treatment of the communications of a state’s nationals and foreign nationals? And does it make sense to draw geographic distinctions about where data is collected, held, or reviewed, as contemporary approaches do? My article proposes a launching point for basic international procedural norms of foreign surveillance. Conversations about these other thorny questions, many of which will occur as states flesh out the meaning of ICCPR article 17, almost certainly will take far longer to resolve. For now, the sense — among governments, elites, and average citizens — that something must fill in international law’s silence on foreign surveillance means that states should pursue basic procedural norms that restrain their foreign collection activities, at a cost they can bear.

Get Yer Guantanamo Recidivism Report Here!

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Monday, September 8, 2014 at 12:03 PM

The latest DNI Guantanamo recidivism report is available here. The last such report is here. As you’ll see, not a a lot of change. Here are the numbers:

Recidivism

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Today’s Headlines and Commentary

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Monday, September 8, 2014 at 9:00 AM

The Washington Post reports that the Islamic State has anti-tank weapons that have been seized from Syrian rebels. The news comes from a report by Conflict Armament Research, which concluded that ISIS fighters have captured a “significant” number of U.S.-manufactured arms.

The L.A. Times tells us that President Obama is slated to announce his strategy to combat the Islamic State on Wednesday. In an interview with NBC’s “Meet the Press” yesterday, the president hinted that he is likely to announce a more aggressive policy, stating that the United States would “start going on some offense” to push back against ISIS.

As we wait for President Obama, senior administration officials have indicated that successfully defeating ISIS could take years. The New York Times takes a look at the plan that the Obama administration is putting together—a plan that could extend well beyond President Obama’s time in office and through to the next president’s term.

David Carr of the Times explains that ISIS has used social media and video technology unlike any other terror organization has before. Writing on the recent videos of members of the terrorist group beheading foreign journalists, Carr insists that the footage is “spread[ing] fear and terror” unlike any other virtual campaign from similar groups in the past.

The New Yorker has a follow-up piece on the “failed raid to save [journalists] Foley and Sotloff” in Syria. (The Post, among other outlets, reported on the failed operation back in late August.)

Denmark is offering a form of amnesty to Danish Muslims who have gone to Syria to fight alongside extremist rebel factions. Al Jazeera reports that the Danish government is offering its citizens safe passage home and to help them find job opportunities to reintegrate back into Danish society.

The Times informs us that the Iraqi parliament is scheduled to proceed with a vote to confirm the new cabinet proposed by Prime Minister-designate Haider al-Abadi. The United States had previously pledged support of a new Iraqi government, provided that Mr. al-Abadi took the Prime Minister post, and that the cabinet was multisectarian.

Zeid Ra’ad Zeid al-Hussein, the new United Nations human rights chief, released a statement today urging action in Iraq and Syria to end the conflicts there. The Times covers the remarks.

Libya has expelled the Sudanese military attaché to the country over allegations that Sudan is helping to support extremist rebels in Libya. Al Jazeera reports that Libya intercepted a Sudanese military plane loaded with weapons, which the Libyan government determined was intended to reach rebel groups inside the country. Sudan confirmed that the plane was sent to Libya, but explained that the actual intended recipient was the Libyan government, and that the arms were meant for a joint Libyan-Sudanese border force.

The unity pact between Hamas and the Palestinian Authority is apparently on shaky ground. President Mahmoud Abbas, speaking after a meeting of the Arab League, threatened to break off the unity agreement with Hamas if the movement doesn’t allow the Palestine Authority proper governance over the Gaza Strip. The Times has the story.

Reuters reports that a large of group of Palestinians rioted in East Jerusalem yesterday after hearing the news that a young Palestinian had died of wounds from a clash with Israeli police that took place last week.

Afghanistan remains leaderless, and President Obama is urging the country’s two presidential candidates to enter into a power-sharing deal as soon as possible. The AP reports that President Obama spoke to both candidates, Ashraf Ghani Ahmadzai and Abdullah Abdullah, over the weekend.

The Senate has been delayed in publishing its CIA “torture report” that will declassify an enormous cache of CIA documents detailing CIA interrogation practices after 9/11.  While the Senate continues to deal with numerous hurdles on the way to final publication, the Telegraph has had an exclusive look at what the report might contain. The paper has had contact with two sources familiar with the contents of the report and the details are expected to be “deeply shocking.” For example, one source explained that the water-boarding tactics employed were vastly more brutal than than earlier thought: some detainees were apparently drowned in water baths, and thus brought close “to the point of death”.

A new exhibit in the National September 11 Memorial and Museum displays artifacts from the raid that killed Osama bin Laden. Newsweek has the details.

The ceasefire in east Ukraine appears to be unraveling, as fighting broke out early yesterday morning in the outskirts of Donetsk. Reuters reports that a woman died from the shelling.

North Korea has announced that its supreme court will try detained American Matthew Todd Miller on September 14. CNN has the story.

The United States is stepping up its role in the global fight against the ebola virus. The Post tells us that President Obama has announced that the U.S. military will begin to assist efforts to fight against the epidemic growing in west Africa.

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

The Week That Will Be

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Monday, September 8, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, September 8th at 9 am: The Carnegie Endowment for International Peace will host Chief of Naval Operations Admiral Jonathan Greenert on the Asia-Pacific Rebalance. Admiral Greenert has recently returned from visiting his counterpart, Admiral Wu Shengli of the People’s Liberation Army Navy in Beijing. During the most recent visit, the two navy heads continued their discussions on ways to improve cooperation, and steps to increase their mutual confidence. Admiral Greenert will share his thoughts on the U.S. Navy’s relationship with the People’s Liberation Army Navy. Douglas H. Paal will moderate. RSVP here.

Monday, September 8th at 10 am: The United States Institute of Peace hosts an event entitled Countering Terrorism in Pakistan’s Megacities: Exploring the Role of the Pakistan Police. With violence from terrorism, secessionist insurgency, sectarian conflict and ethnic turf escalating in Pakistan’s megacities, the panel will discuss ways to increase the capacity of Pakistan’s local police to counter terrorism in the nation’s urban centers.Tariq Parvez, Ambassador Robin Raphel, Robert Perito, and Moeed Yuseuf will speak. RSVP or watch the live webcast here.

Monday, September 8th at 6 pm: In New York City, Fordham University will host a conversation on Terrorism Prosecutions: Lessons Learned and Future Challenges. What are the major challenges today facing terrorism investigations and prosecutions? How have counterterrorism strategies evolved? Have the criticisms of human rights advocates and civil libertarians about the way these cases are handled made an impact on the strategies of law enforcement? Panelists will address these and other questions. Seth DuCharme, Linda Moreno, John Dolan, and Andrea Prasow will speak. Register here

Tuesday, September 9th at 9:30 am: At the Atlantic Council, Daryl Kimball, Stephen Rademaker, and Barbara Slavin will provide an Iran Negotiations Update: Verification vs. Breakout Capacity. For more information or to RSVP, visit the Atlantic Council website.

Tuesday, September 9th at 12 pm: The Information Technology and Innovation Foundation will host an event entitled Resolving Cross-Border Internet Policy Conflicts. In a new report to be released at this event, ITIF President Rob Atkinson and Senior Analyst Daniel Castro argue that the dominant approaches to Internet policy, which typically calls for either universal rules applied to all nations or a complete free-for-all among countries – fail to provide a pragmatic path forward to resolve the inevitable conflicts that arise. Instead, will suggest a new framework for evaluating cross-border Internet policy conflicts that respects both the global nature of the Internet and national laws and norms. Register here

Wednesday, September 10th at 2 pm: The Institute of World Politics will hold an event entitled Ukraine: Summer’s Over. Having explored the crisis-riven Central and Eastern European country in July, Dr. Marek Jan Chodakiewicz will share his observations on the situation in post-Maidan Ukraine, including the eastern Donetsk region plagued by a Russian-supported irredentist insurgency and the area of the MH17 crash site. RSVP here

Wednesday, September 10th at 3 pm: Among the many atrocities of the Syrian civil war, the use of chemical weapons stands out as particularly brutal. The Assad regime’s accession to the Chemical Weapons Convention last year and the subsequent destruction of its declared chemical arsenal has helped reduce the risk of chemical weapons use again in that region. Destroying that arsenal quickly, securely and safely in a war-torn country, however, presented huge challenges. Thomas Countryman, Laura Holgate, Andrew Weber, and Sharon Squassoni will provide an assessment of Destroying Syria’s Chemical Weapons: One Year Later  at the Center for Strategic and International Studies. Please RSVP to the Proliferation Prevention Program at [email protected] or 202-741-3921.

Wednesday, September 10th at 4:30 pm: Author Joshua Muravchik will discuss his new book, “Making David into Goliath: How the World Turned Against Israel” at the Institute of World Politics.  His, we presume controversial, new book traces the process by which material pressures and intellectual fashions reshaped the world opinion of Israel. You can find more information here

Wednesday, September 10th at 6:30 pm: In New York City, the New York City Bar will host a panel conversation on The Legality Under International Law of Targeted Killings by Drones Launched by the United States. The event will be held in the Great Hall of the Association, at 42 West 44th St., New York, NY. Rory O. Millson will moderate a conversation between John B. Bellinger III, Sarah Knuckey, James Ross, and Scott Shane.

Thursday, September 11th at 12 pm: Turkey’s Presidential Elections 2014: What do they mean for Turkey’s democratization process, the Kurdish question and Turkey’s foreign policy? The Woodrow Wilson Center will host a round table discussion on these questions and more with Etyen Mahcupyan, Mesut Yegen, Gonul Tol, and Marina Ottaway. For more information or to register, please visit with Woodrow Wilson Center’s website.

Friday, September 12th at 9 am to 5 pm: The Middle East Institute will host an all-day event at the Park Hyatt Hotel entitled Egypt: Facing Challenges, Harnessing Potential. This will be MEI’s second annual conference on Egypt, and will include panels on Reforming the State, Fostering Inclusion, Unlocking Egypt’s Economic Potential, and Engaging Youth in the Future of Egypt. For a listing of times and a directory of panelists, visit MEI’s event announcement. Read more »

If We Don’t Need an AUMF for Iraq, Why Would Repeal of the 2001 AUMF Matter?

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Sunday, September 7, 2014 at 6:59 PM

This coming Wednesday evening, President Obama will address the country on the topic of Iraq and the Islamic State, describing his strategy and making the case to the public to support an approach that not only will involve a continuation of the ongoing pattern of airstrikes (see here for a description of the latest set of airstrikes). Speaking on Meet the Press this weekend, the President explained that, though we will not put boots on the ground, this will not be an exercise in mere containment. As quoted in the Times, he said:

“We are going to systematically degrade their capabilities; we’re going to shrink the territory that they control; and, ultimately, we’re going to defeat them,” he added.

It does not follow, though, that the President will be asking Congress for an AUMF. On the contrary:

The president said he planned to meet with congressional leaders on Tuesday to outline his strategy, but suggested he did not need a vote to move forward with his campaign against ISIS, saying he was “confident” that he has the authorization he needs. Still, Mr. Obama hinted that he might ask for more money for the mission, saying, “It’s going to require some resources, I suspect, above what we are currently doing in the region.”

Jack has repeatedly made the case for why it is problematic (not to mention in great tension with his prior statements) for the President to proceed without asking Congress for an authorization. Rather than pile on as to that point, I want to make a different point here: If the President believes that Article II standing alone empowers him to engage in a military campaign of the magnitude contemplated for Iraq (and Syria?), why would anyone think that the continuing existence or repeal of the 2001 AUMF matters in legal terms for the way we use force in Pakistan, Yemen, Somalia, Afghanistan, Somalia, etc., aside of course from a repeal’s impact on the fate of the legacy population at GTMO? From a lethal force perspective, is there anything we currently do in those places that could not continue on the Article II model?

More on CIA Drone Strikes, Covert Action, TMA, and the Fifth Function

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Sunday, September 7, 2014 at 6:16 PM

Yesterday Kevin Heller and I exchanged views on the possible sources of domestic authorization for the CIA to conduct drone strikes. His two initial posts are here and here; my response is here; and the first part of Kevin’s reply (focused on whether the drone strike program counts as covert action given the traditional military activity exception) is here. Here is my response to Kevin’s latest, focused on the Title 50 questions we’ve been discussing:

1. The TMA Issue Read more »

Consequence, Weapons of Mass Destruction, and the Fourth Amendment’s ‘No-Win’ Scenario

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Sunday, September 7, 2014 at 10:29 AM

And, since I’m catching up on my blogging this morning, let me also recommend this paper by Scott Glick from the National Security Division of DOJ.   Very much relevant to the ongoing meta-data debate and other post-9/11 domestic law enforcement issues.  You may not agree, but it is worth a read. Here’s the abstract:

What is the role that consequence should play in a Fourth Amendment analysis? Should our view of reasonableness be affected by the nature of the consequence that the government seeks to prevent, such as stopping a terrorist from using a weapon of mass destruction (WMD)? While some may consider the use of a WMD by a terrorist to be a plot for an action movie, since the September 11, 2001, attacks, there have been increasing indications that malicious actors or organizations are attempting to obtain a WMD in order to cause massive devastation or catastrophic loss of life. Aside from advancements in technology that may enable the government to deploy an effective system of WMD sensors in the future, one of the most effective methods that the government could employ to locate a suspected terrorist who intended to use a WMD in an American city would be to monitor the terrorist’s communications.

But what if the government did not know the specific telephone or e-mail account that the suspected terrorist was using, even though it had specific and credible information that he intended to assemble and use the WMD sometime within the next 30 to 45 days? If the nation was not at war, how should a federal court resolve the constitutional tension that would arise if, instead of seeking a wiretap order that targeted a particular telephone or e-mail account, the government sought an order permitting it to target an indeterminate number of communications devices within that city, because that is the only way to find the terrorist and prevent the use of the WMD? Should the court refuse to issue such an order because the Fourth Amendment tolerates no other result, even though it could lead to massive destruction or catastrophic loss of life?

The hypothetical presents what some may call the Fourth Amendment’s “no-win” scenario, and it enables us to explore what very well may be some of the most challenging constitutional questions of our time. First, should consequence – that is, the nature and gravity of harm the government seeks to prevent – ever play an outcome-determinative role in a Fourth Amendment analysis? Equally important: who should decide whether consequence has a role to play? And, finally, how can government officials, who are responsible for protecting the nation from terrorists who seek to cause massive destruction or a catastrophic loss of life, obtain greater ex ante certainty in regard to the constitutionality of their preventative actions?

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based on publicly available information, Part II briefly explores the differences between chemical, biological, radiological, and nuclear WMDs, and the different consequences that can be reasonably anticipated from their respective use. Identifying these differences is critical to understanding how the significant definitional issues identified in Part III might affect the implementation of any new doctrinal solution. Part IV then looks at these issues through what I have elsewhere described as the “Fourth Amendment’s protective lens” and proposes that we use a probability-consequence matrix as an analytical framework to solve the “no-win” scenario. Finally, Part V seeks to lay out a path forward so that the Congress can consider and enact sensible legislation that will enable us to identify the limited circumstances in which consequence should be considered a factor in a Fourth Amendment calculus, particularly when a terrorist threatens to use a WMD.

Exploding Gas Tanks: Risk, Liability and Internet of Things

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Sunday, September 7, 2014 at 10:24 AM

Well, summer is over now and it’s time to get back to the real world.  For starters, I had a chance to participate in a podcast for The Security Ledger on the topic of the vulnerability of the Internet of Things.  Here’s a summary and the full podcast is at the Security Ledger web page:

We like to construct Hollywood friendly plots around a lot of the seminal moments in our collective history. For Civil Rights, we like to picture the integration of Little Rock High School, Rosa Parks’ courageous protest on a Birmingham bus or the March on Washington. For environmentalism, we talk about Rachel Carson’s Silent Spring or, maybe, the burning Cuyahoga River in Cleveland. (This vintage news footage of the 1969 fire calls it the fire that “sparked the environmental movement” without any apparent irony.) For automobile safety, we imagine Ralph Nader and the image of a 1972 crash test that shows the gas tank of the Ford Pinto exploding in a rear impact collision, engulfing both cars in flames.

But those memories are often way oversimplified. Little Rock and the Birmingham bus strike were just two battles in a fight for civil rights that went back to the end of the Civil War. Likewise, the Cuyahoga fire in 1969 was just one of a string of similar fires on the same river, going back decades. By some accounts – it wasn’t even the worst of them. And the fight for better automobile safety, likewise, began long before Ralph Nader or the Pinto came onto the scene.

In other words, progress is slow and almost always incremental, rather than revolutionary.  And so it will be with the kinds of privacy and security issues we face today as a whole universe of new, intelligent and Internet connected technology invades our homes, workplaces, automobiles and clothing.

The Foreign Policy Essay: The Price of “Novorossiya”

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Sunday, September 7, 2014 at 10:00 AM

Editor’s Note: Pundits in the United States and Europe worry that Russia’s invasion of Ukraine heralds the rebirth of an aggressive and dangerous adversary. Yet while Russia’s so-far successful military campaign in Ukraine and annexation of Crimea appear to be major advances for Moscow, the regime of President Vladimir Putin is also paying a heavy price. Carol R. Saivetz, a research affiliate in the Security Studies Program at MIT, contends that Russia’s economy, control over its far-flung territory, and foreign policy goals are all likely to suffer because of Moscow’s recent spate of adventurism.

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Even as fighting in eastern Ukraine continues between forces loyal to Kyiv and pro-Russian separatists aided by Russian regular forces, we still don’t know President Vladimir Putin’s real goal. Does Putin simply want to destabilize the southeast to weaken Kyiv? Is he more ambitious and trying to create a quasi-independent statelet there? Or is his ultimate goal to control a swath of land from the Russian-Ukrainian border through Odessa to TransDniestr—so-called “Novorossiya”? (“Novorossiya” is a term coined by Catherine the Great for lands wrested from the Ottoman Empire.) Regardless of what Putin really wants, or whether he has even made up his own mind, Russia is already paying a high price—both economic and political—for Putin’s Ukrainian adventurism.

Western sanctions have damaged Russia’s already slowing economy, reducing the growth rate to “zero, with a minus sign,” while precipitating capital flight through August 2014 in amounts surpassing all of 2013. Additionally, the reverse sanctions imposed by Moscow have already led to significant increases in the price of food, ranging from 6 percent in the western parts of Russia to 26 percent in the Far East. For the rest of 2014, the overall inflation rate will be between 7-7.5 percent. Russian companies, now cut off from Western financial markets, are facing difficulties refinancing their debts. For example, Sibur, partially owned by Gennady Timchenko (who is on the sanctions list), borrowed $780 million from Sberbank and Rosneft asked for $42 billion from the state.

Carol Saivetz photo with borderLeaving aside the cost of sanctions, Russia is hard pressed to finance the absorption of Crimea, annexed in March. Russia will have to invest heavily to modernize infrastructure, raise pensions to levels comparable to Russia, and subsidize farmers who have lost access to the Ukrainian market. Should Russia successfully detach Donetsk and Luhansk, costs will grow exponentially. Both were highly subsidized by Kyiv, and Moscow would not only have to replace those subsidies, but also undertake a massive reconstruction effort. The estimates of reconstruction run to the billions of dollars because the separatists have destroyed roads, bridges, and most particularly the mines.

Russia cannot afford this. In the short term, funds earmarked for infrastructure projects in Siberia and in the troubled North Caucasus are being diverted to cover the burgeoning costs of the Crimean annexation. Over time, both regions will suffer and links to Moscow will be further attenuated. A second source of revenue for Crimea and beyond is money from individual pension accounts. Variously estimated at approximately $7 billion, the pension funds are being used to plug holes in the state budget. It has always been presumed that the “social contract” between Putin and the people is based on promises of better living standards. For the moment, people appear willing to endure hardships to support Putin; yet it seems reasonable to assume that Putin’s popularity would be diminished if people found everyday living harder as the costs are passed on to the average Russian citizen.

In the political sphere, one has to question how popular an open war with Ukraine would be. For all practical purposes, the war has thus far been hidden from public view. Now, suddenly, there are reports of mysterious funerals and unmarked graves. In Stavropol alone, the Committee of Soldiers’ Mothers reported at least 400 dead or wounded. Russian forces may help separatists seize Donetsk and Luhansk, but military analysts believe that Moscow would need over 100,000 troops to hold the territory. Those soldiers would not be welcomed as they were in Crimea, thus risking the loss of many more men. One need only remember the Soviet experience in Afghanistan: support for the war waned as coffins came home to the larger cities. For the moment, Putin’s soaring popularity is clearly based on propaganda, the promotion of ethnic Russian nationalism, and the restoration of national pride. Yet only 5 percent of those polled favor sending troops to Ukraine. To be clear, none of this is meant to predict the demise of the Putin power structure, but it does portend a significant weakening of the regime. Read more »

DOJ Declassifies Memos On Domestic Surveillance Program

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Sunday, September 7, 2014 at 8:36 AM

The Department of Justice recently released two Office of Legal Counsel opinions by Lawfare‘s own Jack Goldsmith from 2004. The first memo provides a lengthy and at times heavily-redacted justification for the National Security Agency’s STELLAR WIND program—a suite of domestic surveillance authorities that began in the Bush administration. The second, much shorter memo analyzes the implications of the Supreme Court’s ruling in Hamdi v. Rumsfeld for the legality of STELLAR WIND.

We will have a summary of these memos out soon, so stay tuned.

CIA Drone Strikes and the Public-Authority Justification

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Saturday, September 6, 2014 at 4:01 PM

In a pair of posts (here and here), Kevin Heller at Opinio Juris explores a very interesting question: What exactly is the domestic legal foundation for the CIA’s use of lethal force given that the 2001 AUMF refers explicitly to US armed forces only? As he points out, the question matters especially in connection with the drone strike that killed US citizen Anwar al-Aulaqi, since 18 USC 1119 criminalizes the killing of US citizens abroad, and CIA officials could only avoid liability via the “public authority” justification if there is a proper domestic law justification.

Kevin highlights two possible sources of authority, and rejects them both as inapplicable. First, he rejects the 2001 AUMF on the ground that it refers explicitly, and only, to the use of US armed forces. Second, he rejects the argument that Title 50’s covert action provisions can provide the justification, reasoning that drone strikes cannot be considered “covert action” within the statute’s meaning because they qualify, instead as “traditional military activity” (“TMA”)—a category that is excluded by statute from the definition of covert action.

I disagree with Kevin’s ultimate conclusion for several reasons. Read more »

The Lawfare Podcast, Episode #90: The ISIL Threat—A National Counterterrorism Assessment

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Saturday, September 6, 2014 at 1:55 PM

It’s already made the headlines, but earlier this week, Matthew Olsen, Director of the National Counterterrorism Center, delivered a threat assessment of the Islamic State of Iraq and Syria at the Brookings Institution. Olsen’s assessment stood out among the many others that have been released into the Washington echo chamber: it was alarming yet measured; it addressed the structural factors both propelling and limiting ISIL; and it outlined a series of steps the United States could take to limit the threat to the U.S. homeland and its interests abroad. Overall, Olsen paints a picture of a radical group with unnerving capabilities, but one that he says is certainly not “invincible.” Bruce Riedel, Director of the Intelligence Project and Senior Fellow at Brookings, introduced Olsen and moderated the discussion.

The full event video is below, and you can find a text version of Mr. Olsen’s remarks here.

The Week That Was: All of Lawfare in One Post

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Saturday, September 6, 2014 at 9:55 AM

This week, Bobby began providing a discussion from the Transatlantic Dialogue on International Law and Armed Conflict exploring when the Law of Armed Conflict ceases to apply, especially in instances of non-international armed conflict. Over the next few weeks, Lawfare will host a series of short pieces that provide readers with a sample of topics addressed at this summer’s second annual Transatlantic Dialogue on International Law and Armed Conflict.

On Saturday, Ben brought us a Lawfare Podcast devoted to an emerging threat that has dominated public discourse recently: brain-eating zombies. Shane Harris of Foreign Policy magazine moderated “Bone-Crushing Zombie Action,” which featured a discussion between Bobby Chesney, Jennifer Daskal, and Ben focusing on the legal questions inherent in zombie apocalypses. Spoiler alert: there’s a reason the post has a zombified picture of Bobby on it.

Speaking of podcasts, Ben recommended a series of podcasts by Dan Carlin entitled, “Hardcore History,” which explore World War I in depth.

Cody brought us a letter sent by Attorney General Eric Holder and Director of National Intelligence James Clapper to Senator Patrick Leahy that endorses the Senator’s version of the USA FREEDOM Act.

On Friday, Zoe Bedell summarized the recent decision of the European Court of Human Rights on extraditions to the United States: Trabelsi v. Belgium.

Jane and Ben tipped us off to their newest Brookings Institution paper, “Our Cyborg Future: Law and Policy Implications,” which analyzes the legal questions surrounding our existence as “adolescent cyborgs.” Unlike the zombies, this paper is actually serious.

Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured a discussion with David Hoffman, Intel’s Chief Privacy Officer, on, among other topics, the European Court of Justice’s decision regarding the right to be forgotten.

On Friday, Cody shared a White House statement that confirmed the death of Ahmed Godane, the leader of Al-Shabaab in Somalia, in an airstrike last weekend.

Earlier in the week, Bobby discussed the legal dynamics of the same reported drone strike in Somalia, and if true, whether the Obama Administration could reasonably invoke authority granted under the 2001 AUMF.

Ben flagged National Counterterrorism Center Director Matthew Olsen’s Wednesday speech at the Brookings Institution on the ISIS threat. To listen to the speech, make sure to check out this week’s Lawfare Podcast.

On Wednesday, Cody tipped us off about the recent resignation from the U.S. Army of Major Jason Wright, a (former) lawyer for Khalid Sheikh Mohammed. Wright reportedly resigned after the Army forced him to leave the legal team representing Mohammed in order to complete a graduate school program that would enable his promotion.

Wells flagged the Second Circuit’s decision to affirm the denial by the Southern District of New York of a Freedom of Information Act suit filed to gain access to videos and photos of Mohammed Al-Qahtani, a high-profile Guantanamo detainee.

Tuesday, Jack asked whether the President’s unusual, frequent, and repeated War Powers Resolution letters to Congress are a new tactic to avoid the Resolution’s time limits on operations without statutory Congressional approval.

On Monday, Orin Kerr previewed the oral arguments in ACLU v. Clapper, a challenge to Section 215, heard on Tuesday in front of the Second Circuit. Kerr also provided the video of the argument after the day’s hearing closed. Later on Tuesday, Kerr summarized the CA2 ACLU v. Clapper proceedings and offered his impressions.

Ben highlighted the recent seminar that Anne Neuberger, the director of the NSA’s Commercial Solutions Center, gave at the Long Now Foundation.

In this week’s Foreign Policy Essay, Sumitha Narayanan Kutty, a foreign affairs analyst and journalist specializing in Iran and South Asia, detailed Iran’s four long-standing strategic objectives in Afghanistan as well as the potential challenges to its influence there.

John Bellinger brought us news that SDNY Judge Scheindlin had dismissed the remaining Alien Tort Statute suits against Ford and IBM in what he characterized as the “largest, longest-running, and most expensive lawfare battle in history.”

And that was the week that was.