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The Need for a New Agency to Regulate Robots

Thursday, October 2, 2014 at 3:49 PM

Joshua Bleiberg has a post on the Brookings Tech Tank blog summarizing Ryan Calo’s new paper, which argues for a Federal Robotics Commission to broker the regulatory and legal issues new robotic technologies present.

It begins:

Emerging technologies often generate a great debate over the efficacy of new federal regulations. In the past, the government has had to adapt to new technologies like the railroad or the radio. Typically lawmakers work out a compromise that protects safety and the rule of law. As robotics technology has steadily advanced, the conversation about government oversight has started to grow louder. In a recent paper, Ryan Calo explores the idea of a new federal agency that explicitly deals with robots.


Whistleblowers, Leaks and the Media: The First Amendment and National Security

Thursday, October 2, 2014 at 12:06 PM

Permit me a small amount of self-promotion, with apologies.  But ABA Publishing has, today, released a new book, Whistleblowers, Leaks and the Media: The First Amendment and National Security, of which I am a co-editor.  The book is a joint project of the American Bar Association Standing Committee on Law and National Security, and the Medill School of Journalism at Northwestern University.  It is intended as a broad based introduction to the legal and policy issues regarding the media’s coverage of national security.  It includes chapters from, among others, my fellow Lawfare contributor Steve Vladeck.  Topics range from the history of leaks prosecutions in the US, to an assessment of how “big data” is transforming leaks investigations, with much more in between.  Here is the official blurb:

A compilation of thoughtful essays that look at the constitutional foundations and limitations of the U.S. government in a contemporary context, this book examines how laws and freedoms collide in cases where individuals leak information to the media. The book clearly explains how the U.S. Supreme Court has interpreted laws that pit freedoms against government interests, and considers how the Internet world and big data are affecting privacy. It is a practical guide, in easy-to-understand language that journalists, lawyers, and government officials will find to be of great value.

At last, a clear and somber explanation of the issues involved in balancing secrecy, security and transparency in our democratic society. This book should help replace overheated rhetoric with reasoned debate.
David Wood,Senior Military Correspondent, The Huffington Post
2012 Pulitzer Prize winner for national reporting

UPDATE:  Link to book provided.  Apologies.  The notation “Backorder” available reflects the fact that the inventory has just hit the warehouse.

Folk International Law and Syrian Airstrikes

Thursday, October 2, 2014 at 7:21 AM

Earlier this year, I published an article called “Folk International Law,” in which I argued that there were many unappreciated and little understood costs to the convergence of LOAC and international human rights law. I suggested that the legal debate over targeted killing had driven US-based human rights advocates to contribute to and participate in a bizarre legal admixture of IHRL, IHL and jus ad bellum in order to attempt to impose some legal regulation on the seemingly extra-legal lethal strikes on targets outside of situations of armed conflict. I suggested that many lawyers seeking to influence the Obama administration’s decisions had accepted an approach to global NIAC that treated distinct bodies of international law as a policy toolkit that could be used to create “folk international law” norms that were not recognizable to most international lawyers outside of the immediate US conversation.

This week, Michael Isikoff reported in Yahoo News in a story entitled “White House exempts Syria airstrikes from tight standards on civilian deaths,” that a NSC spokeswoman said “that a much-publicized White House policy that President Obama announced last year barring U.S. drone strikes unless there is a ‘near certainty’ that there will be no civilian casualties- ‘the highest standard we can meet,’ he said at the time—does not cover  the current U.S. airstrikes in Syria and Iraq.”

The article goes on to quote the government spokesperson as saying that the war against ISIS “Like all U.S. military operations, are being conducted consistently with the laws of armed conflict, proportionality and distinction.” Read more »

Confusing the Issues in al Bahlul

Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between us–and how they should cash out before the three-judge panel on remand from the en banc court. Unfortunately, I think Peter’s latest post has only confused what was increasingly becoming clear.

Read more »

Readings: Daniel Byman and Jeremy Shapiro Warn Against Hyping the Threat of Returning Jihadists

Wednesday, October 1, 2014 at 9:28 PM

My Brookings colleagues Daniel Byman (who is, among other things, Lawfare‘s Foreign Policy Editor) and Jeremy Shapiro (who is, among other things, a demon with a barbecue and a slab of meat), have a new piece out in Foreign Affairs entitled, “Homeward Bound? Don’t Hype the Threat of Returning Jihadists.” It’s a counter-intuitive take on the threat posed by Americans and Europeans who have gone to fight with ISIS, one that concludes that the threat—while real—is overblown. Very worth reading.

It opens:

On May 24, 2014, a man opened fire inside the Jewish Museum in Brussels, quickly killing three people and fatally wounding a fourth before disappearing into the city’s streets. The alleged perpetrator, a French citizen named Mehdi Nemmouche, who has since been arrested and charged with murder, had spent the previous year fighting with jihadist opposition groups in Syria. His attack appeared to mark the first time that the Syrian civil war had spilled over into the European Union. Many security officials in Europe and the United States fear that this strike foreshadowed a spate of terrorist attacks that the chaos in Syria—and now Iraq—could trigger.

The Syrian conflict has captured the imaginations and inflamed the passions of Muslims around the world, spurring thousands to join the mostly Sunni rebels resisting the Assad regime. The influx of volunteers has bolstered jihadist groups such as the Islamic State of Iraq and al-Sham (ISIS), also known as the Islamic State, a militant organization that swept across Syria’s border into Iraq this past summer and proclaimed an Islamic caliphate.

Although most foreign fighters in Syria and Iraq come from the Arab world, a sizable contingent hails from the West’s large Muslim communities; 19 million Muslims live in the EU, and more than two million call the United States home. Since the beginning of the Syrian civil war, about 2,500 people from those places (as well as Australia, Canada, and New Zealand) have traveled to Syria to fight, according to the Soufan Group, a U.S. security consulting firm.

Read more »

Steptoe Cyberlaw Podcast, Episode #36: An Interview with Admiral David Simpson

Wednesday, October 1, 2014 at 2:30 PM

Our guest today is Admiral David Simpson, Chief of the FCC’s Public Safety and Homeland Security Bureau.  Admiral Simpson has more than 20 years of Information and Communications Technology experience supporting the Department of Defense.  Adm. Simpson is joined by Clete Johnson, his Chief Counsel for Cybersecurity.  The interview digs deep into Chairman Wheeler’s cybersecurity initiative, asking among other things exactly how voluntary it will be, what telecom companies can do to stop DDOS attacks, and what CSRIC really stands for.

It’s getting harder and harder to find new NSA stories, which must be a relief to the agency.  Last week, the only news was NSA’s decision to name Anne Neuberger its Chief Risk Officer.  Anne is an able woman who knows the outside world better than practically anyone at the agency, but I can’t shake the feeling that what the agency wants is a Chief Risk-Aversion Officer.

In other news, how to handle location data after Riley continues to bedevil the circuit courts, but the Fifth Circuit seems to have come to a surprisingly reasonable result, holding that users don’t have a reasonable expectation of privacy in the cell-site data that they give the phone company so it can connect calls to them.

Adm. Simpson and I dig into three stories that are more technical than legal but which will all have legal fallout soon:   It turns out that Apple may have known about the iCloud security flaw that enabled disclosure of nude celebrity photos for as long as six months before the hack.  The Shellshock bug debunks the notion that open-source is inherently more secure than proprietary code, and it means that anyone who has built their business on Linux should be scrambling (that means you, Apple and Google). And the financial industry launches a real-time information-sharing program that will finally test-drive the vision underlying the bills that Congress has been trying to pass for years.

In retaliation for Western sanctions, Russia is advancing the date for mandatory social media data localization.  Meanwhile, Google’s staggering potential liability for “wiretapping” publicly broadcast Wi-Fi signals has led to an interesting discovery fight, with the self-proclaimed victims of the wiretapping challenged to show that Google actually intercepted any of their data when the Street View car drove past their homes.  If the plaintiffs fail, their whole case (and their lawyers’ payday) are at risk, since non-victims are not proper class representatives.

Finally, a brief cybersecurity obituary:   Apple’s warrant canary is pining for the fjords.

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

Today’s Headlines and Commentary

Wednesday, October 1, 2014 at 1:00 PM

Yesterday, the Centers for Disease Control and Prevention announced the first case of Ebola in the United States. A man who recently traveled on a commercial airplane from Liberia to Texas has been diagnosed with the deadly disease that is currently ravaging western Africa. The New York Times informs us that he is being treated at a hospital in Dallas.

According to Marine Corps Times, 1,400 U.S. troops will head to Liberia this month to help combat the spread of Ebola.

According to the British Ministry of Defense, the United Kingdom conducted its first airstrikes in Iraq yesterday. The Wall Street Journal informs us that the attacks were carried out in support of Kurdish forces in northwest Iraq. Preliminary reports show that the strikes were successful. Meanwhile, the U.S. continued its air campaign Monday and Tuesday, launching “eleven strikes in Syria and another eleven in Iraq.”

Australian planes will begin flying with the U.S.-led coalition against the Islamic State. Although the Australian Parliament has not yet voted to engage in the fight, Prime Minister Tony Abbott announced that the country’s aircraft will be participating in an “initial support role.” Reuters reports the story.

In the current conduct of U.S. operations against the Islamic State, President Obama’s previously announced drone policy, which bans strikes unless there is a “near certainty” that civilians will not be harmed, does not apply. Yahoo News shares this statement from National Security Council spokesperson Caitlin Hayden.

Yesterday, the White House announced that it will significantly increase the number of Syrian refugees approved for immigration to the United States. The Washington Post notes, however, that the State Department will not be establishing a separate Syrian refugee program.

The Associated Press tells the story of thirty-two Turkish truckers, held hostage by Islamic State militants this summer. After being captured on June 10, the captives were treated reasonably well and were ultimately released on July 4. “The episode paints a picture of a militant group unusually careful not to anger Turkey’s government.”

In Hong Kong, crowds of pro-democracy demonstrators swelled today, marking the 65th anniversary of the creation of the People’s Republic of China. The Times reports that the Hong Kong government intends to wait the protests out. “Leung Chun-ying, the chief executive, and his advisers have decided not to use force to disperse the demonstrations but also not to hold formal negotiations with protest leaders for now.”

Meanwhile, the Russian state media has been portraying the protests in Hong Kong as a U.S.-organized plot. The Wall Street Journal examines the news coverage there.

President Obama and Indian Prime Minister Narendra Modi released a joint statement yesterday, outlining their “Vision Statement for the Strategic Partnership” between the U.S. and India. The two countries hope to collaborate on issues, including “economic growth,” “energy and climate change,” “defense and homeland security,” “high technology, space, and health,” and other regional and global issues.

President Obama meets today with Israeli Prime Minister Benjamin Netanyahu. According to Reuters, the two are expected to discuss the P5+1 nuclear negotiations with Iran. Israel would like some assurances that President Obama will remain true to earlier statements that “no deal is better than a bad deal.” At the top of the U.S. agenda, however, “is current relations between Israel and the Palestinians, including the situation in Gaza.”

Meanwhile, nuclear negotiations with Iran are expected to resume in two weeks. The Wall Street Journal informs us that a format for discussion has not yet been decided upon.

As Cody and Ben Bissell noted, the U.S. and Afghanistan signed a bilateral security agreement yesterday. Foreign Policy informs us, however, that Afghan, Indian, and Pakistani officials are already asking the U.S. to reconsider its troop withdrawal timetable, “pointing to the chaos and violence in Iraq and warning that Afghanistan could suffer a similar fate if all the Americans go home by 2016, as planned.”

Yesterday, the Treasury Department designated as terrorists individuals and networks associated with Harakat-ul-Mujahedeen and Lashkar-e-Taiba. The AP has the story.

Obama administration lawyers are currently considering whether the Treasury Department must inform individuals or networks it designates as terrorists that it has done so in reliance on warrantless surveillance. The Foreign Intelligence Surveillance Act (FISA) mandates that “the government… disclose when it uses information from eavesdropping in any ‘proceeding’ against people,” but the legal interpretation of “proceeding,” as it applies to the Treasury Department’s actions, is up for debate. The Times has more.

In eastern Myanmar, after “the discovery of two improvised explosive devices” and a grenade attack on a bus, the U.S. embassy has issued a warning to its citizens traveling in the area. Reuters has more on the situation in the country.

During a talk at the Council on Foreign Relations, Deputy Defense Secretary Robert Work stated that the U.S. will intervene militarily if the dispute between Japan and China over ownership of the Senkaku/Diaoyu Islands escalates. He noted, “While the Senkakus are under Japanese control, Article 5 [of the 1951 U.S.-Japan Defense treaty] applies, and we would respond if there was an attempt to take the Senkakus.” Marine Corps Times has details.

The Wall Street Journal informs us that Ukrainian forces yesterday fought off rebel attacks on Donetsk airport.

Meanwhile, the U.S. “Ironhorse” armored cavalry unit is deploying to Lithuania, Latvia, Estonia, and Poland “on a mission designed to deliver an unmistakeable message of NATO resolve to Moscow.” Reuters has more.

Ukrainians are preparing themselves for what could be a brutally cold winter. In June, Russia stopped delivering gas to Ukraine after the country failed to pay its debts to Moscow. The AP describes steps that citizens are taking to ready their homes for freezing temperatures.

U.S. Federal District Judge Lewis A. Kaplan yesterday accepted the plea deal of terrorism defendant Adel Abdul Bary, who will serve a maximum of twenty-five years for his role in the 1998 bombings of two U.S. embassies in eastern Africa. The Times has the story.

Carol Rosenberg of the Miami Herald reports that the Defense Department has selected retired Marine lawyer Maj. Gen. Vaughn Ary to serve as “convening authority for military commissions” at Guantanamo Bay.

On Monday, Organization of American States (OAS) Secretary-General Jose Miguel Insulza appealed to member countries to accept Guantanamo detainees. Reuters has the story.

Yesterday, in Atlanta, Georgia, “an armed private security guard rode in an elevator with President Obama” in violation of Secret Service security rules. This news comes just a day after Secret Service Director Julia Pierson attempted to defend her agency before the House Oversight and Government Reform Committee. The Times has details.

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.

Reply to Steve on al Bahlul, the “Law of War,” and Article III

Wednesday, October 1, 2014 at 11:30 AM

How much deference should Congress receive in determining when military commissions are necessary incidents of war?  That’s the real nub of the dispute between Steve and amici arguing to the D.C. Circuit that Article III did not bar the military commission conviction of Ali Hamza al Bahlul, whom the en banc court has already described as committing acts that “directly relate” to September 11.  Amici agree with Steve that Article III does not bar Congress from designating military commissions to try violations of the “law of war.”  We disagree, however, on the deference owed to Congress in prospectively defining the “law of war” under the Make Rules Clause, the Define and Punish Clause, and the Necessary and Proper Clause.  Our answer is that Congress should receive deference that is broad, but not unlimited.  Amici contend that violations of the “law of war” in which military commission jurisdiction is consistent with Article III go beyond acts that constitute war crimes under international law.  Steve disagrees.

I. U.S. Practice and the “Law of War”

Ex Parte Quirin exemplifies the deference that Congress is owed.  In dicta and holding, Ex Parte Quirin groups a wide range of offenses under the “law of war,” including espionage and unlawful belligerency.  The status of a number of these offenses under international law has been unclear for decades.  These offenses have in common a breach of what preeminent U.S. law of war theorist William Winthrop termed the “laws and usages of war” – expectations developed in what Quirin called a “long course of practical and administrative construction” in the U.S. from the Revolutionary War to World War II.

Congress’s effort to codify this “course of practical… construction” in the Military Commissions Act of 2006 (MCA) is precisely the kind of legislative action that the Framers had in mind under the Define and Punish Clause.  As Madison noted in Federalist No. 37, an interpreter of a body of law’s “several objects and limits” cannot hope to match science’s “perfectly accurate… delineations.”  Instead of attempting the impossible, an interpreter can only hope to distill a “course of practice.”  In the MCA, Congress distilled a long course of U.S. practice regarding the “law of war” that included both violations of international law and violations of domestic law, such as espionage, that international law allowed states to punish.  The Quirin Court’s use of the term, “law of nations,” encompasses both of these contexts.  Read more »

Judge Kaplan Accepts Adel Abdul Bary Guilty Plea

Wednesday, October 1, 2014 at 10:50 AM

Benjamin Weiser of the New York Times has the scoop on the plea bargain, about which U.S. District Judge Lewis Kaplan initially had harbored reservations, given the 25-year maximum sentence in play:

A federal judge in Manhattan said on Tuesday that he would accept a guilty plea from a terrorism defendant who would face a maximum 25-year prison sentence for charges stemming from Al Qaeda’s 1998 conspiracy to bomb two United States Embassies in East Africa.

The judge, Lewis A. Kaplan of Federal District Court, had recently questioned the wisdom of a deal in which prosecutors allowed the defendant, Adel Abdul Bary, 54, to plead guilty to three counts that carried the maximum 25-year sentence.

Mr. Bary, who was arrested in Britain in 1999 and brought to the United States in 2012, could spend less time in prison if credited with the roughly 15 years he has already served, largely during his unsuccessful extradition battle.


The Significance of Harold Koh’s Legal Defense of the Administration’s Interpretation of the 2001 AUMF

Wednesday, October 1, 2014 at 7:02 AM

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF).  Koh’s defense is nonetheless important because it definitively reveals the death of the Obama administration’s ambition to end what Koh has described as “the Forever War.”

On May 23, 2013, President Obama gave a speech at the National Defense University.  One important point of the President’s speech – building on and consonant with earlier speeches by Jeh Johnson and Koh – was to set down a marker and a roadmap for ending the armed conflict with al Qaeda, hopefully by the end of the President’s second term.  The President stated:

I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.

The AUMF is now nearly 12 years old.  The Afghan war is coming to an end.  Core al Qaeda is a shell of its former self.  Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States.  Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.

So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.  And I will not sign laws designed to expand this mandate further.  Our systematic effort to dismantle terrorist organizations must continue.  But this war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.

This vision of ending the Forever War was still on the table as recently as five and a half months ago, on the one year anniversary the President’s speech, when Koh wrote an essay at Just Security called Ending the Forever War: One Year After President Obama’s NDU Speech.  Some highlights (with my emphasis added):

The President’s historic move in that speech was to call for the eventual repeal of the 2001 Authorization for the Use of Military Force (AUMF) and the end of what I had called at the Oxford Union the “Forever War.”  The President cogently summarized why we should reject indefinite war in favor of an “exit strategy” to bring this protracted conflict with Al Qaeda, like all wars, to an end. . . .

[W]e should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations.  We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks. . . .

Stepping back from the details, the broader message is this: one year after the NDU speech, it still seems possible for President Obama to reach his stated goal of “refining and ultimately repealing” the 2001 AUMF.  Like much these days, the problem is not the law—it is the politics.  No new legislation is better than bad new legislation. So our strategy should be either “wait then repeal” or “narrow then repeal,” while keeping our eyes on the prize: finally ending America’s Forever War.

It is against this background that we can assess the significance of Koh’s speech.  For less than six months after maintaining that “We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks,” Koh has offered a legal defense of President Obama’s decision to do precisely that.  The Forever War, as Koh defines it, far from foreseeably dead, has been given new life as a result of the rise of the Islamic State and President’s Obama’s reversal on and Koh-blessed expansion-by-interpretation of the 2001 AUMF.

While I don’t like the interpretation of the 2001 AUMF, I don’t think this is an entirely bad development.  I always thought the debates about what to do with the 2001 AUMF – repeal it, let the President interpret it flexibly, or replace it with a more rigorous updated authorization – turned on intuitions about the persistence and danger posed by Islamist terrorists.  It is now clear that the Islamist terrorist threat is not dissipating anytime soon.  It is also clear that the President’s interpretation of the 2001 AUMF to fight this threat, whether lawful or not, is certainly a stretch, even on Koh’s account.  It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis.  So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF.

Why Article III Matters: A Reply to Peter Margulies on al Bahlul

Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without violating Article III–i.e., that such a conclusion follows from the Supreme Court’s 1942 decision in Ex parte Quirin. Peter’s response, so far as I understand it, argues that Article III is irrelevant to military commissions, because, as Quirin recognized, the Founders understood that there would be some military courts that would exist wholly outside and apart from Article III–and these (in Peter’s view) are clearly they. Thus, Peter writes, my view of Article III “would compromise Congress’s war powers, while offering little additional protection to the jury trial and grand jury rights that [I] rightly revere[].” Below the fold, I explain not only why Peter’s arguments are utterly unpersuasive, but also how they only further illuminate the smoke-and-mirrors quality of the bottomside arguments my earlier post sought to critique.

Read more »

Article III, the Framers, and al Bahlul: A Reply to Steve

Tuesday, September 30, 2014 at 8:23 PM

Steve’s post arguing that the military commission conviction of former bin Laden aide Ali Hamza al Bahlul for conspiracy to murder civilians violates Article III does not do justice to the Framers’ carefully considered view of the interaction between Article III and Congress’s war powers.  In critiquing both the government brief and the amicus brief Jim Schoettler and I filed in the D.C. Circuit for former JAGs, former national security officials, and scholars, Steve passes over the Court’s observation in Ex Parte Quirin that the Framers simply did not regard military tribunals as “courts” triggering the strictures of Article III.  Quirin noted that the Framers, who were familiar with military commissions because of General George Washington’s use of such tribunals in the Revolutionary War, viewed commissions as an “important incident” of the power to authorize and wage war, rather than a forum under Article III’s ambit.  Steve’s view would compromise Congress’s war powers, while offering little additional protection to the jury trial and grand jury rights that Steve rightly reveres.

Steve, the government, and amici actually have a lot in common.  Steve concedes that Article I confers broad power on Congress to establish military commissions in the course of an armed conflict.  Steve’s brief also admits that military commissions have jurisdiction over a wide range of offenses when those commissions hear charges based on violations of martial or occupation law.  Steve could hardly do otherwise: as Milligan noted and Justice Stevens confirmed in Hamdan I, military commissions are a “necessity” in these contexts because of the breakdown of “civil authority.”  Steve is also right that there are some common-sense limits to the jurisdiction of a commission hearing charges based on violations of the laws of war.  The government and amici concede that such law of war commissions cannot hear the ordinary criminal charges that courts of necessity may hear when civilian courts aren’t open.  Rather, charges heard by law of war commissions must have some reasonable relationship to the belligerency itself.  However, once that condition is met, further limits based on Article III are foreign to the Framers’ scheme.

To understand Quirin’s view of Article III and law of war commissions, it’s useful to consult America’s foremost law of war scholar, William Winthrop, whom the Quirin Court and Justice Stevens in Hamdan I cited repeatedly.  After serving in the Civil War, Winthrop write his monumental treatise, Military Law and Precedents.  Volume 2 of Winthrop’s study defines violations of the “laws and usages of war” as including a wide range of acts committed in the context of armed conflict, including “trading or dealing with enemies.”  Trading with the enemy is not a violation of international law.  However, as our amicus brief explains, trading with the enemy is an offense that Winthrop believed a state could criminalize under its domestic law, selecting military commissions as the appropriate forum.  Nothing in Quirin suggests that the Court disagreed with Winthrop on this point.  Indeed, Quirin is clear that both military courts of necessity and law of war commissions “are not courts in the sense of the Judiciary Article.” Read more »

Hong Kong Protesters Are Organizing Without Using the Internet

Tuesday, September 30, 2014 at 3:09 PM

You read that right: Hong Kongers have found an app that allows users to communicate without using the Internet or mobile signals.

Specifically, the Firechat app utilizes Bluetooth technology to allow users to send and receive messages. Protestors favor this medium because of rampant censorship of the Internet as well as rumors that the Hong Kong government might shut down cellular networks across the territory. Because Bluetooth only works over short distances, the aptly-named Firechat spreads the messages like a wildfire would, with information jumping from user to user in a widening social media chain. Unsurprisingly, the app’s forte is transmitting messages across large groups of clustered individuals. For more information about this kind of mesh networking, here is a primer on the subject.

Though Firechat had been employed in protests in Taiwan and Iran this year, its significance in Hong Kong’s demonstrations is unprecedented. At last count, over 100,000 downloads were recorded in the city in just 22 hours, with over 30,000 people using the app at one time on Sunday.

Today’s Headlines and Commentary

By and
Tuesday, September 30, 2014 at 3:08 PM

One day after the inauguration of Ashraf Ghani as president of Afghanistan, the United States and Afghanistan signed a Bilateral Security Agreement allowing for 9,800 residual U.S. troops to train, equip, and advise the Afghan military and police forces. The Washington Post has more on the agreement, which many commentators consider a linchpin towards ensuring Afghanistan does not slide back into chaos.

Speaking of a slide into chaos, we now turn to Iraq: Kurdish forces have launched offensives on three fronts against the Islamic State in northern Iraq. According to al Arabiya, a senior member of the Kurdish Peshmerga reported that troops had entered and taken control of the town of Rabia, after taking the two smaller villages earlier. Kurdish forces are also in the midst of offensives in Zumar, and further south in villages around the town of Daquq.

Reuters also covers the offensive, corroborating that Kurdish forces had indeed recaptured Rabia, an important strategic point for crossing the border with Syria. A Kurdish political source was quoted as saying, “It’s the most important strategic point for crossing. Once that’s taken it’s going to cut the supply route and make the operation to reach Sinjar easier.”

Peshmerga secretary-general Jabbar Yawar estimates that the Iraqi Kurds have now retaken almost half of the territory they lost to the Islamic State in the early August offensive that led to U.S. airstrikes.

Those may also be yielding some success in “degrading” ISIS’s capabilities; the Washington Post reports that militants are now traveling in groups less often and are moving less freely than before, significantly limiting their operational capabilities. This, in contrast to the long columns of vehicles that would amass before attacking targets before U.S. and allied intervention.

While the United States has been targeting the Islamic State’s oil revenues, Reuters provides a glimpse into yet another source of income and power for the group: wheat. The United Nations now estimates that land under ISIS control accounts for as much as 40 percent of Iraq’s annual production of wheat. The practice of seizing lands presents a much more complex threat than al Qaeda, which as Reuters notes, for most of its existence has focused on hit-and-run attacks.

Read more »

Breaking News: Guantanamo Closure Plans Are Stalled (but now it’s the Pentagon’s fault)

Tuesday, September 30, 2014 at 12:03 PM

So reports the Associated Press this morning. This story stating the obvious upshot of President Obama’s doomed Guantanamo policy has a few interesting aspects to it, but fails to put Guantanamo policy in the broader context of a legal framework that President Obama has talked about putting in place, or how recent events with respect to ISIL further undermine any remaining efforts to close Guantanamo.

One interesting aspect of this story is that it places much blame for collapse of Guantanamo closure efforts on the Pentagon: “The transfer of prisoners out of Guantanamo Bay has ground to a halt amid a slow Pentagon approval process, causing deep frustration within the administration and raising doubts that President Barack Obama will be able to fulfill his campaign promise to close the offshore prison for terrorism suspects.” It goes on to suggest that Secretary Hagel, who must sign off on Guantanamo transfers pursuant to legislative restrictions, is more hesitant to accept risks of recidivism than the President would like, despite policy direction from the White House.

Whatever the truth of that (and the description of internal deliberations about transfer decisions within the Pentagon sounds much like they played out during the Bush administration), it’s silly to say that slow transfer decision-making at the Pentagon is what’s standing in the way of closing Guantanamo. If White House staff are feeding that view, then shame on them.

In truth, the President has yet to come forward with – and then fight hard for – a plan for closing Guantanamo. Speeding up transfers could be a part of that plan, but it’s a small part because the President has himself acknowledged that the United States will hold on to some Guantanamo detainees indefinitely (without using that word).

The article also repeats the White House position that it would like Congress to lift restrictions on transfers, which are indeed a significant part of the problem. The White House would like Congress to do a lot of things these days, though, and there are no signs that the White House will fight hard for this in particular.

Unless the President has a “big bang” legislative proposal up his sleeve for the new Congress that combines Guantanamo closure plans with new force and detention authorities, this story only seems to confirm that President Obama is drifting toward President Bush’s half-hearted and wishful position of “I’d like to be able to close Guantanamo [if only I could wish away the obstacles]”. The news today seems to be that his office is tagging his own Pentagon as one of those obstacles.

Article III and the Bottom-Side Briefing in al Bahlul

Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is scheduled for October 22). And last Monday, an amicus brief was filed by Peter Margulies and James Schoettler in support of the government, on behalf of a range of “former government officials, former military lawyers, and scholars of national security law.” Although there’s lots to say about both briefs, what’s perhaps most telling about them is how desultory their treatment is of what, to me, is the main question the three-judge panel must now resolve: Whether Article III (and the jury-trial provisions of Article III and the Fifth and Sixth Amendments) mandates trials of non-international war crimes by non-U.S. military personnel in civilian, rather than military, courts. While I’m necessarily biased (I’ve co-authored amicus briefs of my own on the Article III question at each stage of the D.C. Circuit proceedings in al Bahlul), the bottom-side briefing certainly doesn’t seem to come anywhere near carrying the government’s burden to justify the assertion of military jurisdiction over such offenses.

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The 2014 National Intelligence Strategy Roadmap

Tuesday, September 30, 2014 at 11:52 AM

The Office of the Director of National Intelligence recently released its 2014 Strategy Roadmap, which can be found here.

From the ODNI press release:

Director of National Intelligence James R. Clapper unveiled last week the 2014 National Intelligence Strategy – the blueprint that will drive the priorities for the nation’s 17 intelligence community (IC) components over the next four years. The National Intelligence Strategy (NIS) is one of the most important documents for the IC as it sets forth the strategic environment, sets priorities and objectives, and focuses resources on current and future budgets, acquisitions and operations decisions. Most importantly, the strategy builds on the success achieved with integrating intelligence since the previous NIS, as demonstrated by both high-profile operational achievements and significant enterprise improvements.

The National Intelligence Strategy identifies the intelligence community’s mission objectives and its enterprise objectives. The 7 mission objectives are strategic intelligence, anticipatory intelligence, current operations, cyber intelligence, counterterrorism, counterproliferation, and counterintelligence. The 6 enterprise objectives are integrated mission management, integrated enterprise management, information sharing and safeguarding, innovation, our people, and our partners.

Also, “for the first time, The National Intelligence Strategy includes the seven “Principles of Professional Ethics for the Intelligence Community,” which were published in September 2012: 1) mission; 2) truth; 3) lawfulness; 4) integrity; 5) stewardship; 6) excellence; and 7) diversity.”

Why it Might Matter Whether the Islamic State Was AUMF-able Last Year

Tuesday, September 30, 2014 at 8:46 AM

In February, Karen DeYoung and Greg Miller wrote a story in the WP about how Al-Qaeda’s then-recent expulsion of the Islamic State of Iraq and Syria (ISIS, now Islamic State, or IS) raised questions about whether the AUMF “still applies” to ISIS.  “According to some administration lawyers and intelligence officials,” they reported, “the expulsion of ISIS removes the group from the short list of al-Qaeda ‘associates’ that the president has virtually unlimited powers to strike under a law passed days after the Sept. 11, 2001, terrorist attacks.”  DeYoung and Miller also reported that some in the administration “think ISIS can still be targeted because of its long-standing al-Qaeda ties and parallel ambitions” (my emphasis).  As I noted at the time, “these statements imply that the administration had determined, prior to the ISIS expulsion, that the AUMF authorized the President to use force against this group that operates in Syria.”

The DeYoung/Miller story is important, because it suggests that ISIS was once deemed AUMF-able, and then deemed (by many, though not all, in the administration) not AUMF-able after the split with AQ.  What one would like to know is how ISIS went (for many officials, at least) from not being AUMF-able because of the split with AQ, to being AUMF-able despite the split with AQ.  One can imagine this earlier inside history of how administration officials viewed ISIS as helping the administration’s current position that ISIS is AUMF-able (if, for example, it shows that some officials viewed ISIS as AUMF-able before last summer and continuing through the summer), or hurting the current position (if, for example, it shows that ISIS was removed from the AUMF “list” because of the split with AQ and then added to the list without any material change in its AQ affiliation).

Perhaps DeYoung and Miller can go back to their sources and fill in this history.  (It would also be interesting to know if the administration still believes, as they reported in February, that Jabhat al-Nusra is on the “unofficial list” of AQ affiliates deemed to fall under the AUMF.)  But in any event, ISIS’s changing AUMF status, and the apparent disagreement and uncertainty inside the administration about whether and when and why ISIS was and wasn’t AUMF-able, highlights yet again how little the American People know about the rigor and regularity of AUMF determinations, or even about which groups the Congress has authorized the President to use force against in its name.

A Standoff of Agreement Over an ISIS AUMF

Tuesday, September 30, 2014 at 8:46 AM

You know that the political system has reached a moment of special paralysis when a standoff emerges out of agreement. Yet that is what appears to be happening with respect to the politics of authorizing force against ISIS. Over the weekend, the Sunday talk shows featured interviews with both White House officials and the senior House leadership. Both declared an interest in having Congress weigh in on the operation, and both also insisted that the other take the lead.

Here’s Tony Blinken, deputy national security adviser on Fox News Sunday: “We think what would be very helpful is if . . . Congress worked to give us a targeted, focused authorization. But while we welcome that, we don’t need it.”

And here’s House Speaker John Boehner on ABC’s This Week: “The President, typically in a situation like this, would call for an authorization vote and go sell that to the American people [and] send a resolution to the Hill. The President hasn’t done that. He believes he has the authority under existing resolutions to do what he’s doing. [And] I think he does have the authority to do it. But the point I’ve been making is that this is a proposal that the Congress ought to consider.”

In other words, both sides agree (1) that the President has the authority to go it alone, but that (2) he shouldn’t go it alone and that (3) Congress should vote on an authorization resolution instead. The reason such a vote is not taking place boils down to a kind of grade school, “you first, no you first” dispute, in which both sides welcome the other to assume whatever political risk the endeavor may involve.

I’m sorry if the plight of neither side moves me much. We’re asking people to take risks with their lives in flying these missions and, in the case of U.S. allied forces, by operating on the ground. We’re asking allied governments to take U.S. leadership seriously here. It doesn’t seem like it’s asking too much of our political leadership in that context to do what everyone, in fact, agrees should be done.

Khorasan: Not Quite Out of Nowhere

Monday, September 29, 2014 at 9:31 PM

In a post this weekend, to which both Jack and Ben have already written responses, Glenn Greenwald suggests the Khorasan group is a “wholesale concoction” that appeared “seemingly out of nowhere” in the press in the run-up to the current campaign.

In contrast to Greenwald’s claim, the Long War Journal has a series of posts dating back to mid-2013 detailing the existence of the cell now labeled the Khorasan Group, naming its key operative, and describing its ambitions. In fact, everything about the group is there except the name Khorasan.

LWJ’s coverage of the group began when the State Department noted that an Al Qaeda cell inside Iran had begun funneling fighters to the battlefields of Syria. Importantly, Muhsin Al Fadhli, now identified as the leader of Khorasan, was then that group’s leader in Iran. LWJ’s posts explain that Al Fadhli took over operations in Iran from Yasin Al Suri after the Iranian government, under pressure following a US Treasury Department report detailing his activities, detained Al Suri. Once released, Al Suri moved operations to Syria, “assisting in the movement of Al Qaeda external operatives to the West.” In March of this year, LWJ reported that Al Fadhli had also moved to Syria sometime in mid-2013, and there began “recruit[ing] European Muslims to join the jihad in Syria” and “train[ing] them on how to execute terror operations in the western countries, focusing mostly on means of public transportation such as trains and airplanes.” In the same report, LWJ continued, “Al Fadhli’s presence inside Syria, where he is training recruits to attack the West, is a significant cause for concern among counterterrorism authorities.”

All of this was written and published as of March 2014, more than six months ago.

Article links and relevant excerpts from the posts are below: Read more »