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Snowden Correspondence with NSA OGC [UPDATED]

Thursday, May 29, 2014 at 3:45 PM

The ODNI Tumblr site today posted April 2013 e-mail correspondence between Edward Snowden and the NSA’s Office of General Counsel—the only such correspondence NSA says it has found. UPDATE [9:30 p.m.]: Snowden has responded to the release this evening—in a Washington Post interview—and called the release “incomplete.”  See below the fold.    

The reason for the release is obvious: debate over whether, before leaking classified documents and while still working in the intelligence world, Snowden sought to raise concerns through internal government channels. NBC’s Brian Williams asked Snowden about this, in a widely-watched interview aired last night; among other things, Snowden told Williams that the NSA possesses e-mails from him, in which Snowden then had expressed concern—to the General Counsel’s Office, and to NSA oversight and compliance people—over the NSA’s interpretation of its legal authorities.  (Snowden also mentioned other, informal attempts to raise alarm bells.)

At any rate, the exchange is below. It comprises Snowden’s inquiry about training under USSID 18, the legal status of executive orders vis a vis statutes in particular—as well as an answer from an individual working in the NSA’s Office of General Counsel. Read more »

Today’s Headlines and Commentary

Thursday, May 29, 2014 at 1:59 PM

We begin with coverage and analysis of President Obama’s speech at West Point yesterday. Mark Landler of the New York Times outlines the foreign policy vision the president articulated, as do David Nakamura and Ernesto Londono of the Washington Post. The Hill has statements from lawmakers who didn’t care for the speech; these include Sen. John McCain, Rep. Mac Thornberry, and House Majority Leader Eric Cantor. The Times also has reactions from critics. Ex-CIA Director Michael Hayden called the plan to withdraw all American troops from Afghanistan “dangerous.”

Afghans seem to agree with Hayden—according to the Post, anyway—which describes their anxieties after President Obama announced a new withdrawal schedule that has American tro0ps leaving by 2016.

Lists are all the rage these days: Adam Entous of the Wall Street Journal has five takeaways from the speech, and Kevin Sieff of the Post has five harsh truths about the U.S. withdrawal from Afghanistan.

And of course, there are the editorials. The Washington Post editorial argues that “the president’s address offered scant comfort“ to his “doubters” and says that “this binding of U.S. power places Mr. Obama at odds with every U.S. president since World War II.” The New York Times editorial said “the address did not match the hype, was largely uninspiring, lacked strategic sweep and is unlikely to quiet his detractors, on the right or the left.” The Wall Street Journal editorial discussed subjects that the president left out.

In other news, Edward Snowden’s interview with NBC’s Brian Williams aired yesterday. Snowden said in the interview “Sometimes to do the right thing you have to break the law.” The Hill covers that story. Snowden also said “I actually did go through channels, and that is documented.” NBC apparently found traces of an email he sent to the NSA’s general counsel office a month before he left the country. Secretary of State John Kerry challenged Snowden to “man up” and return to the United States. Here’s video of Snowden’s interview:

Meanwhile, the Times has a story about one Joshua L. Dratel, a criminal defense lawyer who has represented many of the more notorious faces of terrorism over the last thirty years. He was the first civilian lawyer at Guantanamo Bay, representing David Hicks; his other clients have included Bin Laden’s personal secretary, Wadih El-Hage, and recently-convicted British cleric, Mostafa Kamel Mostafa.

Reuters informs us that former army Egyptian chief Abdel Fattah al-Sisi has won 93 percent of the vote in Egypt’s presidential election. Turnout was low, however, with only 46 percent of eligible voters participating. Al-Sisi’s contender raised questions about the legitimacy of the election; voting was extended for a third day after turnout was lower than expected, says the Journal.

Speaking of questionable elections, in the midst of civil war, Syria is preparing for a (sham) presidential election in which the delightful President Bashar al-Assad is expected to win a third seven-year term by a landslide. The Post discusses the event.

Charles Lister, who wrote one of our Foreign Policy essays, has a new paper called “Dynamic Stalemate: Surveying Syria’s Military Landscape,” which is required reading for those looking to make sense of the myriad actors in the Syrian conflict. He also has this handy glossary of forces in the Syrian civil war.

U.S. citizen suspected of involvement with the terrorist group Al-Nursa Front has conducted a suicide truck bombing in northern Syria.

A senior Hezbollah commander, who was on the FBI’s most wanted terrorist list, has died fighting alongside pro-government forces in Syria.

There has been a big rift in the Pakistani Taliban. Read all about the drama here.

Secretary of Defense Chuck Hagel will come to a decision “fairly soon” about whether to transfer six Guantanamo Bay detainees to Uruguay.

Carol Rosenberg of the Miami Herald reports that a Periodic Review Board has approved Yemeni detainee Ghaleb Nassar al Bihani for eventual release.

MH370, the missing Malaysian Airlines flight, is not, after all, in an area of the Indian Ocean where four “pings” were detected.

In cyber news, Ellen Nakashima reports that Iranian hackers targeted hundreds of high-ranking U.S. officials through social media, luring them to a fake news site which features foreign policy and defense stories. Siobhan Gorman of the Journal has more.

House Intelligence Committee Chairman Mike Rogers warned that the Senate needs to pass a cybersecurity bill by August. The Cyber Intelligence Sharing and Protection Act (CISPA) passed the House over a year ago and is gathering dust in the Senate.

And, another Mike Rogers, this one the director of the NSA, forgot the name of an NSA program at a speech he was giving. It is hard to keep all those acronyms straight.

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.

Why Drone Strikes in Pakistan Have Stopped (and Will It Last?)

Thursday, May 29, 2014 at 11:22 AM

Did you know that we have not carried out drone strikes in Pakistan since 2013?  A story from Ken Dilanian (now at AP) today does a nice job of laying out the many reasons why:

1. Fewer targets  (“Many of the senior al-Qaida figures in Pakistan have been killed”; “Hardcore al-Qaida militants from Pakistan have gone to Syria and Yemen…”).

2. Better tradecraft by remaining targets (“Those who remain are much harder to target because they are avoiding mobile phones…”).

3. Using children as human shields (“[They are] …traveling with children, benefiting from stricter targeting rules designed to prevent civilian casualties.”).

4. Reduced US troop presence in Afghanistan means reduced need to target non-AQ fighters (“The drawdown of U.S. troops from Afghanistan has eliminated the need for ‘force protection’ strikes against large gatherings of militants in Pakistan suspected of plotting attacks against American troops.”

5. And anyway we promised the Pakistanis we would lay off all but the biggest AQ targets (“In December, the Obama administration reached an informal deal with Pakistan that the CIA would suspend drone strikes — except against the most senior al-Qaida leaders — while the government of Prime Minister Nawaz Sharif pursues peace talks with the Taliban. “).

It is worth asking which of these inhibiting factors is likely to last and remain robust.  The first one (AQ targets moving off to Syria and Yemen) obviously can flow in reverse if FATA once more becomes hospitable.  The second and third ones (avoiding cell phones, using human shields) is probably an ingrained feature of operational security for the smarter targets, though US willingness to hold back based on fear of civilian casualties might rise or fall over time.  The fourth factor (reduced force-protection needs next door) seems entrenched given the drawdown.  The fifth factor just as clearly could go away tomorrow depending on various factors.  In light of all that, the status quo (no strikes) is not necessarily locked in.  Which is what makes a separate part of the article so interesting:

Ken emphasizes two additional elements which, going forward, could not just further constrain drone strikes in Pakistan, but eliminate them outright.  Significantly, these are not arguments that appear to have been put forward by the unnamed officials who are the sources for the above-mentioned reasons.  At any rate, I find one of these additional arguments unpersuasive, but the other makes much sense.

6. DOD won’t do it? The unpersuasive argument flows from the administration’s purported preference to get the CIA out of the drone strike business, in favor of the military.  Ken observes that “[s]ince the military generally requires permission from a country to operate on its territory, most analysts don’t believe it could carry out regular drone attacks in Pakistan.” I think this misses a critical step.  The U.S. government’s position is that there is an “unable-or-unwilling” exception allowing for the use of force in self-defense on another’s territory even absent consent or a Chapter VII Security Council authorization, in certain circumstances.  That position is criticized by many, but I’m unaware of DOD having any problems with it.

7. Drawdown in Afghanistan = loss of practical capacity to strike in FATA? The more persuasive argument is a practical one flowing from the ongoing drawdown next door in Afghanistan.  “The targeted killing program in Pakistan relies on drones flown from, and intelligence gathered in, U.S. bases in Afghanistan that would then be closed…. But as the CIA closes its remote Afghanistan outposts where case officers met with Pakistani sources and technicians eavesdropped on cellphones, intelligence collection will dry up, making militants harder to track.”  That’s a critical point, and its impact will be felt long before the completion of the drawdown at the end of 2016.

Steptoe Cyberlaw Podcast, Episode #21: An Interview with Peter Schaar

Thursday, May 29, 2014 at 10:14 AM

Our podcast this week unpacks the European Court of Justice ruling on the right to be forgotten.  We interview Peter Schaar, a proponent of the right to be forgotten and an eminent former data protection chief.  From 2003 to 2013 Peter was the Federal Commissioner for Data Protection and Freedom of Information.  He is currently Chairman of the European Academy for Freedom of Information and Data Protection (EAID) and a guest lecturer at the University of Hamburg.

Needless to say, we do not agree, and the debate leaves me concluding that the decision is “even crazier” than I first thought.  Though it nominally calls for balancing the right to be forgotten against the interests of Google and the public’s right to know, the court dismisses Google’s interests as mere money-grubbing and declares that the public’s right to know is presumptively outweighed by the individual’s interest in controlling his own data.  And in case you were wondering whose right to know the Court is balancing away, it’s yours; the take-downs are highly likely to apply to, not just the Spanish or European versions of the search engine.

In our news roundup, we discuss the House passage of the USA Freedom bill, and I reprise my New York Times op-ed mocking privacy advocates for thinking that they can identify in advance every clue that might help to identify a terrorist.

In other news, LabMD goes to trial, and in a sign of how seriously it takes the challenge to its authority, the FTC throws the kitchen sink at the company, trashing its security policies across the board.

China lashes back over the Justice Department’s indictment of PLA members, and we speculate about Interpol red notices and the boost the indictments will give to domestic Chinese tourism.

Apple loses a preliminary fight over its liability for the privacy practices of third party apps.  Jason Weinstein digs into the Blackshades indictments and the mild treatment given to the Anonymous hacker, Sabu, who turned in many of his accomplices.  Jason and Michael Vatis also answer this burning question: How much dope can you smoke and still do cyber work for the FBI?

Michael also praises the California’s Attorney General’s guidance on how to comply with California’s latest privacy law.  But he has bad news for those who think they don’t need the guidance because they aren’t in California.  If you do business with Californians — and who doesn’t? — the law applies to you.

Today in Al-Nashiri: Closed Session

Thursday, May 29, 2014 at 9:48 AM

Today promises only closed argument on the government’s motion to have the military judge reconsider his order for extensive discovery into the CIA’s RDI program.  (Open argument was held yesterday.)  We’ll thus pause our military commissions coverage.  It remains to be seen whether tomorrow will feature open proceedings, or any proceedings at all; stay tuned.

Is the Administration Planning to Engage Congress on the AUMF in Late 2014?

Wednesday, May 28, 2014 at 5:49 PM

One of the nice things about major presidential speeches is that they often are occasions during which reporters separately get to grill unnamed “senior administration officials” for clarification.  So it was today, as seen in this transcript that the White House released today involving a background session with reporters following the President’s West Point address (excerpted by Ben here).  As Ben noted, the President’s speech did not present much that would seem novel to readers of this blog.  That’s mostly true for the post-speech background session as well, but at least that session did include an exchange relating to the AUMF renewal/repeal debate, and that exchange included a vague reference to the possibility that the administration will engage with Congress on this issue in late 2014.  Or perhaps it was just loose talk by the official, meant to be noncommittal.  At any rate, here’s the relevant exchange for what it is worth:

Q    Just one subject that the President didn’t bring up and I was hoping you might be able to lend some clarity to would be the status of — about a year ago, the President called for a review and even repeal of the AUMF.  I’m wondering whether the administration is planning to send Congress specific language in terms of fixing it, any timetable in terms of when they want to work with Congress in terms of getting that repealed.  And if you could provide a little bit of maybe a window into the administration’s thinking in terms of how to approach this subject.

SENIOR ADMINISTRATION OFFICIAL:  Yes, I’d say a couple of things.  The point the President made at NDU is that we shouldn’t just have open-ended authorities for the use of military force that continue indefinitely; that we shouldn’t be in a permanent war here; that the AUMF in 2001 was written for a specific purpose and time.  And I think in terms of the timeframe, we look at the end of 2014 as a very important milestone as our combat mission comes to a close in Afghanistan and as our mission shifts there.  And so we look at a whole host of issues as intersecting with the end of 2014.

The AUMF, which was written in the context of us going to Afghanistan — we’ll want to talk to Congress about the AUMF as we approach the end of the year.  That’s a good time to have that discussion because we will be pivoting from where our combat mission is today and the type of role we’ll be playing in Afghanistan after 2014.

GTMO is another issue that is relevant here.  GTMO was opened, after all, when we went into Afghanistan.  And the initial detainee population was heavily weighted with people who were taken off the battlefield in Afghanistan.  So we believe, again, as we bring our combat mission to an end in Afghanistan, that this is an appropriate year to make a redoubled effort to close GTMO.  So this is the context for how we’re approaching the AUMF as well.  I think this is a discussion we’ll have as we get closer to the end of the year.

I think in terms of what we’re looking for, we’re not looking for simply layering on more and more and more authorities within the existing AUMF.  The point here is to not just keep expanding some universal AUMF that applies to every challenge.  As the President said at NDU, what we want to do is narrow and refine authorities so that they’re focused on specific groups that do pose a direct threat to the United States.  And so that’s the approach that we would take into this discussion, which is how do we make sure that we have authorities that are focused on those groups who pose a direct threat to the United States and not simply stacking on additional authorities in the existing AUMFs.

So this will be a part of how we wind down the war in Afghanistan and pivot to a more sustainable and focused counterterrorism effort across the region.

Read more »

“A Debate One Year after Snowden: The Future of U.S. Surveillance Authorities”

Wednesday, May 28, 2014 at 3:10 PM

We will hold an event at the Brookings Institution a week from tomorrow, which marks the anniversary of the first Snowden disclosures. Lawfare readers will be familiar with the all the participants and their insightful views on these issues. It is sure to be a robust discussion. Details and registration information below:

A Debate One Year after Snowden: The Future of U.S. Surveillance Authorities

Thursday, June 5, 2014, 2:00 — 3:30 pm

The Brookings Institution, Falk Auditorium, 1775 Massachusetts Ave, NW, Washington, DC

In light of the information leaked by Edward Snowden, the Obama administration declassified a large amount of information related to surveillance under the Foreign Intelligence Surveillance Act, and the president called for the end of the bulk telephony metadata program. Congress has also taken up proposals to limit and reform the government’s surveillance powers. Against the backdrop of these changes, does the United States need more reform to its surveillance authorities? How much more should happen, and in which areas?

On June 5, the anniversary of the first Snowden disclosures, Governance Studies at Brookings will hold a debate on the future of U.S. intelligence collection authorities. The resolution is “U.S. surveillance authorities require fundamental reform.” Arguing in favor are Jameel Jaffer of the ACLU and Julian Sanchez of the CATO Institute. Arguing in opposition are John “Chris” Inglis, former NSA deputy director, and Carrie Cordero, director of National Security Studies at Georgetown Law. Brookings Senior Fellow Benjamin Wittes will moderate the event.

Register to attend in person or to watch the webcast.  Join the conversation on Twitter at #NSADebate.


Benjamin Wittes

Senior Fellow, Governance Studies

The Brookings Institution


Jameel Jaffer

Deputy Legal Director and Director, Center for Democracy

American Civil Liberties Union

Julian Sanchez

Senior Fellow

Cato Institute

John “Chris” Inglis

Former Deputy Director

National Security Agency

Carrie Cordero

Director, National Security Studies

Georgetown Law

To RSVP, please call the Brookings Office of Communications at 202.797.6105, or visit:

Relevant Excerpts from President Obama’s West Point Speech

Wednesday, May 28, 2014 at 1:12 PM

Not a lot in President Obama’s West Point speech that is new on Lawfare-related matters. Here are key excerpts.

On broad counterterrorism strategy:

First, let me repeat a principle I put forward at the outset of my presidency: The United States will use military force, unilaterally if necessary, when our core interests demand it — when our people are threatened; when our livelihoods are at stake; when the security of our allies is in danger.

In these circumstances, we still need to ask tough questions about whether our actions are proportional and effective and just. International opinion matters, but America should never ask permission to protect our people, our homeland or our way of life. (Applause.)

On the other hand, when issues of global concern do not pose a direct threat to the United States, when such issues are at stake, when crises arise that stir our conscience or push the world in a more dangerous direction but do not directly threaten us, then the threshold for military action must be higher. In such circumstances, we should not go it alone. Instead, we must mobilize allies and partners to take collective action. We have to broaden our tools to include diplomacy and development, sanctions and isolation, appeals to international law, and, if just, necessary and effective, multilateral military action. In such circumstances, we have to work with others because collective action in these circumstances is more likely to succeed, more likely to be sustained, less likely to lead to costly mistakes.

This leads to my second point. For the foreseeable future, the most direct threat to America, at home and abroad, remains terrorism, but a strategy that involves invading every country that harbors terrorist networks is naive and unsustainable. I believe we must shift our counterterrorism strategy, drawing on the successes and shortcomings of our experience in Iraq and Afghanistan, to more effectively partner with countries where terrorist networks seek a foothold. Read more »

Schoenfeld on the Selective Prosecution of Leakers

Wednesday, May 28, 2014 at 12:23 PM

Gabriel Schoenfeld, author of the indispensable Necessary Secrets, has a new essay in Hoover’s Emerging Threats series entitled “Secrecy, Leaks, and Selective Prosecution.”  He offers this description of the essay:

Does it matter that low-level government officials are prosecuted and sent to prison when they leak classified information, yet high-ranking officials in the White House and the cabinet departments leak with abandon and are never brought to justice?

It doesn’t matter to the courts. Allegations of selective prosecution have gone nowhere when leveled by defendants in many of the recent leak cases brought by the Bush and Obama Justice Departments. But the charge of selective prosecution certainly matters in the court of public opinion. The investigative reporter Michael Isikoff of NBC News is not alone in wondering how the Obama administration can “credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to [Bob] Woodward?”

Isikoff is asking a question that does not admit of an easy answer. The fact is that our laws governing secrecy are enforced in a way that invites charges of double standards and caprice. Indeed, in a system in which millions of people hold security clearances, the hypocrisy on display has the effect of breeding disrespect for the classification system. The nation is now paying a price for that disrespect in the appearance of mega-leakers like Bradley Manning and Edward Snowden, who justify their disclosures in part by pointing to the massive and unpunished leaking from the top of our political establishment.

Should the inequity be addressed, and if so, how? Back in January, the Task Force on National Security and Law at the Hoover Institution at Stanford University invited me to present a paper about this problem. My remarks came in for some sharp objections to which I did not have ready answers. I am grateful to Hoover for now affording me the opportunity to put forward my views in a revised and extended form and with the benefit of the criticism my ideas received.

Bits and Bytes

Wednesday, May 28, 2014 at 12:15 PM

Two interesting items today:

Shane Harris has a look inside the FBI’s efforts to track the Chinese hackers.  Here’s the intro: “SolarWorld was fighting a losing battle. The U.S. subsidiary of the German solar panel manufacturer knew that its Chinese competitors, backed by generous government subsidies, were flooding the American market with steeply discounted solar panels and equipment, making it practically impossible for U.S. firms to compete. What SolarWorld didn’t know, however, was that at the same time it was pleading its case with U.S. trade officials, Chinese military hackers were breaking into the company’s computers and stealing private information that would give Chinese solar firms an even bigger unfair advantage, including the company’s pricing and marketing strategies.”

Laurie Blank has an op-ed entitled “Drones, Transparency and Legitimacy:” “Those calling for transparency argue that it is a legal obligation. But the law of armed conflict — the law that applies to U.S. strikes against al Qaeda as long as the conflict is ongoing — does not require transparency. It does mandate that parties engaged in armed conflict comply with the legal obligations and fundamental principles set forth in the Geneva Conventions, their additional protocols, and customary international law, including minimizing harm to civilians and using lawful means and methods of warfare. Attacks must be carried out in a lawful manner against lawful targets, but the reasons and legal justifications for the attacks do not need to be made public.”

Al-Nashiri Motions Hearing: May 28 Session

Wednesday, May 28, 2014 at 9:49 AM

Down at Guantanamo, pre-trial proceedings will resume this morning in the military commission case of United States v. Al-Nashiri.  As always, courtroom discussion will be piped to a closed-circuit viewing facility here at Maryland’s Fort Meade, in almost-real-time.  (There’s a forty-second delay in the audio and video.)

We understand that a Rule 505 session—regarding the handling of classified material during arguments, to the extent necessary—will be held from 9:00 a.m. to roughly 10:00 a.m.  After that, public proceedings and the closed-circuit transmission will begin, along with Lawfare’s coverage.  You’ll find periodic dispatches throughout the day in our “Events Coverage” section; we’ll also link to the dispatches below.  Update [10:50 a.m.]: public proceedings are underway.

5/28 Session #1: Getting the SSCI RDI Report—or Not

5/28 Session #2: Protective Order Rules and Ex Parte Contacts

5/28 Session #3: Members Versus Judges; Continuing Discovery Obligations

5/28 Session #4: On the Motion to Reconsider the RDI Discovery Order

Today’s Headlines and Commentary

Wednesday, May 28, 2014 at 9:20 AM

President Obama has outlined his plan for a future American military presence in Afghanistan: he plans to withdraw all but 9,800 troops by the end of the year. Reuters reports that by the end of 2016, the hope is that the U.S. troop levels would be “cut to a normal embassy presence.” Of course, the United States can’t technically keep troops in Afghanistan past the end of this year without the Afghan government signing an agreement—which current president Hamid Karzai has refused to do. Both leading candidates in the upcoming June presidential election, however, have pledged to sign an accord upon taking office. The Washington Post also covers the news.

Michael O’Hanlon of the Brookings Institution has penned a piece for Politico breaking down President Obama’s Afghanistan plan—the good, the bad, and the misguided.

The New York Times Editorial Board weakly applauds President Obama’s announcement, but expresses anger that his promise to withdraw American troops from Afghanistan—a promise he campaigned on—won’t be honored “until he’s practically out of office.”

Speaking of promises, over at the Huffington Post, Matt Sledge and Sabrina Siddiqui are calling President Obama out on a lack of action surrounding U.S. drone policy. The two lambaste the Obama administration for a continued lack of transparency surrounding drone strikes. The authors argue that the government’s emphasis on the drop in strikes and civilian casualties in Pakistan is a carefully crafted smokescreen; and instead urge the public to pay attention to Yemen, where drone strikes and civilian casualties have increased in the past year.

The AP reports that the United States may begin to train Syrian rebels. President Obama has yet to sign off on the plan.  But were he to do so, a limited number of American troops would be sent to Jordan, in order to help train moderate Syrians opposing the Assad regime. President Obama is expected to outline his approach to Syria in his speech at the U.S. Military Academy later today.

NBC News has released portions of its exclusive interview with Edward Snowden. Brian Williams sat down with Snowden in Moscow recently, and although the interview will not air in its entirety until late this evening, NBC has decided to whet our appetite. Some highlights of the interview include Snowden claiming that he was not some “low-level” hacker, but was indeed “trained as a spy.”

On the topic of hacking: before the dust has settled in the wake of the United States’ indictment, last week, of five Chinese military officials, China has tried to shift attention back to American cyber-spying. The Guardian tells us that a recently-unveiled Chinese government report outlines the “existence of snooping activities directed against China.” The document, released by China’s Internet Media Research Center, employs particularly diplomatic language: “The United States’ spying operations have gone far beyond the legal rationale of ‘anti-terrorism’ and have exposed its ugly face of pursuing self-interest in complete disregard of moral integrity.”  Well okay, then.

The White House has launched an investigation into the accidental disclosure of the name of the top CIA official in Afghanistan. The Guardian has the story.

Fighting has intensified in Ukraine after Sunday’s presidential election.  TIME reports that the clash is mostly contained in the East, with the Ukrainian government stepping up its military operations. An attempt by Russian-sympathizing rebels to seize an airport in Ukraine’s second largest city, Donetsk, was thwarted; reports suggest that Ukraine’s military is slowly overpowering opposition forces. The Times updates us on the numerous dead on the rebel side, many among them Russian. Many hope to see progress towards reunification under the leadership of President-elect Petro Poroshenko—but the increase in violence in the East, and Poroshenko’s past comparison of the rebels to “Somali pirates,” could threaten that goal.

As the search for the kidnapped Nigerian schoolgirls continues, Boko Haram is not sitting quietly. Reuters informs us that Boko Haram gunmen attacked a Nigerian military base in the town of Buni Yadi yesterday and killed more than 30 people.

Human Rights Watch, together with Harvard Law School’s International Human Rights Clinic, has released a report detailing the human rights implications of fully autonomous weapons with lethal capabilities. The report calls for an international convention preemptively banning the “robots,” calling them an affront to human rights. Al Jazeera covers the report.

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.

Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets

Wednesday, May 28, 2014 at 9:18 AM

Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets:

The question is who decides.  It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.

I disagree with Kinsley, as both a descriptive matter and a normative matter..

As a descriptive matter, the press does effectively have the final say over the publication of U.S. national security secrets.  The only constraints are the weak ones of marketplace (the NYT was widely criticized for publication of the SWIFT story) and even weaker (and weakening) legal constraints in practice.  We have been moving toward this system of journalistic hegemony for a while, and the trend has been exacerbated by digital technology and the globalization of media.  The government has enormous control over its secrets – it creates them, it stores them, it decides how widely they are disseminated behind walls of secrecy, it can punish its employees for mishandling secrets, it can create secrecy defenses, and the like.  But once a secret is out, the fact is that the press – or, more accurately, whoever holds the secret outside the government – decides whether to publish.

I think Kinsley is also wrong about the normative question of who should decide.  Read more »

Incredible Photographs of World War I Battlefields a Century Later

Tuesday, May 27, 2014 at 10:09 PM

From Smithsonian magazine and Irish landscape photographer, Michael St. Maur Sheil—who has a new exhibition on World War I battlefields a century on. A taste of a truly astounding collection of photographs:

I highly recommend the whole series.

The Uncertain Future of Military Detention Authority as “Combat Operations” in Afghanistan End

Tuesday, May 27, 2014 at 4:23 PM

Scooping his own speech tomorrow at West Point, President Obama today announced his decision on future US force levels in Afghanistan.  Assuming that the winner of the Afghan presidential election will indeed sign the new Bilateral Security Agreement (which both leading candidates have pledged to do), the US will:

- reduce its presence to 9800 troops for 2015, with most engaged in training missions but with a separate group of SOF remaining to engage in “counterterrorism” operations;

- reduce that number by a further half for 2016, while also consolidating the remaining troop presence to locations at Bagram and Kabul; and

- remove all remaining troops by 2017 (except for a presence solely to defend the embassy).

Two comments:

First, the clock is really ticking with respect to the rump, lingering population of detainees (all non-Afghan, I believe) who remain in US military custody there.  Perhaps the ongoing SOF presence will include this function, thus kicking the can down the road two more years.  I’m guessing not, however.

Second, note that the administration itself depicts this as the end of US involvement in combat operations in Afghanistan, this year, notwithstanding the plan to keep SOF in theater for “counterterrorism” operations for two more years (see, e.g., Secretary of Defense Hagel’s press release, stating that “our combat mission ends there later this year”). This is a description that certainly will be seized upon by those challenging the government’s continuing assertion of detention authority as to GTMO detainees.  Even if the AUMF and NDAA FY’12 remain on the books untouched by President or Congress, then, it’s quite possiblethat change could still occur thanks to judicial intervention (particularly if and when a case presenting this fresh question percolates up to SCOTUS).  Might uncertainty over how judges eventually will respond to this situation (in which the US engages only in episodic “counterterrorism operations” but no sustained”combat operations”) help create the political space for fresh legislative thinking on the future of GTMO?

FTC’s Data Broker Report

Tuesday, May 27, 2014 at 12:11 PM

The 110-page document was released today, and entitled “Data Brokers: A Call for Transparency and Accountability.”   If you care about Big Data, then you will want to read the report.

Today’s Headlines and Commentary

Tuesday, May 27, 2014 at 11:22 AM

Petro Poroshenko, the pro-Europe chocolate tycoon, was declared the victor in Ukraine’s presidential election on Sunday, reports the Wall Street Journal. The Associated Press writes that Ukraine’s president-elect launched airstrikes against pro-Russian militants occupying a major airport in East Ukraine shortly thereafter; the New York Times reported last night that the military claimed to have succeeded in evicting the separatists from the airport in Donetsk, but that it remained unclear whether the government had taken full control. President Obama congratulated Ukraine on its elections on Sunday and used the occasion to criticize Russian-backed separatist groups for seeking to disenfranchise entire regions of the country, writes Politico.
President Obama made a surprise appearance in Afghanistan this weekend and indicated that the U.S. will maintain a limited role in the country after its major combat mission comes to a close at the end of the year. Here‘s the AP. President Obama is expected to set out his vision for the U.S.’s role in the world after withdrawing from Afghanistan in a commencement speech at West Point on Wednesday, says the Guardian; the speculation is that he will announce how many troops will be left in the country at the end of the year.
The Times has a front-page story on U.S. Special Operations troops forming elite counterterrorism units in Libya, Niger, Mauritania and Mali, with the goal of building homegrown African counterterrorism teams able to combat organizations like Boko Haram.
On Sunday, the White House accidentally disclosed the name of the top CIA official in Afghanistan.  The information was included on a list of officials taking part in the President’s Afghanistan trip, which was itself distributed to news organizations, according to the Washington Post.  
Over the weekend the Times Editorial Board wrote an op-ed criticizing the Obama administration’s “understandable” but “pointless and perhaps counterproductive” decision to indict five members of the Chinese People’s Liberation Army for fraud.
The political establishment is reeling in the wake of weekend elections for the European Parliament—the “populist insurgency” includes xenophobes, racists and neo-Nazis, reports the Times. The Times also notes that the new European Parliament is nonetheless expected to reach an agreement on new privacy rules.  These would limit the kinds of information sent overseas and impose multimillion-dollar fines on companies that misuse Europeans’ data.
This weekend members of the House and Senate armed services committees rejected many of the Obama administration’s proposals for slimming down the military budget, reports the Washington Post.
Two men gunned down a U.S. doctor in Pakistan in Monday’s early hours, killing him in front of his family during his visit to the country. Voice of America reports.
Belgium authorities are hunting for a man who gunned down three people in the Jewish Museum of Belgium on Saturday, reports the WSJ, and treating the triple homicide as an act of terrorism.
Nigeria’s defense chief announced on Monday that the country’s military has located the nearly 300 schoolgirls abducted by Boko Haram.  But the military nevertheless fears that using force to free the kidnapped youth could result in deaths. The AP has more.
Last week the U.S. deployed 80 service members to Nigeria to oversee drones in the search for the abducted schoolgirls. Why are regulations still holding back the deployment of rescue drones in the U.S.? NBC wants to know.
Jeremy Carp has an op-ed in Al Jazeera America on why secret legal justifications, like those in drone memos written by David Barron and soon to be declassified by the Obama administration, are bad for American democracy. And see the Times debate on whether the NSA reform bill recently passed—and scaled back—by the House offers sufficient privacy protections.
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Double Standard in Publishing Classified Information?

Tuesday, May 27, 2014 at 11:14 AM

I am struck by the circumspection of the American press in not revealing the name of the CIA Station Chief in Afghanistan whom the Obama Administration inadvertently disclosed over the weekend.  That name will surely come out, if it hasn’t already.  But the episode made me wonder why the press appears to follow old norms regarding non-publication of covert operatives even when while they daily publish the nation’s deepest secrets about surveillance capabilities against foreign adversaries.  Why the different practice in the two contexts?  (To be fair, I think the norms about publishing names has weakened since 9/11, but not to nearly the same degree as the norms about communications intelligence.)

The answer is not the law.  If anything, the law more clearly prohibits publication of means and methods of communications intelligence than it does publication of the identities of covert operatives.  I also don’t think the answer is that one disclosure serves the need for public deliberation in a democracy more than the other.  Cyber-operations against the Chinese and U.S. operations in Afghanistan are both hot-button issues of public concern.

I believe the answer is that journalists still tell themselves that they will not publish a secret that, as Bart Gellman put it in a 2003 lecture (not on-line), “puts lives at concrete and immediate risk.”  And publishing the name of a covert operative may appear to put a life at concrete and immediate risk more obviously than publication of a method of infiltrating a communications system.  It is interesting that Gellman – who represents mainstream elite journalistic opinion on this matter – included in his 2003 list of too-risky disclosures not just the “names of clandestine agents,” but also “technical details that would enable defeat of U.S. weapons or defenses.”  I think it is fair to say that eleven years later, and post-Snowden, technical details concerning communications intelligence operations related to U.S. weapons or defenses are no longer considered remotely unpublishable.  I expect that journalists today would argue that such disclosures do not put lives at concrete and immediate risk.  (Interestingly, Greenwald reports in his new book that Snowden balked at disclosing CIA secrets even while he happily disclosed NSA ones.  “‘When you leak the CIA’s secrets, you can harm people,’ [Snowden] said, referring to covert agents and informants.  ‘I wasn’t willing to do that. But when you leak the NSA’s secrets, you only harm abusive systems. I was much more comfortable with that.’”)

Let us concede for purposes of argument that Snowden-like revelations do not cause concrete and immediate risk to lives.  The real question is: Why privilege “concrete and immediate risk” to lives over diffuse and indirect risk to lives?  The harms to lives from disclosing communications secrets are harder to see because they are usually diffuse and probabilistic rather than concrete and immediate.  But they are no less real.  This is obviously true when the communications secrets are tied to ongoing military operations (and such secrets have indeed been disclosed recently).  It is also true, for example, to the extent that the United States loses an intelligence advantage that would have helped foil a terrorist attack.  And it is also true, more diffusely, in the thousands of ways that our surveillance superiority undergirds our successful national defenses.

Moreover, publication of communications surveillance secrets concretely and immediately affects the agents and firms involved in intelligence operations to the extent that these actors quite rationally are less likely to cooperate with a U.S. government next time, with the attendant harms to national security that such chilling brings.  These harms are real even though they are hard to discern at the time of publication.  Indeed, while it is impossible to prove, it is almost certainly true that several surveillance disclosures have harmed more lives in concrete ways than the disclosure of the Afghan Station Chief would have.  The media’s resistance to taking into account this form of diffuse harm from publication is ironic.  Reporters fiercely protect their sources precisely because they know that revelation of a source destroys the reporter’s future credibility for keeping promises and discourages new sources from coming forward.  But they reject this logic when the government makes the same argument.

The Week That Will Be

Tuesday, May 27, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

  • Wed, May 27-Fri, May 30: Al Nashiri hearings.

Employment Announcements (More details on the Job Board)

  • The Department of Justice’s National Security Division is looking for a Counterintelligence, Export Control, and Economic Espionage Chief. The application deadline is today.
  • The International Committee of the Red Cross is looking for a Legal Intern in the International Humanitarian Law Department for the fall semester. The position is paid, and applications are due August 1st, 2014.

Book Review: No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State by Glenn Greenwald

Published by Metropolitan Books (2014)
Reviewed by Benjamin Wittes
Monday, May 26, 2014 at 6:01 PM

The most important passages of Glenn Greenwald’s new book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, are those in which Greenwald states what he believes the larger significance of the Snowden disclosures to be—the passages where he gets out of the weeds of the material Snowden has given him and out of the weeds of the story he is telling. They are the passages, in other words, in which Greenwald breaks through to the higher ground he is trying to reach with his reader. Why does the National Security Agency collect all this stuff, anyway? Why does it have these remarkable capabilities? What is the meaning of it all?

Here’s Greenwald’s somewhat remarkable answer:

Taken in its entirety, the Snowden archive led to an ultimately simple conclusion: the US government had built a system that has as its goal the complete elimination of electronic privacy worldwide. . . . The agency is devoted to one overarching mission: to prevent the slightest piece of electronic communication from evading its systemic grasp.

In Greenwald’s world, the agency’s very purpose, in all of its activities, is political control—including of you:

It is vital that the NSA monitor all parts of the Internet and any other means of communication, so that none can escape US government control. Ultimately, beyond diplomatic manipulation and economic gain, a system of ubiquitous spying allows the United States to maintain its grip on the world. When the United States is able to know everything that everyone is doing, saying, thinking, and planning—its own citizens, foreign populations, international corporations, other government leaders—its power over those factions is maximized.

And the purpose of that political control? Repression of dissent, according to Greenwald:

All of the evidence highlights the implicit bargain that is offered to citizens: pose no challenge and you have nothing to worry about. Mind your own business, and support or at least tolerate what we do, and you’ll be fine. Put differently, you must refrain from provoking the authority that wields surveillance powers if you wish to be deemed free of wrongdoing. This is a deal that invites passivity, obedience, and conformity. The safest course, the way to ensure being “left alone,” is to remain quiet, unthreatening, and compliant.

If these passages sounds to you like the country you live in, if you instinctively believe that keeping you politically compliant is very the reason we have an NSA, if you believe the agency’s purpose is to control the internet and to destroy privacy, if you don’t believe that terrorism or legitimate geopolitical threats or cybersecurity have anything real to do with any of it, then this is the book for you.

If, on the other hand, these passages sound strangely paranoid, if they sound just juvenile—like their author is a fevered 18-year-old conducting a Manichean teach-in in the administration building of some college somewhere—or if you just wonder why an all-powerful spy agency bent on suppressing dissent would tolerate the publication of No Place to Hide (or, for that matter, tolerate Glenn Greenwald himself), Greenwald’s book is going to be a frustrating and ultimately unavailing read. (Continued)