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Is the Visa Waiver Program a Threat to our National Security?

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Monday, February 2, 2015 at 9:50 AM

That question has taken on new significance after the Paris terrorist attacks, which have stoked fears that militants in Europe might exploit the Visa Waiver Program (VWP)—under which citizens of 38 countries may travel to the United States without a visa—to carry out similar attacks here. Some influential members of Congress (see here and here) are now calling for major changes to the program.

The United States faces a profound and growing threat from radicalized Europeans, at least 3000 of whom have traveled to Syria to fight for the Islamic State. But the solution is not to scuttle the VWP. The solution is to strengthen its security requirements. Indeed, if the program’s intelligence sharing measures are fully implemented, it has the potential to offer even greater security than the visa-based system it replaces.

As Paul has described here, the VWP was established in the late 1980s to facilitate travel between the U.S. and our closest allies. A country was eligible to join if its citizens posed a low risk of illegal economic migration—i.e., overstaying in search of work. The measure of this risk was the country’s visa refusal rate, which reflects consular officials’ predictions that applicants would remain here unlawfully. The VWP’s original members were the wealthy, industrialized democracies of Western Europe, along with a few other prosperous nations like Australia and Japan.

After 9/11, the VWP’s focus shifted dramatically. Its key priority was no longer stopping economic migration but identifying international terrorists. In 2007, Congress enacted legislation that called on member countries to implement a suite of new security measures. (The law also temporarily relaxed the statutory requirement of a low visa refusal rate, making it possible for additional countries like the Czech Republic and South Korea to join—although Poland, a key ally, regrettably remains excluded.) The most important of these concern intelligence sharing.

Shifting from a visa requirement deprives the government of certain information about visitors to this country. Most significantly, WWP travelers no longer submit to in-person interviews with consular officials—a lost opportunity to spot terrorists. (Of course, a visa-based system isn’t infallible. All 19 of the 9/11 hijackers were able to obtain visas, and Christmas Day bomber Omar Farouk Abdulmutallab succeeded in boarding a flight to Detroit when officials failed to revoke his visa amid reports that he’d been radicalized.) The VWP compensates for this information loss by generating alternative sources of data that can be used to screen for threats. Read more »

Today’s Headlines and Commentary

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Monday, February 2, 2015 at 9:40 AM

The Islamic State of Iraq and the Levant (ISIL) executed Kenji Goto, a Japanese hostage, over the weekend. The Los Angeles Times reports on the atrocity. The Atlantic tells us more about Goto’s life and work. The BBC covers Japan’s reaction to the country’s recent tragedy. Here’s Defense Secretary Chuck Hagel’s short but pointed statement.

A story we touched on over the weekend: in February 2008, the United States and Israel teamed up to target and kill Imad Mughniyeh, a senior Hizbollah leader. The details of the operation are surfacing five years after the fact, as five former U.S. intelligence officials have confirmed the U.S.’ involvement in the attack. (There remains no official acknowledgement.) The Washington Post and Newsweek first reported on the story.

In Yemen, a U.S. drone attack killed three suspected Al Qaeda militants. Reuters explains that the recent strike shows that the U.S. has no plans of relaxing its drone program in Yemen, despite the country’s current internal governmental crisis.

The Times touches on an element of Afghan life that still remains prevalent: turning to Taliban justice to resolve local conflicts. Despite the U.S.’ best efforts to the contrary, Taliban justice has remained a widespread and legitimate source of recourse for Afghan citizens. Government courts are becoming less respected, and tribal courts often lack enforcement mechanisms. And though the Taliban is not known for a gentle hand, the prevailing sentiment among Afghans is that they have a better chance at a just, equitable and efficient outcome when going through the Taliban:

President Ashraf Ghani made cleaning up the judiciary one of his first pledges in office, but it will be a daunting task. According to a poll released by Gallup in October, just 25 percent of Afghans expressed confidence in the nation’s judicial system.

The Taliban have seized on this discontent. In some areas, they have set up mobile courts to reach villages outside their zones of influence. They hold hearings two days a week in the southern borderlands, requiring plaintiffs to produce evidence and witnesses. In Kunar, Taliban legal experts embed with militant commanders to provide services to locals and the fighters.

Apropos of the Taliban: The Council on Foreign Relations recently revamped and updated its guide to understanding the group.

As is well known, writer Jonathan Tepperman earlier sat down with Syrian President Bashar al Assad. Tepperman’s interview in Foreign Affairs marked the first with a Western journalist since 2013 for Assad. In a separate piece for the Washington Post, Tepperman offers his impression of the dictator: “…behind the cheery aphorisms and the barely-there mustache is a man so unyielding and deeply deceptive—or delusional—that it’s impossible to imagine him ever negotiating an equitable end to Syria’s civil war.”

The Timescoverage of the Syrian civil war doesn’t leave us expecting a resolution any time soon, either. Apparently, pro-Assad factions have been using old hacker tricks—like luring someone in through chat rooms—to infiltrate the Syrian rebel software.

A Bush-era administration aide is making claims that terrorist suspects were kept and interrogated by the United States on British soil. Lawrence Wilkerson, former Chief of Staff to Colin Powell, has told Vice that terror suspects were held and tortured on the British territory of Diego Garcia. The Huffington Post UK also covers the story.

In response to such allegations, the British government is gearing up for an independent inquiry into the possibility that it played a key role in the U.S.’ torture regime. The Guardian explains that Prime Minister David Cameron has hinted at setting up an investigation separate from the one being conducted by the Intelligence Security Committee, which he fears is too closely linked to the government.

Secretary of State John Kerry will travel to Ukraine this week. The Times reports that the U.S. is considering sending defensive weaponry and equipment to Kiev’s faltering forces. The Ukrainian forces have suffered a bevy of setbacks in the past few weeks, igniting a discussing among U.S. officials as to whether and how to help support push back Russian separatist rebels.

The Obama administration will release its proposed budget today. Politico discusses the potential implications for defense spending, and reminds us not to forget the looming sequestration cap of $499 billion. The administration’s proposed budget will likely exceed that amount—by at least $50 billion. If the final Pentagon spending measures were to exceed $499 billion and there were no change in the sequestration cap, the Defense Department would be faced with “across-the-board” spending cuts.

An interesting development in privacy news: the 2015 TRUSTe US Consumer Confidence Index indicates that 45 percent of Americans think online privacy is more important than national security. Let’s not forget that TRUSTe is a data privacy management company. Still, the survey results nevertheless help us to understand consumer attitudes and the American public’s general reluctance to relinquish privacy in favor of security.

ICYMI: This Weekend, on Lawfare

This week’s foreign policy essay, penned by Shibley Telhami and Katayoun Kishi, considered how Americans view the Middle East. They explain that, despite political and ideological differences, most Americans have similar—but not necessarily accurate—impressions of the region.

Herb covered the Federal Trade Commission’s release of a recent report on the so-called “Internet of Things.”

In our 108th podcast, we cover remarks by General Michael Hayden, former Director of both the Central Intelligence Agency and the National Security Agency, given at Washington and Lee School of Law’s symposium on Cyber-surveillance in the Post-Snowden Age.

Jack discussed the legal implications of the Mughniyah killing.

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

The Week That Will Be

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Monday, February 2, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

 

Monday, February 2nd at 2 pm: The Atlantic Council will host eight distinguished US foreign policy scholars and practitioners to mark the release of their new report on the Ukraine Crisis: How to Withstand and Deter Russian Aggression. The working group includes Ivo Daalder, Michele Flournoy, John Herbst, Jan Logal, Steven Pifer, James Staridis, Strobe Talbott, and Charles Wald. RSVP.

Tuesday, February 3rd at 11 am: The House Committee on Foreign Affairs will host a hearing on the Strategic Importance of the Western Hemisphere: Defining US Interests in the Region. Witnesses include Shannon K. O’Neil, Bonnie Glick, Evan Ellis, and Eric Farnsworth. For more information, visit the Committee’s website.

Wednesday, February 4th at 9:30 am: Ashton B. Carter, President Obama’s nominee to be the next US Secretary of Defense, will begin testifying in the Senate Armed Services Committee.

Wednesday, February 4th at 12 pm: The Brookings Institution will host Robert S. Litt, General Counsel at the Office of the Director of National Intelligence, for a speech entitled US Intelligence Community Surveillance One Year After President Obama’s Address. Cameron Kerry will moderate the event. RSVP.

Wednesday, February 4th at 2 pm: Also at the Brookings Institution, William McCants, Anastasia Norton, Bruce Riedel, and Daniel Byman will address the state of US efforts at Countering Violent Extremism and outline possible counterterrorism strategies for the future.  The conversation will bring together a panel of experts on counterterrorism and radicalization. Register here.

Friday, February 6th at 10 am: The Center for 21st Century Security and Intelligence will host a discussion on China’s Rise: Implications for US National Security and the Defense Budget. Panelists will include Richard Bush, David Dollar, and Bernard Cole. Michael O’Hanlon will moderate the discussion. For more information, visit the Brookings Institution website.

The Foreign Policy Essay: The Prisms Through Which Americans View the Middle East

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Sunday, February 1, 2015 at 10:00 AM

Editor’s Note: Whether it is the war against the Islamic State or threats to Israel’s security, Americans have strong and often wildly different views about the Middle East and the U.S. role there, and we’re sure to see these expressed as election season gets into full gear. Yet Americans agree on many things about the Middle East, and political party differences don’t give the full story. Shibley Telhami, a professor at the University of Maryland as well as a colleague here at Brookings, and Katayoun Kishi of the University of Maryland show that views of human rights, faith communities, and other belief systems and communities give Americans similar views, leading to clustering on seemingly disparate issues.

***

Telhami photoKishi photo

Polling indicates Americans are sometimes sharply divided on some issues of Middle East policy—seemingly across party lines—yet are remarkably united on other issues. What explains this variation?
Let’s start with some examples. Our polling indicates there is little difference across party lines on how Americans rank the threat of the Islamic State (also called ISIL or ISIS): 70% of Democrats, 67% of Independents, and 72% of Republicans rank ISIS as the biggest threat facing the United States in the Middle East—far above Iran and Israeli-Palestinian violence (the margin of error is +/-3.5%). At the same time, they differ markedly on their openness to using ground forces if the current air campaign fails: While 53% of Republicans would then support using ground forces, only 36% of Democrats and 31% of Independents would.

But before one concludes that Americans tend to agree on the nature of the problem and merely disagree about the kind of policy needed to address the problem, here is another finding that suggests more complexity: While a large majority of Americans sees the Asad regime in Syria as almost as bad as ISIS, Americans seem to be unified in their opposition to having the U.S. military fight Asad’s army: 72% of Republicans and 71% of Democrats oppose it.

Telhami Chart 1

While the party divide is obviously important on a number of issues, it does not seem to explain many of the public’s attitudes. The question is: what does? Our data suggest some preliminary observations.

First, while the party prism can be useful, it’s not always predictive. The public often has a framework, an ideology, or some other prism that helps it form attitudes on specific issues in a manner that may not be entirely calculated; but that organizing framework is not always a political party. Read more »

On Cybersecurity for the Internet of Things

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Saturday, January 31, 2015 at 4:30 PM

On Tuesday, January 27, 2015, the Federal Trade Commission released a staff report on cybersecurity and the Internet of Things.

Although as a staff report, the report has no binding authority on anyone, and the report merely stated that “commission staff encourages companies to consider adopting the best practices highlighted by workshop participants,” it was predictable that opposing voices were heard noting that excessive regulation could smother innovation and scare customers away from a promising new technology. (See this, for example.)

The best practices mentioned include building security into devices at the outset, rather than as an afterthought; training all employees about good security, and ensuring that security issues are addressed at the appropriate level of responsibility within the organization; using service providers that are capable of maintaining reasonable security and provide reasonable oversight for these service providers; implementing a defense-in-depth approach to security; limiting the ability of unauthorized persons to access a consumer’s device, data, or even the consumer’s network; and monitor products throughout their life cycle and, to the extent feasible, patching known vulnerabilities.

These practices are hardly radical—indeed, many vendors of IT-related goods and services practice them today.  But the resistance towards even a nonbinding staff report recommending things that vendors are doing today underscores a fundamental observation about cybersecurity in the United States—we’ve seen this play before. Read more »

The Lawfare Podcast, Episode #108: General Michael Hayden on Cybersurveillance in the Post-Snowden Age

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Saturday, January 31, 2015 at 1:55 PM

General Michael Hayden, former Director of both the Central Intelligence Agency and the National Security Agency, gave the keynote address last weekend at Washington and Lee School of Law’s symposium on Cyber-surveillance in the Post-Snowden Age. During his address, General Hayden delivered an unapologetic defense of the NSA’s recently revealed activities, yet remained candid about where the agency has made mistakes and where it can improve. In particular, the speech raises a profound question: can intelligence activities succeed in a society that demands greater and greater transparency about those activities?

You can find the video of General Hayden’s full remarks below:

The Legal Basis for the Mughniyah Killing

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Saturday, January 31, 2015 at 1:30 PM

The Washington Post and Newsweek report that the CIA in 2008 worked with Israel’s Mossad to kill Imad Mughniyah, Hezbollah’s operations chief, in Damascus, Syria.  The Post says that Mughniyah “had been implicated in the killing of hundreds of Americans, stretching back to the embassy bombing in Beirut [in 1983] that killed 63 people, including eight CIA officers,” and that U.S. officials believed he was “directly connected to the arming and training of Shiite militias in Iraq that were targeting U.S. forces” via “suicide bombings and IED attacks.”  It also says that the “attorney general, the director of national intelligence, the national security adviser and the Office of Legal Counsel at the Justice Department all signed off on the operation.”  Here is a quick sketch of how I think the U.S. government justified the action (with almost no attempt to resolve hard questions, in part because the relevant facts – about the nature of the threat, and about the role of Syria – are largely unknown).

What is the domestic law basis for the attack?  Answer: The President’s power to take self-defensive action under Article II.  Mughniyah had long targeted Americans and the Bush administration concluded that he posed “a continuing threat to Americans,” according to a USG official in the Post, who added that “[t]he decision was we had to have absolute confirmation that it was self-defense.”  The President has clear authority under Article II to take action in this context.  (He might also have gleaned some authority from the 2002 AUMF, but I think any such reliance would have been secondary to Article II.)  The Post says the “authority to kill Mughniyah required a presidential finding by President George W. Bush (but Newsweek says the original finding might date to the Reagan administration.)  Thus the killing was part of a covert action governed by 50 USC 3093.  In a nutshell, that means that (a) the President “intended that the role of the United States Government will not be apparent or acknowledged publicly,” (b) the President made a written finding with certain representations, including that the action would not “violate the Constitution or any statute of the United States,” and (c) the DNI reported the finding to the intelligence committees (or, in case of “extraordinary circumstances affecting vital interests of the United States,” the “Big 8” senior congressional leaders).  Although the covert action statute was integral to the action, the Bush administration still likely relied on Article II as the primary basis of authority for the action.  There is a question whether the covert action statute alone can authorize a lethal action like this, absent an Article II basis or some independent statutory basis (like the AUMF, or perhaps the super-vague “fifth function,” now codified in 50 USC 3036(d)(4)), but there would be no need to face that question in this case.

What about the assassination ban?  Section 2.11 of E.O. 12,333 provides: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  The government probably determined that this provision did not apply because actions properly taken in self-defense are not assassinations for these purposes.  The Post says that the killing of Mughniyah reflects “a philosophical evolution within the American intelligence services that followed the Sept. 11, 2001, attacks” with regard to assassination.  I think this is wrong, or misleading.  The almost-exactly-on-point precedent for the action in 2008 is the Clinton-era covert action to capture or kill Osama Bin Laden in 1998.  As James E. Baker, who was the legal advisor to the National Security Council in 1998, explained in his book In the Common Defense, “the targeting of legitimate military targets consistent with the law of armed conflict is not considered ‘assassination’ under [EO 12.333].”  As Baker described the administration’s deliberations in 1988:

[The lawyers concluded that] the United States could, and as a matter of legal policy should, lawfully respond to the threat [from Osama Bin Laden] within the framework of the Law of Armed Conflict (LOAC).  In other words, the United States faced an imminent threat of attack and might appropriately respond in anticipatory self- defense using the full array of military and intelligence instruments available to the president as commander in chief. That meant that Osama Bin Laden (then referred to as UBL) and his organization were legitimate military targets. It also meant that in combating this enemy the United States must otherwise adhere to the law of armed conflict including the principles of necessity and proportionality in the use of force. The attorney general agreed.

(Note that in the case of the killing of Anwar Al-Awlaki, which the Post mentions, the assassination ban was obviously not relevant because Al-Awlaki was deemed an operational leader of Al Qaeda in the Arabian Peninsula, a group against whom we were in a congressionally authorized armed conflict. In the case of Mughniyah, the United States was (presumably) not in an armed conflict – but see below – and so the self-defense rationale was vital.)

What about the U.N. Charter’s prohibition on the use of force?  The administration probably concluded that the action was an exercise of the “inherent right of individual . . . self-defence” under Article 51 of the U.N. Charter, either because Hezbollah’s or Mughniyah’s actions (and ongoing threats) were attributable to the government of Syria, or because the government of Syria was “unwilling or unable” to control the threat posed by Hezbollah or Mughniyah.

What about the law of armed conflict?  The Post gives some detail about the precautions that the CIA used to prevent collateral damage on civilians, and to comply with the other elements of the law of armed conflict.  Mary Ellen O’Connell says in the Post that the use of a car bomb was an act of perfidy that “violates one of the oldest battlefield rules.”  Additional Protocol I to the Geneva Conventions, which the United States has not ratified, contains a standard definition of perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”  Classic examples of perfidy are raising a white flag to induce the adversary to let down its guard, or feigning incapacitation by wounds for the same end.  It is not clear that the rules on perfidy apply in this context.  One hard question is whether the United States and Hezbollah were in armed conflict (again, see below).  Another problem is whether and (if so) how the ban on perfidy applies in non-international armed conflicts.  Perfidy was excluded from Additional Protocol II (which concerns non-international armed conflicts), and the application of the prohibition on perfidy to non-international armed conflicts is contested, especially when the enemy target that renounces the laws of war is not obviously induced into relying on the protections of the laws of war.  The matter is too complex to pursue further in this already too-long post, but I note that Richard Jackson concludes in his extensive analysis of the issue that “[t]here is little or no evidence of perfidy violations being prosecuted under international law in non-international armed conflicts, nor is there clear opinio juris by States on this matter.”  Also, Marty Lederman has a good analysis of the difficulties of applying perfidy in a non-international armed conflict, in the context of the al-Nashiri case, here.

Was the United States in an armed conflict with Hezbollah in 2008?  It seems odd (or perhaps worse) to say “yes,” but the answer is unclear.  One might think that the attack on Mughniyah in Syria, coming on the heels of Hezbollah past actions against the United States and its continuing actions and threats in Iraq, initiated (or continued?) an armed conflict.  This appears to be how the Clinton administration conceptualized the attack on Bin Laden in 1998.  The 9/11 Commission Report, citing the testimony of James Baker and 1998 OLC head Randy Moss, stated: “The administration’s position was that under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination.”  And Baker says in his book that the United States in 1998 “changed the legal paradigm against Osama Bin Laden to one of armed conflict.”  This conclusion is consistent with the claim in the Al-Nashiri case that the United States armed conflict with al Qaeda began before 2001.  Of course al Qaeda publicly declared war against the United States in 1996, and the nature and intensity of the pre-9/11 U.S.-al Qaeda conflict might have been different than the U.S.-Hezbollah conflict in 2008 (though the pre-9/11 conflict with al Qaeda was not obviously more intense).  More broadly, many would contend that the requirements of intensity and duration in the non-international armed conflict context require more than the single U.S. strike following Hezbollah’s sporadic attacks on the United States.  But what it requires precisely, and especially how it applied in a non-international armed conflict, are not clear.

The Week that Was: All of Lawfare in One Post

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Saturday, January 31, 2015 at 10:00 AM

Last week, Ben wrote a piece critiquing both sides of the debate over Guantanamo. This week, Raha Wala responded, arguing that what the detention policy debate is really about, or at least should be about, is what legal authorities should be exercised in the detention and prosecution of suspected terrorists. It is clear, Wala argued, that traditional law-enforcement tools bring many of the same benefits as using military commissions does, while having a far smaller downside. Over at Just Security, Steve Vladeck also responded, arguing that Ben had too crudely caricatured the sides of Guantanamo debate. Ben addressed both posts in one of his own. Steve, Ben noted, built a straw man out of Ben’s piece and, effectively enough, took that straw man down. Regarding Raha’s piece, Ben admitted a good-natured difference of opinion, namely over if the United States can release all of those dangerous individuals we cannot try. Wala believes we must; Ben asserted that we cannot.

Wells showed us video from an event at Harvard that featured a discussion between Edward Snowden and Bruce Schneier on (you guessed it) surveillance and privacy.

Clara Spera shared that the New York Times has obtained two previously classified Foreign Intelligence Surveillance Court rulings through a FOIA lawsuit, and told us what these documents show not only about the NSA’s warrantless wiretapping program, but also the court that approved of it. Cody posted a press release from the Privacy and Civil Liberties Oversight Board that accompanied the release of its assessment of the Board’s own 22 recommendations for the Section 215 and Section 702 programs.

Cody argued that, even in a world of lone wolf terrorists, terrorist safe havens continue to pose grave threats to our security.

Ben shared some video coverage of last weekend’s event on cyber security at Washington & Lee School of Law. The footage included the two-day event’s two keynote addresses: the first, a speech by former NSA Director General Michael Hayden, the second, a point/counterpoint stand-up comedy act from Ben and Shane Harris.

Cody and I wrote this week’s Throwback Thursday article, which explored the ins and outs of the US bounty program.

In light of the recent violence on the Israeli-Lebanese border, Yishai Schwartz discussed the odd limbo of Israel’s northern border, where Israel and Hezbollah are not quite at war, yet by no means at peace.

Mira Rapp-Hopper summarized the latest installation of the Asia Maritime Transparency Initiative for us.

Michael Eppel walked us through the history of the Kurdish people and their unsuccessful attempts to carve out an independent state, and posited that the current upheaval in the Middle East presents the Kurds with their best chance yet at independence.

Cody linked to a new draft AUMF for the conflict in Iraq and Syria released by Representative Adam Schiff (D-CA).

Ingrid Wuerth broke the news that the Supreme Court has granted certiorari in another case involving the Foreign Sovereign Immunities Act and briefly summarized what issues will be presented to the Court and what the significance of the case will be.

Wells tipped us off to this week’s al-Hadi hearings in Guantanamo, and later brought us Chief Prosecutor Brigadier General Mark Martin’s opening statement. On Tuesday, Matt Danzer gave us a rundown of the court’s first and second days of proceedings.

Ben commented on The Intercept‘s nifty tool that helps would-be leakers leak documents to The Intercept without getting caught. Ben mused that the system is begging to be used by foreign intelligence services to spy on the The Intercept.

Attorney General nominee Loretta Lynch appeared at confirmation hearings before the Senate Judiciary Committee this week. Alexander Ely recapped her remarks regarding topics of interest to Lawfare readers.

Yishai looked into a proposal by Senator Bob Corker (R-TN) that would force the administration to bring any nuclear deal with Iran before Congress for a vote.

In response to the news that a drone crashed on the White House lawn, news organizations speculated that the crash was the result of some drone-killing technology (which appears not to be the case); Ben wondered if the Secret Service had gotten that idea from watching the “Lawfare Drone Smackdown” of 2012.

Wells shared Senator Dianne Feinstein’s (D-CA) response to the CIA Accountability Review Board’s report clearing the CIA of any wrongdoing in snooping on some Senate computers last year. Spoiler alert: Senator Feinstein disagrees.

Yishai informed us of two bits of spy news: a Russian spy ring has been busted in New York City, and the former CIA officer who leaked information on covert operations against Iran to a New York Times reporter has been convicted.

Ali Wyne penned a review of Henry Kissinger’s newest book, World Order, tracing the thread of Kissinger’s thought all the way from his undergraduate thesis to his newest work, in which he finds the world order in grave danger of unraveling.

In the 107th episode of the Lawfare Podcast, Ben brought in Brookings scholar Tanvi Madan to discuss the future of the US-Indian relationship and preview President Barack Obama’s trip to India.

The Rational Security podcast’s 4th episode featured Ben, Shane, and Tamara Cofman Wittes discussing the recently outed Russian spy ring and the drone that dropped in on the White House this week.

Rounding out our week’s podcast news, the Steptoe Cyberlaw Podcast showcased a debate between Thomas Rid and Jeffrey Carr on the attribution of cyber attacks.

Paul Rosenzweig updated us on new developments in the cyber world.

Ben announced that Herb Lin is joining Lawfare’s staff as a contributing editor.

And that was the week that was.

Chief Prosecutor Statement on the Conclusion of This Week’s Al-Hadi Hearings

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Saturday, January 31, 2015 at 8:55 AM

You’ll find it here. Thursday’s remarks by Chief Prosecutor Brig. Gen. Mark Martins open:

Good afternoon. This week, the Military Commission convened to try the charges against Abd al Hadi al-Iraqi held its fourth series of pre-trial sessions without panel members present since he was arraigned. The charges against Abd al Hadi are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding Judge, and any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable. During the sessions this week, the Judge heard oral argument on 3 motions (and considered one supplemental motion) and then took those matters under advisement:

  • Appellate Exhibit 027, the defense motion to dismiss co-conspirator liability;
  • Appellate Exhibit 026, the defense motion to dismiss, arguing the Military Commissions Act violates the equal protection component of the Due Process clause;
  • Appellate Exhibit 021, the defense motion for appropriate relief to cease physical contact with female guards.

Prior to considering these matters, the Commission offered defense and trial counsel the opportunity to voir dire the Judge. Voir dire is an examination, or form of questioning, for the purpose of determining whether the Judge’s impartiality might reasonably be doubted. The Judge extended this opportunity based on a recently reported equal opportunity complaint against the Judge in relation to his interim order to enjoin female guards from touching Abd al Hadi during movements to and from attorney-client meetings and to and from court proceedings. AE 021B. After counsel concluded examination, the Judge determined that he can and will continue to preside impartially; he thus declined to disqualify himself.

Book Review: World Order by Henry Kissinger

Published by Penguin Press (2014)
Reviewed by Ali Wyne
Friday, January 30, 2015 at 11:19 PM

In over six decades as a scholar, Henry Kissinger has trained his historical depth and panoramic worldview on an ambitious range of subjects.  His undergraduate honors thesis probes the thinking of Oswald Spengler, Arnold Toynbee, and Immanuel Kant in an attempt to divine “the meaning of history.”  His first book, A World Restored: Castlereagh and the Problems of Peace (1954), surveys early 19th-century Europe’s attempt to fashion a durable settlement during and immediately following the Napoleonic Wars.  His second book, Nuclear Weapons and Foreign Policy (1957), analyzes the strategic dimensions of the atomic age.

Subsequent tomes of Kissinger’s examine the challenges confronting transatlantic ties, America’s involvement in Indochina, and the ways in which the global strategic balance evolved during his time in government.  In 2011 (at the age of 88), he published On China, which chronicles the historical origins of China’s approach to foreign policy and mulls whether it and the United States are fated to a military confrontation.  One can regard Kissinger’s newest book, his fourteenth, as both the summit of his intellectual journey and a glimpse into the prism through which he has long tried to make sense of world affairs. Of the preoccupations that underlie Kissinger’s prodigious corpus of work, after all, few rank higher than “world order”—both the imperative of pursuing it and the difficulty of maintaining it.  Kissinger regards order as evanescent, not enduring; its objectives, more aspirational than concrete.  He understands it less as an end than as a process of interminable duration.

Legitimacy Versus Justice

In a 1968 essay, he argues that the “greatest need of the contemporary international system is an agreed concept of order.  In its absence, the awesome available power is unrestrained by any consensus as to legitimacy.”  The establishment and maintenance of order, in turn, require that the strongest would-be revisionists accept its core assumptions and arrangements—if not their justness, then their immunity to systemic challenge. In A World Restored, he asserts that a sustainable order is anchored in “the relative security—and therefore the relative insecurity—of its members.  Its stability reflects, not the absence of unsatisfied claims, but the absence of a grievance of such magnitude that redress will be sought in overturning the settlement rather than through an adjustment within its framework” (emphases Kissinger’s).

Kissinger has long distinguished between legitimacy and justice. Again in A World Restored, he observes that stability

has commonly resulted not from a quest for peace but from a generally accepted legitimacy.  “Legitimacy” as here used should not be confused with justice.  It means no more than an international agreement about the nature of workable arrangements and about the permissible aims and methods of foreign policy.  It implies the acceptance of the framework of the international order by all major powers, at least to the extent that no state is so dissatisfied that, like Germany after the Treaty of Versailles, it expresses its dissatisfaction in a revolutionary foreign policy…. Wars may occur, but they will be fought in the name of the existing structure and the peace which follows will be justified as a better expression of the “legitimate,” general consensus.

In recent years, however, Kissinger has accorded a more central role to justice in his conception of a durable world order.  In perhaps his best-known text, Diplomacy (1994), he concludes that an “international order which is not considered just will be challenged sooner or later.”  In a review of George Kennan: An American Life (2011), John Gaddis’s acclaimed biography of containment’s architect, he declares that sustainable orders “require elements of both power and morality.  In a world without equilibrium, the stronger will encounter no restraint, and the weak will find no means of vindication.  At the same time, if there is no commitment to the essential justice of existing arrangements, constant challenges or else a crusading attempt to impose value systems are inevitable.”

It is in World Order, however, that he avows the importance of justice most explicitly; one could even posit that Kissinger has come to regard justice and legitimacy as interdependent: “Any system of world order, to be sustainable, must be accepted as just—not only by leaders but also by citizens.”  This proposition reflects not so much a newfound moralism on Kissinger’s part as it does a longstanding realism.  He told Der Spiegel in July 2009 that there are “objective circumstances without which foreign policy cannot be conducted.  To try to deal with the fate of nations without looking at the circumstances with which they have to deal is escapism.”  World Order reflects at least two such circumstances: the strategic balance among states is in turmoil, with power diffusing from west to east and, to a less apparent extent, north to south; and the components of world order itself are shifting, with non-state actors assuming an ever-greater role. (Continued)

Today’s Headlines and Commentary

By
Friday, January 30, 2015 at 2:11 PM

Hezbollah asked for a ceasefire with Israel through UN intermediaries yesterday. The request came after several days of fighting and heightened tensions between the two sides. The Wall Street Journal reports that, while some Israeli officials are still calling for more retaliation, the request may serve to defuse the situation. As Israeli Prime Minister Benjamin Netanyahu deliberates over the proper response to the recent violence, he is also seeking to ease tensions with Democratic members of Congress in the United States. The New York Times reveals that Prime Minister Netanyahu called the Democratic majority leaders in both houses to explain his recent decision to speak before Congress without first consulting with the White House. The calls appear to have had little effect.

Since Houthi rebels forced Yemen’s president from power last week, US intelligence gathering in the region has faltered, according to Reuters. These growing gaps in intelligence are infringing on the US drone program that plays a critical role in the US’s counterterrorism operations in the country. At the same time, however, the Houthi rebels have begun engaging the United States on security matters, as well as some political issues, the Times notes. The Wall Street Journal divulges that US officials are in talks with the rebels regarding a stable political transition, and notes that, yet again, recent developments in the Middle East have put the United States in the awkward position of supporting the same side as Iran.

Another deadline for the planned prisoner swap between ISIS and Jordan has passed. It remains unclear what has happened to the Jordanian pilot and Japanese journalist held by ISIS, the Associated Press reports. A Reuters report adds that governments in both Jordan and Japan continue to search for any clues as to the whereabouts and wellbeing of their respective captured citizens, and that Jordan has demanded proof that its pilot is still alive before any prisoner swap can proceed.

The US-led coalition battling ISIS continued operations against the group, launching 18 airstrikes across Iraq and Syria, Reuters shares. In a battle between Kurdish peshmerga and ISIS near Kirkuk in northern Iraq, the AP reports, a senior Kurdish commander has been killed, along with several Kurdish soldiers. In Syria, the Nusra Front, al Qaeda’s Syrian branch, has broadened its attacks on Western-backed rebel groups, seizing positions from the Hazzm movement located just west of Aleppo. The terrorist group now threatens one of the last zones beyond jihadi control in the area. Reuters details the group’s advance.

The Wall Street Journal describes the underground terror network that funnels would-be jihadists out of Europe and into Syria; this network helped Hayat Boumeddiene, the wife of the gunman who attacked a Kosher grocery in Paris earlier this month, escape France. ISIS’ bridge, it appears, runs both directions. Buzzfeed details the route ISIS uses to transport fighters to Europe.

In the Sinai Peninsula, an ISIS affiliate conducted a series of attacks on the Egyptian military, the BBC notes. The attacks, a mixture of rocket fire and car bombs, killed at least 26 people, mostly Egyptian military personnel. And, in Belgium, police raids have netted four people suspected of recruiting fighters to travel to Syria to fight with jihadist groups. Reuters covers the raids.

An article in Politico Magazine details the rise of ISIS in Libya, which, the piece argues, is more and more deserving of serious US attention. As the terrorist group’s influence spreads beyond Iraq and Syria, questions of allegiance and membership are increasing. In online forums populated by ISIS supporters, Vocativ reports, posters are asking: Is Boko Haram part of us? Hours after the African Union issued a call for a multinational force of 7,500 to turn back the Islamist insurgency in Nigeria, an operation by the military of Chad has liberated the city of Mallam Fatori from Boko Haram control, according to the Wall Street Journal.

Three US contractors were killed in Afghanistan in what the Taliban is claiming was an “insider” attack, Reuters reports. The attack on Kabul’s military airport, which also left another US contractor wounded, is the latest in a string of attacks carried out by militants who infiltrated the Afghan security forces. As the US military continues its planned drawdown in the country, a new poll reveals that many Afghans want the United States to maintain or even increase troop levels in the country. Nearly half of respondents said that they wanted a larger commitment of US troops, and less than a third favored fewer US troops in the country. The Washington Post covers the new poll.

A bomb was detonated inside a Shiite mosque in southeastern Pakistan on Friday, killing at least 49 people and injuring 55 more, Dawn reports. This is the second major attack on a Shiite religious center in Pakistan this year. In northwestern Pakistan, the provincial government of Khyber Pakhtunkhwa has referred the cases of 423 suspected terrorists for trial by military court. Over 100 of these cases come from the provincial capital of Peshawar, where last month militants from the Pakistani Taliban attacked a military school and killed over 100 people. Dawn reports on the developments in the court cases.

EU foreign ministers meeting in Brussels yesterday decided to continue the current Russian sanctions through at least September, according to the BBC. Despite also agreeing to discuss adding Russian individuals to the EU travel ban list, the ministers could not settle on imposing new sanctions on Russia for its role in the Ukrainian crisis. Al Jazeera notes that the decision to extend sanctions on Russia may overshadow peace talks between EU, Ukrainian, and Russian officials scheduled for today. At the same time, Reuters reveals that Russia and the United States are discussing a possible visit to Moscow by US Secretary of State John Kerry. Talks about the visit, which would be Kerry’s first trip to the country since the conflict began, apparently began weeks ago. The talks are expected to focus on ending the Ukrainian conflict.

The United States has signaled that it would welcome an extension of Japanese air patrols into the South China Sea, Reuters reports. In an interview, the US Navy’s top officer in Asia, Admiral Robert Thomas, said that increased Japanese activity could help stabilize the region.

The CIA has named a new leader for its National Clandestine Service. And, consistent with general agency practice, the leader will remain anonymous. The AP notes that, during the 2001 invasion of Afghanistan, the new director saved Hamid Karzai’s life and that his first name is Greg.

Over at the Daily Beast, Shane Harris and Nancy Yousef describe how, five months after the Obama administration promised to overhaul its hostage rescue program, little change has materialized. The proposed reform promised to increase engagement with the family members of the hostages, but, according to many of those families, they continue to be left in the dark.

Time reports that a bipartisan group of senators has introduced a bill ending the Cuban travel ban. Eight senators–four Republicans and four Democrats–led by Senator Jeff Flake (R-AZ) introduced the legislation, which is the first congressional move toward normalizing relations with Cuba since President Barack Obama’s announcement on the matter in December. At the same time, however, the White House said that it would not acquiesce to Raul Castro’s demand that the United States cede Guantanamo Bay Naval Base to Cuba, Agence France-Presse notes.

One Guantanamo defendant may be tried separately from the 9/11 case in order to speed up that trial. The case of Ramzi Binalshibh, one of five suspects accused of carrying out the 9/11 attacks, has slowed the 9/11 trial proceedings for several reasons, including questions about his mental competence and the fact that the FBI interrogated one of his defense lawyers. Now, a military judge has decided to reconsider whether Binalshibh should be tried separately from his co-defendants. The AP has more.

The Pentagon is moving toward more rapid implementation of cloud-computing capabilities, Nextgov reports. The Defense Department, which has been slow to adopt the technology because of security concerns, has increased its interaction with the cloud-computing industry and expressed interest in employing the technology in its unclassified, public-facing operations.

Parting Shot: “American Sniper” was released in Baghdad to sold out crowds. But, how did they react?

ICYMI: Yesterday, on Lawfare

Sebastian and Cody brought us this week’s Throwback Thursday piece, which looked at the system through which the United States offers rewards and bounties for information on terrorists, war criminals, and the like.

This week, the Senate Judiciary Committee held two days of confirmation hearings for Attorney General nominee Loretta Lynch. Alex Ely gave us a rundown of the first day’s hearings, noting the sections where Lynch spoke on matters of interest to Lawfare readers.

Matt Danzer updated us on the second day of proceedings in the al Hadi case at Guantanamo.

Ben shared a new feature on The Intercept’s website that helps would-be leakers share confidential documents with the paper. The whole process, Ben noted, begs for penetration by foreign intelligence services.

Paul Rosenzweig apprised us of the newest developments in the cyber world.

Cody shared an excerpt of a new assessment released by the Privacy and Civil Liberties Oversight Board that evaluated the status of that Board’s 22 recommendations for the Section 215 and Section 702 programs.

In this week’s episode of the Rational Security podcast, Ben, Tamara Cofman Wittes, and Shane Harris discuss Russian spies and drones at the White House.

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.

 

Neither War Nor Peace: Israel’s Northern Borders

By
Friday, January 30, 2015 at 11:49 AM

For now, the recent eruption of violence along the Israeli-Lebanese border appears to be contained. With thousands of its fighters bogged down in Syrian battles, Hezbollah’s strategic context is radically different from 2006, when a carefully planned kidnapping of Israeli soldiers dragged Israel into a bloody war in southern Lebanon.  Most analysts seem convinced that Hezbollah is not interested in escalation and that the recent flare-up represents an exercise in chest-beating rather than a march toward serious hostilities. But as calm resumes, recent events underline just how strange the situation on Israel’s northern borders is–one that is neither war nor peace.

The details of this week’s flare-up are still being investigated, but the bare facts are already known. On Wednesday morning, Hezbollah militants fired anti-tank missiles from the demilitarized zone in Southern Lebanon into Israeli territory. The strike left two Israeli soldiers dead, seven more wounded, and a military jeep smoldering on the borderside road. Shortly thereafter, Israel retaliated with a storm of strikes aimed at “Hezbollah operational positions,” apparently killing a Spanish member of the UN peacekeeping force in the process. In the words of the Spanish envoy after an emergency meeting of the UN Security Council, the death “happened because of the escalation” and the fatal fire “came from the Israeli side.” His language was deliberately diplomatic: Israeli fire may have been the proximate cause of death, but blame was unattributed.

The diplomatic ambiguity was intended as a run-around the complexity of the Israeli-Lebanese border dynamic. To many observers, including the US State Department, Hezbollah’s cross-border fire at Israeli soldiers represents a straightforward violation of the tenuous August 2006 ceasefire arrangement. Israel’s response was merely retaliation, an appropriate response aimed at maintaining deterrence, and therefore, calm. But as defenders of Hezbollah have been quick to point out, allocating blame for this renewal in hostilities is not quite simple. After all, it was less than two weeks ago that (what is assumed to be) an Israeli strike killed six Hezbollah and Iranian operatives near the Syrian-Israeli border. True, the ceasefire agreement applied to Lebanon only, but it was Israel that ignited the latest violence and Hezbollah that can claim the high ground of deterrence and retaliation.  In turn, Israel argues that the slain operatives were planning an attack on Israel, and that the initial strike was a justifiable act of preemptive self-defense. This kind of back and forth is, of course, exactly what we have come to expect from the Israeli-Arab conflict.

The parsing of these causal and moral chains, the distinguishing of aggression from retaliation, is endless and usually pointless. Mercifully, however, this sort of exercise eventually comes to an end once we are engaged in a thing called “war.” Once in a war, counterstrikes need not be justified morally on the basis of strikes from the other side. No one asks whether Gettysburg was justified by Bull Run.  It still matters, of course, how and why and whose fault it is that we entered the war. But once in it, retaliation is a question of wisdom and tactics, not morality. So it matters a great deal whether, when Israel struck two weeks ago, Hezbollah and Israel were already at war. Read more »

Declassified FISA Court Orders Fill in History of NSA Warrantless Surveillance

By
Friday, January 30, 2015 at 8:30 AM

Some key news from earlier in the week: The New York Times obtained two previously classified rulings of the Foreign Intelligence Surveillance Court (FISC) from May and August 2007. Authored by Judge Roger Vinson (a district court judge who has since left the FISC), the pair were handed to the Times in response to a FOIA lawsuit.  The Times’ Charlie Savage, who reported Monday on the contents of the documents, focused on the moves the FISC made in order to justify and approve of the NSA’s warrantless surveillance program of foreigners.

The material is largely historical. Judge Vinson’s opinions are now essentially outdated and redundant, made so by enactment of the 2007 Protect America Act—which gave congressional sanction to the NSA activities in question. Nevertheless, the May and August rulings still provide a better understanding of the evolution of the legality of the NSA’s collection, within the United States, of foreigners’ communications. More interesting, perhaps, is that the rulings suggest divisions among the judges of the FISC: In the August 2007 order, Judge Vinson calls out—by name–his colleagues on the Court, challenging their legal analysis. Of course we knew already from earlier documents that Judge Vinson was no stranger to disagreement during his tenure on the surveillance court. But the new documents reveal that Judge Vinson was not only willing to criticize his fellow judges. He also was willing to adjust his own prior legal analysis, in order to validate warrantless NSA surveillance of foreign nationals. I note this shift, and other features of the May and August orders, below.

Read more »

Wednesday and Thursday at the Military Commissions: Al Hadi

By
Thursday, January 29, 2015 at 10:15 PM

Editor’s Note: This post represents a modest adjustment in Lawfare‘s military commissions coverage, one made necessary in part because of the surge in criminal hearings at Guantanamo in the coming weeks and months. For a full explanation, please see the first post in this series.

Wednesday

The second day of the week-long hearing in United States v. Abd al Hadi al-Iraqi revolved around AE 021, a defense motion seeking to prevent female guards from physically contacting the accused, including during movements to and from legal and medical appointments and commission proceedings. The defense has filed this motion based on the religious beliefs of the accused that forbid men from having physical contact with women to which he is not married or closely related. The commission has already entered an interim order granting such relief.

The government called its first witness under the pseudonym “Escort Guard,” a female noncommissioned officer in the Army National Guard and civilian police officer. On direct examination, Escort Guard testified that she first came into physical (and visual) contact with the accused on October 8, 2014, as team lead for moving him and another detainee from their detention cells to another facility for a legal appointment. She described how she touched the shoulder of the accused and of the other detainee so as to maintain positive control over their movements when transferred to and from a van that was used to ferry the detainees to another facility. Further, Escort Guard noted that her face was not covered in any way and the accused did not react negatively when she touched him, in contrast to the other detainee, who “started flipping out” and repeatedly asked her why she was touching him but did not refuse movement.

Read more »

Throwback Thursday: Rewards and Bounties

By and
Thursday, January 29, 2015 at 9:17 PM

On January 5, Dominic Ongwen, senior commander in the Lord’s Resistance Army, was captured by Seleka rebels in the Central African Republic (CAR). Subsequently, the rebels transferred Ongwen to the US military, who has maintained a small force in the region since 2011 to assist in the hunt for the LRA’s commanders. The question was what to do next: Ultimately Ongwen was handed over to African Union forces, who in turn transferred him into the custody of the CAR—which finally transferred him to the International Criminal Court (ICC) in mid-January. Ongwen is now facing trial at the Hague, where he stands charged with war crimes and crimes against humanity.

The Ongwen intrigue transcends the complex relationship between the United States and the ICC. (As is well known, the United States is not a party to the treaty creating the ICC, but nevertheless has cooperated in some of the court’s activities—including the pursuit of notorious international criminals.) In 2013, the US State Department had placed a $5 million bounty on the commander, promising payment in return for information leading to Ongwen’s capture. After ceding custody of Ongwen to the United States, the Seleka rebels attempted to claim the money. Payment, however, has not been forthcoming—the obstacles being the rebels’ role in violence throughout the CAR, and their past dealings with the LRA.

Rewards programs are the subject of this week’s Throwback Thursday. Below, we sketch out a basic history of the United States’ offering of rewards for help in getting bad guys; describe the current regime under which the United States exchanges cash for information and assistance; and overview, in the most broad outlines, some of the challenges that the rewards setup can pose.

Read more »

National Security Issues Discussed at Yesterday’s AG Confirmation Hearing

By
Thursday, January 29, 2015 at 8:19 PM

Yesterday, the Senate Judiciary Committee began the first of two day-long hearings on the nomination of Loretta Lynch to be the next Attorney General of the United States. (Transcript-enhanced video can be seen via CSPAN here and here.) While much of the exchanges between the Senators and the nominee focused on things like the constitutionality of President Obama’s executive actions on immigration, or the Fast and Furious scandal, there were some noteworthy discussions of national security issues.

Lynch, the current United States Attorney for the Eastern District of New York—whose office has handled more terrorism cases in the post 9/11 period than any other—emphasized the paramount importance of counter-terrorism and cybersecurity issues for the modern Justice Department in her opening statement, calling “protecting the American people from terrorism” the “primary mission” of the Department.

In addition to the high-profile prosecutions that her office has brought in response to terrorist plots to bomb JFK Airport and the New York subway system, among others, Lynch also emphasized her office’s efforts in prosecuting complex international cybercrime. In response to a question from Senator Lindsey Graham about evolving cyber threats, Lynch identified “increased activity in terms of cyber crime” that has “not only increased numerically, qualitatively in the type of threat that we face.” Addressing another question, Lynch similarly called the cyber-terrorism nexus “perhaps the greatest fear of any prosecutor.” She suggested that a more robust response to the growing threat of cyberterrorism required not only additional personnel, but an investment of resources that would improve the Department of Justice’s own technological prowess to deal with these threats.

Lynch mostly dodged questions from Senator Dianne Feinstein, the Senate Intelligence Committee’s Ranking Member, about whether provisions of the Foreign Intelligence Surveillance Act (FISA) should be able to sunset in June; Lynch stressed the importance of surveillance tools but also emphasized the need to balance these investigative techniques against privacy concerns. Still, in response to a related query from Senator Graham, Lynch called the NSA surveillance activities “constitutional and effective.” Feinstein also asked Lynch whether she would make certain Office of Legal Counsel (OLC) memos regarding surveillance available to Congress—particularly an OLC opinion related to certain activities conducted pursuant to Executive Order 12333—and Lynch responded that she would “find a way to provide the information that you need, consistent with the department’s own law enforcement and investigative priorities.” Read more »

The Intercept’s Invitation to Criminality—and to Intelligence Agencies

By
Thursday, January 29, 2015 at 4:50 PM

The Intercept posted an interesting document yesterday designed to help a certain class of would-be-criminals—leakers of classified information—but which will, I would imagine, interest a different group of people too. The document, entitled “How to Leak to the The Intercept” is just what it sounds like—a how-to guide, complete with steps to take and steps to avoid, to leaking sensitive material to the publication without getting caught. The document details technologies to use to avoid detection (Tor, Tails, and The Intercept’s own SecureDrop leaking system, which it describes as “an open source whistleblower submission system, to make it simpler and more secure for anonymous sources to get in touch with us.”) It details as well things to worry about and things not to do: “Strip metadata from documents,” reads one helpful tip. “Compartmentalize and sanitize,” says another.

It all culminates with a section usefully entitled, “How to Actually Leak.”

It’s a snazzy presentation, and if I were a would-be leaker, I’d be intrigued. But I might be even more intrigued if I were, say, representing an intelligence agency. Probably not a U.S. intelligence agency, to be clear. The Intercept folks, after all, are U.S. persons, and there are all these laws and rules preventing our services from spying on such people or hacking their systems—at least without a warrant.

But let’s say I were with some other intelligence agency, either one allied with our forces or one hostile to it. I might noticed that The Intercept is trafficking in really neato stolen goods. They’re soliciting more. And what’s more, they’re advertising what could be a really great, so to speak, phishing hole—that is, a mechanism to send them files and maybe get them onto their computers. If I were a foreign intelligence agency, I’d be looking at this as a great way to send enticing-looking documents, maybe even real ones, that contain some nifty bits of executable code that offered visibility for me onto the activities of people with access to the Snowden materials, people who are talking to and recruiting other leakers. Or maybe I’d be drop some honey-pot files, some files that beacon their location. Or maybe I’d just use the opportunity to drop disinformation on journalists who have shown they will believe just about anything if it’s disparaging of U.S. intelligence.

To be sure, there are ways The Intercept’s “secure drop” might be insulated from the organization’s other machines. Let’s say, for example, that it is a computer that is connected to the Internet (so that people can send it things) but is air-gapped from any other computer. All it would really need is a printer, configured so that when someone sends it a document, the computer does nothing but print it out. That’s certainly possible, but remember that our intelligence services seem to have jumped an air gap against the Iranian nuclear program. The pros are really good, and not all of the pros work for NSA. And even that assumes that SecureDrop is really secure. But is it? I don’t know, and neither do the folks at The Intercept.

The Intercept folks make a big deal of their facility with encryption, but the truth is that they’re amateurs. And they are amateurs in a world of professionals. [Clarification: ACLU technologist Christopher Soghoian has taken me to task on Twitter for disparaging the security experts employed by The Intercept. To be clear, I am talking here not about those experts but about the journalists in question. I don’t believe Glenn Greenwald and Laura Poitras can keep the Russians or the Chinese or any professional intelligence services out of their stuff.] There is nothing they can build that a professional intelligence service can’t break. I don’t believe there is a SecureDrop they can construct which is secure against someone who has penetrated the computers with which they access it. And without knowing exactly how their system purports to avoid this problem, there is no good reason for a leaker to have confidence that The Intercept‘s systems have not already been penetrated. This may not expose the leaker, given the way Tor and the drop system work—though it may. But it does mean that the leaker has no reason to have confidence, when he uses these systems to talk to Glenn Greenwald or Laura Poitras, that he’s talking only to Greenwald and Poitras.

If I were GCHQ or the PLA or the Israelis or the Russians or the Iranians, I’d already be in there looking around, seeing what I could see, and just waiting to find out who wants to leak what about my rival services—or perhaps about my own. Wouldn’t you?

PCLOB Releases Recommendation Assessment Report

By
Thursday, January 29, 2015 at 4:14 PM

The Privacy and Civil Liberties Oversight Board has released an assessment of the status of each of the Board’s 22 recommendations regarding Section 215 and Section 702 programs.

More information, including the assessment, a fact sheet, and a table summarizing the Board’s recommendations, can be found in the release by the Board—the relevant part of which is excerpted below.

To mark the one-year anniversary of its report on the Section 215 telephone records program and the six-month anniversary of itsreport on the Section 702 surveillance program, the Privacy and Civil Liberties Oversight Board has released an assessment of the implementation of its recommendations. In its two reports, the Board made a total of 22 recommendations directed at the Executive Branch, Congress, and the Foreign Intelligence Surveillance Court. In its assessment, the Board discusses the status of each recommendation’s implementation.

Key findings include:​

  • Overall, the Administration has accepted virtually all recommendations in the Board’s Section 702 report and has made substantial progress toward implementing many of them, while also accepting most of the recommendations in the Board’s Section 215 report.
  • The Administration has not implemented the Board’s recommendation to halt the NSA’s telephone records program, which it could do at any time without congressional involvement. Instead, the Administration has continued the program, with modifications, while seeking legislation to create a new system for government access to telephone records under Section 215.
  • The Administration has made substantial progress in implementing some of the Board’s recommendations regarding transparency.
  • The Administration has not yet developed, as the Board recommended, a methodology for gauging the value of its counterterrorism programs.

The Board’s assessment includes a Fact Sheet, which provides a concise summary of the Board’s conclusions about the implementation of its recommendations, and a Table summarizing the Board’s recommendations by subject matter.

 

Today’s Headlines and Commentary

By and
Thursday, January 29, 2015 at 1:08 PM

Members of the Iranian parliament have introduced a bill that would nullify a 2013 interim nuclear deal if any new sanctions—which have already been proposed in the US Congress—are imposed on the country, the Associated Press reveals. In the US, House Minority Leader Nancy Pelosi (D-CA) told reporters that Israeli Prime Minister Benjamin Netanyahu’s planned speech before the US Congress further threatens to scuttle nuclear talks with Iran, The Hill reports. The New York Times explains that this speech, and the partisan way in which it was organized, is actually helping President Barack Obama unite Democrats against new sanctions on Iran, at least temporarily. A senior official in the White House has also criticized Israel’s ambassador to the US, saying that Ambassador Ron Dermer has consistently put Prime Minister Netanyahu’s domestic political considerations ahead of the US-Israeli relationship, according to the Times.

Earlier today, Prime Minister Netanyahu blamed Iran for the recent escalation of violence between Israel and Hezbollah, the worst since the two sides fought a war in 2006, the Times reports. In response to Hezbollah anti-tank missiles fired from Lebanon, Israel shelled southern Lebanon; the shelling left a Spanish UN peacekeeper dead, and the UN states that it has opened an investigation into the death. Later on Thursday, Israel claimed it had received a message from Hezbollah stating a desire to avoid further violence, Reuters reports.

Representative Adam Schiff (D-CA) has released a new draft AUMF against ISIS in Iraq and Syria, The Hill notes. The proposed bill will ban the use of ground troops in the conflict, change language in the 2002 Iraq AUMF, and sunset itself and the 2001 AUMF in three years.

ISIS has set a deadline of sundown today for the release of an ISIS militant held by Jordan, who would be exchanged for a Jordanian pilot currently held by ISIS, according to the Guardian. The AP reports, however, that Jordan is still demanding proof that its pilot is alive before releasing the ISIS militant. In another report, the AP notes that Japan is trusting Jordan to help free a Japanese hostage also held by ISIS as it negotiates the exchange. Reuters reports that on Monday, at least 72 unarmed Iraqis were killed. Survivors have revealed that the killings were perpetrated by Shiite militias backed by Iran, and that Iraqi security forces stood by and watched.

The Wall Street Journal reports that militant groups claiming allegiance to ISIS are cropping up throughout the Middle East, including in Egypt and Libya. At the same time, the group is pushing east; this week the group announced that it is opening operations in Afghanistan, Pakistan and India, and named former a Pakistani Taliban commander as its leader in the region. The Hindustan Times covers the story. In Afghanistan, however, the Taliban has reportedly captured a key ISIS ally, Mullah Rauf, and 45 of his followers. Pajhwok has more.

As ISIS tries to move into Pakistan, among other places, Pakistan’s military has pushed many Pakistani militants out of the country. This push, the Wall Street Journal reports, has forced militants to cross into Afghanistan, where their presence threatens the already-fragile Afghan state. All of this comes as the US continues to its drawdown in Afghanistan. But the details of how the US is using its resources to help stabilize the country, once mostly public information, are now considered classified. The Times explains that this move means much of the US effort to leave a stable, safe Afghanistan will be conducted in darkness.

US operations do continue in the region, however. In a drone strike across the border in Pakistan, seven suspected militants were killed, according to the Express Tribune. The Afghan National Security Forces have also reclaimed the central district of Maidan Wardak province for the first time in 13 years, TOLOnews reports, pushing the Taliban out of what was considered its provincial center. The AP notes that elsewhere in Afghanistan a Taliban suicide bomber struck a funeral procession and killed 16 people while wounding 39 others.

Under a renewed Defense Framework Agreement agreed to during President Obama’s visit to India, the US will co-produce weapons with India within India. While the cooperation will begin with low-end weapons, analysts do not expect the co-production of advanced weapons for some time. Defense News has more.

Boko Haram is conducting major violent offensives throughout northeastern Nigeria, and Nigerian troops have not engaged the rebel groups or attempted to protect civilians, the AP reports. The Islamic extremists are burning and looting villages while abducting or killing any civilians in their path.

Satellite images analyzed by a US think tank shows that North Korea may be restarting a nuclear plant that it shut down last August, the AP reveals. The plant has produced the plutonium used in past North Korea test explosions. However, the research institute said that, because the images analyzed were only from a brief period, it could not state definitively what the activity indicates.

Cuban President Raul Castro has demanded that the US return the Guantanamo Bay base to Cuba before the two countries can normalize relations. The Guardian reports that Castro also demanded an end to the US embargo of Cuba and compensation from the US for damages.

In other Guantanamo news, the defense lawyer for Abd al Hadi al Iraqi, a former al Qaeda commander, has asked a military judge at Guantanamo to broaden the reach of the judge’s previous no-female-touching policy beyond just legal meetings. Female guards at the base have now filed a gender discrimination complaint against the same judge. Carol Rosenberg of the Miami Herald covers the story.

The Hill shares that the House Intelligence Committee is shuffling its organization to focus more on cyber security and oversight of the intelligence community. The Committee announced four new subcommittees yesterday: one on the CIA, one on the NSA and cybersecurity, one on the Defense Department’s intelligence agencies, and one on Emerging Threats. After a Senate Homeland Security Committee hearing on cybersecurity, the committee’s top members both indicated that a bill facilitating information sharing between the public and private sectors on cyber threats may be forthcoming, according to The Hill.

ICYMI: Yesterday, on Lawfare

Cody explained that, despite some faulty arguments to the contrary, terrorist safe havens do still matter. A lot.

Cody also shared the new draft AUMF against ISIS in Iraq and Syria that Representative Adam Schiff (D-CA) released.

Ben brought us video footage from last weekend’s cybersurveillance conference at Washington & Lee’s law school, which included a speech by General Michael Hayden and some stand-up comedy by Ben and Daily Beast reporter Shane Harris.

This week’s Steptoe Cyberlaw Podcast featured a debate between Thomas Rid and Jeffrey Carr over the attribution of cyberattacks.

Yishai Schwartz analyzed Senator Bob Corker’s push for legislation that would force the president to bring any nuclear deal with Iran before Congress for a vote, saying that such legislation seems to be a good way of ensuring a satisfactory deal for the US.

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Bits and Bytes

By
Thursday, January 29, 2015 at 9:40 AM

You go off line for 3 days and so much worth noting happens!  Here are some recent developments:

DHS Ooops.  Responding to a FOIA request regarding Operation Aurora (a Chinese attack on Google) DHS accidentally also releases classified data on Project Aurora (the first demonstration of SCADA vulnerabilities in the electric grid).  Our bad!

Drone on the White House.  Responding to the crash at the White House last week the manufacturer has announced plans to hard wire “no-go” zones around airports and the White House into the firmware of the drone.  Prediction:  If it can be wired in, it can be hacked.

State of the IANA Transition.  The USG provides a status update on the progress being made.  Money quote: “Let me repeat, the proposal must support and enhance the multistakeholder model of Internet governance, in that it should be developed by the multistakeholder community and have broad community support.  More specifically, we will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organization solution. …In addition, the proposal must maintain the security, stability, and resiliency of the domain name system.  The proposal must meet the needs and expectations of the global customers and partners of the IANA services.  And finally, it must maintain the openness of the Internet.”

3D Food Printing.  Remarkable.  The additive manufacturing world is changing even faster than cyber.  Will it be better than MREs?  Will a hack mean giving the opposing army food poisoning?

GCHQ Pranked. “At a time when Western leaders are clamoring for greater powers to conduct covert surveillance, a prankster in Britain has turned the tables, obtaining a private cellphone number for a top intelligence chief and apparently telephoning the prime minister in his name, British officials acknowledged on Monday.”  Gotta love it.  Social engineering always wins.

Ongwen to ICC.  Ugandan rebel commander remanded to the ICC to face war crimes charges.  No word on how the answered some of the vexing legal questions to get him there, but if I were his defense counsel I’d eventually want some answers.