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ECHR: Poland’s Role in CIA Black Site Violated Detainees’ Human Rights

Thursday, July 24, 2014 at 10:08 AM

The European Court of Human Rights (“ECHR”) today handed down a pair of judgments in long-running human rights cases brought against Poland by two U.S. terrorism detainees—Abu Zubaydah and Abd Al Rahim Hussayn Muhammad Al Nashiri.  As is well known, both had alleged violations of the Convention for the Protection of Human Rights and Fundamental Freedoms, arising from their detention and interrogation, in Poland, at the hands of the Central Intelligence Agency.

I have only skimmed the two rulings; the ECHR’s press office sums them up as follows:

The cases Al Nashiri v. Poland (application no. 28761/11) and Husayn (Abu Zubaydah) v. Poland (no. 7511/13) concerned allegations of torture, ill-treatment and secret detention of two men suspected of terrorist acts. The applicants allege that they were held at a CIA “black site” in Poland.

In today’s Chamber judgments, which are not final, the European Court of Human Rights held, unanimously:

in both cases, that Poland had failed to comply with its obligation under Article 38 of the European Convention on Human Rights (obligation to furnish all necessary facilities for the effective conduct of an investigation);

in both cases, that there had been:

a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects;
a violation of Article 5 (right to liberty and security);
a violation of Article 8 (right to respect for private and family life);
a violation of Article 13 (right to an effective remedy); and,
a violation of Article 6 § 1 (right to a fair trial).

As regards Mr Al Nashiri, the Court further held that there had been a violation of Articles 2 (right to life) and 3 of the Convention taken together with Article 1 of Protocol No. 6 (abolition of the death penalty).

Having regard to the evidence before it, the Court came to the conclusion that the applicants’ allegations that they had been detained in Poland were sufficiently convincing. The Court found that Poland had cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory and it ought to have known that by enabling the CIA to detain the applicants on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.

What Exactly Was Edward Snowden’s Job?

Wednesday, July 23, 2014 at 8:29 PM

The New York Times the other day ran this story about an interview Edward Snowden gave to the Guardian in Moscow. The Guardian interview made a few waves because of Snowden’s claim that NSA analysts passed around racy photos they had intercepted. I was struck by a different aspect of it. The New York Times characterized it as follows:

For at least the second time in an interview, Mr. Snowden cast himself as someone who had far more responsibility than a low-level contractor, as some American officials have described him.

“I began to move from merely overseeing these systems to actively directing their use,” he said. “Many people don’t understand that I was actually an analyst and I designated individuals and groups for targeting.”

NSA has consistently described Snowden as a systems administrator. I have noted the disparity before between his self-portrait and the agency’s portrayal of him. It shows up in Glenn Greenwald’s book, for one thing. But it seems to me to be growing more acute. Snowden portrays himself himself as a spy and an operative. The agency portrays him as a IT guy. The difference is important because it goes to what he reasonably could be expected to know about agency procedures, rules, and analytical approach, procedures, and culture. It seems to me at this stage to warrant clarification.

Another Day, Another Former Guantanamo Detainee Can’t Get Back in Court

Wednesday, July 23, 2014 at 8:17 PM

This time it’s Mohammad Rimi, transferred to Libya back in 2006. The judge is Richard Leon. Here’s the opinion. Here’s the order.

The Intercept on NCTC Guidance for Putting People on Terrorism Watchlists

Wednesday, July 23, 2014 at 4:30 PM

Over at the Intercept, Jeremy Scahill and Ryan Devereaux have this piece on the NCTC’s guidelines for adding citizens and foreigners to terrorism watchlists. Their article opens:

The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.

The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.

Bits and Bytes

Wednesday, July 23, 2014 at 3:25 PM

A distinctly conflict oriented flavor today:

Inside Anonymous’ Cyber War Against the Israeli Government.  “The shadowy hacker collective known as Anonymous has announced it will launch a round of cyber-attacks this Friday against the Israeli government, in retaliation for Israel’s ongoing military intervention in Gaza. This onslaught would add to a wave of cyber assaults staged in recent weeks by hackers largely from the Middle East, Asia, and South America, who are supporting “OpSaveGaza,” an Anonymous-backed campaign targeting Israeli government websites that has succeeded in temporarily taking down the sites of the Israeli defense ministry and the Tel Aviv police department.

Iraq Conflict Breeds Cyber Civil War.  “A cyber-civil war is being waged alongside the armed conflict in Iraq, research by security firms suggests. As well as using social media to rally supporters and spread propaganda, some factions are employing hackers to gather intelligence. Well-known attack programs have been re-purposed in a bid to to subvert routers and other systems inside Iraq. More broadly, cyber-thieves are also using the conflict to help trick people into opening booby-trapped messages.”

9/11 Commission Warns of Cyber Attack Threat.  “The authors also describe the threat of a cyberattack as a significant concern, likening it to the threat of terrorism before the Sept. 11, 2001, attacks. They describe the ‘cyber domain as the battlefield of the future’ and say the country needs to take further steps to prevent the cyber equivalent of 9/11. ‘We must not repeat that mistake in the cyber realm,’ wrote the authors, including Thomas H. Kean and Lee H. Hamilton, who together chaired the 9/11 Commission.”

WSJ News Pages Hacked.  “Computer systems containing the Wall Street Journal’s news graphics were hacked by outside parties, according to the paper’s publisher Dow Jones & Co.  The systems have been taken offline to prevent the spread of attacks, but Journal officials have not found any damage to the graphics, the newspaper said citing people at the Wall Street Journal familiar with the matter.  A hacker who goes by the Twitter handle of w0rm allegedly posted tweets and screenshots claiming to have hacked the Journal’s website and offered to sell user information and credentials needed to control the server.”

Just another average Wednesday in cyberspace, I guess.

Today’s Headlines and Commentary

By and
Wednesday, July 23, 2014 at 12:18 PM

This morning, the New York Times remarks on the many global crises that President Obama is currently facing: “Rarely has a president been confronted with so many seemingly disparate foreign policy crises all at once… but making the current upheaval more complicated for Mr. Obama is the seemingly interlocking nature of them all.”

And with that, we dive in.

Yesterday, after a bomb from Gaza landed about a mile from Ben-Gurion International Airport in Tel Aviv, the U.S. Federal Aviation Administration (FAA) suspended U.S. commercial flights to Israel. BBC News reports that the European Aviation Safety Agency (EASA) “strongly recommends” that airlines cancel operations to and from Tel Aviv. According to Reuters, Israeli Prime Minister Benjamin Netanyahu asked U.S. Secretary of State John Kerry “to work for the resumption of flights by American carriers to Israel.”

Secretary Kerry was in Cairo yesterday, working toward a cease-fire between the Israelis and Palestinians. The Times writes that though Kerry’s meetings were productive, “there was no indication of an imminent breakthrough in cementing a cease-fire deal.” Secretary Kerry joined U.N. Secretary General Ban Ki-moon in Israel today to continue working on some kind of agreement. The Washington Post chronicles the visit. The AP notes that Middle East peace talks may resume once a cease-fire is reached.

The Times writes that Hamas took a gamble on violence with Israel and the militants have been “exceeding all expectations.”

In the Post, Yael Even Or explains why she and a number of other former Israeli soldiers object to military service.

Yesterday, U.S. intelligence officials released a number of documents, including satellite images and intercepted phone conversations, that direct blame for the downing of MH17 onto Russian separatists in the region. For the first time, officials also identified a large Russian military base as the main conduit for Russian support to separatists in eastern Ukraine, and provided images that suggested activities at the outpost had increased markedly in the last month. The Post has the images and more, while the Daily Beast suggests that the base may be where the Russian military trained the separatists to use anti-aircraft systems. reports that the Ukrainian military has announced that it has retaken control of Donetsk Airport. However, pro-Russian rebels shot down two Ukrainian fighter jets on Wednesday, not far from where Malaysian Flight 17 was brought down last week. At the same time, there were reports that the separatists were leaving positions on the outskirts of Donetsk and retreating to the center of the city. Reuters has more on the story.

Reuters is also reporting that President Obama and Dutch Prime Minister Mark Rutte agreed that Russia must face higher costs if it continues to support violent separatists in Ukraine. The Times notes that for his part, Mr. Putin pledged Russia “will do everything in our power, but that is not nearly enough,” and called on Ukrainian leaders to impose a ceasefire on operations against Donetsk.

In a letter to Obama, lawmakers in the U.S. increased their pressure on the Administration to prevent France from selling two Mistral helicopter carriers to Moscow. The Hill has more. In another letter, according to the Wall Street Journal, the heads of three Senate committees argued that the United States should impose significant new sanctions against Russia’s defense, energy, and banking sectors.

Given all the recently banned flights, the Post also has an interesting graphic that shows where all the U.S. Federal Aviation Administration has issued airspace restrictions and prohibitions.

In a Shia area in the Iraqi capital last night, a suicide bomber for the Islamic State killed 33 people. According to Reuters, this was “one of the deadliest recent attacks” in Baghdad. Reuters also notes that funding for the new caliphate comes from the production and sale of oil from recently seized Iraqi oilfields.

Meanwhile, Iraqi Prime Minister Nouri al-Maliki is “losing political support” from the nation’s Shia religious leaders and neighboring ally Iran. The Journal reports that Maliki is unlikely to retain his grip on power.

Reuters reports that Iran nuclear talks are scheduled to resume in early September. At the same time, Reuters also tells us that the International Atomic Energy Agency is concerned about Tehran’s lack of engagement with an ongoing investigation into the suspected past military dimensions of Iran’s atomic research.

As violence between rival militias in Libya continues, an explosive today hit fuel storage tanks near the international airport in Tripoli. Reuters has the story.

Two bombs rocked Kaduna, a town in northern Nigeria, today, killing at least 82 people. Though no group has claimed responsibility for the blast, Reuters notes that “Boko Haram has been staging attacks, especially with explosives, outside its northeastern heartlands in the past three months.”

Apparently, al Qaeda is no longer the “it” terrorist group. According to Reuters, the network is “increasingly seen as stale, tired, and ineffectual on the hardcore jihadi social media forums and Twitter accounts that incubate potential militant recruits.”

A recent study released today by Maplecroft Terrorism and Security Dashboard, a global risk consulting firm, shows that terrorism worldwide has become more deadly, with 18,668 people killed in the past year, as compared to the previous five-year average of 14,433. CNBC points out that there were also fewer attacks this past year, which means that militants have become more effective in inflicting violence.

The State Department has taken to Twitter as part of a larger program to overhaul how the U.S. responds to extremists’ online communications, reports Politico. Using hashtags like #ThinkAgainTurnAway, State hopes to contest the space online. There’s only one problem with this counterterrorism initiative: according to Politico, State appears to be losing.

Today, the Air Force is launching two Geosynchronous Space Situational Awareness Program (GSSAP) satellites into orbit around the Earth, in order to monitor any “nefarious capability” of other countries in space. Stars and Stripes has details.

Yesterday, Paul Rosenzweig wrote for Lawfare on the NSA reform’s progress. Today we learn that Senate Judiciary Chairman Patrick Leahy (D-VT) is close to reaching a deal with the Obama administration on NSA reform. The Hill shares details.

The L.A. Times Editorial Board argues that Congress should act to close the metadata gaps in the USA Freedom Act, ending the bulk collection program and codifying the practice of asking, in advance, for court review of metadata queries.

And on the note of NSA spying, David Ignatius of the Post has penned a piece that covers the history of cooperation between U.S. and German intelligence agencies—and how those agencies are working to rebuild a relationship that, for all its strain lately, will be stronger, more cooperative, and more transparent in the long run. In case you missed it, last week, Taj Moore provided an extensive outline of the recent controversy to Lawfare.

What happens when terrorists have drones? The Editors at Bloomberg provide a scary, if unlikely in the immediate term, overview of the possibilities. Among other things, they say that  international export regulations of drone technology must be refined and strengthened.

The Philadelphia Inquirer has an overview of the Al Bahlul ruling regarding Guantanamo military commissions, and some of the major Constitutional questions in play.

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.

CISA Boom Bah …

Tuesday, July 22, 2014 at 4:53 PM

Sorry, I just couldn’t resist the title which does not reflect my true feelings about CISA, the Cybersecurity Information Sharing Act of 2014.  Approved earlier this month by the Senate Intelligence Committee, this bill awaits Senate floor action.  In the current environment, I think its legislative prospects are modest (though perhaps we might see it combined with the NSA reform bill — which would be a hoot).  Nevertheless, it is worth summarizing some of the high points of the legislation since it reflects, I am told, the product of significant back and forth with the Administration and within the Committee.  Here are some of the highlights:

First, CISA appears to have relatively strong liability protections. Section 6(a) provides that no cause of action shall lie against a private entities for the monitoring of information systems and information conducted in accordance with the bill.  Section 6(b), likewise defines away a cause of action when private entities share cybersecurity threat and vulnerability information as allowed.  Finally, subsection 6(c) provides that good faith is a “complete defense” if a cause of action is not dismissed or precluded by subsections (a) and (b).  The protection is not complete, as subsection (d) allows a cause of action for “gross negligence” or “willful misconduct.”  Some will see this last caveat as an invitation to creative pleading, but with the more stringent pleading requirements currently in vogue in Federal litigation, a fair assessment is that this liability provision is quite robust.

Second, on the question of how broadly information may be shared, CISA leans a little toward a broader sharing model than some privacy advocates will want to see but one that, in my view, still makes some unusual choices.   Section 5 (d)  first sets out the broad limitation — that cyber threat information may only be shared for cybersecurity purposes.  It then, however, caveats that limitation by carving out some exceptions.  It allows sharing for “the purpose of responding to, or otherwise preventing or mitigating, an imminent threat of death or serious bodily harm,” for investigating child pornography and exploitation; for prosecuting identity theft and espionage; and for prosecuting the theft of trade secrets.   There is some logic to most of these — they are, in some sense, uniquely enabled by cyber means.  But I suspect that it is in the end a mistake to try and draw fine lines like this.  I can imagine any number of edge cases and plenty of litigation opportunities that this contrived language will create.

Finally, CISA adopts the “hub and spoke” method of disseminating information, establishing a “portal” managed by the DHS through which information can be shared.  I continue to think this is needlessly bureaucratic and will slow efforts without any real value add — but apparently it is a political necessity.


Progress on NSA Reform?

Tuesday, July 22, 2014 at 4:29 PM

So reports the LA Times.  Here’s a short summary:

As part of the deal, the intelligence community agreed to a stricter definition of the search terms the NSA may use to seek data from telephone companies that might be useful in connecting the dots between known terrorists, said the official who would not be identified talking about ongoing negotiations.

Privacy advocates thought the definition for selection terms in the House bill created a loophole for NSA to continue its broad surveillance.

Intelligence officials also agreed to be more transparent about U.S. government snooping and consented to strengthening the role of a newly created public advocate, who would participate in Foreign Intelligence Surveillance Court proceedings, the official said.

Readers will recall that in the House a stringent bill that privacy advocates supported passed the Judiciary Committee but was modified in a Manager’s Amendment on the floor of the House.  The House-passed version allows selector queries of the metadata database (to be maintained by the telcos) and defines a selector as a “discrete term, such as a term specifically identifying a person, entity, account, address, or device.”  The narrower version passed in the Judiciary Committee said, by contrast, that a selector was “a term used to uniquely describe a person, entity, or account.”

According to privacy advocates the change in language took an exclusive list of identifiers and by adding “such as” and “addresses” and “devices” converted the selector rules into a larger, less-bounded set.  I think that’s accurate but I am skeptical that the change had the catastrophic effect that the privacy advocates ascribed to it.

Nevertheless, apparently (though we have only the LA Times to go on) the Senate version will go back to something like the original House Judiciary language.  If the Senate passes the NSA reform package it would then, of course, go to Conference with the House, but with the Administration backing down, I am guessing that the House won’t have the stomach to fight for its version.

U.K. Independent Reviewer on British Terrorism Legislation

Tuesday, July 22, 2014 at 3:18 PM

David Anderson, the U.K.’s Independent Reviewer of Terrorism Legislation, has released his annual report on British terrorism laws. The report covers several broad topics: ethnic or community bias in the use of police powers; the worldwide reach of U.K. counter-terrorism law; the difficulties posed by counter-terrorism law to the operation of aid agencies in conflict zones; and the definition of terrorism. The last point, the definition of terrorism, is perhaps the key takeaway this year. From Anderson:

The UK quite rightly has very tough laws against terrorism. When terrorism is suspected, people can be arrested more easily, detained for longer, prosecuted for behaviour falling well short of attempt, conspiracy or incitement and made subject to restrictions by ministerial order on their finances and their movements.

The public accepts special terrorism laws so long as they are used only when necessary. But they can currently to be applied to journalists and bloggers, to criminals who have no concern other than their immediate victim, and to those who are connected with terrorism only at several removes.

This is not a criticism of Ministers, prosecutors or police—who as a rule exercise their remarkably broad discretion with care and restraint. But it is time Parliament reviewed the definition of terrorism, to avoid the potential for abuse and to cement public support for special powers that are unfortunately likely to be needed for the foreseeable future.

You can read the full report here.

Anderson will also be conducting a formal review of the U.K.’s Communications Data and Interception Powers, which will be complete before the May 2015 General Election. More information, and a call for evidence, here.

The Independent Reviewer of Terrorism Legislation is appointed by statute to review the operation of the U.K.’s anti-terrorism laws and report on them to the Home Secretary and to Parliament. He is given access to secret papers and discussions, and charged with informing the public and political debate on the law as it relates to terrorism. Anderson has published an article on the history, function, and influence of the Independent Reviewer; it’s available here.

Anderson also provides a thoughtful review of the role of the Independent Reviewer in comparison to a recently proposed U.K. independent Privacy and Civil Liberties Board, whose role and name would appear to mirror that of the Privacy and Civil Liberties Board in the United States.

For more thoughts and information on the role of the Independent Reviewer, see Ben’s previous Lawfare posts here and here.

Steptoe Cyberlaw Podcast, Episode #29: An Interview with Orin Kerr

Tuesday, July 22, 2014 at 2:24 PM

Our guest this week is noted computer law guru Orin Kerr, and the podcast is a deep dive into technology and law.

This Week in NSA:  Snowden claims without substantiation that NSA employees are passing naked pix around.  And Greenwald’s venture reports that GCHQ has developed the ability to send spam and to rig web polls.  It’s a true Dr. Evil moment.  What will they think of next – tools that write linkbait article titles? Really, you won’t believe how this Glenn Greenwald story will break your heart!

Well, that was fast. Last week the UK government announced that it was pursuing legislation ensuring that data retention would continue and ending legal challenges by US companies to the scope of UK investigative powers.  This week, the proposal has passed both houses of Parliament.  It is now law.

Advocates of the right to be forgotten also want you to forget about how the censorship will work.  They successfully pressured Google not to tell users when their search results are bowdlerized.  Now they’re pressuring Google not to tell content owners when their links are dropped down the memory hole. They also want to make sure the censorship regime applies to the United States and Google’s .com engine.  As the Chinese government has already taught us, it’s not enough to censor Internet news; you also have to censor Internet news about the censorship of Internet news.  Come to think of it, the Chinese also demand that Internet companies self-censor in response to vague hints from regulators, and now so do the Europeans. Really, if the Chinese had a business method patent on Internet censorship, they could sue Europe for infringing.

And, speaking of privacy law abuses, the Veterans Administration finds that the best way to prevent whistleblowers from complaining about mistreatment of patients is to declare that talking about patient’s mistreatment is a violation of patient privacy.  Lois Lerner’s hard drive also makes an appearance.

The FBI says it’s worried about driverless Google getaway cars.  Of course you’d have to hack them to go faster than a golf cart.  Which raises the question:  Would hacking a car violate the CFAA?  The DMCA?  I ask the experts.

I wouldn’t ordinarily recommend the FBI affidavits that accompany indictments as reading material, but Agent Noel Neeman’s affidavit about Chinese cyberespionage tactics and motivations is remarkably entertaining – and instructive.   

In other news, it sure looks like the movement of class action privacy lawyers to West Virginia will begin in Illinois.  And to the surprise of the entire Internet, other than anyone familiar with actual law, the Massachusetts high court declares that, yes, you really can be forced to decrypt your files if the government already knows they’re yours.

Finally, with a critical mass of computer crime lawyers on the show, the four of us perform the lawyer equivalent of speed dating, covering most of the hot topics in technology and law, including the Microsoft search warrant case, the future of the third party doctrine, the evergreen question whether the Computer Fraud and Abuse Act is violated by those who exceed their authorized network access, and the prospects for legislation changing the CFAA or ECPA reform.

Today’s Headlines and Commentary

Tuesday, July 22, 2014 at 12:40 PM

The bloody conflict between Israel and Hamas continues. The Washington Post reports that Hamas has announced that it has captured an Israeli soldier, after a long battle on Sunday in an East Gaza neighborhood. But it is unclear whether or not this claim is true; the Israeli army is still investigating.

Meanwhile, the New York Times explains that, if Israel indeed continues its mission of targeting tunnels allegedly used by Palestinian militants, then the lopsided death toll likely will continue to rise. Some politicians within Israel are reluctant to agree to any cease-fire without finishing what they see as a key mission. Others reportedly prefer to leave a job “half-finished” for the sake of ending the violence.

The high number of civilian casualties in Gaza is, naturally, raising questions about Israeli military tactics and who is to blame: Israel, for targeting areas known to be inhabited by civilians; or Hamas, for giving Israel no choice but to attack such places. The Times looks at the reality on the ground in Gaza and how Palestinians are answering these questions.

The Times reports that a piece of wreckage from flight MH 17, the passenger jet shot down while flying over Ukraine on Thursday, was found two miles outside of the main area of debris.  The newly found item indicates that “the destruction of the aircraft was caused by a supersonic missile that apparently exploded near the jet as it flew 33,000 feet above the ground.” The damage was analyzed by a private defense consultancy, and is apparently consistent “with the effects of a fragmenting warhead carried by an SA-11 missile, known in Russian as a Buk.” Apropos of forensics: separatist rebels today handed over MH 17′s black boxes; the Post provides further details, and profiles the separatists’ leader in Donetsk, a Russian named Alexander Borodai, here.

The bodies of passengers of the doomed flight have finally left the crash site. The Times informs us that a train carrying the bodies arrived in Khariv, where it was met by police, forensics experts and representatives from the victims’ home countries.  The Wall Street Journal reports that the Netherlands now will take the lead in the MH 17 investigation. Although the missile shot happened over Ukraine, the Ukrainian government passed responsibility for the inquiry on to the Dutch. Most of flight 17′s passengers hailed from the Netherlands.

The Times Editorial Board insists that Ukrainian rebels (and, by extension, the Russians) have handled the aftermath of MH 17′s destruction with shocking callousness. The piece calls those responsible for the missile launch “war criminal[s]” and casts doubt on Russian President Putin’s stated commitment to finding the culprits.  Also on the subject of punishment, Reuters reports that the EU has threatened Russia with more sanctions over Ukraine—but the apparent consensus is that the threat is rather hollow.

In the Atlantic, Conor Friedersdorf highlights the work of, as he puts it, the “latest NSA surveillance whistleblower:” John Napier Tye.  The latter once served in the State Department’s Bureau of Democracy, Human Rights and Labor, and last week penned an opinion piece for the Post. There Tye argued that illegal spying is taking place abroad, contrary to the Fourth Amendment rights of U.S. citizens and under the auspices of Executive Order 12333.

The Hill reports that Germany and the United States are taking steps to slowly build back mutual trust. Diplomatic tensions have been at a high, after the revelation that the NSA had tapped into a phone belonging to German Chancellor Angela Merkel. President Obama’s Chief of Staff and Homeland Security Advisor met Tuesday with officials in Berlin, in an attempt to smooth things over.

More spy news: last week, there was some discussion about Russia helping to reopen a Cuban spy base, a claim that, as Tara noted, the Kremlin quickly denied. While the fate of the base in Lourdes, Cuba remains unclear, Business Insider offers us a primer on “Everything We Know” about the base, and what it would mean if it were to reopen.  Meanwhile, the U.K. will investigate the mysterious death, eight years ago, of Alexander Litvinenko, a former K.G.B. officer who was fatally poisoned in London with some sort of radioactive material.  The Times reports.

Yesterday, Jane highlighted a recent Al Jazeera film, Informants.  It follows undercover FBI informants who are often themselves convicted felons. Ryan Reilly, of the Huffington Post, argues that the movie, and a recent report by Human Rights Watch and Columbia Law School’s Human Rights Institute, together have brought the FBI under particularly intense public scrutiny.

NPR discusses a big, and recent, FBI policy shift: the Bureau, along with other federal enforcement agencies, will begin to record all interrogations that they conduct.

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.

A Fundraising Update, A Reminder, and Some Thanks

Tuesday, July 22, 2014 at 9:26 AM

Thanks to some heroic contributors over the weekend, we are nearly halfway to having raised the funds to redesign and rebuild Lawfare. If you are one of the people who has made this possible, many thanks. If you are a regular reader and have not yet contributed to the site, please consider that we are only halfway to where we need to be—and that one of things we are missing is a contribution from you. Lawfare is not cheap to produce, and as we develop a less blog-like and more magazine-like format, we need reader contributions. Please consider making one if you haven’t already.

I want to take this opportunity to recognize one group of people who has made a very particular contribution to the site: the law firm, WilmerHale. When we first decided that Lawfare needed a formal institutional structure, I approached the folks at Wilmer and asked if they would take us on pro bono as a service to the national security law community. They did not hesitate. And since then, the firm has done a large amount of work for Lawfare, helping us transition from an informal project among three friends to an organization positioned to grow and provide a wider range of services to the national security legal world. It’s been hugely helpful, and I’m very grateful.


Schlesinger v. Cillizza

Tuesday, July 22, 2014 at 7:34 AM

Chris Cillizza has a piece in the WP that argues that the world is too splintered and partisan and complex, and communication and persuasion too difficult, for the president of the United States to succeed.  This is an old claim.  John Steinbeck said of the presidency under Johnson: “We give the President more work than a man can do, more responsibility than a man should take, more pressure than a man can bear…. We wear him out, use him up, eat him up…. He is ours and we exercise the right to destroy him.”  In a 1981 book subtitled Why Presidents Fail and What Can Be Done about It, Robert Shogan maintained that the combined experience of Johnson, Nixon, Ford, and Carter maintained that the “the chronic failings of the presidency” were attributable to “the political and governing system to which presidents must respond.”   Writing in 1986, Arthur Schlesinger Jr. summarized the view of journalists and political scientists seeking to understand and explain the troubles of the presidency in the 1960s and 1970s:

They advanced ‘profound’ explanations—unprecedentedly intractable problems, excessive personalization of the office, excessive expectations in the country, the constitutional separation of powers, the post-Watergate resurgence of Congress, the rise of single-issue movements, the power of lobbies; and they reached a ‘profound’ conclusion— that the fault lay not in the men who occupied the Presidency but in the institution itself and the system to which it responded.

Adjusted to 2014, this is essentially Cillizza’s claim.

Schlesinger argued that this view was wrong.  The supposedly debilitating problems in the presidency, he argued, “were far from new; they were indeed recurrent conditions of American politics, and less causes of the presidential dilemma than alibis for it.”  He continued:

The commentators got their order wrong. They argued that these conditions accounted for the supposed failure of the Presidency. On closer examination, perhaps the failure of particular Presidents accounted for the salience of the conditions. The absence of effective presidential leadership created a vacuum in the center of the political system. It was this vacuum that Congress, lobbies and single-issue movements rushed to fill.

Schlesinger had no great affection for Ronald Reagan, but he argued that the Reagan administration showed how the many, many powers of the presidency, in the hands of a gifted leader, could overcome the many acknowledged challenges to the presidency.  Leadership is an ineffable quality, of course, but there is no doubt that strong presidential leadership is an indispensable prerequisite to political success in a system of constitutional separation of powers.  For more details, many of which are relevant to the current presidency, I recommend Schlesinger’s great essay, “Democracy and Leadership.”

Jonah Force Hill: The Growth of Data Localization Post-Snowden (Lawfare Research Paper Series)

Monday, July 21, 2014 at 9:14 PM

Ever since the Edward Snowden revelations began, countries outraged by U.S. intelligence practices have been batting around the idea of forcing countries to store data on their citizens within those countries’ borders. So-called data-localization laws have been discussed in Brazil and Germany and elsewhere, and they very much frighten U.S. technology companies, who worry that they threaten a Balkanization of the internet. They have not, however, been the subject of rigorous study.

In the latest installment of the Lawfare Research Paper Series, Jonah Force Hill—a technology and international affairs consultant—takes a look at data localization laws. The paper, entitled The Growth of Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Industry Leaders,” opens as follows:

Over the course of recent decades, and principally since the commercialization of the Internet in the early 1990s, governments around the world have struggled to address the wide range of logistical, privacy, and security challenges presented by the rapid growth and diversification of digital data. The mounting online theft of intellectual property, the growth of sophisticated malware, and the challenges involved in regulating the flow, storage, and analysis of data have all—to varying degrees—increasingly challenged governments’ ability to respond with effective policy.

Until recently, these data management issues were left to the men and women of computer science departments, advocates for technology companies, and to the few government attorneys and bureaucrats responsible for overseeing Internet and data regulation. In the wake of former NSA contractor Edward Snowden’s disclosures, however, which revealed to the global public the scale and intensity of intelligence collection online, data security and privacy issues have now become front-page headlines and the topics of dinner- table conversation the world over. As a result, governments are increasingly feeling compelled to do something they see as meaningful—if not outright drastic—to protect their citizens and their businesses from the many challenges they perceive to be threatening their nation’s data and privacy.

Of the various responses under consideration, perhaps none has been more controversial—or more deeply troubling to American businesses—than the push to enact laws that force the “localization” of data and the infrastructure that supports it. These are laws that limit the storage, movement, and/or processing of data to specific geographies and jurisdictions, or that limit the companies that can manage data based upon the company’s nation of incorporation or principal situs of operations and management. By keeping data stored within national jurisdictions, or by prohibiting data from traveling through the territory or infrastructure of “untrustworthy” nations or those nations’ technology companies, the argument goes, data will be better protected, and surveillance of the kind orchestrated by the NSA curtailed.

Today, more than a dozen countries, both developed and developing, have introduced or are actively contemplating introducing data localization laws. The laws, restrictions, and policies under consideration are diverse in their strategies and effects. Some proposals would enforce limitations for data storage, data transfer, and data processing; others require the local purchasing of ICT equipment for government and private sector procurements. There are proposals for mandatory local ownership of data storage equipment, limitations on foreign online retailers, and forced local hiring.

Proposals of this sort are not historically unprecedented. Indeed, forms of data localization policies have been actively in place in many countries for years, including in the United States, where sensitive government data, such as certain classified materials, must be maintained within the servers of domestic companies. Broader localization rules, which apply to all citizen data, have tended to be pursued by authoritarian governments such as Russia, China, and Iran, for which data localization laws have been viewed as an effective means to control information and to monitor the activities of their citizens. Post-Snowden, however, even democratic countries are now seriously considering these more expansive data localization measures. Most notably, Brazil, Germany, and India—countries that have witnessed some of the most virulent anti-NSA reactions—are now contemplating enacting significant data localization laws. The EU is also contemplating localization within its area of authority.

This is a deeply troubling development—not just for the technology firms of the United States who stand to lose customers and contracts as a result of these policies, but also for all the nations, firms, and individual Internet users who rely on the Web for economic trade and development, communications, and civic organizing. Not only do data localization policies fail to achieve their stated goals, they introduce a host of unintended consequences. By restricting data flows and competition between firms, localization will likely bring up costs for Internet users and businesses, may retard technological innovation and the Internet’s “generativity,” may reduce the ability of firms to aggregate services and data analytics through cloud services, and will surely curb freedom of expression and transparency globally. Ironically, data localization policies will likely degrade—rather than improve—data security for the countries considering them, making surveillance, protection from which is the ostensible reason for localization, easier for domestic governments (and perhaps even for foreign powers) to achieve. Restricted routing, often a core component of data localization rules, may be technically infeasible without initiating a significant overhaul of the Internet’s core architecture and governance systems, which itself would have significant negative effects. And perhaps most worrying, data localization policies—if implemented on a wide international scale—could have the effect of profoundly fragmenting the Internet,6 turning back the clock on the integration of global communication and ecommerce, and putting into jeopardy the myriad of societal benefits that Internet integration has engendered.

Unquestionably, online espionage, citizen privacy, government overreach, and the protection of fundamental rights are legitimate concerns of states and deserving of appropriate policy responses. Advances in surveillance technologies and offensive cyber capabilities have plainly outpaced the legal, normative, and diplomatic mechanisms needed to protect digital data. For government officials hoping to take meaningful action in response, data localization looks to be a convenient and simple solution. But a close examination reveals that it is not a viable remedy to any of the privacy, security, or surveillance problems governments hope to address. This paper discusses these points and seeks to expose the often dubious and pretextual motivations behind the new push for data localization, to explain how such measures are profoundly imprudent and often self-defeating, and to offer United States businesses and the United States government a few key recommendations for how to counter this problematic trend.

Ruling from U.S. District Court for D.C. in Ameziane v. Obama

Monday, July 21, 2014 at 3:54 PM

The U.S. District Court for the District of Columbia has denied Djamel Ameziane’s petition for habeas relief and granted the government’s motion to dismiss in Amezaine v. Obama.

You can find the court order here and the full memorandum opinion from Judge Ellen Segal Huvelle here.

Money quote:

Because it is undisputed that petitioner is no longer “in custody” for purposes of habeas jurisdiction under 28 U.S.C. § 2241, petitioner bears the burden of demonstrating some collateral consequence of his prior detention to defend his petition against the government’s claim of mootness. Gul v. Obama, 652 F.3d 12, 17 (D.C. Cir. 2011); In re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d 119, 127 (D.D.C. 2010), aff’d sub nom Chaman v. Obama, 2012 WL 3797596 (D.C. Cir. Aug. 10, 2012). Respondents do not seem to question the concreteness of petitioner’s alleged injury—the loss of his money—or the fact that his detention at Guantanamo caused the injury. Instead, respondents argue that the injury is unredressable through habeas relief and that petitioner’s entire case is moot. (Mot. to Dismiss at 15.) The Court agrees. First, pursuant to 28 U.S.C. § 2241(e)(2), the Court is without jurisdiction to consider claims for the recovery of petitioner’s money. Second, petitioner has failed to demonstrate that his injury is otherwise susceptible to judicial correction through traditional habeas relief. Third, because petitioner fails to demonstrate any collateral consequence of his prior detention that is susceptible to judicial correction, his case is moot.

Today’s Headlines and Commentary

Monday, July 21, 2014 at 9:05 AM

Day 14. Just about every media outlet in the country is reporting that the bloodshed in Gaza hit a horrific high this weekend, with the Associated Press, for example, reporting that at least 508 Palestinians and 20 Israelis have died in the two-week conflict. President Obama has called for an “immediate cease-fire,” writes the Guardian, and Secretary of State John Kerry will be in Cairo to negotiate an end to the crisis.

The Israeli military has distributed video footage of “an offensive tunnel network” leading from the southern Gaza Strip and under Israel’s border to explain its ground war, notes Bloomberg. Meanwhile Doctors Without Borders is calling on Israel to “stop bombing civilians trapped in the sealed-off Gaza Strip, and U.N. Secretary-General Ban Ki-Moon is calling on Israel to cease its “atrocious” shelling and “exercise maximum restraint,” reports Al Jazeera. Nicholas Kristof had an op-ed in the Times on Saturday pushing back against the moral partisanship dominating commentary on the crisis.

No definitive answers have emerged in the aftermath of the shocking downing of Malaysia Airlines Flight MH17 over rebel-held east Ukraine last Thursday. The crash site itself remained blocked off for most of the weekend. “The victims’ remains have been subject to indignities rarely seen in the aftermath of civilian airline crashes,” reported the Wall Street Journal yesterday, with bodies left lying out in the summer heat to decompose as the Organization of Security and Cooperation in Europe struggled to come to terms with rebels on transferring the remains to international investigators.
President Vladimir V. Putin issued a statement Monday, both calling for a “robust” crash investigation and accusing members of the international community of exploiting the disaster for political ends. So reports the New York Times. Kerry declared this weekend that an “enormous amount of evidence” points to Russian responsibility for training and arming the separatists believed to have shot down the commercial airliner. Australian Prime Minister Tony Abbott put it plainly in an interview with ABC: “Russian-controlled territory, Russian-backed rebels, quite likely a Russian-supplied weapon, Russia cannot wash its hands of this.”
Ukraine has released a video of what the government claims are telephone conversations between pro-Russian rebels about the flight’s black boxes; the conversations have yet to be authenticated. In a Times op-ed, Maxim Trudolyubov writes that “even if Russia has not directly supplied the insurgents with the missile technology that destroyed the plane, the sheer scale of the Russian propaganda machine effort against the West could not have continued without consequences.”
On Saturday, Russia also announced congressman Jim Moran (D-Va) and 12 other people connected with Guantanamo Bay and Abu Ghraib were banned from entering Russia, an an apparent response to the July 2 U.S. travel ban on a Russian parliament member, along with 12 Russians accused of human rights abuses. See more from the Miami Herald.
A suicide bomber targeted a police convoy in southern Afghanistan, reports the AP. No one has claimed responsibility for the attack.
At least 11 civilians were killed and 31 wounded in a Shiite neighborhood south of Baghdad, and a roadside bomb killed five. The AP reports.
The International Atomic Energy Agency (IAEA) is reporting that Iran has met the terms of the six-month nuclear deal brokered by six world powers last year; Iran has begun converting its lower-grade enriched uranium gas into oxide. Here‘s Reuters. On Friday, the Post reported that Iran and the G6 had agreed to extend nuclear talks through late November in hopes of striking a permanent deal.
China has sent a spy ship into international waters off of Hawaii during a large-scale, international, U.S.-led naval exercise. Beijing is one of 22 countries participating in the drills and is a newcomer; the spy ship maneuver is also an apparent first, though China sent a similar craft to observe last year’s exercises, reports Reuters. 
Al Jazeera has a film out on the FBI’s use of dangerous convicted felons as undercover informants specifically commissioned to target Muslim communities across the United States.
On Saturday, Edward Snowden teleconferenced into the Hackers on Planet Earth (HOPE) conference in New York City on Saturday and announced his commitment to developing anti-surveillance technologies. Reuters has details.
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

Monday, July 21, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, July 21 at 12 pm: The Woodrow Wilson International Center for Scholars will host a round table with Robert S. Litwak, Mitchell Reiss, and David Sanger on Iran’s Nuclear Chess: Calculating America’s Moves. The panel will address the outcome of the negotiations – whether talks are successful, extended, or if they breakdown – and discuss the implications for U.S. policy toward Iran moving forward. RSVP here.

Monday, July 21 at 2 pm: The Middle East Policy Council sponsors a Capitol Hill Conference in the Rayburn House Office Building on Obama’s Foreign Policy and the Future of the Middle East. Speakers will include Kenneth Pollack, Paul R. Pillar, Amin Tarzi, Chas W. Freeman, Jr. and Thomas R. Mattair will moderate. To RSVP, please email [email protected]

Monday, July 21 at 4 pm: The Center for a New American Security will hold an event entitled  Living with Cyber Insecurity: Reducing the National Security Risks of America’s Cyber Dependencies. The event will mark the role out of a major new report from CNAS on how to improve U.S. national security policymaking to address cyber insecurity. Panelists include DAn Kaufman, Mike Walker, Melissa Hathaway, Gary McGraw, Ben FitzGerald, and Dr. Richard Danzig. RSVP.

Tuesday, July 22, 8:30 am to 12:00 pm: Who Governs the Internet? And, in the changing regulatory environment, how do we strengthen the multistakeholder process and ensure that rogue governments or actors do not threaten the traditional openness and innovation of the Internet? The American Enterprise Institute will discuss these questions and more in a conversation on securing the multistakeholder process. Speakers will include Jeffery Eisenach, Danny Sepulveda, Steve DelBianco, Laura DeNardis, David Gross, Shane Tews, and Larry Strickling. RSVP here.

Tuesday, July 22 at 9 am: At the Newseum, the Bipartisan Policy Center, the Annenberg Public Policy Center of the University of Pennsylvania, and senior members of the 9/11 Commission will convene a conversation entitled, The 9/11 Commission Report: Ten Years Later. Speakers will examine the threat to the nation 10 years later, current homeland security challenges, successes, and innovations, and the difficult questions and oversight obstacles presently facing policy makers. RSVP.

Tuesday, July 22 at 9:05 am: Gen. William L Shelton, Commander of U.S. Air Force Space Command, and Barry Pavel, VP and Director of the Brent Scrowcroft Center for International Security, will discuss The U.S. Future in Space at an event hosted by the Atlantic Council. Register to attend here.

Wednesday, July 23 at 10 am: The House Foreign Affairs Committee will hold a hearing on the Terrorist March in Iraq: The U.S. Response. Brett McGurk, Deputy Assistant Secretary of State for Iraq and Iran will testify. You can find more information here.

Thursday, July 24 at 10 am: The next day, the Senate Foreign Relations Committee will also hold a hearing on the crisis in Iraq entitled Iraq at a Crossroads: Options for U.S. Policy. The hearing will consist of two panels. Brett McGurk, Deputy Assistant Secretary of State for Iraq and Iran, and Ms. Elissa Slotkin, acting Principal Deputy Under Secretary of Defense for Policy will compose the first panel. The second will consist of James F. Jeffery, Visiting Fellow at the Washington Institute for Near East Policy, Lt. Gen. (Ret.) Michael D. Barbero, and Dr. Kenneth M. Pollack of the Brookings Institution. Click here for more information.

Thursday, July 24 at 10 am: The Stimson Center hosts a conversation on US-Japan-China Relations: Prospects and Challenges. Dr. Seiichiro Takagi of the Japan Institute of International Affairs and Ms. Yun Sun, a fellow in the East Asia Program at Stimson, will discuss the future of trilateral cooperation in the Pacific and how these countries can coordinate policy on North Korea, environmental security, and the growing tensions in the region. Ms. Yuki Tatsumi  of Stimson will moderate. RSVP here. Read more »

Book Review: Grounded: The Case for Abolishing the United States Air Force by Robert M. Farley

Published by The University Press of Kentucky (2014)
Reviewed by Charles Blanchard
Sunday, July 20, 2014 at 3:08 PM

I seem to have a knack for working for military services at a time when they are viewed as the redheaded stepchildren of the Department of Defense—ugly, dispensable ducklings.  When I left my position as General Counsel of the Army in early 2001, pundits were challenging the continued relevance of ground forces in the 21st century. The incoming Bush Administration was already discussing significant cuts in the size of the Army.  The pundits, of course, were proven very wrong just a few months later.

And when I left my position as General Counsel of the Air Force last December, many pundits were having difficulty seeing the relevance of air power other than as a tool for close air support for ground troops.  Robert Farley, a political scientist and professor at the University of Kentucky, summarizes the case in his new book, Grounded: The Case for Abolishing the United States Air Force, that an independent Air Force was a mistake in 1947 and that it continues to be a mistake today.  Professor Farley argues that the Air Force’s independence was based on discredited theories of the decisive effect of airpower, that an independent Air Force results in an undue reliance on airpower as the solution to military problems, and that an independent Air Force distorts procurement decisions by placing an undue emphasis on technology.  At the root of Farley’s argument, however, is the argument that airpower alone is rarely decisive in modern warfare, and that there is thus no institutional need for an independent Air Force.

Perhaps not surprisingly, I find Farley’s book fundamentally flawed.  Most profoundly, Farley largely ignores the majority of the Air Force–its mobility and space forces.  Instead, mobility and space missions get only passing reference in the book.  This is unfortunate since it is our mobility and space assets that offer some of our most significant advantages over potential adversaries.  For example, we are one of the few militaries in the world that can project military power globally thanks to our fleet of tankers and large strategic airlift planes.  The importance of this capability was made plain in the recent Mali intervention when France largely relied on U.S. Air Force mobility forces to move its forces and refuel its fighters.  And U.S. Air Force space assets–used for intelligence, positioning, and communication–are vital to the ability of both ground and naval forces to conduct operations.  (And, of course, the U.S. Air Force’s GPS system, has become indispensible for global commerce.)

But even if you focus, as Professor Farley does, on combat airpower, his argument is flawed.  First, Farley offers an incomplete history of the effectiveness of combat air power in recent conflicts.  He is certainly correct that early optimism about airpower as a panacea for modern warfare has proven misplaced.  The strategic bombing campaigns during World War II did not have the decisive effect that early airpower advocates envisioned.  And, Farley is also correct that the bombing campaigns in Vietnam failed to accomplish their goal.  But Farley’s unstated assumption that airpower can never be decisive apart from support for ground troops cannot be reconciled with history.  As even Farley admits, without the NATO air offensive in Kosovo, Serbia would have been unlikely to come to the table.

And there are other, more recent examples as well.  While the intensive bombing campaign against Iraq known as Operation Desert Fox in 1998 was heavily criticized at the time as ineffective, we have since learned that the operation was largely responsible for Saddam Hussein’s decision to end his WMD efforts.   Successful U.S. military operations in Afghanistan in 2002 and in Libya in 2011 were largely exercises in air power.  And had we intervened in Syria, the focus of our efforts would have been on the use of air power.  Simply put, airpower is not a panacea that can replace the need for ground and naval forces–history has made that point abundantly clear–but in some circumstances, combat air power can be an important tool of national power.

Second, my experience with Air Force leaders is completely inconsistent with the “airpower can do it alone” culture that Farley asserts pervades the Air Force.  To the contrary, during the debates about intervention in Libya and Syria, the Air Force leaders I knew were very careful to caution civilian leadership about the costs and limits of air power alone in these conflicts.  These same leaders also continually reminded the force that we were part of a joint force and that we were answerable to the requirements of combatant commanders in a joint fight. The result was a burst of energy in developing new close air support tools (such as sniper pods on B-1 bombers), in dramatically increasing intelligence, surveillance reconnaissance tools for the joint fight, and in coordinating operational concepts such as Air-Sea Battle with the Navy.  And rather than assuming that technology can overcome the “fog of war”, as Farley asserts, these leaders took great pains to make sure that planners making force structure decisions and war plans took full account of uncertainty, including assuming the likelihood that there would be losses and mistakes during conflict.  Undoubtedly as the result of history, the Air Force of today has a more nuanced and realistic view of air power than Hap Arnold or even John Warden.

Third, as is the case with many critics of the Air Force today, Farley largely dismisses or ignores the most critical combat mission for airpower in the 21st century–air supremacy.  In our most recent conflicts, such as Iraq and Libya, air supremacy was rather quickly achieved and largely taken for granted.  This allowed all forces–ground, naval and air–freedom of action without concern for attacks from enemy air forces.  This includes the ability to use drone forces, for surveillance or attack, because the current generation of UAVs is largely defenseless against air defense systems.

We have thus come to assume that air supremacy is our birthright, rather than something that must still be won–and will be contested by conventional state adversaries.  In the potential battlefields of the future–against potential adversaries such as China and Iran–air supremacy will be a hard fought battle. Until that battle is won, neither naval nor ground forces can be fully effective.  It is this mission (which is becoming increasingly important as more nations develop 5th generation aircraft and sophisticated integrated air and missile defense systems) that will need to be a central focus of the Air Force in the 21st century.

The case for the decisiveness of air power may have been oversold in the 1940s, but the continued need for air power of all types–combat, mobility, space and cyberspace–cannot be seriously disputed.  Just as the pundits in the late 1990’s were profoundly wrong to question the continued importance of ground forces, Professor Farley is wrong to suggest that airpower should be given a back seat to ground and naval forces.

(Charles Blanchard is a partner at Arnold & Porter LLP, where he practices national security law. He served as General Counsel of the Army from 1999-2001, and General Counsel of the Air Force from 2009-2013.)

The Foreign Policy Essay: The Trouble With Nation-Building

Sunday, July 20, 2014 at 10:00 AM

Editor’s Note: As Iraq collapses into yet another bloody civil war and chaos sweeps across the Middle East, Americans are once again hearing calls for rebuilding the institutions and societies of the Middle East echoing through the halls of Washington. However, the U.S. record of success when it comes to nation-building is less than stellar, and it is not clear if the United States has the will or the skill to do it any better in the future. Dov Zakheim, who served as civilian coordinator for Afghan reconstruction and as a senior Department of Defense official in the George W. Bush administration, questions whether U.S. military forces should be involved in nation-building and calls instead for U.S. allies to play a leading role going forward.


Nation-building as a concept has a history that dates back at least to the creation of the United States. The nineteenth-century revolutions against Ottoman rule in the Balkans, followed by the emergence of European nation-states in the aftermath of the First World War, all called for, and led to, what is today termed “nation-building” (and is actually state-building, as the latter focuses on primarily on supporting central governments). Nation-building was also attempted in the Ottoman Empire’s Middle Eastern territories, which obtained their independence during the decades after the Great War. In most of these cases—Israel being a notable exception—the states were the artificial creation of European officials, notably the 1916 Sykes-Picot agreement. In other words, in the aftermath of Sykes-Picot there was a real need to create nations where none—other than the notions of the umma (the community of Muslims), the remnants of the Ottoman order, and pan-Arabism—had existed within the boundaries that emerged from that agreement.

Nation-building became the subject of political debate in the 1990s, when it took on a specific connotation in the aftermath of the Balkan wars. The emergence of six new states from the ashes of the former Yugoslavia was accompanied by a need for outside support to foster good governance; ensure civilian control of the military; provide for the rule of law; encourage free enterprise; expand educational opportunity for men and women; and nurture civil society, such as trade and professional unions and a free press. At issue was whether, and to what extent, the Clinton administration should undertake such efforts, and, more particularly, whether military forces stationed in the Balkans were the appropriate vehicles for doing so.

Zakheim photo with border-3The American defeat of the Taliban, followed by the invasion of Iraq, added more urgency to these debates. In both cases, the Bush administration undertook, with the support of many governments but with America clearly in the lead, to rebuild both states. Washington met with some initial success in Afghanistan, though in fact nation-building was a misnomer with respect to that country. Afghanistan had been an independent state several decades before the United States came into being. What Afghanistan required, and its leadership requested, was support for the central government’s attempts to assert its authority throughout the country. In addition, Kabul sought help in its efforts to bolster its economy and educate its populace. Initially, American-led efforts met with success. Moreover, the relatively small military presence in the country ensured that it was traditional aid organizations, both governmental and non-governmental, as well as other civilian agencies, such as Save the Children and Oxfam, that took the lead in helping to put Afghanistan back on its feet.

The war in Iraq diverted American attention from Afghanistan, as Washington sought to stabilize and then “rebuild” that troubled country. Once again it was Washington that led an international coalition, smaller and less capable than that in Afghanistan, first to defeat Saddam’s forces, and then to reconstruct the country. In Iraq, however, the large American military presence led those in uniform to take the lead in the nation-building effort. In addition to the difficulties that the military faced in carrying out missions for which they had not actually trained, Washington had to confront the reality that, after nearly 70 years of independence, Iraqis remained more loyal to their tribes, ethnic groups, and co-religionists than to what was, after all, an artificially created state. Finally, security issues overshadowed development programs, and both in Iraq, and increasingly in Afghanistan once a revived Taliban threatened that country’s stability, the results were poorly planned projects that led to tens of billions of dollars in waste, fraud, and abuse.

To be fair, despite the Taliban’s resurgence and the presence of tens of thousands of American and coalition troops in Afghanistan, Washington and its partners achieved considerable progress in some areas, notably education for men and women. Far less success was achieved with respect to economic development, where drugs once again became the country’s major export; good governance, where corruption was rampant; rule of law (as understood in the West), where in many parts of the country Shari’a (Islamic law) and/or tribal law was very much in force; and civilian control of the military, when in fact private armies continued to function. Washington achieved even less in Iraq, which currently is on the verge of returning to the pre-World War I boundaries that divided the country into three Ottoman provinces. Read more »

This is Seriously Weird

Saturday, July 19, 2014 at 7:10 PM

Russia slaps a travel ban on Rep. Jim Moran, Judge Gladys Kessler, and a bunch of people connected to Guantanamo and Abu Ghraib. That’ll show ‘emFrom the Associated Press:

MOSCOW (AP) — Russia has placed a U.S. lawmaker and 12 other people connected with the Guantanamo Bay detention camp and the Abu Ghraib prison in Iraq on its list of those banned from entering the country.

In a statement Saturday, Foreign Ministry spokesman Alexander Lukashevich said congressman Jim Moran, a Democrat from Virginia, was banned in response to the July 2 U.S. ban on Russian parliament member Adam Delimkhanov. He said Moran had been repeatedly accused of financial misdeeds but didn’t elaborate.

The other 12, including Guantanamo commander Rear Adm. Richard Butler and Lynndie England, a former soldier convicted of abusing prisoners in Abu Ghraib, were banned in response to the United States’ adding 12 names in May to the so-called Magnitsky List of Russians sanctioned for human rights abuses.

Retired Brig. Gen. Ricardo Sanchez, who commanded U.S. ground forces in Iraq in 2003-2004, retired Col. Janis Karpinsky whose command included the Abu Ghraib prison, and Gladys Kessler, a federal judge who rejected a Guantanamo inmate’s complaint of being force-fed while on hunger strike, were also included.