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The Precise (and Narrow) Limits On U.S. Economic Espionage

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Monday, March 23, 2015 at 7:09 AM

This Intercept story on New Zealand’s surveillance of candidates for director general of the World Trade Organization sparked a related conversation yesterday on twitter about the exact scope of U.S. economic espionage.  There is a lot of confusion about this, I think.  Here is the U.S. position as I understand it, followed by a few comments:

The United States engages in economic espionage and doesn’t deny it.  As former CIA Director Stansfield Turner stated in 1991, “as we increase emphasis on securing economic intelligence, . . . we will have to spy on the more developed countries—our allies and friends with whom we compete economically.”  Former CIA Director James Woolsey acknowledged in 2000 that the United States steals economic secrets from foreign firms and their governments “with espionage, with communications, with reconnaissance satellites.” Woolsey listed three “main areas” (sanctions, bribery, dual-use technologies) where the United States “target[s] foreign corporations and the government assistance to them.”  But is no reason to think these areas are exclusive.

The United States’ limits itself in one very narrow context.  After acknowledging that the United States engages in economic espionage, DNI Clapper said in 2013: “What we do not do . . . is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of – or give intelligence we collect to – US companies to enhance their international competitiveness or increase their bottom line.”  This very carefully worded statement is the only admitted  U.S. limit on economic espionage.  Note what it permits.  It permits economic espionage of foreign governments and institutions.  It even permits theft of trade secrets from foreign firms.   It just doesn’t allow such theft “on behalf of” U.S. firms, and it doesn’t permit the government to give the stolen information to U.S. firms.  Even this limitation is qualified yet further.  The USG says it does not steal trade secrets on behalf of U.S. firms (or give stolen trade secrets to U.S. firms) in order “to enhance their international competitiveness or increase their bottom line.”  But it would be consistent with this statement for the USG to steal trade secrets on behalf of U.S. firms, or to give the stolen trade secrets to U.S. firms, for some other purpose.

Even though the United States does not steal trade secrets to give to U.S. firms to enhance their competitiveness, its economic espionage benefits U.S. firms in the aggregate.  A 1996 NRC Report (p.99) says: “According to the National Security Agency (NSA), the economic benefits of SIGINT contributions to U.S. industry taken as a whole have totaled tens of billions of dollars over the last several years.”  And that was in 1996.         

Two comments:

First, it should not be surprising that the United States engages in economic espionage.  Nor should it be surprising that New Zealand, or the United States, would spy on candidates for Director General of the WTO.  I am confident that many nations tried to get intelligence about those candidates, for the Director General plays a consequential role in global trade and economic policy.  Gathering intelligence from public actors about global economic policy is a very old aim of national intelligence.

Second, Glenn Greenwald asks on Twitter: “why is giving to corps radically diff than advantage in econ negotiations?”  I interpret this question to mean: Why is it acceptable to steal economic secrets to gain advantage in trade negotiations or in global economic affairs more generally, but not acceptable to steal economic secrets from foreign firms to aid particular U.S. firms?  I don’t know the answer for sure.  But I think the answer is simply that the narrow carve-out best serves U.S. interests.

As Woolsey noted:

American industry is technologically the world leader.  It is not universally true.  There are some areas of technology where American industry is behind those companies in other countries, but by and large, American companies have no need nor interest in stealing foreign technology in order to stay ahead.

On the whole the United States doesn’t gain much from stealing trade secrets from foreign firms to give to U.S. firms.  But the United States and its firms have a lot to lose when other nations engage in this discrete form of economic espionage against U.S. firms.  Thus the best rule for the United States is one that tries to limit this form of economic espionage.  However, economic espionage outside this narrow context – not in order to benefit discrete U.S. firms, but rather to advantage the United States economy and U.S. firms generally on the global scale (in trade negotiations, e.g.) – serves U.S. interests, especially since the USG has the most powerful capabilities in this context.  And so the USG thinks this form of economic espionage is acceptable.

It is not surprising that the United States would seek to craft a nuanced rule about economic espionage that serves its interests.  This happens all the time in international affairs.  Nor is it surprising that so many nations are unimpressed with the United States’ attempt to limit the one form of economic espionage (theft of foreign corporate trade secrets to give to a local firm) that so obviously harms U.S. interests, especially since the United States engages in other forms of economic espionage.

The Week That Will Be

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Monday, March 23, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, March 23rd at 12 pm: The Wilson Center will host a conversation with Mark Katz on Russian-Iranian Relations in the Shadow of Ukraine. As Russian-Western ties deteriorate, how will Moscow and Tehran negotiate their relationship? RSVP here.

Monday, March 23rd at 2 pm: The Center for Middle East Policy at Brookings will host a discussion examining Strained Alliances: Israel, Turkey, and the United States. What role can the United States play in uniting its traditional regional allies? How can the three work together to advance regional security? Kemal Kirsci will moderate a conversation with Dan Arbell, Nimrod Goren, and Sylvia Tiryaki. More details here.

Monday, March 23rd at 3:30 pm: At the United States Institute of Peace, Illan Goldenberg, William B. Quandt, Tamara Cofman Wittes, and Lucy Kurtzer-Ellenbogen will outline what lessons we can draw from previous peace talks for the future of Israeli-Palestinian Diplomacy. Register here.

Tuesday, March 24th at 2 pm: Join the Project on U.S. Relations with the Islamic World at Brookings for the launch of Jessica Stern and J.M. Berger’s new book, ISIS: The State of TerrorWill McCants will moderate a discussion on the threat posed by ISIS and how the government can respond. Brookings has more information.

Wednesday, March 25th at 12 pm: In a region succumbing to terror, Lebanon has succeeded in keeping a lid on the sources of tension and extremism in the country. A key figure in this fight, Nouhad Machnouk, Minster of Interior and Municipalities for the Government of Lebanon, will deliver an address at the Wilson Center on his government’s approach entitled Facing Terrorism: A Lebanese Perspective. RSVP.

Thursday, March 26th at 8:30 am: The House Foreign Affairs Committee will hold a hearing on the Administration’s Strategy to Confront ISIS. General John Allen, Special Presidential Envoy for the Global Coalition to Counter ISIL, and General Michael Fantini, Middle East Principal Director for the Office of the Assistant Secretary of Defense for International Security Affairs, will testify. More information on the committee’s website.

Thursday, March 26th at 2 pm: The Brookings Institution will host Chief Executive Officer of Afghanistan Abdullah Abdullah for a discussion on the domestic and security challenges facing his country, the future of the U.S.-Afghanistan Strategic Partnership, and the future of Afghanistan after the eventual departure of American forces. Michael O’Hanlon will provide introductory remarks and Bruce Riedel will moderate the discussion. RSVP or register for the webcast here.

 

Employment Announcements (More details on the Job Board)

Lawfare Intern

Internship Summary

This summer internship, beginning in June 2015, is a paid opportunity for undergraduate students, recent college graduates or graduate students with an interest in national security.  Interns will be responsible for helping to run and maintain Lawfare, a website devoted to serious, non-ideological discussion of national security legal and policy issues.

Lawfare has emerged as the internet’s indispensable resource for information and analysis on the law of national security. Devoted to “Hard National Security Choices,” the site features top-quality writing and analysis from experts on developing stories in the national security arena, relevant legislation, and judicial opinions. It is a digital magazine that includes a podcast, a book review, research tools, a daily news roundup, an events calendar, and exhaustive coverage of events other media touch only glancingly.

This internship pays an hourly rate of $10.50, and ideally applicants will work full-time (40 hours per week) but no less than 28- 32 hours per week, during regular business hours (dependent on the applicant’s school schedule), with some flexibility around an academic course schedule. The internship is based in Washington, DC and will last approximately 10- 12 weeks (depending on the start date).

Primary Responsibilities

The Lawfare intern’s responsibilities fall into three categories:

Writing:

  • Work with Associate Editor to monitor national security and foreign policy developments, and 2-3 times per week, co-write “Today’s Headlines and Commentary.”
  • Work with Associate Editor to co-write “The Week that Will Be,” a weekly feature that outlines upcoming events, academic announcements, and employment announcements.
  • Work with the Associate Editor to co-write a regular deep-dive analytical piece on a relevant national security law and policy issue.
  • Sole-author “The Week that Was,” a weekly piece that provides a guide to the week’s Lawfare

Research:

  • Provide research support to the Lawfare editorial team as needed. Current projects include a book manuscript on data and technology proliferation and their implications for security; a paper on technology and privacy; and a paper on military justice.
  • Work to develop the Lawfare Wiki by taking a deep research dive into one or two areas of national security law. The intern will identify key primary source materials, summarize relevant documents, and create and develop the topic page on Lawfare.

Maintaining the blog:

  • Tag and categorize all Lawfare posts
  • Track relevant Congressional hearings
  • Track and add relevant events to the Events Calendar

In addition to providing support to the Lawfare directly, interns will have the opportunity to attend internal meetings, hearings on Capitol Hill, local think tank events, professional development workshops, and public Brookings events as well as participate on Brookings sports teams and network with other interns throughout the Institution.

Education/Skills/ Experience

Graduate or undergraduate students (who has completed their sophomore year) working towards a degree in government, political science and law are encouraged to apply.  Recent college graduates are also eligible to apply.  Our most successful interns have very strong writing, analytical, and research skills, as well as excellent verbal and organizational skills—preferably demonstrated through prior independent research or previous experience as a research assistant.

Application Procedure

Applications will be considered on a rolling basis until the position is filled. To be considered, applicants must be authorized to work in the United States.

 A complete application will include the following items:

  • Cover letter highlighting your educational experience and skills, along with an explanation of how this internship will contribute to your professional career goals.
  • Resume
  • Names and contact information for three academic or professional references
  • Original writing sample ( no more than two pages)

Please email a complete application with “Your Name — Lawfare” in the subject line to Cody Poplin at [email protected] 

Brookings is an equal-opportunity employer that is committed to promoting a diverse and inclusive workplace. We welcome applications from all qualified individuals regardless of race, color, national origin, gender, sexual orientation, age, religion, physical or mental disability, marital status, veteran status, or other factors protected by law.

Successful completion of a background investigation is required for employment at Brookings. No phone calls please.

For examples of previous intern projects, see the author pages below:

Sebastian Brady

Benjamin Bissell

Tara Hofbauer

Read more »

Does the Supreme Court Follow the Recommendation of the Solicitor General in Foreign Relations Cases in which the Court has issued a CVSG?

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Sunday, March 22, 2015 at 3:30 PM

Sometimes when making a decision whether to grant a petition for a writ of certiorari in a case to which the United States is not a party, the Supreme Court formally issues a “call for the view of the Solicitor General” (CVSG).   The Solicitor General responds with a brief arguing that certiorari be granted (or not), in whole or in part. But does the Court follow the SG’s recommendation?  An empirical analysis based on data from OT ’98 through OT ’04 concluded that “of the 83 cases in which the SG recommended a straight grant, deny, or GVR, the Court followed the recommendation 79.5% of the time (66 cases).” It also found that “the likelihood that the Court will follow the suggestion of the SG does not appear to depend on what the SG recommends.”

That data is a decade or more old, however, and it does not consider foreign relations cases specifically. I have argued that on merits questions in foreign relations cases, the Court seems increasingly skeptical of the views of the Executive Branch, and I have also noted some foreign relations cases in which the Court ignored the views of the Solicitor General on whether or not to grant certiorari, even after calling for those views by issuing a CVSG.

To update the CVSG data with a contemporary snapshot of the Court’s work, I had research assistants gather all cases from October 2012 through the present which were CVSG’d, and in which the Court has either granted or denied certiorari. We excluded CVSGs in other contexts, such as motions for leave to file a complaint under the Court’s original jurisdiction, and we consolidated petitions and recommendations in cases which were later consolidated by the Court. That left a total of 44 cases. In 30 cases, the Court followed the views of the SG, in 14 cases it did not follow the views of the SG, giving the SG a win rate of 68%. There were a total of 9 foreign relations, national security, or international law cases. Of those, the Court followed the SG in 6 cases for a win rate of 67%.

These numbers appear to show a modest decline in the SG’s win rate, but the total number of cases is obviously small. There was one case in which the SG recommended denying certiorari, but if certiorari was granted, it wanted an additional question added. The Court granted cert and added the additional question. We count this as a win for the SG, which arguably means 68% slightly overstates the win rate. Nevertheless, it is possible that the Court issues more CVSGs in the first place, meaning that even with a decreased win rate, the SG’s views might hold sway in a larger absolute number of cases. Finally, cases in which the SG recommended denying certiorari on two questions in the petition, and Court granted cert on one question, were characterized as a loss for the government.

Our data did not show a difference between foreign relations and other cases in terms of how likely the Court was to follow the views of the SG after issuing a CVSG. Thus it appears that the Court does not treat foreign relations cases as presenting an exceptional need to follow the views of the SG on whether to grant or deny certiorari. Again, however, this analysis includes only a very small number of cases, and it also does not consider whether the Court is more or less likely to CVSG foreign relations cases at all.

I am happy to share our spreadsheet with interested readers.

The Foreign Policy Essay: AQ vs. IS and the Battle for the Soul of Jihad

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Sunday, March 22, 2015 at 10:00 AM

Editor’s Note: This piece is based on a longer article I co-authored with my Brookings colleague Jennifer R. Williams, which ran in The National Interest

***

Almost overnight, the Islamic State sent its enemies reeling—and turned U.S. policy in the Middle East upside down. As troubling as the Islamic State’s successes are for U.S. officials, there is one person for whom they are even more troubling: Ayman al-Zawahiri. Although the Al Qaeda leader might be expected to rejoice at the emergence of a strong jihadist group that delights in beheading Americans (among other horrors), in reality the Islamic State’s rise risks Al Qaeda’s demise. When Islamic State leader Abu Bakr al-Baghdadi rejected Al Qaeda’s authority and later declared a ca­liphate, he split the fractious jihadist move­ment.

The two are now competing for more than the leadership of the jihadist move­ment: they are competing for its soul.

Who will emerge triumphant is not clear. But the implications of one side’s vic­tory or of continuing division are profound for the Middle East and for the United States, shaping the likely targets of the jihad­ist movement, its ability to achieve its goals, and the overall stability of the Middle East. The United States can exploit this split, both to decrease the threat and to weaken the movement as a whole.

The Islamic State and Al Qaeda fundamentally differ on whom they see as their main enemy, which strategies and tactics to use in attacking that enemy, and which social issues and other concerns to emphasize.

Although the ultimate goal of Al Qaeda is to overthrow the corrupt “apostate” regimes in the Middle East and replace them with “true” Islamic governments, Al Qaeda’s pri­mary enemy is the United States, which it sees as the root cause of the Middle East’s problems. The logic behind this “far enemy” strategy is based on the idea that U.S. mili­tary and economic support for corrupt dic­tators in the Middle East—such as the lead­ers of Egypt and Saudi Arabia—is what has enabled these regimes to withstand attempts to overthrow them. By targeting the United States, Al Qaeda believes it will eventually force the United States to withdraw its sup­port for these regimes and pull out of the region altogether, thus leaving the regimes vulnerable to attack from within.

The Islamic State does not follow Al Qa­eda’s “far enemy” strategy, preferring instead the “near enemy” strategy, albeit on a re­gional level. As such, the primary target of the Islamic State has not been the United States, but rather apostate regimes in the Arab world—namely, the Asad regime in Syria and the Abadi regime in Iraq. Baghdadi favors first purifying the Islamic community by at­tacking Shi’a and other religious minorities as well as rival jihadist groups. The Islamic State’s long list of enemies includes the Iraqi Shi’a, Hizballah, the Yazidis (a Kurdish eth­noreligious minority located predominantly in Iraq), the wider Kurdish community in Iraq, the Kurds in Syria and rival opposition groups in Syria (including Jabhat al-Nusra). And (surprise!) the Jews. Read more »

Further Reflections on NOBUS (and an Approach for Balancing the Twin Needs for Offensive Capability and Better Defensive Security in Deployed Systems)

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Saturday, March 21, 2015 at 8:14 PM

In a previous post, I commented on the Nobody-But-Us (NOBUS) view of the world. My original post says that the real technical question raised by NOBUS is how long nobody-but-us access can be kept for a given proposed system.

Since then, I’ve received comments from a number of people who have cited one example or another that NOBUS is fundamentally flawed as a technical concept. No, it isn’t. All the examples prove is that particular instantiations of NOBUS have been flawed. They don’t prove the general case in any way.

Still, apart from refusal to deal with the substance of the technical question regarding NOBUS, these comments raise other issues, and this note is a response.

To me, the technical argument against NOBUS has three distinct parts.

Part 1 is that if NSA finds a vulnerability and uses it, others can find it and exploit it as well. There is some evidence to support this part. An emergency patch issued by a vendor (e.g., http://www.theregister.co.uk/2010/08/02/emergency_microsoft_update/), and there have been many over the years, at least suggests that a found vulnerability can be exploited on a short time scale. We don’t know if the NSA was previously aware of the vulnerability in any given case, but it may have been. Further, a strong logical case for Part 1 can be made as well—use of a vulnerability potentially (usually?) reveals it, and then others can exploit it because its use reveals its existence.

Part 2 is that if NSA finds a vulnerability and stockpiles it (and does not use it—that’s what stockpiling means), others can still find it and exploit it as well. That’s true in principle, but I have never seen evidence to support it. Of course, what is actually in the NSA stockpile is secret, so it’s unlikely that we would know one way or another if such evidence exists. In any case, if Part 2 is operative, NSA is acting as a no-op with respect to the security of deployed systems—the outcome of Part 2 is the same as if NSA did nothing at all, or indeed if the vulnerability finders at NSA did not exist.

There’s one caveat to my Part 2 analysis I’ve occasionally heard discussed but I haven’t seen in writing. The vulnerability stockpile is going to be kept secret—but it too has some likelihood of being compromised. In the long run (i.e., given infinite time), every vulnerability in the stockpile will be revealed. This point suggests the need for another risk analysis—how long does it take for a given vulnerability (kept secret in the stockpile) to be revealed? Knowing that number may provide useful information for NSA’s knowing when to reveal it to the vendor—keeping a vulnerability in the stockpile indefinitely makes no sense, but keeping for a time that is short compared to the expected time of compromise but long enough to be potentially useful for offensive operations might be a reasonable operative rule that balanced the need for maintaining offensive capabilities against the need for improving security.

Part 3 is that if NSA implants a vulnerability—i.e., puts in a vulnerability that is not already present–others can find it and exploit it. Part 3 has a more serious implication than Part 2—here NSA is affirmatively weakening the security of a system to some degree. The degree by which it is weakening the security is a function of the risk analysis I proposed in my original note. My original note argued that if the expected time for disclosure of the secret knowledge required to gain access is long, then that weakening of security may be acceptable. But there’s no question that insertion of a vulnerability does weaken security.

On the other hand, I would argue that a deliberately implanted NSA vulnerability intended to grant NOBUS access would be specifically designed with features to protect the NOBUS aspect of it, and thus others would find it more difficult to exploit as compared to the usual vulnerabilities in question, since these vulnerabilities are generally introduced by accident and thus aren’t deliberately made hard to exploit. Of course, this is an empirical question, but in any case, no one has submitted any evidence that this has happened.

As in my original post, this post does not take a position on the policy desirability of NOBUS access—it merely tries to separate the relevant technical dimensions of NOBUS from the value judgments about its desirability.

The Lawfare Podcast: General Michael Lehnert on Closing GITMO

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Saturday, March 21, 2015 at 1:55 PM

This week, we invited Major General Michael Lehnert (Ret.), the first commander of the U.S. detention facility at Guantanamo Bay, Cuba, to chat on the show. In January 2002, General Lehnert deployed to Guantanamo Bay as Commander of Joint Task Force 160 with the mission to construct and operate the detention facilities for Taliban and Al Qaeda detainees. He is now one of the more prominent voices calling for the closure of the prison facility. In the interview, General Lehnert describes those early days of uncertainty before GITMO became “GITMO,” how, while facing a policy vacuum in Washington, he built and managed the facility, and what he thinks should be done with the remaining detainees now. In the end, he offers advice for how future policymakers can avoid  mistakes when conducting critical missions and making hard national security choices.

You can read General Lehnert’s most recent piece calling for the closure of Guantanamo Bay detention facility at Politico

The Week that Was: All of Lawfare in One Post

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Saturday, March 21, 2015 at 9:55 AM

Israelis went to the polls on Tuesday and gave Prime Minister Benjamin Netanyahu and his Likud party a decisive victory. Making almost as much news as the election results themselves were the tactics Netanyahu employed to help secure his third consecutive term. After previewing the elections in this week’s Rational Security podcast, Ben noted three of Netanyahu’s more controversial tactics: his intensely partisan speech before the U.S Congress, his race-baiting on election day, and his last-minute statement in an interview that there would be no Palestinian state on his watch. Ben accepted that, if taken individually, these actions could perhaps be explained away, but asserted that, when taken collectively, Netanyahu’s tactics may have profound deleterious effects on the U.S.-Israeli relationship.

While Yishai Schwartz agreed with Ben’s conclusion that Netanyahu’s tactics may well harm Israel, he took issue with the widespread characterization of Netanyahu’s statement regarding Palestine as a “reversal.” Yishai argued that Netanyahu’s support for a Palestinian state has always been largely theoretical, contingent upon concessions that no Palestinian partner is likely to make. Consequently, Netanyahu’s “reversal” was more of a prediction—he doesn’t think Palestinian leaders will accept his conditions, so he doubts there will be a Palestinian state under his rule—than a change of policy.

So, when Netanyahu asserted (after all votes had been cast, of course) that he had not, in fact, changed his position on Palestinian statehood, Yishai did not join in the chorus of commentators criticizing Netanyahu’s disingenuous pandering. Rather, he reiterated his earlier argument and pointed out that claims that Netanyahu isn’t serious about a two-state solution are problematic because of the vagueness of the “two-state solution” concept. Netanyahu may be just as committed to a two-state solution as Palestinian leader Mahmoud Abbas; the problem is that the two leaders take “two-state solution” to mean two mutually-exclusive things.

Another controversy coloring the Israeli election was the emerging Iranian nuclear deal. Stephen Haggard detailed how lessons drawn from the failed North Korean Agreed Framework can be applied to the arguments made in Netanyahu’s speech before Congress and the 47 senators’ open letter to Iran. The efficacy of both the speech and the letter depend on the assumption that intentionally torpedoing whatever supposedly unacceptable deal is being reached will help produce a better one. However, the lessons of North Korea, Haggard argued, do not support this assumption.

Elsewhere in his piece, he noted that Netanyahu’s speech failed to mention some of the progress already made in limiting the Iranian nuclear program through the Joint Plan of Action. Yishai added that it’s crucial to note the ways in which Iran remains out of step with international norms regarding nuclear programs. While Iran’s failure to implement the Additional Protocol may not constitute a formal violation of international law, it does represent an attempt to avoid scrutiny of its nuclear program. Moreover, by attempting to revert to a laxer version of Code 3.1—a regulation governing reporting requirements—Iran appears to be in direct violation of its international responsibilities.

These issues aside, the P5+1 and Iran do appear to be within striking distance of a deal. And while the brouhaha over the Senate’s letter to Iran may be subsiding, domestic wrangling in the United States continues. Last Saturday, White House Chief of Staff Denis McDonough sent a letter to Senate Foreign Relations Committee Chairman Bob Corker (R-TN) responding to a letter from Corker asking if the Obama administration plans to take a deal to the United Nations before it takes it to Congress. Jack gave us his thoughts on the letter, which he read as answering Corker with a qualified “Yes”. Jack noted that, while McDonough’s response seems reasonable in that it asks Congress for no more room to negotiate than a Republican Congress could be reasonably expected to give a Republican president, it did not definitively answer whether a U.N. Security Council resolution would impose legal restrictions on the United States.

Jack added that the Supreme Court may indirectly affect the outcome of this executive-legislative wrestling match. In its forthcoming decision in the Zivotofsky case, the Court will deal with how the various powers exercised in the conduct of foreign affairs should be divided between the executive and legislative branches. While the issues at play in the case are distinct from those in the Iran dispute, Jack noted that whichever branch is victorious in the Zivotofsky case will, at the very least, see its case for or against the deal (as the case may be) get a significant political boost.

Disagreement between the Obama administration and Congress is not, of course, limited to the Iran talks. The AUMF against ISIS (a group detailed in a new book by J.M. Berger and Jessica Stern that Jack recommended) proposed weeks ago by the Obama administration has gone nowhere. Jack provided some reasons for the lack of progress that go beyond partisan gridlock. For one, as Lawfare writers have said since its publication, the AUMF doesn’t really change anything; the current operations against ISIS are supposedly already authorized by the 2001 AUMF, which this AUMF doesn’t touch. Because the proposal changes almost nothing, there’s no urgency for Congress to do anything about it. Finally, because there’s no urgency to do anything about the AUMF, Congress is free to play politics with it.

And while members of Congress take this opportunity to grandstand, the Syrian civil war, to which ISIS is party, rages on. Tamara Cofman Wittes wrote about her recent visit to a Jordanian refugee camp housing Syrians displaced by the war. She described the heroic labors of humanitarian organizations working in the camps but noted that the camp’s young Syrians, the population on which a peaceful, stable Syria must be built, need education and opportunities far beyond those which the camp can provide. Wittes quotes one young refugee: “We live in a virtual world … you eat, sleep, wake, go to work, but you are not alive. If you have no chance to advance your hopes, it’s like you are dead.” By providing such educational opportunities, the logic goes, these young, displaced individuals can be dissuaded from joining the violent, radical militias wreaking havoc in Syria.

But an education alone is not enough to keep someone from being radicalized. As Western governments have increasingly found in their attempts to stop the radicalization of their citizens, countering violent extremism is a difficult process with no clear best practices. While there may not be a golden bullet to counter violent extremism, Anastasia Norton, Alysha Bedig, and Harriera Siddiq argued in this week’s Foreign Policy Essay, government efforts can nonetheless be improved. By shifting the focus from combatting ideology, which currently receives the lion’s share of attention, to countering behavior, radicalization can be more effectively checked.

Wells broke the news that Paul Oostburg Sanz, the Navy’s General Counsel, has been designated as interim Convening Authority for the Guantanamo military commissions, a post he will fill for the second time. As the commissions limp along, another terrorist was recently convicted in a Brooklyn federal court. Diane Webber told the story of how Abid Nasser, a Pakistani man arrested in the United Kingdom while planning a terrorist attack on the United Kingdom, ended up being tried and convicted before a court in Brooklyn.

The Brennan Center released a report this week entitled “What Went Wrong with the FISA Court.” Wells linked us to the report, which includes a foreword by former FISA Court judge James Robertson, and summarized its key findings.

Marko Milanovic highlighted some interesting aspects of a new report issued by the British Parliament’s Intelligence and Security Committee (ISC), the body tasked with overseeing the GCHQ, a British intelligence and surveillance agency. While he notes that the report unsurprisingly clears the agency of any serious legal violations—the Guardian recently called the ISC the “slumbering scrutineer,” he notes—the report does provide a valuable overview of the current legal regime governing surveillance by British intelligence agencies.

The report was commissioned as a result of the Snowden revelations, and this week Ben discovered that, in what was undoubtedly a typographical error, that the Washington Post had fingered outgoing NSA General Counsel Raj De as the man behind those same revelations. All kidding aside, Mr. De has stepped down after three years as the NSA’s top lawyer and Lawfare wishes him the best of luck in his future endeavors.

Ben also subjected the New York Times to that same close reading and found that, in an editorial criticizing the extremely light plea deal David Petraeus recently received, the Times appeared to, without providing any proof, accuse Petraeus of routinely divulging classified information to journalists and think tank analysts alike. This imputation of criminality is all the more problematic given that, as Ben hints, the Times may have benefited from the very looseness with classified material that it decries.

Speaking of taking liberties with classified information, Ben told us about Samuel Loring Morrison, a man who now has the distinct honor of being the only Espionage Act convict to be convicted of stealing government documents twice.

On Thursday, the chairmen and ranking members of both the Senate Armed Services and Senate Foreign Relations Committees sent a letter to Secretary of State John Kerry and Secretary of Defense Ash Carter. The letter, which Jack tipped us off to, describes China’s growing aggression and hegemony in the South China Sea and expresses an interest in working with the administration to develop a strategy for the region.

Last week, Ben headlined a Brookings event with Gabriella Blum on the future of violence, a topic which the two discuss in their newly-released book, The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. Audio from the event, which also featured Brookings scholar Bill Galston and the ACLU’s Ben Wizner, comprised this week’s Lawfare Podcast.

This week’s Steptoe Cyberlaw Podcast featured an interview with Andy Ozment, who manages the unit of the Department of Homeland Security tasked with improving the cyber security of both the private sector and the civilian agencies within the federal government.

One of the administration’s initiatives to improve cyber security, the proposed Cyber Threat Intelligence Integration Center (CTIIC), received further clarification with a recent White House memo and fact sheet. Steve Slick, who wrote on the CTIIC earlier in March, described the import of the publications.

Cody let us know that Lawfare is looking for a paid intern for this summer.

And that was the week that was.

Letter from Heads of SFRC and SASC to Kerry and Carter on South China Sea

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Friday, March 20, 2015 at 4:38 PM

Yesterday the Chairmen and Ranking members of the Senate Armed Services Committee (McCain and Reed) and the Senate Foreign Relations Committee (Corker and Menendez) sent a noteworthy letter to Secretaries Kerry and Carter about growing Chinese hegemony in the South China Sea.  It begins:

We are writing in regard to Chinese strategy in the Indo-Pacific maritime domains, and the alarming scope and pace of the land reclamation now being conducted by the People’s Republic of China (PRC) in the Spratly island chain of the South China Sea. At a recent Senate Armed Services Committee hearing, Director of National Intelligence James Clapper called the extent of the activities “aggressive,” and described it as an effort by China to expand its presence and further consolidate its sovereignty claims. Without a comprehensive strategy for addressing the PRC’s broader policy and conduct to assert its sovereignty claims in the South China Sea and East China Sea, including land-reclamation and construction activities, long-standing interests of the United States, as well as our allies and partners, stand at considerable risk.

The letter then outlines the growing threat from China in the South China Sea as the Senators see it, and concludes:

The slow, calculated competition for sovereignty and influence in the Indo-Pacific region is not currently a crisis that garners international headlines. Yet the impact of this competition will likely reverberate for years to come.  The Congress stands ready to support a renewed effort to address this challenge.  More specifically, we look forward to working with you on the development and implementation of a comprehensive strategy for the maritime commons of the Indo-Pacific region, and to your thoughts on how the Administration and Congress can best work together on these issues.

The letter is a strong signal to the Administration, and to China.

Summer 2015 Lawfare Internship

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Friday, March 20, 2015 at 3:13 PM

We are currently accepting applications for a paid summer intern. A description of responsibilities and information on how to apply is below:

Internship Summary

This summer internship, beginning in June 2015, is a paid opportunity for undergraduate students, recent college graduates or graduate students with an interest in national security.  Interns will be responsible for helping to run and maintain Lawfare, a website devoted to serious, non-ideological discussion of national security legal and policy issues.

Lawfare has emerged as the internet’s indispensable resource for information and analysis on the law of national security. Devoted to “Hard National Security Choices,” the site features top-quality writing and analysis from experts on developing stories in the national security arena, relevant legislation, and judicial opinions. It is a digital magazine that includes a podcast, a book review, research tools, a daily news roundup, an events calendar, and exhaustive coverage of events other media touch only glancingly.

This internship pays an hourly rate of $10.50, and ideally applicants will work full-time (40 hours per week) but no less than 28- 32 hours per week, during regular business hours (dependent on the applicant’s school schedule), with some flexibility around an academic course schedule. The internship is based in Washington, DC and will last approximately 10- 12 weeks (depending on the start date).

Primary Responsibilities

The Lawfare intern’s responsibilities fall into three categories:

Writing:

  • Work with Associate Editor to monitor national security and foreign policy developments, and 2-3 times per week, co-write “Today’s Headlines and Commentary.”
  • Work with Associate Editor to co-write “The Week that Will Be,” a weekly feature that outlines upcoming events, academic announcements, and employment announcements.
  • Work with the Associate Editor to co-write a regular deep-dive analytical piece on a relevant national security law and policy issue.
  • Sole-author “The Week that Was,” a weekly piece that provides a guide to the week’s Lawfare

Research:

  • Provide research support to the Lawfare editorial team as needed. Current projects include a book manuscript on data and technology proliferation and their implications for security; a paper on technology and privacy; and a paper on military justice.
  • Work to develop the Lawfare Wiki by taking a deep research dive into one or two areas of national security law. The intern will identify key primary source materials, summarize relevant documents, and create and develop the topic page on Lawfare.

Maintaining the blog:

  • Tag and categorize all Lawfare posts
  • Track relevant Congressional hearings
  • Track and add relevant events to the Events Calendar

In addition to providing support to the Lawfare directly, interns will have the opportunity to attend internal meetings, hearings on Capitol Hill, local think tank events, professional development workshops, and public Brookings events as well as participate on Brookings sports teams and network with other interns throughout the Institution.

Education/Skills/ Experience

Graduate or undergraduate students (who has completed their sophomore year) working towards a degree in government, political science and law are encouraged to apply.  Recent college graduates are also eligible to apply.  Our most successful interns have very strong writing, analytical, and research skills, as well as excellent verbal and organizational skills—preferably demonstrated through prior independent research or previous experience as a research assistant.

Application Procedure

Applications will be considered on a rolling basis until the position is filled. To be considered, applicants must be authorized to work in the United States.

 A complete application will include the following items:

  • Cover letter highlighting your educational experience and skills, along with an explanation of how this internship will contribute to your professional career goals.
  • Resume
  • Names and contact information for three academic or professional references
  • Original writing sample ( no more than two pages)

Please email a complete application with “Your Name — Lawfare” in the subject line to Cody Poplin at [email protected] 

Brookings is an equal-opportunity employer that is committed to promoting a diverse and inclusive workplace. We welcome applications from all qualified individuals regardless of race, color, national origin, gender, sexual orientation, age, religion, physical or mental disability, marital status, veteran status, or other factors protected by law.

Successful completion of a background investigation is required for employment at Brookings. No phone calls please.

For examples of previous intern projects, see the author pages below:

Sebastian Brady

Benjamin Bissell

Tara Hofbauer

Today’s Headlines and Commentary

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Friday, March 20, 2015 at 10:44 AM

The negotiations over Iran’s nuclear program have stalled. The Times tells us that the parties—Iran and the United States, Russia, China, France, United Kingdom and Germany —haven’t made much headway when it comes to the number of operational centrifuges Iran would be able to retain.  One unnamed European diplomat is quoted as saying that the parties “aren’t close to an agreement.” The Wall Street Journal adds that there has been disagreement about when international sanctions against Iran would be lifted.

Vice has obtained a copy of a mostly un-redacted version of the CIA’s National Intelligence Estimate that eventually led to the U.S. invasion of Iraq. The newly released version of the report (previously released in 2004, but with major redactions) highlights the disparities between the intelligence community’s assessment of the Iraqi threat with what the Bush administration told the public. Vice explains:

According to the newly declassified NIE, the intelligence community concluded that Iraq “probably has renovated a [vaccine] production plant” to manufacture biological weapons “but we are unable to determine whether [biological weapons] agent research has resumed.” The NIE also said Hussein did not have “sufficient material” to manufacture any nuclear weapons. But in an October 7, 2002 speech in Cincinnati, Ohio, then-President George W. Bush simply said Iraq, “possesses and produces chemical and biological weapons” and “the evidence indicates that Iraq is reconstituting its nuclear weapons program.”

General David H. Petraeus, former head of the CIA, spoke to the Washington Post, about the current state of Iraq and how the rise of the Islamic State. Among other things, Petraeus posits that had the U.S. pushed for a stronger alternative to Maliki to head up a revitalized Iraq, things may have been different.

The United States has, for the first time, shot down a drone operated by the Islamic State. RT reports on the story, noting that details are very slim.

A new CNN poll reveals that Americans are becoming increasingly worried about the Islamic State: 80% of respondents said that they thought the Islamic State poses a “serious threat” to the United States, a marked increase from September 2014, when 63% of respondents said the same.

The United States allegedly threatened to withhold crucial intelligence from Germany if the country offered help to Edward Snowden when he was seeking asylum. The threat not only applied to offering Snowden asylum in Germany, but also to helping him arrange travel plans and coordinating with other countries that might have taken him in. The Verge has the details.

Amazon has made a little bit of progress in its drone delivery program. Forbes explains that Thursday the Federal Aviation Administration has allowed the company to begin testing its delivery service. But that permission comes with a string of restrictions and regulations; it may be a while before the program gets off the ground.

Representative Charlie Rangel (D-NY) has proposed legislation that would reintroduce the draft and impose “war tax” on Americans. The Hill reports that Rangel’s draft would apply to women, and during times of declared war, as well as when an AUMF is effect.

ICYMI: Yesterday, on Lawfare

Yishai Schwartz took a deeper look at Israeli Prime Minister Benjamin Netenyahu’s apparent flip-flopping on the issue of an independent Palestinian state.

Ben, meanwhile, addressed the wider implications of the recent Israeli election.

Jack highlighted a new book on the Islamic state, ISIS: The State of Terror. Buy it here!

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.

Why the AUMF for the Islamic State Has Stalled

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Friday, March 20, 2015 at 9:36 AM

“Congress is stalled in its effort to pass a separate resolution authorizing military force against the Islamic State of Iraq and the Levant,” write Austin Wright and Bryan Bender in a good Politico story two days ago.  The conventional explanation for the stall is, as Wright and Bender note, that “congressional action has gotten bogged down in partisan rancor and divergent viewpoints over what the war should try to accomplish, how long the administration should be authorized to wage it, and what level of force will be required.”  But their story pushes beyond this conventional wisdom and points to deeper explanations.

First, absolutely nothing of substance turns on the new AUMF.  The President has been using force against the Islamic State in Iraq and Syria since last August, and he has justified these actions since last September under the 2001 AUMF (among other sources).  This interpretation of the 2001 AUMF was controversial.  But it was made openly in public and it has not caused a national outcry or congressional backlash.  One might say that the nation has effectively acquiesced in the President’s actions – politically, if not legally.  As a result, as a practical matter, the President has all the authorities he needs to conduct the fight against IS.  “We don’t need a new AUMF to do our jobs,” a “defense official” told the Daily Beast last month.

Second, because the Executive branch doesn’t need the AUMF, neither Congress nor the President feels any pressure to enact it.  The Obama administration has long taken a passive attitude toward getting a new AUMF for ISIL.  Even since the President sent up his AUMF proposal to Congress, the administration has not exactly rushed Congress to pressure it for enactment (and has been especially feckless in getting members of the President’s party on board.  Obama administration officials “have invested no political capital in this whatsoever,” Representative Salmon said in Politico.   (This contrasts sharply with other AUMFs that Presidents really needed, politically or legally, to support a use of force.)  Because no concrete national security issue is at stake in the passage of the AUMF, and because the President is not pushing hard for it, Congress feels no compulsion to act.  The “biggest obstacle” to enacting the new AUMF, said Representative Schiff in the Politico story, is the administration position “that they don’t need” the new AUMF.  “That has given Congress an excuse to shirk its responsibility,” he added.

Third, when members of Congress feel no compulsion to act on national security grounds, they are free to play politics.  For many Democrats, this means avoiding a vote in support of a new authorization of force at all costs, even one that by its terms expires in three years.  For many Republicans, that means complaining that the President’s draft AUMF places too many restraints on the presidency – when in fact, if passed as drafted, the AUMF would expand, not contract, presidential power.

For all of these reasons, Representative Schiff is right to be “increasingly concerned that Congress will take the path of least resistance and least responsibility and let the resolution die.”

Netanyahu’s Latest “Reversal” on Palestinian Statehood

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Thursday, March 19, 2015 at 6:26 PM

Earlier today, Israeli Prime Minister Benjamin Netanyahu sat down with MSNBC’s Andrea Mitchell, and explained that he hadn’t changed his policy on the creation of a Palestinian state. “I don’t want a one-state solution. I want a sustainable, peaceful two-state solution,” he insisted. For the second time in three days, the American media went into conniptions. The Wall Street Journal’s lead headline announcing “Netanyahu reverses vow to oppose Palestinian statehood” is representative of top stories in the Times, Post and pretty much every other major outlet.

Together, these headlines weave a narrative of flip-flopping that is quickly becoming conventional wisdom: Three days ago, in a last-minute bid to win voters right-wing voter, Netanyahu publicly “repudiated” the two-state vision to which he committed himself in a 2009 speech at Bar Ilan University. (At the time, the speech was a landmark event: the first time a Likud Prime Minister had publicly embraced Palestinian statehood.) And now, just days after winning those votes (and reelection) he publicly reverts back to his Bar Ilan vision. The zigzag narrative is a convenient one for those who loathe Netanyahu. The loathing may be understandable, but the narrative happens to be wrong.

As I explained two days ago, on the morning of the elections, Netanyahu’s statement on Palestinian statehood was carefully crafted as an evaluation of current conditions, not a “vow” or a statement of policy. Asked whether he could say that if elected, “a Palestinian state will not be established,” Netanyahu responded by warning that current security realities made the creation of a Palestinian state “today” unrealistic. Pushed again to answer directly on whether “if you are elected Prime Minister, a Palestinian state will not be established,” he considered for a moment, before tentatively answering “right.” As you watch the interview, you can almost see the wheels turning in his mind as he reasons to himself: “I wasn’t asked whether I want, or will work toward, a Palestinian state; I was asked for a prediction–and my prediction is it won’t happen.”  As I wrote then:

Netanyahu is not saying he opposes the creation of a Palestinian state as a matter of principle, but as a matter of prudence. His opposition is contingent, linked to concrete and current security realities. Presumably, if these realities changed, so would Netanyahu’s position on practical statehood. For Netanyahu, this has always been the case. His vision of a Palestinian state has always been highly theoretical, requiring “rock solid” security arrangements that any conceivable Palestinian partner would have a very hard time accepting… Netanyahu’s statement therefore represents no change at all, and so most Israelis are simply not surprised. Netanyahu was simply making explicit what has been his implicit (but obvious) position for some time: Islamic radicalism affects (and severely decreases) the practical possibility of imminent Palestinian statehood.

There is no question that Netanyahu was speaking in two different registers to two different audiences. To arouse the Israeli far-right, he emphasized the current dangers of a hasty rush toward Palestinian statehood, and predicted that such a state would not be established imminently. And to placate an international audience, he emphasized that his goal and policy remains working toward a Palestinian state. These statements are not mutually exclusive.

But technical consistency aside, Netanyahu’s pre-election statement still deserves a busload of criticism (though not as much criticism as his egregious election-day dog-whistle): it was highly cynical, self-centered and deeply damaging to Israel. He knew his words would be interpreted (or used) as a reversal by the international media, but decided the price in international condemnation of Israel was worth his own possible electoral gain. That’s inexcusable. Nevertheless, neither that statement nor today’s constitutes a “reversal” of the fundamental Bar Ilan approach.

Of course, it remains possible that Netanyahu’s (consistent) position on Palestinian statehood is entirely disingenuous. Perhaps, deep down, Netanyahu actually opposes the creation of a state of Palestine and merely adopts the rhetorical position of favoring such a state for diplomatic reasons. This belief, no doubt, is what drives so much of the invective currently being hurled at Netanyahu, including State Department’s spokeswoman Jen Psaki’s ongoing insistence that “we believe he changed his position three days ago.” After all, if you believe Netanyahu has never been “serious” about Palestinian statehood, then characterizing his statement from a few days ago as a “reversal” is highly convenient.

Debates of this sort—over whether Netanyahu or the Palestinian Authority is “truly” committed to a two-state solution–are unresolvable. But they are also misleadingly simplistic. “Two states for two peoples” is such a broad and nebulous vision that it allows for vastly different “true” commitments. Netanyahu is “truly” committed to the vision—assuming the vision includes a united Jerusalem under Israeli rule, Israeli retention of sizeable blocks over the ‘49 armistice lines, robust Israeli security measures and a credible cessation of Palestinian violence, incitement and claims on Israel. Similarly, Abbas is just as “truly” committed—but to a vastly different vision that likely includes none of these factors. Each is “serious;” they are just serious about different visions.

So when a commentator labels one side “unserious” or “lacking commitment,” what she really means is that she prefers the other’s side’s vision. That preference, of course, is the commentator’s right. But inventing inconsistency and alleging dishonesty to bolster that caricature of unseriousness is a bridge too far.

Today’s Headlines and Commentary

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Thursday, March 19, 2015 at 3:39 PM

More news today out of Tunisia regarding the stunning militant attack on a museum in Tunis that left 23 people dead and wounded dozens more. According to the Associated Press, the Islamic State has claimed responsibility for the attack in a statement that called the assault a “blessed invasion of one of the dens of infidels and vice.” The claim has not yet been verified, but most experts believe that it is credible.

Agence France Presse shares that Tunisian security forces have arrested nine suspects, while Reuters reports that Tunisian troops also arrested two family members of an Islamist militant involved in the attack. Throughout the country, the attack has prompted calls for unity, with hundreds of people gathering late on Wednesday in the capital to sing the national anthem. Tunisian President Beji Caid Essebsi has vowed to fight the extremists “without mercy to our last breath.”

The second day press pack story on Israeli Prime Minister Benjamin Netanyahu’s decisive victory examines exactly what it will mean for U.S.-Israeli relations. The New York Times writes that the long “poisonous relationship” between U.S. President Barack Obama and Mr. Netanyahu has only been exacerbated by the manner in which Mr. Netanyahu won. While Mr. Netanyahu has since tried to walk back his campaign statements, White House press secretary Josh Earnest told reporters that his campaign rhetoric, in which he railed against Israeli Arabs for voting and abandoned his commitment to a two-state solution, was “deeply concerning and it is divisive.”

Indeed, it now seems that President Obama may not attempt to repair relations, with Administration officials raising the possibility that the United States will consider a United National Security Council resolution outlining the principles of a two-state solution based on the pre-1967 borders with mutually agreed swaps. Even so, there is almost no chance that the United States will curtail its financial or military support for Israel.

Some U.S. allies may be prepared to send ground forces to Syria to fight alongside moderate rebels, according to U.S. Army Chief of Staff General Ray Odierno. However, when pressed as to how Syrian leader Bashar al Assad would respond to such a ground force opposition, General Odierno suggested it would be necessary to carefully select their insertion points. Those statements come as Reuters reports that the Syrian government has downed a U.S. drone. According to a Syrian army source, the aircraft was shot down over government-held territory where there are no ISIS militants.

The AP shares that the U.S. military has destroyed an Islamic State drone used for battlefield surveillance. The small drone was most likely purchased commercially. Even so, the exchange prompted Nancy A. Youssef of the Daily Beast to ask, “Is ISIS building a drone army?” The answer, of course, is “no,” but that doesn’t mean the militant group is not preparing to turn small, commercial drones into flying IEDs, according to Christopher Harmer, a senior naval analyst at the Institute for the Study of War.

In a sign of the coming battle, Iraqi security forces dropped hundreds of thousands of leaflets over the ISIS-held city of Mosul overnight Wednesday. The leaflets reportedly urged civilians to collaborate against the Islamic State in light of the coming military offensive, telling them that the Iraqi armed forces are “very close to you.” The notes may have been meant to quell fears of sectarian violence in the local population; however, the New York Times has collected a series of satellite photos that reinforce concerns of sectarian reprisals. In dozens of villages evidence of Shiite retaliation mounts.

In Geneva, the United Nations called for the International Criminal Court to prosecute the Islamic State for committing genocide against the Yazidi minority in Iraq as well as for war crimes against other civilians. The report also noted that Iraqi security forces and affiliated militias “may have committed some war crimes.” Reuters has more on the United Nations report.

As the war in Iraq and Syria rages on, the authorization for that conflict has stalled in Congress. According to Politico, the measure hardly came up at all in yesterday’s House Armed Services Committee hearing. In reference to the president’s proposed Authorization for the Use of Military Force against ISIS, Representative Mac Thornberry (R-TX), chair of the committee, told reporters “we’re kind of moving beyond that.”

In Yemen, an unidentified warplane attacked the presidential palace in Aden yesterday. The air attack followed a ground operation by the embattled president’s forces, which stormed Aden’s international airport and captured a nearby military base from a former officer who had refused to relinquish command. Reuters notes that Houthis rebels removed the commander of the air force earlier this week for refusing to provide them air support, replacing him with a general who is closer to the group.

The Associated Press brings us news of progress in Nigeria, where soldiers from Niger and Chad have liberated another Nigerian town from the grip of Boko Haram. The fighting appears to have been brutal, with a spokesman from Niger’s army stating that 228 militants were killed and one soldier from Niger died. A photographer from the AP said that the town was largely deserted.

The Pentagon has confirmed that Adan Garar, a leader of the Somalia-based militant group al Shabaab, was killed in a U.S. drone strike last week. According to the Department of Defense, Garar was a key organizer of the 2013 shopping mall attack in Kenya that resulted in 67 deaths and wounded over 175 others.

Reuters reports that, according to an anonymous senior U.S. official, two U.S. military bases in Kandahar and Jalalabad are likely to remain open even after the official drawdown at the end of 2015. The likely slowdown of the U.S. withdrawal reflects both renewed optimism in the effectiveness of the Ghani government and a desire to avoid a collapse of security forces similar to what occurred in Iraq. Reuters notes that the official announcement could come as early as next week when Afghan President Ashraf Ghani visits Washington.

Even as relations with the government in Afghanistan improve, a new report from Yale researchers has found a new wrinkle in the effort to win hearts and mind of the Afghan people. According to political scientist Jason Yyall, villages in Afghanistan with the most pro-U.S. sentiment were also the most likely to draw “punishment attacks” from the Taliban. While that corresponds to expectations, Yyall also found that U.S. forces were no more likely to receive tips from the local population as to the location of improvised explosive devices, suggesting that U.S. efforts had been successful enough to make certain villages targets but not successful enough convince them to assist the United States. DefenseOne has a full review of the controversial findings.

According to Pakistan’s Express Tribune, a U.S. drone strike killed Khawrey Mehsud, a commander of the Pakistani Taliban, yesterday. The strike, which occurred on the Afghan side of the border, also killed two other suspected members of the TTP.

A year after annexing Crimea, Russian President Vladimir Putin celebrated his success in two big ways. In Moscow, Mr. Putin led a rally and appeared at a concert, warning that the ceasefire in Ukraine was at risk of failing due to a disagreement over the degree of political autonomy granted to regions in the war zone. Mr. Putin told the crowd that Crimea was not about “land,” but about the “sources of our history, our spirituality, and our statehood.” The New York Times makes note that the rally occurred just outside the Kremlin and only a few blocks away from where opposition leader Boris Nemtsov was murdered last month.

In another form of celebration, Mr. Putin also signed a treaty with South Ossetia, a breakaway region of Georgia. According to the Wall Street Journal, the agreement “seals almost full integration.” The European Union issued a statement saying that the move “clearly violated Georgia’s sovereignty and territorial integrity.”

Will the NSA’s Section 215 program continue even if Congress lets its authority expire in June? That’s the question raised by Dustin Volz in the National Journal. According to Volz, a newly declassified Foreign Intelligence Surveillance Court order leaves open the possibility that the government could indefinitely continue any ongoing investigation that began before the bill’s expiration. However, former NSA general counsel Stewart Baker concluded that while there is an argument for the measure, he suspects “that the administration won’t be willing to make that argument.” The ACLU’s Jameel Jaffer called the interpretation “such a stretch” that he would be surprised “if even the government adopts it.”

Foreign Policy raises another question on the government’s approach to secrecy: “Could Petraeus’s plea deal boost Edward Snowden and other leakers?” Lawyers for other government employees accused of leaking classified information have already seized on the perceived double standard, advancing an argument that their clients should also receive such leniency.

Saeed Saram Jarabh, a 36-year-old “forever prisoner” at Guantanamo Bay has been cleared for release. The review board called Jarabh, who has been at Guantanamo since February 2002, a “low-level fighter” who “lacked a leadership position in al-Qaida or the Taliban.” 56 of the remaining 122 detainees have now been cleared for release. Yet, the review board denied the release of another “forever prisoner” Khalid Qasim due to “extremist and anti-American sentiments” and behavior while at Guantanamo. The Miami Herald carries the story.

In more Guantanamo news, the senior Pentagon official behind the controversial order that would have required judges to relocate to Guantanamo Bay for the entirety of their military commission trials has resigned. According to the Pentagon, Vaughn Ary, who was appointed as the convening authority for the military commissions only last fall, will resign effective Saturday. The Washington Post reports that Defense Secretary Ashton Carter has selected Paul L. Oostburg Sanz, general counsel for the Department of the Navy, to hold the role on an interim basis.

In response to a seventh grader’s question in Cleveland yesterday, President Barack Obama told a crowd that he wishes he had moved more immediately to close the prison facility at Guantanamo Bay. “I think I would have closed Guantanamo on the first day,” the president said. Politico has more on Mr. Obama’s remarks.

Finally, Lawfare’s Amy Zegart writes in the Wall Street Journal of the coming revolution in drone warfare that “will allow many states–and nonstate actors–to make low-cost but highly credible threats.”

ICYMI: Yesterday, on Lawfare

Wells flagged the news that the Navy’s General Counsel Paul Oostburg Sanz will serve as the interim Convening Authority for the Guantanamo Bay military commissions.

Wells also alerted us to a new report from the Brennan Center on “What Went Wrong with the FISA Court.”

Brookings Senior Fellow Tamara Cofman Wittes brought us a report from her recent trip to Jordan, where Syrian refugees remain in search for a future.

Ben shared that a typographical error in the Washington Post posited former NSA General Counsel Raj De as the man behind the Snowden disclosures.

Yishai Schwarts outlined two further notes on Iranian legal arguments and the Non-Proliferation Treaty.

Finally, this week’s Steptoe Cyberlaw Podcast features Andy Ozment, Assistant Secretary for Cybersecurity and Communications at the Department of Homeland Security.

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.

 

New Book on Islamic State by Stern and Berger

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Thursday, March 19, 2015 at 1:49 PM

Jessica Stern (who wrote Terror in the Name of God: Why Religious Militants Kill) and J.M. Berger have a new book that should be of interest to Lawfare readers: ISIS: The State of Terror.  The book is a fascinating history of The Islamic State, a rich of explanation of its motives, means, and lure, and an argument about how to fight it (and how not to).  Here are two excerpts from the Guardian and one in The AtlanticHighly recommended.

Thoughts on the Israeli Election

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Thursday, March 19, 2015 at 8:47 AM

Over at the increasingly excellent Markaz site, my Brookings colleagues Natan Sachs and William Galston—the latter writing with Lawfare‘s Yishai Schwartz—have terrific commentary on the Israeli elections this week. I will not try to repeat here their many good analytical points about the surprise results. I will, rather, refer readers to their posts and add one point of my own.

For me, the salient—one might say searing—fact about the Israeli election is this: Bibi Netanyahu won, and won decisively, (a) after going to Washington to campaign against the President of the United States, (b) after unpardonably questioning the legitimacy of voting by the one fifth of Israeli citizens who are Palestinian Arabs, and (c) after repudiating the two-state solution to the Israeli-Palestinian conflict.

This fact will, I fear, reverberate loudly and for a long time in the U.S.-Israeli relationship.

Each of these components of Netanyahu’s victory will have its dissenters, diminishers, and apologists, I’m sure. Netanyahu’s distasteful entry into American party politics, some will argue, was animated by justified alarm at the Iranian negotiations. His election day questioning of Arab voters was a heat of the moment kind of thing, regrettable but not game-changing. And his abandonment of the two-state solution as the policy objective of talks with the Palestinians is irrelevant since there’s no prospect of those talks leading anywhere anyway.

Each of these points is probably worth an argument, yet the cumulative impact—it seems to me—seems to me hard to deny: The way Netanyahu won will matter a lot.

The New York Times reports this morning that the election returns in Israel were “watched minute-by-minute at the White House.” It also reports that Obama has basically given up on dealing with Netanyahu, turning over the portfolio to Secretary of State John Kerry: Read more »

The New (Old) Interim Convening Authority for Military Commissions

By
Wednesday, March 18, 2015 at 4:33 PM

It seems Paul Oostburg Sanz, the Navy’s General Counsel, will serve for the time being as the Guantanamo military commissions’ Convening Authority—such temporary service being necessary in light of the resignation of retired Marine Major General Vaughn Ary.  (Readers will recall that the military judge presiding over the Al-Nashiri commission case recently disqualified Ary and some of his advisors from further participation in that proceeding, on unlawful influence grounds.)  This marks Sanz’s second time as interim Convening Authority.

Here’s the pertinent part of the release from the Department of Defense:

Secretary of Defense Ash Carter has designated the Honorable Paul L. Oostburg Sanz to serve as the convening authority for military commissions.

Oostburg Sanz is currently the general counsel of the Department of the Navy and will serve as convening authority on an interim basis until Secretary Carter designates a replacement for retired Maj. Gen. Vaughn A. Ary. Ary’s voluntary resignation is effective March 21.

“I want to thank Vaughn Ary for his leadership, service and dedication,” said Deputy Secretary of Defense Bob Work. “As a recognized expert on military law, with great depth and distinguished years of experience, he made critical contributions to our nation and served admirably.”

Oostburg Sanz will continue to serve as the Department of the Navy’s chief legal officer while serving as convening authority. He previously served as interim convening authority and the interim director of the Office of Military Commissions from March 20, 2013 through Sept. 30, 2014.

Prior to his appointment as general counsel of the Navy, Oostburg Sanz served as the general counsel of the Committee on Armed Services in the United States House of Representatives. As the senior legal advisor to the chairman of the committee and its 61 other members, he provided legal counsel on an expansive range of national defense issues, including the final drafting and passage of the annual National Defense Authorization Act. In this role, Oostburg Sanz was also instrumental in the drafting and the passage of the Military Commissions Act of 2009.

The position of convening authority was created by Congress in the Military Commissions Act. The convening authority is responsible for overseeing many aspects of the military commission process and the administration of the Office of Military Commissions. Among other things, the convening authority reviews and approves the charging of persons alleged to be alien unprivileged enemy belligerents as defined in the Military Commissions Act, appoints military commissions members, and reviews military commissions’ verdicts and sentences.

Oostburg Sanz’s biography is available [here].

Four Years on, Syria’s Refugees Search for a Future

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Wednesday, March 18, 2015 at 3:30 PM

Editor’s note: The following was originally published on Markaz, a publication run by the Brookings Center for Middle East Policy. 

The Syrian uprising began four years ago. On Sunday, thanks to the Korber Foundation, I was able to make a brief visit to Zaatari Refugee Camp outside Amman, Jordan. Established two years ago, Zaatari is now no longer a short-term shelter for those fleeing the butchery of the Assad regime—it has become a long-term residence for over 85,000 Syrians—a small town with two supermarkets, thousands of tiny resident-run shops, with water and sewage pipes being laid. The planning for Zaatari’s shift to semi-permanence reflects the longevity of this horrible war and the sad reality that, with half of Syria’s population displaced, even an immediate end to conflict would not bring the immediate return of refugees to their homes.

The government of Jordan and UNHCR (the U.N. refugee agency), which jointly manage wittest2the camp, have begun to shift from emergency assistance to building the economic and social infrastructure for long-term residency. Helping refugees find jobs and start businesses within the camp is cheaper, the U.N. notes, than providing humanitarian assistance—and with the conflict raging on, it’s increasingly crucial for younger men in the camp to find some means of making ends meet, lest they be tempted to return to Syria by militias offering cash to fighters. Moreover, long-term residency demands attention to dignity—a word the U.N. staff use frequently. Thus, providing food aid through debit cards residents can use to buy goods at a supermarket is better than handing out sacks of rice—enabling greater independence and more choice for camp residents and returning a sense of normality to lives upended by violence.

For similar reasons, the U.N. encourages residents to volunteer to help war-wounded residents, and supports local committees that meet every week to discuss political issues and express their needs and preferences regarding camp life. At the same time, the Jordanian and U.N. managers of the camp discourage any explicitly political activity that might import Syria’s bitter conflict to Jordanian territory or “endanger the humanitarian character of the camp,” as one staffer carefully phrased it.

In recent months, the UNHCR and the World Food Programme (WFP) report a number of refugees seeking to move from urban areas into the camp, and a small but steady flow of refugees returning to Syria. They interpret these trends as reflecting increasing financial pressure on refugees in Jordan, the vast majority of whom (85 percent) have been living within local communities, “dispersed within the urban poor,” as the WFP representative put it. Reduced donations for refugee relief have forced the WFP to cut its assistance in recent months, from about $28 per person per month (already not a great sum) to $18 per person per month. WFP knows this amount is insufficient to meet basic needs, but has little alternative. They expect that as support declines, they will see refugees respond in ways that could undermine their well-being—for example, parents pulling children out of school to put them to work or sending them to beg on the streets. Read more »

Brennan Center Report on “What Went Wrong with the FISA Court”

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Wednesday, March 18, 2015 at 3:15 PM

The civil liberties group’s report was released today. It was authored by Elizabeth Goitein and Faiza Patel (who has contributed pieces to Lawfare), and has a foreword by retired U.S. District Judge James Robertson—a former member of the Foreign Intelligence Surveillance Court.

Here are the report’s key recommendations:

  • Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. This would resolve many constitutional concerns.
  • Congress should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to challenge surveillance programs in regular federal courts.
  • Finally, Congress should address additional Fourth Amendment concerns by ensuring that the collection of information under the rubric of “foreign intelligence” actually relates to our national security and does not constitute an end-run around the constitutional standards for criminal investigations.

 

 

Today’s Headlines and Commentary

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Wednesday, March 18, 2015 at 2:38 PM

Israeli Prime Minister Benjamin Netanyahu and his Likud party scored a decisive victory in yesterday’s Israeli election, setting the stage for him to serve a third consecutive—and fourth overall—term as prime minister. Although early exit polls showed a close race between Likud and the opposition Zionist Union alliance, official vote tallies showed Likud winning likely 30 seats in the Knesset to the Zionist Union’s 24. Prime Minister Netanyahu will now work to form a coalition of mostly right-wing and Orthodox parties. “Our country’s everyday reality doesn’t give us the luxury for delay,” he said in a statement. The New York Times, Wall Street Journal, and Reuters all cover the election.

But many worry how Netanyahu’s campaign tactics—which included a last-minute pronouncement that no Palestinian nation will be formed under his premiership and an ominous election-day warning that “Arab voters are streaming in huge quantities to the polling stations”—will affect Israel going forward. Reuters reports that the European Union quickly expressed hope that the new government will help relaunch the Palestinian peace process, but the Wall Street Journal notes that Palestinian officials showed little interest in working with the Israeli government. “Israel has chosen Apartheid rather than peace, thus bringing an end to the peace camp in Palestine,” said one Palestinian politician. An adviser to Palestinian Authority President Mahmoud Abbas said, “Netanyahu’s statements regarding our future should only motivate us to continue our struggle” in international fora.

Netanyahu’s strategy, which one Israeli academic described as “a scorched-earth policy to stay in power,” also risks further damaging U.S.-Israeli relations. Jonathan Alter, at the Daily Beast, writes that Netanyahu’s accusation of American meddling in the election, along with the aforementioned tactics, may convince the United States to occasionally refuse to exercise the veto power it holds in the U.N. Security Council that has thus far protected Israel from some international pressure over the Palestinian issue. Politico’s Michael Crowley adds that “Netanyahu’s relations with Obama are likely to resume at their lowest point yet.”

Iraq’s fight against ISIS, and that campaign’s reliance on Shiite militias, appears to be exacerbating sectarian animosity in the country. According to a report by Human Rights Watch (as recounted in this Times piece), Iraqi security forces and pro-government militias looted and razed Sunni dwellings in the town of Amerli after they succeeded in driving out ISIS militants. In a long-form article for Rolling Stone, Matthieu Aikins describes the rise of these brutal Shiite militias.

A truck bomb went off in Iraq near the border with Kuwait yesterday, killing three Iraqis and wounding five others. According to one witness, the truck bore license plates from Anbar province, a center of ISIS activity. Reuters covers the attack.

A U.S. drone has been lost in the coastal Syrian city of Latakia, in a government-held region far from the ISIS-held regions over which American planes and drones usually operate. A Syrian state-run news agency claimed that Syrian air defenses had shot down the aircraft, though U.S. officials offered no information on how the military lost contact with the drone, nor did they choose to clarify what it was doing in the government’s coastal stronghold. The Wall Street Journal has more.

This development coincides with an ongoing effort by U.S. officials to reassure allies about its stance toward Syrian President Bashar al-Assad. Reuters reports that the U.S. official tasked with organizing the coalition fighting ISIS, General John Allen, told Turkish officials yesterday that the United States remains committed to finding a resolution to the Syrian civil war that does not include President Assad.

The U.N. investigators tasked with identifying perpetrators of war crimes in the Syrian civil war announced yesterday that they will release the names of suspected war criminals to judicial officials in countries preparing to prosecute the criminals. While U.N. officials called the move a step on the way to accountability, it represents a retreat from a plan announced earlier to publish the confidential names publicly. The Times has more.

Fighting resumed yesterday in the Libyan city of Surt, the Times reports. Militants aligned with ISIS set up shop there two months ago and a militant group from the neighboring city of Misurata is now trying to drive them out, though the Misurata brigade had been camped outside for two weeks before yesterday’s conflict. Reports did not indicate why fighting broke out now, but noted that prominent Tunisian militant Ahmed al-Ruwaysi was reportedly killed in the clashes.

Finally, the Times brings us news that an Air Force veteran from New Jersey has been charged with trying to support ISIS by seeking to join the militant group. A convert to Islam, Tairod Nathan Webster Pugh left for Syria in January after losing his job, but was stopped when he tried to enter Turkey. Pugh has also been charged with obstruction of justice after the hard drives on his media devices were damaged in an apparent effort to wipe them clean after being expelled from Turkey.

Militants have stormed a museum in the Tunisian capital of Tunis today, killing 19 people, including 17 foreign tourists and two Tunisians, Reuters reports. The attack killed visitors from Italy, Germany, Poland and Spain. According to a government spokesman, security forces have stormed the museum, killing two militants and freeing the hostages inside.

The Pentagon has lost track of more than $500 million worth of military aid to Yemen, the Washington Post reveals. As the country has descended into turmoil, the U.S. government has been unable to track weapons, ammunition, vehicles, and other military goods provided to the Yemeni government; presumably, the equipment is vulnerable to theft by Iranian-backed rebels and al Qaeda militants. The Post provides a helpful graphic showing some of what has been delivered to Yemen since 2010.

In Pakistan’s tribal Khyber region, a series of Pakistani airstrikes killed 34 militants, according to the Pakistani army. The Wall Street Journal reveals that the airstrikes hit Tirah Valley, a region home to militants from both the Pakistani Taliban and the allied group Lashkar-e-Islam.

The Wall Street Journal also notes that, elsewhere in Pakistan, the lawyer who once represented the doctor who supposedly helped lead the CIA to Osama bin Laden has been shot to death. Samiullah Afridi, who fled Pakistan in 2013 after receiving death threats but returned last year, was gunned down in Peshawar yesterday.

A car bomb detonated outside the governor’s compound in Afghanistan’s southern Helmand province earlier today, according to the Associated Press. The Wall Street Journal describes the attack as an “apparent show of force by Taliban insurgents” who are under increased pressure from Afghan security forces.

The Times describes the marginalization of Afghanistan’s First Vice President, Abdul Rashid Dostum, in the government’s decision-making process. Dostum, a former warlord accused by some of war crimes, secured the Uzbek vote for Afghan President Ashraf Ghani but has apparently become increasingly disgruntled with his minor role in the government.

Yesterday, the Islamic State in “Khorasan Province,” the group’s name for Afghanistan, released a 12-minute eulogy marking the death of Mullah Abdul Rauf Khadim, who is believed to have been the deputy commander for the group’s operations in the country. According to the Long War Journal, the video included a short biography of Khadim and, in a sign of growing tensions between jihadists groups, also condemned the Afghan Taliban for “banning lessons in the creed of Islamic monotheism.”

Secretary of State John Kerry and Iranian Foreign Minister Mohammad Javad Zarif met for six hours yesterday in Switzerland to discuss a possible deal on Iran’s nuclear program, the Post notes. The Times adds that Iranian and U.S. officials expressed differing levels of confidence in the prospects of reaching a deal before a self-imposed deadline this month. The head of Iran’s Atomic Energy Organization said that 90 percent of the technical issues had been resolved, while an American official said, “There is no way around it: We still have a ways to go.”

Back on U.S. soil, the Obama administration is imploring Democratic lawmakers not to vote for a bill, currently before the Senate Foreign Relations Committee, that would allow Congress to vote on any nuclear deal the administration reaches with Iran. According to Politico, the pressure is coming from the highest-ranking members of the administration, including the President himself. However, the chairman of the Foreign Relations Committee, Senator Bob Corker (R-TN), expressed optimism that the bill will move forward successfully, the Hill notes. That said, Corker himself is in a bit of a bind. Politico describes his efforts to court Democratic support for the bill against the backdrop of vitriolic Republican opposition to the Democratic administration.

According to the Nigerian military, Boko Haram has been driven out of Bama, a strategic town in the northeastern state of Borno. The BBC reports that the militant group was also reportedly driven out of its last base in the neighboring state of Yobe.

The Pentagon is delaying a plan to train Ukrainian soldiers fighting Russian-backed separatists in eastern Ukraine, Lt. Gen. Ben Hodges, commander of the U.S. Army in Europe, announced yesterday. The Wall Street Journal explains that the delay is meant to avoid giving the Kremlin an excuse to ignore the ceasefire agreed to last month. That agreement, however, appears increasingly tenuous. Reuters reveals that Russian and Ukrainian officials are fighting over a Ukrainian plan to grant some autonomy to Ukraine’s restive eastern regions, while yet another Ukrainian soldier was killed in rebel attacks, according to the Ukrainian military.

A new official Chinese report on its military strategy admits, for the first time, that it employs units solely dedicated to offensive cyber activities. The admission is especially remarkable because, as recently as a month ago, the Chinese government was still denying that it even had a cyber command. At the Daily Beast, Shane Harris covers the new report and its implications.

South Korea has blamed North Korea for a series of cyber attacks that were launched in December against its nuclear reactor, though North Korea denies any involvement. Reuters explains that South Korea’s accusation is based on evidence regarding the Internet addresses used in the attacks.

The Senate Intelligence Committee has released the final text of the Cybersecurity Information Sharing Act, a bill meant to facilitate the sharing of cybersecurity information between the public and private sectors. The Hill has more, including the text of the bill.

The third round of negotiations on normalizing diplomatic relations with Cuba ended yesterday, the Times notes. The talks, which began on Monday, produced no breakthroughs, calling into question whether the two sides can establish embassies before the Summit of the Americas in early April.

In an attempt to satisfy both fiscal and defense hawks, the new Republican budget proposes to double war funding. Foreign Policy’s Kate Brannen writes that the budget includes $94 billion for the Overseas Contingency Operations fund, which is not subject to the limits imposed in the Budget Control Act, despite the fact that the Pentagon requested just $51 billion. Gordon Adams, who served as a budget official for national security in the Clinton White House, described the move thus: “In effect, the House Budget Committee is proposing to have their fiscal discipline and eat their defense increase at the same time.”

The NSA’s top lawyer is stepping down, the Post reports. Rajesh De, who became the Agency’s general counsel in 2012, will be joining the law firm Mayer Brown. We wish Raj good luck in his new position.

ICYMI: Yesterday, on Lawfare

As Israelis went to the polls yesterday, Yishai discussed Netanyahu’s supposed reversal on the issue of a Palestinian state and argued that, in fact, his statement simply reiterated a position he has held for some time. The Israeli elections also came up, among other things, in the newest episode of the Rational Security podcast (Episode #11), which Ben posted.

In response to a New York Times editorial on the Petraeus plea deal, Ben noted that the editorial appears to accuse General Petraeus—without supporting evidence—of a separate “crime spree” relating to the General’s supposed looseness with classified information.

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.

 

The Washington Post Fingers the Person Behind the Snowden Disclosures!

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Wednesday, March 18, 2015 at 2:15 PM

In what is surely a typographical error, the Washington Post has named NSA General Counsel Raj De as the man behind the Snowden disclosures:

De’s last day was Friday, and he plans to start at Mayer Brown in June as head of the firm’s privacy and security practice in Washington. He had been NSA’s general counsel since April 2012 and oversaw the exposure of the government’s controversial surveillance program by former NSA contractor Edward Snowden (emphasis added).

What the Post means, of course, is that De oversaw the response to the exposure of surveillance programs by Snowden. If not, the paper has really buried its lede.

In all seriousness, De deserves congratulations on his service in a very tough role during a very difficult period. Here’s wishing him the best of all things in private practice.