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Today’s Headlines and Commentary

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Wednesday, June 25, 2014 at 1:35 PM

Iraq continues to dominate today’s headlines. Reuters indicates that early this morning, insurgents laid siege to one of Iraq’s largest air bases.

Meanwhile, the Associated Press reports that about half of the 300 American special forces troops that President Obama is sending to Iraq have reached Baghdad and begun operations there. Ken Pollack of the Brookings Institution examines the President’s decision to send such a small contingent of forces.  Pollack wonders what kind of access, authority, and strategy the military advisors will have; and analyzes the effect that the crisis will have on Iraqi oil production and the global economic market.

The Washington Post notes that in his weekly televised address, Iraqi Prime Minister Nouri al-Maliki called for “a united national stance to defy terrorism.” Despite such statements, Maliki has resisted appeals to form an emergency coalition containing all Iraqi ethnic groups. BBC News and The Hill have more.

According to the Washington Post, a senior U.S. intelligence official stated that, thanks to recent acquisitions of money and weapons, the Islamic State of Iraq and Syria (ISIS) “is the strongest it has been in several years.”

The militant group has also had much success recruiting new and committed members. CNN writes that among its most passionate fighters are western-born jihadists, who traveled to northern Syria and Iraq in hopes of creating a Sunni Islamic state. The Post reports that even a number of Kurdish young men have joined ISIS. David Ignatius’ Post op-ed indicates why Abu Bakr al-Baghdadi, the leader of ISIS, has been so successful in attracting new recruits.

The New York Times indicates that Turkey may bear some responsibility for the chaos in Iraq. Apropos of nearby states, according to the Post, the Syrian government bombed ISIS targets in Iraq yesterday. Likewise, Iran is providing the beleaguered Iraqi government with intelligence and supplies. The Times has details.

Iranian assistance to Maliki comes as three Iranian border guards were killed in an insurgent assault near the Islamic Republic’s Iraqi border. The Post shares the story.

In the same newspaper, Senator Tim Kaine (D-VA) argues that, despite what President Obama and high-ranking members of Congress have said, neither the 2001 nor 2002 AUMFs give the Obama administration authority to conduct military operations in Iraq. The Hill reports that a number of rank-and-file House Democrats are also concerned. Jack outlined President Obama’s position here.

On Monday, the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW) announced that Syria had surrendered the last of its reported chemical weapons stockpiles. Although these actions represent a “major landmark” on the way to a chemical weapons-free Syria, the Times points out that facilities with the capacity to make new chemical weapons still exist in Syria. NPR also has the story.

Also on Monday, President Obama spoke over the phone with Russian President Vladimir Putin. The two leaders discussed Syria’s chemical weapons disarmament, continued negotiations over an Iran nuclear deal, and the situation in Ukraine. Obama pressed Putin to work with Ukrainian President Petro Poroshenko in implementing a peace plan. Putin seemed to agree on the need for a ceasefire; The Moscow Times reports that the Kremlin anticipates “the start of direct negotiations between the opposing sides.” However, the U.S. remains unconvinced. The New York Times notes that the Obama administration has begun outlining increased sanctions against Russia.

Following the conviction and sentencing of a number of Al Jazeera journalists, Egyptian President Abdel Fattah el-Sisi yesterday said he “will not interfere in judicial rulings.”  He said further that “[i]f we desire state institutions, we must respect court rulings and not comment on them, even if others don’t understanding these rulings.” The New York Times and Al Jazeera report.

Roll Call indicates that, in response to the Egyptian court’s decision, Congressman Adam Schiff (D-CA) will introduce an amendment to the foreign aid bill currently being considered by the House Appropriations Committee. He wants to “cut and restructure American aid to Egypt” by moving money originally intended for security assistance to programs that support “education, democracy, and civil society.”

The Post editorial board criticized the Obama administration’s reaction to the sentencing, noting that if the U.S. is going to accept autocratic regimes, then human rights violations and political repression should come as no surprise.

The Supreme Court reached a decision today in Riley v. California, ruling that police officers must first obtain a warrant before searching the contents of a suspect’s cell phone. The Hill has the story. Read the opinion here.

In response to the release of an Office of Legal Counsel (OLC) memo, which authorized the drone strike on American Anwar al-Awlaki, two members of the Senate Intelligence Committee, Senators Ron Wyden (D-OR) and Mark Udall (D-CO), have asked for more information on U.S. policy regarding targeted killings of Americans. Roll Call has more details. For a summary of the OLC memo, see Ben’s post here.

The Post shares its third installment in a series of articles on U.S. drone crashes. This one focuses on civilian-operated unmanned aerial vehicles (UAVs), which seem to be proliferating. The Post reports that a drone in Seattle, spotted taking pictures outside a woman’s apartment window, raised legal questions and privacy concerns.

Two researchers have determined that many U.S. hospital systems are vulnerable to cyberattack. Wired has the story.

Politico writes that the CIA has finished making initial redaction recommendations on a report regarding their interrogation techniques. In April, the Senate Intelligence Committee voted to declassify the document.

Glenn Greenwald’s article on “the most important [documents] in the archive” shared with him by Edward Snowden is “very imminent.” Politico’s Dylan Byers has the story.

Marshall Erwin in Real Clear Defense examines how legal scholars arguing over U.S. surveillance and intelligence policy has actually “hurt America’s national security bottom line.”

Finally, the Guardian indicates that the U.S. may find itself at war with North Korea over a Seth Rogen and James Franco movie. In the film, the actors attempt to assassinate North Korea’s supreme leader Kim Jong-un. In response, a spokesperson for the North Korean government stated that the movie represents “a most wanton act of terror and act of war and is absolutely intolerable.”

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.

SCOTUS: Without a Warrant, Police Generally Cannot Search Digital Information on Arrestees’ Cell Phones

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Wednesday, June 25, 2014 at 11:20 AM

You’ve likely heard the news, made earlier this morning by the opinion in Riley v. California.  

An Editor’s Note

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Wednesday, June 25, 2014 at 11:06 AM

Earlier this morning, we featured a post regarding key developments in the Mohamud criminal case in Oregon.  Because of an Editor’s error, and not because of any error by its author, the post incorrectly characterized a March discovery ruling in Mohamud as having issued yesterday, and summarized that ruling; but did not address a ruling that was handed down yesterday—namely, a post-conviction order rejecting a constitutional attack on Section 702 of FISA.  Lawfare regrets the mix-up, and expects to have a summary of the latter decision up today.

A Clue About the Origins of “Imminence” in the OLC Memo?

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Wednesday, June 25, 2014 at 10:37 AM

There’s a lot to discuss about the OLC memo on the al-Aulaqi strike—including, as Ben mentioned yesterday, the origins and significance of “imminence.”  (There’s also excellent analysis over at Just Security, which I recommend to interested readers.)

Throughout the OLC memo’s 41 pages, the much-scrutinized term appears several times, often as part of a phrase: “continued and imminent.”  This was borrowed from an unknown source—we can’t identify one, because of redactions—and seemingly meant to characterize the danger al-Aulaqi posed. On page 21, for example, the memo says executive branch personnel had concluded that al-Aulaqi’s activities “pose a ‘continued and imminent threat’” to U.S. persons and interests. On page 39, the memo also says that, on the facts represented to its authors, “a decision-maker could reasonably decide that the threat posed by al-Aulaqi’s activities to United States persons is “continued” and “imminent.””  I count three other mentions of the “continued and imminent” language elsewhere in the document, too.

And yet, in all of the OLC memo’s unredacted parts, we find neither analysis of the requirement, nor an explanation of its provenance. That puzzle lead Ben to advance his hypothesis about how “imminence” found its way into the OLC memo, and thus into other government documents drawn from the memo:

Warning: From here on in, I am speculating, and I could well be wrong. But I think the source of law for imminence in Holder’s speech, in the white paper, and in this memo is a presidential covert action finding. That is, I think the president, in issuing whatever finding gave rise to the killing of Al-Aulaqi, limited the authorization to situations involving imminent threats. This invocation was prudential, not legally required by any other source of law, but it operates as law for the executive branch.

I think Ben is likely right—or at least, there’s evidence to support his claim. But before elaborating further, let me acknowledge that I, like Ben, will be engaging in some speculation for a moment; and that I, like Ben, might be dead wrong about what follows.  With that caveat made, here is some reporting consistent with Ben’s theory. Read more »

Steptoe Cyberlaw Podcast, Episode #25: An Interview with Ralph Langner

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Tuesday, June 24, 2014 at 9:20 PM

This week in NSA: The House passes an NDAA amendment to regulate “secondary” searches of 702 data, and the prize for Dumbest NSA Story of the Month Award goes to Andrea Peterson of the Washington Post for exposing NSA’s shocking use of “Skilz points” to encourage its analysts to use new tools to do their jobs.  And GCHQ defends its view that sending email thru Yahoo and Hotmail is an “external” communication.

Good news for LabMD is bad news for the FTC: Darryl Issa raises questions about the FTC’s investigation and asks for an IG investigation.  Maybe the FTC did nothing wrong, but once it’s in the crosshairs that may not matter; the IG is bound to find something to criticize.  Of course, LabMD probably feels exactly the same way. The rest of us just want more popcorn.

Privacy campaigners in Europe lose another round against US companies obeying national security orders, an Irish court backs the Irish data protection authority’s decision not to investigate Facebook for cooperating with NSA.  But now the issue is moving to a body where anything can happen, no matter how wacky: the European Court of Justice.  Who are those guys?  Maury Shenk explains.

Michael Vatis and the Eighth Circuit give banks a tutorial on how to avoid liability to customers for weak security.  Just keep giving your customers more security choices until they turn one down.  It’s the miracle of choice!

I explain why I’ve always been leery of the Senate Intelligence Committee’s information sharing bill: It purports to legalize private-private information sharing that is already legal, and then to impose privacy requirements as the price for legalizing the already legal.  But that risk is much diminished in Chairman Feinstein’s latest draft.  Unamended, it would likely be fine, but it won’t take much amending to turn it into “back door” privacy regulation again.

Michael Vatis explains how to beat privacy class actions, building his lesson on the recent deflation of lawsuits against Hulu and Linkedin.

And our guest for the week is the man who decoded Stuxnet – and opened our eyes to a whole new realm of warfare — industrial control system sabotage.  Ralph Langner heads the Langner Group, which specializes in industrial control system security.  He is also a nonresident fellow at the Brookings Institution.

Ralph talks about how he unpacked Stuxnet.  I ask whether attacks on commercial industrial control systems could cause mass casualties among civilians.  Ralph is not comforting.  I ask whether all the talk about cyberattacks on water, power, refineries, and factories has at least produced concrete steps to improve their security.  Ralph is not comforting.  I ask about prospects for future improvement.  Ralph is, well, you know the rest.  Really, have a drink before you listen to this one.

Two Quite Important Rulings Today

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Tuesday, June 24, 2014 at 5:00 PM

Coincidentally, they come to us from two different federal judges in the District of Oregon.

The first decision concludes that remedial mechanisms associated with the so-called “No Fly” list violate due process;  the second rejects a defendant’s post-conviction effort to have an indictment thrown out—and, among other things, in doing so also rejects a constitutional attack on Section 702 of FISA.

Have a look at the quite significant opinions in Latif v. Holder and United States v. Mohamud.

Whence Imminence in that Drone Memo? A Puzzle and a Theory

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Tuesday, June 24, 2014 at 11:19 AM

On May 27, a unanimous Supreme Court—to little notice from just about anyone—handed down a case called Plumhoff v. Rickard, which dealt with a police shooting and a claim of excessive force during a high-speed car chase. Donald Rickard had led police in Arkansas on a highway chase, at the end of which officers shot him and his passenger to death, unloading 15 rounds into his car. His daughter alleged that this violated the Fourth Amendment. The Supreme Court disagreed, writing that “it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here . . . the police acted reasonably in using deadly force to end that risk.” While the court describes the public safety risk as “imminent,” the point is not central to its holding, which simply balanced Rickard’s Fourth Amendment rights against the public safety and found his shooting reasonable under the circumstances.

Several weeks later—yesterday, that is—the Justice Department released the Al-Aulaqi targeted killing memorandum (which I summarized here), and the world is aflutter, once again, with discussion of imminence. “Rather than more fully explain the government’s theory of ‘imminence,’ the newly released memo fails to address it at all,” complains the ACLU:

The previously disclosed “White Paper” on the targeted killing of U.S. citizens explained the government’s view that “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” But rather than give further explanation and clarity to that extraordinary and novel reading of “imminence,” the newly released memo—at least as presently redacted—fails to address that requirement in any detail whatsoever.

The memo, signed by David Barron, then-acting chief of the OLC (and now a newly confirmed First Circuit judge), tells us that “[h]igh-level government officials” determined that al-Aulaqi constituted an “imminent” threat to the United States. But the memo does not explain how the government interprets that requirement, nor does the memo explain the evidentiary standard the officials must meet in order to satisfy it.

Adds the New York Times editorial page:

There’s no explanation given in the memo for how the United States knew Mr. Awlaki was planning “imminent” mayhem, as the memo claims. It’s possible that this information was contained in the dozen or so pages that were redacted from the 41-page memo. . . . The memo says only that Mr. Awlaki had joined Al Qaeda and was planning attacks on Americans, but that the government did not know when these attacks would occur.

I have been puzzling for some time over the role that the imminence of a threat really plays in the administration’s legal understanding of targeted killing. It is certainly true that the administration has incorporated imminence into its public legal statements of when a targeted killing would be lawful. In Eric Holder’s speech at Northwestern Law School back in 2012, for example, the attorney general said:

Let me be clear: An operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles (emphasis added).

As the ACLU rightly notes, the concept of imminence also shows up in the administration’s white paper (see pp. 6-7). So clearly, it’s playing some role.

Far less clear is where the notion of imminence of threat comes from legally—that is, what role its playing and what legal requirement it is satisfying. As I wrote last year,

Neither the White Paper nor Holder’s speech makes clear what precise legal question the concept of imminence is addressing in its analysis. It is a bit of a mystery, in fact, whether the administration is using it to address resort-to-force matters under international law, domestic separation-of-powers questions, issues of the constitutional rights of the targets, as a possible defense against criminal prohibitions on killing Americans, or perhaps as a prudential invocation of the standards of international human rights law. What is clear is that the administration, for whatever reason, has limited itself in targeting Americans overseas to circumstances of an imminent threat.

The Barron memo does not directly answer this question. As the ACLU and the Times rightly note, the imminence discussion in it is minimal—either because the memo is actually focused on other things or because the discussion is redacted. What’s more, that discussion that is there takes the form more of a recitation of the CIA’s and DoD’s factual conclusions about Al-Aulaqi than it does an analysis of what work imminence is doing legally or what would constitute it factually. Yet reading between the lines, I think it’s now possible to exclude some of the conceivable roles for imminence I listed last year. And by doing so, I think it’s also possible to home in on the actual role the concept is playing—and its probable, and very surprising, legal source.

Let’s start by making clear what work imminence is not doing in the memo. Read more »

Today’s Headlines and Commentary

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Tuesday, June 24, 2014 at 11:19 AM

Civil strife and bloody violence rage on in Iraq. NPR reports that the country has “slipped into chaos” and that support for Prime Minister Nouri al-Maliki has all but vanished. New York Times reporting backs up that characterization of the current situation in Iraq, explaining that the reinvigorated Sunni militias threaten the future of the country. Another Times article examines the ethnically-charged violence that has overtaken Iraq.

The Washington Post recounts the massacre of Shiite villagers in Taza, which was ransacked by Sunni fighters affiliated with the Islamic State of Iraq and Syria (ISIS) last week. Over the past two days, 40 people from the area have been confirmed dead, though many more are still missing. Many of the residents of the village, and those surrounding it, have resettled to Kirkuk, which is under Kurdish control. According to a Time piece, the U.N. announced that at least 1,075 Iraqis have been killed in the month of June.

Secretary of State John Kerry traveled to the Kurdish regional capital, Erbil, this morning where he met with Masou Barzani, the Kurdish president. The Times reports that Kerry was imploring the Kurdish leadership to set aside any demands for an independent state and to work together to help form a new, viable Iraqi government.  However, Kurdish president Masoud Barzani expressed some hesitation to the idea, saying, “We are facing a new reality and a new Iraq.” The Post and the Hill also cover Kerry’s meeting in Erbil.

The AP informs us that the United States was able to secure legal protections, akin to legal immunity, for the American military advisers deploying to Iraq.  The U.S. had tried—and failed—to secure such a deal three years ago for American forces that were then deployed in the county. Jack linked to Eli Lake and Josh Rogin’s piece in the Daily Beast on this subject.

No particular surprise here: The results of a Huffington Post and YouGov poll are in, and nearly 70% of Americans oppose sending U.S. troops to fight in Iraq.

The U.S. continues to weigh its options in Iraq: According to an ABC News report, Secretary Kerry indicated that, with or without an agreement between the U.S. and the Iraqi government, President Obama “may make a decision at any point in time” to engage in targeted strikes.

The Hill shares a Defense Department release, which notes that funding for operations in Iraq will come from money allocated to U.S. Central Command (CENTCOM) rather than the Pentagon’s wartime account.

Mujib Mashal of the Atlantic sat down with Afghan president Hamid Karzai in April. The Atlantic released most of the transcript of the interview, along with Mashal’s full piece, After Karzai. The interview is fascinating, particularly this section, in which Karzai describes his take on the war in Afghanistan, and what it was like when American forces came to Afghanistan:

No, I never saw a war. The Taliban left without a fight. But then the Americans—I was in Kabul, without access to the country in the initial days, and without the tools of governance, which are still very weak—they went around with thugs from our own country, the militias they employed and themselves, and forced the Taliban back into taking guns. And Pakistan was willing, and ready to use the opportunity. So a war was created in Afghanistan—there was no war, there is no war, and I would never agree to be at war in my own country. I would never be a commander in chief fighting a war among my own people. No. I am happy I wasn’t, and I will not be.

Meanwhile, Afghanistan is still waiting for the results of its recent presidential election. Yesterday, Jane covered the fraud and corruption scandal that has marred the election, leading to the ultimate resignation of the country’s chief electoral officer. Today, the Business Standard reports that the United Nations will step in to broker a solution to the political crisis. The UN will hold talks between presidential candidate Abdullah Abdullah and Afghanistan’s election authority.

President Obama, in an interview that aired on MSNBC yesterday, detailed his worries that Afghanistan might, like Iraq, be plagued by violence after U.S. troops withdraw from the country. The Hill explains that, despite this admonition, Obama was clear in stating that he does not plan to shift his policy on U.S. troop withdrawal from Afghanistan, even as Iraq continues to descend into chaos: “Keep in mind that our goal in Afghanistan was to decapitate al Qaeda, which had carried out 9/11. That has been accomplished. Now Afghanistan is a sovereign country that is going to have to deal with its own security.”

A suicide bomb was detonated near a café in Lebanon’s capital, Beirut, last night. The BBC covers the explosion, explaining that it is still unclear how many individuals were wounded, and if any, other than the suicide bomber, were killed.

As we’ve covered already here, the Second Circuit released the previously classified Office of Legal Counsel memo justifying the drone strike that killed Anwar al-Awlaki, an American citizen. The AP has the story.

The Times Editorial Board weighs in on the issue, and isn’t particularly impressed with the justification given: “…the memo turns out to be a slapdash pastiche of legal theories—some based on obscure interpretations of British and Israeli law—that was clearly tailored to the desired result.

Jameel Jaffer, deputy director of the ACLU writes, over at the Guardian, that the release of the memo is a “victory for transparency,” but that the American public still does not have enough information over the government’s wider drone policies. He’s also not too pleased that about a third of the released memo was redecated.

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.

Readings: Through Our Glass Darkly: From ‘Universal’ to ‘Extraterritorial’?

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Monday, June 23, 2014 at 8:00 PM

Apologies for Shameless Self-Promotion, but I wanted to mention an essay of mine that came out a couple of months ago as part of an excellent symposium on the work of Harvard Law School’s comparative law scholar, my old and dear friend Mary Ann Glendon. (Duquesne Law Review, Vol. 52, Winter 2014, pp. 115-149, “Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication?” at SSRN.)

The title is clumsy, but its opening phrase refers to a conversation I had with Mary Ann probably twenty years ago–a purely casual remark of hers, and I doubt she’d remember it (and certainly shouldn’t be held to what I did with it in the essay). But it always stuck with me; I was visiting that term at HLS, and in this discussion she’d urged me to look beyond public international law to comparative law. Explaining why I should find comparative law important, she said, “We see through our glass darkly, after all.” I was puzzled by the “our” in that phrase. Each different society and its legal system, she explained–the very stuff of comparative law–sees through its own glass and

each sees in some way “darkly,” peering through the accreted overlays of its own customs, traditions, bureaucratic and administrative processes, toward a moral and rational reading of that society’s law.  Every society’s “glass” carries with it obscuring layers, both moral and rational, and part of the value of comparative law as a field of study is that it provides tools for seeing and understanding those blinders—the motes in others’ eyes and the beams in one’s own, if all goes well—in order to bring light to the darkness.

We don’t have unmediated access to any perfectly moral, perfectly rational, perfectly idealized or abstract legal form—even if, in principle, there were such a thing.  What we do have, however, is the ability to compare ways of doing things in different societies and their legal systems, in order to see through the exercise of perspective, what might be a better (or sometimes worse) way of doing things in our own legal system and society.

But then Professor Glendon added (I paraphrase the conversation from memory), “I said ‘ours’ because it matters that it’s ‘ours’.  There’s nothing wrong with preferring your own way of seeing through the glass, just because it’s yours—the product of your society, your history, your attachments and affections and those of your people.  That’s especially true of the founding texts of a political society and law—a society’s constitution.” (pp.115-116)

The topic ostensibly at issue in this essay is “comparative constitutional law” and the controversial practice–seemingly today in decline–of US judicial citation to foreign cases in US constitutional adjudication.  One of the contributions of comparative law as a scholarly discipline, the essay suggests, is to emphasize how formal law (law of the kind one might imagine picking up in one society as a judicial opinion and then dropping by helicopter, as it were, into the open arms of a judge in another place with a quite different legal culture) is embedded in complex human institutions with complex histories, relationships, shared background assumptions about interpretation, authority, and so on. Comparative law as an academic discipline has a certain aspect of anthropology to it. Read more »

The Al-Aulaqi OLC Memo: A Quick and Dirty Summary

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Monday, June 23, 2014 at 4:07 PM

I have this feeling that a lot of people are going to mischaracterize the just-released OLC memo on the Anwar Al-Aulaqi strike. Just a guess. So before expressing any opinions on the subject or arguing with anyone about it, I thought I would start things out with a straight summary of the memo, which I am writing as I read it. The memo is dated July 16, 2010 and is signed by then OLC acting head David Barron (who has recently joined the federal bench).

The now-public portion of the memo begins with a consideration of 18 U.S.C. § 1119, which deals with the foreign murder of U.S. nationals. The memo argues that the statute would not cover the contemplated operations against Al Aulaqi—the proposed details which have not been revealed—because Section 1119 “must be construed to incorporate the public authority justification” for a killing, a justification which would “render lethal action carried out by a governmental official lawful in some circumstances.” A police officer, for example, is not charged with murder when he shoots a suspect within the lawful contours of his job, and Section 1119 must include some form of this exception. The question is whether the proposed operations fit within it and are thus exempted from the coverage of the statute.

The memo goes on to argue that the justification would cover the action both as contemplated by the Pentagon and as contemplated by the CIA. The basic reason is that the statute covers only “unlawful” killings, and the contemplated operation falls, rather, within the category of “lawful conduct of war” which is “a well-established variant of the public authority justification.” Congress, after all, passed the AUMF—thus specifically authorizing force against Al Qaeda. And, “a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are ‘associated with’ al Qaida forces for purposes of the AUMF,” Barron writes.

What’s more, he argues, Al Aulaqi himself “has engaged in conduct as part of that organization that brings him within the scope of the AUMF.” He has “been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen.” So the operation would take place against someone “who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.” Read more »

Second Circuit Releases Redacted OLC Drone Memo

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Monday, June 23, 2014 at 3:07 PM

The Second Circuit has just released a redacted version of the OLC Drone Memo–here is the memo; here is the panel’s full, revised April 21, 2014 decision with the memo appended at page 67.

You’ll recall that back in April, a three-judge panel (comprising Judges Newman, Cabranes and Pooler) reversed a lower court decision dismissing the ACLU’s suit for release of the memo containing the legal justification for the targeted killing of American citizen Anwar Al Awlaki. Today the panel filed a revised opinion with the memo appended, after granting the government’s request for additional redactions to and correction of its April 21 opinion.

Bits and Bytes

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Monday, June 23, 2014 at 12:16 PM

Cyber Attack on Hong Kong Among Largest Ever.  “The online voting platform for the unofficial referendum now underway on Hong Kong’s political future has been subjected to one of the most severe cyberattacks of its kind ever seen, according to the head of the Internet security company tasked with protecting it.”  [None of the attack bots were China based ....]

Reuters Hacked by Syrian Electronic Army. “The website of the news agency Reuters has been hacked by the Syrian Electronic Army (SEA) again – condemning the news site for publishing “false” articles about Syria.  People on Twitter raised concern after articles from the site seemed to redirect to a message from the SEA, known computer hackers who support the government of Syrian president Bashar al-Assad.”

Google Unveils Fork in OpenSSL. “Google is releasing its own independently developed “fork” of OpenSSL, the widely used cryptography library that came to international attention following the Heartbleed vulnerability that threatened hundreds of thousands of websites with catastrophic attacks.”  [Forks are divergent software development tracks ... This is a promising response by Google ... if you trust Google]

How Dumb Is This?

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Monday, June 23, 2014 at 12:08 PM

I yield to nobody in my capacity to be surprised by Congress, but sometimes even I get a bit of a shock.  I totally get the idea that everyone is angry at the NSA.  And, indeed, I’ve spoken publicly about my particular disappointment that the NSA may have (if reports are accurate) deliberately degraded encryption standards.  If true, it is probably the single greatest harm NSA can have done to the security of the network.  But, if (as Matt reports) Congress is going to “prevent[] NIST from consulting with the Department of Defense and National Security Agency when developing standards and guidelines for information systems,” that’s just foolish.   NSA has more mathematicians and cryptographers than the entire rest of the government combined.  And we are going to exclude this expertise from consultation simply because we can’t figure out a way to manage ourselves better?  If anything, this will systematically make our encryption less robust and less secure. Talk about throwing the baby out with the bathwater …..

UPDATE:  My friend Julian Sanchez quickly points out that the summary above is incomplete.  The Grayson amendment forbids consulting with NSA “in contravention of the assurance” in 15 U.S.C. 278g-3(c)(1)(A),”  That provision says:  “use of appropriate information security policies, procedures, and techniques, in order to improve information security and avoid unnecessary and costly duplication of effort.”   Less foolish than at first glance …. 

Today’s Headlines and Commentary

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Monday, June 23, 2014 at 11:01 AM

This morning, the New York Times cites recent Western officials and experts who have indicated that Iraq’s military forces are “combat ineffective” and its leadership is crippled by corruption. In an interview with CBS scheduled to air in full this morning, President Obama stated that the U.S. will have to pursue a “more focused, more targeted strategy” than “play[ing] whack-a-mole” and sending in U.S. troops to address terrorist threats wherever they emerge.

U.S. Secretary of State John Kerry made an unannounced trip to Baghdad to meet with Prime Minister Nouri al-Maliki as ISIL (Islamic State in Iraq and the Levant) seized more territory along the Iraq-Jordan border, reports Bloomberg. The Associated Press said yesterday that Sunni militants have now captured four towns and three border crossings in western Iraq.
On Sunday, Ayatollah Ali Khamenei accused the U.S. of falsely portraying the conflict in Iraq as a sectarian war and attempting to retake the country, says Reuters.

President Obama is faced with two terrible choices in Iraq, writes Meghan L. O’Sullivan over at Politico:

Obama can either pursue an incremental, conditional approach that will satisfy his desire to put maximum pressure on Prime Minister Nouri al-Maliki and minimize America’s return to Iraq—but will likely fail to address the severity of the crisis. Or Obama can set aside his understandable caution and provide more robust military assistance before he can be confident of getting the political changes that are needed to turn any Iraqi government military gains into strategic successes.

Richard Barrett, former head of counterterrorism at the MI6 intelligence agency, told the BBC that as many as 300 radicalized Britons may have already returned to Britain after fighting in Syria and Iraq.
Afghanistan’s election crisis continues. The party of presidential candidate Abdullah Abdullah, former leader of the anti-Taliban Northern Alliance, broadcast audio on Sunday that purportedly showed that the head of the Independent Election Commission (IEC) Secretariat had ordered officials in several provinces to stuff ballot boxes, reports Reuters. The country’s chief electoral officer has resigned over allegations of fraud in the presidential run-off, says the AP by way of ABC.
On Sunday, after a 90-minute meeting with Egyptian President Abdel Fattah el-Sisi, Secretary of State John Kerry said that the Obama administration was prepared to reaffirm a U.S. partnership with Egypt. He said that the U.S. would soon restore $650 million in aid that it had withheld after Gen. Sisi deposed his predecessor in a military coup. Here is the New York Times. While there, Secretary Kerry also hinted that the U.S. would be open to a new Iraqi leader.
But in what the Times is calling a “potentially embarrassing turn for the Obama administration,” the next day, an Egyptian court sentenced three imprisoned Al Jazeera journalists to years behind bars on charges of aiding the Muslim Brotherhood and reporting false news. Two other Al Jazeera journalists tried in absentia were sentenced to ten years in prison; according to Al Jazeera English managing director Al Anstey, the decision defied “logic, sense, and any semblance of justice.” An Egyptian court also handed down a mass death sentence on Saturday for the Muslim Brotherhood’s spiritual leader Mohammed Badie and more than 180 others, writes the Wall Street Journal.
This weekend, the Economist published a short piece on Ahmed Abu Khattala, reviewing the Republican response to the Libyan’s capture.
It has been more than ten days since three Israeli teenagers were kidnapped from the West Bank; in the ensuing crackdown, Israeli troops have killed four Palestinians, including a 15-year-old. The Times reports. The Guardian noted yesterday that the Israeli military also struck Syrian army targets over the weekend in retaliation for the killing of an Israeli teenager in an attack on an Israeli defense contractor’s vehicle.
At least 47 large military drones have crashed in the U.S. during test or training flights from 2001 to 2013. See the exclusive findings from the Washington Post‘s yearlong investigation here.

Is President Putin secretly funding efforts to fight fracking—not because he cares about the environment, but because he wants to keep Europe dependent on Russian gas? That’s the charge being levied by NATO chief Anders Fogh Rasmussen, notes Foreign Policy.

Human Rights Watch has just released a report on non-state armed groups’ use of children as young as 10 to participate in combat operations in Syria. Here‘s the Al Jazeera coverage.
A 22-year-old South Korean soldier killed five of his fellow soldiers near the DMZ this weekend, before turning the gun on himself in an unsuccessful suicide attempt. CNN has more.
Reuters notes that on Sunday, the U.S. missile defense system successfully hit a simulated enemy missile over the Pacific, after failing five of eight previous tests, including two in 2010.
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.

Lake and Rogin on Absence of Immunity for U.S. Troops in Iraq

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Monday, June 23, 2014 at 10:05 AM

Eli Lake and Josh Rogin have a revealing story entitled Obama Flips on Immunity for U.S. TroopsIt begins:

President Obama pulled U.S. forces out of Iraq in 2011 because he couldn’t get Iraq’s parliament to offer U.S. soldiers immunity from Iraqi prosecution. But now Obama has promised to send in hundreds of special operations forces before securing even a simple promise that these soldiers will not be tried in Iraq’s famously compromised courts for actions they are taking in defense of Baghdad.

Lake and Rogin note that in 2011 the Obama administration balked at the immunities provided in a negotiated Status of Forces Agreement (SOFA) after concluding that it would not be binding in Iraq absent parliamentary approval, which was not forthcoming.  They continue:

Yet this time around, Obama is willing to accept an agreement from Iraq’s foreign ministry on U.S. forces in Iraq without a vote of Iraq’s parliament. “We believe we need a separate set of assurances from the Iraqis,” one senior U.S. defense official told The Daily Beast. This official said this would likely be an agreement or exchange of diplomatic notes from the Iraq’s foreign ministry. “We basically need a piece of paper from them,” another U.S. official involved in the negotiations told The Daily Beast. The official didn’t explain why the parliamentary vote, so crucial three years ago, was no longer needed.

The piece closes:

[F]or now, one major obstacle to any further U.S. intervention in Iraq will be the issue of legal immunity. Speaking to reporters on Friday, Pentagon spokesman, Rear Adm. John Kirby, said, “We are pursuing something in writing. The secretary is absolutely committed to making sure that our troops have the legal protections. He would not do that on a nod and a wink.”

The Key Amendments to the Defense Appropriations Act

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Monday, June 23, 2014 at 10:00 AM

Last week the House of Representatives passed its version of the Defense Appropriations Act for fiscal year 2015, H.R. 4870, with a series of amendments with major implications for national security policy. Here is a list of those amendments, brief summaries, and what happened to each one.

Curbing NSA Activities

Representatives Zoe Lofgren (D-CA) and Thomas Massie (R-KY) sponsored an amendment that prevents any US intelligence officials from using appropriated funds to conduct “backdoor searches,” or using an US person identifier to query foreign intelligence information collected under the Section 702 program.

Status: Passed, 293-123

In response to recent evidence that the intelligence community urged the National Institute of Standards and Technology (NIST) to develop weaker encryption standards, Representative Alan Grayson (D-FL) offered an amendment that prevents NIST from consulting with the Department of Defense and National Security Agency when developing standards and guidelines for information systems.

Status: Passed, voice vote

What to Do With Guantanamo

Members proposed a number of amendments wrestling with how to handle the future of the detention facility at Guantanamo Bay, Cuba.

Representative Jackie Walorski (R-IN) offered an amendment prohibiting the use of funds to transfer or release detainees at Guantanamo Bay to Yemen.

Status: Passed, 238-179

As Steve noted last week, Representative Tom Cotton (R-AK) offered an amendment banning the use of funds to transfer or release Guantanamo detainees to any foreign country.

Status: Passed, 230-184

Representative Jim Moran (D-VA) put forth an amendment to allow the military to return 77 Guantanamo detainees cleared for release to their home countries and transfer those detainees not cleared for release to the United States for prosecution.

Status: Failed, 163-249

Representative Grayson offered another amendment that bans the use of funds to detain, without conviction, any person at Guantanamo for more than 15 years.

Status: Failed, voice vote

Arming the Syrian Rebels

Representatives John Conyers (D-MI) and Ted Yoho (R-FL) sponsored an amendment barring the use of funds to provide man-portable air defense systems (MANPADS) to the Syrian rebels.

Status: Passed, voice vote

Representative Jeff Fortenberry (R-NE) brought an amendment banning the provision of weapons to any entity in Syria.

Status: Failed, 167-244

(Not Yet) The End of the AUMF

Representative Barbara Lee (D-CA), who voted against the 2001 Authorization for Use of Military Force back in September 2001, proposed an amendment preventing the use of funds pursuant to that AUMF after December 31, 2014, which is the current date for the end of combat operations in Afghanistan.

Status: Failed, 157-260

Keeping Drones Away From Local Law Enforcement

Representative Grayson also offered an amendment prohibiting the Department of Defense from making available to local enforcement certain military equipment, including drones, missiles, and armored vehicles.

Status: Failed, 62-355

Relitigating Guantánamo in the Context of Abu Khattala: A Different View

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Monday, June 23, 2014 at 7:00 AM

As I read Ben’s, Jack’s, John’s Steve’s and Wells’s posts, I come away with the impression that there is unanimous agreement at Lawfare that Abu Khattala (a) cannot be sent to Guantánamo for further interrogation and (b) must be tried in the civil justice system.  As a policy matter, they may be right in this particular case, but I respectfully disagree if they are asserting that these conclusions are legally compelled.

I recognize that some of my disagreement may be attributed to a different understanding of the facts.  So, let me stipulate the following facts:

    • Abu Khattala was seized by the USG in the exercise of self-defense.  (According to UN Ambassador Samantha Power’s letterto the UNSC (thanks to Charlie Savage in the NY Times), Abu Khattala is a senior leader of the Libyan militant group Ansar alSharia-Benghazi in Libya, was a key figure in the attack on the U. S. facilities in Benghazi and continued to plan further attacks against U. S. persons.
    • The seizure of Abu Khattala was part of an armed conflict.  (I have not seen any definitive assertions that the USG has taken this position, but given the military assets involved (Navy SEALs and Delta Force), I would assume that the participants assumed that they were operating under the law of war and not the law of human rights.)
    • The authority to seize Abu Khattala was not derived from any Congressional authorization for the use of force (i.e., authority outside criminal laws).  (Fox News was reporting Wednesday night that Al Qaeda elements were planning further attacks in Libya, but we will not get into the question here of whether the 2001 AUMF provides authority, particularly since, as Jack reported in hispost on this subject, the Chairman of the JCS has denied that they were relying on the 2001 AUMF in their pursuit of  Abu Khattala.)
    • Likewise, his trial by a military commission is not authorized by the Military Commission Act of 2009.  (Again, I accept, for purposes of this post, that Jack is right that Abu Khattala does not come within the definition of “unprivileged enemy combatant” in the MCA.)

I believe, as a legal matter:

    • Abu Khattala may be detained under the law of war, outside the “public safety” exception to Miranda, under the President’s executive and commander-in-chief authority to use force in defending the vital national interests of the United States.
        • Circumstances triggering the individual right of self-defense in the international law context would also trigger the right of self-defense in the domestic, Constitutional context.
        • The authority to use force includes the authority to detain combatants.
    • As a combatant, Abu Khattala may be tried by an existing military commission that has jurisdiction over whatever offenses he is charged with (if one exists) or a specially constituted commission meeting the standards of our military justice system, provided the USG can demonstrate that “some practical need explains deviations from court-martial practice.”  See Justice Stevens’ opinion in Hamdan v. Rumsfeld, 548 U.S. at 632-633.  Given the hostility of the majority inHamdan to the remaining sliver of Presidential authority to convene military commissions not authorized by Congress, recognized by Ex Parte Quirin, 317 U. S. 1 (1942), this would be a tall order, but I think it is important to acknowledge that this authority does exist, at least in theory.
    • Neither detention at Guantánamo for interrogation nor eligibility for trial by a military commission rules out the possibility of trial in the civil system.

Notwithstanding my legal conclusions (and this may be all that the Lawfare posters are saying), it is far from clear that, as a policy matter, it is worth the fuss to use a military commission, even if one were currently available.  Furthermore, with detention in Guantánamo there are serious risks, including, I would assume, the inadmissibility of some information gleaned through interrogation without Abu Khattala having a lawyer present.  But, there are also risks in the civil justice system.   Taking a hard look at using a military commission does not necessarily reflect hostility towards the civil system or a political motive.   And we should certainly not let a fetish with closing Guantánamo cause us to rule out its use, particularly for interrogation purposes.

Edwin Williamson is Of Counsel at Sullivan & Cromwell LLP.  He served as Legal Adviser at the U.S. State Department from 1990 to 1993.  

The Week That Will Be

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Monday, June 23, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

  • Mon, June 23 at 9 am: The Guantanamo Public Memory Project launches in the Rayburn House Office Building. The exhibit—curated by students from fifteen universities and hundreds of people who served, lived, and were held at the prison—features stories, images, and documents. There will be an evening reception featuring speakers such as Carol Rosenberg.
  • Tues, June 24 at 10 am: The Brookings Institution hosts an event entitled The Future of Global Technology, Privacy, and Regulation with Brad Smith, the Executive Vice President and General Counsel of Microsoft.
  • Wed, June 25 at 10 am: The International Institute for Strategic Studies is holding a discussion on How the US is Perceived in the Cyber Domain by other Major Actors. The panel will discuss how China and Russia, for example, view Western policies on cybersecurity and cyber governance.

 

Employment Announcements (More details on the Job Board)

  • The Army is looking for a Deputy General Counsel to work under the Secretary of the Army and the GC. The deadline to apply is July 3, 2014. A summary of duties is below:

Serves as counsel for the Department of the Army (DA) under direction of the Secretary of the Army (SA) and the General Counsel.   Personally and routinely advises the SA, USA, ASAs, and other HQDA principals. Represents the Army to DoD, DoJ, the Interagency, and Congress.  Provides strategic legal and policy advice to resolve DA’s most complex issues in the areas of operations and personnel.  Acts for the SA to ensure legality/propriety of intelligence, counter-intelligence, and special operations. Oversees sensitive criminal investigations, to include acting on CID requests to use clandestine monitoring and DAIG investigations of GO/SES misconduct.   Legal advisor to the SA in his command of the DC National Guard.  Advises on the panoply of military and civilian personnel issues: recruitment, accessions (USMA, ROTC), mobilization, promotions, discipline, awards, retirement, leave, pay and allowances, and EO/EEO.  The expert on NSPS and management of the Defense Acquisition and Intelligence workforces.  Responsible for legal aspects of medical/health policy and casualty/mortuary, funeral honors, and friendly fire issues. Advises the SA on the organization/ authorities of the DA as an Executive Branch agency, to include Goldwater-Nichols, political transitions, and delegations of authority. Provides legal clearance on all legislative/ULB proposals and communications with Congress and the media.   Acts for the SA on FOIA and Privacy Act appeals.   Ensures DA interests are protected in litigation. Supervises 9 attorneys at the DISL/HQE/YA-03/COL level, and 1 paralegal. Performance is reviewed for senior leadership effectiveness and technical competence as measured by contributions to mission and client service.

  • The Department of Justice is looking for a Deputy Assistant Attorney General for its National Security Division. The position is open until July 9, 2014. Here is a brief summary of duties:

The Deputy Assistant Attorney General performs all duties assigned or required to execute the AAG’s policy, programmatic, legal, and administrative agenda including but not limited to the following: Provides supervisory and management oversight of a staff of lawyers and non-lawyers that handle extremely sensitive matters of significance to NSD, including, but not limited to:  certain cybersecurity and counterintelligence-related matters; reviews of foreign acquisitions of domestic entities that might affect national security; tracking and monitoring of transactions that have been approved and identifying unreported transactions that might merit review; and responding to Federal Communication Commission (FCC) requests for the Department’s views relating to the national security implications of certain transactions relating to FCC licenses.

  • The FBI’s Office of General Counsel has attorney vacancies in two of its offices—the National Security Law Branch and the Litigation Branch. The application deadlines for the positions are tomorrow, June 24, 2014.

The Foreign Policy Essay: The Rising Threat of Revolt in Autocracies

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Sunday, June 22, 2014 at 10:00 AM

Editor’s Note: “People power” has long captured the hearts of Western publics, with images of brave protesters standing up to tyrants renewing our faith in how extraordinary ordinary people can be. Yet elite coups, not popular protest, have long been the biggest danger to dictators. However, the Arab Spring brought renewed attention to popular protests as a form of regime change, as autocrat after autocrat fell or appeared near collapse. Andrea Kendall-Taylor, who serves in the U.S. intelligence community, and Erica Frantz, a professor at Bridgewater State University, contend that the Arab Spring is not an anomaly: popular protest is indeed on the rise as a form of regime change and that this trend, if nurtured properly, could make the spread of democracy more likely.

***

Authors’ Note: This essay draws on a recent article in the Washington Quarterly, in which we argue that today’s dictators should be more concerned with popular protests than they have in the past.

Autocrats are becoming more vulnerable to being ousted by revolts. The protests of the Arab Awakening, which unseated four of the world’s longest-serving dictators (Zine al-Abidine Ben Ali of Tunisia, Hosni Mubarak of Egypt, Muammar Qaddafi of Libya, and Ali Abdullah Saleh of Yemen) make this seem almost obvious. But a review of the historical data reveals that the masses have not always posed such a threat to authoritarian leaders.

Historically, the dictator’s group of elite supporters has posed the greatest danger to a leader’s survival in office. In the 1960s and 70s, for example, almost 50 percent of all autocrats who lost office did so via military coup. However, using data from political scientist Milan Svolik that capture autocratic exits from 1948 to 2008 and our own updates through 2012, we find that the percentage of autocrats ousted via coup has declined considerably in the post-Cold War era, falling to less than 10 percent in the last decade. Concurrently, the proportion of autocrats exiting amid revolt has tripled from 4 percent to 12 percent since the end of the Cold War. (The remaining autocrats have exited via other means, including civil war, constitutional processes such as elections or term limits, or death in office.) In fact, from 2010-2012, a quarter of dictators who lost power did so via revolt, and revolts now unseat a greater proportion of autocrats than coups do.

Kendall-Taylor photo with borderThere are likely several explanations for the shift in autocratic exit. For example, changes in the geopolitical agendas of Western powers following the end of the Cold War almost certainly contributed to the reduction in the proportion of leaders ousted via coup. After the end of the Cold War, the number of military regimes declined considerably: between 1940 and 1990, military regimes comprised 38 percent of all autocracies, but now constitute less than 10 percent of today’s autocratic regimes. This decline contributed to the decrease in coups because coups are the primary means of leadership turnover in military regimes, almost comparable to votes of no-confidence in parliamentary democracies. In Argentina’s military dictatorship from 1966-73, for instance, coups toppled two of that regime’s three leaders. Moreover, since the Cold War, a number of Western countries have implemented policies that seek to punish those who bring down elected governments by suspending foreign aid in the wake of coups. Following the 2013 coup that toppled Egyptian president Mohammad Morsi, the United States announced suspension of military aid to that country shortly afterwards; however, in late April of this year, the Obama administration decided to partially resume military aid to Egypt. Actions like this also may have contributed to the reduction in the frequency of coups worldwide by lowering the payoffs that would-be coup plotters expect to gain by seizing power.

Erica Franz photo with borderSimultaneously, the rise of communication technologies and social media has almost certainly fueled a rise in revolts. Revolts capable of bringing down a dictator are notoriously difficult to orchestrate. While coups require only a handful of individuals, revolts entail the mobilization of tens of thousands of citizens. Social media technologies reduce coordination costs, enable more citizens to make anti-regime preferences public, and widely publicize regime abuses that can serve as triggering events for widespread protest. This is not to say that access to social media is causing revolts. Indeed, such technologies may also be a tool that autocrats can use to maintain power, allowing dictators to track and target threatening opposition. Rather, access to social media opens up the possibility for people to make their discontent public, increasing the odds that others will join their cause and, in conjunction with other methods such as radio or word of mouth, facilitating protests big enough to topple longstanding leaders.

The rising importance of the masses in autocracies is important for two reasons. First, it suggests that leaders afraid of revolt are likely to shift their survival strategies, which affects political dynamics within these regimes and generates implications for Western engagement. For one, autocrats are likely to place greater emphasis on minimizing the risk of mass protest through greater restrictions on political and civil liberties, and will likely become increasingly suspicious of Western activity in their countries. Most recently, Russian president Vladimir Putin has publicly blamed the West for orchestrating Ukrainian president Viktor Yanukovych’s ouster, and Venezuelan president Nicolás Maduro has used his state-controlled media to blame the United States for protests in his country. Moreover, the vivid examples of instability related to recent revolts and the anti-Western narratives such revolts enable provide leaders with justification for, and perhaps greater public acceptance of, increasingly repressive measures. The rise of revolt, therefore, is likely to fuel restrictive policies such as the uptick in anti-NGO (non-governmental organization) legislation (Russia’s recent “foreign agent law” is one example) and other restrictions that limit civil space and complicate Western engagement. Read more »

Lawfare Podcast Episode #80: CrISIS in Iraq

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Saturday, June 21, 2014 at 2:00 PM

Brookings Senior Fellows Kenneth Pollack, Suzanne Maloney, and Michael O’Hanlon discussed the evolving security crisis in Iraq on Thursday at a Brookings event entitled “Iraq in Crisis: What Options Does Washington Have?” On Lawfare, we debate whether Article II or the 2001 and 2002 AUMFs give the President the authority to use force against the Islamic State of Iraq and Syria—but how wise a policy would military involvement even be? And how does cooperation on terrorism with Iran and the Gulf states factor into an American response to Iraq’s security crisis? The panel examined these questions, and a variety of others. Tamara Wittes introduced the speakers and moderated the discussion.