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Labor Relations and Chemical Security

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Monday, December 1, 2014 at 5:23 PM

You wouldn’t think that labor relations were related to chemical security, but they are (or at least they may be).  The security of our chemical facilities is governed by the CFATS — the Chemical Facility Anti-Terrorism Standards (6 CFR Part 27). CFATS are promulgated by DHS pursuant to Section 550 of the Department of Homeland Security Appropriations Act of 2007, which authorized the program.  Savvy readers will understand that an authorization through an appropriations act is unusual … and hence a move has been afoot to make the CFATS program permanent.  In July 2014, the House passed the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014 (H.R. 4007) by a voice vote. The bill would make permanent DHS’s authority to regulate security at chemical facilities in the United States.

Action is now pending in the Senate, where, I am told, leaders are trying to hotline an authorization bill.  One sticking point will be the effort by organized labor to secure a seat at the CFATs table.  Here is the internal Republican argument in favor of making the concessions requested:

Permitting Limited Involvement of Workers and Labor Representatives with Security Expertise — After HSGAC reported the bill out, several labor representatives met with Senate leadership threatening a hold on the bill unless labor interests were adequately represented. This draft would make the minimum necessary concessions to them to keep from getting a hold. Those are: worker involvement (§ 2102(b)(2)), making clear that CFATS doesn’t affect bargaining agreements (§ 2102(d)(2)(C)(ii)), and requiring facilities to accept any valid credential from an employee to meet the terrorist screening element of CFATS personnel surety (§ 2102(d)(2)(B)(i)(II)(aa)). These provisions, although concessions for our side, are the minimum necessary to pass a bill; they are sharply limited. For example, through negotiations with labor and the private sector, the worker involvement provision has been conditioned as required “to the greatest extent possible,” restricts involvement to only one worker (and one union rep if applicable), and requires those workers have relevant security expertise, which is left to the judgment of facility management. In the case of the requirement to accept any valid credential, Senator Carper and Senator Coburn have added a savings clause at the request of the private sector, making clear that nothing prevents a facility from maintaining its own policies about access to restricted areas or critical assets. (§ 2102(d)(2)(C)(i).)

I suspect the hotline will fail — now is not a likely time for Republican Senators to agree to a new labor role in national security.  But we shall see.

White House Proposes Funds for Police Body Cameras

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Monday, December 1, 2014 at 3:22 PM

The privacy- and oversight-relevant news comes to us via this Associated Press story. It begins as follows:

WASHINGTON (AP) — President Barack Obama wants to see more police wearing cameras to help build trust between the public and police by recording events like the shooting death of unarmed 18-year-old Michael Brown, but is not seeking to pull back federal programs that provide the type of military-style equipment used to dispel the resulting racially-charged protests in Ferguson, Missouri.

The White House announced the conclusions of a three-month review Monday as the president was holding a series of meetings with his Cabinet, civil rights leaders, law enforcement officials and others to go over the findings. At least for now, Obama is staying away from Ferguson in the wake of a racially charged uproar over a grand jury’s decision last week not to charge the police officer who fatally shot Brown.

“The president and his administration are very focused on the underlying issues that have been uncovered in a pretty raw way in Ferguson,” said White House press secretary Josh Earnest. But he wouldn’t say if additional training of Ferguson police would have resulted in different outcome in there.

Obama is proposing a three-year, $263 million spending package to increase use of body-worn cameras, expand training for law enforcement and add more resources for police department reform. The package includes $75 million for to help pay for 50,000 of the small, lapel-mounted cameras to record police on the job, with state and local governments paying half the cost. The FBI estimates there were just under 700,000 police officers in the US in 2011.

 

Today’s Headlines and Commentary

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Monday, December 1, 2014 at 10:59 AM

The U.S.-led coalition to fight back the Islamic State in Syria and Iraq struck Raqqa, an IS stronghold in Syria, hard last night.  CNN reports at least thirty airstrikes were launched against the city, as confirmed both by the Syrian Observatory for Human Rights, a London-based organization, and by rebels on the ground.

The United States will begin screening Syrian rebels before including them in U.S.-led military training programs. The Washington Post reports that the screening will include psychological and stress evaluations along with standard background checks. These steps go far beyond what the United States usually employs when vetting foreign soldiers.

Meanwhile, in Iraq, the United States will employ a new training strategy. The Post explains that the U.S. military will train a small number of elite Iraqi soldiers, rather than attempt to help build a new army from the ground up. But even if this highly skilled force is able to push the Islamic State back in key parts of Iraq, it is “unlikely to address the larger decay across Iraq’s security forces and institutions, a more complex, deeply rooted phenomenon that undermines the country’s stability.”

The Iraqi government didn’t collapse because of weak organization or a strong militant opposition: “rampant” corruption is to blame, according to Doyle McManus’ op-ed in the Los Angeles Times. McManus argues this kind of corruption, seen in Iraq, Afghanistan, Ukraine and even Mexico, is a greater threat to American national security than any terrorist organization alone.

What kind of Secretary of Defense does President Obama need? The New York Times put the question to several defense experts, over at the newspaper’s “Room for Debate” blog.

As the search for the next Secretary of Defense continues, the Boston Globe takes a look at the relationship between the Obama White House and the Pentagon over the last six years. The piece describes the relationship as “full of friction,” with a Pentagon that doesn’t seem to fully trust its president:

Obama has been seen in the Pentagon as being overly suspicious of the military and its inclination to use force to address problems. To some in the Pentagon, the president’s approach to the military seems particularly cool and detached when compared with that of his predecessor, Republican George W. Bush, who was more eager to embrace the military and accept its judgments.

The Wall Street Journal reports that the Pentagon is preparing to release several more Guantanamo detainees over the next months. It is unclear how many detainees are expected to be released, but defense officials told the Journal to expect more in December.

And despite any controversy surrounding his stepping down from office, Defense Secretary Chuck Hagel still called a number of American servicemen and women serving overseas to wish them a happy Thanksgiving. The Post has the story.

Meanwhile, National Defense Magazine considers why the Pentagon’s warnings about cutting military spending have gone seemingly unaddressed in Congress.

German lawmakers have recently discovered that the German foreign intelligence agency can spy on its own citizens. The AP reports that a “legal loophole” was recently exposed and announced to the German Parliament, leaving some confused as to why the German government expressed such outrage at alleged NSA surveillance.

It seems sophisticated hackers have been stealing electronic messages from leading biotech and drug companies.  Read more about this in the Times.  

ICYMI: This Weekend, on Lawfare

Daniel Byman penned this week’s Foreign Policy Essay, sharing his “Thoughts on Counterterrorism and ‘Blowback.’”

Diane Webber told us about the new counter-terrorism bill in the UK that would revoke passports from individuals believed to have gone to fight in Syria and Iraq.

Sean Mirski updated us on the “Rahmatullah Saga,” the case of Yunus Rahmatullah, a Pakistani who was transferred from British to American custody, ultimately spending ten years at Bagram Airbase. Sean traces the legal challenges that Rahmatullah brought against the British government both during and after his imprisonment and what the legal situation looks like now.

Jack, meanwhile, was highly critical of Bruce Fein’s defense on Senator Rand Paul’s draft declaration of war against the Islamic State.

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 Week That Will Be

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Monday, December 1, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, December 1st at 2pm: At the Newseum, join the contributors to a new book entitled Whistleblowers, Leaks, and the Media for a discussion of the constitutional foundations that underly the tension between government secrecy and a free press in the age of Snowden. Panelists include Ellen Shearer, Gene Policinski, Paul Rosenzweig, Harvey Rishik, and Timothy McNulty. RSVP here.

Wednesday, December 3rd at 4:45 pm: The Future of Privacy Forum will host a conversation entitled Device Encryption: Too Much Privacy for Consumers? Among the issues to be discussed include: Whose role is it to decide whether and how to protect consumer devices, and conversely how much access to provide law enforcement through device manufacturers/service providers? Christopher Wolf will moderate a discussion with Amie Stepanovich, Julian Sanchez, and Carrie Cordero. More information is a available here.

 

Employment Announcements (More details on the Job Board)

Deputy Chief, Counterespionage Section

ORGANIZATION: Department of Justice

SALARY RANGE: $124,995 – $157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

The Counterespionage Section (CES) investigates, prosecutes, and supervises the investigation and prosecution of cases affecting the national security and foreign relations of the United States, including espionage cases, cases involving the illegal export of military and strategic commodities and cases involving certain cyber-related activity. The Section has exclusive responsibility for coordinating and authorizing the prosecution of cases under criminal statutes relating to espionage, sabotage, neutrality, and atomic energy. It provides legal advice to U.S. Attorneys’ Offices and investigative agencies on all matters within its area of responsibility, which includes 90 federal statutes affecting the national security. The Section also coordinates criminal cases involving the application of the Classified Information Procedures Act and administers and enforces the Foreign Agents Registration Act and related disclosure statutes.

Job Description:

National Security Division of the Department of Justice seeks a Deputy Chief for its Counterespionage Section, focused on investigations and related matters involving cyber threats to the national security, including economic espionage and illegal export of military and strategic commodities conducted via computer hacking, as well as related matters.

Under the direction of the Chief, the Deputy Chief (Cyber) will be responsible for providing legal advice to federal prosecutors concerning the disruption of cyber threats to the national security. In these areas, the Deputy Chief will develop, implement, and coordinate sensitive Department initiatives. The Deputy Chief will:

· work with federal prosecutors and law enforcement agencies to develop effective strategies in national security investigations and prosecutions, and maximize the use of the full range of federal statutes;

· plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities;

· provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prosecutive models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;

· coordinate the formation of response teams of experienced prosecutors to assist in the investigation and prosecution of cases;

· coordinate cases and provide legal advice, guidance, and litigative support to U.S. Attorneys’ Offices involved in national security prosecutions;

· provide advice and assistance to the Chief and other senior officials in the Division and in the Department;

· serve as a liaison between NSD and the Federal Bureau of Investigation, other members of the USIC, Department of the Treasury, the Department of State, and various international officials on cyber and other national security-related issues;

· prepare testimony for Congressional Committees and subcommittees, briefing materials for Department officials, legal monographs for national security prosecutors, and comments on proposed legislation.

The Deputy Chief will establish program emphasis, develop operating policies and guidelines, communicate policies and priorities, and determine and implement internal organization practices, training, and improvements.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, Territory, or the District of Columbia, and have at least five years of post-JD professional experience. Applicants must have superior academic credentials, possess excellent analytical and writing skills, and have the dedication and capacity to work independently in a very demanding environment. Past experience in the national security or intelligence field is not required, but is preferred. Prior federal litigation experience also strongly preferred.

Applicants must be able to obtain and maintain a TS/SCI security clearance.

Salary:
GS-15: $124,995- $157,100 (per annum)
Travel:
Periodic travel will be required.
Application Process:

To apply, please submit a cover letter highlighting your relevant skills and experience, a copy of your resume with a writing sample (we encourage you to submit a legal memorandum or brief), and a current performance appraisal, if applicable, to:

U.S. Department of Justice
National Security Division
600 E Street, NW 10th Floor, Room 10340
Washington, D.C. 20530
Attn: Bronnetta Rawles

or

[email protected]

No telephone calls, please

Application Deadline:
Monday, December 8, 2014

 

ORGANIZATION: Department of Justice

SALARY RANGE: GS 14/15: $106,263 – 157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

Job Description: 

CES attorneys provide legal advice and guidance to the investigative and intelligence communities in the development of cases for prosecution, and they assist the United States Attorney’s Offices when prosecution is undertaken, ensuring, among other things, that intelligence community equities are identified and protected.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia and have at least 2.5 year of post-J.D. legal experience. Applicants should have an interest in national security matters and possess excellent writing skills. Significant experience in litigation involving, or a strong interest in, computer intrusion investigations is desirable. Applicants must be able to obtain a TS/SCI clearance.

Salary:
(GS-14): $106,263-$138,136 per annum (GS-15): $124,995-$157,100per annum.
Travel:
Occasional travel will be required.
Application Process:

To apply for this position, please submit a resume, a cover letter (highlighting relevant experience), a writing sample (not to exceed 10 pages), a current performance appraisal (if applicable) electronically to:

U.S. Department of Justice
Counterespionage Section
600 E Street, NW, Room10606
Washington, DC 20004
ATTN: Bronnetta Rawles
No telephone calls please.

Or apply by email to: [email protected]

with the subject line “Attorney Vacancy.

Application Deadline:
Monday, December 8, 2014
Relocation Expenses:
Relocation expenses are not authorized.
Number of Positions:
One or more.

The Foreign Policy Essay: Thoughts on Counterterrorism and “Blowback”

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Sunday, November 30, 2014 at 10:00 AM

That counterterrorism instruments often fail is no surprise—terrorists are tough targets, after all. At times, however, these instruments can actually backfire. Such “blowback” can take many forms and is difficult to measure and identify.

In today’s context, blowback is most commonly used to refer to the nasty consequences that result from the use of certain counterterrorism tools: angering masses of people and thus creating more sympathy for the terrorists and, presumably, increasing their fundraising and recruitment capabilities and making it easier for them to operate. The U.S. invasion of Iraq, for example, led to a surge in anger among Muslims around the world and was cited as a reason for conducting terrorist attacks. Attempted Times Square bomber Faisal Shahzad, radical American-Yemeni cleric Anwar al-Awlaki, and the Tsarnaev brothers, who carried out the Boston marathon bombing, all cited the U.S. war in Iraq as one of the motivations for their actions against the United States.

U.S. drone strikes, especially those in Pakistan, are criticized for outraging local populations and creating more sympathy for the terrorists. Retired U.S. Marine Corps General James E. Cartwright, former vice chairman of the Joint Chiefs of Staff and a former adviser to President Obama, has argued: “We’re seeing that blowback…If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted.” Following a particularly high-profile U.S. drone strike targeting Pakistani Taliban leader Hakimullah Meshud, one newspaper reported that “Former cricket star Imran Khan, chairman of the Pakistan Tehreek-e-Insaf party, has built a massive following in denouncing the ongoing U.S. drone campaign in his native country.” Such U.S. actions that outrage the population allow the terrorists to portray themselves as Robin Hoods and make the people more willing to overlook their brutality, extreme ideology, and repeated attacks on fellow Muslims.

More subtly, attacking Al Qaeda or its estranged relatives like the Islamic State might lead to an increase in attacks on the United States. Al Qaeda has many enemies, and if the United States hits it hard, it might decide to shift its resources away from those other enemies and toward the United States. As the Al Qaeda core is already strongly anti-U.S., this argument has little resonance when it comes to Zawahiri and his closest followers, but it does apply to Al Qaeda’s affiliates and groups with similar ideologies that have no operational relationship, like Ansar-e Sharia in Libya. On the one hand, counterterrorism officials don’t want to stand idly by as these groups grow stronger and then suddenly find themselves confronted with a major threat. On the other hand, although these groups share Al Qaeda’s hatred of the United States, their energies are focused locally and regionally. Even Al Qaeda in the Arabian Peninsula (AQAP), the only Al Qaeda affiliate so far to have directly targeted the U.S. homeland, devotes the bulk of its resources to carrying out attacks in Yemen. This debate is particularly germane to the issue of U.S. attacks on the Islamic State: U.S. officials fear that this group might eventually focus on attacking the U.S. homeland, but they also worry that U.S. attacks on the group make this focus more likely. And the Islamic State’s fighters include many Westerners who could be sent back to carry out attacks at home.

Human rights activists and legal scholars contend that torture, extrajudicial killings, and indefinite detention subvert the U.S. image as a champion of the rule of law. With less legitimacy, the United States could lose the international cooperation that is so vital for disrupting Al Qaeda. However, this is unlikely: Al Qaeda opposes many regimes, and even those not on its enemies list usually oppose terrorism. A bigger challenge is that a decline in legitimacy makes it harder for allies to openly cooperate with the United States. High-profile actions like the Abu Ghraib torture scandal and reports of a U.S. drone strike mistakenly targeting a wedding party in Yemen make it more politically costly for U.S. allies. Read more »

More on Passport Revocation and Temporary Exclusion: The New Counter-Terrorism Bill in the U.K.

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Saturday, November 29, 2014 at 4:00 PM

The United Kingdom’s Counter-Terrorism and Security Bill, HC Bill 127, had its first reading in the House of Commons on Wednesday, November 26. The Bill has been published at a time when the British Home Secretary has described “the threat we face right now is perhaps greater than it ever has been and we must have the powers we need to defend ourselves.” The Explanatory Notes to the Bill estimate that half of the 500 persons believed to have traveled to Syria and Iraq to participate in the conflict, have returned to the U.K., and this Bill is the response to this challenge.

Press in the U.K. and elsewhere have summarized the new measures, (see, for example, this article, and this one). Proposed new measures include amending the Terrorist Prevention and Investigation Measures (TPIMs) to permit relocating an individual away from his home to another part of the country in sections 12 and 13, prohibiting an individual’s possession of weapons or explosives in section 14, and requiring individuals to attend specified appointments in section 15. The reasonable belief standard required for the imposition of TPIMs has been lowered to satisfaction on the balance of probabilities. Powers to retain internet data are expanded in section 17. Border security measures, such as relating to no-fly lists, are strengthened in section 18. Local governments, prisons, schools and universities will be required to prevent people from being drawn into terrorism, in sections 21 through 27 and Schedule 3. And insurance against payments being made in response to terrorist demands is criminalized in section 34.

Following on from my recent post concerning confiscation of passports, this post examines two of the most controversial new powers in the bill: (1) the seizure of passports from persons intending to leave the U.K., and who are suspected of involvement in terrorism, and (2) temporary exclusion from the United Kingdom.

Section 1 and Schedule 1 deal quite extensively with the procedure for seizing passports at a port or border area. A traveler may be required to hand over all travel documents and be subject to search for travel documents by a police officer. Police may retain travel documents if an officer has reasonable grounds to suspect that the person has the intention of leaving the U.K. for the purpose of terrorism-related activity outside the U.K, or has arrived in the U.K. with the intention of leaving it soon for that purpose. Terrorism-related activity is interpreted extremely broadly, and covers giving support or assistance, or encouragement to the commission, preparation or instigation of terrorist acts. No guidance is found as to the meaning of “reasonable grounds to suspect.” Read more »

How to Deep Fry a Turkey Safely

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Saturday, November 29, 2014 at 2:00 PM

My favorite ever Washington Post editorial was this one, entitled “A Deep-Fried Thanksgiving Tradition,” which was a sort of comic meditation on the dangers and attractions of the deep-fried turkey. It concluded:

To be fair, turkey-frying (which seems to be done mostly by men) reflects features of the national character for which we can, as a nation, be thankful: inventiveness, imagination, a desire for excellence in all things, including poultry, and an unconquerable individuality. Unfortunately, it’s also a procedure that requires a very un-American degree of preparation, attention to detail and patience: thorough thawing of the turkey, meticulous measurements of oil and volumes, careful placement of the frying apparatus as far as possible from the house and other combustible structures. All this by men who are just trying their hands at a little holiday cooking.

It may be, as one recipe-writer on the Internet assures us, that deep-fried turkey is “worth the risk.” We think we’ll stick to conventional methods of preparation again this year, while still taking time to give thanks for all the benefits and especially the freedoms we enjoy, along with the things that sometimes accompany their exercise: fast, efficient fire and medical services, reliable insurance coverage and an abundance of back yards large enough to let us fry anything we care to.

Now, fortunately, a creative soul has solved the problem of safe deep-frying of turkey. It involves, of course, drones.

The Rahmatullah Saga Goes On

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Saturday, November 29, 2014 at 8:56 AM

Last week, a British court allowed civil tort claims against the British government to proceed. In Rahmatullah v. Ministry of Defence, the High Court (Queen’s Bench Division) held that a former Pakistani detainee—captured by the United Kingdom but then transferred to American custody—was not barred from suing by either the state immunity or the foreign act of state doctrines. While this decision represents only the latest twist in an ongoing litigation battle between Rahmatullah and the United Kingdom, it removes a significant obstacle to Rahmatullah’s claims and promises to have wider consequences.

The Rahmatullah Saga

Readers might remember Rahmatullah’s saga, but for those who don’t, here’s the Cliffnotes version. In February 2004, Yunus Rahmatullah was detained by British forces in Iraq. Shortly thereafter, he was transferred to American custody, and he wound up in Bagram Airbase in Afghanistan by the end of the following month. He was detained for the next ten years, and alleges that he suffered numerous forms of torture during the course of his imprisonment.

While still being held in Bagram, Rahmatullah filed a writ of habeas corpus through a relative in May 2011. But rather than seek relief in American courts, Rahmatullah filed in the British court system—even though the United Kingdom had not been involved in his detention for seven years. While his application was initially rejected, the Court of Appeal (Civil Division) eventually allowed Rahmatullah to pursue his habeas application against the Secretary of States for Defence and for Foreign and Commonwealth Affairs. The Court issued a writ compelling Her Majesty’s Government to try to recover Rahmatullah from the United States pursuant to a memorandum of understanding that allowed a detaining power (in this case, the United Kingdom) to take back custody of a detainee from the “accepting power” (the United States). Read more »

Bruce Fein’s Revealing Defense of Senator Paul’s Draft Declaration of War

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Friday, November 28, 2014 at 9:29 AM

Earlier this week I analyzed Senator Paul’s proposed war declaration.  Bruce Fein has a spirited defense of Senator Paul’s draft (which includes a swipe at me for asking an “obtuse[e]” question).  But the defense contains two errors that reveal the limits of what the Senator proposes.

Fein’s first and most important error is in this passage:

Mr. Paul’s draft confines the authorized use of force to protecting only Americans and American facilties in Syria and Iraq to protect against mission creep, nation building, virtual global warfare against the Islamic State, and war with Syria at a staggering financial cost.  . . . Mr. Paul’s restricted authorization is necessary to end Mr. Obama’s ongoing illegal war against Syria and to avoid warring in Iraq to support a sectarian Shiite government allied with Shiite Iran and Hezbollah.

This last sentence is wrong because the President can act beyond what Paul’s Resolution authorizes by using his Article II powers.  There is a large difference between (i) a limited authorization for the use of force, which gives Congress’s imprimatur and constitutional support to force only for a precise time period or precise purposes, and not beyond, and (ii) a ban on presidential uses of force.  Senator Paul’s draft only does the former.  So if the draft became law, Congress would indeed authorize the President to use force only for one year and only “to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto” by the Islamic State.  But the President would not be stopped from using force, beyond what Congress authorized, under his Article II authorities.  Imagine that the President discovered an imminent plot by the Islamic State in Syria to use force in the American homeland.  Senator Paul’s Resolution would not authorize the President to use force to stop the plot because it authorizes force only to protect Americans and American property in Syria and Iraq, not in the United States.  But despite the limited authorization, the President could invoke his Article II authorities to use force to stop the plot.  More broadly, President Obama starting in August (and continuing to an uncertain degree today) has relied on Article II, beyond extant AUMFs, to use force against the Islamic State in Iraq and Syria.  (He used force under Article II against IS in August and most of September, and even after he switched to rely as well on the 2001 and 2002 AUMFs, he continued to invoke Article II.)  The President could continue to rely on Article II even if the Paul draft became law.  Most significantly, President Obama has asserted unprecedentedly broad powers under Article II to engage in pure humanitarian interventions in Iraq (and could presumably extend that rationale to humanitarian intervention in Syria).  Senator Paul’s Resolution does nothing to stop such uses of force under Article II.  

In short, Fein’s first mistake is to treat a limited authorization for the use of force as an implicit ban on the use of force that is not authorized.  Senator Paul’s Resolution contains only a limited authorization, not a ban on presidential power.  It would change the scope of presidential power only if the President wants to use force that is authorized neither by Senator Paul’s Resolution nor by Article II (which the President has interpreted quite broadly).  If the Senator wants to accomplish what Fein is talking about, his staff needs to go back to the drafting board and affirmatively ban the presidential uses of force the Senator wants to discontinue.  Though I do not recommend it, the ban could be as simple as: “The President is barred from using force against the Islamic State not herein authorized.”  I doubt that such a ban would be constitutional as applied to the President using force to protect American lives in the homeland, but I think it would be constitutional as applied to pure humanitarian interventions.

Fein’s second error is contained in this sentence:

Mr. Paul’s draft bill insists that for the first time in 73 years, Congress — not the president acting unilaterally or via limitless delegation — decides on when and under what circumstances U.S. military force will be used abroad.

I am not sure what Fein is talking about here.  The President is already using force against the Islamic State, and has been for months.  As just noted, the Paul Resolution would shrink the President’s power to use force only if the President wants to use force that is not authorized by either the Paul Resolution or Article II.  Perhaps by the phrase “Congress … decid[ing] on when and under what circumstances U.S. military force will be used abroad,” Fein means that Congress would be authorizing force in only a limited way or for limited purposes.  But then he would be wrong to say that this has never been done in 73 years.  Fein should look at the AUMFs (among others) for Formosa (1955) (authorizing force “for the specific purpose of securing and protecting Formosa, and the Pescadores against armed attack”), Lebanon (1983) (authorizing President “to continue participation by United States Armed Forces in the Multinational Force in Lebanon,” subject to many limitations, including a time limitation); Iraq 1991 (authorizing President “to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 (1990) in order to achieve implementation of [numerous] Security Council Resolutions,” subject to two policy determinations related to the necessity of the use of force); and Somalia 1993 (“Congress approves the use of United States Armed Forces in Somalia for” specified purposes, including “protection of United States personnel and bases” and the “provision of assistance,” with many limitations).

The bottom line: Senator Paul’s Resolution got a lot of press because it included a broad war declaration and a narrow authorization of force.  But the declaration of war (for reasons I explained earlier) would do almost no work, and the authorization of force narrows what Congress approves but does nothing to stop most (if not all) current presidential uses of force under Article II.

Throwback Thursday: Thanksgiving Edition

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Thursday, November 27, 2014 at 8:35 AM

Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Now Lawfare has decided to get in on the action by means of a new feature. Each week, Lawfare will turn back in time to a specific event, and briefly explain how it relates to today’s security and/or legal environment.  

If you clicked on Lawfare in the middle of Thanksgiving dinner, something must be horribly wrong. Trying to temper the boredom of forced family fun? Desperately looking for conversation starters with Awkward Cousin Martha? Attempting to stave off the relentless tidal pull of a gravy-based food coma? Looking for a relentlessly patriotic reading for your Thanksgiving table? Whatever it is, Lawfare’s got you covered. To celebrate the occasion, we’re throwing back far—real far—with a focus on a unique exercise of executive authority: Presidential Thanksgiving Proclamations. All of them.

Almost all Presidents, with a few notable exceptions, took the time during their tenure to issue a statement in honor of the holiday. But while most sites focus on what the current President’s statement will be, we were feeling gluttonous: Why restrict ourselves to the bland, dry offerings of one Presidential Proclamation when we can cut and paste sentences from all of them into one glorious turducken of a decree?

All of the sentences in the below statement are amalgamated from nearly 250 years worth of Proclamations. Each highlighted link denotes the first word of a different president’s address. While the following does hew to a rough chronological progression, see if you can guess which Presidents said which sentences.

A Synthetic Thanksgiving Proclamation from the Presidency

Forasmuch as it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; and as the United States of America are at present placed in a hazardous and afflictive situation by the unfriendly disposition, conduct, and demands of a foreign power; and as it is likewise a plain dictate of duty and a strong sentiment of nature that in circumstances of great urgency and seasons of imminent danger earnest and particular supplications should be made to Him who is able to defend or to destroy; no people ought to feel greater obligations to celebrate the goodness of the Great Disposer of Events of the Destiny of Nations than the people of the United States.

It has pleased Almighty God to prolong our national life another year. He has permitted us to multiply ships upon our lakes and rivers and upon the high seas; with local exceptions, health has been among the many blessings enjoyed. Under a sense of these infinite obligations to the Great Ruler of Times and Seasons and Events, the falling leaf admonishes us that the time of our sacred duty is at hand. Constant thanksgiving and gratitude are due from the American people, a highly favored people. No great pestilence has invaded our shores. Liberal employment waits upon labor. Abundant crops have rewarded the efforts of the husbandman. Increased comforts have come to the home. The national finances have been strengthened, and public credit has been sustained and made firmer. Read more »

Steptoe Cyberlaw Podcast, Episode #44: An Interview with Sal Stolfo

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Wednesday, November 26, 2014 at 3:36 PM

Our guest for episode 44 of the Steptoe Cyberlaw Podcast is Sal Stolfo, Professor at Columbia University’s Computer Science Department and CEO of Allure Software.  Stolfo brings an attacker’s sensibility to network security approaches usually dominated by defensive thinking.  His approach to computer security includes flooding the network with plausible fake documents wired to alarm when touched by a user.  The alarm, in turn, shuts down a user’s access and prompts for a second form of authentication.  Documents that are successfully exfiltrated persistently attempt to beacon back to the home network, betraying the attacker and his customers long after the hack.  He’s already deploying some of these concepts commercially.  It’s the kind of active defense even the Justice Department should love.

In our news roundup, This Week in NSA is dominated by speculation that the 215 program will never die.  Conventional wisdom says that the metadata program will ride into the sunset on June 1, 2015.  But a “transition” note could allow the program to last for years.   Meanwhile, the NSA director, Adm. Mike Rogers, is warning that China and one or two other countries have the ability to bring down the electric grid in the United States.

The FTC has gone to mediation with Wyndham, but no one is betting that the mediation will succeed.  And the FTC’s settlement with TRUSTe puts the privacy certification company under the FTC’s thumb for years.

Telephone companies have long been the most government-friendly of technology firms, but that may be changing.  Now even the heir of Ma Bell’s name, AT&T, has filed an amicus brief demanding clearer standards before the government could get access to location information.

One solution is for the government to cut out the middleman and get the location information directly from the consumer – by offering fake cell towers to connect to. But that tactic, and the secrecy surrounding “stingray” collection, has its costs.  Baltimore has abandoned a criminal case to keep from describing the technology and how it’s used.  And a North Carolina judge has unsealed hundreds of stingray orders.

In the words of the old country song, how can I forget you if you won’t go away?  Much as we wish the right to be forgotten would go away, that’s looking less and less likely. Google’s Global Privacy Council, Peter Fleischer, has disclosed new details about how the search giant administers the right.  And Norway has (unsurprisingly) followed the rest of Europe in adopting the doctrine.  But most troubling is the news from France, where Google is facing fines of €1000 a day for refusing to apply a French defamation takedown order to its Google.com domain – or, more accurately, for not letting a French judge censor what Americans can read.

Finally, in our first item derived from a listener request (h/t Lee Baumgardner), we look at the regulatorily challenged transport company, Uber, and its potential liability for a steady stream of privacy flaps, including its unwisely but appropriately named “God Mode.”

Tune in next week when our guest will be Troels Oerting the Assistant Director, Head of European Cyercrime Centre (EC3).

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates or topics to [email protected].  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

 


 

Jeh Johnson for Secretary of Homeland Security

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Wednesday, November 26, 2014 at 3:01 PM

Rumor has it, that Jeh Johnson, the current Secretary of DHS, is being considered for appointment as the next Secretary of Defense.  Don’t do it Mr. Johnson.  Don’t do it President Obama.

I say this, not because I think Johnson would do a bad job.  To the contrary, I’m sure that as a dedicated public servant he would do an able job in the position.  I say it, instead, because it would send a horrible message to the employees of DHS and an equally bad message about how we value Homeland Security.  Some might say that creating DHS was a mistake — but having done it we are obliged to make it work if we possibly can.

DHS doesn’t work that well now.  Morale is poor.  Public perception is even worse though happily, the IRS is still worse yet.  The Department faces challenges ranging from Ebola in the US to implementation of the President’s new immigration plan (which, whatever its merits, will double the throughput for adjudications at USCIS this year).  In short, this is no time for DHS to be without senior leadership.  And Secretary Johnson has only been on the job for 11 months.  Nothing would be worse than for the public (and the Department’s employees) than to perceive that leadership of DHS is viewed as a “temp” job.

I understand why the President might turn to a trusted counselor for a difficult job.  But Secretary Johnson took on a mission — to see the Department through to the end of President Obama’s term — and he should complete that mission, not toss it aside for a better opportunity.

One man’s opinion …..

What Does the Swiss Coat of Arms Have to do with the Immigration Imbroglio?

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Wednesday, November 26, 2014 at 2:36 PM

If you peruse the darker corners of the U.S. criminal code—as I used to do in my youthful efforts to educate myself in law without going to law school—you’ll eventually stumble across 18 U.S.C. § 708, which bizarrely makes it a federal crime to “willfully use[] . . . for any trade or commercial purpose, the coat of arms of the Swiss Confederation, consisting of an upright white cross with equal arms and lines on a red ground, or any simulation thereof.” The statute appears alongside a number of other oddities of federal criminal law. You probably didn’t know, for example, that it’s a federal crime to fraudulently use the 4H emblem, to make commercial use of the Smokey Bear and Woodsy Owl characters, or to make imitation military cremation urns. I suspect that the many vendors of shirts emblazoned with the Swiss Confederation coat of harms have no idea they are committing a federal crime. On Amazon.com, for example, you can buy this from a third-party vendor:

And not to put too fine a point on it, but my link to this shirt is itself a commercial exploitation of the Swiss coat of arms and thus on its face a violation of the law.

Yet I venture the further guess that the third-party vendor in question is not quaking in fear of federal enforcement in defense of the Swiss coat of arms. Neither is Amazon. And neither, having posted this link in apparent technical violation of the statute, am I. The reason is prosecutorial discretion. No sane executive branch official is going to waste a minute contemplating prosecuting anyone under this law. And, indeed, it appears that no sane executive branch official ever has. I asked Lauren Bateman to run down the enforcement history of the statute. She could find none, though she tells me the Patent and Trademark Office has cited it as a basis to reject trademark applications on occasion. It has been cited only four times in federal judicial opinions, twice in apparent error, once in reference to its historical purpose and once in this amused quip from Judge Richard Posner: “The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising . . . or using ‘Johnny Horizon’ as a trade name without the authorization of the Department of the Interior.” A vibrant trade exists in items branded with the Swiss coat of arms. We don’t even call it a black market. And nobody for a moment raises the question of whether the presidents who, one after another, have rendered this poor sad law a nullity through some collective policy of ignoring Congress’s will have violated their obligations to take care that the laws be faithfully executed.

In the time since President Obama announced his immigration action, a flood of complaints has issued forth from diverse quarters about how the President is ignoring or nullifying the immigration law, how he is violating the Take Clause Clause and supplanting Congress’s will with his own. Immigration policy itself is, except at the margins, beyond the scope of what Lawfare normally talks about, but presidential power is not. And a huge amount of what is being said on the subject strikes me as wrong. So I thought I would lay out some thoughts on presidential discretion, congressional power, the interaction of the two, and how the current immigration imbroglio fits into the discussion.

Read more »

Today’s Headlines and Commentary

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Wednesday, November 26, 2014 at 12:35 PM

Shortly after Secretary of Defense Chuck Hagel announced he would be stepping down, it appears that two top contenders to serve as his replacement have taken themselves out of the running. In a letter to the board of directors of the Center for a New American Security (CNAS), Michele Flournoy, a former undersecretary of defense for policy and the current CEO of CNAS, announced she was not interested in leading the Pentagon. The Washington Post reports that the needs of her family prevent Flournoy from taking the post.

The Los Angeles Times informs us that Senator Jack Reed (D-RI) has also preemptively removed himself from consideration. That apparently leaves only former deputy secretary of defense Ashton Carter among the top contenders for the position.

Foreign Policy notes that although Carter is “respected for his intellect and management skills,” he has a tendency to be “acerbic and condescending.” Two former administration officials believe Air Force Secretary Deborah Lee James, Army Secretary John McHugh, and Navy Secretary Ray Mabus are also contenders for the position of Secretary of Defense.

Whoever is ultimately nominated will face a difficult confirmation, according to Military Times. The Senate’s new Republican majority will likely take the opportunity “to pick apart the White House’s foreign policy and defense spending plans.”

McClatchy reports that Ramadi, the capital of Iraq’s Anbar province, is close to falling to the Islamic State. According to local Iraqi security officials and tribesmen, “a lack of continuous air support and reinforcements has made it impossible to hold that territory.” The fall of Ramadi would be the most significant victory in months for the terrorist militant group.

According to the Daily Beast, efforts to train and equip moderate Syrian rebels to fight Islamic State forces likely will not begin until March or April. Congress approved a “train-and-equip mission” in September. Since then, U.S. officials have been working to vet rebel groups.

Meanwhile, the Syrian government regime yesterday launched at least eight airstrikes on the northern Syrian city of Raqqa, an Islamic State stronghold. The Wall Street Journal informs us that the areas hit were “largely residential or commercial.”

Reuters explains why Russia’s most recent efforts to renew Syrian peace talks are unlikely to prove successful.

Although nuclear talks with Iran have been extended through June, the Guardian reports that negotiators are looking to reach some kind of agreement by January 6, when a new Republican-controlled Congress takes office in the U.S. “After that date, the Democratic leadership will no longer be able to stop a new Iran sanctions bill from going to a vote.”

Still, even with more time, the Associated Press notes that major problems remain. Iran appears to be digging in its heels, refusing to budge on enrichment demands.

Reuters informs us that the U.S. is planning to leave more troops in Afghanistan than originally intended. An additional 1,000 American soldiers may be stationed in Afghanistan “to fill a gap left in the NATO mission by other contributing nations.”

Meanwhile, Afghan President Ashraf Ghani has initiated a full-scale review of his country’s military forces. The AP has details.

Ukrainian officials are again accusing Moscow of dispatching equipment to pro-Russian separatists. According to Reuters, “five columns of heavy equipment were seen crossing onto Ukrainian territory on Monday.”

Still, the Pentagon has not changed its mind about sending military assistance to Ukrainian forces. During a briefing yesterday, defense spokesperson Rear Adm. John Kirby stated, “We continue to evaluate all Ukrainian requests for military aid and assistance but right now the focus remains on nonlethal.” The Hill has more.

Meanwhile, France has delayed transfer of two Mistral-class warships to Russia, citing the current controversy in Ukraine. The LA Times shares details.

Officials have corrected reports regarding Tuesday’s U.S.-led raid in Yemen. Originally, sources stated that troops had freed seven Yemeni citizens and one American, all of whom were being held hostage by al-Qaeda affiliates. The New York Times notes that it was actually six Yemeni nationals, a Saudi, and an Ethiopian who were rescued.

The Pentagon’s Defense Advanced Research Projects Agency (DARPA) is looking to develop a “portable ‘Care Cube’” so that health officials can help Ebola patients without having to wear bulky suits. USA Today has details.

Real Clear Defense explains why future conflicts in the Asia-Pacific region will be land-centric, as opposed to air- or sea-based.

Yesterday, U.S. Magistrate Judge John O’Sullivan ruled that Irfan Kahn, a Pakistani-American man suing the U.S. government for malicious prosecution, has the right to review “up to 700 previously unreleased calls in which he was a participant.” The Federal Bureau of Investigation (FBI) claimed that turning over such information would jeopardize national security. However, Kahn intends to use the calls to demonstrate that the FBI knew he was innocent before charging him with conspiracy to provide financial support to the Pakistani Taliban. The AP reports the story.

The FBI has charged two Somali Americans with conspiring to provide material support to the Islamic State militant group. In May, officials intercepted Abdullah Yusuf before he flew from Minnesota to Turkey. According to the National Journal, Yusuf was arrested yesterday. His partner Abdi Nur, however, is believed to have successfully reached Syria.

And from the Lawfare family to yours – Happy Thanksgiving!

ICYMI: Yesterday, On Lawfare

Phil Walter argued that Congress should require more strategic planning on the part of the President before U.S. troops are deployed to hostile situations.

Rachel Brand explained why it is impossible for the National Security Agency (NSA) to apply the Fair Information Protection Principles (FIPP).

Matthew Waxman examines the import of China’s Air Defense Identification Zone one year since its declaration.

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.

China’s ADIZ at One Year

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Tuesday, November 25, 2014 at 4:10 PM

A year ago this week, China abruptly declared an Air Defense Identification Zone (ADIZ) covering a large area of the East China Sea, including islands the legal possession of which China disputes with Japan.  Over on the Asia Maritime Transparency Initiative – a terrific new online resource for information, analysis and commentary on Asian maritime issues, and for which I serve on the editorial board – there are several essays discussing this controversy from a variety of perspectives.  In a piece titled “China’s ADIZ at One Year: International Legal Issues,” I argue:

Especially because China has sent signals that it might enact another such zone in the South China Sea, this anniversary provides a moment to reflect on the international legality of the East China Sea ADIZ and international rules applicable to it. In general, China’s establishment of an ADIZ is not per se illegal as a matter of international law; however, the requirements China has declared for its East China Sea ADIZ are much broader than recent customary practice by others and China could enforce it in particular ways that would violate international law. Because international law does not yet have much to say about ADIZs, the practices worked out between China, the United States, Japan and others in this case will serve as important baselines for future ADIZs in Asia.

I conclude:

The greatest danger of China’s move is not that it significantly reshapes the core territorial disputes. It is that expanded Chinese military patrols in the air, like its activities at sea, in such close proximity to those of rival players could lead to accidents, provocations, or miscommunications that might easily escalate. So as with maritime activities, for now diplomacy on air activities should focus on creating workable rules of the road and crisis communication mechanisms – and should not be distracted by claims that the ADIZ will substantially affect competing territorial claims. Non-binding codes of conduct would help mitigate dangers in the East China Sea ADIZ. They would also establish a template that could – in the absence of detailed, binding international law on this issue – be used elsewhere should China or other states establish additional zones, especially in other areas encompassing competing territorial claims like the South China Sea.

Today’s Headlines and Commentary

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Tuesday, November 25, 2014 at 1:19 PM

In Washington, analysts and pundits are continuing to pick apart the resignation yesterday of Secretary of Defense Chuck Hagel. In Foreign Policy, David Rothkopf argues that sacking Hagel is not a cure for President Obama’s foreign policy woes; Hagel’s supposedly rocky performance was, instead, “a symptom of the disease.” Several news sources have written about why Hagel was dismissed, with an unnamed senior administration official saying he was not up to the job—and other figures disputing that account. At Politico, Josh Gerstein writes that part of what alienated Hagel from Obama was the former’s reluctance to whittle down Guantanamo’s detainee count. The New York Times reports that if no other senior national security staffers are fired, Hagel’s dismissal only tightens the foreign policy grip of the White House, which has long been accused of micromanagement. And while Hagel might be the most recent Secretary of Defense to clash with the White House, he was certainly not the first, as the Wall Street Journal notes.

Speculation continues to swirl over who Hagel’s successor will be. Foreign Policy writes that finding a candidate that can deal with the multitude of existing challenges will be difficult. The Military Times’ Andrew Tilghman asserts that, regardless of who is tapped, the incoming Defense chief will face major challenges in revamping the Pentagon’s budget, mission and culture. Defense News quotes a Senate source as saying that it is “logistically impossible” to move a nomination this year. The Hill reports that Senator Jack Reed (D-RI), whose name has been mentioned in the past for the post, is not interested.

A nuclear deal between the P5+1 powers and Iran appears to have slipped away again. The New York Times has more on why no agreement was forged by the November 24th deadline. BBC reports that there is “optimism” as all sides nevertheless have agreed to a seven-month extension in talks. According to the report, the parties are aiming to reach a “high-level political agreement” by March 1st and confirm the full technical details by July 1st. Relatedly, Reuters reports that Iran is taking action to comply with an interim nuclear deal.

Some are more pessimistic than this though; in Foreign Policy, Jeffrey Lewis asserts that the Iran nuclear extension is a “death sentence” due to hardliner pressure on both sides. If that is true, it may be time for another reminder: The cost of a war with Iran over its nuclear stockpiles would be incredibly high.

McClatchy brings us news that in the battle for Iraq and Syria, the Islamic State has toughened its tactics in Anbar, carrying out its own “counterinsurgency campaign” intended to root out any local tribes that may be sympathetic to the U.S.-led coalition. In its most recent attack on Ramadi, ISIS did not rely on local Sunni tribes for support, instead launching the attack on its own.

Read more »

Memo to NSA: Stop Saying You Apply the FIPPs

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Tuesday, November 25, 2014 at 11:51 AM

The intelligence community has no set of general principles for judging the privacy impact of their programs.  Some privacy scholars believe that the Fair Information Protection Principles (FIPPs) serve this purpose and can apply to intelligence programs as they do to myriad other government programs.  The NSA itself said in a recent report on collection under Executive Order 12333 that it was applying the FIPPs for the first time. But however appealing it may seem to apply generally applicable privacy principles to intelligence programs, it is simply impossible for the intelligence community to apply the FIPPs literally.    

The FIPPs are a bad fit for clandestine intelligence programs.  This is obvious from the text of the FIPPs and from the fact that the NSA, after saying it was applying the FIPPs to 12333 collection, turned right around and said it could not apply two core FIPPs principles (transparency and individual participation).  Although I applaud the NSA for taking a step forward in assessing the privacy impact of its activities, there is little point in adopting a set of principles that the agency admittedly cannot apply.  Instead, the intelligence community should craft a new set of information privacy principles for intelligence programs.  I suggested as much to the government witnesses during a recent PCLOB public hearing, and ODNI privacy officer Alex Joel agreed that it would be a good idea to have a new privacy framework for the intelligence community.  

The version of the FIPPs that NSA said it is applying was published in 2008 by the Department of Homeland Security. Some of its principles—data security, for example—can and should apply to data collected in clandestine intelligence programs just as they do in other government programs.   But the DHS FIPPs includes some provisions that cannot possibly be implemented in a clandestine intelligence program and lacks other important principles that can protect individual privacy in that context. 

The most obvious problem with applying the FIPPs to intelligence programs is the “individual participation” principle.  The DHS FIPPs state that the agency “should involve the individual in the process of using [personally identifiable information] and, to the extent possible, seek individual consent for the collection, use, dissemination, and maintenance of PII.” It is quite obvious why this requirement cannot be applied to a clandestine intelligence program such as NSA’s collection under Section 702 of FISA or Executive Order 12333.  For that matter, it is not clear how DHS could apply this rule to all of its own activities. While this principle makes sense for the many DHS programs in which individuals come into contact voluntarily—or at least wittingly—with the agency, DHS has law enforcement and intelligence functions to which the individual participation principle cannot fully apply.    Read more »

Risking Money and Risking Lives: Disproportionate Congressional Oversight

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Tuesday, November 25, 2014 at 8:00 AM

The Government Performance Results Act (GPRA) requires the Executive Branch to conduct detailed strategic planning prior to spending money.  The laws that govern the President when he introduces the men and women of the United States (U.S.) Armed Forces into hostilities, specifically Article II of the Constitution, the War Powers Resolution, and the Authorizations for the Use of Military Force for both Iraq and Afghanistan, have no similar strategic planning requirement.  Congress should fix this disparity to demonstrate that it cares as much about how the men and women of our Armed Forces are introduced into hostilities as they do about the way money is spent.

In 1993, Congress wrote the GPRA “[t]o provide for the establishment of strategic planning and performance measurement in the Federal Government, and for other purposes.” On January 4th, 2011, President Barack Obama updated existing legislation by signing the GPRA Modernization Act of 2010 into law. The GPRA requires each agency within the Executive Branch to write a strategic plan that covers a four year timespan. These are highly detailed documents that contain a mission statement, general goals and objectives, and a description of how the goals and objectives are to be achieved.  The text of the GPRA Modernization Act contains a variation of the word “strategy” 27 times, the word “mission” 7 times, a variation of the word “goal” 151 times, and “objective” 16 times.  The repeated use of these words demonstrates the serious view Congress takes of the strategic planning done by the Executive Branch prior to spending money.  There is nothing comparable in any of the statutes that variously authorize the use of military force or require other forms of reporting to Congress in relation to the use of force.  This is a striking contrast.

The President’s authority as Commander-in-Chief of the U.S. Armed Forces is established in Article II of the Constitution and limited by the War Powers Resolution. The President can only introduce the U.S. Armed Forces into hostilities pursuant to a declaration of war, specific statutory authorization, or a national emergency created by an attack—or an imminent attack—upon the U.S., its territories or possessions, or its armed forces.  When exercising this authority the President must submit a report to Congress within 48 hours setting forth the circumstances necessitating the introduction of U.S. armed forces into hostilities; the constitutional and legislative authority under which such introduction took place; and the estimated scope and duration of the hostilities or involvement. Although this report provides some details to Congress, it does not speak to strategic planning as does the GPRA.  Additionally, the words “strategy”, “mission”, “goal”, or “objective” are nowhere to be found within the War Powers Resolution. The lack of these words—particularly when contrasted with the detail required by the GPRA—suggests that Congress is comfortable allowing the President to introduce the men and women of the U.S. Armed Forces into hostilities without a strategic plan.

The War Powers Resolution was signed on November 7, 1973, whereas the first GPRA was signed 20 years later. Based upon this difference in time, it may not be appropriate to compare the congressional reporting requirements of the War Powers Resolution to the strategic planning requirements detailed in both version of the GPRA.  However, since Bill Clinton signed the first GPRA in 1993, the President has been given additional specific statutory authorities whereby he can introduce the U.S. Armed Forces into hostilities.

The President recently exercised these additional statutory authorities when introducing the men and women of the U.S. Armed Forces into hostilities against the Islamic State of Iraq and the Levant (ISIL).  There is ongoing debate regarding the legal basis to strike ISIL, which centers around the President’s authority under Article II of the Constitution, Public Law 107-40 signed on September 18, 2001 authorizing the use of U.S. Armed Forces against those responsible for the attacks of September 11, 2001, and Public Law 107-243 signed on October 16, 2002, “Authorization for Use of Military Force Against Iraq.” Regardless of which authority the President is currently using to strike ISIL, none of them requires strategic planning as the current GPRA does.  One is entitled, particularly given the blood and treasure expended during over ten years of overseas contingency operations, to wonder why not.  And at least in my view, they really should.

Somewhere between the voluminous information the President must provide to Congress as part of the annual budget request and the scarce information he must provide when introducing the men and women of the U.S. Armed Forces into hostilities, a balance must be struck.  As a taxpayer, I am pleased that Congress demands so much strategic planning as part of the budget process.  As a Veteran, I am disappointed that Congress does not demand a near-equal level of strategic planning when the President sends the men and women of the U.S. Armed Forces “once more unto the breech.” I look forward to the day when a morally courageous member of Congress puts forth legislation that enhances the reporting requirements contained in the War Powers Resolution or does the same in future authorizations for the use of military force.  At a minimum, this reporting should mirror the strategy, mission statement, goals, and objectives structure in both versions of the GPRA.  If Congress truly wants to serve its constituents, it should focus its oversight equally on the expenditure of funds and the risking of lives.

Phil Walter is a former Infantryman, Intelligence Officer, and Counterterrorism Planner.  He currently serves in a policy role in the Executive Branch of the United States Government. The views expressed in this article are those of the author alone and do not contain information of an official nature.  Phil Tweets @philwalter1058 and his blog can be viewed here:  www.philwalter1058.com 

A Quick Summary of Oral Argument in In Re Directives

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Monday, November 24, 2014 at 4:30 PM

Earlier this Fall I wrote about how certain materials from the In Re Directives litigation before the Foreign Intelligence Surveillance Court of Review (“FISCR” or “Court”) had been declassified. Last Monday, the Office of the Director of National Intelligence released the transcript from oral argument in the FISCR case, which was held on June 19, 2008, before Chief Judge Bruce Selya, and Senior Circuit Judges Morris Arnold and Frank Winter.

By way of reminder: Yahoo! had petitioned for review of an earlier decision by the Foreign Intelligence Surveillance Court (“FISC”) which had rejected the tech company’s challenge to directives issued under the Protect America Act of 2007 (“PAA”), and targeting persons—foreigners and US persons alike—thought  to be abroad.  As prescribed by the PAA, the directives had required Yahoo! to open up a still-undisclosed number of user accounts to government surveillance. But Yahoo! protested.  Before the FISCR the company argued that, to the extent it was directed at US persons, the surveillance ran counter to the Fourth Amendment’s warrant provision; or alternatively that, to the extent that a “foreign intelligence surveillance” exception to the warrant requirement permitted the surveillance in principle, the surveillance was nevertheless unreasonable. Ultimately, neither claim carried the day, as the FISCR sustained the directives’ lawfulness and ordered compliance with them.

Below you’ll find a thematically-organized account the argument’s highlights.  Read more »

Huawei at Fed Ex Field

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Monday, November 24, 2014 at 3:16 PM

So … Huawei has announced that it will sponsor the Wi-Fi at Fed Ex field for the Suite level.  Any one out there worried, in the least, that Huawei might tap the communications there?  Given how “movers and shakers” all use the Suite level, the richness of the target environment is insanely large.  And how many Washingtonians log into their work emails from Fed Ex?  Or take selfies of themselves?  Maybe even with a non-spouse?  The mind boggles at the intelligence opportunities for Huawei.  Unless it’s all a great counter-intel op ….