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The U.S. Intelligence Community and Non-Neutral Principles

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Thursday, February 26, 2015 at 3:30 PM

Last week, Ben’s NSA Constitution Day speech emerged after a long “declassification” process.  One puzzle Ben grapples with in this speech is why reasonable, educated Americans have–and will continue to have–such a high level of discomfort with what the NSA and other intelligence agencies do. The types of activities NSA is asked to do and the secrecy with which NSA must do them both contribute to that discomfort, Ben argued, but they cannot fully explain it. After all, lots of what the U.S. Government does it does not do publicly. And that activity involves some of the most trusted institutions in the government: the military and the Supreme Court, for example. The types of activities don’t fully explain the mistrust either. Yes, some of what the intelligence community does is distasteful stuff. But FBI agents threaten to put people in small cells for the rest of their lives. The Bureau of Prisons has been known to execute people.

So Ben posits a third explanation: the fact that, unlike much other U.S. law, the intelligence community does not operate under “neutral principles.”  That is, most provisions of U.S. law apply to everyone equally.  A Congressman is not entitled to engage in assault any more than an average citizen is. People of all races, genders, and professions must obey speed limits.  And people rightly respond with outrage when power and privilege result in differential application of the law.  When it comes to the intelligence community, however, the law allows those actors to do things other people cannot.  As Ben points out, Gen. Hayden once cheerfully admitted, “We steal secrets; we steal other nations’ secrets.” No one else is allowed to steal. And very few heads of agencies outside of the intelligence community, in describing their agencies’ routine business, would use a word that typically connotes criminal activity. The principles regulating intelligence are not neutral.

But Ben’s hypothesis raises a question: How can we explain the fact that the U.S. military consistently ranks as the most trusted institution in government, when the military itself is not subject to neutral principles?  After all, members of the U.S. military are permitted to kill or detain people during armed conflict and stand immune from criminal sanction for doing so. The very phrase “combatant immunity” suggests something other than a neutral principle.

One possible answer to this question is that while U.S. domestic law is not neutral in regulating the military, the international law that regulates the military does, in fact, contain neutral principles—principles with which the U.S. military, as a general matter, scrupulously abides. On the international plane, a state actor encounters peers who may engage in the same activity that it can, and the international law that has developed regulates that activity in a robust and detailed way. The result is that while the public can’t look at the military and say, “This institution is subject to the same rules I am,” it can look at the military and say that it is subject to a known code and the same accepted rules that regulate its counterparts.

If Ben is right–that well-established, neutral principles on the international plane can stand in for a lack of neutral principles in domestic law–that may have fascinating long-term implications for intelligence activity and in ways that dovetail with some of Ashley’s recent work. Many states and scholars believe that international law imposes few regulations on intelligence communities. So as the law currently stands, international law is not serving as a counterweight to the non-neutral domestic principles regulating NSA and the intelligence community more broadly.

This invites the idea that one way to begin to reduce the discomfort (not just of U.S. citizens but also of citizens of other countries) with intelligence activities is to craft more robust, neutral international norms. Doing so will not be easy. There are a number of reasons why states generally have not tried to develop international laws to regulate intelligence activity, including because states have disparate capabilities (that they will, of course, be loath to discuss with other states and that create variable incentives to regulate) and because enforcement will be very hard. Ashley has suggested one place to start: six procedural norms that Western democracies might develop as among each other, to cabin foreign electronic surveillance. These norms include limits on reasons to collect or query data, periodic reviews of surveillance authorizations, and the existence of neutral oversight bodies. If Ben’s theory is correct, it will never be possible to craft neutral domestic laws.  But it may be possible to counter-balance that problem by creating rules that regulate intelligence communities in neutral ways on the international plane.

Problems with Cyber Arms Control

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Thursday, February 26, 2015 at 3:17 PM

The New York Times has an editorial today, calling for an arms control effort in cyberspace.  The Times effort is, honestly, a bit simplistic, as is its conclusion:

The tougher challenge is on the global level. Cyberwarfare has already done considerable damage and can lead to devastating consequences. The best way forward is to accelerate international efforts to negotiate limits on the cyberarms race, akin to the arms-control treaties of the Cold War. Barring that, there are few viable ways to bring these new weapons and their use under control.

Others have noted the flaws in this sort of idea before.  As Jack Goldsmith has said, these types of treaties are inherently unverifiable.  And, of course, some of the examples that animate the Times (like the hack of Sony and bank theft) are a pretty long way from warfare, thereby confusing cyber conflicts or challenges, with true war.

My own take is even more fundamental — we can’t have a cyber arms control treaty if we don’t know what cyber weapons are.  One will scour the literature for a definition — right now we know it when we see it.  But that means we only know it when it is used — and you can’t have a post-use arms control treaty.  That’s a gap that I’ve recently  tried to address in a paper co-authored with a GWU colleague, Trey Herr, entitled “Cyber Weapons and Export Control: Incorporating Dual Use with the PrEP Model” which we wrote for the GWU Cybersecurity Policy and Rsearch Institute and which is forthcoming for the Journal of National Security Law & Policy later this year.  Here is the abstract:

How do existing export control laws treat malware and cyber weapons and what complications arise with their use? This paper presents a technically grounded framework to examine under what conditions malicious software components might be covered by the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR). It presents the law in question and examines several key challenges in classifying and restricting the flow of cyber weapons.

Cyber war and weaponry are serious problems.  We shouldn’t “forget about” the possibility of controlling or regulating their use.  But it will take more than a rote incantation of the need to negotiate limits to get us there.

Today’s Headlines and Commentary

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Thursday, February 26, 2015 at 3:16 PM

The number of Syrian Christians kidnapped by ISIS in northeastern Syria over the past three days has increased to 220, according to activists. The Associated Press reports that the fate of the hostages remains unknown, but the Syrian Observatory for Human Rights claimed that mediated negotiations were taking place between local Arab tribes and an Assyrian representative.

While ISIS continues its rash of kidnappings in Syria, it has released dozens of hostages in Iraq. Al Jazeera reports that, after capturing over 100 men and boys near Tikrit on Sunday, the group released 21 hostages earlier this week, and yesterday, released 30 more. According to one local leader, many of those kidnapped are relatives of Iraqis fighting ISIS.

Despite ISIS’s recent success in capturing large numbers of hostages, the leader of the international coalition fighting the militant group claims that its leadership in Iraq has been decimated, the Washington Post reveals. In testimony before the Senate Foreign Relations Committee, Gen. John Allen said that half of the group’s leaders in Iraq have been killed. Gen. Allen cautioned, however, that it was impossible to entirely eradicate ISIS; instead, the goal should be to limit its operational capacity.

‘Jihadi John’, the English-speaking Westerner shown beheading hostages in several ISIS propaganda videos has been identified by friends and family as Mohammed Emwazi, the Post reports. Emwazi was raised in West London and graduated from college with a degree in computer programming. After graduating from the University of Westminister, Emwazi apparently had a series of encounters with counterterrorism officials before allegedly traveling to Syria in 2012, later joining ISIS.

The Justice Department announced yesterday that it has arrested and charged three Brooklyn residents with plotting to join ISIS in Syria. CNN details the arrests and the plot. The New York Times has a digital copy of the official complaint.

The chaos in Syria has driven millions from their homes, and a plan to resettle some of them in the United States is facing pushback. The AP notes that the Obama administration’s plan to take in perhaps thousands of refugees is raising fears among law enforcement officials and some Republican congressional representatives that a lack of information on the refugees may allow extremists into the United States.

A French lawmaker who recently traveled to Syria with three other French parliamentarians to meet with Syrian President Bashar al-Assad may face sanctions and possible expulsion from his party. Reuters reports that the leader of the Socialist Party has promised to sanction Gerard Bapt, who took part in the four-man delegation without the approval of the foreign affairs committee of the French parliament.

Read more »

The Moral Vacuity of The Intercept

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Thursday, February 26, 2015 at 1:22 PM

In our new book, Whistleblowers, Leaks and the Media, my co-editors and I talk at some length about what we characterize as the “fundamental tension” that lies at the heart of news reporting today involving national security matters.  The tension — between transparency and secrecy — is fundamental for two distinct reasons:  First, because at bottom it involves two exceedingly important values — government efficacy in protecting the body politic and citizen control of government as a check on abuse.  Second, because (at least in America) the tension between these two is ineradicable — it is baked into our Constitutional structure and our social DNA.  Since the time of the Founding, Americans have struggled to with this tension — not to resolve it, but to manage it.  As we put it in the introduction to the book:

In the end, we think the tension metaphor may present a false choice – that you can either have transparency and accountability or you can have secrecy and effectiveness. If we really were put to such a choice it would a difficult, indeed almost existential, question – but the choice is not real. The United States can, and indeed, does have both transparency and secrecy; both accountability and effectiveness.   The goal should be to maximize both values to the extent practicable.

And that, at bottom, is the theme of this book. It’s not about “resolving” the fundamental tensions that exist permanently in American democracy. It’s about managing them, living with them and accommodating the competing values to the maximum extent practicable. We all want to be safe; we all want an effective government that can provide national security; and we all want one that acts within the rule of law. We all want a government that is transparent and accountable, not despotic. And we all want a legal and policy structure that fosters our desires.

Serious journalists and policy professionals understand this challenge.  They give the competing values purposeful consideration and do their best to manage the issues on a case by case basis.  I have the utmost respect for those engaged in the profession (indeed I teach at the Medill School of Journalism precisely because their work is important) even when, as is often the case, I disagree with the choices they make.  There is a high-mindedness to their efforts that deserves our respect and support.

Then there is The Intercept.  Nothing that I can think of justifies some of their “journalistic” choices — this disclosure of a TSA security vulnerability being the most recent instance that finally drove me to comment.  The article reveals that the TSA has sent its staff a notice about a possible vulnerability through a type of explosive that the TSA’s system is not equipped to detect.

Read carefully there is no allegation of misconduct; no allegation of malfeasance; no allegation of error.  The closest to a justification for publishing the classified material that The Intercept can come up with is that there is a bureaucratic  “CYA-type” nature to disclosure — because it does not come with any solution to the vulnerability.   Even on its own terms that argument is curious — bureaucratic gridlock is a ground for disclosing information that could result in real harm to individuals.  I’m not sure how any moral calculus makes that choice.

More to the point, had the vulnerability not been disclosed, the TSA might well have been charged with “concealing” its own lack of competence.  To be sure, there are any number of reasons to think that TSA is not doing a great job — but identifying and publicizing to its staff a vulnerability for which it has yet to devise a solution is not an example of incompetence or misfeasance.  It’s generally good governance — since the first step toward a solution is identifying a problem.

So why would The Intercept publish such a piece?    Transparency without a ground of oversight or audit or review is nothing more than voyeurism.  And, at bottom, that is just moral vacuity.  It reflects a failure to grapple with hard questions of justification and need, replacing them with little more than narcissism of the “see how important I am” variety.

HASC Testimony: Towards a Better AUMF

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Thursday, February 26, 2015 at 10:00 AM

Prepared Testimony of Robert Chesney

Charles I. Francis Professor in Law

Associate Dean for Academic Affairs

Director, Strauss Center for International Security & Law

The University of Texas at Austin

Before the House Armed Services Committee 

February 26, 2015

“Outside Perspectives on the President’s Proposed Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant”

Chairman Thornberry, Ranking Member Smith, and members of the committee, thank you for the opportunity to testify on this important topic. Though debates no doubt will always rage regarding whether and when it is strictly necessary for Congress to assent in order for the use of force to be constitutional, there is no doubt that it is always important and desirable for Congress to express its views when America’s armed forces are sent into harm’s way.

I begin by summarizing four key takeaways from the pages that follow:

  1. The administration has not abandoned its claims of authority to attack ISIL under Article II or the 2001 AUMF, rendering the constraints set forth in the draft AUMF largely (though not entirely) academic as a legal matter.
  2. There is no on-point precedent for authorizing military force to “defeat” an enemy while at the same time forbidding the Commander-in-Chief to engage in certain forms of ground combat operations towards that end; prior AUMFs that authorized only limited forms of force did so in connection with narrower objectives, such as stopping foreign powers from seizing American shipping or participating in peacekeeping operations.
  3. Whether it is constitutional or not, any limitation on the role of ground forces in the AUMF must not create unnecessary legal uncertainty for commanders. The draft’s vague prohibition on “enduring offensive ground combat operations” violates this principle.
  4. Sunset provisions are especially desirable in an AUMF where, as here, the nature of the mission is uncertain, the demands of meeting the mission likely will evolve over time, and the benefits of refreshing the democratic legitimacy of an overseas military operation accordingly are higher than normal.

I explain these claims in more detail below, along with a number of other points. Part I begins by placing the Administration’s proposal in context with the authority the Administration already claims under color of Article II of the Constitution of the United States as well as the 2001 AUMF directed at al Qaeda. Part II surveys the provisions of the draft AUMF that have generated the most controversy and debate, including: (a) its lack of a stated purpose; (b) the prohibition on “enduring offensive ground combat operations”; (c) its definition of “associated forces”; (d) its transparency and oversight provision; (e) its relationship to the Law of Armed Conflict; (f) its sunset clause; and (g) one final matter that has flown under the radar up to this point insofar as ISIL is concerned. Read more »

HASC Testimony: An Alternative to the Administration’s AUMF Draft

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Thursday, February 26, 2015 at 10:00 AM

Prepared Statement of Benjamin Wittes

Senior Fellow at the Brookings Institution

before the

House Committee on Armed Services

“Outside Perspectives on the President’s Proposed Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant”

February 26, 2015

Thank you Chairman Thornberry, Ranking Member Smith, and members of the committee for inviting me to present my views on the President’s proposed Authorization for the Use of Military Force against the Islamic State of Iraq and the Levant.[1] I am a senior fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author, co-author, or editor of several books on subjects related to law and national security. These include The Future of Violence: Robots and Germs, Hackers and Drones—Confronting a New Age of Threat (forthcoming 2015), Speaking the Law: The Obama Administration’s Addresses on National Security Law (forthcoming 2015), Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). I have written extensively on both the existing 2001 AUMF and on the need for a new one. The views I am expressing here are my own.

I want to advance two basic arguments today. First, I will argue that the administration’s draft ISIL AUMF is a significantly flawed document, though flawed in ways somewhat different from many of the criticisms being advanced against it. Second, I will argue that many—though not all—of the legitimate criticisms that people of diverse politics are making against the administration’s draft do not apply, or apply with significantly lesser force, to a draft AUMF that Jack Goldsmith, Matthew Waxman, my co-panelist Robert Chesney, and I put forth last year. Given the widespread criticisms of the administration’s draft, I want to suggest that our draft may provide an alternative way forward for this body as it contemplates authorizing military force against ISIL.

Read more »

Live: Benjamin Wittes and Bobby Chesney Testify Before HASC on AUMF

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Thursday, February 26, 2015 at 9:50 AM

At 10 am, Lawfare’s Benjamin Wittes and Bobby Chesney, along with General Jack Keane, will provide testimony before the House Armed Services Committee today regarding the Obama administration’s proposed Authorization for the Use of Military Force against ISIL.  Ben’s and Bobby’s prepared statements will follow in subsequent posts.

You can watch the proceedings here on the committee website or below:

Monday and Tuesday at the Military Commissions: Al Nashiri

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Wednesday, February 25, 2015 at 4:24 PM

The Al Nashiri military commission proceedings returned Monday for what is scheduled to be two weeks of pre-trial motion hearings. After an off-the-record session in the morning, the commission picked up in the afternoon session with AE 332, a defense motion to dismiss for unlawful influence and violation of due process for failure to provide an independent judiciary.

Before beginning oral argument on the motion and related issues, commission judge Air Force Colonel Vance Spath disclosed recent discussions he had with the Air Force’s Judge Advocate General and Deputy Judge Advocate General, as well as with Colonel James Pohl, Chief Judge of the Commissions, related to Change 1 to the Rules for Military Commissions. Change 1 requires that detailed commission judges drop all non-commission matters and relocate to Guantanamo Bay immediately until the conclusion of the commission. It seems that there is some confusion within the Air Force and among commission judges as to whether Change 1 applies to all commission judges—including this commission on the U.S.S. Cole bombing—or only to those hearing cases related to the attacks of September 11, 2001.

Read more »

Today’s Headlines and Commentary

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Wednesday, February 25, 2015 at 3:50 PM

ISIS has kidnapped scores of people from Assyrian Christian villages during raids in northeastern Syria. Reuters reports that, according to accounts by Syrian Christian activists, 150 people were kidnapped; the Syrian Observatory for Human Rights earlier placed that number at 90. ISIS’s Libyan affiliate recently executed 21 Egyptian Coptic Christians, raising fears over the fate of the captured Assyrian Christians. The raids in northeastern Syria come as ISIS also advances in Iraq’s Anbar province. The Long War Journal describes a series of assaults on Iraqi settlements by the group, including one, documented in a jihadi-produced video, that resulted in the seizure of a large weapons cache.

Some analysts have suggested that these moves are merely an attempt to project the image of power while being hit hard in both Iraq and Syria. ISIS faces significant pressure from Syrian Kurds, who, Reuters reports, succeeded in blocking a major ISIS supply line from Mosul to Raqqa during an assault in northeastern Syria. And in Iraq, the United States continues to send large shipments of weapons and other military equipment while training and supplying Iraqi security forces. However, the mission in Iraq has been complicated by the Pentagon’s release last week of details regarding an upcoming offensive to retake Mosul. Foreign Policy explains that the unusual release has been criticized roundly by Iraqi officials, who say it implied that the United States was leading the assault, of which they were unaware, and by U.S. politicians, who argue that it telegraphed too much of the battle plan to ISIS.

But as ISIS faces opposition in both Iraq and Syria, its supply of Western adherents continues unabated. The New York Times describes the all-too-common path of one bright, driven young woman from Britain to ISIS’s “capital” of Raqqa in Syria, where she married a jihadi and now recruits other young British women. British authorities are investigating what role she may have played in the disappearance of three young British girls who are suspected of travelling from London to Syria to join ISIS.

ISIS also continues to diversify its sources of funding. The Washington Post writes that the group has, according to art crime experts and archaeologists in Britain, smuggled nearly 100 artifacts into Britain and sold them to fund its activities.

Several days after saying that ISIS could not be defeated without a stable political situation, President Barack Obama has renewed his call for the resignation of Syrian President Bashar al-Assad. The Wall Street Journal reports that, in a meeting yesterday with the Emir of Qatar, President Obama reiterated that President Assad has lost all credibility and should step down. Also on Tuesday, in a new report, Human Rights Watch reiterated that the Assad regime has dropped barrel bombs on hundreds of sites over the past year, according to the Times. The report comes a year after the U.N. Security Council specifically condemned the use of barrel bombs, which are prohibited under international law.

President Assad nonetheless found an audience with several French lawmakers earlier today. Reuters reports that he met with four French parliamentarians in Damascus without approval by the French parliament’s foreign affairs committee. The French Foreign Ministry said it did not support the meeting, which Syrian state-run media described as focused on the challenge of terrorism. Though France closed its Syrian embassy and claimed that the Assad regime was no longer legitimate in 2012, there are whispers in corners of Europe that it is time to drop opposition to and begin cooperating with President Assad.

For their part, U.S. politicians are busy debating the draft AUMF put forth by the Obama administration. Testifying before the Senate Appropriations Committee Tuesday, Secretary of State John Kerry shed some light on what, exactly, the draft’s cryptic language banning “enduring offensive ground combat operations” means to the administration. The Hill reports that Secretary Kerry explained that “weeks and weeks of combat” would qualify as enduring, while overnight operations or rescue attempts would not. Kerry also claimed that there is “no real need” to repeal or even revisit the 2001 AUMF. And while politicians continue to wrangle over statutory authority for the campaign against ISIS, the U.S. public appears to be warming up to it. The Pew Research Center released the results of a poll yesterday showing that nearly two-thirds of the public supports the campaign, up from just over half in October in 2014.

As the United States debates what, if any, new authorization it will give to President Obama, a reported plan to unilaterally invade Iraq has rocked Australian politics. According to the Post, a leading Australian newspaper released a report suggesting that Australian Prime Minister Tony Abbott considered launching a unilateral invasion of Iraq in November. According to the report, it was only when Australian military officials told Mr. Abbott that invading Iraq without the United States or NATO would be disastrous that the plan was shelved. Mr. Abbott’s government has denied the report, saying there was never a “formal” proposal.

The threat posed by ISIS in Afghanistan has spurred the creation of irregular, non-state militias pledging to battle any attempt by ISIS to gain a foothold in the country. The Post describes how veterans of the fights against the Taliban and even the Soviets are joining such groups while official Afghan forces struggle to fill the void left by the withdrawal of U.S. and NATO forces. The Afghan government has promised to disband these militias, whose increasing presence is raising fears of a return of the pro-government militias that fought brutally and outside of the law after the 2001 invasion.

This news comes as the Associated Press reports that unidentified gunmen in southern Afghanistan have kidnapped 30 members of the Hazara ethnic minority. The kidnapping is the latest in a series of attacks against the Shiite community in Afghanistan.

Former Pakistani President Pervez Musharraf said in an interview with the Wall Street Journal that peace in Afghanistan must include power-sharing with the Taliban and a rejection of Indian influence. In an uncommon admission by a Pakistani official, ex-President Musharraf also acknowledged that Pakistan and India had been engaging in a proxy war in Afghanistan, and said that Pakistan’s conflict with India justifies its support of the Afghan Taliban.

The United Nations has released a report saying that while torture in Afghanistan’s detention centers is in decline, it is still a widespread problem throughout the country. 35 percent of prisoners interviewed by the United Nations said they had experienced torture or another form of ill-treatment. The Guardian has more.

In Yemen, recently ousted leader Abed Rabbo Mansour Hadi is attempting to regain the presidency he was forced out of in January. The Wall Street Journal notes that, after Houthi rebels took control of the capital of Sana’a in northern Yemen, President Hadi secretly fled to southern Yemen, where he has begun courting southern tribes and political parties while planning an attempt to reinstate himself as president. An aide to the president claimed that Saudi Arabia has given its full support to his campaign.

Hadi’s efforts are complicated by the Houthi rebels’ continued military success. Earlier today, the rebels took control of a special forces army base manned by troops that were trained by the United States and were supposed to be an elite counterterrorism unit. Reuters covers the Houthi assault, and also reveals that U.N. investigators suspect that former President Ali Abdullah Saleh amassed as much as $60 billion during his three decades of rule.

The entry of the Chadian army into the fight against Boko Haram appears to be turning the war’s tide. The Wall Street Journal explains that Boko Haram’s obstruction of Chadian trade routes pushed the country to send its military into the fray, which has encouraged nearby countries to do the same. The result has been a reversal of Boko Haram’s success. The progress comes before a planned multi-lateral offensive by countries in the region, most of whom are currently participating in training exercises sponsored by the U.S. military. Reuters has more on these ‘Flintlock’ exercises.

Ukraine’s military said earlier today that, for the first time in weeks, it had gone 24 hours without losing a soldier in the fight against Russian-backed separatists, Reuters notes. While the report raised hopes that a ceasefire agreement was taking hold, the Daily Beast reports that the separatists have plans to continue seizing land, including the port city of Mariupol. In its efforts to hamstring Ukraine’s efforts to combat the militants, Russia is threatening to cut off natural gas shipments to Ukraine, which could disastrously impact European states dependent on fuel shipped through Ukraine. Foreign Policy’s Keith Johnson describes the power play.

Ukraine, however, may soon be bolstered by weapons from the United Arab Emirates, the Wall Street Journal notes. As the Obama administration continues to ponder whether to supply the Ukrainian military with arms, Ukrainian President Petro Poroshenko announced in Abu Dhabi yesterday that his country would purchase arms from the Middle Eastern nation. But, writing in DefenseOne, Derek Chollet argues that Ukraine needs much more than just arms in its fight against the separatists; it needs a comprehensive reform of its military.

While the United States demurs on the decision to arm Ukraine in its fight against Russian proxies, U.S. weaponry nonetheless appeared on Russia’s borders earlier today. In an Estonian Independence Day celebration, U.S. military vehicles joined a parade in the border city of Narva. The Post has more.

Officials from the International Atomic Energy Agency met with their Iranian counterparts in Brussels on Tuesday, concluding that their conversations had led to a “better understanding” but conceding that there was little movement toward a breakthrough in resolving the U.N. organization’s questions regarding the past nature of the Iranian nuclear program. At the same time, Defense News reports that Russia has offered Iran a new advanced surface-to-air missile. Russia had broken off a previous 2010 arrangement to provide the missiles to Iran. A U.N. resolution from that same year bans the supply, sale, or transfer of missiles or missile systems to Iran. And, Iran finally put that replica of a U.S. aircraft carrier to use, targeting it with more than a dozen speedboats during a large-scale naval drill. The Times has more on the nationally televised show of force. However, there was no indication that the Revolutionary Guard managed to sink the defenseless mock-up.

Back in the United States, White House Press Secretary Josh Earnest denied a recent report that the deal taking shape with Iran would only restrict its program for 10 years, saying “that does not reflect the accurate negotiation position of the United States and our international partners.” Yesterday, before the Senate Foreign Relations Committee, Secretary of State John Kerry cautioned Congress that “Anybody running around right now, jumping in to say, ‘Well we don’t like the deal,’ or this or that, doesn’t know what the deal is.” The Times carries more on the Secretary’s remarks.

And, with all this talk about the length of the agreement, Ilan Goldenberg reminds us that the real key to an agreement with Iran is the length of the window of vulnerability it creates.

On Monday, a U.S. federal court ruled that the Palestinian Liberation Organization and the Palestinian Authority were liable for a series of terrorist attacks that killed and injured several Americans from 2002 to 2004. Now, the Post reports, Palestinian officials have promised to appeal the ruling and will continue to pursue an International Criminal Court investigation into possible war crimes committed by Israel during last year’s war in Gaza.

The State Department and the FBI are offering a $3 million reward for information leading to the arrest or conviction of cyber thief Evgeniy Bogachev, Reuters reports. The reward for Bogachev, a Russian national who allegedly masterminded a computer attack network that stole over $100 million dollars from online bank accounts, is the highest reward offered yet for a cyber criminal.

In Guantanamo proceedings yesterday, the defense for Abd al Rahim al Nashiri, who allegedly helped conduct the USS Cole bombing in 2000, argued that Pentagon officials knew that a recent order directing GITMO judges to remain on base for the duration of their trials might constitute unlawful meddling. The Miami Herald covers the proceedings.

The recent release of the summary of the ‘Torture Report’ has substantially changed the dynamics of Guantanamo proceedings. NPR describes how defendants who were previously barred from disclosing details of the abuse they were subjected to can now discuss such matters in proceedings. This freedom lends credence to the defendants’ cases, says one defense lawyer.

According to the Guardian, the Chicago police department runs an unofficial interrogation center that lawyers say amounts to a domestic “black site”. Accounts of police practices inside the off-the-books facility include beatings, the shackling of detainees for hours at a time, the denial of access for attorneys, and secret renditions conducted without an official record. In a statement, the Chicago police department maintained that the facility operates within the bounds of the law.

In response to revelations Friday that U.S. and British intelligence agencies hacked into Gemalto, one of the world’s largest SIM card manufacturers, the company admitted that these agencies may have breached its network several years ago but maintained that they could not have compromised the encryption that it builds into its cards. The Wall Street Journal reports that the company also said it would not take legal action because of difficulties in legally proving the agencies’ culpability.

Bard College’s Center for the Study of the Drone has an in-depth look at the global infrastructure that allows drones to conduct intelligence and lethal operations around the world. And while drones have certainly changed intelligence gathering and counterinsurgency, in a report by RAND, Lynn E. Davis, Michael J. McNerney, and Daniel Byman argue that they are not actually transforming warfare.

The judge in the trial of alleged Boston Bomber Dzhokhar Tsarnaev has rejected a request from the defense to bar demonstrators from congregating outside the courthouse, the Guardian notes. The defense argued that the presence of the protesters, who believe that the Boston bombing was a government plot, might prejudice jurors against Tsarnaev. Jury selection in the trial is ongoing.

Parting Shot: Defense One details the military’s fight against ISIS on the Dark Web.

ICYMI: Yesterday, on Lawfare

Herb Lin dissected the ongoing debate over encryption and backdoors, suggesting that what really matters is time scale – or the time it takes to figure out a NOBUS key.

Ben and fellow Brookings scholar Michael O’Hanlon answered questions about the AUMF via webcast yesterday. Cody posted the video.

Carrie Cordero continued Lawfares current discussion on the difference between U.S. and international surveillance law.

Jack described his recent essay on the issues surrounding the U.S. plan to relinquish control of the internet’s domain name system.

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.

Defense Counsel: 9/11 Case Halted, Pending Change in Judges’ Assignment Rule

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Wednesday, February 25, 2015 at 3:14 PM

Wow.  This just in from J. Connell III, an attorney for 9/11 defendant Ammar al-Baluchi:

WASHINGTON, DC-Today, a military commissions judge ordered a halt to the 9/11 case at Guantanamo Bay because Department of Defense officials tried to unlawfully influence the military commissions judiciary.  The order, known as “abatement,” means that no further proceedings will take place until the DOD rescinds a controversial order for military commissions judges to move to Guantanamo.

On December 9, 2014, Major General Vaughn Ary, U.S.M.C. (Ret.), the “Convening Authority” in charge of the military commissions at Guantanamo, sent a memorandum to Deputy Secretary of Defense Robert Work asking him to require military commission judges to relocate to Guantanamo Bay “to accelerate the pace of litigation.”  On January 7, 2015, the Deputy Secretary of Defense issued the rule change requested by the MajGen Ary.

On January 30, defendants in the 9/11 case filed a motion to dismiss the case for unlawful influence over the military judiciary.  “Unlawful influence, an issue in some military cases with no direct analogue in the civilian courts, occurs when a government official attempts to influence the action of a military judge,” said Lt Col Sterling Thomas, a U.S. Air Force Judge Advocate General detailed to represent Ammar al Baluchi in the military commission.  In their motion, the defendants argued that the rule change was increased “the personal cost to military judges of time between hearings, as the military judges must spend that time at Guantanamo Bay rather than their current place of residence.”

On February 25, 2015, Chief Judge Colonel James Pohl, U.S. Army, ruled that the actions by the Deputy Secretary of Defense, on the recommendations of the Convening Authority, constitute at least the appearance of an unlawful attempt to pressure the military judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion, thereby compromising the independence of the military judge.  Military Judge Pohl ordered “abatement” of the case until the rule change is rescinded by the proper authority.   The prosecution has five days to appeal the new order, if it chooses to do so.

“The military commissions have been plagued by intrusions by the FBI, CIA, and now senior DOD officials,” said James Connell, civilian attorney for al Baluchi.  “It would not surprise me if the administration seizes on this latest problem as an excuse to move the cases back to the civilian courts.”  In April 2014, the military commission learned that the FBI had recruited a defense team member as a confidential informant, and earlier this month, a temporary courtroom interpreter was revealed as a former CIA contractor.

A public version of the defendants’ motion (AE343) is available at www.gitmowatch.com/unlawful-influence-motion.  Today’s order is still under seal.

Steptoe Cyberlaw Podcast, Episode #55: An Interview with Nuala O’Connor

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Wednesday, February 25, 2015 at 2:40 PM

In Episode 55 of the Cyberlaw Podcast, we revive This Week in NSA to explore the claim that GCHQ stole mass quantities of cell phone encryption keys.  Meanwhile, Jason explains the complex political battles over Rule 41, Michael explains why so many

Nuala O’Connor, Stewart Baker, and Jason Weinstein

Nuala O’Connor, Stewart Baker, and Jason Weinstein

companies have rallied to Twitter’s first amendment claim against the Justice Department, and both of them explain how Yahoo! managed to beat the government’s indefinite gag order – and why Yahoo! might even be right.  After which we melt down into the bottomless hot mess of liability and litigation that surrounds the Lenovo/Superfish/Komodia/Lavasoft flap.

Our interview is with the charming and feisty CEO of the Center for Democracy and Technology, Nuala O’Connor.  Nuala and I square off over end-to-end encryption, privacy, and section 215, while managing to find common ground on TLS and even child-rearing.

As always, send your questions and suggestions for interview candidates to [email protected] or leave a message at +1 202 862 5785.

Senate Commerce Committee Hearing on “Preserving the Multistakeholder Model of Internet Governance”

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Wednesday, February 25, 2015 at 9:55 AM

The Senate panel, led by Chairman John Thune (R-SD), will discuss internet governance matters this morning at 10:00 a.m. A livestream can be found at the Commerce Committee’s website; we’ll post embedded video if it is available.

The witnesses (with links to testimony):

  • Ambassador David Gross
    Partner, Wiley Rein LLP, and former U.S. Coordinator for International Communications and Information Policy, U.S. Department of State
  • Mr. Lawrence Strickling
    Assistant Secretary for Communications and Information and Administrator
    National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce

 

 

Book Review: The China-Pakistan Axis: Asia’s New Geopolitics by Andrew Small

Published by Oxford University Press (2015)
Reviewed by Bruce Riedel
Wednesday, February 25, 2015 at 8:26 AM

In December 2006, the Chinese People’s Liberation Army and the Pakistani Army conducted their first-ever joint counterterrorism exercises — practicing intelligence collection and sharing, special forces tactics, and other military operations to enable them to jointly fight terrorism five years after 9/11.  The Pakistanis hosted the exercise at their national military academy in Abbottabad, just north of the capital of Islamabad.  The exercise was a political symbol as well as a military and counterterrorism event:  it symbolized the “all weather” friendship of Islamic Pakistan and Communist China.

Meanwhile, just a half mile from the Kakul Military Academy, the most-wanted terrorist ever, Osama Bin Laden, was enjoying the new hideout he had moved into the year before.  Bin Laden no doubt followed the procession of helicopters over his lair, as senior Pakistani and Chinese dignitaries flew from Islamabad to Abbottabad to attend the exercise and laud the Chinese-Pakistan entente.  High value target number one was in Pakistan’s front yard as it discussed fighting terror with its closest ally.

Now we have an authoritative study of that pivotal entente.  Andrew Small’s The China-Pakistan Axis:  Asia’s New Geopolitics is a concise and informative study of one of the world’s most important state-to-state relationships.

The Beijing-Islamabad axis has its roots in the 1962 Sino-Indian war.  The rapid defeat of Indian forces in 1962 by the PLA was closely studied by India’s arch-rival.  The dictator in charge in Pakistan in 1962, Field Marshall Ayub Khan, tried to extort concessions from India on the Kashmir dispute during the war, but President John F. Kennedy told Ayub the U.S. would not tolerate Pakistan blackmailing India in its hour of weakness.  After the war Ayub tilted Pakistan increasingly toward China.

Pakistan’s next dictator, Yahya Khan, made possible Richard Nixon’s opening to China.  The Pakistani channel was the key to Henry Kissinger’s secret diplomacy with Mao Zedong.

Pakistan’s third dictator, General Zia ul Huq, moved the country ever further toward China.  Secret collaboration on nuclear weapons gave Zia the bomb and missiles to deliver them.  China provided the bulk of the arms for the mujaheddin fighting the Soviets in Afghanistan — arms paid for by the CIA and the Saudis.  If America was the quartermaster of the mujahedeen, then China was their armorer.

Small provides a well-researched account of how this axis emerged, offering a sharp focus on the nuclear dimension.  He has drawn on extensive interviews in both China and Pakistan as well as thorough research in the memoirs of the players involved.  The book is a wealth of data on a previously under-researched subject.

While geopolitics and arms are the core of the axis, extensive efforts at building economic infrastructure and trade have largely been expensive failures.  The Gwadar port development project on the Arabian Sea, for example, has not produced a Pakistani Dubai or a Chinese Gibraltar.  The Karakoram Highway linking China to Pakistan is an amazing engineering accomplishment, but there is little truck traffic on the road.  Economics don’t drive this relationship.

Terrorism is the biggest hurdle in the axis.  Pakistan is home to China’s top terrorist enemy, the East Turkestan Islamic Movement (ETIM), which fights for Uighur freedom in Xinjiang.  As Small relates, American drones have done far more damage to ETIM than Pakistan’s Inter Services Intelligence spies.  Indeed, the ISI plays many of the same games with the Uighurs that it does with Al Qaeda.  Al Qaeda and ETIM enjoy very close connections, according to Small’s research.

Beijing and Islamabad manage these tensions for the sake of their larger geopolitical goals.  As America exits Afghanistan, the China-Pakistan axis is preparing for the next phase in the great game in Central Asia.  This past January, when President Barack Obama traveled to India to watch the Republic Day parade in New Delhi with Prime Minister Narendra Modi, the Pakistani Chief of Army Staff General Raheel Sharif, the country’s strong man, was in China meeting his counterparts.  The geopolitics of Asia was on vivid display.   The region’s dual axes and their evolving relationships — India and America on the one hand, and Pakistan and China on the other — will be central to the global order in our times.

(Bruce Riedel is Director of the Intelligence Project at the Brookings Institution. His most recent book is What We Won: America’s Secret War in Afghanistan, 1979-1989.)

Today’s Headlines and Commentary

By
Tuesday, February 24, 2015 at 1:41 PM

Islamic State militants abducted some 70 to 100 Syrian Christians yesterday in a series of raids in Hassakeh province. Neighbors, friends, and relatives are unsure who has been taken or what will be their fate. According to the Associated Press, the targeted Assyrian group “trace their roots back to the ancient Mesopotamians.”

Newly installed Defense Secretary Ash Carter noted yesterday that “he doesn’t think the administration’s current strategy [toward the Islamic State] needs a fundamental overhaul.” Instead, the plan could use some sharpening and refining. Defense One has more on the Secretary’s remarks from Kuwait.

Reuters shares a special report on Hashid Shaabi, a newly formed and “secretive branch of the Iraqi government,” which “takes the lead in many of Iraq’s security operations.”

Pro-Russian separatists in eastern Ukraine say they are now willing to abide by the terms of a ceasefire negotiated earlier this year in Minsk. According to Reuters, fighting appears to have stopped, following a bitter battle last week for control of the strategic transport town Debaltseve, which rebels seized in seeming contravention of the ceasefire. Ukrainian officials emphasize that the militants are only obeying the terms of the agreement now so that they can build up their forces and weapons.

Foreign ministers from Ukraine, Germany, France, and Russia met in Paris today and reaffirmed their commitment to the Minsk ceasefire. Agence France-Presse points out that the European leaders were unable to agree on how to respond to the fighting in Debaltseve.

The Wall Street Journal reports that American and Iranian nuclear negotiators are working on a deal that would keep the Islamic Republic’s nuclear capabilities a year away from the development of a bomb for a period of ten years. This proposed timeline tracks largely with Iranian demands, as American negotiators had sought to establish a “breakout period” of twenty years.

The Wall Street Journal also examines the tensions inherent in the U.S. alliance with Qatar, a Persian Gulf nation known for its ties to militant groups, such as Hamas, the Taliban, and the Islamic State.

U.S. weapons manufacturer General Atomics is poised to sell the United Arab Emirates (UAE) eight unarmed Predator drones and associated equipment. According to Bloomberg News, the State Department has approved the transaction and all that is needed now is congressional sanction. The UAE would be the first non-NATO ally to buy drones from the U.S.

Although U.S. drone strikes in Afghanistan and Pakistan have traditionally endured significant criticism within the two countries targeted, a number of Afghan officials have recently praised the strikes, calling them “essential for effective intelligence operations.” Afghanistan’s TOLOnews shares their statements.

The Washington Post describes a law enforcement surveillance device, known as StingRay, which “simulates a cell tower” by drawing in signals information from mobile phones nearby. StingRay’s accuracy and effectiveness are remarkable, but it is unclear how the device comports with the Fourth Amendment’s guarantee against unreasonable search and seizure. “A gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public, and criminal defendants in the dark on how the tool works.”

Yesterday, a federal jury in Manhattan found both the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) guilty of supporting terrorist attacks in Israel. Under the U.S. Anti-Terrorism Act, American citizens may bring suit in federal court for damages sustained as a result of acts of international terror. The Post notes that in this case, “it is unclear whether the plaintiffs can ever collect.”

“Amid the exploding use of smartphones, social media, and other technologies,” CIA Director John Brennan intends to expand and reorganize the agency’s cyber-espionage operations and capabilities. The Post describes in more detail.

New America, Arizona State University, and Defense One have partnered to launch a new series on 21st century warfare. The project, entitled “The Future of War,” will feature reporting and analysis on “the new trends, technologies, and forces shaping war.” Defense One shares the project’s first post.

Following their Oscar win for Citizenfour, Laura Poitras, Glenn Greenwald, and Edward Snowden yesterday held an Ask Me Anything discussion on Reddit, during which they took questions and comments from users. See their conversation here.

ICYMI: Yesterday, on Lawfare

Tim Edgar questioned the notion that Europeans care more about privacy-related issues than Americans do.

Cody shared a statement from Chief Prosecutor Mark Martins in advance of this week’s Al Nashiri motions hearings.

Sebastian Brady compiled video footage from last week’s White House Summit on Countering Violent Extremism.

Jane Chong considered the power that journalists wield through their discretion over publishing information provided by leakers and whistleblowers (such as Edward Snowden).

Mira Rapp-Hooper analyzed China’s development of the Spratly Islands and international law.

Ben and Cody brought us the real story behind Citizenfour’s Oscar victory.

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.

Making Progress on the Encryption Debate

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Tuesday, February 24, 2015 at 1:24 PM

In a recent debate between NSA director Mike Rogers and Yahoo Chief Information Security Officer Alex Stamos, the topic of law-enforcement restricted access to encrypted communications once again came up.

To summarize the debate as it has been expressed to date, one side believes in encryption that only the user can decrypt. Those on this side of the debate (call it Side A) include large technology companies such as Apple, Yahoo, Google, and Microsoft and also privacy advocates such as the ACLU and EFF. Those on the other side of the debate (call it Side B) acknowledge the value of strong encryption to protect confidential information, but want to be able to decrypt to the underlying information without the user’s knowledge or consent when they are legally authorized for such access. Those on Side B include the FBI and the Justice Department.

Side B proposes a technological solution to the problem—a mechanism to decrypt the information that can be accessed by law enforcement authorities and no one else—this is often known as a NOBUS solution, where “nobody but us” (NOBUS) can gain access. (According to the report of the debate referenced above—the NSA believes in the technological feasibility of a NOBUS solution.)

Side A argues that it’s already hard enough to build secure systems and that introducing a NOBUS solution will inevitably make the system vulnerable to unauthorized access to the decrypting mechanism. That is, they argue that technological impossibility of having access that is limited only to law enforcement authorities, and thus that NOBUS is not an appropriate feature (or bug, depending on how you see it) to introduce into any encryption system.

The debate—now 20 years old (think Clipper chip)—is entirely polarized, because there is no common ground in the middle. But when I unpack the claims on both sides, I find a real conceptual mess. No one taking Side A can provide a proof that the NOBUS mechanism will eventually become available to unauthorized parties. No one taking Side B can provide a proof that it is possible to build a tamperproof mechanism for NOBUS access. And so the argument continues to rage, as a clash of absolutes.

But the real technological issue is one of time scale. It is probably true that NOBUS access can’t be kept secure forever. But it doesn’t need to be kept forever. If a way to break NOBUS access takes 1000 years to develop, then it doesn’t matter. If NOBUS access lasts for 1 minute, then it’s clearly not workable. So somewhere between 1000 years and 1 minute, there’s a threshold (a fuzzy threshold with big error bars, to be sure) where the idea of NOBUS making sense technically changes over to not making sense.

Viewed in these terms, it seems to be a problem of risk management, namely “For any given NOBUS mechanism, how might one estimate the period that it might plausibly remain secure, and what are the error bars around that estimate?” If we had such numbers, we might be able to make reasonable decisions about whether a given NOBUS mechanism might be technologically feasible or not.

Taking this approach has the virtue of separating the values issue from the technical issue. Some (maybe many) on Side A are opposed in principle to the idea of any access to encrypted communications that are not authorized by the user. Others may favor Side A primarily because they do not believe that NOBUS is a viable technical approach, but would go along with Side B if it were.

[Note added after initial post.] I should also point out that NOBUS access does not necessarily presume that the holders of the encrypted data will have the ability to decrypt it. Thus, the tech companies will not themselves be able to decrypt data if and when other countries demand access.]

So I would propose that the debate move forward in the following way. Side B proponents should propose a specific NOBUS mechanism, much as they once did in the 1990s with the Clipper chip. And they should present an analysis that says why the mean time to compromise is closer to 1000 years than to one minute. Once that proposal is in hand for public scrutiny, Side A should show why the mean time to compromise is closer to one minute than to 1000 years. The analyses of Sides A and B can thus be compared. If it turns out that A’s analysis is more plausible than B’s, we can refrain from considering that mechanism further. If it turns out that B’s analysis is more plausible than A’s, then we can have an argument that is centered on the values proposition and not obscured by a technical smokescreen.

From my perspective, this would be progress.

Live: Benjamin Wittes and Michael O’Hanlon Take Questions on AUMF

By
Tuesday, February 24, 2015 at 10:30 AM

At the top of the hour, Brookings Senior Fellows Benjamin Wittes and Michael O’Hanlon will host a live webcast to discuss the president’s newly proposed Authorization for the Use of Military Force against the Islamic State in Iraq and the Levant, the legal issues involved, and the security stakes in the region. Ben and Michael will also take questions from the online audience.

Follow the live webcast here. Or, you can watch below:

Spreecast is the social video platform that connects people.

Check out Brookings experts on AUMF against ISIS on Spreecast.

Expanding on the International vs. U.S. Surveillance Law Comparisons

By
Tuesday, February 24, 2015 at 10:00 AM

Following my post from last week  regarding how the debate over the Snowden disclosures has blurred the distinctions between national security surveillance authorities and consumer privacy law, Tim Edgar pointed out yesterday  that U.S. law is probably one of the most, if not the most, protective legal structures concerning government access to data for national security purposes than any other nation. Tim’s post invites additional analysis of international surveillance laws versus U.S. laws.

Some time ago, I had looked more in-depth at a few of the reports and comparisons Tim highlights. Here is some of what I found, followed by a cursory summary of certain aspects of the oversight implemented under FISA:

Two reviews done after the Snowden disclosures provide some insight into other countries’ national security surveillance laws and practices. In June 2014, global communications provider Vodafone released a law enforcement transparency report that included statistics regarding its compliance with government requests, as well as a legal annex analysing the laws requiring cooperation in 29 different countries.[1] The report covered disclosure for law enforcement and national security purposes, to the extent that the laws of a particular country allowed disclosure. Even for law enforcement requests, many local laws prohibited Vodafone from disclosing any information regarding compliance.[2]

The second report, issued by the Center for Democracy and Technology (CDT) in November 2013, analyzed the laws in 13 countries. Of the 29 countries covered by the Vodafone report and the 13 countries covered by the CDT report, six countries were covered by both reports: Australia, France, Germany, India, Italy and the U.K. To further complicate the analysis, even where recent research has attempted to find clarity, what different countries’ laws state in text, may vary from how the law is actually being implemented.[3]

The Vodafone report’s legal annex summarizing the laws in the 29 countries reveals that, with possible[4] limited exceptions, all of the countries assessed authorize surveillance for national security purposes based on ministerial, or what would be comparable to our executive branch, authority. For example, with respect to several of the countries that are more relevant to the current public debate, Australia, France, Germany, India, Netherlands, New Zealand, Turkey and the U.K. all appear to provide for ministerial approval of national security surveillance within their country. Unlike national security surveillance conducted inside the United States, approval by a neutral and detached magistrate is not required in those countries. Notably, German law provides for not only individualized surveillance, but “strategic interception” that appears broad in scope and allows the government to target a particular geographic region, not just an individual, organization or entity. German law also appears to authorize surveillance against a person other than a suspect (referred to as a “third person”) if the person is “reasonably suspected of receiving or forwarding messages intended for, or stemming from, the suspect.”[5]

In some circumstances, the Vodafone legal annex describes the absence of legal authority providing for national security surveillance in a particular country. While it is possible that this absence of law indicates that that country’s government is not permitted, and does not, engage in surveillance for national security purposes, it is also just as possible, if not more likely, that the absence of law indicates that the security or intelligence service has wide latitude to engage in national security or foreign intelligence surveillance. Further, there are some countries that require a provider, such as Vodafone, to provide direct access to their systems enabling the government to conduct surveillance via direct link. Most, but not all, of the countries covered in the Vodafone report, require a court order issued by a judge for surveillance conducted for law enforcement purposes. Read more »

The Tricky Issue of Severing US “Control” Over ICANN

By
Tuesday, February 24, 2015 at 5:30 AM

I have written an essay for Hoover’s The Briefing series entitled The Tricky Issue of Severing US “Control” Over ICANN.  Tomorrow the Senate Commerce, Science, and Transportation committee will have an important hearing on this subject.  The hearing is specifically about the Commerce Department’s planned relinquishment of contractual control over the Internet’s domain name system in favor of ICANN independence over the matter.  The Commerce Department announced its intentions about a year ago.  But Congress late last year “intervened” (as Paul wrote) with a law that banned the Commerce Department from using appropriated funds “to relinquish the responsibility … during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.”  Independent of Congress’s intervention, the transition has not gone well because no one has yet been able to come up with a convincing mechanism to ensure ICANN accountability on Internet naming and numbering once the USG relinquishes its official involvement.  (Paul has written insightfully on this subject, as noted above, and here and here.)

I was originally motivated to write the Hoover essay in response to a long series of essays by Gordon Crovitz, a fierce critic of the transition.  I think Crovitz exaggerates the dangers of authoritarian states taking over the naming and numbering system.  “The worry with an independent ICANN,” I maintain, “is less that it will be overrun by authoritarian states than that it might be captured in more subtle and unpredictable ways by public and private interests that might push it to regulate in any number of directions, perhaps far beyond mere naming and numbering, and not necessarily in ways that promote a well-functioning or open Internet.”  I also think Crovitz exaggerates both the role of the United States in keeping authoritarian states at bay, and the virtues of U.S. control over the system for an open and free Internet:

Crovitz’s insistence that “American oversight protects the engineers and network operators who manage the Internet from political interference” is belied by the one instance when ICANN obviously caved to political pressure — by the United States.   A decade ago ICANN tentatively approved the .xxx top-level domain name in accordance with its policies.  The US government, under pressure from domestic groups and foreign governments, threatened to use its contractual rights to override ICANN’s decision, and the ICANN board buckled.  This is precisely the kind of overbearing government influence that Crovitz worries about from authoritarian states.  Yet the threat came from the United States, not an authoritarian state, and it was more credible than typical governmental rants against ICANN precisely because of the US contract with ICANN that Crovitz thinks is the key to ICANN independence and accountability.

All that said, in the end I came to agree with Crovitz that very serious unanswered questions remain about the transition, and that “[u]ntil an obviously satisfactory solution emerges, Congress … is quite right to leverage whatever uncertain power the United States has over ICANN via contract.”

The Real Story Behind Citizenfour’s Oscar

By and
Monday, February 23, 2015 at 4:21 PM

Like a lot of Lawfare readers, we were pretty surprised by Citizenfour‘s triumph at the Oscars last night. It wasn’t just that there was Glenn Greenwald, foe of all things mainstream, holding—of all things—that picture of establishment respectability, the Oscar. It was, more importantly, the question of who the heck decided to honor this paranoid and self-congratulatory film? At first, we thought the explanation must be the politics of Hollywood. That was before we took a close look at the photo of Greenwald holding the Oscar.

Untitled design

You might not notice it in the elegant zoomed-out photo of Greenwald and filmmaker Laura Poitras (top left). But at the suggestion of an anonymous source who contacted Lawfare through our InSecureDrop communications system, we zoomed in on the Oscar itself (top right) and something odd became visible on the base of the trophy. When we zoomed in more, it looked like there was some kind of a microchip embedded in the base of the Oscar. Or something.

Now who would install some kind of electronic device in an Oscar to put it in the hands of Glenn Greenwald and Laura Poitras? As they say in The Usual Suspects, it has to be “Somebody with power. Somebody who was capable of tracking [them] to L.A.”

It has to be someone who knows how to interfere with supply chains and turn anything into a surveillance device.

You see where we’re going with this.

Of course, we have no actual evidence that the NSA engineered the Citizenfour Oscar in order to put a listening device into the willing hands of its most implacable foes. Making that up will be tomorrow’s project.

Is China Reclaiming the Law of the Sea?

By
Monday, February 23, 2015 at 4:00 PM

The Asia Maritime Transparency Initiative has released a special issue on land reclamation and development activities in the South China Sea. As part of its ongoing effort to promote transparency in maritime Asia, AMTI obtained exclusive, never-before-published, imagery of China’s recent building efforts in the Spratly Islands. The collection of exclusive photographs includes coverage of developments on Mischief Reef, Fiery Cross Reef, Johnson South Reef, Cuarteron Reef, Hughes Reef, and Gaven Reef, all located in the Spratlys. These high resolution photos capture the scale of Beijing’s building activities, much of which have taken place in only the last year. The images also demonstrate that many of the structures that China is building on its new artificial islands appear to be similar, as though it is rolling out a systematic plan across these six land features. In addition to viewing these photos on an interactive map, you can also watch some of these Spratly features transform before your eyes through a “before-and-after” interactive.

Beyond this visuals, AMTI’s current analysis also draws some important connections between China’s development activities and international law. Before examining these, however, it is necessary to start with a bit of history. There are six countries that claim land features in the Spratly Islands. Taiwan was the first to establish a presence there, taking the largest island, Itu Aba, when the Japanese gave it up at the end of World War II. Taiwan has since built a military base and an airstrip on Itu Aba, and this is the only feature in the Spratlys that it holds. Vietnam, the Philippines, and Malaysia also established their presence in the Spratlys between the 1950s and 1970s, and Vietnam holds the most land features. China was the last to arrive in the area, establishing a presence there in 1988 after it used force to eject Vietnamese soldiers from Johnson South Reef. By the time it did so, the other claimants had occupied the islands and rocks in the area, and it was left with 7 reefs or partially submerged features.

In the last year, China has undertaken extensive efforts to transform at least 6 of these 7 reefs into artificial islands. China is not the only Spratly claimant to have engaged in serious construction efforts. Indeed, Taiwan, Malaysia, the Philippines, and Vietnam have all performed significant construction of some sort on the features that they occupy. Moreover, other claimant states have airstrips in the Spratlys, while it is presumed that China will acquire its first this year. China’s South China Sea development activities are, however, unprecedented in their size and scale. This, in turn, raises concerns among other states in the region and the United States about China’s territorial and maritime intentions. Moreover, these efforts have potentially far-reaching implications for international law. Read more »