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On the Legal Reforms that Will, and Will Not, Come from the Fourth Plenum

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Friday, October 24, 2014 at 8:48 AM

The Fourth Plenum of the Chinese Communist Party’s 18th National Congress kicked off two days ago in Beijing. In and of itself, any Fourth Plenum usually deserves attention; the fourth session of a National Congress (there are seven total for each 5-year cohort), historically plays a significant role in “directing party governance.” Beyond that, though, this year’s plenum is especially noteworthy because, for the first time, its central theme is devoted to the country’s legal structures, including the Constitution and the courts. More specifically, this year’s topic is the “rule of law” and “ruling the country according to law” (in Mandarin: fazhi 法治 and yifazhiguo 依法治国).

It’s a pertinent topic. It’s not news that China’s legal and law enforcement structures have been in tumult as of late. There is no better microcosm of this instability than the demise of Zhou Yongkang. Before his fall in 2013 amid allegations of corruption and abuse of power, Zhou was a member of the 17th Politburo Standing Committee, the highest decision-making body in the country, and the head of the Central Political and Legislative Committee, the body that oversees all of the country’s legal organs and law enforcement agencies. He has the dubious honor of being the most powerful official in China ever to be investigated for corruption.

The same anti-corruption drive that gobbled up Zhou and his family was instigated by President Xi Jinping in a stated attempt to improve the country’s rule of law and lessen popular opprobrium over widespread profligacy by Party officials. In announcing the drive, Xi warned that neither “tigers” nor “flies” would be immune to the decrees, a promise borne out by the investigation of more than 40 Party bigwigs, including Zhou. Its implementation has been a bit draconian, but observers hoping for more liberal reforms were mollified in part by several speeches Xi gave stressing the importance of rule of law and the Constitution. One speech in 2012, in particular, raised hopes of a drift towards constitutionalism by mentioning the possibility of “ruling the country according to the constitution” (in Mandarin: yixianzhiguo 依宪治国).

The legal system has been reformed in the last few years as well; use of the death penalty has been roughly halved and the country has new procedures for deciding on its use; a new Criminal Procedure law was enacted, which provides greater protection for defendants; government transparency has increased; a five-year program has promised increased judicial independence and professionalism; and “re-education through labor” has been abolished. In some select parts of the country, court bureaucracy has been simplified and judges are allowed to make judgements without approval from the chief justice of the court.  Read more »

Al Qaeda Has Set its Sights on Xinjiang—and China Isn’t Happy About It

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Thursday, October 23, 2014 at 9:02 PM

If you don’t follow the jihadi social media scene, you may not know that the first issue of Al Qaeda’s online English-language magazine, Resurgence, has just hit webstands across the terrorist world. Fortunately for you, we at Lawfare have been perusing this issue ourselves. The magazine, which was released by Al Qaeda’s sub-group, As Sahab Media, is notable for a host of reasons. For now, one part worth highlighting is a little section halfway through the volume entitled, “Ten Things You Didn’t Know About East Turkestan,” screenshots of which can be found here and here.

“East Turkestan,” in Al Qaeda-speak, refers to a region of the world roughly corresponding to China’s vast, unstable hinterland region of Xinjiang. The “Ten Things” outlined in the piece are mainly a list of grievances against China’s oppression of the Muslim Uighur population there and the area’s unique and ancient Islamic heritage. It doesn’t take a terrorism expert to understand the meaning here: Al Qaeda believes Chinese control of the region is not just a historical anomaly, but also an unjust seizure of the Ummah’s land, land that should be reincorporated into the movement’s intended Islamic Caliphate. The mention of Xinjiang/East Turkestan in the magazine points to the growing salience of the region for global jihadist groups and the increasingly-violent homespun insurgency taking place there.

This shoutout was not lost on Chinese media outlets: two mentions of it on prominent Chinese websites are linked here and here. The first of these, DW News, discusses Al Qaeda (in Mandarin: jidizuzhi 基地组织), the piece’s intention, and the inclusion of Xinjiang in a future global Islamic state on a map allegedly released weeks ago by ISIS. It also notes that China is most worried about Al Qaeda’s call to believers to disrupt shipping in the Strait of Hormuz and the Straits of Malacca, both of which are vital trade routes for the world and for China. The second piece in the South China Morning Post claims that there are several factual inaccuracies in the Al Qaeda piece, including the militant group’s assertion that teaching the Qur’an is forbidden in China (it notes that Islam is one of five big religions China officially authorizes).

In any case, the first issue of Resurgence is the latest manifestation of a broadening of global jihad’s purview, which now definitively includes territories under the control of the PRC. PRC officials have responded forcefully to recent insurrection in Xinjiang by mobilizing increased numbers of troops, imprisoning Uighur leaders, executing scores of alleged terrorists, and imposing restrictions on Islamic groups in the area. China has also sought more international cooperation in order to mitigate its growing domestic terrorist threats, most recently by its moves to establish collaborative mechanisms on counterterrorism with the European Union.

President Obama Is Right

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Thursday, October 23, 2014 at 5:18 PM

President Obama is right.

He was right when he said, as a presidential candidate in 2007, that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And he was right that “military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

He is thus right now to “welcome congressional support for [his] effort” against ISIS.

At the same time, Obama is also right that he has “the authority to address the threat from ISIL” without congressional involvement and that he “does not need a new authorization in order to continue to take action against ISIL.”

Because President Obama, after all, is right that he “may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”

He is also right, I should add, that Congress should get rid of that authority, the authority—that is, on which he is currently rightly relying.

President Obama, after all, is right that “this war, like all wars, must end” and he is thus right also to seek to engage “Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” He is certainly right not to “sign laws designed to expand this mandate further”—despite also being right to welcome congressional involvement in authorizing the ISIL operation, authorization he is, of course, right to insist he does not need.

President Obama is also right that the 2002 Iraq AUMF authorizes the current campaign against ISIS.  He is also right to urge repeal of that resolution.

President Obama is right to close Guantanamo. He is right that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” He is right that it is outrageous for Congress not to let him. He is right that Congress’s actions could create separation of powers problems and impinge on his constitutional authorities.

He is also right not to say what he would do with all of the detainees at Guantanamo if Congress were to free his hand. And he is right to comply, as he largely has, with Congress’s dictates, about whose constitutionality he is right to complain.

He is certainly right as well to float trial balloons about maybe not complying.

President Obama’s administration is right to dub the new operation in Iraq “Operation Inherent Resolve.”

In memory of Michael Kelly

Russian Bagram Detainee Set for Federal Prosecution in U.S.

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Thursday, October 23, 2014 at 3:45 PM

Or so I gather from this Washington Post piece, which opens thusly:

A Russian captured fighting with insurgents in Afghanistan and held for years at a detention facility near Bagram air base will be flown to the United States to be prosecuted in federal court, according to U.S. officials.

The move marks the first time a foreign combatant captured on the battlefield in Afghanistan and held at Bagram will be transferred to the United States for trial, a decision the Obama administration has weighed for months. With combat operations winding down, the administration’s authority to continue to hold the man was in question, and U.S. officials said Russia had little interest in getting him back.

The detainee, known by the nom de guerre Irek Hamidullan, is suspected of leading several insurgent attacks in 2009 in which U.S. troops were wounded or killed. He was captured that year after being wounded in a firefight.

Today’s Headlines and Commentary

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Thursday, October 23, 2014 at 2:06 PM

In Ottawa yesterday, a gunman “shot and killed a soldier,” Cpl. Nathan Cirillo, before entering Canada’s Parliament building, where Prime Minister Stephen Harper was meeting with MPs. In a firefight that was captured on video and echoed throughout Parliament Hill, police later killed the gunman, 32-year-old Michael Zehaf Bibeau. In addition to shooting the soldier, Bibeau, a recent convert to Islam, provoked widespread panic and a lockdown in the Canadian capital’s governmental heart. Three other people involved in the attack “were treated in the hospital and released by evening.”

In a televised statement after the rampage, Prime Minister Harper described Bibeau as a “terrorist” and promised that Canada would not be “intimidated.” The attack came a day after “another Muslim convert killed a soldier in Quebec,” and almost a month after Canada joined the US-led coalition airstrikes against ISIS. In the New York Times, Shreeya Sinha claims this shooting is just the latest in a “growing list of attacks” in the West linked to “individuals who have professed their affinity for radical Islam or sympathy to militant ideology.” Canadian Muslim groups were quick to “categorically and unequivocally condemn” the attack.

In Jerusalem, a Palestinian resident of the flashpoint Silwan neighborhood plunged his car into a busy light rail station in the city’s center, wounding eight and killing a 3-month-old baby, Chaya Zissel Braun. While attempting to escape on foot, the man, 21-year-old Abdel Rahman al Shaludi, was shot by police, later dying of his wounds. The US, EU and Australia swiftly condemned the attack, especially the death of the infant, a US citizen.

Israeli Prime Minister Benjamin Netanyahu immediately ordered “an increase in police presence across the city” in response to the attack, which is the latest in a series of escalating internecine incidents. This one threatens to further imperil Israeli-Palestinian governmental ties, which have been mired since peace talks broke down between the sides months ago. Since the attack yesterday, Netanyahu has twice accused Palestinian Authority President Mahmoud Abbas of supporting and glorifying terrorism, as well as “embrac[ing]” the “‘organization to which the terrorists belong, Hamas.’” In public statements today, he additionally excoriated the international community for being “‘unwilling to say two words, even one word of criticism of him [Abbas].’” Israeli officials specifically noted the Facebook page of Abbas’ Fatah movement, which posted a picture “celebrating” the actions of “al Shaludi.”

To the south, the Guardian reports that Israeli soldiers were injured “after their vehicle was fired on with an anti-tank missile and small arms from across the Egyptian border.” The perpetrators of the attack, which occurred in Ezuz in the southern Negev desert, remain unclear. However, a spokesman for Egypt’s police force, Maj-Gen Hany Abdellatif, said “there had been a gunfight between smugglers and Egyptian police officers” in the area at around 12:30 PM, an hour and a half before the attack occurred. Egypt has been struggling to tamp down an Islamist insurgency in the Sinai Peninsula’s unstable north, and with the support of Israel, has increased troop movements there in recent months.

In an interview with the Times of Israel, former US envoy to Israel Daniel Kurtzer claimed that there is a “sense of betrayal” in the relationship between President Obama and Prime Minister Netanyahu. Furthermore, he argued that their alleged bad blood negatively impacts the countries’ bilateral ties and that the “entire alliance” could encounter serious problems “if Israel gets too cozy with China.”

According to the Wall Street Journal, militants associated with ISIS “recaptured a critical hill” four kilometers from Kobani on Thursday. With the recapture of Tel Shair, ISIS can now “shell Kobani from the south, east and west.” In an effort to “relieve fellow Kurds under attack,” Iraqi Kurdish lawmakers approved a plan on Wednesday to send peshmerga fighters to Kobani. Reuters reports that this decision marks the semi-autonomous province’s “first military foray into Syria’s war.”

US Central Command released a statement saying that US forces on Tuesday continued attacks on ISIS using “fighter and bomber aircraft to conduct six airstrikes.” The release also noted that “US and partner nation military forces conducted twelve airstrikes” Tuesday and Wednesday “using fighter, bomber, attack and remotely piloted aircraft.”

On the subject of “partner nations,” Foreign Policy summarizes which countries have contributed what in the fight against ISIS, noting that while the US State Department “lists more than 60 countries” as coalition members, “the bar for inclusion is apparently fairly low.”

The Syrian Observatory for Human Rights brings us news that coalition airstrikes conducted in Syria have killed 553 people so far: 464 ISIS fighters, 57 other militants and 32 civilians. The BBC has more.

Hat tip to the Situation Report for this: the University of Pennsylvania Press recently published a book by Noriyuki Katagiri entitled, “Adapting to Win: How Insurgents Fight and Defeat Foreign States in War.” In the book, Katagiri notes that “when insurgent groups challenge powerful states, defeat is not always inevitable,” and examines “the circumstances and tactics” that allow non-state actors to succeed “against foreign governments while others fail.”

The Washington Post reports that “the Syrian opposition force to be recruited by the US military and its coalition partners will be trained to defend territory, rather than to seize it back from the Islamic State.” While some senior coalition officials “are concerned that the approach is flawed,” they “are reluctant to push Syrian fighters into full-scale battles with well-armed militants” without the ability to “summon close air support and medical evacuations.” Some also do not believe the new units “will be capable of capturing key towns” from ISIS without “forward-deployed US combat teams,” which President Obama has nixed.

Yesterday, the Pentagon confirmed that ISIS militants “were able to seize one of the 28 bundles of weapons and medical supplies dropped to Kurdish forces on Monday.” The Associated Press has more.

Finally, evidence of a failed kidnapping plot by ISIS-employed Turkish gang members is raising “new questions about the safety of US troops and other American personnel stationed throughout the country.” The Military Times has more on the “attempted abduction,” which ISIS attempted to orchestrate using a promised payout of “$500,000.”

The BBC reports that NATO jets intercepted a Russian spy plane yesterday over the Baltic Sea, ratcheting up already-fraught tensions in the region. In response to the Ilyushin-20’s entrance into Estonian airspace “for about a minute,” Estonia summoned Russia’s ambassador, which claimed that the “plane had been on a training flight and had not violated” the country’s airspace. In the wake of the conflict in eastern Ukraine, “Russia has been accused of several recent border violations in the region,” including a submarine sighting in Swedish waters “in the southern Stockholm archipelago some 48 kilometers from the capital.”

In the wake of Russian moves in eastern Europe, which have triggered unease among Moscow’s Baltic neighbors, the BBC writes that hundreds of soldiers have taken part in a huge NATO exercise in Latvia, “Exercise Silver Arrow.” Additionally, the BBC’s Steve Rosenberg reports on the upcoming Ukrainian elections.

In the Balkan Peninsula, the outgoing Defense Minister of Bulgaria, Velizar Shalamanov, warned that Bulgaria’s over-reliance on Soviet-era equipment is leading it towards a “catastrophe.” Tensions between NATO member Bulgaria and Russia have increased as of late, especially since Bulgarian President Rosen Plevneliev described Russia as “‘a nationalist and aggressive state’” due to its interference in Ukraine. The traditionally strong relations between the countries also soured when, in response to Shalamanov’s suggestion that Bulgaria might buy F-16s from Italy or Greece or Eurofighters from Portugal, Russian Deputy Prime Minister Dmitry Rogozin tweeted that the Bulgarian government had decided to “once again betray Russia…in favor of second-hand eagles.” The BBC has more on the continued sparring between the two neighbors.

In the far northern Laptev Sea, Foxtrot Alpha reports that Russia moved to annex a tiny, yet strategic, Arctic island yesterday. The annexation of Yaya Island, which is only 500 square meters in size and was discovered this year, comes on the back of statements by Russia that it will “reactivate Cold War bases in the region and deploy some 6,000 military personnel along the length of its arctic frontier.” The Arctic Ocean has been the site of rapid increases in commercial and military buildups recently, with multiple states looking to capitalize on its potent energy resources potential and strategic waterways.

At the Brookings Institution, Katharine H.S. Moon, Senior Fellow at the Center for East Asia Policy Studies, wonders whether the release by North Korea of US citizen Jeffrey Fowle augurs a “friendlier diplomacy” from the Hermit Kingdom. But don’t take that to mean all is well. The Independent writes that the reason you haven’t seen six North Korean minister-level officials for weeks is because they have probably been purged. Also from DPRK, Reuters reports that the government of Kim Jong-un has decided to bar foreign tourists until further notice over “Ebola concerns.” Finally, AP features an exclusive photo essay through the isolated country.

The Military Times reports that next week, the US Army Stryker brigade will begin exercises in Japan as part of bilateral training operations. “About 1,300 Japanese troops from the 11th Infantry Regiment, 7th Armor Division, Northern Army, will join 850 US soldiers” in the operation, which will also feature “AH-64 Apaches, UH-60 Black Hawks and three HH-60 Pave Hawks.”

Reuters writes that Chinese defense minister Chang Wanquan “told the visiting head of the Iranian navy on Thursday” that his country wants to have “closer military ties with Iran.”

According to the New York Times, the Taliban are once again rising in Afghanistan’s north. The militant group’s gains in Kunduz province come “just two months” before the end of the 13-year US-led “international combat mission.”

In Pakistan, the Sunni militant group Lashkar-e-Jhangvi are suspected of killing at least eight men and wounding two others in a gun attack on a bus in southwestern Pakistan. “The victims were ethnic Hazara, a Persian-speaking Shiite Muslim minority group that has been repeatedly targeted by Sunni extremists in recent years.” The New York Times has more.

The Guardian reports that the rise of ISIS is weakening the Pakistani Taliban, primarily because it is splitting its leadership’s allegiances.

Elsewhere in Pakistan, the BBC writes that supporters of leading anti-government cleric Tahirul Qadri “are ending a two-month sit-in in Islamabad after failing to force PM Nawaz Sharif to resign.” Qadri claimed that his party would be exporting the protest “to other cities instead.”

The BBC also reports that in Nigeria, militant Islamic group Boko Haram abducted dozens more girls. The women were taken from “two villages in Nigeria’s north-eastern Adamawa state” and join the “more than 200 girls” captured by the group in April.

Yesterday, a three-judge panel of the D.C. Circuit heard another round of arguments in the long-running case of Ali Hamza Ahmad al Bahlul v. United States, wherein the court cast doubt on the legality of the US’s efforts to prosecute terrorism suspects by military commissions for offenses that are not recognized as international war crimes. The Wall Street Journal has more on the case, while Wells Bennett offers his impressions for Lawfare, suggesting that Ex Parte Quirin may play a strong role in the court’s final decision.

Another 9/11 suspect, according to Vice News, is now invoking this summer’s Supreme Court decision in Hobby Lobby to challenge a new policy at Guantanamo that allows female guards to escort detainees to meetings. He suggests that as a devout Muslim, the policy violates his religious rights.

Yesterday, a jury in Federal District Court convicted four former Blackwater security guards for their roles in the deaths of 17 people in a deadly 2007 shooting in Baghdad’s Nisour Square. One defendant, who fired the first shots, was convicted of murder; three others were convicted of voluntary manslaughter and using a machine gun to carry out a violent crime. According to the New York Times, a fifth man had previously pleaded guilty. The machine-gun charges carry a mandatory minimum sentencing of 30 years in prison.

Courthouse News brings us an update on the ongoing U.S. Embassy bombing trial of Khalid al Fawwaz, in which a federal judge has allowed a three-month delay for defense lawyers to gather more evidence that they hope will exonerate al Fawwaz. Under the new timeline, the trial will begin on January 12, 2015.

Top Talker: “why he was engaged in commodities trades, including trades in one market that experts describe as being run by an opaque ‘cartel’ that can befuddle even experienced professionals, remains unclear.” This comes from Shane Harris’s Foreign Policy story on the unusual investment portfolio that former NSA chief General Keith Alexander maintained while head of the United State’s biggest intelligence-gathering network.

The Wall Street Journal reports that the FBI is revamping its whistleblower rules in ways that aim to make it easier, and potentially financially lucrative, to bring forward suspected cases of misconduct. The new reforms will expand the list of officials eligible to receive complaints, while also providing compensation if allegations are accurate.

Finally, a new study from Chapman University on just about everything that terrifies Americans found that more Americans fear spying by corporations than surveillance by the government.

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.

Steptoe Cyberlaw Podcast, Episode #39: An Interview with Tom Finan

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Thursday, October 23, 2014 at 11:51 AM

Our guest today is Tom Finan, Senior Cybersecurity Strategist and Counsel at DHS’s National Protection and Programs Directorate (NPPD), where he is currently working on policy issues related to cybersecurity insurance and cybersecurity legislation.  Marc Frey asks him why DHS, specifically NPPD, is interested in cybersecurity insurance, what trends they are seeing in this space for carriers and other stakeholders, and what is next for their role in this space.  He is incredibly forthcoming in his responses and even asks listeners to email him  with their feedback.

This week in NSA: The House and Senate Judiciary chairs call for action on USA Freedom Act.  And nobody cares.  We conclude that the likelihood of action before the election is zero, and the likelihood of action in a lame duck is close to zero.  But next week we’ll be interviewing Bob Litt, one of the prime negotiators for the intelligence community on this issue, and he may have a different view.

The Great Cable Unbundling seems finally upon us, as several content providers announce that they’re willing to sell content direct to consumers over the Internet.  Does that mean more support for net neutrality?  Not necessarily.  Stephanie Roy explains.

Are parents responsible for what their adolescent kids do and say on Facebook?  That makes sense, if you’ve never had adolescent kids.  Maybe that explains why Michael Vatis sees merit in the Georgia appellate court decision finding potential liability.  It reversed the trial court, which had granted summary judgment in favor of the parents of a kid who set up a fake and defamatory Facebook page in the name of a classmate he hated.  The facts are a little odd.  The kid who set up the page never took it down, even after he’d been caught and punished by school and parents.  The appeals court thought that the parents had a “supervisory” obligation to make their child delete the fake account, and that they could be held liable for negligently failing to do so.  It’s quite possible, though, that everyone in this case is a Privacy Victim; the issue could have been hashed out with a phone call from the parents of the victim to the parents of the perpetrator, but according to the press, “the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit.”  Because privacy.

FBI Director Comey comes out swinging for CALEA reform, saying in a speech at Brookings that the law needs to be updated to require cooperation from makers of new communications systems when the FBI has a court order granting access to those systems.

When it comes to regulating on other topics, though, the Justice Department is a little less restrained; it has opened the door to a round of new disability claims against websites, offering a roadmap to what it thinks the law requires.

The right to be forgotten is attracting more flak in Europe, as the BBC announces a competing “right to remember” website devoted to publicizing stories that Google has delinked.  It’s Auntie BBC v. Nanny Europe.  Cue popcorn.  Unhappily, a “progressive” group most famous for relentlessly sliming Google on privacy issues has urged the search engine to bring the right to be forgotten  to the United States.  Sigh.

In breach news, TD Bank pays $850,000 to the state AGs over a “breach” that may never have happened.  TD lost a backup tape in transit, and the data wasn’t encrypted.  Was anyone’s data actually compromised by the loss of the tape?  The AGs don’t say.  They just want their money.  And they get it.

The Russians are getting sloppy, or maybe they’re taking a leaf from China’s book – figuring it doesn’t matter if they get caught. And caught they have been, by iSight Partners, which reports that Russian hackers used a Microsoft zero-day to target Western governments and Ukraine.  Meanwhile, the FBI is warning about another and even more sophisticated set of Chinese government hackers.  And hackers are now adding a new form of targeted attack to their arsenal a tactic that combines spearphishing with watering hole attacks.  They’re targeting ads at users that take them to a compromised website that serves malware.

And, in good news for privacy skeptics, the Video Privacy Protection Act gets a narrow reading.

We remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email ([email protected]) or voicemail ( +1 202 862 5785).

Evidence of Absence: A Brief Reply to Peter Margulies on the al Bahlul Argument

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Thursday, October 23, 2014 at 9:55 AM

In light of both our prior exchange and my Just Security post from yesterday, I only have two new points to make in response to Peter Margulies’ post on yesterday’s D.C. Circuit oral argument in al Bahlul v. United States, which raises the question whether military commissions may constitutionally try offenses that are not recognized as international war crimes. As I explain, both of these issues arose during yesterday’s argument–and in both cases, Peter’s post offers no explanation for why he reads the colloquies in which they arose so differently than I do.

  1. First, and right off the bat, Peter fundamentally mischaracterizes what the en banc Court of Appeals actually held in its July decision–in his words, “that the Ex Post Facto Clause did not bar the conviction for inchoate conspiracy of Ali Hamza al Bahlul, a former bin Laden aide whose acts the D.C. Circuit found ‘directly relate’ to the 9/11 attacks.” John DePue, arguing for the government, attempted a similar reading of the en banc court’s decision at one point during yesterday’s argument, only to be rebuffed by Judge David Tatel, who was quick to emphasize that such a holding came in the highly deferential context of “plain error” review, and was thus of no relevance to the question now before the court–whether, under de novo review, the Constitution permits law-of-war military commissions to try offenses not recognized as international war crimes. Indeed, the narrowness of the en banc court’s decision only raised the stakes of yesterday’s argument, rather than providing a roadmap for how the Article I and Article III issues should now be resolved.
  2. Second, and more significantly, Peter argues that Ex parte Quirin, fairly read, supports military jurisdiction over both international war crimes and  “those domestic law charges related to armed conflict that international law permits states to try in commissions.” Whether or not Quirin specifically holds as much (I’m more than a little skeptical–and so was Judge Tatel, who spent a fair amount of time yesterday literally quoting Quirin back to DePue), I actually do agree with Peter that this latter argument is an analytically better way to understand the Supreme Court’s military commission jurisprudence–not Quirin so much as cases like Madsen v. Kinsella. Indeed, that’s the central prescriptive thesis of my forthcoming article, “Military Courts and Article III.” The problem for Peter (and the government)–and the reason why I suspect we didn’t hear more of this argument yesterday–is that, even under this broader reading of military jurisdiction, it’s of no help to the government in al Bahlul. And that’s because there’s no evidence in foreign and international practice of any norm–let alone a strong one–supporting military trials for inchoate conspiracy offenses. Don’t take my word for it, though–toward the end of the government’s presentation yesterday, Judge Judith Rogers specifically pressed John DePue on this exact point, asking him to provide any evidentiary support for the proposition that there is an international law norm supporting inchoate conspiracy trials in military commissions. Tellingly, DePue demurred.

Whether Article III does–or should–sweep more broadly than Quirin‘s text expressly allows, to include offenses that are not international war crimes but over which international law and practice does support the assertion of military jurisdiction–is an interesting question, and one on which reasonable minds can (and will) surely differ. But I have a hard time seeing how it’s a distinction worth a difference in al Bahlul–and suspect at least two of the panel’s three judges will, as well.

The Al Bahlul Argument: Article III, Conspiracy, and Precepts of International Law

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Thursday, October 23, 2014 at 9:33 AM

Some may wish that Ex Parte Quirin, the Supreme Court’s case upholding the military commission convictions of Nazi saboteurs would recede into history.  However, as Steve has noted, the oral argument in the D.C. Circuit Wednesday in Al Bahlul v. United States suggested that Quirin is very much alive.

The D.C. Circuit decided in an en banc decision in July that the Ex Post Facto Clause did not bar the conviction for inchoate conspiracy of Ali Hamza al Bahlul, a former bin Laden aide whose acts the D.C. Circuit found “directly relate” to the 9/11 attacks.  Wednesday’s argument centered on whether commission jurisdiction over al Bahlul’s case violated Article III of the Constitution.  In typically thoughtful questioning, Judge David Tatel asked whether military commission jurisdiction in al Bahlul’s case was consistent with “strong dicta” in Quirin that ties commission jurisdiction to the “rules and precepts of the law of nations” (p. 28).  The best answer is that this passage and others in Quirin, when read in context, favor the government’s view that charges that are “cognizable” in commissions (again quoting Quirin) include two categories of charges: 1) those expressly authorized by international law (such as the murder of civilians), and, 2) those domestic law charges related to armed conflict that international law permits states to try in commissions.  Read more »

Oral Argument in Al Bahlul: Judge Tatel and Quirin Dicta

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Wednesday, October 22, 2014 at 7:24 PM

Much could be said about this morning’s argument, before a three-judge panel of the D.C. Circuit, in the long-running military commission case of Ali Hamza Ahmad al Bahlul v. United States. In this little read-out, I’ll make this lone observation (one I see Steve also mentioned too, over at Just Security): with his questions to both parties today, Judge David Tatel demonstrated keen sensitivity to a key precedent, Ex Parte Quirin.

Tatel pressed both appellant and appellee hard on precisely what the Supreme Court’s famed Nazi saboteurs opinion had held, as opposed to what it merely said—and what that distinction might mean for resolution of a critical issue left unresolved by the D.C. Circuit’s July en banc opinion in Al Bahlul: whether the jurisdiction of a Guantanamo military commission constitutionally may include only international offenses, or both international as well as domestic ones.

The detainee’s attorney Michel Paradis unsurprisingly took the former position, arguing that under Quirin, “law of war” commission jurisdiction simply does not extend to conspiracy, a concededly domestic law offense. Consistent with that view, when asked by the court, Paradis claimed Quirin had held that the “law of war,” so far as military commissions are concerned, consists of the international law of war—full stop. Tatel wasn’t having that. Quirin, the judge said, pointedly declined to explore the outer limits of commission jurisdiction; indeed it “held” (in the words of the opinion itself) “only” that the sabotage specification against the captured Nazis “constitute[d] an offense against the law of war which the Constitution authorizes to be tried by military commission.” That didn’t sound like a holding one way or the other on the (in)validity of domestic law offenses in the law of war commission setting. To be sure, Judge Tatel also pointed out that the Quirin opinion is littered with talk to the effect that the law of war is, in fact, entirely international. Nevertheless, having not actually held that domestic offenses can never be brought in a military commission, consistent with the Constitution, Quirin did not actually resolve the question now presented by Al Bahlul’s case. Or, at least, it did not do so in a fashion directly binding so many years later, on the D.C. Circuit.   Read more »

DNI Releases Update on PPD-28 Implementation

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Wednesday, October 22, 2014 at 6:57 PM

On Friday, the Director of National Intelligence (DNI) released an update on the implementation of Presidential Policy Directive/PPD-28, regarding signals intelligence activities. Issued on January 17 by President Obama, PPD-28 “directs intelligence agencies to review and update their policies and processes … to safeguard personal information collected through signals intelligence.”  (In January, Ben unpacked both the directive and President Obama’s speech regarding it.)

Among other things, PPD-28 required the DNI to work with both the Justice Department and the broader Intelligence Community to release an interim report regarding the status of the directive’s implementation. According to a summary released by the DNI, the newly released interim document outlines “principles for agencies to incorporate in their policies and procedures[,]” including some that reach beyond minimums set by PPD-28.  The principles include:

  • Ensuring that privacy and civil liberties are integral considerations in signals intelligence activities.
  • Limiting the use of signals intelligence collected in bulk to the specific approved purposes set forth in PPD-28.
  • Ensuring that analytic practices and standards appropriately require that queries of collected signals intelligence information are duly authorized and focused.
  • Ensuring that retention and dissemination standards for United States person information under Executive Order 12333 are also applied, where feasible, to all personal information in signals intelligence, regardless of nationality.
  • Clarifying that the Intelligence Community will not retain or disseminate information as “foreign intelligence” solely because the information relates to a foreign person.
  • Developing procedures to ensure that unevaluated signals intelligence is not retained for more than five years, unless the DNI determines after careful evaluation of appropriate civil liberties and privacy concerns, that continued retention is in the national security interests of the United States.
  • Reinforcing and strengthening internal handling of privacy and civil liberties complaints.
  • Reviewing training to ensure that the workforce understands the responsibility to protect personal information, regardless of nationality. Successful completion of this training must be a prerequisite for accessing personal information in unevaluated signals intelligence.
  • Developing oversight and compliance programs to ensure adherence to PPD-28 and agency procedures, which could include auditing and periodic reviews by appropriate oversight and compliance officials of the practices for protecting personal information contained in signals intelligence and the agencies’ compliance with those procedures.
  • Publicly releasing, to the extent consistent with classification requirements, the procedures developed pursuant to PPD-28.

The Intelligence Community is tasked with implementing PPD-28 by January 2015.

North Korean Ambassador to the UN Talks at CFR

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Wednesday, October 22, 2014 at 3:56 PM

In case you need a macabre laugh. Transcript is available here if you can’t stand watching Jang Il Hun compare human rights in his country favorably to those in South Korea.

Today’s Headlines and Commentary

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Wednesday, October 22, 2014 at 1:43 PM

The Washington Post shares breaking news of multiple shooting incidents in Ottawa, Canada. “Dozens of gunshots were heard inside Canada’s Parliament… shortly after a soldier was reported shot at the nearby National War Memorial.” CNN has details of the unfolding situation. One shooter is apparently dead.

Pentagon spokesperson Rear Adm. John Kirby announced yesterday that U.S. campaign against the Islamic State has cost $424 million so far. The Associated Press has more.

On Monday and Tuesday, the U.S. military conducted four airstrikes in Syria against the Islamic State. The U.S. was joined by an international coalition in three additional attacks on targets in Iraq. Reuters details the strikes.

McClatchy informs us that a pallet of weapons dropped by the U.S. to aid Kurdish fighters in the Syrian border town of Kobani may have instead been captured by the Islamic State. A Youtube video released by the militant group depicts “fighters pulling hand grenades, rocket-propelled grenades and other arms from a crate.” Defense spokesperson Rear Adm. John Kirby admitted yesterday that the arms shown in the video “certainly are the kinds of munitions dropped.”

The Wall Street Journal reports that, because of the symbolic importance of Kobani, the U.S. has been working secretly with Kurdish forces battling the Islamic State. The level of American involvement in the fight over the border town signals that “the U.S. [has] crossed a Rubicon that could herald a more hands-on role in other towns and cities under siege by Islamic State.”

Defense News shares that in a speech yesterday, Iraq’s new defense minister, Khaled al-Obaidi promised to investigate the military’s mistakes, failings, and corruption that enabled the Islamic State to overtake swathes of territory in the northern part of the country.

The U.S. and Iraqi militaries are developing a strategy for Iraqi ground troops to retake towns and cities lost to the Islamic State. The Post brings us details of the plan so far.

Reuters examines the vulnerabilities of Iraq’s Anbar province. According to Faleh Issawi, a member of the Anbar provincial council, “Eighty percent of the province is under the control of IS and the remaining 20 percent is under control of some security forces and tribal fighters.”

The New York Times profiles David S. Cohen, the Treasury Department’s Under Secretary for Terrorism and Financial Intelligence, who is working to choke off funding for the Islamic State.

The AP reports that Syrian President Bashar al-Assad has taken advantage of the international coalition against the Islamic State by focusing his resources and efforts on combating more moderate rebel groups.

In Germany, the Federal Bureau of Investigation (FBI) intercepted three teenage girls from Colorado who were on their way to join the Islamic State. According to the Times, one of the girls had “become inspired” by Islamic State militants and then convinced the other two to come with her. A spokesperson for the FBI announced yesterday that the three are “safe and reunited with their parents.”

Congresswoman Carolyn Maloney (D-NY) has called for legislation, which would deny welfare benefits to Americans who have joined the Islamic State. The Hill shares her statements.

Yesterday, the Afghan defense ministry released statistics on casualties among its military and police forces over the past year. The Wall Street Journal informs us that 2014 has been the “deadliest for Afghan troops since the war began 13 years ago.”

As nuclear negotiations with Iran continue, some U.S. lawmakers have called for a bigger congressional role in the process. According to Foreign Policy, “at issue is the administration’s plan to temporarily suspend economic sanctions against the Islamic Republic without a vote in Congress.”

A spokesperson for the Ukrainian military affirmed yesterday that Ukraine has never used cluster bombs in its fight with pro-Russian rebels, despite reports to the contrary by Human Rights Watch. The Los Angeles Times shares details.

The U.S. and South Korea are revising plans that would give Seoul control of the two countries’ military forces “in the event of war on the Korean peninsula.” According to Stars and Stripes, the two nations are working to outline “goals for Seoul’s military capabilities before a transfer can be made.” U.S. Secretary of Defense Chuck Hagel and South Korean Defense Minister Han Min-koo meet Thursday to discuss.

In November, the U.S. and Japanese militaries will conduct joint exercises, aimed at ensuring interoperability and strengthening “island defense capabilities.” Reuters has details.

According to BBC News, U.S. Secretary of State John Kerry has chosen former Democratic presidential nominee Senator Gary Hart (D-CO) to serve as the U.S. Special Envoy for Northern Ireland.

Reuters reports that the National Security Agency (NSA)’s Chief Technical Officer Patrick Dowd will end his part-time work for IronNet, the private cybersecurity company started by former NSA Director General Keith Alexander, amidst a conflict of interest review by the agency.

In War on the Rocks, Ben FitzGerald, director of the Technology and National Security Program at the Center for a New American Security, examines the U.S. military’s technology strategy.

Chairman of the Joint Chiefs of Staff General Martin Dempsey posted a video to Youtube yesterday, addressing concerns regarding the deployment of U.S. troops to combat the Ebola outbreak in western Africa. Navy Times has more.

The Centers for Disease Control and Prevention has announced a new program to screen and monitor passengers traveling to the United States from western Africa. USA Today has details.

Breaking Defense shares an interview with Air Force General Mike Hostage, the head of Air Combat Command.

The Post describes disputes between former Defense Secretary and Central Intelligence Agency (CIA) Director Leon Panetta and the CIA’s Publications Review Board regarding redactions from the former Director’s recently published memoir, Worthy Fights. Apparently, Panetta “allowed his publisher to begin editing and making copies of the book before he had received final approval from the CIA.”

Breaking Defense explains how biometric technology may spell the end of the covert spy.

Reuters also informs us that the Department of Justice “is restructuring its national security prosecution team to deal with cyber attacks and the threat of sensitive technology ending up in the wrong hands.” Spearheading the changes is Assistant Attorney General John Carlin, who has recruited a number of experienced prosecutors to join his team.

In Real Clear Defense, Mackenzie Eaglen and Charles Morrison of the American Enterprise Institute explain how cyber espionage by Chinese nationals “is eroding U.S. military superiority.”

Senator Dan Coats (R-IN), a member of the Senate Select Committee on Intelligence, shares an opinion in USA Today, criticizing the USA Freedom Act and explaining the merits of the Intel Committee’s FISA Improvements Act.

Yesterday, before a federal district court in New York, Haroon Aswat, a British citizen extradited to the U.S., pleaded not guilty to terrorism charges. Aswat is accused of attempting “to set up a jihadist training camp in Oregon in 1999.” Reuters has details.

Today, a jury in Washington convicted four Blackwater Worldwide guards for killing 14 Iraqis and wounding 17 others during “a botched security operation” in Baghdad in September 2007. The Post describes the case.

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.

Charging Snowden With…Murder? Really?

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Wednesday, October 22, 2014 at 12:57 PM

Offered without (or only a little) further comment: this piece from The Hilland a rather eyebrow-raising quotation therein from House Intelligence Committee Chairman Mike Rogers regarding Edward Snowden:

The former government contractor who leaked details about secret programs of the National Security Agency (NSA) and its British counterpart is a “traitor,” Chairman Mike Rogers (R-Mich.) told members of Parliament in the British House of Commons on Tuesday, according to reports.

“We are treating him, as I would argue, [like] the traitor that he is,” Rogers added. “And by the way—and this is important—I would charge him for murder.”

So far the Justice Department has not charged Snowden with murder, or even hinted in that direction. Pursuing a murder count would raise the stakes significantly, both for the United States and, naturally, Snowden himself. It’s also totally unclear what basis, if any, Rogers may have for suggesting this. Who exactly is Snowden supposed to have killed, when, and where? If Rogers has any grounds—factual or legal—for this rather dramatic statement, he should make them clear.

Government Files Response in Allaithi v. Rumsfeld

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Wednesday, October 22, 2014 at 12:48 PM

The government has filed its response to six Guantanamo detainees’ August 25, 2014 petition for en banc rehearing in Allaithi v. Rumsfeld. The detainees argued that (1) the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014) established that they were entitled to freedom from substantial burdens on their religious practices as “persons” under the Religious Freedom and Restoration Act (RFRA, and (2) the panel incorrectly relied on Rasul I to find that the detainees’ treatment fell within defendants’ scope of employment, as Rasul I applies only to enemy combatants.

The government spends most of its 15-page brief arguing that the panel corrected affirmed the dismissal of the detainees’ RFRA claims, as Guantanamo detainees do not constitute “persons” under the statute even after Hobby Lobby, and defendants are entitled to qualified immunity. Addressing the detainees’ two more minor arguments in brief, the government contends that (1) the panel correctly determined that the defendants were acting within the scope of their employment, such that the United States properly substituted itself for the defendants under the Westfall Act, and that (2) the detainees forfeited any challenge to the dismissal of the “John Doe” defendants by failing to raise the claim in their appellate briefs or at oral argument.

Defendants in United States v. Muhtorov Move to Compel Notice of Surveillance Techniques

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Wednesday, October 22, 2014 at 11:23 AM

As Orin Kerr has already noted on this site, the Department of Justice policy offers very little “notice” to criminal defendants of the surveillance techniques used to obtain evidence.  The defendants in United States v. Muhtorov, charged with providing material support to foreign terrorist organizations, filed a motion Monday asking the District Court for the District of Colorado to compel the government to disclose the specific techniques used to obtain the evidence against them.

In essence, the defendants argue that the lack of notice of the specific techniques precludes them from arguing for suppression of evidence as “fruit of the poisonous tree,” thus violating their due process rights.  The motion speculates—and that’s all it can do, absent notice—that the government relied in its investigation on surveillance under E.O. 12,333, the domestic call records program challenged in Klayman v. Obama, the internet metadata reportedly discontinued in 2011, and other secret intelligence collection programs.  Instead of providing notice of these techniques, the motion alleges, the government engaged in “evidence laundering” and parallel construction to obscure the original, potentially illegal, sources of evidence.

The motion notes that the government apparently does not believe it is required to disclose its techniques, perhaps on the basis that collection of metadata does not constitute a search.  But, defendants argue, the government “cannot preempt the right to seek suppression by withholding notice based on its own conclusion that its methods are lawful.”

The defendants also attack the government’s keeping secret its interpretation of when evidence is “derived from” such surveillance.  If the government’s definition of “derived from” is impermissibly narrow, then it can withhold notice on its own judgment and prevent the defendants, and the court, from ever testing both the underlying surveillance techniques and the determination that evidence was not in fact “derived from” those techniques.  The motion further argues that the government cannot hide behind the veil of national security to avoid notice.  The defendants point to United States v. U.S. Dist. Court (Keith), where the Supreme Court ordered disclosure of the wiretap records even though the government had threatened to abandon the prosecution if the Court ordered the disclosure.  Finally, defendants assert a broad statutory right to notice of surveillance techniques under 18 U.S.C. § 3504, and a specific right to notice of the use of the internet-metadata program under FISA.

Audio of Last Week’s ODNI Conference at the University of Texas

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Wednesday, October 22, 2014 at 6:56 AM

I am happy to report that we now have the audio from last week’s conference at the University of Texas exploring the lessons learned from the past ten years’ experience under the ODNI and NCTC.  The event was sponsored by UT’s Robert Strauss Center for International Security and Law, which I direct, as well as UT’s Clements Center for History, Strategy & Statecraft (directed by Will Inboden) and the Intelligence and National Security Alliance. The full agenda, with corresponding audio for each session, appears below.  For those who prefer to watch rather than listen, we hope to have the videos posted by the end of the week.

THURSDAY, OCTOBER 16

Moderated Dialogue with Admiral William McRaven (ret.)

Keynote Address: “Ten Years of Intelligence Integration and Reform”: James Clapper, Director of National Intelligence

FRIDAY, OCTOBER 17 Read more »

PRB Recommends Repatriation for One Saudi Detainee, Continued Detention for Another

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Tuesday, October 21, 2014 at 2:56 PM

Yesterday the Periodic Review Board recommended the repatriation of Muhammad Murdi Issa al-Zahrani, a Saudi detainee who has been held in Guantanamo for 12 years after being captured in Afghanistan in 2002.

The Board’s short statement concluded that given the “uncorroborated nature” of Zahrani’s association with Al Qaeda, his lack of ties to at-large extremists, and his apparent good behavior while in detention—along with his expressed desire to pursue a peaceful life after Guantanamo—detention was “no longer necessary to protect against a continuing significant threat to the United States.” Instead, the Board wrote, release and reparation to Saudi Arabia was appropriate. The Board also expressed confidence in the Saudi rehabilitation program, and highlighted Zahrani’s intent to participate in that program upon his return to his home country.

(A more detailed profile of Zahrani, which includes the circumstances giving rise to his capture in Afghanistan and his behavior while in detention, was declassified this past April.)

However, the Board also found that continued detention would be necessary in the case of Mohammed al Rahman al Shumrani, another Saudi national. The government had described him in a previously declassified report as “a problematic and unpredictable detainee throughout his incarceration at the Guantanamo Bay detention facility” who had “committed several significant disciplinary infractions and used his authority as a religious leader to encourage other detainees not to cooperate with detention staff.” In that declassified report, from February 2014, the government said that Shumrani had “told interrogators and other detainees he would reengage in extremism if he were released from Guantanamo.”

In it’s brief announcement denying Shumrani’s repatriation, the government reiterated that Shumrani had been engaged in  “problematic and unpredictable behavior” while in detention, and that the “Board had difficulty assessing the detainee’s current mindset due to his decision not to participate in the hearing.” The Board also said that it would review Shumrani’s file in six months, and would welcome participation from any representatives from Saudi Arabia.

Today’s Headlines and Commentary

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Tuesday, October 21, 2014 at 2:04 PM

According to Reuters, the United Kingdom has authorized “spy planes and armed drones to fly surveillance missions over Syria.” London’s statement that it would send Reaper drones and Rivet Joint surveillance aircraft to the embattled Middle Eastern country came soon after Turkey’s announcement on Monday that it would allow “Iraqi Kurdish fighters to reinforce fellow Kurds in the Syrian town of Kobani.” The Wall Street Journal and McClatchy report that the shift by Ankara came in response “to US pressure” and is “a striking reversal for a country that had considered those fighters its enemy.”

Still, all is not settled. The BBC reports that “fierce fighting” has erupted to the north of Kobani “after two days of relative calm,” driving speculation that ISIS is making a strong push to take the city before the arrival of peshmerga reinforcements. The New York Times has more on the rapidly-evolving situation, and the Washington Post provides several satellite photos of the struggle being waged in and around the city. The United States Central Command released a summary of recent military actions in the area, which include six airstrikes that destroyed ISIS fighting and mortar positions, an ISIS vehicle, and a stray resupply bundle, preventing it from falling into militant hands.

Liz Sly of the Washington Post reports on earlier failed tribal revolts against ISIS, including one that left 700 civilians dead. She argues that Western silence over ISIS’s brutal response may obstruct efforts to persuade those living under Islamic State rule “to join the fight against the jihadist group.”

And just for good measure, Syrian rebels claim Bashar al Assad’s forces are still using chemical weapons to kill civilians. FT has more. Read more »

Some Implications of President Obama’s Plans to Sidestep Congress on Iranian Sanctions

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Tuesday, October 21, 2014 at 9:28 AM

David Sanger recently reported that the Executive branch thinks it can suspend “the vast majority” of congressional sanctions unilaterally if it reaches a deal with Iran to forestall that nation’s nuclear weapons program.  “President Obama will do everything in his power to avoid letting Congress vote on” the matter, Sanger tells us.  “We wouldn’t seek congressional legislation in any comprehensive agreement for years,” says one senior official.

There are many different statutory sanctions against Iran, and Congress’s most recent word – from 2012 – tightens and narrows the President’s authority to waive the sanctions.  Without getting into the details, it nonetheless appears that the President can waive most if not all sanctions against Iran for the remaining two years of his term if he is willing to make the requisite findings.  If he does so, what are the implications for any nuclear deal with Iran?  Answer: The deal will be tenuous.

The fact that the President does not think he can get Congress on board for any deal with Iran signals to Iran that any deal would be with the President alone, and would last only as long as his waiver authority – i.e. two more years.  The deal could last longer, as it did with the last major unilateral presidential deal with Iran, the 1981 Algiers Accords that effectuated the release of the hostages.  In the transition between the Carter and Reagan administrations in January 1981 some in Congress and the press questioned whether President Reagan should honor the deal that Carter struck with Iran through Algerian intermediaries.  President Reagan did honor it, of course, and the courts upheld his and Carter’s actions.  But the situation with Iran today is different than 1981.  Among other differences, (1) Congress appears more skeptical of this deal-to-be than it did of the deal in 1981, (2) President Reagan and Congress faced powerful financial incentives to stand by the deal struck by President Carter (namely, the ability of American firms to recover property expropriated by Iran) that are not present in the current negotiation, and (3) Congress’s consent is probably necessary to make any deal now with Iran work over the medium term in a way that it was not necessary to make the deal work in 1981.

The bottom line, then, is that any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous.  And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.

Here we can see the underappreciated benefits that accrue when the President succeeds in winning congressional approval for a foreign policy deal (whether it is a treaty, a congressional-executive agreement, or something short of those things).  To win such approval the President must expend political capital and convince the American people and its representatives about the value of the deal.  The expenditure of presidential capital signals the importance of the deal to the President.  If he succeeds in winning approval from Congress, that approval credibly conveys that the nation, as opposed to a particular president, is behind the deal.  The negotiating partner thus receives meaningful information about the depth of the United States’(as opposed to the President’s) commitment, which makes possible (but does not guarantee) a deeper and more meaningful commitment by the negotiating partner.  Vladimir Putin understood this when he rejected President Bush’s handshake deal on nuclear weapons reduction and insisted instead on ratification of what became the Treaty of Moscow, which significantly cut U.S. and American nuclear weapons arsenals.

Of course, winning legislative approval for initiatives such as these is hard and sometimes impossible – which is precisely why such approval sends such strong signals about the nature and degree of the nation’s commitment.  President Obama believes, certainly correctly, that Congress is simply not going to cooperate on this issue right now.  (Sanger’s article will likely make Congress even more ornery on this topic.)  So if he wants a deal with Iran (which he clearly does), Obama must strike the deal on his own.  The President’s team might think that a short-term and tenuous deal with Iran – with the implication that Iran’s commitment to the deal will be tenuous as well – is better than no deal at all.  And it likely further thinks that the deal will prove its worth over two years, and might persuade the next President and Congress that it is worth continuing.  (Count me as doubtful on this last point.)

A final point.  Sanger notes that, just as Iran must assess the domestic support in the United States for any deal the President strikes, the United States similarly must assess whether the Iranian negotiator, Mohammad Javad Zarif, can sell his deal to the Iranian Revolutionary Guard and many of the mullahs.  Both sides are playing two-level games, and each is trying to understand how the domestic game by the adversary informs what is achievable in the international negotiation.  And surely there is much bluffing and posturing going on in each of these three negotiations (Obama-Congress, Obama-Zarif, Zarif-Revolutionary Guard).  Even with these complications, I still believe that Obama’s plan to sidestep Congress suggests that the United States’ commitment to any deal with Iran would be fragile, and that Iran will understand this, and shape its commitment to the deal (and its future plans for nuclear weapons development) accordingly.

Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

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Monday, October 20, 2014 at 4:11 PM

U.N. Special Rapporteur Ben Emmerson’s report on “mass surveillance” may signal increasing conflict between the US and world bodies on surveillance issues.  The Emmerson report makes sweeping normative claims but fails to ground those claims in an accurate description of the US surveillance program.  The report claims, for example, that a state must impose the same restrictions on surveillance of foreign nationals overseas that it imposes on surveillance of its own citizens within sovereign territory.  Universal state practice clashes with this claim.  Furthermore, no tribunal, domestic, regional, or international, has ever embraced such a sweeping limitation.  Emmerson’s document makes a valuable point on the need for independent checks on surveillance, but its casual legal analysis and cavalier posture on facts undermine its value.

The first problem with the Emmerson piece is its failure to include widely available factual descriptions of US surveillance that rebut the report’s findings.  Take the excellent U.S. Privacy and Civil Liberties Oversight Board (PCLOB) report on § 702 of the Foreign Intelligence Surveillance Act, which governs U.S. surveillance overseas.  The Special Rapporteur suggests that US surveillance abroad, such as surveillance authorized by § 702, constitutes illegal “mass surveillance.”  However, the Emmerson report does not incorporate the PCLOB’s extensive discussion (at pp. 32-36), of the nuanced nature of § 702 surveillance.

While Special Rapporteur Emmerson suggests that the US indiscriminately collects communications off the Internet’s backbone, the United States’ approach is far more tailored.  The text and structure of § 702 require targeted surveillance, not indiscriminate collection.  Surveillance methods have to be approved by the Foreign Intelligence Surveillance Court (FISC); persons targeted include those working with international terrorists, such as ISIS, international nuclear weapons dealers, and individuals evading sanctions that the US and global bodies have imposed on terrorists. (Section 702 also permits targeting that serves the “foreign affairs” of the US, a less concrete category.  Congress should consider refining this category, as I say in a forthcoming Hastings Law Journal paper on § 702, although the largest use of this category may be targeting of foreign governments and firms that engage in anti-competitive practices.)   Read more »