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Today’s Headlines and Commentary

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Monday, January 5, 2015 at 11:01 AM

A U.S. drone strike killed between six and nine suspected militants in northwest Pakistan yesterday. Reuters has the story.

The Daily Beast reveals, after obtaining an internal U.S. Air Force service memo, that the military does not have enough manpower to operate its drone fleet and fulfill the demands of the Pentagon. Calls for the number of “drone orbits” have increased dramatically in recent months because of the offensive against ISIS—but there simply aren’t enough drone operators to carry out the missions.

But perhaps we shouldn’t despair just yet: NPR explains that ISIS’ power in Iraq is beginning to wane.

Apropos of the region: Four men assaulted a Saudi guard patrol near the Saudi Arabian border with Iraq.  At least three have been killed, and three more wounded, according to the New York times. 

Afghan president Ashraf Ghani said in an interview that aired yesterday that President Obama should reconsider his deadline for U.S. troop withdrawal from Afghanistan. The Hill covers Mr. Ghani’s remarks.

On Friday, the United States announced that it would be imposing new sanctions on North Korea following the cyber attack on Sony Pictures. The sanctions, explains the Post, target ten North Korean and three government agencies and are expected to “complicate North Korean business dealings.” The Times reports, unsurprisingly, that North Korea has strongly denounced the U.S. for its recent actions.

Nazih Abdul-Hamed al-Ruqai, a Libyan suspected of being an operative for Al Qaeda died in government custody on Friday night, reports the New York Times. He died as a result of medical complications associated with liver failure. Al-Ruqai’s trial was scheduled to begin in the Southern District of New York a week from today.

The Times tells us that after September 11, 2001, the FBI implemented an internal surveillance program that monitored hundreds of its employees with international ties. Some FBI agents have complained that the program is discriminatory, precluding them from advancing within the agency because they would no longer receive certain top-secret information.

The Times profiles Megan J. Smith, the current Chief Technology Officer of the United States, and covers the difficulties Ms. Smith faces when dealing with the federal government’s somewhat outdated technology.

Over at Forbes, Jay Johnson predicts that there will be more data breaches in 2015 than in 2014.

As Cody mentioned Friday, jury selection in the trial of suspected Boston marathon bomber Dzhokhar Tsarnaev will begin today. The Post tells us that the jury selection process alone is expected to last weeks, if not months.

Tomorrow, the Republicans take control of Congress. The Times lays out the potential implications that the switch of leadership in the Senate may have on far-reaching policies, including national security issues.

An opinion piece over at Al Jazeera echoes Harry Truman’s call in the 1960s to severely limit the powers of the CIA, even to dismantle it if necessary.

For those of you who are fans of the hit TV show, “The Americans,” it turns out that the CIA is also an intent viewer. Uproxx notes that the CIA keeps a close eye on the show to make sure that the show’s creator, Joe Weisberg, who once worked for the CIA, isn’t spilling any state secrets.

And in more entertaining news from the CIA, RT reveals that the intelligence agency admitted, via Twitter, that the majority of reported UFO sightings in the 20th century were actually due to “secret, high-altitude reconnaissance flights” organized by the CIA.

ICYMI: This Weekend, on Lawfare

David Dollar penned this week’s Foreign Policy Essay, addressing American concerns over China’s growing economy, and wondering if it will really dominate the 21st Century.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us onTwitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Palestine and the ICC: An (Imagined) View from Inside the Court

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Monday, January 5, 2015 at 10:00 AM

There has been considerable speculation about how the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) might react to the State of Palestine’s move to join the ICC. Some have suggested that the OTP will jump at the chance to do a case outside of Africa. Others believe that the Prosecutor will move more cautiously. Since I worked as the Investigations Coordinator and then Prosecution Coordinator in the OTP for nearly three years, I will offer my insights into how I think the OTP might proceed in this case.

First, I have to imagine that the OTP is a little surprised by the vehement reactions to the Palestinians’ move to join the ICC. The Court already has 122 States Parties, including many close allies of the United States. The Court embodies principles that have been embraced by the U.S., even if at times unevenly, throughout its history (before Nuremberg, at Nuremberg, and since Nuremberg). Although the U.S. initially took a very hostile stance towards the ICC, at the end of the Bush administration and throughout the Obama administration it has engaged constructively with the Court and has allowed two situations (Sudan and Libya) to be referred to the ICC and has voted to refer a third situation, Syria, as well. There have been no serious accusations that the ICC has pursued political or frivolous cases, as some feared when the Rome Statute was adopted. Further, as many have pointed out, the move by the Palestinians is double-edged: by joining the Court and extending jurisdiction retroactively to the war in Gaza, the Palestinians are accepting that the Court may investigate and prosecute individuals on the Palestinian side for war crimes or crimes against humanity. Kevin Jon Heller has even suggested that the ICC might start by prosecuting members of Hamas. For all of these reasons, I am sure that people within the ICC are wondering why the Palestinian decision to join is not being celebrated rather than denounced.

whitingThere is also likely surprise within the OTP because in the months leading up to the Palestinian move, the OTP suffered some setbacks in its cases, including the collapse of the Kenyatta case and the Prosecutor’s announcement that she is suspending further investigation in Sudan because of the lack of any action by the UN to enforce the Court’s arrest warrants. These events caused some to question whether the ICC as an institution can be effective or relevant, particularly when it comes to prosecuting senior state officials. The Washington Post even declared the ICC to be on “shaky ground.” In light of these assessments, one might have expected that Israel and its allies would greet the Palestinian embrace of the ICC with a shrug. But the strong reactions to the Palestinian move to join the Court show something else: that the ICC still matters. A lot. Although the ICC can prosecute only a small number of cases and so far it has had mixed results, states seem to care enormously about the potential reputational and diplomatic consequences if they become the subject of an ICC investigation. As Mark Kersten has explained, the same concerns caused North Korea (a country that often thumbs its nose at the international community) to unleash a diplomatic offensive to dissuade the Security Council from referring North Korean crimes to the ICC. Read more »

The Palestinian Authority’s Lose-Lose-Lose Move on ICC

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Monday, January 5, 2015 at 7:00 AM

Just before the end of the year, the Palestinian Authority took steps to become party to the Rome Statute and thereby join the International Criminal Court (ICC). This is a lose-lose-lose move: it is bad for Israel, bad for the Palestinian Authority, and bad for the ICC.

Perhaps because the Palestinian Authority believes that Israel has the most to lose, in the sad zero-sum logic of Palestinian strategy this seems to the Palestinian leadership and its public like a positive step. For months the Palestinian Authority has been threatening to join the ICC, thereby exposing Israeli officials to investigation and prosecution for war crimes committed in Palestinian (or disputed Palestinian) territory. Despite stern warnings from U.S. Secretary of State Kerry, the Palestinian leadership finally appears to be making good on that threat, following the defeat in the UN Security Council of a draft resolution that would have imposed a tight deadline on Palestinian statehood based on 1967 borders.

Israel, along with the United States, has always regarded Palestinian accession to the ICC as a game-changing escalatory step. Israel already faces intense international pressure over alleged war crimes committed in its summer war against the terrorist organization Hamas in Gaza (ostensibly part of single set of Palestinian territories, even though rival Hamas continues to wrest control from the Palestinian Authority in Gaza). The consistently biased scrutiny directed against Israeli military operations in UN bodies has led to deep distrust among Israeli and American leaders about how Israel would be treated by the ICC. Israeli officials are especially concerned that the ICC might declare controversial Israeli settlement activities in the West Bank to be war crimes, not only exposing Israeli leaders to criminal prosecution but also undermining Israel’s position in any negotiations over a two-state solution to the Palestinian conflict.

It’s true that the Palestinian Authority leadership would itself be exposed to war crimes charges in the ICC, too. But investigations and prosecutions on both sides would hurt Israel – and Hamas – more. Again, in a mindset in which gains are measured in terms of relative losses, this may seem like a win.

If those effects are part of a Palestinian strategy to build international pressure on Israel, they come at a steep price to the Palestinian Authority and its people. Joining the ICC and any subsequent moves to bring claims in it against Israel will result in U.S. aid cutoffs to a cash-starved Palestinian Authority and to its further economic squeezing by Israel. The fact that the Palestinian Authority leadership pulled this trigger shows how desperate they are, essentially giving up any remaining confidence in American peace efforts and hope of negotiated settlement in the foreseeable future. Joining the ICC may produce a quick domestic political boost for embattled Palestinian President Mahmoud Abbas, but it will further ruin the Palestinian economy and empower political forces in Israel most opposed to compromises on Palestinian ambitions.

The Palestinian move to join the ICC is also very bad for the ICC. That Court, which faces major resource and management challenges, is already reeling from the collapse of its case against the Kenyan President and from lack of support among states to enforce its arrest warrants against Sudanese leaders. Palestinian membership will make the United States more hesitant to support the ICC generally, and may push the United States back to actively undermining it. More significantly, it thrusts the ICC into the fiery politics of the world’s most intractable diplomatic problem. There is nothing the ICC can do that will not bring upon itself tremendous criticism, from one side or the other: pursuing cases against Israel will end any U.S. support for the Court and produce another tense situation in which the court’s authority is powerfully resisted, while declining cases will lead to charges that the court is feckless.

Beyond short-term factional politics on both the Palestinian and Israeli sides, the effect of which is to drive them farther apart in seeking long-term solutions, there are no winners in this move.

The Week that Will Be

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Monday, January 5, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Welcome to the first full week of 2015!

Monday, January 5th at 10 am: A divided government in Washington and an unstable global order have roadblocked the Obama administration’s proposed “rebalance” to Asia. On Monday, the Center for Strategic and International Studies will launch its bipartisan recommendations to push past the headwinds and create a path forward on security, trade, and diplomacy in the Asia-Pacific called “Asia Pivot 2.0.” The launch will include a long list of distinguished panelists. For full details or to register, visit the CSIS event announcement.

Tuesday, January 6th at 9:30 am: Transnational criminal networks have grown increasingly sophisticated with the potential to converge with terrorist organizations, resulting in a rapidly evolving border environment. Join CSIS for a discussion of “Holding the Line in the 21st Century,” a collection of articles by the Border Patrol that offer an in-depth examination of the ongoing evolution and the risk-based strategy now used to target illicit networks. US Customs and Border Protection Chief Michael Fisher and Assistant Chief Robert Schroeder will speak. Register here.

Thursday, January 8th at 2 pm: The Brookings Institution will host a discussion of What Americans Think About the Fight Against ISIS. A new poll by Brookings Nonresident Senior Fellow Shibley Telhami dives below the simple “approve/disapprove” numbers to offer a sophisticated picture of how the American public views the campaign against the Islamic State and the broader conflict in Syria and Iraq. Shibley Telhami, E.J. Dionne, Jr., and Susan Glasser will discuss the poll’s findings. Tamara Cofman Wittes will offer introductory remarks and moderate the conversation. RSVP here. Read more »

The Foreign Policy Essay: Will China’s Economy Dominate the 21st Century?

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Sunday, January 4, 2015 at 10:00 AM

Editor’s Note: China’s huge population and spectacular economic growth since the 1980s at first gave rise to fears, and now a sense of inevitability, that China will surpass the United States in the 21st century. Beyond the loss of U.S. dominance, China remains authoritarian, making the prospect of its rise worrisome. David Dollar, my colleague at Brookings, challenges this gloomy consensus, pointing out that China’s authoritarianism might stop it from moving to the next economic level. 

***

In the first decade of this century, China’s economy grew from one-eighth the size of the U.S. economy to more than one-half. China’s economy is clearly slowing down from the torrid 10% growth rate of that decade. Its target for 2015 is likely to be 7% growth. Even at that lower rate, China will surpass the United States as the largest economy in about a decade and by the middle of the century will be twice as large. However, there is nothing inevitable about these developments. History is full of examples of countries that have grown very well for a period, only to have their growth rates slow sharply or even fall to zero.

Dollar photo with borderThere are any number of reasons why China’s growth may falter. After years of dependence on exports and investment for growth, the country is now trying to carry out a difficult set of structural reforms in order to transform the economy to rely more on consumption for demand and on innovation for production. It also faces challenges of environmental degradation that will be expensive to clean up. And its demographic challenges are unique, as its labor force has already peaked and its population will shrink after 2030. But one of the most intriguing potential constraints on growth concerns political institutions.

In their book Why Nations Fail, Daron Acemoglu and James A. Robinson make a compelling case that authoritarian countries can grow well for a while, but that democratic political institutions are necessary to spur the kind of innovation that takes societies to high income:

Our research on national economies throughout world history shows that long-term economic growth, while indeed based on technological innovation, only sustains itself in the presence of democratic political institutions that provide people with incentives to innovate. China may continue to grow in the near term, but the limited rights it affords its citizens places major restrictions on the country’s longer-term possibilities for prosperity.

The country still lacks an independent judiciary and an independent media. Entrepreneurs have been jailed for dubious reasons — not coincidentally when they went against businesses with stronger political backing. Many key economic decisions are still made by party elites who can change the CEOs of its largest companies on a whim.

There will be limits on how much innovation such a system can generate, even if China keeps growing this decade. For all its changes, China still has what we term “extractive” political institutions, those that direct resources away from the people and toward the state and a small number of its elites…By their nature, extractive states are against the kind of innovation that leads to widespread prosperity: this kind of change threatens the hold on political and economic power that elites in such states fight to maintain. Read more »

The Holiday Fortnight that Was: All of Lawfare in One Post

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Saturday, January 3, 2015 at 10:00 AM

As news broke of the cyberattack on Sony, Jack wrote of just how befuddled the US government seemed to be about how to respond. After years of thinking on cyberwar and perhaps thousands of roundtables, the government still seemed in disarray. Later, Jack offered a modest defense of the government’s legal and policy confusion regarding the Sony attack given the multitude of problems in attribution. Two days later, Paul Rosenzweig tipped us off to the possible US government response, as the entirety of the North Korean internet went down.

But then, news came that maybe it wasn’t North Korea that launched the attack on Sony, after all. Paul delved into some of the alternative theories and the attribution problems in cyberspace, concluding that in a post-Snowden era, the United States can’t say “just trust us.” In light of this news, Jack highlighted the consequences of the building doubts about the FBI’s attribution in the Sony hack, concluding that in many ways “the United States has lost a battle in the early days of cyber conflict.”

Even so, the movie believed to have initiated this latest round of cyber drama—“The Interview”—was eventually released online and in limited theaters. Jane Chong and Paul both provided reviews of the movie that has risen from fake to real importance.

Did you miss Ben’s recent exchange with Edward Snowden at the Cato Institute’s surveillance conference? If so, don’t fret. Ben shared a recap of the exchange, as well as a response to a few arguments advanced by Snowden.

Ben also broke news that NSA hoodies, just like the gear in the gift shop at the CIA, is made in, of all places, Pakistan. It seems American intelligence agencies are committed to engaging with local businesses in the communities where they work.

Jodie Liu alerted us to a massive document declassification by the NSA featuring a set of redacted reports detailing “intelligence activities . . . that [it has] reason to believe may be unlawful or contrary to Executive order or Presidential directive.” These reports have been submitted to the President’s Intelligence Oversight Board (IOB) pursuant to Executive Order 12333.

To mark Christmas Day, Paul shared a rendition of John McCutcheon’s “Christmas in the Trenches,” which recalls the impromptu 1914 WWI Christmas truce.

Over the holidays, Ben visited Israel, where the “competing understandings, claims, narratives, and mutual senses of injury” prompted a proposal on issues of sovereignty, the Antarctic Treaty, the Talmud, and the status of Jerusalem.

In light of the newly announced thaw in US-Cuba relations, Chris Jenks reviewed the case of Joanne Chesimard and outlined exactly why she is unlikely to ever be extradited to the United States.

Wells shared the news Cliff Sloan’s resignation. Sloan has been the State Department’s envoy in charge of negotiation detainee transfers from Guantanamo Bay. Echoing news from Carol Rosenberg of the Miami Herald, Wells also alerted us to the transfer of five more men from Guantanamo bay who are to be resettled in Kazakhstan.

Wells brought us the news that DC District Judge Richard Roberts would not halt the Al Nashiri military commission at Guantanamo Bay. Following the decision, Steve Vladeck identified two basic problems with Judge Roberts’s refusal to enjoin Al Nashiri’s impending trial. Later, Wells also provided the reply brief issued from Al Nashiri’s attorneys.

This week, Ben offered the third installment of his thoughts on the SSCI Study on the CIA’s Enhanced Interrogation Techniques, reviewing the Committee’s findings on the program’s effectiveness.

Earlier this month, the Justice Department issued revised guidance for Federal Law Enforcement Agencies on racial profiling. Faiza Patel shared a few thoughts on the revised guidance, concluding that for all its new criteria, it simply recreates the same old loopholes.

Mira Rapp-Hooper outlined what we can expect in “the year to come in Asia’s seas.”

Paul delivered a satirical post on “safety at the turn of the last century,” highlighting the absurdity of some strands of thought in the anti-domestic drone campaign.

Paul also tipped us off to a “no hope” lawsuit against Edward Snowden and Laura Poitras.

For episode #104 of the Lawfare Podcast, we shared an address by Under Secretary of State for Arms Control and International Security Rose Gottemoeller on the Obama administration’s approach to arms control in its final two years.

In other podcast news, Wells linked us to a Federalist Society International Law and National Security Law Practice Group show featuring Bret Stephens on his new book, “America in Retreat: The New Isolationism and the Coming Global Disorder.”

Finally, in a New Year’s message, Ben provided an overview of Lawfare’s plans for 2015, including a new website, new content streams, and live events. Stay tuned!

And that was the holiday fortnight that was.

Today’s Headlines and Commentary

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Friday, January 2, 2015 at 2:13 PM

The Palestinian mission to the United Nations delivered documents needed in order to join the Rome Statute of the International Criminal Court and more than a dozen other international treaties. The Palestinians will become party to the court on the first day of the month that follows a 60-day waiting period after handing over the signed and ratified documents to the United Nations. Reuters has more.

Writing in Reuters, Noah Browning characterizes the move as Palestinian Mahmoud Abbas’s most serious confrontation with Israel yet. The accession follows other steps to seek the “trappings of statehood” without waiting for negotiations with Israel to progress. Israeli Prime Minister Benjamin Netanyahu called for the ICC to reject the move, calling it a “duplicitous application because the Palestinian Authority is not a state” and is “allied with a terror organization, Hamas.”

In the New York Times, Jodi Rudoren notes that the cases the PA plans to bring to the ICC are unlike any the court has ever tackled in its twelve-year history, as the issues are very much in the public eye and the politics are complex to say the least. Aside from the political dimensions, there are also difficult legal questions associated with the potential cases: according to a law professor cited in Rudoren’s piece, cases in front of the ICC have involved the systematic murder or rape of tens of thousands, not incidental deaths from attacks on enemy targets. As to whether or not the settlements amount to war crimes, the ICC would have to wade into determining the border between the two countries, something it is unlikely to do.

More than 76,000 people were killed in Syria’s civil war in 2014, according to the British-based Syrian Observatory for Human Rights. That number includes 3501 children, and makes 2014 the deadliest year so far in the war that began in 2011. The United Nations says that about 200,000 people have died in the conflict so far.

Reuters reports that the United States and its partners continue to hit the Islamic State inside both Iraq and Syria, launching 29 airstrikes on Wednesday alone. However, NPR discloses that for its part, Jordan has suspended bombing in Syria as it works to secure the safe return of First Lieutenant Moaz al Kasasbeh, a Jordanian fighter pilot who was captured by ISIS after his plane went down near Raqqa.

For the US military advisers in Iraq, war is edging ever closer. More than 300 US troops are currently posted in Iraq’s western Anbar province, where Iraqi forces, tribal militants, and ISIS fighters are currently in the middle of a heated battle. According to the Washington Post, militants have hit the base repeatedly with artillery and rocket fire in recent weeks. And, while those attacks have proven ineffective, the US has had to launch 13 airstrikes to protect the facility since mid-December.

Finally, al Nusra has released a video of two Italian hostages, both young women, who are in their custody. The Daily Beast carries the story on the ongoing efforts by the Italian government to get them out.

Deutsche Welle reports that 2014 was also the deadliest year on record for Afghan civilians, with more than 3,180 civilians killed and more than 6,430 injured. That news comes as Afghan authorities pledged to investigate the deaths of at least 20 civilians who were killed during a mortar attack on a wedding in Helmand province. As many as 50 people were injured by at least three mortar rounds fired from an Afghan National Army outpost.

The Associated Press carries an account of the Afghan army’s early proving ground in the mountains of Kunar province near the border with Pakistan, where for three-weeks they have held back wave after wave of Taliban attacks.

From one dangerous border to another: India and Pakistan exchanged deadly fire in the restive Kashmir region on Wednesday, reports Voice of America. Both sides have blamed the other, as Islamabad accused India of ambushing and killing two border security officers who they claim were invited for a routine meeting in Kashmir by their Indian counterparts. India accused Pakistan of causing the incident, saying that Pakistani troops killed an Indian soldier earlier in the day.

Quartz reports that India has blocked 31 popular internet sites for carrying “anti-India” content from ISIS. You can see the full list provided by Quartz.

As oil prices hit a five-year low, Iran’s deputy foreign minister criticized Saudi Arabia’s inaction, calling it a strategic mistake and suggesting the oil-rich kingdom should take steps to reverse the freefall in the price of crude oil. Falling oil prices are squeezing Tehran’s finances even further, with Iran needed oil to trade near $140 per barrel to balance its budgets.

According to Reuters, the Ukrainian military suffered its first death of 2015 this morning. A spokesman for the military said that a soldier had been killed and five others wounded in an attack by pro-Russian rebels. More than 4,700 people were killed in the conflict in 2014. In Bloomberg, Josh Rogin provides an inside view of Obama’s “secret” outreach to Russia. And while very little about the report is truly secret, it is a window into the approach the Obama administration is taking – one which attempts to separate the issue of Crimea from the ongoing war in eastern Ukraine.

In a surprise move, North Korean leader Kim Jong-Un made an apparent offer yesterday during his new-year speech to hold a summit with his South Korean counterpart. Even so, the Wall Street Journal notes that Mr. Kim gave no indication that he would rein in his belligerence toward Seoul.

A federal judge has denied requests by Boston Marathon bombing suspect, Dzhokhar Tsarnaev, to delay his trial by nine months and to move it to another city. Although there will likely be an appeal, jury selection is set to begin on Monday. Tsarnaev denies detonating the bombs that killed three people and injured 260 more in Boston in 2013.

Parting Shot: In Foreign Policy, David Rothkopf shares his top foreign policy story of 2014 and a little on all the others that may have made us miss its importance.

ICYMI: Yesterday, On Lawfare

In a New Year’s message, Ben provided an overview of Lawfare’s plans for 2015, including a new website, new content streams, and live events. Stay tuned!

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.

 

Al-Nashiri’s Reply on the Appointments Clause

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Friday, January 2, 2015 at 11:11 AM

In December, attorneys for the Guantanamo detainee filed their reply brief in the United States Court of Appeals for the D.C. Circuit.  (The pleading is dated December 15, but a cleared version was not approved for public release until New Year’s Eve, evidently.) The issue, as readers know, is whether two judges of the Court of Military Commission Review, who were assigned to hear a government appeal in Al-Nashiri’s criminal case, were appointed in violation of the Constitution.

From the reply:

One of the principal reforms Congress made in the Military Commissions Act of 2009, Pub. L. No. 111-84 (2009) (“2009 Act”), was the re-establishment of the Court of Military Commission Review (“CMCR”) as a proper court. To ensure that the CMCR was capable of deciding the most controversial national security cases to come before any American court in decades, Congress ensured that its judges were independent from Executive Branch influence and control. Congress, however, also carried over a provision from the Military Commissions Act of 2006, Pub. L. No. 109-366 (2006) (“2006 Act”), that authorized the Secretary of Defense to assign military officers to serve on the CMCR ad hoc. But Congress only did so on the mistaken belief that it could give these officers, once so assigned, the same independence from Executive influence that the other judges on the CMCR enjoy.

This Court should issue a writ of mandamus to disqualify Lieutenant Colonels Weber and Ward pursuant to its statutory jurisdiction over the CMCR. Because military officers cannot be made independent from their civilian chain-of-command, their service on the CMCR is incompatible with how Congress intended that court to function. And even if Congress can make mid-level military officers into Executive Branch officials, it cannot do so by granting the Secretary of Defense the unilateral authority to elevate these necessarily inferior officers to the principal office of federal appellate judge.

Oral argument is set for February 10.

A New Year’s Message: Plans for 2015

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Thursday, January 1, 2015 at 10:25 AM

First off, happy New Year to all our readers.

The year 2014 was a great one for Lawfare–with continued growth in readership, and development of new content streams. I honestly did not believe we would eclipse Lawfare‘s performance in 2013 this past year. But we did. We had 1.2 million visits in 2014, up 11 percent from 2013. These came from nearly 700,000 readers worldwide, more than half of whom were new to the site. I’m very grateful to everyone who has spent time on Lawfare this year, who has found it useful, stimulating, enraging, or just plain fun.

We have big plans for the coming year as well, and I wanted to take a moment and share some of them. The common theme here is that Lawfare is evolving from a blog run by three friends and colleagues into a magazine and research tool aimed at, and relied upon, by a professional community. As we realized this was happening, we had to build an organization to support Lawfare. We had to arrange a technical architecture that could withstand cyber attacks from people who don’t like us. And most important and challenging, instead of just writing posts, we had to think in a strategic editorial manner about what this community wants and needs from us.

The goal has been to expand the site with different content areas each aimed at segments of the community that practices national security law. Some of these fields are technical, some are regional. Some simply reflect areas where Lawfare has not historically had a lot to say. So in the coming weeks and months, we’ll be adding new names to our roster of regular writers. That will continue throughout the year as we reach out to people who, we feel, have important contributions—some legal, some not—to the discussion our community is having or needs to have.

In particular, there are a number of specific areas we are going to build out substantively. We have already begun enhancing content related to Asia maritime issues, for example. That will continue. And we have begun as well developing better resources on law and policy in Middle East conflict—where the Palestinians are heading to the International Criminal Court and the Israelis are mired in a fascinating set of targeting disputes with respect to Gaza. This latter area, in particular, is one where the legal resources are rich, and we intend to develop significant new content. We are always expanding our coverage of the technical issues that drive a lot of the legal disputes, particularly in the cyber and surveillance realms.

To support these changes, we are rebuilding and redesigning Lawfare‘s site. The more diverse our content becomes, the less appropriate the blog format—in which everything appears sequentially in a descending vertical format—becomes for it. Some people come to the site for detailed military commissions coverage, some for discussions of surveillance. We need to develop better ways to differentiate our content so people can easily find what they are looking for. The many people who have donated to Lawfare in response to my various pleas over the past few months have helped make this redesign possible—for which we are very grateful. I will have more on these plans as they develop further.

Finally, in response to reader requests, we are going to do some experiments this year with live events. These ideas are still taking shape, and we are very open to suggestions about what readers would enjoy and find useful. But in the coming months, we’ll be dipping our toes in these waters, getting some programming off the ground, and trying to create events in which this incredible community of readers actually gets to lay eyes on and talk to one another.

Stay tuned.

Today’s Headlines and Commentary

By
Wednesday, December 31, 2014 at 12:26 PM

Yesterday, the Pentagon released five Guantanamo detainees to Kazakhstan. The men—three Yemenis and two Tunisians—had been approved for repatriation in 2009; none of them had been charged with a crime during their stay at Guantanamo. According to Carol Rosenberg of the Miami Herald, this transfer brings the total population of Guantanamo prisoners to 127.

Following the official conclusion of the International Security Assistance Force’s military operations in Afghanistan, the Washington Post considers how Kabul has changed in the past few months since militants have begun bombing and destroying “foreign symbols and sanctuaries – aid agencies, guest houses, even a performance at a French cultural center, while warning that they will treat Western civic activities exactly like military enemies.”

In an interview with Reuters, former Afghan President Hamid Karzai announced that he regularly advises current President Ashraf Ghani on important policy matters. Indeed, Karzai remarked, “President Ashraf Ghani and I are meeting very, very often. Or, almost daily.” Reuters notes that such close relations are cause for worry among Western governments, whose relationship with Karzai soured by the end of his time in office.

Yesterday, the U.N. Security Council rejected a measure, which would have called upon Israeli and Palestinian negotiators to strike a peace settlement within the next year. The proposal also would have asked Israel to withdraw to its 1967 borders by 2017. It garnered only eight votes, one shy of the threshold necessary for passage. The Post shares more on the vote.

The New York Times reports that U.S. troops deployed to Iraq have begun training Iraqi forces, “putting them through morning fitness exercises and instructing them in marksmanship and infantry tactics, in an effort to gather enough forces to mount a spring offensive against the extremists of the Islamic State.”

The Wall Street Journal analyzes the numbers of the U.S.-led coalition’s operations against the Islamic State. “Two figures illustrate U.S. strategy on the different, albeit intertwined, wars playing out in Syria: one focused on the Islamic State and the other on the regime of President Bashar al-Assad.”

According to the British-based Syrian Observatory for Human Rights, Syrian Kurdish forces now control nearly seventy percent of Kobani, a town near the Syrian-Turkish border that “has became a symbol in the fight between the ultra hardline Islamic State group and its enemies in Iraq and Syria.” Reuters shares the news.

Meanwhile, the militant group has demanded that Lebanon release Saja al-Dulaimi, the former wife of Islamic State head Abu Bakr al-Baghdadi, and Ola Sharkas, the wife of al-Qaeda commander Anas Sharkas. Beirut is currently negotiating with the Islamic State to secure the release of 25 Lebanese police officers and soldiers taken hostage when jihadists briefly invaded the border town of Arsal. Al Arabiya has more.

The Times examines how Russian President Vladimir Putin initially managed to secure the European gas pipeline deal, which ultimately floundered this month in the face of falling global oil prices and the spiraling of the value of the ruble.

The Times also informs us that yesterday, a Moscow court convicted Russian opposition blogger Aleksei Navalny and his younger brother Oleg of criminal fraud. Although Aleksei was spared jail time, his brother will serve three and a half years in prison. “The jailing of the brother, a former postal worker generally viewed as a pawn in a larger battle, signaled that the Kremlin was adopting a heavy-handed strategy in seeking to suppress Mr. Navalny’s political activities by sidelining him without transforming him into a martyr.”

Following the two convictions, a number of anti-Putin activists gathered in Moscow over night. However, the Guardian reports that over 100 of the so-called “Pussy rioters” were arrested this morning by riot police.

In an op-ed in the Times, Emily Parker wonders whether the Internet can defeat the Kremlin.

Meanwhile, the Cuban government has failed an early test of its willingness to tolerate and expand freedoms and human rights. Yesterday, demonstrators sought to organize a street protest in Havana, during which citizens would be free to share their visions for the country’s future. However, Cuban authorities prevented certain critical voices from joining the demonstration. Given recent steps toward normalizing U.S.-Cuban relations, the Times argues that this move will ultimately prove “self-defeating for Havana.”

Reuters informs us that a suicide bomber in central Yemen killed 23 people and injured 48 others in an attack on a cultural center.

The Saudi Press Agency released news that the country’s 90-year-old King Abdullah was admitted to the National Guard’s King Abdulaziz Medical City hospital today for tests. The AP reports the story.

And of course, from all of us here at LawfareHappy New Year!

ICYMI: Yesterday, on Lawfare

Jack considered the consequences of credible doubt regarding the U.S. government’s attribution of blame for the hack of Sony.

Wells flagged a podcast from the Federalist Society, in which the Wall Street Journal’s Bret Stephens discusses his book America in Retreat: The New Isolationism and the Coming Global Disorder.

Wells also shared the D.C. District Court’s order, declining to stop Abd al Rahim al Nashiri’s military commission trial at Guantanamo Bay.

Steve Vladeck then articulated two problems he finds with the D.C. District Court’s decision.

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.

Five More GTMO Transfers

By
Wednesday, December 31, 2014 at 9:57 AM

The Miami Herald’s Carol Rosenberg has the scoop; apparently the five men are headed for Kazakhstan.

The Pentagon freed five Guantánamo prisoners to resettlement in Kazakhstan on Tuesday, a day after they left on a U.S. Air Force cargo plane that had to circle back to the base in Cuba with a mechanical problem.

The transfers of three Yemenis and two Tunisians demonstrated the far-flung nature of the State Department’s resettlement deals as it tries to chart new lives for cleared captives whose home nations are too unsettled for repatriation.

It was also the latest in a surge of transfers that has reduced the prison camp population to 127.

But it got off to a shaky start for the captives who, though cleared for release years ago, typically depart as they arrived — in shackles with blindfolds and ears muffled. U.S. officials, who spoke on condition of anonymity while the transfer mission was underway, said the five were first flown from the base in a C-17 Monday but the pilot circled back about 90 minutes later because of mechanical problems. They departed again Tuesday.

The Defense Department said the following in a statement: Read more »

Two Basic Problems With Abstention in Nashiri

By
Tuesday, December 30, 2014 at 5:44 PM

Wells already flagged yesterday’s D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri’s impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he’s convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act.

Interested (or, at least, hyper-attentive) readers may recall my earlier posts about this exact issue, and my effort to explain why this kind of abstention (called “Councilman abstention” after the 1975 Supreme Court case in which it was articulated) is especially inappropriate in cases like Nashiri’s–as Justice Stevens all-but recognized in footnote 20 of his opinion for the Supreme Court in Hamdan v. Rumsfeld. I won’t rehash those arguments here, especially because there’s little in Judge Roberts’s analysis that my prior posts didn’t already address).  Instead, separate from my prior objections to applying Councilman here, I want to offer two additional points about why abstention in Nashiri’s case makes so little sense–and endeavor do so below the fold.

Read more »

DDC Won’t Halt Al-Nashiri’s Military Commission at GTMO

By
Tuesday, December 30, 2014 at 3:18 PM

Such is the gist of Judge Richard Roberts’ order, issued yesterday in the context of the high-value Guantanamo detainee’s habeas case in D.C. district court.

The opinion opens:

Guantánamo detainee Abd Al Rahim Hussayn Muhammad Al Nashiri submitted an amended petition seeking a writ of habeas corpus, arguing that the respondents’ attempts to try him by military commission would exceed the limits imposed by Congress and the Constitution on the military’s authority to act in lieu of courts of law because none of the crimes alleged against Al Nashiri occurred in the context of a recognized war. Al Nashiri moves for a preliminary injunction preventing the respondents from trying him by military commission before the merits of his habeas petition are decided. The respondents oppose Al Nashiri’s motion, and move to hold his habeas petition in abeyance during the duration of his military commission trial. Because traditional principles of comity and judicial economy support abstaining from exercising equitable jurisdiction over Al Nashiri’s habeas petition during the pendency of his military commission trial, the respondents’ motion to hold in abeyance will be granted, and Al Nashiri’s motion for a preliminary injunction will be denied.

 

Federalist Society Podcast on “America In Retreat”

By
Tuesday, December 30, 2014 at 3:05 PM

Last week a Lawfare reader brought this item to our attention:

Earlier this month, the Federalist Society’s International and National Security Law Practice Group hosted a Podcast with The Wall Street Journal’s Bret Stephens.  The latter discussed his recent book, “America In Retreat: The New Isolationism and the Coming Global Disorder.”

 

Today’s Headlines and Commentary

By
Tuesday, December 30, 2014 at 1:32 PM

One day following the official end of the International Security Assistance Force’s mission in Afghanistan, the Afghan Taliban declared the “defeat” of the United States and its allies. The statement issued by the militant group said that the US force had left the country without accomplishing “anything substantial.” Taliban spokesman Zabihullah Mujahid said that the group would now establish a “pure Islamic system by expelling the remaining invading forces.” Roughly 18,000 troops will remain in Afghanistan to train the Afghan army, with a section of US forces also conducting counterterrorism missions.

While the conflict may now be formally over for the United States and its allies, the war is far from over for Afghans. Even as coalition forces drawdown, the Wall Street Journal reports that the war in Afghanistan remains fierce, and the battle against the Taliban has killed more Afghan forces this year than ever before. 5,400 Afghan soldiers and policemen have been killed in 2014. That number is twice as many as the overall number of US troops killed in Afghanistan since 2001.

The Washington Post brings us news that the Islamic State has published a written interview with the recently captured pilot of a crashed Jordanian F-16. According to the Islamic State’s English publication, Dabiq, First Lieutenant Mu’ath al Kaseasbeh says that his fighter jet was shot down by a heat-seeking missile outside of Raqqa, the Islamic State’s headquarters in Syria. There is no way to verify the Islamic State’s account of the interview. The magazine also praises the attack on a cafe in Sydney, Australia that occurred earlier this month.

Today, ISIS claimed responsibility for a car bomb attack on a gas plant in Homs province. The attack killed eight people, including four Syrian soldiers, and wounded 15 others. Al Arabiya has more on the continuing battle.

In Syria, will the South “rise again?” Over at Foreign Policy, Dafna H. Rand and Nicholas Heras argue that the moderate and secular Southern Front is gaining ground in the birthplace of Syria’s revolution. They describe a coalition of rebels made up of 50 armed groups.  The coalition has effectively created a system of civil-military governance, one that presents an alternative to extremists and pro-government forces.

The Washington Post reports that in Berlin, concern over the threat from the Islamic State has superseded outrage over NSA spying. According to the piece, over the past year, the German government has continued to secretly provide detailed information— cellphone numbers, email address, and other sensitive data—to US intelligence agencies on hundreds of Germans suspected of affiliating with militant groups in Iraq and Syria. These actions are not limited to Berlin, as capitals across Europe have turned to their US counterparts, whose resources they simply cannot match.  

Brookings scholars Shadi Hamid and William McCants explain why calling the Islamic State “daesh” is not really such a good idea. Spoiler alert: it presents the group as such a powerful force that it carries a “He-Who-Must-Not-Be-Named” quality.

The Long War Journal brings us news that al Qaeda in the Arabian Peninsula has released a new video detailing steps to avoid detection by US drones. The video suggests a do-it-yourself “insulation cover” to hide from “heat detection” as well as several ways to use various terrains as camouflage.

In other drone news, the Associated Press confirms that Iran has tested a “suicide drone” as part of ongoing military drills near the Strait of Hormuz.

Investigators are still sorting through the Sony attack, and Reuters brings us news that the FBI now believes that North Korea likely hired hackers from outside of the Hermit Kingdom to help execute the attack. However, Politico has another theory: Researchers from the cyber intelligence company Norse have said that their own investigation points to laid-off Sony staff, not the DPRK, as the perpetrators of the attack. After a briefing from Norse executives, the FBI said it was standing behind its assessment.

Whoever is ultimately responsible, Japan and South Korea are wasting no time boosting cooperation in light of what many consider a heightened threat. On Monday, for the first time, the two countries agreed to share military intelligence about North Korean weapons programs as part of a three-way pact with the United States. Washington hopes that the agreement signals a warming of relations in the north-east Pacific that will improve cooperation among the estranged allies. The New York Times has more.

In the wake of falling oil prices and biting sanctions imposed by the West, for the first time in five years, the Russian economy has contracted. The Russian government has released new numbers revealing that its GDP in November was 0.5 percent lower than in the same month last year. The Russian Central Bank fears that the economy could shrink by as much as 5 percent next year if oil prices do not recover. The Guardian has more.

Reuters reports that Arab UN delegations on Monday endorsed a Palestinian proposal designed to establish a peace deal with Israel within one year and end Israeli occupation of Palestinian territories by late 2017. The resolution faces stiff opposition from the United States and Israel ensuring its almost certain defeat.

Cameroon has launched its first airstrikes against the Nigerian-based militant group Boko Haram. The airstrikes come after the group overran a Cameroonian military base and then attack five nearby villages. The airstrikes reported killed 41 militants.

According to Reuters, a US drone strike killed a senior leader of al Shabaab named Abdishakur on Monday.

Parting Shot: The French drone company Parrot has released a new advertisement filmed featuring tightrope walkers playing with drones at scary heights.

ICYMI: Yesterday, on Lawfare

Ben issued a reminder to consider Lawfare in your year end charitable giving.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

 

The Consequences of Credible Doubt About the USG Attribution in the Sony Hack

By
Tuesday, December 30, 2014 at 8:15 AM

A few weeks ago I wrote critically of the FBI’s statement that it had “enough information to conclude that the North Korean government is responsible” for the Sony hack:

First, the evidence” is of the most conclusory nature – it is really just unconfirmed statements by the USG.   Second, on its face the evidence shows only that this attack has characteristics of prior attacks attributed to North Korea.  We know nothing about the attribution veracity of those prior attacks.  Much more importantly, it is at least possible that some other nation is spoofing a North Korean attack.  For if the United States knows the characteristics or signatures of prior North Korean attacks, then so too might some third country that could use these characteristics or signatures – “specific lines of code, encryption algorithms, data deletion methods, and compromised networks,” and similarities in the “infrastructure” and “tools” of prior attacks – to spoof the North Koreans in the Sony hack.

I made these two points mainly to set up a third point about the difficulty (and importance) of publicly verifiable attribution even if the government is confident in secret – based on technical analysis combined with other forms of intelligence – about the attribution.  I didn’t think that the FBI, in this high-stakes context, would say without qualification that North Korea was responsible unless it was certain about this conclusion.

And yet with increasing volume, “a chorus of well-qualified skeptics . . . say[s] the evidence just doesn’t add up.”  On Monday the security firm Norse briefed the FBI on an alternate theory of an insider job.  Shane Harris says that the FBI is sticking to its guns.  But one detects a softening in its certainty about the North Korea attribution.  As Harris reports:

“We think it’s them,” referring to the North Koreans, an FBI spokesperson told The Daily Beast when asked to respond to reports from private investigators that other culprits were responsible. The latest evidence, from the cyberanalysis firm the Norse Corp., suggests that a group of six individuals, including at least one disgruntled ex-Sony employee, is behind the assault, which has humiliated Sony executives, led to threats of terrorist attacks over the release of a satirical film, and prompted an official response from the White House.

The FBI said in a separate statement to journalists on Monday that “there is no credible information to indicate that any other individual is responsible for this cyberincident.” When asked whether that left open the possibility that other individuals may have assisted North Korea or were involved in the assault on Sony, but not ultimately responsible for the damage that was done, the FBI spokesperson replied, “We’re not making the distinction that you’re making about the responsible party and others being involved.”

If the FBI mis-attributed the Sony hack, it will be more than an embarrassing mistake.  Such a mistake might have led the United States to take action against the wrong target, and going forward it will significantly weaken U.S. attribution credibility.  Indeed, even if the FBI’s attribution turns out to be right – will we ever know for sure? – its hesitation in the face of credible questions about its very thin public evidence will exacerbate the demand for publicly verifiable attribution before countermeasures (or other responses) are deemed legitimate.  In this small but significant sense, the United States has lost a battle in the early days of cyber conflict.

Don’t Forget Lawfare in Your Year End Charitable Giving

By
Monday, December 29, 2014 at 3:02 PM

Given that it’s December 29, it’s not much of a promise to say that this will be my last fundraising solicitation post of the year. That said, I promise. But I wanted to remind those of you who had not yet made a contribution to Lawfare in response to my earlier pleas that there is still time. Still time to help us develop Lawfare, improve the national conversation about security and law, and push back against the polarized left-right shouting match. There’s also still time to get some cool stuff—beyond, that is, the tax deduction that comes from giving to a 501(c)(3) organization like the Lawfare Institute. Every dollar of any contribution you give will enter you separately in a drawing for an array of cool prizes—Lawfare swag, mugs, t-shirts, etc.—the grand prize being dinner with an available Lawfare writer of your choice. That’s right: For $100, you get a hundred different chances to win dinner with a Lawfare contributor and a hundred other chances to win the world-famous Lawfare mug. But only until the year 2014 ends and the new one begins.

Click on the “donate” button on our sidebar or send a check to: The Lawfare Institute, P.O. Box 33226, Washington DC 20033-3226.

 

 

Today’s Headlines and Commentary

By
Monday, December 29, 2014 at 9:34 AM

On the night before Christmas eve, the National Security Agency quietly released hundreds of surveillance-related documents, some of which describe the inadvertent targeting of U.S. citizens. We’ve begun and will continue to cover the document dump. In the meantime, here’s coverage from the Wall Street Journal, The Hill, and Bloomberg, the first to report on the story.

Meanwhile, a new cache of leaked Snowden documents has surfaced. Der Spiegel reports on the materials, which shed light on the NSA’s data encryption-breaking programs, and the NSA’s struggles in cracking certain encryption. It seems some email encryption providers have proved too tough for the NSA to crack.

Amidst all the controversy and disagreement over the security and accessibility of data, Iceland has offered its services to provide a potential solution. Al Jazeera tells us that the tiny country would like to become the “Switzerland” of data, providing numerous data centers where individuals, customers and even countries could store valuable data without privacy concerns.

Over the weekend, Iran tested a new “suicide drone.” The Associated Press explains that the drone, essentially a moving bomb, is “designed to plunge into aerial and ground targets, as well as ships.”

The New York Times has a piece on how American forces are approaching the “psychology” of the Islamic State in order to disarm it. The militant extremist group has managed to control swaths of the Iraqi and Syrian population in a way that other Islamist organizations have not; the key to defeating IS could lay in understanding its ideology and appeal.

In recent days, Pakistan’s military has killed nearly 40 Islamist militants, including several top commanders who were likely associated with planning the shocking attack on a military school that killed 149 people, mostly children. NPR, by way of the AP, reports on the operation. Last week the Post likewise reported on “Saddam,” a Taliban leader allegedly killed in the attack; yesterday, the same paper described Pakistan’s new crackdown on Islamist extremism.

Cliff Sloan, who just resigned from his position at the State Department where he was tasked with coordinating the release of Guantanamo detainees, sat with NPR’s Weekend Edition to explain his views on Guantanamo and why he resigned. As to the former, he argues that the prison is an anathema, and justified his resignation by explaining that he had always planned to leave the position within a certain timeline.

The AP reports on commercial drone regulations. There are strong indications that Congress will weigh in on the issue.

The upcoming cover story in The Atlantic delivers a seething take on contemporary America’s approach to its military. James Fallows argues that politicians and the general American public pay little-to-no attention to our troops which, in turn, hinders the ability to look at the military with a needed critical eye that might contribute to helping to reform it.

And yet however much Americans “support” and “respect” their troops, they are not involved with them, and that disengagement inevitably leads to dangerous decisions the public barely notices. “My concern is this growing disconnect between the American people and our military,” retired Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff under George W. Bush and Barack Obama (and whose mid-career academic stint was at Harvard Business School), told me recently. The military is “professional and capable,” he said, “but I would sacrifice some of that excellence and readiness to make sure that we stay close to the American people. Fewer and fewer people know anyone in the military. It’s become just too easy to go to war.”

Politico considers Ash Carter’s chances of a successful tenure should he be confirmed as the new Defense Secretary. His first major hurdle will be the threat of sequestration in the new fiscal year – which would majorly hamper his ability to help carry out U.S. defense strategy.

In southeast Asia, another commercial airliner is missing. The BBC reports that AirAsia Indonesia Flight QZ8501 from Indonesia to Singapore lost contact with air traffic control after roughly 40 minutes of flight.

Even though we at Lawfare didn’t find The Interview to be well, any good, CNN reports that it’s still enough to get North Korea riled up. Saturday, the country’s National Defense Commission released a scathing review not of the film, but of the Obama administration for “blackmailing” theaters into distributing the movie.

ICYMI: Since December 24, on Lawfare

Paul considers various theories holding that North Korea was behind the Sony hack.

Ben reported on his unexpected but pretty shocking exchange with Edward Snowden.

NSA hoodies are made in Pakistan… no punch line necessary.

To mark the occasion, Paul flagged “Christmas in the Trenches,” by John McCutcheon.

Jodie Liu noted the NSA’s release of oversight reporting—which described technical and human error, as well as some intentional abuse of NSA authority.

As noted above, it seems The Interview is a bad movie—according to both Paul and Jane.

Mira Rapp Hooper covered important maritime security developments in Asia in 2014.

Yesterday, Ben continued his series on his thoughts on the SSCI’s CIA interrogation report.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us onTwitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Thoughts on the SSCI Report, Part III: The Program’s Effectiveness

By
Sunday, December 28, 2014 at 11:32 PM

Having started this series of posts by focusing on the aspect of the SSCI’s report on which the committee majority is strongest—the program’s brutality—I want to turn now to the aspects of the committee’s work on which, to my mind at least, its report is less persuasive.

An enormous amount of the committee’s energy is devoted to demonstrating that the interrogation techniques used in the program were not effective, and the committee certainly highlights areas in which the CIA stated too confidently that coercive interrogation played a key role in achieving positive outcomes to which it may or may not have contributed. But the committee attempts something more ambitious than simply arguing that the CIA overhyped the value of detainee interrogations—and the value, in particular, of coercion in those detainee interrogations. The committee attempts to argue that every single one of the intelligence successes the CIA has attributed to the program are in error—that is, that coercive interrogation led to none of the important wins (foiled plots or captures of important Al Qaeda figures) which the CIA has claimed as its fruits.

On this point, at least in my judgment, the committee’s report is not persuasive.

Let’s pause a moment here and consider why this is an important claim in the first place. After all, the committee would have been on safe ground had it merely pointed out cases—and there are many—in which the agency made representations it could not possibly know to be true about the effectiveness of its interrogation techniques. The agency on numerous occasions claimed that it had obtained life-saving information by means of these interrogation tactics, and that this information was not obtainable by other means. Even it now concedes that it is unknowable what sort of information it would have gotten by means less coercive than the ones it used—in other words, that we cannot assess the marginal value of coercion to the agency’s intelligence gathering efforts. But the committee chose to go further and, like the agency itself, try to assess coercion’s marginal value. Unlike the agency, it finds the value to be essentially zero.

The reason this is an important finding—if it’s right—is that it eliminates all moral complexity from the discussion of the RDI program. No longer are we balancing the horror of torture—or something very close to it, if you prefer—against great intelligence gains, or even small intelligence gains, or even, as the CIA would now have it, major intelligence gains in which we cannot know the precise role coercion may have played. We are instead balancing the horror of the violence and brutality against exactly no gain. That makes the equation a very easy one indeed. It makes the past a painful one, in which we did great wrong and achieved nothing in exchange, but it also makes the future a bright and clear one: You get better results, and without the moral stain, if you just say no. Read more »

The Year to Come in Asia’s Seas

By
Saturday, December 27, 2014 at 10:22 AM

The latest issue of the Asia Maritime Transparency Initiative reviews the most important maritime security developments in Asia in 2014. AMTI’s expert analysts also look ahead, highlighting what they argue are likely to be among the most important regional maritime security events of 2015. Here is a roundup of these anticipated developments.

Nicholas Khoo notes that late 2014 brought some cause for optimism, with Asian leaders calling for cooperation on South China Sea issues at APEC and ASEAN meetings in November. Whether this rhetoric translates into action is another story, however, argues Rory Medcalf. Medcalf states that China seems to be “talking the talk” on risk reduction in the region, but the big question for 2015 is whether or not Beijing will “walk the walk” on the confidence building measures it has agreed to with the United States, and a crisis hotline it has pledged to institute with Japan. This Sino-Japanese crisis mechanism, Tetsuo Kotani notes, is desperately needed to defuse tensions in the East China Sea, but could be derailed by two major sets of events. The first is the 70th anniversary of the end of World War II, which is sure to engage nationalist rhetoric in both Japan and China. The second is the fact that Prime Minister Shinzo Abe will continue to move towards a reinterpretation of Collective Self Defense, allowing Japan to take a more active defense role in the region, and permitting the revision of the US-Japan Bilateral Defense Guidelines in early 2015. If China and Japan are to keep crisis coordination on track despite these developments, Tokyo should give Beijing advanced notice of its defense guidelines revisions, Kotani argues.

There seems to be little doubt that the South China Sea will continue to be a hotspot in 2015. Bonnie Glaser argues that the Second Thomas Shoal may become the flashpoint of the New Year if the USS Sierra Madre slips off the reef and Chinese law enforcement vessels move in and take control of it. Zhu Feng argues that China is likely to return another oil rig to waters near Vietnam, reigniting 2014 tensions between those two countries.

Ernest Bower argues, meanwhile, that ASEAN countries are likely to be increasingly vocal in their support for the Philippines in its international arbitration against China because South East Asian states’ trust in Beijing is wearing thin. Matthew Waxman notes that the arbitral tribunal may rule on whether or not it has jurisdiction to hear the case in 2015. Because jurisdictional issues are so intertwined with the merits of the case itself, this may take until 2016, however. Waxman also notes that as the arbitration proceeds, it may throw into sharp relief two problematic issues for the United States. The first is that when it comes to states’ sovereignty claims over contested land features, the United States claims neutrality. Its exhortations that the parties settle disputes through international legal mechanisms, however, increasingly mean that it must give at least implicit support to the Philippines, a treaty ally that is pursuing arbitration despite the fact that China refuses to do so. Another point of awkwardness is the fact that the United States itself has not ratified the UN Convention on the Law of the Sea, and even though it treats its provisions as customary international law, its endorsement of UNCLOS-related arbitration may seem hypocritical.

If it can remain focused on maritime Asia despite other pressing global crises, the United States is, however, on track to deepen its engagement with allies and partners in the region in 2015, argues Michael Green. It will strengthen alliance cooperation with Japan, partially lift its arms embargo on Vietnam, and continue to implement the US-Philippines Enhanced Defense Cooperation agreement that was penned this year. As Renato Cruz de Castro notes, however, the constitutionality of the ECDA is currently being contested in the Philippines, and a Supreme Court decision on whether or not the agreement in its current form can stand is expected in early 2015.

Elsewhere in the Indo-Pacific region, Richard Rossow argues that India will continue to move away from its traditional stance of non-alignment because it is increasingly concerned about China’s ability to project power in the Indian Ocean. Chang-Hoon Shin looks to the possibility that China and South Korea might finally negotiate a maritime boundary, which could resolve the status of a long-disputed land feature, as well as defuse fishing-related tensions and pave the way for future cooperation between Seoul and Beijing. And as Taiwan looks to its 2016 presidential elections, Yann-Huei Song notes that early posturing between the two main political parties may place South China Sea issues at center stage as the parties debate the Philippines vs. China arbitration, as well as the merits of Taiwan’s U-shaped (11-dash) line. Finally, Admiral Gary Roughead argues that 2015 will be the year of the submarine, as Australia looks to replace its Collins Class submarine and China and India increasingly focus on their undersea nuclear deterrents. Roughead also reminds readers to watch for increased efforts by China to engage in naval cooperation with other states in the region.

AMTI’s analysts have suggested a wide variety of likely 2015 developments, but a few common themes emerge. One is the fact that domestic politics—whether it is the United States and Sequestration, Japan and Collective Self Defense, the Philippines and the ECDA, or Taiwan and the 11-Dash Line—are likely to be a key factor that shapes stability and security in maritime Asia next year. The second is that whether one considers growing support in the region for the Philippines’ case, or the tradeoffs that the United States faces as it contemplates its own position with respect to the case, international arbitration over maritime issues may simply be politics by other means. A third theme, which is perhaps the most important question raised by AMTI’s year-end analysis, is the question of whether forward progress can be made on crisis-avoidance and confidence-building measures, even as significant domestic and international legal developments give states justification for abandoning these pursuits. Here’s hoping for an affirmative answer, and for peaceful and prosperous year in maritime Asia.