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UK Court Dismisses David Miranda Detention Challenge

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Wednesday, February 19, 2014 at 10:35 AM

This morning, the UK’s Royal Court of Justice dismissed David Miranda’s application for judicial review of his nearly nine-hour detention at London’s Heathrow Airport last August. The Metropolitan police detained and questioned Miranda, a Brazilian national and the partner of Glenn Greenwald, as he was returning to Brazil after meeting with Laura Poitras in Berlin. The police also seized Miranda’s electronic equipment, including encrypted storage devices believed to contain documents leaked by Edward Snowden. Miranda challenged the Metropolitan police’s legal authority to detain and question him under Schedule 7 of the Terrorism Act 2000.

The opinion is written by Lord Justice John Laws and joined by Justices Duncan Ouseley and Peter Openshaw. We will have a longer summary of the opinion out later today.

A Security Update

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Tuesday, February 18, 2014 at 3:18 PM

Many thanks to everyone who has responded to my post Saturday morning about our security issues. Thanks to all who made contributions. Thanks to the cybersecurity professionals (and amateurs) who have reached out with advice and suggestions. Thanks as well to the companies that have offered assistance. And thanks finally to the many people who disagree with a great deal of what they read on this site yet have supported us—publicly and privately—over the past few days. These sort of attacks are, first and foremost, attacks on speech and disagreement. With that, here’s an update.

The good news: We are getting the situation under control and it may not be as bad as we feared on Friday. Our technical management team at Blue Water Media informed me yesterday that, after studying the crashes that took place Friday carefully—crashes that took place in the context of the denial of service attacks we had been experiencing and had certain other features suggestive of an intrusion—they actually do not believe that an intrusion is the likeliest explanation for what happened. While we cannot rule out greater mischief, in other words, we appear at this stage to be largely dealing with denial of service attacks. Moreover, I have managed to restore the posts that mysteriously went missing last week, thanks to the fabulous service provided by the Internet Archive: Wayback Machine, which I used so aggressively this weekend that it actually blocked me, having apparently concluded that I was a denial of service attack. We are taking a series of steps—which, for obvious reasons, I am not going to specify—to make the site more robust against this sort of attack.

Here’s the bad news: As many readers found out this morning, when Lawfare was unavailable to a large number of people despite being up and running fine, defensive steps can be—in the short term, anyway—blunt instruments. Protecting against denial of service attacks can lead to, well, denial of service. We appreciate all who called in or tweeted at us information about the site’s availability from different locations. It was extremely helpful. (If you cannot access the site, please let us know.) While over the coming days, we expect Lawfare to be both more resilient and to behave more normally from a reader point of view, there may be other glitches between now and then. I ask everyone’s forbearance as we work through things.

Honestly, I’ve never done this before, and it’s been, well, an education.

Today’s Headlines and Commentary

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Tuesday, February 18, 2014 at 2:08 PM

The United States has not forgotten you, Sgt. Bowe Bergdahl. The Obama administration wants to resume talks with the Afghan Taliban and has offered to trade five of its members, who are held at Guantanamo Bay, for the release of Sgt. Bergdahl, who was kidnapped by the Haqqani Network in 2009.

Things aren’t so hot with the other Taliban. The latest negotiations between the Pakistani government and the Pakistani Taliban, which began a few weeks ago, completely disintegrated yesterday after the militants said they had killed 23 Pakistani soldiers in revenge for the army’s operations in the FATA.

President Obama has asked for different policy options on Syria. Samuel R. Berger, Bill Clinton’s national security advisor, outlines a few in this op-ed in the Post.

Secretary of State John Kerry accused Russia and Iran of undermining the latest round of peace talks on the Syrian civil war; and the Assad regime of “stonewall[ing].” The UK and France agree with him; Chief UN negotiator Lakhdar Brahimi apologized to the Syrian people for the failure of the talks.

The first round of talks aimed at curbing Iran’s nuclear program through a final status agreement began this morning in Vienna. According to the Wall Street Journal, senior American and Iranian officials have expressed “increasingly divergent views” on the negotiations, with Iran’s Supreme Leader adopting a particularly uncompromising stance.

The thorniness of the situation is underlined in a Breaking Defense interview with International Atomic Energy Agency Chief Yukiya Amano. Amano explains that Iran’s refusal to allow IAEA inspectors to new sites is a major hurdle to progress, but praises the Iranian negotiators as “prudent, cautious and intelligent.”

Speaking of negotiations galore, Michael Rubin of the American Enterprise Institute had an op-ed in the Washington Post about the dangers of engaging rogue regimes.

Yesterday, the military trial of Abd Al Rahim Al Nashiri was stopped abruptly, if only for two days. Defense counsel Richard Kammen explained that his client may want to replace him. Wells covered the hearing in real-time, and Carol Rosenberg has a story in the Miami Herald.

Abd al Hadi al Iraqi, another Guantanamo Bay detainee, has been charged with conspiracy, as Wells and Steve discussed.

Four bombs went off in Baghdad yesterday, killing 25 people and wounding dozens more.

American drone bases will likely relocate from Afghanistan to Central Asia if NATO troops are forced to withdraw completely from Afghanistan by the end of this year, the LA Times reports.

The Singapore Airshow, a multi-day event where major players in the Southeast Asia weapons market hawk their wares, concluded this past weekend. According to the New York Times, drones were center stage.

In an interview with Eli Lake of the Daily Beast, DNI James Clapper reveals that the NSA should have been more transparent about the 215 program from the start. Here’s more.

Mayer Brown, the Chicago-based law firm that, according to Snowden-related articles, was allegedly the subject of Australian surveillance, has issued a somewhat cryptic statement. The Chicago Tribune has the story. Earlier, Ben and Jane reacted to a Times article on this story here and here.

Iranian hackers were far more successful in their infiltration of a U.S. Navy computer network than had initially been thought, and were able to remain within the system for nearly four months. The Wall Street Journal expects the man who led the military response—current NSA director nominee Admiral Mike Rogers—to face tough questions on the topic at his confirmation hearings.

Newark International Airport is getting a new hi-tech system of cameras and sensors, in order to help streamline management and security. Privacy advocates are already worried. The Times has the story.

CNN’s lead story today discusses why retailers like Target and Neiman Marcus are hesitating to beef up cybersecurity.  The reason? Financial incentives exist in the opposite direction. As these companies wish to collect and store as much data on consumers as possible and to make that collection process cheap and frictionless, they are unlikely to improve security as long as they continue to self-regulate through the Payment Card Industry Council.

A Government Accountability Office report has found data on the extent and cost of the use of private contractors in the Intelligence Community to be unreliable. As a result, the agencies are “not well-positioned to assess the potential effects of relying on contractor personnel.” Secrecy News has the story.

Benjamin Weiser of the Times has the latest developments in the trial of Sulaiman Abu Ghaith, Osama bin Laden’s son in law. His lawyers have moved closer to being able to use testimony from one Khalid Sheik Mohammed; prosecutors, meanwhile, plan to call a member of the Lackawanna Six to testify.

Earlier today, a police advance broke through protest barricades in Kiev and protesters set fire to the headquarters of the ruling Party of the Regions. Street violence continues amid political wrangling between government, opposition and foreign powers with no solution in sight.

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.

Bits and Bytes

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Tuesday, February 18, 2014 at 1:46 PM

Today’s Bits and Bytes starts out with an article about Bitcoin.  As the New York Times reports, Bitcoin is facing two challenges — from regulators who want to bring the virtual currency under the umbrella of traditional market regulation and from hackers who disrupted one of the largest Bitcoin exchanges, Mt. Gox.  The flaw was, apparently, not in the mathematics that create the currency but, as you would expect, a weakness at the exchange.  This seems a universal truth — the weak spot will always be at the human/code interface.

Meanwhile Citizen Lab in Canada has released a second report on Hacking Team.  Hacking Team markets an allegedly untreaceable surveillance software.  According to Citizen Lab they have traced the untraceable and now identify 21 countries that are using the software to monitor their own citizens: “We suspect that agencies of these 21 governments are current or former users of [the Hacking Team program]: Azerbaijan, Colombia, Egypt, Ethiopia, Hungary, Italy, Kazakhstan, Korea, Malaysia, Mexico, Morocco, Nigeria, Oman, Panama, Poland, Saudi Arabia, Sudan, Thailand, Turkey, UAE, and Uzbekistan.”

Finally, I thought I’d shout out this interview with Nuala O’Connor, CDT’s new President and CEO.  You will be particularly amused to learn that her twitter handle is @privacymama.

Military Commissions, Conspiracy, and al-Iraqi

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Tuesday, February 18, 2014 at 7:20 AM

Over the weekend, I blogged over at Just Security about the al-Iraqi case pending before the military commissions at Guantánamo—and, in particular, Saturday’s New York Times story reporting that the government has amended the charge sheet against al-Iraqi to add a charge of conspiracy. As readers likely know, the en banc D.C. Circuit will soon decide, in the al-Bahlul case, whether the commissions may try conspiracy as a standalone offense for conduct that pre-dated the MCA’s October 17, 2006 enactment—i.e., whether Congress did, and constitutionally could, retroactively authorize trial by military commission of an offense not recognized as an international war crime at the time of its commission.

What appears to distinguish al-Iraqi is the timing. As I noted over at Just Security, al-Iraqi was one of the last detainees sent to Guantánamo. And, as the amended charge sheet indicates, at least some of the conduct giving rise to the charges against him appears to have post-dated the MCA’s enactment. (See especially ¶¶ 58–63 of the Charge Sheet posted on Friday.)  Thus, so long as the Convening Authority approves these amended charges, al-Iraqi appears at least superficially to be a post-Bahlul test case—an opportunity for the government to ensure that the commissions will at least be able to entertain conspiracy and material support prosecutions based upon post-MCA conduct. I’ve previously flagged the difficult constitutional question that would therefore arise—whether Congress may subject to trial by military commission offenses not recognized as violations of the laws of war, even prospectively. In this post, though, I want to explore two distinct questions that would have to be resolved before we could ever get to that larger, more wide-ranging issue. Read more »

Edward Lucas v. Conor Friedersdorf

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Monday, February 17, 2014 at 4:33 PM

For those of you who just can’t get enough of debates featuring Atlantic writer Conor Friedersdorf, who appeared debating me on drones in this week’s episode of the Lawfare Podcast. . . and

For those of you just can’t get enough of Economist writer Edward Lucas, who’s recent Amazon single on Edward Snowden I reviewed here . . .

Here are the two debating Snowden on Bloggingheads.tv:

Al-Nashiri Motions Hearing: February 17 Session

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Monday, February 17, 2014 at 9:06 AM

It’s a snowy day here at the Fort Meade CCTV facility.  Lawfare’s in the house, for the first of this eight-day, pre-trial motions hearing in United States v. Al-Nashiri.  Same format as always: dispatches throughout the day, in our “Events Coverage” section, with links to those below.

Update [9:32 a.m.]: that was fast.  The case has been postponed until 0900 Wednesday, in light of Al-Nashiri’s possible desire to have his civilian death penalty lawyer withdraw from the case.

2/17 Motions Hearing #1: Does Al-Nashiri Want Different Defense Counsel?

 

 

What I Am—And What I Am Not—Saying About Laura Poitras

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Sunday, February 16, 2014 at 8:46 PM

This morning, Jane and I posted a critique of the New York Times‘s very silly story about non-NSA surveillance—by one foreign government against another foreign governments—surveillance not against US persons, surveillance which did not target lawyers. The story was headlined: “Spying by N.S.A. Ally Entangled U.S. Law Firm.”

The story’s dual byline included Laura Poitras, a documentary filmmaker who was one of the recipients of the Snowden documents and who does not work for the New York Times but who has freelanced major pieces for the paper using Snowden material. In introducing the critique, I described Poitras—and I want to stress that I, not Jane, wrote the passage in question and that Jane bears no responsibility for the confusion and anger that ensued—as “freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so.”

The firestorm on Twitter today over this line has been something fierce, and I’m afraid I fed it by trying to clarify what I meant—which can be difficult in 140 characters. Glenn Greenwald and others have said that I made ugly accusations against Poitras as being something other than a journalist—and as not having written the story in question but merely supplied the document on which it is based. I want to say, first of all, that I certainly did not intend to imply that; I have no reason to disbelieve that Poitras meaningfully served as an author on the story and was a bit mortified to find that my phraseology might lend itself to that understanding. My apologies. It really wasn’t what I was trying to say. Nor, indeed, did I mean to accuse Poitras of any misconduct whatsoever. I don’t think there is anything improper about her bringing material she obtained to the Times on a freelance basis.

Here is what I am not apologizing for: I am both puzzled and troubled by a larger pattern in the journalism surrounding the Snowden affair, of which this episode is but one example. I described this anxiety at some length back in November at a conference at NYU Law School, the video of which is available here: Read more »

Statement from the Chief Prosecutor Regarding This Week’s Hearings in Al-Nashiri

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Sunday, February 16, 2014 at 8:45 PM

You’ll find the statement in full, here.  It opens as follows:

Good evening. Abd Al Rahim Hussayn Muhammad Al Nashiri stands charged with serious violations of the law of war for his alleged role in attacking the United States warship USS Cole (DDG 67) and the French vessel MV Limburg and in attempting to attack the United States warship USS The Sullivans (DDG 68). I emphasize that the charges are only allegations. Mr. Al Nashiri is presumed innocent unless and until proven guilty beyond a reasonable doubt. I also emphasize that matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding judge, and that any comments below addressing systemic issues that are the subject of frequent questions by observers should always be understood to defer to specific judicial rulings, if applicable.

During the next two weeks, the military commission convened to try Mr. Al Nashiri will hold another series of sessions without panel members present. These pre-trial sessions are an indispensable part of this sharply adversarial process and are necessary to the fair and open administration of justice. Through them, the Judge resolves legal and evidentiary issues in an orderly and methodical way so that we may reduce interruptions and delays at trial, after the jury of officers has been seated and then examined and challenged by the parties to ensure impartiality.

The time and rigor demanded by these proceedings are not luxuries, though we can all understand those survivors and family members of the fallen who feel frustration at the pace of justice. Bound together by heartbreaking tragedy, they have become a close family. And they have inspired me and so many others not only with their bond, but with their stories of strength, determination, and sacrifice. Today I recall the reflections of one mother who lost the third of her five sons more than a decade ago. With tenderness and courage, she shared her memories of him, a duty-minded sailor whose ashes she buried at sea along with those of his father, who had passed away four years earlier. Despite the added toll her son’s loss has taken on her, she continues to stand resolute, waiting for the start of trial. That day is coming. Although the precise start date remains the subject of litigation—see United States v. Al Nashiri, Appellate Exhibit 45 series of filings—the current order of the Judge on the matter calls for trial on the merits to begin this year. Read more »

Three Military Commission Developments

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Sunday, February 16, 2014 at 3:31 PM

One in the recent past, two more in the very near future.

The first came on Friday, when the government added a conspiracy count to the military commission charges against Guantanamo detainee Abdul Hadi al Iraqi.  (Charlie Savage covered the story for the New York Times.) These days we await the D.C. Circuit’s resolution of a long-running dispute over whether commission jurisdiction extends to conspiracy, so far as concerns actions predating the Military Commissions Act of 2006.  But there’s also a separate issue about conspiracy and like offenses, with regard to conduct postdating the statute—as, according to the government’s accusations, a little less than a month of Al-Iraqi’s conduct apparently does.  Friday’s adjustment thus raises questions about Congress’s ability prospectively to subject conspiracy and other crimes not recognized by the international law of war to trial by commission—as Steve explained yesterday, in a great post over at Just Security

Next up, and by way of reminder: this week will see pretrial proceedings in not one but two commission cases, both of which we’ll cover on Lawfare.  The first is United States v. Al-Nashiri.  An eight-day motions session is scheduled in that case, and commences tomorrow morning.  (The session’s docketing order, AE204, is for some reason unavailable now, though it was earlier; we’ll post it just as soon as it again materializes on the commissions’ website.)  Thursday also promises arraignment in another Guantanamo prosecution, United States v. Al-Darbi. The latter overlaps with Al-Nashiri; in both, prosecutors say the accused played a role in a 2002 attack in Yemen against a French-flagged vessel, the M/V Limburg, which caused the death of one foreign national, injuries to others, and extensive damage.  That allegation itself implicates a threshold legal question, which Marty Lederman describes in detail here.  Tune in, starting tomorrow at 9 a.m.

Bits and Bytes

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Sunday, February 16, 2014 at 11:28 AM

Bob Gourley, of CTO Vision, thinks that the NIST Cybersecurity Framework is OK as far it goes.  But he is concerned that the “framework is missing something very important that enterprises big and small need to be aware of, and most will need a dedicated program for. It is missing a respect for the threat.”

Even lawyers are not immune from cyber spying.  Apparently the NSA may have collected data from Mayer Brown in connection with its representation of Indonesia.  This is reflective of a growing turn to secondary sources for hackers – law firms, newspapers, accounting companies and anyone else who holds confidential information on behalf of others. And, as this report from the Citizen’s Lab in Canada shows, the capability is increasingly available to unsophisticated actors.

The “plus” in Google+ — it’s mostly for Google, not for you.  I continue, however, to really not understand this one … after all you are getting Google services for free.  TANSTAAFL.

The Foreign Policy Essay: ISIS’s Rejection of Al Qaeda—The End of an Era?

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Sunday, February 16, 2014 at 10:00 AM

Editor’s Note:  Cooperation among terrorist groups is dangerous, making them far more flexible and lethal in their operations. Yet such cooperation is rare, and when it occurs it can be fraught with problems. Such difficulties are apparent to all now that the senior leadership of Al Qaeda Core has officially severed ties with the Islamic State of Iraq and Syria (ISIS), a prominent jihadi group in Syria. Tricia Bacon, a former State Department counterterrorism specialist who now teaches at American University, offers her thoughts on these complex interactions, explaining both why Al Qaeda leaders have sought alliances and the difficulties this has created for their organization.

***

Al Qaeda leader Ayman al-Zawahiri has had a huge problem in Syria recently:  his supposed local followers wouldn’t listen to him. His patience finally expired, and he publicly dissociated Al Qaeda from the Islamic State in Iraq and Syria (ISIS) last Monday. Prior to the break, Zawahiri made one last-ditch effort to admonish ISIS, but ISIS refused to alter course and re-enter the Al Qaeda fold. While Al Qaeda seems to have gotten the last word in last week’s announcement, the reality is that Al Qaeda Core no longer possesses the assets it once used to entice ISIS. Even worse from Zawahiri’s point of view, the Core leadership has lost many of the qualities that elevated it to the epicenter of alliances within the Sunni jihadist community. In recent weeks, Al Qaeda Core leaders have been forced to sit back and watch with dismay while ISIS targeted rivals, alienated the Syrian people with its harsh treatment, and tarnished the reputation of jihadists in the premiere jihad of the day.

Even if it wanted to (and it very well may not), Al Qaeda would almost certainly be unable to salvage its relationship with ISIS, at least under ISIS’s current leader Abu Bakr al-Baghdadi. Al-Baghdadi’s public rejection of Zawahiri’s edicts in June and subsequent declaration of himself as the caliph all strongly suggest that the alliance was over long before Zawahiri’s declaration.

It is a fitting ending for this alliance. The public falling out between Al Qaeda Core and ISIS is the culmination of a relationship that has been plagued with problems since its inception. Al Qaeda has tried in vain to deal with these problems privately for years. Zawahiri and his number two, Atiyah al-Rahman (killed in 2011), wrote letters demanding that Abu Musab al-Zarqawi, who rose to fame by leading the jihadist movement in Iraq, modify his group’s indiscriminate attacks, cease its divisive behavior, and coordinate its activities more closely with Al Qaeda. Documents recovered from bin Laden’s compound in Abbottabad reveal intense frustration within Al Qaeda over the group’s—then known as the Islamic State in Iraq—conduct, particularly its targeting of Iraqi civilians and failure to consult with Al Qaeda. Some in Al Qaeda Core are almost certainly relieved by Zawahiri’s decision to publicly disassociate from ISIS, given the damage the group’s actions have done to Al Qaeda’s reputation.

This is not the first time one of Al Qaeda’s alliances has ended acrimoniously. The Algeria example is instructive:  Al Qaeda’s relationship with the notorious Armed Islamic Group (GIA) also ended rancorously at a time (the 1990s) when Algeria was arguably the most promising possibility for an “Islamic” state, and it ended for strikingly similar reasons. In that case, Al Qaeda and other jihadists’ concerns with the GIA’s conduct were ultimately borne out when the GIA subsequently killed several members of the allied Libyan Islamic Fighting Group and finally self-imploded, engaging in large-scale massacres of Algerian civilians.

But is The New York Times’ recent declaration that ISIS’s defection was “a watershed moment in the vast decentralization of Al Qaeda and its ideology since 9/11” correct? Not quite. The defection codifies the status of an alliance that has long been broken. However, ISIS’s willingness to publicly reject Al Qaeda does expose Al Qaeda’s weakened alliance position. Read more »

The Latest Snowden Leak: NSA Isn’t Spying on Lawyers

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Sunday, February 16, 2014 at 9:11 AM

Unless the public is really tiring of matters Snowden, the New York Times’s latest is going to stir up the hornet’s nest. “Spying by N.S.A. Ally Entangled U.S. Law Firm,” blares the headline of the story by reporter James Risen and freelancer Laura Poitras—from whom the Times (which insists it never pays for information) sometimes procures Snowden-leaked documents and to whom it gives a byline when it does so.

[Clarification here on what the previous sentence is---and is not---meant to suggest about Poitras]

The story is rich with warnings about the threat to legal ethics (“The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.”). It’s rich as well with innuendo, including the suggestion that American lawyers are under scrutiny because of the work they do for their clients (“The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.”). And both it and a related story in the Guardian are also rich with technical details about U.S.-Australian cooperation in targeting Indonesian telecommunications infrastructure.

But while the facts the paper reports about the interception of lawyer communications are indeed remarkable, they are not remarkable for quite the reasons the Times has slapped this story on its front page.

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either. Read more »

EU To US: Let Us In Now!

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Saturday, February 15, 2014 at 5:00 PM

There’s diplomacy and then there is chutzpah.  I have to think that the latest move by the European Union on the visa front is closer to the later than to the former.  The EU has demanded that, within six months, the US change its visa policy and admit the citizens of Poland, Romania, Bulgaria, Cyprus and Croatia without a visa.  As of today those citizens still need an entry permit to travel to the US.

The genesis for this dispute lies in a program known as the Visa Waiver Program (or “VWP”).  VWP has been around for decades.  As initially conceived it was a reciprocal program allowing visa free travel between the US and other countries for tourist purposes.  It’s why, for example, when an American visits France he can travel on his passport without a visa, just as a French tourist can come to the US without first going to the US consulate in Paris for a visa and permission.

In its initial conception, back before 9/11, the VWP program was limited by its structure as an immigration program – entry into the program was tied to the visa “overstay” rate for another nation.  The overstay rate, as its name implies, is a reflection of how many citizens from a particular country (say France) come to the US on a 90-day tourist visa and then overstay their permission.  While some overstays are accidental (90 days is not, usually, equal to 3 months and lots of folks miss the deadline by a day or two in confusion) many others were (and are) motivated by economic migration factors – they come as tourists and stay to live and work.  [It’s a little known fact that all visa overstays (which include overstays on student visas; business visit visas; as well as tourist visas) probably account for 40% of the total population of those illegally present in the US.]

And so, one of the factors that has driven the VWP program is that it is only open to countries from which low levels of illegal economic migration (and thus low levels of overstays) are expected.  As you might imagine this has, traditionally, included may developed nations of Western Europe as well as allies on the Pacific Rim like Japan and Australia – places where we reasonably anticipate that tourist visitors will return home because economic factors don’t drive them to want to stay in the US as much as they might from other, less well-developed, countries.

In the aftermath of 9/11 the VWP program mutated somewhat.  For a period of time (that has since lapsed) Congress eased the visa overstay rules (raising the acceptable rate from 3% to 10%) to permit countries to enter the VWP that cooperated with the US on security measures.  These were countries, for example, that were willing to sign up for enhanced data exchange on criminals and terrorists.   One such agreement was a 2003 provision for the exchange of terrorism screening information (known as HSPD-6).  This required joining a consolidated watchlist system  Another was the agreement on Preventing and Combating Serious Crime (PSCS), which resulted in sharing of biometric information to prevent serious criminal activity.  A number of nations, mostly in Eastern Europe, eagerly signed on to these agreements and since that time the US has made these types of data exchanges a mandatory condition for all nations in the VWP, including the “old Europe” traditional VWP members. Read more »

Lawfare Podcast Episode #62: Benjamin Wittes and Conor Friedersdorf Debate the Ethics of Drones

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Saturday, February 15, 2014 at 1:55 PM

Last November, the University of Richmond invited Ben and Conor Friedersdorf to participate in a debate on the ethics of drone warfare. Conor is a familiar voice in the anti-drone camp, as those who have come across his articles in The Atlantic well know. I edited the podcast version of the debate for length and got rid of the introductions and audience questions. It thus proceeds as four speeches: Ben and Conor each give opening remarks, in that order, and then each responds to the other.

While the back-and-forth touched on the legal issues behind targeted killing, it was really about the many ethical implications, both positive and negative, of U.S. drone policy. These range from the precedent the United States sets in the international community, to the psychological effects of drones on civilians. In a discussion that can often focus on the big issues of civilian casualties, oversight, legality, and sovereignty, these other questions can get lost in the foray. But as Al Qaeda continues to morph and the United States struggles to define the boundaries of the war it has been fighting, they are more important than ever.

The Week That Was: All of Lawfare in One Post

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Saturday, February 15, 2014 at 11:28 AM

As this past week began, Ben expressed some exasperation with Angela Merkel and State Department officials for whining like a “bunch of babies” in their responses to the release of an undiplomatic phone call between two diplomats discussing the crisis in the Ukraine.

But it’s not just diplomatic exchanges that are being monitored by the Russians. In his next installment of “Bits and Bytes,” Paul linked to a Lookingglass special alert warning users of unsecured wireless devices about significant criminal activity in Sochi. His other link was to a Computer World article explaining that the Target hackers stole their login credentials from a company that provides Target with HVAC services.

Private industry may be headed for some self-regulation to prevent these kinds of events. Paul noted that the National Institute of Standards and Technology released its “Framework for Improving Critical Infrastructure Cybersecurity,” and predicted that industry would feel compelled to follow the guidelines. He observed that the Framework was largely similar to earlier drafts, and maintained its “tiered” system for rating compliance with its standards, but also loosened some of its privacy requirements.

Speaking of Cybersecurity, Lawfare was once again subjected to a series of attacks this week. Please stop, whoever you are. Ben solicited reader support, as Lawfare seeks to investigate and resolve the apparent security problem for good.

On to Snowdenia. Ben reviewed The Snowden Operation: Inside the West’s Greatest Intelligence Disaster, a new extended essay by Edward Lucas. Ben liked the bulk of the essay, which explained the extent of the damage Snowden wreaked.  Butt he finds Lucas’ conjecture that Snowden was an unknowing puppet, directed all along by Russian intelligence, to be a bit too far ahead of the evidence.

Wells noted the release of the latest batch of FISC documents, approving the President’s adjustments to the operation of the metadata program, and Ben posted the DNI’s newly released (and largely unsurprising) official list of “permissible uses of signals intelligence collected in bulk.” Wells also flagged the appearance of the members of the Privacy and Civil Liberties Board before the Senate Judiciary Committee to testify about their report on the government’s metadata program. Meanwhile, Paul noted one of the worst ideas he’ seen in a while: an attempt by some Maryland legislators to cut “material support” (including water and electricity) to local NSA facilities.

Recently, Chris Donesa wondered what was possibly motivating the “people familiar with the NSA program” to leak to the press that the 215 program collects less than 30% of total communications. He worries that officials mistakenly saw the leaks as a means of allaying fears that government is “Big Brother” or as a tone-deaf attempt to raise support for expanding the program. Instead the deficiencies will raise questions about efficacy and aid the program’s critics.

Paul flagged the EU’s new push to globalize internet governance, using Snowden’s revelations about American surveillance as its excuse. Paul noted that he had predicted this, and confirmed that he continues to think globalized internet governance is a bad thing.

After all the disclosures about surveillance on foreign leaders, Ashley did some digging through the publicly available documents and treaties, and she is pretty sure there is no legally binding “no spy” agreement between the United States and other countries. But given that Canada and New Zealand appear to think that such an agreement does exist, Ashley posits there might be some sort of “understanding” at play.

In the foreign essay policy, al-Qaeda expert Assaf Moghadam discussed the combination of “top-down” and “bottom-up” innovation that has made some of al-Qaeda’s operations so successful.

But who is considered al-Qaeda? Jack reacted to a Washington Post report that al-Qaeda’s expulsion of its Syrian affiliate ISIS has led some administration lawyers to worry that action against ISIS may no longer be authorized by the AUMF. Jack notes that it is news that the administration ever considered the AUMF to authorize action against ISIS, and wonders why President Obama is more likely to assert inherent Article II powers for humanitarian action than for counterterrorism.

Relatedly, Jack flagged an article by the AP’s Kimberly Dozier depicting the Obama administration twisting itself into knots as it tries to determine whether an American citizen who is an al-Qaeda facilitator can be targeted with lethal force. He followed this up with an analysis of two more drone-related news stories in the Times and Journal. Jack remains puzzled by President Obama’s strong interest in moving the drone program from CIA to DOD, and suggests that respect for international law—and thus the ability to operate in Pakistan—may be the crucial difference between the two agencies with respect to some drone strikes currently under debate.

Also media-related, Matt commented on the “spin” coming from these same two leading newspapers on the economic situation in Iran. He suggested that the discrepancy between the economic evaluations of the Wall Street Journal and the New York Times may have something to do with their views on increased sanctions. And Ben linked gleefully to a New York Observer story quoting New York Times news staffers leveling some pretty heavy criticism at the Times’ editorials, and particularly the Opinion Editor, Andrew Rosenthal.

Turning to detainee news: Wells reported the much awaited DC panel decision in the Guantanamo force-feeding case, Aamer v. Obama. The majority ruled that despite the Military Commissions Act, the federal courts have habeas jurisdiction over claims regarding conditions of confinement. Jane followed up with a close analysis arguing that the true significance of the case lay in its expansion of habeas jurisdiction asserted by the courts in Boumediene v. Bush. Jane suggests that the decision has far-reaching implications for the development and understanding of habeas.

As we consider Guantanamo, it’s worth reading a Politico article Wells linked to by Josh Gerstein drawing out potential implications from the recent acquittal in the Ali piracy case.

Paul drew our attention to a new film released by the Annenberg Public Policy Center, “Homeland Confusion,” continuing its campaign to streamline Congressional oversight of the Department of Homeland Security. Although bipartisan groups have repeatedly pointed out that the proliferation of committees that claim oversight authority over DHS seriously hampers its effectiveness, Paul doesn’t have much hope for imminent reform.

Ken gave a very positive review to a new working paper, “The Concept of Jus Post Bellum in International Law: A Normative Critique,” by Eric De Brabandere of the Grotius Center at Leiden University School of Law. Ken explained that De Brabandere offers a powerful critique of the entire concept of jus post bello obligations and suggests that adding a third category to our traditional concepts of jus in bello and jus ad bellum erodes the firm barriers between them.

As the week began, Ben posted our podcast, an edited version of his discussion on “Defending an Unowned Internet” at Harvard’s Berkman Center. And as the week ended, he linked to an Intelligence Squared debate on the resolution “Snowden was Justified” featuring ACLU’s Ben Wizner and Daniel Ellsberg vs. former CIA Director James Woolsey and Andrew McCarthy, and a lively episode of Radiolab on the origins of the “Glomar” response. Of course, Lawfare can neither confirm nor deny the veracity of the radio episode.

Jack flagged an intriguing analysis, by Bruce Schneier, of the public-versus-private-storage of metadata question. The latter is implicated, of course, by the President’s proposed reforms to the NSA’s telephone records collection under Section 215 of the Patriot Act.

And that was the week that was.

 

Our Recent Cybersecurity Problems—and an Appeal for Reader Help

By
Saturday, February 15, 2014 at 9:00 AM

I am writing both to update readers on the attacks on Lawfare that took place this week and to make a frank fundraising appeal for reader help in addressing them.

As readers know, we have been hit since December with episodic but low-grade denial of service attacks. These are a pain in the neck but not the world’s biggest problem. This week, however, things escalated considerably. On Thursday, we were hit with what appears to be a botnet attack. And yesterday, our system crashed twice as a result of what appears to be a malicious intrusion. This latter incident caused us to reexamine an earlier crash, which I now believe also to have been induced maliciously. Moreover, though we are not sure of this, Lawfare appears to have sustained some damage from the attacks. We are endeavoring to figure out what posts have been compromised and to restore them.

No, I do not know who is doing this—and I don’t want to speculate about it. We will be reporting the incidents to law enforcement and will, of course, cooperate with any investigation that ensues.

[UPDATE: Our technical management team no longer believes that the crashes on Friday---and another one that took place Sunday evening after this post was published---were the result of a malicious intrusion, though it does not rule out the possibility and the circumstances, coming in the context of the botnet and DDOS attacks, remain suspicious.]

What I do know is that creating an architecture for Lawfare that will resist this kind of malicious activity is going to be time-consuming, and it’s going to be expensive. And while people imagine that Lawfare—because of its audience and writer base—is some well-funded operation with major backing, it actually isn’t. We are a tiny non-profit with virtually no independent resources, one that relies on the Brookings Institution for its staff and which has never paid any of its writers a dime. It was designed as a small blog, created by three friends who never imagined the institution it would become—or that that institution would require a defense against anonymous attackers. I suppose it is a mark of the site’s success that we have arrived at that point, but to be honest, we are not positioned for it technically or financially.

So if you’re using Lawfare regularly, please help us. We need major backing from entities that value what we do and that want to help put us in a position to continue growing and not be paralyzed by attacks like these. We also need reader support.

The Lawfare Institute is a not-for-profit educational organization devoted to the publication of this site. Our application for 501(c)(3) tax exempt status is pending. You can support Lawfare with a contribution of any size. Our mailing address for checks is: P.O. Box 33226, Washington DC 20033-3226. You can also contribute using credit cards or Paypal by clicking on the “Donate” button on our sidebar.

Lawfare is also an Amazon.com affiliate site, so you can help support Lawfare by doing all your Amazon searches through the window on our sidebar. Many thanks to all of those law students who keep buying their books through Lawfare.

This post will stay at the top of the page for a few days—and please, share it on Facebook and Twitter and email it to everyone you have ever met.

And if you visit the site over the next few weeks and find it not there, bear with us. We’re working on it.

Bruce Schneier on NSA v. Private Meta-Data Storage

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Friday, February 14, 2014 at 4:18 PM

In December I said this about the Presidential Review Group’s recommendation to transfer meta-data from NSA to private control: “I understand the Report’s concerns about the storage of bulk meta-data by the government.  But I do not understand the Report’s implicit assumption that the storage of bulk meta-data by private entities is an improvement from the perspective of privacy, or data security, or potential abuse.”

Bruce Schneier has written an interesting analysis of this issue – the best I have seen.  His conclusion is not, as Slate’s typically misleading headline states, “Let the NSA Keep Hold of the Data.”  Rather, after analyzing the costs and benefits of NSA v. private meta-date storage, Schneier concludes:

Where does this leave us? If the corporations are storing the data already—for some business purpose—then the answer is easy: Only they should store it. If the corporations are not already storing the data, then—on balance—it’s safer for the NSA to store the data. And in many cases, the right answer is for no one to store the data. It should be deleted because keeping it makes us all less secure.

This question is much bigger than the NSA. There are going to be data—medical data, movement data, transactional data—that are both valuable to us all in aggregate and private to us individually. And in every one of those instances, we’re going to be faced with the same question: How do we extract that societal value, while at the same protecting its personal nature? This is one of the key challenges of the Information Age, and figuring out where to store the data is a major part of that challenge. There certainly isn’t going to be one solution for all instances of this problem, but learning how to weigh the costs and benefits of different solutions will be a key component to harnessing the power of big data without suffering the societal harms.

Worth a read.

Today’s Headlines and Commentary

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Friday, February 14, 2014 at 11:22 AM

Yesterday, Ritika and Yishai told you about the NSA memo that reveals that Edward Snowden used the login information of a civilian employee of the NSA to gain access to classified documents. A group of Senators has since released a report claiming that the Office of the Director of National Intelligence is unable to monitor and account for “core” intelligence contractors.  Read more about it in The Hill.  

The Atlantic’s Conor Friedersdorf comments on the “selective outrage” he has observed regarding national security leaks in the United States. Why are we so angry over Snowden’s revelations, but not others that have come after?  On that point, Friedersdorf calls Chris Donesa’s recent piece here on Lawfare “refreshing,” given its critique of officials who reveal sensitive information about U.S. intelligence capabilities.

Afghan President Karzai isn’t keeping quiet about the increasingly tense relationship between the United States and Afghanistan. By now you know President Karzai earlier ordered the release of 65 prisoners captured by United States forces. Now, the Pentagon has released a dossier with details of each detainee held in Bagram—highlighting just how dangerous the U.S. government thinks these people are. The Washington Post has also published a list of past prisoners who were released and then found to have returned to fight for the Taliban. The Post lastly has a useful Q&A regarding the prisoner release.

The U.N. has called on the United States and Russia to help move Syrian peace talks along. The discussions in Geneva have been deadlocked since earlier in the week, with very little progress to report. Meanwhile, the U.N. Under-Secretary-General for Humanitarian Affairs has suggested that the Security Council pass a resolution to stop “flagrant violation of humanitarian laws” in Syria. But, with Russia and China reluctant to impose sanctions on the Syrian government, it is unlikely that any resolution of substance will pass through the Council. The Times has more on the Security Council situation, as well as American and Russian involvement in the Syrian conflict.

A Pakistani anti-drone campaigner was released from detention after having been abducted from his home last week. Karim Khan was seized just outside of Islamabad on February 5, only days before he was scheduled to testify before the European Parliament about U.S. drone attacks in Pakistan. It remains unclear who abducted Khan.

Paul told you about the recently released NIST Cybersecurity Framework. Wyatt Kash of InformationWeek has penned a piece explaining why NIST’s new guidelines should be taken very seriously, and as more than just a suggestion.

The alleged victim in a closely-watched Navy sexual assault case is seeking to prevent a military court from reviewing—and potentially disclosing to the defense—the victim’s counseling records.  Read more in the Post.  

Secretary of State Kerry has asked China to help reign in the cantankerous North Korean regime and to bring the country back to the table for nuclear disarmament talks. According to the Globe and Mail, Kerry met with Chinese President Xi Jinping this morning to ask him reinforce his commitment to managing the North Korean threat.

The Kenyan Cabinet Secretary accused the United States of funding anti-government protests in Nairobi, according to the BBC. The United States vehemently denies any involvement in the violence, or of trying to influence the upcoming Kenyan elections.

Should big-time political donors, who lack experience in or knowledge of foreign lands, nevertheless receive ambassadorial posts?  The Post explores the question.

Happy Valentine’s Day to all of our dear readers. If you’re frantically looking to purchase some flowers last minute, you’ll have to look to other delivery methods than the drones operated by a Detroit-based florist.  The FAA has rejected the latter’s bid to have robots carry flowers from shop to sweetheart.

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.

Intelligence Squared Debate: “Snowden Was Justified”

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Thursday, February 13, 2014 at 8:49 PM

The ACLU’s Ben Wizner and Daniel Ellsberg vs. former CIA Director James Woolsey and Andrew McCarthy:

Snowden Was Justified from Intelligence Squared U.S. Debates on FORA.tv