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On This Week’s Scheduled Mini-Hearing in the 9/11 Case

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Monday, December 15, 2014 at 1:14 PM

Day one of the two-day hearing was apparently cancelled yesterday evening.  We await the final word on tomorrow’s planned session, though the odds of further in-court proceedings strike us as slim.

At any rate, the Chief Prosecutor at Guantanamo had this to say. His statement addresses, among other things, the impact of the SSCI report on commission cases:

Before turning to the proceedings scheduled for the coming week, I note that this past Tuesday, on 9 December 2014, the Senate Select Committee on Intelligence made public the 517-page Executive Summary of its Study on the Central Intelligence Agency’s Former Rendition, Detention, and Interrogation (“RDI”) Program. Though publication of the Executive Summary resulted from many factors and considerations, the process by which the Legislative and Executive Branches made this document public did include some consideration of military commission trials. See Attachment B to AE 120D, Letter from Kathryn H. Ruemmler, Counsel to the President, to Sen. Feinstein, Chairwoman, S. Select Comm. on Intelligence & Sen. Carl Levin, Chairman, S. Comm. on Armed Services (Feb. 10, 2014) (noting, in the context of the Committee’s Study, that the CIA Director “is taking [steps] to declassify certain information relating to the former [RDI] program in support of the current military commission proceedings”).

Far from disrupting military commissions, as some observers have speculated, the Committee’s publication alters none of the rules of law or due process that will continue to govern each and every trial to its conclusion. That said, the declassification of information contained in the extensive Executive Summary surely accelerated the provision of specific material to the defense that would have otherwise occurred through the discovery process. I have consistently maintained that the United States will not, in any case, seek to introduce statements it assesses are involuntary under the Military Commissions Act (“M.C.A.”). And, under Section 948r of the M.C.A., no statement obtained through the use of torture or cruel, inhuman, or degrading treatment is admissible into evidence in a military commission. Yet there remains a formal process by which an accused and defense counsel may use the discovery they receive to challenge the admissibility of any statements the prosecution might seek to introduce as evidence at trial. See 10 U.S.C. § 948r; M.C.R.E. 304. Such discovery will further enable accused persons to present evidence, and seek due consideration by the commission, of postcapture treatment, where appropriate. Tuesday’s declassification increases the likelihood that more of these processes will be open to the public and assures the accused will be able to see and consult with defense counsel about certain information not previously available to them. But all this will unfold without changing any part of the essential framework of justice by which the alleged offenses are to be tried.

Our Collective Privacy Panic

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Monday, December 15, 2014 at 11:30 AM

We are told there is a privacy crisis.  The Snowden revelation and other such things have given the sense that we are in a crisis.  I think what we have is a privacy panic.  What I would call the Snowden left, joined by the Tea Party right, are churning this up way past any reasonable limits.  And then, of course, the press chimes in because that’s what the press does.  The press has not been particularly good on this subject.  In fact, as I will illustrate to you, they regularly report some technological innovation or some event and say it raises privacy concerns.  Their ability to analyze this notion or even to see that it needs to be analyzed is totally lacking.  The amount of public attention to these supposed assaults on privacy is out of all proportion to their seriousness.  Compare this to the to another set of revelations that came out of the post 9-11 world—the fact that the United States has been using torture, more brutal and extensive than anyone had imagined.  Although we now have the startling and detailed report of the Senate Select Committee on Intelligence,  and that has produced considerable media coverage, from past experience one can predict that the popular reaction and legislative activity will be muted and short-lived.  And that is remarkable because torture has traditionally been viewed as absolutely wrong—as one of the worst things that human beings can do to each other.  And I would just cite a couple of examples of this condemnation.  There’s Pope John Paul II’s 1993 encyclical Veritatis Splendor, which says quite clearly that torture is out under all circumstance.  And, if you are a little skeptical about this because the Pope’s organization back in the days of the Inquisition was a major league torturer, let me cite Article 15 of Abraham Lincoln’s General Orders which made it clear that torture may not be used under any circumstances.

Compare the public reaction to claims of violations of privacy.  The very invocation unnamedof the word privacy sets off a media frenzy as if to use that word is to make an argument.  Well, it isn’t.  Consider the Constitution.  The word privacy does not occur in the Constitution.  The Fourth Amendment speaks about searches and seizures, and people being secure in their homes and papers.  However, unlike the absolute and general moral and statutory prohibitions on torture, the Fourth Amendment speaks only of unreasonable searches and seizures and allows these if with a warrant.  So this is far from an absolute prohibition. Compare torture: there is no such thing is reasonable torture and so far nothing like torture warrants.  Why this disparate reaction?  I suggest people are upset about phone tapping and data mining, because it happens to them.  Torture is something that happens to other people. Read more »

Over 700 Million People Taking Steps to Avoid NSA Surveillance

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Monday, December 15, 2014 at 9:02 AM

There’s a new international survey on Internet security and trust, of “23,376 Internet users in 24 countries,” including “Australia, Brazil, Canada, China, Egypt, France, Germany, Great Britain, Hong Kong, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Poland, South Africa, South Korea, Sweden, Tunisia, Turkey and the United States.” Amongst the findings, 60% of Internet users have heard of Edward Snowden, and 39% of those “have taken steps to protect their online privacy and security as a result of his revelations.”

The press is mostly spinning this as evidence that Snowden has not had an effect: “merely 39%,” “only 39%,” and so on. (Note that these articles are completely misunderstanding the data. It’s not 39% of people who are taking steps to protect their privacy post-Snowden, it’s 39% of the 60% of Internet users—which is not everybody—who have heard of him. So it’s much less than 39%.)

Even so, I disagree with the “Edward Snowden Revelations Not Having Much Impact on Internet Users” headline. He’s having an enormous impact. I ran the actual numbers country by country, combining data on Internet penetration with data from this survey. Multiplying everything out, I calculate that 706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing. (For example, 17% of Indonesians use the Internet, 64% of them have heard of Snowden and 62% of them have taken steps to protect their privacy, which equals 17 million people out of its total 250-million population.)

Note that the countries in this survey only cover 4.7 billion out of a total 7 billion world population. Taking the conservative estimates that 20% of the remaining population uses the Internet, 40% of them have heard of Snowden, and 25% of those have done something about it, that’s an additional 46 million people around the world.

It’s certainly true that most of those people took steps that didn’t make any appreciable difference against an NSA-level of surveillance, and probably not even against the even-more pervasive corporate variety of surveillance. It’s probably even true that some of those people didn’t take steps at all, and just wish they did or wish they knew what to do. But it is absolutely extraordinary that something like 750 million people are disturbed enough about their online privacy that they would represent to a survey taker that they did something about it.

The Week That Will Be

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Monday, December 15, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, December 15th at 9 am: The Center for Strategic and International Studies will host Vice Admiral James Syring, the Director of the Missile Defense Agency, for a conversation with other experts on The Future of Homeland Missile Defense: A Fresh Look at Programs and Policy. For a full list of experts, or to RSVP, visit the CSIS event announcement.

Monday, December 15th at 9:30 am: The Stimson Center will hold a discussion on the Escalating Shi’a-Sunni Conflict: Assessing the Role of ISIS. Joseph Bahout, Omar al-Nidawi, and Geneive Abido will address questions as to whether ISIS capitalized on the conditions in the region or if it help to create them. Does ISIS have the potential to spread to other countries in the region where there is a sectarian problem? And, what is the potential for the US to push back on the ISIS march. Register here.

Tuesday, December 16th at 12 pm: What Fuels Global Jihadism? Maajid Nawaz, a former Islamist extremist turned liberal activist, will offer an assessment of how and why young men around the world are recruited into jihadist groups as well as provide policy prescriptions to reverse these trends. Carnegie’s Karim Sadjadpour will moderate. The event will be held at the Carnegie Endowment for International Peace. RSVP.

Wednesday, December 17th at 10 am: The Brookings Institution will host Under Secretary of State for Arms Control and International Security Rose Gottemoeller for a discussion of U.S. Nuclear Arms Control Policy. Under Secretary Gottemoeller will cover the Obama administration’s policy on nuclear arms control and the prospects for further progress. Brookings Senior Fellow Steven Pifer will moderate the discussion. Register with Brookings

Read more »

Transparency in Troubled Seas

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Sunday, December 14, 2014 at 2:00 PM

One month ago, the Center for Strategic and International Studies launched a new web-based program, the Asia Maritime Transparency Initiative. The premise of this project will be familiar to many of you: maritime competition in Asia has been steadily increasing in recent years, and doing so in an environment of informational opacity. Maritime geography makes it difficult to monitor events at sea as they occur, and when it comes to disputed territories and competing maritime claims there are numerous actors, each with its own national narrative. AMTI aims to be a source for regular information updates on maritime security issues in East Asia. It also hosts expert analysis from leading maritime security scholars worldwide, as well as historical and documentary resources for researchers.

On the theory that Asia maritime issues are of inherent interest to readers of a national security law website, Benjamin Wittes has asked me to post on Lawfare information about the debates and resources we are hosting at AMTI. In this post, I’m going to cover two issues—the most recent of which we released this week.

The penultimate installation of AMTI focused on the one-year anniversary of China’s declaration of an air defense identification zone (ADIZ) in the East China Sea. An ADIZ is an identified area of airspace extending beyond a national boundary in which civilian aircraft are required to identify themselves and may be subject to interception for that country’s national security.  There are few international agreements that govern ADIZs: they are zones that individual countries establish for their own safety and security, and they do not confer any sovereign rights.  The United States was the first country to establish an ADIZ shortly after World War II. Several countries in Asia also have them, including India, Russia, Japan, South Korea, Taiwan, and since November 23, 2013, China.

China’s announcement of its first ADIZ was controversial for several reasons. First, China’s ADIZ includes multiple disputed territories—most prominently, the Senkaku Islands (Diaoyu in China), which are administered by Japan, but also Ieodo (Suyan) Rock, which South Korea claims too. This led the ROK to expand its own ADIZ. Second, China made its declaration without consulting other states in the region, which is not illegal but does break with custom. Third, China declared that it would require all aircraft, including military aircraft, to identify themselves to Beijing, regardless of whether or not they were bound for China as opposed to passing through the zone in transit elsewhere. This led the United States to fly two B-52 nuclear-capable bombers through the ADIZ in a demonstration of military noncompliance. ADIZs generally increase transparency and reduce the risk of accidents, and Beijing insists that this one is no different. But last November, US and other officials insisted that these three unique features made the East China Sea ADIZ fundamentally destabilizing.

Read more »

The Foreign Policy Essay: Wolves Who Are Lonely

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Sunday, December 14, 2014 at 10:00 AM

Editor’s Note: “Lone wolf” terrorists—those who strike on their own without links to an established organization—are a nightmare for counterterrorism officials. They have no ranks to be penetrated, and often the only time they appear on the radar screen is after they have launched a bloody attack. But Michael Becker, a Ph.D. student at Northeastern University, urges us all to take a deep breath. Becker contends that the threat is easily exaggerated and that most lone wolves, most of the time, pose at most a limited danger.

***

Militants from the group known as the Islamic State recently called for individuals not directly affiliated with the organization to carry out attacks against targets in Western countries. This call for “lone wolf” attacks echoes those issued in the past by al-Qaeda exhorting “one brother or a few of the brothers” to strike the United States “here and there.” In one sense, these calls-to-arms represent a sign of weakness on the part of terrorists. Thanks to U.S.-led counterterrorism efforts, al-Qaeda and the Islamic State have been unable to directly orchestrate an attack on the U.S. homeland since September 11, 2001. They have been trying instead to inspire Americans sympathetic to their cause to carry out attacks. In another sense, though, lone wolves pose a frightening specter to Americans: such attackers can potentially manifest as anyone, they can strike anywhere, and since by definition they don’t communicate with other terrorists, they are much harder to detect or stop.

But much of the fear surrounding lone wolves is unwarranted and based on ignorance of how they operate. My research shows that lone-actor terrorists tend to conform to certain distinct patterns that can be useful in preventing future attacks. Perhaps more important, my findings indicate that lone wolves are not nearly as threatening as either their name or the hype around them suggest.

Becker photoThe concern about lone-wolf terrorism pervades much of the U.S. national security establishment. President Obama, former Secretary of Homeland Security Janet Napolitano, and current DHS Secretary Jeh Johnson, among others, have cited lone wolves as one of the gravest potential threats to U.S. security. They point to the rise of social media and terrorist propaganda, like the sophisticated videos produced by the Islamic State, and express concern that socially isolated individuals can become radicalized with troubling ease.

It is true that lone-wolf terrorism against the United States has become more common in the past several years. And several lone-actor attacks—including the 2011 shooting of Representative Gabrielle Giffords, which left six dead, and the 2009 Fort Hood shooting, which killed 13—have had deadly and tragic consequences. Concurrently, there has been little success in terms of identifying a lone wolf “profile.” They can be young or old; black or white; radical Islamists, right-wing extremists, anti-Semites, militant environmentalists, or of another ideological persuasion altogether. Given the diversity of their backgrounds, how can such a protean enemy be countered?

I recently undertook an analysis of 84 lone-wolf attacks that occurred in the United States between 1940 and 2012 in an effort to identify patterns in the targets that lone wolves chose. I came away with several findings that have important national security implications. First, similar to our recent experience with the Ebola outbreak, the fear of the thing is usually worse than the thing itself. Few lone-wolf attacks in the United States actually kill anyone, and many others only succeed in killing one person: the lone wolf himself (they are almost invariably men). Many lone wolves are incompetent loners with no experience discharging a bomb or firearm; oftentimes they exhibit behavior that, in retrospect, is more bizarre and sad than frightening. Take Dwight Watson, a.k.a. the “Tractor Man.” In 2003, Watson drove his tractor to Washington, D.C., and threatened to blow up explosives near the National Mall. After two days, he surrendered unceremoniously and it was revealed that he never had any weapons at all. Read more »

Lawfare Podcast, Episode #103: Mieke Eoyang on FAA Exclusivity

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Saturday, December 13, 2014 at 1:55 PM

A few weeks ago, Mieke Eoyang wrote and post on Lawfare entitled “A Modest Proposal: FAA Exclusivity for Collection Involving U.S. Technology Companies.” Mieke is a long-time congressional staffer on national security matters, who served a stint on the House Intelligence Committee during the drafting of the FISA Amendments Act (FAA) and now runs national security programming at Third Way—a centrist Democratic think thank. Her very provocative and disruptive proposal involved—as she put it—“making the FAA the exclusive means for conducting electronic surveillance when the information being collected is in the custody of an American company? This could clarify that the executive branch could not play authority shell-games and claim that Executive Order 12333 allows it to obtain information on overseas non-US person targets that is in the custody of American companies, unbeknownst to those companies.” The basic idea was that “if the information to be acquired is in the custody of an American company, the intelligence community should ask for it, rather than take it without asking.” Mieke’s idea has sparked a lot of conversation and response among businesses, intelligence community folks, and civil libertarians. I asked her over to Brookings to discuss it.

The Week that Was: All of Lawfare in One Post

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Saturday, December 13, 2014 at 9:55 AM

This week, unsurprisingly, Lawfare spent much of its time focused on the release of the SSCI’s report on the CIA’s post-9/11 detention and interrogation program. Before the report came out on Tuesday, Ben promised no preemptive commentary and outlined what the readership could expect from Lawfare on the subject.

To start our coverage, Wells shared the video of Senator and Chairwoman of the SSCI Dianne Feinstein (D-Ca.) speaking before the release of the report. He later linked to the primary documents in the case, including the SSCI report itself along with the minority’s report and the CIA’s response.

Lawfare then undertook reading and organizing the reports into an accessible format. In part 1, part 2, part 3part 4, and part 5 of our readout, we outline each major conclusion of the report first, then the minority’s specific rebuttal, then the CIA’s relevant answer. Each part covers four conclusions from the report.

Ben linked to various Senators’ reactions to the SSCI report. Later in the week, Wells brought us videos of both Senator Mark Udall’s (D-Co.) speech on the report as well as CIA Director John Brennan’s response. As Director Brennan spoke, Senator Dianne Feinstein live tweeted her comments, which Cody Poplin linked to. Ben Wittes also provided the text of a more formal response from the Senator’s office.

On Friday, Wells linked to a response to the CIA’s depiction of the program, from James Connell III, a lawyer for 9/11 accused Ammar al-Baluchi.

And while we could not take this report’s release more seriously, we think this Onion video, shared by Ben, encapsulates the state of debate at the moment depressingly well.

Wells noted the news this week that the US government has officially closed the infamous Bagram detention facility in Afghanistan.

Earlier, Ben reported that there were six more transfers of Guantanamo detainees, this time to Uruguay.

Also, Matthew Waxman argued that there is a recent silver lining for Guantanamo policy—but it is not what people have been talking about.

Bruce Schneier shared the recent disclosure of AURORAGOLD, which is a NSA surveillance operation against cell phone network operators and standards bodies worldwide.

Tara noted that the FISC has reauthorized the NSA’s telephony metadata collection for another 90 days.

Wells provided a video of this week’s oral arguments in Smith v. Obama.

Paul pointed out that only a few days after Sony was hacked, the entertainment empire has decided to strike back.

He later shared a Bloomberg story asserting that a mysterious 2008 Turkey pipeline blast opened a new era in cyberwarfare.

Additionally, while admitting that Congress is trying to stop the IANA transition, he argued that it may not be succeeding.

Stewart Baker brought us the 46th episode of the Steptoe Cyberlaw Podcast. This one featured an interview with Shane Harris, Daily Beast contributor and author of @War: The Rise of the Military-Internet Complex.

Another news item this week was Secretary of State John Kerry’s testimony on an ISIS AUMF. Cody and Ben provided the video of Kerry testifying. Ben later explained how Kerry outlined the administration’s vision of an AUMF, and what that vision is. In response to the speech, Jack argued that the Obama administration now clearly wants a “super-broad” AUMF. Ben then later provided a few thoughts on the AUMF hearing.

Earlier in the week, Ben and Wells analyzed Senator Menendez’s draft ISIL AUMF, which was later approved by the SFRC. Wells noted the business meeting of the SRFC, which approved the draft of Senator Menendez’s proposed AUMF. Later, Jack walked us through exactly what was included in the AUMF.

And, with all this talk of authorizations to use military force, Cody Poplin shared the text of the documents from the last time the United States declared a state of war following the attacks on Pearl Harbor in this week’s Throwback Thursday.

Ashley Deek’s brought the United Kingdom’s Article 51 letter on the use of force in Syria to our attention, noting that it implicitly adopts the “unwilling and unable” test.

For this week’s Foreign Policy Essay, Magnus Ranstorp, a well-known terrorism expert at the Swedish National Defence College, offered an in-depth examination of Scandinavia foreign terrorist fighters (FTFs).

In the 102nd iteration of the Lawfare Podcast, Ben had a conversation with Natan Sachs, a fellow at the Brookings Center for Middle East Policy. The two discussed the always-interesting world of Israeli politics, and specifically what early elections in the country might bring.

Steve Vladeck analyzed the DC Circuit’s mandamus jurisdiction question in al Nashiri and the legitimacy of the military commissions.

And Paul shared the news of Lawfare’s latest investment: a Bitcoin.

And that was the week that was.

 

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Five

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Friday, December 12, 2014 at 9:36 PM

Here is the fifth and final installment in our running, side-by-side comparison of the twenty findings and conclusions of the Senate Select Committee on Intelligence’s Study on the CIA’s Detention and Interrogation Program—along  with responses by the Committee Minority and the CIA.

Summaries of Study findings seventeen through twenty can be found below.  By way of reminder, our goal is broadly to identify, but not to comment upon, key areas of dispute between the Study, the Minority, and the Agency.

Committee Conclusion #17: The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures.

CIA officers and managers were rarely held accountable for various abuses, the Study charges, from “the death and injury of CIA detainees” to detentions that violated relevant legal standards and use of “unauthorized interrogation techniques.”

The Committee takes particular aim at CIA senior leadership for failing to hold interrogators accountable. It recounts two instances when CIA leaders overruled the inspector general’s accountability recommendations, the failure to take disciplinary action when one detainee died, and the excusing of a wrongful detention “because, ‘[t]he Director strongly believes that mistakes should be expected in a business filled with uncertainty,’ and ‘the Director believes the scale tips decisively in favor of accepting mistakes that over connect the dots against those that under connect them.’” Read more »

9/11 Defense Counsel on the CIA’s Response to the SSCI Study

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Friday, December 12, 2014 at 2:08 PM

James Connell III, lawyer for 9/11 accused Ammar al-Baluchi, had this to say today:

“The CIA and its defenders are using Mr. al Baluchi as a scapegoat for its illegal and reprehensible use of torture,” said James Connell, civilian attorney for Mr. al Baluchi.  “The United States spent incredible amounts of money, energy, and American credibility, and now the CIA is pointing at Mr. al Baluchi to justify its massive torture infrastructure.”

“Despite the pain he endured, and the CIA’s use of Mr. al Baluchi to retroactively justify its torture program, Mr. al Baluchi does not hold any grudges against the CIA.  He saw the humanity, and the suffering, of those who tortured him,” said Connell.

In its official response to the Senate torture report, the CIA relies on its interrogation of Ammar al Baluchi to rationalize its torture program.  It claims, “Ammar, after undergoing enhanced interrogation techniques, was the first detainee to reveal what apparently was a carefully guarded al-Qa’ida secret-that Abu Ahmed served as a courier for messages to and from Bin Laden.” (Page 38.)  The Senate Minority Report goes further, claiming that Mr. al Baluchi “provided this information at a CIA black site during a period of enhanced interrogation.” (Page XVII.)

The CIA claim is also the plot of the film Zero Dark Thirty, which used Ammar al Baluchi as the basis for its character “Ammar.”  “In its response, and in the information it obviously provided for Zero Dark Thirty, the CIA tried to portray its interrogation of Mr. al Baluchi as a success story.  In fact, the story-true or not-documents failures of democracy and American values.  Torture is always wrong.” said Lt Col Sterling Thomas, military counsel for Mr. al Baluchi.
The prosecution in the military commission has refused to turn over information about CIA communications to filmmakers.  The motion seeking information about communications between the CIA and Zero Dark Thirty filmmakers (AE 195) is available at http://www.gitmowatch.com/guantanamo-bay-documents/.

Today’s Headlines and Commentary

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Friday, December 12, 2014 at 2:01 PM

Yesterday, CIA Director John Brennan launched his defense of the agency he leads, calling officers “patriots” but called the tactics employed by some as “abhorrent” and “outside the bounds” of what was approved by the Justice Department. Mr. Brennan also echoed an earlier conclusion made in the CIA’s Comment on the SSCI Study, suggesting that it is “unknowable” whether the enhanced interrogation techniques led to otherwise unavailable intelligence. Even so, he would not rule out the possibility that future policymakers would once again direct the agency to deploy those same techniques. The New York Times, Politico, and the Daily Beast carry useful overviews of the Director’s comments. The New York Times notes that this was the first televised news conference from inside the agency’s headquarters. You can find the text and video of the Director’s remarks at Lawfare.

In the Miami Herald, Carol Rosenberg reports that the Senate report confirms the CIA had a “black site” at Guantanamo Bay, and that they hid it from Congress. According to the report, the CIA maintained two secret sites, codenamed Maroon and Indigo, at Guantanamo Bay from September 2003 to April 2004. The sites held at least five detainees. One of the detainees was Abd al Rahim al Nashiri.

Even as that news broke, the top general overseeing the U.S. military detention center at Guantanamo Bay, Major General John F. Kelly, suggested that it was “foolishness” to claim that the United States had lost the moral high ground on human rights. The Washington Post quotes General Kelly saying, “Human rights groups on the one hand will criticize the U.S. government for enteral feeding, but in private, they’ll tell me ‘Thank goodness you’re doing this. These people might hurt themselves.’”

Elsewhere, the Washington Post details the rise and fall of CIA “black sites” around the globe. The report suggests that the first CIA site was located in Thailand, an assertion that the Thai government has vehemently denied in recent days.

Commentary on the report continues to dominate editorial pages. In the Washington Post, Charles Lane writes that the partisan debate over CIA oversight is dangerous, potentially creating “an intelligence community that sees itself as the whipping boy of one political party and protected favorite of another — to the latter of which it owes reciprocal obligations.”

Timothy Egan tells how the story of the war hero (Senator John McCain) and the chicken hawk (former Vice President Dick Cheney) defines the conflict over CIA enhance interrogation.

In the Wall Street Journal, Peggy Noonan writes that while the torture report is flawed, it carries an important lesson, and “all Americans regardless of party should agree torture is wrong.”

Finally, Conor Friedersdorf tells us that Fox News caught Dick Cheney lying about torture.

Reuters brings a report that a 2003 cable sent by CIA officers, released yesterday by Senator Carl Levin, undercuts the Bush administration claim that a leader of the 9/11 attacks had met with an Iraqi intelligence official in Prague just weeks before the attack. The cable reads, “[T]here is not one [U.S. counter terrorism] or FBI expert that … has said they have evidence or ‘know’ that [Atta] was indeed [in Prague]. In fact the analysis has been quite the opposite.”

Yesterday, the Senate Foreign Relations Committee approved an authorization to use military force against the Islamic State along a party-line vote. The measure would authorize President Obama to target the Islamic State, but would greatly limit his ability to deploy ground forces as part of the conflict. The vote also brought into view the sharp rift between fellow Republicans on the committee, particularly Senator Marco Rubio (R-FL) and Senator Rand Paul (R-KY), who both voted against the measure, but the former did so because he believed it restricted the president’s hand too much, while the latter said it did not limit it enough. The Hill has more on the vote, while Jack reviewed exactly what is in the measure here at Lawfare, noting that in any case, the Bill will not become law.

Reuters reports that ISIS militants stuck a Syrian air base in the province of Deir al-Zor, detonating a tank in a suicide bomb attack. The British-based Syrian Observatory for Human Rights said the tank blew up on the outskirts of the base, but gave no report on casualties or damage to the base itself.

The New York Times carries a story depicting the sad reality of Iraqi security forces on the ground, where they have manpower, but very little firepower to push back the Islamic State. The deficit in arms represents the central government in Baghdad’s fear that the majority Sunni forces in Nineveh province will turn their guns over to the Islamic State, and may be one of the strongest indicators that “the key to rebuilding Iraq may rest less in the airpower of the United States and tis alles than in bridging the differences between the Shiite-led central government and Sunni communities.”

The dispute between Israel and Palestine over the sudden death of a Palestinian Cabinet minister continues to devolve as the Palestinian government has blamed Israel for the death following a preliminary autopsy. Israeli doctors have disputed Palestinian claims that the minister, Ziad Abu Ain, died of a blow to the body, asserting instead that he had a heart attack. The dispute threatens to disrupt Israeli and Palestinian security cooperation. The Washington Post has more.

Elsewhere, Al Jazeera reports that Palestinian President Mahmoud Abbas has expressed support for Egypt’s efforts to close tunnels linking Hamas-controlled Gaza Strip and the Sinai Peninsula. Abbas was quoted saying, “we will continue to support any measure protecting Egypt from danger.”

Iran nuclear talks with resume in Geneva next week, according to the Wall Street Journal, which carries a preview of the state of negotiations.

Reuters reports that Germany’s top public prosecutor has said that the ongoing investigation into the suspected tapping of Chancellor Angela Merkel’s cell phone following revelations by Edward Snowden has failed to find any concrete evidence.

The Wall Street Journal brings us news that the Pakistani police have arrested the alleged Karachi-area chief of al Qaeda’s newly formed branch in South Asia, Shahid Usman. According to police, the arrest disrupted a planned attack on a naval base.

Elsewhere in the Subcontinent, the Washington Post brings us a troubling story about a Bangalore executive who was discovered to be the notorious ISIS Twitter propagandist, @ShamiWitness. In contrast to his pro-ISIS Twitter profile, the executive maintains a separate Facebook that shows him at pizza dinners and Hawaiin parties at his work. The account has since been deleted.

The United States has expressed concern that the new leader of Crimea has accompanied Russian President Vladimir Putin to India as a member of a summit delegation. A State Department spokesman said that it was “not time for business as usual with Russia.” Reuters has more on the diplomatic row that comes just one month before US President Barack Obama is scheduled to visit India.

French special forces have killed a high-ranking member of the jihadist group al Murabitoun in Mali. France24 has more on the attack and its significance for counterterrorism efforts in the country.

Parting Shot: We’re renewing an old Onion video, which encapsulates the current debate surrounding the CIA’s interrogation techniques. Seriously, just replace the word “Minotaur” with “CIA.”

ICYMI: Yesterday, on Lawfare

Wells Bennett and Matt Danzer reviewed the Conclusions 13-17 of the SSCI Study on Enhanced Interrogation Techniques.

Wells also linked us to CIA Director Brennan’s statement on the SSCI Study.

Ben Wittes provided us with Senator Dianne Feinstein’s response to CIA Director John Brennan’s speech yesterday.

Cody Poplin shared this week’s Throwback Thursday, which included the six declarations of war from World War II.

Paul Rosenzweig alerted us to Sony’s counterattack against hackers.

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 Onion’s Minotaur Video

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Friday, December 12, 2014 at 12:17 PM

No news source in any medium captures the CIA interrogation debate more fully than this video from the Onion, which bears reposting this week:

The SFRC Vote on the Menendez AUMF

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Friday, December 12, 2014 at 12:15 PM

The Senate Foreign Relations Committee voted 10-8 yesterday to approve Senator Menendez’s draft AUMF for ISIL.  As endorsed by the Committee, the bill:

— Authorizes the President to use force against ISIL or against “associated forces or associated persons”  (a phrase defined to mean means “individuals and organizations fighting for or on behalf of [ISIL] or a closely-related successor entity, for the purposes of action authorized to be taken under this joint resolution).

— Does “not authorize the use of the United States Armed Forces for the purpose of ground combat operations,” with a few exceptions.

— Has a three-year sunset provision

— Requires the President to report to Congress “at least once every 60 days on specific actions taken pursuant to this authorization.”

— Sunsets the 2001 AUMF after three years and repeals the 2002 AUMF

— States that “[t]he provisions of this joint resolution pertaining to the authorization of use of force against the Islamic State of Iraq and the Levant shall supersede any preceding authorization for the use of military force.”  (This is an odd formulation; I think it simply means that Congress removes any possibility of relying on the 2001 AUMF to go after ISIL.)

This Bill will not become law.  Rather, “[t]he committee’s vote is an eleventh-hour attempt by Democrats to force a debate on war authorization before lawmakers adjourn for the year.  No major action on war authorization is expected until next year, when Republicans will control both chambers.”  The Bill that emerges from the Republican-controlled SFRC will look different – though it is impossible to predict how, or even in what direction.

Senator Feinstein Rebuts CIA on Twitter

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Friday, December 12, 2014 at 10:45 AM

Yesterday, as CIA Director John Brennan spoke about the release of the Senate Select Committee on Intelligence’s Study of CIA Enhanced Interrogation Techniques, Senator Dianne Feinsten (D-CA) live tweeted her responses. You can find the full set of tweets from the Senate Intelligence Committee’s Chairman below the break.

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The UK’s Article 51 Letter on Use of Force in Syria

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Friday, December 12, 2014 at 9:53 AM

Several weeks ago, the United Kingdom submitted an Article 51 letter to the Security Council providing notice that the UK was taking measures against ISIS “in support of the collective self-defence of Iraq as part of international efforts led by the United States.”  The letter further stated that the UK “fully supports these international efforts, whose purpose is to end the continuing attack on Iraq, to protect Iraqi citizens, and to enable Iraqi forces to regain control of Iraq’s borders by striking ISIL sites and military strongholds in Syria, as necessary and proportionate measures.”

What is notable about the letter is that it implicitly adopts the “unwilling or unable” test.  In determining whether the use of force in Syria was “necessary” to defend Iraq, the UK must have concluded that Syria itself could not or would not suppress the threat posed by ISIS, and that in such circumstances it is permissible under international law to use force in collective self-defense in a third state’s territory against a non-state actor, even when that third state is not supporting the non-state group.  (It remains possible that Syria secretly has given the United States and other coalition partners consent to use force in Syria, though there have been no indications of this in the press.)

Several other facts are worth keeping in mind.  First, states such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)  Second, Iraq vocally has supported strikes within Syria.  Third, Syria itself has not objected to these intrusions into its territory.  In view of these developments, the “unwilling or unable” test is starting to seem less controversial and better settled as doctrine.  Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

Dianne Feinstein Responds to Director Brennan

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Thursday, December 11, 2014 at 9:45 PM

The text is here:

Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today released the following statement after CIA Director John Brennan spoke about the CIA’s detention and interrogation program:

“CIA Director Brennan’s comments were not what I expected. They showed that CIA leadership is prepared to prevent this from ever happening again—which is all-important.

“I watched today’s press conference closely and agree with many of the things Director Brennan said. He discussed the context of the detention and interrogation program that started shortly after the horrific attacks on 9/11, as well as the vital work being done by the CIA workforce. He is right on both counts.

“Director Brennan also acknowledged that the CIA was not prepared to effectively manage this program when it started and that many mistakes were made as it was implemented. I believe that the Intelligence Committee’s report demonstrates these facts beyond dispute, and I am pleased the director announced some of the reforms that have been and will be implemented at the CIA.

Throwback Thursday: Pearl Harbor and Declaring War

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Thursday, December 11, 2014 at 9:30 PM

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

This last Sunday—December 7th—marked the 73rd anniversary of the surprise Japanese attack on the United States Naval Base at Pearl Harbor. It would be, as President Franklin D. Roosevelt accurately predicted, a day that would live in “infamy.” The President’s denunciation came as he stood in a combined session of Congress to request that Senators and Representatives recognize the existence of a state of war between the United States and Imperial Japan—and, in addition, authorize him to prosecute the war to its fullest extent. That declaration, and the subsequent declarations against Axis powers, mark the last occasion on which the United States declared war.

The anniversary prompts a reconsideration of the six declarations of war passed by Congress during World War Two. The subject is relevant, given Senator Rand Paul’s draft legislation regarding the use of force against the Islamic State—the only recent proposal, of which we are aware, that includes a congressional declaration of  war. (On Lawfare, Jack Goldsmith covered Senator Paul’s draft declaration, and accompanying authorization of force, here and here.)

Without further ado, here are the six World War II declarations—the text of which comprise this week’s truncated #tbt.   Read more »

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Four

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Thursday, December 11, 2014 at 4:25 PM

In this post, we proceed with Lawfare’s ongoing, side-by-side comparison of the SSCI Study’s key findings, and responses to them by both the SSCI Minority as well as the CIA.

By way of reminder, the SSCI’s Study made twenty findings and conclusions about the CIA’s detention and interrogation practices after 9/11—twelve of which the blog has summarized so far, along with any corresponding Minority and CIA remarks.

A breakdown of findings 13-16 can be found below, the lone goal being to isolate areas of dispute as between the SSCI, its Minority, and the CIA.

Read more »

Today’s Headlines and Commentary

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Thursday, December 11, 2014 at 1:40 PM

Today, the New York Times brings us news that when the CIA first received detention and interrogation authorities in 2001, the Agency initially planned to create a system of worldwide jails that would abide by the standards of the U.S. Bureau of Prisons. The conditions were to mirror those as maximum security prisons around the United States and interrogations would proceed in accordance with the U.S. Army Field Manual. The report suggests that then Secretary of Defense Donald Rumsfeld scrapped a plan that would have established the jails on U.S. military bases, which forced the CIA to begin planning “black sites.”

The Times also brings us news that the Department of Justice has told a court that documents from an earlier DOJ investigation into the torture and detention of detainees by the CIA, which includes summaries of interviews with about 100 witnesses, should remain secret. The Obama administration claims that releasing the documents may affect the candor of law enforcement deliberations about whether or not to bring criminal charges in other cases in the future.

The Washington Post reports that lawyers for 9/11 suspects held at Guantanamo believe that the release of the Senate’s CIA interrogation report could help their cases, providing new leverage to demand the release of classified material. The attorneys have suggested that the “fact that these men were tortured…precludes the imposition of the death penalty.”

One day after the SSCI report, the United States also announced that it has closed Bagram prison, its last detention facility in Afghanistan. At its peak, Bagram held hundreds of detainees, with a U.S. court finding that two detainees had been beaten to death in 2002.

That news comes as Afghan President Ashraf Ghani expressed shock at the torture revelations in the Senate’s Study. In a public statement, Ghani assured Afghans that recent security agreements with the United States would not allow Americans to maintain prisons or make arrests in Afghanistan, noting that “we are entering an era of national sovereignty where we will be the only legitimate authority.” The New York Times has more on Ghani’s statement.

Dick Cheney continues to defend the CIA’s interrogation tactics, calling the Senate’s report “full of crap,” and asking “what are you prepared to do to get the truth against future attacks against the United States?” Fox News reports that the former Vice President also refuted claims that President George W. Bush was kept in the dark, noting that “he knew everything he wanted to know and needed to know.” Cheney admitted that he had not read the report. (We’ll just leave that last line there to linger.)

In the White House, President Obama has found himself caught in the middle of a dispute between managing the Central Intelligence Agency and pleasing his fellow Democrats, putting the president on the defensive, writes the New York Times. Senator Mark Udall has called on Mr. Obama to “purge” the agency.

In the Daily Beast, Shane Harris and Tim Mak discuss what the torture report kept hidden, highlighting how a lack of detail regarding the role of dictatorships in Syria and Libya, as well as the lack of information about who really gave the torture authority, undercuts critical issues the report doesn’t address.

Bloomberg covers an important story: emails from CIA officers reveal that many of the balked at the harsh interrogation techniques, with one email about the interrogation of Abu Zubaydah reading, “several on the team profoundly affected…some to the point of ears and choking up.”

Back in the Daily Beast, Kimberly Dozier reports that Jose Rodriguez, the head of the CIA’s Counterterrorism Center at the time of the program, said that he was unaware of some of the Agency’s worst abuses until the release of the Senate’s report. According to Rodriguez, he had “no knowledge of people forces to stand with broken bones” and that he was not aware that detainees were subjected to rectal feedings.

Bloomberg notes that CIA officials linked to torture could face possible prosecution and a future stuck in US should international courts seek to charge them. And while the New York Times reports that such cases are unlikely to materialize, they are certainly within the realm of possibility. Bloomberg highlights a November 2009 conviction in absentia of 23 Americans in an Italian court. The court seized the CIA station chief’s retirement home, selling it to pay a damages award to a rendered detainee and his wife.

The New York Times also carries a story on the architects of the CIA’s interrogation program and how they drew on the lessons of psychology to induce “learned helplessness.” The two contract psychologists attempted to create techniques that would cause a detainee to lose his “sense of control and predictability.” Another psychiatrist, Dr. Charles A. Morgan, who works at the University of New Haven is quoted saying, “they misread the theory.” DefenseOne has more on what your brain looks like on torture. Vice News carries an interview with one of the architect’s, James Mitchell. And Foreign Policy describes how after 9/11, the CIA ignored its own lessons in turning to torture.

Conor Friedersdorf comments on the “graywashing” of CIA torture and how its far less defensible than moderate critics seem to realize. In the Washington Post, David Ignatius tells us that the torture report’s most glaring weakness is that it ignores Congress’s own failure to oversee the CIA.

DefenseOne tells us that Senator Carl Levin is leaving Congress disappointed the NDAA doesn’t do more.

Moscow seized on the release of the CIA report and demanded that those responsible for the Agency’s interrogation and detention program be “brought to justice.” The New York Times, which notes that the Kremlin is “often castigated” by Washington over its human rights record, has more on the statement.

Zacarias Moussaoui, who is known as the “20th hijacker” in the Sept. 11, 2001 terror attacks, has asked a Florida federal judge to transfer him to Guantanamo Bay. According to Al Arabiya, Moussaoui is requesting the transfer because he says he has been assaulted by guards and other inmates at the Florence “Supermax” prison he is currently jailed in.

Speaking of Guantanamo, the Miami Herald reports that a Yemeni, Abdel Malik Wahab al Rahabi, has been cleared for release from the prison facility. Rahabi was one of the first 20 detainees to arrive at the facility, but was never charged.

In a grim assessment of the Syrian Civil War, Brett McGurk, a senior State Department official, said yesterday that the Syrian rebels are never going to militarily defeat Bashar al Assad. Foreign Policy carries his comments.

Relatedly, the Wall Street Journal has details on a recurring fissure in the anti-ISIS coalition; namely, whether the al Assad regime should be directly targeted.

At DefenseOne, Bernard Gwertzman reports on Russian President Vladimir Putin’s recent state of the nation address. He quotes CFR’s Stephen Sestanovich, who said that it was an “eclectic, even incoherent, speech” that did not adequately address “some of the big economic problems that the country faces.”

Reuters carries comments made recently by Indian Prime Minister Narendra Modi, who said that Russia will remain India’s top defense partner in the coming years. The two countries recently reached an agreement wherein state-owned Rosatom will build 12 nuclear reactors for New Delhi; major oil company Rosneft also signed a 10-year crude oil supply deal with Essar Oil in the past few weeks.

The Star in Canada reports that the Canadian Supreme Court just released a potentially-controversial ruling that will allow police to search cell phones upon arrest.

The Turkish Foreign Minister, Mevlut Cavusoglu, will travel to Iran on December 17th at the behest of Iranian Foreign Minister Mohammed Javad Zarif, Hurriyet confirms. The talks take place as Ankara and Tehran find themselves on “opposite pages” over the Syrian Civil War and other regional issues.

Add hip-hop to the list of weapons the US has tried to use against Cuba’s government. In an article published yesterday, the Associated Press asserts that for more than two years, a US agency “secretly infiltrated” Cuba’s underground music scene and attempted to use unwitting rappers to spark a youth-based movement against the regime in Havana.

Israeli website Ynetnews reports that party strongman and former Interior Minister Gideon Sa’ar will not challenge Israeli Prime Minister Binyamin Netanyahu for the Likud’s helm. Sa’ar’s statement comes after PM Netanyahu successfully lobbied the party bureaucracy to push up internal elections from January 6th to December 31st. The move was largely seen as a way of blunting Sa’ar’s election chances by curtailing his ability to drum up party support.

Israeli, Palestinian and Jordanian pathologists have offered conflicting reports as to how a high-ranking Palestinian Authority Minister died recently at a West Bank demonstration. While Israeli doctors concluded that Ziad Abu Ein died of a heart attack, with stress as a possible contributor, Palestinian and Jordanian doctors say that the PA Minister for the Settlements/Wall died of violent causes, and not natural ones. The New York Times has more on the event, which could have serious ramifications for Israel-PA security cooperation.

Additionally, the Times features an interactive map on the other ISIS: Nigerian militant Islamist group Boko Haram.

The Times also notes that the city government of Urumqi, capital of China’s restive Xinjiang province, has officially banned wearing Islamic veils in public.

DefenseOne is out with a list of the top 10 cybersecurity threats China faced this year.

Defense News reports that DARPA sees a future in “transparent computing.” The Defense Advanced Research Projects Agency is trying to mitigate the “sneakiest” and “most persistent” cyber threats and is offering up to $60 million to develop ways of doing so.

Drones beware. DefenseOne provides an update on the Navy’s Scary New Death Ray: the system is doing better than predicted.

ICYMI: Yesterday, on Lawfare

Wells Bennett, Cody Poplin, and Ben Bissell shared part 3 in Lawfare’s review of the findings, conclusions, and areas of dispute in the SSCI Study, Minority and CIA comments.

Jack Goldsmith offered his reactions to Secretary Kerry’s testimony in front of the SFRC on the need for a new AUMF.

Ben Wittes also brought us a few thoughts on the SFRC AUMF hearing.

Paul Rosenzweig shares news of Congress’s attempt to stop the IANA transition and how it will most likely fail.

Well Bennett provided video of Senator Mark Udall’s (D-CO) remarks on the SSCI Study of CIA Interrogation and Detention.

Stewart Baker linked us the this week’s Steptoe Cyberlaw Podcast, which features an interview with Shane Harris.

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.

CIA Director Brennan Delivers a Statement on SSCI Report

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Thursday, December 11, 2014 at 1:28 PM

At approximately 1:40 p.m., John Brennan, the Director of the Central Intelligence Agency, will make a statement on the SSCI’s detention and interrogation study.  Here’s the CSPAN video:

Here is the text of Brennan’s remarks:

It was 8:46 a.m. on the morning of September 11th, 2001, when the North Tower of the World Trade Center in New York City was struck by an aircraft commandeered by al-Qa’ida terrorists. Seventeen minutes later, the clear blue skies over Manhattan were pierced yet again by another hijacked aircraft, this one tearing into the adjacent South Tower.

At 9:37, the Pentagon—the proud symbol and heart of our Nation’s military—suffered a similar attack. And at 10:03 a fourth plane shattered the serene landscape of Shanksville, Pennsylvania, as its passengers refused to allow al-Qa’ida to use one more plane as a missile to strike our Homeland.

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