Skip to content

Today’s Headlines and Commentary

By and
Friday, August 15, 2014 at 2:21 PM

Ukrainian artillery forces have shelled a Russian military convoy moving inside Ukraine this morning, reports Reuters.Yesterday, a series of Russian armored personnel carriers crossed over the border into Ukraine, providing, according to the Guardian, “incontrovertible evidence of what Ukraine has long claimed – that Russian troops are active inside its borders.” Reuters also shares that Russia has stationed over 40,000 troops near the Ukrainian border. Ironically, in a speech yesterday, Russian President Vladimir Putin “struck a conciliatory note and called for peace,” says the AP.

Yesterday, Iraqi Prime Minister Nouri al-Maliki announced he will step down, allowing Haider al-Abadi to assume the role. The Wall Street Journal reports that “the surprise move deflates a potential [political] crisis.” According to Reuters, Sunni Iraqi leaders have announced their willingness to join a new, more inclusive government, given certain conditions.

Reuters also informs us that the U.S. has pledged to help the governor of Iraq’s Anbar province rout Islamic State militants from the region. While Governor Ahmed Khalaf al-Dulaimi confirmed the agreement, Deputy State Department spokesperson Marie Harf shared no details.

Yesterday, President Obama claimed credit for halting a potential genocide on Iraq’s Mount Sinjar. The Associated Press reports that U.S. airstrikes on Islamic State targets will continue, though further humanitarian airdrops no longer appear likely. According to the AP, “a U.S. team who spent Wednesday on the mountaintop reported numbers far smaller and circumstances less dire than feared.” About 4,500 people remain on Mount Sinjar. The Washington Post and the Daily Beast examine how U.S. estimates regarding the situation atop Mount Sinjar changed so rapidly.

Meanwhile, the Post shares news that the Islamic State is expanding its reach beyond Iraq and Syria. According to the Guardian, the U.S. is set to provide Lebanon with additional arms and supplies to help combat the threat posed by Islamist militants. The Daily Beast considers the intelligence challenges that the Islamic State poses for U.S. officials.

In an opinion piece in the Wall Street Journal, former National Security Advisor Gen. James L. Jones (ret.) offers his advice for handling the situation in Iraq.

In neighboring Syria, the rebel-held city of Mleiha was recaptured yesterday by President Bashar al-Assad’s forces. Reuters provides details.

As a new five-day ceasefire holds between Israel and Hamas, the Wall Street Journal examines the divide between the demands of Israeli and Palestinian negotiators working on a long-term agreement in Cairo. Meanwhile, Israel responds to the beginnings of a U.N. war crimes investigation. The New York Times has details.

More troubling news out of Afghanistan: Radio Free Europe is reporting that an Afghan regional security chief has ordered the execution of all detained militants. The order violates the Geneva Convention on the treatment of prisoners of war, but the commander said that it was his “own, personal” decision after several militants that were transferred for trial had eventually been set free and returned to combat.

In Pakistan, opposition leader Imran Khan has claimed that the convoy of protesters he is leading from Lahore to Islamabad was fired upon by pro-government mobs. The government has insisted that no shots were fired and promised an investigation. Reuters has the story, as tens of thousands of protesters approach the Pakistani capital.

Away from the capital, Pakistani security forces fought off two militant attacks against two separate military bases near Quetta in western Pakistan. Security forces claimed that 10 militants were killed while several security officials were injured. A wing of the Pakistani Taliban claimed responsibility for the attack, with a spokesman for the group saying “there will be more attacks in the coming days.” The Times has more.

ABC News reports that al Qaeda has issued a more urgent plea calling on the family of American hostage Warren Weinstein to pressure Washington to negotiate a prisoner exchange for his release. Weinstein, a former USAID worker, is suspected to be held against his will by al Qaeda in Pakistan.

Al Qaeda in the Arabian Peninsula (AQAP) has called on Islamic militants to target the United States following the U.S. air campaign against ISIS in Iraq, according to Reuters.  The statement, released via Twitter, called on “every Muslim, especially anyone who can enter America, to champion his brothers by going to war against America with everything he can.” AQAP, which is based in Yemen and has been subject to an extensive U.S. drone campaign, also offered tactical advice to “brothers” in Iraq. The statement tells them to “be careful when dealing with telephones and internet networks, and to disperse in fields if there is a heavy concentration of planes.”

The statement comes as Reuters also reports that three Yemeni soldiers and two al Qaeda militants were killed on Thursday, when security forces disrupted a car bomb attack. Separately, security officials claimed to have also unearthed a plot to assassinate Yemen’s former president Ali Abdullah Saleh. Saleh has already survived two previous assassination attempts. Reuters has the details.

In an opinion in the Post, Charles Krauthammer considers a quote from Hillary Clinton’s interview with Jeffrey Goldberg last week: “Great nations need organizing principles, and ‘Don’t do stupid stuff’ is not an organizing principle.” Krauthammer notes that “the only consistency [in President Obama’s foreign policy] is president’s inability (unwillingness?) to see the bigger picture.” Yet, James Fallows at the Atlantic presents two different ways of looking at the Clinton interview – neither of which he finds particularly appealing for the future of the country.  And in case you missed it, on Lawfare, Jack has weighed in with his own thoughts on the Foreign Policy Nirvana fallacy.

Despite global focus on the crises in the Middle East and Ukraine, President Obama’s “Asia pivot [is still] on track,”according to the Hill. Defense Department spokesperson Rear Adm. John Kirby announced, “We’re very committed to that region.”

Work has begun on a new Marine Corps runway on Okinawa, reports Stars and Stripes.  The project is considered part of the U.S. Pacific realignment.

On that subject, the Wall Street Journal has a review of the ongoing transition of U.S. personnel to a base outside of Darwin, Australia, where seven nations are currently staging one of Asia’s biggest air combat exercises.

Boko Haram has abducted dozens of boys and men in Nigeria, Reuters tells us. Following a raid on a small fishing village, the terrorist group loaded the hostages onto trucks and drove off with them. 97 people remain missing.

The Wall Street Journal reports that due to the Ebola outbreak, the State Department has begun pulling family members of embassy personnel out of Sierra Leone.

U.S. District Judge Gladys Kessler has ordered Guantanamo Bay authorities to answer questions about the force-feeding of detainee Mohammed Abu Wa’el Dhiab, McClatchy reports. Specifically, Judge Kessler has requested to know whether the insertion of the tube is painful, and if it is safe to leave the tube in for three days at a time.  The order also asks why Dhiab was not allowed to use a wheelchair for transport to and from enteral feedings.

Yesterday, in a hearing on the 9/11 case, attorneys for five Guantanamo detainees sought details regarding the FBI’s questioning of defense team members. Army Col. Judge James Pohl did not rule on the matter. At the hearing, the accused wore Palestinian attire in support for the people of Gaza. Carol Rosenberg of the Miami Herald has the story.

The New Republic tells us that Khalid Sheikh Mohammed tried to send a letter to President Obama on the current crisis in Gaza, but the government refused to allow him to do so. Navy Captain Tom Gresback could not confirm whether detainees in Camp 7 have the right to send mail. According to TNR, Mohammed’s attorney noted the irony that his client cannot write to the president since “the president after all, under the Military Commissions Act, is the person who is required to sign off on the execution of any death warrant that is issued as a result of the culmination of these proceedings.”

Meanwhile, the AP reports that Mr. Mohammed’s civilian defense attorney, David Nevin, has said that he may withdraw from the case unless the judge orders the government to provide details about FBI investigations of defense team members.

You can follow the daily Guantanamo proceedings at the Lawfare Events Coverage page which is updated daily. shares that yesterday, Maj. Gen. Harold Greene, the highest ranking U.S. officer to die in combat since the Vietnam War, was buried in Arlington Cemetery.

In September, the North American Treaty Organization (NATO) is set to amend its charter in order to deal with issues of cybersecurity. According to U.S. News and World Report, while cyberattacks will now be covered by Article 5, the alliance’s mutual defense agreement, there will be no set definition for when a cyberassault necessitates a collective response. International Business Times considers the challenges that cyber poses for NATO.

To combat hackers, law enforcement personnel have begun treating them like organized crime gangs, employing techniques used against the Mafia. U.S. News and World Report shares more.

The Arab Bank trial opened yesterday in the United States, wherein the plaintiffs allege that Arab Bank PLC transferred millions of dollars for Hamas, knowing that the group was likely to use the money to finance terrorism. The suit was filed under the Antiterrorism Act of 1990. The Wall Street Journal has details.

Bloomberg informs us that on September 24, the Pentagon is expected to release new rules for government contractors on the disclosure of network breaches.

A report from the Federal Bureau of Investigation’s Inspector General (IG) held that the Bureau has made better use of national security letters since the IG’s last findings. However, further improvements are still necessary. The AP has the story.

Amy Schafer of Task and Purpose offers ideas for bridging the U.S. civilian-military divide.

We leave you with a note from the the Economist, which writes on the cold realism of America’s defense secretary.

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.

9/11 Case Motions Hearing: 8/14 Session

Friday, August 15, 2014 at 11:28 AM

Working off transripts, Lawfare’s Matt Danzer has a rundown of yesterday’s pre-trial proceedings in the 9/11 case.  We’ll post his dispatches in our “Events Coverage” section, while linking to them as they come in throughout the day.  Keep your eye on this space.

8/14 Motions Session #1: Conflicts, Conflicts Everywhere

8/14 Session #2: On Severing Al-Hawsawi



Does Maliki Have a Valid Constitutional Argument (and Should We Care)?

Thursday, August 14, 2014 at 5:08 PM

Nouri al Maliki seems to have backed down from his efforts to defend with force or threats his role as Prime Minister of Iraq. But he continues to press a second approach: a court challenge to the constitutionality of the decision by the Iraqi President to charge another member of Maliki’s party as the Prime Minister-designate. Does Maliki have a valid constitutional claim, and, if he does, how is that claim likely to play out?

It’s useful to review briefly Iraq’s constitutional provisions on the formation of the Government. Article 76(1) of the Constitution states that the Iraqi President “shall charge the nominee of the largest Council of Representatives bloc with the formation of the Council of Ministers within fifteen days from the date of the election of the President of the Republic.” The Iraqi Parliament (also called the Council of Representatives or COR) elected Fouad Masoum as Iraq’s President on July 24. So, according to Article 76, by August 8 Masoum was required to charge the COR nominee from Dawa (the biggest bloc in the COR) with forming a government. He didn’t charge a nominee until August 11, so technically that violated the constitution. Maliki seems to be arguing that he clearly was the leader of Dawa, and so Masoum should have charged him with forming a Council of Ministers by August 8.

The constitution is unclear about what happens if the largest COR bloc has not identified “the nominee” under Article 76 by the date identified. One could read the text as requiring the bloc itself to identify its preferred nominee, or one could conclude that the President himself has an obligation to select that nominee. The former seems to be a better reading, given that the bloc itself is best positioned to decide who it wants as Prime Minister and who is best suited to assemble a successful Council of Ministers. Here, Masoum could argue that there was no clear nominee within Dawa, so (through no fault of his own) he was unable to issue such a charge within the date fixed by the Constitution. He might also argue that it could exceed the President’s powers to insist on identifying a nominee for Prime Minister who lacked the support of his own party. Read more »

9/11 Case Motions Hearing: August 13 Session

Thursday, August 14, 2014 at 12:43 PM

A reminder: Lawfare won’t be traveling to Fort Meade to take in, almost live and via CCTV broadcast, the rest of this week’s pretrial hearing in the 9/11 case.  We will thus resort to our backup coverage format, by posting digests of each prior day’s events in our “Events Coverage” section. We thus commence with Matt Danzer’s rundown of yesterday’s session—wherein the prosecution successfully urged the military judge to rescind a prior order, which had severed the case against Ramzi Binalshibh from that pending against four other accused 9/11 plotters. A link to Matt’s post is here.

Today’s Headlines and Commentary

Thursday, August 14, 2014 at 12:31 PM

The Associated Press reports that at least four children were killed in clashes between Iraqi troops and Sunni militants west of Baghdad today, a day after the U.N. declared the humanitarian crisis in Iraq a Level 3 Emergency. Late yesterday the New York Times reported that Defense Department officials had confirmed that U.S. airstrikes and Kurdish fighters had broken the Islamic militants’ siege of Mount Sinjar. Thousands of desperate Yazidis remain trapped on the mountain in northern Iraq, reports the Washington Post, but both the U.S. and Britain are claiming the situation is better than expected and backing down from plans to launch a rescue mission, says the Guardian.
Over at the Times’ “Room for Debate” blog, Joe Felter, Rebecca Grant, James Franklin Jeffrey and Michael Wahid Hanna weigh in on whether airstrikes are enough to take on the Islamic State. The AP notes that the Obama administration remains deeply divided, both as to the extent that the Islamic State threatens Americans and as to the necessity of military intervention. The Washington Post muses on the political and military constraints that have resulted in a disconnect between descriptions of the threat posed by the Islamic State and the “decidedly modest” U.S. military campaign:

Among them are no clear military strategy for reversing the group’s recent territorial gains, a war-weariness that pervades the Obama administration and the country, and significant uncertainty about the extent to which the Islamic State is prepared to morph from a regional force into a transnational terrorist threat that could target Europe and the United States.

The Wall Street Journal notes that the struggle to repel Islamist insurgents threatening Kurdish territory in northern Iraq have put the U.S. and Iran on the same sideForeign Policy‘s “The Complex” writes that the efforts of the Kurds’ “sophisticated and well funded influence machine in Washington” have paid off with the White House’s announcement that it would conduct airstrikes over Kurdish territory and provide weapons and ammunition, although the ultimate goal—U.S. support for an independent Kurdish state—remains elusive.
Convoys with thousands of anti-government protestors calling on Pakistani Prime Minister Nawaz Sharif to resign have begun traveling from Lahore to Islamabad; the mobile phone network has been partially suspended and tens of thousands of security personnel have been deployed in the capital and in cities across Punjab province, reports the BBC.
Speaking through Egyptian mediators, Israel and Hamas have agreed to five more days of truce, extending the 72-hour ceasefire ticking down on Wednesday night.  The pause did not have immediate practical effect: even it after it nominally commenced, a series of rockets struck southern Israel, prompting retaliatory air strikes in Gaza. The Guardian has details.
The White House and State Department officials were surprised to learn last month that the Israeli military had been securing ammunition from the Pentagon without their approval; the WSJ reports that the Obama administration has since tightened munitions control but suggests that the episode reflects fast-fraying relations between President Obama and Israeli Prime Minister Benjamin Netanyahu.
Hundreds of thousands of Nigerians are searching for sanctuary from the Boko Haram, reports the WSJ, and the resulting forced migration is expected to create problems for everything from public services to food security.
In the face of exploding militia violence, Libya’s newly elected parliament has requested an “international intervention” from the U.N., reports the AP by way of ABC.
Scott Campbell, director of the UN Joint Human Rights Office in the Democratic Republic of Congo, describes the ongoing war crimes trial of Lt Col Bedi Mobuli Egangela as a “a test case” for military justice in the country, writes the BBC.
Reuters reports that, for the first time, artillery shells hit close to the center of the separatist-seized city of Donetsk on Thursday; meanwhile a caravan of 280 trucks left Moscow to take “aid” to the Luhansk region, in what the Ukrainian government fears could become a covert military intervention.
Today in international tantrums: The Guardian notes that North Korea test-fired five missiles into the sea today, just as Pope Francis began a visit to South Korea. Coincidence? Probably not. The show marks the latest in what the AP calls North Korea’s “long history of making sure it is not forgotten during high-profile events in the South.”
The first civil trial against a bank under the Anti-Terrorism Act is set to begin today in a federal court in Brooklyn. Arab Bank is being sued by 297 plaintiffs for holding an account for Osama Hamdan, a Hamas spokesman, in what the Times describes as a controversial suit that has split the Obama administration, drawn the criticism of the government of Jordan (where the bank is headquartered) and sent a shiver through a banking industry increasingly wary of high-risk transactions.
Back in April, State Department official John Napier Tye filed a whistle-blower complaint contending that NSA’s practices abroad violated Americans’ Fourth Amendment rights. The Times reports that Tye is now speaking publicly as Congress considers amending the Foreign Intelligence Surveillance Act, but the proposed changes would not change the agency’s overseas abilities as authorized by Executive Order 12333. Based on documents and interviews with dozens of officials, the Times has published this chart detailing how 12333 rules operate to allow the incidental collection of Americans’ communications.
Violent protests in Ferguson, Missouri over the police shooting of unarmed teenager Michael Brown continue to dominate the headlines. Al Jazeera America reports that the issue may soon be brought directly to the attention of the international community: Ron Davis, the father of a black teen shot dead at a gas station when he and his friends refused to lower the music in their car (prosecution of the killer resulted in mistrial), is scheduled to appear at the 85th meeting of the Committee on the Elimination of Racial Discrimination in Geneva to ask Washington to stop the “criminalization of race” in America.
Lastly, in domestic drone news: The FAA has just named Virginia Tech one of just six operational drone test sites in the country. That’s the word from Richmond-Times Dispatch. For drone watchers, the Times has also run a piece on how archaeologists the world over have turned to drones to explore endangered sites, converting the drone-captured bird’s-eye view into 3-D images and highly detailed maps that can then be used to legally register the ancient sites’ protected boundaries.

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

Al-Nashiri Order Dismissing Charges Relating to French Oil Tanker

Thursday, August 14, 2014 at 10:50 AM

We flagged news coverage of this important military commissions ruling earlier, when the item in question was not yet available.  You’ll now find the real thing here (and here).

The military judge’s order seemingly came down to this: the prosecution had asserted—but ultimately did not submit proof of—facts that, in its view, supported military commission jurisdiction over charges regarding an attack on the M/V Limburg, a French oil tanker.  According to Judge Vance Spath, that precluded the government from carrying its burden on the motion to dismiss:

8. The Commission need not reach any conclusions of law based on both parties’ legal arguments raised in their written filings and oral arguments. While the facts argued by the Prosecution may be easily susceptible of proof, the Prosecution failed to request an evidentiary hearing and offer any documentary or testimonial evidence into the record to factually support their assertion of jurisdiction as to the charges and specification involving the MV Limburg. The Prosecution has thus failed to meet its burden of persuasion in this interlocutory matter. (See R.M.C. 905c(2)(B).)

Cue the United States’ motion to reconsider in five, four, three . . .

Plaintiffs file response in Klayman v. Obama

Thursday, August 14, 2014 at 9:54 AM

Yesterday plaintiffs-appellees filed their response in Klayman v. Obama, the Section 215 metadata collection case up on appeal in the D.C. Circuit. As expected, most of the brief is dedicated to arguing that (1) Judge Richard Leon was correct in barring the government from collecting any Section 215 metadata associated with the personal Verizon accounts of plaintiffs Larry Klayman and Charles Strange, and requiring the government to destroy any such metadata already in its possession. The plaintiffs also contend that (2) the court erred in denying plaintiffs’ motion for a preliminary injunction with respect to the government’s allegedly discontinued internet data surveillance, and in denying plaintiffs’ motion with respect to plaintiff Mary Ann Strange, and (3) the district court should have reached a decision on plaintiffs’ First and Fifth Amendment claims.

Key to Judge Leon’s December 16, 2013 ruling in favor of the plaintiffs was his conclusion that the Supreme Court’s decision to uphold the installation and use of a pen register in Smith v. Maryland was not controlling for purposes of determining the constitutionality of modern bulk telephony metadata collection. In their new filing, plaintiffs argue that the Supreme Court recently vindicated Judge Leon’s reasoning with its June decision in Riley v. California, 134 S.Ct. 2473 (2014), in which it held that police officers must generally obtain a warrant before searching a cell phone seized incident to arrest.

It should be noted that the Riley decision mentions Smith only once—specifically, the Court rejects the government’s reliance on Smith to support the argument that officers should always be able to search a phone’s call log, since there was no dispute in Riley that the policer officers had engaged in a search (in contrast with the pen register use deemed a non-search in Smith), and because call logs typically contain more than simply phone numbers. But Klayman and crew seek to extend the Court’s general reasoning in Riley to the extent that its ruling in that case “clearly lays the foundation for what is to come in the present case—that is, that past Supreme Court rulings, around the time of Smith, analyzing unlawful police and government searches, do not apply to the unconceivable circumstances of today.”

For background, see our summary of the government’s opening brief here.

Countries Without Conflicts: Notes from Iceland

Wednesday, August 13, 2014 at 7:40 PM

It’s hard to imagine a place in the world where one would feel less threatened by geopolitics than Iceland. It’s an island. It’s pretty far from anywhere else. And it has very few people (the entire country has a population of only 330,000). It has not had any kind of real international conflict since the 1970s-era Cod Wars with Great Britain, which—despite the name “wars”—mostly involved fishing boats and coast guard and naval vessels ramming each other and cutting fishing nets. ISIS and Syria and Iraq and all the other problems that afflict the world could not feel further away. When you’re bicycling in Iceland, as I’ve been the past few days, the only security threats worth talking about are cars. Volcanoes are a much bigger issue here than is Al Qaeda.

There’s something about countries without conflicts—countries where violent conflict is all but unthinkable—that makes them different fundamentally from countries that face security problems. I don’t walk around Washington fearing Al Qaeda or worrying about Vladimir Putin’s impact on me. But an American cannot help but be concerned about the world’s capacity to embroil his country in its most difficult problems. Its problems can come to American shores. And more frequently, they can drag America even to those regions of the world from which presidents campaign on extricating our forces.

By contrast, an Icelander need have no fear of Al Qaeda (what sort of terrorist would go after Reykjavik?). And whatever happens in Iraq, in Somalia, or in Yemen, an Icelander need not fear it will involve her country. The reason is not chiefly the sort of pious anti-interventionism that keeps many European countries whining about U.S. security policies and overseas military activities while simultaneously living comfortably under the American security umbrella. That all may be there too, but the real issue is just size. With a population roughly half that of Washington DC, Iceland is just not big enough to play any kind of role in world affairs—particularly now that the Soviet Union is gone and the U.S. military base at Keflavik is closed. Yes, it’s a NATO member. But it’s a NATO member that’s not anywhere near Russia and faces no chance of attack from any external threat and zero capacity to project military force against anyone else. Lone wolves, of course, can show up anywhere—even in Norway—but one cannot plan for them, and one does not price the possibility of a such a person into one’s emotional experience of the world.

The result is a fully modern country that is almost completely isolated from the military and security problems of the rest of the world; think of a country almost as remote and with just seven percent of the population of . . . New Zealand. It’s hard to imagine a place where one would be safer.

Ever since I got here, I’ve been trying to imagine what it would be like to grow up and live in a country for which security is simply not an issue—a country for whom external attack is as unthinkable as the external projection of force. I can’t do it. Perhaps it is the emotional training of a person who was born during the Vietnam War and has lived through Grenada, Panama, Iraq, Kosovo, Iraq, 9/11, Afghanistan, Iraq, Libya, now, once again, Iraq—and countless other controversial American deployments of force in between. Perhaps it is the intellectual training of a person who works on questions of security and law—a vocation which necessarily assumes that security problems exist and require management. It may also be conditioned by the fact that living in urban America necessarily involves the contemplation of violence in the form of street crime. I have been mugged at gunpoint—an experience that, while not scarring by any means, does offer the occasional reminder that the world is not a safe place. Whatever combination of factors it is, I have trouble putting myself in the shoes of a polity that simply does not have to contemplate security questions, a country whose total prison population numbers (as of late last year) 152. The country was hit very hard by the financial crisis in 2008, but this absence of security concerns is an astonishing blessing which few other countries can truly claim.


Petitioner Files Opening Brief in Al Bahlul v. United States

Wednesday, August 13, 2014 at 7:34 PM

Petitioner Ali al Bahlul, the Yemeni detainee who served as Osama bin Laden’s personal assistant and public relations secretary, has just filed his opening brief in Al Bahlul v. United States, in an attempt to overturn his military commission conviction for conspiracy to commit war crimes.

In the filing, al Bahlul argues that he was tried for three inchoate domestic law crimes, none of which are offenses under international law and none of which contend that he perpetrated or had foreknowledge of a terrorist attack. Noting that the D.C. Circuit vacated his conviction on two of the charges (material support and solicitation) back in July, al Bahlul presents four reasons why his conviction on the conspiracy charge should also be vacated:

First, law-of-war military commissions can only try offenses that are plainly established under “the rules and precepts of the law of nations, and more particularly the law of war.” Ex parte Quirin, 317 U.S. 1, 28 (1942). Congress’ power to codify those offenses emanates from its power to “Define and Punish … Offenses against the Law of Nations.” Article I § 8, cl. 10. In the three cases in which the Supreme Court has upheld the legality of law-of-war military commissions, it was because at least one of the offenses charged was plainly established under international law as an offense against the law of war. Johnson v. Eisentrager, 339 U.S. 763, 786-87 (1950); In re Yamashita, 327 U.S. 1, 14 (1946); Quirin, 317 U.S. at 43. Because conspiracy does not meet that standard, a fact that the government readily concedes, Congress cannot presume to define it as such or punish it in a law-of-war military commission.

Second, law-of-war military commissions are Executive Branch tribunals that cannot encroach upon the Article III judicial power to try purely domestic crimes. Where the three Supreme Court cases to affirm the use of military commissions did so because they were being used to try law of war offenses under international law, the four Supreme Court cases to invalidate military commissions did so, at least in part, because they had attempted to usurp the jurisdiction reserved to the courts at common law. Hamdan v. Rumsfeld, 548 U.S. 557, 602 (2006) (plurality op.); Duncan v. Kahanamoku, 327 U.S. 304, 322 (1946); Ex parte Milligan, 4 Wall. 110, 121 (1866); Jecker v. Montgomery, 13 How. 498, 515 (1851). The trial of inchoate criminal conspiracies is a classic example of the exercise of the judicial power at common law. The effort to now give that power to an Executive Branch tribunal presents only the latest and most brazen challenge to the separation of powers that the courts have rejected each time it was attempted.

Third, in prosecuting Bahlul for authoring a film that made a “political argument,” App. 198, the government openly put “the thoughts, the beliefs, the ideals of the accused” on trial. App. 209. Doing so violated basic First Amendment restraints on the government’s prosecutorial power that this Court must require these commissions to obey if broadly associational domestic law crimes like conspiracy are now going to be triable by panels of military officers.

Fourth, the statute under which Bahlul was tried made alienage a condition for personal jurisdiction. By codifying animus toward a politically disenfranchised class, Congress violated the Fifth Amendment’s basic requirement for equal justice under law. This de jure segregation of criminal defendants is contrary to centuries of tradition under which citizens were not only triable, but were tried, for war crimes in the same military commissions as non-citizens.

See our archive for background and commentary on previous proceedings.

National Security Network Proposes Plan to Repeal AUMF

Wednesday, August 13, 2014 at 6:34 PM

The National Security Network has released a new report entitled “Ending the Endless War: An Incremental Approach to Repealing the 2001 AUMF.” The report suggests a series of measures to cap and eventually roll back the authorization, which it outlines in three major steps:

  • Limits in time by inserting a sunset clause to put the law on a natural course toward expiration, but keeping open the option for temporary reauthorization if necessary;
  • Limits on targeting authority through establishing a list of named enemy organization to which the authorization applies; and
  • Geographic limits by listing regions or countries where force may be employed.

The report explains:

These changes can achieve a capping effect on the war authority by limiting named enemies to those organizations already targeted pursuant to the 2001 law – the Taliban, al-Qaeda, and their specific associated forces (which have not yet been publicly named) – and by limiting authorized geographic areas to those in which operations are already occurring. Applying these limits would help prevent the expansion of conflict under a revised AUMF and keep the law as close as possible to its original purpose of pursuing those responsible for the September 11 attacks.

These same changes can also enable the rollback of the authorization over time: after authorized use of force is limited to named enemy organizations and geographic areas, policymakers can dial down war authority over time by removing named enemy organizations and geographic areas from the authorization as circumstances permit. Such rollback could ensure that future authority corresponds to progress made in counterterrorism operations once specific enemy organizations are degraded to the point that countering them no longer requires armed conflict. This rollback approach also allows policymakers to draw down war authority in a piecemeal fashion rather than having to consider only the broader choice of keeping all war authority or losing all war authority.

Regardless of how policymakers exercise the options of gradual rollback of authority, the addition of a sunset clause to the law puts the authorization on a natural course toward expiration. Because a sunset clause results in delayed expiration – and can be reauthorized – the incremental approach to repeal both guards against perpetual war and avoids precipitously concluding sustained combat operations against al-Qaeda.

For more on the ongoing debate, make sure you check out the Lawfare AUMF and AUMF Reform pages.

Today’s Headlines and Commentary

By and
Wednesday, August 13, 2014 at 2:12 PM

Iraqi Prime Minister Nouri al-Maliki no longer has the backing of Iran and faces pressure from Saudi Arabia, reports USA Today. Following the loss of support from Iran, the Iraqi military, and his own political party, Maliki seems to have dropped his power bid, notes the New York Times.

According to Foreign Policy, the U.S. is looking to build international support for its campaign in Iraq. The Washington Post shares that the British Royal Air Force is sending “Tornado GR4 fighter jets” to assist the U.S. air operations there, while the Times reports that France has released plans to arm Kurdish security forces. Still, the Wall Street Journal notes that international cooperation on Iraq has been lackluster so far.

Meanwhile, the U.S. is sending 130 military advisors to Erbil to help relieve the humanitarian crisis on Mount Sinjar. For those still counting, the addition means there are now over a thousand U.S. personnel in Iraq. USA Today and the Times share more. Still, according to the Wall Street Journal, the Obama administration is developing options for a potential rescue of the thousands of Yazidis trapped by Islamist militants. The Associated Press reports that an Iraqi military helicopter bringing aid to the Yazidi on Mount Sinjar crashed yesterday “after too many [desperate refugees] tried to climb aboard, killing the pilot.”

Defense News points out that “so far, there has been no collective insistence from members of Congress that they should approve Obama’s limited airstrikes on Islamic State targets.” Indeed, a recent Huffington Post/YouGov poll finds that a majority of Americans approve of U.S. airstrikes in Iraq.

In an opinion in the Post, former U.S. Senator and vice presidential candidate Joe Lieberman (I-CT) explains why the U.S. has to reinvolve itself in Iraq.

Meanwhile, Islamic State militants in Syria have taken control of a series of towns in the province of Aleppo. BBC News and Reuters share details. The Wall Street Journal reports that government forces have surrounded the city of Aleppo, preparing to seize it from occupying rebels.

The AP is reporting that Palestinian negotiators are considering an Egyptian peace proposal. It calls for a partial easing of the Israeli blockade, but leaves other points of dispute to later discussions.

President Obama and Turkish Prime Minister and President-Elect Erdogan are on speaking terms again, after more than six months of silence between the two leaders. Yesterday, President Obama called to congratulate Erdogan, who became Turkey’s first directly elected president on Sunday. USA Today has more.

It appears that Turkey has also began cracking down on Islamist fighters, who previously had been allowed to use Turkish border towns as transit points and refueling stations as they took battle to the Assad-regime in Syria. The Times has more on the changes, which reflect growing Turkish concerns that militants could sow sectarian strife and violence in Turkey.

Is an internal political battle over the future of Iran boiling to the surface? Hardline opponents of Iranian President Hassan Rouhani have responded with sharp criticism to his comments earlier this week; he had called hard-line politicians who oppose negotiations with the United States “cowards.” Rouhani also suggested his critics go “to hell – go find a warm place for yourself!” According to the LA Times, two hundred members of Iran’s Parliament have demanded that Rouhani meet with them in private to explain his speech.

Yesterday, Afghan presidential candidate Ashraf Ghani made clear that if he wins the election, he will not fully share power with his rival, Abdullah Abdullah. Seeking to clarify his position on the agreement struck to form a unity government following the ongoing ballot recount, Mr. Ghani said that the winner will appoint the loser—and that the latter will serve “at the discretion of the president.” The Post has the story.

Meanwhile in an interview with CBS News, Afghan presidential candidate Abdullah Abdullah called on the United States to continue its support for Afghanistan, saying “the job is not done completely.” Abdullah said he understood that the main job was for Afghans, but he nevertheless urged partner governments to continue “their support in a line with their commitments.”

And the Wall Street Journal tells us that the killer of U.S. Army Maj. Gen.  Harold Greene is being celebrated as a “martyr” in his local village, located in a district with a heavy Taliban presence. Per the Journal, details about the assailant are starting to raise questions about his ties to militant groups in the region.

Separatist fighters in Ukraine ambushed a bus carrying Ukrainian military forces this morning. Reuters reports that the attackers killed twelve military personnel and took an unknown number hostage. The Daily Beast examines the situation at Ukraine’s Russian border, while the Times considers the politics surrounding a Russian humanitarian aid convoy to the Ukrainian city of Luhansk.

As the violence in Ukraine continues, the situation pits two former partners against each other: Germany and Russia. So reports the Times, which notes that “there is a clear determination [in Berlin] to show Russia that there can be no return to business as usual.” Meanwhile, in a Post op-ed, Masha Gessen points out that Moscow’s prohibition on food imports means Russian President Vladimir Putin “is fully at war with the West.”

The United States has finalized a 25-year agreement with Australia that will double the number of American troops training with Australian security forces, according to Defense One. Secretary of Defense Chuck Hagel said that the agreement would “broaden and deepen [the] alliance’s contributions to regional security and Advance America’s ongoing strategic rebalance in the Asia Pacific.” Secretary of State John Kerry signaled that the agreement was not meant to target China, saying that “we welcome the rise of China as a global partner.” Defense News has more on the story.

Reuters reports that China has sentenced 25 people to jail terms ranging from three years to life in prison for terror-related offences. The report suggests all 25 were Uighurs. In the last few weeks, dozens have been jailed, with some sentences being handed down during mass public hearings.

Narendra Modi, India’s newly elected prime minster, accused Pakistan of sponsoring acts of terrorism on Tuesday, writes the LA Times. Speaking in the disputed territory of Jammu and Kashmir, Mr. Modi said “the neighboring country has lost the strength to fight a conventional war, but continues to engage in the proxy war of terrorism.” Pakistan was quick to respond, the Times reports, calling the remarks “unfortunate” and claiming that Pakistan was the “biggest victim” of terrorism.

Today, Pakistani troops violated the ceasefire agreement between the two countries for the fourth time in the past five days, with what the Hindustan Times characterized as heavy fire on border outposts and villages along the international border of Jammu.  Indian security forces retaliated, with exchanges lasting throughout the night. Livemint, a Wall Street Journal affiliate, reported that one member of the Indian army had been injured.  This and related events have dampened hopes for the upcoming peace talks in Islamabad later this month.

In Pakistan itself, the security situation continues to deteriorate, as the Times reports that militants have killed another Karachi police officer, the 100th this year. The Times notes that many of the deaths have come from Karachi’s newest violent force, the Pakistani Taliban. The attacks are prompting fears that the guerrilla war that once only existed in the country’s tribal belt is spreading into its largest city.

Further north in the political capital of the country, Reuters is reporting that a “siege mentality” has taken hold of Islamabad ahead of Independence Day. The agency reports that thousands of riot police have encircled the city with barbed wire and shipping containers—the being to prevent mass protests aimed at toppling the government of Prime Minister Nawaz Sharif. Two populist politicians, Imran Khan and Tahir ul-Qadri, have announced plans to converge with large groups intent on forcing Sharif to call an early election only a little more than a year after his sweeping victory.

On Monday, President Obama requested $10 million in emergency funding to help France as it “attempts to secure Mali, Niger, and Chad from terrorists and violent extremists.” The AP has more on the story.

Meanwhile, the Wall Street Journal reports that hundreds of thousands of Nigerians are fleeing the northeastern portion of the country, as Boko Haram militants continue their campaign of violence and terror.

Wired shares an exclusive interview conducted recently with former National Security Agency (NSA) contractor Edward Snowden by James Bamford. Andy Greenberg notes statements made by Snowden during the interview about “digital bread crumbs” he had left in order to “lead the agency directly to the files he’d copied.” Meanwhile, Kim Zetter examines MonsterMind, “a cyber defense system,” which Snowden says could “instantly and autonomously neutralize foreign cyberattacks against the U.S. and … be used to launch retaliatory strikes, as well.”

The Hill reports that the giants of Silicon Valley disagree over how the government should protect privacy of users in the era of “big data,” with some such as Microsoft supporting comprehensive privacy legislation, and others such as Facebook and Google worrying that regulation may harm innovation.

Yesterday, U.S. District Judge Gladys Kessler approved an “independent medical examination” of Guantanamo detainee Abu Wa’el Dhiab, whose health has been declining due to a long-term hunger strike. The AP shares details.

Nathalie Weizmann over at Just Security analyzes the situation of Mohammed al-Adahi, another ill GTMO prisoner, and the case for medical repatriation.

The AP reports that pre-trial hearings in United States v. Ramzi Binalshibh begin again today as prosecutors ask Army Col. Judge James Pohl to reconsider his decision to sever Binalshibh from the case against his other 9/11 co-conspirators.

Defense attorneys in U.S. v. Daoud are asking the full bench of the Seventh Circuit to reconsider three-judge ruling denying their request to view classified Foreign Intelligence Surveillance Court (FISC) documents. The AP has the story.

The Guardian informs us that Canongate is set to release the diary of current Guantanamo detainee Mohamedou Ould Slahi. According to the publisher, the book is “not merely a vivid record of a miscarriage of justice, but a deeply personal memoir – terrifying, darkly humorous, and surprisingly gracious.”

The New York Daily News reports that Donald Ray Morgan, an American whose Twitter account indicated ties to the Islamic State, is being held without bail, following his arrest at JFK Airport. Amid concerns over the return of foreign fighters, U.S. law enforcement personnel are stepping up “effort[s] to prevent homegrown terrorists,” reports FOX News.

The Los Angeles Times Editorial Board examines the U.S. “terrorist screening database” and its effect on applicants for American citizenship.

A former contractor for the Navy’s Military Sealift Command, Scott Miserendino, yesterday pled guilty to accepting bribes from two Chesapeake firms. The AP shares details.

In Wired, Missy Cummings, a member of the Stimson Center’s Drone Task Force, examines U.S. policies towards unmanned aerial vehicles (UAVs).

Yesterday, a coalition of public interest groups sent a letter to President Obama, calling for the resignation of Central Intelligence Agency (CIA) Director John Brennan. Foreign Policy shares the story.

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.

This Afternoon’s Hearing in the 9/11 Case

Wednesday, August 13, 2014 at 1:54 PM

A reminder, and a little coverage note: this afternoon will see a pre-trial hearing in the case against Ramzi Binalshibh—one of five men charged with plotting the 9/11 attacks. Unfortunately Lawfare won’t be able to take in those proceedings via Fort Meade’s Closed Circuit TV facility—but we will post a digest of the afternoon’s most significant events, once a transcript becomes available.

Stay tuned.

Obama’s Foreign Policy and the Nirvana Fallacy

Wednesday, August 13, 2014 at 1:03 PM

President Obama’s foreign policy appears in shambles.  Many of his major decisions – decisions to act, and not to act – seem to have turned out badly.  To take a few examples of prominent criticisms: If the President had not intervened in Libya, we would not now face the large terrorist threats and related disorder in North Africa.  If he had supported (the good) Syrian rebels earlier, he could have prevented the humanitarian disaster in Syria.  If he had not pulled out of Iraq, ISIS would not be as powerful or threatening as it is.  If he had responded earlier and more forcefully to Russia’s aggression in Ukraine, Putin would not have absorbed Crimea.   And so on.  Critics look at the bad things happening in the world, they look at President Obama’s relevant foreign policy decisions prior to those bad things, and then they (a) blame him for the actual outcome, and (b) argue that if he had acted differently (usually, in the opposite manner), the outcome would have been better.

This is a common form of criticism that all presidents suffer.  Most of these criticisms rest on some form of the Nirvana fallacy – the fallacy, that is, of comparing actual policy outcomes against hypothetical (and usually rosy) alternative outcomes, without considering the costs, downsides, harmful second-order effects, etc., of the alternate courses of action.  They also contain a good bit of hindsight bias – criticism made with full information about decisions made with partial information.

It is possible, for example, that a stronger reaction to Putin’s aggression in Ukraine might have sparked a war in central Europe or some other more destructive confrontation with Russia.  If the President had supported Syrian rebels earlier and more robustly, the weapons might have fallen into the wrong hands with worse outcomes, or Assad might have fallen, creating (even greater) terrorist bedlam in Syria.  If the President had kept troops in Iraq, the country might have fallen apart in any event, many Americans might have died, and his domestic agenda might have been (even more) jeopardized.  Relatedly, just because a decision led to a bad outcome doesn’t mean that the most plausible alternative decision would not have led to the same or a worse outcome.  (This has been President Obama’s basic defense of his low-key approach to Syria.)

Presidents, of course, must make decisions based on relatively little information, and thus without knowing how various alternatives at the time of decision will pan out.  Moreover, as Arthur Schlesinger noted, “the statesman often confronts situations in which, if he waits too long to be absolutely sure about facts, he may lose the opportunity to control developments.”  In other words, there is often a tradeoff in foreign policy between information and room for action.  Professor Henry Kissinger wrote in 1966:

When the scope for action is greatest, knowledge on which to base such action is limited or ambiguous.  When knowledge becomes available, the ability to affect events is usually at a minimum.  In 1936, no one could know whether Hitler was a misunderstood nationalist or a maniac. By the time certainty was achieved, it had to be paid for with millions of lives.

To make matters yet more complex, a president does not know the marginal value of more information until he acquires it; it is unclear how much information to gather before acting.  Presidents must make foreign policy decisions in the face of these and other forms of informational uncertainty, but they are judged after the fact, on the basis of how things turned out, usually against a baseline of idealized counterfactual scenarios.

The point here is not that success in foreign policy is random – it is not.  Nor is the point to defend President Obama’s foreign policy decisions, or to argue that principled foreign policy criticism is impossible, or to deny that President Obama’s particular commitments might have led him sometimes to exercise bad judgment in assessing the costs and benefits of alternative courses of action.  The point is simply to call attention to the pervasiveness of the Nirvana fallacy (and hindsight bias) in foreign policy criticism, and to note how terribly difficult it is to make wise foreign policy decisions under conditions of uncertainty in our complex world.

Vice News Coverage of The Islamic State

Wednesday, August 13, 2014 at 10:26 AM

We have flagged this remarkable, five-part Vice series before, in our news roundup; to be sure it came to readers’ attention, we opted to note report Medyan Dairieh’s up-close examination of the Islamic State in a standalone post.  Have a look.

Reflections on DefCon and Black Hat

Tuesday, August 12, 2014 at 10:53 AM

I had the opportunity to go to Las Vegas last week to attend the annual events surrounding DefCon and Black Hat.  DefCon is a 22-year old convention of hackers (a/k/a security researchers) and Black Hat is its more “corporate” adjunct.  It tells you almost everything you need to know about the difference between them that Black Hat attendees pay several thousand dollars in registration fees and more to be exhibitors, while the DefCon attendees pay a couple of hundred dollars and almost always in cash (with a few Bitcoins starting to make an appearance).

The cultural differences between the security researchers at DefCon and the cyber warriors I meet at Ft. Meade is very overt — but less complete than one might expect.  On the overt level, consider:  I attended a side meeting called “BSides” where the bar opened at 7 … AM!  The venue abounded with oddities — men in kilts and mohawks; a “capture the flag” game involving a cyber flag; etc.  I rather enjoyed learning that many computer hackers have a hobby of picking physical locks — which seemed to fit quite well.  On the other hand, I really have no explanation for the piles of condoms on the break room tables — especially since there were so few female attendees (I’d say the demographic was 95% male).

On the other hand, I did see a great commonality of  … focus, is the best word I can come up with.  Despite their quasi-libertarian bent, most of the researchers I met across the visit were very concentrated on their profession; took great pride in what they did; and were deeply concerned about the fundamental insecurity of the network.  In this regard they really seemed to me little different from the professionals I meet in Washington — they just wear different clothes.  [Though it ought to be disturbing that in a recent war game, our reservists defeated our active duty military cyber warriors, apparently pretty handily.]

Substantively, the week-long meeting had a few highlights.  Jack has already linked to the keynote by Dan Geer.   His most interesting idea was that the US should try and corner the market on cyber vulnerabilities by bidding for them and buying them all up.  The idea seems flawed to me for at least two reasons: (1) I fear that vulnerabilities are not as rare as he thinks they are; and (2) I doubt the Russians and Chinese would sell to us.  But it is a fascinating concept and his other insights are well worth musing on.

For me, however, the major insight of the week was the growing vulnerability of the Internet of Things.  I watched a fascinating demonstration of the ease with which a medical device could be “cracked” and another on the poor structural design of cars (linking critical systems to non-critical ones).  One group of security researchers, I Am The Cavalry, ended the conference by issuing an open letter to the auto industry, defining a 5-Star program for cyber security of new cars, which seemed a sound attempt to get ahead of the cyber problem.  [Full Disclosure:  I sometimes advise the Cavalry on legal matters.]

The other big news was the announcement that a Russian hacker group had stolen over a billion passwords from websites globally. Unlike most of the general public who were breathless over the extent of the breach, most of the researchers in Las Vegas were skeptical of the scope of the breach, its provenance, and its authenticity.  Rather, they thought that the large collection was mostly an amalgamation of older breaches repackaged in a new way.  As for me — who can tell?  But the dispute did remind me always about the need for caution and humility in judging this domain.

Today’s Headlines and Commentary

Tuesday, August 12, 2014 at 9:11 AM

Prime Minister Racap Tayyip Erdogan has won Turkey’s first direct presidential election. The Wall Street Journal explains that the landmark victory will secure Erdogan’s power in Turkey for another five years, adding to the twelve years he has served as the country’s Prime Minister. The BBC reports that Erdogan wants to transfer more power to the presidency but his political opponents fear that his rule could become increasingly authoritarian.

Apropos of democratic exchanges of power, yesterday we covered that news that Haider al-Abadi was selected to replace Nouri al-Maliki as Iraq’s Prime Minister. The New York Times tells us that it quickly became clear that al-Maliki is trying to cling to power. Time reports President Obama endorsed the change in government, and has offered American assistant to the newly formed government in Iraq.

(President Obama made his remarks from a vacation home in Martha’s Vineyard, where the Washington Post’s Dana Milbank argues he should not be, given the current international political climate.)

Some – like those over at the Daily Beast – are arguing that the United States participated in a plot to oust al-Maliki from power. The Guardian explains that American officials vehemently deny any such accusations, insisting instead that the United States is in support of what is a genuinely a democratic exchange of power.

The Times explains that al-Maliki had been a “source of frustration” for President Obama, and also to his predecessor, President Bush.

In what will undoubtedly reinforce opponents of the recent American airstrikes in Iraq, the Pentagon says that the airstrikes won’t weaken ISIS. The Hill covers remarks made by Army Lt. Gen. William Mayville yesterday, in which he predicts that while ISIS might be hampered by the airstrikes, such effects might well be “temporary.”

Amnesty International released report yesterday that alleges that the United States failed to properly investigate incidents of civilian killings in Afghanistan. The report outlines evidence of possible war crimes committed by international forces during military campaigns in the country. Al Jazeera has more on the report.

The Times takes a look at another source of tension between Israel and Gaza, one that largely has been ignored in coverage of the conflict: the establishment of a Gaza seaport. Contractors had broken ground on a waterway that would more easily connect residents of Gaza to their Mediterranean neighbors in 2000, but the work was quickly destroyed by Israeli bombs. The seaport is apparently a “focal point for negotiators” in attempting to resolve the conflict.

As things get reheated in the eastern parts of Ukraine, the secretary-general of NATO said that a Russian intervention in Ukraine is becoming increasingly likely. The Times covers Anders Fogh Rasmussen’s remarks.

In an “unusually harsh statement,” Secretary of State John Kerry has condemned the government of South Sudan and its rival party for failing to form a transitional government.  Reuters explains that a deadline for the formation of a new government had been set as August 10, and Kerry has indicated that he will pursue regional bodies to impose punitive measures on both parties.

South Korea has proposed high-level talks with North Korea on the topic of reuniting family members divided by the border between the two countries. The Times covers the story.

Meanwhile, Al Jazeera reports that the North Korean government is set to release a human rights report contesting another, comprehensive report released by the UN earlier this year.  The latter detailed a wide range of systemic rights abuses in the country. According to North Korea, its internal report confirms that its people are “dynamically advancing towards a brighter and rosy future.”

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

DOJ Releases 38 Redacted Documents Regarding NSA’s Email Metadata Collection

Monday, August 11, 2014 at 10:40 PM

New on the DNI’s Tumblr site, IC on the Record: on August 6, and in response to a FOIA request, the Department of Justice released a slew of newly declassified, redacted documents related to the National Security Agency (NSA)’s bulk collection of electronic communications metadata.  Such collection, though now discontinued, was conducted pursuant to  Section 402 of the Foreign Intelligence Surveillance Act—the “PRTT” (Pen Register or Trap and Trace) provision.

According to IC on the Record, the documents illustrate “the extent to which the IC sought and received FISC approval to collect electronic communications metadata under the PRTT provision, the oversight regime of internal checks over the program, and that Congress was kept fully apprised of the status of NSA’s electronic metadata collection.”

Here are the documents organized according to oversight body (one link was dead at the DNI’s Tumblr site, and therefore is omitted below):  Read more »

Al-Nashiri Case: French Oil Tanker Charges Dismissed

Monday, August 11, 2014 at 2:49 PM

That’s the word from the Miami Herald’s Carol Rosenberg. I haven’t yet seen the ruling, but gather from the story that the dismissal had to do with the absence of certain evidence—rather than the boundaries of the commission’s jurisdiction.  (The fit—or the lack thereof—between the latter and the acts alleged has been an important and recurring feature of the case; Marty Lederman has an overview up today at Just Security.)

From the piece:

The new judge in the USS Cole case Monday dismissed collateral charges related to al-Qaida’s 2002 attack on a French oil tanker, according to two defense attorneys who read the ruling.

“This represents a serious rejection of the prosecution’s claim that it can invoke theories, provide no evidence and expect the [war court] will blindly ratify those theories,” said attorney Richard Kammen, who is defending alleged al-Qaida terrorist Abd al Rahim al Nashiri at a death-penalty trial.

Nashiri, 49, is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide attack on the USS Cole warship off Yemen that killed 17 American sailors. His charge sheet also alleged that, after the 9/11 attacks, Nashiri also set up al-Qaida’s Oct. 6, 2002 bombing of the French supertanker MV Limburg that killed Bulgarian crew member Atanas Atanasov, and wounded 12 other workers on the ship.

Monday, Air Force Col. Vance Spath, on the case for a month, did not rule on the overarching challenge by defense attorneys that an oil ship in the region was a legitimate strategic target or at very least was not part of the Guantánamo war court jurisdiction, according to those who read it.

He threw out the charges on the limited finding that the prosecution failed to produce any evidence about the bombing, according to the two lawyers who read it, a decision the prosecution could revisit by calling witnesses in a motion for reconsideration


Today’s Headlines and Commentary

By and
Monday, August 11, 2014 at 1:55 PM

The New York Times shares an interview conducted by Thomas Friedman with President Barack Obama. In it, the President covers a wide-range of foreign policy issues, including Iraq, Israel, China, Syria, and more.

We start the day with Iraq. Reuters reports that Iraqi President Fouad Masoum has selected Haider al-Abadi to replace Nouri al-Maliki as the country’s Prime Minister. Maliki’s son-in-law stated that Maliki “would seek to overturn the nomination in the courts.” U.S. Secretary of State John Kerry has urged Maliki “not [to] stir those waters.” The Guardian has more on Secretary Kerry’s reaction.

Meanwhile, violence continues. The Washington Post provides a helpful map explaining how as many as 40,000 members of the Yazidi sect became trapped on Mount Sinjar. The Post reports that they have begun their descent from the mountain, “streaming into Iraq’s northern Kurdistan region.”

The U.S. underestimated the Islamic State, says the Wall Street Journal, and according to a senior U.S. official, “collection [of intelligence] is tough.” The Times points out that American involvement in Iraq shaped the rise of Abu Bakr al-Baghdadi, who is the self-appointed caliph of the Islamic State, and his militant group.

According to the Post, a U.S. official confirmed that “small groups from a number of al-Qaeda affiliates have defected to ISIS.” Bobby Ghosh explains in Quartz why ISIS is the worst terrorist group we have ever seen.

According to the Wall Street Journal, Islamic State fighters have withdrawn from territory they had previously taken from Kurdish forces. This retreat represents “an early sign of [the] impact from the three-day-old American campaign.” The Post shares that predator drones were used in some of Friday’s strikes and provides video footage of recent U.S. military operations in Iraq. Still, the State Department is relocating a number of staff members from the U.S. consulate in Erbil. The Wall Street Journal details where they will be moved to.

On Saturday, President Obama refused to set a timetable for U.S. airstrikes in northern Iraq. USA Today shares footage of his statements, while the Times provides a timeline of President Obama’s decision-making on U.S. air support in Iraq. The Post explains the importance of the President’s use of the word “genocide” in relation to the current conflict. Meanwhile, the Associated Press informs us that the U.S. has begun directly arming Kurdish troops.

Of course, the Obama administration’s efforts in Iraq are not without detractors. Conor Friedersdorf of the Atlantic criticizes America’s “new war,” while in an op-ed in the Post, Phyllis Bennis explains why U.S. airstrikes in Iraq are self-defeating. Politico examines the “partisan divide” over U.S. action in Iraq. Meanwhile, although American involvement so far has been limited, Military Times posits that the current campaign may call for as many as 15,000 U.S. ground forces.

In an interview with the Atlantic’s Jeffrey Goldberg, former Secretary of State Hillary Clinton stated that “the failure to help build a credible fighting force of the people who were the originators of the protests against Assad… left a big vacuum, which the jihadists have now filled.” Politico highlights President Obama’s response: “In Syria, Obama said the idea that arming rebels would have made a difference has ‘always been a fantasy.’” Meanwhile, the Wall Street Journal points out that though the U.S. has conducted air strikes on Islamic State targets in Iraq, ISIS “remains largely unchallenged in its operational base in Syria.”

A new 72-hour ceasefire began on Sunday between Israel and Hamas. Reuters and the Times report that Israeli-Palestinian peace talks have resumed in Cairo. In a Post op-ed, Daniel Kurtzer argues that a “permanent fix” can only be achieved with international assistance.

Reuters reports that the case against Arab Bank Plc, accused of financing Hamas, begins in court this week. According to lawyers for the plaintiffs, this “is the first terrorism financing case to go to trial in the United States.”

The Taliban has claimed responsibility for a suicide attack in Kabul against a coalition convoy. The Times reports that the attack killed four civilians and wounded 35. No coalition soldiers were injured.

The attack is a potent reminder that much of Afghanistan’s future remains in question. Stars and Stripes tells us that despite agreement, a presidential election vote review is still moving at a glacial pace. With the audit deadline of August 31 quickly approaching, observers have only reviewed a quarter of the ballots.

The AP is reporting that a new report from Amnesty International charges the United States failed to properly investigate civilian killings, and possible war crimes, that occurred between 2009 and 2013. The report cites “abundant and compelling evidence of war crimes.”

In Yemen, Ansar al-Sharia, an Al-Qaeda affiliate group, claimed that it had killed 14 soldiers in revenge for an army offensive against its members. At the same time, a U.S. drone attack killed three suspected militants, Reuters reports.

USA Today shares details on secret Egyptian prisons and the prisoner abuse that takes place there.

While crisis in the Middle East dominated headlines, Secretary Kerry took to Myanmar at a meeting of the Association of South East Asian Nations. According to the Post, China pushed back against a U.S.-supported proposal that would put a freeze on “provocative acts’” in the South China Sea and advance a code of conduct. But U.S. officials claimed that the ASEAN statement language “represents a significant setback for China’s efforts to play for time.”  Bloomberg has more on the story.

U.S. Defense Secretary Chuck Hagel visited India in efforts to enhance defense ties. Speaking in New Delhi, Hagel called on the two nations to “transform our nations’ defense cooperation from simply buying and selling to co-production, co-development, and freer exchange of technology.” Reuters has the story.

The Times Editorial Board analyzes last week’s U.S.-Africa Leaders Summit, suggesting that “determined follow-through will be required if the aspirations of the president and more than 40 African heads of state who were his guests are to be realized.”

The Times reports that the Ukrainian military is continuing to move forward on rebel strongholds, basing their strategy on a well-calculated gamble that Russian President Vladimir Putin will not invade to stave off the defeat of the pro-Russian separatists. As part of that calculation, Ukrainian leaders rebuffed a rebel-proposed cease-fire on Saturday, calling instead for their surrender. Bloomberg has more.

Over the weekend, the Financial Times reported that dozens of computers in the Ukrainian prime minister’s office and at least 10 in Ukraine’s embassies have been infected with a cyber-espionage weapon tied to Russia.

The AP highlights a story from the Russian state news agency wherein the Russian navy claims to have driven away a U.S. submarine in Russia’s northern waters. This comes as the United States has acknowledged at least 16 Russian aircraft forays around Alaska and northern Canada in the past two weeks, prompting U.S. fighter jets to scramble. Russia claims that the flights are training missions conducted in accordance with international rules; however, an unnamed U.S. official has suggested that the missions may be designed to test U.S. air defenses. USA Today and the Hill have more.

Frequent readers will recall the story we noted last week on a Russian crime ring.  The Times reported that the group has amassed 1.2 billion username and password combinations and more than 500 million email addresses. According to the Guardian, the report prompted skepticism from cybersecurity experts, who have asked why more of the data has not been made public for independent review. Forbes also tips us off that Hold Security, the firm that initially exposed the breach, quickly offered a $120 service that will tell you if you have been affected. As Kashmir Hill writes, “I am skeptical of a firm with a financial incentive in creating a panic to be the main source for a story that causes a panic.”

According to the Wall Street Journal, the U.S. is looking to expand its aircraft rotations at an Australian air base close to Darwin.

In an interview with Inside Cybersecurity, Richard Danzig, an Obama administration advisor and Vice Chair of the Board of Trustees of the RAND Corporation, argued that “existential” cybersecurity threats are not “the right focus of debate.” Inside Cybersecurity shares his thoughts and those of other top leaders on existential threats.

As Bruce Schneier says that the American intelligence community has been hit by a third leaker, the Los Angeles Times examines U.S. companies’ new fear of insider threats.

On Friday, the Foreign Intelligence Surveillance Court (FISC) ordered“the government to prepare and declassify a redacted version” of a FISC opinion from February 19, 2013, which authorized the National Security Agency (NSA) to collect telephone metadata under Section 215 of the USA Patriot Act. The Hill has more on the Court’s ruling.

The AP reports that in the 9/11 terrorism case today, Chief Prosecutor Mark Martins will ask the court to reconsider its decision to sever Ramzi Binalshibh from the litigation against his co-conspirators. Carol Rosenberg of the Miami Herald explains the situation surrounding the severance of Binalshibh’s case.  Wells shared Martins’ statement this morning and will provide dispatches from Fort Meade throughout the day.

According to William Stone of the Federal Bureau of Investigation (FBI)’s national counterterrorism task force, “the biggest security threat facing U.S. commercial aviation stems from homegrown terrorists looking to sneak bombs or explosives into airports.” The Wall Street Journal has more on his statements.

NBC News tells us that Kanye West is worried about drones, too. No word on the upcoming release date of “Our Beautiful Dark Twisted Drone Policy.”

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.

9/11 Case Motions Hearing: August 11 Session

Monday, August 11, 2014 at 9:04 AM

Today your correspondent will observe, via CCTV, pre-trial proceedings in the case of United States v. Ramzi Binalshibh.  That’s the prosecution against only one of the five men accused of plotting the 9/11 attacks.  The military judge has severed Binalshibh’s case, for the moment, from that against the other four; today, military prosecutors will ask the court to reconsider that ruling.  But the litigation involving the other four accused will wait until tomorrow at least.

You’ll find dispatches throughout the day in our “Event Coverage” section, with links to those below.

UPDATE [3:00 p.m.]: The proceedings recessed after one session; we understand that there will be *no* hearing tomorrow, but that, subject to rulings by the military judge, the proceedings will resume either Wednesday afternoon or Thursday.

8/11 Session #1: Severance, Reconsidered