The detainees sought review of the D.C. Circuit’s June 10, 2014 decision affirming the ruling below on the grounds that the case raises two questions of exceptional importance: as to (1) whether detainees are “persons” under the Religious Freedom Restoration Act in the wake of Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014), and (2) whether detainees stated a plausible claim that the named government officials acted outside the scope of their employment in allegedly detaining and abusing detainees who had been deemed non-enemy combatants in Combatant Status Review Tribunal proceedings.
The American Bar Association’s Standing Committee on Law and National Security has released audio files of sessions from its recent annual conference. Here they all are:
November 6 – November 7, 2014 | The Capital Hilton
Opening Remarks and Panel I - Executive Branch Updates on Developments in National Security Law (Panel I begins at ~6:57)
Opening Remarks: ABA President William Hubbard
Moderator: Ben Powell; Discussants: Caroline Krass, Robert Litt, Brigadier General Richard Gross, U.S. Army, Rajesh De, Cynthia Ryan and John Carlin
Panel II - Role of the Judiciary in National Security
Moderator: Viet Dinh; Discussants: the Honorable John D. Bates, the Honorable Brett Kavanaugh, the Honorable M. Margaret McKeown and Benjamin Wittes
Keynote Address - Protecting Critical Infrastructure in a Heightened Risk Environment
The Honorable Suzanne E. Spaulding
Panel III - The Future of Foreign Intelligence
Moderator: Laura Donohue; Discussants: William Banks, Jameel Jaffer, David Kris and Robert Litt
Panel IV - Ethical Issues Facing Lawyers Practicing National Security Law: A Discussion
Discussants: Harvey Rishikof and the Honorable James Baker
Panel V - The Economic & Financial Threat Domain: Making Smart Sanctions Smarter
Moderator: John Norton Moore; Discussants: Ilan Berman, Richard Newcomb, Steve Perles, Andrew Davenport and Juan Zarate
Vice Admiral Nanette DeRenzi, U.S. Navy
Panel VI - Military Justice: Continuity or Change?
Moderator: Major General Charles J. Dunlap, Jr., USAF (Ret.);Discussants: Lieutenant General Flora Darpino, U.S. Army, Rachel VanLandingham, Gary Solis and Captain Lindsay Rodman, USMC
Panel VII - Cybersecurity: Will We Ever Be Secure?
Moderator: Jill Rhodes; Discussants: Judith Miller, Keith Lowry and Kathleen Rice
According to the BBC, a report from the Global Terrorism Index found that the number of deaths from terrorism increased by 61 percent in 2013, while the number of attacks increased by 44 percent. We begin our coverage today with saddening news of several more.
A horrendous act of violence has left Jerusalem paralyzed. Earlier today, 3 dual American-Israeli citizens and 1 dual British-Israeli civilian were murdered by two Palestinians while conducting morning prayers in an Orthodox neighborhood of Western Jerusalem. The two terrorists were armed with axes, knives and guns, and killed the innocents and wounded scores more before police fatally shot them both. The four men who died were all rabbis: Rabbi Aryeh Kupinsky, 40, Rabbi Avraham Shmuel Goldberg, 68, Rabbi Kalman Levine, 50, and Rabbi Moshe Twersky, 59. The latter, Rabbi Twersky, was the head of a yeshiva in Jerusalem and the scion of the prominent Twersky rabbinic family. The BBC has live updates.
Leaders across the world condemned the attack, including UK Prime Minister David Cameron, US Secretary of State John Kerry and the Foreign Minister of Bahrain, Khalid Bin Ahmed Al Khalifa. Secretary of State Kerry had harsh words for the perpetrators and excoriated Palestinian leaders “at all levels” for incitement. Israeli leaders from across the spectrum denounced the actions, with many pointing the finger at incitement from Palestinian Authority President Mahmoud Abbas. For his part, Abbas condemned the attacks.
The Times of Israel reports that Israeli political leaders have vowed that this is a tipping point, and that they will respond harshly to the rabbis’ murders. Specific actions that have been mentioned so far, include relaxing gun ownership laws in Israel, demolishing the family homes of the murderers, and revoking the residence permit of one of the terrorists’ wives. Another Israeli news portal, Srugim, writes that authorities will not return the bodies of the attackers to their families for burial.
The Brookings Institution held an event today that focused on the violence currently plaguing Jerusalem and prospects for a two-state solution. Audio from the event is available here:
It’s a chilly afternoon here at Fort Meade—the venue for today’s closed circuit television broadcast of pre-trial litigation down at Guantanamo. Proceedings in the military commission case of United States v. Abd Al Hadi Al-Iraqi are set to begin at 1 p.m. After those get underway, Lawfare will post dispatches in our “Events Coverage” section; we’ll link to the posts below, too.
A brief history of the Islamic State in the form of an animated video from my Brookings colleague Bruce Riedel. Bruce is the director of The Intelligence Project at Brookings, and he spent 30 years at the Central Intelligence Agency.
The current flap about President Obama’s plan to proceed without Congress on immigration matters isn’t really about national security law. But it is about the law of presidential power and thus of inherent interest to readers of this site. Over the past few weeks, I’ve been struck in reading the many news stories about the brewing confrontation by the fact that none of the stories addresses what seems to me the central question at the heart of the developing standoff between the President and Congress: How much discretion does Obama have under the Immigration and Naturalization Act to decline, as a matter of policy, to deport millions of people?
Republicans are tossing around all sorts of rhetoric about Obama’s decision to proceed unilaterally. John Boehner has floated the idea of litigating the matter. Some Republicans have described such an “amnesty” as a constitutional crisis. Some have even talked about impeachment. All of that assumes, of course, that the coming action is illegal, that the statute itself doesn’t give Obama authority to decide to stay his hand with respect to lots of deportations. Yet I have seen no news story or legal analysis that contains an actual argument to that effect.
We do not yet know exactly what President Obama intends to do, so we cannot hold the details of his coming executive action up against the statute. But if we are to believe news reports, he plans to create some kind of program under which undocumented aliens who meet certain criteria—family members in the United States, no criminal record, etc.—can come forward and receive what amounts to a quasi-legal status under which authorities will not pursue removal actions against them.
Obama himself has sown doubt about this own authority to effectuate this policy outcome without congressional involvement—stating in the past that he would love to do it, but did not think he had the legal authority. But at least as I read the relevant provisions of the Immigration and Naturalization Act, the statute actually gives him wide discretion to decline to deport non-criminal aliens who are legally deportable. Specifically, it contains no directive requiring the administration to pursue garden variety deportation cases. In fact, it has very little to say at all—except with respect to aliens who have committed crimes—about what happens if the President just doesn’t feel like deporting people. That silence seems to me to convey the authority not to act, both in the case of an individual whose circumstances authorities find compelling and also in the case of five million people whose circumstances authorities find compelling or whose status authorities choose for policy reasons to regularize.
The week before Thanksgiving features a few Congressional hearings of note for the Lawfare readership.
Tomorrow at 10:00 AM, there is a hearing of the Senate Foreign Relations Committee on ways of “countering” the activities of ISIL in Iraq and Syria. You can listen to a livecast of the proceedings here.
Also tomorrow from 2:00 to 5:00 PM, the House Subcommittee on Terrorism, Nonproliferation, and Trade will hold a hearing entitled, “Iranian Nuclear Talks: Negotiating a Bad Deal?” The hearing will “examine concerns over the current negotiations and also outline what an acceptable deal might look like.” For more information, please click here. Just two days later, the House Subcommittee on the Middle East and North Africa follows up the Iran theme with a hearing from 1:00 PM to 4:00 PM on “Examining What a Nuclear Iran Deal Means for Global Security.”
Finally, on Wednesday from 2:30 PM to 5:30 PM, the House Subcomittee on the Middle East and Africa will hold a hearing entitled, “Next Steps for US Foreign Policy on Syria and Iraq.” It is meant to “assess the effectiveness” of US policies towards Syria, Iraq and ISIL and evaluate how Washington’s strategic goals “need to change in order to seek progress on these fronts.”
Got a problem with Iranian UAVs threatening your ships? Want to remotely start fires on small boats? The US Navy has just what you need: the 30 kilowatt-class Laser Weapon System (LaWS).
Defense News reports that the US Navy debuted the system this past August on the USS Ponce, an amphibious transport ship currently based in the Persian Gulf. The laser has a bevy of different settings, ranging from a simple warning flash to a lethal beam that can set small boats and machines on fire. The weapon, whose range remains classified, focuses the light from six solid-state welding lasers onto a single target to cause damage. The current laser is an upgraded prototype of an earlier model and cost $40 million over 7 years to build. After passing several at-sea tests and starting service on the Ponce, the system will undergo further environmental tests. The Navy hopes to deploy the weapon fleet-wide by 2017.
While officials deny the weapon was made with one country specifically in mind, the LaWS’s unique abilities seem especially apt to counter the Iranian navy’s assets in the region. Faced with the United States’ overwhelming superiority in conventional naval warfare, Iran has built up its arsenal of naval mines and small vessels in the Strait of Hormuz, a vital artery of trade and energy flows. The LaWS is seen as an effective countermeasure to Tehran’s tactic of using the smaller, less expensive systems to “swarm” larger US and Western warships.
The use of lasers in military settings is the subject of a specific treaty, namely the Protocol on Blinding Laser Weapons, to which the US has been a signatory since 2009. However, the protocol only prohibits “weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision;” it does not extend even to weapons that cause blindness “as an incidental or collateral effect.” Seeing as the LaWS presumably underwent legal review before deployment, it appears that while blinding someone is a no-go, setting someone on fire might be okay.
You’ll find it here. Brig. Gen. Mark Martins’ remarks begin as follows:
Good evening. Before turning to the proceedings scheduled for this coming week, I wish to update observers interested in United States v. Al Nashiri on the interlocutory appeal previously pending before the U.S. Court of Military Commission Review (“U.S.C.M.C.R.”). In September, the government appealed to the U.S.C.M.C.R. from the Military Commission’s dismissal of the charges related to the attack on the MV Limburg. Last Wednesday, the U.S.C.M.C.R.’s reviewing court, the U.S. Court of Appeals for the District of Columbia Circuit, entered an order staying the appeal so that it could consider the Accused’s constitutional challenges to the appointments of the military judges serving on the U.S.C.M.C.R. According to the D.C. Circuit’s order, merits briefing will be complete in December, with oral argument to follow.
This week, the Military Commission convened to try the charges against Abd al Hadi al-Iraqi will hold its second series of sessions without panel members present since he was arraigned on 18 June 2014. Abd al Hadi was arraigned on charges that he committed serious violations of the law of war by conspiring with and leading others, as a senior member of al Qaeda, in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the death and injury of U.S. and coalition service members and civilians.
I emphasize that the charges against Abd al Hadi are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by thepresiding judge, and any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to specific judicial rulings, if applicable.
Since the last pre-trial sessions in September, the Commission has issued an order to protect against the disclosure of classified national security information. AE 13I. The protective order the government originally proposed to the Commission in July included a provision requiring defense-team members to sign a memorandum of understanding routinely required of counsel who receive classified information in discovery. AE 13. This memorandum requires defense-team members to protect genuine sources and methods while handling classified information provided to them in discovery. Although the Commission excepted this provision from the protective order it issued in September (AE 13D), it later reconsidered its decision upon government motion, detailed the “expedient and practical protections” it found the memorandum provides, and then amended the protective order to require defense-team members to sign the memorandum (AE 13I). The protective order is consistent with those governing national security cases in federal civilian courts. Interested observers can compare it—along with the memorandum of understanding—to protective orders issued by federal civilian judges in criminal prosecutions in national security cases. These orders are available at www.fjc.gov.
Today marks the first of a possibly three-day, pre-trial motions hearing in the military commission case of United States v. Abd. Al Hadi Al-Iraqi.
Y’all know the drill: from 9 a.m. onward, video and audio from the Guantanamo courtroom will be zapped, via closed circuit television, to Fort Meade’s Smallwood Hall. Lawfare will view the proceedings from Smallwood, and post almost-live dispatches in the “Events Coverage” section.
We’ll post links to those dispatches below, too.
The Islamic State has executed another American hostage. This weekend, ISIS released a video documenting the beheading of humanitarian aid worker and former Army Ranger, Peter Kassig, also known by is Muslim name, Abdul-Rahman Kassig. The New York Times reports that President Obama was quick to condemn the “act of pure evil.”
Some outlets have picked up on the fact that the video released this weekend by ISIS has a different ending than do previous videos involving the execution of American and British citizens. The Independent considers what this change could mean.
The Washington Post reveals that the Obama administration is considering escalating its covert CIA operation in Syria, which helps to train and arm Syrian fighters from moderate rebel factions. Currently, the CIA trains around 400 fighters a month.
President Obama is running into some hurdles as he navigates negotiations with Iran over its nuclear program. The Times tells us that negotiators on behalf of the Obama administration are heading to Vienna this week for a new round of negotiations with the Iranian delegation, but the expected chances of success are relatively low.
As President Obama wrapped up his trip to Asia, he promoted, according to the Times, a “more ambitious foreign policy” agenda. His trip focused on climate change and trade policy, and by many counts, he had a successful trip: he secured a climate-change agreement with China and made significant headway in the Chinese-American technology trade relationship.
While in Australia, President Obama addressed the ongoing situation in Ukraine. The Times explains that Obama condemned Russia’s arming of Ukrainian separatists, moving close to calling Russia’s actions an invasion.
Shane Harris has published a piece for Salon, taking a critical look at the NSA’s relationship with Google. The piece traces the history of the relationship between the internet conglomerate and the NSA, beginning with an aggressive hacking attempt by Chinese hackers back in late 2009.
Bloomberg tells us that a powerful tech lobby, representing the likes of Facebook, Apple, Microsoft and Google, is pushing the sitting Senate to pass legislation that would rein in the NSA’s surveillance programs. The bill in question is the USA FREEDOM Act (Senate Bill 2685), which would end the NSA’s bulk metadada collection program.
On Friday, we covered the news in the Wall Street Journal about a Department of Justice surveillance program that uses dragnet technology onboard airplanes. Time reports that since the revelation, privacy and civil rights groups have already been raising “serious constitutional questions” about the legality of the program, because innocent Americans’ data is being collaterally collected.
Former Lawfare intern Yishai Schwartz has published a piece over at the New Republic arguing that this Congress needs to vote on an AUMF now and not dither till the new members take their seats.
Defense Secretary Chuck Hagel has shifted $10 billion to “correct deep problems of neglect and mismanagement within the nation’s nuclear forces.” That story is over at the AP.
Apparently former CIA director Leon Panetta and Defense Secretary Robert Gates are not President Obama’s biggest fans. Yahoo! News reports that the two, at an event at the Ronald Reagan Presidential Foundation, agreed that President Obama’s tendency to “micromanage” the U.S. military has done more harm than good.
ICYMI: This Weekend, On Lawfare
Daniel Byman and Jeremy Shapiro, in this week’s Foreign Policy Essay, argue that we should turn to new strategies to combat the “foreign fighter threat.”
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
Event Announcements (More details on the Events Calendar)
Monday, November 17th at 9 am: Join the Center for East Asia Policy Studies at Brookings for a conference entitled History, Politics, and Policy in the U.S.-Korea Alliance. Speakers will include Katharine H.S. Moon, Robert L. Gallucci, Sue Mi Terry, Charles K. Armstrong, Victor Cha, Johna Ohtagaki, and more. For a full list of speakers and panels, please see the Brookings event announcement.
Monday, November 17th at 11 am: The Center for Global Interests will host a discussion with Clifford Gaddy of the Brookings Institution and Ariel Cohen of the Heritage Foundation on Valdimir Putin’s sharp anti-American speech at the Valdai conference and what it means for Russia’s trajectory entitled Putin at Valdai: Russia’s Break with the World Order. Konstantin Avramov will moderate. RSVP here.
Monday, November 17th at 4 pm: Later in the afternoon, the New America Foundation will hold a Debate on Law Enforcement vs. Smartphone Encryption: Is FBI “Going Dark” or in a Golden Age of Surveillance? Andrew Weissman will represent law enforcement’s interests; Peter Swire will argue in favor of encryption without backdoors. Nancy Libin will moderate. Register here.
Tuesday, November 18th at 10 am: The Center for Middle East Policy at Brookings will host a panel discussion examining Violence in Jerusalem and the Future of the Two-State Solution. Fellows Natan Sachs and Khaled Elgindy will share their observations and insights, while Senior Fellow Tamara Wittes will chair the discussion. RSVP here.
Wednesday, November 19th at 10 am: Can a Cyber NCTC Prevent the Next Catastrophic Attack? That will be the topic of conversation at the Bipartisan Policy Center, where Siobhan Gorman will moderate Michael Chertoff, Matt Olsen, Philip Zelikow in a discussion on the frameworks currently facilitating cyber threat information sharing across government agencies, the gaps and failures in this system, and what changes, if any, need to made to address them. Register here.
Wednesday, November 19th at 12 pm: At Georgetown University, Dr. Claire Sullivan will discuss “Armed Attack” in Cyberspace – The Issues and Dilemmas. In her discussion, Dr. Sullivan will address what constitutes an armed attack in the cyber context and what response is permitted under international law, as well as how the ANZUS treaty interacts with these concepts. For more information and to RSVP, please visit the event announcement.
Thursday, November 20th at 9 am: At the Willard InterContinental Hotel, the Center for a New American Security will hold a half-day conference on Civil-Military Divide and the Future of the All-Volunteer Force. For a full list of speakers and panels, visit CNAS.
Employment Announcements (More details on the Job Board)
ORGANIZATION: Department of Justice
SALARY RANGE: $124,995 – $157,100 DEADLINE: Nov. 21, 2014 POSITION INFORMATION: Permanent DUTY LOCATIONS: Washington, DC WHO MAY APPLY: US Citizens SECURITY CLEARANCE: Top Secret/SCI with CI
The National Security Division of the Department of Justice is currently seeking one or more Deputy Chiefs for its Counterterrorism Section.
Under the direction of the Chief, the Deputy Chief(s) will be responsible for providing legal advice to federal prosecutors concerning federal statutes relating to terrorism and the national security, and for implementing and coordinating sensitive Department initiatives in the areas of terrorism and national security. The Deputy Chief(s) will:
- work with federal prosecutors and law enforcement agencies to develop effective strategies in terrorism investigations and prosecutions, and maximize the use of federal statutes;
- plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities; provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prospective models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;
- coordinate the formation of response teams of experienced prosecutors to assist in the design of investigations and the prosecution of cases;
- coordinate cases and provide legal advice and guidance and litigative support to U.S. Attorneys’ Offices involved in terrorism prosecutions;
- provide advice and assistance to the Chief and other senior officials in the Division and in the Department;
- serve as a liaison between NSD and the Federal Bureau of Investigation, other members of the USIC, the Department of the Treasury, the Department of State, and various international officials on terrorism issues; and
- prepare testimony for Congressional Committees and subcommittees, briefing materials for Department officials, legal monographs for terrorism prosecutors, and comments on proposed legislation.Qualifications:
Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, Territory, or the District of Columbia, and have at least 5 years of post J.D. professional experience to be qualified at the GS-15 levels. Applicants must also have superior academic credentials, writing and analytic skills, and have significant criminal trial experience. Past experience in the national security or intelligence field is not required, but is preferred. Prior federal litigation experience also strongly preferred.
Applicants must also be able to obtain and maintain a TS/SCI security clearance.Salary:GS-15:$124,995 – $157,100 (Per annum)Travel:Periodic travel will be required.Application Process:
To apply for a Deputy Chief position with CTS, please submit a resume and a cover letter (Highlighting your relevant experience), a writing sample (No longer than 15 pages which exhibits your own written advocacy skills), and a copy of your most recent performance appraisal (If available), to:
Michael J. Mullaney, Chief
National Security Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW, Room 2647
Washington, DC 20530
orNo telephone calls please. Applications will be excepted through November 21, 2014.
The Center for Interdisciplinary Studies in Security and Privacy-Abu Dhabi (CRISSP-Abu Dhabi) and the Center on Law and Security at NYU School of Law (CLS) are seeking a research fellow for a two-year appointment to study cybersecurity issues in the Middle East and North Africa (MENA) and the Persian Gulf region. The fellow will be based at NYU Abu Dhabi, and will collaborate closely with CLS and CRISSP researchers in both New York and Abu Dhabi.CRISSP-Abu Dhabi is an interdisciplinary research community comprised of engineering, computer science, and social science faculy, as well as doctoral and post-doc researchers.
The fellow will be poised to influence significantly the public dialogue about cybersecurity issues in the MENA/Gulf region, and to become involved in shaping the cybersecurity relationship between the Gulf and partners in North America and Europe. Situated in a strategically vital location and growing in its sophistication and capabilities, Abu Dhabi is the location in which many important developments in cybersecurity will take place in the coming years. As the law and strategy of cybersecurity in the Gulf continue to evolve, the fellow will have the opportunity to lead those discussions and represent NYU while doing so. The fellow will be resident at CRISSP-Abu Dhabi. In addition to the specific duties listed below, the fellow will be expected to collaborate on existing cybersecurity projects being undertaken by CRISSP-Abu Dhabi. The primary responsibilities of the fellow will include:
• Publication of research on the evolving legal and regulatory landscape governing cybersecurity issues in the MENA/Gulf Cooperation Council (GCC) states;
• Development of a network of cybersecurity professionals in the UAE to help advance the discussion of cybersecurity regulation and to foster collaboration between government and private sector entities;
• Planning and organization of private roundtables and public lectures, panel discussions, and workshops on cybersecurity to develop public awareness about the issues;
• Forging relationships between CRISSP, CLS, and other private and public institutions focused on cybersecurity issues in the region.
The fellow should enjoy working independently, be dynamic, energetic, highly self-motivated, and entrepreneurial, and be comfortable operating with minimal supervision. At the same time, the fellow should enjoy working collaboratively with fellow team members, and should especially find it rewarding to bridge not only academic disciplines (specifically linking technical fields with the legal and policy concerns that structure cybersecurity efforts), but also cultural divides. The fellow must be sensitive to cultural differences, and have the ability to be effective in a wide range of different environments.
Full employment announcement here. Interested applicants should send a resume, cover letter, law school transcript, and writing sample (preferably a piece of legal writing pertaining to the subject matter of the fellowship) by December 5, 2014 to Sarvenaz Bakhtiar, Director of Operations at the Center on Law and Security, at [email protected] NYU is an equal opportunity employer.
In January 2014, two French teenage boys ran away from their homes in Toulouse in search of adventure. Like a few hundred other young Frenchmen and over 2,000 Europeans, they looked for that adventure in Syria. It wasn’t hard to find—social media told them where to go and whom to see.
Their parents were frantic and reached out to the French authorities to help them, but the government could do little as the boys had already left France. But the boys soon discovered on their own that war is both more horrifying and more boring than Call of Duty—and you don’t get a chance to play again when you are killed. After just three weeks, they returned home.
They were not welcomed back. The authorities knew where they had been and arrested them, putting them on trial for joining a terrorist group—much to the consternation of their parents.
French policy is to systematically prosecute jihadist returnees from Syria or Iraq on charges of terrorism. According to Interior Minister Bernard Cazeneuve, the formula is straightforward: “I’m often asked what happens to people who leave to wage jihad in Syria when they return to France. It’s simple: They’re connected with a terrorist enterprise, [so they’re] arrested and handed over to justice.”
This policy has the merit of both moral clarity and political expediency. Fighting for the Islamic State in Iraq and Syria (ISIS) is wrong and a criminal act in almost every country, as affirmed unanimously by the UN Security Council in a September session chaired by President Obama. Even by the lowest possible standard—that of terrorist groups—ISIS is brutal and evil, and Western governments should try to weaken this group whenever possible. More pointedly, a terrorist who carried out an attack after security services had passed on a chance to arrest him would embarrass the security services and enrage the public. This is how intelligence chiefs lose their jobs.
Shane Harris, national security writer for the Daily Beast, was the first ever guest on the Lawfare Podcast, back when it was the most experimental of features. Now, just in time for our 100th episode, he has put out a new book, @War: The Rise of the Military-Internet Complex.
This week at Lawfare, a debate over President Obama’s stated support for a new AUMF to deal with ISIS dominated our content. Bobby, Jack, Matt and Ben formulated a draft AUMF to get the discussion going.
Jack followed that up with a post on why a substantively neutral but procedurally constraining AUMF makes sense.
Ben explained why three of the six AUMF principles that Just Security put out are flawed. Steve Vladeck later responded to him, asserting that Ben agrees with Just Security’s AUMF principles on “just about everything that matters.” Ben then responded to his post, arguing that if there is agreement, it is because Steve is “moving the goalposts.”
John Bellinger, meanwhile, criticized both the Lawfare and Just Security AUMF proposals and wrote that the lame-duck Congress should not sunset the 2001 AUMF. Jack proffered two quick reactions to this take.
Wells argued that a significant, if still-undiscussed, part of the ISIS AUMF debate should focus on the language of the next AUMF’s preamble.
Ben outlined why the AUMF debate even matters.
Jack explored the legal consequences of the reported cooperation between ISIS and al Qaeda in Syria and what implications such a collaboration would hold for AUMF reform. He also shared a CRS analysis of the seven proposals for a new AUMF currently circulating in Congress.
Additionally, Jack noted an event at the Wilson Center on an ISIS AUMF and related issues featuring himself, Senator Tim Kaine and former Representative Jane Harman. Later, Wells shared a transcript of Senator Kaine’s remarks at the event.
And just this morning, Jack wrote a piece with Steve and Ryan Goodman highlighting common ground among the two proposals.
Alex Ely linked to the recent OHCHR report that uses first-hand accounts to describe ISIS’s “rule of terror” in Syria.
Relatedly, Lawfare debuted a new feature this week: “Throwback Thursday.” Check out the first edition of the Lawfare #tbt, which focuses on the lingering saliency of the Sykes-Picot Agreement for the modern Middle East.
Wells noted that the DC Circuit temporarily stayed the US’s appeal in the Al Nashiri case, pending consideration of a petition for a writ of mandamus. He also shared Charlie Savage’s scoop in the Times concerning the Obama administration’s decision this week to recognize that the Convention on Torture restricts how the US can treat prisoners in certain places abroad. John expanded on the significance of the decision, which contravenes the Bush administration’s theory on the subject.
Cody highlighted Judge Gladys Kessler’s decision this week to deny Guantanamo detainee Abu Wa’el Dhiab’s bid for a preliminary injunction against certain force-feeding procedures.
Paul observed that a judge rejected a request by terror victims to transfer to their control the .ir, .kp and .sy domains from administrators in Iran, North Korea and Syria, respectively.
Stewart Baker brought us the 42nd edition of the Steptoe Cyberlaw Podcast, which featured an interview with Orin Kerr.
Ben responded to a recent Pew study and asserted that it says exactly what you would expect on privacy, surveillance and other matters.
Jane noted that the appellees in Klayman v. Obama filed a supplemental brief and summarized its contents.
Paul was invited to speak at the November 12th open meeting of the Privacy and Civil Liberties Oversight Board on “Defining Privacy.” He provided the text of his remarks to the body, entitled, “Privacy as a Utilitarian Value.” Wells also linked to the hearing.
Tara noted that the Office of the Director of National Intelligence released the latest declassified Foreign Intelligence Surveillance Court Primary Order pertaining to telephony metadata.
Orin Kerr shared the final version of his article, A Rule of Lenity for National Security Surveillance Law, which was posted online at the Virginia Law Review website.
For the 99th iteration of the Lawfare Podcast, we ran a speech by Jack onPresident Obama’s war powers legacy.
In this week’s Foreign Policy Essay, Elizabeth Economy, the C.V. Starr senior fellow and director for Asia studies at the Council on Foreign Relations, argued that Xi Jinping’s attempts to transform China are fracturing the country and will limit Beijing’s influence in the near future.
Apropos of China, Jack argued that the much-vaunted climate “deal” between the US and China does “less than has been hyped.”
Matt and Ken responded to the recent Times article on autonomous weapons and asserted that “with proper international and national-level processes,” emerging autonomous systems can be regulated within the existing LOAC framework.
Peter Baker reviewed Lawrence Wright’s new book, “Thirteen Days in September: Carter, Begin, and Sadat at Camp David.”
Ben offered the readership a friendly reminder about the importance of contributing to Lawfare. Here’s another one:
Finally, on behalf of all of us at Lawfare, Wells extended to veterans and their families a note of profound gratitude for their sacrifices.
And that was the week that was.
[Cross-posted at Just Security]
The three of us have coauthored an Op-Ed in Sunday’s Washington Post on the topic of congressional authorization for the use of force against ISIL and the 2001 AUMF. We outline the broad underlying agreement we personally share and that we believe is shared by two proposals published earlier this week at Lawfare and Just Security.
The UN Office of the High Commissioner for Human Rights has just released a report on the condition of civilians living under ISIS rule. The document is based largely on first-hand victim and witness accounts, which in many cases were confirmed by the group’s own use of social media and publications. Even for those who have been following the issue closely, and who harbor no illusions about the brutality and extreme ideology of ISIS, the extent of the human rights violations detailed in the report—and the awful picture that the first-hand accounts paint of daily life in ISIS-controlled Syria—is simply staggering.
The report begins with a key observation: ISIS is unlike other belligerents in the Syrian Civil War, who seek to conceal evidence of atrocities when committed. Instead ISIS not only revels in brutality, but also uses social media and modern communications so as to broadcast it, and thus to generate new recruits and spread terror throughout the region. The campaign of systematic violence therefore is advertised to the world deliberately, as a part of ISIS’ overall strategy. This distinguishes ISIS from many other modern terror regimes—North Korea comes to mind—where the true extent of atrocities committed is denied publicly.
The full report is certainly worth a read. Here are some of other significant portions:
- In addition to the violence that it imposes on the broader civilian population, ISIS also interferes with the work of doctors seeking to aid the injured and sick. One witness reported that ISIS would arrest people that sought to leave ISIS-controlled areas in order to get medicine. (Para. 22)
- Actions taken against the Kurdish civilian population amount to forcible displacement, a crime against humanity. (Para. 29)
- ISIS has attacked and destroyed churches, historic monuments and other religious buildings, in violation of customary international law. (Para. 31)
- Public executions in city squares—widely documented in news reports—are often accompanied by public displays of corpses, sometimes for days on end. One witness described the body of a 16-year old boy, hung on a cross in a public square “for people to see what it looks like to be punished by ISIS.” Witnesses also described severed heads placed on spikes along park railings. (Para. 33, 34)
- A strict dress code is enforced against women, requiring full covering, and regular checkpoints are set up to ensure compliance. (Para. 48). These reports recall Al Qaeda in the Islamic Maghreb’s takeover of Northern Mali in 2012-2013, where female residents were brutally punished for not conforming with dress code requirements.
- The curriculum in area schools has been reformatted to conform with ISIS ideology, with education being used as a tool of indoctrination, including weapons training for future ISIS fighters. (Para. 60)
On the same day that ISIS’s Chief, Abu Bakr al-Baghdadi, re-emerged in a 17-minute audio recording, the United States’ top general, Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey, told the House Armed Services Committee that he would consider deploying a small number of US troops alongside of Iraqi forces in operations to retake Mosul and other critical areas under ISIS control. The Chairman made clear that at this point, he did not see such an operation as necessary, but that his advice was subject to change based on a number of assumptions that could shift during the conflict.
As Dempsey suggested that the government of Iraq will need about 80,000 Iraqi security forces in order to retake lost territory, he also made clear that the fight against ISIS would not be Iraq. 2.0, saying “I just don’t foresee a circumstance when it would be in our interest to take this fight on ourselves with a large military contingent.” The New York Times has more on the general’s testimony, while Foreign Policy carries a long-read interview with former Iraqi Defense Minister Abdul Qader Obeidi who argues that a spring offensive by Iraqi security forces is unrealistic and that any operation will require close U.S. assistance.
The Associated Press is reporting that the Islamic State and the al Nusra Front, an element of al Qaeda, have reached an accord, promising to stop fighting one another and to work together against their opponents. The news has serious implications for the Coalition’s strategy in the region, presenting new difficulties for the U.S. strategy that relies on arming moderate Syrian rebels. Analysts do not expect a full merger of the two groups, but those moderate rebels could be wiped out by coordinated opposition from the combined Islamic extremist forces.
In Lawfare, Jack offers his thoughts on the legal consequences of ISIS and al Qaeda cooperation and its implications for AUMF reform, writing that “IS’s sliding in and out and in again to 2001 AUMF coverage highlights how far out of sync the 2001 AUMF is with modern counterterrorism challenges.”
Back in Syria, AFP reports that the United States has once again bombed the Khorasan group, the name for a hardened cell of al Qaeda affiliates in Syria.
Midday yesterday, I ran into a prominent national security reporter on the street near Brookings. The conversation quickly turned, as conversations tend to turn in our circles in Washington these days, to proposals for a new AUMF. We talked briefly about the one that Jack, Bobby, Matt, and I had drafted and about its areas of common ground and difference with the AUMF principles posted on Just Security. But before I knew it, I was off on a odd verbal jag: Why is this subject even important at all, I was wondering aloud on a street corner?
We are, after all, already attacking ISIL with military force. The lack of a congressional authorization hasn’t stopped the president from hitting the targets he wants to hit. The presence of one—should Congress pass it—will not materially change the target list. The military is not going to refuse the orders to strike ISIL targets in Syrian or in Iraq, or Al Qaeda affiliated targets elsewhere because Congress fails to act. So why exactly does it matter at all whether Obama seeks an authorization, or whether Congress passes one? Standing there on 17th Street NW, I found myself wondering to this reporter whether these authorization discussions are ones we all go through because they’re really interesting legal puzzles but ultimately have little functional importance. If we are going to do the same things whatever Congress does, isn’t the exercise really more of a Fourth of July-type civic celebration of democratic forms than a real exercise in writing rules?
Prior to this conversation, I confess I was not especially aware of having doubts about the importance of the AUMF reform question, but I’ve been thinking ever since about whether it does, in fact, matter, and if so, why? The answer is not obvious, and we tend to skate over it. We go right to the question of whether and how the AUMF should be revised, whether and what sort of new one is a good idea. We don’t spend a lot of time discussing why the presence or absence of an AUMF matters. And when we do, we tend to use catch-all phrases like “congressional buy-in” or “democratic legitimacy.” We have this sense that it matters a lot to the balance of power between Congress and the executive branch, but we also know perfectly well that the President can—and has—ordered troops into combat in situations that clearly exceed his inherent authority to use force. So in fact, the president does not as an empirical matter need Congress. If he decided tomorrow to launch an unprovoked strike against, say, Teheran, I have no doubt the order would be carried out. Military campaigns with no plausible self-defense rationale have already taken place; think only of Libya. So what role is an AUMF really playing beyond the show of civic participation? Is it no more than a display of consent by the people’s representatives for what everyone knows is going to happen anyway—a display that maintains what is really a fiction that such consent is necessary?
A couple of months ago, I noted an interesting law suit brought by several victims of terrorist attacks. They had secured default money judgments against Iran, North Korea and Syria for those country’s alleged complicity in supporting terror and their own resulting injuries. Sadly, for the victims, none of these countries had assets subject to American jurisdiction that could be attached to satisfy the judgments they had secured.
So they came up with the novel idea of seeking to attach the domain names for these countries – the .IR, .KP and .SY country code top level domains (ccTLDs) that identify sub domains associated with those countries. ccTLDs are managed by in-country domain managers – like the Iranian ministry of interior.
To effectuate the seizure the plaintiffs brought an action in the District Court in Washington DC to compel the Internet Corporation for the Assignment of Names and Numbers (ICANN) to reassign the top level domains from their current administrators (all of whom are resident in their own countries) to the plaintiff/victims. In other words, they wanted ICANN to order that future inquires about sub domains within, say, the .KP domain be directed to servers they operated, instead of a domain registry operated by the current North Korean domain manager. This would, in the end, require ICANN to order that the “root zone” – that is the authoritative listing of all top-level domain managers — be modified. As I originally noted, though I have immense sympathy for the victims of terror, their focus on seizing the domain names from the ICANN seemed misplaced, and threatened to do a great deal of harm to the universality principle that underlies network connectivity.
Well, the case has now been resolved. Judge Lambreth of the District Court has rejected the writs of attachment. He reasoned, quite narrowly, that top level domains are “property” in some sense but that their use and value is “inextricably bound to” and “cannot be conceptualized apart from” the way in which they are managed – that is that the domain does not really exist apart from the services that are provided by the domain manager, and the remainder of the DNS service function. Put another way, an address doesn’t exist apart from the service of an address book and delivery system. That seems right to me – and since the general rule (which I happily have now learned for the first time) is that services are not attachable or seizable, the result follows directly.
Thus, the law of attachment and seizure is, fortunately, in sync with the broader policy goal of fostering a universal and open internet. That goal would have been greatly damaged by the intervention of US courts in to the country-code naming process.