I participated in an extraordinary hearing before the Armed Services Committee today on the scope of the AUMF.  Lawfare readers interested in the scope of the AUMF will want to watch the hearing video carefully (or read the transcript, when available).  I have not had a chance to watch the hearing video, and I won’t today.  According to my notes of the hearing (and thus this is all provisional, pending review of the tape) DOD officials:

• Acknowledged that they had domestic authority to use force in Mali, Syria, Libya, and Congo, against Islamist terrorist threats there.  At first they strongly suggested that the AUMF provided the domestic authority, but at the very end one DOD representative tried to walk back that suggestion and said that the authority to use force in those places didn’t necessarily rest (or some such formulation) on the AUMF.  As best I can tell he did not walk back the claim that some authority exists and that it might be the AUMF.

• Emphasized that they were satisfied that current authorities suffice to meet the threat.  In light of the extraordinarily broad interpretation of extant authorities on display today, and the secrecy of AUMF determinations, it is hard to assess that claim.  DOD officials also said that they were actively considering emerging threats and stated that it was possible they would need to return to Congress for new authorities against those threats but did not at present need new authorities.

• Discussed the “murkiness” and “shifting” nature of memberships and alliances among al Qaeda affiliates, and how challenging it is to make “associated forces” determinations under the AUMF.

• Emphasized that the conflict authorized by the AUMF was not nearly over.  At one point one DOD official claimed that the end of the AUMF conflict was “a long way off.”  At another point an official said the conflict would last “at least 2-3 years.”  At another point an official used the figure of 10-20 years, although as Senator Levin pointed out this may have been a reference that included extra-AUMF Islamist terrorist threats, and not AUMF groups themselves.

• Stated that they would provide the Committee with a list of terrorist groups covered by the AUMF.  (That should be an interesting (and probably classified) list.  But: Why does the Armed Services Committee – which supposedly receives regular briefings from DOD about the shadow war – not know the answer to that question!?)

• Appeared to state that the legal determination of groups covered by the AUMF is made within DOD subject to inter-agency scrutiny.

My general impression of the hearing was that (1) DOD officials were very uncomfortable talking about how they interpret the AUMF and what groups are covered by it, (2) those officials interpret the AUMF very broadly, and (3) several members of the Committee were surprised by the breadth of DOD’s interpretation of the AUMF.  I came away thinking that Congress cannot address the problem of extra-AUMF threats until it gets a handle on how the AUMF is being interpreted and deployed.  I also came away thinking more than ever that Congress needs to re-engage in a serious way about the nature and scope of the conflict against al Qaeda and affiliates.  Amazingly, there is a very large question even in the Armed Services Committee about who the United States is at war against and where, and how those determinations are made.

PS: I want to emphasize again that I wrote this post quickly and the representations made above are based on my notes.  Anyone inclined to rely on my representations should first consult the actual hearing video.

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I’ve been in Germany all week (at the George C. Marshall Center which, for those who don’t know, is a joint US-Germany military think tank and an altogether wonderful place to visit) so I missed some of the details of the recent arrest of an alleged CIA operative and his expulsion from Russia until recently.

I will leave it to others to unpack the allegations (though, honestly, they strike me as a bit trumped up — the CIA doesn’t have $100K to throw around) but one aspect of the story of his arrest struck me as having a cybersecurity connection (yes … I know … everything strikes me that way).  But this aspect was sufficiently implausible that it seemed to deserve comment.

According to news reports the American spy instructed his agent to communicate with him through a purported CIA’s e-mail address: unbacggdA@gmail.com.   On its face this allegation suggest one of two things: Either, the CIA is utterly unaware of how Gmail works and our tradecraft has seriously deterioriated, or this factual allegation is a fiction.  I can’t think of any other option.

A word of explanation:  Gmail accounts are not secure.  Yes, Google, encrypts your mail from end-to-end so that the communication cannot generally be penetrated by an outsider.  But Google itself keeps a copy of your email and is capable of decrypting it.  This it may do for its own purposes (e.g. in order to decide what ads to push to you) or in response to a lawful court order and criminal investigation (as General Petraeus found out to his regret).  I find it difficult, if not impossible, to believe that it would be affirmative US spycraft to instruct our valued covert assets to use Gmail as a means of communication.  Maybe I’m wrong — after all, the Petraeus case itself suggests a blind spot.  But I sure hope not and, candidly, expect that this is not the case.

And that in turn leads me to wonder about the rest of the story ….after all, the legal maxim is “false in one thing; false in all.”

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Ben quotes from this morning’s Washington Post editorial on AUMF reform, the last two sentences of which assert that “Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to ensure that this president and his successors have the authority they need to defend the country.”

There are at least two problems with this statement, both of which go right to the core of the editorial–and of the larger debate over whether a new AUMF is necessary: First, is it really “wise” for Congress to spend its limited time providing the President with use-of-force authority he doesn’t think he needs?

Second, and more significantly, a lack of congressional action does not prevent the President from acting in self-defense where necessary. The age-old debate over the scope of the President’s “inherent war powers” is primarily about their scope, not their existence. Put another way, the Post‘s not-so-subtle insinuation to the contrary notwithstanding, it wasn’t the absence of an AUMF-like statute that prevented the Bush Administration from stopping the 9/11 attacks; it was a breakdown in the sharing of intelligence and law enforcement information. (That’s why Jen and I dismissed this argument in our paper as a “red herring.”) Instead, the real question is why self-defense authorities would be inadequate in cases in which law enforcement and intelligence tools prove insufficient and/or unavailable. To that, this morning’s editorial has no answer.

[Update: As several readers have written in to point out, the best evidence that the U.S. did not lack legal authority to use force against al Qaeda on or before September 11 is the fact that we did in fact use such force--e.g., in response to the 1998 embassy bombings.]

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The Washington Post this morning has this editorial on AUMF reauthorization. It opens:

THE OBAMA administration’s political and legal authority to wage war against al-Qaeda has steadily eroded. Both liberal and conservative members of Congress have challenged the administration’s lack of transparency in conducting drone attacks against alleged al-Qaeda operatives in Pakistan, Yemen and Somalia. Foreign allies as well as adversaries have asked whether the United States has arrogated the right to kill enemies anywhere in the world. Meanwhile, the appearance of new branches of al-Qaeda in northern Africa and, most recently, Syria has raised the question of whether the legal authority Congress granted in September 2001 for using military force applies to those groups.

Lower down, it discusses the SASC hearing today, at which Jack will be testifying, and it discusses as well the paper on which Jack’s testimony is based:

[W]e support an effort by the Senate Armed Services Committee to explore, beginning at a hearing Thursday, whether the 2001 Authorization to Use Military Force (AUMF) should be revised.

The law authorizes the president to use force against “those nations, organizations, or persons” responsible for the attacks on New York and Washington. The Bush and Obama administrations have been backed by the courts in interpreting that language to allow attacks on the Taliban and al-Qaeda as well as “substantial supporters” and “associated forces.” But many legal experts have questioned whether a law aimed at Osama bin Laden and his cadre could be used to justify a drone strike against jihadists plotting an attack against the United States more than a decade later and thousands of miles from Afghanistan.

A group of legal experts, including Robert Chesney of the University of Texas, Jack Goldsmith of Harvard, Matthew Waxman of Columbia and Benjamin Wittes of the Brookings Institution, has proposed that Congress consider revising the AUMF to authorize presidents to designate emerging al-Qaeda affiliates that pose a threat to the United States as covered by the force authorization. Such legislation could put into law criteria for adding militants outside conventional battle zones to strike lists and require greater disclosure. Sen. John McCain (R-Ariz.) has said he will seek to put together a bipartisan group to consider such reforms.

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For those who’d prefer the shorter version of Jen Daskal and my draft paper on life “After the AUMF,” we’ve got a short op-ed out in today’s New York Times with a far less alliterative title: “Don’t Expand the War on Terror.”

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Over the next few weeks, we will be starting our rollout of the Lawfare Wiki Document Library. The library will have many facets, and we will be introducing it piece by piece, sometimes page by page. The first page, a kind of template for what we hope to do with a lot of cases in the future, is a case summary page for the long-running case of Ali Hamza Ahmad Suliman Al-Bahlul, which started in a military commission and has made its way to the D.C. Circuit Court of Appeals. As the reader will see, the effort is to provide the key documents from all stages of the case with a minimum of commentary and no opinion at all—and to maintain it and expand it as the case progresses in the future. We would welcome help from readers who follow the case in managing this page, which was created by Raffaela Wakeman, and from readers who follow other cases in creating their case- and docket pages. Those interested in helping out should email Raffaela for information about how to get involved in editing and helping build the library.

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Lawyers for Hani Saleh Rashid Abdullah, a Yemeni detained at Guantanamo, yesterday petitioned the D.C. Circuit for a writ of mandamus.   The gist: Abdullah wants the circuit court to force the district court decide a long-pending motion of his.

While pursuing his habeas case, in 2010, Abdullah moved for a preliminary injunction.  Among other things, this challenged his continued detention as contrary to a 1946 executive agreement between the United States and Yemen.  The government naturally opposed the bid.  But the district court did not resolve the matter.  Exasperated, the detainee’s lawyers this April filed a supplemental memorandum in support of preliminary relief.  It also prompted no reaction from the district judge.

The protracted delay seemingly brought on Abdullah’s mandamus petition, which begins as follows:

On April 5, 2013, the United Nations High Commissioner for Human Rights concluded in a public statement that the designation of prisoners at Guantanamo for indefinite detention puts the “United States … in clear breach not just of its own commitments but also of international laws and standards that it is obliged to uphold. When other countries breach these standards, the US – quite rightly – strongly criticizes them for it.”

In his motion for a preliminary injunction filed October 10, 2010, Abdullah made exactly this point and requested an injunction declaring the illegality of indefinite detention and restraining respondents from so detaining him. The court has taken no action on this motion. The High Commissioner also observed that when the legality of detention is tested in court “Any ensuing judicial proceedings must scrupulously respect due process and fair trial standards.” Id. Read more »

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The Benghazi attacks get more polarizing by the minute: Karen DeYoung of the Washington Post reports that White House Press Secretary Jay Carney has accused Republicans of leaking a falsified email to the media last week about the the talking points. Read about the saga from CNN’s Jake Tapper and Justin Sink of the Hill.

The Associated Press reports on Guantanamo Bay detainee Musa’ab Omar Al Madhwani’s declaration in federal court last month—and on the state of limbo many of the other prisoners are in. A Yemeni national, Al Madhwani is currently participating in a hunger strike at the prison to protest his detention; he has been held at Guantanamo Bay for eleven years. The D.C. Circuit affirmed his detention in this decision in May 2011.

Carol Rosenberg of the Miami Herald tells us that twenty human rights organizations have written a letter to Secretary of Defense Chuck Hagel asking him to stop the “inherently cruel, inhuman, and degrading” process of force-feeding detainees at Guantanamo Bay. Apparently it’s not inherently cruel, inhuman or degrading to let them die.

Speaking of Secretary Hagel’s woes, Stephanie Gaskell of Politico reports that Hagel announced yesterday that he will furlough 800,000 civilian employees for eleven days this summer because of sequestration. The furloughs are expected to save the Pentagon $1.8 billion this fiscal year.

House lawmakers, meanwhile, have also sent Secretary Hagel a letter, saying that the furloughs are “misguided” and his decision “flies in the face of implementing sequestration prudently.” The Hill has more.

In a bizarre comedy of errors, one Ryan C. Fogle, a low-level diplomat at the U.S. embassy in Moscow, was ousted from Russia after a theatrical arrest for allegedly attempting to recruit a Russian to spy for the CIA. Here is the New York Times with more.

Four Somali gentlemen from Minneapolis have been sentenced to time in prison—two for providing material support to terrorists, and two for conspiracy to provide such material support. The Associated Press has the story, as do Randy Furst of the Minneapolis Star Tribune and Brandt Williams of Minnesota Public Radio.

After UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson chatted with Ben and me yesterday for a special edition of the Lawfare Podcast, he gave a public talk at the New America Foundation. Here is the video:

According to the New York Times, cyberattacks are targeting American corporations, and—wait for it—the Chinese don’t seem to be behind them. Officials say the attacks are from somewhere in the Middle East, and are likely meant to sabotage companies.

For all of you (like my mom) who are planning to fly and take a pressure cooker with you on the plane (she flew me one from Thailand last year), consider this a Public Service Announcement: Don’t do it. (That means you, Mom!) CNN’s Todd Sperry reports on a Saudi man who has been detained in Detroit with missing pages in his passport and a conflicting story about the pressure cooker in his luggage. (My mom’s passport was intact.)

David Sedney, deputy assistant secretary of defense for Afghanistan, Pakistan, and Central Asia, will leave his very relaxing job at the end of the month, reports Foreign Policy.

Ahmed Rashid writes in the New York Review of Books about new Pakistani Prime Minister Nawaz Sharif’s resounding victory in the Pakistani elections over the weekend, and the country’s future relations with Washington. Bruce Riedel of Brookings does the same at the Daily Beast, as do Andrew Wilder and Colin Cookman at Foreign Policy.

And, in this excellent story from The Onion, we learn who else is developing anxieties about the Obama administration’s spin on Benghazi: it’s Today’s Moment of Zen:

Sasha Obama Suspicious After Doing A Little Digging Around On Benghazi

WASHINGTON—Saying that none of the facts quite add up, first daughter Sasha Obama, 11, reported being “highly suspicious” today after poking around the details of the 2012 Benghazi attack. “I’m sorry, but it just doesn’t make sense—first they blame the attack on a spontaneous demonstration, but now we find out the CIA talking points were secretly revised?” said the sixth-grader, sitting in the darkened White House library intensely scrolling through pages of articles about the controversy and classified Pentagon briefings. “Obviously, someone’s hiding something: the poor security; the al-Qaeda link; the leaked emails. All I’m asking for here is a simple explanation from the State Department and the White House, and I’m not getting one. I mean, who are they protecting here? And why?” Sasha went on to tell reporters she felt even more suspicious after former defense secretary Leon Panetta failed to respond to any of her 24 voicemails.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Charlie Savage has this story on the pre-trial agreement concluded over two years ago between the government and Noor Muhammed, a Guantanamo detainee and military commission defendant.   The piece begins:

WASHINGTON — Lawyers for a detainee at Guantánamo Bay, Cuba, who is scheduled to be transferred out of the prison in December under a 2011 plea deal have asked a judge to order the Pentagon to live up to its agreement, recently unsealed tribunal papers show.

The circumstances of the unusual request are raising new legal quandaries about the tribunal court system. The possibility that the detainee may not be released threatens to undermine the ability of prosecutors to persuade other detainees to plead guilty — and to cooperate by serving as witnesses in more important cases — in exchange for a definitive date by which they would be allowed to leave the prison.

The dispute centers on Noor Uthman Muhammed, a Sudanese man who pleaded guilty to conspiracy and providing material support to terrorism in early 2011 before a military commission. Under the terms of his arrangement, he was to serve an additional 34 months on top of the nine years he had already been imprisoned as a wartime detainee, which would position him to be repatriated in December.

But Mr. Noor’s lawyers said that the Pentagon official who oversees the tribunal system, known as the convening authority, had yet to officially approve the final disposition of his case, even though it essentially wrapped up two years ago. They contend that the official’s approval is necessary to set in motion the time-consuming bureaucratic and diplomatic process of repatriating Mr. Noor.

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In advance of Thursday’s Senate Armed Services Committee hearing on the 2001 Authorization for the Use of Military Force (AUMF), Jen Daskal and I have expanded upon our exchanges with Bobby, Jack, Matt, and Ben in a new (draft) working paper titled “After the AUMF,” a copy of which is available here.

The paper is a more comprehensive effort to explain our view re: why proposals for an expanded, open-ended AUMF, from whatever quarter and with whatever caveats, are unneccessary, counterproductive, and unwise. Instead, we offer out an alternative vision for the next generation of U.S. counterterrorism policy—one in which law enforcement and intelligence-gathering capabilities, with the backstop of self-defense authorities, are the baseline. We hope that this is an approach that Congress will take seriously if and when it decides to revisit the AUMF.

As this is an early draft of the paper, we’d both (1) welcome comments of all shapes and sizes (whether online or via e-mail); and (2) beg readers’ indulgence for typos or other early-draft indiscretions.

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The D.C. Circuit wants to know whether Ali Hamza Ahmad Suliman Al-Bahlul desires to continue challenging his conviction by a military commission.  And the appeals court wants an answer from the accused himself, as it made clear in an order issued today.   (The D.C. Circuit granted the government’s petition for en banc review; the full court will hear oral argument later this year.)

In April, Al-Bahlul had passed a note to a JTF-GTMO guard, wherein he said both that he wished to withdraw his appeal, and that he had not authorized any attorneys to file a case on his behalf in the U.S. legal system.  GTMO officials then filed Al-Bahlul’s no-go note with the appeals court; his lawyers promptly responded with a letter of their own.  In it, defense attorneys represented that they had since met with their client, and that “Mr. Bahlul … stated in no uncertain terms that, having had the opportunity to consult with counsel, he wanted to pursue his appeal at least through this Court’s review.”  Accordingly, the attorneys asked the D.C. Circuit to disregard Al-Bahlul’s earlier missive—and even offered to provide additional information, on an ex parte basis, regarding their client’s current intentions.

Now it seems the court of appeals indeed desires more information—from Al-Bahlul.  Here is the operative part of today’s order:  Read more »

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UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, came by the Brookings Institution this morning for a wide-ranging discussion on his investigation of drone strikes. We had planned the interview as a video, but Emmerson’s remarks broke enough new ground that we thought we should release the audio right away. The video will follow in due course. Hence today’s special edition of the Lawfare Podcast.

Emmerson is very impressive, and this interview might give grounds for second thoughts to those inclined to dismiss him as just another special rapporteur investigating U.S. activities on behalf of the United Nation’s Human Rights Council. He seemed surprisingly open to the possibility that, as the United States argues, the U.S. may be in a non-international armed conflict with a non-state actor, and said early in our conversation:

There is a really wide spectrum of informed, intelligent and reasonable opinion on what the basic framework issues are. And I’ve taken part now in too many high-level seminars with people who are all genuine experts in their fields addressing a problem which has multi dimensions and within each dimension multiple facets, in which it is it almost impossible to find a common agreement on the core principles. . . . There are fundamental differences on first principles, but there are also fundamental differences on all of the refinements within those principles. I am unable amongst informed opinion at present to discern a critical mass of concurrent opinion, which to me in itself is a conclusion—and is also a conclusion which points towards the need for some fairly urgent discussions in the face of a technology that is technology that is proliferating . . . at a remarkable speed.

He candidly said that he had started the investigation with certain preconceived notions about the legal paradigm that governs the American conflict with Al Qaeda and its affiliates, but says he has had those preconceptions challenged by his conversations:

I think it’s absolutely fair for me to acknowledge that . . . I did start from a position in common with other international lawyers from my side of the world, which found the new paradigm [the U.S. view] difficult to accept and follow. But I have to say that like all good conversations, the moment one begins to talk to others and see things from a different point of view, what has become clearer and clearer to me is that we get nowhere by the continuance and maintenance of entrenched positions and that, crucially, we need to listen to one another’s point of view and see what is the way forward.

Moreover, while Emmerson’s public statement on the Pakistani government’s consent to drone strikes seemed to downplay—even ignore—the possibility of private consent by the military, in this conversation, he directly acknowledged the likelihood of secret deals and permissions. It’s been a “known open secret” for some time, he said, that

there has been the provision of quite high levels of cooperation between the ISI and the Agency and indeed that members of the Pakistani military may well have provided levels of cooperation. And I don’t rule out by any means—indeed I am far from ruling out—the proposition that that cooperation on a military and intelligence level continues.

The discussion also covered Emmerson’s plans for the rest of his investigation, why Pakistan doesn’t shoot down U.S. drones, and Emmerson’s view of John Brennan’s ascension to CIA director.

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This Thursday, the Senate Armed Services Committee is holding a hearing which will cover, among other things, the question whether to alter the 2001 Authorization for Use of Military Force.  This is a question that we, Ben, and Jack addressed in a recent paper, which lays out options and recommends a statutory framework that pairs a structure for some possible future force authorizations with a robust set of checks.  We’ve welcomed debate on that paper, and although we acknowledged that the time may not yet be ripe to legislate new authorities, we think it’s important to begin serious deliberation before – not immediately after – the next big crisis.

We write here to clarify some of our views expressed in that paper, as well as to highlight some issues that we hope will be considered in Thursday’s hearing.

A license for “preemptive” or perpetual war?  No, and no.

Some critics portrayed our proposal as designed to promote “preemptive” attacks in violation of jus ad bellum norms.  Actually, quite the opposite.  The paper explicitly states (twice) that any new statutory authority should hew to international law regarding resort to (jus ad bellum) and use of force (jus in bello).  The substantive criteria by which any force would be authorized should be consistent with international self-defense law.

Some critics of our paper prefer legislative inaction on the ground that new legislation would likely expand or at least prolong an otherwise-ending war.  Our background assumption, however, is that the United States will continue using military force against terrorist threats for some time, either by continuing to stretch the existing AUMF, by quietly relying upon Article II authorities, or both.  We can debate whether that prediction is accurate, of course.  If it is accurate, however, it does raise the question whether it would not be better to have a properly-tailored statute.  As a general proposition, we think legislative engagement is important to foster serious and sustained deliberation about these operations.  Any legislative framework must promote sound strategic thinking, not substitute for it.

What checks should be built into any new legislation in this area?

Here are elements that we think are important to any legislative proposal that may emerge. The past twelve years of war against al Qaida show how important it is to get those principles and checks right, and they offer lessons to guide their formulation.  (Note: these elements are discussed in the second half of our paper referenced above):

(1) Transparency:  The President himself has emphasized repeatedly his intent to bring great transparency to this area.  It is not enough to know that the government claims or has authority to act against “associated forces” of al Qaida.  The associated forces concept is nebulous, and it is increasingly difficult to say just who or what counts as al Qaida these days in any event.  The public should understand which groups the US government claims authority to use lethal force against (something we only catch glimpses of today thanks to the occasional leak).

(2) Oversight:  It is important to make certain that Congressional oversight is operationally granular not just when the CIA acts under Title 50 but also when the military—including Joint Special Operations Command—acts under Title 10 outside of combat zones.  Processes to ensure congressional oversight must go both ways: promote information-sharing with Congress and bind Congress to a serious role in joint deliberation.

(3) Avoiding Perpetual War:  Once force is authorized, it is very difficult to turn off or unwind that authority.  Any new legislative authorization should be subject to a sunset clause, at least with respect to its specific application to a group or region.  The United States government as a whole should make clear that this is not an open-ended “global war on terror” but a cabined application of traditional self-defense to carefully limited categories of non-state threats.

(4) Substantive Limits on Strikes:  Currently, the fact that some lethal targeting operations are conducted by the CIA makes it difficult to state unambiguously that these actions comply with law of armed conflict rules of distinction and proportionality.  Legislation should codify these requirements.

This is not intended as a complete list of recommended elements for any new legislation, but these stand out as among the most important based on recent lessons and the need to put counter-terrorism operations on strong strategic as well as legal footing.  Although not directly relevant, we also think that any new legislative framework that addresses targeting operations and use of force ought to include a lifting a counterproductive legislative constraints on civilian prosecutions of some terrorism suspects captured abroad.

Would we support these proposed constraints and checks even if there is to be no fresh or expanded AUMF?

Some critics have asked us: if your proposed constraints (including substantive limits on force, oversight mechanisms, etc.) are so great, would you support them even if they came with no new expanded force authorities.  In short, yes we would.  And, to be extra-clear, we’d support the new constraints without the new authorities, to the extent applicable, but not the other way around: no new authorities without the constraints.  Thus we support the bill recently introduced by Rep. Thornberry, which would enhance Congressional oversight of kill/capture missions undertaken outside of Afghanistan when conducted by the armed forces, and we have heard other promising proposals being developed on Capitol Hill to ensure tighter communication and cooperation between the executive branch and congress with respect to targeting policy and applying the existing AUMF to groups associated with al Qaida.

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On Thursday, the Senate Armed Services Committee will hold a hearing to discuss potential revisions to the 2001 AUMF. The Hill’s Jeremy Herb reports; here’s the hearing announcement. Jack is set to testify.

Chris Strohm of Bloomberg writes that the SEC is mulling its possible role—if any—in the cybersecurity practices of SEC-regulated companies.

In a letter to the Editor of the New York Times, the ACLU’s Ben Wizner and Christopher Calabrese react to the news that policymakers may revise U.S. wiretapping laws.

Over at Wired’s Threat Level blog, David Kravets has this post.  It seems the federal government won’t say whether it wiretapped suspects charged with plotting to attack a New York City landmark.

Ethan Chorin, a former Foreign Service officer who served in Libya, penned this New York Times op-ed.  He argues that the U.S. underestimated the costs and difficulty of intervention there.  The error, he claims, in turn lead policymakers to focus excessively on Tripoli, and to ignore the country’s volatile eastern region.

The Wall Street Journal reports on Russia’s detention, for several hours Monday evening, of Ryan Fogle, a Moscow-based U.S. diplomat. Russia says that Fogle is a CIA officer, and further that he attempted to recruit a Russian intelligence official.  More detail from The Washington Post: Russia has ordered Fogle’s expulsion from the country.

The GTMO hunger strike drags on, and that’s motivated British officials to lobby for the release of Shaker Aamer, once a UK resident and these days a Guantanamo detainee.  The rigor of that lobbying effort is a matter of dispute, as this Guardian story explains.

Afghans now say they have a video of a member of U.S. Special Forces torturing civilians.  See Spencer Ackerman’s post at Wired.

Relatedly, ISAF commander General Joseph F. Dunford, Jr. categorically denies the Afghan government’s allegation that U.S. or NATO forces are responsible for an April airstrike.  The attack killed 17 women and children in Kunar province. General Dunford instead blames the Taliban, stating that “it’s been investigated ad nauseam.” Alissa Rubin has more in this Times story.

After a 26-year effort, Canada has deported Issa Mohammad.  He was convicted in Greece for participating in a 1968 airplane hijacking, but long Canadian immigration proceedings prevented Mohammad’s immediate ejection, following his arrival in Canada under a false alias in 1987. Here’s the Wall Street Journal’s Paul Vieira.

Over at the Truman National Security Project’s Doctrine blog, Scott Bates writes on a new challenge facing local law enforcement: global threats.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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This morning, I posted a link to a new article I have written with Stephanie Leutert about our efforts to edit the Wikipedia page on “lawfare.” The article describes how a volunteer Wikipedia editor named “ElijahBosley” removed all of our edits to the page. Now, someone identifying himself as Elijah Bosley has appended a set of good humored and thoughtful comments to our essay, which was published in the Harvard National Security Journal. They read as follows:

Yikes. “Jilted Bloggers Resort To Wordfare.”

Is it ironic, or foolish, that Wikipedia–an online encyclopedia anyone can edit–demands largely paper sources like books, newspaper articles, or scholarly journals? This diatribe rightly points out the silliness of assuming something on paper vetted by an editor always has greater credibility than a blog. What if it’s a third rate thinker in a second rate journal?

Valid criticism. Which is why Wikipedia gradually, with some reluctance, seems to be coming over to the idea that blogs, sometimes, can get footnoted.

Though perhaps one might consider WHY Wikipedia insists on footnotes?

Its because its an online encyclopia anyone can edit. Anyone. At all. Watch one of the more controversial pages like Enhanced Interrogation, a battle scarred smoking ruin of an article. See how many high school kids, or raving ideologues, throw in their two cents. Or one and a half. Should we indiscriminately cite their blogs?

This rant seems to believe blogs by recognized names should have special privileges Fine with me. So long as you tell me how somebody outside the field will recognize the name. Could it be–because they published a lot of books and articles?

And how do we know which bloggers are real, and worth citing (other than long experience)? I am fairly confident these bloggers are who they say they are because of where they published. And becuase they quoted an exchange on my talk page accurately, for which act of candor and respect, I thank them.

–Elijah Bosley (but how would you really know that?)

PS–B I am not going to bite at that wriggling bait on the Lawfare page for now, though I am not entirely sure whether it really fits where it is. You do realize that just as anyone on Wikipedia can undo something, so also anyone can undo the undoing?

I appreciate this response very much. And Mr. Bosley makes some good points about how one distinguishes between just anyone’s blog and one worthy of respect as a source. I’m not sure I have a solid answer regarding exactly where the line should be, but I would hope that wherever it lies, Lawfare falls solidly on the respectable side of it.

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So we learn from this Associated Press story.  It hints that the records’ acquisition may stem from a DOJ inquiry into the disclosure, last year, of classified material to the AP—regarding the CIA’s disruption of an AQAP effort to blow up a bomb on an airplane traveling to the United States.   (The AP broke the AQAP bomb story in May.)

From today’s article:

WASHINGTON (AP) — The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

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International and foreign relations law professor Michael J. Glennon has posted a new paper to SSRN, “The Road Ahead: Gaps, Leaks, and Drips,” which will be of considerable interest to both scholars and practicing lawyers trying to get their arms around questions of fundamental method in international law governing the use of force.  The article appears in 89 International Law Studies 362 (2013). (This is the famous “Blue Book” long published by the Naval War College; under the leadership of editor-in-chief Michael Schmitt, it is now moving to online publication, and I’m privileged to serve on the advisory board.) Volume 89 is a treasure trove of writing on two thorny issues in the law of war today: the geography of conflict and questions of cyber conflict – readers of Lawfare will recognize many of the authors from this blog, and the whole volume is highly recommended.  Glennon’s abstract is as follows:

Neither international law generally nor the law of armed conflict in particular is complete. Each contains apparent gaps, which are filled by the “freedom principle” (which permits states to act absent an established prohibition). Whether a specific gap exists must be determined case-by-case. It is unlikely that, if gaps do exist in the rules governing cyber-conflict, those gaps will soon be filled; the conditions necessary for the creation of effective international rules regulating cyber-conflict do not currently obtain. Among the most important of those conditions is attributability, which makes possible the threat of retaliation and deterrence. While the “attribution problem” remains a serious impediment to the formulation of effective international cyber-conflict rules, this barrier is mitigated by the possibility of leaks of the sort that occurred with respect to Stuxnet. The most likely future scenario is still, however, the continuation of “drip-drip” cyber-attacks that cause considerable damage.

The precise controversy driving this essay is cyber conflict and the widely discussed Tallin Manual that Michael Schmitt has been widely disseminating.  Glennon is skeptical about the Tallin Manual’s fundamental approach to cyber conflict issues – skeptical the law is complete enough to be able to answer the necessary questions.  Much of the skepticism arises from the problem of attribution – if one can’t identify the source of the cyber attack, or do so in a way that can convince the rest of the world, retaliation and deterrence won’t work.

The long-run importance of this article (particularly in relation to Glennon’s run of writings on method in international law over the past few years, including an important 2010 book on the subject, The Fog of Law: Pragmatism, Security, and International Law, as well as articles in Policy Review and elsewhere) is likely to be not specific disputes about the Tallin Manual or cyber, but instead the “meta” issues of international law method.  On this “meta” matter (at least on my reading of this article), it is not so clear that Glennon and Schmitt would disagree over method in international law as a general proposition, even while differing as to how much “law” is available to answer specific questions today regarding cyber. Read more »

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A few months ago, I was asked to give a talk at the Pentagon on the concept of lawfare. I opened it with a story about how some months earlier I had tried had tried to edit the Wikipedia page on the word “lawfare” to include some of the more nuanced discussions of the subject we have had on this site. Rather to my surprise–and to the surprise of the woman with whom I was working on the project, Stephanie Leutert—our edits were taken down almost immediately, on grounds that Lawfare is a blog, not a reputable source. The perverse result was that reflections on the meaning of the word “lawfare” by Jack and by General Mark Martins were removed from Wikipedia in the name of quality control. As you can imagine, this story produced some mirth at the talk, so on the Metro back to Brookings that day, I decided to write a story about it, publish that story in reputable journal, and then make the changes again—cited this time not to this mere blog but to an actual law review article.

The folks over at the Harvard National Security Journal were good enough to publish Stephanie and my article this morning. Readers may find it entertaining. It opens:

A large, powerful organization with enormous influence over public debate is stifling discussion of an important national security issue. It has censored emerging ideas by prominent intellectuals and practitioners in the field. It makes irrational, outdated choices about what sources constitute acceptable reading for the public’s delicate eyes. Its conservatism about reputation and sources stifles the contribution of new media to the discussion—and thus has the effect of perpetuating stale ideas.

We’re not talking about the CIA, the NSA, the military, or the media.

We’re talking, of course, about Wikipedia.

In June 2012, we tried to edit the crowd-sourced encyclopedia’s entry on the word “lawfare”—a portmanteau of the words “law” and “warfare” which has come to refer, broadly speaking, to the use of law as a weapon of war. One of us (Wittes) is a co-founder and the editor in chief of the Lawfare Blog, a multimedia website devoted to the intersection of national security and law. The other (Leutert) is a research associate at a prominent foreign policy-oriented think tank in New York, who was helping Wittes, on a freelance basis, to develop a separate personal web site and add material to his Wikipedia entry. The goal in editing the “lawfare” entry on Wikipedia was not to advertise the Lawfare Blog—though that certainly would have been a happy collateral outcome. The goal, rather, was to expand the debate on national security and, in particular, the conversation surrounding the term “lawfare,” by incorporating into Wikipedia’s dry and narrow definition of the word some of the rich discussion of the term’s meaning that has taken place on the Lawfare site, where a number of prominent scholars and practitioners have reflected on the word’s meaning.

Rather to our surprise, our edits were almost immediately undone; the material we added was, literally within minutes, removed. The reason? The disreputable nature of blogs. Wikipedia is, as we shall explain, somewhat inconsistent on this point, but as to the word “lawfare,” it enforced its no-personal-blog rule with a brutal kind of rigor. The consequences are bizarre: As a result of this rule, Wikipedia denies its readers access to the thoughts of an active-duty brigadier general who currently serves as chief prosecutor of the U.S. military commissions, as well as those of a Harvard Law School professor who happens to be among the world’s most renowned national security law scholars.

The incident, which we presume is not unique, suggests that Wikipedia’s policies may require reconsideration.

Stephanie this morning reentered our changes to the Wikipedia page. As of this writing, they are still there.

UPDATE: This excellent comic from XKCD seems somehow relevant (h/t Ken Anderson)

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Many thanks to Ritika for taking the Roundup wheel, so to speak, while I was out of the office for a few days.

David Sanger and Nicole Perlroth have this important piece in the New York Times on cybermatters.   The gist: DHS recently cautioned that U.S. companies providing critical services face a heightened risk of cyberattack.  Fear motivated the agency’s warning, which the Washington Post’s Ellen Nakashima covered last week.  One government official worried aloud that “someone is looking at how to take control of these systems.”

Also at the Times, Nick Bilton and Nicole Perlroth report on the Syrian Electronic Army’s takeover of, among others, The Onion’s Twitter account.

The Wall Street Journal shares the transcript from a conversation among experts about mandatory cybersecurity standards for the private sector.  Brent Kendall in the same paper discusses the Federal Trade Commission’s claim that  its consumer-protection powers authorize the agency to regulate certain companies’ cybersecurity policies.

Cyber-news from the Empire State: Governor Andrew Cuomo has established an advisory board that will explore improving the cyber-defense of New York’s infrastructure and information systems.

There’s still quite a lot of post-Benghazi hearing analysis out there, including these two NPR pieces: one about the absence of Accountability Review Board chair Ambassador Thomas Pickering from last week’s congressional hearing; and another about the GOP’s charges against former SecState Clinton, and their implications for her potential presidential run.  The New York Times’s Peter Baker also analyzes Ambassador Pickering’s explanation for why the Board didn’t question SecState Clinton, and the Times’s Room for Debate reviews her tenure as SecState.

The AP reported over the weekend that Egypt’s security forces have arrested three individuals suspected of plotting attacks on an “unspecified foreign embassy” and other places in Egypt.

And over in Afghanistan, that country’s authorities say they have proof that Americans, including members of U.S. Special Forces units, have tortured and murdered Afghan civilians. Rod Nordland reports at the Times.

Republican Senator John McCain thinks the Joint Chiefs of Staff are avoiding the imposition of a no-fly zone in Syria.  (The senator wants the U.S. to do more to support the anti-Assad forces.)  Sam Baker of The Hill covers McCain’s remarks over the weekend.

And now that Pakistan’s elections have concluded, the victor, former Prime Minister Nawaz Sharif, says that he would like to strengthen the Pakistani-U.S. relationship. His remarks came in this interview with the Wall Street Journal.

Late last week Guatemala’s former dictator, Jose Efrain Rios Montt, was found guilty of genocide and crimes against humanity in a Guatemalan court. The Economist notes the significance of his conviction.  The Wall Street Journal’s Nicholas Casey also discusses the case’s implications for the country’s current president—who, according to a prosecution witness, participated in the genocide as well. The Journal story also tells us that the judge in Montt’s trial ordered prosecutors to launch investigations into the roles of those under Montt’s command.

As Ben noted over the weekend, NPR had this lengthy All Things Considered piece about GTMO.

Wired’s David Kravets notes a provision in the Senate’s immigration bill.  It would authorize the creation of a DHS photo database, which employers would use in order to verify new hires’ identities. Privacy advocates are, unsurprisingly, concerned.

An uncomfortable development in public health: France has confirmed a second case of a SARS-like infection. The victim shared a hospital room with the country’s first confirmed case, who may have contracted the virus while on a trip to the United Arab Emirates. Here’s the Journal with more.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Not for the first time, and certainly not for the last, it appears that the Supreme Court disagrees with me–and doesn’t think the constitutionality of courts-martial for civilian contractors is worth its time. [H/T: SCOTUSblog.]

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Thomas Nachbar  (well known to many Lawfare readers – University of Virginia law professor and US Army reservist in the JAG Corps, among other roles) has posted to SSRN a paper originally published last year in the military strategy journal Parameters (Spring 2012), “Counterinsurgency, Legitimacy, and the Rule of Law.”  Although much has happened in the year since the article was published, the fundamental theme of legitimacy in counterinsurgency is one that will be around for a long time.  This essay offers much to think about on the basic theory of legitimacy and its role in conflict and counterinsurgency.  It is relatively short – less like an academic law article and much more a finely written long-form essay.  Here is the SSRN abstract:

Law features more prominently in warfare today than in any time in memory. Stories about the legality of detaining “unlawful combatants” or “unprivileged belligerents” in Guantanamo Bay are in the headlines weekly. The current set of conflicts may prove to be the most heavily litigated in human history. The current conflicts have seen an even greater expansion of law’s role in war, though: law as a means of warfare. Both the military and U.S. civilian development agencies have embraced these ostensibly legal activities – referred to generally as “rule of law” – for their contribution to our campaigns in both Iraq and Afghanistan.

Law’s ascendance as a means of warfare is tied to the ascendance of counterinsurgency as a form of warfare. Counterinsurgency, as a contest between opposing groups to be recognized by a particular population as their legitimate government, necessarily places the host nation government’s legitimacy at the center of the conflict. Establishing the rule of law, then, is important to counterinsurgents because of its contribution to a government’s legitimacy.  Nevertheless, the counterinsurgency and stability operations doctrine lack both a meaningful definition of legitimacy and a model for how the rule of law contributes to legitimacy. Counterinsurgents are hardly the first to address the problem, though. Questions about how legitimacy and law operate together have long been studied in both jurisprudence and social psychology. The two fields come at the question quite differently, but both offer important insights into what legitimacy means to counterinsurgents and how it can best be built as part of a counterinsurgency campaign.

The theory of legitimacy, it seems to me – glossing Nachbar’s essay – is peculiarly over-used and under-theorized.  This is true in several different ways, but one way contrasts international law and international relations. Mainstream political science and international relations – still deeply rational choice and behaviorist, so far as I can tell – has difficulty identifying or theorizing the concept.  The Stanford political scientist (and my good friend) David Brady snorted in disbelief at a Hoover Institution discussion when I raised the concept of legitimacy in a national security discussion; when “we tried to operationalize legitimacy” for study, he said, it “didn’t seem to amount, as operational, measurable behavior, to anything other than ‘repeated obedience’ to authority.”

I’d humbly suggest that this purely “transactional” approach under-appreciates, and under-theorizes, the notion of legitimacy by a large margin (and I also appreciate that there are important sub-disciplines in IR that don’t do this).  But the problem is, if your method of doing IR or political science is limited to behaviorism – measuring observed behaviors by various actors – then you won’t be able to grasp the core of legitimacy. Whether such a thing “exists” or not, by definition and in its very conception, it is genuinely psychological and internal, a habit of repeated obedience, done from a specific affective condition, viz., an internal belief in the rightness of the authority to which one gives this habitual obedience.  This actually has serious real world consequences.  After all, if one’s theory of legitimacy lacks this notion of internal psychology, you won’t have a basis for saying whether the actor (or many actors) obeys purely from a fear of punishment in the moment, or does so habitually from a belief in authority and its moral correctness.  Moreover, the very distinction between “power” and “authority” depends upon the internal and psychological predicates of legitimacy; mere power becomes authority because power is accepted, internalized, habitualized, and normalized as being “legitimate” and obedience to it accepted as “right.” Read more »

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Attorney General Eric Holder yesterday made these remarks at the University of California Berkeley School of Law’s Commencement. In addition to the normal graduation-speech fare, he said the following:

How we respond to such adversity – as leaders, as lawyers, and as Americans – represents a defining issue of our time.   And as we reflect upon these threats this morning, each of you must consider some important questions: How can we uphold the values, and remain true to the highest ideals, of our legal system – while keeping pace with 21^st-century threats?   In what ways could we, or should we, adapt and adjust this system consistent with our finest legal traditions?   Above all, how can we be nimble in our pursuit of justice without sacrificing our dedication to our values and the rule of law?

None of these questions are rhetorical.   Their answers are being debated every day – not only in seminars at world-class institutions like this one, but in the Executive Branch and the halls of Congress as well.   Especially since last month’s horrific attacks at the Boston Marathon, the urgency of this discussion has come – once again – into sharp focus.   Complicated and emotionally-charged issues of principle and procedure have been thrust back into the national spotlight.   And the importance of finding the right answers would be difficult to overstate.

It is in such moments of difficulty and crisis – when cases are most shocking, emotions are running high, and fear is at a fever pitch – that our legal system, and all who serve it, are truly put to the test.  At times of maximum danger we must always restrain the impulse to implement that which we might think to be effective but, indeed, is surely inconsistent with our treasured values.   It is also important to remember, in these trying times, that nothing can be taken for granted.   Positive outcomes are not preordained.   As history teaches us, our great country doesn’t always get it right.

In 1942, just months after the bombing of Pearl Harbor, more than 110,000 Japanese Americans were removed from their homes here in California and throughout the Pacific coast.   Many were transported to War Relocation Camps in isolated areas.   More than 60 percent of those interned were American citizens.   And, in a deeply misguided ruling, the United States Supreme Court held that this exclusion process passed constitutional muster.

More recently – in the aftermath of 9/11, as our nation struggled to cope with an unprecedented tragedy, and to respond to a new kind of stateless threat – fear and uncertainty drove us, in certain cases, to abandon our values in pursuit of information about those who would do us harm.   We used techniques that were of questionable effectiveness, but were certainly inconsistent with who we say we are as a people.   And in bringing suspected terrorists to justice, some questioned – and continue to question – the capacity and effectiveness of our federal civilian court system.   Members of Congress placed unwise and unwarranted restrictions on where certain detainees could be housed, charged and prosecuted.   In short, many lost faith with our founding documents and our time-tested, effective institutions.

In the wake of the Boston Marathon bombings, many of these tired and meritless political arguments – and renewed calls to abandon the use of civilian courts in dealing with terrorism-related activity – are being made once again.   And once again, every legal professional, every aspiring leader, and every graduate in this crowd today must renew your commitment to standing firm – in the face of manufactured controversy and overheated partisan rhetoric – to uphold our most sacred values.

Let me be clear:   those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion.   They are simply wrong.   Their assertions ignore reality.   And attempting to limit the use of these courts would weaken our ability to incapacitate and to punish those who target our people and attempt to terrorize our communities.
Throughout history, our federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.   They have enabled us to convict scores of people of terrorism-related offenses since September 11.   Hundreds are properly, safely and securely held in our federal prisons, not Guantanamo, today.   Not one has ever escaped custody.   No judicial district has suffered a retaliatory attack of any kind.   And no other tool has demonstrated such a robust ability to stop terrorists – and collect intelligence – over a diverse range of circumstances.   I defy anyone, on the merits, to challenge these assertions.

Our heritage, and our legacy to future generations, clearly demand that we maintain full faith and confidence in a court system that has distinguished this nation for more than two centuries.   Our security demands it, as well, because prosecuting terrorists in federal court is not just consistent with our values – it is extraordinarily effective.   The Article III system is both strong and fair.   And it has long been seen as legitimate around the world – setting this country apart, differentiating us from other nations, and serving as a model for others to envy – and to emulate.

Come what may, we must never cede our freedoms or curtail our dearest liberties, nor feel that there is a tension between them and our ability to keep safe.   Especially in moments of crisis, when we are under attack or faced with difficulty and danger, our actions – your actions – must be grounded in the bedrock of the Constitution.   And steps forward must be rooted not only in our proudest legal traditions – but also our highest ideals.

At the same time, we must never be afraid to engage in a robust, responsible dialogue about new strategies for dealing with new challenges – including the need to provide law enforcement with the tools and authorities necessary for gathering vital intelligence; keeping pace with rapidly-changing threats; and protecting public safety – all while safeguarding individuals’ rights to due process.   Just as surely as we are today a nation at war – so, too we are, and must always remain, a nation of laws.

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On April 24, Ben gave a talk at Britain’s Parliament.  The Henry Jackson Society organized the event, which was entitled “Are Drones the New Guantanamo?”

A lively question-and-answer session followed Ben’s remarks.  (The audio quality is somewhat spotty during the Q-and-A; you may have to adjust your volume slightly.)

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National Public Radio has run this very interesting story on the situation at Guantanamo. It’s a lengthy segment, more than 11 minutes and features extended comments from former Attorney General Alberto Gonzales, Miami Herald reporter Carol Rosenberg, and former military commission prosecutor Lt. Col. Stuart Couch. Worth a listen.

UPDATE: Speaking of NPR shows on the situation at Guantanamo, there’s also this one from Radio Times at WHYY in Philadelphia:

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I have emerged from my undisclosed location to bring you this week at Lawfare, which saw a lot of detention-related commentary, a serious dose of Ben critiquing Harold Koh, analysis of U.S.-versus-China in cyberattack-rhetoric, and miscellaneous posts about forthcoming memoirs and casebooks,  3-D printed guns, and analyses of national security-related legislation.

Matt and Ken critiqued the recent onslaught of anti-autonomous weapons advocacy, drawing on a recent paper they co-wrote.

Ben sent out another memo to the press, this time to Slate’s Political Gabfest, about how the Gabfesters construe “cleared for transfer” in the Guantanamo detainee context. In other detention-related news, Wells shared a handwritten note to the D.C. Circuit by Ali Hamza Al-Bahlul asking to drop his case, and then a follow-up from his defense counsel Michel Paradis in which Bahlul retracted his request. Read more »

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Earlier today I posted a commentary on “Boston Bombings: Local Police and Counterterrorism Intelligence,” based on reported claims that the FBI failed to pass on important threat information to the Boston Police Department, and further reported claims that — if true — this points to a need for greater information sharing.  My main point was that in thinking about the lessons of the Boston Bombings for domestic counterterrorism intelligence, we should be focused less reflexively on the usual issue of info-sharing and more on questions of whether and how local police collect counter-terrorism intelligence, what role they play in analyzing and filtering it, and what local police do with information that’s shared by federal agencies.  

After the jump are two important statements, along with my short comments.  First is a statement from the FBI regarding information sharing and the Boston case.  Second is a critical response to my post from Faiza Patel of the Brennan Center for Justice, which has done a lot of work in this area.

Read more »

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Benjamin Weiser of the New York Times reports on a terrorism case unsealed in Manhattan last night. One Ahmed Abassi from Tunisia has been “accused of seeking to develop a terrorist network in the United States and of proposing to poison the water or air to kill up to 100,000 people.”  He has pleaded not guilty. Abassi came to the United States from Canada in March, and appeared on the FBI’s radar screen because he kept in regular touch with one of the gentlemen later arrested in last month’s plot to blow up passenger trains in Canada. The Wall Street Journal also has the story.

The Times informs us about Boston police commissioner Edward Davis’s testimony before Congress, during which he stated that the FBI did not tell Boston police that Russia sent the United States a warning about Tamerlan Tsarnaev; or that the FBI followed up after his return and then closed the case. Matt Viser of the Boston Globe has more on the ever-contentious issue of information sharing between law enforcement agencies. Matt also comments on this here.

Alan Cullison of the Wall Street Journal reports that Tamerlan Tsarnaev got “a cool reception” from the Islamists he sought out in Dagestan.  Tsarnaev also was apparently unsuccessful in breaking into underground rebel organizations.  Ellen Barry of the Times also has a story about the Islamists Tsarnaev met abroad.  Some of them allegedly tried to talk him out of jihad; others influenced Tsarnaev’s views on the United States before he returned.

The Freedom of the Press Foundation, frustrated by security concerns surrounding the trial of Pfc. Bradley Manning, is attempting a Kickstarter-like endeavor to fund a court reporter to transcribe Manning’s trial. Tal Kopan of Politico has the story.

Meanwhile, Matthew Rosenberg of the Times reports that President Karzai has said that the United States can keep its bases after 2014. I’m still waiting on that magic number of troops that the United States will leave in Afghanistan…

The Times editorial board argues that President Obama should listen to the suggestions Harold Koh made in his Oxford Union speech about transparency and accountability in its targeted killing program. Have at it, Ben.

Speaking of drones, Uri Friedman of Foreign Policy tells us that the moment we’ve all been waiting for has finally arrived: Iran has a drone. And not just any old drone, but one named “Epic.” So far, only PressTV and Fars News are reporting this, so it might turn out to be like the story of the Iranian scientist who claimed to have invented a time machine that predicts “five to eight years of the future life of any individual, with 98 percent accuracy.” We’ll just have to wait and see.

And Iran’s not the only country developing UAVs. David Axe of Wired’s Danger Room reports on just-released, extremely-blurry, over-enhanced pictures of China’s first armed drone.

Anna Mulrine of the Christian Science Monitor outlines the Pentagon’s top four concerns about China’s military.

Senate Armed Services Committee Chairman Carl Levin sent a letter to President Obama calling for him to appoint an envoy to help shrink the size of Guantanamo Bay. Josh Gerstein of Politico has the details.

Michael Doyle and Carol Rosenberg of the Miami Herald have this handy ”Guantanamo Bay for Dummies”-like list of questions and answers.

Pat Smith, mother of Benghazi victim Sean Smith, said that yesterday’s hearing didn’t provide any answers, according to CNN.

As I noted last month, the Peshawar High Court was considering a case on the legality of U.S. drone strikes in Pakistan (even if its leaders have consented to them). The court, led by Chief Justice Dost Muhammad Khan, just ruled that the strikes are illegal, “against the national sovereignty and a challenge for the country’s autonomy and independence.” He also said that Pakistan should consider breaking diplomatic ties with the United States if the latter doesn’t cease strikes, according to Andrew Buncombe of the Independent. Daniel Mullen of Jurist and Jim White of Emptywheel also discuss the ruling in greater detail.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Laura Dean is a journalist and writer living in Cairo, from where she has been doing election monitoring projects in countries around the region. She is also a good friend, from earlier days when she lived in Washington and worked on the staff of the Senate Foreign Relations Committee. Recently, she has been spending a lot of time talking to Salafi groups about life in a democratic culture—and about one another. I found the piece fascinating and thought Lawfare readers would too.

Salafis on Salafis

Tunisia has long been considered one of the most moderate Arab nations. Yet in the two years since the fall of the Ben Ali regime, it has seen the rise of hardline, sometimes even militant, Salafi groups. Though the term is disputed, the word ‘Salafi’ in North Africa has come to refer to adherents of a strict form of Sunni Islam with a particularly literalist interpretation of Quranic doctrine.

From attacks on concerts and liquor stores, to the month-long takeover in late 2012 of Manouba College of Arts and Sciences in greater Tunis (two students who wear the full face veil who were involved in the sit-in were just convicted of destroying public property in the incident), to breaking into the US embassy last September, Salafi groups have asserted their power and opposition to a more compromise-oriented form of political Islam.

During a brief trip to Tunisia a few weeks ago, the mounting tension between the secular ‘gauchists’ and Islamists of various stripes was palpable. People I met seemed particularly worried about Salafi groups they accuse of committing extrajudicial and occasionally violent acts in recent months. They complained that the ruling party, el Nahdha, the Tunisian affiliate of the Muslim Brotherhood, was unwilling to intervene for political reasons when Salafi groups attacked liberal protesters and cultural events they deemed ‘un-Islamic.’

In the West we tend to think of Salafis in fairly monolithic terms, but in North Africa there is a diversity of them, who differ by country and by attitude.

Egypt’s Salafis, in contrast to those in Tunisia, have chosen a more orthodox path to power – party democracy. Since gaining over twenty percent of the vote in Egypt’s first round of parliamentary elections, they have emerged as a significant political force in a country of over 85 million people.

Upon my return to the ‘Mother of the World,’ as Egypt is referred to here in the region, I decided to ask some Salafis about their thoughts on their counterparts next door. After a recent schism there are now two main parties: el Nour Party and el Watan Party and a handful of smaller entities with similar ideological convictions. With elegant media offices and dexterously deployed democratic rhetoric, Egypt’s Salafis seem to be working hard to show the world that they are a serious political force and nothing to be afraid of. I wondered if they felt that their neighbors were tarnishing their image.

In Egypt we have “Democratic Salafis” said Ali Abdel Aal, Editor-in-Chief of the ‘Islamion,’ website, pointing out that in Tunisia many of the Salafi movements have a more jihadist bent while the Salafis in Egypt were interested in more of a hearts-and minds-oriented approach.  His online platform is maintained by a group of journalists and researchers who say they are committed to giving an accurate portrayal of political Islam.

Yousri Hamad, former spokesman for el Nour, now Vice President of the Watan party, agreed, saying, “I think Salafis in … Tunisia are similar to el Jihad party,” a newly formed political party in Egypt, founded by a movement that the United Nations has embargoed as an Al Qaeda affiliate. When I asked if the political Salafi movements were looking to create a regional political organization, similar to that of the Muslim Brotherhood, Hamad maintained that for the moment, the Salafi parties’ agenda is an Egypt-focused one, “we are trying to establish our country, make our country educated, making an effort in our country, not outside”

Dr. Mohamed Noor is the president of the media committee of the newly formed el Watan Party, and a member of what Political Science professor Dr. Ashraf el Shereef calls, “the Salafi Intelligentsia.” Dr. Noor smiled warmly when I walked in to his office and in the course of the interview we talked about his time living in Europe and shared our views on Barack Obama’s and Bill Clinton’s respective rhetorical styles. (He went to the Democratic Convention in the US in the run-up to the elections this past fall and attended speeches by both which he recorded and listens to often. “Clinton’s speech was excellent” he said, “It affected me a lot…it was the reason for Obama’s success the second time.”)

On the subject of violent actions taken by their Tunisian namesakes, he was adamant: “we are not a part of them and we have no relationship to them” saying “that the popular Salafi movement [in Egypt] is very far away from these actions.”

In fact, he informed me, there have been efforts to bring the Tunisian Salafis into the political fold: “I was the head of a delegation with the Noor Party [to Tunisia]. We were trying to develop the party experiment there because in the end people will be convinced by democracy in general when they feel that it has achieved results…If they knew how to express themselves democratically, that would close the door to other [presumably violent] forms of expression. And that is a very good thing. “

His views on extrajudicial actions generally though, were a bit more equivocal. When I asked him about a recent report that a group of Salafis broke up a night club in Cairo and warned its owner that he had two months to find a new source of income, he said he hadn’t heard anything about it. But, he went on, “of course these actions [in night clubs] are rejected by most Egyptians…combating such behavior [that goes on in night clubs] is the obligation of every one of us…if someone does that, that’s something good, like young men who condemn sexual harassment when they see it.” Even in cases of violence, he suggested that sometimes there were justifications: while he condemned violence in Tunisia he also said “sometimes there are some actions that are a kind of provocation to all people, not just Salafis.”

Similarly, on the subject of a case two weeks ago of a man being sentenced to 80 lashes, a sentence said to come from Islamic Sharia, for walking down the street drunk in the middle of the day he said, “there is nothing like that in the law.” However he went on to say that “if the majority of the people are alright with the laws, then fine… but it’s the society’s right to object to a particular punishment and to change the law.” The implication: if the majority of the population is in favor of the application of Sharia, then it should be the law of the land. These days in Egypt, many people I have spoken to feel uncomfortable admitting publicly that they are against the application of Sharia or other Islamic principles.

“Democracy is a tool,” Dr. Noor said, “for me there is no such thing as the philosophy of democracy.” A tool, perhaps, alongside other kinds of societal engagement including, he suggests, demonstrations, but also, perhaps, the enforcement of religious principles by groups of civilians via means other than the official justice system. Later in the interview Dr. Noor told me how much he enjoyed the film ‘Lincoln’ and asked if I could recommend some book titles on the US federal system.

Anecdotally, more and more erstwhile Brotherhood supporters I talk to say they want to vote for the Salafi parties in the upcoming elections, seeing them as honest brokers, in contrast to a Muslim Brotherhood who are seen as increasingly power hungry. The Brotherhood’s failure to achieve any meaningful power-sharing agreements has created bitter resentments from other political quarters—among both the liberals and the Salafis. But unlike the liberal parties, the Salafis have a natural network in the country’s religious communities and a strong presence across rural Egypt. How they will use these democratic ‘tools’ in the event that they find themselves with a bigger portion of the political pie will be interesting to observe.

 

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Over at the Heritage Foundation, Senior Legal Fellow Cully Stimson held this event the other day, at which Kenneth Wainstein spoke:

The event was notable for another reason: Cully announced Heritage’s formation of a new National Security Law Program, which he described as follows—including with gracious remarks about Bobby and my work on Lawfare:

As I was finishing up my one year stint as Heritage’s Chief of Staff a few months ago, and I was asked what I wanted to do next by Ed Feulner and Senator DeMint, I didn’t have to think long about my answer.  A fully-resourced, dedicated program on national security law.  A program that would, over time, cover all aspects of national security law, from the FISA, the PATRIOT Act, to intelligence law and policy, to interrogation law and policy, to military commissions and federal terrorism trials, terrorist detention, the War Powers Act, the law of armed conflict, remotely piloted aerial vehicles, the proper bounds of self defense in international and non-international armed conflict, and other pressing and difficult topics.

This program, the first of its kind in a DC think tank, is the natural next step from the work I have done here since 2007.  Working with former Attorney General Ed Meese and others both inside and outside of Heritage, we have written, testified, debated, and participated in the national dialogue.  I have also been inspired, supported and encouraged by others who have played a key role in thinking about the myriad of topics in this area.  Most particularly, Ben Wittes at The Brookings Institution, Bobby Chesney at the University of Texas, and others.  Their invaluable website called Lawfare blog is the go-to website for the most intelligent presentation of views, from all sides, on all things national security law.  As an infrequent contributor but everyday reader of the site, I tip my hat to them for the great work they have done and look forward to working with them, and others, in the future.

Our program aims to highlight the best and brightest national security law experts, and bring them to Heritage to present lectures, debate each other, and write timely papers across the most pressing topics of the day.  We are a non-partisan think tank, and I intend to bring folks from both sides of the isle here to debate the most difficult topics in a thoughtful, non-partisan way.  That is why, for example, I was thrilled to invite my friend Jeh Johnson—President Obama’s DOD General Counsel in his first term—here a couple years back to talk about critical issues of the day.

As I have told Cully privately, I’m very excited that he is doing this. Over the next few years, there is going to be a big fight within conservatism over national security legal issues. What will the GOP as an opposition party develop as its core positions in this area? Will it represent the idea that we must detain people in military custody, try everyone in military commissions, and prevent law enforcement from reading people Miranda warnings? Will it follow Rand Paul over the cliff into an alliance with the Left in opposition to targeting law? Will it incoherently do both simultaneously? Or will it renew a commitment to the strong center of robust national security tools that developed between the late Bush administration and the Obama administration? This question is very much in play, and there’s a huge market hole for a D.C. think tank to be the center of that debate—and to guide it in constructive directions. Here’s wishing Cully all the best in building this program.

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The New York Times had a story yesterday headlined “F.B.I. Didn’t Tell Boston Police of Warning on Brother”:

Police Commissioner Edward Davis said that though some of his officers worked with the F.B.I. on a joint terrorism task force, they did not know about the Russian tip or the bureau’s subsequent inquiry, which involved an interview with Mr. Tsarnaev and his parents.

At one level, this is a story about information-sharing, and is consistent with long-standing and widespread complaints from local law enforcement agencies that sharing with the FBI is too one-way.  It also fits with other after-the-fact reviews of post-9/11 terrorism incidents that conclude that information-sharing or dot-connecting still needs to be much better – though here it’s also about vertical coordination among levels of government rather than the more familiar concerns among horizontal coordination among federal agencies.

It’s no surprise, then, to see claims like these in the article, that emphasize more information flow:

Commissioner Davis said he recognized the sensitivity of intelligence received from other countries. “But when information is out there that affects the safety of my community, I need to know that,” he said.

…

The committee’s chairman, Representative Michael McCaul, a Texas Republican who is a former federal counterterrorism prosecutor, said he was concerned that a decision not to share information among different agencies — widely blamed for the failure to prevent the Sept. 11, 2001, terrorist attacks — might have been a factor in the Boston bombings.

“We learned over a decade ago the danger in failing to connect the dots,” Mr. McCaul said. “My fear is that the Boston bombers may have succeeded because our system failed. We can and we must do better.”

There are bigger issues here, though, about the proper institutional architecture of counter-terrorism intelligence.  Too many informational dots can clog the system, and a key challenge is filtering, analyzing, and interpreting the dots.  What role should local governments play in this architecture? Read more »

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The New America Foundation has released a fact sheet listing the identities of Guantanamo Bay detainees who are “confirmed to be or suspected of engaging in militant activities against either U.S. or non-U.S. targets” after their release or relocation from the prison. New America’s numbers suggest that the recidivism rate may actually be a fair bit lower than intelligence community estimates; as Raffaela noted earlier this year, the latest DNI report from January 2013 put the number of detainees “confirmed of reengaging” at 16.1 percent and the number of detainees “suspected of reengaging” at 11.9 percent.

New America’s findings are different. It’s numbers are broken down as follows:

• Detainees confirmed to be engaging in militant activities against U.S. targets: 17 (2.8 percent)
• Detainees suspected of engaging in militant activities against U.S. targets: 21 (3.5 percent)
• Detainees confirmed to be engaging in militant activities against non-U.S. targets: 7 (1.2 percent)
• Detainees suspected of engaging in militant activities against non-U.S. targets: 7 (1.2 percent)

The total number “confirmed of reengaging,” then, stands at 4 percent—in stark contrast to the DNI’s estimate of 16.1 percent—and the total number “suspected of reengaging” is at 4.7—again, very different from DNI’s number of 11.9 percent.

Although New America didn’t use classified information in compiling these figures (it relied on public reports and media accounts) it is worth noting that the Taliban and Al Qaeda usually are quick to publicize former detainees who return to the fight, as is the press.

The threat of recidivism is real, as dramatically illustrated by the case of former detainee Said Ali al-Shihri, who was transferred to Saudi Arabia in 2007, went through a rehabilitation program, and then promptly became a leader of Al Qaeda in the Arabian Peninsula.  (He reportedly died last year in Yemen, from wounds sustained during what the Yemeni government called a  ”counterterrorism operation.”)  Still, New America’s estimates are important because they offer a window on how much the DNI’s numbers can—or cannot—be supported based on assumptions made from publicly available information. And if these numbers are indeed closer to the real numbers than the intelligence community’s much-higher estimates, it might be a little easier politically to transfer more detainees out of Guantanamo Bay.

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Let’s begin with yesterday’s Benghazi hearing. Gregory Hicks, former Deputy Chief of the U.S. Mission in Libya, gave a first-hand account of the attack, and said that he was demoted for questioning the administration’s explanation of the events that unfolded that night. The New York Times, the Hill, CNN, Spencer Ackerman of Danger Room, and the Washington Post have the details of the emotionally-and-politically charged session.

And so begins the domino cascade: House Republicans have called for the release of a batch of emails that will reflect how the Obama administration responded in the aftermath of the attack. The Times has the story.

The Wall Street Journal editorial board argues that yesterday’s hearing revealed “that senior Administration officials knew in September they had a politically potent debacle on their hands and did their best to delay and obfuscate any accounting. All of this warrants further investigation, and such oversight is part of Congress’s job.”

As Lawfare readers are already aware from reading Ben’s thoughts, Steve’s questions for Ben, and Ben’s answers, ex-State Department Legal Adviser Harold Koh gave a speech at the Oxford Union that, among other things, was highly critical of the Obama administration’s lack of transparency surrounding the drone program. Ben has more here, and here.  For the news media-inclined, let me also present Scott Shane of the Times, Josh Gerstein of Politico, and Conor Friedersdorf of the Atlantic.

The investigation into the Boston bombings continues.  Focus has shifted to what the late Tamerlan Tsarnaev, the older of the two Tsarnaev brothers, was doing during his visit to Russia last year—and who he may have connected with. Ellen Barry of the Times reports.

David Schanzer, Director of the Triangle Center of Terrorism and Homeland Security, has this op-ed in the Huffington Post about the evolution of American detention policy and the many complications that hamper reform.

Afghan President Hamid Karzai has capped the number of U.S. bases in Afghanistan at nine, according to Agence France Presse.

Benjamin Weiser of the Times writes about Ahmed Khalfan Ghailani’s appeal to overturn his life sentence on grounds that his detention violated his right to a speedy trial; Matt’s thoughts on the matter are here.

The Associated Press says that lawyers for Buford Rogers, an anti-government anarchist type who was arrested in an FBI raid last Friday, claimed that “[t]here has been a great deal of information and misinformation that has been released [about Rogers], and it should never have happened, and it should stop.”

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Steve has responded to my post on Harold Koh’s sudden discovery of inviolable commander in chief powers. He asks me two questions, which I address below:

1. Would you take seriously anyone who denied the existence of any and all indefeasible presidential power (and who would, therefore, think that Congress did have the power to enact the Command of the Army Act of 1867, which effectively made Ulysses S. Grant, rather than Andrew Johnson, Commander-in-Chief of the military)?
2. If not, can’t we accept that some claims to indefeasible presidential powers are stronger than others, and that prosecutorial discretion and control over diplomatic relations might raise slightly different cases as compared to statutory bans on, for example, torture?

I would not take seriously someone who denies any indefeasible core. On the other hand, I do take very seriously people who argue for only the most limited such core—and specifically against the notion that the core of the Commander in Chief Clause precludes heavy-handed tactical interventions in warfare by the Congress. Most notably, I take very seriously David Barron and Marty Lederman, who wrote the following: Read more »

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From Harold Koh’s speech to the Oxford Union the other day:

Suppose we are back at Sept 18, 2001, and Congress has just passed the AUMF against Al Qaeda. Suppose the President –let’s assume it for the sake of argument that it was the winner of the popular vote, Al Gore–gives a speech where he says:

‘We just have been attacked in the worst attack on our soil since Pearl Harbor. Some 3000 innocent people were killed, simply for going to work one day, in what all must acknowledge was an obscene human rights violation. We must respond firmly and lawfully, consistent with our values. As of today, we are at war with Al Qaeda, the Taliban and associated forces. Our aim must be to defeat Al Qaeda and to prevent it from proliferating. So here is what we will not do, and here is what we must do.

We will not do anything foolish, illegal or inconsistent with American values. That means we will not invade Iraq. We will not torture anyone. We will not open offshore prison camps like Guantanamo. We will not create military commissions, because our existing civilian and military courts can do the job. We will not violate foreign sovereignty or international law. We will not claim that we are in a Global War on Terror. We are in a particular battle with a particular foe—Al Qaeda—that we hope to defeat in time.

I hope you will agree that that speech would have received a 100% approval rating. But that, sadly, was the road not taken.

Hmmmm.

I have one question about this Platonic Al Gore speech: What exactly would this President Gore have done with the tens of thousands of detainees he would capture in this “battle with a particular foe . . . that we hope to defeat in time”? Would he have (a) not captured them in the first instance? (b) Attempted to process them all through the criminal justice system, though the material support law at the time did not reach foreigners giving support to foreign terrorist groups abroad, the volume of captures would have flooded the criminal justice system, and the evidence supporting many captures was simply inadequate to support a criminal case? (c) held them in theater? or (d) brought them to detention facilities domestically? Koh does not say. And until he does, it’s hard to evaluate his “road not taken”—which might not lead to a good place or might be very different (at least with respect to detention) from the road the Bush administration took.

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From Harold Koh’s speech to the Oxford Union the other day: the first “obvious” difference between the Bush and Obama administrations is that “the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s vague constitutional powers. Under international law, this Administration has expressly recognized that U.S. actions are constrained by the laws of war. So rather than treating this conflict as a Black Hole, this Administration has worked to translate the spirit of those laws and apply them to this new situation.”

Hmmmmm.

Perhaps Koh should reread this speech by his predecessor, our own John Bellinger, who said the following at the London School of Economics on behalf of the Bush administration in 2006:

Now, I am aware that many Europeans do not agree that we are in a war with al Qaida at all, much less a “Global War on Terrorism.” So let me pause here briefly to explain what we mean by the “Global War on Terrorism,” because I know that this term is troubling to Europeans. We do not believe that we are in a legal state of war with every terrorist group everywhere in the world. Rather, the United States uses the term “global war on terrorism” to mean that all countries must strongly oppose, and must fight against, terrorism in all its forms, everywhere around the globe. When used in this sense, I do not think that anyone in Europe would disagree with this objective.

We do, however, believe that we are in a legal state of armed conflict with Al Qaida, for the reasons I have already described.

Perhaps he should also take a look at the Bush administration’s brief in Boumediene (see pp. 62-67), which did not describe the power to detain under domestic law as flowing chiefly from “the President’s vague constitutional powers” but, rather, “from Acts of Congress.” The section is entitled, “The AUMF Authorizes The Detention Of Enemy Combatants As Defined By The CSRT Process.” Only after a lengthy exposition does it say, almost in passing, that “Finally, even apart from the AUMF, petitioners’ detention is independently justified by the President’s constitutional authority.”

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Ben is shocked (shocked!) by Harold Koh’s invocation of indefeasible presidential powers in his Oxford Union speech.  But insofar as Ben is implicitly accusing the former Legal Adviser to the State Department of hypocrisy merely for having the temerity to suggest that such powers exist, I wonder how he’d respond to the following two questions:

1. Would you take seriously anyone who denied the existence of any and all indefeasible presidential power (and who would, therefore, think that Congress did have the power to enact the Command of the Army Act of 1867, which effectively made Ulysses S. Grant, rather than Andrew Johnson, Commander-in-Chief of the military)? 
2. If not, can’t we accept that some claims to indefeasible presidential powers are stronger than others, and that prosecutorial discretion and control over diplomatic relations might raise slightly different cases as compared to statutory bans on, for example, torture?

Reasonable folks can certainly disagree about whether there are inconsistencies between positions taken by Professor Koh and those taken by Legal Adviser Koh (as Justice Jackson put it in Youngstown, “It even seems that President Taft cancels out Professor Taft”). But it seems to me to be caricaturing Koh’s views to a degree that’s just not helpful to imply that the mere invocation of the idea of indefeasible Article II powers is hypocritical.

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Big news out of the House Armed Services Committee: Representative Mac Thornberry (a graduate of the University of Texas School of Law, I proudly note) is going to introduce a bill enhancing oversight of kill/capture operations that may be conducted by the armed forces outside of Afghanistan.  [UPDATE: Full disclosure: I gave comments on an early draft of this bill.  Also, I should have emphasized in my original post that SASC and HASC reportedly already receive something very close to the operation-by-operation disclosure required in section 2 of this bill (see this piece by Craig Whitlock this morning); the main impact of section 2 is to formalize and entrench that practice, which is no small thing of course.]

This is a big deal, in my view, an important adjustment to the legal architecture that governs kinetic national security activities and a long-needed response to the increasing significance of such activities outside of conventional battlefields in the post-9/11 era.  (This is a topic I treat at some length in this article on the evolution of SOF and CIA activities over time and how that evolution has tended to disrupt the legal framework of oversight.  Not surprisingly, I am quite pleased to see a serious legislative initiative to address this issue.)

Without further ado, here is the bill, and here is my section-by-section analysis and bottom line: Read more »

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Amid the debate about how legally to handle the Boston Marathon bomber and the President’s recent remarks about closing Guantanamo, Ahmed Ghailani’s appeal was argued today in the Second Circuit.  As the New York Times reports in this summary of the argument:

A lawyer for the only terrorist detainee to be held at the military prison at Guantánamo Bay, Cuba, and then tried in the civilian court system asked a federal appeals court on Wednesday to overturn his conviction, on the grounds that his long detention violated his right to a speedy trial.

The former detainee, Ahmed Khalfan Ghailani, who was captured in 2004, had been held for two years in a secret overseas jail run by the Central Intelligence Agency, and then later at Guantánamo. In 2009, the Obama administration moved him into the civilian system and tried him the next year on charges stemming from Al Qaeda’s 1998 bombings of two American embassies in East Africa, which killed 224 people.

Many readers will remember that the jury acquitted Ghailani of all but one of the hundreds of charges against him, and he was sentenced to life in prison.  Interestingly, both sides of the polarized debate about civilian trials for al Qaida suspects point to this case for support: critics say the failure to convict on the vast majority of charges and the challenges that arose during the case with respect to CIA interrogations show the dangers and obstacles to civilian court prosecution, while advocates of such trials point out that even despite those issues Ghailani (like the many other terrorism suspects who have been prosecuted in federal courts over recent years) was locked away for life in the end.

Ghailani is unlikely to win this appeal.  The stakes go way beyond this case, though, because his argument that prolonged detention in CIA custody and at Guantanamo now bar criminal prosecution would be another major barrier to the President’s preferred pathway (I guess?) for closing Guantanamo.

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From Harold Koh’s speech to the Oxford Union yesterday:

A third critical difference between this Administration and its predecessor is the Obama Administration’s determination not to address Al Qaeda and the Taliban solely through the tools of war. . . . [O]ur longer term objective must be what Secretary Clinton called a “smart power” approach. . . . Because force makes up only part of a much broader “smart power” approach, this Administration has not rejected Law Enforcement tools in favor of exclusive use of tools of war. Instead, it has combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda. Thus, if the United States should encounter an Al Qaeda leader like Obama bin Laden in a remote part of Afghanistan, a law of war approach might be appropriate; but if it should find him in London or New York, a law enforcement approach would obviously be more fitting.

Hmmmm.

I was not aware that the Bush administration had been committed to confronting Al Qaeda and the Taliban “solely through tools of war.” Nor was I aware that it had “rejected law enforcement tools in favor of exclusive use of tools of war.” In fact, I rather thought that the Bush Administration—which prosecuted in civilian court nearly everyone it arrested domestically—had, as Koh proudly declared of the Obama Administration, “combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda.”

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Yesterday, I noted the DoD report which, for the first time, reflected a determination by the US government that a number of cyber intrusions were “attributable directly to the Chinese government and military.”  Today, quite predictably, the Chinese government denied those charges:

“China has repeatedly said that we resolutely oppose all forms of hacker attacks,” said a ministry spokeswoman, Hua Chunying. “We’re willing to carry out an even-tempered and constructive dialogue with the U.S. on the issue of Internet security. But we are firmly opposed to any groundless accusations and speculations, since they will only damage the cooperation efforts and atmosphere between the two sides to strengthen dialogue and cooperation.

Much less predictably, but far more amusingly, the global head of cybersecurity for Huawei has added his voice to the chorus.  He argues first that the criticism of China is part of a program involving “Corporate America.”  [The capital letters are his, not mine.]  Even more risibly, he argues that the reason Americans are not buying products from Huawei is because of our fear that the civil liberties loving Chinese will expose our state surveillance program.  I am not making this up:

Maybe this is why America doesn’t want us [i.e. Huawei] to sell our equipment to American companies; maybe they will worry that we will see what they do with American Citizens personal data, monitoring and storing of everything that passes through telecommunications.

As Stewart Baker said: “Of course, that explains everything ….“  Huawei’s global cybersecurity chief, John Suffolk, is a serious man.  He was, after all, the CIO for the entire UK government.  Sometimes, I guess, even the serious stumble.

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No, we didn’t stop talking about Benghazi even after last year’s presidential election came and went. Even the cicadas will disappear again before we’re done talking about it. Today’s congressional hearing on the Benghazi attacks is generating a maelstrom of press attention: Scott Shane of the New York Times fleshes out the reasons why, after all this time; and Jeremy Peters and Eric Schmitt have more on what to expect from the hearing. Philip Rucker of the Washington Post tells us that the newest possible casualty in the investigation of wrongdoing might turn out to be Hilary Clinton herself, and Ernesto Londono reports on testimony from Gregory Hicks, former Deputy Chief of the U.S. Mission in Libya.  Lastly, Jonathan Bernstein of the Plum Line expresses his frustration with Washington on this whole issue.

In other news, CIA Director John Brennan has passed over the woman who was heavily involved in the CIA’s interrogation program to lead the Agency’s clandestine service. Here are the Post and the Times on that.

Adam Nossiter of the Times reports on the latest efforts by Nigerian authorities to quash Boko Haram militants—and the indiscriminate killing and extrajudicial measures the authorities often take to achieve that end.

Mauritanian authorities likewise torture and detain militants suspected of involvement in Al Qaeda in the Islamic Maghreb.  The United States and France provide Mauritania with “logistics, training, equipment and intelligence.” Hannah Armstrong of the Times has more.

The Times’s Editorial Page editor, Andrew Rosenthal, discusses the potential debate over a new AUMF in Congress and says:

Reviewing the force resolution is not optional. And yet, the risk is obvious: this sort of discussion can go badly awry in a Congress that has preyed on Americans’ fear of terrorism to needlessly attack civil liberties and the rule of law. Congress could broaden, rather than rein in military power.

Rosenthal also has a post about the CIA’s role in shaping Zero Dark Thirty.  (Earlier, Gawker had obtained a CIA memo demonstrating just how much the agency’s input affected the movie.)

Peter Bergen and Bailey Cahall of the New America Foundation argue in this CNN.com op-ed that the threat of recidivism among Guantanamo detainees is wildly overblown by lawmakers and the intelligence community.

The Times editorial board discusses the Pentagon’s report on Chinese misbehavior regarding cyber issues.

According to the Washington Times, the White House is likely to grant the FBI’s request for greater Internet surveillance powers. Charlie Savage of the Times also reports.

Dawood I. Ahmed, who wrote this guest post on how the Pakistani media was covering Dr. Shakil Afridi’s case, has an article in Foreign Policy about whether the country can legally shoot down a U.S. drone.

Three days before elections in Pakistan, Sumera Khan of Pakistan’s Express Tribune informs us that the country’s Centre for Research and Security Studies has found “that some 2,674 people lost their lives in 1,108 incidents of violence across the country” from January to April of this year.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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Hmmmm.

From Harold Koh’s speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees “must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief  to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where.”

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Charlie Savage reported in the NYT today that the Obama administration “is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services,” in particular by fining firms that do not comply with wiretap orders.  Susan Landau, author of Surveillance or Security? The Risks Posed by New Wiretapping Technologies, writes in with a reaction about what is at stake:

On the face of it, the new FBI proposal to fine companies that don’t comply with wiretap orders seems eminently reasonable.  If law enforcement satisfies the Wiretap Act requirements for a court order, surely the communications provider should deliver the goods.

This view of wiretapping is mired in the 1960s, when each phone was on a wire from the phone company’s central office, and a wiretap consisted of a pair of alligator clips and a headset. In the 1990s, cellphones and advanced services eliminated the wire and made it harder to tap. So we got the Communications Assistance for Law Enforcement Act (CALEA), which mandated that telecommunications carriers build wiretapping capabilities into the phone switches. Building communications intercept equipment into switches is dangerous. There were instances where unauthorized parties used such capabilities to break into the tap and eavesdropped, sometimes on very important people and sometimes for years (the cases are in Greece and Italy, though US CALEA-compliant switches were also not secure).

Now we have a new world with myriad services: Facebook, gmail, Skype, Republic Wireless, each one with a different architecture, some centralized (and thus with information “in the clear” at the provider), some peer-to-peer, some a mix. None of these are traditional carriers, so CALEA doesn’t apply. But the real issue, which the FBI does not seem to recognize, is that the providers of the infrastructure, the wire—or wireless signal, are different from the providers of the service. What this means is that sometimes the infrastructure provider has the content, sometimes the communications provider has the content, and sometimes no one does but the sender and receiver (which is actually the most secure way to communicate).

As the New York Times reports, the FBI has a plan of “fining companies that do not comply with wiretap orders [while] start-ups with a small number of users would have fewer worries about wiretapping issues unless the companies became popular enough to come to the Justice Department’s attention.” This rather misses the point. If the architecture is such that the company can’t get at the content, then the company can’t get at the content.

The FBI plan is really about cost shifting.  When wiretapping was about alligator clips, law enforcement paid the full costs of a tap. With CALEA, the government reimbursed the service providers $500 million for retrofitting old switches to be CALEA compliant, but the companies had to pay the costs of doing so for new infrastructure (law enforcement does pay for the work involved in executing a particular tap, but not the cost of creating the infrastructure). What the FBI wants to do now is have communications services wiretap compliant with private industry footing the bill.

Here’s the problem. Read more »

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Curtis Bradley and I have a casebook on foreign relations law that includes a heavy dose of national security law (including chapters on covert action and targeted killing) that might be of interest to Lawfare readers.  Here is a TOC for the book.  And here, hot off the press, is our latest Supplement.  It includes excerpts of the Supreme Court’s decisions in Kiobel v. Royal Dutch Petroleum Co. (concerning the extraterritorial reach of the Alien Tort Statute) and Zivotofsky v. Clinton (concerning the political question doctrine), the D.C. Circuit’s decision in United States v. Hamdan (concerning the prosecution of material support for terrorism in military commissions), and the Third Circuit’s decision in United States v. Bond (concerning the scope of the treaty power).  It also contains up-to-date information about legal developments in the “war on terrorism.”  Please let us know if you see any mistakes or important omissions.

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John Rizzo, Company Man: Thirty Years of Controversy and Crisis in the CIA.  Publication date: January 2014.

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As Andrew Rosenthal noted in yesterday’s New York Times, things seem to be heating up in Congress with respect to whether–and to what extent–the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or replaced. To that end, the Senate Armed Services Committee has now scheduled a hearing on the same subject for next Thursday morning, May 16.

Those following this conversation may therefore be interested in the rather involved series of exchanges we had over here on Lawfare back in March, spurred by Bobby, Jack, Matt, and Ben’s Hoover Institution white paper, “A Statutory Framework for Next-Generation Terrorist Threats.” At the core of the white paper is the idea that, when the time comes, the AUMF could/should be replaced with a statute that delegates to the President the authority to publicly identify those groups who pose a particularly grave threat to U.S. national security going forward, and authorizing the use of military force against those groups once they have been so designated.

Jennifer Daskal and I wrote a series of posts in response to the Hoover paper, provoking replies, in turn, from two of the paper’s four authors. Thus, for ease of reference, and below the fold, I’m providing a (slightly) annotated guide to the nine(!)-part back-and-forth:

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Earlier today, former State Department Legal Adviser Harold Koh gave a talk at the Oxford Union, entitled “How to End the Forever War?”  His remarks begin as follows:

Thank you, Mr. President and Members of the Union, for inviting me here to speak. I am honored to return to this University, where I first came 38 years ago, and to this Union, where over the centuries, so many thoughtful individuals have discussed and debated so many serious issues

As your President said, until a few months ago, I had the honor of serving for nearly four years as Legal Adviser to the U.S. Department of State, giving advice to President Obama and Secretary of State Clinton on issues of both international and domestic law. For four years, my job was to promote, ensure and defend the legality of the foreign policy of the United States of America.

But tonight, let me emphasize that what I say here represents my personal views. After four intense years, I have many friends in all branches of the U.S. government who work extraordinarily hard, every day, on the most difficult problems facing U.S. foreign policy.  In particular, I support President Obama and the current Secretary of State John Kerry and I wish them success. But tonight, I speak only for myself, not for anyone in the State Department or the U.S. government.

Only four months from now, this coming September 11, the United States’ armed conflict with Al Qaeda will turn twelve years old.  That is eight years longer than the Civil War or World War II, and nearly four years longer than the Revolutionary War.  So much ink has been spilled on such topics as torture, Afghanistan, Guantanamo and drones, that this conflict has come to feel like a Forever War: it has changed the nature of our foreign policy and consumed our new Millennium.  It has made it hard to remember what the world was like before September 11.

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future.  Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer.  In a nutshell, our question should be: “How to End the Forever War?”  Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

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As Paul noted, a new Pentagon Report to Congress states:

In 2012, numerous computer systems around the world, including those owned by the U.S. government, continued to be targeted for intrusions, some of which appear to be attributable directly to the Chinese government and military. These intrusions were focused on exfiltrating information.  China is using its computer network exploitation (CNE) capability to support intelligence collection against the U.S. diplomatic, economic, and defense industrial base sectors that support U.S. national defense programs.

Note that the actions complained about are cyber-exploitations, not cyber-attacks.

I would hope that a journalist asks someone in the Pentagon these questions:

• Is the United States engaged in similar cyber-exploitations “to support intelligence collection against [China's] diplomatic, economic, and defense industrial base sectors that support [China's] national defense programs”?

• If not, why not? 

• If so, what are you complaining about?

• Is the complaint that China is doing a better job at cyber-espionage related to national defense programs than the United States?

• How much of DOD’s worries are grounded in China’s motives for cyber-exploitations?  In particular, to what extent are USG worries about China’s cyber-exploitations really grounded in, as the Report states, (a) concerns that the exploitations might help China’s military planners to build “a picture of U.S. network defense networks, logistics, and related military capabilities that could be exploited during a crisis,” and (b) concerns that “the accesses and skills required for these intrusions are similar to those necessary to conduct computer network attacks”?

• Is the United States not similarly engaged in cyber-espionage of China’s national defense programs with an eye toward U.S. national defense, and might not the skills behind U.S. cyber-intrusions be “similar to those necessary to conduct computer network attacks”?  How are China’s motives different from ours?

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One Buford Rogers of Montevideo, Minnesota, has been arrested for plotting a terrorist attack. The gentleman was found with “Molotov cocktails, suspected pipe bombs and firearms” and is affiliated with an anti-government group known as the Black Snake Militia. The Associated Press has the story.

Julian E. Barnes of the Wall Street Journal and David E. Sanger of the New York Times report that the Pentagon has directly accused the Chinese government and military of cyber espionage in its annual report to Congress entitled Military and Security Developments Involving the People’s Republic of China. Here is Paul’s post saying duh.

Tamerlan Tsarnaev’s uncle cannot find a cemetery willing to accept his nephew’s body for burial, reports the Times.

The Times also tells us that American officials investigating the Boston bombings are working closely with their Russian counterparts, and hoping that the current level of cooperation will spell future collaboration on all things counterterrorism.

A Bloomberg editorial argues that U.S. drone strikes are counterproductive to Yemen’s future, and that the U.S. and Gulf States can do far more to keep Yemen from becoming a failed state.

BBC Business Daily interviews Abraham Karem, the man who invented the Predator drone in his basement.

Drones of the domestic variety are also getting a bad rap these days.  Kevin Robillard of Politico reports on the efforts of states lawmakers to restrict drone use:

Lawmakers have introduced 85 pieces of legislation in 39 states this year relating to drones, according to the National Conference of State Legislatures. Most aim to protect citizens from intrusive “spying” from the skies. Many would do that by requiring police agencies to get a warrant before deploying a drone, while allowing exceptions for life-endangering situations. Other legislation is more specific — a Minnesota measure would protect farmers from agricultural officials with an eye in the sky, while another would ban attaching weapons to drones.

Dr. James Hamblin, the Atlantic’s Health editor, has a disconcerting piece about what it really means to force feed people.

Adrian Chen of Gawker discusses a recently-unclassified CIA memo, obtained through a FOIA request, that reveals just how much the Agency influenced the narrative of Zero Dark Thirty.

Speaking of secrecy, the AP reports that military judge Col. Denise Lind has ordered a closed hearing tomorrow at Fort Meade to serve as a “practice run.” She faces a decision about how to handle the presentation of classified evidence, and how much of Pfc. Bradley Manning’s trial should be held behind closed doors.

Much ado about Benghazi: George Hicks, deputy chief of mission at the U.S. embassy in Libya, who is set to testify tomorrow before Congress, will say that U.S. Special Operations forces were told to stand down while the attack on the U.S. mission in Benghazi raged. Ernesto Londoño of the Post reports on the partial testimony that was released ahead of Hicks’s appearance. Mark Thompson of TIME offers thoughts on the matter.

The Times interviewed Gen. Joseph Dunford, the new ISAF commander and successor to Gen. John Allen about the endgame in Afghanistan. What distinguishes him, according to Alissa J. Rubin and Matthew Rosenberg, is that “[h]e offered a far more positive take on the prospects for this country than many longtime Western officials here, and a less critical one than many of his predecessors had offered.”

And, Terry Cline of the Columbus Dispatch reports on a kerfuffle involving—yes, this is true—a drone and Lady Justice: it’s Today’s Moment of Zen.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

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As most readers are aware, in the midst of the national turmoil following the bombings in Boston, the House of Representatives passed a version of the Cybersecurity Intelligence Sharing and Protection Act (CISPA) by a vote of 288-127. As I noted earlier, this represents 40 more votes than the bill received in 2012 – a significant improvement.  Indeed, more than 90 Democrats voted for the bill, notwithstanding President Obama’s threat to veto the legislation.

Reaction in the Internet space has been fierce and, among those who tweet and blog, almost entirely negative.  I’ve seen CISPA called “the law that ate civil liberties” and far worse.   Many privacy rights activists such as the group, Anonymous, called for various actions to protest against the law, and a number of websites agreed to block themselves voluntarily.  None the less, the best assessment is that this year (unlike last year, when the object of the protest was the SOPA/PIPA legislation) the Internet blackout fizzled.  On the other hand, it seems pretty clear from public reports that CISPA, in its current form, is likely dead in the Senate – but that doesn’t mean that the concept is dead, only that many of the concepts are likely to re-emerge from the Senate in some mutated form.

Given how much heat has been caused by CISPA’s passage, I thought I’d take a moment to walk through the House legislation, step by step and assess its likely effects in as balanced and dispassionate a way as I can.  For my analysis, I am working off with the engrossed bill, as passed by the House. [For those who prefer a PDF version, here is a link.]

Initial Thoughts – Let me start with the high-level assessment first.  I’ve read the bill several times and the best way to characterize it, I think, is that it is somewhat confused.  Section 3 of the bill (which I describe in more detail below) is the guts of the initial CISPA as it passed out of the Intelligence Committee.  Broadly speaking Section 3 authorizes greater information sharing from the Federal government to the private sector and from the private sector to the Federal government.  It comes with liability protections and privacy protections (about which, also, more below) that you can either think are effective or ineffective – but the dominant theme (appropriate for a bill coming out of the intelligence committee) is to think of cyber threat information as intelligence information.  Section 3, to make the most obvious point, is styled as an amendment to the National Security Act in Title 50 of the US Code.

On the floor of the House, however, the bill took a sharp turn – represented by Section 2 of the bill.  That section (an attempt, obviously, to assuage concerns about the intelligence community’s involvement in the civilian cyber network) layers on top of Section 3, a new superstructure.  It requires the President to designate an entity in DHS as the coordinating entity for cyber threat information and another in DOJ as the coordinating entity for cyber crime information received from the private sector.  Those entities, in turn, become responsible for further dissemination of the information provided within the Federal government. Read more »

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