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Feds Identify Suspected “Second Leaker”

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Monday, October 27, 2014 at 3:51 PM

That’s the headline from Michael Iskikoff at Yahoo! News reporting that the FBI has identified the suspected so-called “second leaker.”

The story begins:

The FBI has identified an employee of a federal contracting firm suspected of being the so-called second leaker who turned over sensitive documents about the U.S. government’s terrorist watch list to a journalist closely associated with ex-NSA contractor Edward Snowden, according to law enforcement and intelligence sources who have been briefed on the case.

The FBI recently executed a search of the suspect’s home, and federal prosecutors in Northern Virginia have opened up a criminal investigation into the matter, the sources said.

But the case has also generated concerns among some within the U.S. intelligence community that top Justice Department officials — stung by criticism that they have been overzealous in pursuing leak cases — may now be more reluctant to bring criminal charges involving unauthorized disclosures to the news media, the sources said. One source, who asked not to be identified because of the sensitivity of the matter, said there was concern “there is no longer an appetite at Justice for these cases.”

Marc Raimondi, a spokesman for the Justice Department, declined to comment on the investigation into the watch-list leak, citing department rules involving pending cases.

As for the department’s overall commitment to pursue leak cases, he added: “We’re certainly going to follow the evidence wherever it leads us and take appropriate action.”

Today’s Headlines and Commentary

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Monday, October 27, 2014 at 1:46 PM

While the US midterm elections are still a week away, democratic contests elsewhere in the world are ongoing or have just concluded. In Brazil, the BBC reports that incumbent president Dilma Rousseff narrowly won re-election today in what was a fraught contest between her and a centrist challenger, Aecio Neves. President Rousseff, who won with 51.6% of the vote to Neves’ 48.4%, promised that she would be a “‘much better president’” than she has been so far. Over the past year, her regime has confronted mass protests and sagging approval ratings due to allegations of corruption and poor services. Still, she, as well as her Workers’ Party, remains “popular with poor Brazilians thanks to her government’s welfare programs.” Reuters has more on her legacy up until now and the economic challenges Brazil faces moving forward.

In Ukraine, pro-Western parties appear to have won handily in Sunday’s parliamentary elections. Both President Petro Poroshenko’s bloc and the party of Prime Minister Arseniy Yatseniuk each appear to have won approximately 21% of the vote. The two are reportedly holding coalition talks today. The BBC reports that the full party-list results are expected later tonight, and will cover “only 225 of the 450 seats.” President Poroshenko was ebullient as the results began to come in, saying at a news conference that “‘more than three-quarters of voters who took part in the polls gave strong and irreversible backing to Ukraine’s path to Europe.’” Still, the country remains divided; there was no voting in the eastern areas of the country currently dominated by pro-Russian separatist forces. As a result, the parliamentary seats for Donetsk, Luhansk and Crimean regions remain vacant.

Finally, in Tunisia, the secular Nidaa Tounes party defeated the Islamist party Ennahda, its main rival, and won the largest number of seats in that country’s parliamentary contest. According to the New York Times, the latest results show that Nidaa Tounes has 38% of the vote, translating to 83 seats, compared to Ennahda’s 31% of the vote and 68 seats. Officials say provisional turnout reached 62%, demonstrating “Tunisians’ support for democracy.” The Guardian reports that Ennahda has conceded.

In the flashpoint city of Kobani, the Syrian Observatory for Human Rights said that Kurdish fighters repulsed an ISIS attempt to seize a key border post in the city. Over the past 40 days, the militant Islamists from ISIS have been “pressing their assault” on the town despite US airstrikes and fierce Kurdish resistance. The Guardian quotes the monitoring group as stating over 815 people have been killed in the month-odd fighting, “more than half of them ISIS fighters.”

Read more »

“Warm and Fuzzy with the North Koreans”

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Monday, October 27, 2014 at 8:29 AM

The other day, I posted this video of the North Korean Ambassador to the United Nations giving a talk at the Council on Foreign Relations:

The question of whether or not a think tank like CFR should host the worst people in the world—among whom the leaders of the North Korean state surely rank—is tricky one. As much as it galls me for CFR to give over its very respectable stage to a spokesman for the world’s long-running mass murder operation, there’s a lot to be said for a foreign policy organization’s willingness to hear out, ventilate, and challenge the views of our foreign policy adversaries.

There is no excuse, however, for the tone and substance of this event, which was hosted by former U.S. ambassador to South Korea Donald P. Gregg.

Even before Gregg introduced his guest, he set exactly the wrong tone by creepily describing himself as “warm and fuzzy” with the North Koreans:

just to make things a little different, I have something I’m going to pass around. I definitely want it back, because it’s one my precious possessions. It’s a copy of a leaflet dropped by North Korea when I was ambassador in 1991. I checked this out with Ambassador Jang; it’s OK with him. And this was on a golf course out in Seoul. And for those of you who don’t read, Korean, you’ll see me sitting regally in a chair with Roh Tae Woo bending over me, and we’re discussing how to assassinate Kim Young-sam, who was the upcoming president of South Korea.

So that was how I was perceived by the North Koreans. I pass this around, because I think that some people feel, well, this guy, Gregg, is sort of warm and fuzzy with the North Koreans. And that is not—that is not—we may be now, but we certainly weren’t there. So, anyway, please enjoy it. Thank you.

Gregg then introduces Ambassador Jang Il Hun: “Ambassador Jang and I have become good friends in the time he has been here.” We may be warm and fuzzy now? Good friends? Let’s just say this is not the note on which I would have started an event with a representative of a government with more than 100,000 people in labor camps.

And then (drum roll, please) the first tough question to our good friend, with whom we are now “warm and fuzzy”: “how would you respond to Mr. Kirby’s statement that, under Kim Jong-un, there has been an improvement in the human rights situation in North Korea?”

The reference here is to Michael Kirby, the Australian head of a U.N. commission for human right in North Korea. His report, for the record, is not really about “improvement” in North Korean human rights. Here’s Kirby’s central finding (p. 6):

The commission finds that systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea. In many instances, the violations found entailed crimes against humanity based on State policies. The main perpetrators are officials of the State Security Department, the Ministry of People’s Security, the Korean People’s Army, the Office of the Public Prosecutor, the judiciary and the Workers’ Party of Korea, who are acting under the effective control of the central organs of the Workers’ Party of Korea, the National Defence Commission and the Supreme Leader of the Democratic People’s Republic of Korea.

It gets worse. Gregg goes on to read approvingly from a DPRK report on human rights in the country and then ask: “have the countries of China, Russia, Japan or South Korea ever raised with you the issue of human rights problems in your country?” Answer: Japan and South Korea do but Russia and China don’t. Gregg then goes on to ask: “Three Americans are held in your country. And are any of them connected with human rights issues?” Answer: “No. Definitely not.”

It goes on and on and on. There are, to be sure, some excellent questions from the floor, particularly from the New York Times‘s David Sanger, who pushed the ambassador on the execution of Kim Jong-Un’s uncle, and from a representative of Human Rights Watch.

But one scours the transcript in vain for any sign of skepticism, much less moral outrage, from the organization or the moderator. One gets, instead, simpering solicitude. At the transcript’s end, Gregg congratulates his guest:

GREGG: Thank you very much for coming. I think what you have seen today is a panoply of reactions. There are things I knew, in some cases, there was nothing you could say that would satisfy some of the questions. But it’s the start of a process. And I think that the fact that the process has begun by your coming is very constructive.

So thank you very much. And thank you for the audience. And the class is dismissed.

(APPLAUSE)

GREGG: Well done.

My word to CFR: Not well done.

UPDATE: Here are the tweets sent from the account @CFR_org on the event:


Susan Rice Did Not Consult DOD When She Urged Repeal of 2002 AUMF That DOD (Correctly) Thought Was “Still Needed”

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Monday, October 27, 2014 at 8:18 AM

Michael Hirsh has a piece at Politico on the disorganized, uncoordinated crafting and implementation of the administration’s strategy to defeat the Islamic State.  Of particular interest to Lawfare readers is the news that National Security Advisor Susan Rice failed to consult with DOD when she wrote a letter to Congress last summer asking for the repeal of the 2002 AUMF.  DOD was surprised by the letter, Hirsh says, because (according to a senior defense official) DOD tought at the time that the 2002 authorities “were still needed.”  Here is the relevant passage:

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

Hirsh closes his piece by noting the 2002 AUMF episode, combined with the White House’s failure to consult DOD on the timing and details of draft legislation on arming the Syrian rebels, constitute “new evidence of a criticism that has dogged this administration for most of its six [sic] and a half years: that Barack Obama’s White House is so insular and tightly controlled it often avoids “outside” consultation—including with its own cabinet secretaries and agencies.”  Hirsh concludes, harshly:

That’s especially true when the issue is one of this president’s least favorite things: opening up new hostilities in foreign lands. To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.

A Bit More On the Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty

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Monday, October 27, 2014 at 7:45 AM

In his piece on Nobel Peace Prize Laureates pressuring the President to disclose information about torture, Charlie Savage explains why some officials in the administration oppose the broad extraterritorial expansion of Article 16 of the CAT:

The officials opposed to accepting the cruelty provision as applying abroad insist they do not want to resume abusive interrogations, which are barred by the 2005 statute anyway, but worry that accepting the treaty provision as applying abroad could have unintended consequences on other operations, such as by suggesting that other treaties with similar jurisdictional language also apply everywhere.

I unpacked this reasoning, and other possible reasons for the opposition, in this post.

The Week That Will Be

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Monday, October 27, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, October 27th at 3 pm: Johns Hopkins SAIS’s Center for Transatlantic Relations will host a launch of their new book entitled Advancing the US-Nordic-Baltic Security Cooperation. For a list of speakers and to RSVP, visit the event announcement at the Johns Hopkins website.

Tuesday, October 28th at 6:30 pm: The World Affairs Council will host General David G. Perkins in a conversation on the Future Army: Win in a Complex World. Register here.

Wednesday, October 29th at 9 am: Deepti Choubey, Laura Holgate, Robert Floyd, Masood Khan, and Kees Nederlog will discuss Preventing Nuclear Terrorism Globally in a panel at Johns Hopkins SAIS. This event will be off the record. RSVP here.

Wednesday, October 29th at 9:30 am – 4:30 pm: This all-day conference at the Carnegie Endowment for International Peace will examine the Islamic State and the Middle East’s Shifting Geopolitical Landscape. Four panels of regional experts and practitioners will consider the political, security, and sectarian dynamics fueling the Islamic State in Syria and Iraq, the inherent contradictions within the U.S.-led coalition, the impact of Iran on recent developments, and the challenges facing U.S. policymakers. For more information on panel times and guests, visit the Carnegie announcement.

Thursday, October 30th at 5 pm: In National Insecurity, David Rothkopf explores how the two most recent presidents and their advisers navigated a changing world in the wake of 9/11. From their stinging failures to their soaring successes, he envisions a path forward, for the U.S. to reassert its leadership and return balance to the global order. Join David at the Carnegie Endowment for International Peace as he talks with former national security advisers Sandy Berger, Zbigniew Brzezinski, and Brent Scowcroft about the trends and challenges for U.S. foreign policy outlined in his book. The panel discussion will be followed by a reception. RSVP here.

New CNAS Program on Autonomous Weapons

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Sunday, October 26, 2014 at 9:56 PM

The Center for a New American Security (CNAS) last week announced a new project on “Ethical Autonomy.” (This is a topic on which Ken and I have written, most recently in a piece co-authored with Daniel Reisner titled “Adapting the Law of Armed Conflict to Autonomous Weapon Systems.”)

CNAS’s description of the project is below. The website has a very rich and helpful bibliography of materials and set of links to materials on the topic. I recommend watching closely what comes out of this program, because CNAS has such strong links through its leadership and fellows to the U.S. Defense Department. One of the directors of this new program, Paul Scharre, led the DoD working group that drafted the Department’s Directive 3000.09, establishing policies on autonomy in weapon systems.

Here’s an excerpt from the program’s description:

Information technology is driving rapid increases in the autonomous capabilities of unmanned systems, from self-driving cars to factory robots, and increasingly autonomous unmanned systems will play a significant role in future conflicts as well. The prospect of increased autonomy in weapons systems raises challenging legal, moral, ethical, policy and strategic stability issues. Nation-states and activists in the United States and abroad are already debating how advances in autonomy will influence warfare – and what, if anything, should be done. Activists have launched a “Campaign to Stop Killer Robots,” comprised of 53 non-governmental organizations. In May of 2013, state parties to the United Nations’ Convention on Certain Conventional Weapons held initial discussions on autonomous weapons, and future discussions are likely.

Governments and militaries are only beginning to grapple with how to address the challenges and opportunities associated with increased autonomy. Technology is moving fast in this area. Few states have guidelines on how autonomy should be included in future weapons systems, with the United States a notable exception.

The project on Ethical Autonomy will examine the legal, moral, ethical, policy and strategic stability dimensions of increased autonomy in future weapon systems. The goal of CNAS’ Ethical Autonomy project is to help states, activists, academics and militaries grapple with the challenging issues of autonomy in future weapons. This dialogue is necessary to ensure an appropriate balance between ethical and strategic stability considerations, technological opportunities and future warfighting needs.

Folk Law and Obama Administration Mythology: Four Stakes

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Sunday, October 26, 2014 at 8:00 PM

Marty Lederman and I have been engaged in a debate over the past few weeks, and last Monday he wrote a lengthy and thoughtful “Monday Reflection” over at Just Security concerning some of my arguments here at Lawfare and in my article, Folk International Law. I would like to use this post, my last in this exchange, to raise four of the bigger stakes that I think arise out of our discussion.

Before diving in, two preliminary points: First, I will leave it to readers of Folk to assess if Professor Lederman accurately and fairly captures my positions, and won’t spend time responding point-by-point here. Second, Lederman kindly suggests that we share many areas of agreement. Alas, I don’t think we do—again, though, I’ll leave it to readers to see if they agree.

Whether Clarity in the Legal Framework Exists—and Is Important

Lederman, who was instrumental in shaping the Obama administration’s legal framework for counterterrorism operations, seems invested in convincing us of two things that I see as contradictory: first, that the framework is exceptionally clear and that it has built-in limiting principles that will prevent the framework from doing things that liberals wouldn’t want (such as furthering a “Forever War” or permitting the killing of civilians outside of situations of armed conflict); and second, that clarity in the legal framework applicable to the use of lethal force is, actually, not that important, because policy is effectively doing more work than international law is in its approach to armed force.

I wonder about both claims. As Karen DeYoung’s article in the Washington Post makes clear, those who are tasked with executing the war against ISIS and the Khorasan Group in Syria appear (perhaps exceptionally) unclear about the legal framework within which they are operating. Part of that lack of clarity seems to flow from the contention—developed by some amici in the Hamdan case and furthered reportedly by Lederman and other executive branch lawyers—that the United States is in a global non-international armed conflict with al-Qaeda and associated forces (Lederman seems to take umbrage at my use of the term “global,” so we can replace it with “boundary-less”). If the statements from officials cited by DeYoung are a guide, the mélange of U.S. approaches—an unclear mix of claims blending the jus ad bellum, IHL, extraterritorial law enforcement, and policy—leaves operators and the American public uncertain as to whether the U.S. is operating under a binding IHL framework associated with a particular classification of conflict (NIAC), or whether we are doing something else. That lack of clarity, which makes it harder to identify and enforce a limiting principle, matters: it matters for the people engaging in the use of force; for the people whom force is being used against; for the public in whose name the force is being deployed; and for the international legal system. Read more »

Oral Argument Preview: Zivotofsky v. Kerry

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Sunday, October 26, 2014 at 3:00 PM

On Monday, November 3, the Supreme Court will hear oral arguments in Zivotofsky v. Kerry, the long-awaited final act in a decade-plus-long saga surrounding the passport of an American boy born in Jerusalem. The issue before the Court this time around (the Court decided a preliminary issue in 2012) is whether a federal statute directing the Secretary of State, upon request, to record “Israel” as the birthplace of an American citizen born in Jerusalem impermissibly interferes with the President’s power to recognize foreign nations. The broader import of Zivotofsky, as Jack noted when the Court granted certiorari, is that “the Court will need address the scope of the President’s exclusive power in a foreign relations context—something it has rarely (if ever) squarely done.” The resolution of Zivotofsky thus carries significant separation of powers implications. In preparation for oral argument, we preview the key arguments set out in the merits briefs.

First, however, a brief refresher on the facts. In 2002, Congress enacted the Foreign Relations Authorization Act, § 214(d) of which directs the State Department to “record the place of birth as Israel” in the passports of Americans born in Jerusalem, if they or their parents so request. Shortly after the enactment, American citizen Menachem B. Zivotofsky was born in Jerusalem, and the boy’s parents requested of the State Department that his birthplace be listed as Israel on his passport. When the State Department denied the request, Zivotofsky sued the U.S. government. Both the federal district court and federal appeals court held, in effect, that the case presented a nonjusticiable political question, but the Supreme Court disagreed. In Zivotofsky v. Clinton, 566 U.S. ___ (2012), the Court declared that judicial review of Zivotofsky’s claim was available, and that the constitutional question turned on whether the statute impermissibly intrudes upon the President’s exclusive recognition power under the Constitution. On remand, the D.C. Circuit held that the statute was such an unconstitutional incursion of the President’s power (here is Samantha Goldstein’s summary of that opinion). Zivotofsky petitioned for certiorari, and the Supreme Court granted, bringing us to the present.

We turn now to the merits briefs.

Read more »

The Convention Against Torture: Extraterritorial Application and Application to Military Operations

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Sunday, October 26, 2014 at 10:37 AM

Belatedly, I want to join the discussion about the extraterritorial application of the Convention Against Torture (CAT), about which Jack commented on Friday, drawing on an article by Charlie Savage earlier in the week. The New York Times opined on the issue on Tuesday in one of its typically misleading, “don’t-confuse-me-with-the-facts” editorials that suggested that the Obama Administration is considering permitting U.S. officials to engage in torture outside the United States, causing Congressional consternation about the Obama Administration’s position. Beth Van Schaak also commented on the issues over at Just Security.   The spate of commentary has been spurred by the Administration’s preparations for the U.S. presentation to the Committee Against Torture (CAT Committee) on November 12-13 in Geneva.

At the outset, I should note that, as State Department Legal Adviser, I headed the U.S. delegation that appeared before the CAT Committee on May 5-8, 2006 to explain the U.S. Second Periodic Report. Although it was a privilege to represent the United States, this was not an easy experience, as the U.S. appearance came at the apex of international criticism of U.S. detention and interrogation practices in Iraq, Afghanistan, and Guantanamo, and several years after Abu Ghraib. Then, as now, the U.S. positions articulated in Geneva were the result of arduous interagency discussions, and were not simply the views of the Legal Adviser.

In this post, I will address what the New York Times got wrong; my agreement with Harold Koh that Article 16 of the CAT applies outside U.S. territory in certain situations; and the difficult question of whether U.S. detention operations are governed by the CAT, or international humanitarian law.

Read more »

The Foreign Policy Essay: The Sectarian Apocalypse

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Sunday, October 26, 2014 at 10:00 AM

Editor’s Note: The savage fighting in Syria and now Iraq seems to grow worse every month. As the U.S. role in the conflict grows, so too does the need to understand the motivations of the fighters, including Westerners who go off to join the fray. Unlike many past conflicts in the Muslim world, the eschatological elements of the Syrian conflict run deep. William McCants, my colleague at Brookings who runs the Project on U.S. Relations with the Islamic World, explains the apocalyptic enthusiasm of the fighters and the history that few of them understand.

***

Despite fighting bitterly against each other in Iraq and Syria, many of the Sunni and Shi‘a militants who have been drawn to the battlefield are motivated by a common apocalyptic belief. They fight in the vanguard of the Mahdi, the Muslim savior whom the Prophet Muhammad prophesied would appear in the Levant (the coastal Mediterranean region that includes Syria and Lebanon) at the End of Days to wage a final great battle against the infidels’ armies. “I was waiting for the day when I will fight in Syria. Thank God he chose me to be one of the Imam’s soldiers,” confides 24-year-old Abbas, a Shi‘i from Iraq who, like other Shi‘a, believes the Mahdi will be the twelfth “imam” or leader descended from Muhammad. “With every passing day we know that we are living the days that the Prophet talked about,” asserts Mussab, a Sunni fighting for al-Qaeda’s branch in Syria, the Nusra Front.

Readers might puzzle at the incongruity of Muslims killing one another somehow fulfilling a prophecy of Muslims defeating infidels. But the early Islamic apocalyptic prophecies are intrinsically sectarian because they arose from similar sectarian conflicts in early Islam waged in Iraq and the Levant. As such, they resonate powerfully in today’s sectarian civil wars.

Will McCants photo with borderSoon after the death of Muhammad, civil wars or fitan (“tribulations”) consumed the nascent Islamic empire as Muhammad’s companions battled one another for political supremacy. The contest was framed in religious terms, which was unavoidable given that Muhammad and his immediate successors, the caliphs, wielded both spiritual and temporal authority. Before and after each tribulation, partisans on both sides circulated prophecies in the name of the Prophet to support their champion. With time, the context was forgotten but the prophecies remained.

To understand the sectarian dimension of Islamic apocalyptic prophecies, take the example of the enigmatic figure known as “the Sufyani.” According to the prophecies, the Sufyani descends from Abu Sufyan, the leader of Muhammad’s tribe in Mecca who persecuted the Prophet and his early followers. Although Abu Sufyan and his family later converted to Islam, Abu Sufyan’s son fought Muhammad’s son-in-law, Ali, for control of the Islamic empire and eventually became caliph, establishing the Umayyad dynasty that ruled for nearly a century.

As one might expect, the partisans of the losing side, called the “Shi‘at Ali” (“partisans of Ali” and later just “the Shi‘a”), began circulating words of the Prophet prophesying the new dynasty’s downfall at the hands of the Mahdi, a member of the Prophet’s family who would defeat the dynasty’s champion, the Sufyani, in the Levant. “When the Sufyani reaches Kufa [a city in Iraq] and kills the supporters of the family of Muhammad, the Mahdi will come,” goes one early prophecy. Read more »

The Lawfare Podcast, Episode #97: Bahlul, Bahlul, Bahlul, Part Deux

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Saturday, October 25, 2014 at 1:55 PM

By now you know: Wednesday morning saw oral argument in Al Bahlul v. United States—the first since the D.C. Circuit’s en banc decision, and the matter’s remand to a three judge panel consisting of Circuit Judges Judith Rogers, David Tatel, and Karen LeCraft Henderson.

On Wednesday afternoon, I sat down for post-argument analysis of the long-running military commissions case with Lawfare’s Steve Vladeck, and Kevin Jon Heller of Opinio Juris.  The discussion was wide ranging, and touched on (among other things) the significance of the Supreme Court’s Quirin ruling, and the case’s potential consequences for future military commission trials of suspected terrorists.

I should add that this marks the second Lawfare Podcast about the case.  The first was”Bahlul, Bahlul, Bahlul;” we hope you’ll enjoy this episode, “Bahlul, Bahlul, Bahlul, Part Deux.”

The Week that Was: All of Lawfare in One Post

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Saturday, October 25, 2014 at 9:55 AM

Ben outlined all the many, surprising—and mutually contradictory—ways in which President Obama is “right.”

Cody noted that ISIS and al Nusra appear to have obtained drone technology and shared some photos taken by the groups’ newest tech.

I shared a piece from Al Qaeda’s English-language magazine, Resurgence, that mentions East Turkestan (aka Xinjiang) and observed that China is taking the threat of jihad on its doorstep seriously.

Wells highlighted the news that a Russian detainee at Bagram air base is set for prosecution in U.S. federal court.

Jack argued that the debate about the extraterritorial scope of the Convention Against Torture (CAT)’s provisions on cruelty is not about the government’s interrogation policy.

Jane noted that the government filed its response in Allaithi v. Rumsfeld and summarized its 15-page brief.

Alex Ely tipped us off that the Periodic Review Board recommended repatriation for one Saudi detainee being held in Guantanamo and continued detention for another.

Wells questioned whether House Intelligence Committee Chairman Mike Rogers was serious when he said he would charge Edward Snowden with “murder.”

Tara Hofbauer shared an update released by the Director of National Intelligence on the implementation of President Policy Directive/PPD-28, which regards signals intelligence activities.

Michael Knapp shared news that defendants in United States v. Muhtorov moved to compel notice of surveillance techniques. He also summarized the defendants’ arguments.

Peter Margulies asserted that UN Special Rapporteur Ben Emmerson’s recent report on “mass surveillance” makes “sweeping claims” but fails to ground those claims in an “accurate description of the US surveillance program.”

Cully Stimson noted that while former Secretary of Homeland Security Michael Chertoff made the case for continuing the Visa Waiver Program (VWP), he also called for more “robust surveillance programs that work hand in glove with the VWP.”

Wells posted the first installment of “Ask Wells,” perhaps Lawfare’s most “peculiar” feature.

Wells also provided a readout of the oral arguments this week in the long-running military commission case of Al Bahlul v. United States and analyzed Judge David Tatel’s “keen sensitivity” to a key precedent, Ex Parte Quirin. Peter Margulies also examined the case and the fact that Quirin is still “very much alive.” Steve Vladeck responded to Peter’s post and raised two points of criticism.

I outlined why Beijing’s Fourth Plenum this week is important from a legal standpoint and cautioned against expecting too much in the form of judicial reform.

For those in need of a “macabre laugh,” Ben shared a video of the North Korean ambassador to the UN talks attempting to compare Pyongyang’s human rights record to that of its southern neighbor.

Bobby provided the agenda and audio from last week’s conference at the University of Texas-Austin on the lessons gleaned from the past decade’s experience under the ODNI and NCTC.

Jack delineated some implications of the President’s plans to avoid Congress vis-a-vis the sanctions on Iran and warned that any such deal with Tehran would be “tenuous.”

Wells examined whether or not the US is pushing the treaty limits of the 1961 Single Convention on Narcotic Drugs with Colorado and Washington’s legalization of marijuana. He also linked to a paper he recently wrote on the subject in concert with John Walsh of the Washington Office on Latin America entitled, “Marijuana Legalization is an Opportunity to Modernize International Drug Treaties.”

This week, Stewart Baker brought us the 39th episode of the Steptoe Cyberlaw Podcast, which featured Tom Finan, Senior Cybersecurity Strategist and Counsel at DHS’s National Protection and Programs Directorate (NPPD). Marc Frey spoke with him about DHS’s interest in cybersecurity and what trends are visible in this space “for carriers and other stakeholders.”

In this week’s Foreign Policy Essay, Daniel Byman, the foreign policy editor of Lawfare and a senior fellow at the Center for Middle East Policy at Brookings, explained why the “Arab world’s foreign fighter problem makes the West’s concerns seem minor.”

And that was the week that was.

Today’s Headlines and Commentary

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Friday, October 24, 2014 at 2:54 PM

A doctor in New York who recently treated Ebola patients in Guinea has contracted the disease, the New York Times reports. Authorities have placed Craig Spencer into isolation at the city’s Bellevue Hospital, while they conduct contact-tracing and map out his every move over the past few days; the day before self-reporting a fever of 103 degrees, while he was reportedly still asymptomatic, he went to a bowling alley and rode the subway.

The New York Times also writes that the EU has secured $1.25 billion for the Ebola fight in West Africa. UK Prime Minister David Cameron announced the increased support on Thursday, saying Britain had shown the way by initially pledging “an additional $126 million to fight the disease.”

According to Reuters, despite shelving a promising vaccine years ago because of financial considerations, international drug companies now “plan to work together to speed up development of an Ebola vaccine and hope to produce millions of doses for use next year.”

Finally, the New York Times divulges that Ebola appears to have crossed the border into Mali, where a 2 or 3-year-old girl whose parent probably died of the disease was diagnosed with it on Thursday. Mali is the sixth West African country to confirm a case of Ebola within its borders.

A robust response to gains made by ISIS in Iraq appears far off “despite increasing assistance from the United States.” The New York Times reports that while “Iraqi and Kurdish troops have demonstrated in a few recent instances that they can repel attacks by the militants,” including this week around the Mosul Dam, “Iraq’s ability to mount a sustained counter-offensive to retake territory seized by the Islamic State is still months away.” Reuters has more, including an assessment of the losses that the Iraqi army has taken in Anbar province.

Retired Army Lt. Col John Nagl told Yahoo! News “Top Line” reporters yesterday that US troops would ultimately be necessary for defeating ISIS in Iraq, suggesting that the U.S.’s reluctance to involve American troops on the ground is a major “reason why the Iraqi forces are not able to take on and really defeat the ISIS forces.”

Those comments come as US Central Command reports that the United States and coalition allies have dropped more than 1,700 bombs on the Islamic State in both Iraq and Syria.

Also, according to the Times, the US is currently investigating whether or not ISIS used chlorine gas last month against Iraqi police officers near the town of Balad, just north of Baghdad. The officers themselves claimed that ISIS “set off an explosive that unleashed a mass of yellow smoke that hung close to the ground,” and hospital officials who treated the men “confirmed the men’s suspicious that chlorine gas had been used against them.” The report states that “eleven officers were made ill” in the attack, “though all survived.” Read more »

The Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty is (Almost Certainly) Not About USG Interrogation Policy

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Friday, October 24, 2014 at 10:22 AM

A week ago Charlie Savage reported that the Obama administration “is considering reaffirming the Bush administration’s position that the [Convention Against Torture(CAT)] imposes no legal obligation on the United States to bar cruelty outside its borders.”  The provision of the Torture Convention in question is Article 16, which provides: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment [CIDT] or punishment which do not amount to torture …”  I believe the debate is about the meaning of the term “territory under its jurisdiction,” and whether that term includes any situation in which the United States government abroad has “effective control” of an individual, or rather is limited to situations where the United States exercises some deeper form of territorial power, such as occupation or sovereignty.  Setting aside the right answer on the merits of the interpretation of the treaty (here is Harold Koh’s long memo on the subject), I think it is worth getting clear about what is at stake in this debate about the extraterritorial scope of the obligation to prevent cruelty.

I seriously doubt that aggressive interrogations by the USG are at stake.  I draw this conclusion for three reasons.  First, in light of the ugly and still-harmful history of the United States’ aggressive interrogation policy, and the Obama administration’s commitments to not returning to this policy, I simply cannot imagine the Obama administration hedging on an extraterritorial interpretation of Article 16 in order to preserve the possibility of more aggressive interrogations by the United States.  Indeed, it’s hard to imagine any agency invoking the need for the USG to engage in harsh interrogations in interagency discussions.  Second, even if it wanted to, the Obama administration could not return the United States to an aggressive interrogation policy abroad that included acts of cruel, inhuman or degrading treatment because Congress has expressly banned such practices in the Detainee Treatment Act of 2005 (DTA):

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.     

As David Luban correctly notes, “the DTA prohibit CIDT by the United States everywhere on the planet, it prohibits loophole lawyering to evade the ban.  Its second clause is, almost in so many words, an anti-loopholing prohibition.  So, regardless of how CAT’s CIDT prohibition is interpreted, prisoner abuse remains prohibited by U.S. law.”  Third, Charlie Savage, who wrote the story that got this controversy going, tweeted in response to Luban’s post: “Re CAT: doubt operational impacts=interrogations bc DTA/EO. Other treaties w/ similar applicability? Confinement conditions?”

I also do not think the debate is about lawsuit concerns – at home or abroad – related to aggressive interrogations.  Regardless of the interpretation of the treaty, there is no domestic cause of action in this context.  And I do not see how the United States’ interpretation of the treaty would affect proceedings in a foreign or international court.

So what is at stake if not USG interrogations?  Savage speculates: “Confinement conditions.”  The USG might be concerned about the legality of its non-interrogation detention practices in Parwan and GTMO, or about controversial non-interrogation practices such as force-feeding.  But I doubt it.  Any confinement practices deemed to be CIDT would be banned by the statute in any event.

Savage also speculates: “Other treaties w/ similar applicability?”  Here we get to the heart of the matter, I think.  Many other treaties besides the Torture Convention include the phrase “territory under its jurisdiction” or a similar phrase.  If the United States interprets this phrase to have broad extraterritorial reach in the Torture Convention, it might be committing itself to similar constructions in most if not all of those other contexts.  For example, the debate about the extraterritorial scope of the International Covenant on Civil and Political Rights turns in part on the meaning of this sentence: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant ….”  Moreover, there are scores of other treaties, including some very consequential ones having little if anything to do with human rights, that contain similar language (though often these treaties specify scope in terms of jurisdiction or control).  I have collected some of these treaties in an Addendum below.  I am not saying that these and other treaties would definitely be affected by adoption of the broad reading of Article 16 of the CAT.  But the matter would have to be thought through carefully.  And I expect that many in the USG are worried about the manifold and potentially problematic and unforeseen implications for these treaties. I think this is probably the main point at stake in this debate.

Two other matters are also potentially relevant to this debate that are not suggested in Savage’s tweet.

First, there is an important difference between the USG obligation under the Detainee Treatment Act and its relevant obligation under the Torture Convention.  The DTA says that no individual “in the custody or under the physical control” of the USG shall be subject to CIDT.  Article 16 of the CAT has a potentially broader obligation that goes beyond a prohibition on USG acts and imposes an affirmative duty to “undertake to prevent in any territory under its jurisdiction” acts of CIDT.  Perhaps the United States worries that if “territory under its control” is construed too broadly, it will have a duty to prevent non-USG persons from engaging in CIDT.  I do not imagine that the USG has any policies of purposeful winking and nodding while non-USG officials engage in CIDT in territory under its jurisdiction, for such winking and nodding would almost certainly constitute conspiracy or aiding a CIDT violation.  But a broadly extraterritorial Article 16 might impose a yet larger obligation, to affirmatively seek out and root out CIDT within a territory under its jurisdiction, and maybe that is a worry to some people USG quarters.

Second, a standard argument in this context in the government would be something like the following: Who knows what the vaguely worded prohibition on CIDT might be construed to entail down the road?  If the treaty is best read not extend the obligation to have broad extraterritorial reach, the argument goes, it would be imprudent for the USG to so extend it because the implications of doing so are unknown and unknowable.

In sum, I do not think the debate about the extraterritorial scope of Article 16 is about maintaining space for the USG to possibly engage in interrogation practices that constitute CIDT.  However, for those advocating such an extension for other reasons, including symbolic ones (which are not unimportant), tying the issue to interrogation is an effective strategy precisely because no one wants to return to those days or even be associated with possibly doing so.

Addendum

Select U.S. treaties with term “territory under its jurisdiction,” or a similar phrase Read more »

Look Who Else Has Drones: ISIS and Al Nusra

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Friday, October 24, 2014 at 10:11 AM

Since the introduction of drone technology to the battlefield, countless academics, policymakers, and military planners have pondered a disturbing question: what happens when other countries or non-state actors have access to them? In Syria, we may be starting to see the effects that the dissemination of drone technology will mean for the future of war.

In late August, ISIS released a 14-minute video of the preparation, planning, and execution of an assault on a Syrian military base in the northern part of the country. The video, entitled in English, “Disperse Those Who are Behind Them,” is like many jihadist propaganda videos: it begins with a long segment of Quranic verses that are meant to justify the attack, shows militants examining a map of the region, and contains gruesome battle scenes, including two beheadings. However, the video is of special note for one reason: ISIS employs a drone for aerial surveillance of the base.

Below are two images of the group using what appears to be large print-outs of Google maps to plan the assault:

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Below are three images of ISIS drone aerial surveillance, with the first conspicuously labelled, “From the lens of an Islamic State drone.”

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ISIS would end up attacking the base on August 7th, capturing large segments of it after launching three suicide attacks on its gates, and securing control over much of the region around Raqqa.

It appears ISIS is particularly proud of the video. Recently, the group released versions in five languages: English, French, Russian, Indonesian, and Bengali.

This comes as Jabhat Al Nusra struck back yesterday, showcasing their own surveillance drones in a video entitled “Breaking the Siege.” The video details the role of Al Nusra in releasing 500 rebels that were besieged in the town of Maliha. Below are four screenshots from the video.

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It is certainly a powerful turn of events, wherein jihadist cells in Syria are using readily available and relatively cheap technology that once was strictly the purview of states to level the playing field, conduct intelligence, surveillance, and reconnaissance operations, and ultimately seize ground and achieve battlefield objectives.

However, the desire to spend precious propaganda time displaying this capability may also suggest something about the place of drone technology in the jihadist mindset and betray a desire to claim for themselves a weapon of war that has stalked them for a decade. It seems clear that militant groups are eager to celebrate their technological prowess both as a weapon of actual war and as a way to establish legitimacy in a propaganda war that has taken on increased importance. The appearance of drones in multiple jihadist propaganda videos would seem to suggest that drones have taken on their own cultural meaning, both here in the United States and abroad, in the wars against terrorism, and that meaning is something that terrorists now intend to trade in too.

Doth the drone wars commeth?

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You can find the videos at the links below. Both are extremely violent and graphic forms of propaganda, so I have not included them in the body of the text in order to prevent someone unwittingly stumbling upon them.

Disperse Those Who are Behind Them

Breaking the Siege

On the Legal Reforms that Will, and Will Not, Come from the Fourth Plenum

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Friday, October 24, 2014 at 8:48 AM

The Fourth Plenum of the Chinese Communist Party’s 18th National Congress kicked off two days ago in Beijing. In and of itself, any Fourth Plenum usually deserves attention; the fourth session of a National Congress (there are seven total for each 5-year cohort), historically plays a significant role in “directing party governance.” Beyond that, though, this year’s plenum is especially noteworthy because, for the first time, its central theme is devoted to the country’s legal structures, including the Constitution and the courts. More specifically, this year’s topic is the “rule of law” and “ruling the country according to law” (in Mandarin: fazhi 法治 and yifazhiguo 依法治国).

It’s a pertinent topic. It’s not news that China’s legal and law enforcement structures have been in tumult as of late. There is no better microcosm of this instability than the demise of Zhou Yongkang. Before his fall in 2013 amid allegations of corruption and abuse of power, Zhou was a member of the 17th Politburo Standing Committee, the highest decision-making body in the country, and the head of the Central Political and Legislative Committee, the body that oversees all of the country’s legal organs and law enforcement agencies. He has the dubious honor of being the most powerful official in China ever to be investigated for corruption.

The same anti-corruption drive that gobbled up Zhou and his family was instigated by President Xi Jinping in a stated attempt to improve the country’s rule of law and lessen popular opprobrium over widespread profligacy by Party officials. In announcing the drive, Xi warned that neither “tigers” nor “flies” would be immune to the decrees, a promise borne out by the investigation of more than 40 Party bigwigs, including Zhou. Its implementation has been a bit draconian, but observers hoping for more liberal reforms were mollified in part by several speeches Xi gave stressing the importance of rule of law and the Constitution. One speech in 2012, in particular, raised hopes of a drift towards constitutionalism by mentioning the possibility of “ruling the country according to the constitution” (in Mandarin: yixianzhiguo 依宪治国).

The legal system has been reformed in the last few years as well; use of the death penalty has been roughly halved and the country has new procedures for deciding on its use; a new Criminal Procedure law was enacted, which provides greater protection for defendants; government transparency has increased; a five-year program has promised increased judicial independence and professionalism; and “re-education through labor” has been abolished. In some select parts of the country, court bureaucracy has been simplified and judges are allowed to make judgements without approval from the chief justice of the court.  Read more »

Al Qaeda Has Set its Sights on Xinjiang—and China Isn’t Happy About It

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Thursday, October 23, 2014 at 9:02 PM

If you don’t follow the jihadi social media scene, you may not know that the first issue of Al Qaeda’s online English-language magazine, Resurgence, has just hit webstands across the terrorist world. Fortunately for you, we at Lawfare have been perusing this issue ourselves. The magazine, which was released by Al Qaeda’s sub-group, As Sahab Media, is notable for a host of reasons. For now, one part worth highlighting is a little section halfway through the volume entitled, “Ten Things You Didn’t Know About East Turkestan,” screenshots of which can be found here and here.

“East Turkestan,” in Al Qaeda-speak, refers to a region of the world roughly corresponding to China’s vast, unstable hinterland region of Xinjiang. The “Ten Things” outlined in the piece are mainly a list of grievances against China’s oppression of the Muslim Uighur population there and the area’s unique and ancient Islamic heritage. It doesn’t take a terrorism expert to understand the meaning here: Al Qaeda believes Chinese control of the region is not just a historical anomaly, but also an unjust seizure of the Ummah’s land, land that should be reincorporated into the movement’s intended Islamic Caliphate. The mention of Xinjiang/East Turkestan in the magazine points to the growing salience of the region for global jihadist groups and the increasingly-violent homespun insurgency taking place there.

This shoutout was not lost on Chinese media outlets: two mentions of it on prominent Chinese websites are linked here and here. The first of these, DW News, discusses Al Qaeda (in Mandarin: jidizuzhi 基地组织), the piece’s intention, and the inclusion of Xinjiang in a future global Islamic state on a map allegedly released weeks ago by ISIS. It also notes that China is most worried about Al Qaeda’s call to believers to disrupt shipping in the Strait of Hormuz and the Straits of Malacca, both of which are vital trade routes for the world and for China. The second piece in the South China Morning Post claims that there are several factual inaccuracies in the Al Qaeda piece, including the militant group’s assertion that teaching the Qur’an is forbidden in China (it notes that Islam is one of five big religions China officially authorizes).

In any case, the first issue of Resurgence is the latest manifestation of a broadening of global jihad’s purview, which now definitively includes territories under the control of the PRC. PRC officials have responded forcefully to recent insurrection in Xinjiang by mobilizing increased numbers of troops, imprisoning Uighur leaders, executing scores of alleged terrorists, and imposing restrictions on Islamic groups in the area. China has also sought more international cooperation in order to mitigate its growing domestic terrorist threats, most recently by its moves to establish collaborative mechanisms on counterterrorism with the European Union.

President Obama Is Right

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Thursday, October 23, 2014 at 5:18 PM

President Obama is right.

He was right when he said, as a presidential candidate in 2007, that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” And he was right that “military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

He is thus right now to “welcome congressional support for [his] effort” against ISIS.

At the same time, Obama is also right that he has “the authority to address the threat from ISIL” without congressional involvement and that he “does not need a new authorization in order to continue to take action against ISIL.”

Because President Obama, after all, is right that he “may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”

He is also right, I should add, that Congress should get rid of that authority, the authority—that is, on which he is currently rightly relying.

President Obama, after all, is right that “this war, like all wars, must end” and he is thus right also to seek to engage “Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” He is certainly right not to “sign laws designed to expand this mandate further”—despite also being right to welcome congressional involvement in authorizing the ISIL operation, authorization he is, of course, right to insist he does not need.

President Obama is also right that the 2002 Iraq AUMF authorizes the current campaign against ISIS.  He is also right to urge repeal of that resolution.

President Obama is right to close Guantanamo. He is right that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” He is right that it is outrageous for Congress not to let him. He is right that Congress’s actions could create separation of powers problems and impinge on his constitutional authorities.

He is also right not to say what he would do with all of the detainees at Guantanamo if Congress were to free his hand. And he is right to comply, as he largely has, with Congress’s dictates, about whose constitutionality he is right to complain.

He is certainly right as well to float trial balloons about maybe not complying.

President Obama’s administration is right to dub the new operation in Iraq “Operation Inherent Resolve.”

In memory of Michael Kelly

Russian Bagram Detainee Set for Federal Prosecution in U.S.

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Thursday, October 23, 2014 at 3:45 PM

Or so I gather from this Washington Post piece, which opens thusly:

A Russian captured fighting with insurgents in Afghanistan and held for years at a detention facility near Bagram air base will be flown to the United States to be prosecuted in federal court, according to U.S. officials.

The move marks the first time a foreign combatant captured on the battlefield in Afghanistan and held at Bagram will be transferred to the United States for trial, a decision the Obama administration has weighed for months. With combat operations winding down, the administration’s authority to continue to hold the man was in question, and U.S. officials said Russia had little interest in getting him back.

The detainee, known by the nom de guerre Irek Hamidullan, is suspected of leading several insurgent attacks in 2009 in which U.S. troops were wounded or killed. He was captured that year after being wounded in a firefight.