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A Modest Proposal: FAA Exclusivity for Collection Involving U.S. Technology Companies

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Monday, November 24, 2014 at 8:00 AM

I’ve been wrestling with an idea on electronic surveillance reform, and when I recently consulted with Benjamin Wittes about it, he encouraged me to post here and seek the feedback of Lawfare’s readership. So here goes my maiden Lawfare post: a modest proposal for reform of the legal authorities under which NSA collects communications content from U.S. technology companies.

Even if the USA Freedom Act had moved forward on the Senate floor during the lame duck session, it would not have been sufficient to address all the concerns raised in the current electronic surveillance debates. The USA Freedom Act focuses on limiting collection of data on Americans here in the US under Section 215 of the PATRIOT ACT, and as such, it’s a crucial reform.

Under existing statutes on electronic surveillance, Section 215 and the FISA Amendments Act (FAA), the government can compel cooperation from the companies that hold the data under certain statutory conditions. Both of these statutes authorize collection programs that the companies are aware of and must participate in. In these programs, the government knocks at the front door to get the data it needs.

But reforming these programs doesn’t address another range of problems—those that relate to allegations of overseas collection from US companies without their cooperation.

Beyond 215 and FAA, media reports have suggested that there have been collection programs that occur outside of the companies’ knowledge. American technology companies have been outraged about media stories of US government intrusions onto their networks overseas, and the spoofing of their web pages or products, all unbeknownst to the companies. These stories suggest that the government is creating and sneaking through a back door to take the data. As one tech employee said to me, “the back door makes a mockery of the front door.” Read more »

The Week That Will Be

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Monday, November 24, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, November 25th at 10:30 am: One day after the deadline for a comprehensive agreement in the Iran-P5+1 Nuclear Negotiations, Brookings will host a panel discussion to evaluate the outcome of negotiations and to consider the prospects for the period ahead. Speakers will include Robert Einhorn, Gary Samore, David Albright, and Edward Levine. Register to attend here.

Tuesday, November 25th at 3 pm: The recently concluded 4th Plenum of China’s 18th Communist Party Congress focused on “governing the nation in accordance with law.” Later on Tuesday, the Woodrow Wilson Center will hold a discussion with two of America’s leading experts on corruption and legal reform in China, Donald C. Clarke and Andrew Wedeman, entitled Corruption, Constitutionalism & Control: Implications of the 4th Plenum for China and U.S.-China Relations. For more information, visit the Center’s website.

Thursday, November 27th: HAPPY THANKSGIVING! 

 

Employment Announcements (More details on the Job Board)

Deputy Chief, Counterespionage Section

ORGANIZATION: Department of Justice

SALARY RANGE: $124,995 – $157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

The Counterespionage Section (CES) investigates, prosecutes, and supervises the investigation and prosecution of cases affecting the national security and foreign relations of the United States, including espionage cases, cases involving the illegal export of military and strategic commodities and cases involving certain cyber-related activity. The Section has exclusive responsibility for coordinating and authorizing the prosecution of cases under criminal statutes relating to espionage, sabotage, neutrality, and atomic energy. It provides legal advice to U.S. Attorneys’ Offices and investigative agencies on all matters within its area of responsibility, which includes 90 federal statutes affecting the national security. The Section also coordinates criminal cases involving the application of the Classified Information Procedures Act and administers and enforces the Foreign Agents Registration Act and related disclosure statutes.

Job Description:

National Security Division of the Department of Justice seeks a Deputy Chief for its Counterespionage Section, focused on investigations and related matters involving cyber threats to the national security, including economic espionage and illegal export of military and strategic commodities conducted via computer hacking, as well as related matters.

Under the direction of the Chief, the Deputy Chief (Cyber) will be responsible for providing legal advice to federal prosecutors concerning the disruption of cyber threats to the national security. In these areas, the Deputy Chief will develop, implement, and coordinate sensitive Department initiatives. The Deputy Chief will:

· work with federal prosecutors and law enforcement agencies to develop effective strategies in national security investigations and prosecutions, and maximize the use of the full range of federal statutes;

· plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities;

· provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prosecutive models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;

· coordinate the formation of response teams of experienced prosecutors to assist in the investigation and prosecution of cases;

· coordinate cases and provide legal advice, guidance, and litigative support to U.S. Attorneys’ Offices involved in national security prosecutions;

· provide advice and assistance to the Chief and other senior officials in the Division and in the Department;

· serve as a liaison between NSD and the Federal Bureau of Investigation, other members of the USIC, Department of the Treasury, the Department of State, and various international officials on cyber and other national security-related issues;

· prepare testimony for Congressional Committees and subcommittees, briefing materials for Department officials, legal monographs for national security prosecutors, and comments on proposed legislation.

The Deputy Chief will establish program emphasis, develop operating policies and guidelines, communicate policies and priorities, and determine and implement internal organization practices, training, and improvements.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, Territory, or the District of Columbia, and have at least five years of post-JD professional experience. Applicants must have superior academic credentials, possess excellent analytical and writing skills, and have the dedication and capacity to work independently in a very demanding environment. Past experience in the national security or intelligence field is not required, but is preferred. Prior federal litigation experience also strongly preferred.

Applicants must be able to obtain and maintain a TS/SCI security clearance.

Salary:
GS-15: $124,995- $157,100 (per annum)
Travel:
Periodic travel will be required.
Application Process:

To apply, please submit a cover letter highlighting your relevant skills and experience, a copy of your resume with a writing sample (we encourage you to submit a legal memorandum or brief), and a current performance appraisal, if applicable, to:

U.S. Department of Justice
National Security Division
600 E Street, NW 10th Floor, Room 10340
Washington, D.C. 20530
Attn: Bronnetta Rawles

or

[email protected]

No telephone calls, please

Application Deadline:
Monday, December 8, 2014

 

ORGANIZATION: Department of Justice

SALARY RANGE: GS 14/15: $106,263 – 157,100
DEADLINE: Dec. 8, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: Washington, DC
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

Job Description: 

CES attorneys provide legal advice and guidance to the investigative and intelligence communities in the development of cases for prosecution, and they assist the United States Attorney’s Offices when prosecution is undertaken, ensuring, among other things, that intelligence community equities are identified and protected.

Qualifications:

Applicants must possess a J.D. degree, be duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia and have at least 2.5 year of post-J.D. legal experience. Applicants should have an interest in national security matters and possess excellent writing skills. Significant experience in litigation involving, or a strong interest in, computer intrusion investigations is desirable. Applicants must be able to obtain a TS/SCI clearance.

Salary:
(GS-14): $106,263-$138,136 per annum (GS-15): $124,995-$157,100per annum.
Travel:
Occasional travel will be required.
Application Process:

To apply for this position, please submit a resume, a cover letter (highlighting relevant experience), a writing sample (not to exceed 10 pages), a current performance appraisal (if applicable) electronically to:

U.S. Department of Justice
Counterespionage Section
600 E Street, NW, Room10606
Washington, DC 20004
ATTN: Bronnetta Rawles
No telephone calls please.

Or apply by email to: [email protected]

with the subject line “Attorney Vacancy.

Application Deadline:
Monday, December 8, 2014
Relocation Expenses:
Relocation expenses are not authorized.
Number of Positions:
One or more.

President Obama’s Immigration Plan: Rewriting the Law

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Sunday, November 23, 2014 at 4:15 PM

As a supporter of comprehensive immigration reform and director of Roger Williams Law School’s Immigration Clinic, I know the high stakes in the current debate about President Obama’s executive action. I also know the higher stakes, previously acknowledged by the President, in adherence to our constitutional order; see my recent paper supporting the President’s Deferred Action for Childhood Arrivals (DACA) program. The President’s action and OLC’s unconvincing legal defense injure our constitutional framework. They also distract from the difficult, frustrating, but necessary political work entailed in achieving lasting reform.

As with any separation of powers issue, we start with Justice Jackson’s division of  presidential actions into three categories, based on the degree of collaboration between the President and Congress. The President receives greatest deference for acts consistent with Congress’s will, some deference for acts that occur when Congress is silent, and little or no deference for acts that clash with legislative intent.

The executive action announced on November 20 belongs in Jackson’s third category. Congress has carefully crafted an immigration framework that deters foreign nationals who enter the US illegally from using post-entry US citizen children to gain lawful status. In contrast, the central feature of the President’s unilateral action is its provision of work authorization and a reprieve from removal to this group. That policy may be a sensible means to address the situation of the estimated 11 million undocumented people in the US. But the unilateral grant of these immigration benefits defies Congress’s will.

Here’s the statutory framework that OLC fails to address convincingly. The Immigration and Nationality Act (INA) requires US citizens to be 21 before sponsoring parents. That provision is included in the INA precisely to discourage what foes of immigration reform crudely call “anchor babies”—kids born here (and therefore US citizens) who could legalize undocumented parents. The “anchor baby” trope is a canard, since the INA makes this strategy all but impossible. Undocumented individuals who entered without inspection (a category that includes most undocumented people from Mexico) would have to evade immigration authorities until their child turns 21; they would also have to return to their home country for 10 years, because the INA bars legalization for 10 years for folks who have been unlawfully present in the US for a year or more. That statutory gauntlet sends a clear signal to foreign nationals: Entering the US without inspection and having kids is not a ticket to lawful residence or any of the benefits that lawful residence provides, such as work authorization.

The OLC memo misses this clear legislative signal. At its heart, it’s not an interpretation of the INA, as Marty Lederman contends, but an end-run around statutory limits. Effective legal guidance would have acknowledged Congress’s painstaking efforts to deter undocumented folks from leveraging post-entry US citizen children. Instead, OLC breezily justifies the award of precious benefits like work authorization by touting undocumented parents’ “prospective entitlement to lawful immigration status.” Given congressional restrictions on this group, that’s  like saying Chicago Cubs fans have a “prospective entitlement” to baseball’s world championship, even though the Cubs last won a World Series in 1908. This mischaracterization of legislative intent transforms the President’s announcement from an exercise in statutory interpretation to a clear example of presidential overreaching.

Justice Jackson’s second category of presidential action based on legislative silence does not salvage the legality of the President’s decree. The OLC memo asserts that the presidential decree’s sweeping program of deferred action resembles the longtime practice of presidential claims settlement acknowledged by the Supreme Court in Dames & Moore v. Regan (upholding the settlement of claims against Iran that paved the way for release of Iran’s US diplomatic hostages in 1981). The Court was right in Dames & Moore that presidential claims settlement, which dates to the presidency of John Adams, had been acquiesced in by Congress. However, the same cannot be said for the sweeping deferred action announced by the President.

Past deferred action programs, in contrast with President Obama’s announcement, were ancillary to legislation. For example, Bush 41’s “Family Fairness” program benefited relatives of people legalized under Congress’s 1986 immigration reform. President Bush’s program went beyond the 1986 legislation, as Mark Noferi notes in a valuable piece that supports President Obama.  However, as Noferi recounts, Congress subsequently ratified President Bush’s initiative. That seems unlikely to occur this time around. Deferred action has also assisted individuals who applied for a lawful status under other legislation, including the Violence Against Women Act.  None of the previous deferred action programs aided individuals that Congress had expressly prevented from obtaining immigration benefits.

The legal problems with the presidential decree are matched by its political flaws. The decree undermines the cause of real reform because it lets Congress off the hook. Congress’s failure to enact reform is a national disgrace. The task for committed advocates for reform is creating a political landscape that will make reform a reality. That endeavor will include work in Congress, the executive branch, and state legislatures where gerrymandering has impeded congressional momentum for reform efforts. House Republicans, who have blocked reform, now can rail against presidential overreach instead of facing the consequences of their obstinacy.  Impeachment would be an uncalled-for overreaction, as Peter Schuck explains here. Nevertheless, providing immigration reform opponents with additional talking points is an unintended consequence of President Obama’s decision that will make genuine, lasting reform far more difficult to achieve.

The Foreign Policy Essay: Choosing from the Contentious Politics Buffet

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Sunday, November 23, 2014 at 10:00 AM

Editor’s Note: Political groups representing ethnic, religious, or other minorities have a range of options for how to engage with the state, from nonviolent tactics such as protests and strikes to violent tactics including terrorism. Some groups go down one and only one path, but many of the world’s most important actors embrace a combination of tactics. Victor Asal of SUNY Albany, Richard Legault from the Department of Homeland Security, Ora Szekely of Clark University, and Jonathan Wilkenfeld of the University of Maryland explore why groups might choose to use both peaceful and violent tactics and why we should avoid lumping groups into the simple categories of “violent” or “nonviolent.”

***

Asal photoHizballah is an important actor in both Lebanon and the wider region. It is an organization with serious military capacity that is currently involved in violent conflict in Syria and that countries like Israel see as a serious threat. Yet Hizballah is also an important political actor in Lebanon, where in addition to its military activities it also acts as a traditional political party and is a key provider of social services in many areas of the country. In the Lebanese context, Hizballah mobilizes not just as a political party or as a violent non-state actor but also holds massive demonstrations to make its political preferences known. Despite Hizballah’s multifaceted nature, however, many focus mainly on the organization’s armed wing. But Hizballah, like many militant organizations, is far more complex than this.

Legault photo2This confusion over Hizballah is typical. Both news agencies and policymakers tend to stovepipe organizations as being either “violent” or “nonviolent,” “political” or “military,” treating these labels as characteristics rather than behaviors. Academics often do the same. The relationship between the use of violent and nonviolent tactics by organizations advocating a political agenda is often conceived of as a sort of unidirectional spectrum: an organization that shifts to the use of violence is thereafter labeled a “violent organization,” and analysis of the organization will often focus only on one aspect of its activities. Yet this ignores the range of “contentious” political options that may include traditional political activities such as nonviolent or violent protest or violent actions against the government or even civilians. For example, Hamas may call for protests, launch rockets, and they may do both in the same year. Other groups may focus on nonviolent or regular politics, like the Arab Democratic Party in Israel.

Szekely photoAll political organizations face a choice of whether or not to engage in contentious politics. If they decide to do so, they also have a choice of whether to use violent or nonviolent tactics (or a combination of both). It is important to realize that these are choices that are always available to organizations: rather than a linear scale, choices of contentious politics more closely resemble a menu from which such movements can “order” a tactic or a combination of tactics. That is, they can choose to use a violent strategy, a nonviolent strategy, or a mixed approach. So why do some non-state actors choose violence, others choose nonviolence, and some choose both? (To make it even more complicated some organizations switch back and forth over time.) Based on our analysis, which draws on a longer study published in the Journal of Peace Research, it turns out that several factors, including ideology, matter, but not necessarily in the ways we often assume.

Wilkenfeld photoWe studied the behavior of 104 separate ethno-political organizations that claimed to represent “Minorities at Risk” in the Middle East across 24 years using the Minorities at Risk Organizational Behavior dataset. Drawing from the contentious politics and political violence literature, we examined the impact of various factors on an organization’s decision to participate in contentious politics and on the form that participation took. The contributing factors we examined are: how the state treats the organization (is the state repressive or not); the organization’s political environment (whether the state in which the organization is located is a democracy or not); the organization’s resources and capabilities (was it only located in the country in question or did it have branches elsewhere, and did it have support from a diaspora population); whether the organization provided social services; and the organization’s ideology (is it a religious, leftist, or gender-inclusive organization). Read more »

Lawfare Podcast, Episode #101: Jameel Jaffer, Bob Litt, and William Banks Debate FISA

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Saturday, November 22, 2014 at 1:55 PM

Earlier this month, the ABA Standing Committee on Law and National Security held its “24th Annual Review of the Field of National Security Law CLE Conference.” As part of the conference, the group held a particularly strong panel discussion on the Foreign Intelligence Surveillance Act—featuring Bob Litt, general counsel to the DNI, Jameel Jaffer of the ACLU, and Bill Banks of Syracuse University law school. The discussion was moderated by Laura Donohue of Georgetown law.

Notably, it predates the Senate’s vote this week to kill the USA Freedom Act.

The Immigration Imbroglio as (Pretty) Normal Separation of Powers

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Saturday, November 22, 2014 at 10:03 AM

It has been instructive during the last six years to watch President Obama and most Democrats evolve from Executive power critics to Executive power apologists, just as it has been instructive to watch many Republicans evolve from Executive power apologists (or quiet fence-sitters) to Executive power critics.  It has also been instructive to watch President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order.

The presidency is hugely consequential because the President wields significant control over the massive bureaucracy, has enormous stores of discretionary power to exercise (or not exercise), is by far the most effective-agenda setter in Washington, possesses the veto pen (which we will see more of in the next two years), can interpret the scope of his own powers in the first instance, and remains firmly in charge of foreign policy and war.  Congress has many tools that it can wield in the medium term to fight back.  But even when controlled by the President’s political adversaries it remains reactive and hard to coordinate, it runs nothing, and it always faces a veto threat.

With his immigration initiative, President Obama has used his institutional tools very aggressively and has preyed on Congress’s institutional weakness.  This is his prerogative.  Much of the debate about the immigration initiative has been about its legality.  But legality is not the most important issue here; the administration has made a plausible case for legality in a published legal opinion for all the world to see and criticize.  The important issue, I think is whether the President has, despite precedents from very different political contexts, changed sub-constitutional norms and understandings by effectuating large-scale, deeply contested, self-serving political change with the sweep of a pen.  As David Gergen puts it, it is not the policy or the legality that matters as much as the President’s “abandonment of traditional ways of addressing hard public problems.”  Gergen argues that “Americans have always expected that in addressing big, tough domestic issues, Congress and the president had to work together to find resolution,” especially in non-emergencies, and adds that “[f]or a president to toss aside such deep traditions of governance is a radical, imprudent step.”  (Others across the spectrum have stated the main issue this way.)

We will see if the President’s immigration step proves imprudent or radical – in his last two years or, as my former colleague David Martin says, in the longer term by setting a “dangerous precedent” that opens “the possibility for a Republican president to say, ‘I’m not going to go forward with enforcement’ in a number of areas.”  The precise impact of the President’s initiative will be determined over the medium term by the reactions of the other two branches and the American People in the 2016 elections.  It is not clear to me whether anyone has standing to challenge the President’s immigration initiative in court, though I am sure some will try.  But Congress, despite its relative institutional weaknesses, still has many mechanisms to impact the policy.  Two of its tools – impeachment and a government shutdown – seem off the table for now.  But it has scores of others tools – creative lawmaking that is hard to veto, all sorts of appropriations levers and tricks, hearings and oversight, the subpoena power, appointments vetoes, and the quieter means that congressional committees wield to make Executive life miserable – to push back against an immigration policy that it finds abhorrent.  And of course there is a presidential election in two years that will at least in part be a referendum on the President’s immigration initiative.

The power of courts and Congress and the American People to fight back against an aggressive presidency is more diffuse and takes longer to vindicate than the president’s remarkable power to effect sweeping and hard-to-alter change in an instance.  But this is not unusual under our Constitution.  The framers could not have imagined that the bureaucracy and the president’s authority over it – created by Congress and blessed by courts – would grow so large and consequential in two and a quarter centuries.  Nor could they have imagined the complexity of society that necessitated these changes.  But the framers created a powerful and mostly unitary executive branch on purpose and clearly believed that “Energy in the Executive is a leading character in the definition of good government.”  They just as clearly worried about the excesses of Executive power, and believed that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”  The President took an aggressive (possibly paradigm-shifting, possibly self-defeating) step this week.  But Congress in the first instance, and the American People (and perhaps the courts) down the road, have the means to resist this step if they have the collective will and so choose.  We will see if they do.

The Week that Was: All of Lawfare in One Post

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Saturday, November 22, 2014 at 9:55 AM

First off, in anticipation of President Obama’s decision this week to take on the immigration issue, Ben examined the central question in the standoff between him and Congress: how much discretion does he have to decline, as a matter of policy, the deportation of millions of people? Paul also posted his own thoughts on the matter and pointed out that the footnotes in this week’s OLC opinion are significant in their own right.

In other news, Wells shared the Chief Prosecutor’s statement in this week’s hearing in Al-Hadi. He later posted links to Lawfare’s roundups from the motions hearings on November 17th and 18th.

Jane noted that the DC Circuit denied a rehearing en banc in Allaithi v. Rumsfeld.

Ben shared some interesting comments by Judges Brett Kavanaugh and John D. Bates on the role of blogs—and Lawfare—in the judiciary’s handling of national security cases.

Alex Ely pointed out that the much-watched Dhiab case is not the only contemporary “saga” concerning force-feeding: the US Navy is currently deciding the fate of a nurse who refused to perform force-feeding procedures on Guantanamo detainees.

Echoing Carol Rosenberg of the Miami Herald, I noted that five Guantanamo detainees were transferred to Europe this week.

Ben shared the audio files of the American Bar Association’s “24th Annual Review of the Field of National Security Law CLE Conference.”

Wells noted that the leadership of the Senate Select Committee on Intelligence is not happy with proposed changes to the current CIA e-mail destruction policy.

Tara Hofbauer pointed out that the Office of the Director of National Intelligence has released the transcript from the 2008 Protect America Act litigation.

Ben found it “a little perplexing” that Glenn Greenwald only shrugged when the Senate killed surveillance reform this week.

Wells shared the news that the National Transportation Safety Board overturned the administrative law judge ruling in the Pirker drone case.

In the 43rd iteration of the Steptoe Cyberlaw Podcast, Stewart Baker brought us, among other features, an interview with Ambassador Daniel Sepulveda, the man tasked with managing the US relationship with the International Telecommunications Union.

Paul noted that the Congress is finally working to ensure ICANN’s accountability. The most recent legislation, the Defending Internet Freedom Act 2014, is especially significant in light of the fact that the US will hand over contractual control of the Internet Assigned Numbers Authority to the group next year.

In this week’s Foreign Policy Essay, Daniel Byman, research director of the Center for Middle East Policy at the Brookings Institution, and Jeremy Shapiro, fellow in the Brookings foreign policy program, examine how the West can better respond to the foreign fighter threat.

The Lawfare Podcast has reached a milestone: 100 episodes! To commemorate the occasion, we decided to circle back to our very first episode and feature an interview with Daily Beast columnist Shane Harris on his new book, @War.

For this week’s Throwback Thursday, Cody and I analyzed the implications of the 1994 Budapest Memorandum on the current crisis in eastern Ukraine.

I noted that the US Navy has a scary new death ray: the 30-kilowatt class Laser Weapon System.

Ben shared a video by Bruce Riedel that outlines the origins of the Islamic State.

I identified a few congressional hearings this week that focused on the Islamic State and the Iranian nuclear negotiations.

Ben once again reminded the readership to contribute to Lawfare. He also shared a survey on live Lawfare events and webcasts. Take the poll and let us know what you think!

And that was the week that was.

End of Forever War Watch, Weekend Edition

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Saturday, November 22, 2014 at 6:54 AM

Mark Mazzetti and Eric Schmitt report:

President Obama decided in recent weeks to authorize a more expansive mission for the military in Afghanistan in 2015 than originally planned, a move that ensures American troops will have a direct role in fighting in the war-ravaged country for at least another year.

Mr. Obama’s order allows American forces to carry out missions against the Taliban and other militant groups threatening American troops or the Afghan government, a broader mission than the president described to the public earlier this year, according to several administration, military and congressional officials with knowledge of the decision. The new authorization also allows American jets, bombers and drones to support Afghan troops on combat missions.

Today’s Headlines and Commentary

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Friday, November 21, 2014 at 2:08 PM

The fight over immigration in Washington is underway. Last night, President Obama gave a prime time speech outlining his plan to act unilaterally on immigration, which would allow up to five million undocumented immigrants to remain in the country and work legally. The new plan will have Immigration and Customs Enforcement focus increasingly on recent border-crossers, criminals, and individuals who are suspected to be threats to national security.

Homeland Security Secretary Jeh Johnson circulated a letter on Thursday supporting the President’s planned action. You can find the opinion of the Office of Legal Counsel’s opinion on the Department of Homeland Security’s authority to prioritize the removal of certain unlawful aliens while deferring the removal of others here. Earlier this week, Ben wrote about the legality of President Obama’s executive power to produce unilateral immigration reform.

House Speaker Boehner criticized the President, saying he was “damaging the presidency itself” by resorting to executive actions to prevent the deportations of millions. While saying that the Republican-controlled House of Representatives would work to counter his moves, he did not provide details. President Obama, for his part, “all but dared” Republicans to react, knowing that a challenge to his plan “could be politically disastrous” for the GOP. The New York Times has more on the evolving story.

Just a few hours before President Obama announced the reforms to the immigration system, a federal judge ordered the government to finalize a schedule for releasing information on the United States’ practice of “prolonged immigration detention” where people were kept “for months, if not years – without adequate procedures in place to determine whether their detention is justified.”

In Mexico, thousands of people have been taking to the streets in the past few days over perceived corruption and official foot-dragging in response to the apparent massacre of 43 trainee school teachers. Popular opprobrium has flared recently in the country of 110 million since the murder of the teachers in Iguala by drug gangs, who were allegedly in cahoots with corrupt police and possibly even elected officials. Reuters reports that demonstrators threw Molotov cocktails outside of Mexico City’s National Palace yesterday and clashed with riot police.

Read more »

Executive Discretion and Immigration Law

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Friday, November 21, 2014 at 12:32 PM

Earlier this week Ben posted his own thoughts on the President’s exercise of prosecutorial discretion in the enforcement of our immigration laws.  Now, we have the DOJ OLC opinion justifying the President’s actions, and a preliminary response from Gabriel Malor.  I am sure that much ink will be spilled regarding the topic in coming days (I may even spill some myself).  For me, however, the most notable aspect of the OLC opinion (and, in fact, the entire corpus of the debate) is in fn.8 of the opinion on p. 18.  [Important stuff is always in footnotes!].  It says:

Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.

And that, it seems to me, captures the issue nicely — is prosecutorial discretion a categorical power or is it one we expect to be implemented on a case-by-case basis?  Notably, the footnote seems to suggest that OLC has changed its mind on the topic, as its earlier oral advice seems to have been against the deferred action proposals of the President.

Steptoe Cyberlaw Podcast, Episode #43: An Interview with Ambassador Daniel Sepulveda

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Friday, November 21, 2014 at 10:20 AM

Our guest this week is Amb. Daniel Sepulveda, the man charged with managing the U.S. relationship with the International Telecommunications Union.  The ambassador helps us make sense of the recent ITU meeting in Busan, South Korea, where efforts to validate a greater government role in internet affairs seem to have been turned back for another four years.  Markham Erickson, a Steptoe partner specializing in internet law, also joins regulars Jason Weinstein, Michael Vatis, and me.

 After a year-and-a-half-long Snowden-induced cringe, the U.S. is again raising Chinese espionage more aggressively.  But that’s the only thing that has changed in the U.S.-China dialogue on cyberespionage.  Just ask the Postal Service and the NOAA weather network.

We try out a new feature:  The Law Behind the Headlines, where we provide the legal background behind tech stories in the news:

•           Remember that Insecam website that streams video from thousands of video surveillance cameras that are still using the manufacturers’ default login credentials?  To Jason, it looks like the world’s most public confession to thousands of criminal violations.

•           And according to the press, law enforcement uses flying DRT Boxes (not to mention ground-based stingrays) to imitate cell towers and thus locate particular phones very accurately.  But to do so, the machines have to accept and then drop thousands of connections from the phones of ordinary Americans who aren’t suspects.  Is that legal?  How is it different from the NSA’s program of collecting data but not looking at it?  And can we get the U.S. Marshal’s service to actually connect some of the calls they get from dead spots out in Great Falls? Answers to all these questions in the podcast!

This week in bad law:  the Ninth Circuit will be revisiting the too-creative Kozinski opinion that based a takedown order on the dubious copyright claim of an actress who appeared in in “The Innocence of Muslims.”

This week in data breaches:  Anthem Blue Cross puts a bunch of medical advice and data in the subject line of its emails to patients.  That doesn’t inspire confidence in its data security, but is HIPAA violated?  Maybe not, Jason explains.

Argentina’s Supreme Court joins the great debate over search engine liability, spurring Michael and Markham to a debate of their own.  A Justice Department advocate admits to a mistake in oral argument on how forthcoming companies can be in NSL disclosures.  We debunk left/lib claims that the mistake is a government “misrepresentation.”

Google has weighed in on another privacy issue, essentially taking Europe’s side in a long-running debate over whether and how non-Americans should be covered by the Privacy Act.  I argue that changing the Act would simply enable European unilateralism in the long privacy debate with the United States.  Amb. Sepulveda and I tangle over whether the demand is a legitimate part of negotiations over the data protection U.S.-EU Safe Harbor Agreement.

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to [email protected].  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Judges Brett Kavanaugh and John D. Bates on Blogs and Judges in National Security Cases

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Friday, November 21, 2014 at 8:56 AM

At a recent panel on which I spoke at the ABA Standing Committee on Law and National Security’s annual conference, D.C. Circuit Judge Brett Kavanaugh and U.S. District Judge—and former FISA presiding judge—John D. Bates had some interesting comments on the role of blogs in the judiciary’s handling of national security cases. The attached audio is a brief excerpt from the discussion, in which Judge Kavanaugh offers both general thoughts on the subject and some very generous comments about Lawfare, with an amusing interjection from Judge Bates ribbing me about our friends over at Just Security. 

A Reader Survey on Live Lawfare Events and Webcasts

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Thursday, November 20, 2014 at 7:57 PM

We are currently planning to launch, in the new year, a series of live events, webcasts, and other forms of programming. Readers have been asking for more of this sort of thing from Lawfare for quite some time. Because doing it will be resource intensive, we will need to charge for participation in these events with some sort of premium service. We are also keen to make these events  as responsive to reader interests and needs as possible. So I thought a brief survey would be useful as a way of determining exactly what people want in terms of live events. If you have any interest in this subject, please take the time to fill out this brief questionnaire. The data will help us target programming more effectively and price it appropriately.

Throwback Thursday: The 1994 Budapest Memorandum

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Thursday, November 20, 2014 at 6:46 PM

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

Welcome to Lawfare’s second #tbt.

Introduction

The Daily Beast brought us jarring news this week: in Ukraine, soldiers are bracing for “full-scale war” as a tenuous ceasefire between the government in Kiev and Russian-supported rebels disintegrates. That agreement, struck in September, isn’t the only one at risk of sliding into the dustbin of history. Russian incursions also threaten the so-called Budapest Memorandum of 1994—perhaps the more consequential of the pair, given its importance to non-proliferation.

Its history is important, if complex. Twenty years ago, following the collapse of the Kremlin’s empire, the world suddenly found thousands of nuclear weapons spread across several newly separate, sovereign nations. Among other newly-independent republics, Ukraine had inherited physical, if not operational, control over the world’s third-largest stockpile of nukes—roughly 1800 warheads and an arsenal bigger than China, Britain and France combined. While Russia retained possession of most of the necessary infrastructure to make use of these nuclear armaments, the threat of nuclear proliferation had grown dramatically overnight. In a sweeping effort to consolidate and secure the former Soviet Union’s nuclear stockpiles, Russia, the UK, the US, and Ukraine concluded two years of negotiations with what came to be known as the Budapest Memorandum. All four governments signed it on December 5th, 1994.

Among other things the Memorandum—the full text of which can be found here—promised signatories would:

  • “respect the Independence and Sovereignty and the existing borders of Ukraine”
  • “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine”
  • “refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind”

In light of the Russian annexation of Crimea earlier this year and the continuing instability in eastern Ukraine, many journalists and scholars have pointed to the memorandum as the focal point for the current conflict. Ukraine, the US, Russia and even Belarus have invoked it, as a means of criticizing alleged transgressions by other actors. Amidst the chaos of war, several questions swirl: Does the Memorandum hold any lingering power? Does it require US or UK intervention to secure Ukraine’s territorial integrity? How does each state invoke it to justify their current actions? Finally, could the Memorandum have been concluded differently, in a fashion that might have prevented the current hostilities?

After overviewing the Memorandum, we sketch out some preliminary answers to these questions below. Read more »

If You Haven’t Yet Contributed to Lawfare

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Thursday, November 20, 2014 at 6:13 PM

Editor’s Note: If you have already contributed to Lawfare in response to my appeals, please ignore this post. For those who have not yet done so, and you know who you are, I am reposting the appeal, and will occasionally do so again between now and the end of the year. Please considering making a donation of any size, particularly if you use the site regularly. 

The other day, I listened to a fascinating episode of Freakonomics Radio featuring a lengthy discussion with a noted economist about what actually works in non-profit fundraising. I listened to this with, I suspect, more-than-average attention, as we have been working hard recently to raise money to grow Lawfare. The secret, according to University of Chicago economist John List, is relatively simple and boils down to the following: Don’t appeal to pure altruism, but use a pitch that makes people feel warm and fuzzy about themselves for giving; make clear that they gain transactional benefits from giving; and make sure all your requests for funds—to men, at least—are made by beautiful blonde women. No, I’m not making that last bit up. Listen to the episode if you don’t believe me:

Recruiting a cadre of young blondes to canvas for Lawfare is probably impractical, but the other two points are well taken. Lawfare is growing constantly. We have ambitious plans for new content, live events, and a revamped web site—all of which takes resources to make happen.

So here’s my warm-and-fuzzy pitch: You can be part of it. Make a donation and you’ll know that you helped develop Lawfare, that you helped improve the national conversation about security and law, and that you pushed back against the polarized left-right shouting match. You’ll know that because of you, more people got better information before making hard and fateful decisions that affect real people’s lives and liberty. You’ll know that because of you, new voices in the field are emerging, as are new forms of scholarship. You’ll feel incredibly good about yourself: warm and fuzzy. Really. I promise.

And here are some transactional benefits, benefits beyond the hand-written thank-you note from me or Wells and the tax deduction that comes from giving to a 501(c)(3) organization like the Lawfare Institute. Every dollar of any contribution you give will enter you separately in a drawing for an array of cool prizes—Lawfare swag, mugs, t-shirts, etc.—the grand prize being dinner with an available Lawfare writer of your choice. That’s right: For $100, you get a hundred different chances to win dinner with a Lawfare contributor and a hundred other chances to win the world-famous Lawfare mug.

That and the warm and fuzzy feeling.

Click here or send a check to: The Lawfare Institute, P.O. Box 33226, Washington DC 20033-3226.


 

5 Guantanamo Detainees Transferred to Europe Today

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Thursday, November 20, 2014 at 2:33 PM

At the Miami Herald, Carol Rosenberg reports that the Pentagon today transferred 5 inmates at Guantanamo Bay to two countries in Europe.

According to Rosenberg, three of the detainees were sent to Georgia. Of that trio, Abdul Khaled al Baidani and Abdel Ghalib Hakim are Yemeni nationals, while Salah Mohammed al Thabbi is Tunisian. Two other detainees were sent to Slovakia: a Tunisian, Hisham Sliti and a Yemeni, Hussain Almerfedi. All five were approved for release in 2010.

Today’s transfers bring the Guantanamo detainee population to 143. Importantly, Rosenberg reports that more transfers are also in the pipeline; six detainees may be sent to Uruguay next month.

Today’s Headlines and Commentary

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Thursday, November 20, 2014 at 1:46 PM

Is an Iranian nuclear deal going to happen? Four days before a scheduled deadline in talks, the answer to that question is as unclear as ever. Foreign Policy carries the comments of US Deputy National Security Advisor Tony Blinken, who said that while reaching a deal by the deadline was “not impossible,” he thinks “it’s going to be difficult to get to where [we] want to go.”

The New York Times reports that in an effort to consolidate the Western position on the talks, US Secretary of State John Kerry flew to France today for talks with his French counterpart, Laurent Fabius. While the British position, as articulated by UK Foreign Minister Philip Hammond, appears open to the idea of reaching a “partial understanding” and pushing back the deadline to March, it is unclear if that sentiment is shared in Paris. As Fabius said: “important points of difference remain.”

Reuters has more on the diplomatic jockeying and another potential spoiler to a deal: a statement by UN nuclear chief Yukiya Amano today that Iran has “yet to explain” suspected nuclear research to the UN’s nuclear agency.

Foreign Policy reports that Pentagon officials have sent Congress new details on their plan to train and equip Syrian rebels in an effort to secure funding for the project. The article writes that the Defense Department intends to use an initial procurement of $225 million to train the first few classes of moderate fighters, each of which will have around 300 members.

At Defense News, Paul McLeary writes that Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey made the case yesterday for significantly increasing the defense budget. The Congress’ current cap on the budget is approximately $535 billion, and some officials in the DoD say they hope to get as much as $60 billion more.

Rich Miller of Bloomberg reports that the glut of new oil production worldwide is tilting the geopolitical map towards the US. He writes that in light of “surging” US oil production, Washington and its allies have been able to impose crushing sanctions on Tehran without fearing much about their impact on the global price of crude. Furthermore, it is gaining additional leverage over Putin, whose economy is still struggling to deal with lower revenues from energy exports.

At the BBC, Lucy Williamson examines why so many Frenchmen are joining ISIS.

In the New York Times, Tim Arango writes that more than a battle, the struggle for Kobani has become a “publicity war.” For ISIS, capturing the town could portend a significant boost for its regional ambitions and a potent recruiting tool. For the US-led coalition, the battle’s result is a “crucial public test” of Obama’s strategy of combining US airpower with local ground forces.

Speaking of US strategy, Defense One quotes Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey as saying that while the current US strategy is “sound,” it may change in the future.

Also, Roll Call reports that outgoing House Intelligence Chairman Mike Rogers (R-Mich.) said yesterday that his greatest fear was that ISIS would acquire enough cash to acquire a nuclear device.

The Times of Israel reports that Israeli police have busted a huge shipment of weapons at Ashdod Port. In a box marked as containing Christmas lights, officials found 18,000 firecrackers, 5,200 knives, 5,000 electric shock devices and 1,000 swords, among other items, all reportedly en route to rioters in East Jerusalem. For more on the evolving situation in the Holy City, click here.

At the Atlantic, Adam Chandler examines whether or not Israel’s revamped practice of using home demolitions as a deterrent against would-be terrorists is effective. Relatedly, the Jerusalem Post reports exclusively that the IDF arrested three Palestinians who were allegedly planning to assassinate Israeli FM Avigdor Lieberman using a RPG. Although the three have been captured, Israeli consider the report concerning, in large part because none of the three had affiliations with militant groups and appear to have operated as an isolated cell.

According to Bloomberg, Russian President Vladimir Putin has “stunned” his advisors by supporting a high-profile crackdown on corruption. Reportedly in reaction to the country’s continuing economic downturn at the hands of Western sanctions, Putin has backed an initiative, dubbed “economic liberalization,” that will seek to ease the financial burden of corruption on enterprises. Putin is scheduled to announce more about the initiative in a speech next month, which will use the threat of harsher prosecution to crack down on bureaucratic bullying that costs the economy tens of billions of dollars a year.

Elsewhere in the Russian capital, the Guardian reports that the US’s new envoy to Moscow, John Tefft, received a chilly welcome from the Kremlin. Tefft presented his credentials at the Kremlin just a day after Putin publicly said that the US wants to “subjugate” Russia, but would never succeed.

In Foreign Policy, James Stavridis, a retired 4-star Navy Admiral, asserts that Putin hates the US-EU Transatlantic Trade and Investment Partnership, which is exactly why the two blocs need to get it done.

Reuters reports that Kiev has ruled out direct talks with pro-Russia separatists. Ukrainian Prime Minister Arseny Yatseniuk rejected Russian calls for “stable communications” between Kiev and the rebels, and said the Kremlin would not push Ukraine into recognizing the separatists. According to the BBC, almost 1,000 people have died since a “ceasefire” in the conflict was announced on September 5th.

Hungary’s controversial Prime Minister, Viktor Orban, said yesterday that his country would choose its “own path” in relations with Russia and the EU, and would not be drawn into the “Cold War-style standoff” in Europe. Orban, who is seen by some in the West as cozy with the Kremlin, did say that Hungary was “united” with the EU regarding Ukraine’s territorial integrity.

The BBC has a lengthy report covering China’s first World Internet Conference, which focused (naturally enough) on “internet governance.”

Business Insider writes that a Chinese state firm has signed a $12 billion deal to build a railway along Nigeria’s coast.

The New York Times reports that even if lawmakers allow Section 215 of the Patriot Act to expire next June, a little known provision of the law may allow President Obama to keep the NSA’s bulk telephony metadata collection program running.

According to the BBC, a data watchdog group is warning the public about a Russia-based website that appears to contain thousands of live-feeds to baby monitors, stand-alone webcams and CCTV systems. Click here for more on the troubling revelation.

Finally, the New Yorker carries a piece by Elliot Ackerman on “Assassination and the American Language.”

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

Navy Weighing Fate of Nurse who Refused To Perform Guantanamo Force-Feeding Procedures

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Thursday, November 20, 2014 at 11:00 AM

Earlier this month we noted that, in the much-watched Dhiab case, a federal judge refused to grant a preliminary injunction against certain force-feeding procedures used on hunger-strikers at Guantanamo. Now a parallel saga is unfolding—one involving a US Navy nurse who refused to perform some of those very procedures this past summer. It seems to mark the first instance of a military employee refusing, on professional responsibility grounds, to administer treatment of this kind to Guantanamo detainees.

In September, the Navy determined that it would not subject the nurse, whose identity is being kept confidential, to formal court-martial proceedings.  The matter was instead referred to the Chief of Naval Personnel, who will decide whether to require the nurse to appear before a Board of Inquiry and to show cause for retention in the Navy. The Board of Inquiry procedures (Enclosure 8, at p. 91) specify that the respondent, if asked to appear, will be provided with military counsel.  Additionally, at least one member of the three-member Board would have to belong to the same work category as the respondent (in this case, the Nurse Corps).

The case has generated a great deal of attention from the medical profession broadly, and from organizations representing nurses—who argue that any further disciplinary measures would unjustly punish an individual who had respected standards of medical ethics.  (Chief among these is the general requirement of obtaining a patient’s informed consent for medical intervention.) By way of examples, the American Nurses Association sent a letter to Defense Secretary Chuck Hagel in October, urging the Government to take no further action against the nurse; Physicians for Human Rights released a similar statement yesterday, and stressed that “[n]urses, like physicians, have professional duties to respect the autonomous decisions of their patients and never participate in ill-treatment or torture.”

The nurse is being represented by Ron Meister and Serge Krimnus from Cowan, Liebowitz and Latman. Meister, a former Navy JAG, argues that requiring his client to carry out procedures or to take actions that violate ethical standards is itself unlawful; the armed services generally cannot, for example, order military chaplains or attorneys to ignore their professional obligations. The attorney also emphasized that an early discharge from the Navy could result in the nurse being ineligible for a military pension; moreover, Meister argues, if discharged dishonorably the nurse might also confront the denial of GI Bill and other veterans’ benefits.  (To be sure, the case isn’t just about professional ethics: There’s also a procedural question about the extent to which the Navy may close inquiry proceedings to the public, in order to keep the facts surrounding Guantanamo force-feeding confidential.)

There is no set timeline for the Chief of Naval Personnel to decide whether to refer the nurse to a Board of Inquiry. Stay tuned.

SSCI Leadership on Proposed Changes to CIA E-Mail Destruction Policy

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Wednesday, November 19, 2014 at 6:55 PM

A while back I noted certain 9/11 defense counsel’s objections to a proposed change to the CIA’s policy, regarding the destruction of CIA e-mails. In August, a federal bureaucracy charged with appraising such things—the National Archives and Records Administration (“NARA”)—had endorsed the change. But civil liberties groups, including Open the Government, later disagreed vigorously (and thus, I suspect, got the attention of Guantanamo defense lawyers).

It seems the Senate Intelligence Committee’s Chairman and Vice Chairman don’t like the idea either. Today, Senators Dianne Feinstein and Saxby Chambliss jointly penned a letter to NARA, the pertinent part of which reads as follows (italics in the original):

We write to express our concerns about the recent CIA proposal to the National Archives and Records Administration (NARA) to allow for the destruction of email messages sent and received by non-senior CIA officials.

As you know from your evaluation of the CIA proposal, the Agency has asked NARA for authority to destroy the emails of all but 22 of its most senior employees three years after their departure from the CIA “or when no longer needed, whichever is sooner.” Based on our oversight of the CIA, we disagree with the CIA proposal for the following three reasons:

(1) In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA.  Therefore, we disagree with the NARA appraisal which found, “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files appraised as permanent.” 

(2) Applying the new proposal to all but the 22 most senior CIA officials means the new policy would allow the destruction of important records and messages of a number of top CIA officials.  For example, the new proposal would allow the destruction of important records created by senior CIA officials such as: (a) the Deputy Director of the National Clandestine Service (b) the Director of the CIA’s Counterterrorism Center and all of its employees, (c) the head of the CIA’s Counterintelligence Center, and all of its employees, (d) the head of the CIA’s Counterproliferation Division, and all of its employees.

(3) the rationale for the new CIA proposal is supposedly to save money spent on the cost of email retention, but the CIA has not provided the Committee – nor perhaps NARA – with any projected cost savings to justify the new email destruction policy.

Therefore, we request that NARA reconsider its tentative approval of the CIA’s proposal, which could allow the destruction of crucial documentary evidence regarding the CIA’s activities that is essential for Congress, the public, and the courts to know. The National Archives must ensure there is a thorough, systematic and orderly way to preserve these important documents.

 

ODNI Releases Transcript from 2008 Protect America Act Litigation

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Wednesday, November 19, 2014 at 1:41 PM

On Monday, the Office of the Director of National Intelligence published a declassified oral argument transcript from critically important 2008 proceedings before the Foreign Intelligence Surveillance Court of Review (“FISCR”). As readers well know, the issue in In Re: Directives  was, naturally enough, a directive issued to Yahoo! under the Protect America Act of 2007.  The case was decided in January of 2009; the FISCR released a less-redacted-than-before copy of its opinion earlier this year.

Look out for a forthcoming summary of the oral argument transcript.