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Rep. Adam Schiff’s ISIS AUMF

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Tuesday, September 16, 2014 at 6:26 PM

Representative Adam Schiff (D-CA), a member of the House Intelligence Committee, introduced an authorization for the use of military force against ISIS yesterday.

According to a press release from Rep. Schiff, “First, the authorization would give temporary, tailored authority for the combat ongoing against ISIL in Iraq, and for strikes against ISIL targets in Syria.  And second, the measure would harmonize the legal authorities under which the President is authorized to take offensive action by sunsetting the 2002 Iraq AUMF immediately and then sunsetting both the new authorities and the 2001 AUMF eighteen months after the enactment of the joint resolution.  Third, the resolution does not authorize the use of ground combat forces in Iraq or Syria.”

The draft text is below: Read more »

Updated Version of In Re Directives: A Quick Summary

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Tuesday, September 16, 2014 at 4:30 PM

Readers likely recall that last week, documents from the In Re Directives litigation, regarding foreign intelligence surveillance directives issued to Yahoo!, were declassified.

Chief among them: a new version of the Foreign Intelligence Surveillance Court of Review’s (“FISCR” or the “Court”) 2008 ruling, one less redacted than previous versions released to the public. Then-Chief Judge Bruce Selya’s opinion still contains some key redactions. Some key details—for example, the number of Yahoo! accounts thought to have been swept up in the Government’s surveillance—remain classified.

The decision affirms the Foreign Intelligence Surveillance Court’s (“FISC”) denial of Yahoo!’s challenge to directives issued pursuant to the Protect America Act of 2007 (“PAA”)—which itself temporarily had amended provisions of the Foreign Intelligence Surveillance Act. Yahoo! was thus compelled, as the FISCR put it, to assist the government “in acquiring foreign intelligence when those acquisitions targeted third persons (such as [Yahoo!’s] customers) reasonably believed to be located outside the United States.”

Below, I overview key features of the appeals court’s opinion.

Read more »

Transatlantic Dialogue on Int’l Law and Armed Conflict: Geoff Corn on Battlefield Regulation and Crime

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Tuesday, September 16, 2014 at 3:30 PM

Continuing our coverage of the Transatlantic Dialogue on International Law and Armed Conflict, Lawfare is pleased to publish the discussion paper for the conference that Geoff Corn (South Texas) produced on the topic of how criminal responsibility relates to battlefield regulation.

Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility

During our conference, I was asked to generate discussion on issues related to accountability for law of armed conflict/international humanitarian law violations.

Any discussion of this issue must begin with the recognition that international criminal responsibility for serious LOAC/IHL violations is today a firmly entrenched component of the IHL compliance mosaic. Investigation, prosecution, conviction, and punishment of war criminals is expected to produce both retributive and deterrent effects, ostensibly enhancing the probability of legal compliance in on-going and future armed conflicts. Military commanders must be the critical focal point for this accountability; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal force capability.

While these assumptions may be unremarkable, and perhaps even axiomatic, my discussion questions focused on what I believe are several complex questions that arise in this accountability equation. As a general matter, I sought to highlight what I believe are several evidentiary and institutional complexities associated with subjecting commanders and other operational decision-makers to criminal accountability for battle-command judgments – complexities that will become more significant as cases focus increasingly on complex operational decision-making, particularly in relation to targeting. What follows are several of the discussion questions that highlight these complexities. Read more »

Steptoe Cyberlaw Podcast, Episode #34: An Interview with Dr. Phyllis Schneck

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Tuesday, September 16, 2014 at 2:38 PM

Our guest this week is Dr. Phyllis Schneck, the Deputy Undersecretary for Cybersecurity for the Department of Homeland Security’s National Protection and Programs Directorate (NPPD).    She and Marc Frey, Senior Director in Steptoe’s DC office and former Chief of Staff at DHS’s Office of Policy Development, discuss the status of cybersecurity legislation and DHS’s highest cybersecurity priorities.

We begin the podcast with This Week in NSA, as newly released documents indicate that back in 2008, the US government threatened to fine Yahoo $250,000 a day if it failed to comply with an order for data under the PRISM program.

We dive into the Alien Tort Statute suit that was dismissed against Cisco.  And, even though Stewart isn’t here this week, we give an update on his favorite topic – the right to be forgotten.   We also have a new competitor for the title of “strangest ruling against Google in a European court this year” – as a German court has ordered Google to provide more responsive customer support.

Last week, we told you about how Yelp had prevailed in an extreme case claiming that the company suppresses bad reviews for its advertisers.   This week, California adopted a law that further protects customers’ ability to post negative reviews to Yelp and other sites.

This week in data breaches: Home Depot confirms its breach, and the congressional reaction is predictable.  On a related front – in the newly minted “This Week in Judge Koh,” she finds that the Adobe breach victims have standing based on risk of future harm – we explain how this can be reconciled with Clapper and what its implications might be for future class actions.

Finally, tech companies again try to ramp up the pressure for ECPA reform, and in the Microsoft search warrant litigation in New York, Microsoft agreed to be held in contempt – we explain why.

Today’s Headlines and Commentary

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Tuesday, September 16, 2014 at 2:24 PM

“The peace and security we enjoy in Europe and North America are under threat like never before,” writes Secretary General of NATO Anders Fogh Rasmussen in a rousing op-ed in the Wall Street Journal. Rasmussen calls ISIS and Russia the two greatest threats to Western values, including liberty, democracy, and the rule of law.

His comments come as NATO appears to have suffered the latest attack on its forces in Afghanistan. Yahoo! News reports that a suicide attack targeting a military convoy killed two U.S. troops and a Polish soldier today near the U.S. embassy in Kabul, the capital. The attack, which also left 13 Afghan civilians wounded, is one of the worst on NATO forces in months. According to the Wall Street Journal, the Taliban took responsibility.

Farther west, Israeli newspaper Yediot Achronot tells us that ISIS militants shot down a Syrian military jet using anti-aircraft weaponry outside its stronghold of Raqqa yesterday. The group’s success comes as the first US airstrikes since President Obama’s Wednesday speech began hitting targets in the region. The BBC reports that these initial airstrikes targeted ISIS positions in the key city of Sadr al-Yusufiya, only 15 miles from Baghdad. In the north, US surveillance jets and drones are helping Kurdish “peshmerga” forces advance on the ISIS-occupied city of Mosul, Iraq’s second-largest. Peshmerga forces are reportedly moving into the plains east of the city, as well as towards the town of Zumar. Finally, a third series of US airstrikes struck the town of Sinjar in north-western Iraq, destroying 6 ISIS vehicles. According to Yahoo! News, in response to the increased airstrikes, ISIS militants threatened to attack the U.S. and its allies.

The New York Times reports that US Secretary of State John Kerry is open to talking to Iran about the security situation in Iraq, only days after the Supreme Leader of Iran, Ayatollah Ali Khameini angrily rebuffed collaboration of any kind with the US.

Here’s a germane question: are we at war? So asks Amy Davidson at the New Yorker, who examines the continuing legal questions over the President’s campaign in Iraq and Syria. Over at Defense One, Molly O’Toole charts President Obama’s stunning reversal on Bush’s laws of war.

In Washington, the House of Representatives began debating legislation intended to authorize the arming of Syrian rebel groups. Reuters reports on the rare bipartisan initiative, written by Republican lawmakers with “input from the White House,” which would train rebels who oppose both ISIS and Assad’s regime. In the bill’s current form, this approval would be contingent on prohibiting the deployment of US ground forces as well as regular progress reports from the President on its implementation. The bill can be found here. Also, make sure to read a recent report released by the US Treasury detailing how the US government plans to hit ISIS in its pocketbook. To stay up to date on this evolving campaign, check out a live feed provided by the Guardian of US Secretary of Defense Chuck Hagel’s testimony before the Senate Armed Services Committee.

While many countries condemned the beheading of humanitarian worker David Haines at the hands of ISIS militants on Saturday, his death appears to be shifting popular willingness to engage militarily with the Islamist group in a singular country: his home, the UK. Foreign Policy assesses to what extent public opinion in the UK after his murder might reflect the shift observed in the US, where initial reticence to act against ISIS evaporated after American citizens were decapitated by the militant group.

Speaking of outside players, a new CNA report is out that tracks trends in the Gulf States’ foreign policy objectives, with a specific focus on the upheavals in Egypt and Syria. The report, entitled, “Reaping the Whirlwind,” can be found here.

The New York Times released a story today claiming that ISIS is drawing large numbers of recruits from none other than NATO member Turkey. According to the article, as many as 1,000 current ISIS operatives hail from Turkey. This allegation comes as the Turkish government plays defensive in the face of another New York Times report that claimed the Turks may be increasing ISIS’s coffers by buying oil from areas occupied by the militant group. Ankara slammed the reports, with Turkish energy minister Taner Yildiz claiming that they were attempting to construct an “image of Turkey cooperating with ISIL.”

This news comes as the new Turkish Prime Minister, Ahmet Davutoglu, is still transitioning into the office. War on the Rocks has a piece on the new leader and what his rise portends for Turkey’s role in the region.

Foreign Policy writes that Israel is looking to get in on the anti-ISIS action. This, after earlier reports already claimed that the Jewish state has been providing intelligence to other countries in the region via the US in an effort to stem the group’s rise. Additionally, the Jerusalem Post quotes one high-ranking Israeli official as saying that Israel would intervene if ISIS mounted a significant threat to its eastern neighbor, Jordan.

Israel’s possible inclusion in this grand coalition would only exacerbate already-existing tensions in the alliance’s current configuration. At Foreign Policy, James Stavridis, the former supreme allied commander of NATO, has 7 pieces of advice for creating a durable confederation of states.

How can the US and other allies attack ISIS without empowering the brutal Assad regime? In an effort to allay the concern, senior administration officials vowed yesterday that the US would retaliate against any attack by Assad on their forces. The Military Times has more details. Relatedly, the Times of Israel carries statements made recently by a UN panel devoted to the Syrian crisis, which decried Western inaction in the face of the pro-Assad forces’ continuing abuses and asserted that the regime’s crimes are worse than ISIS’s.

According to Josh Rogin at the Daily Beast, while the Obama administration may think it has legitimized its domestic legal authority to attack ISIS in Syria, it still has no international legal theory in place to explain its airstrikes.

As to domestic law, Senator Tim Kaine of Virginia wrote in a New York Times op-ed that President Obama must gain Congress’ approval for the fight against ISIS. He also cautioned that the “open-ended 9/11 authorization needs to be limited to a more specific framework.”

In another op-ed in the New York Times, the editorial board yesterday urged Congress not to hide the Syrian aid vote in a stopgap spending bill that will keep Congress running only through December.

Finally, Afzal Ashraf of the BBC implores the West to remain vigilant and optimistic, because “ISIS will not endure” in the face of a growing international response.

In Africa, the Ebola epidemic is growing exponentially in the nation of Liberia, a worsening situation that, according to the country’s defense minister, may threaten the country’s “national existence.” In response to the dire reports, President Obama today announced a major expansion of its containment efforts in the region. The New York Times reports that Washington expects to send as many as 3,000 US military officials to Liberia, in addition to constructing 17 Ebola treatment centers in affected countries, totaling around 1,700 beds. It also hopes to train 500 health care workers per week to restrict the outbreak, which has already killed over 2,000 people. Additionally, Foreign Policy divulges that the Pentagon has requested about $500 million in emergency funds to deal with Ebola as well as the refugee crisis in Iraq, but its lack of transparency in outlining its reprogramming request has irked some in Washington. The Huffington Post has a map of the regions worst affected by the outbreak.

Elsewhere, the Washington Post writes that the UN is taking over a peacekeeping mission in the volatile Central African Republic, promising to add 1,500 more troops to an existing force of 4,800.

The BBC has the latest developments in the instability in Eastern Europe, reporting that the Ukrainian government has promised rebels “self-rule” and amnesty. This comes amid reports that Russia intends to up its troop count in the disputed territory of Crimea, as well as news from Deutsche Welle that Ukraine successfully ratified an association agreement with the EU. Despite this news, Simon Shuster of Time magazine asserts that Russian President Vladimir Putin successfully forced the EU to accept his dominance in Eastern Europe.

Still, Russia has not emerged from the conflagration unscathed. According to Yahoo! News, former Russian finance minister Alexei Kudrin warned on Tuesday that in the face of increasingly-strict Western sanctions, the Kremlin must intervene in order to stave off a recession in the countryAs Russian newspaper Gazeta reports, his pronouncement comes as the ruble continues to fall in value, reaching 50 to the euro on Tuesday and 39 versus the greenback.

In a mock Chinese memo entitled, “All Your Pivots Are Belong to Us,” Kore Schake of Foreign Policy analyzes the Chinese perspective on President Obama’s “pivot” to Asia in light of the US’s decision to engage militarily with ISIS in Syria and Iraq.

At the Huffington Post, Shashi Tharoor, former Indian Minister of State for External Affairs and Chariman of the Parliamentary Standing Committee on External Affairs, argues that India and China have outgrown the Western order, and feel more confident challenging it. However, despite warming political ties and India’s forthcoming entry into the China-dominated Shanghai Co-operation Organization, Brahma Chellaney, Professor of Strategic Studies at the Center for Policy Research, asserts that India ultimately seeks to counterbalance China’s influence on the continent.

Tragic news from the Mediterranean: the Guardian reports that a migrant boat headed towards Europe appears to have been deliberately sunk by smugglers, killing approximately 500 people.

In Egypt, a bombing on an armored convoy in northern Sinai killed 6 Egyptian policemen, including two officers. The BBC has details.

The L.A. Times reports that the Justice Department will launch a new program designed to identify potential American Islamic extremists and stop them before they are able to link up with a terrorist organization.

According to Politico, the D.C. Circuit has ruled that it will not televise arguments in Klayman v. Obama, a case set to review the constitutionality of the NSA metadata collection program. However, earlier today, Jane brought us news that the appellees have already filed a similar motion for rehearing en banc.

A nurse who refused to conduct force-feedings of Guantanamo detainees on hunger strike will not be court-martialed; however, a Navy commander has asked a board to determine whether the nurse should be allowed to remain in the U.S. Navy. Carol Rosenberg of the Miami Herald reports.

Finally, while both sides on the Scottish independence referendum have boasted celebrity support in recent days, the pro-independence “Yes” faction may have bagged a clincher: the endorsement of Comedy Central comedian Stephen Colbert. The Guardian has the video.

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.

Transatlantic Dialogue on Int’l Law and Armed Conflict: Lawrence Hill-Cawthorne Responds to Sarah Cleveland

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Tuesday, September 16, 2014 at 1:49 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Lawrence Hill-Cawthorne (U. of Reading), and it responds to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. A taste: Read more »

House Amendment to Arm Syrian Rebels

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Tuesday, September 16, 2014 at 12:18 PM

The House Rules Committee has released an amendment to the Continuing Resolution (CR) that would authorize the Department of Defense to begin arming and training moderate Syrian rebels as identified by the Obama Administration; however, the measure provides no new funding for the initiative.

The Hill has more on the proposal, which you can read in full here or below. The New York Times reports that it will likely come to a vote tomorrow.

House proposal on Syria

Appellees File for En Banc Rehearing in Hatim v. Obama

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Tuesday, September 16, 2014 at 10:00 AM

Yesterday petitioner-appellees Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif filed a joint motion for en banc rehearing in Hatim v. Obama, the counsel access case. The detainees seek review of a three-judge D.C. Circuit panel’s August 1, 2014 decision upholding the constitutionality of security procedures instituted at Guantanamo in 2012 and 2013, including genital searches before and after detainees meet with their lawyers.

Recall that in a July 2013 ruling, D.C. District Chief Judge Royce Lamberth found that the highly deferential Turner v. Safley standard for determining the constitutionality of prison regulations was inapplicable to security protocol that interfered with the detainees’ right to petition for habeas, and moreover that the search procedures failed the standard. The D.C. Circuit quickly stayed and then ultimately reversed the lower court’s decision—holding that Turner applied and that the challenged polices were reasonable under the four-factor Turner test.

In their new filing, the detainees track Chief Judge Lamberth’s reasoning, arguing (1) that the three-judge panel incorrectly held that Turner applies to polices that burden detainees’ access to habeas counsel, and in the alternative (2) that even if the Turner standard applies, the panel erred in construing the standard in such a way as to require courts “to ignore their common sense and blindly defer to the prison commander’s ‘view of the matter.’”

The detainees conclude:

The panel allowed an impairment of the habeas right largely because it accepted “the government’s view of the matter” and refused to “second-guess” the “judgment” of prison officials. It did so in the face of detailed findings that the claimed “judgment” was pretextual. Slip op. at 9, 13. The panel’s purported Turner review of the policies was an empty exercise (going so far as to permit genital-area searches in connection with phone calls, where there is no possibility of “smuggling” medications or contraband), with no consideration of the extent of the harm to petitioners, and no real evaluation of the reasonableness of the challenged policies. Respectfully, the Court should grant the petition for rehearing en banc.

Motions to Televise Oral Argument in Klayman v. Obama

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Tuesday, September 16, 2014 at 8:38 AM

Last week appellees in Klayman v. Obama filed a motion for the court’s leave to televise the oral argument, scheduled for November 4, 2014. The D.C. Circuit denied that motion yesterday, prompting appellees to immediately file a substantially similar motion for rehearing en banc.

The seven-page motion for an en banc rehearing regarding the decision begins and ends the same way: by noting that C-SPAN will likely reach out to the court about televising the oral argument, and arguing that the issues at the heart of the case are “the pinnacle of public national interest.” Appellees also point out that the Second Circuit granted leave to televise the September 2, 2014 oral argument in ACLU v. Clapper, the related surveillance case, and that as of the 2013-14 term, D.C. Circuit has made it a policy to provide audio recordings of oral arguments free of charge to the public.
The government has not yet responded to petitioners’ request for consent to televise.

The Week That Will Be

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Monday, September 15, 2014 at 4:27 PM

Event Announcements (More details on the Events Calendar)

We interrupt your regularly scheduled Lawfare Event Calender to bring you: The Future of Civilian Robotics. Monday, September 15th at 2 pm: Governance Studies at Brookings will hold a forum focused on the constantly changing landscape of civilian robotics in the United States. Brookings Senior Fellow Benjamin Wittes will moderate a conversation between Brookings Fellow in National Security Law Well C. Bennett, Brookings Nonresident Fellow John Villasenor, and Pepperdine University School of Law Professor Gregory McNeal on the differing aspects of legal and regulatory policy surrounding civilian robotics. After the program, the panelists will take audience questions. You can find more information here.

Monday, September 15th at 8:30 am: The Center for Strategic and International Studies will review Japanese Perspectives on China, Taiwan, and Cross-Strait Relations. The event will have four panels: “The Japan-Taiwan Relationship in the Post-Democratization Era: Enhancement and Institutionalization,” “The Development of Japan-China Relations in the Period of Stability in Cross-Strait Relations,” Mainland Policy Decision-Making Process and the Party Alternation in Taiwan: An Observation on the Role of the National Security Council,” and “Cross-Strait Relations under the Ma Ying-jeou Administration (2008-2013): From Economic to Political Dependence?” For more information on panelists and times, please visit the CSIS event announcement

Monday, September 15th at 9:30 am: With only months left to reach a comprehensive nuclear deal, the Carnegie Endowment for International Peace will host a conversation on Squaring the Iranian Nuclear Circle: Defining Uranium Enrichment Capacity and Other Key Issues. At the event, the Arms Control Association will present its new proposal, developed in coordination with the International Crisis Group. Panelists include Kelsey Davenport, James Walsh, Paul Pillar and Daryl G. Kimball. You can find more information here

Monday, September 15th at 9:30 am: The Center for Strategic and International Studies will host a dialogue on Cooperation to Counter 21st Century Maritime Domain Challenges. From the Baltic and Mediterranean Seas to the South China Sea, how do nations confront these challenges at a time when national defense budgets are shrinking and operational demands are increasing? How do new operational requirements, like an increasingly ice-free Arctic Ocean, factor into maritime strategies? Following the outcomes of the recent NATO Summit, our three speakers will address how a network of navies works together to address current and future maritime security challenges. The event will feature Admiral Michelle Howard, Vice Admiral Axel Schimpf, Rear Admiral Lars Saunes, and Heather A. Conley.  RSVP here

Monday, September 15th at 11 am: The Atlantic Council will also hold a post-op discussion of the NATO Summit, entitled After the Summit: General Phillip M. Breedlove on NATO’s Path Forward. General Breedlove, Supreme Allied Commander, will offer his perspective on the deliverables of the 2014 NATO Summit in Wales. For more information, contact event coordinator Alex Ward (award@atlanticcouncil.org, 202-292-5162).

Read more »

Happening Now: The Future of Civilian Robotics

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Monday, September 15, 2014 at 1:43 PM

At the top of the hour, Ben will host a conversation at the Brookings Institution with Wells Bennett, John Villasenor, and Gregory McNeal on The Future of Civilian Robotics. We hope you will join us for a lively discussion of the many civil liberties, privacy, legal, and regulatory issues rapid advances in robotics present. You may also find out more about the event here.

If you are unable to join us in person, you can follow along online with the live webcast embedded below.

Al-Hadi Case: September 15 Session

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Monday, September 15, 2014 at 12:45 PM

 A note to readers: business back at Brookings will keep your correspondent away from Fort Meade, and from observing, almost live and via CCTV broadcast,  a two-day pre-trial hearing in the military commission case of United States v. Abd al Hadi al-Iraqi.  The session commences today at 1 p.m., and could continue through tomorrow.  

Nearly-live blogging not being an option, we will thus resort to our backup coverage format: Lawfare, in the person of Matt Danzer, will review transcripts of the day’s events—once the transcripts become available—and post a digest in our “Event Coverage” section.  We’ll be sure to note his posts as they come in on the site’s front page.

Chief Prosecutor Statement on This Week’s Hearing in Al-Hadi

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Monday, September 15, 2014 at 12:00 PM

On the docket today and tomorrow at Guantanamo: argument on the government’s motion to protect national security information in United States v. Abd al Hadi al-Iraqi. The Chief Prosecutor issued a statement in advance of the pre-trial hearing, which commences this afternoon at 1 p.m.  The statement opens:

Good evening. Since we last met, there have been solemn ceremonies to observe the passage of thirteen years since the September 11th attacks. Such observances never fail to renew the commitment of all in public service to defend our Constitution and way of life. The ceremony in Shanksville, Pennsylvania, which I was privileged to attend last week, certainly renewed mine. The heartbreak and sense of loss welled forth again with each sounding of the bells. And the valor and selflessness brought forth on that day once more inspired us, even as we continue to mourn the sacrifice of the passengers and crew and to grieve for the family members of everyone who died in the attacks.

Tomorrow, the Military Commission convened to try the charges against Abd al Hadi al-Iraqi will hold its first day of sessions without panel members present since he was arraigned on 18 June 2014. Abd al Hadi was arraigned on charges that, as a senior member of al Qaeda, he conspired with and led others in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the death and injury of U.S. and coalition service members and civilians. For his alleged role in these attacks and related offenses, Abd al Hadi is charged with denying quarter; attacking protected property; using and attempting treachery or perfidy; and conspiring and agreeing with Usama bin Laden and other al Qaeda leaders to commit terrorism, deny quarter, use treachery or perfidy, murder protected persons, attack protected property, attack civilians, attack civilian
objects, and employ poison or similar weapons.

I emphasize that the charges against the Abd al Hadi are only allegations. He is presumed innocent unless and until proven guilty beyond a reasonable doubt. Matters under consideration by a military commission in this or any other particular case are authoritatively dealt with by the presiding judge, and any comments addressing systemic issues that are the subject of frequent questions by interested observers should always be understood to defer to
specific judicial rulings, if applicable.

Draft U.N. Security Council Resolution on Foreign Terrorist Fighters

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Monday, September 15, 2014 at 10:00 AM

Recently circulated by the United States in New York, in conjunction with the larger campaign against ISIS: a United Nations Security Council (UNSC) draft resolution aiming to reduce the rising threat posed by foreign terrorist fighters (FTFs)—or, as the resolution defines them, “individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connecting with armed conflict.”

If approved, the document seemingly would impose obligations upon U.N. member states. It explicitly invokes Chapter VII of the U.N. Charter, for example, refers to threats to international peace and security posed both by terrorism and FTFs generally, and purports to “decide” numerous issues pertaining to the threat. The draft will be the subject of a September 24 Security Council meeting, which President Obama will chair personally.

An overview of the resolution follows, with a focus on areas where the draft would impose obligations on member states. Read more »

Today’s Headlines and Commentary

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Monday, September 15, 2014 at 8:49 AM

The Islamic State released another horrifying beheading video this weekend. A video posted on Saturday shows brutal murder of David Haines, a British aid worker who was working in Syria when he was captured by members of IS. CNN covered the news.

The video incited renewed international outrage targeted at the terrorist group. The AP reports that in Paris yesterday, diplomatic leaders from around the world met to discuss a collective strategy to defeat IS.

During that meeting, several Arab nations offered to join the United States in airstrikes against the Islamic State in Iraq and Syria. The New York Times explains that the Obama administration won’t yet disclose which nations have extended their military support, indicating that Secretary of State John Kerry, who was at the meeting in Paris,will likely announce more details when he testifies before Congress later this week.

Australia has pledged to contribute in the effort to defeat IS. Deutsche Welle reports that Australia will send “hundreds of soldiers” to the United Arab Emirates to support the US-led operation to defeat IS.

One of the most unanticipated challenges in defeating IS is the group’s growing financial stability. The AP tells us that the group has “become a self-sustaining financial juggernaut, earning more than $3 million a day from oil smuggling, human trafficking, theft and extortion.” IS’ vast amounts of revenue mean that the group is better able to gain control of parts of Iraq and Syria, without relying on outside support.

Even amidst the recently announced American offensive against IS, it’s still unclear how big of a threat the group poses. The Washington Post explains that different U.S. agencies are reporting wildly different information about the size and power of the Islamic State, reflecting a deep uncertainty.

White House Chief of Staff Dennis McDonough is denying claims that the Obama administration reprimanded and threatened legal action against the families of slain American journalists James Foley and Steven Sotloff. USA Today reports that McDonough reiterated that the law prohibits ransom payments, but that there was no insinuation that legal action would be taken against the families of the American IS hostages when they made direct appeals to the terrorist group.

The Times considers how the U.S.-led offensive against IS will effect Syrian leadership. President Bashar al-Assad, still clinging to power in Syria, may see the new American strategy, deploying air strikes in Syria and Iraq targeted at defeating militants, as possibly bolstering his grip on power: “To Mr. Assad and his closest advisers … the American decision represents a victory for his longstanding strategy: obliterating any moderate opposition to his rule and persuading the world it faces a stark choice between him and Islamist militants who threaten the West.”

The new Indian wing of al Qaeda (AQIS) has gotten off to a bad start. The Huffington Post explains that the new al Qaeda group attempted to storm an American Naval aircraft carrier, but targeted a Pakistani ship instead, accidentally. The Pakistani officers on board defeated the attackers.

This news coincides with an announcement by leaders of al Qaeda insisting that the group is not in decline, as the U.S. State Department has recently suggested. Reuters reports that a high-ranking member of al Qaeda, Hossam Abdul Raouf, issued an online message adamantly claiming that the group is as strong as ever. Al Qaeda has not recognized the Islamic State as a legitimate ruling power in the Syrian and Iraqi regions.

The Los Angeles Times reports that “at least” seven Muslim Brotherhood clerics and officials will be leaving Qatar – a move that may contribute to the mending of strained relationships in the Persian Gulf over Qatar’s sheltering of members of the Islamist group. It is unclear if Qatar will join in the regional effort, strung together by the U.S. and Secretary Kerry’s diplomatic efforts, against IS, but this news helps to shed Qatar’s image of being an overtly Islamist-friendly nation.

Majid Rafizadeh, the president of the International American Council, has written a piece in the Huffington Post in which he wonders why Iran has recently gone quiet in publicizing its military operations and capacity, a clear policy shift from its previous “ostentatious attitude.” Rafizadeh argues that the new, quiet Iran isn’t necessarily reeling in its military operations, but instead taking a new tactical approach to achieving its “hegemonic ambitions” by not calling too much attention to itself.

President Obama is slated to announce a new, major American strategy to help fight the Ebola outbreak in West Africa. The Wall Street Journal has the story.

In Uganda, worries of an “imminent” terror attack still loom even after the Ugandan military arrested several terror suspects in Kampala. CNN reports that the U.S. Embassy in Uganda has instructed American citizens living in Uganda to stay indoors.

The Times reports that American citizen Matthew Todd Miller has been sentenced to six years of hard labor by the Supreme Court in North Korea.

Over at Politico, the discussion centers around whether or not Congress will vote on an AUMF granting President Obama the explicit authority to conduct a multiyear aerial campaign in Iraq and Syria. Any vote is likely to wait until after the midterm elections, but certain Congresspeople, like Senator Tim Kaine (D. – Va.) are convinced that it’s only a matter of time until Congress votes on an AUMF.

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

Drones and Democracy: A Response to Firmin DeBrabander

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Monday, September 15, 2014 at 8:10 AM

The New York Times has an oped this morning by a philosophy professor named Firmin DeBrabander worrying that drone warfare heralds the end of democracy in America. No, I am not making that up or even exaggerating. Here’s its conclusion:

Most American citizens are quick to let someone or something else bear the brunt of our wars, and take up the fight. Hence there is less worry about whether a given incursion is necessary, justified, logical or humane. Drones point to a new and terrible kind of cruelty — violence far removed from the perpetrator, and easier to inflict in that regard. With less skin in the game — literally — we can be less vigilant about the darker tendencies of our leaders, the unintended consequences of their actions, and content to indulge in private matters.

The United State is gradually becoming a warring nation with fewer and fewer warriors, and few who know the sacrifices of war. Drones represent the new normal, and are an easy invitation to enter into and wage war—indefinitely. This is a state of affairs Machiavelli could not abide by, and neither should we. It is antithetical to a democracy for its voting public to be so aloof from the wars it fights. It is a feature, I fear, of a democracy destined to lose that title.

Why worry that democracies can’t use drones? It’s a mishmash of reasons, really. It has something to do with Machiavelli’s “The Art of War” and with the fact that we can’t have solemn commemorations as a society of drone battles. It has something to do with the fact that drone pilots are supposedly cowardly because they don’t meet their targets on the battlefield like real men (has DeBrabander ever talked to one?). It has something to do with the idea that it’s easy to go to war when the stakes are so low for your side. It has something to do with the growing disconnect between society and warfare.

Here are some questions that DeBrabander’s oped does not address but with which any serious philosophical consideration of the ethics of drone warfare would at least grapple—or so I would have thought.

Is it ethical to decline to use drones if a drone strike promises fewer civilian casualties than any other comparably-effective military option in a given situation?

Is it ethical to decline to use drones if a drone strike promises better to protect military personnel for which a command structure has responsibility? DeBrabander mentions force protection only in the corrupt sense that keeping troops safe makes resort to force decisions easier. But how can a philosopher write on this subject without at least touching on the deep ethical and moral responsibility that commanders have to use and deploy technologies that will protect their own people. DeBrabander’s logic leads straight to Verdun.

Put simply, if we take him at his word, Professor DeBrabander would be more comfortable with a “democracy” that knowingly subjects both its own people and foreign civilians to greater risk and violence in order to flatter his conception of Machiavellian virtue than with one that risks easier resort to force in order to enhance military effectiveness, civilian protection, and force protection.

Count me out.

The Foreign Policy Essay: Is this How to Win the “War on Terrorism”?

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Sunday, September 14, 2014 at 10:00 AM

Editor’s Note: The United States has not suffered a rash of terrorist attacks in the 13 years since 9/11. Indeed, this period has proven less bloody at home than the 1970s, hardly remembered as a decade of terror (except for the fashion threat posed by leisure suits, of course). Yet leaders are reluctant to consider the implications of this success, and the war mindset created by 9/11 remains prevalent. In this essay, Audrey Kurth Cronin, Distinguished Service Professor at George Mason University’s School of Policy, Government, and International Affairs, argues that because the United States does not know what the “end” of the war on terrorism would actually look like, its strategy is fundamentally flawed—with potentially disastrous consequences.

***

Two years ago, President Obama declared the decimation of al-Qaeda’s core leadership and described the group as “on the run.” Now Secretary of Defense Chuck Hagel is warning that the Islamic State (ISIS, ISIL, or IS), al-Qaeda’s jihadist successor, is “beyond anything we’ve seen” and “an imminent threat to every interest we have.” So political rhetoric ratchets up in response, critics on both the Right and the Left react, and we lurch again from panic to complacency and back to panic again.

This is no way for a great power to behave. Clear strategic thinking about where we are in this war is everywhere absent, replaced by hype and partisanship. Following the 9/11 attacks, the wars in Iraq and Afghanistan were embedded in the broader “war on terrorism.” Wars by their very nature require some distinction between “war” and “peace.” But so far, the U.S. government has no idea how to characterize “peace.” Without that there can be no effective strategy. What does “success” in this war mean? Is ISIS just the newest phase in the struggle? Can we even envision what the end of this war would look like?

Audrey Kurth CroninTwelve years into it, lacking a strategic framework and global boundaries, the United States is suffering all the classic symptoms common to all prolonged wars: means become ends, tactics become strategy, boundaries are blurred, and the search for a perfect peace replaces reality.

Means Become Ends

In any war, keeping means in line with ends is difficult. Especially after blood is spilled, emotions such as anger, revenge, retaliation, and protecting sunk costs take over. The result can be long, devastating wars of attrition (think the Peloponnesian War or World War I) where no one wins. This tendency is even more prominent in counterterrorism. Democratic governments react passionately to terrorist attacks—historical examples abound, from the British and the Irish Republican Army (IRA), to the Spanish and the Basque Euskadi Ta Askatasuna (ETA), to the Uruguayan government and the Tupamaros.

Over time, however, emotions play out and rational strategic thinking should take over. Classic checks such as tight budgets or restrictive legal authorities actually help, forcing leaders to adjust. But if a counterterrorism campaign is unconstrained from the outset, as with the unprecedented 2001 Authorization for the Use of Military Force, keeping means and ends aligned is virtually impossible. Read more »

The Administration Should Explain Its International Legal Basis to Attack ISIL in Syria

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Saturday, September 13, 2014 at 4:25 PM

Over the last several days, Administration officials have tried valiantly to explain the Administration’s surprising 11th hour discovery that the 2001 AUMF and indeed the 2002 AUMF provide a domestic law basis for the U.S. use of force in Iraq and Syria. The abrupt volte-face in the Administration’s domestic legal position has been the subject of much commentary on this blog and elsewhere, including in the lead editorial in yesterday’s New York Times. But what about the Administration’s international legal basis to attack ISIL in Iraq and, more important, Syria?  The Iraqi Government has apparently consented to U.S. airstrikes in its territory.  Ashley speculated yesterday about possible international legal justifications for attacking ISIL in Syria, but the Administration has been noticeably silent on this latter point.   I hope this changes soon, and I would urge Administration officials to explain the international law, as well as the domestic law, basis for attacks on ISIL in Iraq and Syria. Tomorrow’s Sunday talk shows would be a good time to start.

I have repeatedly expressed concern in the past about the Administration’s lack of clarity about the international law basis for edgy counter-terrorism operations, from drones strikes to the Bin Ladin raid. As I wrote with respect to the Bin Laden raid, “When a state uses force in or against another state, it should explain its reasons.” I believe this is especially true for the United States, which tries hard to base its actions on international law and whose actions set important precedents for other countries.

In the current situation, it will be especially important for the Administration to explain its international law rationale for use of force in Syria, because it is trying to build a coalition of countries to participate in the action. Coalition partners, including the UK, Germany, and Australia, will be required for domestic legal and political reasons to base their use of force on international law. These countries are already privately asking the Administration to explain its legal position.

Although I am well aware of the criticisms of  Bush Administration’s counter-terrorism policies, in the Administration’s second term we tried very hard to explain the international legal basis for U.S. actions and to engage in dialogue with other countries about them.  Obama Administration officials, in contrast, have been reticent about the international law basis for many U.S. actions, which is especially surprising given the Administration’s touted commitment to compliance with international law. Even the numerous speeches by Administration officials on the use of drones have all been delivered to audiences inside the United States and have been sparse in addressing international law.

One reason for the current silence with respect to the possible use of force against ISIL in Syria (and previously with respect to the possible use of force against the Assad regime) is that there is not a clear legal basis, given that the Assad regime has (apparently) not consented to the use of force in its territory. This will leave the Administration to cobble together — for either public consumption or its own internal legal analysis — a variety of international legal rationales, which (as Ashley explained) may include that ISIL is part of Al Qaida and therefore part of the U.S. armed conflict with al Qaida, or perhaps a co-belligerency theory, or perhaps collective self-defense. In my own view, although there is not an obvious international law basis, the Administration has legally available options to defend its actions. Ultimately, the Administration may choose not to articulate an international legal basis at all, and instead to cite a variety of factual “factors” that “justify” the use of force, as the Clinton Administration did for the Kosovo war.  But it would be much preferable for the Administration to provide legal reasons.

Lawfare Podcast, Episode #91: ISIS, ISIL, IS, AUMF

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Saturday, September 13, 2014 at 1:55 PM

This week’s episode: A roundtable discussion of the politics and law of congressional authorization and the military campaign against ISIS. Bobby, Wells, Foreign Policy magazine’s Shane Harris and I held an impromptu conference call yesterday afternoon to discuss the administration’s legal theory for the impending action, the prospects of a congressional vote on authorization, the War Powers Resolution, and other matters.

Reminder to podcast listeners: Please rate and review the Lawfare Podcast on Stitcher, iTunes, or whatever podcast service you use. It really helps us build audience.

The Week That Was: All of Lawfare in One Post

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Saturday, September 13, 2014 at 9:55 AM

Dominating Lawfare this week was President Obama’s Wednesday speech detailing his plans to “destroy” and “degrade” ISIS. Before the speech, our contributors speculated as to what kind of legal justifications the President would invoke to legitimize military engagement with the group. After it, they analyzed his choices and what kind of lasting legal impacts they could have.

On the Sunday before President Obama’s speech, Bobby speculated as to the significance of the 2001 AUMF if the President believes that Article II standing alone empowers him to militarily engage with the group.

Jack pointed out that the President released his seventh War Powers letter since June on Monday, which in his mind all but confirmed the theory that the administration intends to chop up the campaign against ISIS into short, discreet missions in order to avoid triggering Section 5(b). He also responded to Marty Lederman’s commentary on his earlier WPR-related posts.

On Monday, Bobby speculated on Iraq’s implications for the continuing relevance of the 2001 AUMF.

In the run-up to the speech, both the President and Congress appeared to be dancing around the issue of authorizing force against ISIS: the President seemed to want congressional approval, but wouldn’t ask, while Congress wanted him to ask, but didn’t promise that it would deliver. Ben had some advice: skip the high school two-step, and get down to business.

Ben also shared a video feed of Department of Homeland Security Secretary Jeh Johnson speaking at the Council on Foreign Relations.

In response to a Post story detecting possible administration attempts to invoke the 2002 Iraq AUMF as authorization against ISIS, Bobby questioned whether such an action was just a trial balloon or a serious legal strategy.

Cody provided four of the would-be ISIS AUMFs currently being considered in Congress, along with notes from their respective sponsors. He also alerted readers to an event titled, “The Future of Civilian Robotics,” which will be held at Brookings on Monday, September 15th at 2:00 PM. The event features a conversation on legal issues arising from advances in robotics, which will be held between John Villasenor, Gregory McNeal, and our very own Wells Bennett and Benjamin Wittes. He also flagged a draft of the U.S. resolution to the UN Security Council on foreign terrorist fighters.

Wells flagged a panel discussion entitled, “The Legal Basis for Striking ISIS,” to be hosted by the Heritage Foundation’s Cully Stimson and featuring Dechert’s Steve Bradbury and our own Bobby Chesney and Steve Vladeck. The panel is scheduled for September 25th.

Finally, Ben shared a video of the President’s address as well as the text of the speech.

After the speech concluded, Ben doubted the plausibility of using the 2001 AUMF as legal justification for going it alone against ISIS, especially since ISIS appears to have no association with Al-Qaeda. Wells agreed. Bobby assented as well, claiming that regardless of ISIS claims to be the “true inheritor” of bin Laden’s legacy,” the argument is “stunning from a legal perspective.”

Steve Vladeck was also surprised by the administration’s legal theory, but took issue with Bobby’s and Ben’s reactions, arguing they called for a similar open-ended authorization, which would be easily exploitable by the Executive. He also cautioned us to demand an elucidation of the necessary antecedents to the action the President described: “what, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense?”

Ashley Deeks also analyzed the legal justifications the Obama administration might employ to legitimate ISIS strikes in Syria. She examined the “Brennan approach” and pointed out that whether or not you find it plausible depends on whether or not you buy the argument that ISIS is al-Qaeda.

Jack linked to an essay he published in Time, where he noted the irony of how President Obama, initially an avowed war-powers constitutionalist, claimed to only “welcome” Congressional authorization, not “insist” on it.

He later clarified that his objection to the ISIS “AUMF gambit” is not because he believes it is illegal, but rather because the administration is stretching the AUMF “beyond all recognition.” And he then ruminated on a subsequent statement that the administration might also rely on the 2002 Iraq AUMF for authority in the current campaign.

Jack also noted that while U.S. Secretary of State John Kerry might think the word “war” is not the right terminology for the U.S.’s campaign against ISIS, if the administration is using the AUMF, they are engaged in “armed conflict,” the modern word for war.

In other news, Bobby noted that the DOD has a new website for the Proliferation Security Initiative, which concerns the legal architecture surrounding high seas interdiction of ships with possible WMD links. He also linked to a short piece he wrote on the PSI back in 2003.

Cody brought us the news that Jose Padilla, who was convicted in 2007 on several terrorism-related charges, was re-sentenced to 21 years, from 17.5 years before.

On Sunday, Matt Danzer tipped us off that the Department of Justice declassified two Office of Legal Counsel opinions by Jack Goldsmith from 2004. He later summarized the memos, which analyze the Bush-era surveillance program codenamed STELLAR WIND.

Over the past week, Bobby debated with Kevin Heller the domestic legal basis for the CIA’s drone strikes, with discussion centering on the definition of “traditional military activity,” and what Title 50’s “fifth function” actually means. The posts can be found here, here, and here.

Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured an interview with Orin Kerr, professor of law at George Washington University. The 33rd episode of the podcast focused on topics including, but not limited to, the NSA’s 215 program, the continuing debate over the right to be forgotten, and how a Hasidic child abuse trial has induced two significant privacy rulings in New York.

Bobby brought us another installment in the Transatlantic Dialogue series, this one featuring Sarah Cleveland, who co-directs the Project on Harmonizing Standards for Armed Conflict with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute. The Project seeks to analyze the extent to which the International Armed Conflict treaty regime can be applied, in a legal sense, to non-international armed conflicts.

Alex Ely contextualized the recent visit by U.S. officials to Moscow over alleged Russian violations of the Intermediate-Range Nuclear Forces Agreement (INF), arguing that the U.S. has had its own issues ratifying relevant arms control treaties.

Ben flagged a 1944 memo from Herbert Weschler, then the assistant attorney general of the U.S., on the government’s growing view of conspiracy as a war crime. He noted the striking similarity between that discussion and the current debate on the Bahlul case.

In honor of Friday’s session at the U.N. Human Rights Council on the right to privacy in the digital age, Ashley posted a draft of her forthcoming article on the subject.

Ben flagged the latest DNI Guantanamo detainee report on recidivism.

Paul Rosenzweig participated in a podcast for the Security Ledger focusing on the vulnerability of the Internet of Things. He also recommended a paper on the role of consequence in Fourth Amendment analysis by Scott Glick from the National Security Division of the Department of Justice.

Wells flagged a FISCR order on Friday that directed a declassification of the FISC’s 2008 opinion in In Re Directives. He later provided links to the released documents.

In this week’s Foreign Policy Essay, Carol R. Saivetz, a research affiliate in the Security Studies Program at MIT, contends that while the Kremlin’s quixotic “quest for Novorossiya” may shore up domestic support in the short-term, in the long-term, Russia’s economy, geopolitical standing, and control over its far-flung territories are all likely to suffer for the adventurism.

On Saturday, Cody brought us a Lawfare Podcast entitled, “The ISIL Threat – A National Counterterrorism Assessment,” featuring Bruce Reidel, Director of the Intelligence Project and Senior Fellow at Brookings, as the moderator and Matthew Olsen, Director of the National Counterterrorism Center, as the panelist. In this episode, Olsen detailed the structural factors underlying and limiting ISIL’s rise and also outlined the actions necessary to constrain its threat potential to the U.S. both domestically and internationally.

And that was the week that was.