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The Strange Case of Harold Koh at NYU

Tuesday, April 21, 2015 at 1:16 AM

I would normally lay off writing about the flap that has erupted at NYU over Harold Koh’s presence there. Academic politics don’t interest me much. Student protests interest me even less. And student protests based on false facts that, in turn, lead to academics piously leaping to the defense of one another’s virtues and students claiming intimidation . . . well, life is short.

But the controversy over Koh, which Politico also covered here and has sparked a lot of discussion over at Just Security, seems to me predicated on an amusing layering of nonsense that is worth stripping away—if only for the sake of clarity.

The first layer of nonsense is that, as the student protesters put it, Koh was “a key legal architect of the Obama Administration’s extrajudicial killing program during his time as State Department Legal Adviser.” No, he wasn’t. Those who have defended Koh have tended to stress that he was “a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.” They are being delicate: Koh was an obstructionist.

In fact, Koh fought tenaciously to limit drone strikes. He greatly irritated—sometimes infuriated—his counterparts in the interagency process with both his substantive legal positions and his frankly bullying style of engagement. The proper criticism of Koh is not that he was a shill for the drone program, though he did speak at ASIL on the subject. It is that he threw significant roadblocks in the way of the program and gummed up the works with policy objections masked as legal objections. Many people in government object to the the role Koh played while in office. I haven’t heard any of them complain, however, that he was an enabler.

The second layer of nonsense is that Koh is some kind of victim here of an academic culture that has trouble acknowledging the complexities of government service. Let’s be candid: Koh is reaping what he sowed. Nobody in academia was harder on those who, in the service of the prior administration, took positions with which Koh disagreed. Koh was not more careful with his own rhetoric than his student critics are with theirs about him. And since leaving government, he has, with what has become a laughable silliness, insisted that there are no contradictions between the positions he took prior to his service and the positions he took in office. The students are being ridiculous, but I have heard Koh himself sound more similar to than different from those who now oppress him.

The third layer of nonsense is the notion that students are facing “intimidation” or retaliation for their protest. The astonishing sense of entitlement on the part of a group of students to peddle false information and not be disagreed with or corrected—and to regard any expression of disagreement as intimidation—beggars belief. The students complain that Ryan Goodman wrote a letter suggesting that they not support the petition (“Due to the power imbalances between students and faculty, we find his request inappropriate.”). They are upset that the law school’s dean, Trevor Morrison, criticized the letter. This is not intimidation. It’s disputation.

I’m left finding that the public voice I most sympathize with in this conversation is that of John Yoo, who penned the following:

While I don’t agree with Harold on many issues, the protest strikes me as silly. A university should bring forth all points of view, even those — especially those — that students, alumni, and faculty do not like. How better could law students learn than from someone like Harold, whose role as a government lawyer may have run counter to his views as a legal scholar and activist? If there are students, faculty, and alumni who think Harold should be excluded from the NYU community, they may want to go to a university that cares more about protecting their feelings than improving their minds. But they will be worse off for it.

Another Response to Andrew McCarthy on the Corker Bill Iran Review

Monday, April 20, 2015 at 3:25 PM

Andrew McCarthy has a thoughtful response to my critique of his weekend column on the Corker Review bill.  I recommend it. We seem to have fewer disagreements than I thought. Rather than a lengthy a point-by-point response, let me just say this:

Yes, Obama’s aim is to permanently lift U.S. sanctions.  But that does not make the international deal he is pursuing a legally binding agreement, and it does not require Senate approval for the deal.  Such Senate approval is only necessary for (certain) agreements that are binding under international law, and this agreement with Iran is no such agreement.  I believe that McCarthy is confounding the deal’s aim to lift sanctions permanently with the deal’s status under international law.  The content of the deal will be an agreement to permanently lift sanctions if Iran meets compliance goals (that is the permanent part), but in form the deal is the functional equivalent of a handshake (that is the legally non-binding part).

More importantly, the Iran deal by itself, no matter what it says, cannot permanently lift U.S. statutory sanctions.  Only Congress can permanently change the sanctions regime.  Even if Obama agrees in the handshake deal to permanently reduce sanctions, he cannot follow through on that pledge by himself.  The most he can do on his own is to waive most of the statutory sanctions during his remaining term. Congress, and only Congress, can permanently lift sanctions.  Even the President understands and accepts this. As his Chief of Staff Denis McDonough recently wrote, “even if a deal is reached, only Congress can terminate the existing statutory sanctions.”

Finally, I agree with McCarthy that it is possible that Obama might try to “legalize” the non-binding deal via a UN Security Council Resolution.  I wrote about that possibility at length here.  The administration has strongly (but not definitively) suggested that it won’t do this, and such a course of action would indeed be a slap in Congress’s face.  But the important point is this: Even if the President tried to use the Security Council to impose an international law obligation on the United States to eliminate U.S. sanctions, the U.S. sanctions still could not be lifted without a congressional vote.  Congress has often ignored international law obligations (as the Constitution clearly allows it to do).  Being told by the United Nations to terminate U.S. sanctions would make it much less likely that Congress would actually vote to terminate the sanctions.  That reason, among others, is why I do not expect the Obama administration to try this ploy.

Great New Podcast Series by Juliette Kayyem

Monday, April 20, 2015 at 2:29 PM

My friend and colleague Juliette Kayyem – Assistant Secretary for Intergovernmental Affairs in DHS, and before that the Undersecretary for Homeland Security in Massachusetts – has a great new podcast series called “Security Mom.”   Juliette describes the motivation for the series as follows:

Our national dialogue about security can feel like a foreign language: distant and confusing, not to mention scary. I started this podcast to bring the conversation back home.  On each episode, you’ll hear me talking with someone in the often inaccessible security world — just my colleagues and friends, many of them fellow parents. We’ll discuss in a very unclassified fashion what we can do to keep our country, and each other, safe — and how we can better equip ourselves for when we can’t. We’ll just tell stories about what we know and what you should know…. I’d love to hear from you as the podcast develops. What are the issues you’re thinking about? How do you prepare your family for the unexpected? I hope you’ll tune in and continue the conversation!

The first episode centers on a discussion with former Boston Police Commissioner Ed Davis about the Boston Marathon bombings two years ago. Highly recommended.

Latest Episode of “Rational Security”

Monday, April 20, 2015 at 1:51 PM

Rational Security” was delayed last week, but the special “Crusader Airstrikes Edition” is now out. You can subscribe to Rational Security using our RSS feed, on iTunes, or on Stitcher. Enjoy!

Wall Street Journal Essay Adapted from “The Future of Violence”

By and
Monday, April 20, 2015 at 1:44 PM

The Wall Street Journal over the weekend ran this essay adapted from our new book, The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. It opens,

You walk into your shower and see a spider. You don’t know whether it is venomous—or whether it is even a real spider. It could be a personal surveillance mini-drone set loose by your nosy next-door neighbor, who may be monitoring the tiny octopod robot from her iPhone 12. A more menacing possibility: Your business competitor has sent a robotic attack spider, bought from a bankrupt military contractor, to take you out. Your assassin, who is vacationing in Provence, will direct the spider to shoot an infinitesimal needle containing a lethal dose of poison into your left leg—and then self-destruct.

Meanwhile, across town, an anarchist molecular-biology graduate student is secretly working to re-create the smallpox virus, using ordinary laboratory tools and gene-splicing equipment available online. Not content to merely revive an extinct virus to which the general population has no immunity, he uses public-source academic research to make it more lethal. Then he infects himself and, just as his symptoms start, strolls around the airport to infect as many people as he can.

These scenarios may sound fantastical, but they are neither especially improbable nor particularly futuristic. Insect-size drones are busily being developed throughout the defense establishment, in academic facilities and by private firms. Slightly larger drones are widely available for purchase on the open market, some already rigged with cameras. Making such drones lethal is just the next step, and it isn’t that complicated.

As for our anarchist molecular biologist, the National Science Advisory Board for Biosecurity said back in 2006 that the “technology for synthesizing DNA is readily accessible, straightforward and a fundamental tool used in current biological research.” That was a lifetime ago in scientific terms.

The technological platforms associated with robotics, genetics and synthetic biology are enriching every facet of our society. But as President Barack Obama recently lamented about cybersecurity, “one of the great paradoxes of our time” is that “the very technologies that empower us to do great good can also be used to undermine us and inflict great harm.”

More Arrests of Americans Attempting to Fight for ISIL in Syria

Monday, April 20, 2015 at 1:30 PM

Six Somali-American men from the Minneapolis area have been arrested on material support charges, based on allegations that they were attempting to travel to Syria to join ISIL. The complaint and corresponding FBI affidavit are posted here. Note that the complaint is a handy case study in the variety of investigative techniques that FBI might employ in a case of this kind, with examples including open-source review of a suspect’s Twitter and Facebook accounts, use of a CHS (“Confidential Human Source”) who previously had been part of this same material support conspiracy, review of call records to establish connections among the defendants, review of bank records, use of video footage recorded in public places, and review of instant messages exchanged via Kik (a footnote on p. 9 of the affidavit notes that Kik “does not maintain records of user conversations”).

Today’s Headlines and Commentary

Monday, April 20, 2015 at 10:41 AM

The Islamic State released a video on Sunday in which militants from the extremist group are seen killing a group of Ethiopian Christians. The video originated in Libya, and the group of Ethiopian Christians were likely trying to reach Europe. Reuters has the details.

The video was released just one day after IS claimed responsibility for a suicide bombing in Jalalabad, Afghanistan that killed at least 35 people. The attack was carried out in front of bank in a crowded part of the city and, according to Time, wounded more than 100 people.

In light of the heightened threat the Islamic State poses to Afghan security, President Ashraf Ghani has turned to his neighbor to the west–Iran–to build a security cooperation agreement against the Islamic State. Agence France-Presse reports that the new collation could include joint military operations. Iranian President Rouhani said: “We need intelligence sharing and, if necessary, cooperation in operations because the problems that exist are not restricted and gradually spread throughout the region, affecting everyone.”

Iran has also reached across the globe to build an IS-fighting coalition with Australia. Al Jazeera explains that Australian Foreign Minister Julie Bishop announced a new relationship between Australian and Iran during her visit to Iran, the first in a decade by an Australian official.

The International Business Times tells us that Sunday at least six people were arrested in Minneapolis and San Diego on suspicion of supporting ISIS. The U.S. Attorney for the District of Minnesota, Andrew Luger, stated that those arrested did not pose a “threat to public safety,” but refused to disclose further details. A press conference is scheduled for later today.

As a deal for the sale of U.S.-made predator drones to the United Arab Emirates approaches final approval, the New York Times takes a look at the historic practice of American companies selling arms to Arab nations. With sectarian violence, terrorist activity, and proxy wars in the Middle East continuing to define the region, the demand for American “military hardware” is in higher demand than ever before. The Times explains:” The result is a boom for American defense contractors looking for foreign business in an era of shrinking Pentagon budgets — but also the prospect of a dangerous new arms race in a region where the map of alliances has been sharply redrawn.”

The United States and the Philippines today launched a 10-day war games military exercise, the two countries’ largest combined military operation in fifteen years. Reuters explains that the “Balikatan” (meaning shoulder-to-shoulder) exercise is twice as large as last year’s equivalent, and comes in the face of China’s reclamation and island-building activities in the South China Sea.

Shane Harris has written a piece in the Daily Beast analyzing Pentagon general counsel Stephen Preston’s recent remarks at the American Society for International Law. Harris argues that Preston’s words are in tension with some of President Obama’s declarations in December 2014 announcing that the U.S. combat mission in Afghanistan is over. Jack also commented on Preston’s speech on Friday.

The Wall Street Journal is host to an online text-only debate on the topic “should law enforcement have the ability to access encrypted communications?Lawfare’s Carrie Cordero defends the idea, while Marc Zwillinger stands firmly against.

Meanwhile, Agence France-Press sat with the new privacy and security chief at Google, Gerhard Eschelbeck, who is a big proponent of encrypting users’ data.

ICYMI: This Weekend, on Lawfare

Daniel Byman and Jennifer Williams penned this week’s Foreign Policy Essay, discussing the future of Al Qaeda in the Arabian Peninsula (AQAP).

Jack delved into Andrew McCarthy’s criticisms of Senator Corker’s Iran Review Bill, arguing that McCarthy’s criticisms are, generously put, misguided.

In our most recent podcast episode, we highlighted Deputy Secretary of State Antony Blinken’s recent visit to Brookings, discussion the current priorities and future prospects for U.S. engagement in Central Asia.

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.

Keeping Track of the US Intelligence Community’s Leakers

Monday, April 20, 2015 at 8:13 AM

It’s getting hard to keep track of the U.S. intelligence community leakers without a scorecard. So here’s my attempt:

    • Leaker #1: Chelsea Manning.
    • Leaker #2: Edward Snowden.
    • Leaker #3: The person who leaked secret documents to Jake Appelbaum, Laura Poitras and others in Germany: the Angela Merkel surveillance story, the TAO catalog, the X-KEYSCORE rules. My guess is that this is either an NSA employee or contractor working in Germany, or someone from German intelligence who has access to NSA documents. Snowden has said that he is not the source for the Merkel story, and Greenwald has confirmed that the Snowden documents are not the source for the X-KEYSCORE rules. This might be the “high-ranking NSA employee in Germany” from this story — or maybe that’s someone else entirely.
    • Leaker #4: “A source in the intelligence community,” according to the Intercept, who leaked information about the Terrorist Screening Database, the “second leaker” from the movie Citizen Four. Greenwald promises a lot from him: “Snowden, at a meeting with Greenwald in Moscow, expresses surprise at the level of information apparently coming from this new source. Greenwald, fearing he will be overheard, writes the details on scraps of paper.” We have seen nothing since, though. This is probably the leaker the FBI identified, although we have heard nothing further about that, either.
    • Leaker #5: Someone who is leaking CIA documents.
    • Leaker #6: The person who leaked secret information about WTO spying to The Intercept and the New Zealand Herald. This isn’t Snowden; The Intercept is very careful to identify him as the source when it writes about the documents he provided. Neither publication gives any indication of how it was obtained. This might be Leaker #3, since it contains XKEYSCORE rules.
    • Leaker #7: The person who just leaked secret information about the U.S. drone program to The Intercept and Speigel. This also might be Leaker #3, since there is a Germany connection. According to The Intercept: “The slides were provided by a source with knowledge of the U.S. government’s drone program who declined to be identified because of fears of retribution.” That implies someone new.

Am I missing anyone?

Harvard Law School professor Yochai Benkler has written an excellent law-review article on the need for a whistleblower defense. And there’s this excellent article by David Pozen on why government leaks are, in general, a good thing. I wrote about the value of whistleblowers in Data and Goliath.

Way back in June 2013, Glenn Greenwald said that “courage is contagious.” He seems to be correct.

The Week That Will Be

Monday, April 20, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, April 20th at 9:30 am: At the U.S. Institute of Peace, a coalition of eight think thanks will join together for the fourth Iran Forum to discuss the Politics of a Nuclear Deal: Former U.S. & Iranian Officials Debate. Speakers will include Stephen Hadley, Ali-Akbar Mousavi, Jim Slattery, Howard Berman, and Michael Singh. RSVP.

Tuesday, April 21st at 9:30 am: Following the December 2014 terror attack on a school in Peshawar, the Pakistan government introduced a new National Action Plan (NAP) to address terrorism. In light of these new changes, the Carnegie Endowment for International Peace will host Samina Ahmed, Mark L. Schneider and Frederic Grare for a conversation on the New Counterterrorism Strategies in Pakistan. Register here.

Wednesday, April 22nd at 10 am: The House Committee on Foreign Affairs will hold a hearing entitled Nuclear Agreement with Iran: Can’t trust, Can We Verify? Charles Duelfer, Stephen G. Rademaker, and David Albright will testify. For more information, visit the committee website.

Friday, April 24th at 10 am: The Brookings Institution will host a discussion on an Overlooked Crisis: Humanitarian Consequences of the Conflict in Libya. Panelist will include Megan Bradley, Kais Darragi, and Shelly Pitterman. Elizabeth Ferris will moderate the conversation. Register to attend with Brookings.


Employment Announcements (More details on the Job Board)

Deputy Chief 

ORGANIZATION:                          Department of Justice

SALARY RANGE: $126,245 – $158,700
DEADLINE: April 6, 2015
DUTY LOCATIONS: Washington, D.C.


Job Summary:

The National Security Division of the Department of Justice seeks a Deputy Chief for its Counterespionage Section, focused on cases involving the illegal export of military and strategic commodities and related issues.

Under the direction of the Chief, the Deputy Chief will be responsible for providing legal advice to federal prosecutors concerning federal statutes relating to U.S. export control and sanctions laws. 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 federal statutes;
  • plan, supervise, administer, and review the work of staff attorneys and supporting personnel as required to fulfill the section’s responsibilities;
  • provide strong support for the U.S. Attorneys, including assistance in the design of strategic investigative and prospective models, dissemination of successful enforcement strategies, and sharing of intelligence and tactics;
  • coordinate the formation of response teams of experienced prosecutors to assist in the design of investigations and the prosecution of cases;
  • coordinate cases and provide legal advice, 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;
  • draft and coordinate motions filed under the Classified Information Procedures Act;
  • help to implement strategic priorities of the National Security Division relating to the enforcement of U.S. export control and sanctions laws;
  • 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 export control and economic sanctions, issues;
  • participate in national-level policy development for export control reform initiative; and
  • prepare testimony and briefings 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.


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.

How to Apply: 

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
[email protected]


Legal Intern

ORGANIZATION: International Committee on the Red Cross (ICRC)

DEPARTMENT: International Humanitarian Law (IHL)



Intern – International Humanitarian Law

OBJECTIVE:  The Intern in the IHL Department at the Washington Regional Delegation of the International Committee of the Red Cross (ICRC) provides research and writing on topics of IHL, other branches of international law, and U.S. law as needed, thus contributing to the thematic and operational priorities of the legal team. 

Minimum required knowledge & experience:

  • Basic knowledge of IHL and a related legal field (e.g. National Security or Human Rights Law).
  • Excellent oral and written English skills, good understanding of French an asset
  • Currently pursuing a U.S. J.D. or LLM degree (or JD graduate pursuing another graduate degree)
  • Applicants must be U.S. citizens or legal permanent residents


Main Responsibilities

Work with the IHL team to provide legal advice to the delegation in Washington, and to the ICRC as a whole on matters of IHL, human rights law, national security law, or other U.S. legal issues.  

  1. Research and Writing. Research such topics as scope of application of IHL, detention, conduct of hostilities, cyber/new technology and weapons, and other related topics. Possibility of authoring articles or other short pieces for the ICRC’s U.S. blog (
  1. Monitor Legal Developments Regular monitoring of legal blogs and news coverage to identify significant legal developments of interest to the delegation. In addition to research, the intern will attend conferences and meetings in order to monitor developments on specific legal issues on behalf of the legal team. 
  1. Regular and timely reporting and analysis on meetings and events attended, as well as a weekly report on any relevant legal developments reported in external sources such as legal blogs. Reports are written for the purpose of ensuring the institution is informed of developments in U.S. policy, as well as to advance its thinking on key issues.   

Management and Reporting Line. The IHL Intern reports directly to the IHL Legal Advisor.  He/she is expected to collaborate with colleagues throughout the delegation in order to carry out these and other reasonably related duties.

The intern will be expected to work 30 hours a week for the months of July and August.  This is a paid internship.  For information about the position, please contact Andrea Harrison at [email protected].  To apply, please send CV and optional cover letter to Clare Taylor at [email protected]  Applications are due May 15th, 2015.

The Foreign Policy Essay: AQAP at a Crossroads

By and
Sunday, April 19, 2015 at 10:00 AM

The civil war in Yemen and Saudi-led intervention against the Houthi rebels there have undermined efforts to negotiate a political settlement and are making the country’s already-disastrous humanitarian situation even worse. The chaos, however, seems to have produced one clear winner: Al Qaeda in the Arabian Peninsula (AQAP), the Al Qaeda affiliate with the closest relationship to Al Qaeda leader Ayman al-Zawahiri and the one U.S. officials have long labeled the most dangerous offshoot of the core organization.

AQAP is at a crossroads. The civil war and Saudi intervention offer it many opportunities, but they also pose many pitfalls and could dramatically reorient the organization in ways it has long sought to avoid.

What separates AQAP from other Al Qaeda affiliates is its willingness to strike outside Yemen and the regional theater. Since the group formed in 2009, most of its attacks have focused on the Yemeni government. However, U.S. officials have tied it to sophisticated attempts to bomb U.S. airliners in 2009 and 2010, and the group produces Inspire, a stylish English-language online magazine that regularly features anti-Western propaganda, including calls for lone wolves to attack in the United States and instructions for how to make or acquire the weapons to do so. AQAP also took credit for the Charlie Hebdo killings in Paris, and the attackers trained with the group in Yemen. The group appeared to suffer setbacks in 2012 when Yemeni government forces under President Abdu Rabbo Mansour Hadi, who had recently taken power from Ali Abdullah Saleh, retook several cities and other areas that had served as AQAP strongholds. Similarly, an active U.S. drone campaign kept the group on the run.

Now that Hadi’s government has fallen and civil war has engulfed much of the country, counterterrorism efforts against AQAP have eased. U.S. officials rightly fear that the group will enjoy greater freedom of action: Adam Schiff, the ranking Democrat on the House Intelligence Committee, warned recently that “the pressure has been taken off AQAP.” As The Washington Post reported, the United States pulled its military and intelligence personnel from the country as violence escalated, and our Yemeni counterterrorism partners are now in disarray. The unrelenting torrent of drone strikes that wreaked havoc on the group’s ability to operate has now dwindled to a slow trickle: Reuters reports that the strike last Sunday that killed a top AQAP cleric “was the first reported drone strike against the powerful Yemeni branch of the global militant group since the United States evacuated about 100 special forces troops advising Yemeni forces last month.”

AQAP is making the most of the reversal of fortune. Earlier this month, AQAP conducted a massive prison break freeing many fighters and at least one senior leader, and subsequently took control of the city of Mukalla where the prison is located. The group seized control of the checkpoints at all five entrances to the city as well as the governor’s palace, the central bank, a military base, and several other key local government facilities. This past Thursday, AQAP struck again, taking control of a major airport, the region’s main military base, and an oil terminal on the coast of the Arabian Sea. And on Friday, the group reportedly captured a massive weapons depot, seizing dozens of tanks, Katyusha rocket launchers, and small arms from Yemeni government forces.

But it’s not necessarily springtime for AQAP. The group is now operating amidst an all-out civil war. Although we think of civil wars providing a safe haven for terrorists, in reality war zones are dangerous for terrorists as well as civilians. The warring factions are armed and large, and it will be hard for AQAP to stay neutral, as it must protect its supporters and guard its own areas of operations. Perhaps the biggest challenge for AQAP is the growth of the Islamic State and its potential influence among Yemeni jihadis. How much support the Islamic State enjoys in Yemen is unclear, but the movement’s prominent role in Iraq and Syria and impressive propaganda have excited jihadists around the world, while its embrace of sectarianism seems well-suited for the anti-Houthi struggle in Yemen. Houthis are Shi`i Muslims of the Zaydi sect. Although the Zaydis are often seen as doctrinally closer to Sunni Islam than the Twelver Shi`ism of Iran, in today’s environment no one seems to care. In March, the Islamic State bombed Zaydi mosques in Yemen, helping transform the civil war into a broader sectarian conflict. This challenge will put pressure on AQAP to join the sectarian struggle against the Houthi “apostates” or risk been seen as irrelevant.

However, the influence of Ayman al-Zawahiri may constrain AQAP from engaging in Islamic State-style sectarian attacks and extreme violence, as has been the case with Jabhat al-Nusra, Al Qaeda’s official affiliate in the Syrian civil war. Zawahiri has long urged his affiliates to avoid attacks against Shi`i Muslims and the brutal treatment of civilians in areas under the jihadists’ control—indeed, it was partly his disapproval of such tactics that led him to disavow the Islamic State. And despite the fierce competition between the Islamic State and Jabhat al-Nusra for recruits and resources in Syria, thus far Jabhat al-Nusra has resisted the temptation to up the ante against the Shi`a and the civilian population. If AQAP chooses to go this route in Yemen—and its statement emphatically denying involvement in the bombing of the Zaydi mosques by the Islamic State and expressly stating that AQAP remains “committed to the guidelines of Sheikh Ayman al-Zawahiri” suggests for now it will—it may find itself struggling to attract new recruits and to prevent its current members from defecting to the more sectarian—and therefore more compelling—Islamic State. On the other hand, AQAP could see its support among the Yemeni people increase as the Islamic State’s savagery begins to make AQAP look like the “good guys” (or at least the “slightly less bad guys”).

AQAP may even end up fighting the Islamic State and its sympathizers in Yemen, as we saw in Syria when the rivalry between Jabhat al-Nusra and the Islamic State exploded into a bloody internecine battle that killed hundreds of fighters on both sides. Historically, such competition between terrorist groups often produces extreme violence, as each group tries to outdo its rivals—and it’s hard to be more violent than the Islamic State. The Charlie Hebdo attacks can be seen in this light, as an attempt by Al Qaeda and its supporters to stay relevant in the competition for leadership of the global jihadist movement. The recent successes of AQAP, along with the gains made in Syria by Jabhat al-Nusra, had led some analysts to declare that, at the moment, “Al Qaeda is beating the Islamic State.”

One key uncertainty is Saudi policy. On the one hand, Saudi Arabia opposes Al Qaeda in general and AQAP in particular, as the latter has targeted Saudi security forces and in 2009 even tried to kill Prince Mohammad bin Nayef, who is now in charge of Saudi military operations in Yemen. On the other hand, Saudi Arabia has a history of working with Salafi-jihadist groups and may believe they are the lesser of two evils in the war against the Houthis, whom the Saudis believe are puppets of Tehran, the leading Shi`i power. Tehran has been arming and otherwise assisting the Houthis, but the scale of Iranian involvement remains opaque. The temptation to aid all the Houthis’ enemies, no matter how nasty, will grow should Saudi military operations stagnate.

It is unclear how AQAP is prioritizing its enemy list. It condemned the Islamic State’s bombing of the Zaydi mosques, but not the Saudi intervention. Trying to sit out the civil war is likely to prove impossible, but entering the fray is both politically and militarily risky.

U.S. policy too is in disarray. Our hoped-for Yemeni partners over the years—first Saleh and then his successor Hadi—no longer wield even partial control over the country. The Saudi intervention may push back the Houthis, but that may give AQAP and other jihadists even more freedom of operation. Even worse, the Saudi intervention might fail, trapping Riyadh and other regional allies in a quagmire and increasing pressure on the United States to play a greater role in the no-win situation that is Yemen.

Andrew McCarthy’s Distortion of the Corker Bill (and the Constitution)

Saturday, April 18, 2015 at 5:40 PM

Andrew McCarthy, like the New York Times, doesn’t like Senator Corker’s Iran Review bill.  But in contrast to the NYT’s argument that the bill “inappropriately diminishe[s] the president’s power” (a view I criticized here), McCarthy today argues that the bill inappropriately enhances the president’s power.  This represents a pretty large reversal of constitutional positions for McCarthy (as I explain below).  But in any event, his arguments – about the Corker bill, and the Constitution – are flawed.

Here is how the Corker Bill works.  Congress has an array of statutory sanctions in place against Iran.  These sanctions give the President the discretion to lift sanctions in various circumstances.  President Obama is working toward a legally non-binding deal (i.e. not binding under international law) in which he would exercise this discretion to lift sanctions in return for nuclear reform in Iran.  Congress isn’t sure it agrees with how the President plans to exercise the waiver discretion it gave him.  Enter the Corker Bill. It prohibits the President from exercising his waiver authority for a period (30-82 days, depending on the timing of the delivery of the agreement) while Congress reviews the deal.  If during the review period Congress approves the Iran deal or does nothing, then the President can proceed with his pre-existing statutory authority to waive sanctions.  If Congress enacts “a joint resolution stating in substance that the Congress does not favor the agreement,” then the President cannot waive sanctions against Iran.  Such a joint resolution of disapproval would almost certainly need to override President Obama’s veto.  But that is true independent of the Corker Bill.  As things stand today, the only way for Congress to prevent the President from waiving statutory sanctions against Iran is to pass a law over his veto that withdraws the waiver authority it gave him in the past.  All the Corker Bill does is to freeze the President’s waiver authority for 30-42 days so that Congress can determine if it wants to (and has the votes to) remove the President’s waiver authority.

Turning to McCarthy’s arguments, he states:

The Constitution] does not empower the president to make binding agreements with foreign countries all on his own. … [T]he Constitution mandates that no international agreement can be binding unless it achieves either of two forms of congressional endorsement: a) super-majority approval by two-thirds of the Senate (i.e., 67 aye votes), or b) enactment through the normal legislative process, meaning passage by both chambers under their burdensome rules, then signature by the president.

Not so.  The Constitution permits some binding agreements as pure executive agreements.  The famous ones that the Supreme Court has upheld are the Litvinov agreement (upheld in Pink and Belmont) and the Algiers Accord (indirectly upheld in Dames & Moore).  There are scores of other legally binding pure executive agreements going back to the Founding.  McCarthy might claim that, despite long practice and Supreme Court imprimatur, pure executive agreements are not part of the “real” Constitution.  But a similar argument would apply to congressional-executive agreements that he seems to think are legitimate.  More significantly, the agreement the President is negotiating with Iran is by design not legally binding under international law and thus does not even implicate the domestic constitutional framework for approving binding international agreements.

Beginning from the mistaken assumption that the Constitution puts up a “roadblock” to legally binding international agreements unless they are approved by the first branch, McCarthy says that “the Corker bill is a ploy to circumvent this constitutional roadblock.”  His main argument:

Once the deal is submitted, Congress would have 60 days (or perhaps as few as 30 days) to act. If within that period both houses of Congress failed to enact a resolution of disapproval, the agreement would be deemed legally binding — meaning that the sanctions the Iranian regime is chafing under would be lifted.

Several problems here.  One is that under the Corker Bill, a congressional failure to act during the review period would not make the Obama deal with Iran “legally binding” in any sense.  As just noted, the actual deal with Iran is a non-binding agreement that under long historical precedent Congress need not approve.  Another problem is that while a congressional failure to enact a resolution of disapproval would result in the President lifting the Iran sanctions, the President’s authority to lift sanctions would not be a result of the Corker Bill.  Rather, the President’s authority to lift sanctions would be based on prior sanctions legislation that was widely supported by Republicans.  McCarthy is enraged because under the Corker Bill, it takes a veto-proof super-majority in Congress to stop President Obama from lifting sanctions.  But that requirement does not originate in the Corker Bill.  That requirement originates in the underlying sanctions regime that predated the Corker Bill.  If there were no Corker Bill, Congress would still need a veto-proof majority to stop the President from lifting sanctions as part of the Iran deal.

I can summarize my points by responding to McCarthy’s summary of his points.  McCarthy says:

To summarize, the Constitution puts the onus on the president to find 67 Senate votes to approve an international agreement, making it virtually impossible to ratify an ill-advised deal. The Corker bill puts the onus on Congress to muster 67 votes to block an agreement.

Under the Constitution, Obama’s Iran deal would not have a prayer. Under the Corker bill, it would sail through. And once again, it would be Republicans first ensuring that self-destruction is imposed on us, then striking the pose of dogged opponents by casting futile nay votes.

This is not how our system works. Congress is supposed to make the laws we live under. It is the first branch of government, not a rubber-stamping Supreme Soviet.

A summary of my response:

No, the Constitution does not require the President to find 67 votes to approve an international agreement.  That is true only of treaties under domestic law, which this deal is not.  The deal with Iran does not require any approval by Congress or the Senate.

No, the Corker bill does not put the onus on Congress to muster 67 votes to block the Iran agreement.  The onus for a super-majority to stop the President from lifting the sanctions as part of the Iran deal results from the sanctions legislation Congress put in place prior to the Corker bill.  If the Corker bill is not enacted, Congress would still need a veto-overriding super-majority to stop the President from waiving sanctions.

Yes, “Congress is supposed to make the laws we live under.”  The scheme that McCarthy does not like is a result of sanctions laws that Congress (with significant republican support) enacted over many years and that we are now living under.  It is not a result of the Corker Bill.

A final note: Both McCarthy and President Obama have traveled a long distance on the President’s power related to Iran sanctions.  In 2007, Senator Barack Obama proposed legislation on Iran sanctions that, among other things, would have removed (in McCarthy’s words) “the power of the president to waive penalties against countries that run afoul of our ‘prohibition’ against trade with Iran.”  Obama justified his proposed sanctions law on the need to “ratchet up the pressure on the Iranian regime.”  McCarthy opposed the Bill because he thought that withdrawal of presidential discretion to remove sanctions, and indeed any congressional restrictions on presidential discretion over sanctions, were unconstitutional.  McCarthy argued:

Under the Constitution the president’s control of foreign policy is plenary. …  In the famous Curtiss-Wright case of 1936, the Supreme Court acknowledges the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of foreign relations.” Congress can’t tell the President to penalize or not penalize a country that trades with Iran.  Let’s say Sarkozy says to Bush, “Gee, we’d love to help you on Darfur, but too bad about those Iran penalties, n’est-ce pas?” It’s the president’s job … to decide how we should deal with other countries — to decide whether it’s more important to get an ally’s cooperation on Darfur or Afghanistan or whatever than to collect a few bucks from one of its corporations that does business with the mullahs. The reason the Framers designed things that way is because, under the Articles of Confederation, they bore witness to the disaster that is foreign policy by committee.

McCarthy has been admirably consistent in his long-time opposition to any accommodation with Iran, and for what it is worth I lean in that direction.  Eight years ago this support led him to make a robust argument for plenary presidential control over sanctions (including sanctions relief) and to chastise Congress for purporting to do anything that impacted this presidential power in this context.  Today he argues the opposite: That Barack Obama’s attempt to exercise his delegated authority to waive sanctions is unconstitutional unless and until Congress approves.  I don’t think either constitutional argument is right, but in any event McCarthy cannot have it both ways.

The Lawfare Podcast: Antony Blinken on The Future of Central Asia

Saturday, April 18, 2015 at 1:55 PM

A few weeks ago, Deputy Secretary of State Antony Blinken visited Brookings for a public address on the current priorities and future prospects for U.S. engagement in Central Asia. With the draw-down in Afghanistan on the horizon, Mr. Blinken makes clear that the United States is not relinquishing its interests in the region. Blinken stresses that the security of the United States is enhanced by a more secure Central Asia, and a stable Central Asia is most likely if the nations there are sovereign and independent countries, connected with one another, and fully capable of defending their own borders. He concludes that investing in connectivity can spur commerce from Istanbul to Shanghai while serving as a stabilizing force for Afghanistan’s transition.

Senior Fellow Fiona Hill introduced Mr. Blinken, and Brookings President Strobe Talbot moderated the conversation.

You can watch the full address below:

The Week that Was: All of Lawfare in One Post

Saturday, April 18, 2015 at 9:09 AM

Before we go any further, let’s take a moment to remember that the moment we’ve all been waiting for will soon be upon us. On the evening of May 7, the folks behind the Lawfare Podcast, the Rational Security Podcast, and the Steptoe Cyberlaw Podcast will be at the Washington Firehouse for a live-taping extravaganza. Come have a beer, watch your favorite podcast personalities in the act, and support Lawfare! Get your tickets here.

On Tuesday, the Senate Foreign Relations Committee unanimously passed the Iran Nuclear Agreement Review Act of 2015. Yishai detailed several attempts by Democratic senators on the committee to water down the bill prior to its passage. These amendments, he explained, were actually “a full-fledged assault on the bill’s entire purpose.” Indeed, by Yishai’s calculation, the proposed amendments would effectively allow the president to implement a nuclear deal with Iran immediately and unilaterally.

Nonetheless, the Act passed out of committee without these amendments and President Obama, perhaps satisfied with the compromises contained therein or perhaps unwilling to risk a veto override, indicated that he would sign the bill. While Republican legislators were quick to crow about the administration’s supposed capitulation, Yishai posited that, in some regards, the administration may be perfectly happy with the outcome of all this legislative deliberation. Not only does the bill essentially recognize the president’s authority to roll back sanctions “wholesale”—in contrast to what some commentators believe was the waiver authority’s original purpose—it also has diverted attention away from the Kirk-Menendez sanctions bill that was picking up steam and threatening negotiations just a couple of months ago. The Obama administration, then, might be “quite pleased” with the Iran review bill.

The New York Times editorial board, however, was emphatically not pleased with it. In an editorial this week, the paper called the Act “reckless.” But in their criticism of the bill, Jack noted, the authors made several key errors regarding it. Among other errors, he pointed out that the bill does not, as the Times claimed, require Congress to vote on a nuclear agreement; rather, it allows Congress to review the deal and, if it wishes, enact a joint resolution blocking the waiver of sanctions. This, and other errors and mischaracterizations throughout the piece, Jack said, make the editorial both factually inaccurate and misleading.

Bobby put forth some of the legal issues raised by the United States’s provision of aid to the Saudi air campaign in Yemen. In terms of international law, the fact that U.S. assistance to Saudi Arabia probably qualifies as the use of force raises the question of whether or not the United States can claim Yemeni consent for this use of force. Domestically, the question becomes under what authority is the United States’s use of force justified. The AUMF almost certainly doesn’t stretch to the Houthi rebels, and both Title 50 covert action authority and Title 10 spending authority likewise can’t encompass U.S. assistance activities. That leaves Article II authority, which is by no means rock solid.

Another country considering what role to play in the Yemeni conflict is Pakistan. In this week’s Foreign Policy Essay, C. Christine Fair and Ali Hamza argued that Pakistan’s decision on its involvement in Yemen could depend on a Pakistani terrorist group: Jamaat-ud-Dawa. JuD, a long-time collaborator with the Pakistani military and intelligence service, has mounted a domestic messaging campaign advocating Pakistani support for Saudi Arabia. The success of the messaging effort will have a significant impact on Pakistan’s involvement in Yemen.

On Monday, the New York Times ran a story describing the internal deliberations in the Obama administration over whether to capture or kill a terrorism suspect with U.S. nationality who is now facing charges in federal court. Ben pulled out some interesting points made in the story and compared the particulars of this case to those in the case of Anwar al-Awlaki.

Drone strikes were also the topic of a new report released this week by the Open Society Justice Initiative. The report, which Cody linked us to, is called “Death By Drone,” and uses nine case studies to determine how closely the Obama administration hews to President Obama’s promise that, before he decides to authorize a drone strike, “there must be near-certainty that no civilians will be killed or injured.” The report finds that there are serious questions about how closely the administration follows that directive, and offers several recommendations for reform.

Herb Lin discussed the low rate at which the FISA Court rejects requests made by the Justice Department. Critics of government surveillance use this extremely low rate as proof that the FISC is merely a rubber stamp for the government; government advocates, on the other hand, argue that the rate is due to the diligence with which government lawyers prepare their requests. Herb walked a line somewhere in between these poles, noting in an update to his post that about a quarter of applications end up being substantially altered. This figure lent some credence to Herb’s point that perhaps interaction between government lawyers and court staff can help explain the high rate of acceptance.

Herb also showed us an NSA document from back in 2000 that, among other things, indicates a belief on behalf of the NSA that it hadn’t lost the crypto wars. Given what we now know, Herb adds, that view wasn’t entirely unjustified.

Ben brought us the news that, according to House Majority Leader Kevin McCarthy (R-CA), the Obama administration’s proposed AUMF for ISIS is dead. Ben also noted that Congress’s failure to pass this, or any other, AUMF “arguably constitutes acquiescence to [the President’s] broad claim of authority under the 2001 AUMF.” The 2001 AUMF, then, lives on.

Stephen Preston, the Defense Department’s General Counsel, seemed to acknowledge as much in a speech last Friday, Jack wrote. Indeed, by Jack’s interpretation of Preston’s remarks, the administration has stopped its (never particularly strong) efforts to repeal the 2001 AUMF. This interpretation is perhaps most clearly indicated by Preston’s line remark that the administration wants “to tailor the authorities granted by the AUMF to better fit the current fight and the strategy going forward.” That “tailoring,” Jack noted, is a refinement of the 2001 AUMF, not a repeal of it.

Paul Rosenzweig pointed us to a new paper he’s published with Michael Chertoff called “A Primer on Globally Harmonizing Internet Jurisdiction and Regulations.” The paper identifies trends that, if left unchecked, could result in the “legal fracturing of the World Wide Web.” The authors conclude that “multilateral agreement on a choice-of-law framework” is crucial to ensuring the stable growth of the Internet.

Greg Nojeim argued that the House Homeland Security Committee’s recently-marked-up National Cybersecurity Protection Act is a missed opportunity. The bill lets companies share cybersecurity threat indicators “notwithstanding any law.” That formulation, Nojeim said, is part of the problem; the other part is the bill’s reliance on an excessively broad definition of “cybersecurity incident.” The result is that the bill allows companies to share information unrelated to “cybersecurity purposes” as we would normally conceive of them. Consequently, companies and the government can use that information to investigate minor drug crimes and car theft. “That makes the legislation, intended to be a cybersecurity bill, look much more like a cyber-surveillance bill.”

Julius Taranto reviewed Tricia Jenkins’s new book, The CIA in Hollywood: How the Agency Shapes Film and Television. The book, which Taranto found to be “frankly underwhelming,” discusses the relationship between the CIA and Hollywood. Taranto noted that, because news coverage of its operations is generally limited to its snafus, the CIA has an incentive to make sure Hollywood portrayals of the agency are “at least half-accurate, if not cloyingly positive;” the industry, on the other hand, wants to make entertaining product, which often requires flawed protagonists (See, for example, Carrie Mathison of Homeland). These competing incentives leads to an deep, interesting interaction between the Agency and the industry. Jenkins’s book, Taranto wrote, merely scratches the surface of that interaction.

Details of the broader relationship between the entertainment industry and the government in general apparently show up in the documents stolen in last December’s Sony hack. And, despite the fact that the publication of these documents represents a massive invasion of the privacy of both the company and those who work there, WikiLeaks has made those documents much more accessible to the public. Ben noted the website’s move, which involves publishing the stolen documents in a searchable online database. “Principled leaking,” indeed.

Herb Lin told us about a recent GAO report that posits that the increasing Internet-connectedness of aircraft makes them more vulnerable to hacking. Aircraft, it turns out, have two networks: one for actually controlling the plane, and one for in-flight entertainment. If the two networks remain distinct, vulnerability is limited to someone physically breaking into the control system. But if the two networks interact—say, when the flight control network provides the in-flight entertainment system information on where the plane is—further vulnerabilities arise. A first step in increasing the safety of airplanes from hacking, Herb concluded, would be for the FAA to prohibit such interactions of the two networks.

Bobby discussed the indictment of a U.S. citizen accused of traveling to Syria, training with Al Nusrah, and returning to the United States to commit an act of terrorism. The case in some aspects brings to mind the case of Jose Padilla, Bobby explained, though it seems unlikely to trigger the same amount of attention as that case did.

Kenneth Anderson reviewed David Scharia’s new book, Judicial Review of National Security. The book is an in-depth study of, surprisingly enough, judicial review of national security, but specifically in the Israeli context. Scharia, an Israeli national security lawyer, explores “how Israeli courts interface and communicate with the political branches of government in the “real time” of a crisis, and with Israeli defense and security agencies.” Ken generally praised the book, calling it “a thorough, polished study—very well written and organized.”

Ben spoke with Oula Abdulhamid Alrifai on this week’s Lawfare Podcast. Alrifai was forced to flee Syria with her family in 2005 after receiving death threats from the Assad regime and has since watched as her country has imploded.

On this week’s Steptoe Cyberlaw Podcast, Stewart Baker chatted with Dmitri Alperovitch, cofounder of Crowdstrike, and covered recent cyber stories.

And that was the week that was.

Today’s Headlines and Commentary

Friday, April 17, 2015 at 11:55 AM

ISIS militants are surrounding Ramadi and are in control of many of the city’s districts. McClatchy reports that Iraq has deployed elite troops in an effort to stop the militant group’s advance, but the city, the capital of Anbar province, remains besieged. However, an Iraqi official said that the troops have succeeded in opening up a corridor between central Ramadi and outlying districts to allow residents to escape the city.

In the face of the loss of Ramadi to ISIS, Gen. Martin Dempsey downplayed the symbolic significance of losing the city. According to the Wall Street Journal, the joint chiefs chairman said in a news conference that “The city itself is not symbolic in any way. It’s not been declared part of the caliphate on one hand, or central to the future of Iraq.” More key to the campaign, he said, was the fight for the Beiji oil refinery north of Baghdad.

Fighting inside the Beiji oil refinery continues, Reuters reports. ISIS militants began attacking the refinery several days ago, and still hold the sections they originally captured, including a distribution point and storage tanks. However, militants have not yet captured any major infrastructure, and yesterday an Iraqi battalion arrived yesterday to help protect the refinery. General Dempsey said that “the refinery itself is at no risk right now.” The Associated Press adds that Iraqi forces have also recaptured two towns near Baiji from ISIS.

As the battle against ISIS continues, the Iraqi Prime Minister expressed a guarded wariness of highly-visible Iranian influence on the fight. Prime Minister Haider al-Abadi said yesterday that recent photos of Major General Qassem Soleimani, commander of a brigade of the elite Islamic Revolutionary Guard Corps, directing fighting against ISIS in Iraq were troubling. While he expressed appreciation for Iran’s assistance against ISIS, he said “Iraqis are sacrificing to save their country. To make it appear as if others are doing this on behalf of Iraqis, Iraqis wouldn’t accept that.” The remarks come after President Obama publicly warned Iran on Tuesday to respect Iraqi sovereignty. Reuters has more.

In Syria, opposition groups say that the regime has killed more than 100 people in Aleppo this week by dropping barrel bombs. The uptick in strikes on rebel-held regions of the city come after a grand mufti of the Syrian government called for the destruction of those regions on state TV, saying, “I request … that [in response to] any shell that falls on Aleppo the whole area will be annihilated.” The Wall Street Journal notes that the religious leader has often been been presented by the Assad regime as an example of moderate Islam, in contrast to the extremism dominating parts of Syria.

Militants from al Qaeda in the Arabian Peninsula seized an airport in eastern Yemen yesterday. The group, which already controlled the surrounding areas, reportedly faced no opposition when seizing the facility. The Washington Post writes that the move indicates that AQAP is taking advantage of Yemen’s current chaos, and further notes that AQAP has thus far been spared Saudi airstrikes.

While AQAP gains ground, some of the Yemeni generals who had joined forces with the Houthi rebels have shifted their allegiance to the government in exile. According to the Wall Street Journal, the defection of these generals, who were previously loyal to former president Ali Abdullah Saleh and helped the Houthis force his replacement into exile in March, is a significant blow to the Houthi-Saleh campaign.

Also hurting this campaign is a decision by Pakistan to enforce an embargo on the Houthis. Dawn reveals that, despite an earlier parliamentary vote to stay out of the Yemen conflict, viewed as a significant blow to its long-time ally Saudi Arabia, the administration is planning to announce a plan to use some Pakistani naval vessels to help enforce the embargo recently authorized by a U.N. Security Council resolution.

Yesterday, Iraq’s prime minister walked back his sharp criticism of the Saudi-led offensive in Yemen. The New York Times reports that Abadi, who said on Wednesday that there was “no logic” to the campaign, told an audience at the Center for Strategic and International Studies that he wants to maintain a good relationship with Saudi Arabia. He maintained, however, that increased fighting there could exacerbate sectarian tensions in the Middle East, saying “We are in the same boat on this in the region. If anybody makes a hole in that boat, we all will sink.”

Agence France-Presse reveals that about 300 U.S. paratroopers arrived in Ukraine this week. The troops are there to help train the Ukrainian National Guard, which is still fighting Russian-backed separatists in eastern Ukraine. Russia quickly condemned the troops’ arrival, saying earlier today that the presence of foreign troops “could destabilize the situation.” Reuters has more.

An Ohio man has been indicted for allegedly travelling to Syria to train with an al Qaeda affiliate and returning to the United States with the intention to conduct a terrorist attack. The Wall Street Journal notes that the indictment is one of the few cases of Americans charged with trying to join an extremist group in which the defendant actually reached Syria and received training; in almost all other similar cases, defendants have been stopped before making the journey to Syria. Bobby provided some thoughts on the case here.

The Guardian reports that WikiLeaks has published the documents obtained in last year’s Sony hack in a “Google-style search engine.” WikiLeaks founder Julian Assange justified the website’s move by saying “This archive shows the inner workings of an influential multinational corporation. … It belongs in the public domain.” Chris Dodd, former senator and current MPAA chairman, retorted “With this despicable act, Wikileaks is further violating the privacy of every person involved.”

The U.S. Navy base at Guantanamo Bay has a new commander, the Miami Herald reveals. Captain David Culpepper, a career Navy fighter pilot and former Top Gun instructor, takes over the base after the reassignment of the previous commander during an investigation into a civilian death on base. Capt. Culpepper, who is assigned to the base for the next three years, has no role in running the Guantanamo Bay prison, Carol Rosenberg notes.

Parting Shot: DefenseOne describes efforts by terrorist groups to weaponize robotics technology.

ICYMI: Yesterday, on Lawfare

Ben broke the news of Wikileaks’ latest morally questionable decision: posting documents stolen in the Sony hack last year in a searchable format.

Bobby provided some thoughts on the recent indictment of a U.S. citizen who allegedly trained with al Nusrah in Syria and returned to the United States to commit an act of terrorism.

Herb Lin discussed the vulnerabilities of passenger airplanes to hacking, and how those vulnerabilities could be addressed.

Herb also posted an interesting tidbit from an NSA document from 2000.

Kenneth Anderson reviewed Judicial Review of National Security, a new book by David Sharia, an Israeli national security lawyer.

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.


Book Review: The CIA in Hollywood: How the Agency Shapes Film and Television by Tricia Jenkins

Published by University of Texas Press (2013)
Reviewed by Julius Taranto
Friday, April 17, 2015 at 11:00 AM

Though everyone would surely prefer otherwise, public relations crises are part of the CIA’s ordinary business. The fact that so much of its work is classified puts the Agency in one of those tricky, plumber-like governmental roles: when it does its job right, no one should notice. But when it screws up, there’s a mess, and things smell awful.

The nature of any covert enterprise is rigged against popularity: the Agency can’t ordinarily brag about its hard-won successes or even update Americans with news of general competence. The FBI, by contrast, gets to issue press releases detailing high-profile arrests and convictions. But with rare exceptions, the CIA hits the front page only when something has gone badly sideways.

This asymmetry naturally gives rise to an image problem, so the CIA needs a way of loopholing if it wants to shape public perception. Fiction about the Agency—particularly television and movies, the most potent and culture-shaping mediums—has turned out to be that loophole. But it has its risks.

Depending on whom you ask, Hollywood has been either a great friend or a persistent foe in the CIA’s quest for a better public image. Some might point to media characterizations of the CIA as a rogue, hapless, or amoral institution. Just a few weeks ago, at the Agency’s request, New York Times columnist Maureen Dowd talked to members of Langley’s “sisterhood,” who were “fed up with the flock of fictional CIA women in movies and on TV who guzzle alcohol as they bed hop and drone drop, acting crazed and emotional, sleeping with terrorists and seducing assets.” The point of these interviews seemed to be to insist that CIA careers are actually much more boring and difficult than they look on television. (Continued)

Stephen Preston’s Important Acknowledgement that the 2001-AUMF-Forever-War is Not Ending Anytime Soon

Friday, April 17, 2015 at 9:01 AM

Stephen Preston’s speech at last Friday’s ASIL Meeting was the latest of many efforts by the administration to explain (in Preston’s words) “the bases, under domestic and international law, for the United States’ use of military force abroad.”  It was a good and informative speech, and good that he gave it.  Especially noteworthy, I thought, was Preston’s full explanation of why the administration thinks Congress has already authorized force against the Islamic State.  Others have weighed in on this and other aspects of the speech – for example, Bobby here, and Marty Lederman here.  Below I address an important but underappreciated element of the speech that Bobby touched on only briefly: Preston’s acknowledgment that the Forever War is not ending anytime soon, and that the Obama administration no longer believes it can repeal the 2001 AUMF without replacing it with new congressional authorities to continue the war against al Qaeda and associates.

Preston stated that the administration is taking “direct action (that is, capture or lethal operations) under the authority of the 2001 AUMF, including associated forces,” against the following entities: (1) al-Qa’ida, (2) the Taliban, (3) certain other terrorist or insurgent groups in Afghanistan, (4) al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; (5) individuals who are part of al-Qa’ida in Somalia; (6) individuals who are part of al-Qa’ida in Libya; (7) “the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria; and (8) the Islamic State, or ISIL.  In short, the 2001 AUMF is a basis for capture or lethal operations against several related groups and individuals in at least 6 countries.  Most of these adversaries remain dangerous and in many respects – especially in Libya, Yemen, and Syria – the danger appears to be growing.

One might expect that since the 2001 AUMF is so important a legal basis for so many U.S. counterterrorism operations, the Obama administration would be working to strengthen and clarify the AUMF.  And yet President Obama famously proclaimed in 2013 that he wanted “to refine, and ultimately repeal, the AUMF’s mandate.”  And he reiterated last year, when sending up his proposal for an ISIL-specific AUMF, that he was “committed to working with Congress and the American people to refine, and ultimately repeal, the 2001 AUMF.”  Most observers – especially in 2013, but also last year – took these statements to mean that the President wanted to wipe out the AUMF mandate altogether as part of ending the conflict against al Qaida and associates.

I read Preston’s speech to acknowledge that this is no longer the President’s ambition.

First, Preston emphasized that hostilities in Afghanistan are not ending anytime soon despite President Obama’s claim that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”  As Preston said: “Because the Taliban continues to threaten U.S. and coalition forces in Afghanistan, and because al-Qa’ida and associated forces continue to target U.S. persons and interests actively, the United States will use military force against them as necessary.  Active hostilities will continue in Afghanistan (and elsewhere) at least through 2015 and perhaps beyond.”

Second, Preston repeated President Obama’s statements about wanting to “refine, and ultimately repeal” the 2001 AUMF.  But a repeal of the 2001 AUMF, without a substitute authorization to use force against al Qaeda and associates, is out of the question because, as Preston made clear, the 2001 AUMF is the main legal authority for the vast majority of U.S. counterterrorism operations against threats that are not receding.  And so, in perhaps the most newsworthy (but largely unnoticed) line in the speech, Preston reinterpreted President Obama’s aim to “refine, and ultimately repeal” the 2001 AUMF to mean that the President wants “to tailor the authorities granted by the AUMF to better fit the current fight and the strategy going forward.”  He added that the President “stands ready to work with Congress to refine the 2001 AUMF after enactment of an ISIL-specific AUMF.”  Refine, that is, without mention of repeal.

I have a hard time believing that the administration really wants to engage Congress to alter and update the authorities of the 2001 AUMF.  I think this because the administration has since 2009 talked about but failed to do this; because the administration has not exactly pushed hard for the ISIL-specific AUMF; because, as Preston makes clear, the administration thinks that the 2001 AUMF is both adequate authority for the fight it faces and truly constraining; and because,  even if the administration did push hard for a replacement AUMF for al Qaeda and associated forces, it seems impossible that the current Congress – which flubbed enactment of an ISIL-specific AUMF – could get its act together to craft a replacement for the 2001 AUMF that was both empowering and restraining in a way that suits the President.  Bottom line: We are stuck with the 2001 AUMF for quite a while longer.

In Case You Needed Another Reason to Look Askance at WikiLeaks

Thursday, April 16, 2015 at 10:27 PM

Here is one.

The organization today posted online what it describes as “an analysis and search system for The Sony Archives: 30,287 documents from Sony Pictures Entertainment (SPE) and 173,132 emails, to and from more than 2,200 SPE email addresses.” That’s right. North Korea hacks Sony and steals lots of innocent people’s communications, and WikiLeaks goes ahead and makes them searchable. That’ll protect civil liberties.

Here’s how WikiLeaks explains the historic importance of this “archive”—for which it is willing to aid and abet and magnify a gross invasion of privacy against ordinary people by the North Korean state:

WikiLeaks editor-in-chief Julian Assange said: “This archive shows the inner workings of an influential multinational corporation. It is newsworthy and at the centre of a geo-political conflict. It belongs in the public domain. WikiLeaks will ensure it stays there.”

Sony is a member of the MPAA and a strong lobbyist on issues around internet policy, piracy, trade agreements and copyright issues. The emails show the back and forth on lobbying and political efforts, not only with the MPAA but with politicians directly. In November 2013 WikiLeaks published a secret draft of the Trans-Pacific Partnership (TPP) IP Chapter. The Sony Archives show SPE’s internal reactions, including discussing the impact with Michael Froman, the US Trade Representative. It also references the case against Megaupload and the extradition of its founder Kim DotCom from New Zealand as part of SPE’s war on piracy.

The connections and alignments between Sony Pictures Entertainment and the US Democratic Party are detailed through the archives, including SPE’s CEO Lynton attending dinner with President Obama at Martha’s Vineyard and Sony employees being part of fundraising dinners for the Democratic Party. There are emails setting up a collective within the corporation to get around the 5,000 USD limit on corporate campaign donations to give 50,000 USD to get the Democratic New York Governor Andrew Cuomo elected as “Thanks to Governor Cuomo, we have a great production incentive environment in NY and a strong piracy advocate that’s actually done more than talk about our problems.

Sony Pictures Entertainment CEO Michael Lynton is on the board of trustees of RAND Corporation, an organisation specialising in research and development for the United States military and intelligence sector. The Sony Archives show the flow of contacts and information between these two major US industries, whether it is RAND wanting to invite George Clooney and Kevin Spacey to events, or Lynton offering contact to Valerie Jarrett (a close advisor to Obama) or RAND desiring a partnership with IMAX for digital archiving. With this close tie to the military-industrial complex it is no surprise that Sony reached out to RAND for advice regarding its North Korea film The Interview. RAND provided an analyst specialised in North Korea and suggested Sony reach out to the State Department and the NSA regarding North Korea’s complaints about the upcoming film. The Sony documents also show Sony being in possession of a brochure for an NSA-evaluated online cloud security set-up called INTEGRITY.

The archives also detail SPE’s development of its own films and collecting “intelligence” on rival pictures, for example documents in the archive reveal the budget breakdown for Oliver Stone’s rival picture Snowden, which is currently in production. The budget reveals the rights spend: 700,000 USD to the Guardian‘s Luke Harding, 600,000 USD to Oliver Stone for his work on the script and 1,000,000 USD to Snowden’s Russian lawyer Anatoly Kucherena.

WikiLeaks has a committment to preserving the historical archive. This means ensuring archives that have made it to the public domain remain there regardless of legal or poltical pressure, and in a way that is accessible and useable to the public. WikiLeaks’ publication of The Sony Archives will ensure this database remains accessible to the public for years to come.

I ran a couple of searches on the email section: “dad” and “hospital.” Julian Assange should be ashamed of himself.

A Tidbit From an Old NSA Document (2000)

Thursday, April 16, 2015 at 10:11 PM

Browsing through an old NSA document called Transition 2001, dated December 2000, I came across this tidbit on page 3.

“In transforming the cryptologic system, the NSA/CSS must shift significant emphasis and resources from current products, services, and targets to the modern and anticipated information technology environment for both SIGINT and information assurance. The NSA/CSS must be capable of operating with our partners seamlessly in the global network; where possible sustaining our global response, where necessary succeeding through tailored access.”

This paragraph was unclassified in the original document, suggesting that the NSA plan to adapt to the new world through tailored access wasn’t at all a secret even back in 2000. Of course, the document in which this paragraph was contained was originally classified Secret (and is now declassified), so having access to this document would not have been easy. Still, it’s interesting to me as an example of refusing to believe that they had lost the crypto wars. And we have since learned that they had the technical capability to be justified in that belief.

Indictment of US Citizen Who Trained with al Nusrah and Returned to Attack

Thursday, April 16, 2015 at 5:42 PM

A grand jury in Ohio has indicted Abdirahman Sheik Mohamud, a recently-naturalized US citizen and resident of Columbus, with two material support counts (and one false statement count) based on allegations that he traveled to Syria to fight, that he received military-style training from al Nusrah, and that he came back to the United States after receiving directions from “a cleric in the organization” who told him “he should return to the United States and carry out an act of terrorism.” The indictment alleges that Mohamud told an unidentified person, upon his return, that he meant to kill Americans, preferably at a military base in Texas.

For the sake of the discussion that follows, I will assume the allegations are true. In some respects, this story recalls the dramatic announcement in 2002 that authorities had arrested an American citizen named Jose Padilla, alleging that he had traveled to Afghanistan to train with al Qaeda and then come back to carry out terrorist attacks at home. There are, of course, some salient differences. Most notably, the claim about Padilla focused on the possibility that his attack would involve a “dirty bomb” (i.e., a bomb laced with radioactive material). Also, over the course of the intervening thirteen years it seems the public has simply become much more accustomed to the possibility that a citizen might become radicalized, travel abroad for training, and come back to carry out an attack. (Of course, the Padilla story grew even hotter once he was shifted into military custody, but for purposes of this comparison I am sticking with the initial stage involving arrest by the FBI on a material witness warrant, as Padilla came off the plane in Chicago).

In any event, it seems unlikely the Mohamud story will generate quite the same level of attention. Should it? At first blush, it seems like a huge deal, in that we may be looking at the first example of an American who traveled to Syria and came back with the express intent to carry out a terrorist attack. But it is by no means obvious that this particular threat depended in any crucial way on Mohamud having actually gone to Syria. It seems he was radicalized to violence, including violence directed at Americans, before leaving the country. And nothing in the plot he had in mind would seem to depend on the sort of intensive or specialized training he may have received in Syria, though no doubt that training would help him successfully carry out his plans. That is a disturbing conclusion.

Another interesting question to ponder: For presidential candidates who are open to sending newly-captured al Qaeda suspects to GTMO, does that principle extend to cases like this one (involving citizens, and involving persons linked to AQ via al Nusrah)?

More on the arrest here.

Today’s Headlines and Commentary

Thursday, April 16, 2015 at 2:06 PM

Yesterday, Iraqi Prime Minister Haider al-Abadi criticized Saudi intervention in Yemen. The Wall Street Journal reports that, in remarks that laid bare growing divisions between U.S. allies in the Middle East, Prime Minister Abadi said that “there is no logic to the operation at all in the first place.” The Prime Minister went on to say that the intervention could trigger a broad sectarian conflict in the region and that President Obama agreed with his view, which the White House quickly denied. According to the New York Times, a Saudi official replied that there was “no logic to those remarks.”

The newly-appointed Yemeni Vice President also expressed concern about the future of the Saudi coalition, Reuters reports. Speaking from Riyadh, he said “We still hope that there is no ground campaign in line with the air strikes.” The remarks come ahead of planned military exercises in Saudi Arabia that some fear presage a ground operation in Yemen.

Saudi-owned Al Arabiya reports that former Yemeni President Ali Abdullah Saleh has been seeking safe passage out of Yemen, despite reports that he has joined forces with Houthi rebels in an attempt to regain power. According to a Gulf Cooperation Council official, the former strongman has sent emissaries to several GCC nations asking for safe exit. This comes as Reuters notes that at least five pro-Saleh military brigades have defected, one of which has begun fighting the Houthi rebels pro-Saleh forces had previously aligned with.

ISIS is pushing toward Ramadi, the capital of Iraq’s Anbar province, the Wall Street Journal reports. Just a week after Anbar officials announced the start of an offensive to retake the province from the group, ISIS militants attacked several settlements yesterday, forcing thousands of families to flee their homes. Local Sunni tribal leaders blamed the government for the attacks’ success, claiming that Iraqi security forces retreated before the attacks.

ISIS’s parallel advance in Syria is pushing Syrian rebels to make difficult choices about who, exactly, to fight. In the Yarmouk Palestinian refugee camp, which the Assad regime has blockaded and bombarded for over two years, a Palestinian rebel group has been forced to side with Pro-Assad militias to repel ISIS militants who stormed the camp earlier this month. The Wall Street Journal writes that this cooperation, though it remains limited to supplies of food and ammunition, represents a symbolic gain for the Assad regime, which has tried to cast itself as the key actor in the fight against ISIS.

Despite these ISIS advances, an article in Politico Magazine points out that al Qaeda has actually won more territory than ISIS over the past six months. These gains, often ignored in favor of coverage of the more media-savvy ISIS, portend a violent struggle between the two groups. the authors write.

What we are likely to see now is a titanic war of ideology and tactics between two vicious, radical groups that together probably command more prestige among Arab peoples than the weak, often delegitimized governments they have outsmarted and outfought.

Arshad Mohammed argues in Reuters that, while the compromise Iran review bill passed by the Senate Foreign Relations Committee Tuesday will certainly make negotiations on a nuclear deal with Iran harder, it doesn’t “drastically weaken President Obama’s ability to deliver on a final agreement.”

But the Times writes that the Iran review bill signals that President Obama may have reached the outer limits of his executive authority. After relying on executive authority in the face of congressional gridlock to alter both domestic and foreign policy, Congress “actually broke the gridlock. Against him.”

Amid the debate over what role Congress should play in approving an Iranian nuclear agreement, an Iran deal appears to have won another (guarded) supporter. Admiral Mike Mullen, the former joint chiefs chairman, has an opinion piece in Politico today entitled “Why I Like The Iran Deal (Sort Of).” While noting Iran’s violent operations beyond its borders, he argues that “As of today, there is no more credible path of reducing the likelihood of Iran obtaining a nuclear weapon than this potential deal.”

Even as Iran continues negotiations with global powers about its nuclear program, it has significantly increased both the frequency and the sophistication of its cyberattacks. According to a report being released tomorrow by cybersecurity firm Norse and the American Enterprise Institute, most of the attacks have involved espionage while some, like the February attack on Sheldon Adelson’s Las Vegas Sands, have been purely destructive. The Times explains that this emphasis on quieter espionage attacks represents a shift from its earlier penchant for cybervandalism.

The Washington Post describes efforts by Pakistan to train its military to better confront Islamic militants at a training camp in Punjab province. While Pakistan’s military is built for a large-scale confrontation with India, the training emphasizes face-to-face combat and appears to have had some success. Nearly two-thirds of the troops involved in the campaign gaining ground against militants in the country’s northwest have been trained at the camp.

In other Pakistan news, Chinese President Xi Jinping will visit the country next week to launch a series of joint energy and infrastructure projects worth $46 billion. Reuters explains that the projects are part of a planned “Pakistan-China Economic Corridor” between China’s Xinjiang region and the Pakistani deepwater Gwadar port on the Arabian Sea. The visit also comes as the two countries look to finalize the long-planned sale of eight Chinese submarines to Pakistan.

While it looks to firm up ties with Pakistan, China is also laying the groundwork for a greater military presence in the South China Sea. Satellite photos of the Spratly Islands released today show that China is building a runway on one of the islands in the archipelago, which is claimed by at least three other countries. The Times writes that the runway will be capable of handling military airplanes when completed, allowing China to project military power far beyond its shores. Peter Dutton, a professor of strategic studies at the Naval War College, spoke to the gravity of the discovery: “This is a major strategic event. In order to have sea control, you need to have air control.”

The Department of Homeland Security’s network monitoring program will cover all of the federal government’s networks by the end of the 2016 fiscal year, according to a DHS official. The program, which helps identify malicious actors within networks, currently covers just over half of government networks. The Hill notes that “It’s a much-needed tool, as foreign hackers have repeatedly infiltrated government networks this past year.”

ICYMI: Yesterday, on Lawfare

Bobby laid out some of the legal questions raised by U.S. involvement in the Saudi air campaign in Yemen.

Jack identified some errors in the New York Times’s editorial on the Iran Nuclear Agreement Review Act.

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