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Reading the AUMF Tea Leaves, 2002 Edition

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Monday, July 28, 2014 at 12:42 PM

Nowadays figuring out what sort of post-2001 AUMF authority the White House wants is a bit of a tea leaf-reading exercise. Potentially relevant to it are the events of last Friday concerning the 2002 AUMF, which Congress passed in advance of the Iraq war.

Friday evening saw the House’s approval of H. Con. Res. 105, a concurrent resolution apparently filed pursuant to Section 5(c) of the War Powers Resolution. Apparently, the proposal arose from congressional concern over the executive branch’s possible invocation—or stretching, depending on your point of view—of the 2002 Iraq AUMF, as a source of authority to take further action against ISIS or other current, Iraq-related threats. The legislation—which, so far as I know, hasn’t been taken up in the Senate—thus instructed the executive branch:

SECTION 1. PROHIBITION REGARDING UNITED STATES ARMED FORCES IN IRAQ.

The President shall not deploy or maintain United States Armed Forces in a sustained combat role in Iraq without specific statutory authorization for such use enacted after the date of the adoption of this concurrent resolution.

SEC. 2. RULE OF CONSTRUCTION.

Nothing in this concurrent resolution supersedes the requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.).

Prior to a vote on this, President Obama’s national security advisor, Susan Rice, had written to House Speaker John Boehner and said, in so many words, that the resolution was “consistent with the Administration’s views;” but also that Congress would be better off dispensing with a disapproval of future military force, and instead simply repealing the 2002 Iraq AUMF altogether: Read more »

The Administration Needs a Confirmed Legal Adviser

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Monday, July 28, 2014 at 10:25 AM

Six months ago today, I wondered aloud on this blog when President Obama might nominate a new Legal Adviser.   At that point, the position had been vacant for over a year since Harold Koh stepped down in January 2013.  The Administration has now been without a Legal Adviser and the Legal Adviser’s office has been without a confirmed head for over eighteen months, the longest vacancy in recent memory. Even if the President nominates a Legal Adviser this week before the Senate goes on recess, the nominee might well not be confirmed until 2015.

To be clear, this is not a case where the Senate has been slow to act on a nomination. The President has simply failed to nominate a Legal Adviser (after he withdrew his nomination of Avril Haines in June 2013 and instead appointed her as Deputy Director of the CIA). As I noted in January, this is surprising for a President who was a law professor and who touted his strong commitment to international law. The absence of a confirmed Legal Adviser has made it more difficult for the Administration to engage as forcefully as it might to defend U.S. legal positions on drones and NSA surveillance, to criticize other countries who have violated international law (such as Russia for its annexation of Crimea and Syrian President Assad for his use of chemical weapons), or to push important treaties (such as the UN Disabilities Convention) through the Senate.

This is not to detract from the very fine work done by Mary McLeod, the Principal Deputy Legal Adviser who has led the office for the last eighteen months (and who served as Acting Legal Adviser for as long as permitted under the Vacancies Act).   But it is much more difficult for an unconfirmed, career official to deliver forceful bilateral messages or defenses of Administration positions, to give major public speeches on international law, or to make use of social media (such as blogging) in the manner that both Harold Koh and I were able to do.

The names of a several qualified candidates have been circulating for many months.   If President Obama and the White House are serious about their commitment to international law, the President must nominate a new Legal Adviser – either Mary McLeod or another experienced candidate – in the next few weeks.

 

The Week that Will Be

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Monday, July 28, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, July 28 at 3 pm: The Carnegie Endowment for International Peace and the Korean Economic Institute of America will co-host a conference at Carnegie entitled Nuclear Politics on the Korean Peninsula. Panelists will examine the evolving security environment in north-east Asia, and how South Korean aspirations for full nuclear fuel cycle capabilities will affect negotiations with North Korea and the regional balance of power. The list of speakers includes Douglas H. Paal, Donald A. Manzullo, Park Jin, Kang Choi, Chung-min Lee, James Schoff, Troy Stangarone, while Duyeon Kim will moderate. RSVP here.

Monday, July 28 at 4:30 pm: Dr. Christine Fair will launch her latest book entitled Fighting to the End: The Pakistan Army’s Way of War, at the Institute of World Politics. You can find more information and RSVP here.

Tuesday, July 29 at 10 am: The House Armed Services Committee will hold a hearing on the Security Situation in Iraq and Syria: U.S. Policy Options and Implications for the Region. Dr. Steven Biddle, Mr. Max Boot, Mr. Brian Fishmann, and Lt. Gen. (Ret.) Richard Natonski will testify. The hearing will be in 2118 Rayburn. More information here.

Tuesday, July 29 at 10 am: The Senate Foreign Relations Committee will hold a hearing entitled Iran: Status of the P5+1 in Dirksen 419. Wendy Sherman, David S. Cohen, Gary Samore, Olli Heinonen, and Michael Singh will testify. The Committee website has more information.

Tuesday, July 29 at 2 pm: Later in the afternoon, the House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will hold a hearing in 311 Cannon House Office Building entitled Protecting the Homeland from Nuclear and Radiological Threats. Rep. Patrick Meehan (R-PA) will provide opening statements. Witnesses to be announced. More information can be found here.

Tuesday, July 29 at 2 pm: Occurring at the same time, the Woodrow Wilson International Center for Scholars will host a discussion on National Security and Climate Change: What Do We Need to Know? Speakers will cover the military’s perspective, and President’s priorities, and strategies for addressing current climate trends. For a list of speakers and to RSVP, visit the Wilson Center website.

Wednesday, July 30 at 10 am: The House Armed Services Committee hosts a hearing on the Risks to Stability in Afghanistan: Politics, Security, and International Commitment. Witnesses will include Anthony Cordesman, Catherine Dale, Ronald Neumann, and Michael O’Hanlon. The hearing will be live streamed here, or you can attend in 2118 Rayburn.

Wednesday, July 30 at 2 pm: The House Foreign Affairs Subcommittee on Asia and the Pacific will host a hearing reviewing Twenty Years of U.S. Policy on North Korea: From Agreed Framework to Strategic Patience. Glyn Davies, Special Representative for North Korea Policy in Bureau of East Asian and Pacific Affairs at the State Department, and Robert King, Special Envoy for North Korean Human Rights at the Department of State, will testify. The hearing will take place in 2172 Rayburn. More here.

 

Employment Announcements (More details on the Job Board)

Intern, American Bar Association Standing Committee on Law and National Security

The American Bar Association Standing Committee on Law and National Security seeks an intern for the Fall semester 2014.  Unpaid internship will include research and writing in preparation for the 24th Annual Review of the Field of National Security Law Conference in Washington, DC.  Intern will also have the opportunity to attend and provide summaries of pertinent Congressional hearings, and participate in monthly breakfast programs featuring prominent speakers in the area of national security law. Fall applicants may be undergraduates or currently in law school. (full or part time)   Deadline for submission: September 10, 2014.

Interested applicants should submit a cover letter and resume to: 

Holly McMahon, Staff Director
ABA Standing Committee on Law and National Security
1050 Connecticut Avenue N.W., Suite 400
Washington, DC 20036
[email protected]

CC: [email protected]

 

Intern, National War College

The National War College seeks interns to assist in developing a course on Politics and the Law for senior military officers.  Terrific opportunity for an unpaid intern to work directly with the Dean of the College. Send resumes and cover letter of interest to [email protected]

 

Legal Intern, International Committee of the Red Cross

FUNCTION: Legal Intern

DEPARTMENT: International Humanitarian Law (IHL)

PLACE OF EMPLOYMENT: WASHINGTON

DIRECT SUPERIOR: Legal Advisor

FUNCTION DESCRIPTION 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 a U.S. J.D. graduate enrolled in a graduate-level program.

JOB DESCRIPTION:

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 (intercrossblog.icrc.org).
  2. 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.
  3. Reporting. 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 20 hours a week for the Fall Semester, starting at the beginning of September. This is a paid internship. For information about the position, please contact Andrea Harrison at [email protected] To apply, please contact Laure Macabrey at [email protected] Applications are due August 1st, 2014. The position will start on September 2 and go until December 31. It is 20 hours per week, and is a paid internship.

Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States

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Sunday, July 27, 2014 at 8:53 PM

While Lawfare readers have been focused on other parts of the world, federal appellate courts have recently issued two significant, and potentially conflicting (in result, if not reasoning), decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision.   In June, a Fourth Circuit panel reversed the dismissal of an ATS claim brought against CACI, a U.S. defense contractor, by former detainees in Abu Ghraib prison who alleged they had been tortured or abused by CACI employees; the panel concluded that the claims did “touch and concern” the territory of the United States. Last week, a split panel of the Eleventh Circuit ordered the dismissal of an ATS claim filed by a group of Colombians against Chiquita Brands in connection with its alleged payments to paramilitary forces in Colombia; the panel said that “There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force.” Together, the pair of decisions demonstrate that Kiobel still did not resolve the extraterritorial application of the ATS, at least to the conduct of US corporations. Read more »

Senators Express Concern on 702 Interpretation

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Sunday, July 27, 2014 at 3:43 PM

Ellen Nakashima at the Washington Post reports that four U.S. Senators—Jon Tester, Jeff Merkley, Mark Begich, and John Walsh—wrote a July 24th letter to DNI Clapper expressing their concerns with NSA’s interpretation of Section 702 of the FISA Amendments Act of 2008.

They pull heavily from the PCLOB report released earlier this month, in which the Board observed that Section 702 shifts the government’s burden from showing “probable cause to believe that an individual targeted is an agent of a foreign power” to identifying “categories of information to be collected, which must meet the statutory definition of foreign intelligence information.”

The four Senators conclude that Section 702 collection represents an “unconstitutional violation of privacy rights, wholly inconsistent with American values.” (It’s worth noting that PCLOB itself reached the opposite conclusion, finding that the core of the Section 702 program is constitutional. The Board warned, though, that certain aspects of the Section 702 program—namely, the breadth of incidental collections, “the use of ‘about’ collection to acquire Internet communications that are neither to nor from the target of surveillance,” and the practice of querying for communications of specific U.S. persons—”push the program close to the line of constitutional reasonableness.”)

The letter also included a battery of questions for DNI Clapper: Read more »

A New White House Signal on AUMF Reform?

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Sunday, July 27, 2014 at 1:51 PM

Josh Gerstein of Politico reports that “[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.”  

Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: “The 2001 AUMF has provided us authority to go after terrorist actors and address the threats that they pose that fit within that definition. We are now 13, 14 years on from that and we’re seeing the emergence of other actors. … I think there absolutely is a reason to have an authority to enable us to take the fight to these evolving terrorists that we’ve talked about.”  Monaco’s statement, if we’re understanding it correctly, seems to represent a shift from the White House’s prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.

The commentary that follows in Gerstein’s article plays into a narrative that describes this issue as a stark choice between perpetual and expanded war or a complete end to it.  That’s a poor way to think about it.

As we have been arguing for some time, there are responsible ways to pair new force authorities with substantive and procedural constraints that take account of the past decade’s experience and realistic assessments of current and future threats. There should be serious debate about how to structure and refine such authorities and constraints.

Here is video of Monaco’s speech:

The Foreign Policy Essay: Iran—Maliki’s BFF

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Sunday, July 27, 2014 at 10:00 AM

Editor’s Note: The Middle East makes strange bedfellows, and one of the oddest pairings is the de facto alliance between Iran and the United States in Iraq. Across the border in Syria, Iran and the United States support opposing armies, but both countries are helping the Iraqi government confront the jihadist fighters of the Islamic State of Iraq and Syria (ISIS). Iran’s help, however, is likely to be far more substantial, and thus far more important. Afshon Ostovar, a Middle East analyst at CNA Strategic Studies, assesses the purposes and types of Iranian military support and its implications for Iraq and the United States.

***

Iran, like the United States, is confronting a Middle East that is on fire—but for Iran, the fire is on its doorstep. Syria’s civil war gave new life to the jihadist group formerly known as the Islamic State of Iraq and al-Sham (ISIS), now simply called the Islamic State, which has emerged from the conflict rich in spoils, arms, and recruits. The former Al Qaeda affiliate’s swift movement into Iraq, which culminated in the seizing of Mosul, the country’s second-largest city, as well as a number of other northwestern villages and towns, has plunged Iraq into civil war. Iraq’s embattled prime minister, Nouri Al-Maliki, has turned to his major allies—the United States, Russia, and Iran—for help. All have offered military aid of some sort, but it is Iran that will be the most deeply involved.

Iran considers Baghdad a close friend and has offered to help in any way it can. On June 14, Iranian president Hassan Rouhani unequivocally stated, “If the Iraqi government asks us for help, we may provide any assistance the Iraqi nation would like us to provide in the fight against terrorism.” Iran’s interests in Iraq are many and are fueled by intersecting strategic, religious, and personal impulses, but its immediate concerns and goals are more limited. Above all, Iran wants to maintain the stability of its neighbor and second closest ally after Syria. It wants to preserve its influence in Iraq and its close ties with the leadership in Baghdad, which means keeping Maliki in place and preventing outside pressure (such as from the United States and Saudi Arabia) from replacing him with someone less inclined toward Iran. More practically, it seeks to protect Iranians and Iranian interests in Iraq, particularly Iranian pilgrims, government investments, and businesses in the Shia south. Iran is also concerned with defending Shia holy sites­­––especially the shrines in Najaf, Karbala, and Samarra—from destruction by ISIS militants, which is how Iran’s activities in Iraq are described in the Iranian press. Iran is equally concerned with maintaining border security and preventing ISIS from gaining footholds along the border that could place the group within striking distance of Iranian cities.

Ostovar photo with borderIran will be working discreetly at both the political and military levels to achieve these objectives. Politically, Iran’s foremost task will be mustering support for Maliki among allied Iraqi politicians and Shia militant groups. Iran does not have a monopoly of influence in Iraq—many Iraqi politicians, clergy, and tribal leaders resent Iran’s sway in their country—but it does maintain close ties with individuals and groups (such as the Badr Organization and Kitaib Hezbollah) that can, through various means, affect what happens on the ground and shape decision-making in Baghdad. In the short term, this effort will be aimed at buffering Maliki from U.S. attempts to push him out of office. Iran could live without Maliki, and might have alternative candidates in mind if the push to oust Maliki gains steam, but for now, Iran sees Maliki as a guarantor of the status quo and has put its chips on him remaining in office.

Iran’s political efforts in Iraq will lay the groundwork for its military assistance. This support will involve six main areas: command and control (C2); logistics and planning; intelligence, surveillance, and reconnaissance (ISR); training and organizing; materiel; and limited combat operations. Iran’s effort is being led by the special operations forces branch of the Islamic Revolutionary Guard Corps (IRGC), known as the Quds Force, and its commander, Brig. Gen. Qassem Suleimani. The Quds Force has close ties to Iran’s supreme leader and operates as an official arm of the Iranian regime in areas such as intelligence and military support in foreign countries. Through this work it has developed strong links with segments of Iraq’s military, security forces, and armed Shia militias. It has coordinated with these elements in Iraqi operations in the past, and has led the integration of Shia militias into the Syrian conflict, where Iraqi fighters from groups such as Asaib Ahl al-Haqq, Liwa Abu al-Fadl al-Abbas, and Kitaib Hezbollah were used to guard the shrine of Sayyida Zaynab near Damascus. Suleimani will utilize this network, as well as his extensive connections within Iraq’s security and political establishments, to distribute Iran’s military aid and oversee all operations in Iraq.

The Iraqi government’s military and security forces suffer from inept leadership, deficient logistics, and poor morale. These factors contributed to the near disintegration of Iraqi forces at the Syrian border and in Mosul, paving the way for ISIS’s near-effortless victories. Iran’s effort in refining C2 operations in Syria appear to have helped solidify Asad’s forces in that conflict, and it is likely that Iran intends to affect the fight against ISIS in Iraq through similar C2—as well as logistical—assistance. Read more »

On “Going Dark”

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Saturday, July 26, 2014 at 4:00 PM

Today’s Washington Post piece by Ellen Nakashima speaks of “going dark”—or the “growing gap between the government’s legal authority and its practical ability to capture communications.”  The article highlights what is, in my assessment, the most significant long-term consequence of the Snowden disclosures: the increasingly adversarial relationship between the government and the private sector. What follows is my assessment of the operational harms that have resulted from the Snowden disclosures, touching on the issue discussed in Nakashima’s piece, last.

There have been at least four different categories of operational degradation caused by the disclosures. First, there are the actions taken by terrorists, other nations and/or organizations or groups that believe (and may now have confirmation based on leaked documents) that they have been targets of NSA surveillance in the past. Armed with detailed information about how, where, and to some extent, against exactly whom, the NSA has been conducting surveillance, these targets have already or will soon change their behavior and operational security. In some cases, that may mean that the NSA will no longer have visibility on a particular target. In other cases, it may mean that Intelligence Community operators and analysts will devote additional time, effort and attention to discovering a target’s new methods of communication, if possible.

Second, there are the actions taken by the U.S. Government in the past year to scale back collection. Some of this scaling back is in accordance with the recommendations of two outside reviews that were conducted, one by the President’s Review Group and another by the Privacy and Civil Liberties Oversight Board (PCLOB). The President adopted a series of interim reforms which he issued on January 17, 2014, through a new directive, Presidential Policy Directive 28 (PPD-28). PPD-28 provides both clarity regarding current practice for signals intelligence, and additional restrictions on collection, use and information sharing of foreign intelligence information.[1] In addition, the President announced that the government generally would no longer conduct collection activities against specific persons or official positions. The Executive Branch has “made determinations to not pursue surveillance on dozens of heads of state and government,” according to a senior administration official.[2] Read more »

The Lawfare Podcast, Episode #85: Fernando Reinares on “Madrid 3/11 Bombings and the Future of Terrorism in Europe”

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Saturday, July 26, 2014 at 1:55 PM

Last week, Professor Fernando Reinares, a senior analyst on International Terrorism at the Elcano Royal Institute, delivered a talk at Brookings on his new book, entitled in English, “Kill Them! Who was Behind 3/11 and Why Spain was Targeted.” The talk covered the March 11, 2004 Madrid bombings, the rise and shape of jihadist networks in Spain, and the evolution of terrorism in Western Europe. In his speech, Reinares provides evidence that the decision to attack Spain was made not in response to the Iraq War, but instead in December 2001 in Pakistan by Moroccan Amer Azizi—previously a charismatic member of Al Qaeda’s Spanish Abu Dahdah cell—and that the Madrid bombing network began its formation in March 2002, more than one year before the start of the Iraq war. He also highlights that as in much of the West today, Spain battles the challenge of jihadist radicalization and recruitment networks that are sending fighters to join the wars in Syria and elsewhere.

Full event information can be found here.

The Week That Was: All of Lawfare in One Post

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Saturday, July 26, 2014 at 10:00 AM

As we noted last week, Lawfare recently received 501(c)(3) tax exempt status. Ben offered thanks to those who have already donated—bringing us about halfway to our fundraising goal. For those of you who have not yet contributed, please consider a tax deductible donation. We are looking to redesign and rebuild the site and need the support of dedicated followers like you.

On Wednesday, Jeremy Scahill and Ryan Devereaux published an Intercept article on the National Counterterrorism Center’s (NCTC) rules for classifying someone a terrorist. Wells shared the story with us.

Ben noted the Guardian’s recent interview with Edward Snowden and remarked that the differing accounts of the former contractor’s job at the National Security Agency (NSA) “warrant clarification.”

Susan Landau considered “the NSA’s subversion of the National Institute of Standard’s (NIST) random number generator” and recommended that Congress act to expand the NIST’s budget.

On Tuesday, Paul flagged news that Senate Judiciary Chairman Patrick Leahy (D-VT) and the Obama administration are close to a deal on a Senate NSA reform bill, which appears to be stricter than the House’s USA Freedom Act.

Paul also highlighted some of the major provisions of the Cybersecurity Information Sharing Act of 2014, which was recently voted out of the Senate Intelligence Committee.

In Bits and Bytes this week, Paul noted a number of “conflict-oriented” headlines.

Ben shared the most recent installment of the Lawfare Research Paper Series. In “The Growth of Data Localization Post-Snowden: Analysis and Recommendations for U.S. Policymakers and Industry Leaders,” Jonah Force Hill, a technology and international affairs consultant, examines the post-Snowden trend toward data localization laws, the problem with such legislation, and methods for countering the negative effects.

Across the pond, Hugo Rosemont analyzed the Data Retention and Investigatory Powers (DRIP) bill, which recently passed the British Parliament. This emergency legislation enables “the retention of communications data and associated powers of interception.”

Cody noted the release of the U.K.’s Independent Reviewer of Terrorism Legislation’s report on 2013 British counterterror laws.

Wells flagged the European Court of Human Rights’ rulings in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland.

Ben shared news that Russia has placed a travel ban on Congressman Jim Moran (D-VA), Rear Adm. Richard Butler, Brig. Gen. Ricardo Sanchez (ret.), Col. Janis Karpsinky (ret.), Judge Gladys Kessler, and Lynndie England.

In this week’s Foreign Policy Essay, former Under Secretary of Defense (Comptroller) Dov Zakheim argued that the United States should allow other countries to take the lead on international development. “America has many strengths, but nation-building is not one of them.”

Stewart Baker provided the Steptoe Cyberlaw Podcast. Orin Kerr, a professor at George Washington University Law School, served as this week’s guest speaker.

Ben posted this week’s Lawfare Podcast, which featured a discussion with Steve Vladeck and Wells on the D.C. Circuit Court’s en banc opinion in United States v. Al Bahlul.

This week, the U.S. District Court for D.C. denied two former Guantanamo detainees’ petitions. Cody shared Judge Ellen Segal’s opinion in Ameziane v. Obama, while Ben provided Judge Richard Leon’s ruling in Rimi v. Obama.

Jody Liu examined recent updates to the Second Circuit case involving the New York Times and the ACLU’s Freedom of Information Act (FOIA) requests on U.S. targeted killing.

Wells flagged news that the military judge in the 9/11 case has severed Ramzi Binalshibh from the terrorism trial proceedings.

Wells also shared news that a defense lawyer for former Guantanamo detainee Omar Khadr got in trouble over documents related to U.S. v. Khadr given to Lawfare.

In media criticism this week: Jack noted a piece written by the Washington Post’s Chris Cillizza on the many, seemingly intractable, problems that modern American presidents face. Jack recommended an essay by Arthur Schlesinger, Jr., which explains why Cillizza’s view is wrong.

Charles Blanchard reviewed Robert Farley’s new book, Grounded: The Case for Abolishing the United States Air Force. He found the book, which argues against an independent U.S. Air Force, to be “fundamentally flawed.”

And that was the week that was.

“Omar Khadr’s Lawyers in U.S. Threatened Over Release of Court Documents”

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Friday, July 25, 2014 at 4:59 PM

That is the headline to an article in the Winnipeg Free Presswhich I came across today. The piece concerns recent proceedings in Omar Khadr’s (stayed) appeal before the Court of Military Commission Review.  It opens thus:

TORONTO – A U.S. military commission court is threatening to strip the security clearance from Omar Khadr’s Pentagon-appointed lawyers as part of what they call an unconstitutional attempt to keep the public in the dark about the Canadian’s fight for exoneration.

At issue, according to submissions made Friday, is a demand by a senior court official that all appeal documents be kept secret until they can be vetted for national security concerns.

Documents already filed with the Court of Military Commission Review include, for example, the former Guantanamo Bay prisoner’s reasons for having his conviction for five war crimes quashed. The court has yet to release the brief, filed last November, although The Canadian Press obtained a copy at the time and reported on its contents.

The matter came to a head earlier this month when Clerk of Court, Mark Harvey, essentially accused the lawyers of giving a defence filing and government response to the U.S.-based blog Lawfare in apparent violation of security procedures he had implemented.

On NSA’s Subversion of NIST’s Algorithm

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Friday, July 25, 2014 at 2:00 PM

Of all the revelations from the Snowden leaks, I find the NSA’s subversion of the National Institute of Standards’s (NIST) random number generator to be particularly disturbing. Our security is only as good as the tools we use to protect it, and compromising a widely used cryptography algorithm makes many Internet communications insecure.

Last fall the Snowden leaks revealed the NSA had influenced cryptography specifications as an “exercise in finesse.” It wasn’t hard to figure out which algorithm had been tampered with. Questions had been raised earlier about Dual EC-DRBG, a “pseudo random bit generator.” (A pseudo random bit generator means the algorithm provides a longer string whose properties mathematically approximate those of a shorter random string; uses of the longer string include providing a key for encrypting communications.) There were two problems here. The removal of the compromised algorithm was handled quickly. The more subtle issue was the impact of NSA’s compromise. This has undermined NIST’s role in developing security and cryptography standards and is likely to have serious long-term effects on global cybersecurity.

This might sound surprising, since NIST’s Computer Security Division (CSD) is solely responsible for developing security and cryptographic standards for “non-national security”— civilian—agencies of the US government. But CSD’s success at promulgating strong cryptography through an open consultative process has given rise to standards widely adopted by industry, both domestically and internationally. Now that success is at risk. To understand the current situation, we need to go back several decades. Read more »

Today’s Headlines and Commentary

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Friday, July 25, 2014 at 1:37 PM

The violence between Israel and Hamas continues to dominate headlines today. According to the Associated Press, at the center of the current conflict is Gaza’s network of underground tunnels, which provide access to both Israel and Egypt.

It appears that the Israeli soldier Hamas claimed to have taken hostage during fighting on Sunday was actually killed during battle that day. The AP points out that “an Israeli soldier in the hands of Hamas could have been a game changer.”

Following the Israeli shelling of a United Nations-run school in Gaza, U.N. officials, including Secretary-General Ban Ki-moon, expressed outrage over the incident. The New York Times shares more details on their statements. Protests in the West Bank followed the incident as Palestinians there showed support for their brethren in Gaza. According to the Financial Times, the demonstrations ended up becoming violent.

The U.N. school bombing has brought greater urgency to the effort towards a cease fire, according to Reuters. In negotiations, U.S. Secretary of State John Kerry proposed a week-long truce, during which Israeli and Palestinian officials would discuss a more permanent deal. The Times reports that the plan is still being worked out.

In an op-ed in the Times, Roger Cohen remarks, “The peoples of the Holy Land are condemned to each other. Without that realization, any truce… will only be a way station to the next round of slaughter.”

Meanwhile, the battle between Israel and Hamas is also being fought in the courtroom. Foreign Policy examines the role of lawfare in the conflict.

Back at home, Republicans are planning to introduce their own version of a bill to provide emergency funding to Israel’s Iron Dome system. The Hill has more.

The Post reminds us that, although the world seems focused only on the situation in Gaza, violence in Syria and Iraq also continues. The past week “may have been the deadliest” in the Syrian conflict so far. According to the Wall Street Journal, Islamic State jihadists yesterday engaged the Syrian military outside Hasakah city in the east. Politico notes that thousands of the militants in Syria appear to hold Western passports, “fueling fears that extremists could relatively easily enter the U.S. to carry out an attack.” Reuters informs us that today, the Jordanian air force intercepted and shot down “an unidentified drone” flying over Jordanian air space near the border with Syria.

In more positive news, nine U.N. trucks carrying “food, shelter, water purification, and sanitation supplies” crossed into Syria yesterday, following a U.N. Security Council resolution which authorized the delivery of aid without Syrian government approval. Reuters has details.

Meanwhile, the Wall Street Journal covers the situation in Iraq, where two isolated attacks in and near Baghdad yesterday claimed the lives of some 60 people. The Post reports that the Islamic State has destroyed a Jewish, Christian, and Islamic holy site in Mosul—the grave site of the Old Testament prophet Jonah. According to the Post, Kurdish security forces are now looking to the United States for military support.

The AP tells us that securing such assistance may be problematic. During a Senate Foreign Relations Committee hearing, Senator Robert Menendez (D-NJ) told State Department and Defense Department officials, “Unless you are going to give us a sense of where the security forces are at, moving forward, this chair is not going to be willing to approve more arms sales so they can be abandoned to go to the hands of those who we are seriously concerned about in terms of our own national security.”

Four journalists—three with U.S. citizenship—have been arrested in Iran on “unspecified charges.” The Post confirms that among the four were Jason Rezaian, the Post’s correspondent in Tehran, and his Iranian wife Yeganeh Salehi, a reporter for the United Arab Emirates based newspaper the National.

Meanwhile, the U.N. International Atomic Energy Agency (IAEA) announced that it would need an additional € 1 million to defray costs associated with the four-month extension of the interim Iran nuclear deal. Reuters has more.

According to the Wall Street Journal, U.S. officials said Thursday that Russia is now firing artillery across the border at Ukrainian military assets. If true, this marks a major escalation of hostilities from a civil-war with Russian involvement, to what could reasonably be considered an international conflict.

Throughout Thursday and today, European Union ambassadors have hammered out a preliminary agreement on new sanctions against Russia, but the details remain to be settled and it could be another week before anything is final, reports Reuters. Key measures include closing EU capital markets to Russian state-owned banks, an embargo on arms sales to Moscow, and restrictions on the supply of energy and dual-use technologies. It seems that new sanctions would not affect supplies of oil or gas from Russia.

The Times tells us that the Ukraine crisis is testing the E.U.’s resolve.  Because of the glacial pace of reconciling competing national interests, the E.U. may prove unable to confront a conflict on its own borders; the Post Editorial Board urges that if the West does not act soon, “it may be too late to save Ukraine.” The L.A. Times suggests that economic sanctions are necessary, as Russia “must pay a price,” but also says that it would be a mistake to give the Ukrainians weapons.

All of this comes as Ukrainian Prime Minister Arseny Yatseniuk has tendered his resignation, citing parliament’s failure to pass legislation to liberalize energy markets in Ukraine and to finance the army. His announcement came after two parties quit the ruling government coalition, forcing new elections for the first time since before the ouster of pro-Russian President Viktor Yanukovich in February. Reuters has more.

The AP reports that both the Netherlands and Australia have announced that they are ready to send a police-led humanitarian mission to secure the site and begin an investigation into the MH17 shoot-down. The Times says that “for all the diplomatic frenzy, there is no sign of an investigation” at the moment.

On MH17, what exactly did U.S. intelligence officials know about the SA-11 missile launcher in Ukraine and when? And, why wasn’t the FAA alerted? The estimable Shane Harris, writing in Foreign Policy, raises these questions and more.

Fourteen civilians have been shot dead in Afghanistan by suspected Taliban gunman today, the Post reports. All fourteen have been identified as Shiite Muslims.

Reuters describes the snail’s pace at which the Afghan vote recount is moving. Apparently, both camps argued over a single result sheet for hours yesterday.

Also in Afghanistan, the Post has an account of how a robotic helicopter allowed the Marines to cut back on the number of vehicle convoys traveling over Afghanistan’s explosive-riddled roads.

How’s this for irony? Pakistani military officials have said that the United States could be doing more to intercept militants crossing the border from Pakistan into Afghanistan as a result of Pakistan’s ongoing military offensive in the region.  According to the Post, the official said, “There should be a hammer and anvil” but the “Pakistan hammer saw no evidence of the anvil on the other side.”

Worried that militants may try to launch attacks in response to the ongoing offensive, Pakistan is putting the military in charge of security in the capital of Islamabad. Reuters has more.

The Wall Street Journal is reporting that two attacks in Nigeria have left 17 people dead.  The Islamist insurgency Boko Haram is suspected to have carried out the two attacks, which occurred hundreds of miles apart.

Writing in the Atlantic, Matthew Levitt tells us that two years after bombing a Bulgarian airport, Hezbollah remains as strong as ever in Europe. While the group does not suddenly have Europe it its crosshairs, the U.S. Treasury Department’s statement this month that Hezbollah continues to buy weapons and technologies from Europe, coupled with its previous attacks, suggests that Europe has not gone after the group “in a meaningful way.”

The Times reports that weather issues, not a ground-launched strike, most likely caused the Air Algerie plane crash in Mali yesterday.

Earlier, we noted the Intercept’s publication of the National Counterterrorism Center’s (NCTC) guidelines for classifying someone a terrorist. Following that story, the Guardian highlights “the ease with which someone can be placed on U.S. watchlists” and contrasts this “with the impact [such] placement has.” In the Atlantic, Conor Friedersdorf argues: “There is no defense for the Obama administration’s avowed belief that a system so opaque and unchallengeable can protect the civil rights… of those subject to it.”

Remember the underwear bomber who successfully smuggled explosives onto an airliner on Christmas Day 2009? Apparently, the bomb failed to detonate because Umar Abdulmutallab “had been wearing the same underwear for more than two weeks,” thus degrading the fuse. The Telegraph shares the dirty details.

Before a Connecticut court yesterday, a Moroccan man, who allegedly tried to fly explosives on “drone-like devices,” pled guilty to perjury in relation to issues with his immigration status. NBC has the story.

The Wall Street Journal examines the origins of the U.S. drone program and the initial internal debates surrounding it, while Motherboard probes the privacy impact of the Federal Bureau of Investigation’s (FBI) use of unmanned aerial vehicles (UAVs).

The Times reports that Chairman of the Senate Judiciary Committee Patrick Leahy plans to file a new National Security Agency (NSA) reform bill next week. His version appears to be much tougher on the NSA than a recent iteration of the House’s USA Freedom Act.

Yesterday, in the 9/11 terrorism trial, a military judge, Army Col. James L. Pohl, severed Ramzi Binalshibh from the proceedings so that the court can evaluate his mental capacity and his potential need for a new lawyer. The Post points out that “the order could accelerate pre-trial proceedings for the four” other defendants in the case.

In an Al Jazeera op-ed, Crofton Black examines yesterday’s ruling from the European Court of Human Rights on Poland’s complicity in the torture of al-Qaeda operatives at CIA “black sites.” Poland called the decision “premature.” Reuters has details.

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A Severance Order in the 9/11 Case

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Friday, July 25, 2014 at 9:59 AM

The Washington Post reports of a new ruling from the military judge yesterday—which I have yet to see, and which isn’t yet available on the military commissions’ website.  The gist:

A military judge ruled Thursday that one of the five defendants being tried at Guantanamo Bay, Cuba, for their alleged roles in the Sept. 11, 2001, attacks be severed from the proceeding.

The decision delivers another in a series of delays to the government’s effort to prosecute Ramzi Binalshibh, a Yemeni described as a key figure in the plot who acted as a liaison between the hijackers and al-Qaeda’s leadership in Afghanistan.

But the order could accelerate pre-trial proceedings for the four others, including the self-proclaimed mastermind of the attacks, Khalid Sheik Mohammed.

Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after the FBI questioned members of his defense team.

 

More Machinations in Second Circuit Targeted Killing FOIA Litigation

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Thursday, July 24, 2014 at 2:02 PM

The release last month of the Al-Aulaqi Office of Legal Counsel memo, it turns out, was not the end of the Second Circuit litigation regarding the New York Times and ACLU’s FOIA requests for information on the government’s targeted killing programs. A petition for rehearing en banc is still pending. And yesterday, the Justice Department, the Pentagon, and the CIA filed a motion for leave to submit ex parte classified and privileged supplemental declarations in support of their petition for rehearing. The issue comes down to a classified index of records withheld by OLC in response to the ACLU’s FOIA request. The court has ordered the index’s release. But in its motion, the government seeks an opportunity to argue that release of the classified index would be inappropriate.

First, a quick recap of the relevant facts: In 2011 and 2012, the Times and ACLU filed separate suits in the Southern District of New York, challenging the government’s responses to their FOIA requests on targeted killing. In the course of the consolidated district court proceedings, the government submitted various declarations. Attached to one classified declaration was a classified index, submitted ex parte and in camera, identifying records withheld by the OLC in response to the ACLU’s FOIA request. The district court granted summary judgment to the government, upholding the government’s withholding of information and the responses to the requests.

On appeal, however, a panel of the Second Circuit reversed and remanded to, among other things, (1) require DOD and CIA to prepare and provide public indices of withheld records, and (2) require DOJ to release the classified OLC index at issue in the present motion. The court of appeals ruled on the latter issue without prompting: neither the Times nor the ACLU had raised the issue on appeal.

The government sought panel rehearing—or alternatively, rehearing en banc—with respect to limited parts of the panel’s decision, including the panel’s order requiring the disclosure of information in the classified OLC index. On July 10, 2014, the panel denied the government’s petition for panel rehearing with respect to the court’s classified OLC index order. The panel stated that although it would exempt either the titles or the descriptions of several listings in the classified OLC index—and both the titles and the descriptions of some others—it would not do so for all the listings specifically identified by the government, and it would not do so for any of the listings not specifically identified by the government. Chief among its reasons for denial of the government’s request for more extensive exemptions, the panel declared that the government already had three opportunities to claim exceptions to disclosure and had failed to make such claims all three times.

The government’s current motion does not “seek to reargue the merits of [the government's] rehearing petition.” Rather, it “seek[s] leave to submit, ex parte and in camera, two declarations explaining that the panel’s decision, as clarified in its recent order of July 10, requires the disclosure of classified information, as well as privileged information and information protected by statute that does not fall within the reasoning of the panel’s underlying decision, thus supporting [the government’s] pending request for en banc review to reverse the order of disclosure and to remand to the district court.” Because the “issue whether specific entries in the classified OLC index should be released was not fully briefed,” the government argues that the court should “provide[] a full opportunity for the appropriate agency officials with expertise to submit declarations explaining the basis of the classification decision.” The nub of the government’s argument is as follows:

OLC submitted its classified declaration and index to aid the district court in camera and ex parte, and the issue whether specific entries in that index were properly classified or privileged was not an issue in this litigation until the panel sua sponte elected to parse individual entries in the OLC index. In addition to these changed factual circumstances, the case involves classified national security information. In these circumstances, the court should not order the information released without providing the government an opportunity to more fully explain the basis of the classified and privileged entries at issue through ex parte declarations.

Moreover, because the OLC index was not prepared with public release in mind, the entries were not written in a way that could have avoided, in certain contexts, language that would disclose privileged or classified information. The government could not have anticipated that it would be called upon to release entries from the index without first having an opportunity to prepare a [public] Vaughn index whose descriptions do not themselves reveal the information sought to be protected.

The motion goes on to explain why, in the three instances the panel cited as missed opportunities to claim exceptions to disclosure, the government either “reasonably” did not claim exceptions or “could not have realistically provided any meaningful explanations” for claiming exceptions.

Previous coverage of the case can be found here.

Today’s Headlines and Commentary

By and
Thursday, July 24, 2014 at 1:40 PM

As crises continue around the world, the Global Database of Events, Language, and Tone (GDELT) Project yesterday unveiled an interactive map, which visualizes the many protests and conflicts occurring globally. Take a look and follow along as we roll through today’s crises.

Let’s start with Europe: the Associated Press reports that Ukrainian Prime Minister Arseniy Yatsenyuk announced today that he is resigning. Meanwhile, yesterday, a fist-fight broke out among members of the Ukrainian Parliament. USA Today has footage. (With all the violence, who can blame Yatsenyuk?)

According to the Wall Street Journal, “If you’re one of those who thought the attack on a civilian plane with Russian missiles would change everything, or even something, you lost.” Indeed, yesterday, Ukrainian rebels shot down two military planes flying over separatist-held territory in the eastern part of the country. The Post and Time share details.

A report released by the Dutch Safety Board yesterday declared that the black boxes on Malaysia Airlines Flight 17 were not tampered with after the crash. Time has more details.

Meanwhile, in an interview with Reuters, Alexander Khodakovsky, commander of the Ukrainian separatist Vostok Battalion, admitted that rebels did possess BUK surface to air missiles. The U.S. believes such a missile system was used to shoot down MH17. Khodakovsky then noted that the anti-aircraft weapons could have been removed following the crash.

A recent poll released by the Chicago Council on Global Affairs demonstrates that American favorability ratings of Russia have “fallen to their lowest levels since the Cold War,” yet few would want to intervene in Ukraine, even if Russia attempted to invade the rest of the country.

Deputy State Department spokesperson Marie Harf declared yesterday that France’s € 1.2 billion deal to supply Russia with two Mistral-class warships is “completely inappropriate” at this time. Defense News writes more on the agreement.

In War Is Boring, Michael Peck informs us of a CIA mission that “hijacked” a Soviet satellite and mined it for information. According to Peck, when and where the theft occurred is still classified.

In the cases of two Guantanamo detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri, the European Court of Human Rights ruled today that Poland violated its obligations under the European Convention on Human Rights to prevent torture by housing a CIA “black site,” where U.S. spies sought to “break” al Qaeda suspects. Reuters has details on the decision.

Meanwhile, the Post reports that Berlin still has a problem with the U.S. over CIA spying in Germany.

Moving on to the Middle East: yesterday, U.S. Secretary of State John Kerry met with Israeli Prime Minister Benjamin Netanyahu, who expressed frustration in response to the Federal Aviation Administration’s (FAA) suspension of all U.S. flights to and from Tel Aviv. The Post examines the Israeli response to the short-lived FAA action. According to Politico, the FAA lifted the ban late last night.

Today, the Israeli Defense Forces bombed a Gaza school run by the U.N. Relief and Works Agency. Reuters reports that at least 15 are dead. Meanwhile, Al Jazeera describes the network of Gaza tunnels, which have become the target of recent Israeli military action.

As a reminder, Haaretz has live updates of the ongoing situation.

The Wall Street Journal outlines a new cease-fire plan, being prepared by the U.S. and Middle East allies. The AP notes that while diplomatic officials work out this agreement, Senators Lindsey Graham (R-SC), Chuck Schumer (D-NY), and Ben Cardin (D-MD) sent a letter to President Obama yesterday, insisting that “any viable cease-fire between Israel and Hamas militants must eliminate the threat posed by Hamas rockets and tunnels.” The Post Editorial Board seems to agree with the three lawmakers.

However, America’s many ties to Israel “are reviving questions about whether the United States can be an honest broker for peace,” writes the Post. Indeed, according to the New York Times, though many Americans are still largely supportive of Israel, the rest of the world appears to be turning against the Jewish State. Yesterday, the United Nations Human Rights Council agreed to examine purported war crimes committed by Israel. The Guardian shares more on the probe.

Meanwhile, in Politico, Henry Siegman argues that “Israel provoked this war.”

The dance in Iraq these days seems to go like this: one step forward, two steps back.

Reuters reports that on Thursday, Iraq’s parliament elected senior Kurdish politician Fouad Masoum president. While the election of Mr. Masoum is a positive step, electing a prime minister may be far more difficult. The Army Times tells us that Iraq’s sitting Prime Minister Nouri al-Maliki has rejected an attempt by Iran, the Shia politician’s staunchest ally, to persuade him to step down.

According to Reuters, the United Nations is reporting that the Islamic State has ordered all women and girls in and around Iraq’s northern city of Mosul to undergo female genital mutilation. Such a decree could affect up to 4 million females in the area. This comes as an attack in Baghdad killed 52 prisoners and nine policemen today. Reuters also has information.

The Post notes that in the United States, lawmakers continued to clash on Wednesday over the American response to Iraq’s growing militant groups. At a House Foreign Affairs Committee, Republicans suggested drone strikes should have been authorized months ago, while even some Democrats appeared to question the Administration’s approach. According to the Wall Street Journal, Brett McGurk, Deputy Assistant Defense Secretary for Iraq and Iran, described the Islamic State as a “full-blown army” that is worse than al Qaeda. Foreign Policy has more from the hearing, including information on how the Iraqi government ignored U.S. warnings about the ISIS threat to the country.

In their efforts to push back against the Islamic State, Human Rights Watch has accused the Iraqi military of killing dozens of civilians and wounding hundreds more in indiscriminate air strikes, many of which they claim have used barrel bombs. The group said the United States should stop providing weapons to Baghdad “until it complies with international law.” The Post has the story.

Ben Hubbard in the Times writes about life inside the Islamic State, where order and some semblance of normal life comes at the cost of public executions and strict social codes.

Meanwhile, the threat from militant groups operating in Syria and Iraq may already be spreading to the West. The Associated Press has a startling report that Norway’s intelligence service has been warned of an imminent, “concrete threat” against the nation from people with ties to Islamic fighters in Syria. The head of the Norwegian security service said that some kind of attack may occur “within days.” Norway estimates that at least 50 people have traveled to Syria from Norway as foreign fighters, and that at least half have returned.

Along the same lines, the Times reports that a 25-year-old from British Columbia has been charged under a new antiterrorism law. He is accused of joining Islamists fighters in Syria, after leaving Canada in January.

And as the profile of the Islamic State rises, al Qaeda is continuing to rebrand itself in an effort to counter the new group’s support within the jihadi community. Jihadica has more on the “recasting of Mullah ‘Umar,” who is now not only the leader of the Afghan Taliban, but also a counter-Caliph.

Perhaps too predictably, an audit of the Afghan presidential election is not going well. On Wednesday, election authorities halted the inspection of the 8 million ballots, raising concerns that the process could take months to complete. The inquiry was expected to resume today; the Post shares more.

With political chaos in the capitol, two Finnish female aid workers were killed in the western Afghan city of Herat today. The Post provides more details on the murder, which Finland’s prime minister has called “a great tragedy.”

Turning to Africa: the fiercest fighting since the war to oust Gaddafi continued today in Libya. Reuters reports that at least nine people were killed and 19 wounded in clashes in Benghazi as the government tried to drive Islamist militants from the city.

Michael Pizzi, writing in Al Jazeera, details the story of a rogue and controversial Libyan ex-general, Khalifa Haftar, who has mounted an offensive to defeat extremists militias in Libya’s eastern city of Benghazi.

Suicide bombings have killed at least 82 people in Nigeria since yesterday, reports Reuters. According to the report, the attacks carried all the indicators of the Islamist militant group Boko Haram.

As violence escalates in Somalia, five people, including two women in the United States, have been charged with providing financial support to Al-Shabab. According to the U.S. Attorney’s Office for the Eastern District of Virginia, each woman has been charged with 20 counts of “providing material support to a foreign terrorist group.” Al Jazeera has more.

This morning, a plane operated by Air Algerie and traveling from Burkina Faso to Algiers crashed in Tilemsi, Mali. According to the Wall Street Journal, around 1:55 am local time, air traffic controllers lost radar contact with the jetliner, which was carrying 116 people. The Post also carries the story.

Politico examines deliberate threats to civilian aircraft and “our new fear of flying.”

On the home front: the Hill reports that U.S. Republican lawmakers have introduced legislation that would force President Obama to give Congress power to reject a deal with Iran and reimpose sanctions if a final deal does not meet their expectations. The bill would also impose a November 28 deadline on negotiations.

Jeremy Scahill and Ryan Devereaux inform us in the Intercept of recent updates to the National Counterterrorism Center (NCTC)’s guidelines for naming someone a terrorist. The new revisions to the “March 2013 Watchlisting Guidance” “allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations.” The Post and National Journal have more on the story, while Wells shared the Intercept story on Lawfare.

The Post’s Scott Higham outlines the brewing controversy behind the FBI’s new “Insider Threat Program” and how similar programs may prevent legitimate whistleblowers from coming forward.

The Defense Advanced Research Project Agency announced that because its competition to create a human-like robot has so far exceeded expectations, some of the teams involved will have an extra six months to “raise the bar.” Roll Call has the story, and seriously, watch the video.

Politico has learned that President Obama plans to issue an executive order to develop privacy guidelines for commercial drones operating in U.S. airspace.

If you already have a drone, check this map before you fly it. The interactive map, hosted by Wired and developed by Mapbox, shows where it is legal to fly a drone.

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.

ECHR: Poland’s Role in CIA Black Site Violated Detainees’ Human Rights

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Thursday, July 24, 2014 at 10:08 AM

The European Court of Human Rights (“ECHR”) today handed down a pair of judgments in long-running human rights cases brought against Poland by two U.S. terrorism detainees—Abu Zubaydah and Abd Al Rahim Hussayn Muhammad Al Nashiri.  As is well known, both had alleged violations of the Convention for the Protection of Human Rights and Fundamental Freedoms, arising from their detention and interrogation, in Poland, at the hands of the Central Intelligence Agency.

I have only skimmed the two rulings; the ECHR’s press office sums them up as follows:

The cases Al Nashiri v. Poland (application no. 28761/11) and Husayn (Abu Zubaydah) v. Poland (no. 7511/13) concerned allegations of torture, ill-treatment and secret detention of two men suspected of terrorist acts. The applicants allege that they were held at a CIA “black site” in Poland.

In today’s Chamber judgments, which are not final, the European Court of Human Rights held, unanimously:

in both cases, that Poland had failed to comply with its obligation under Article 38 of the European Convention on Human Rights (obligation to furnish all necessary facilities for the effective conduct of an investigation);

in both cases, that there had been:

a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects;
a violation of Article 5 (right to liberty and security);
a violation of Article 8 (right to respect for private and family life);
a violation of Article 13 (right to an effective remedy); and,
a violation of Article 6 § 1 (right to a fair trial).

As regards Mr Al Nashiri, the Court further held that there had been a violation of Articles 2 (right to life) and 3 of the Convention taken together with Article 1 of Protocol No. 6 (abolition of the death penalty).

Having regard to the evidence before it, the Court came to the conclusion that the applicants’ allegations that they had been detained in Poland were sufficiently convincing. The Court found that Poland had cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory and it ought to have known that by enabling the CIA to detain the applicants on its territory, it was exposing them to a serious risk of treatment contrary to the Convention.

What Exactly Was Edward Snowden’s Job?

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Wednesday, July 23, 2014 at 8:29 PM

The New York Times the other day ran this story about an interview Edward Snowden gave to the Guardian in Moscow. The Guardian interview made a few waves because of Snowden’s claim that NSA analysts passed around racy photos they had intercepted. I was struck by a different aspect of it. The New York Times characterized it as follows:

For at least the second time in an interview, Mr. Snowden cast himself as someone who had far more responsibility than a low-level contractor, as some American officials have described him.

“I began to move from merely overseeing these systems to actively directing their use,” he said. “Many people don’t understand that I was actually an analyst and I designated individuals and groups for targeting.”

NSA has consistently described Snowden as a systems administrator. I have noted the disparity before between his self-portrait and the agency’s portrayal of him. It shows up in Glenn Greenwald’s book, for one thing. But it seems to me to be growing more acute. Snowden portrays himself himself as a spy and an operative. The agency portrays him as a IT guy. The difference is important because it goes to what he reasonably could be expected to know about agency procedures, rules, and analytical approach, procedures, and culture. It seems to me at this stage to warrant clarification.

Another Day, Another Former Guantanamo Detainee Can’t Get Back in Court

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Wednesday, July 23, 2014 at 8:17 PM

This time it’s Mohammad Rimi, transferred to Libya back in 2006. The judge is Richard Leon. Here’s the opinion. Here’s the order.

The Intercept on NCTC Guidance for Putting People on Terrorism Watchlists

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Wednesday, July 23, 2014 at 4:30 PM

Over at the Intercept, Jeremy Scahill and Ryan Devereaux have this piece on the NCTC’s guidelines for adding citizens and foreigners to terrorism watchlists. Their article opens:

The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.

The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.