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Steptoe Cyberlaw Podcast, Episode #50: An Interview with David Sanger

Thursday, January 22, 2015 at 2:00 PM

Our guest for Episode 50 of the Steptoe Cyberlaw Podcast is David Sanger, the New York Times reporter who broke the detailed story of Stuxnet in his book,  Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power.  David talks about his latest story, recounting how North Korea developed its cyberattack network, and how the National Security Agency managed to compromise the network sufficiently to attribute the Sony attack.  We talk about how understanding the White House helped him break a story that seemed to be about NSA and the FBI, North Korean hackers’ resemblance to East German Olympic swimmers, and the future of cyberwar.

Michael Vatis and I also cover a news-rich week, beginning with capsule summaries of the President’s State of the Union proposals for legislation on cybersecurity information sharing, breach notification, and Computer Fraud and Abuse Act amendments.

We touch on Europe’s new commitment to antiterrorism surveillance, which officially puts a still-Snowden-ridden United States out of step with just about every developed nation.

I try to summarize the new National Academy of Sciences’ study on why there isn’t an easy software substitute for bulk collection.  (Short answer:  If you want to recreate the past, you have to bulk-collect the present.)

We ask whether the DEA was the inspiration for NSA’s 215 bulk collection program, call out Rep. Sensenbrenner, who evidently skipped the DEA briefings as well as NSA’s, and wonder why Justice didn’t explain to Congress last year that NSA’s program wasn’t that big a leap from the Justice Department’s own bulk collection – instead of quietly trying to bury its program when the heat built up on NSA.  (OK, we didn’t really wonder why Justice did that.)

If you judge by their joint press conference, Prime Minister Cameron seems to have done more to convert President Obama to skepticism about widespread unbreakable encryption than Jim Comey did.  Save your Clipper Chips, key escrow will rise again!

Finally, Centcom’s public affairs team, which can’t keep ISIS sympathizers out of its Twitter and YouTube feeds, deserves 24 hours of deep embarrassment, which is surprisingly exactly what it gets.

Breaking Bad Drones

Thursday, January 22, 2015 at 12:32 PM

Just in time for Gabriella Blum and my forthcoming book, The Future of Violence: Robots and Germs, Hackers and Drones: —Confronting A New Age of Threatcomes this story from the Associated Press:

Police in a Mexican border city said Wednesday that a drone overloaded with illicit methamphetamine crashed into a supermarket parking lot.

Tijuana police spokesman Jorge Morrua said authorities were alerted after the drone fell Tuesday night near the San Ysidro crossing at Mexico’s border with California.

Six packets of the drug, weighing more than six pounds, were taped to the six-propeller remote-controlled aircraft. Morrua said authorities are investigating where the flight originated and who was controlling it. He said it was not the first time they had seen drones used for smuggling drugs across the border.

Thoughts on the Al-Marri Release

Thursday, January 22, 2015 at 10:28 AM

In October 2009, Ali Saleh Al-Marri was sentenced to more than eight years in prison under a plea deal the Al Qaeda sleeper agent had struck with federal prosecutors. Quietly, on January 16, Al-Marri was released—having served just over five years of his time.Screen Shot 2015-01-22 at 8.59.12 AM

Reports the Washington Post:

Ali Saleh Mohammad Kahlah al-Marri, 49, was released from a maximum security prison in Florence, Colo., on Friday, officials at U.S. Immigration and Customs Enforcement (ICE) said. Hours later, he boarded a commercial flight at Denver International Airport, escorted by ICE officers, and began his journey back to the Qatari capital, Doha.

Marri’s release and deportation, carried out without fanfare, is a milestone for the Obama administration as it seeks to unwind the web of military detentions and legal cases that resulted from the Sept. 11, 2001, attacks on the United States.

You remember Al-Marri. He’s the Al Qaeda guy who was first held as a material witness, then prosecuted in federal court, then whisked to military detention for several years and then—at the start of the Obama administration—brought back to federal court, where he pled guilty to conspiracy to aid Al Qaeda. He’s bad and scary guy who came here on the eve of the September 11 attacks, having volunteered his services to Khalid Sheikh Mohammed.

And now he’s free. Read more »

A Return of the Executive Branch Ban on GTMO Transfers to Yemen?

Thursday, January 22, 2015 at 9:51 AM

From this ABC/Associated Press piece:

In another challenge to President Barack Obama’s efforts to close the Guantanamo Bay prison, a ban on transferring detainees to Yemen has been effectively pushed back into place because of security concerns in the volatile Middle Eastern nation, administration officials say.

While Obama approved sending detainees back to Yemen nearly two years ago, his administration has yet to use that authority. And officials say deep concerns about the threat posed by a Yemeni-based al-Qaida offshoot have removed that option for the foreseeable future, although that could change if conditions improve. The officials described the stance on condition of anonymity without authority to speak on the record.

Obama insisted in his State of the Union address Tuesday that he will not relent in his determination to close Guantanamo before he leaves office, and the administration is working on agreements with third countries willing to take Yemenis who are clear to leave the U.S. prison in Cuba. Nearly two-thirds of the remaining 122 detainees are from Yemen, including 47 of the 54 who have been approved for transfer.

The question is what this means for GTMO transfer policy—as practiced.

On that subject, readers will recall a forehead-slappingly bad proposal, put forth recently by Senator Kelly Ayotte and others, to greatly restrict the executive branch’s ability to offload Guantanamo detainees. One of the would-be law’s odder features is a block on all GTMO transfers to Yemen. The provision very much has a solution-in-search-of-a-problem quality to it: No detainee has been sent from GTMO to Yemen since 2009, bar one Yemeni national who prevailed before a habeas judge.

Of course, shortly thereafter, in response to Abdulmutallab’s attempted airline bombing, the White House unilaterally imposed its own Yemen “ban,” only to rescind it in 2013 and adopt a “case by case” approach to potential Yemen transfers from GTMO. Yet that rhetorical shifting of gears didn’t lead to a raft of Yemeni repatriations or transfers. Indeed, it didn’t lead to any, in part because of the deteriorating security situation in Yemen and the Hadi regime’s tenuous grip on power. The executive branch has monitored that closely, and thus proceeded with caution—by moving Yemeni nationals and other detainees at GTMO to places other than Yemen.  (As for non-GTMO detainees, to my knowledge, only two Yemenis have been repatriated—from the United States’ facility at Parwan.)

Despite all this, Senator Ayotte and company would insist on a statutory prohibition on Yemen transfers—evidently on the theory that the blinkered executive branch might overlook the discouraging facts on the ground, and recklessly whisk detainees to Yemen en masse. If true, then today’s news ought to take that reality-ignoring scenario off the table, at least for the foreseeable future. And maybe that will give Senator Ayotte pause, and encourage her to rethink—withdraw—her unwise bill.

You Are a Lawyer in the Executive Branch

Wednesday, January 21, 2015 at 8:24 PM

Correspondence finds its way into your inbox, bearing the signature of the newly-installed Chairman of the Senate Select Committee on Intelligence, Senator Richard Burr.

His letter (per today’s New York Times) last week was sent to the White House, and sets forth an unusual request: In it Senator Burr allegedly asks “the executive branch” to return all copies of the Committee’s study of the CIA’s detention and interrogation practices—meaning, of course, not the declassified and widely-circulated Executive Summary of the study, but the still-classified, Big Kahuna.

The question is how to proceed. Copies of the study, as you know, are in your client’s possession precisely because the Committee earlier—under the leadership of its prior Chairman, Senator Dianne Feinstein—transmitted the document to the White House and some three-letter agencies. Further complicating matters is this fact: The study has been sought for some time now, in thus far unresolved litigation brought against the CIA under the Freedom of Information Act (“FOIA”). But the Committee is not subject to that famed statute—as you, and your colleagues in the Justice Department who handling the FOIA case, are also well aware.

So: Do you hand the thing over—and thus risk undermining the FOIA suit, offending a federal court, and causing a public backlash?


Odds are Senator Burr’s request likely won’t be honored any time soon by the executive branch. And indeed it absolutely shouldn’t be, to the extent it seeks materials requested in a pending FOIA action. (And this is not to say there might not be other reasons to brush the letter aside, either; I know counsel in the high-value detainee military commission cases will want to get their hands on the study, given the defense’s long-standing desire to litigate the relationship between pre-trial abuse and the possible criminal penalty.  There’s also the question of precedent-setting in congressional-executive relations. I would wonder about what the long-run consequences of returning the study to the Committee might be in this respect as well.)

Perhaps we’ll learn more from a CIA filing in the FOIA case—which I understand is due to be filed tomorrow.

[This post was updated this morning.]

The State of the Union on Counterterrorism: Does The Rhetoric Match the Policies?

Wednesday, January 21, 2015 at 4:28 PM

On counterterrorism, the President’s speech was a study in mismatches—as was apparent last night in at least two respects.

First: The address began with an odd intermix of statements related, on one hand, to the economy, and on the other hand, to post-9/11 military engagement and the subsequent end of the wars in Afghanistan and Iraq. The President then stated, “The shadow of crisis has passed.”

If only.

In the past month it has become absolutely obvious that, despite success in dismantling so-called “core” al Qaeda and the killing of Bin Laden, the global Islamist threat has undergone a resurgence in the past few years. Leadership vacuums in Iraq, Syria, and Yemen, for example, have allowed next generation al Qaeda outfits such as the Islamic State in Iraq and the Levant (ISIL) and al Qaeda in the Arabian Peninsula (AQAP) to thrive. And the smallest sampling of recent press reports reveals that a new generation of terrorist networks across Europe have emerged; ISIL is, literally, crucifying people; and journalists continue to be targeted and murdered. That, and over 250 girls in Nigeria were kidnapped by Islamist terrorist organization Boko Haram nine months ago, and no one has apparently tried hard enough to find and rescue them.

His characterization of the terrorism threat to one side, what to make of the President’s plans for countering that threat?  Here a second if somewhat different disconnect was in evidence.  On one hand, last night’s speech contained the requisite tough talk—a commitment to “hunt[ing] down” and “tak[ing] out” terrorists, as well as dismantling their networks. President Obama likewise mentioned the coalition effort to “stop the advance” of ISIL. But this bold-sounding stuff didn’t really link up to the ideas noted in the address, which mostly struck me as more oriented to process than substance.

The President called on Congress formally to authorize the ISIL campaign, for example—despite having quietly concluded, earlier on, that he has the necessary authority already—but he didn’t say much about long-term strategy, or operational tactics. The surveillance discussion was along similar lines. Unlike his clear call for Congress to take up cybersecurity legislation, the President notably did not highlight legislative proposals for surveillance reform. He did not, for example, call on Congress to pass the sweeping surveillance reform act that would end the telephone counterterrorism metadata program and add an institutional advocate to litigate national security surveillance before it can be implemented by national security agencies, among other things. Instead the President argued in general terms that America’s commitment to civil liberties must be upheld, so as to ensure optimal cooperation from foreign nations and industry; in this regard he noted the executive branch plans to issue a new report next month, on its progress in implementing surveillance reforms throughout the intelligence community. Read more »

Today’s Headlines and Commentary

Wednesday, January 21, 2015 at 2:05 PM

Last night, President Barack Obama gave his sixth State of the Union address.Throughout the speech, the Associated Press notes, the president returned to the theme of “turning the page,” both in domestic and foreign policy. In doing so, he touched on a number of issues of interest to Lawfare readers. Below, we have included relevant passages from the speech and paired them with the day’s news in those subjects.

“As Americans, we cherish our civil liberties, and we need to uphold that commitment if we want maximum cooperation from other countries and industry in our fight against terrorist networks.  So while some have moved on from the debates over our surveillance programs, I have not.”

The European Union is considering a series of initiatives aimed at preventing further terrorist attacks, including a new data retention law that would authorize the collection and storage of large amounts of personal data. The Intercept notes that a similar law was struck down by the European Court of Justice last year as “suspicionless mass surveillance.” In France and Europe, government officials have demanded that US tech firms, including Google, Twitter, and Facebook, police their websites and remove content that promotes terrorism. Otherwise, the Wall Street Journal reports, these countries have threatened to pass laws forcing the firms to do so.

“As Americans, we respect human dignity, even when we’re threatened, which is why I have prohibited torture, and worked to make sure our use of new technology like drones is properly constrained.”

The New York Times reports that an internal CIA report commissioned in 2009 by former CIA director Leon Panetta found that the agency consistently inflated the value of intelligence gleaned through brutal interrogations. The CIA has publicly criticized the report, saying that its review of the relevant documents was shoddy and incomplete.

“No foreign nation, no hacker, should be able to shut down our networks, steal our trade secrets, or invade the privacy of American families … So we’re making sure our government integrates intelligence to combat cyber threats, just as we have done to combat terrorism.”

An annual report released by the Pentagon’s chief weapons tester reveals that almost all US weapons systems tested last year presented “significant vulnerabilities” to cyber attacks, according to Reuters. While the director credited the Department of Defense with working to address previously-discovered weak spots, this year’s tests revealed software problems and other vulnerabilities that left programs open to even basic hacking techniques.

“In Iraq and Syria, American leadership — including our military power — is stopping ISIL’s advance … Now, this effort will take time.  It will require focus.  But we will succeed.  And tonight, I call on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.  We need that authority.”

The United Nations has stated that ISIS has committed dozens of executions in Iraq over the past month, the Times writes. These executions are often preceded by show trials serving no purpose other than to announce the accused’s crimes, and have targeted children, female professionals, and ISIS fighters themselves, among others. A new video from ISIS surfaced Tuesday, showing a masked man threatening to kill two Japanese hostages if Japan fails to pay $200 million in ransom. The Wall Street Journal reports that Japanese prime minister Shinzo Abe has vowed to use all diplomatic means available to secure the hostages’ release and that Japanese officials have stated that the nonmilitary aid Japan provides in the region is “not aimed at killing Muslims.”

In Iraq and Syria yesterday, the US-led coalition conducted 19 airstrikes, Reuters informs us. In Syria, attacks clustered around the now-symbolic border town of Kobani, while airstrikes in Iraq hit positions near a number of major cities.

Further clashes between Yemeni government forces and Houthi rebels erupted in the country’s capital of Sana’a Tuesday, Reuters reveals. According to the Wall Street Journal, Houthi forces captured the presidential palace. Reuters and the Daily Beast carry conflicting reports on whether or not Yemeni President Abed Rabbo Mansour Hadi was in the residence at the time of the attack. In the same Daily Beast piece, Jamie Dettmer details the complications that the upheaval creates for the US campaign against al Qaeda in the Arabian Peninsula (AQAP) in Yemen, which had been presented as an example of the success of drone-strike counterterrorism.

The Times provides a brief look into the Houthis’ identity, noting the rebels are in conflict with AQAP, as well as the government, and are allegedly backed by Iran. Gregory D. Johnsen of Buzzfeed has a similar piece, tracing the rebels’ history from Yemen’s civil war in the 1960s to today.

“We’re upholding the principle that bigger nations can’t bully the small — by opposing Russian aggression, and supporting Ukraine’s democracy, and reassuring our NATO allies.”

Reuters reports that Russia will seek an immediate ceasefire in the Ukrainian crisis during today’s multilateral talks with representatives from Ukraine, Germany, and France. Meanwhile, however, another Reuters report details accusations by the Ukrainian military that Russian regular forces have attacked Ukrainian army units.

“Between now and this spring, we have a chance to negotiate a comprehensive agreement that prevents a nuclear-armed Iran, secures America and our allies — including Israel, while avoiding yet another Middle East conflict.”

The AP notes that a new confidential UN report credits Iran with thus far upholding its pledge to halt the expansion of its nuclear capabilities during multilateral negotiations on its nuclear program. However, Iran has signed a military cooperation deal with Russia in response to US “interference,” according to Agence France-Presse.

In Tel Aviv, 12 Israelis were stabbed by a Palestinian man on a city bus, Haaretz shares. Three victims were in critical condition after the attack, and the assailant was shot in the leg. Israeli Prime Minister Benjamin Netanyahu blamed the attack on the Palestinian Authority and its “venomous incitement against the Jews and their state.”

“Instead of sending large ground forces overseas, we’re partnering with nations from South Asia to North Africa to deny safe haven to terrorists who threaten America.”

Dominic Ongwen, a commander in the Lord’s Resistance Army recently handed over to the US military, has been transferred to the custody of the International Criminal Court, the AP reports. Ongwen surrendered to a rebel group in the Central African Republic, who in turn gave Ongwen to the US and is now attempting to claim the $5 million bounty placed on Ongwen by the US State Department.

ICYMI: Yesterday on Lawfare

During President Obama’s State of the Union Address, Ben shared passages from the speech relevant to the Lawfare community.

Ben and Andy Wang took aim at the news media on two counts yesterday, criticizing major news outlets for ignoring the atrocities being perpetrated by Boko Haram in Nigeria and for misreporting the release of a memoir by a Guantanamo detainee.

Andy also brought us a broad overview of the recent National Research Council recent report that found no viable software-based alternative to the bulk collection of data.

Bobby flagged the news that two Yemeni members of al Qaeda were captured in Saudi Arabia and have been brought to New York to face a civilian trial.

Susan Landau responded to David Cameron’s recent proposal to ban encrypted communications to increase security by arguing that the biggest threat to a nation’s security is posed by less, not more, secure communications.

Paul Rosenzweig explored the security aspects of Passenger Name Records (PNR) systems, and wondered if the EU’s previous opposition to such tools would be reversed in the aftermath of the Charlie Hebdo attacks.

Stephanie Leutert looked into the nuances of deportation statistics and the intricacies of the administration’s deportation policies.

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.


The French Response to Terror: Counterterrorism Detention and Prosecutions Across the Atlantic

Wednesday, January 21, 2015 at 12:15 PM

In the aftermath of the Paris terror attacks on Charlie Hebdo and a kosher grocery, Western European security forces unleashed a dizzying storm of arrests and prosecutions and announced “exceptional” new measures to combat terrorism. In the space of just a few days, dozens of suspects were detained in Belgium, France and Germany, many of whom were questioned for days without charges or the presence of an attorney. Only Tuesday, a full four days after the initial arrests, did the first announcements of forthcoming criminal charges begin to emerge from the French authorities.

Few of these recent detentions would likely have been possible in the United States, where, as a general matter, probable cause and habeas standards severely restrict police’s ability to seize and interrogate suspects. (Of course, some of these regimes were tested in the years following 9/11. Padilla and the material witness statute come to mind, for example.) Still, to Americans accustomed to more iron-clad constitutional protections, this sudden storm of aggressive police activity likely seems a violation of basic civil liberties. But in many European countries, the entire apparatus of the criminal justice system is structured to allow police and prosecutors far more robust investigative and detention tools. The European reaction to the Paris attacks thus demonstrates just how contextual American norms of security and liberty norms actually are. Even more, they highlight the irony in the intense global focus directed at United States’ national security programs—a focus that often ignores countries where protections on civil liberties are markedly weaker.

In France, for instance, the level of suspicion necessary for arrests is significantly lower than the American “probable cause” standard. Whereas “probable cause” requires “reasonably trustworthy information… sufficient to warrant a prudent man in believing” that the suspect has committed a crime, French law simply requires that there arresting officers have “plausible reasons to suspect” an arrestee.  French arrests are thus often made for the explicit purpose of conducting the interrogations necessary to actually gather enough evidence to file charges. Unlike in the US where charges must usually be filed within a 24-hr period, French suspects can be held for multiple days at the discretion of police and a special detention magistrate (juge des libertés et de la détention). And in terrorism cases, this period of pre-charge detention and interrogation can last for four days – a tactic that was apparently used against the four terror suspects charged (and five more released) earlier today.

For years, French detention powers were even stronger, allowing police to interrogate suspects extensively while limiting contact with attorneys to brief preliminary consultations. But in 2010, the French Supreme Court issued a series of rulings beefing up arrestees’ rights during this period of preliminary police detention (garde a vue). Now, although access to lawyer can still theoretically be denied in the most exceptional circumstances, such tactics are are exceedingly rare and subject to the strictest judicial review. Read more »

The Arguments About Guantanamo are Nearly All Wrong, Disingenuous, Irrelevant, or Just Plain Dumb

Wednesday, January 21, 2015 at 9:25 AM

Last night, President Obama restated his long-standing desire to close Guantanamo: “As Americans, we have a profound commitment to justice—so it makes no sense to spend three million dollars per prisoner to keep open a prison that the world condemns and terrorists use to recruit.  Since I’ve been President, we’ve worked responsibly to cut the population of GTMO in half.  Now it’s time to finish the job.  And I will not relent in my determination to shut it down.  It’s not who we are.”

Needless to say, Republican fans of Guantanamo continue to oppose releases from the facility, much less closure of it. Over the past few weeks, as a number of transfers have taken place and these have—wrongly, in my view—increased the sense of momentum towards actual closure, I have been struck  by how lousy the argumentation has been on all sides about the merits of the matter.

To put it bluntly, I find none of the arguments on either side compelling.

The opponents of Guantanamo closure are embarrassing themselves. Distinguished senators are arguing for new restrictions on transfers. Commentators are recklessly connecting releases from Guantanamo to what happened in Paris (if you’ve missed the connection here, both have something to do with Yemen). We hear repeatedly that all detainees at Guantanamo now are the worst of the worst—which is certainly false. We hear that a large percentage of released detainees have returned to the fight—which is true but ignores the difference between bulk transfers in the past and the highly individualized review and special arrangements that detainees are getting today. And underlying it all is the silly and quite destructive idea that it should be impossible to bring detainees to the United States for either criminal prosecution or continued detention.

Yes, if you rule out all other options (transfer, release, detention elsewhere, and prosecution), Guantanamo becomes a necessity. But that’s not an argument. It’s a tautology.

The “close Guantanamo” folks are little better. Most recently, we have been hearing how expensive the facility is, as though the human rights movement is traditionally animated by fiscal matters. It’s true, but the marginal cost of Guantanamo is a rounding error on a rounding error. And more importantly, money is not why anyone opposes the site. When was the last time you heard anyone say, “I really think the optimal location for U.S. detention operations is Guantanamo Bay, but I favor closing it because of the cost”? I haven’t either.

We hear that Guantanamo is a recruitment tool for the enemy—a notion the administration has long oversold. To whatever extent it’s true, it will be just as true of Guantanamo’s successor. And more broadly, U.S. policy in a thousand areas is a recruiting tool of an enemy that hates the United States.

We hear that Guantanamo is illegal. It’s not.

We hear that it’s against our values, that it’s “not who we are.” But the proponents of this view—including President Obama—propose to continue law of war detentions somewhere else, meaning that it is who we are. And the proponents of this view who actually mean it—like the human rights groups—are never quite prepared to say what they really mean: that they favor releasing Abu Zubaydah and Hambali and the other hardest-core terrorists at the site against whom no criminal charges have yet materialized.

The whole discussion is an exchange of bad arguments that shouldn’t move a thinking public.

And there’s a reason for this: We’re debating the wrong question—the location of a policy instead of a policy itself. Guantanamo is a political symbol, nothing more. Yet we’ve mapped onto it a set of political brandings about attitudes towards “toughness,” the “rule of law,” law enforcement vs. military visions of counterterrorism, and a hundred other issues that have little to do with the men held there or the legal status of their detentions. Guantanamo is a proxy for the fights we wish to have about such matters, waged by people who often have a very limited sense of who is there and what the realistic alternatives to detaining them there actually are. It makes for a terrible debate on both sides.


The Obama Administration Does Not Want a New AUMF

Wednesday, January 21, 2015 at 6:35 AM

Last night the President “call[ed] on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.”  This comes on the heels of his November statement that “I’m going to begin engaging Congress over a new authorization to use military force against ISIL.”  Which came on the heels of his September statement that he “welcome[d] congressional support” for a new AUMF for the Islamic State.   The President has not accompanied this very slight rhetorical progression with any indication of what he wants the new AUMF to say or do, or with any action to secure a new AUMF.  I have previously explained that historical practice shows that “President Obama won’t get an AUMF from Congress unless he formally asks Congress to act, proposes terms, and pushes for enactment; or unless the fight against Islamic State goes so badly that Congress intervenes in reaction.”  The White House knows this history, and the reasons why a presidential proposal and push are vital to securing a new AUMF.  But the President himself has said and done nothing beyond uttering the non-conclusive words above.  His Administration’s actions have been non-committal, both in Secretary of State Kerry’s hard-to-fathom passive performance before the Senate Foreign Affairs Committee in December, and in the White House’s persistent refusal, despite many congressional requests, to offer draft language for a new AUMF.

At this point it seems pretty clear that the Obama administration is not serious about securing a new AUMF.  It seeks to appear to want to put the fight against the Islamic State on a stronger legal footing.  But its actions reveal that it doesn’t really want this (and that the President doesn’t mean what he often says about the importance to our democracy of having the contemporary Congress on board in this context).  Really wanting to put the fight on a stronger legal footing requires taking a position on what is needed and why, and pushing hard for it.  The administration has never shown any taste for working with Congress on AUMF-related issues, dating back to the 2009 Archives speech (when the President pledged “work with Congress to develop an appropriate legal regime” for long-term detention, but never followed up), and the 2013 National Defense University speech (when the President pledged to “engage Congress about the existing Authorization to Use Military Force” in efforts to “refine” its mandate, but never followed up).  And it doesn’t show a taste for it now.

Part of this reticence flows from the administration’s well-known distaste for the politics of these issues.  But part of it, I suspect, is that the President does not want his legacy associated with a new AUMF that extends the endless war against Islamist terrorists legally, conceptually, and geographically.  The president as recently as two years ago was hoping to declare an end to war against Islamic terrorists.  “[T]his war, like all wars, must end,” he said, just after expressing his hope to “ultimately repeal” the 2001 AUMF.  The rise of the Islamic State forced him to back off that hope.  But its rise has not yet forced him in to a new statute for a new war.  Instead, the President’s lawyers extended the old AUMF to the Islamic State with a justification that some have questioned but (since the American people are not paying attention) has worked just fine for four months.  Sure, the President’s legacy will be tagged with his extension of the mandate of the 2001 AUMF (and with violating his pledge not to do).  But he and his team appear to have concluded that such a legacy is less bad than one in which the President actively seeks and receives a new law that extends the mandate of the fight against Islamist terrorists.  Rhetorically, the President says he wants a new AUMF.  But rhetoric accompanied by non-action suggests that he wants to run out the clock without being burdened by one.

Relevant Passages of President Obama’s State of the Union Address

Tuesday, January 20, 2015 at 9:32 PM

The following are the passages of tonight’s State of the Union address that seem to me most relevant to the Lawfare readership:

Tonight, for the first time since 9/11, our combat mission in Afghanistan is over.  Six years ago, nearly 180,000 American troops served in Iraq and Afghanistan.  Today, fewer than 15,000 remain.  And we salute the courage and sacrifice of every man and woman in this 9/11 Generation who has served to keep us safe.  We are humbled and grateful for your service.

. . .

My first duty as Commander-in-Chief is to defend the United States of America.  In doing so, the question is not whether America leads in the world, but how.  When we make rash decisions, reacting to the headlines instead of using our heads; when the first response to a challenge is to send in our military – then we risk getting drawn into unnecessary conflicts, and neglect the broader strategy we need for a safer, more prosperous world.  That’s what our enemies want us to do.

I believe in a smarter kind of American leadership.  We lead best when we combine military power with strong diplomacy; when we leverage our power with coalition building; when we don’t let our fears blind us to the opportunities that this new century presents.  That’s exactly what we’re doing right now – and around the globe, it is making a difference.

First, we stand united with people around the world who’ve been targeted by terrorists – from a school in Pakistan to the streets of Paris.  We will continue to hunt down terrorists and dismantle their networks, and we reserve the right to act unilaterally, as we’ve done relentlessly since I took office to take out terrorists who pose a direct threat to us and our allies.

At the same time, we’ve learned some costly lessons over the last thirteen years.

Instead of Americans patrolling the valleys of Afghanistan, we’ve trained their security forces, who’ve now taken the lead, and we’ve honored our troops’ sacrifice by supporting that country’s first democratic transition.  Instead of sending large ground forces overseas, we’re partnering with nations from South Asia to North Africa to deny safe haven to terrorists who threaten America.  In Iraq and Syria, American leadership – including our military power – is stopping ISIL’s advance.  Instead of getting dragged into another ground war in the Middle East, we are leading a broad coalition, including Arab nations, to degrade and ultimately destroy this terrorist group.  We’re also supporting a moderate opposition in Syria that can help us in this effort, and assisting people everywhere who stand up to the bankrupt ideology of violent extremism.  This effort will take time.  It will require focus.  But we will succeed.  And tonight, I call on this Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against ISIL.

. . .

Read more »

Moral Obtuseness, Guantanamo, Boko Haram, and the Media

By and
Tuesday, January 20, 2015 at 6:18 PM

This morning’s BBC’s NewsHour show opened with a news judgment reflecting a genuinely odd moral calculus.

At the end of the show’s headlines section, announcer James Menendez says: “coming up later in the program today, our West Africa correspondent . . . is on the shores of Lake Chad, where survivors—many of them missing family members—have been gathering in the wake of last week’s deadly attacks by Boko Haram.” That, however, could wait until the second half of the show. Something of greater urgency had bumped the survivors of a massacre within the last few weeks of as many as 2,000 people from the first half of the show.

What was it?

“But first we have a rare and detailed insight into the treatment of detainees held at the American military base at Guantanamo Bay.” Menendez actually doesn’t mention until a bit later that this “rare and detailed insight” is actually a look at the treatment of a single detainee more than a decade ago—the latest in the series of entirely credulous reporting concerning the newly published diary of Mohamedou Ould Slahi: Guantánamo Diary.

So there it is, kind of stark: hundreds of thousands of dead Nigerians killed by one of the world’s most menacingly vicious terrorist groups vs. one brutal interrogation conducted many years ago. By what moral or news calculation should the latter take precedence over the former? Only one that, perhaps subconsciously undervalues African lives relative to those taken by terrorists in the West and overestimates—to the point of significantly misstating—the problems of Guantanamo and the story of Mohamedou Ould Slahi.

Let’s start, as the BBC should have, with the Boko Haram massacre, which has been dramatically undercovered by the press, in general, certainly relative to the much lesser contemporaneous events in France. A recent article in MediaMatters notes that: Read more »

The NRC’s Bulk Collection Report: a High-Level Overview

Tuesday, January 20, 2015 at 3:00 PM

Last week, Wells noted the release of an important, 85-page report by the National Research Council. (Yesterday, Herb Lin added his thoughts about it.) Broadly, Bulk Collection of Signals Intelligence: Technical Options concludes that right now, there are no software-based techniques that could fully replace the bulk collection of data. Below, I offer a high-level, general overview of this and other main takeaways from the report.

Background: In January 2014, the White House released Presidential Policy Directive 28 (PPD-28).  Among other things, the latter requested the Director of National Intelligence (DNI) to “assess the feasibility of creating software that would allow the [intelligence community] more easily to conduct targeted information acquisition [of signals intelligence] rather than bulk collection.” In turn, the DNI sourced this task to the National Academies. Last week the National Research Council (NRC)—a unit of the National Academies—released the report.

It begins with nomenclature, providing context and definitions to technical terms and jargon. First is “bulk collection”, or data collection of which a significant portion of the data collected is not associated with current targets; the report naturally then defines targeted collection as anything that is not bulk collection. Notably, in adopting this terminology, the NRC departs from PPD-28, which defined bulk collection as “the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants.”

Next is a review of how NSA obtains and breaks down signals intelligence. This proceeds in essentially six steps, according to NRC: First, the NSA takes in signals; second, the NSA extracts the data relevant to certain events; third, the data is filtered according to one or more discriminants (e.g. specific identifies or terms); fourth, the NSA stores the filtered data; fifth, the NSA then analyzes the data, by querying it; and, sixth and finally, the NSA disseminates the material to other analysts and policymakers. The first four steps comprise the “collection” process. Read more »

Welcome to Brooklyn: 2 AQ members who attacked US forces abroad brought to US for civilian trial

Tuesday, January 20, 2015 at 12:27 PM

An interesting development in the ongoing debate regarding the optimal disposition for captured al Qaeda members: The Justice Department has just announced that two al Qaeda members (both citizens of Yemen) were captured in Saudi Arabia (and have now been “lawfully expelled” to the United States to face a civilian criminal trial in the Eastern District of New York. The criminal complaint alleges that Saddiq Al-Abbadi and Ali Alvi both participated in attacks on U.S. soldiers, and provides an interesting account illustrating the fluidity of organizational affiliation within the world of al Qaeda as of a few years ago. No word yet on how long the men were in custody in Saudi Arabia, nor whether any U.S. officials (from the HIG or otherwise…we do still have a HIG, don’t we?) had access to them then, nor whether the transition from Saudi custody to arrival in the United States might have involved something longer than a plane ride.

Also noteworthy: This appears to be more of a HUMINT than a SIGINT case, in that the complaint makes clear that the evidence against the men rests largely (if not entirely) on statements from a cooperating witness (described as someone who previously pled guilty to offenses involving al Qaeda and who is now cooperating as part of an agreement with the government) and a confidential source, both of whom interacted with the defendants abroad.

Today’s Headlines and Commentary

Tuesday, January 20, 2015 at 12:05 PM

Today, the Islamic State released another video. This clip, which has not yet been independently verified, shows two Japanese hostages kneeling in orange jumpsuits. Standing between them is a militant dressed in all black, who, speaking in English, demands that Tokyo pay $200 million within the next 72 hours in order to secure the captives’ release. The New York Times reports that the terrorist’s “voice, manner, and attire” are similar to those of the jihadist who has appeared in the previously released videos. Meanwhile, the two hostages are identified as Kenji Goto Jogo, a freelance journalist, and Haruna Yukawa, the chief executive officer of a private security company.

Japanese Prime Minister Shinzo Abe is currently in the Middle East on a multi-country tour, and while in Cairo on Saturday, he pledged $200 million in non-military aid to the region. Back in Tokyo, Chief Cabinet Secretary Yoshihide Suga affirmed, “Our country will not be intimidated by terrorism, and there is no change to our policy of contributing to the international community’s fight against terrorism.” The Washington Post also has the story.

According to the United Nations, the Islamic State has actually carried out “scores of execution-style killings” over the past month. The Times details a number of examples.

Tonight, President Barack Obama will deliver his seventh State of the Union address (SOTU). Military Times predicts which defense issues will be touched upon in the speech: Iraq, Afghanistan, Veterans’ Affairs reform, and cyber terrorism, in; sequestration and military pay and benefits, out.

In advance of the SOTU, Defense One shares its own “State of Defense,” analyzing what 2015 will bring for the U.S. Army, Navy, Air Force, and Marines.

On Sunday, the Islamic State released 200 Yazidi captives. The Associated Press reports that those freed were mostly elderly and infirm and had likely become too much of a burden for the militant group.

Meanwhile, plans for increased bombing of Islamic State positions near the Syrian border town of Kobani have stalled, as U.S. and Turkish officials have failed to agree upon “parameters.” Ankara remains focused on ousting Syrian President Bashar al-Assad, while the primary concern of the U.S. is the Islamic State militant group. The Post has more.

Reuters informs us that the Syrian government has begun the process of destroying the facilities, at which it created and housed its chemical weapons stockpiles.

Another round of nuclear negotiations between Iran and the P5+1 group concluded in Geneva over the weekend. According to French diplomat Nicolas de la Riviere, “The mood was very good, but I don’t think we made a lot of progress.” Reuters notes that leaders will meet again in February to continue discussions.

Meanwhile, on Friday, President Obama and British Prime Minister David Cameron appealed to the U.S. Congress, urging legislators not to pass a new round of sanctions against Iran. According to McClatchy, such a bill would jeopardize the international nuclear negotiations.

Reuters shares news that a U.S. drone strike in northwest Pakistan killed four alleged insurgents yesterday.

Yesterday, the Ukrainian government accused Moscow of sending Russian troops across their shared border in support of pro-Russian separatists. According to the Times, 700 Russian troops have reportedly entered eastern Ukraine.

The Guardian reports that jury selection in the case against Khalid al-Fawwaz begins in New York today. Al-Fawwaz stands accused of helping to plan the 1998 attacks at U.S. embassies in Kenya and Tanzania. 

Reuters informs us that two Yemeni citizens have been charged in a federal district court with “conspiring to murder Americans abroad and providing material support to al Qaeda.” And apropos of Yemen: per the BBC, “Shia Houthi rebels in Yemen’s capital Sanaa have shelled the president’s home, shattering a ceasefire. President Abdrabbuh Mansour Hadi was reported to be inside the house but an official insisted that he was safe.”

The Post’s Walter Pincus argues for the creation of a free-standing Defense Department agency devoted solely to intelligence, surveillance, and reconnaissance (ISR).

Finally, Vice News shares some compelling drone footage of the current situation at Donetsk Airport, the center of hostilities between the Ukrainian military and pro-Russian separatists. The images display “bombed and burned out buildings amid a frozen landscape pockmarked by artillery and mortar shell impacts.

ICYMI: Yesterday, on Lawfare

Jack shared his reactions to a Times story regarding NSA penetration of North Korean cyber networks.

Herb Lin examined what the National Research Council’s recently released report on bulk collection of signals intelligence adds to the public debate on the topic.

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.

What David Cameron Doesn’t Get

Tuesday, January 20, 2015 at 10:30 AM

Last week British Prime Minister David Cameron gave an extraordinary speech in which he urged the the banning of private communications, that is communications to which the government could not listen into when legally authorized to do so. Cameron is not the first government official to do so; GCHQ Director Robert Hannigan urged the same last fall, as did FBI Director James Comey in October.

On the surface, such arguments make sense. Seeing armed men storming the editorial offices of Charlie Hebdo, killing the cartoonists who offended them gives rise to terror. The fact that these acts occurred in the center of Paris creates the overwhelming sense that nowhere is safe—and in some sense, that is an accurate assessment. It is the price that open societies pay for their openness. Free societies will always have soft targets, and as long as guns are available and bombs can be made from easily purchased equipment, an open society will be susceptible. It is hard to remove the sense of unease and dread after the news from Paris, but as Jeremy Shapiro has pointed out here, “societies often overreact to such outrages.” Prime Minister Cameron is doing exactly that and, in the process, he is ignoring what is really important.

It is tempting to believe that if only we understood the terrorists’ communications better, if only we had all their communications and could read them perfectly, we could prevent such horrors in the future. It is tempting to think about banning the private use of encryption and of requiring that government always be able to access private communications under legal authorization. But if communications are the problem, the national-security threat comes not from two armed gunmen, but from the dangers we face through unsecured communications and computer systems.

In December, Germany’s Federal Office for Information Security reported that attackers had gained access to a steel mill’s control system, compromising components until a blast furnace could not be shut down. Massive damage ensued. We know of other such events, including, of course, Stuxnet, the remote attack on Iranian nuclear facility. The US, which is quite reliant on computer control systems to manage its physical infrastructure—dams, power grid, oil and gas pipelines, etc.—is particularlyvulnerable to such attacks. Nor are the vulnerabilities limited to large infrastructure. With the coming Internet of Things, whether it is automobiles (self driving or simply networked), sensors controlling the flow of traffic, medical devices, the continued ability to hack such devices means that increasingly there is an ability to remotely cause physical harm to single or small groups of individuals.

Security risks are not limited to physical harm. The loss of industrial information and intellectual property— “the greatest transfer of wealth in history” according to General Keith Alexander—pose long-term, serious national-security dangers. Deputy Defense Secretary William Lynn III has written, “Although the threat to intellectual property is less dramatic than the threat to critical national infrastructure, it may be the most significant cyberthreat that the United States will face over the long term,” while President Obama has called cybersecurity “one of the most serious economic and national security challenges” confronting the US. Unsecured infrastructure and systems is where our real security risks lie, and not in the threats arising from two balaclava-clad men carrying AK-47s (horrifying though they are). There are many aspects to the security solution, including, of course, the ability to listen to the plans of our enemies, whether they be other nation states or non-state actors. But the more crucial one is securing our systems and making ourselves less vulnerable. That’s where communications security comes in. Read more »

An EU PNR System?

Tuesday, January 20, 2015 at 10:11 AM

Passenger Name Records (or PNR) are the data collected by an airline at the time of a passenger’s reservation.  The data in a PNR is often very detailed and robust.  It may, for example, include a cell phone number for text updates or an email address.  It will typically also include an address, a credit card number, the name of the traveler, seat selection and flight data, and a link to other travelers who are in the same group or made reservations at the same time.  Beyond these basics the PNR can also include a host of other miscellaneous data, like frequent flyer numbers and such.

As one can see from this brief description, PNR records are considered extremely useful as a data set for analytics.  They enable users to identify unknown links between a passenger and other data bases and have enough detail and granularity that, unlike many less detailed data sets, they can also be used for sophisticated, probabilistic forms of data analysis.

For the US, PNR has been a counter-terrorism tool almost since 9/11.  All passengers who arrive in the US from international points of origin have had PNR records collected on their travel.  The records are generated by the airlines and, pursuant to the Aviation and Transportation Security Act, transmitted by the airlines to the US government.  [By contrast, for domestic travel within the US much less data is collected — only name, gender, and date of birth, along with an identification number if a passenger has one.  This allows for a name-check against the Terrorist Screening Database, to identify known or suspected terrorists — but it does not allow for the more detailed data analytics that are intended to identify unknown terrorist risks (so-called “clean skins”)].

Because of the intrusive nature of the data collected in PNR (which might also, for example, disclose a medical condition or, through a meal choice, a traveler’s religion), the American mandate to collect PNR and transmit it to the government has been an ongoing bone of contention between the US and the European Union.  The European Parliament, in particular, has been very vocal about the privacy-intrusive nature of PNR with one Member even (some what snidely) comparing the American approach to Dirty Harry, and contrasting it with the more sophisticated Hercule Poiroit-like approach of the EU. Needless to say, that mischaracterizes America’s approach, but it does reflect European values.

As a result of that disagreement, since 2002 no less than 4 separate negotiations have taken place (I personally participated in two of them) during which the EU has sought to have the US place internal limitations on the uses to which PNR data could be put.  By 2011, the two parties seemed to have exhausted themselves and reached a point of uneasy truce.   In the meantime, European security officials, who had proposed their own EU-version of a PNR analysis system, found themselves stymied by the Parliament, which refused to authorize the creation of such a system.

All of which brings us to today, and the post-Charlie Hebdo EU.  According to the Washington Post, in the wake of the recent surge in terrorism, EU officials will revist that decision and look for authority to create an EU PNR system.  This change will accompany a broader array of security enhancements — including a proposed EU-wide passport control system and an  EU-wide criminal data base.  As the Post put it, the fundamental problem in Europe, from a security standpoint is that: “Their citizens can move freely, but information about them does not.”  The EU says it is now looking to change that paradigm.

There is, of course, a small sense of irony about this — especially for those who have participated in the seemingly endless discussions with the EU regarding security and privacy concerns.  To be candid, I remain skeptical that anything will change in the EU, even in the wake of Charlie Hebdo.  The anti-security impulse is too deeply ingrained.  But we shall see — the EU discussion is just beginning.

How Many People Are We Really Deporting?

Tuesday, January 20, 2015 at 7:13 AM

Under the shadow of Mexico’s twin volcanoes in the tiny mountainous village of San Mateo Ozolco, Erasmo Aparicio stands outside his house, arms crossed, black hood pulled down over his hair. “Fucking Mexico, no fucking money,” he spits out in defiant English.

Now a campesino by his own description making 100 pesos—or just under $7—a day, he’s a long way from the $9 an hour he was making preparing fish in one of Philadelphia’s Italian restaurants.

As one of the more than 4 million Mexicans who were apprehended in the United States over the past seven years, Erasmo found his life uprooted and his dreams put on hold when he was picked up on the way to buy a beer in South Philadelphia.

It’s undeniable that U.S. immigration policy has profound human consequences, but it is admittedly at the margins of Lawfare’s areas of concern. The site has not spent a great deal of energy on immigration reform questions. But immigration is never too far from national security discussion, since many people believe—rightly or wrongly—that failure to control the country’s borders is itself a profound national security failure.

Moreover, the specific path President Obama has chosen to reform the U.S. immigration system without congressional involvement raises important issues regarding presidential power. And the immigration system is constantly handling deportation and removal cases with national security overtones. Yet even with these links to broader issues, there are people on all sides of the many policy questions surrounding immigration enforcement who do not quite understand even the basics of those policies.

Take the question that should be the simplest: how many people are actually being deported? As it turns out, the answer depends on which categories of deportations—removals or returns—that you include.

Removals are what most people think of when they imagine deportations (and they are what many analysts report): that is, formal proceedings, at times in front of immigration judges (though this is not always the case) and visa or possibly criminal consequences for those caught and expelled.

In contrast, returns are the less formal version of deportations. With returns, deportees (usually along the border) are allowed to “voluntarily return” to their countries without facing any legal consequences. Read more »

Today’s Headlines and Commentary

Monday, January 19, 2015 at 1:07 PM

Newspapers around the world lead off with new articles on NSA and GCHQ spying techniques today. David Sanger and Martin Fackler report that the NSA breached North Korean networks before the Sony attack. In 2010, the agency drilled into the Chinese networks that connect the DPRK to the rest of the world, selected connections in Malaysia used by North Korean hackers, and “penetrated directly into the North with the help of South Korean and other American allies.” The program included an ambitious effort to place malware on the systems used by the North’s hackers in order to create an “early warning radar” for malevolent cyber activity directed by Pyongyang. Even so, it remains unclear why US intelligence agencies were unable to warn Sony about the severity of the pending attack.

German magazine Der Spiegel carries a story by Jacob Applebaum, Laura Poitras, and others on the digital arms race occurring as the NSA preps America for the future battle in cyberspace. According to newly released documents from the the archive of Edward Snowden, the NSA is planning for “wars of the future in which the internet will play a critical role, with the aim of being able to use the net to paralyze computer networks and, by doing so, potentially all the infrastructure they control.”

And, according to the Guardian, the GCHQ has captured emails of journalists from several top international media outlets including the BBC, New York Times, and more. They write that the communications were among 70,000 emails harvested in less than 10 minutes on a single day in November 2008.

The Guardian also reports that the absence of a political process alongside the continuing air strikes in Iraq may push Sunni communities to consider allying with ISIS. According to Iraq’s Vice President for Reconciliation Iyad Allawi, “the Baghdad belt demonstrates the lack of strategy and reconciliation,” where ethnic cleansing is spreading as militias roam unimpeded. And, as the last “Awakening” left tribal leaders with little long-term benefit, many are resisting requests to take the lead against ISIS today.

While internal politics and sectarianism are limiting success in Iraq, the Washington Post divulges that plans to expand the air campaign in Syria have stalled amidst a diplomatic disagreement between the United States and Turkey. The Post describes the situation well: With “effectively two separate wars and at least three sets of combatants in Syria,” Turkey believes that the focus of airstrikes “should be as much, or more, on aiding to opposition against Assad.” So far, the Obama administration has refused to target the Assad regime.

Elsewhere, Reuters reports that an Israeli air strikes in Syria has killed six members of Hezbollah, including a commander named Mohamad Issa as well as Jihad Moughniyah. Iran has claimed that leaders of the Revolutionary Guard were also killed in the strike, but the charge is yet to be confirmed.

Finally, even amid the chaos of war, oil prices dropped again on Monday as Iraq announced record oil production.

The Wall Street Journal brings us news that Belgian authorities have asked Greece to extradite one of the four people arrested in Athens in connection with a suspected foiled plot to attack police across Belgium. The request comes after Belgian police killed two people as part of a suspended anti-terrorism raid on Thursday. The European Union’s counterterrorism chief announced that the terrorists had planned to launch the attack on Friday. The crackdown is part of a broader European response to the attacks on Charlie Hebdo that killed 17. However, in Foreign Policy, non-resident Brookings Fellow J.M. Berger argues that terrorism will not be the casualty of these operations, but instead, our civil liberties.

The New York Times shares news that violence continues in Niger as protests against Charlie Hebdo spread. Demonstrators set fire to two churches and attacked a police station in Niamey after protests were banned by the state following the death of as many as 10 people during previous protests.

David Kirkpatrick of the Times brings us tentatively good news from Libya: the main factions fighting the country have agreed to a provisional cease-fire in response to pressure from the United Nations Security Council. However, with caveats including the right to continuing to fight “terrorists,” some experts worry that the wording may only lead to renewed fighting.

And in Yemen, Houthi rebels kidnapped a senior aid to Yemen’s president early on Saturday.

Finally, Reuters reports that over the weekend, Ukrainian troops recaptured most of the critical Donetsk airport from pro-Russian rebels. However, today Reuters shares that separatists have launched a new attack on the airport after Russian authorities called the Ukrainian assault a “strategic mistake.” A Ukrainian military spokesman said that over the past 24 hours, 3 soldiers have been killed while another 66 have been wounded.

ICYMI: This Weekend, on Lawfare

Bruce Schneier brought us the newest cache of documents released by Edward Snowden on the offensive cyberoperations conducted by the NSA.

Paul Rosenzweig shared the latest cyber news in his “Bits and Bytes.”

In Sunday’s Foreign Policy Essay, Brookings Fellow Jeremy Shapiro warns that an overreaction in the name of counterterrorism could cause far more harm to France than the attacks themselves.

This week’s Lawfare Podcast featured Daniel Reisner, former head of International Law Branch of the Israeli Defense Forces who spoke on law, security, and peace in the Middle East.

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.


National Academies Report on Bulk Signals Intelligence

Monday, January 19, 2015 at 9:58 AM

On January 15, 2015, the National Research Council released a report entitled Bulk Collection of Signals Intelligence: Technical Options. Responding to PPD-28, the document was requested by the Office of the Director of National Intelligence to “assess the feasibility of creating software that would allow the Intelligence Community more easily to conduct targeted information acquisition rather than bulk collection.”

In my opinion, the recently released NAS report on bulk surveillance adds a number of important points to the public debate.  (Full disclosure: I was involved with developing early versions of the report.)

The report points out that the terminology and conceptual framework used in much of the debate over surveillance is confusing and misleading.  Even the distinction between bulk and targeted surveillance is not particularly helpful, given that “bulk collection” and “targeted collection” appear to exist along a continuum rather than being qualitatively different kinds of collection.

The report points out given a policy decision to continue bulk collection, controlling the use of data so collected is a way to protect the privacy interests of affected parties.  Today, the NSA has a variety of strong manual controls for this purpose, but there are opportunities today for NSA to enhance the automated controls it also has in place.  But whether enhancing the present automated controls will be reassuring to the American people is a policy judgment that the report does not address—but that policy makers and the public must.

Bulk data (that is, data acquired through bulk collection) is useful for a variety of intelligence uses that go beyond tactical counterterrorism scenarios.  Since the latter has been the focus of most of the public argument about bulk collection (of metadata from domestic telephone calls), understanding that bulk collection is useful in many different ways puts a spin on its potential value that has not been widely heard to date. Read more »