The speech DOD General Counsel Stephen Preston delivered today at ASIL was quite interesting on many scores, including the scope of the “associated forces” concept, the nature of America’s self-defense claim as to force in Syria, and as to AUMF reform.
Today at the Annual Meeting of the American Society of International Law, General Counsel of the Department of Defense Stephen Preston delivered remarks on “The Legal Framework for the United States’ Use of Force Since 9/11.”
You can read his full remarks as prepared below:
… with special guest Jonathan Rauch. We talk Iran deal, congressional inaction on AUMF and 215 matters, and cybersecurity. We also tell off-color jokes. And we announce a giveaway of one ticket to the Triple Entente Beer Summit to the person who most effectively flacks the event on Twitter.
Perhaps of interest to Lawfare readers in the Boston area: Next Tuesday, the Harvard National Security & Law Association (NSLA) will host Brigadier General Mark Martins, the chief prosecutor for military commissions and lead trial counsel in the prosecution of Khalid Sheikh Mohammed and four other accused perpetrators of the attacks of September 11, 2001, for a dinner event.
Martins will outline major provisions of the Military Commissions Act of 2009 and also address continuing concerns about delay and other challenges to the reformed system’s legitimacy. Following initial on-the-record remarks, Martins looks forward to fielding questions and concerns from the audience.
The event will run from 6 pm to 7:30 pm in the Langdell Building (North Room of the Harvard Law School Library), 1545 Massachusetts Avenue, Cambridge, Massachusetts 02138.
The Saudi-led coalition conducting airstrikes against Houthis in Yemen carried out its most intense series of strikes last night, Agence France-Presse reports. The strikes reportedly hit Houthi-held areas around the southern port city of Aden and the predominantly Sunni city of Ataq, which rebels captured yesterday. The Associated Press provides a useful run-down of the countries involved in the coalition and the nature of that involvement.
But thus far the coalition campaign seems to have made little progress. The Washington Post writes that the airstrikes have not made the return to power of President Abed Rabbo Mansour Hadi any more likely; moreover, the conflict has allowed advances by al Qaeda in the Arabian Peninsula while reducing food and water supplies for civilians. Hugh Naylor writes that “For the Saudi government and its allies, the military operation in Yemen may be turning into a quagmire.”
Furthermore, the conflict is worsening an already fraught relationship between Saudi Arabia and Iran. In remarks yesterday, Iran’s Supreme Leader called Saudi airstrikes both “a crime” and “genocide.” The New York Times notes that such a deterioration of relations is especially dangerous because the two countries are already engaged in proxy conflicts in Syria, Iraq, Lebanon, and Bahrain.
However, according to Al-Monitor, it is not entirely clear that the map of alliances has followed expectations with regards to the Saudi military operation. Hamas, a group supported by Iran, has issued a statement of support for the political legitimacy of Yemen. Meanwhile, Fatah President Mahmoud Abbas said that the war “enjoyed an Arab consensus” and noted that the Palestinians were part of that consensus.
The International Committee of the Red Cross and the United Nations Children’s Fund have successfully landed two planes in Sanaa, delivering more than 30 tonnes of medical equipment to the embattled country. According to the Times, their arrival came two days after two boats of emergency medical aid and teams of surgeons docked in Aden, a port city in the south. A U.N. spokesman called the situation in the country “unprecedented.”
Reuters brings us news that al Qaeda in the Arabian Peninsula has placed a bounty on the head of the leader of the Houthi rebels and his ally, former president Ali Abdullah Saleh. At the same time, the Saudi-loyal paper Asharq al-Awsat claims that Houthi forces have committed “massacres” in Aden, killing more than 22 people and injuring more than 70 in indiscriminate shellings.
What Might Congress Do To Stop the Obama Administration From Disregarding Congressional Transfer Restrictions In the Course of Closing GTMO?
Last week I explained how the Obama administration might extend it constitutional arguments for disregarding statutory detainee transfer restrictions in the Bergdahl context to the restrictions on transferring GTMO detainees to the United States. (Earlier today I elaborated on these arguments.)
Some people questioned this passage in my post last week:
As far as I can tell Congress as an institution has acquiesced in the administration’s legal arguments supporting both the Taliban five transfer and the unconstitutionality, in some circumstances, of the Homeland transfer restrictions. If the President does transfer some or all of the GTMO detainees to the United States, he will be able to say that he has for years been signaling his authority to do so and that Congress has done little if anything as an institution to object.
When I said that “Congress as an institution has acquiesced,” I meant that Congress has done little of substance in response to the President’s disregard of a statute that has widespread support in Congress. But it would be wrong to suggest that Congress has done nothing. As far back as October 20, 2011, HASC Chairman Buck McKeon wrote the President in response to administration criticisms of the detainee transfer provisions and explained in (very) general terms the constitutional basis for them. In a hearing last June at least a few members of the HASC (most notably Representatives McKeon and Scott) pushed DOD General Counsel Stephen Preston on the administration’s constitutional arguments (though they failed to ask probing questions and in my view Preston easily bested them). A few members at that hearing also asked Preston for a copy of the DOJ email advice and Preston said he would consider the request; it is unclear whether DOD ever subsequently gave HASC the advice, but it has not been made public. Then, in September of last year, the House passed a Resolution that “condemns and disapproves of the failure of the Obama administration to comply with the lawful 30-day statutory reporting requirement in executing the transfer of five senior members of the Taliban from detention at United States Naval Station, Guantanamo Bay, Cuba” and that “stipulates that further violations … are unacceptable.” Finally, the HASC Subcommittee on Oversight and Investigations is looking into the Bergdahl matter, and Chairman McKeon said at last June’s hearing that the investigation included the administration’s “violation of national security law.”
These steps are unlikely to deter the Executive branch from using the constitutional override logic again, including as applied to closing GTMO. Some have asked me what more Congress could do since it already passed a clear statute that the President disregarded. It is hard for Congress to push back against the President in this context, especially when judicial review is unlikely in a timely manner. But it still has Madisonian tools.
Congress, or some subset of it, could explain its views of the constitutional issue. One of the more embarrassing aspects of the GAO’s feeble analysis of the DOD position on the constitutional issue was its assertion that GAO does “not offer any opinion on the constitutionality of section 1035” because it “is not our role or our practice to determine the constitutionality of duly enacted statutes.” The members at the HASC hearing weren’t much better at articulating a response to DOD’s constitutional argument. As DOD correctly pointed out in response to GAO, one cannot assess the legality of what DOD did without addressing the constitutional issue. It would be helpful to Congress’s legal position if it actually did a written legal analysis of DOD’s constitutional position to state why it believes it to be wrong. A good place to start would be with the Bradbury OLC opinion and the Kavanaugh Kiyemba concurrence that I discussed this morning. One problem, of course, is that Congress lacks a unitary structure and doesn’t have an OLC that is expert in constitutional analysis and that can speak definitively for entire branch of government about legal matters. (GAO cannot do this, as we have just seen.) Nonetheless, there are plenty of good lawyers in Congress (including on the HASC and SASC) who could do this legal analysis on behalf of some if not all members of the committees.
Congress could insist on seeing the DOJ analysis that formed the basis for the override. I doubt that DOD turned over the DOJ email advice because the advice has not been made public. But if the advice were made public it could be subject to scrutiny and criticism, and the public (and Congress) might have a better idea about whether the logic of the advice extends to transferring detainees to the United States in the face of transfer restrictions. But how can Congress get the document if DOJ does not want to turn it over? A subpoena is a possibility. Holding up appointments or important appropriations until Congress receives the legal document is more effective. But such a step takes congressional resolve and focus that has thus far been lacking in this context.
Congress could draw out the administration on its GTMO closure plans. The Bergdahl swap was probably a one-off situation. The real question is whether the administration will use the logic of constitutional override to disregard the transfer restrictions on bringing GTMO detainees to the United States as part of closing GTMO. If Congress worries about this, it should act in every setting – hearings, confirmations, letter requests to agencies, etc. – to tie down DOD and DOJ on this issue. Congress might be comforted if it can get the administration to acknowledge that the logic of the Bergdahl disregard cannot extend to closing GTMO. If it the administration fails to provide such assurances, Congress can assume that the administration is considering the possibility and Congress can accordingly ramp up the political heat significantly in response. I would take the following exchange between Senator Cotton and Defense Secretary Carter (from Carter’s confirmation hearing) as an example of evasiveness that should invite closer scrutiny.
Sen. Cotton: Can you assure us that in the future, Congress will always receive advance notification, as required by law, for future releases of Guantanamo prisoners?
Mr. Carter: I can assure you we will always abide by the law. Absolutely, sir.
The reason this is a suspicion-inviting non-answer is that the administration claims to have abided by the law (in Article II) in ignoring the transfer restrictions in the Bergdahl context.
Above all, Congress can exercise enormous leverage through its authorization and appropriations powers. To the extent that the administration does not give Congress clear and satisfactory answers to the questions above, Congress – controlled in both Houses by Republicans – can wield significant power through the annual defense authorization act and through appropriations. I am not talking about more legal restrictions, either directly or tied to appropriations. I am talking about not giving DOD some of the important goodies it might want. That is hard ball, of course, and it comes in a national security context. The point is simply that if Congress feels strongly enough about the issue, it has plenty of options.
The Brennan Center’s Liza Goitein and Faiza Patel have posted a response to my post of last week challenging three of their recommendations in their recent report on the FISA Court. This post is a brief reply to their first response point regarding the justification for and important function of Section 702 of FISA. Section 702 is not one of the provisions that is scheduled to sunset June 1st absent Congressional action, but, as Ben noted earlier this week, it too will require reauthorization, in 2017.
In their response, Liza and Faiza reiterate that the “primary purpose and effect [of 702] was to remove the requirement of an individual order for the acquisition of communications between foreign targets and U.S. persons.”
On the intended purpose of the 2008 amendment, I don’t think that a review of the legislative record would show that the “primary purpose” of Section 702 – that is, the reason the legislative amendment was sought – was to collect on U.S. persons (and/or persons in the United States, which includes both U.S. and non-U.S. persons.) A review of the statements for the record from DOJ and DNI officials in 2007 and 2008 would reveal that the purpose was to facilitate acquisition directed at non-U.S. persons reasonably believed to be outside the United States, for foreign intelligence purposes. Perhaps some think that those arguments were simply subterfuge for a behind-the-scenes goal of collecting on U.S. persons, but that impression is not supported by the record. Nor does it square with my own experience working on these issues in government during that time period. Moreover, to the extent that those type of concerns were held by some members of Congress at the time, the final, enacted version of the FISA Amendments Act of 2008 included a specific prohibition on reverse targeting (targeting a non-U.S. person for collection with the actual goal of collecting the communications of a U.S. person), as well as court approval of the targeting and minimization procedures.
Incidental collection of U.S. persons was foreseen and expected; that’s why there are minimization procedures that provide rules for how those communications must be handled. But when the government sought 702 authority, it did so for the purpose of facilitating the targeting of non-U.S. persons outside the United States for foreign intelligence purposes.
More on the Legal Basis for the Administration’s Disregard of Congressional Restrictions on Detainee Transfers in the Bergdahl Context, and on the Implications for Closing GTMO
Last summer I wrote of the administration’s constitutional arguments for disregarding congressional transfer restrictions in swapping the Taliban 5 for Bowe Bergdahl:
To say that the President disregarded a federal statute because he interpreted it in the emergency context before him to impinge upon Article II is not at all to say that the President acted wrongly or unlawfully. It’s actually quite a hard legal issue, with few real precedents.
And last week I explained how the logic of the Executive branch’s constitutional arguments in the Bergdahl context might extend to transferring the GTMO detainees to the United States as part of closing GTMO. Below I follow up by analyzing two legal sources that help to illustrate limitations in the administration’s constitutional argument in the Bergdahl context, as well as the difficulty of extending that argument to closing GTMO generally.
Bradbury’s 2009 OLC Opinion. Five days before Barack Obama assumed the presidency, George W. Bush’s acting OLC chief Steven Bradbury issued an OLC opinion that, in the context of cautioning against reliance on some earlier OLC opinions, analyzed Congress’s power over wartime prisoner detention and transfer. A 2002 OLC opinion had claimed that “the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone” because the Constitution does not “specifically commit the power to Congress.” Bradbury’s opinion rejected this proposition. It noted that “[t]he Captures Clause of Article I, which grants Congress power to “make Rules concerning Captures on Land and Water,” id. cl. 11, [appears] to provide separate authority for Congress to legislate with respect to the treatment and disposition of enemy combatants captured by the United States in the War on Terror.” It further noted that Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), relied on the Captures Clause to comment “favorably on Congress’s authority to regulate the treatment of prisoners of war—and, indeed, actually suggested that the exercise of such congressional authority counseled against locating the authority to detain enemy prisoners solely in the general war powers of the President.” Bradbury’s opinion did not, however, say that Congress’s power here was exclusive. Rather, it noted that “the President’s constitutional authority to deploy military and intelligence capabilities to protect the interests of the United States in time of armed conflict necessarily includes authority to effectuate the capture, detention, interrogation, and, where appropriate, trial of enemy forces, as well as their transfer to other nations.” The opinion did not explore how to assess the relevant congressional and presidential authorities in a Jackson Category 3 situation other than to say that “Congress may not unduly constrain or inhibit the President’s exercise of his constitutional authority in these areas.”
Kavanaugh Concurrence in Kiyemba. Eight months in to the Obama presidency, the D.C. Circuit in Kiyemba denied habeas corpus relief to nine GTMO detainees who opposed transfer off the island on the ground that they were likely to be tortured in the recipient country. Judge Kavanaugh joined the opinion of the court but then wrote separately to “emphasize” this point (among others):
First, our disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. See, e.g., U.S. CONST. art. I, § 8 (“Congress shall have Power … To … make Rules concerning Captures on Land and Water”). The constitutional text, Justice Jackson’s Youngstown opinion, and recent Supreme Court precedents indicate that the President does not possess exclusive, preclusive authority over the transfer of detainees. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees. In other words, under the relevant precedents, the President does not have power to trump legislation regarding wartime transfers in a Youngstown category-three situation. To be sure, there are weighty policy reasons why Congress may not seek to restrict the Executive’s transfer authority or to involve the Judiciary in reviewing war-related transfers. That presumably explains why Congress has not done so. But to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.
The Obama Argument for Denying Congressional Transfer Restrictions. As best I can tell, the Obama administration has twice explained why it believed it could disregard the notice requirements on the transfer restriction in the Bergdahl context. First, an unsigned legal analysis that DOD supplied GAO relied on Morrison v. Olson, 487 U.S. 654, 695 (1988) for the proposition the transfer restrictions would have “prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,” and on Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977), for the proposition that the congressional impingement on Executive prerogative was not “‘justified by an overriding need’ to promote legitimate objectives of Congress. After citing these sources, DOD maintained:
The Administration had determined that providing notice as specified in the statute would undermine the Executive’s efforts to protect the life of a U.S. soldier. Congress’s desire to have 30 days to weigh in on the determination that the Secretary had already made, in accordance with criteria specified by Congress, that the transfer did not pose the risks that Congress was seeking to avoid, was not a sufficiently weighty interest to justify this frustration of the Executive’s ability to carry out these constitutionally assigned functions. Thus, even though, as a general matter, Congress had authority under its constitutional powers related to war and the military to enact section 1035(d), that provision would have been unconstitutional to the extent it applied to the unique circumstances of this transfer.
Second, in a hearing last June on the transfer of the Taliban 5, DOD General Counsel Stephen Preston explained the administration’s constitutional views in general terms. Preston noted that “the administration sought the guidance from the Department of Justice on the applicability and impact of the 30-day notice requirement under these circumstances and received guidance from the Department of Justice,” and that the guidance was conveyed “not by means of a formal memorandum opinion, but rather by e-mail exchange principally.” Preston summarized that guidance in the hearing, perhaps most extensively here:
Sir, we believe the [statute with the detainee transfer restrictions] is constitutional. The question was the constitutional implications of its application in the particular circumstances here. And the administration determined that it was necessary to forego the full 30 day formal notice to the eight committees under the constellation of circumstances presented in this situation in which the president was seeking to free a servicemember in captivity and in peril. And the circumstances can be described in terms of the fragility of the negotiations and concerns about delay and leaks and the impact in a premature ending of the negotiation. The circumstance of a fleeting opportunity to effectuate the exchange. The secretary mentioned that from the time it was decided to do an exchange to the actual execution was something on the order of 96 hours, the potential harm to Sergeant Bergdahl if the deal became public, all this in the context and backdrop of uncertainty as to his physical condition and the realization that this might be our last, best change to get him. It was in that circumstance, Mr. Chairman, … that with the deal coming together and the prospect of having a decision to transfer, the concern was that delaying, at that point, for 30 days to effectuate notice of the transfer would scuttle the deal and could possibly further endanger Sergeant Bergdahl.
Analysis. These constitutional explanations for what the administration did are conclusory and thus hard to assess. (It would be nice to see the OLC email advice, which Congress has requested, and any OLC analysis that undergirded that advice; but those documents are not public.) Nonetheless, a few comments are possible.
Both the unsigned DOD advice and the Preston testimony acknowledge that Congress has authority to regulate detainee transfers but assert that in the context of the Bergdahl matter the notice requirement unduly burdened a constitutionally assigned presidential function. In neither context did the administration analyze the significance and scope of the Captures clause, or specify the source and scope of the president’s burdened military functions, or explain (beyond conclusory statements about unduly burdening presidential power) the scope or implications of the constitutional override. Nor has the government in this context mentioned Youngstown, Hamdan, or Hamdi. As Kavanaugh suggested, all three of these cases (and the latter two concretely) indicate that Congress has significant controlling authority in Jackson Category 3 situations in related post-9/11 wars military contexts.
That said, both Bradbury and Kavanaugh recognize that in some circumstances related to transfer the President’s authority must prevail. I suspect that the USG lawyers took particular solace in this sentence from Kavanaugh’s concurrence: “Except perhaps in a genuine, short-term emergency, the President must comply with legislation regulating or restricting the transfer of detainees.” Kavanaugh does not explain the basis for his possible emergency exception to compliance with the transfer restrictions. But the USG in its constitutional explanations has consistently emphasized the exigent nature of the negotiations with the Taliban and the threat to Berdahl’s life.
While the Bergdahl situation might plausibly be deemed an emergency, however, it is hard to see how transferring GTMO detainees to the United States can be deemed an emergency. This is one way of illustrating the difficulty of extending the Bergdahl analysis to closing GTMO. Another problem is that, as Youngstown suggests, Congress’s prerogatives during war are more certain, and the President’s less so, when the relevant activity takes place in the domestic sphere.
As the details of a nuclear deal are hammered out, a case that directly implicates the American-Iranian relationship is clamoring for cert. On Monday, the Supreme Court asked for the view of the Solicitor General in Bank Markazi v. Peterson, an appeal based on a 2013 mega-judgment allowing plaintiffs to collect billions of Iranian Central Bank for its role in the 1983 bombing of the American embassy in Beirut. According to the appellants, the law authorizing a seizure of assets represents a “blatant intrusion on judicial power.”
The origins of the case go back to 2001 when hundreds of plaintiffs—mostly members of the armed services and their families—filed a wrongful death suit against the Iranian government in the District Court of the DC Circuit. Iran, they argued, had provided significant logistical and financial support to Hezbollah in connection with the 1983 barracks bombing. When Iran failed to respond, the plaintiffs won a default judgment of $2,656,944,877.
For years, the judgment proved impossible to collect. But in 2008, plaintiffs discovered $1.75 billion in cash proceeds of government bonds held by Citibank that (through a chain of intermediaries) belong to an Italian bank whose customers include Iran’s Central Bank (Bank Markazi). Two years later, the plaintiffs sought to seize these assets in the Southern District of New York under section 201(a) of the Terrorism Risk Insurance Act (TRIA), which allows collection from “the blocked assets of” a terrorist party against whom a judgment had been won.
Dzhokhar Tsarnaev has been found guilty of all 30 counts charged in connection with the 2013 Boston Marathon bombings. The New York Times reports that the verdict shifts the trial into its final phase, in which jurors will decide whether Tsarnaev should face the death penalty or life in prison.
Houthi rebels have captured a provincial capital in eastern Yemen, Reuters reports. According to residents, local officials facilitated the Houthis’ entry into Ataq, the capital of the largely Sunni Shabwa province. The advance places the rebels about 100 miles from the Belhaf gas facility and export terminal, the country’s most valuable economic asset. In Aden, heavy fighting continued as Saudi-led airstrikes entered their 15th day. Medical supplies, however, have begun to reach the stricken city. Al Jazeera has more.
The conflict may soon expand to include ground troops from nearby countries. Buzzfeed reports that one Egyptian military official said “Ground forces will enter the war,” and went on to say that such a move may come in the next couple of days. This potential escalation by the countries fighting the Houthis comes as the United States increases its own support for this coalition. Al Arabiya reveals that the United States has begun daily aerial refueling flights for the strike-fighters involved in the Saudi-led airstrikes. Defense News adds that the U.S. State Department has approved the sale of 356 Hellfire II missiles to Egypt, the first such approval since the United States lifted a ban on selling arms to Egypt. However, the deal still needs to be finalized and approved by Congress.
But while U.S. expands efforts to support the countries battling the Houthis, Russia and Venezuela have blocked an effort in the United Nations to prohibit shipments of arms to the Houthis or their allies in the fight, former Yemeni President Ali Abdullah Saleh and his son. Russia is demanding that the resolution block arms shipments to all parties in the conflict, among other provisions. The Associated Press covers the story.
Iraqi forces and associated militias mounted an assault on ISIS forces outside Ramadi yesterday, though it was not immediately clear whether this was the first move in an effort to push ISIS out of Anbar Province, 60 percent of which is controlled by the militant group. The Times notes that the chairman of Anbar’s regional parliament claimed “Today we announce the beginning of the Anbar liberation operation,” while the spokesman for Baghdad Operations Command countered, “This is not the big joint operation. We didn’t say anything about that.”
As Iraq deliberates over when to begin the Anbar operation, the Swedish government announced it would send troops to join the conflict. Reuters reports that the country will send 35 soldiers to northern Iraq to help train Iraqi forces battling ISIS militants.
The international coalition conducting airstrikes in Syria is also expanding. Canada announced yesterday that it had conducted its first airstrikes against ISIS in Syria, the Canada Press reports. Two Canadian jets, flying in a group with 8 other warplanes, struck an ISIS garrison in the group’s stronghold of Raqqa.
For its part, ISIS released over 200 Yazidi captives in northern Iraq yesterday. Al Jazeera writes that the militant group released the prisoners, who had been held in Mosul for eight months, in Kirkuk. While no reason was given for the release, sources said that the move was meant to free the militants from the burden of caring for the prisoners; others claimed that some Yazidis paid ISIS for the release of their relatives.
Over at the Daily Beast, Jamie Dettmer describes the similarities in the online tactics used by ISIS recruiters luring young western recruits and those used by pedophiles. According to a former British prosecutor, both strategies involve “grooming” children — “they manipulate them, distance them from their friends and families, and then take them.”
Last night, ISIS-affiliated hackers briefly shut down 11 television channels belonging to a French television network. The AP reports that the hackers interrupted transmission of 11 channels owned by TV5 Monde and commandeered its social media accounts and website. The website momentarily included language claiming “I am IS” and a banner from a group calling itself “Cybercaliphate.” The AP notes that this hack would represent a new level of sophistication for the group’s associated hackers.
Earlier today, the chief prosecutor of the International Criminal Court said that the court could not investigate human rights abuses by ISIS. The Times notes that Fatou Bensouda, who has been under increasing pressure to open such an investigation, said in a statement that the court has no jurisdiction over Iraq or Syria, and so could not investigate what she called “crimes of unspeakable cruelty” committed by ISIS militants. However, Bensouda added that such an investigation would be possible if Iraq or Syria would temporarily accept the court’s jurisdiction, or if the United Nations Security Council asked the court to open an investigation.
Iran’s Supreme Leader Ayatollah Ali Khamenei made his first public comments on the Iran framework agreement earlier today. Reuters reports that Khamenei reserved judgment on the deal, saying that, “I neither support nor oppose the deal. Everything is in the details.” He did, however, demand that sanctions on Iran be lifted immediately on the conclusion of a final deal.
In the United States, President Obama phoned Senate Foreign Relations Committee Chairman Bob Corker (R-TN) yesterday to make his case against Senator Corker’s plan to pass a bill letting Congress review any Iran deal, which the Obama administration argues would scuttle the final phase of the Iran negotiations. The Hill has more. At the same time, Politico reports, Senate Democrats have introduced amendments to the legislation that would weaken its requirements. The Senate Foreign Relations Committee is scheduled to vote on the bill next Tuesday.
Taliban insurgents stormed a court in the Afghan city of Mazar-i-Sharif earlier today, killing eight people and wounding at least 60 others. Reuters reports that the attackers were armed with rocket-propelled grenades and clashed with security forces for several hours. The casualties included the district police chief and two other police officers.
NDTV describes how the Indian military used drones and social media to keep December elections in Jammu and Kashmir peaceful. Starting weeks before the elections and continuing until the last ballot was cast, Israeli-built drones and Indian-made mini-drones monitored polling stations in potentially violent areas. On voting day, security forces used the group messaging app WhatsApp to share sensitive, real-time information.
South Korean officials announced that, just two days before Defense Secretary Ash Carter landed in South Korea, North Korea launched two surface-to-air missiles off its western coast. The Times reports that this launch comes just a week after North Korea launched a series of short-range missiles. Secretary Carter told reporters, “If it was a welcome message to me, I’m flattered.”
The Times describes photographic evidence of a Chinese operation to build new land-masses atop reefs in the South China Sea. The operation is part of Chinese efforts to create what Pentagon officials call “facts on the water” to bolster its territorial claims in the sea. In a rare move earlier today, Chinese officials publicly laid out its plans for the islands it is building. Apparently, the islands will be used for Chinese military defense and to provide civilian services. Reuters has more.
Shane Harris writes that, according to former U.S. intelligence officers, recent reports of a Russian cyber-intrusion into White House networks were meant to warn Russia that the United States is well aware of Russian cyber-activities. Moreover, some former officials have also characterized the release of information regarding the White House intrusion as a veiled threat to Russia.
The State Department has recommended that the Obama administration take Cuba off its list of State Sponsors of Terrorism, CNN reports. The recommendation sets the stage for President Obama to remove Cuba from the list as soon as today; the administration has expressed a desire to remove Cuba before President Obama arrives at the Summit of the America later this week.
The AP reports that a former Guantanamo detainee has been arrested in Uganda as part of an investigation into the assassination of a prosecutor who targeted Islamic extremists. According to a State Department spokeswoman, U.S. personnel assisted in the arrest of Jamal Kiyemba, who was released from Guantanamo in 2006.
Parting Shot: DefenseOne details DARPA’s efforts to capitalize on the promise of Big Data.
ICYMI: Yesterday, on Lawfare
Ben reminded us about the historic upcoming Triple Entente Beer Summit on May 7th. Get your tickets today before they sell out.
Liza Goitein and Faiza Patel responded to some of the Carrie Cordero’s criticisms of their recent report on fixing the FISA Court.
Paul Rosenzweig detailed the complex issue of “jurisdiction” over ICANN.
Ben laid out some of the consequences of congressional action on the AUMF for the relationship between the executive and legislative branches.
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.
Nathan Wood: The Ferguson Consensus is Wrong: What Counterinsurgency in Iraq & Afghanistan Teaches Us About Police Militarization and Community Policing (Lawfare Research Paper Series)
For interested readers: the latest installment of the Lawfare Research Paper Series. In it, Harvard Law student Nathan Wood examines the phenomena of community policing, on the one hand, and police militarization, on the other—having in mind an emerging view that the former represents the necessary antidote to the latter.
From the abstract:
In the wake of Michael Brown’s death and the subsequent protests in Ferguson, Missouri, a national consensus has emerged around the idea that community policing is the solution to the problem of police militarization. Police militarization and community policing are incompatible, we are told. But though police militarization and community policing are indeed strange bedfellows, they are not necessarily at odds with each other. In fact, militarization and community policing can not only co-exist, but they can also be part and parcel of a coherent approach. Counterinsurgency as practiced in Iraq and Afghanistan tells us as much.
The Privacy and Civil Liberties Oversight Board yesterday had a public meeting yesterday to, as its web site describes it, “discuss and vote on a proposed plan for its review of counterterrorism activities conducted by the Intelligence Community under Executive Order 12333.” Here’s video of the meeting:
An Afghan soldier opened fire at a government compound in Jalalabad earlier today, killing one U.S. soldier and wounding at least two others, the Associated Press reports. It’s the second fatality suffered by the NATO mission in Afghanistan this year. Details are still scarce.
In Yemen, Saudi-led airstrikes continued, hitting the Al-Anad airbase and other targets near the southern port city of Aden. Reuters reports that the airstrikes, now in their second week, have succeeded in driving Houthi rebels back in some parts of southern Yemen, though Houthi forces have nonetheless pushed into the center of Aden. However, according to a Saudi official quoted in the Saudi newspaper Asharq Al-Awsat, the airstrikes have helped volunteer forces aligned with ousted President Abd Rabbuh Mansur Hadi push Houthi forces to the outskirts of Aden.
The United States announced yesterday that it will expedite the delivery of arms to members of the Saudi-led coalition and increase its intelligence and logistical support to the military campaign, the Wall Street Journal notes. The New York Times writes that the move signals increased U.S. involvement in the conflict. In Riyadh yesterday, Deputy Secretary of State Tony Blinken praised the Saudi-led coalition as “sending a strong message to the Houthis and their allies that they cannot overrun Yemen by force.”
Helping push the United States toward greater involvement in the conflict are fears that the chaos is helping al Qaeda in the Arabian Peninsula, the Times notes. Speaking in Tokyo yesterday, Defense Secretary Ash Carter said that “A.Q.A.P. has seized the opportunity of the disorder there” to capture broad areas of land in the country.
But while the United States is rushing forward with aid, Pakistan, which the Saudi government has asked for help in the military campaign, has been much less willing to lend a hand. The Pakistani Parliament debated what role the country should play in the conflict earlier today, and Reuters reports that MPs appear largely opposed to intervention. The Foreign Minister of Iran, which is allegedly backing the Houthi forces in Yemen, is scheduled to arrive in Pakistan today, where he is expected to lobby against Pakistani intervention in the conflict.
At the same time that Iran is trying to keep Pakistan out of the conflict, it appears to be increasing its own involvement. Iranian state TV reported today that two naval vessels—including a naval destroyer—were sent to waters near Yemen, though an Iranian military official claimed that the ships would be part of an anti-piracy campaign. The AP has more. And earlier this week, the Saudi ambassador to the United States accused Iran of embedding members of Iran’s Revolutionary Guard in Houthi units fighting in Yemen. The Wall Street Journal notes that this comes after previous Saudi accusations that Iran is providing military, financial, and intelligence support to the Houthis.
Amid all these machinations, the conflict’s death toll continues to rise. According to aid workers in Yemen, at least 560 Yemenis have been killed thus far, including dozens of children. Over 1,700 people have been wounded and 100,000 people have been been forced to flee. The AP covers the crisis.
But while Iran and the United States are on opposite ends of the conflict in Yemen, both governments appear to be supporting the deal they reached (along with several other world powers) on Iran’s nuclear program. The Times describes the coalescence of Iranian hard-liners behind the deal. Many Iranian officials, including the highest ranking commander of the Iranian Revolutionary Guard Corps, have publicly praised the efforts of Iranian Foreign Minister Mohammad Javad Zarif in reaching an acceptable deal. And while Ayatollah Khamenei has yet to weigh in, analysts say that the public praise by Iranian conservatives probably signals the Supreme Leader’s opinion of the deal.
In the United States, the Obama administration appears to face much tougher sledding in selling the deal to American politicians. The Times details the difficulties of promoting a deal that is still largely incomplete and adds that gaps in the deal have provided fodder for critics. Politico reports that the administration is relying on Energy Secretary Ernest Moniz, the former MIT physicist who played a key role in the Iran negotiations, to help assuage politicians’ worries over the technical aspects of the arrangement. Also defending the framework is CIA director John Brennan, who Agence France-Presse quotes as saying “individuals who say this deal provides a pathway for Iran to a bomb are being wholly disingenuous.”
As administration officials stump for the deal, dozens of foreign policy heavyweights gave the administration’s sales pitch a boost. The Hill notes that more than 50 former government officials, elected representatives, and military officers signed a statement calling on Congress to delay any legislative action that might affect the Iran deal until after the June 30 deadline.
Henry Kissinger and George P. Schultz have an opinion piece in the Wall Street Journal that takes a dimmer view. They write, “negotiations that began 12 years ago as an international effort to prevent an Iranian capability to develop a nuclear arsenal are ending with an agreement that concedes this very capability, albeit short of its full capacity in the first 10 years.”
In Syria yesterday, car bombs struck two rebel bases in the rebel stronghold of Aleppo, the AP reports. The explosions, which targeted areas held by Islamist opposition groups, killed dozens of people; ISIS is suspected of carrying out the attacks. The AP adds that Lebanese army reported killing three militants in a raid near Syria’s border with Lebanon.
Across the border in Iraq, Iraqi forces have announced plans to follow up their victory in Tikrit with an operation to retake Anbar Province. It remains unclear, however, what that operation should look like. While the assault on Tikrit relied on Shiite militias, unleashing these paramilitary forces in a largely Sunni area worries many policymakers. But the Shiite government of Iraq has thus far been hesitant to arm pro-government Sunni militias in Anbar, despite U.S. pressure to do so. The Times has more.
Ahead of a visit to Islamabad by Iranian Foreign Minister Mohammad Javad Zarif, Iranian officials claimed that militants from Pakistan crossed the countries’ border and killed eight border guards, the Wall Street Journal reports. The alleged attack complicates Pakistan’s attempts to balance its long-standing friendship with Saudi Arabia and its desire to not upset Iran.
In other Pakistan news, the Times reveals that a Pakistani court has ruled that former CIA Islamabad station chief Jonathan Bank and former C.I.A. lawyer John Rizzo will face criminal charges for their roles in directing drone strikes in that country.
According to the Long War Journal, the U.S. Treasury Department has added the Al Furqan Foundation Welfare Trust to the list of Specially Designated Global Terrorists. Al Furqan has provided funds to al Qaeda, Lashkar-e-Taiba, and the Taliban since its formation in the mid-2000s.
Speaking in Tokyo earlier today, Defense Secretary Ash Carter issued a strong warning against allowing territorial fights in the East and South China Seas to become militarized. The remarks, Reuters notes, come as China continues its land reclamation efforts in the South China Sea.
In the same visit, Secretary Carter is negotiating a new set of bilateral defense rules with Japan. The Washington Post reveals that, if passed, the new rules would dramatically broaden the range of scenarios in which Japan could provide protection for U.S. forces; according to a senior U.S. official, the change would be “a big, big deal.”
An Israeli security official confirmed yesterday that the January death of a Spanish U.N. peacekeeper in Lebanon was caused by Israeli fire, the Times reports. The deadly incident occurred during a brief flare-up of violence between Israel and Hezbollah earlier this year. The Times also reports that a Palestinian man stabbed two Israeli soldiers in the West Bank today. The attacker seriously wounded one of the soldiers before being shot to death.
CNN reveals that, according to U.S. officials, the Russian hackers who recently infiltrated the State Department used their position in the State Department’s networks to access sensitive portions of the White House computer system. While the White House has said no classified system was breached, the agencies investigating the hack have called it one of the most advanced cyberattacks against government computers ever.
This Russian cyber-aggression comes as Russia continues to flex its military muscle abroad. Defense News notes that Russian long-range bombers have been flying an increased number of flights near the United States. The head of the North American Aerospace Defense Command, Adm. Bill Gortney, said yesterday that the flights — which may soon include patrols over the Gulf Of Mexico — are largely posturing. “They are messaging us. They are messaging us that they are a global power …we do the same sort of thing.”
According to USA Today, the DEA was secretly collecting records of American’s international phone calls nearly a decade before 9/11. The bulk collection program, the government’s first known operation of this type, logged “virtually all telephone calls from the USA to as many as 116 countries linked to drug trafficking.” The program apparently helped federal investigators discover new drug trafficking rings and identify suspects in a range of other investigations.
In announcing his candidacy for president yesterday, Sen. Rand Paul (R-KY) promised to end bulk collection of phone records by the NSA on his first day in office. He told an audience in Kentucky, “The president created this vast dragnet by executive order. And as president on day one, I would immediately end this unconstitutional surveillance.” The Hill has more.
Carol Rosenberg writes that Sen. Dianne Feinstein (D-CA) has asked Defense Secretary Ash Carter to direct U.S. military officials at Guantanamo to adhere to the force-feeding protocol used at federal prisons. In the same letter, Sen. Feinstein reiterated her request to be shown videos of force-feedings at the detention facility, a request which the Defense Department has thus far denied.
ICYMI: Yesterday, on Lawfare
Ben reminded us that the clock is ticking on the sunset of Section 215 and laid out why the rapidly approaching sunset matters.
Yishai broke the news that two new judges have been designated for seven-year terms on the FiSA Court.
Stewart Baker brought us a new episode (#61) of the Steptoe Cyberlaw Podcast, featuring an interview with Joseph Nye.
Jack pointed us to his review of Bruce Schneier’s new book, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World.
And Ben announced the Triple Entente Beer Summit, a “live taping extravaganza” featuring the cast of characters from the Lawfare Podcast, the Steptoe Cyberlaw Podcast, and the Rational Security Podcast. The historic event will take place on Thursday, May 7th from 6-9pm at the Washington Firehouse. Get your tickets here!
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.
Our friend Carrie Cordero has levied criticisms against three of the recommendations presented in our report, What Went Wrong With the FISA Court. We appreciate, as always, her constructive engagement with us on these issues. In the same spirit, we offer these points in response.
Our report notes that Section 702 had a limited effect on the government’s ability to collect communications between foreigners without obtaining a FISA order; instead, its primary purpose and effect was to remove the requirement of an individualized order for the acquisition of communications between foreign targets and U.S. persons. Carrie responds that Section 702 was necessary because, under FISA, “the pre-2008 definitions in FISA technically required that the government obtain a probable-cause order from the Court in order to collect the communications of Terrorist A in Afghanistan with Terrorist B in Iraq.” But, as we explain in our report, this was true only for one category of foreign-to-foreign communications: e-mails stored on U.S. servers.
That’s because of the statute’s complicated definition of “electronic surveillance,” which is the activity that FISA regulates. The definition is broken down into three types of surveillance: acquisition of wire communications (which includes phone calls or Internet communications in transit over cables), acquisition of radio communications (which includes calls or Internet communications in transit through wireless means), and “monitoring” (which previously meant planting a bug, but today includes acquiring stored e-mails). For the first two categories, acquisition is defined as “electronic surveillance” only if one or more of the communicants is a U.S. person. In other words, for wire or radio communications between foreigners, 1978 FISA simply had nothing to say; “monitoring” is the only category of foreign-to-foreign communication that 1978 FISA regulated.
That’s why our report states that, “[w]ith the exception of e-mails stored in the United States, the new law had no impact on the government’s ability to collect the communications of foreigners with other foreigners.” Carrie is, of course, correct that Section 702 allows the government to obtain other types of foreign-to-foreign communications without a court order… but so did 1978 FISA, so Section 702 made no change there. The most significant change Section 702 made was to permit the acquisition of communications between foreign targets and U.S. persons without a court order. Carrie does not explain why this was necessary to allow the government to collect the communications of Terrorist A in Afghanistan with Terrorist B in Iraq.
Carrie also appears to interpret our recommendations as requiring a probable cause order whenever the government seeks to collect on a foreigner overseas. This isn’t what we’re proposing. Our recommendation is to repeal Section 702 “and replace it with a regime requiring an individualized court order for the interception of communications involving U.S. persons.”
We’re aware that differentiating between U.S. persons and foreigners is currently more difficult for stored e-mails than for communications obtained in transit, where relevant information may be gleaned from packet headers. That may support a more nuanced and creative solution for that category of surveillance. But there’s no conceivable reason why the solution should be programmatic acquisition of any type of communication sent by a foreign target.
By now readers of this blog know, the United States is in the midst of a transition that will, when completed, give up its contractual control of the Internet Assigned Numbers Authority (IANA). That authority is currently conducted by the Internet Corporation for Assigned Names and Numbers (ICANN) under contract to the Department of Commerce. Current plans are for Commerce to end the contract in September 2015, and let ICANN manage the IANA function on its own. Some, including me, favor the transition but are concerned that it will occur without an increase in accountability and transparency at ICANN. My colleague, Jack Goldsmith, generically shares that concern. So does the US Congress. Hence, there is an interest in making sure that when the transition occurs, Commerce imposes conditions that guarantee ICANN’s continued openness and independence.
As part of my ongoing interest in the issue, I have joined the “Cross-Community Working Group – Accountability.” As its name implies, this is a group of those who are part of the ICANN community – registrars, registries, commercial users and non-commercial users, among others – who have been chartered to define the accountability mechanisms that need to be adopted by ICANN to safeguard it from capture by governments or the bureaucracy of ICANN itself. I attended a recent meeting of the CCWG that occurred in Istanbul, where much good work was done. Most notably, the group has generally reached consensus that ICANN needs a narrowly focused mission statement that confines it to a limited scope of activities and that it needs to also create an Independent Review Panel with arbitral authority to confine ICANN to the mission as defined. If ICANN does both of those things it will go a long way to ensuring accountability and maintaining internet freedom.
I wanted, however, in this blog post to discuss one of the more difficult and, to my mind, troubling side issues that has arisen in the CCWG — one that will be of interest to national security lawyers in America: the question of “jurisdiction.” The phrase is a bit of misnomer since by “jurisdiction” the CCWG means a host of related, but distinct things – where ICANN can be sued; what laws apply to disputes involving ICANN and its customers/users; and where ICANN is incorporated. It is only the last of these that generates controversy – but boy does it generate controversy.
Yesterday, I wrote about the consequences of congressional inaction over the next two months with respect to Section 215 of the Patriot Act. Today, I want to focus on another area where Congress is poised to do nothing: authorizing force against the Islamic State.
Specifically, I want to argue that this inaction has important consequences—though less in the fight against ISIS than in the relationship between the executive and legislative branches over war powers. In the context in which it is taking place, this inaction—in my opinion, anyway—constitutes a meaningful congressional acquiescence in the President’s bold and relatively attenuated claim of authority to confront ISIS under the 2001 AUMF.
I am not a fan the President’s reading of the 2001 AUMF to cover ISIL, which I have criticized before. I don’t back off those criticisms at all. A group that has publicly broken with Al Qaeda, that is fighting (sometimes) the local Al Qaeda affiliate (though also cooperating with it), seems to me an improbable fit under the 2001 document. I would still rather—much rather—see the President operating under an AUMF tailored for the current situation and describing the current reality.
Yet let’s review the inter-branch bidding so far. First, the President asserted that he didn’t need an additional congressional enactment because the 2001 AUMF already covered operations against the Islamic State. Then prominent key members of Congress moaned for months that he was operating without congressional involvement and argued that he should seek a separate authorization. In response, while continuing to maintain that he did not need one, the President sent up a draft authorization that would supplement—but not replace—the 2001 AUMF, thus effectively taunting Congress with the duplicative nature of its potential involvement in this space. In effect, President Obama told Congress to go through the motions of passing a resolution if it wished but to do so understanding that its actions wouldn’t matter.
Tick. Tick. Tick.
That’s the sound of time slipping away before the June 1 sunset of the Patriot Act 215 provision. We’re now within two months of the sunset. Congress does not seem to be bestirring itself to pass anything—the USA Freedom Act in one form or another—so we need to consider the possibility that May will come and go and June will see the law will actually expire. This would be a consequential failure on the part of the legislature, though not for the reasons many people seem to assume.
Many commentators assume that the big enchilada here is the 215 program itself. There’s been a lot written, for example, about whether the program might continue under a kind of grandfathering language in the statute. There’s also been a lot of discussion about what contingency plans the administration may have if the statute is allowed to lapse. These are interesting questions, but they seem to me to miss the broader significance of a legislative failure to act before the sunset. The 215 program itself, after all, is not that important. Even if one accepts the intelligence community’s view of its efficacy—and many people do not accept it—it is a relatively narrow program used in a limited group of cases and involving a small number of queries annually.
The bigger significance of a failure to act, rather, would be threefold:
First, it would constitute a vivid demonstration that Congress is not up to the task of signals intelligence reform. This would be a significant change. Since Congress first passed FISA in 1978, it has returned to the statute on any number of occasions to tinker with it in response to changed circumstances and shifting technologies. These changes have been critical to keeping the statute relevant, to keeping its protections remotely commensurate with intelligence practice and capacities, and to keeping its authorizations remotely commensurate with the behavior of intelligence targets. These changes have always been bipartisan. They have taken place irrespective of which party controls the White House and which party controls Congress. And while the larger gridlock affecting Washington has eroded that bipartisanship, it hasn’t eliminated it, nor has it left Congress incapable of doing its job in this area. FISA has been a matter on which the two parties have managed to work together pretty effectively over a very long period of time. It’s an area in which Congress has always managed to do its job.
The three podcasts associated with this site—the Lawfare Podcast, the Steptoe Cyberlaw Podcast, and Rational Security—will gather for a live taping extravaganza for the first time. The Triple Entente Beer Summit will take place at the fabulous Washington Firehouse at 1626 North Capitol Street, NW and will run between 6 pm and 9 pm. There will be food. There will be drinks. And there will be a live inter-podcast taping, complete with audience questions.
It’s a chance to meet other Lawfare readers and Steptoe Cyberlaw or Rational Security enthusiasts. It’s a chance to heckle Stewart Baker and Shane Harris and Tamara Wittes and, I suppose, me. It’s a chance to network with people in the field. And who knows? We may even record an impromptu Chess Clock Debate.
Tickets for the Triple Entente Beer Summit are available here. As the event is also a fundraiser for Lawfare—which is currently incurring substantial costs rebuilding our web site (more on that soon)—we will also be taking donations at the event.
So please join us. And bring a friend or two. If the event is a success, there’s no end to what sort of live programming we might do in the future.
- Thursday, May 7th from 6:00-9:00 pm
- The Washington Firehouse
- 1626 North Capitol St. NW
- The Triple Entente Beer Summit – A national security extravaganza
Our guest for episode 61 of the Cyberlaw podcast is Joseph Nye, former dean of the Kennedy School at Harvard and three-time national security official for State, Defense, and the National Intelligence Council. We get a magisterial overview of the challenge posed by cyberweapons, how they resemble and differ from nuclear weapons, and (in passing) some tips on how to do cross-country skiing in the White Mountains.
In the news roundup, Meredith Rathbone explains details of the new sanctions program for those who carry out cyber attacks on US companies. I mock the tech press reporters who think this must be about Snowden because, well, everything is about Snowden. Michael Vatis endorses John Oliver’s very funny interview of Edward Snowden. Not just funny, it’s an embarrassment to all the so-called journalists who’ve interviewed Snowden for the last year without once asking him a question that made him squirm. In contrast, Oliver almost effortlessly exposes Snowden’s dissembling and irresponsibility. He hits NSA below the belt as well.
Ben Cooper explains the Ninth Circuit decision refusing to apply disability accommodation requirements to web-only businesses (he filed an amicus brief in the case), and we speculate on the likelihood of a cert grant.
While we’re speculating on judicial outcomes, Maury Shenk takes us through the arguments over the data protection Safe Harbor before the European Court of Justice. We both think the arguments suggest considerable hostility toward the Safe Harbor. An unfavorable ECJ decision could greatly complicate the lives of companies that depend on it to allow extensive data transfers across the Atlantic. And great complications are exactly what we expect.
As always, send your questions and suggestions f or interview candidates to [email protected]or leave a message at +1 202 862 5785.
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.