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

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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

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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

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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

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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

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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

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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

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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

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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

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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?

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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?

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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

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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

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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 »

Reactions to NYT Story on North Korean Cyber Penetration

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Monday, January 19, 2015 at 9:45 AM

David Sanger and Martin Fackler write in the NYT that the NSA “drilled into the Chinese networks that connect North Korea to the outside world, picked through connections in Malaysia favored by North Korean hackers and penetrated directly into the North with the help of South Korea and other American allies,” and also placed malware in North Korean computer systems “that could track the internal workings of many of the computers and networks used by the North’s hackers.”  This malware created an “early warning radar” that supported the attribution of the Sony hack to North Korea.

Some reactions:

Glenn Greenwald tweets of this story that “Anonymous NSA & WH officials leak details about surveillance on NK, but it’s OK because it’s designed to help the WH.”  Not quite, at least according to the NYT reporters, who describe their sources as “former United States and foreign officials, computer experts later briefed on the operations and a newly disclosed N.S.A. document.”  These former U.S. officials might or not be from the NSA and White House – we don’t know.  But Greenwald’s basic point still holds.  The USG does not to go after “helpful” leakers nearly as robustly as it goes after those deemed “unhelpful.”

Is this a helpful leak?  I am sure many in the intelligence community are furious for what it reveals about USG techniques and capabilities.  I am also sure that this revelation will blow the effectiveness of these methods to some uncertain, and probably large, degree.  On the other hand, it strengthens the case for the North Korean attribution.  And it will also have to some uncertain degree a general deterrent effect on cyberattacks against the USG, for it reveals yet again how good the NSA is at penetrating foreign networks and watching plots against the USG.  Our adversaries must assume that no matter what precautions they take, the NSA might be watching.

On the attribution front, the truth is that this story provides no more “evidence” of attribution to North Korea than did the earlier FBI statements.  And yet I suspect this story will lay the attribution question to rest.  This information seems more credible, both because of the nature of the information revealed, and because it is being printed with the NYT’s 3d-party imprimatur.  Ben and I discussed this and similar mysteries of attribution in our podcast discussion.

Finally, as I have noted before about similarly revealing David Sanger cyber stories, this article reveals how much the norms surrounding publication have changed.  Like dozens of others stories published about USG cyber and surveillance, this one flies in the teeth of the publication prohibition in 18 U.S. Code §798.  It is quite clear that the USG no longer considers enforcing this provision against journalists.  It is also clear, in light of DOJ’s Risen stand-down and the Attorney General’s change of guidelines for issuing subpoenas against journalists, that the Justice Department – in this administration, but perhaps forever – is not going to go after reporters for their sources, at least in the national security context.  Also, despite the hysteria over leak prosecutions against U.S. officials by the Obama administration, DOJ has gone after a very tiny fraction of leakers, and has not been terribly effective in doing so.  The combination of rampant leaking, the USG stand-down against reporters, the difficulty of successful prosecution of “bad” leakers, and the failure to prosecute “useful” leakers, will only further contribute to the norm of impunity for leaking high-level classified information, which in turn will contribute to the ready flow of classified information to the public.

The Week That Will Be

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Monday, January 19, 2015 at 12:00 AM

Event Announcements (More details on the Events Calendar)

We wish you a happy holiday as we remember the life and leadership of Dr. Martin Luther King, Jr.

Tuesday, January 20th at 1 pm: The Middle East Policy Council will host a conference in the Rayburn Building on Capitol Hill entitled Managing, Ending, and Avoiding Wars in the Middle East. General Michael Hayden, General Daniel Bolger, Dafna Rand, Francis Riccardione, and Thomas Mattair with participate in a discussion moderated by Omar Kader. For more information or to watch the live stream, visit the MEPC website.

Wednesday, January 21st at 1:15 pm: Under Secretary of Defense for Intelligence Michael G. Vickers will speak at the Atlantic Council on conducting Intelligence in a Dynamic World. Vickers will address the role of defense intelligence in tracking constantly morphing security threats at a time when technology has increased the ability of individuals and states to counter and evade US intelligence methods. Barry Pavel will moderate. RSVP.

Wednesday, January 21st at 3 pm: The Atlantic Council’s Cyber Statecraft Initiative will host Shane Harris, senior intelligence and national security correspondent at the Daily Beast, for a discussion of Harris’ new book, @War. Dmitri Alperovitch, the cofounder and CTO of CrowdStrike, will moderate the conversation, exploring the trends in cybersecurity following breaches such as those at Target and Sony. Register here.

Wednesday, January 21st at 4:45 pm: Cybersecurity will also be the topic du jour at the Center for Strategic and International Studies. The CSIS-Schieffer Series will hold a discussion on Security Cyberspace with Bob Schieffer, Shawn Henry, David Sanger, and James Andrew Lewis. RSVP.

 

Employment Announcements (More details on the Job Board)

Senior Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence

SALARY RANGE: $124,995 – $157,100
OPEN PERIOD: 11/26/14 – 11/26/15
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

This position advertises at a GS-15. ODNI uses a rank-in-person system in which rank is attached to the individual. Lower graded employees may apply, but if selected would accept the position as a lateral reassignment at their current grade.

The Office of General Counsel (OGC) of the Office of the Director of National Intelligence (ODNI) provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law, procurement and acquisition law, personnel law, government ethics, budget and fiscal law, general administrative law, legislative support, government information practices (Freedom of Information Act/Privacy Act), and intellectual property law.

DUTIES: 

Lead attorneys in providing expert legal advice and guidance to senior Office of the Director of National Intelligence (ODNI) leadership on complex areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.

Lead attorneys in providing expert legal counsel to support the development, review, and preparation of United States (US) Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.

Oversee attorneys in counseling clients, including senior ODNI leaders, on complex legal issues and provide innovative and highly effective guidance on possible courses of action; expertly prepare complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.

Lead, oversee, and direct attorneys in conducting legal research and analysis on extremely complex or sensitive legal issues as well as on laws, regulations, and policies that have a significant impact on ODNI and IC interests and brief ODNI leadership on issues and findings.

Direct and oversee attorneys in providing timely reviews of planned ODNI and IC activities for compliance with the Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief ODNI leaders on potential legal and policy issues, and develop solutions to address difficult legal problems having potential high-level or large-scale impact on the ODNI’s or the IC missions or activities.

Lead and oversee attorneys in the analysis of statutes, bills, reports and Congressional materials, as well as proposed Executive Branch orders, directives, regulations and policies, to determine their effect on the ODNI and the IC; provide expert advice and counsel to senior management on legislative proposals, Congressional testimony, and related documents.

Oversee and direct attorneys in the preparation and presentation of briefings that advocate for ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; cogently brief senior ODNI leaders on legal issues that relate to or effect ODNI and IC activities.

Maintain productive working relationships with ODNI elements, IC colleagues, executive agencies, congressional personnel and members, congressional committees, and use these relationships to advocate ODNI and IC positions, support a continuing dialog, and provide insight into ongoing and planned ODNI and IC activities.

Lead a team of professional staff and assess performance, collaborate and oversee goal setting, and provide feedback on personal development.

How to Apply: 

For additional information, including a description of benefit packages, or to apply, please visit the full ODNI vacancy announcement. 

 

Associated General Counsel

ORGANIZATION: Office of the Director of National

OPEN PERIOD: 12/04/14 – 12/04/15
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

JOB SUMMARY:

This position advertises as a GS-13. ODNI uses a rank-in-person system in which rank is attached to the individual. Lower graded employees may apply, but if selected would accept the position as a lateral reassignment at their current grade.

The Office of General Counsel (OGC) of the Office of the Director of National Intelligence (ODNI) provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law, procurement and acquisition law, personnel law, government ethics, budget and fiscal law, general administrative law, legislative support, government information practices (Freedom of Information Act/Privacy Act), and intellectual property law.

DUTIES:

Provide preliminary legal advice to Office of the Director of National Intelligence (ODNI) leadership on areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.

Provide recommendations to senior attorneys to support the development, review, and preparation of United States (US) Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.

Counsel clients, including ODNI leaders, on legal issues and provide effective guidance on possible courses of action; prepare documents on legal issues for a variety of internal and external recipients.

Conduct research and analysis on complex or sensitive legal issues as well as on laws, regulations, and policies that have an impact on ODNI and IC interests and brief senior attorneys on issues and findings.

Provide initial reviews of planned ODNI and IC activities for compliance with the US Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief senior attorneys on potential legal and policy issues, and recommend solutions to address legal problems having potential impact on the ODNI’s or the IC missions or activities.

Perform initial analyses of statutes, bills, reports and Congressional materials, as well as proposed Executive Branch orders, directives, regulations and policies, to determine their effect on the ODNI and the IC; provide advice and counsel to senior attorneys on legislative proposals, Congressional testimony, and related documents.

Develop initial briefings for senior attorneys to support ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; brief senior attorneys on legal issues that relate to or effect ODNI and IC activities.

Maintain productive working relationships with peers in ODNI elements, the IC, executive agencies, congressional personnel, congressional committees, and use these relationships to discuss ODNI and IC positions, support a continuing dialog, and provide insight into ongoing and planned ODNI and IC activities.

How to Apply: 

For more information, including benefits packages, or to apply, please visit the full opening announcement.

New NSA Documents on Offensive Cyberoperations

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Sunday, January 18, 2015 at 2:10 PM

Jacob Appelbaum, Laura Poitras and others have another NSA aticle with an enormous Snowden document dump on Der Spiegel, giving details on a variety of offensive NSA cyberoperations to infiltrate and exploit networks around the world. There’s a lot here: 199 pages. (Here it is in one compressed archive.)

Paired with the 666 pages released in conjunction with the December 28th Spiegel article (compressed archive here) on the NSA cryptanalytic capabilities, we’ve seen a huge amount of Snowden documents in the past few weeks. And, at least according to one tally, 3560 pages in all.

Bits and Bytes

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Sunday, January 18, 2015 at 10:27 AM

Hackers for Hire.  Hacker’s List is the new Uber for hacker hiring. “A man in Sweden says he will pay up to $2,000 to anyone who can break into his landlord’s website. A woman in California says she will pay $500 for someone to hack into her boyfriend’s Facebook and Gmail accounts to see if he is cheating on her.”

Zombie Cookies.  The cyber treat that keeps on giving.  Super cookies called Unique Identifier Headers that are almost impossible to expunge.  Wipe them with a cookie cleaner and they re-propogate.

Second Confirmed Physical Cyber Attack.  This one is actually a pretty big deal. “In a German report released just before Christmas (.pdf), that hackers had struck an unnamed steel mill in Germany. They did so by manipulating and disrupting control systems to such a degree that a blast furnace could not be properly shut down, resulting in “massive”—though unspecified—damage.  This is only the second confirmed case in which a wholly digital attack caused physical destruction of equipment. The first case, of course, was Stuxnet, the sophisticated digital weapon the U.S. and Israel launched against control systems in Iran in late 2007 or early 2008 to sabotage centrifuges at a uranium enrichment plant. That attack was discovered in 2010, and since then experts have warned that it was only a matter of time before other destructive attacks would occur. Industrial control systems have been found to be rife with vulnerabilities, though they manage critical systems in the electric grid, in water treatment plants and chemical facilities and even in hospitals and financial networks. A destructive attack on systems like these could cause even more harm than at a steel plant.”

The Foreign Policy Essay: Ceci n’est pas une guerre

By
Sunday, January 18, 2015 at 10:00 AM

Editor’s Note: The recent terrorist attacks in France prompted mass rallies and statements of support from around the world. In the United States, President Obama is convening the leaders of concerned states to discuss ways to fight global extremism. Yet a look at the last decade suggests that Europe’s terrorism problem may be more manageable than the rhetoric surrounding the latest attack suggests. In this essay, my Brookings colleague Jeremy Shapiro warns that an overreaction in the name of counterterrorism could cause far more harm to France than the attacks themselves.

***

The mind reels at the horror of the terrorist attacks in France. The body politic demands a reaction. And so a reaction there will be.

But we have learned to our cost (or should have) that societies often overreact to such outrages, to disastrous effect. The terrorist threat is to the lives of individual citizens. As the massive solidarity marches in Paris remind us, terrorists cannot undermine the core values of a free society. Only the society itself can do that. And an exaggerated sense of national peril is perhaps to the fastest route to societal self-destruction.

France should be well prepared to avoid this fate. The French have often looked back over the long arc of American counterterrorism errors and excesses—from Guantanamo, to the war in Iraq, to the torture scandal—and congratulated themselves on their relative prudence.

Shapiro photo with borderThis self-perception ignores some of the ugly history of counterterrorism in France, but it does accurately reflect a remarkable process of learning. France has always been on the “bleeding edge” of terrorism, confronting the menace in all its guises—from bomb-throwing anarchists to transnational Islamist networks to lone wolf madmen. From this long and bloody struggle, France has developed an enormously effective, if at times controversial, system for fighting terrorism. As the threat of Islamist terrorism has risen around the world—and as France in particular has been publicly singled out as a target numerous times by terrorist groups from Algeria to Afghanistan—France has been largely immune from terrorist attacks by Islamist groups, foiling dozens of plots in the past 15 years.

That immunity was severely compromised last week when gunmen attacked a satirical magazine and a kosher butcher in Paris. The 17 deaths that resulted are a tragedy and a travesty. But they are not necessarily an indictment of France’s counterterrorism efforts. Perfection was never the standard for success. French counterterrorism officials, in contrast to many of their American colleagues, have long held that terrorism is a feature of modern life. Like crime, it cannot be eradicated, only managed and controlled. Read more »

The Lawfare Podcast, Episode #106: Daniel Reisner on Law, Security, and Peace in the Middle East.

By
Saturday, January 17, 2015 at 1:55 PM

This week, Ben and Matt Waxman sat down with Daniel Reisner, former head of the International Law Branch of the Israeli Defense Forces and current partner with Herzog, Fox and Neeman. Reisner has also served as a senior member of Israel’s peace delegations over the years, participating in negotiation sessions and summits including those at Camp David. He continues to advise senior members of the Israeli government on a variety of issues relating to international law and operational security issues. Colonel Reisner was in New York on a visit sponsored by Academic Exchange for a series of events and discussions on contemporary national security challenges. His experiences set up a wide-ranging conversation touching on everything from the law of targeted killing to the role of morality in operational law advice.

The Week that Was: All of Lawfare in One Post

By
Saturday, January 17, 2015 at 9:55 AM

Last week, Bryan Cunningham invited the Lawfare community to debate the proper role of law enforcement and traditional war fighting tools in combating terrorism. Cunningham argued that the discussion was crucial, as the “law enforcement model failed tragically” in the Paris shootings. Wells pushed back against his characterizations of the Bush and Obama administrations’ counterterrorism strategies as hewing cleanly to the war and law enforcement approaches, respectively, and questioned whether the war fighting tools that Cunningham saw lacking in France would actually have stopped the Charlie Hebdo attacks. Jack made two further points: first, that the Obama administration has actually not instituted a law enforcement approach to counterterrorism; and second, that the war versus law enforcement distinction ignores the fact that every approach to counterterrorism will include aspects of both.

Cunningham responded by pointing out the political importance of invoking the war approach; he also noted that, semantics aside, he and Jack probably aren’t all that far apart on the legal nuts and bolts of counterterrorism. David Kris joined the conversation by sharing a 2010 speech and some excerpts from a 2011 article on the law enforcement versus war debate. In the excerpts, he argued that law enforcement, rather than being opposed to a war effort, is complementary and in fact crucial to winning a war. John Bellinger wrapped up the lively discussion up by posting some excerpts from his 2006 speech at the London School of Economics, in which he stated that both law enforcement and military approaches, when exercised exclusively, are inadequate. The key, then, is not selecting which approach to use, but selecting which approach to use when.

Jane Chong proposed that those claiming that the Charlie Hebdo cartoons had provoked the Kouachi brothers into attacking the newspaper’s offices misunderstand the nature of terrorism. She explained that the Kouachi brothers were not peace-loving individuals driven to murder by offensive cartoons. Rather, they were terrorists searching a suitable target.

Carrie Cordero questioned those commentators who quickly labeled the Kouachi brothers “lone wolves,” pointing out that some of the earliest facts to emerge in the aftermath of the attacks indicated something very different from an operation by two independent gunmen.

In response to the Paris attacks, French Prime Minister Manuel Valls declared war on radical Islam. Ben wondered if that means France will stop paying ransom to violent Islamist groups for hostages.

In its coverage of the Paris attacks this week, the New York Times quoted an anonymous source in al Qaeda in the Arabian Peninsula. In a letter to the paper, FBI Director James Comey criticized the decision to allow a representative of a terrorist group to clarify its role in the Paris attacks, calling it “mystifying and disgusting.” In response to criticism of Director Comey’s comments, Jack defended the Director’s actions, maintaining that the press is not immune from criticism, even if the critic is the government.

Bobby brought us the news that the FBI stymied a terrorist plot planned for the Capitol, and noted that the plot shows the danger of homegrown terrorists conducting attacks even without direction from a foreign terrorist group.

This week’s Foreign Policy Essay came from Oriana Skylar Mastro, who argued that concerns over the growth of the Chinese military are overblown; while the Chinese military is modernizing and becoming more powerful, it is likely to become a “second-tier” power with limited ability to exert force beyond its own region.

Part of China’s growing power has been asserted through its claims in the South China Sea, which led the Philippines to submit its own conflicting claims to international arbitration. Sean Mirski noted that China has refused to participate in the arbitration, yet recently released a paper essentially arguing its side in the case. The paper challenges the legitimacy of the process without clarifying the nature of China’s claims in the South China Sea.

Wells tipped us off about a new congressional effort to block transfers of Guantanamo detainees, sharing coverage of the story along with the text of the bill in question, introduced by Senator Kelly Ayotte (R-NH). Later, Wells shared the news that five more detainees had been transferred out of the facility. John gave President Barack Obama some advice on how to address the Guantanamo issue in next week’s State of the Union address. Rather than calling the issue a moral one and thus implicitly insulting Republicans, John advised framing it as a national security necessity.

Cody posted the White House’s summary of President Obama’s new cybersecurity legislative proposals, which he will announce in the upcoming State of the Union address. Paul Rosenzweig evaluated the proposals relating to information sharing and concluded that, while these proposals will certainly create a large public debate, they will be of minor significance in maintaining and increasing cybersecurity.

On Friday, President Obama met with UK Prime Minister David Cameron. The two leaders held a joint press conference and were asked about both cybersecurity and the balance between privacy and public safety. Cody shared the video and a lengthy quotation from the President on back-doors in encryption.

Paul showed us a nifty feature that the organization managing the .fr domain has added to its servers: an embedded “Je suis Charlie.” While admitting the feature is “pretty cool,” Paul pointed out that it also shows the privileged position those who manage the naming functionality of the internet have to (potentially) push their own views.

Paul discussed what the CENTCOM Twitter hack actually means, noting that it actually doesn’t mean much of anything, really.

Bruce Schneier wrote about the possibility for greater openness and accountability in governance—specifically in surveillance decisions—that new technologies enable, should we update our government to reflect these advancements. In particular, Bruce discussed the possibility of prior judicial approval for all Presidential surveillance decisions. Ben responded by walking through a scenario in which every surveillance decision is, indeed, subject to judicial approval. The increased number of nodes in this decision-making process, Ben posits, might in fact limit, not increase, the chief executive’s accountability.

Wells shared coverage of a government study that found no viable software-based alternative to bulk collection, along with the ACLU’s response to the study’s findings.

Ben shared his thoughts on why international concern for the norms of armed conflict has grown. The current crisis in the law of armed conflict, Ben argues, has arisen because it is states, and not the increasingly-brutal non-state groups that attack them, that are being held to higher and higher humanitarian standards.

Alex Whiting informed us that the International Criminal Court has opened a preliminary investigation into possible war crimes in Palestinian territory. But, he continued, this development is really a non-event, a foregone conclusion indicating nothing about the eventual outcome of the investigation.

Earlier this month, the US gained custody of a commander in the Lord’s Resistance Army who is wanted by the International Criminal Court. Paul explained why no one is really sure what should be done with the prisoner, and linked to a Washington Post article discussing the same.

Wells brought us new that a CIA review board has investigated and found that the CIA did nothing wrong in the CIA-Senate spying kerfuffle from last year, along with some articles on the topic.

In this week’s Lawfare Podcast, Jack and Ben discussed the attribution problem as it pertains to the Sony hack, focusing on the tricky balance between revealing enough information to satisfy the public while not aiding cyber attackers.

An interview with Juan Zarate headlined this week’s Steptoe Cyberlaw Podcast. The interview centered around US sanctions on North Korea in response for the Sony attacks.

In other podcast news, Ben shared the second episode of the Rational Security podcast, which featured Brookings scholar Jeremy Shapiro discussing returning foreign fighters. The gang also covered the international “Terrorist Attack Condemnation” fetish and the new vocabulary of cybersecurity.

Earlier in the week, Jeremy Shapiro released a new paper on returning foreign fighters written with fellow Brookings scholar (and Lawfare’s Foreign Policy Editor) Daniel Byman. Ben shared the paper, as well as audio from Jeremy and Daniel’s Brookings event on the same topic.

And Paul gave us an update on Lawfare’s Bitcoin, whose value has tanked since we bought it in December.

And that was the week that was.