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The Lawfare Podcast: My Constitution Day Speech at NSA

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Saturday, February 21, 2015 at 1:55 PM

In mid-September, I delivered the annual Constitution Day address at the National Security Agency.

I had meant to post the speech back then, except that it being NSA and all, I wasn’t allowed to bring my own recording equipment into the building and thus had to wait until the NSA folks released the audio of my own speech to me. This took a while—a long, long while, as it turned out.

For reasons still unclear to me, my speech had to go through a lengthy review before it could be released, even to its author. This was particularly odd, since the event was unclassified, since I am not cleared to receive classified information in any event, since I was free at any time in the interim to give exactly the same speech somewhere else, and since I requested only my own words—not the words of any NSA official or any of the Q&A.

In any event, five months later I am pleased to be able to provide the speech in full. The address itself covers some ground I have never spoken about elsewhere and some themes I am very interested in developing further. Specifically, it deals with the question of the complicated relationship between the intelligence community and the sort of neutral principles on which constitutional democracies normally operate. It explores just why so many people now struggle to trust the intelligence community, and concludes with three major challenges the community must address in order to maintain public confidence into the future. I would be very interested in reader and listener feedback and thoughts on these ideas.

On a personal note, yes,  I am fully aware that my critics will find my being the Constitution Day speaker at NSA amusing—all the proof they need both that I am in the tank for the agency and that the agency is only interested in hearing from, as ACLU technologist Chris Soghoian never tires of calling me, “self-described NSA apologists” like me.

So here’s my preemptive response: It was an honor and pleasure to give this speech before an agency in whose work I believe and whose workforce has taken a huge and largely unfair beating. I hope my comments stimulated thought and challenged people at the agency. And while people are free, of course, to decide that either the fact of the speech or its contents confirm whatever they already believed about me and NSA, I would hope they might instead—or in addition—engage some of the ideas I put forth.

Enjoy.

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The Week that Was: All of Lawfare in One Post

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Saturday, February 21, 2015 at 9:55 AM

President Obama discussed encryption in an interview he gave last week as part of the White House’s summit on cybersecurity and consumer protection. Susan Landau praised the President’s comments and described how greater government access to encrypted systems—through a built-in “back door”—leaves such systems vulnerable; the flip side, she argued, is that closing this back door limits the government’s ability to ferret out and foil criminal and terrorist plots. Herb Lin echoed Susan’s praise and made a couple of further points, including that human error may provide just the back door that law enforcement wants. If a consumer forgets or loses her encryption key, she will want the vendor to offer key recovery capabilities. If vendors offer this service, Herb noted, law enforcement will have access to those capabilities, too.

In the same interview, the President remarked that the scrutiny to which European governments subject American technology companies, ostensibly over privacy concerns, often helps European tech companies compete with their more developed American counterparts. Carrie Cordero applauded the remarks and described how Europe used the Snowden revelations to support European industry while hamstringing American companies under the guise of concerns over government surveillance.

The Office of the Director of National Intelligence recently compiled some of the guidelines that regulate government surveillance. Wells posted those guidelines, which cover how various agencies collect, retain, and disseminate information relating to U.S. persons pursuant to Executive Order 12,333.

Details of another kind of government surveillance also came to light this week. Bruce Schneier told us about the Equation Group—probably the NSA—and its ability to embed spyware deep inside targeted computers. He went on to describe the implications of this revelation for cybersecurity. Herb added some background on why the group’s techniques—which aren’t new—are still viable and also wondered whether this program is part of the NSA’s preemptive capabilities.

Paul Rosenzweig assessed the effectiveness of the White House’s new information sharing executive order, noting that it will be somewhat helpful but limited by its inability to surmount legal barriers to information sharing by the private sector. Paul also tipped us off to several other stories on cyberspace in his “Bits and Bytes” feature.

The Obama administration’s draft AUMF for ISIS has not fared well in the press. Ben collected some pointed critiques of the proposal, noting that some people argue that it’s too broad, others argue that it’s too narrow, and some even argue that it’s both. But, Jack explained, much of the commentary swirling around the proposal misunderstands what the draft’s language actually says, and so he set out to correct a few of these major misconceptions. Even without these misconceptions, however, much of the draft is far from clear, so Jack, Steve Vladeck, and Ryan Goodman wrote up six questions that Congress should ask Administration witnesses in upcoming hearings on the AUMF.

The ongoing debate over what congressional limits on presidential power should be included in the AUMF are part of a broader discussion on the proper role of Congress in foreign affairs. Wells linked to an article on the topic by Daniel Silverberg, a lawyer working in the House of Representatives on issues relating to national security and foreign affairs.

Wells also posted to a decision by the CMCR that voided the first conviction by a Guantanamo military commission. In 2007, Australian David Hicks, who was picked up in 2001 after training with al Qaeda, pleaded guilty to providing material support to terrorism; the CMCR voided his conviction and sentence on the grounds that, in Al Bahlul v. United States, the D.C. Circuit decided that material support for terrorism is not a viable charge in military commissions for pre-2006 conduct.

While this leaves only a few successful military commission convictions standing, the commissions continue to hear cases. One of these cases, that of the accused 9/11 conspirators, moved forward last Thursday. Matt Danzer described the proceedings, which centered around a series of motions on behalf of one defendant, Mustafa Al-Hawsawi.

As the last day of funding for the Department of Homeland Security approaches with no deal in sight, Paul noted that a DHS shutdown isn’t really a shutdown at all, as around 85 percent of DHS employees are “essential” and the President can direct them to keep working. But while the conflict over DHS funding remains deadlocked, the fight over the underlying issue in the conflict—the President’s Executive action on immigration—evolved, with a federal judge blocking the President’s immigration plan. Peter Margulies discussed how the opinion will shape the case going forward and argued that the judge’s opinion rightly censured the Obama administration for allowing “rhetoric to supplant reality.”

Earlier this week, in response to some remarks by Eric Holder on the administration’s prosecutions of leakers, New York Times reporter James Risen unleashed a vitriolic Twitter rant against Holder and the Obama administration, calling it “the greatest enemy of press freedom in a generation.” Ben shared both Holder’s remarks and Risen’s lengthy tirade, and then evaluated some of Risen’s claims. In particular, Ben noted that the “reporter’s privilege” that Risen refers to is actually nonexistent according to current Supreme Court case law.

Jack tacked a few further points onto Ben’s response, noting, among other things, that Holder has actually extended some press protections and even declined to force Risen’s testimony, although it was well within his authority to do so. The whole rant, Jack mused, indicates just how hostile journalists are to the accountability they demand of all other institutions. After the Times’s Public Editor Margaret Sullivan voiced support for Risen’s polemic, Jack and Ben noted that, while they agree with Sullivan’s assertion that the Times should support “truth-telling and challenging the powerful,” Risen’s rant doesn’t deserve such lofty honorifics.

This week, the White House held a summit on countering violent extremism. In conjunction with the summit, Brookings scholar William McCants published a special edition of the Foreign Policy Essay, which offered some guidance on what anti-radicalization programs should and shouldn’t do. Specifically, he argued that initiatives should be narrowly focused, as broad programs may alienate American Muslims.

The trial of an American who did become radicalized, alleged Boston bomber Dzhokhar Tsarnaev, has been repeatedly held up by fears that a Bostonian jury will not be impartial. On Thursday morning, three judges from the First Circuit Court heard arguments about whether the trial should be moved out of Boston to ensure impartiality. Andy Wang recounted the day’s proceedings for us.

Yishai Schwartz and Jennifer Williams updated us on developments in the Middle East and North Africa in a new installment of “The Middle East Ticker.”

In this week’s Foreign Policy Essay, Elbridge Colby argued that as China begins to match the U.S. military’s regional capabilities, nuclear weapons will take on newfound salience for both countries.

This week’s Lawfare Podcast (Episode #110) featured Shane Harris and Ben making serious jokes on surveillance and privacy at Washington and Lee School of Law’s cyber-surveillance symposium.

Ben also appeared on this week’s episode of the Steptoe Cyberlaw Podcast (Episode #54) to discuss his new book with Gabriella Blum, The Future of Violence.

And in a kind of podcast hat trick, Ben also linked us to some fun new podcasts—including the latest episode of Rational Security—from Spaghetti on the Wall Productions, the production company he started with Shane Harris and Jennifer Howell.

And that was the week that was.

Oral Argument Recap: Tsarnaev Mandamus Litigation

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Friday, February 20, 2015 at 3:30 PM

For roughly 60 minutes yesterday morning, a three-judge panel of the First Circuit heard arguments as to whether Dzhokhar Tsarnaev’s death penalty trial should be moved out of Boston due to concerns that he would not be able to receive a fair and impartial trial. (Yishai recently covered the legal backdrop here; briefing can be found here and here, and here.)

The question arose as a consequence of the accused Boston marathon bomber’s petition to the appellate court, for a writ of mandamus seeking an order requiring the prosecution to be transferred to another district. Tsarnaev’s defense team had filed three venue change motions with Judge George O’Toole, the district judge, who denied all three. And the pending mandamus petition is Tsnarnaev’s second—the first having been likewise denied by the appeals court a little over a month ago.

I won’t venture any guess as to the case’s outcome, other than to observe—based only on the judges’ questioning yesterday—that the panel seemed split. Of the group, Judge Juan Torruella seemed the most skeptical of the government, and the most in favor of granting some relief to Tsarnaev; for her part, Chief Judge Sandra Lynch appeared to be somewhat unmoved by the defense’s bid for an extraordinary remedy prior to trial. Judge Jeffrey Howard played his cards to his chest, rarely asking any revealing questions. Thus, one judge evidently was supportive of the defendant’s position, another evidently was disinterested in it, and still another sent no signals at all about his view. It had the feel of a 2-1 result.

My summary of the morning’s debate follows below.  Read more »

Today’s Headlines and Commentary

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Friday, February 20, 2015 at 1:42 PM

In an address at a White House summit on countering violent extremism yesterday, President Barack Obama asserted that defeating ISIS will require a stable Syria and a political transition in the country, the Wall Street Journal reports. If that is true, it seems we are a long way from defeating ISIS, as fighting continues to rage throughout Syria. Rebels claimed to have captured over 30 pro-government soldiers yesterday near Aleppo as both sides scramble to maximize their controlled territory ahead of a potential ceasefire agreement, according to the Washington Post. State-run Syrian TV has suggested that the rebel forces have been aided in their fight as fresh militants flow in from Turkey.

Whether that’s true or not, moderate Syrian rebels will soon be re-entering Syria to fight ISIS. Reuters reveals that Turkey and the United States have agreed to a deal to train and arm moderate Syrian rebels on Turkish land beginning next month. For their part, Syrian citizens recently surveyed want a solution to the civil war that maintains the territorial integrity of the country.The Post covers the poll.

In a surprise announcement, the Wall Street Journal reports that, according to a senior military official, the plan to retake Mosul from ISIS will require 25,000 Iraqi soldiers and will begin in April or May. The Pentagon does not usually reveal plans for individual operations in a war. When pressed as to why Central Command would reveal this unusual level of detail, an official said that the United States wants to demonstrate the significance of the Mosul operation and that the Iraqis are “absolutely committed to this.” Perhaps that is true, but other analysts and officials have noted that telegraphing the battle that is coming to Mosul may have two other impacts: It may weaken the resolve of ISIS fighters as they understand the odds they face and it may persuade residents of Mosul to take up arms and aid the Iraqi force.

As substantial pushback against ISIS in Iraq and Syria grows, cracks are appearing within the group’s ranks.The Associated Press reports that, bogged down and at times forced onto the defensive, skirmishes have broken out among its foreign fighters, leaving some commanders dead. An activist described the group’s internal bickering, saying, “Daesh tries to portray itself as one thing, but beneath the surface there’s a lot of dirt.”

On the flip side, the coalition campaign against ISIS continues to create uncomfortable bedfellows. Earlier, the Post shared a list of some of these uneasy alliances. Now Radio Free Europe reveals that, according to one Russian official, the United States and Russia may soon start to share intelligence on the ISIS threat.

ISIS affiliated extremists conducted three suicide car bombings in eastern Libya today, killing at least 35 people. The Post reports that the extremist group that claimed responsibility for the blasts cited recent Egyptian airstrikes in Libya as justification. According to residents of another central Libyan city, Sirte, other ISIS affiliated militants seized a university just days after capturing the city’s administrative hub, Reuters adds.

The Libyan crisis continues to divide several countries in the Middle East. After Qatar refused to support Egypt’s unilateral strikes, Egypt accused it of supporting terrorism, leading Qatar to recall its ambassador. Now, the Times reveals, the Gulf Cooperation Council, usually supportive of the Egyptian regime, has come out in support of Qatar.

As fighting continues to intensify, more migrants are flee Libya across the Mediterranean, hundreds of whom have drowned on the way. In response, the European Commission has committed to extending the joint search-and-rescue force that patrols Italy’s coast. However, some have suggested that the rescue teams encourage migrants to attempt risky sea passages because they believe the Italians will save them. The Wall Street Journal has more.

As Europe continues to confront the threat of domestic terrorism, the open borders that allow people and goods to easily cross from country to country are presenting a security liability. The Post explains that, despite stringent gun regulations throughout Europe, obtaining an illegal firearm, such as the one used in Sunday’s attack in Denmark, is relatively easy.

According to a U.N. mediator, several Yemeni political factions have agreed to form a transitional council to keep the country from sliding further toward a civil war, the Wall Street Journal reports. The council will include underrepresented minorities and work with the current house of representatives to legislate the political transition. At the same time, however, the Houthi rebels that pushed the previous president from power and seized control of northern Yemen are employing increasingly brutal tactics against peaceful protesters. The Post reveals that the rebels have employed kidnappings and beatings to quell the protests that erupted after their coup in January.

In the Somali capital of Mogadishu today, Al Shabaab militants detonated a car bomb outside a hotel where national politicians had gathered, Reuters reports. Militants then stormed the hotel and opened fire, killing 10 people and wounding several others.

Afghan officials yesterday confirmed that there will be negotiations with the Afghan Taliban in the coming weeks, the Wall Street Journal notes. Reuters adds that Afghanistan recently captured several Muslim Uighur militants from China and handed them over to the Chinese in an attempt to convince China to pressure Pakistan to facilitate the talks. China fears that militants from its restive Xinjiang province will receive militant training in either Afghanistan or Pakistan; consequently, it has attempted to persuade Pakistan that turning a blind eye to the Taliban is not in its interests.

As Pakistan signals openness to the peace process in Afghanistan, it faces a difficult, deadly war of its own. The Post explains that hundreds of Pakistani soldiers have been killed in its offensive against militants in North Waziristan, and officials fear that these militant groups are becoming smaller, more dispersed, and more deadly.

A Ukrainian military spokesman claimed that Russian-backed separatists have fired on Ukrainian forces almost 50 times in the last 24 hours, the AP reports, and also accused Russia of sending more equipment, including tanks, into eastern Ukraine. The attacks come after Ukrainian forces were pushed out of the key town of Debaltseve earlier this week. Soldiers are now streaming into Artemivsk, a town that rebels abandoned earlier this year; residents of the town are frightened that fighting will follow the troops, shaking the relative security of this small town. The Wall Street Journal explains.

The retreat from Debaltseve leaves Ukrainian President Petro Poroshenko with few options, Reuters notes. Outgunned by separatists bolstered by Russian personnel, expertise, and machinery, and pressured by European governments to stick to a failed peace plan, President Poroshenko’s outlook appears grim. His proposal for a U.N. peacekeeping force to monitor the ceasefire that was supposed to take effect on Sunday was quickly scuttled by Russia as the rebels opened a new assault on Mariupol, according to the Post.

A debate has emerged in central Europe over a plan to build a nuclear power plant using Russian technology. While its proponents say it will help reduce carbon emissions while giving the region more control over its energy production, critics say it will simply pull the region back into Russia’s sphere of influence. The Wall Street Journal has more.

Nuclear negotiations between Iran and the P5+1 powers will continue in Geneva this Sunday, Reuters reveals. But, as the deadline for an agreement looms, the Times notes that Iran is still refusing to answer some of the questions posed by IAEA inspectors.

Yesterday, NSA Director Admiral Mike Rogers told an audience at a Canadian security conference that the NSA was able to identify North Korea as the source of the Sony hack by analyzing the software used in the attack, Reuters reports. The comments come as the Senate Intelligence Committee prepares to introduce a cybersecurity bill next week, according to The Hill. The bill will aim to enable the private and public sectors to share information about cyber threats.

One such threat continues to dog the U.S. State Department three months after it was discovered. The Wall Street Journal reveals that the hackers who breached the department’s unclassified email system are still inside the system, despite numerous attempts to oust them.

According to a report by the Intercept based on documents leaked by Edward Snowden, the NSA and Britain’s GCHQ hacked into the world’s largest manufacturer of SIM cards to obtain encryption keys meant to shield cell phone communications from surveillance. The manufacturer, Gemalto, has clients including AT&T, Verizon, Sprint, and T-Mobile. The Post covers the report.

Jury deliberations in the trial of Khaled al-Fawwaz,  the Saudi man accused of playing a role in the 1998 embassy bombings in Kenya and Tanzania, will begin next week, the Wall Street Journal notes. This is the third high-profile terrorism case tried in a Manhattan federal court over the past year.

Closing arguments were heard in another terror case in New York City on Thursday, Courthouse News reports. The case pits the families of the victims in the 2002 Jerusalem bombings against the Palestine Liberation Organization and the Palestinian Authority. The plaintiffs claim that the PLO and PA bear responsibility for the attacks. If the jurors agree, the organizations would owe $350 million to ten families of the victims.

Parting Shot: How that emoji can get you arrested on charges of making a terroristic threat. ;)

ICYMI: Yesterday, on Lawfare

Jack followed up Ben’s earlier piece on Times reporter James Risen’s tirade against Eric Holder with several additional points. Ben and Jack then responded to a statement by the Times’s Public Editor defending Risen.

Carrie Cordero discussed the interplay between European privacy and economic concerns relating to U.S. surveillance practices. And Wells posted a document just released by the Office of the Director of National Intelligence describing the status of the guidelines governing several agencies’ collection, retention, and dissemination of information regarding U.S. persons.

Paul Rosenzweig brought us the newest edition of “Bits and Bytes,” and Yishai Schwartz and Jennifer Williams gave us this week’s “Middle East Ticker.”

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.

 

Six Questions Congress Should Ask the Administration about its ISIL AUMF

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Friday, February 20, 2015 at 11:00 AM

[Cross-posted at Just Security]

With congressional hearings on the Obama Administration’s proposed Authorization for the Use of Military Force (AUMF) for the Islamic State on the horizon, we propose six questions that Members of Congress should ask Administration witnesses:

1. What, exactly, is our strategic military objective?

As numerous commentators have pointed out, the Administration’s draft is silent on perhaps the most important question—exactly what is the goal of the military force Congress is being asked to authorize? As Steve wondered back in September,

Is the Administration’s goal to do whatever it takes to destroy or degrade ISIL . . . .? To keep ISIL out of Iraq?  To defend particular operations in particular theaters?  To accomplish anything in particular in Syria?  To somehow ensure that ISIL does not have capabilities to strike the United States?

Even the pre-ambular language in the draft AUMF lacks much indication about the administration’s strategy.  Without a clearly defined objective, Congress cannot assess why the President is asking for its authorization for the use of military force; what force ought to be authorized; or how Congress could ever ascertain (e.g., when it’s time to reauthorize the bill) whether its purposes have been met).  Indeed, all of the other questions about the Administration’s bill pale in comparison to this one: What, exactly, is the mission’s objective?  Some past AUMFs have contained strategic guidance, and some have not.  The important point is that Congress should press the administration on this issue, and that the administration should explain its goals concretely.

2. What is an “enduring” “offensive” ground combat operation?

Section 2(c) of the draft provides that the bill “does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.”  This limitation on the authorization likely makes no difference to the president’s authorities if the administration’s independent interpretation of the 2001 AUMF to authorize force against ISIL remains in place (see below).  And while such a limitation would clearly be lawful, reasonable minds can differ on whether it is a good idea to include in the new AUMF.  (The answer to whether it is a good idea turns in large part on the President’s strategic objectives, noted above.)  But taking the President’s proposal seriously, Congress should push the administration to clarify what it means by the terms “enduring” and “offensive.”  The President has sent thousands of U.S. troops to Iraq since last August.  They have apparently been serving in a defensive posture.  As ISIL gets closer to Baghdad, for example, will self-defense require “offensive” strikes against ISIL?  What is the administration precluding under the draft AUMF by carving out certain defensive actions?  And what does “enduring” mean in this context?  Does it refer to the length of time during which the operation is ongoing? The scope of the operation? Some undefined relationship between time and scope? Something else?  It is hard to see how a limit on “enduring offensive” operations has any teeth beyond ruling out the kind of massive ground offensive that we saw in 2003, which this President is certainly not going to repeat in any case.  Even if the Administration won’t define “enduring,” its witnesses should be asked to provide examples of what would, and would not, count.

3. What’s wrong with Jeh Johnson’s definition of “associated forces”?

As Jack, Ryan, and Marty Lederman have all documented in different respects, the Administration draft’s definition of “associated forces” is far broader than any interpretation that has previously been offered by the U.S. government. That provision appears in section 5:

the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Contrast this language with the far simpler and narrower definition provided by then-DoD General Counsel Jeh Johnson in a February 2012 speech: “(1) an organized, armed group that has entered the fight alongside [ISIL], and (2) is a co-belligerent with [ISIL] in hostilities against the United States or its coalition partners.” Johnson’s formulation has apparently been the consensus standard within the Administration under the 2001 AUMF.  One question is why Johnson’s definition isn’t sufficient for the new AUMF.  After all, “co-belligerency” is a concept that has been put forward by the administration in litigation and accepted by federal courts.  Why does the Administration’s draft omit this idea? And why did the administration add novel language about “successor” organizations that are not closely associated with ISIL? This new language is akin to the gloss that the administration used to extend the 2001 AUMF to ISIL. Congress should ponder whether such an extension is a good idea, and if so, whether it can be addressed in a less open-ended way.

4. What “specific actions” will the Administration report to “Congress” (and why not also the public)?

Section 4 of the Administration’s draft bill requires the President to report to Congress “at least once every six months on specific actions taken pursuant to this authorization.” This is a good idea.  But Congress should push the administration to clarify two points.  First, exactly what is a “specific action” that must be reported under the terms of the provision.  And second, will such disclosures also be made public? Presumably, one purpose of the reporting provision is to ensure that Congress is fully informed as to the continuing scope of the conflict when the authority provided by the bill sunsets three years after enactment. What actions does the Administration believe satisfy that purpose, and what types of actions does the Administration believe should not be reported to the public as well as the Congress?

5. Will ISIL still be covered by the 2001 AUMF once this bill is enacted?

As close observers well know, the Obama Administration has, since September, advanced the controversial claim that at least some military force against ISIL comes under the 2001 Authorization for the Use of Military Force, enacted one week after September 11 and directed at the groups responsible for those attacks—i.e., al Qaeda and the Taliban. The Obama Administration has never repudiated this argument. Moreover, despite suggestions that any draft AUMF for ISIL expressly address the bill’s relationship with the 2001 AUMF (and, perhaps, include language expressly superseding the 14-year-old statute as applied to ISIL, as the SFRC AUMF proposal did last year), the Administration’s draft is silent on the subject.  This has led many of us to infer the administration thinks the 2001 AUMF will continue as an independent authorization for force against ISIL regardless of what the new AUMF says.  Congress should ask the Administration whether the 2001 AUMF will remain an additional font of power to use force against ISIL if the new AUMF is passed. We suspect that the administration will argue that the 2001 AUMF will no longer be necessary once the new AUMF is drafted.  If that is so, Congress should the press the administration about why it did not include an explicit disclaimer in the draft itself.

6. What happens in 2018?

What happens if and when the ISIL AUMF expires, as it will in 2018 if it is not reauthorized? Because the current draft says nothing at all about the 2001 AUMF, there are two possibilities: Either (1) the expiration of an ISIL AUMF will have no bearing on the government’s continuing authority to act under the 2001 AUMF (including against ISIL); or (2) it will. It is unclear what purpose a sunset in the ISIL AUMF serves if after it expires, the next Administration can simply revert back to the 2001 AUMF on the theory that it applies to ISIL. While President Obama will no longer be in office if and when that happens, it seems fairly important to ascertain now what position his Administration—as the author of this bill—takes on the question.

Steptoe Cyberlaw Podcast, Episode #54: An Interview with Ben Wittes

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Friday, February 20, 2015 at 10:11 AM

Episode 54 of the Cyberlaw Podcast features a guest appearance by Lawfare’s own Ben Wittes, discussing cybersecurity in the context of his forthcoming book, The Future of Violence, authored by Ben and Gabriella Blum.  (The future of violence, you won’t be surprised to hear, looks bright.)  Ben also floats the idea of taping an episode of all the Lawfare-affiliated podcasts in a bar with some of our listeners.  More on that idea to come.

In the news roundup, I cover the President’s surprisingly news-light cybersecurity summit in Silicon Valley.  Jason comments on state attorneys generals’ predictable sniping at Anthem for delays in identifying all the potential victims of its hack.  I note with satisfaction a serious loss by EFF in the Jewel lawsuit over the US government’s access to AT&T traffic.  And Jason lays out a report  by the New York State Department of Financial Services on insurance company cybersecurity.

Podcast 54

We both express concern about two Kaspersky security reports that identify new hacking tactics and new dangers for computer networks.  The patient infiltration of large bank networks and the extraction of hundreds of millions of dollars casts doubt on the safety of banking systems around the world.  Equally troubling is the discovery that what Kaspersky calls the “Equation” group used firmware exploits to achieve enduring access to a wide variety of hard drives.  (Though Kaspersky’s claim that the access depended on having the hard drive makers’ source code looks wrong.)

As always, send your questions, suggestions for interview candidates and offers to stand a round at the Beer Summit to [email protected] or leave a message at +1 202 862 5785.

Some Fun New Podcasts from Spaghetti on the Wall

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Friday, February 20, 2015 at 7:44 AM

I have this little experimental podcast company I started with two friends: Shane Harris and Jennifer Howell. Most of its work is not related to Lawfare, but sometimes we do shows of potential interest to the Lawfare readership, and I try to post those when we do. One of those is the weekly show, Rational Security, the latest episode of which is now out:

But we also recently launched a different show, called The Chess Clock Debates, two of the first three episodes of which may be of interest. The Chess Clock Debates is a form of moderatorless debate between two people, in which a chess clock provides the mechanism of distributing time and determining whose turn it it to speak. Our second episode pitted Shane against fellow Daily Beast journalist James Kirchick on the question of the reporter’s privilege—a matter Jack and I have recently been writing about:

The third episode, released yesterday, features my Brookings colleague Suzanne Maloney debating the Hudson Institute’s Michael Doran on the question of whether President Obama has a secret Iran strategy—a subject Doran discussed at length in this article in Mosaic.

 

The New York Times Public Editor Backs James Risen’s “Truth-Telling”

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Thursday, February 19, 2015 at 5:09 PM

Soon after Jack posted this piece on James Risen’s attacks on Eric Holder, which Ben had criticized earlier, the New York Times’s Public Editor, Margaret Sullivan, wrote a post in support of Risen’s tweets. Reasonable people will differ over the right norms for journalists on Twitter—an issue Ben’s original post and Sullivan’s both engage. But there is one howler in Sullivan’s post, and it exemplifies a key point of both of our earlier posts.

Sullivan says of Risen’s tweets that “the insistence on truth-telling and challenging the powerful is exactly what The Times ought to stand for.” Indeed, The Times should stand for that.

The trouble is that Risen’s tweets were simply not truthful on many matters. They wildly misdescribed the law. And they wildly misdescribed the facts of Holder’s role both in the decline of the reporter’s privilege, in general, and in Risen’s case, in particular. As we both noted, in different ways, in our earlier posts, the one powerful institution that Risen and Sullivan implicitly think should not be challenged is their own. And in defense of that institution’s prerogatives, Sullivan seems not merely willing to let Risen sound un-“Timesian,” as she puts it. She’s willing to describe a pattern of hyperventilating falsehoods as “truth-telling.”

The President’s Comments on European Privacy Claims and A Look Back at the LIBE Committee Report on Government Surveillance

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Thursday, February 19, 2015 at 4:30 PM

President Obama made a refreshing observation during an interview with Re/Code at the White House Summit on Cyber Security and Consumer Protection in Silicon Valley last week. Following an exchange regarding the need for greater privacy for students using the Internet for educational purposes, the discussion turned to European scrutiny of U.S.-based technology companies, and how they handle personal information. From the Re/Code interview :

Q. But does it have any teeth, really? I mean, Europe is very strong on these things, and doing a lot of investigations into Google and Facebook and other companies.

In defense of Google and Facebook, sometimes the European response here is more commercially driven than anything else. As I’ve said, there are some countries like Germany, given its history with the Stasi, that are very sensitive to these issues. But sometimes their vendors — their service providers who, you know, can’t compete with ours — are essentially trying to set up some roadblocks for our companies to operate effectively there.

Q. Interesting.

We have owned the Internet. Our companies have created it, expanded it, perfected it in ways that they can’t compete. And oftentimes what is portrayed as high-minded positions on issues sometimes is just designed to carve out some of their commercial interests.

A critique of the President’s comments in the Washington Post suggests that the real issue for Europe is that U.S. consumer privacy law is far weaker than European privacy law. The critique notes, for example, that U.S. privacy law protects only “a few kinds of data” like video rental records. While it is widely understood that the United States’ sectoral approach to privacy imposes less restrictions on the private sector than Europe’s comprehensive model that recognizes a fundamental right to privacy, U.S. law does regulate important categories of personal information, including financial and health records.

But consumer privacy may not have been all the President had in mind. The European pressure on U.S. companies following the Snowden disclosures has, as the President alluded, taken advantage of the situation by conflating consumer privacy laws and policies with national security laws and policies. The President’s apparent acknowledgement of the European game playing provides a useful opportunity to highlight how European officials used the response to the Snowden disclosures to bolster European industry and limit U.S. industry’s ability to do business:

Immediately following the unauthorized disclosures in June 2013, the European Parliament tasked its Committee on Civil Liberties, Justice and Home Affairs (LIBE) with conducting an in-depth inquiry into the NSA’s activities, Member States’ surveillance activities, and their “impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs.” The “Report on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens fundamental rights and on transatlantic cooperation in Justice and Home Affairs” was a result of a six month review that included fifteen hearings and testimony from a wide range of both governmental and non-governmental participants. The report was issued one year ago.

The LIBE Report’s overall outcome encouraged an agenda, led by the European Parliament, of reforming international surveillance activities, oversight and transparency.  In addition, and, perhaps given equal footing in the report, are numerous recommendations aimed at decreasing the European Union’s reliance on U.S.-based communications and technology companies. To that end, the report offered a number of proposals aimed towards first, reviewing the European Union’s information technology and security practices, and second, improving the union’s competency at providing for its own technology and communications infrastructure and needs.

The LIBE Report cited the unauthorized disclosures as causing a variety of concerns, including:

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Risen, Holder, and Journalists’ Sensitivity to Accountability

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Thursday, February 19, 2015 at 2:24 PM

I largely agree with Ben’s critique of James Risen’s sharp twitter criticisms of Attorney General Holder, but want to add (or reiterate) several points.

First, to underscore what Ben says, the absence of a First Amendment reporter’s privilege long preceded Eric Holder and cannot plausibly be said to be part of his “legacy,” as Risen claims.  As Judge Traxler correctly wrote in a 2013 opinion that denied such a privilege to Risen: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”  For this proposition, Traxler Circuit cited a 2005 D.C. Circuit decision, which stated that the Supreme Court’s 1972 decision in Branzburg “in no uncertain terms rejected the existence of such a privilege.”  Eric Holder became Attorney General after 2005.  Perhaps Risen means that Holder did not help journalists achieve their goal of a First Amendment reporter’s privilege, but instead did what every Attorney General since 1972 has done and enforced Branzburg.  But that is not what Risen said.

Second, Holder actually did more than any Attorney General in a while to extend protection to the press in leak investigations.  He twice modified DOJ guidelines to limit the circumstances in which prosecutors can subpoena journalists.  The Reporter’s Committee for Freedom of the Press describes a process of significant cooperation by Holder with the press, and significant changes by Holder to favor the press:

The guidelines that determine how and when federal prosecutors subpoena journalists were significantly modified in 2014, in response to the controversies over a seizure of Associated Press telephone records and a search warrant for the email of a Fox News reporter. They were further modified in January 2015 in response to concerns raised by news media organizations. The Attorney General invited interested groups to comment and propose changes to the guidelines in the summer of 2013. The Reporters Committee coordinated a proposal from a broad coalition of over 50 media companies and journalism organizations. The proposal called for notice to the news media in all instances where the government makes a demand on third parties for a journalist’s records.  It also seeks to expand the guidelines to cover all investigatory instruments (such as search warrants, FISA warrants, national security letters) and all types of records (including email, credit card information, and other newsgathering materials). Attorney General Holder released his report to the president on the department’s subpoena policy in July 2013, promising changes in the federal regulations. The finalized rules were released on Feb. 21, 2014. They addressed most of the concerns that the journalism coalition sought, including broad coverage of newsgathering records in the hands of third parties, but raised additional issues over the wording of some of the provisions. The News Media Dialogue Group, which was created by Holder in the July report, worked with Holder and Justice officials to amend some of the language in the rules. Revised rules were subsequently released on Jan. 14, 2015.

I know that many journalists do not think Holder went far enough, but this hardly sounds like an Attorney General who is (as Risen tweeted) “the greatest enemy of press freedom in a generation.”

Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary.

Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.  And the ratio of leak prosecutions to leaks remains tiny.  But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.  Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.  Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder.

Fifth, Risen’s clearly contra-factual criticisms of Holder reveal how super-allergic journalists are to the accountability that they insist on, and see themselves as guardians of, in every context except where their power is at stake.  Journalists wield enormous power in our society but are among the least accountable of powerful actors – under law and in fact – precisely because the First Amendment gives them leeway to operate for the benefit of our democracy.  As I wrote last year:

Although I believe the press serves an invaluable role in the super-secretive Forever War, I do not think that the press itself is or should be immune from accountability, and I never cease to be amazed by the arguments for non-accountability under law made on its behalf.  … Journalists play a vital role in our democracy in reporting national security secrets.  But the value in this reporting is not absolute.  There are other competing values, including national security, secrecy, and the enforcement of duly enacted criminal laws.  These competing values have often given way since 9/11 to the value of reporting secrets to the public, and the norms and legal constraints on journalists are much looser now than a dozen years ago.  But the law still allows journalists to be subpoenaed to disclose their sources in certain cases.  Journalists and their supporters want to go further and receive immunity from all legal accountability in reporting national security secrets – a position that journalists would tolerate in no other context.

I would love to be educated if I am wrong about any of the above points, and invite journalists to weigh in on Lawfare.

Today’s Headlines and Commentary

By and
Thursday, February 19, 2015 at 1:51 PM

In Guantanamo Bay, a military appeals court voided the conviction of David Hicks, an Australian who pleaded guilty in 2007 to providing material support to a terrorist group. (We posted the decision here). The conviction was the first ever by a Guantanamo military commission, and the CMCR’s decision to overturn is just the latest in a string of difficulties facing the military commission system, the Wall Street Journal explains.

In Libya, the rise of Islamist militants, some of whom are tied to ISIS, has led the Libyan government to ask the United Nations to lift the arms embargo that has been in place since the ousting of Col. Muammar Gaddafi in 2011, the BBC reveals.

Egypt, which conducted its own bombing raid against ISIS targets in Libya on Monday, called for a U.N. resolution to allow international troops to join the conflict. However, Egypt’s unilateral action appears to have alienated one of its allies, the United States. The Daily Beast reports that U.S. officials steadfastly refused to endorse the attack, which was taken without consultation with the United States. The attack has also soured relations with Qatar. After Qatar refused to support an Arab League communique that embraced Egyptian airstrikes, Egypt accused it of sponsoring terrorism, leading Qatar to recall its ambassador, according to Al Jazeera.

Egypt’s proposal may find support in Italy. Italy has strong historic ties to Libya and is the country’s largest European trading partner with more than $11 billion in trade each year. And, due to its proximity to the embattled country, Italy took in more than 3,500 migrants just last month. Italy’s foreign minister said Wednesday that Italy would be integrally involved in any peacekeeping operation in Libya and offered Italian assistance in military training and ceasefire monitoring, the Wall Street Journal reveals.

If you’re catching up on the situation in Libya, here’s a useful map of the state of play as determined by Pieter Van Ostaeyen.

While Islamist factions flourish in Libya, ISIS’s forces in Iraq are under significant pressure from Iraqi Kurds. The Washington Post notes that Kurdish units have seized a stretch of the highway that runs from Mosul, ISIS’s stronghold in Iraq, to its Syrian “capital” of Raqqa. The highway is a vital supply line for ISIS, and restricting or stopping the flow of people, weapons, and cash along it would further weaken the group’s hold on Mosul. Such operations against ISIS have united several often-antagonistic groups, but these alliances are often tenuous. The Post describes a few of the odd partnerships formed in the fight against ISIS, where cooperation between Kurds and Shiites has the potential to alienate the country’s Sunnis while raising difficult questions about what happens after ISIS is defeated.

Elsewhere in Syria on Wednesday, rebels rejected an informal ceasefire proposal for Aleppo put forth by the Syrian government, the Wall Street Journal reports. The rebels argued that the Syrian regime has repeatedly failed to negotiate in good faith; the same day that the government indicated that it would accept a ceasefire in Aleppo, the military moved to surround the rebel-held areas of the city. As fighting continues, the Pentagon announced that it has screened 1,200 moderate Syrian rebels for a training program run by the U.S. military in Turkey, Saudi Arabia, and Qatar, according to the Associated Press. However, the goal is for the rebels to return to fight against ISIS, not the Syrian government.

President Barack Obama gave the keynote address at a White House summit on countering violent extremism yesterday. In his remarks, the Guardian recounts, the President urged Muslims to reject efforts by ISIS to pervert their religion. In the speech, the President avoided labelling various terrorist actions as “Islamic”, a semantic tactic for which he has been repeatedly faulted. The New York Times, however, explains the White House’s logic behind the choice: labeling the groups that the United States is fighting as Islamic would lend credence to the myth propagated by ISIS and other terrorist groups that the West is at war with Islam.

The White House summit served as a forum for ideas on preventing radicalization. In an op-ed in the Wall Street Journal, Secretary of State John Kerry lays out several preventive measures discussed at the summit. Politico reports that the Obama administration is planning to partner with tech firms to fight back against propaganda by extremist groups on social media. However, there appears to be no silver bullet for countering extremism.

The Times tells the story of how one young man went from a private school in Cairo to the battlefields of Syria, illustrating that radicalization is a complex problem with no easy solution:

The West is struggling to confront the rise of Islamic extremism and the brutality committed in the name of religion. But it is not alone in trying to understand how this has happened — why young men raised in homes that would never condone violence, let alone coldblooded murder, are joining the Islamic State and Al Qaeda. It is a phenomenon that is as much a threat to Muslim nations as to the West, if not more so, as thousands of young men volunteer as foot soldiers, ready to kill and willing to die.

According to Pakistani officials, the Afghan Taliban is willing to begin peace talks, Reuters reports. Taliban sources also indicated that their negotiators would meet with U.S. officials today in Qatar for a first round of talks. While these could represent progress in ending the conflict that began in 2001, Reuters notes that U.S. officials flatly denied having any plans to talk with the Taliban in Qatar.

The Indian military has successfully tested a new surface-to-surface nuclear-capable missile, PTI reveals. The missile, named Prithvi II, has a range of 350 km and can carry between 500 to 1,000 kg of nuclear warheads.

China continues to build in the disputed South China Sea, the Wall Street Journal reports. New satellite images show that China has built an artificial island measuring 75,000 square yards atop a reef 660 miles from its shore and just 210 miles from the Philippines.

Ukrainian President Petro Poroshenko called for a U.N. peacekeeping force to be deployed in eastern Ukraine to monitor a ceasefire between the Ukrainian military and Russian-backed separatists, according to Reuters. The proposal was immediately rejected by the separatists as a violation of the ceasefire, and Russia claimed the proposal indicated Ukraine’s unwillingness to abide by the ceasefire. The latter has had little impact in quelling the fighting since it took effect on Sunday. Rebel forces continued their assault on the town of Debaltseve and forced the Ukrainian military into a costly retreat. The Times reports that some members of the military estimate that just a third of the forces trapped in Debaltseve survived; President Poroshenko claimed the number was nearer to 80 percent.

In addition to its aggression in Ukraine, Russia continues its attempts to demonstrate force throughout Europe. According to the BBC, the British air force scrambled fighter jets yesterday as two Russian bombers approached, though never entered, sovereign British airspace. The move continues a series of such maneuvers by Russian planes across Europe. The BBC adds that yesterday the U.K. defense secretary expressed concern over the potential for covert Russian action to destabilize the Baltic states of Lithuania, Latvia, and Estonia.

The Chadian military has made its furthest foray into Nigeria in its fight against Boko Haram, the Times notes, while the Nigerian military has also pushed the group back, recapturing a Nigerian town it lost to the militant group a month ago. The Nigerian military claimed their assault killed over 300 Boko Haram militants. Reuters adds that Nigeria and Chad, along with Niger and Cameroon, are attempting to keep Boko Haram cornered in Nigeria before beginning a regional assault in late March. However, Boko Haram conducted an attack on a town in Niger last night, killing three, according to Reuters.

The Guardian brings us news that Google has launched an attack on an attempt by the US Department of Justice to expand its powers to search and seize digital data. According to the report, Google has argued that increasing the FBI’s powers would raise “monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide.”

Newly minted Secretary of Defense Ashton Carter will relieve Rear Adm. John Kirby of his position as spokesman for the Pentagon. Foreign Policy notes that while a replacement has not yet been named, Carter has made it clear he will return the position to a civilian.

ICYMI: Yesterday, on Lawfare

Ben conducted a point-by-point analysis of James Risen’s recent Twitter rant against Eric Holder.

Herb Lin discussed the implications of the government’s newly revealed and “truly breathtaking” ability to sneak surveillance and sabotage tools deep into computers. Herb also made two points on the debate over the use of encryption in communications.

Wells informed us that the Court of Military Commission Review had voided the guilty plea and sentencing of the Australian David Hicks.

After a federal judge enjoined President Obama’s Deferred Action for Parents of Americans immigration plan, Peter Margulies explored the district court’s opinion and how it will shape the debate over presidential power going forward.

Paul Rosenzweig examined the Executive Order issued by the White House on information sharing last week.

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.

 

Bits and Bytes

By
Thursday, February 19, 2015 at 12:41 PM

Are Submarines Becoming Obsolete?  Perhaps, in light of enhanced data processing capabilities.  “[T]he ability of submarines to hide through quieting alone will decrease as each successive decibel of noise reduction becomes more expensive and as new detection methods mature that rely on phenomena other than sounds emanating from a submarine. These techniques include lower frequency active sonar and non-acoustic methods that detect submarine wakes or (at short ranges) bounce laser or light-emitting diode (LED) light off a submarine hull. The physics behind most of these alternative techniques has been known for decades, but was not exploited because computer processors were too slow to run the detailed models needed to see small changes in the envir  onment caused by a quiet submarine. Today, “big data” processing enables advanced navies to run sophisticated oceanographic models in real time to exploit these detection techniques.”

Bridging the Air Gap.  Disconnecting from the network isn’t a complete defense.  “Consider yourself warned: other militaries appear to be developing an unsettling attack capability with game-changing consequences for America’s ability to project military might abroad. This platform does not take the form of a precision-guided munition or a next-generation fighter aircraft. It is also not a cyber-attack in the traditional sense, over Internet connections and terrestrial wires. This type of weapon goes by many names, none of them particularly sexy: Radio Frequency (RF) transmission of malware, electronic warfare-delivered computer network attack, or computer network and electronic operations (CNEO), among others. These weapons transmit a devastating cyber-attack not by Internet networks, but by wireless radio, attacking our critical flows of information, rather than physical assets, and threaten to undermine U.S. advantages in intelligence.”

Finally, welcome to The Middle East Ticker, another great addition to the Lawfare ecosystem.

Status of Various Executive Branch Agencies’ Guidelines Regarding U.S. Person Information

By
Thursday, February 19, 2015 at 12:26 PM

From the website of the Privacy and Civil Liberties Oversight Board (PCLOB): this helpful table, which was assembled by the Office of the Director of National Intelligence and released today. It describes the status of various agencies’ Attorney General-approved guidelines for collecting, retaining and disseminating U.S. person information pursuant to Executive Order 12,333.

As the table reflects, and the PCLOB and the DNI in 2013 agreed, some components’ guidelines are quite old and in need of updating, in light of technological advances.

The Middle East Ticker

By and
Thursday, February 19, 2015 at 10:45 AM

Editor’s note: Below, we offer our latest roundup of Lawfare-relevant items from the Middle East and North Africa. As we noted last week, this feature will appear occasionally and is modeled on Paul Rosenzweig’s  “Bits and Bytes” series regarding cyber matters. Our goal will be to keep readers informed of legally inflected stories they might have missed, from a region that never ceases to provide grist for this site. 

Family of activist loses appeal in Israeli Supreme Court: In 2003, American anti-occupation protester Rachel Corrie was struck and killed by an Israeli bulldozer while she tried to physically block the demolition of Palestinian homes above smuggling tunnels along the Gaza-Egyptian border. Seven years later, Corrie’s family filed a lawsuit in Israeli court, arguing that bulldozer operator should have seen Corrie and that Israeli defense ministry be held liable. The district court judge found that the bulldozer driver had not seen Corrie, and that Israel should not be held liable as the incident occurred in the course of “military activities.” Last week, a three-judge panel of the Supreme Court upheld that verdict.

Supreme Court votes to allow extremist Arab and Jewish candidates in Israeli elections: Less than a week after the Israeli elections committee voted to ban Baruch Marzel (for anti-Arab racism) and Hanin Zoabi (for support for Hamas) from standing in the upcoming Israeli elections, the decision has now been overturned. On Wednesday, an expanded panel of the Israeli Supreme Court voted 8-1 to reinstate both candidates. Both decisions were published without reasoning included in order to meet pre-election deadlines, but indicated that reasoning would follow in the coming days.

Israel’s top military lawyer defends “Hannibal protocol” at international conference on laws of war: Israel’s “Hannibal protocol,” according to which Israeli forces unleash heavy fire toward terror operatives escaping with an abducted soldier, came under withering criticism in the aftermath of last summer’s Gaza war. In early August, shortly after a ceasefire went into effect, Hamas militants captured Israeli soldier Harel Goldin and slipped into a tunnel. Israeli forces gave chase and unleashed heavy fire in the immediate vicinity, killing dozens of civilians before recovering Goldin’s body. The protocol was criticized both for endangering local civilians and the very soldier it attempts to rescue. This week, as the Israeli military hosted an international conference on the law of armed conflict, Military Advocate-General Maj. Gen. Danny Efroni insisted that the protocol conforms with international law, and is not intended to kill the captured soldier. Efroni did not address the specifics of the protocol’s usage this past August, but indicated that the investigation was ongoing and a decision about whether to open a criminal case would be released soon. The multi-day conference includes MAGs from the US, Canada, Britain, Germany, Greece, India, Italy, Australia, Romania, Norway, Switzerland, Czech Republic and NATO.

Hackers working primarily from Morocco, Gaza, and Egypt were behind a series of cyberattacks on Israeli government, military, and infrastructure systems, according to a new report published by the Trend Micro company in cooperation with the U.S. Air Force. The hackers reportedly used the tactic known as “Spear Phishing’” primarily against employees at Israeli companies—with the aim of collecting information for future cyberattacks. The report did not disclose which Israeli companies were targeted or how much information was stolen.

The UN Security Council on February 15 unanimously approved a resolution demanding that the Houthi rebels in Yemen “immediately and unconditionally” withdraw its forces from government institutions, “cease all armed hostilities against the people and the legitimate authorities of Yemen,” engage in “good faith” in the UN-led peace talks, release U.S.-backed President Abed Rabbo Mansour Hadi and his cabinet from house arrest, and “refrain from further unilateral actions that could undermine the political transition and the security of Yemen.” As we noted last week, the U.S. and several other countries closed their embassies in Yemen in response to the increasing instability inside the country.

UN Security Council also held an emergency session on Wednesday on the crisis in Libya. Egyptian president Abdel Fattah el-Sisi in a radio interview called for the creation of a UN-backed coalition to address the threat of Islamist extremists in Libya. Egypt’s foreign ministry has also said that Arab states will ask the UN to ease the embargo on weapon sales to Libya at the Wednesday session. Libya’s internationally-recognized government says that the embargo has significantly hampered its ability to fight the jihadists inside the country. This comes in the wake of the a video released by Islamic State-linked jihadists in Libya showing the beheading of Egyptian Coptic Christians. On Monday, the Egyptian military publicly confirmed that it had carried out air strikes inside Libya against the Islamic State-linked militants in retaliation for the beheadings, while the Tripoli-based government began deploying ground troops to fight the militants in Sirte, where they have gained a significant foothold. Western powers, including Italy, France, Spain, Germany, Britain, and the United States, issued a statement on Tuesday calling for a “political solution” to the conflict in Libya.

The case against Bahrain’s largest opposition party, the Al Wefaq, will be referred to the Public Prosecution—the state’s principal criminal enforcement office. According to the General Director of Anti-corruption and Economic and Electronic Security, “Al Wefaq is under suspicion of publicly inciting hatred against the government and disseminating false news in a way that could harm peace and national security” and of calling for “illegal rallies” and “incit[ing] hatred against the Ministry of Interior.” Bahrain–a close ally of the United States and the location of the U.S. Fifth Fleet–has been rocked by political unrest since 2011, when state security forces put down protests by Shi’ite Muslims calling for political reforms and better representation in the government. Shi’ites are the majority in Bahrain, which has been ruled by the Sunni Al Khilafa royal family since 1783. Al Wefaq is a Shi’ite organization.

Sunni lawmakers in Iraq announced on February 15 that they would boycott sessions of parliament in order to pressure the government of Prime Minister Haider al-Abadi to curb the growing influence of Shi’ite militias in Iraq. This announcement followed the abduction and murder of Sunni tribal leader Sheikh Qasim Sweidan al-Janabi, for which Sunni political leaders blame Shi’ite militias. Also on February 15, Human Rights Watch released a report claiming that “Abuses by militias allied with Iraqi security forces in Sunni areas have escalated in recent months. Residents have been forced from their homes, kidnapped, and in some cases summarily executed.” Many analysts believe that the fomenting of sectarianism by the Shi’ite government of former prime minister Nouri al-Maliki is partly to blame for the stunning rise of the Islamic State in Sunni-populated areas of Iraq in early 2014. U.S. policymakers are hoping that the new Abadi regime will follow through on its promises to curb sectarianism and rein in the militias, as political reconciliation between Iraq’s Sunnis and Shi’a is seen as critical to the future stability of Iraq and the fight against the Islamic State. However, as the New York Times reports, “Supporters of the militias say their participation has been critical in driving back the Sunni extremists in several parts of the country.”

James Risen’s Twitter Tirade Against Eric Holder

By
Wednesday, February 18, 2015 at 10:19 PM

Yesterday, speaking at the National Press Club, Attorney General Eric Holder was asked a question about the Obama administration’s prosecution of leakers, and he offered the following thoughts:

Question: The Obama administration has prosecuted eight alleged whistleblowers under the Espionage Act, more than all previous presidential administrations combined. What justifies this more aggressive posture towards leakers?

Holder: For the record here, the Justice Department prosecuted seven, okay? Eight is right, but seven by the Justice Department, and we inherited I think two of those.

What I would say is that there has been great concern by the members of the press about these prosecutions, and I understand that sensitivity. We had a series of meetings at the Justice Department over the course of the summer and we talked about changing the way in which the Justice Department would view these cases, the policies that underline how we would interact with members of the media, and I think we have come up with some new policies, new procedures that I think have been generally well received. What I’ve said is that we have to continue to look at these policies to make sure that they are kept up to date and make sure we are meeting the needs we have in the Justice Department while being sensitive to the real role, the important role that members of the press play.

I think that, yes, I guess that number is correct—more than other administrations—but that leaves us with a total of I guess five or six that this administration has brought over the course of six years. I don’t think, as you look at those cases individually, that there was anything inappropriate about the cases that were brought.

If you look at the last case involving Mr. Risen, the way in which that case was handled after the new policies were put in place is an example of how the Justice Department can proceed.

When you have people who are disclosing, for instance, the identities of people who work in our intelligence agencies, that’s the kind of case that I think we have to bring.

But I also think there is a question for you all, for members of the press, as we have to asked ourselves when it comes to national surveillance. Simply because we have the ability to do certain things, should we? I think members of the press have to ask that same question. Simply because you have the ability to, because of a leaker or a source of information that you have,  you have the ability to expose that to the public, should you? It is for you to decide. It is not for the government to decide. But it is for you to decide.

I’ll use an extreme example, perhaps unfair. In World War II, if a reporter had found out about the existence of the Manhattan Project, is that something that should have been disclosed? Now we are not in a time of war, I understand, and as I said, it is an extreme example, but I think there is a question that reporters should ask about whether or not the disclosure of the information has a negative impact on the national security of the nation. We have tried to be appropriately sensitive in bringing those cases that warranted prosecution. We have turned away, I mean turned away a substantially greater numbers of cases that were brought to us and where prosecution was sought.

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Two Historical Notes on Equation

By
Wednesday, February 18, 2015 at 5:25 PM

Yesterday’s New York Times carried a story about how the United States has found a way to “permanently embed surveillance and sabotage tools in [targeted] computers and networks.”

If the reporting on Equation is to be believed, the scope and sophistication of the enterprise is truly breathtaking. But the particular technique—hiding malware in the firmware of a computer or router—is not new. Attacks on firmware have been around for a long time, and old-timers remember the Chernobyl virus of 1998, which attacked the BIOS firmware chip of many computers and turned a few hundred thousand of them into big paperweights.

The reason that such attacks are possible is that modern firmware is usually deployed with capabilities for remote reprogramming, because vendors want to be able to add new features or to fix bugs. There’s a relatively easy fix for the problem—a hardware switch that, when flipped, would prevent reprogramming of the basic chip. But vendors have been reluctant to incur that expense in the absence of customer demand, and installing such a switch would make remote reprogramming (i.e., upgrades) much more inconvenient.

[Note added later – Steve Bellovin elaborates on the issues involved with even adding a switch. And he’s right. Nothing is ever simple, and I was wrong to imply that above.]

A second historical note on Equation may be a Washington Post op-ed written in February 2010 by a former director of the NSA, Mike McConnell, in which he wrote that “preemptive strategies might be required before. . . adversaries launch a devastating cyber-attack. We preempt such groups by degrading, interdicting and eliminating their leadership and capabilities to mount cyber-attacks. . .”

Think about what would be required to preempt an attack—specifically, about the necessary presence on adversary machines. Preemption means to attack before the adversary has struck, and to degrade and eliminate the adversary’s capabilities for doing so. The only way to achieve that goal—when hostile capabilities might be located on any one of an adversary’s systems—is to be present on as many adversary machines as possible in advance. And planting malware in non-obvious places would certainly be a part of maintaining a continuing presence.

Is Equation a part of such an effort? I have no inside knowledge, and readers thoughts are welcome.

Echoes From the Past on Encryption

By
Wednesday, February 18, 2015 at 3:44 PM

President Obama’s recent comments calling for a public debate on encryption are, as Susan Landau recently pointed out, some much-needed straight talk about the issue. In Susan’s words, “the debate is not about perfect security versus privacy and civil liberties; it is about our society’s willingness to accept risk.”

What’s striking about this debate is that it’s nearly 2 decades old. Here’s the words of Louis Freeh, then director of the FBI:

“The looming spectre of the widespread use of robust, virtually uncrackable encryption is one of the most difficult problems confronting law enforcement. . . . At stake are some of our most valuable and reliable investigative techniques, and the public safety of our citizens. . . . Uncrackable encryption will allow drug lords, spies, terrorists and even violent gangs to communicate about their crimes and their conspiracies with impunity.”

Director Freeh and others predicted disaster if the encryption problem was not solved, but their prediction was wrong. Even the horrific events of September 11, 2001 were the result of organizational failures in the U.S. government, and not because of encryption.

But are things different today? It’s certainly true that the number of ways to communicate and store information electronically has gone up, and we are all more dependent on technology for our daily activities. And for everyone, there’s more awareness of security issues. But many things are the same, such as the unchanging reality that encryption can be used to conceal crime and terrorist activities and to protect against them.

Another important but overlooked point is that criminals are not generally smarter than the rest of us. Most of us have forgotten our password and had to ask for help from our employer or our service provider. If I’m on my own to remember my password, I will make sure I have continuing access to it—which means I am likely to record it somewhere that I can still get it. If I can get it, so can law enforcement officials. Criminals forget their passwords too, and if they have not written them down somewhere, certain crimes will not happen because the would-be perpetrators will not be able to access the information needed to commit them. Remember also that copies of data often exist in places other than on personal devices, as people back up and synchronize their data across computers in several locations.

Apple and Google have promised to deliver encryption that only their customers will be able to unlock. But some customers will soon demand that these vendors be able to unlock the encryption when they have forgotten or lost their keys. Thus, subsequent versions of Apple and Google products may well offer key recovery capabilities to customers, and law enforcement authorities will have access to those capabilities as well. Louis Freeh made just such an argument in 1997 when he noted that “rational thinking corporations will . . . insist on using key recovery encryption for electronically stored information.” When (as I predict) Apple and Google start to offer key recovery services to their customers, law enforcement authorities will have yet another path to pursue.

Do new encryption capabilities pose problems for law enforcement? In some cases, they surely will, just as criminal investigations have surely been stymied by an inability to find evidence that was safely hidden in unknown safe deposit boxes. But our law enforcement agencies are dedicated, hardworking, and smart, and the evidence from the first round of the crypto wars suggests that they will be able to adapt a new technological environment without the difficulties of legislation interfering with the market-based decisions of the nation’s information technology companies.

CMCR Voids David Hicks’ Guilty Plea and Sentence

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Wednesday, February 18, 2015 at 2:23 PM

The Miami Herald (via the AP’s Ben Fox) has a piece on the Court of Military Commission Review’s (CMCR) ruling; Jess Bravin also has this report in the Wall Street Journal. 

The decision can be found here, and opens as follows:

SILLIMAN, DEPUTY CHIEF JUDGE:

Appellant urges us to set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc). Appellant asks that we find his waiver of his right to appellate review ineffective, and asserts that once we determine this case is properly before us, Al Bahlul dictates the outcome in his case.

Appellee counters that appellant’s waiver of his right to appeal is a jurisdictional bar to our review of his case, and in the alternative, the government is entitled to specific performance of his pretrial agreement. Appellee’s Response to Specified Issue 1-5. Should the Court reject these two contentions and review appellant’s case, the appellee concedes that the Court should decline to affirm the findings and sentence. Appellee’s Response to Specified Issue 5-6 (citing Al Bahlul, 767 F.3d at 29).

We agree with appellant and set aside the findings and sentence.

Update (4:10 p.m.): I tweaked the language above, so as to correct an earlier attribution error, to properly cite Ben Fox’s authorship of the AP piece, and to note Bravin’s reporting.

Further update: the Department of Defense’s spokesman said as follows; note that there won’t be any appeal by the United States:

On March 26, 2007, Mr. Hicks pled guilty to providing material support to terrorism based on voluntary admissions that he had trained at Al Qaeda’s Farouq camp and Tarnak Farm complex in Afghanistan, met with Usama Bin Laden, and joined Al Qaeda and Taliban forces preparing to fight United States and Northern Alliance forces near Kandahar in September of 2001.  He successfully appealed his conviction at the United States Court of Military Commission Review on grounds that the United States Court of Appeals for the District of Columbia Circuit had previously ruled that material support for terrorism was not a viable charge in military commissions for pre-2006 conduct.  The government does not intend to appeal.  Mr. Hicks was repatriated to Australia in 2007, shortly after pleading guilty.

Today’s Headlines and Commentary

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Wednesday, February 18, 2015 at 1:11 PM

Today, the White House hosts a summit to discuss the steps the United States can take towards “Countering Violent Extremism.” The Washington Post writes that “Obama is hoping to concentrate the world’s focus on the need to combat the underlying ideologies” that persuade individuals to engage in violent extremism. Already though, the summit has come under fire from some who say that, even in its name, the event fails to recognize the central problem of “Islamic extremism.”

Yesterday, Vice President Joseph Biden said that societies must offer immigrants an “affirmative alternative” to extremism, suggesting that military force alone will not solve the problem. In agreement, President Obama penned an op-ed in the Los Angeles Times, that among other things argues that local communities are the front lines in countering extremist ideologies.

In the Washington Post, Daniel Byman discredits five myths about violent extremism. Myth one? That we even understand radicalization. In a special edition of the Lawfare Foreign Policy Essay coinciding with the White House’s event on countering extremism, William McCants argued for narrow, targeted initiatives to fight extremist ideology.

In Syria, pro-government forces attempted to encircle and cut off supplies to rebel-held areas in the northern city of Aleppo, the Wall Street Journal reports. Reuters adds that the fighting there has killed at least 150 fighters from both sides. However, the U.N. envoy to Syria indicated that the government may be willing to suspend its attacks on Aleppo during a six-week trial ceasefire, according to the BBC. It remains unclear when that ceasefire would take effect and the special envoy said that because of past experiences, he was under “no illusions” it would materializes.

The State Department announced on Tuesday that the United States and Turkey had reached a deal “in principle” to allow more than 400 American forces to train Syrian rebels in Turkey. At the same time, just before beginning to train them, the United States has committed to giving Syrian rebels equipment for calling in airstrikes as well as trucks carrying mounted machine guns. The Wall Street Journal has more.

Another party to the Syrian civil war, ISIS, is continuing its stream of atrocities across the border in Iraq. The BBC reports that ISIS burned to death 45 people in al-Baghdadi, the town in western Iraq that ISIS captured parts of last week. And, it seems that ISIS may be making money off its victims. The Associated Press reveals the group’s operations may be financed in part by organ harvesting. Iraq’s ambassador to the United Nations claimed recently that bodies in mass graves have been found with surgical incisions and missing body parts. Moreover, the ambassador claimed that the group has executed several doctors in Mosul for refusing to participate.

Violence in Libya continues to escalate. The New York Times reports that the Islamist-backed faction, Libya Dawn, carried out its first airstrike in the conflicts. It remains unclear how the militants were able to restore the damaged Qaddafi-era Russian MIGs. Libya Dawn controls Tripoli and has successfully pushed the internationally recognized Libyan government up against the Egyptian border.

The Washington Post reveals that Egypt is now pushing back, suggesting the United Nations Security Council consider sending in international troops to support what it calls the “legitimate” government and to combat the rise of ISIS in Libya. This rise, the Wall Street Journal explains, is a product of the group’s efforts to co-opt local militias, rather than fight with them, as it has done in Syria.

The number of civilian deaths in Afghanistan last year, 3,699, was the highest on record. The Guardian reports that, as international forces have withdrawn and government forces have taken on a greater security role, fighting with insurgents has intensified and moved closer to populated areas. The withdrawal of international forces has also left some regions of Afghanistan beyond the control of the central government in Kabul. In the western province of Farah, Reuters reveals, Islamist militants and local governments alike prey on locals, many of whom have turned to illicitly growing the opium that funds the armed groups in the area.

Under a fierce assault by Russian-backed separatists, Ukrainian forces have withdrawn from Debaltseve, a key town in eastern Ukraine, Reuters reports. Rebel forces continued to attack the town this week despite a ceasefire agreement meant to take effect last Sunday, though they claim the agreement does not apply to the town. According to the BBC, the United States accused Russia of violating the ceasefire at the same time that it was sponsoring a U.N. resolution supporting the agreement. The Guardian adds that, while European leaders further criticized Russian actions undermining the ceasefire, the U.N. Security Council approved Russia’s resolution. Over at Foreign Policy, Stephen Walt argues that Russian President Vladimir Putin’s actions in Ukraine are modeled after Ronald Reagan’s support for the Contras in Nicaragua.

Militants from Boko Haram attacked two towns in northeastern Nigeria Tuesday, killing 37 people, the Wall Street Journal reports. The attacks come as the government tries to beat back advances by Boko Haram ahead of next month’s elections. But on Tuesday, Boko Haram released a video in which the group’s leader, Abubakar Shekau, promised further attacks to disrupt the upcoming elections. In the face of the growing regional threat presented by the group, the United States is beginning its annual joint military exercises with African militaries. The AP reveals that the training exercises will be centered in Chad but include stations in Nigeria, Niger, Cameroon, and Tunisia. All but Tunisia have recently been attacked by Boko Haram.

Poland has indicated that it will comply with a ruling by the European Court of Human Rights that the country played host to a secret CIA prison, Reuters reports. The decision mandates that Poland hold accountable the officials responsible for allowing the prison to operate and that it compensate two men held there.

Yesterday, the U.S. State Department announced a new policy allowing the United States to begin selling armed drones to allied countries. DefenseOne notes that the new policy could mean that the United States will begin exporting armed drones to vetted allies by the end of the year. The Post explains that the policy will give allies in the Middle East and elsewhere a chance to fill a growing desire for the vehicles while also allowing U.S. weapons manufacturers to seize more of the growing global drone market. Sales, however, will be subject to various restrictions on use; the drones are not to be used for illegal government surveillance or for illegal uses of force.

The Times describes how veterans of the wars in Iraq and Afghanistan now serving in Congress are shaping the debate over a new Authorization for Use of Military Force against ISIS.

In a New York courtroom Tuesday, the chief prosecutor described how defendant Abid Naseer plotted to carry out terrorist attacks in New York City, England, and Denmark. Naseer, who is representing himself at the trial, opened by claiming he had no extremist tendencies or “jihadist views.” The Wall Street Journal has more on the trial.

Parting Shot: Is the People’s Liberation Army “soft”? That seems to be the conclusion of a new RAND Corp report.

ICYMI: Yesterday, on Lawfare

Paul Rosenzweig offered his assessment of what a shutdown of the Department of Homeland Security might look like.

Bruce Schneier discussed the fraught state of computer security in light of recent revelations that a mysterious group (likely the NSA) can sneak spyware deep into computers.

In a special edition of the Foreign Policy Essay coinciding with the White House’s event on countering extremism, William McCants argued for narrow, targeted initiatives to fight extremist ideology.

Wells linked us to an article exploring the balance between legislative and executive power in foreign policy.

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.

 

Presidential Power and Enjoining the Obama Immigration Plan

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Wednesday, February 18, 2015 at 11:00 AM

Monday’s district court decision enjoining President Obama’s immigration plan, Deferred Action for Parents of Americans (DAPA), was a strong rebuke of presidential overreaching, although it was framed as a decision on the Administrative Procedure Act (APA). (Full disclosure: I was co-counsel on an amicus brief by the Cato Institute; see here for Cato’s take on the decision, and here for the take of co-counsel Josh Blackman).  While the APA issue may have been as far as the court wanted (or needed) to go, the presidential power aspects of the opinion will frame the debate about the legality of the President’s program.  Since that program is perhaps the biggest single unilateral move of the Obama presidency, the presidential power issue is well worth a look.

For those who have been in a cave for the last three months, DAPA (see my article here)  grants substantial immigration benefits, including work authorization and a 3-year reprieve from removal, to undocumented foreign nationals who have been here for at least 5 years and have U.S. citizen children.  Because Congress resisted creating what immigration opponents crudely call “anchor babies,” Congress made unlawful entrants with post-entry U.S. citizens run a daunting obstacle course.  Potential DAPA recipients have to wait until their children are 21 to even apply for legal status, and even then have to leave the U.S. and wait for the completion of a ten-year bar on their readmission.  Moreover, Congress has repeatedly said that work authorization is a powerful “magnet” for undocumented migrants.  Unilaterally granting work authorization to folks with a deliberately obstacle-ridden path to legal status seems to undercut Congress’s intent.

Judge Andrew Hanen, in his opinion enjoining DAPA, referred repeatedly to the unilateral nature of DAPA’s operation.  Judge Hanen explained DAPA by observing that “because Congress did not change the law” to opt for immigration reform, the President “changed [the law] unilaterally.”  The court also cited the argument by Texas and the other state plaintiffs that DAPA “constitutes a significant change in immigration law that was not implemented by Congress.”  In addition, the court cited the plaintiffs’ assertion that, “only Congress can create or change laws, and… the creation of the DAPA program violates the Take Care Clause of the Constitution and infringes upon any notion of separation of powers.”  In enjoining DAPA, Judge Hanen acknowledged that, “The Court is mindful of its constitutional role to ensure that the powers of each branch are checked and balanced.”

The court’s holding that DAPA had to undergo the APA’s notice and comment procedures – a recipe for delay that the administration desperately wished to avoid – also owed much to this skepticism about unilateral exercises of presidential power.  At several key junctures, the court interpreted the APA to require searching judicial review of presidential action.  First, the government had contended (see the Justice Department Office of Legal Counsel (OLC) opinion justifying DAPA), that DAPA was merely regulatory inaction, which is presumptively unreviewable under the 1985 Supreme Court case, Heckler v. Chaney.  The district court read inaction narrowly, as referring only to agencies setting enforcement priorities and making ad hoc judgments not to prosecute in individual cases.  In contrast, the district court said Monday, DAPA involved not merely tacit enforcement priorities, but “affirmative action:” the categorical grant of benefits such as work authorization and a reprieve from removal to a huge cohort of undocumented foreign nationals.  Under the government’s theory, the court warned, there was no limiting principle governing the award of such benefits, which conceivably could extend to the United States’ entire undocumented population.  Congress could not have intended to give the government such “unlimited” discretion, the court inferred.  A limiting principle was called for, as Jonathan Turley noted in his recent Senate Judiciary Committee testimony, and the government had failed to provide one. Read more »