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Bahlul: A Longer View

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Tuesday, July 15, 2014 at 6:46 AM

Steve says of yesterday’s Bahlul decision.

Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility of which is only exacerbated by today’s decision, which unanimously throws out material support and solicitation, and creates a huge headache with respect to conspiracy. In other words, for commissions the legal legitimacy of which was already in limbo, today’s decision only makes it worse insofar as it opens the door to additional years’ worth of litigation over the basic question of which offenses the commissions can try.

This strikes me as an unduly pessimistic account.  There was always going to be uncertainty and litigation after this ruling, as well as the possibility of Supreme Court review.  But far from exacerbating the fragility of commissions and weakening their legitimacy, this decision can be seen to accomplish the opposite.  The en banc Bahlul ruling is, I think, the first appellate court decision to uphold a military commission conviction on direct appeal.  The plain error analysis in the decision does leave open many questions about the availability of conspiracy charges pre-2006, but it does not appear to call into question the commissions’ recent narrowed emphasis on completed versus inchoate conspiracy charges.  More broadly, in contrast to the Supreme Court’s decision in Hamdan, which some read to signal that military commissions could not survive in the modern era, the D.C. Circuit is not here questioning the basic legitimacy of commissions, but rather is assuming their legitimacy (in fact and in tone) and is working out the invariably messy details of their proper scope.  We understandably focus on commissions as they apply to the 9/11 conspirators, and on current skirmishes about retroactivity.  But the jurisdiction of commissions as set forth in the Military Commissions Act extends far beyond the 9/11 conspirators.  If one takes Congress’s longer view that commissions are a narrow but important tool for the very long war against still-expanding terrorist threats – a tool that over time can complement other law enforcement and military tools without the burden of either retroactivity concerns or problematic interrogations – then Bahlul appears to be a step in the direction of judicial acceptance of the basic legitimacy of commissions.

Of course, only time, and the many intervening imponderables that time brings, will tell.

A Rough Overview of Today’s Ruling in Al-Bahlul

By and
Monday, July 14, 2014 at 7:45 PM

This morning, the full D.C. Circuit resolved military commission defendant Ali Hamza Ahmad Suliman al-Bahlul’s’s long-running appeal, in split fashion: by rejecting al Bahlul’s challenge to his conspiracy conviction, but also by vacating his convictions for material support and solicitation. Now it seems additional arguments regarding the conspiracy count will be considered further, by the same three-judge D.C. Circuit panel that took up al-Bahlul’s case initially; after panel review, the entire case will be returned to the Court of Military Commission Review, for evaluation of the effect, if any, of the vacaturs upon al-Bahlul’s life sentence.

The quite complex decision encompasses 150 pages and five opinions. They touch on al-Bahlul’s preservation of key arguments on appeal, the proper reading of the MCA, the application of the Constitution’s federal ex post facto clause, and other issues. With these in mind, we below offer a quick and dirty summary of each opinion in Al-Bahlul v. United States.  (The post assumes some familiarity with this case’s facts and procedural development; additional background can be found here.)

The Majority Opinion

Judge Henderson penned the opinion for the court. After reciting the facts, it makes an important, two-part procedural move: the opinion first concludes that, his attorneys’ claims to the contrary, al-Bahlul had not raised his principal arguments on appeal below, and thus forfeited them; and secondly, that as a consequence, the en banc court would review the case pursuant to the more exacting, “plain error” standard, and not according to the “de novo” standard that usually governs appellate courts’ evaluation of legal issues.

Part one turns on the factual record, which the majority parses in a fashion adverse to al-Bahlul: Read more »

Barton Gellman on the Washington Post’s NSA Story

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Monday, July 14, 2014 at 5:19 PM

Over at the Washington Post, reporter Barton Gellman has a lengthy article on his (and his coauthors’) reporting methods and ethical choices in their recent story on the large cache of electronic conversations that Edward Snowden gave them. The article is excellent—interesting and illuminating in a number of respects—and I recommend reading it in its entirety. For present purposes, however, I want to flag and reflect briefly only on Gellman’s response to a post of mine about the ethics of Snowden’s actions in giving him this material. It’s a short section of the article. It reads in full:

In framing our story, we faced a paradox: How do we report on harms to privacy without compounding them? Some readers were disturbed by our quotation of private correspondence — and even of our decision to read it.

Ben Wittes, writing on Lawfare, describes Snowden’s transfer of NSA content to me this way:

The contractor gives a cache of 160,000 such conversations — some of them very lengthy — to a third party. He does so apparently indiscriminately, and he leaves to nothing more than trust that the recipient will use the material responsibly. The third party then proceeds to publish passages . . . from the correspondence of a private individual, written to a boyfriend about their apparent affair — a private individual who has been accused of no wrongdoing. . . . If the contractor in question were anyone other than Edward Snowden, we would immediately recognize this disclosure for what it is: a massive civil liberties violation of precisely the type we put intelligence under the rule of law to try to prevent.

We recognize a dilemma here, but we do not think the answer is obvious. There was an important story to tell about surveillance and privacy. We did not believe we could tell it with broad allusions to unspecified personal content in the NSA’s intercepted files. We also believed we had to give weight to the privacy and national security implications of quoting them.

Wittes writes, in reference to the woman we quoted, that although we “delicately kept her name out of the story, her whole social world will know who she is.” That is speculation. The woman tells me otherwise.

We decided from the start that we would not quote from any conversation without the speaker’s consent. The Australian woman gave us that, provided that we left out her name and other details she specified. Afterward, she wrote to praise a “fantastic article” and said her employer and friends, other than those who knew the story already, had not connected it to her.

“Thanks very much,” she wrote. “I appreciate your efforts for anonymity.”

The one example aside, Wittes makes a broader attack on “Snowden — in the unfettered exercise of his unlimited discretion — choosing Gellman as the sole check and balance on the disclosure of personal data — Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts.”

It is true that, with a few exceptions such as libel, the government does not lay down standards of publication or compel me to follow them. That is a fairly basic feature of our constitutional system. The way I make use of that freedom, and the choices The Post made for this story, are fair game for anyone to judge. We are comfortable with our choices and the way we made them.

Gellman makes two points here, and they are of very different merit, to my mind anyway. On his first point—that the Australian woman was not outed by his story to her social world, my speculation notwithstanding—I have no reason to doubt Gellman and am pleased to be corrected. I am also pleased that the woman in question liked the article, which I also praised in general for discretion with respect to highly sensitive material. “[T]he Post here appears to have done a pretty thoughtful job of deciding what information to report and what information to withhold,” I wrote. “By and large, the Post deserves credit for taking the sensitivity of this information seriously.”

That said, I don’t think Gellman’s point here bears much on the ethics, legality, or propriety of what Snowden did in giving this material to him. Snowden, after all, did not know that Gellman would make responsible judgments about what information to loose upon the public. Nor did he know that the specific woman in question would be gratified, rather than mortified, by the decisions his chosen journalists would later make. How much to expose her to journalistic scrutiny simply wasn’t under the law his decision to make.

This brings me to Gellman’s second point, which is actually non-responsive to the argument I was making. Yes, it is a feature of our constitutional system that the government can’t generally regulate Gellman’s publication decisions. But I was in no way suggesting that it should. I was suggesting, rather, that the absence of such legal standards is one reason it is so unethical to steal large volumes of the most personal data the government can legally collect and dump them willy nilly in the hands of a journalist. It is emphatically not any part of our constitutional system that the government is disallowed from regulating Snowden’s handling of material—both to protect national security and to protect privacy–or his legal right to give material to Gellman.

I recommend Gellman’s article and I commend him and his colleagues for the steps they took to protect the individuals whose material they ended up in possession of. But as you read the article, ask yourself this: Isn’t the reason we have certain privacy laws precisely to prevent individuals in government from misusing this sort of material for their own political ends? And are we really going to forgive egregious violations of privacy and civil liberties just because Snowden committed them in the name of privacy and civil liberties? And why don’t any of the privacy and civil liberties groups seem to mind what Snowden did here?

Today’s Headlines and Commentary

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Monday, July 14, 2014 at 11:22 AM

According to the Wall Street Journal, the “convergence of security crises” from the Middle East to the South China Sea marks a “breadth of global instability” unseen since the late 1970s. And on that note, we plunge into weekend world developments:

The Associated Press reports that thousands of Palestinian residents of the northern Gaza Strip fled their homes on Sunday, in the wake of warnings from the Israeli military about plans to bomb the area. On Monday, and using a U.S.-supplied Patriot missile, Israel shot down a Hamas drone which was circling a city in southern Israel; the Washington Post has details.

Reuters reports that on Sunday, Russia threatened Ukraine with “irreversible consequences” after a Russian man was killed by a shell, the first fatality on Moscow’s side of the border.

On Sunday, American and Afghan officials confirmed that in the wake of Afghanistan’s election crisis, the sides have agreed to alter the government’s power structure. From the New York Times:

The candidate who is declared president after a complete vote audit in the coming weeks would then appoint either the loser, or that candidate’s nominee, to become a “chief executive” for the government, with powers to be agreed on later. Then, in the following two or three years, the Constitution would be amended to create a parliamentary democracy with a prime minister as head of government and a president as the head of state.

The Times summarizes a classified military assessment of Iraq’s security forces.  The latter document concludes that Sunni extremist informants and Iran-backed Shiite personnel have so deeply infiltrated Iraq’s operational units that Americans assigned to advise Baghdad’s forces could be at risk. And Vali Nasr has an op-ed in the Times calling for the United States to bring its diplomatic powers to bear on the crisis in Iraq. He writes,

Americans alone have the ability to bring together all the stakeholders to end the fighting. Once we take on that role, the cooperation of the three regional powers would be not only useful, but essential.

On Sunday, Secretary of State John Kerry landed in Vienna to try to rescue nuclear negotiations with Iran. The Times describes the talks as three-part, with the G6 struggling to strike a deal with Mohammad Javad Zarif, Iran’s foreign minister; Zarif attempting to come to terms with Ayatollah Khamenei and the generals of the Islamic Revolutionary Guards Corps; and President Obama struggling with members of Congress who are pushing for tougher sanctions and more pressure. The AP notes that Kerry is scheduled to hold in-depth discussions with Zarif today in an effort to assess “Iran’s willingness to make the critical choices it needs to make.”

On Sunday, Attorney General Eric Holder told ABC’s “This Week” that intelligence suggesting that bomb-makers from Yemen and terrorists from Syria are combining forces to create undetectable explosive devices is “more frightening than anything I think I’ve seen as attorney general.”

Calling Britain’s policy towards the Bashar al-Assad regime “stupid,” Syria’s deputy foreign minister, Faisal Mekdad, declared that the Brits should apologize for supporting rebel forces and work with al-Assad to combat terrorism. Here‘s the GuardianThe Guardian also says that Prime Minister David Cameron faces “acute embarrassment” for allowing a Russian state-owned arms firm that supplied weapons to the Syrian regime to exhibit fighter jets at Britain’s biggest air show this week.

Seven people have been killed and another 36 wounded as rival militias continue to battle for control of Libya’s main airport in Tripoli. Al Jazeera reports that in response to the violence, the U.N. has relocated some of its international staff outside of Libya.

In an exclusive seven-hour interview with the Guardian, to be published later this week, Edward Snowden criticized the new surveillance bill being pushed through the UK’s parliament. Teaser: “So what’s extraordinary about this law being passed in the UK is that it very closely mirrors the Protect America Act 2007 that was passed in the United States at the request of the National Security Agency, after the warrantless wire-tapping programme, which was unlawful and unconstitutional, was revealed.”

On Monday North Korea fired artillery shells into waters near the maritime border it shares with South Korea, the latest developments in what the AP describes as North Korea’s “unusually large” number of recent missile and rocket tests.

Bloomberg reports that China’s state-owned media is claiming that the iPhone’s location-tracking function could compromise Chinese state secrets.

The Lockheed Martin Corp F-35 fighter jet is America’s newest warplane. An entire fleet of those planes was grounded following a massive engine failure on one plane last month. Yesterday, Defense Undersecretary Frank Kendall explained that the failure appears to have been caused by “excessive” rubbing of fan blades, not a fundamental design flaw. Reuters reports.

Possibly coming soon to an airport near you: the Qylatron Entry Experience Solution, designed to reinvent the security check and already tested on World Cup fans in Curitiba, Brazil. Wired’s “Danger Room” explains:

Qylur isn’t keen on explaining how the technology works, but we know it has radiation and chemical sensors to pick out explosives. With a multi-view X-ray, it matches the shapes of objects it sees against a large, pre-programmed library of images to pick out prohibited items like guns and knives.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us onTwitter 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.

En Banc D.C. Circuit Opinion in Al-Bahlul

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Monday, July 14, 2014 at 10:29 AM

I am thumbing through the long-awaited and seemingly split ruling, which opens as follows:

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment in part and
dissenting filed by Circuit Judge ROGERS.

Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge BROWN.

Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: Ali Hamza Ahmad Suliman al Bahlul (Bahlul) served as a personal assistant to Osama bin Laden, produced propaganda videos for al Qaeda and assisted with preparations for the attacks of September 11, 2001 that killed thousands of Americans.  Three months after 9/11, Bahlul was captured in Pakistan and transferred to the United States Naval Base at Guantanamo Bay, Cuba. Military prosecutors charged him with three crimes: conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. A military commission convicted him of all three crimes and sentenced him to life imprisonment. The United States Court of Military Commission Review (CMCR) affirmed his conviction and sentence. Bahlul appeals. For the reasons that follow, we reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the original panel of this Court for it to dispose of several remaining issues. In addition, we vacate his material support and solicitation convictions.

The Drone Memo Makes It Clear: Khadr’s Conviction Lacks Legal Foundation

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Monday, July 14, 2014 at 9:15 AM

As readers of this blog will know, after the Second Circuit released a redacted copy of the OLC’s “drone memo,” those of us who represent Omar Khadr filed a motion with the U.S. Court of Military Commission Review (“CMCR”) arguing that it undermined the validity of his convictions.  In due course, the government filed its opposition to the motion, which somewhat predictably argues that the OLC’s analysis is not relevant to the case.  As we were about to file a reply, the CMCR denied the motion to vacate, albeit “without prejudice.”  Thus, the issue is not going away any time soon.

As its prosecution of Mr. Khadr was nearing trial in 2010, the Department of Defense and the CIA were contemplating a drone strike against Anwar al-Aulaki, an accused al-Qaeda operative located in Yemen.  In April 2010, President Obama placed al-Aulaki on a list of people whom the United States was authorized to kill because of terrorist activities. This contemplated action raised special legal concerns, not only because al-Aulaki was an American citizen.  CIA officials are not members of the armed forces entitled to combatant immunity, but were being asked to directly participate in the use of military force.

The worry, according to a New York Times report, was that CIA officers involved in the drone program might be exposed to war crimes liability for their actions, specifically because of Mr. Khadr’s prosecution for substantively identical conduct:

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition [of unprivileged belligerency] could be construed as a concession by the United States that C.I.A. drone operators were war criminals.

Read more »

The Week that Will Be

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Monday, July 14, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, July 14, 8:30 am – 12:45 pm: The U.S. Institute of Peace, in coordination with the U.S. Military Academy’s Center for the Study of Civil-Military Operations and Rand Arroyo Center, will be hosting an event entitled, Ending Wars to Build Peace: Conflict Termination Workshop. It will feature notable experts sharing their observations and concerns about the issue of war termination, its planning, transition, and challenges. Light breakfast and a lunch will be served.

Monday, July 14, 11:00 am: The CATO Institute hosts a panel discussion that asks When is Foreign Internal Defense (FID) a Smart Policy Tool for Washington? Does FID produce more effective and self-sufficient partners, at lower political and financial costs to Americans? Or does FID pull the United States into local fights, and risk outsourcing U.S. security interests? Panelists will discuss these questions and more.

Tuesday, July 15, 10:00 am: At the Carnegie Endowment for International Peace, Marine Corps Commandant General James Amos will engage in a broad-ranging conversation on the future of the U.S. Marine Corps following the draw-down in Afghanistan.

Tuesday, July 15, 2:00 pm: Also at Carnegie, Professor Fernando Reinares will give a talk on the Madrid 3/11 Bombings, Jihadist Networks in Spain, and the Evolution of Terrorism in Western Europe. 

Tuesday, July 15, 2:00 pm: The House Foreign Affairs Joint Subcommittee on Terrorism, Nonproliferation, and Trade will host a hearing on The Rise of ISIL: Iraq and Beyond. 

Tuesday, July 15, 2:30 pm: On the other side of the Hill, the Senate Judiciary Committee will hold a hearing entitled, Taking Down Botnets: Public and Private Efforts to Disrupt and Dismantle Cyber-criminal Networks. The hearing will be in the Dirksen Senate Office Building. 

Tuesday, July 15, 3:30 pm: The Woodrow Wilson Center will host an event on A New Agenda for a New Ukraine: Political, Security, and Social Dimensions. Kennan Kyiv Office Director, Yaroslav Pylynskyi, will talk about the first steps the new government needs to take to deliver on its promise of concrete change.

Tuesday, July 15, 4:30 pm: Dennis D. Staszak, former Deputy Unit Chief of the Foreign Counterintelligence and Counter Terrorism Training Unit in the FBI, will give a lecture at the Institute of World Politics on How to Conduct a Foreign Counterintelligence Investigation. 

Wednesday, July 16, 9:30 am: At the American Enterprise Institute, Elliott Abrams of the Council on Foreign Relations and Ghaith Al Omari of the American Task Force on Palestine will discuss the ongoing conflict between Israel and Palestine in an event entitled, Operation Protective Edge: The Spreading Conflagration in the Middle East. 

Wednesday, July 16, 10:00 am: With the deadline on the P5+1 nuclear talks with Iran quickly approaching, the House Foreign Affairs Committee will hold a hearing on Iran’s Destabilizing Role in the Middle East. Scott Modell, Ray Takeyh, and Natan B. Sachs are scheduled to testify.

Wednesday, July 16, 10:30 am: The Carnegie Endowment for International Peace will hold an event on The Resurgence of the Taliban. Hassan Abbas, author of The Taliban Revival: Violence and Extremism on the Pakistan-Afghanistan Frontier, will examine the Taliban not only survived but adapted to regain power and political advantage.

Wednesday, July 16, 12:00 pm: The Center for Strategic and Budgetary Assessments (CSBA) will host a congressional luncheon at the Rayburn House Office Building on Sustaining Strong Defense in the Era of Austere Budgets. Representative Randy Forbes, Chairman of the House Armed Services Subcommittee on Seapower and Projection Forces, and Todd Harrison, Senior Fellow and Director of Defense Budget Studies at the CSBA, will answer questions.

Wednesday, July 16, 12:30 pm: The New America Foundation will host a panel discussion on Israel, Gaza, and the Potential for a Diplomatic Resolution to the Violence.

Wednesday, July 16, 2:00 pm: The Trouble with Non-State Armed Groups: What do do with Boko Haram? That is the question slated for a round table discussion with Virginia Comolli at the International Institute for Strategic Studies on Wednesday. Drawing from field and desk research on Nigeria and using the current crisis in the northeast region of that country as a key case study, Comolli will address the complexity of dealing with multi-faceted threats both militarily and politically.

Thursday, July 17, 12:00 pm: As the P5+1 approaches the July 20 deadline for a final Iran nuclear deal, what standards should Congress seek in an acceptable agreement? And what are the stakes for the United States and its allies? The Bipartisan Policy Center, the Foreign Policy Initiative, and the Foundation for Defense of Democracies will attempt to answer these questions and more with a panel discussion in the Hart Senate Office Building entitled, High Standards and High Stakes: Defining Terms of an Acceptable Iran Nuclear Deal. 

Friday, July 18 at 10 am: The United States Institute of Peace will host a public discussion on The Legacy of President Hamid Karzai.

 

Employment Announcements (More details on the Job Board)

 Deputy Legal Advisor

ORGANIZATION: International Committee of the Red Cross (ICRC)

DEPARTMENT: International Humanitarian Law (IHL)

LOCATION: Washington, DC

DIRECT SUPERVISOR: Legal Advisor

APPLICATION DEADLINE: August 1, 2014

FUNCTION DESCRIPTION:

The Deputy Legal Advisor provides legal and policy advice to the ICRC Regional Delegation for the US and Canada in Washington DC, and contributes to the implementation of its objectives, including by supporting its humanitarian operations and by advancing the organization’s positions in the field of IHL.

Minimum required knowledge, experience and personal skills:

  • J.D. from accredited US law school
  • Expertise in IHL (in particular detention, conduct of hostilities and weapons regulation)
  • At least 5 years post-J.D. experience
  • Legal experience within the US defense or national security sector
  • Good knowledge of International Human Rights Law
  • Commitment to neutral and independent humanitarian action
  • Excellent representation skills and at ease in negotiations
  • Team player with an enthusiasm for working in a multicultural environment
  • French and/or Spanish as a working language desirable
  • US person (US National or Green card holder)

JOB DESCRIPTION:

  • provides legal advice to all the Departments of the Regional Delegation on matters of domestic law, IHL and other relevant international standards (in particular International Human Rights Law)
  • provides legal support to ICRC detention visits and other field operations
  • monitors, analyses and comments on developments of US law and policy pertaining to national security and other relevant areas of humanitarian concern
  • contributes to the drafting of the reporting of the ICRC and conveys its institutional positions in bilateral meetings with Government representatives
  • provides legal input to the public communication of the Regional Delegation; drafts and edits articles on IHL issues
  • teaches IHL to various audiences and represents the ICRC in conferences and public events
  • maintains and expands the network of contacts of the Regional delegation in the legal community, notably in the executive (including the military)and legislative branches, civil society and academia
  • some domestic and international travel required

Further information about this post can be obtained by contacting Gary Brown ([email protected]) or Andrea Harrison ([email protected])

If you are interested in applying for this post and meet the requirements set out above, please send your application (CV and letter) to [email protected]by August 1, 2014.

 

Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence

JOB ANNOUNCEMENT NUMBER: PE886

SALARY RANGE: $75,621 – 116,901 / Per Year
OPEN PERIOD: July 2, 2014 to July 30, 2014
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI Polygraph
SUPERVISORY STATUS: No

JOB SUMMARY:

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

MAJOR DUTIES AND RESPONSIBILITIES:

  • Provide preliminary legal advice to the Office of the Director of National Intelligence leadership on areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.
  • Provide recommendations to senior attorneys to support the development, review, and preparation of United States Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.
  • Counsel clients, including ODNI leaders, on legal issues and provide effective guidance on possible courses of action; prepare documents on legal issues for a variety or internal and external recipients.
  • Conduct research and analysis on complex or sensitive legal issues as well as on laws, regulations, and policies that have an impact on ODNI and IC interests and brief senior attorneys on issues and findings.
  • Provide initial reviews of planned ODNI and IC activities for compliance with the US Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief senior attorneys on potential legal and policy issues, and recommend solutions to address legal problems having potential impact on the ODNI’s or the IC missions or activities.
  • Perform initial analyses of statutes, bills, reports, and Congressional materials, as well as proposed Executive Branch orders, directives, regulations, and policies, to determine their effect on the ODNI and the IC; provide advice and counsel to senior attorneys on legislative proposals, Congressional testimony, and related documents.

Zeichner Risk Analytics

Zeichner Risk Analytics seek a full time employee with a security clearance to help consult and provide research on a range of security and legal/policy issues. There is also a wide range of support needed to help manage and maintain administrative activities, which includes updating company websites and managing the Twitter accounts and other social media. Work may also include engaging in the final steps of the publication and subsequent marketing for the text and e-book Cybersecurity Foundations: An Interdisciplinary Introduction. Some travel may be required.  Send resume to Alexis – [email protected]

 

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

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

Interested applicants should submit a cover letter and resume to: 

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

CC: [email protected]

 

Intern, National War College

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

 

 

Holder on “Something That Gives Us Really Extreme, Extreme Concern”

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Sunday, July 13, 2014 at 2:01 PM

President Obama, in his NDU speech last year, stated: “[T]his war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.”

Attorney General Holder, in a conversation today (scroll down) with Pierre Thomas on ABC’s “This Week” about the threat from Americans and Europeans in Syria, stated:

HOLDER: “In some ways, it’s more frightening than anything I think I’ve seen as attorney general.  9/11 was something that kind of came out of the blue.  This is a situation that we can see developing and the potential that I see coming out, the negative potential I see coming out of the facts in Syria and Iraq now are quite concerning.”

THOMAS: “Among the concerns: intelligence that bomb makers from Yemen — those responsible for the 2009 underwear bomb plot — are now in Syria joining forces with the thousands of foreign fighters there.”

HOLDER: “[I]t’s a deadly combination, where you have people who have the technical know-how along with the people who have this kind of fervor to give their lives in support of a cause that is directed at the United States and directed at its allies. And it’s something that gives us really extreme, extreme concern.”

This seems like a politically fraught time for the Obama administration.  On the one hand, the President and others in the administration are talking about “the war” winding down and the appropriateness of switching from reliance on military authorities to the law enforcement and intelligence authorities that prevailed – and failed – in the pre-9/11 period.  On the other hand, (i) the President is under growing scrutiny and criticism for seeming inaction in the face of the swelling terrorist threat in Syria and Iraq, and (ii) his Attorney General is contrasting 9/11, which he says “kind of came out of the blue,” with the terrorist threat emanating from the Middle East “that we can see developing,” and that causes “really extreme, extreme concern.”

The Foreign Policy Essay: Your Enemy Has a Name—How the “Al Qaeda” Label is Leading U.S Policy Astray

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Sunday, July 13, 2014 at 10:00 AM

Editor’s Note: The United States has been at war since 9/11, but the nature of the enemy remains unclear. Some would say the war is against terrorists of all stripes, while others focus more narrowly on Al Qaeda, the group that perpetrated the 9/11 attacks. Yet even this narrow focus masks definitional confusion, for the name “Al Qaeda” is used to describe not only the band of followers who surround Ayman al-Zawahiri, but also a range of like-minded groups and individuals around the world.  Jeremy Shapiro, my colleague at Brookings who previously worked at the U.S. Department of State, laments this fuzzy use of the term Al Qaeda, arguing that it creates analytic confusion and self-defeatingand perhaps even dangerouspolicies.

***

You cannot be victorious if you cannot properly name your enemy. Before 9/11, the name “Al Qaeda” belonged to a group that we could, at least potentially, see, touch, and kill. But today the name is used to describe so much more—and so much less—than that. It is an amorphous plan to disrupt civilization, a vast network of groups united by little more than a harsh interpretation of Islam and a tendency toward insurgency, and the label for all that America fears about the Islamic world. It lurks in the jungles of Africa, the civil wars of the Middle East, and the Internet cafes of Europe, exploiting any form of disorder or weakness anywhere to further its plan to attack America and its allies.

The United States has been here before. Perhaps the greatest mistake of the Cold War was the failure to properly identify the enemy. As with the war on terror, that war began against an obvious enemy: the Soviet Union, an identifiable nation-state with an army and known leaders. But that enemy also had an ideology. The Soviets claimed a universal appeal for communism and explicitly made the spread of that ideology a weapon in their struggle against the United States. And so, communism and its many socialist variants became the enemy as well. But just because the Soviets wished it so did not mean that every manifestation of communism everywhere was an ally of the Soviet Union or an enemy of the United States.

Shapiro photo with borderIn retrospect, the U.S. tendency to see every shade of pink as deep red often blinded it to the divisions within communism, created unnecessary enemies, and wasted vast treasure and many lives. Communists fought among themselves as much if not more than they fought against Western capitalism. Nonetheless, fear of communism often became a self-fulfilling prophesy in places like Cuba and Vietnam. Unnecessary wars against misidentified enemies throughout the Third World resulted in hundreds of thousands of deaths, hurt the image of the United States, and sapped American strength.

Unfortunately, that historical experience did not prevent the idea of a global Al Qaeda from taking root. Even as the original Al Qaeda “core” has been weakened by American attacks, the multitude of disorders across the Islamic world have spawned literally thousands of groups that share elements of the ideology espoused by the Al Qaeda core. In the words of President Obama, the main fight is now against “Al Qaeda affiliates,” implying that Al Qaeda has evolved into a franchise system, akin to the communist Internationale organized by the Soviets.

Clearly, part of the reason why this understanding of Al Qaeda has taken hold is that a few of these supposedly affiliated groups have found it convenient—for reasons of branding, fundraising, and recruiting—to take on the Al Qaeda name. For example, the Algerian terrorist group once known as the “Salafist Group for Preaching and Combat” (GSPC) changed its name to “Al Qaeda in the Islamic Maghreb” (AQIM) when it was on the verge of annihilation by the Algerian state, thus enabling the group to branch out beyond the inhospitable environment of Algeria and revive its fortunes. Read more »

The Lawfare Podcast, Episode #83: Bruce Riedel on the Lessons From Afghanistan

By
Saturday, July 12, 2014 at 1:55 PM

As the election crisis in Afghanistan comes to a head, all eyes—or some of them, anyway—are once again on the future of Afghan democracy. But the United States’s history in the region extends back much further than its nation-building efforts there since September 2001. On Tuesday, at a Brookings Institution launch event for his newest book entitled, “What We Won: America’s Secret War in Afghanistan, 1979-1989,” Bruce Riedel, Senior Fellow and Director of the Intelligence Project at Brookings, discussed lessons the United States can learn from its successful efforts in the 1970s and 1980s in Afghanistan. In his talk, Riedel discusses why the American intelligence operation in Afghanistan in the 1980s was so successful, and what, if any lessons, the United States can apply to its ongoing operations in the country. Riedel also explored the complex personalities and individuals who shaped the war, and explained how their influence still affects the region today. Brookings Institution President Strobe Talbott provided introductory remarks and moderated the conversation.

The full event video is below:

The Week That Was: All of Lawfare in One Post

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Saturday, July 12, 2014 at 10:00 AM

Two articles based on the cache of documents leaked by former NSA contractor Edward Snowden were published this week. On Sunday, Barton Gellman, Julie Tate, and Ashkan Soltani of the Washington Post revealed that “ordinary Internet users . . . far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency.” Ben posted his thoughts on the story and noted that in sharing “many tens of thousands of personal communications” with the Post, Snowden himself is guilty of “a huge civil liberties violation.” Ben’s comments invited a wave of criticism, but he stood by what he said and later responded to a non-sequitur challenge from the Atlantic’s Conor Friedersdorf.

On Wednesday, Glenn Greenwald and Murtaza Hussain published an article on five Muslim-Americans who have allegedly been targeted for surveillance by the NSA and FBI. Ben noted the article, pointing out that it lacks “any sense of what was actually in the relevant FISA applications.” Wells posted the joint response of the Department of Justice and Office of the Director of National Intelligence to Greenwald’s piece. They noted that no American is targeted “solely because they disagree with public policies or criticize the government.” However, a number of civil liberties and human rights organizations are unsatisfied. Wells flagged a letter they sent to President Obama asking for a fuller explanation of the government’s actions.

Stewart Baker gave us the latest episode of the Steptoe Cyberlaw Podcast. He noted that “it was a surprisingly newsy week for NSA,” thanks to the stories from Greenwald and the Post. David Heyman, former Assistant Secretary for Policy at the U.S. Department of Homeland Security, served as this week’s guest speaker.

Cody Poplin provided this week’s Lawfare Podcast, featuring a discussion with Brad Smith, Executive Vice President and General Counsel of Microsoft. Smith considered the future of technological innovation and the need to balance national security and civil liberties interests.

I highlighted three FISC telephone metadata orders that the Justice Department released in redacted form on Tuesday.

Ben shared news that the Senate Judiciary Committee will soon review a bill with a number of proposed amendments to the Freedom of Information Act.

In an installment of Bits and Bytes, Paul relayed news that Chinese hackers have begun targeting U.S. think tanks and that the Secret Service arrested a Russian man known as “one of the world’s most prolific traffickers of stolen financial information.”

Bobby noted Attorney General Eric Holder’s speech in Norway regarding legal strategies for combatting the threat posed by Syrian foreign fighters.

This week’s Foreign Policy Essay considered the recently declared “Islamic State.” Author Thomas Hegghammer, director of terrorism research at the Norwegian Defence Research Establishment (FFI), argued that “business in the jihadi world will largely continue as usual.”

In news on terrorism trials: Jodie Liu summarized this week’s status hearing in the criminal case against Benghazi suspect Ahmed Abu Khattala and noted that the court will next convene on September 9.

Wells informed us that, as a consequence of scheduling conflicts, Army Col. James Pohl will no longer preside over al-Nashiri’s military commission. Air Force Col. Vance Spath will serve in his stead.

Ben highlighted an interesting new argument being made before the D.C. Circuit Court against a GTMO prisoner’s continued detention involving a challenge to the congressional transfer restrictions.

Wells flagged the government’s response opposing Omar Khadr’s motion to overturn his guilty plea. The prosecution argues, “There has been no change in the underlying basis for the Court’s March 7, 3014 Order holding this case in abeyance.”

Following the Supreme Court’s Burwell v. Hobby Lobby ruling, lawyers for two Guantanamo detainees have filed for temporary restraining orders that would allow their clients to engage in community prayer during Ramadan. Wells brought us the motion, which argues that the Religious Freedom Restoration Act safeguards the detainees’ rights.

And that was the week that was.

New FOIA Bill

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Friday, July 11, 2014 at 3:13 PM

I’m hearing that the Senate Judiciary Committee is getting ready to consider S.2520, which contains a series of amendments to the Freedom of Information Act. I haven’t studied the bill yet, but it appears to limit existing FOIA exemptions in several new ways. We’ll report more when we figure out exactly what it would do.

Today’s Headlines and Commentary

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Friday, July 11, 2014 at 1:35 PM

We begin with Israel. The Associated Press reports that its military has “dramatically escalated its aerial assault targeting hundreds of Hamas sites in the Gaza Strip.” Per Al Jazeera, the death toll now stands at 102. According to Politico, during a call with Israeli President Benjamin Netanyahu, President Obama offered “to negotiate a cease-fire.” Meanwhile, Real Clear Defense argues that “Israel must destroy Hamas.”

The New York Times reports on new U.S. sanctions against a Lebanese company charged with aiding Hezbollah. Apparently, “the firm was used to buy equipment for surveillance drones flown over Syria and Israel.”

Speaking of Syria, in a Washington Post op-ed, Fareed Zakaria criticizes President Obama’s decision to request $500 million to train and arm Syrian rebels.

Today, Secretary of State John Kerry met with opposing candidates Ashraf Ghani and Abdullah Abdullah, in a bid to help broker a deal over Afghanistan’s contested presidential election. The Post shares details of Secretary Kerry’s visit.

Shortly before Kerry’s arrival, Afghan President Hamid Karzai had announced his support for a U.N. plan to audit 3.5 million ballots for election fraud. According to the Guardian, a government spokesperson stated, “From the beginning, the president’s position was that this should be a purely Afghan process, but we are not in an ideal situation.” This Times  report suggests that the U.N. investigation will not work.

Yesterday, Kurdish leaders said they would no longer participate in Iraq’s national government after Prime Minister Nouri al-Maliki accused Kurds of hosting Sunni rebels in Erbil. Al Jazeera describes ministries that will be affected by the move.

The AP shares news that early this morning, Kurdish security forces took control of two major oil fields outside Kirkuk.

A recent Gallup poll indicates that 72 percent of Muslim Americans approve of President Obama. Politico has more.

Officials from Iran and the P5+1 group continue their effort to conclude a long-term nuclear agreement. Secretary Kerry and high-level diplomats from Great Britain, France, and Germany are tentatively set to arrive in Vienna this weekend to join the negotiators. The AP has the story. From Reuters, we learn that on Wednesday, a coalition of Republican and Democratic House lawmakers sent a letter to President Obama, requesting that Congress play a role in the talks with Iran. 344 of the House’s 435 members signed the letter.

Yesterday, we shared news that Chinese hackers had gained access to sensitive databases belonging to the U.S. Office of Personnel Management. The Post indicates that it is still unclear whether the Chinese government was behind the intrusion.

Some clarity on that score would be nice, of course, if only to help resolution of some larger issues: during their so-called “Strategic and Economic Dialogue,” U.S. and Chinese officials appeared to disagree strongly about—surprise—cyber-espionage and theft. The Post has the story.

Foreign Policy considers how China’s neighbors are responding to its actions.

The Miami Herald  reports that Army Col. James Pohl, the judge in the Guantanamo case of U.S. v. Al Nashiri, has removed himself due to scheduling conflicts in proceedings related to the September 11, 2001 terrorist attacks. Air Force Col. Vance H. Spath will replace Col. Pohl. Wells also shares the news here.

Following Germany’s request that the top American spy in Berlin leave the country, Secretary Kerry will travel this weekend to meet with German Foreign Minister Frank-Walter Steinmeier. The AP has more. Apropos, the Daily Beast examines the history of American intelligence operations in Germany.

More on unwelcome U.S. officials: after expelling U.S. Assistant Secretary of State for Democracy Human Rights and Labor Tom Malinowski, for sitting down with members of Al-Wefaq, an opposition group, Bahrain now has brought charges against opposition leaders who participated in the meeting. Reuters fills us in. The Times editorial board considers—pans—Bahrain’s handling of the episode.

The Hill reports that during his Senate confirmation hearing, President Obama’s nominee to head the U.S. Special Operations Command, Army Lt. Gen. Joseph Votel, said U.S. special forces have been “operationally active for a long time” and, therefore, could be “fraying.” However, he noted that U.S. troops “remain very effective” nevertheless.

Following accusations by Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA) that CIA officers spied on her committee’s staffers, the Department of Justice announced yesterday that there is insufficient evidence to warrant a criminal investigation. Politico has more.

Yesterday brought news that former NSA contractor Edward Snowden had applied to extend his temporary asylum in Russia. Today, the Wall Street Journal reports that the extension is likely to be granted.

Meanwhile, President Obama has chosen career foreign service officer John Tefft to serve as the next U.S. ambassador to Russia. The AP has more on the nomination to a quite difficult post.

After the Ukrainian military took hold of the rebel-controlled town of Siversk in the eastern part of the country, separatist leaders came together for a joint public appearance in the regional capital of Donetsk—which they said they would defend vigorously. The Wall Street Journal reports.

Recently released interviews of nine military leaders by the House Armed Services and Oversight and Government Reform committees show wide agreement within the military over how the U.S. reacted to attacks on the U.S. diplomatic compound in Benghazi.  The AP has coverage.

On Wednesday, a Taliban “sympathizer” posted a photo of a smiling Sgt. Bowe Bergdahl standing with one of his Taliban captors. A Defense Department spokesperson called the picture “100 percent propaganda.” USA Today has the story.

British Prime Minister David Cameron has introduced legislation that would require communications companies to maintain records of customers’ calls and Internet activity. The Post has more.

In a lawsuit filed yesterday in San Francisco, civil liberties groups began a challenge to the U.S. Suspicious Activities Reporting Program. You’ll find more detail in the Post.

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A New Judge In Al-Nashiri’s Military Commission

By
Friday, July 11, 2014 at 9:04 AM

According to a detailing memorandum issued yesterday (and this piece in the Miami Herald) the new military judge for Al-Nashiri’s military commission will be Air Force Col. Vance Spath.

The prior military judge in Al-Nashiri’s case, Army Col. James Pohl, opted to step aside and to assign Spath.  As explained in the memorandum, Pohl did so in order to avoid scheduling conflicts and to ensure continuity in the 9/11 case, over which Pohl also presides.

Interesting New Habeas Argument in the D.C. Circuit

By
Friday, July 11, 2014 at 7:18 AM

This case has been kicking around the district court for a while, but has now made it to the D.C. Circuit. Ahmed Adnan Ajam is basically arguing that the executive branch wants to release him and the transfer restrictions on its doing so represent an unconstitutional infringement of presidential power. He lost in the district court on standing grounds and will, I think, face significant barriers at the D.C. Circuit too. But I bet there are a lot of people in the executive branch who would secretly love to lose this case. His brief opens:

In 2005, Appellant Ahmed Adnan Ajam, a prisoner at the Guantanamo Bay military prison, petitioned for a writ of habeas corpus. He alleged that because he is not an enemy belligerent, his imprisonment is illegal. The President contended that Ajam is properly detainable under the laws of war. This dispute became moot when the President determined, in the exercise of his discretion as Commander-in-Chief, that any military necessity for Ajam’s continued detention had passed, and that Ajam, who poses no threat to U.S. security, should be transferred to a third nation. [REDACTED]

In 2013, Ajam amended his habeas writ, adding a prayer for declaratory relief, which seeks a declaration that NDAA provisions imposing upon the President prerequisites to Ajam’s release or transfer from Guantanamo are unconstitutional. Because Ajam’s detention was a use of military force against a discrete target, suspension of that force against that particular target is a power fundamental to the Constitutional authority of the Commander-in-Chief, and cannot, under Article II of the Constitution, be obstructed by Congress. The 2014 NDAA (and each prior iteration) has unconstitutionally obstructed that power. The same restrictions also constitute an unconstitutional bill of attainder. By impeding Ajam’s release process, [REDACTED] The Court should direct the district court to issue a declaration that the law is void as unconstitutional.

 

Today’s Headlines and Commentary

By and
Thursday, July 10, 2014 at 12:10 PM

The conflict between Israelis and Palestinians continues. Members of the U.N. Security Council meet today to discuss the ongoing situation. Reuters has details.

Yesterday, Hamas began launching newer, more capable missiles that reached deep into northern Israel. The Washington Post reports that “it was the first time that rockets from the crowded seaside enclave had flown that far.”

In response, Israeli Prime Minister Benjamin Netanyahu declared that Palestinian fighters will “pay a heavy price.” BBC News has details on his reaction.  According to the Post, Israel is using drones to target specific militants. The New York Times notes that overnight Israel attacked 320 Hamas sites, bringing the total to 750 targets hit since Tuesday. Indeed, Reuters reports that at least 74 Palestinians have died as a result of the violence. However, most of them appear to be civilians. The Guardian shares more.

The Times notes that the Israeli government is taking some international criticism for its assault on the Gaza Strip.

Haaretz shares live updates of the ongoing situation.

The Post editorial board argues, “What’s needed is not another diplomatic blitz but a more patient, incremental, and sustainable effort to restore trust between Israelis and Palestinians.”

Violence also continues in Iraq. The Hill reports that Secretary of Defense Chuck Hagel said Wednesday the Islamic State in Iraq and Syria (ISIS) poses an “imminent” threat to the United States and to “every stabilized country on Earth.” Along similar lines, The Wall Street Journal informs us that Saudi Arabia has stopped advising Sunni tribes to undermine Iraq’s central government; now, the Saudis privately have encouraged allied tribes in Iraq to turn against the Sunni extremist insurgency.

Yet, ethnic and sectarian tensions continue to rise, and on Wednesday Prime Minister Nouri al-Maliki accused Kurds of harboring Sunni militants. Al-Maliki provided no evidence to support his statement; the Associated Press tells us that the unsubstantiated claim is likely to worsen the Iraqi government’s relationships with the Kurds, who have been fighting insurgents over the last month. Meanwhile, the Associated Press reports that 50 bodies were found in a predominantly Shiite village. The dead were all men between the ages of 25 and 40, with most having suffered bullet wounds to the head or the chest. Alissa Rubin in the Times has more on the new fractured reality in Iraq, while in Politico, Douglas A. Ollivant tells us why Iraq is more stable than one might think. The Daily Beast explores the theological debate behind ISIS’ newly proclaimed caliphate.

Yesterday we learned that Iraq had lost control of nuclear material to armed terrorist groups. Today,  the International Atomic Energy Agency said it believed that the material was “low grade” and did not pose a significant security risk. Reuters has more.

According to CNN, the Pentagon is considering how to target the leader of ISIS, Abu Bakr al-Baghdidi, in a drone strike. Pentagon Press Secretary Rear Adm. John Kirby has suggested that the U.S. military is currently flying around 50 reconnaissance missions a day over Iraq.

A U.S. drone strike killed six in northwest Pakistan, officials said, as the Pakistani military announced that it has taken control of 80 percent of Miranshah, a key city in North Waziristan. Reuters has more on the assault. The Washington Post describes the broader impact of the campaign, reporting that, since its inception, some 787,000 residents have left the region, according to estimates by the United Nations. The Pakistani paper Dawn published an op-ed yesterday that asks, “Where is the cost-benefit analysis?” of U.S. drone policy in the region. Apropos of that debate, Medea Benjamin of Codepink has an op-ed in Time on how to fix the drone PR problem.

Meanwhile, France hopes to limit the number of Western jihadists joining the fight in Syria. The Times reports on proposed legislation which would “block suspected proponents of Islamic terrorism from leaving France.”

Yesterday, the U.S. Treasury Department imposed new sanctions on companies aiding the Syrian government. FOX News has details.

The AP shares news that Italian-Swedish diplomat Staffan de Mistura has been selected to be the next U.N. envoy to Syria.

According to Reuters, Secretary of State John Kerry will arrive in Afghanistan Friday, in an attempt to help resolve a continuing dispute over the country’s presidential election results. Meanwhile, the Post considers some troubling implications of a recently released Afghan civilian casualty report.

From the Wall Street Journal:   questions about the NSA’s policies towards tolerance and diversity followed yesterday’s publication, in an Intercept article on U.S. surveillance of Muslim citizens, of a classified document containing a racial slur. Senator Ron Wyden (D-OR) and Congressman Keith Ellison (D-MN) both expressed their concern.

Apropos of the Intercept piece, Glenn Greenwald has promised that he has more to report on other non-Muslim Americans targeted by the NSA. National Journal has more.

In a Time op-ed, Nihad Awad, Executive Director and co-founder of the Council on American-Islamic Relations, responded to news that he was targeted for domestic surveillance by U.S. security services.

The Times indicates that former NSA contractor Edward Snowden has submitted a request to extend his asylum in Russia.

Research conducted by the Pew Global Attitudes Project indicates that global public opinion toward Russia has become increasingly negative. The Times has more.

As Reuters shares news on the continued violence in Ukraine, the AP reports that the EU has approved sanctions on eleven more people who have aided the insurgency there. Meanwhile, in a hearing yesterday, members of the Senate Foreign Relations Committee berated Obama administration officials for the White House’s inaction. The Post has more on the senators’ remarks.

The Wall Street Journal notes that Russian President Vladimir Putin’s inconsistency with regard to Ukraine reflects an attempt “to blunt any push in the West for stronger economic sanctions against Russia.”

The Times shares troubling news that in March, Chinese hackers penetrated databases belonging to the U.S. Office of Personnel Management. Apparently, the hackers sought access to information regarding individuals who had applied for top-secret security clearances. An official from the Department of Homeland Security confirmed that the attack had taken place, but said “personally identifiable information” does not seem to have been taken. The Post also has the story.

Meanwhile, during the ongoing Strategic and Economic Dialogue in Beijing, Secretary Kerry spoke with his Chinese counterparts on cybersecurity and theft. The Wall Street Journal shares more on their “frank exchange.”

The Times reports that Chinese and American officials also discussed maritime law and the current situation in the South and East China Seas. In an interview with USA Today, Taiwan’s economic and cultural ambassador to the U.S. stated that confrontation between China and Japan in the East China Sea “could trigger a major incident.”

As Reuters reports the story of another suspected U.S. spy working in the German government—this time in the defense ministry—the Post tells us that Germany has asked “the representative of the U.S. intelligence services at the United States embassy… to leave” the country.

Members of the House Select Committee on Benghazi received a classified briefing on Wednesday on Abu Khatalla, the alleged mastermind of the 2012 terrorist attacks in Libya. Politico has the story.

Meanwhile, the AP  has newly released testimony from the House Armed Services Committee wherein top military commanders involved in the U.S. response to the Benghazi attacks made this interesting suggestion: the perpetrators of a second assault against the CIA compound in Benghazi, were different from those who attacked the U.S. diplomatic mission the evening before.

The Times reports that the U.S. will broaden sanctions on groups in the Democratic Republic of the Congo in order to more easily target those who are trying to instigate violence and disrupt peacekeeping missions in the country.

In today’s recommended long read, Alex Perry covers Boko Haram: Terror’s New Insidious Face.

We close with the news that Matt Olsen will resign his post as Director of National Counterterrorism Center. President Obama’s thanked him for his distinguished service that has “left our nation more secure and even better prepared to meet the threats of our time.”

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DOJ Releases Three Redacted FISC Telephone Metadata Orders

By
Wednesday, July 9, 2014 at 6:12 PM

From the Office of the Director of National Intelligence’s Tumblr site, we learn today that on Tuesday, the Department of Justice released three redacted primary orders of the Foreign Intelligence Surveillance Court (“FISC”) from 2009—all three authorizing collection, from telecommunications companies, of telephony metadata under 50 U.S.C. 1861. Here are the orders:

FISC Docket Number BR 09-09 (July 7, 2009)

FISC Docket Number BR 09-15 (Oct. 30, 2009)

FISC Docket Number BR 09-19 (Dec. 16, 2009)

Civil Liberties Groups Write to White House, Express Concerns Over Intercept Story on NSA & FBI Surveillance

By
Wednesday, July 9, 2014 at 2:31 PM

In response to today’s Intercept story on NSA and FBI surveillance of Muslim Americans, a large coalition of civil liberties and human rights groups have written to the White House—and, among other things, asked the Obama Administration for a “full and public accounting” of the surveillance described in the story.  Here is the letter (which I happened upon while reading some further coverage from Charlie Savage of the New York Times):

Dear Mr. President,

The undersigned civil rights, human rights, privacy rights and faith-based organizations write to express our concerns following a report published by First Look Media indicating that the FBI and NSA targeted American Muslim community leaders for secret surveillance. We call on your Administration to provide a full public accounting of these practices and to strengthen protections against the infringement of civil liberties and human rights. We also request a meeting with you, Attorney General Eric Holder and FBI director James Comey to discuss these matters.

While we do not know all of the facts of the individual reported cases, we believe the government has an obligation to explain the basis for its actions. Moreover, we cannot presume that the government acted without prejudice or bias. Too often, both in the past and in the present, we have observed the government engaging in patterns of discriminatory and abusive surveillance.

In an earlier era, during the 1960s and 1970s, civil rights leaders, activists and members of minority communities were subjected to unlawful and abusive government surveillance based not on what they had done, but what they believed and who they were. Despite reform efforts, abusive practices continue today. Federal, state, and local law enforcement are targeting entire communities—particularly American Muslims—for secret surveillance based on their race, religion, ethnicity or national origin. Read more »

Today’s Headlines and Commentary

By and
Wednesday, July 9, 2014 at 1:04 PM

In the Intercept today, Glenn Greenwald and Murtaza Hussein published a long-awaited piece on the surveillance of Muslim Americans by the NSA and FBI. In response, the Department of Justice and the Office of the Director of National Intelligence released a statement, arguing that the U.S. does not monitor its citizens’ activities “solely because they disagree with public policies or criticize the government.” Ben also gave his thoughts on these most recent disclosures.

Violence between Israel and Palestine continues this morning, as revenge attacks escalate without any clear exit plan for either side. Al Jazeera reports that Israeli Defense Forces (IDF) have launched more than one hundred air strikes in the last 24 hours. The IDF claim that the airstrikes target key Hamas command centers and rocket launchers. At the same time, Israel continues its controversial policy of warning, by means of telephone or leaflet, the occupants of buildings which are about to be bombed. The New York Times shares the story.

The Washington Post has graphic footage of the airstrikes in the Gaza Strip where at least nine Palestinians have died. The strikes come after more than 160 rockets were fired against Israel; the rocket strikes were reported well north of Tel Aviv near Haifa. The Times and Fox News have more details.

UN Secretary-General Ban Ki Moon condemned the attacks on Tuesday, saying that he is “extremely concerned” by the surging violence. According to the Jerusalem Post, the Secretary General of the Arab League, Nabil al-Arabi, has called for an urgent meeting of the UN Security Council over the “dangerous Israeli escalation.”

Israeli Prime Minister Benjamin Netanyahu has not yet ruled out a ground operation after authorizing the armed forces to mobilize 40,000 reservists. According to Al Jazeera, a source in his office quoted Netanyahu as saying, “the IDF (Israel Defense Forces) must be ready to go all the way. All options are on the table, including a ground invasion.” See Reuters for more.

On to Iraq: The Post reports that Iraq’s parliament will convene on Sunday, amid growing pressure to form a new government that can deal with current security threats. The announcement comes as Reuters tells us that the existing government has lost control of a former chemical weapons facility to “armed terrorist groups;” and the Post shares that infighting between Shia groups in the south has flared up. The Daily Beast has more on why simply eliminating ISIS would not fix the problems the Iraqi government faces. Iran is also getting in on the action, as the Times notes.  Iran has deepened its involvement in the crisis, sending three SU-25 combat aircraft—which are similar to the American A-10—to the Maliki government.

On Tuesday, Senators vented frustrations after a Senate Armed Services Committee briefing on Iraq. According to the Hill, Senator John McCain suggested that the Obama Administration has “no strategy” to deal with the current situation there. Senator Rand Paul called the assessment that ISIS was a threat to the United States a “conjecture.” Defense News has the story.

Meanwhile, CNN reports that ISIS militants have seized control of the Abu Kamal border crossing between Syria and Iraq, thereby consolidating territorial gains in both countries. A spokesperson for the Free Syrian Army declared that “all the cities between Deir Ezzor city and the Iraq border… have fallen to ISIS.”

Al Jazeera shares news that the Western-supported Syrian opposition group National Coalition has selected a new president, Hadi al-Bahra. Bahra served as the organization’s chief negotiator during the Geneva peace talks, and according to the Syrian National Coalition’s Facebook page, he won the presidency by 62 votes. BBC News also reports the story.

In Afghanistan, preliminary results of the presidential election brought on outrage. Now the U.S. has urged all parties to remain “calm.” During phone calls with candidates Ashraf Ghani and Abdullah Abdullah, President Obama focused on “the need for political dialogue.” The New York Times shares news on the two candidates’ statements and actions.

Whatever the identity of Afghanistan’s true leader, NATO Secretary General Anders Fogh Rasmussen indicated that Afghanistan in any event will have to sign security agreements by September—or risk problems in establishing a Western alliance. Defense News has more.

On a different subject, Rasmussen also warned on Tuesday that Russia was playing a ‘double game” in Ukraine and that countries should not be duped by conciliatory statements—which mask Moscow’s “hybrid war” of military action, covert operations, and disinformation campaigns. The Times covers the story.

According to the Associated Press, Ukraine’s government has announced new plans to encircle and capture the rebel-held stronghold of Donetsk in eastern Ukraine. But Ukraine also said that, so as not to terrorize the populated city, Ukraine’s military would not use the same air and artillery strikes in Donetsk that it previously used to drive rebels from other towns.

The International Civil Aviation Organization has determined that Crimean airspace still belongs to Ukraine, despite Russia’s annexation of the territory earlier this year, the Post reports.

In a Post editorial, former National Security Advisor Zbigniew Brzezinski shares his thoughts on the three different options Putin has with regard to Ukraine.

As the July 20 deadline for an Iran nuclear agreement approaches, new developments may make achieving a compromise difficult. BBC News indicates that disagreement seems to have arisen among the Western powers. French Foreign Minister Laurent Fabius said that “in recent days, representatives in the negotiations have put forward a certain number of different approaches.” Meanwhile, the Guardian reports that in a speech Monday, Iran’s Ayatollah Khamenei declared that in the years to come, the Islamic Republic will need more uranium enrichment capacity than the West might like. According to Mark Fitzpatrick, former acting U.S. Deputy Assistant Secretary of State for Non-proliferation, Iran’s Supreme Leader has now “made it harder to get a deal.”

Yesterday, Clara shared news that Bahrain’s government asked U.S. Assistant Secretary of State for Democracy, Human Rights, and Labor Tom Malinowski to leave the island nation immediately. While the State Department noted that it is “deeply concerned” by the action, Malinowski tweeted that the decision was “not about me but [about] undermining dialogue.” BBC News and the AP have more.

In an op-ed in the Times, Michael Cohen argues that despite recent global crises, it has actually been “a pretty good couple of weeks for American foreign policy.”

The “Strategic and Economic Dialogue” between U.S. and Chinese officials began in Beijing today. The AP shares remarks from Secretary Kerry and Chinese President Xi Jinping.

Meanwhile, Defense News reports that as part of a series of tests, North Korea appears to have launched two short-range missiles off its eastern coast today.

The Times indicates that when President Obama called German Chancellor Angela Merkel last week, he was unaware that a German intelligence officer had just admitted to sharing information with the CIA. The Daily Beast has more on the episode.

In a closed hearing yesterday, the Senate Select Committee on Intelligence voted 12-3 to approve the Cyber Information Sharing Act, a bill intended to allow private companies to share cyberthreat information with the government. Forbes and the Post have more details.

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DNI and DOJ on Today’s Intercept Story

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Wednesday, July 9, 2014 at 9:43 AM

The Office of the Director of National Intelligence and the Justice Department together said this today, apparently in response to an earlier Intercept story on FBI and NSA surveillance of Muslim Americans: 

It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights.

Unlike some other nations, the United States does not monitor anyone’s communications in order to suppress criticism or to put people at a disadvantage based on their ethnicity, race, gender, sexual orientation or religion.

Our intelligence agencies help protect America by collecting communications when they have a legitimate foreign intelligence or counterintelligence purpose.

With limited exceptions (for example, in an emergency), our intelligence agencies must have a court order from the Foreign Intelligence Surveillance Court to target any U.S. citizen or lawful permanent resident for electronic surveillance.

These court orders are issued by an independent federal judge only if probable cause, based on specific facts, are established that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power.

No U.S. person can be the subject of surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs.

On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.

The United States is as committed to protecting privacy rights and individual freedom as we are to defending our national security.