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Forty Years After Church-Pike: What’s Different Now?

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Friday, May 15, 2015 at 10:35 AM

That is the title of remarks which I will deliver this morning at the National Security Agency, to mark the 40th anniversary of the Church and Pike hearings.  My speech begins as follows:

You honor me greatly by inviting me back to address you today. I hope to prove worthy of it.

About ten years ago, when I was the inspector general here, I found myself one day in Hawaii, under the Pineapples, and by coincidence there was at the same time a conference nearby of the agency’s training staff from all over the Pacific region. And one of them came to me and said, We do all this training about the legal restrictions on our activities — USSID 18 and Executive Order 12333 and all that – and we know it’s a big deal, but none of the people we’re training know why we’re doing it. And then after a pause she said: And frankly, we’re not sure either.

I had lived through the upheavals of the late ‘sixties and the ‘seventies – the Vietnam War, the intelligence scandals, the Nixon impeachment, and the implementation of the legislative and regulatory framework that we impliedly refer to every time we say that this agency operates under law. Younger people had not.

We Americans don’t take instructions well if we don’t understand the reasons for them. And so I decided it was incumbent on us to tell and re-tell the story of how and why the United States became the first nation on earth to turn intelligence into a regulated industry. But the story isn’t entirely behind us. It continues. And so this morning I’m not only going to recount what happened in the ’seventies; I’m also going to address the Agency’s position in the wake of the Snowden leaks, and how we got here. Because insofar as NSA has again been in the public’s doghouse (It is certainly not in the policymakers’ dog house), it is for very different reasons from those in 1976, and that difference is worth reflecting on.

Russell Wheeler on the Changing Composition of the FISC

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Friday, May 15, 2015 at 9:15 AM

My Brookings colleague Russell Wheeler last month published this article on the changing composition of the Foreign Intelligence Surveillance Court on the Brookings FixGov blog. It updates his Lawfare Research Paper from last year on the subject.

The post opens:

Chief Justice John G. Roberts, Jr. has designated two new members of the eleven-member Foreign Intelligence Surveillance Court (FISC), which Congress created in 1978 to act on government applications to undertake national security investigations, principally domestic surveillance. Congress directed the chief justice, alone, to designate sitting federal district judges to serve on the FISC for unrenewable seven-year terms, in addition to their regular judicial duties.

The FISC has been the object of debate about the costs and benefits of its largely non-adversary proceedings and its comparative secrecy. Some have also charged that its membership’s preponderance of Republican appointees and former prosecutors have made it less likely to question surveillance requests rigorously, and more likely to stress national security over privacy in overseeing the legality of surveillance activities.

Last June, I published a Lawfare Research Paper Series analysis of FISC’s composition from various perspectives and assessed possible links between designees’ appointing party and prosecutorial experience and FISC decisions. Such links are hard to establish. But optics are important to the FISC’s credibility; even if it is not ideologically oriented, it may appear so if it is dominated by appointees of one political party, or by former prosecutors.

My goal in this short post is not to rehash that comparatively lengthy analysis but rather, my objectives are to highlight some major aspects of the FISC’s composition when the two new designees become members next month and to update my previous comparison of the designees of Chief Justices Burger, Rehnquist, and Roberts.

 

Settle Syrian Refugees in Detroit

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Friday, May 15, 2015 at 6:41 AM

I love this idea, floated today in  New York Times oped by . It’s smart, doable, and a constructive, out-of-the-box approach to two distinct disasters:

Detroit, a once great city, has become an urban vacuum. Its population has fallen to around 700,000 from nearly 1.9 million in 1950. The city is estimated to have more than 70,000 abandoned buildings and 90,000 vacant lots. Meanwhile, desperate Syrians, victims of an unfathomable civil war, are fleeing to neighboring countries, with some 1.8 million in Turkey and 600,000 in Jordan.

Suppose these two social and humanitarian disasters were conjoined to produce something positive.

Gov. Rick Snyder of Michigan, a Republican, has already laid the groundwork. In January 2014 he called for an infusion of 50,000 immigrants as part of a program to revitalize Detroit, and signed an executive order creating the Michigan Office for New Americans.

Syrian refugees would be an ideal community to realize this goal, as Arab-Americans are already a vibrant and successful presence in the Detroit metropolitan area. A 2003 survey by the University of Michigan of 1,016 members of this community (58 percent of whom were Christian, and 42 percent Muslim) found that 19 percent were entrepreneurs and that the median household income was $50,000 to $75,000 per year.

So What’s in the New USA Freedom Act, Anyway?

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Thursday, May 14, 2015 at 11:51 PM

The House has now passed the USA Freedom Act. If you feel the need to hear Mel Gibson shouting “Freeeedom!” in response, well, don’t thank us. We live to serve:

The clock is now ticking on Senate action before the current Section 215 of the Patriot Act expires at the end of the month. Majority Leader Mitch McConnell wants to move a “clean” reauthorization bill reupping current authorities. In light of the Second Circuit opinion last week and the strong bipartisan House vote in favor of the USA Freedom Act, that option seems non-viable. The House, having just voted overwhelmingly for reform, hardly seems poised to turn around and vote for the status quo—particularly when that status quo seems suddenly legally precarious. The realistic question, then, is whether the Senate can and will pass this bill. Senator Leahy’s version of the USA Freedom Act failed to progress in the Senate last year by two votes. Will that be the same with 215 set to expire?

That this bill is suddenly the bill puts weight on another important question, one that hasn’t gotten a lot of attention: what exactly is in this bill?  Just because you call something, once again, the USA Freedom Act, does not mean that it’s the same as the last thing called the USA Freedom Act. And this bill differs in subtle—and not so subtle—ways from previous versions of the bill, including from last year’s grand compromise that Senator Leahy brokered with the administration.

To cite only the most dramatic example, you might not be expecting when you hear Gibson shout “Freeedom!” and think about all that bulk collection of metadata that’s going to grind to a halt that Title VIII of this bill is entitled “Safety of Maritime Navigation and Nuclear Terrorism Conventions Implementation” and has nothing whatsoever to do with NSA at all.

Since this appears to be the bill that will pass—if any bill passes—we thought it would be a good idea to flesh out what it would do and where it parts company with the version that attracted so much attention last year. Coming in at 121 pages, the bill is hardly designed for light perusal; we therefore provide page citations (in parentheses) for some of the key changes in the new bill.

Read more »

Clapper and the Costs of Overlooking Use Restrictions

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Thursday, May 14, 2015 at 2:55 PM

The Second Circuit’s decision in ACLU v. Clapper holding that the section 215 metadata program exceeds statutory authorization has flaws, including this: The ruling focuses on initial collection exclusively, and thus fails to reckon properly with the tight restrictions imposed on government analysts’ access to and use of metadata.

It may seem counter-intuitive to look at data use to decide whether the data is relevant for collection purposes in the first instance. But use, in fact, really matters to relevance. To understand why, it’s useful to refer to section 215’s text, which permits a court to require production of information that is “relevant to an authorized investigation.”  The meaning of relevance under section 215 is central, as the Clapper court rightly noted. The government, along with Judge Pauley of the Southern District of New York and numerous judges on the Foreign Intelligence Surveillance Court (FISC), asserted that relevance under section 215 was functional in nature: if information requested by the government would assist counterterrorism officials in finding links between individuals and entities that would otherwise elude detection, that information would meet the statutory standard. Analysis of metadata, Judge Pauley opined, allows more thorough investigation of patterns that can reveal previously unknown links. Judge Pauley noted that the comprehensive database of call records that the government had obtained under section 215 facilitated more targeted queries. Because the National Security Agency (NSA) had control of the database, the inquiry could be more comprehensive than would be possible if private firms with divergent data platforms retained possession of the data. Moreover, the NSA’s retention of the data, according to Judge Pauley, allowed the government to pose a targeted query instantaneously, without the delays engendered by seeking a separate court order for an array of private firms.

This functional definition stems from dictionary definitions of the term, “relevant,” which include flexible connotations such as “bearing on… the matter at hand” (OED). Moreover, the Second Circuit has repeatedly cautioned that judicial review under the Foreign Intelligence Surveillance Act (FISA) requires a measure of deference to official requests. As the Second Circuit said in the landmark 1984 FISA case, United States v. Duggan, courts should subject government requests to no more than “minimal scrutiny,” taking care not to “second-guess the executive branch.” Read more »

Today’s Headlines and Commentary

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Thursday, May 14, 2015 at 1:20 PM

Fighting continued in Yemen yesterday as the humanitarian ceasefire there showed increasing signs of strain. The Associated Press reports that the first full day of the five-day truce saw a Saudi-led coalition airstrike in Abyan province, heavy fighting in Taiz province, and shelling by coalition ships off the southern Yemeni coast. Yemeni officials and Amnesty International also reported that Houthi rebels have shelled civilian and medical facilities in both Taiz and Aden. Saudi Arabia added a claim that the Iran-backed Houthis had fired at Saudi border regions.

The Wall Street Journal adds that the Houthis claim the Saudi-led coalition broke the truce first by carrying out four pre-dawn strikes yesterday. As sporadic fighting continued, however, aid groups began delivering humanitarian aid to Yemenis badly in need of it. The United Nations’ World Food Program, which is overseeing all aid entering Yemen during the truce, reportedly plans to provide food rations to 750,000 people during the pause in violence. A variety of aid groups are joining the aid effort, but are struggling to manage delivery logistics in such a short time-frame.

Against this backdrop, President Obama met yesterday with a Saudi delegation as part of a two-day summit with Arab emissaries. While the talks are meant to help the Obama administration assuage Arab fears about U.S. outreach to Iran, the recent tone of the administration toward Iran and the broader region make this task all the more difficult. The Wall Street Journal explains that as the administration seeks a nuclear deal with Iran, it is “increasingly holding out the possibility of a realignment of power in the Middle East,” a possibility that worries Arab leaders.

Complicating both nuclear negotiations and U.S. outreach to Arab nations is a growing commitment in the region to match whatever nuclear capabilities Iran is permitted to retain under a deal. Leading that charge is Iran’s chief regional rival, Saudi Arabia. Prince Turki bin Faisal, a former Saudi intelligence chief, said recently that “Whatever the Iranians have, we will have, too.” Earlier this week, one of the Arab delegates to Washington added, “We can’t sit back and be nowhere as Iran is allowed to retain much of its capability and amass its research.” The New York Times has more.

As Arab leaders continue to feel threatened by a potential Iran deal, one of the assurances that the United States has tried to offer — that U.N. sanctions on Iran would automatically snap back into place in case of Iranian violations — has been called into question. Bloomberg notes that Russia’s ambassador to the United Nations said yesterday that “There can be no automaticity, none whatsoever” in reimposing sanctions on Iran if they are caught cheating.

That Russia, which has a veto in the U.N. Security Council and harbors a distaste for sanctions, may oppose a snap-back provision in the Iran deal is all the more worrying as evidence emerges of more nefarious Iranian nuclear activity. Reuters reveals that, according to U.N. experts and other western sources, the Czech Republic blocked an Iranian attempt to purchase compressors with both nuclear and non-nuclear uses in the Czech Republic after authorities discovered that the purchaser and the transport company had provided false documentation to “in order to hide the origins, movement and destination of the consignment with the intention of bypassing export controls and sanctions.”

In the Times, Peter Baker and Eric Schmitt explain that newly found traces of chemical weapons in Syria are once again adding pressure on President Obama to enforce a “red line” he drew in 2013. In recent weeks, evidence has mounted that chemical weapons including ricin, sarin, and chlorine continue to be used in the country’s brutal civil war.

Yesterday, the AP brought us the news that, according to Iraq’s Defense Ministry, a U.S. airstrike had killed Abu Alaa al Afari, the deputy emir of the Islamic State of Iraq and Syria, Akram al Qurbash, the commander of the group’s military forces in Ninewah Province, and “a large number” of other fighters. However, later the Interior Ministry of Iraq said it was not clear if al Afari and al Qurbash were even wounded, while the U.S. Central Command denied that the described strike even occurred. The U.S. military was also very quick to point out that it had not struck a mosque as some of the earlier reports suggested.

In the Daily Beast, Nancy A. Youssef asks the question: why does the Iraqi government keep making dubious claims about the deaths of ISIS’s leaders? One possible answer is that they may be trying to boost the morale of their own troops.

Back in the United States, the Obama administration has asked television networks to stop using outdated footage of ISIS at its peak last June as those images are no longer reflective of the reality on the ground, where the force of U.S. bombs has the group on the run. Instead of long convoys with guns mounted on trucks looking to wreak havoc, Col. Steven Warren, a Pentagon spokesman, said a more accurate image today would be “one Toyota speeding down the road by itself at night with its headlights off.” Politico has more.

Fourteen people, including one U.S. citizen, were killed yesterday in an attack on a Kabul hotel, the BBC reports. The Afghan Taliban has claimed responsibility for the attack, which appears to have specifically targeted foreigners who had gathered at the hotel for a concert. Reuters adds that there appears to be confusion regarding how many gunmen took part in the attack, with official statements ranging from three to one.

In Foreign Policy, former Pakistani ambassador to the United States Husain Haqqani lays out a litany of ways in which Seymour Hersh’s recent story about a U.S.-Pakistan cover-up surrounding the killing of Osama bin Laden simply don’t add up. The one part which Haqqani doesn’t find utterly improbable is Hersh’s allegation of a “walk in” who helped facilitate the Abbottabad raid; the rest seems fantastical. Haqqani writes, “Hersh may have his unnamed sources, but he clearly does not know how Pakistan works.”

India’s Prime Minister Narendra Modi met with Chinese President Xi Jinping today to open a three-day visit to China amid efforts to strengthen relations between the two countries, which continue to be strained by a long-standing border dispute. The BBC writes that the visit is expected to produce bilateral agreements potentially worth billions of dollars; China is already India’s biggest trading partner, but India’s trade deficit with its neighbor has increased exponentially in the last dozen years.

After their Iranian fishing boat ran ashore on the coast of Somalia, the vessel’s 14 crew members were kidnapped by Al-Shabaab militants, according to Iranian media and local residents. The Guardian explains that the ship reportedly experienced technical difficulties off the Somali coast and drifted into a al-Shabaab stronghold, where the extremists detained the crew. The militant group has yet to claim responsibility for the abduction.

Nigerian troops have repelled an attack by Boko Haram militants in Maiduguri, Al Jazeera reports. According to the Nigerian military and local residents, dozens of fighters stormed the outskirts of the country’s largest city indiscriminately firing heavy guns and rocket-propelled grenades. The attack was the first on Maiduguri in the three months since a regional coalition opened an offensive against the militant group.

During his visit to Beijing this weekend, Secretary of State John Kerry will take a strong stance on maintaining freedom of navigation in the South China Sea in the face of Chinese territorial claims, a State Department official noted yesterday. Reuters writes that the remark came just a day after the U.S. military revealed that it was considering expanding its military presence in the Sea to help maintain freedom of navigation.

Yesterday, the House of Representatives overwhelmingly approved the USA Freedom Act by a vote of 338 to 88. The bill, if adopted by the Senate, would end the NSA’s bulk collection of telephony metadata as it currently exists by having phone companies retain the data. Over at DefenseOne, Patrick Tucker explores what exactly the end of Section 215 metadata collection would mean for intelligence collection. But for those optimistic that the USA Freedom Act will quickly pass the Senate, the National Journal’s latest report should shatter those illusions. After a classified briefing from the Obama administration, several senators, including Senate Foreign Relations Chair Bob Corker (R-TN), think the NSA does too little to be effective. Senator Corker called the scope of the metadata program “malpractice,” noting “it is beyond belief how little data is part of the program.”

The House Rules Committee voted last night to send the 2016 National Defense Authorization Act to the House floor, the Hill reports. The $612 billion yearly appropriation bill now carries 135 amendments, including measures that will draw the bill into ongoing congressional squabbling over immigration.

The Wall Street Journal notes that the Boston bombing jury began deliberations last night on the fate of Dzhokhar Tsarnaev. The jury will decide whether the 21-year-old, who it already convicted of all the counts he faced in connection with the 2013 Boston Marathon bombing, should face the death penalty or life in prison without parole.

According to a new report produced by cybersecurity firm root98, a major Russian hacking group was preparing to launch a cyber assault on U.S. banks before abandoning its plans, possibility as a result of being discovered, the Hill reveals. Banking giants Bank of America and TD Bank were apparently on the group’s hit list, as were several international institutions. The group’s CEO claims that this is the first time that such an attack has been discovered before it happened.

Over at the Daily Beast, Shane Harris writes that another cybersecurity firm’s recent report overhyped the cyber threat posed by Iran and was generally dismissed by government officials. The report, issued by cybersecurity firm Norse and the American Enterprise Institute, made some startling claims about Iranian cyber capabilities but provided few specifics to back up those claims. Indeed, one former U.S. official said, “It looks very amateur to me.”

ICYMI: Yesterday, on Lawfare

Cody updated us on the legislative goings-on surrounding the USA Freedom Act ahead of yesterday’s vote on the bill, and Wells brought us the result of the vote: approval by a whopping margin of 338-88. As the bill moves to the Senate, where it is likely to face greater opposition, Carrie Cordero offered an alternative way forward for those lawmakers who like the transparency and accountability of USA Freedom but don’t like scaling back surveillance authorities.

Ken Anderson reviewed Deadly Metal Rain: The Legality of Flechette Weapons in International Law by Eitan Barak.

Sebastian linked to a newly revised report on the legal frameworks that the United Nations, European Union and 73 countries have adopted or are considering for dealing with foreign terrorist fighters.

Wells shared video of the Privacy and Civil Liberties Oversight Board meeting on 12333 counterterrorism activities that occurred yesterday in Philadelphia. Prior to the meeting, Tim Edgar wrote on the importance of reviewing E.O. 12333, which governs activities that “are less well documented,” “less transparent,” and “subject to less rigorous oversight” than those regulated by FISA.

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.

 

Intelligence Officials’ Unpersuasive Response To the NYT’s Identification of Three Undercover CIA Officers

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Thursday, May 14, 2015 at 11:02 AM

The New York Times identified three undercover senior CIA officials in an April 25 story by Mark Mazzetti and Matt Apuzzo about oversight of the CIA’s lethal drone operations. (Background here and here.)  ODNI General Counsel Bob Litt and twenty former CIA officials, all of whom I admire, argue that the Times was wrong to do so. Their arguments taken together are that (1) the officers identities are “protected by statute,” (2) identifying the officers exposes them, their families, and their contacts to risk of violence, and (3) outing the officers was gratuitous and served no news or legitimate accountability function. I have thought a lot about these arguments and am unpersuaded by them. In the long post below, I address each argument in turn.

Law.  The former officials write that “Congress overwhelmingly enacted the Intelligence Identities Protection Act of 1982 precisely to protect the dedicated men and women whose lives would be at risk if their names became widely publicized.”  But as Litt made pretty clear at a conference a few weeks ago, the Times did not violate the Intelligence Identities Protection Act by publishing the officers’ names.  The Act criminalizes the disclosure of the identity of a “covert agent” by a person having “authorized access to classified information.”  It also criminalizes disclosure of the identities of covert agents by others, but only if the disclosure comes “in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States.” Neither provision prohibits what the Times did here. The Times did not have authorized access to classified information. And its disclosure of the identities was incident to reporting and was not part of “a pattern of activities intended to identify and expose covert agents.”  Congress drew this latter distinction in order to protect (in the words of the House Report) “the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise such as news media reporting of intelligence failures or abuses.”

Having said all this, Litt was quite right at the conference to emphasize that the officers’ identities are “protected by statute” in the sense that a different statute—Sections 6 and 23 of the CIA Act—directs and authorizes the CIA Director to protect from unauthorized disclosure the identities of undercover intelligence officers. But when a later Congress criminalized such disclosures in the Intelligence Identities Protection Act, it created a loophole, inspired by the First Amendment, for what the Times did here.*

Risk of harm.   The twenty former CIA officials stated that covert agents’ “lives would at risk if their names became widely publicized.” They added:  “any name published in The Times would reside forever on the Internet, searchable by any terrorist with a laptop. It is true that certain foreign governments may know their names, but that is altogether different from making the name accessible to ISIS, Al Qaeda and every other murderer on the planet.”  Litt made a similar point. “[T]he problem is not whether foreign governments know” the officers’ identities, he said.  “The problem is whether terrorists and lone wolves who are being solicited by groups like ISIS to make individual attacks in the United States, whether they knew who these people were.  … [I]t’s not only them that’s at risk. It’s their families, and their contacts when they served in covert capacities overseas who are now going to be put at risk.”

In an interview with me, NYT Executive Editor Dean Baquet responded that because the drone operation represents a “different role” for CIA that amounts to a “largely a military operation, … I don’t think we can completely treat the people who run it purely as intelligence operatives.” He added: “It’s not like you’re exposing a wide undercover operation in Afghanistan. You’re writing about something that is generally done by the military, which I think means that the cloak of secrecy that usually we all allow for the CIA is a little more complicated.” Baquet then turned to the question of possible harms of publishing the names: Read more »

Talk Shows this Week on FISA

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Thursday, May 14, 2015 at 10:10 AM

The talk shows have been busy this week discussing FISA issues, both because of the Second Circuit decision last week and because of the House consideration of the USA Freedom Act.

The Diane Rehm Show had a good discussion on Monday, in which I participated.

Radio Times had an unusually good hour with Josh Gerstein of Politico, Alex Abdo of the ACLU, and me on Tuesday.

For those whose tastes run more to the pugilistic, On Point had this episode, featuring Glenn Greenwald and Stewart Baker (I haven’t listened to it yet, but I confess that I am really looking forward to it).

And we had a good discussion of the USA Freedom Act on this week’s Rational Security, which is—I might add—the only one of the discussions where you can hear Mel Gibson’s comment on the House-passed bill.


 

Book Review: Deadly Metal Rain: The Legality of Flechette Weapons in International Law by Eitan Barak

Published by Martinus Nijhoff Publishers (2011)
Reviewed by His Serenity, The Book Review Editor
Wednesday, May 13, 2015 at 11:22 PM

Flechettes are an antipersonnel weapon consisting of many small, solid metal projectiles with fins — hence the name “flechettes.” The fins give the metal projectiles greater stability in flight and more penetrative impact than would be true of other shrapnel fragments or round metal balls, once packed into an explosive canister and launched from an aerial platform or ground weapon such as artillery.

The weapon in its modern form dates back to World War I, when it was one of the first weapons used by the then-novel airplane. These early aviators simply emptied buckets of flechettes onto enemy infantry troops below.  Dispersed in this way, without a modern explosive charge or shell, their lethality was a function of the acceleration of gravity to drive them into, or even through, the body of an exposed soldier — noiselessly and without warning.  (Though there are anti-tank flechette weapons, nearly all the discussion and controversy around them  is as an antipersonnel weapon.)  The weapon was not widely used in World War II.  But it re-emerged in the Vietnam War, in artillery or air-delivered form, as US forces sought ways to defend artillery or other lightly equipped and staffed outposts against swarming attacks of Vietcong or North Vietnamese infantry that threatened to overrun a defensive perimeter.

In the hands of Israeli legal academic Eitan Barak and his informative and analytically sophisticated book, Deadly Metal Rain: The Legality of Flechette Weapons in International Law (A reappraisal following Israel’s use of flechettes in the Gaza Strip (2001-2009), the otherwise largely obscure history of flechette weapons is situated within three interlinked narratives.  The first is that flechette weapons illustrate certain long-running issues across the history of the law of weapons (and the Convention on Certain Conventional Weapons (CCW) particularly).  Among these is what qualifies a weapon as particularly worthy not just of regulation in its acceptable uses and battlefield environments, but of prohibition.  Professor Barak’s account shows how flechettes were nominated by some in earlier debates as a weapon to be prohibited, and yet they never in fact were.  Some viewed the weapon as particularly reprehensible; yet it proved difficult to point to features of the weapon, as such, that made it either inherently indiscriminate with respect to civilians or of a nature so as to cause superfluous injury or unnecessary suffering to combatants, especially by comparison to other weapons accepted as lawful.  Moreover, as solid pieces of metal, flechettes did not create explosive remnants of war posing risks after battle (a focus of arms control advocates that have sought bans of weapons such as antipersonnel landmines or cluster munitions, partly on these grounds).  The question of weapons law raised by flechettes over the long run has thus seemed to be not one of prohibition but instead regulation of use.  Regulation of use, rather than prohibition of the weapon, in fact is the usual situation for weapons considered under weapons law in the law of armed conflict; few weapons are inherently unlawful, as such, as Michael Schmitt and Jeffrey Thurner point out in a recent article.

Prohibition or regulation, one might draw as a general lesson (and admittedly extrapolating quite a bit) from Professor Barak’s careful study of flechettes, is a debate that takes place across the spectrum of weapons, from the simple to the technologically complex: much the same debate is taking place today around autonomous or highly automated weapons.  Another long term issue running across the history of weapons law, and illustrated by flechettes, is whether the legitimacy of anti-personnel weapons designed to take out a group of combatants is perennial, because of the requirements of warfare, or on the long term wane by reason of a combination of humanitarian concerns and technological progress.  The argument against such weapons, of course, is that the same weapon that takes out a concentration of combatants might take out a group of civilians. (Continued)

House Passes USA Freedom Act

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Wednesday, May 13, 2015 at 7:16 PM

Likely you’ve heard about the 338-to-88 vote; here’s a report from the New York Times

WASHINGTON — The House on Wednesday overwhelmingly approved legislation to end the federal government’s bulk collection of phone records, exerting enormous pressure on Senator Mitch McConnell of Kentucky, the majority leader, who insists that existing dragnet sweeps continue in defiance of many of those in his Republican Party.

Under the bipartisan bill, which passed 338 to 88, the Patriot Act would be changed to prohibit bulk collection by the National Security Agency of metadata charting telephone calls made by Americans. In addition, the legislation would bar permitting bulk collection of records using other tools like so-called national security letters, which are a kind of administrative subpoena.

The near unanimity in the House is not reflected in the Senate, where a bipartisan group that backs the House bill faces opposition from Mr. McConnell and a small but powerful group of defense hawks who want no change, and from another faction led by Senator Rand Paul, Republican of Kentucky, that is pressing for even greater restrictions of data collection.

 

An Alternative Approach to 215 for the Senate

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Wednesday, May 13, 2015 at 5:39 PM

Without getting into all the different angles and arguments that are currently being made, this post is intended to offer an alternative way forward for Members of Congress that support aspects of the USA Freedom Act regarding transparency and accountability, but are concerned about scaling back surveillance authorities with an untested framework for the telephone metadata program: offer an alternative to USA Freedom that codifies the existing telephone metadata program consistent with how it is currently operating, and preserves the ability to conduct bulk collection under the tangible things and pen register/trap and trace provisions in the future.

Given the Second Circuit’s opinion, the two extremes of either allowing 215 to sunset, or, authorizing a clean renewal, are not viable. Although in theory either option could possibly/possibly allow the current program continue for some period of time, there are two reasons that is unlikely: first, the Administration could interpret Congressional inaction as a vote against the program, and voluntarily end it; second, the FISC, when it next considers renewal, would need to address the Second Circuit’s opinion. I am not suggesting that the opinion is binding on the FISC; it’s not. But its existence would certainly have to factor in to a judge’s consideration of renewal. I’m not sure exactly how a judge on the FISC would weigh the opinion; I am sure it would matter.

So, as I currently see it, there are two options: pass USA Freedom as it currently stands, or, offer a meaningful alternative. Here’s what an alternative could look like:

  • It would keep all of the public and Congressional reporting provisions that are currently in USA Freedom. This would provide a new level of public and Congressional accountability, and enable the companies to report some of the additional information they have been advocating for.
  • It would keep the amicus provision currently in USA Freedom. The version in the bill is far better than previous versions of the institutional advocate that were floated. It makes clear that the Court has the authority to request an outside legal or technical view in appropriate circumstances. (One clarification I think the bill needs on this point: who can trigger the amicus – a single judge of the court, the court en banc, or the Presiding Judge? I also wonder whether the provision about the court having to report to Congress when it chooses against using an amicus is a good idea, for a variety of reasons.)
  • It would codify the telephone metadata program as it currently exists. Remember that the Obama Administration has made substantial changes to the program since it was first revealed—these include limiting the number of “hops” and increased FISC involvement. So the program as it exists today is not the same as it was two years ago. This approach would give Congressional approval to the current process, and therefore address the Second Circuit’s ratification argument. This approach would also be better for national security because it places the decision to end the program – if and when it ends – in the appropriate hands: national security leadership in the best position to determine its value and effectiveness. That decision could be made tomorrow; it could be made next month; or next year. But it should be made based on value and related factors; not politics.

Now, supporters of USA Freedom will counter that this proposal takes out the most important provision of the bill: the prohibition on bulk collection. But, the truth is, USA Freedom’s definition of specific selection term could/could be interpreted to allow very large collection anyway (so-called “bulky” collection). Which is why I have come to believe that, after the debate that has taken place, the worst possible outcome is an opaque bill that says one thing but can be interpreted to do another. Every different variation of specific selection term will be potentially subject to amicus-led challenge. That’s no way to conduct foreign intelligence collection.

Moreover, the proposal in USA Freedom that places the data with the providers is an untested process: no one knows whether it will work. It can’t possibly be as speedy or agile as the current process. And without retention requirements, there is no guarantee that the data will be there when the government shows up with its court order.

The bottom line is, that until the Supreme Court says otherwise, the information collected in the telephone metadata program is just digits dialed in a sea of numbers. The existing program does not collect personably identifiable information. Congress has an opportunity to authorize the current program, while also increasing transparency and accountability.

Just an option.

 

Report on the Legal Treatment of Foreign Fighters

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Wednesday, May 13, 2015 at 4:04 PM

The Global Legal Research Center at the Law Library of Congress recently released a report describing the legal frameworks that the United Nations, European Union, and 73 countries have adopted or are considering adopting for dealing with foreign terrorist fighters. The report, completed in late 2014 and updated this month, points out variations between countries that already have provisions for dealing with foreign fighters on the books, and details proposals that some countries have introduced in response to a September 2014 U.N. Security Council resolution on the matter.

Here’s the report’s introductory summary:

This report contains information on provisions in place or being considered by the United Nations, the European Union, and seventy-three countries on the treatment of individuals who join and fight for terrorist organizations in foreign countries. A number of countries are considering action now following the September 2014 adoption of a United Nations Security Council resolution expressing concern about the threat of foreign terrorist fighters. Many nations, as illustrated below, already have punishments applicable to such fighters, including imprisonment and/or loss of citizenship. In a number of jurisdictions, penalties for joining terrorist organizations increase when the individual recruits others or undergoes military training with those organizations. A unique approach is being taken in one city in Denmark, where instead of facing punishment, returning fighters are being given study or employment opportunities. In addition to the report on these jurisdictions, two maps have been included to illustrate the findings.

Today’s Headlines and Commentary

By and
Wednesday, May 13, 2015 at 1:46 PM

The five-day truce that began in Yemen last night seems to have largely held thus far, despite reports of some violations. Reuters writes that residents have reported heavy fighting between Houthi militias and local fighters accompanied by Saudi-led airstrikes in the southern provinces of Shabwa and Lahj. The Saudi-led coalition also reportedly hit the city of Abyan after Houthi rebels seized ground there after the truce’s 11 p.m. start time.

While the truce was designed to allow for the provision of humanitarian aid to suffering Yemenis, one aid shipment threatens to upset the precarious status quo. The New York Times notes that an Iranian ship purportedly carrying emergency relief supplies is approaching Yemen despite a Saudi-led naval blockade. Reuters adds that Iran has said that Saudi-led forces will not be allowed to inspect the ship, which is traveling with an Iranian military escort.

As the Iranian aid shipment raised fears of further heightened tensions between Iran and Saudi Arabia, President Obama tried to reassure Saudi Arabia and other squeamish Gulf allies of the United States’s commitment to the region. In the run-up to meetings with Gulf officials both in the White House and at Camp David, President Obama gave an interview to Asharq Al-Awsat, the Saudi-owned Arabic language newspaper. In it, he affirmed that Gulf nations are right to be concerned with Iran’s actions in the Middle East, and that “the United States is prepared to use all elements of our power to secure” U.S. interests in the region.

In Syria, ISIS militants have gained ground in the center of the country, according to the Syrian Observatory for Human Rights. The Associated Press writes that the group is pushing west from its territory east of Homs. The push has triggered intense clashes with government forces; fighting has thus far left around 30 government soldiers and 20 militants dead, with hundreds more wounded.

In the Qalamoun Mountains near the country’s western border with Lebanon, things are going better for government forces. Aided by Hezbollah militants, the Assad regime has made significant gains against insurgent forces that include militants from Al Nusra Front, according to Hezbollah and Syrian state media. Reuters notes that the pro-government troops have reportedly seized the highest point in the mountains in an area just 30 miles north of Damascus.

Amid growing reports of chemical attacks by the Syrian government, international inspectors have now found traces of banned toxic chemicals in at least three Syrian military installations across the country, the Times reveals. The revelations, reported by four diplomats and officials from the Organization for the Prohibition of Chemical Weapons, come just two years after the Syrian government agreed to a Russian- and U.S.-brokered deal to destroy its chemical weapon stockpile. Another western diplomat noted that while the traces do not provide clear evidence of new use or production of banned chemicals, the finding indicates “bad faith from the beginning” on Syria’s part.

Reports of nefarious chemical activity in Syria come as an international investigative commission reports that it has gathered enough evidence to indict Syrian President Bashar al-Assad and 24 senior officials in his government, according to the Guardian. Over three years, 50 Syrian investigators have smuggled regime documents out of the country on behalf of the Commission for International Justice and Accountability. The Commission’s officials have used the documents to prepare prosecution cases against the regime’s leaders in anticipation of the formation of a Syrian war crimes tribunal.

On a visit to Afghanistan, Pakistani Prime Minister Nawaz Sharif strongly condemned the Afghan Taliban’s renewed offensive against Afghan security forces, saying that “Afghanistan’s enemies will be treated as Pakistan’s enemies and Pakistan’s enemies will be treated as Afghanistan’s enemies.” The Wall Street Journal explains that the unusually strong tone toward the Taliban indicates the strengthening of ties between the two countries, and raises hopes that Pakistan could use its acknowledged influence over the the Afghan Taliban to push it to the negotiating table.

In the meantime, however, the Taliban’s offensive in Afghanistan continues. Reuters reports that gunmen attacked a meeting of Muslim clerics in Helmand province, killing seven people. The Taliban claimed responsibility for the attack, which targeted the Ulemma Council, a highly influential religious authority in Afghanistan that has repeatedly voiced support for Afghan security forces fighting radical Islamists.

Across the border in Pakistan, gunmen opened fire on a bus in Karachi, killing at least 43 people. The Times writes that the attack targeted members of a minority sect of Shiite Islam, and was claimed by Jundullah, a Sunni Pakistani Taliban splinter group. The Wall Street Journal adds that officials claimed that pamphlets purporting to be from the Islamic State were found on the bus, which could mean that the attack is the first large-scale assault carried out by the Islamic State in Pakistan. ISIS, however, has yet to claim responsibility for the attack.

And, in Nepal, the BBC brings us news that a U.S. Marine helicopter, which had on board six U.S. marines and two Nepali soldiers, has gone missing while on a mission to deliver aid to earthquake victims. A “rigorous” air search is now underway.

In Russia, a four-hour meeting between Secretary of State John Kerry and Russian President Vladimir Putin produced no diplomatic breakthroughs on issues including Ukraine, Iran, and Syria, the Washington Post reports. However, while both sides acknowledged the meeting’s lack of progress, they also underscored the positive effect of the talks on U.S.-Russian relations. Secretary Kerry said that “We rarely get to speak as honestly as we did today. This was an important visit at an important time.” Russian Foreign Minister Sergei Lavrov, who also met with the Secretary yesterday, added “We did not come to common ground on all issues, but today’s meeting helped us get a better understanding of each other.”

Also yesterday, members of the Russian opposition released a report describing the deaths of 220 Russian soldiers in Ukraine. The report was compiled from documents left behind by Boris Nemtsov, a Russian opposition figure assassinated in February under suspicious circumstances. The Times explains that the report details the secretive conditions under which Russian soldiers were sent to the front in Ukraine, as well as the Kremlin’s shifting descriptions of Russian involvement in Ukraine.

The U.S. military is considering the use of military aircraft and ships to maintain freedom of the seas in the hotly contested South China Sea. Reuters reports that Defense Secretary Ash Carter yesterday requested options that include flying surveillance aircraft over the Spratly Islands, an island chain that China has been dramatically expanding through its land-reclamation efforts; the options could also include sending naval ships to within 12 nautical miles of the islands. The Wall Street Journal notes that these moves would signal to the Chinese that the United States won’t accept Chinese claims to the man-made islands in what the United States considers to be international waters.

China responded with swift condemnation of the Pentagon’s proposals. The Wall Street Journal reports that earlier today a Chinese Foreign Ministry spokeswoman said that “We are severely concerned about relevant remarks made by the American side. We believe the American side needs to make clarification on that.” On the other hand, the Philippines, which has adopted the most aggressive response to Chinese claims in the South China Sea, welcomed the news. Other nations in the area remained silent.

In North Korea, another top official in Kim Jong-un’s regime has been purged, according to South Korean intelligence. Reuters reports that the Hermit Kingdom’s defense chief, Hyon Yong Chol, was executed by an anti-aircraft gun for treason, disobeying Kim, and falling asleep at a military event. This execution was preceded by 15 others ordered by Kim this year; since taking power in 2011, around 70 officials have reportedly been purged. North Korea analysts appear unsure if this string of executions portends instability in the country, however.

Israel is warning that the Lebanese militant group Hezbollah has placed much of its military infrastructure in Shiite villages in southern Lebanon. In the face of a likely future conflict between Hezbollah and Israel, Israeli officials explain, this move amounts to Hezbollah using Lebanese civilians as human shields. Israeli officials bluntly add that the move will not deter Israel from striking Hezbollah military targets. The Times writes, “Effectively, the Israelis are warning that in the event of another conflict with Hezbollah, many Lebanese civilians will probably be killed, and that it should not be considered Israel’s fault.”

After a vote barring any amendments to the proposed USA Freedom Act, The Hill reports, the U.S. House of Representatives is set to take up, and likely pass, that legislation today. A similar version of the bill, which would among other things limit the NSA’s surveillance capabilities and reform three expiring provisions of the USA Patriot Act, was passed by the House last year by a vote of 303-121, and lawmakers expect a similar tally for this year’s version. The White House said yesterday that it “strongly supports” the bill, echoing the support expressed by Attorney General Loretta Lynch and Director of National Intelligence James Clapper, the Post notes.

The House Republican leadership may also decide to block any amendments to the Iran Review bill, Politico reports. This tactic would head off attempts by conservatives in the House to add provisions that would almost certainly sink the bill, which passed out of the Senate by a 98-1 vote. The bill appears headed for a vote on Thursday.

A defector from Pakistani intelligence aided the United States in its hunt for Osama bin Laden, according to two former senior Pakistani military officials. However, while a recent story by Seymour Hersh claimed that a “walk-in” member of Pakistani intelligence offered to lead the CIA to bin Laden, one Pakistani military source told Agence France-Presse that the “walk-in” was not aware that his target was bin Laden. Instead, he was tasked with an operation that would verify bin Laden’s identity. The source said, “This guy was inducted at a much later stage only to carry out the ground confirmation. The US needed a ground confirmation which they couldn’t have done without relying on a responsible person.” AFP has more.

In War on the Rocks, Maj. Gen. Charlie Dunlap (Ret.) discusses the perils of targeting policy that goes above and beyond the requirements of international humanitarian law, specifically looking at the U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities released by the White House in May 2013. Dunlap concludes, “restrictive policies should not be put in place out of some naïve hope that most of the critics will somehow be satiated and pacified” and that it “is far better (and vastly more realistic) to scrupulously adhere to the law — which is typically the product of hard experience in actual conflicts —and strike out at those who are responsible for far more civilian deaths than drones or airstrikes.”

Three Somali men have pleaded guilty in a U.S. court to conspiring to provide material support to al-Shabaab, the Wall Street Journal reports. Under the plea deal, the three men, who were detained while trying to cross into Somalia in 2012, now face a maximum sentence of 15 years in prison; had they been found guilty by a jury, they would have faced a minimum of 30 years.

Politico details the case of Abu Zubaydah, the Guantanamo detainee who was picked up in Pakistan in 2002 and has seen his legal challenge to his detention languish in the D.C. Circuit since 2008 for undisclosed reasons. Those reasons, Raymond Bonner posits, may have something to do with the CIA’s determination during Zubaydah’s detention at a CIA black site that he “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released.”

Parting Shot: Millennials don’t really know what they think about privacy, and that could be good for tech firms and the NSA.

ICYMI: Yesterday, on Lawfare

Ingrid Weurth and Ganesh Sitaraman linked to their new article in the Harvard Law Review, “The Normalization of Foreign Relations Law.”

Jack posted the text of his recent speech at the Office of the Director of National Intelligence’s Legal Conference.

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.

 

Today: House Votes on USA FREEDOM Act

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Wednesday, May 13, 2015 at 11:19 AM

The full U.S. House of Representatives is scheduled to consider H.R. 2048, otherwise known as the USA Freedom Act today.

Yesterday, the White House expressed support for the bill, as the Rules Committee voted 8-3 along party lines to prohibit amendments from the floor. The bill is expected to pass easily on a bipartisan basis.

We’ll keep this post updated throughout the day as the House votes on the bill.

Surveillance Reform: Privacy Board Turns to E.O. 12,333

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Wednesday, May 13, 2015 at 10:27 AM

The Privacy and Civil Liberties Oversight Board is holding its first public meeting outside Washington at Philadelphia’s National Constitution Center to examine surveillance activities under E.O. 12,333 that are directed at international terrorism. A livestream will be available at the PCLOB’s website; my statement to the Board can be found here. My friend and Lawfare colleague Bobby Chesney and I are both appearing.

The job of lawyers and privacy officials is the intelligence community is to administer the two basic systems of oversight first established by the Church Committee reforms of the 1970s: the Foreign Intelligence Surveillance Act and E.O. 12,333. In my experience, E.O. 12,333 is the more important of the two, although it receives much less attention.

E.O. 12,333 governs activities that are not regulated by statute and do not require a court order. As a result, those activities are less well documented, as a practical matter less transparent – even by the standards of classified programs, and are therefore subject to less rigorous oversight. They involve at most two branches of government – the Executive and Congress. Realistically, they usually involve only the Executive.

As a lawyer inside the Executive Branch providing advice on intelligence activities, I found myself turning to E.O. 12,333, and the AG guidelines for each agency required by that order, far more often than I did to FISA or other statutes. For us, E.O. 12,333 and the AG guidelines provided the only real source of legal guidance for most of what intelligence agencies do.

Since the Snowden revelations began in 2013, there has been debate here and abroad about surveillance reform. While much of the debate in this country about surveillance reform has focused on bulk collection of telephone records and other FISA activities, in the rest of the world the attention has been on continuing revelations of a variety of NSA activities conducted overseas under E.O. 12,333. These include reports of very intrusive activities, like collection of massive quantities of communications – the practice the government calls bulk collection, and critics call mass surveillance – and alleged activities that undermine encryption or security of communications systems.

President Obama has addressed some of these concerns in Presidential Policy Directive 28 (PPD-28), issued last year and implemented this year. PPD-28 limits bulk collection to six specified national security threats, including international terrorism, and for the first time requires intelligence agencies to have guidelines that protect the privacy of foreign citizens. I discuss PPD-28, and make recommendations for further reforms, in my recent Foreign Affairs article, “The Good News About Spying.”

PCLOB Public Meeting on 12333 Counterterrorism Activities

By
Wednesday, May 13, 2015 at 10:10 AM

The proceedings will get underway at 10:15 a.m., at the National Constitution Center in Philadelphia.  Witness testimony and other information can be found here; streaming video is below, too.

The Normalization of Foreign Relations Law

By and
Tuesday, May 12, 2015 at 1:15 PM

Is foreign relations law really so different from the law governing domestic affairs? Should it be? We have a new article out this week in the Harvard Law Review that engages these questions in the context of the arc of foreign relations law over the last quarter-century.

Many, if not most, scholars believe that exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — has defined foreign relations law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking.

In The Normalization of Foreign Relations Law, we argue that the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This normalization of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism.

In addition to documenting the normalization of foreign relations law over the last twenty-five years, we show how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes.  The Harvard Law Review website also includes three excellent responses to our article, all of which provide helpful commentary and are well worth reading.

Today’s Headlines and Commentary

By
Tuesday, May 12, 2015 at 12:36 PM

A humanitarian ceasefire is set to begin in Yemen today. Fighting will stop at 11 pm local time so that shipments of food and medicine can be safely transported into the country. Reuters describes the humanitarian aid packages being prepared by the U.N. and Iran.

Despite the impending ceasefire, Arab coalition jets continue to pound the capital of Sana’a. Agence France-Presse reports that one strike hit a rebel arms depot, causing “huge explosions.” The Washington Post shares a compilation of photos and video footage of the destruction. The Post also warns that this continue fighting may jeopardize the ceasefire.

Human Rights Watch has released a report, stating that Houthi rebels are using child soldiers to fight in Yemen’s ongoing civil war. According to the international organization, the militant group “has intensified its recruitment, training, and deployment of children in violation of international law.”

The Syrian military has begun a major counteroffensive to retake Jisr al-Shughur, a strategic town that fell to rebels about two weeks ago. In particular, Syrian government forces hope to reach their comrades and fellow loyalists, who are currently trapped in a hospital complex in Jisr al-Shughur. Indeed, President Bashar al-Asad vowed, “The army will arrive soon to these heroes trapped in the Jisr al-Shughur hospital.” AFP reports.

Meanwhile, the U.S.-Turkish program to train and equip moderate Syrian rebels has been delayed once again. Turkey’s Foreign Minister notes that the delay is a result of technical issues, and not any disagreement between Ankara and Washington. The Associated Press has the story.

U.S. Secretary of State John Kerry is in Sochi, Russia today, meeting with his Russian counterpart Foreign Minister Sergey Lavrov and with President Vladimir Putin. The visit constitutes the highest-level U.S. trip to Russia since violence in Ukraine first began in February 2014. The AP notes that some of the statements issued by Moscow in advance of the meeting “signaled there would be few breakthroughs, if any, on the many issues dividing the U.S. and Russia.” Still, both sides have stressed the importance of continued communication, according to Reuters.

Meanwhile, U.S. and Georgian troops began joint exercises yesterday at the Vaziani military base in Georgia. In advance of the operations, both American and Georgian officials attempted to tamp down any potential Russian concerns of provocation, stating “This training is not directed at anyone,” and “This is business as usual between the United States and Georgia.” The New York Times shares more.

Russian political opposition leaders have issued a report, claiming that at least 220 Russian soldiers have died during fighting in Ukraine during the past year. The information contradicts much of the news coming out of Moscow state media. The AP has details.

Reuters reports that Tokyo is looking to increase its “maritime engagement” – the Japanese and Philippine navies held their first joint operation in the South China Sea today, while the Japanese coastguard is conducting training exercises with its counterpart in Vietnam. The drills are a response to efforts by China to expand its sphere of influence over the disputed Spratly Islands.

Another response to China’s land reclamation efforts – the Philippines seeks to develop a naval base on its western coastline, just opposite the Spratly Islands. Japanese and American vessels would be permitted to use the port, according to the Philippine armed forces chief. Reuters has that story, as well.

The Post’s Walter Pincus examines discussions about the Pentagon’s budget currently taking place before Congress, and notes that “the United States has been preparing for war or been at war for at least two generations.”

The Obama administration has dismissed investigative journalist Seymour Hersh’s controversial account of the Osama bin Laden raid. The AP quotes White House Press Secretary Josh Earnest, who said the report is “riddled with inaccuracies and outright falsehoods.” Politico shares statements from former acting CIA director Michael Morell and from Senate Armed Services Committee Chairman John McCain (R-AZ).

Defense One examines the Second Circuit’s decision that Section 215 of the USA Patriot Act does not authorize bulk telephony metadata collection, stating that in ruling as it did, “the court recognized the constitutional prerogatives of the political branches in national security but provided rule-of-law guidance to Congress and the president in crafting new legislation the United States so badly needs.”

Section 215 is set to expire on June 1. Members of Congress are, therefore, working to approve legislation that would in some way extend authorization for the NSA’s collection of bulk telephony metadata. The White House supports the USA Freedom Act, a reform bill which failed to pass the Senate this past fall. The House appears poised to approve this legislation but, according to the Post, “that sets up a showdown in the Senate,” as Senate Majority Leader Mitch McConnell (R-KY) wants legislation that would preserve the NSA’s bulk collection program as it currently stands.

In the Post, Aki Peritz, a former CIA counterterrorism analyst, examines Congress’ response to the intelligence community’s annual global threat assessment, noting “there seems to be less interest than ever on the Hill in what the intelligence community has to say about worldwide threats to the United States.”

ICYMI: Yesterday, on Lawfare

Ben discussed the effect that Klayman v. Obama may or may not have on the current debate over the authorities contained in Section 215 of the USA Patriot Act.

Harley Geiger refuted some of the statements made by several U.S. Senators regarding the NSA’s bulk telephony metadata program.

Jack noted that twenty senior former CIA officials have criticized the New York Times’ decision to publish the names of three covert agents.

Yishai Schwartz explained why Seymour Hersh’s report on the U.S. killing of Osama bin Laden is “indefensible” and “journalistic malpractice.”

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.

My Speech at ODNI Legal Conference: “Toward Greater Transparency of National Security Legal Work”

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Tuesday, May 12, 2015 at 8:30 AM

I was honored to be invited to give a keynote speech at an Intelligence Community legal conference last Wednesday, May 6.  The speech was entitled Toward Greater Transparency of National Security Legal Work.  The main question I addressed was: “How should [the intelligence community]  think about and react to the government’s growing inability to keep secrets?”  I noted that “the intelligence community is thinking hard about aspects of these problems—how to better secure secrets, the challenges of false identities in an age of Google, biometrics, and GPS, the impact on liaison relationships of growing leaks, and more generally the problem of domestic public legitimacy post-Snowden.”  I argued that a “similar rethinking should be going on in the IC legal community if it is not already.”  And I offered “six principles that I think should guide this rethinking.”  Those principles are:

First, fully absorb and adhere to the Front Page Rule.

Second, stop jeopardizing vital credibility through exaggerated claims about the national security harms of disclosure.

Third, rethink, really rethink, the pervasive resistance to public disclosure of any aspect of any intelligence operation, including the legal rationale for such operations.

Fourth, confident assessments of legality in secret are no guarantee of public acceptance or legitimacy.

Fifth, rethink your extreme disinclination to share all significant legal opinions related to classified operations with the intelligence committees.

Sixth, you are unlikely to seriously rethink your approach to secrecy and transparency without some kind of institutionalized, inter-agency study of the problem that includes representatives of ODNI and the Justice Department.

Here is the speech in full: Read more »

Hersh’s Account of the Bin Laden Raid is Journalistic Malpractice

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Monday, May 11, 2015 at 10:10 PM

When a journalist writes a tell-all story about a classified operation, and he suspects the story will catalyze anti-American anger, provide fuel for terrorist groups, and cause severe friction with foreign governments, the act of publication is morally fraught. When the story is based on obscenely thin sourcing and careens into conspiracy theories, the decision to publish becomes indefensible.

Seymour Hersh has had a long and distinguished history as one of America’s finest investigative journalists. In recent years, he has gone a bit kooky. In 2011, for instance, he suggested that Stanley McChrystal, the former top commander in Afghanistan, and the leadership of the US Joint Special Operations Forces were “all members of, or at least supporters of, Knights of Malta.” His latest story, in which he claims that the entire story of Bin Laden’s killing is an elaborate cover-up for a joint Pakistani-American operation, may be his kookiest.

As many have already pointed out, Hersh’s version offers a combination of the inconsistent and the inexplicable. Why, for instance, would the Pakistanis help plan an elaborate raid, complete with a recall of Bin Laden’s Pakistani guards—rather than just hand Bin Laden over directly—if they always intended to claim he’d been killed in a drone strike hundreds of miles away? Worse, the key contentions rely on the exclusive word of one unnamed source who was a) retired, and b) on Hersh’s own account, only “knowledgeable about the initial intelligence about bin Laden’s presence in Abbottabad.”

To be sure, there are scraps of Hersh’s hodgepodge narrative that may turn out to be true. That a CIA “walk-in” may have contributed to the intel leading to Bin Laden’s whereabouts, for instance, matches a tidbit that NBC has confirmed recently. And Hersh’s insistence that someone highly placed in the Pakistani intelligence services knew of Bin Laden’s presence has been pretty widely believed for a while. But leaping from these plausible and relatively minor details to the rest of the fantastic tale Hersh spins simply boggles the mind.

It’s unsurprising then that the New Yorker passed on the story (as it, along with the the Washington Post, have reportedly done with the last few of Hersh’s flights of fantasy.)

The London Review of Books, on the other hand, lacked the same degree of restraint. This is hardly surprising given the editorial leadership’s apparent lack of interest in fact-checking. As LRB senior editor Christian Lorentzen wrote in a 2012 piece suitably titled Short Cuts,” “the facts are the burden of the reporter…nobody at the paper fact-checks full time; that’s an American thing… I miss New York sometimes, but I don’t miss its schizophrenic obsession with facts, or the puritan hysteria that attends the discovery that a memoir should have been called a novel.” The LRB, it seems, takes pride in its sloppiness. Perhaps they have an editorial opening for Stephen Glass?

As a former fact-checker, I find the LRB’s approach part puzzling and part offensive. As a citizen who would like to form judgements and opinions on the basis of actual information, I’m horrified.

Hersh’s and LRB’s offense isn’t simply against their readership—against whom they have almost certainly perpetrated a fraud. It is also a reckless attack on Western interests and American foreign policy. The story seems designed inflame anti-American sentiment and to exacerbate tensions with a ficky, unstable and nuclear-armed ally. Can you imagine the fury within Pakistan—against their government and its always fragile security cooperation with the West—when sizeable numbers of citizens become convinced Pakistan was complicit in an American ground forces incursion, in exchange for cash?

Difficult as it is to imagine, some professional journalists stationed in the region seem ready to believe Hersh’s fantasy. And in a region particularly susceptible to conspiracy theories (especially of the anti-American variety), a story like this is like dropping a lit match into a pile of flax—especially when that story is published by a prestigious Western outlet and written by an eminent American journalist. (“See, even the Americans think it’s true!”)

Journalists frequently publish stories with the potential to cause sizeable damage to American foreign policy. These are often close calls, but they are justified because the stories are solid and the public has a right to accurate, well-sourced information with which to hold their leaders accountable. But when a “revelation” lacks credibility, we are left with the worst of both worlds: The damage to the national interest is extensive—and without a shred of democratic benefit.