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Obama’s Surprising War Powers Legacy

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Wednesday, October 15, 2014 at 8:56 AM

We have an essay in The New Republic titled Obama, Not Bush, Is the Master of Unilateral War.  It argues that President Obama, ironically in light of his own lofty rhetoric about lodging war decisions with “the people’s representatives” in Congress, has through his practices created new precedents that push outward the boundaries of unilateral presidential powers to initiate military conflict.

The Obama administration’s war powers pronouncements – backed up by actions – have included broad unilateral powers to launch humanitarian interventions; a narrow reading of the War Powers Resolutions’ limits so as not to apply to large-scale air strikes; and a stained reading of the 2001 AUMF that extends it to justify a new phase of the war against al Qaida.  These legal these moves go hand-in-hand with (or stem from) the Obama administration’s decisionmaking approach to military force that is ad hoc and disorderly, emphasizes air strikes over other military strategies, and fails some basic tests of leadership.

We maintain that Obama’s precedents “will constitute a remarkable legacy of expanded presidential power to use military force.”  And we conclude, in part:

These developments raise the stakes for what Obama does with his final two years in office, and whether his legacy will stand for something more than political expediency on war powers issues. Now that it is clear American forces will be fighting transnational terrorist organizations well into the future, will the president finally engage Congress in a serious way to establish a durable legal framework? Or will he continue to formulate ad hoc, unilateral responses as each legal issue related to war powers arises?

Obama’s legacy will look quite different if, after the midterm elections, he seeks and receives congressional authorization for the use of force against IS, especially if he also works with Congress on a framework statute that updates the 2001 AUMF to deal with the many emerging threats around the world in a principled, transparent manner with prudent limits. The president has always seemed to want to avoid doing anything that would place his fingerprints on extending the “war on terrorism.” But his fingerprints are all over such an extension already. His legacy would be significantly improved if he embeds that extension in a new legislative framework that is respectful of the separation of powers.

Government Files Response in Hatim v. Obama

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Tuesday, October 14, 2014 at 4:30 PM

Today the government filed a short response to the detainees’ petition for an en banc rehearing in Hatim v. Obama, the Guantanamo counsel-access case.

Recall that last month the D.C. Circuit ordered the United States to respond to a joint motion filed by Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif. The detainees are seeking review of a three-judge panel’s August 1, 2014 decision reversing D.C. District Chief Judge Royce Lamberth, who ruled back in July 2013 that Guantanamo security procedures, including genital searches before and after detainees meet with their lawyers, unconstitutionally interfered with detainees’ access to counsel.

Petitioners argued that Chief Judge Lamberth was correct in finding that (1) the deferential Turner v. Safely standard for determining the constitutionality of prison regulations was inapplicable to policies that burden detainees’ access to habeas counsel, and (2) the security procedures fail the Turner standard.

In its new filing, the government refutes both points, contending that the three-judge panel (1) was correct in holding that Turner applies to the military detention context and to habeas claims, and (2) appropriately deferred to Guantanamo officials’ assessment of the prison’s security needs in determining the contested polices meet the standard.

For background on the proceedings, check out our summary of the petitioners’ brief.

 

CDT Event this Evening on “Databuse”

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Tuesday, October 14, 2014 at 2:55 PM

This will be an interesting event this evening. The Center for Democracy and Technology is holding a discussion of a paper Wells and I recently published entitled, “Databuse and a Trusteeship Model of Consumer Protection in the Big Data Era.” CDT is describing the event as follows:

Please join the Center for Democracy & Technology and The Brookings Institution for a discussion on the concept of “databuse” and the notion that our traditional definition of privacy can no longer bear the weight that “big data” places upon it.

Benjamin Wittes and Wells Bennett coined the phrase “databuse” in a recent paper to address the overuse of the term “privacy” to broadly define rights that are have become much more nuanced and complicated in the era of big data. The paper investigates policy arguments and solutions to protecting our right against infringement of personal data.

Wittes and Bennett will discuss their paper, with CDT’s Justin Brookman providing commentary on privacy rights in today’s digital age. The group will explore the deep roots of privacy in American thought and policy, as well as current data practices and privacy concerns.

Loft at F, 600 F Street NW, 3rd Floor, Washington, DC 

Tuesday, October 14, 2014 from 5:00 PM to 7:00 PM

Ask Wells

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Tuesday, October 14, 2014 at 2:18 PM

The name of this New York Times feature makes me think Lawfare should have a Q&A/Advice/Ombudsman/Ask-Me-Anything type column and that it really should be written by our managing editor, Wells Bennett. We’re going to call it: “Ask Wells.” Got a pressing national security law question? Ask Wells. Got a complaint about LawfareAsk Wells. Need relationship or professional advice? Ask Wells. Need to know if your contemplated military action complies with the separation of powers or international law? Ask Wells. Got a question about the D.C. oughties music scene? Ask Wells. If you send good, interesting, or intelligent questions, Wells Bennett will take this role way too seriously and post answers.

Today’s Headlines and Commentary

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Tuesday, October 14, 2014 at 1:42 PM

What a mess. As we write, ISIS is shelling Kurdish defenders inside the town of Kobani; a U.S.-led coalition is bombing ISIS in the areas around Kobani; and the Turkish military (which is nominally a part of the coalition, but which has so far refused to intervene against ISIS), is targeting Kurdish PKK fighters in eastern Turkey. The question we face today: can the center hold?

Today, Reuters brings us news that Turkey has bombed Kurdish PKK militants inside eastern Turkey. The Turkish paper Hurriyet reports that the bombing was in response to the “assassination, armed incidents, and attacks on security bases” that followed violent protests across the country last week.  The latter had to do with fear on the part of Turkey’s Kurdish population that Kobani was close to falling. The airstrikes are the first since 2013, when the Turkish government initiated a peace process with the PKK – a designated terrorist organization, but also a critical ally of the YPG forces protecting Kobani.

Last week’s protests arose after Turkey refused to allow aid from Turkey’s Kurds to enter Syria and help save Kobani. Iraqi Kurds voiced similar concerns, suggesting that they will be unable to send reinforcements to Kobani unless Turkey opens a supply corridor.

Renewed violence in Turkey sparks new fears that civil wars in Syria and Iraq could sow further instability in the broader Middle East. The Wall Street Journal has more on Turkey’s difficult decision wherein it “must either reverse decades-old state policy by backing Kurdish defenders of Kobani whom Ankara deems terrorists, or it must refuse all but humanitarian aid and risk inflaming tensions among Kurds” across the region.

Read more »

Why Glenn Greenwald’s Challenge is Asking the Wrong Question

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Tuesday, October 14, 2014 at 8:36 AM

Over at Vox an admiring article appears on a challenge that Glenn Greenwald is giving to people who think they have nothing to hide:

The most common defense for the massive expansion of government surveillance programs since 2001 is that they only negatively affect people who have something to hide. In a recent TED Talk, Glenn Greenwald, the journalist who first published documents leaked by Edward Snowden, made the case that the government’s invasions of privacy have a much broader effect than catching and curtailing terrorist or criminal activity.

Greenwald argued the people who claim they have nothing to hide don’t actually mean it. He pointed to Google CEO Eric Schmidt and Facebook CEO Mark Zuckerberg as examples of powerful people who previously defended government and corporate invasions of privacy but have also taken steps — refused to talk to some media, or bought massive properties to make outside snooping more difficult — to protect themselves from peering eyes.

“All of us have things to hide,” Greenwald said. “There are all sorts of things that we do and think that we’re willing to tell our physician or our lawyer or our psychologist or our spouse or our best friend that we would be mortified for the rest of the world to learn.”

Greenwald has devised a challenge for people that tell him they don’t worry about their privacy because they have nothing to hide: He asks them to send him all their email passwords and allow him to look through and publish anything he finds interesting. “After all, if you’re not a bad person, if you’re doing nothing wrong, you should have nothing to hide,” Greenwald quipped. “Not a single person has taken me up on that offer.”

Greenwald makes this point in his recent book, No Place to Hide, as well, and I have to say, it’s a lemon of an argument. For the record, I don’t make the argument that I don’t mind robust surveillance authorities because I have nothing to hide. I don’t make it because it is reductionist and conveys too simple a sense of privacy. I think, for example, that I have little to hide from law enforcement or the intelligence community. But I’m sure I have lots to hide from identity thieves, people who would use my email account to spread spam, and probably from folks like Greenwald, who would use my emails to embarrass me.

Indeed, when people make the argument that they don’t fear government surveillance because they have nothing to hide, they are generally not contending that they have no secrets they want to keep from anyone or that they want their entire lives exposed to the public. People who genuinely believe that install webcams in their bedrooms. The claim that one has nothing to hide is not a claim that one’s dignity could survive malicious intrusion by a reporter devoted maximally to embarrassing one with full access to one’s stuff. It’s not a claim either that the Stasi couldn’t find something on one.

The claim, rather, is more modest. It’s a claim that one does not fear law enforcement and intelligence entities operating within their lawful powers as set by democratic institutions, subject to constitutional constraint, and faced with competing priorities. It’s a statement that one has a basic comfort level with the power of these entities to collect material because one believes the laws and rules will protect one if followed and one believes as well that they will be followed. It’s a statement that the speaker believes that no rational intelligence or law enforcement agency would devote energy to investigating the speaker, because he or she hasn’t done anything worth the attention of those agencies—being basically a law-abiding person in a world full of serious law enforcement intelligence threats. And it’s a statement of comfort with the fact that should one’s material be swept up in the course of investigations of others, that would be a bummer—but one the speaker’s dignity could survive because it’s not juicy enough to spark sustained interest. In other words, it’s a statement of belief on the speaker’s part that the collection powers of the state will not be maliciously directed against the speaker.

This belief may or may not be right. It may be delusional. It may well be too complacent. But it does not challenge it at all to offer—as Greenwald’s challenge offers—to go maliciously through the speaker’s stuff and publish anything interesting. I live in daily comfort that the D.C. police are not going to break down my door, raid my house, and go through all my stuff. If Greenwald came to me and challenged me, based on this fact, to let him into my house to go through all my stuff, I wouldn’t see this as remotely challenging my belief that I am basically secure from unreasonable searches. I would see it as a kind of daft non-sequitur.

On the Latest Intercept Story

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Monday, October 13, 2014 at 10:03 PM

You may not have read much about the latest big scoop in The Intercept, released Friday evening under the bylines of Peter Maass and Laura Poitras and headlined “Core Secrets: NSA Saboteurs in China and Germany.” There have not been a lot of media organizations following the story. This might be due to the infelicitous timing of its release: the Friday before a long weekend is never a great time for a news break. There might also be a simple element of Snowden fatigue at work too.

I suspect the real reason, however, is that the story is a kind of extreme example of a type of piece into which many other Snowden stories over the past few months also fit. It’s a type of story that would fit comfortably under a headline like “Spy Agency Spies on People in Fashion that Does Not Violate Law” or “NSA Does Exactly What You Would Imagine.” Eventually this gets old—even for a press hyperventilating for tiny crumbs of the Snowden story. Eventually, apparently, is now.

The story opens: “The National Security Agency has had agents in China, Germany, and South Korea working on programs that use ‘physical subversion’ to infiltrate and compromise networks and devices, according to documents obtained by The Intercept.”

Hmmmm. Let’s think about that. The Intercept is breathlessly reporting that the NSA, a signals intelligence agency devoted to collecting foreign intelligence, has operatives in three foreign countries infiltrating networks and devices. Yeah, that sounds about right.

The story goes on: “The documents, leaked by NSA whistleblower Edward Snowden, also indicate that the agency has used ‘under cover’ operatives to gain access to sensitive data and systems in the global communications industry, and that these secret agents may have even dealt with American firms.”

There’s a shocker: A clandestine spy agency has used “under cover” operatives to steal information. And those operatives may have “dealt with” American companies—whatever exactly that means. Imagine for a moment the converse story: that NSA has never used under cover operatives to gain access to sensitive data systems and never deals with American firms. Wouldn’t be much of a spy agency, would it?

The meat of the piece is a series of documents that Maass and Poitras describe with a kind of intel porn reverence for program names and classification markings: “The documents describe a panoply of programs classified with the rare designation of ‘Exceptionally Compartmented Information,’ or ECI, which are only disclosed to a ‘very select’ number of government officials.” But when Maass and Poitras describe what these documents contain, it’s all stuff you already knew:

documents published today by The Intercept suggest that even as the agency uses secret operatives to penetrate them, companies have also cooperated more broadly to undermine the physical infrastructure of the internet than has been previously confirmed.

In addition to so-called “close access” operations, the NSA’s “core secrets” include the fact that the agency works with U.S. and foreign companies to weaken their encryption systems; the fact that the NSA spends “hundreds of millions of dollars” on technology to defeat commercial encryption; and the fact that the agency works with U.S. and foreign companies to penetrate computer networks, possibly without the knowledge of the host countries. Many of the NSA’s core secrets concern its relationships to domestic and foreign corporations.

The story is long. I’m sure the documents it reveals contain sensitive information. I’m equally sure, however, that I didn’t learn much by reading the piece. That tells you something.

 

New Yorker Profile of Laura Poitras

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Monday, October 13, 2014 at 9:24 PM

I have just read George Packer’s profile of Laura Poitras in the New Yorker, which centers around her new, long-awaited film about Edward Snowden. The film, due for release October 24 and called Citizenfour, is the next scheduled act in the Snowden drama. I’ll reserve comment on the film until I’ve seen it. The Packer article, however, is worth reading. It’s a vivid portrait of Poitras and her filmmaking that’s also a portrait of the group of people surrounding her in Berlin. It opens

From the garden terrace of a sixth-floor walkup on a quiet Berlin street, there was a clear view to the TV Tower, in Alexanderplatz. The tower, completed by the East Germans in 1969, once served as the biggest symbol of a regime that maintained its power by spying relentlessly on its citizens. It’s now a piece of harmless Cold War kitsch—a soaring concrete column with a shiny top resembling a disco ball. On the front door of the apartment somebody had affixed a sticker that mimicked the visual style of the “Hope” campaign poster for Barack Obama, with the words “Ein Bett für Snowden” (“A Bed for Snowden”) next to the face of the world’s most famous fugitive. The sticker was part of a movement advocating that Edward Snowden, who is living in exile in Russia, be given political asylum in Germany. The apartment’s interior had been turned into a film studio, where Laura Poitras—the maker of documentaries who, last year, helped Snowden leak documents exposing the fact that the National Security Agency collects huge amounts of data on United States citizens—was in the final days of a three-year project about surveillance in America.

Poitras was the first person to learn of Snowden’s trove of files, in early 2013, and for months it remained their secret. From the beginning, the language of their correspondence was heightened. Snowden wrote to Poitras, “You asked why I chose you. I didn’t. You chose yourself.” He was referring to films of hers that were critical of the war on terror—in particular, a short piece on an N.S.A. whistle-blower named William Binney. That June, they met in a hotel in Hong Kong, and Poitras made and released a twelve-minute video in which Snowden introduced himself to the world. Since then, he has given numerous interviews, and the journalist Glenn Greenwald, Poitras’s reporting partner on the story, has published a book. But Poitras, guarding her privacy, has said very little while she has finished work on her film. Anticipation kept building, and it was global news when the Film Society of Lincoln Center announced that it would present the première, on October 10th. (A wider release follows, on October 24th.)

Poitras is fifty years old, with brown eyes that habitually have a look of alarm, as if she were staring at something from which she wanted to escape. Her features—strong nose; sensitive mouth; a long wave of dark hair, parted in the middle—bring to mind a Victorian artist, a woman of character whose intensity is kept under wraps. Inside the studio, the atmosphere was discreet and tense: thoughts were conveyed in shorthand, words were swallowed, sentences trailed off. This is Poitras’s style, and her small team of collaborators followed her lead. The group was international, and included an American co-producer, Katy Scoggin; a German producer, Dirk Wilutzky; and his French-American wife, Mathilde Bonnefoy, who served as Poitras’s editor. They worked on computers with high levels of encryption, memorized extremely long passwords that were frequently changed, left their phones outside, and shut the windows in rooms where sensitive conversations took place. They were compressing ten weeks of work into less than a month, in time for the première.

Today’s Headlines and Commentary

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Monday, October 13, 2014 at 4:11 PM

The ISIS siege on Kobani appears to have failed–for now. While the flashpoint city continues to struggle with ISIS counterattacks, it appears that the Kurdish peshmerga, with the help of coalition airstrikes, has driven the militant group back for the moment. The Associated Press brings us a first-hand account from Kurdish soldiers of the “fierce battles” still raging through the city’s streets.

On Sunday, Defense Department officials claimed that the US had broken a deadlock with Turkey, claiming that the latter would allow coalition troops to use its bases for airstrikes. The New York Times reports that from a strategic standpoint, such a willingness is significant; Turkey boasts installations “within 100 miles” of the Syrian border. Earlier, Defense Secretary Hagel specifically mentioned coalition access to Incirlik Air Base as being key to the war effort.

But did Washington speak too soon? According to the Times, Ankara on Monday appeared to refute the US, saying they had not agreed to allow coalition planes to use Incirlik, and that talks were still ongoing. Hurriyet and the BBC report that Turkey did however agree to allow the training of moderate Syrian rebels on its soil.

Turkey’s reluctance to intervene in the conflict against ISIS threatens to reignite the country’s long-simmering conflict with Kurdish separatists in its southeastern region, the New York Times reports. The P.K.K., which has fought a decades-long war against Ankara and forms the backbone of Kurdish resistance against ISIS in Kobani, vowed that “if Turkey does not help the embattled Kurdish forces” in the city, “they will break off peace talks and resume their guerrilla war” with the country.

The ISIS-inspired violence continues to rage in Iraq as well, where the police chief of Anbar province, Major General Ahmed Saddag, was killed by a roadside bomb. The Washington Post reports that ISIS militants are close to “full control” over the vital province; ISIS fighters seized their third Iraqi army base in as many weeks near the town of Hit, and are threatening Ramadi, the provincial capital, as well as “Iraq’s second-largest dam at Haditha.” Anbar was not the militants’ only target: the BBC writes that in eastern Diyala province, 22 Kurdish soldiers were killed in a “triple car bomb attack.” This followed car bombs on Saturday that killed 38 people in “mainly Shia areas” of Baghdad, meaning “at least 75 people have been killed in attacks in various Iraqi cities this weekend.”

Perhaps most ominously, ISIS fighters are currently battling Iraqi forces for control of Abu Ghraib, which is located only 18 miles from Baghdad’s Green Zone. Bloomberg has more.

In the face of these advances, and continuing US refusal to commit ground troops in the region, what can be done to defeat ISIS? According to Foreign Policy, former Blackwater CEO Erik Prince has the answer: “American mercenaries.”

At the National Journal, Laura Ryan asserts that ISIS is better at using the internet than al Qaeda in three important ways: 1) ISIS more successfully recruits members using social media, 2) al Qaeda relies on older internet platforms, and 3) ISIS videos glorify extreme violence in their videos.

Wondering how much the US is spending on the air operations in Iraq and Syria? According to Tony Capaccio at Businessweek, the Pentagon is shelling out $7.6 million on the campaign - per day. Still, if Iranian Supreme Leader Ayatollah Ali Khameini is to be believed, the US has no one to blame but itself for the increasing cost of the conflict.

Over at Foreign Policy, John Hudson reports that President Obama has yet another new critic: the Syrian Observatory for Human Rights, which has lambasted the US over the number of civilian deaths due to the coalition’s airstrikes.

ISIS is arousing fear far beyond Syria and Iraq. The Washington Post writes that in Jordan, the monarchy has reacted to ISIS’s advances with a sweeping new anti-terror law that outlaws “any open activity, recruitment or support for the Islamic State.”

The Post also has a fascinating graphic illustrating where ISIS is pulling most of its foreign recruits from. Hint: North African countries are punching above their weight.

Finally, amid the daily death tolls and drone’s-eye-view perspective, it is important to keep an eye on the human cost of ISIS and the larger Syrian Civil War. The Post provides a snapshot of 18 stories from the Syrian exodus, which is now greater than 3 million.

Elsewhere in the world, the New York Times reports that a “mob of masked men opposed to Hong Kong’s pro-democracy demonstrators” assaulted the protest zone in the city’s financial center, “tearing down barricades and clashing with police.” As the protests against the local government and its patrons in Beijing enters its third week, demonstrators are attempting to rebuild the barricades and “keep up momentum.”

In Foreign Policy, Dalena Wright argues that the current instability in Hong Kong has its roots in the “sour deal” made between the UK and China decades ago, and that the pact continues to undermine proper governance in the semi-autonomous city.

Also, the Washington Post reports that in response to the pro-democracy protests in Hong Kong, Beijing has released new censorship orders that target “books by scholars considered supporters of the demonstrators.” The orders can be found here.

In Eastern Europe, Agence France-Press reports that Russian President Vladimir Putin ordered 17,600 troops to pull back from the country’s border with Ukraine. Amid reports that “pro-Moscow rebel attacks had subsided,” the article notes that Putin will meet Ukrainian President Petro Poroshenko for talks in Milan on Friday.

Russia’s economy continues to convulse in the wake of Western sanctions, and Businessweek reports that in response to the pressure, rival factions have broken out in the Kremlin. According to the article, the faction concerned about Russia’s “increasing alienation from the global financial system” is centered around Prime Minster Dmitriy Medvedev, while another group including close Putin allies “favors greater state control over the economy.” However, the state may be running out of options: Businessweek quotes Russian Central Bank head Elvira Nabiullina as saying that “if currency markets continue to turn against the ruble,” the central bank ‘won’t be able to restrain them.” Russia has burned through $6 billion of its international reserves in the last ten days to prop up the ruble and $55 billion since January, leaving $452 billion left.

Also, the Russian and Chinese governments are meeting today in Moscow. Here is a list of the plans to be inked, courtesy of the Kremlin.

UN Secretary General Ban Ki-Moon visited Ramallah today and harshly criticized Israeli settlements in front of his Palestinian hosts. At a later joint press conference in Jerusalem with Israeli Prime Minister Benjamin Netanyahu, the latter responded in kind, blasting the UN in front of its leader.

According to Yediot Achronot, the tit-for-tat came just days after a donor’s conference for Gaza ended in Cairo, where “international powers outperform[ed] Abbas’ expectations” and raised more than $5.4 billion for the reconstruction of the Strip. Gaza is still reeling in the aftermath of Hamas’ summer war with Israel, which cost over 2,200 lives and billions of dollars in property damage.

In the Yemeni capital of Sanaa, a suicide bomb attack against Shia Houthis killed 47 people. A similar blast at a checkpoint in Hadramawt left 20 soldiers dead. According to the BBC, the attacks come as the country’s political deadlock continues and Houthis consolidate their control over the capital.

In Afghanistan, Taliban militants ambushed and killed at least 22 “security force members” in northern Sar-e-Pol province. The BBC reports that at least 22 insurgents were also killed in the firefight.

If the exit polls are to be believed, Evo Morales will cruise to a third straight term as Bolivia’s President. The BBC writes that analysts predict him to collect up to 60% of the votes, compared to his closest challenger’s 25%.

In a Sunday interview with CBS, Michael Hayden, the former director of the NSA, criticized the legal proceedings involving New York Times reporter James Risen—“one of the most prominent examples of the Obama administration’s crackdown on national security leaks,” according to Foreign Policy. Read more.

On the topic of the NSA, new documents released by the Intercept appear to show that the NSA conducted operations inside countries like “China, Germany and South Korea” that helped to “physically subvert and compromise foreign networks and equipment.”

At Wired, Andy Greenberg shares the first emails Edward Snowden sent to Laura Poitras as he prepared to undertake an “unprecedented” leak of classified documents.

Finally, the BBC reports on the newest controversial surveillance device: a manned plane that can can “view and record everything that is happening on the ground” across a 25 square mile area. While police forces are “excited” by the new technology, privacy campaigners are less than thrilled.

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.

End of “Forever War” Watch, Columbus Day Weekend Edition

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Monday, October 13, 2014 at 3:35 PM

Last year President Obama called for the end of the 2001 AUMF conflict and wagged his finger at people who thought continued statutory authority was needed to meet the continuing and morphing Islamic terrorist threats.  You know the lines.  “I will not sign laws designed to expand this [2001 AUMF] mandate further,” and “this war, like all wars, must end.”  Since the President’s speech many others have mapped out ways to end “the Forever War.”

The rise of the Islamic State, the U.S. campaign against it, and the broad extension of the 2001 AUMF to legally justify the campaign, all appear to have dashed the realistic likelihood of ending the “Forever War” any time soon.  How long will the campaign take?  Within the administration, the talking point appears to be “long-term.”

Secretary of Defense Hagel, Saturday, on the campaign against the Islamic State: “It is a long-term effort. This is difficult, it is complicated. It’s going to require many factors.”

National Security Advisor Susan Rice, yesterday, on the same matter:

We are in the midst, in the early stages, as you– acknowledged, of what is going to be, as President Obama said, a long-term effort. Let’s recall what it is we’re trying to do. We’re trying over time to degrade and ultimately destroy ISIL and prevent it from having permanent safe haven, from which it can conduct terrorist attacks against us or our partners in the region from the territory of Iraq or Syria.

Now this is going to take time. Our efforts have various different lines of effort, as we’ve called them. On the one hand, we’re trying to build up the capacity of the Iraqis, which means the Iraqi army, the Kurds, the peshmerga inside of Iraq who have over years, atrophied. They’ve become more sectarian. They’ve become less skilled in their ability to take the fight to ISIL. . . .

So this is going to take time. Our air campaign is off to a strong start and we’ve seen very important successes in places like Mosul Dam, Sinjar Mountain, where we were able to rescue many tens of thousands of civilians at risk. And this is going to take time. So it can’t be judged by merely what happens in one particular town or in one particular region. This is going to take time and the American people need to understand that our aim here is long-term degradation and building the capacity of our partners.

Jane Mayer Interviews Edward Snowden

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Monday, October 13, 2014 at 11:18 AM

From the New Yorker:


 

The Week That Will Be

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Monday, October 13, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Tuesday, October 14th at 8 am: The United States Institute of Peace hosts a discussion entitled Afghanistan Reconnected: Regional Economic Security Beyond 2014. Speakers will include Andrew Wilder, James Creighton, Phillip Ackermann, Youssef al-Otaiba, Jonathan Carpenter, among others. For more information, visit the USIP event announcement.

Tuesday, October 14th at 9:30 am: Shadi Hamid, Emad Shahin, and Alex Thurston will speak at Georgetown University on Boko Haram, ISIS, and the Caliphate Today. Together, they will delve into the confusing overlapping language of political Islam. More information here.

Tuesday, October 14th at 10 am: The Bipartisan Policy Center hosts a conversation on the latest developments in the complicated conflict near Kobani, in an event entitled ISIS, the Kurds, and Turkey: A Messy Triangle. Ambassador Eric Edelman, Dr. Henri Barkey, and Dr. Svante Cornell will speak in a discussion moderated by Blaise Misztal. RSVP here.

Wednesday, October 15th at 9:30 am: At the Phoenix Park Hotel, the Middle East Policy Council will host a conversation on The Israeli-Palestinian Conflict: Has the U.S. Failed? Daniel C. Kurtzer, Matthew Duss, Natan B. Sachs, Yousef Munayyer will participate in a panel moderated by Omar M. Kader and Thomas R. Mattair. To register or follow the livestream, visit here.

Wednesday, October 15th at 3 pm: At American University, Professor Akbar Ahmed, Susan Glasser, David Ignatius, David Gregory, and Dean Jim Goldgeier will provide remarks on Fighting ISIS: The Future of American Foreign Policy in the Middle East. Register here.

Thursday, October 16th at 12 pm: The ascent of the Islamic State has raised critical questions about how terrorist organizations are being financed, and in turn, what lessons for prevention can be learned from the similarities and differences in global terrorist funding efforts. At the Middle East Institute, Dr. Amit Kumar and Dr. Marvin Weinbaum will tackle those issues, offering a comparative assessment of Terrorist Financing Networks in the Middle East and South Asia. RSVP here.

 

Employment Announcements (More details on the Job Board)

Senior Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence

JOB ANNOUNCEMENT NUMBER: 16871

SALARY RANGE: $124,995-$157,100 / Per Year
OPEN PERIOD: Sept. 11, 2014 to Sept. 11, 2015
POSITION INFORMATION: Permanent
DUTY LOCATIONS: McLean, VA
WHO MAY APPLY: US Citizens
SECURITY CLEARANCE: Top Secret/SCI with CI

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 expert legal advice and guidance to senior ODNI leadership on complex areas of law affecting ODNI’s duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.
  • Provide expert legal counsel to support the development, review, and preparation of US Government-wide policies, procedures, guidelines, rules, and standards.
  • Counsel clients, including senior ODNI leaders, on complex legal issues and provide innovative and highly effective guidance on possible courses of action; expertly prepare complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.
  • Provide timely reviews of planned ODNI and IC activities for compliance with the Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief ODNI leaders on potential legal and policy issues, and develop solutions to address difficult legal problems having potential high-level or large-scale impact on the ODNI’s or the IC missions and activities.
  • Provide expert briefings and advocate for ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; cogently brief senior ODNI leaders on legal issues that relate to or effect ODNI and IC activities.

For more information and for directions on how to apply, please visit the employment announcement.

The Fox-DOJ Subpoena Fight: A Summary in Documents

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Sunday, October 12, 2014 at 10:03 PM

In July 2009, Mike Levine, a reporter for Fox News, broke a story about federal prosecutors secretly filing terrorism charges against a group of Somali-Americans in Minneapolis who were recruited to join Al Qaeda-linked groups in Somalia. Levine’s story was based on confidential information leaked to him by various unidentified government officials.

In January 2011, a federal subpoena landed on Mr. Levine’s desk which “commanded” him to appear, testify, and reveal his sources before a grand jury. The DOJ had begun a hunt for government leakers and Levine’s sources were in the crosshairs. Newly unsealed court documents now shed light on the legal battle waged by Levine to protect his sources and the DOJ to uncover them.

Levine eventually lost his legal battle with the DOJ. In July 2011, Judge Lamberth denied Levine’s motion to quash the subpoena. But Levine did not testify: the DOJ dropped the matter in April 2012 without explanation.

Here’s a summary of the arguments in the matter. Read more »

Read Out: Hearing on DOJ’s State Secrets Claim in Restis v. UANI

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Sunday, October 12, 2014 at 4:00 PM

The transcript of Judge Edgardo Ramos’ Wednesday hearing in Restis v. United Against Nuclear Iran (“UANI”) is in—and full of fascinating questions about the government’s use of the state secrets privilege.  

As we reported earlier, the case is notable because the government took the unusual (though not completely unprecedented) step of intervening in a private lawsuit to assert the privilege.  The move provoked a flurry of speculation in the press: as New York Times reporter Matt Apuzzo wrote, “If United Against Nuclear Iran possesses American classified information, it is not clear how the group obtained it. Government intelligence agencies are prohibited from secretly trying to influence public opinion.” In a September 12th motion, the government first asserted the privilege and asked for dismissal of Restis’ lawsuit. In response, the plaintiff sought leave to file a motion to have the government to furnish further factual background its filing.

A blow-by-blow read out of the hearing—digested from the transcript—follows below.  In short, on Wednesday Judge Ramos considered argument from lawyers for both Mr. Restis’ and the United States as to whether the government’s assertion of the privilege in these circumstances is a novel one.  Additionally, the court requested more briefing on possible alternatives to dismissal, and on the First Amendment implications of the injunctive relief sought against UANI.

Read more »

Hawk v. Drone

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Sunday, October 12, 2014 at 2:10 PM

Excellent!

The Foreign Policy Essay: Hearts, Minds, & ISIL

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Sunday, October 12, 2014 at 10:00 AM

Editor’s Note: The return of U.S. military advisors to Iraq and U.S. airstrikes against the Islamic State in Iraq and the Levant have dashed hopes that the United States would be able to put the latest counterinsurgency era behind it as U.S. forces draw down in Afghanistan. As it finds itself fighting an insurgency once again, the United States should dispel the myths of past campaigns. The accepted wisdom is that victory in a counterinsurgency campaign requires winning the goodwill of the local population: commonly referred to as winning “hearts and minds.” Yet it is unclear whether this wisdom really holds true. Raphael S. Cohen of the RAND Corporation contends that winning hearts and minds does little to help counterinsurgents win and that the U.S. military can and should focus on defeating ISIL forces militarily and not on winning over the population.

***

With the decision to combat the Islamic State in Iraq and the Levant (ISIL), the United States is once again fighting an insurgency. The United States is loath to admit this fact, preferring to label its actions somewhat differently—as a “comprehensive and sustained counterterrorism strategy.” And yet the fact remains that ISIL—with an organization that numbers tens of thousands strong, controls territory, mobilizes the population, and seeks to overthrow and replace a constituted government—fits most definitions of an insurgency. Though it also behaves at times like a terrorist group, it is nonetheless an insurgency. The challenge facing the United States is what to do about it.

The most prominent strategy for how to counter an insurgency is “to win hearts and minds.” Popularly attributed to Field Marshal Sir Gerald Templer’s Malayan Emergency campaign against communist insurgents shortly after World War II, the term actually dates at least as far back as the American Revolution and has regularly been used to describe strategies against insurgencies ever since. Indeed, the term even made an appearance in President Barack Obama’s recent United Nations speech.

Raphael-Cohen-Photo“Hearts and minds” as a strategy rests on the assumption that any insurgency’s lifeblood is its access to the population, who provide it with fighters, resources, and intelligence: in sum, everything the insurgency needs to survive and thrive. Combating an insurgency, therefore, requires wooing the population—the majority of whom are believed to be neutral or at least passive—away from the insurgency and over to the government side, often by providing political and economic incentives. Once the battle for popular opinion is won, they will provide the government with the information it needs to effectively prosecute these wars and the insurgency, starved of support, will wither away.

There are at least two problems with the “hearts and minds” logic. First, most of the population may not be open to persuasion. Violence—and its corresponding emotional toll—tends to entrench people’s views of the combatants, leaving relatively few undecided and persuadable. Moreover, changing loyalties mid-conflict can be a dangerous proposition, as those who do so are often branded turncoats or collaborators. Economic inducements, political reforms, and other such “carrots” seem paltry in comparison to matters of life and death. As a result, many may only be willing to take such a risk after the conflict’s outcome has already been decided.

Second and more problematic, even if the counterinsurgents can persuade a majority of the population to change sides, it may not matter much to the conflict’s outcome. Insurgencies do not require overwhelming popular support for their efforts to thrive. For example, while it is difficult to tell how much genuine support there is for ISIL, even if one takes the high-end estimates of ISIL’s strength, some 31,500 according to publically-released intelligence estimates, this would still be a tiny fraction of the populations of Syria and Iraq. ISIL’s passive support base likely is also smaller than often believed. Much of its wealth is believed to come from looting lucrative assets throughout the territory it controls and coercing the hapless minorities under its control into paying “taxes” rather than voluntary contributions. Read more »

What Will U.S. Troops in Baghdad Do When Islamic State Militants Arrive?

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Saturday, October 11, 2014 at 4:01 PM

There are several stories today about how Islamic State militants are threatening Baghdad.  Some of the stories suggest that “an all-out assault on Baghdad” may be in the cards, while others say that the militants will instead simply “wreak havoc” on the city from its western edge.  Whichever is right, Islamic State forces are threatening Baghdad itself.

President Obama has pledged that he will not put American boots on the ground in order to degrade and destroy the Islamic State.  But he has already sent 1000-1500 troops to Baghdad to provide (in the words of a June 30 letter to Congress) “support and security for U.S. personnel and the U.S. Embassy in Baghdad.”  And so quickly the question is becoming:  What will the U.S. boots on the ground in Baghdad do if and when the Islamic State brings the fight to them?

Fresh Out of NCTC Office, Matthew Olsen Speaks at Harvard Law School

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Saturday, October 11, 2014 at 4:00 PM

Matthew Olsen, former director of the National Counterterrorism Center, stopped by Harvard Law School last week to offer his perspective on the changing nature of the terrorist threat. After giving a brief primer on the origins and goals of ISIL, Olsen tackled thornier questions: what is the United States’s strategy for dealing with ISIL and other emerging terrorist organizations—especially vis à vis boots on the ground—and what is its legal basis for action? Olsen says that he doesn’t see the threat subsiding in less than three years, but that this is a fight that the United States wants to enable Syria and Iraq to handle themselves, not one where the United States should take the lead in terms of boots on the ground. As for the legal basis question, Olsen agrees with the President as to the 2001 AUMF, while acknowledging that it is not a slam dunk argument. 

The Lawfare Podcast, Episode #95: Shivshankar Menon on India’s Role in the World

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Saturday, October 11, 2014 at 1:55 PM

On his recent trip to the United States, Indian Prime Minister Narendra Modi emphasized India’s desire to take up a greater role on the world stage. With India’s renewed ambition, it is increasingly important for policymakers to understand what that role may look like, how it is envisioned from the Indian perspective, and how the country views international developments. Great opportunity exists for improved bilateral relations that bring stability, increased trade, and future defense, intelligence, and counterterrorism cooperation in the region.

This week, Ambassador Shivshankar Menon, former national security adviser and former foreign secretary to the government of India, gave a speech at Brookings entitled, “India’s Role in the World.” In his address, Ambassador Menon discusses the new optimism in U.S.-India bilateral relations on the heels of newly elected Prime Minister Narendra Modi’s recent visit and how leaders can capitalize on this new momentum. Ambassador Menon also delves into India’s relations with Pakistan, Bangladesh, and other countries in the region, its evolving outlook on China, and what role, if any, India can play in countering violent extremism found in groups like transnational terrorist organizations like ISIS and al Qaeda .

Strobe Talbott, president of The Brookings Institution, introduced Ambassador Menon and moderated the discussion.

 You can also watch the full event below:

The Week That Was: All of Lawfare in One Post

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Saturday, October 11, 2014 at 9:55 AM

Jack continued to analyze the ISIS-AUMF controversy this week, and noted that history suggests Congress will only authorize force against ISIS “if the President proposes and pushes for an authorization (or screws up unilateral force badly).” Later, he argued here and here that the Obama administration violated the War Powers Resolution “unless it is right about the applicability of the AUMFs” to ISIS. He also responded to Ryan Goodman’s “hopeful take” on the possibility of ending the Forever War.

On Wednesday, Cody publicized the 11 “rules” ISIS recently issued to journalists in areas under its command.

This week, Wells and I attended the preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker, Abu Wa’El (Jihad) Dhiab. We composed a three-part readout of the courtroom proceedings, which can be found here, here and here.

Speaking of Dhiab, Jack analyzed Judge Kessler’s recent videotape order in the case and explained why it is “remarkable.”

Ben had the following to say about reports President Obama was considering a unilateral executive action to close Guantanamo: “I will believe this the day it happens, and not a moment before.”

Wells also analyzed these reports, and expressed skepticism about the possibility raised by the Journal’s Jess Bravin and Carol Lee: that President Obama could “sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief.”

John opined that the current rancor over closing Guantanamo is just the latest salvo in a “long-running partisan battle” over the issue.

Alex Ely noted that the Supreme Court did not just deny  certiorari in the same-sex marriage cases this week; it also rejected petitions in the Mehanna and Ali cases.

Jane announced that the Fourth Circuit affirmed the 2012 refusal to vacate the sentence in the United States v. Abu Ali case. She also noted that Ali Hamza Al Bahlul filed his reply brief this week in Bahlul v. United States, and summarized its arguments.

Ben shared videos of some recent NSA debates, including one at Georgetown entitled, “The NSA, Privacy & the Global Internet: Perspectives on EO 12333,” and one held by Intelligence Squared US, “Mass Collection of US Phone Records Violates the Fourth Amendment.”

Andy Wang shared the recent NSA report on civil liberties and privacy protections under EO 12333 and summarized its contents.

Jane noted that the plaintiffs in Klayman v. Obama filed their reply to the government’s response and reply brief. She also announced the beginning of oral argument in Under Seal v. Holder on Wednesday, and gave an overview of the trial so far.

Regarding the protests in Hong Kong, Paul Rosenzweig noted that Chinese cyberattacks against demonstrators are “incredibly sophisticated.” Not only that, but they are also targeting the popular Firechat app, which was thought to be relatively safe from government control.

Paul also linked to a few stories examining the national security implications of 3D printing technology.

In this week’s Steptoe Cyberlaw Podcast, Stewart Baker interviewed Rob Corbet, “a partner and head of the Technology and Innovation group in Arthur Cox, a large Irish law firm.” They discussed Ireland’s dynamic role in data protection issues and the replacement of the country’s longstanding data protection commissioner, among other topics.

Alex Ely noted Twitter’s recent suit against Attorney General Eric Holder, the DOJ, FBI Director James Comey, and the FBI, and summarized the internet giant’s complaints.

In this week’s Foreign Policy Essay, Joshua Rovner, an associate professor at Southern Methodist University, argued that exaggerating ISIS’s strength may have detrimental intelligence consequences and possibly augment their strength in the region.

In the 94th episode of the Lawfare Podcast (@lawfarepodcast), Jennifer Williams sat down with terrorism scholar Audrey Kurth Cronin to discuss ISIS, al Qaeda, and the “bloated counterterrorism bureaucracy that has emerged since 9/11,” among other topics.

Looking for a first-hand account of the Hong Kong protests? This week, Sophia Yan, a reporter at CNNMoney and Lawfare‘s official pianist, provided an inside look at the demonstrations rocking this semi-autonomous Chinese city.

As the Ebola epidemic has worsened in West Africa and spread to other countries, including the US, calls to screen passengers from “Ebola hot zones,” or shut down air traffic to them altogether, have increased. In light of this, Paul summarized the law and policy questions underlying “Ebola interdiction.”

Paul also linked to Department of Homeland Security Secretary Jeh Johnson’s recent speech on “Border Security in the 21st Century.”

Finally, Ben examined whether or not the controversial opera entitled, “The Death of Klinghoffer,” is anti-Semitic and/or justifies terrorism, as its detractors claim. His conclusion: it’s not, and it doesn’t.

And that was the week that was.