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Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED]

Saturday, September 13, 2014 at 6:57 AM

I always thought the 2002 AUMF was an obvious basis for air strikes against the Islamic State, easily in Iraq and possibly (given the right circumstances) in Syria.  Today Charlie Savage reports that “the White House believes that Congress’s 2002 authorization of the Iraq war — and not just the 2001 authorization to fight Al Qaeda — provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria.” (My emphasis.)  [Please see * below before reading bolded passage.] The use of the 2002 AUMF as a basis for force in Syria might seem a particular stretch.  But as I argued at the link above:

Also note that, in contrast to some previous AUMFs, the 2002 AUMF has no geographical limitation.  It authorizes force not in Iraq, but rather “against the continuing threat posed by Iraq.”  To the extent that the “continuing threat posed by Iraq” is today constituted by ISIS forces operating in tandem (and under a single military structure) in Iraq and Syria, the statute arguably authorizes the use of force against ISISin Syria.  Put another way, the 2002 Iraq AUMF arguably authorizes force against ISIS  in Syria if the President determines that such force is necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq.  It is not hard to imagine that the President could make that determination.

Despite the plausibility of the administration’s position on the 2002 AUMF, the position surprises me.  Just six weeks ago, at a time when the Islamic State threat in Iraq was crystal clear, National Security Advisor Susan Rice wrote a full-throated letter to the Speaker of the House asking the Congress to repeal the “outdated 2002 Authorization.”  I am also surprised because all summer, in seven WPR letters, the administration relied on Article II as the basis for the use of force in Iraq, and just two days ago we were told that the basis was the 2001 AUMF.

This obviously leads one to wonder how much the policymakers are coordinating with the legal team in advance.  Force has been used in Iraq against ISIL for over a month, and yet in the course of a week the administration has floated three different legal theories for the strikes.  In truth, it is possible that all three legal bases – Article II, the 2001 AUMF, and the 2002 AUMF – may support aspects of the operation (though I am most skeptical of the 2001 AUMF basis).  Why not just say that?  The administration needn’t choose, and when all three bases of support are combined, the legal case is strengthened.  (Such combined bases of support for uses of force are not unusual – Presidents often rely on both statutory authorization and Article II when engaging in military action).

UPDATE: Someone just pointed out that the administration’s statement to the New York Times says that it might rely on the 2002 AUMF, but only for Iraq, and also stated that the administration would still like to see the statute repealed.  I cannot fathom why the administration would contemplate relying on a statute as a legal basis for the use of force and at same time urge its repeal.

* I now think I misread Savage’s story when I interpreted it to mean that the administration might rely on the 2002 AUMF to use force against the Islamic State in Syria as well as Iraq.  Savage wrote: “the White House believes that Congress’s 2002 authorization of the Iraq war . . . provides a legal justification for President Obama’s air campaign against the Islamic State in Iraq and Syria” (my italics).  I interpreted the italicized phrase to mean that the administration would use the 2002 AUMF as a basis for attacking the terrorist organization named The Islamic State in the nations of Iraq and Syria.  But in light of the administration’s statement, I now understand that Savage in the italicized phrase was referring only to the name of the organization with the acronym ISIS, i.e. the Islamic State in Iraq and Syria.  The statement on its face is entirely ambiguous, and it suggests to me (fwiw) that the NYT should start calling the Islamic State by its self-proclaimed name.  But in any event, my apologies for the misinterpretation.  In light of my misinterpretation, the bolded phrase above is no longer pertinent, though the rest of the post is.

Today’s Headlines and Commentary

Friday, September 12, 2014 at 2:54 PM

The Wall Street Journal reports that the U.S. military has began setting in motion an expanded campaign against ISIS militants that will include airstrikes in Iraq and Syria, as well as military training for fighters in both countries. Defense officials said that operations will proceed gradually over the next several months, with the first step to build intelligence capabilities in Syria and to ensure U.S. military advisers are in necessary positions in Iraq.

For the first time, U.S. military advisers will move beyond the operations centers and into Iraqi divisions, directly planning missions and executing operations. Air strikes will likely target logistics hubs, training camps, and other high value locations.

News broke yesterday that retired Marine General John Allen will lead the broad international effort to rollback and ultimately destroy the Islamic State. According to the Associated Press, General Allen will be tasked with coordinating the efforts of nearly 40 nations who have agreed to contribute, at least in some way, to the effort. In the Washington Post, Dan Lamothe explains why General Allen is the “logical point man in the fight,” suggesting that his appointment is likely to be “greeted warmly at home and abroad.”

In late August, General Allen published an op-ed in Defense One entitled “Destroy the Islamic State Now.”

President Obama’s strategy also relies on Syrian rebels to serve as ground troops against ISIS. However, the New York Times reports that those Syrian rebels have loyalties that are hard to decipher, even within the groups, where infighting has been common. The Times explains that there are currently hundreds of militant groups fighting the government of Bashar al-Assad and one another, and unlike ISIS, these groups do not share the same command structure.

Indeed, the President’s proposal to arm and train the “moderate” militias in the region has left many from his own party scratching their heads. Politico reports that a number of senators from both parties have raised concerns about the viability of plans to arm moderate rebels, with several senators saying that, at this time, they would not support the proposal. Even so, the New York Times reports that Senate Majority Leader Harry Reid has promised a quick vote, while House Republican leaders will call members back to Washington a day early next week in order to authorize the military to train Syrian rebels.

More on authorizations below.

BBC also brings us news that the CIA has tripled its estimate of the number of fighters under the ISIS banner, bringing the estimated number of militants up to 31,000. In the Wall Street Journal, Representative Michael McCaul (R-TX) and Chairman of the House Committee on Homeland Security explains how “ISIS is recruiting America’s ‘Jihadi Cool’ crowd.”

Today, Secretary of State John Kerry is in Turkey in an attempt to push Turkish leaders to support military action against ISIS, the BBC reports. Yesterday, ten Arab countries agreed to support Washington in the fight against ISIS, but Turkey–despite its attendance at the meeting—was not on the final communique. Indeed, the general tone of allies in the region has been one of reluctancenotes the New York Times.

Except, perhaps, from Syria, who offered the most full-throated support of American intervention of any actor in the region, where the deputy foreign minister said that his government had “no reservations” about U.S. airstrikes since the two countries are “fighting the same enemy,” but cautioned that arming the rebels would be a mistake.

However, Russia, one of Syria’s strongest supporters, strongly objected to the U.S. strikes suggesting that military action without a U.N. Security Council resolution “would be an act of aggression and flagrant violation of international law.” Al Arabiya has more. In Lawfare, Ashley Deeks lays out the possible U.S. international legal theory for ISIS strikes in Syria.

The Washington Post tells us that the hunt for al-Baghdadi and other senior ISIS leaders is on following President Obama’s authorization to target and kill individual Islamic State leaders. However, Clint Hinote explains that targeting Abu Bakr al-Baghdadi may not have its desired effect and would hardly prove decisive in the battle against ISIS. Even so, Foreign Policy’s Shane Harris offers that if the United States is to catch Baghdadi, it will have to rely heavily on Jordan, whose spies have proved pivotal in U.S. efforts to hunt down its most dangerous enemies.

In a bid to be the “good jihadists,” Islamists rebels from al Qaeda’s Syrian affiliate Nusra Front have released 45 United Nations peacekeepers. The Wall Street Journal has the full story.

We promised you more on the AUMF debate, and boy do we have it.

The Wall Street Journal details how Obama’s fight against ISIS has catalyzed a serious debate over War Powers, breaking down several arguments offered here at Lawfare and at other legal blogs. Writing in Politico Magazine, Mary Ellen O’Connell says that the war against ISIS is illegal under international law.

The New York Times editorial board calls Congress’s dereliction of constitutional duty, its authority to declare war, “outrageous.” They suggest that “by avoiding responsibility, they allow President Obama free rein to set a dangerous precedent that will last well past this particular military campaign.” Even so, Steny Hoyer (D-MD) said yesterday that there was a growing momentum to hold a larger war debate after election in November. The Washington Post reports that the House Minority Whip suggested a “two-step process:” first, approving a proposal to allow the military to train and arm Syrian rebels; and second, using the lame-duck session after elections to debate and potentially approve a resolution that would provide clear war language that sets new boundaries for U.S. military force against ISIS.

Jack is back in Lawfare with new reflections on the Administration’s legal rationale for invoking the 2001 AUMF in the campaign against ISIS, saying that while he is unconvinced by the Obama team’s argument, he does not believe that military action is unconstitutional as it accords with the President’s Article II powers. Over at Just Security, Marty Lederman offers his own reactions to the 2001 AUMF theory.

Finally, in the National Interest, Robert Golan-Vilella argues that the President’s AUMF theory will serve to “weaken the already-weak role of Congress in issues of war and peace.”

A Chinese court has sentenced three people to death and sentenced a 4th to life in prison for executing a railway station knife attack that killed 29 people and injured 141 in Yunnan province in March. BBC has more on the attack, and the convictions, which include charges of organizing and leading a terror group.

Reuters has a special report detailing a systematic effort by Moscow to silence dissent as Russian soldiers return to families in coffins. In what would seem an understatement, Reuters notes, “the fact that Russian soldiers have died in a war in which they officially have no involvement is a problem in Russia.” The issue is compounded by popular revulsion towards an outright invasion of Ukraine; while 57 percent of Russians support the separatist Donetsk and Luhansk People’s Republics, a pro-Kremlin pollster found that only 5 percent support a Russian invasion of Ukraine.

The Associated Press reports that Ukrainian troops and pro-Russia rebels have exchanged 67 prisoners captured during fighting in eastern Ukraine, as part of the cease-fire deal.

Even as the ceasefire shakily holds, President Obama announced Thursday a new round of joint U.S. and European sanctions on Russia’s financial, energy and defense sectors. The BBC reports that the sanctions went into force today, preventing loans for five major state banks and restricting EU business with oil and defense firms. With NATO estimating that over 1,000 Russian troops remain in Ukraine, the measures are seen as a way to hold pressure over Moscow, leveraging the potential that they will be lifted if the ceasefire holds.

The Ebola crisis in Liberia continues to deepen, leading the Washington Post to ask if the disease could lead to the country’s collapse. On Tuesday, Liberia’s defense minister told the U.N. Security Council, “Liberia is facing a serious threat to its national existence,” adding that “the deadly Ebola virus has caused a disruption of the normal function of our state.”

In Nigeria, an enemy that the government can see continues to threaten the stability of the state. Reuters reports that the Nigerian government forces are currently engaged with Boko Haram insurgents just 20 miles outside the capital of Borno state, Maiduguri. Regional leaders called for military reinforcements yesterday, saying that Islamist fighters had surrounded the city of over 600,000. The Economist charts the deadly rise of Boko Haram.

As fervor wanes, Reuters reports that Pakistani protesters want to go home, but that protest organizers are refusing to return their national identity cards in order to prevent them from leaving. Some protesters have admitted to receiving 300-400 rupees per day for taking part in the uprising that began in August.

Al Jazeera brings us news that al Qaeda’s new branch in South Asia may have already struck – the group has claimed responsibility for a raid on a Karachi naval yard that killed one sailor and three attackers. The Pakistani Taliban has also claimed responsibility for the attack.

Yesterday, a trove of documents from the In Re Directives litigation were declassified and released. Wells brought us the documents on Lawfare, while today, the New York Times reports that the federal government threatened Yahoo with fines of $250,000 a day if it did not comply with a FISC order to turn over demanded data. The Washington Post also carries the story.

The Guardian brings us a report by the University of Edinburgh that says independent Scotland would struggle to manage oversight of intelligence, suggesting “the current configuration of the Scottish parliament and its rather subservient relationship to the executive may compound the general difficulties posed by democratic oversight of secretive intelligence and security agencies.”

McClatchy reports that a federal judge has ruled that the U.S. government does not have to disclose the cost of a secret Guantanamo prison called “Camp 7.”

A few things for your weekend:

Looking for something to read this weekend? Well, look no further ‘cause we’ve got you covered with Cyborgs! Vice and Bloomberg cover Ben and Jane’s latest paper on the law and policy implications of of our increasingly data and technology driven lives as “adolescent cyborgs.” You can read the full paper here.

Looking for something to watch? Why not Iran’s awesomely bad “Top Gun” knockoff? War is Boring has your review.

What would you do if a squad of 12 U.S. helicopters touched down in your back yard? Well, if you’re this Polish village, you “thank God it was the Americans” and take some photos for your Instagram with a shiney Chinook.

Finally, India is currently investigating how a deity, Hanuman, was issued an ID card complete with fingerprints and biometric scans. The BBC reports.

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.

Narrowing Down the U.S. International Legal Theory for ISIS Strikes in Syria

Friday, September 12, 2014 at 10:08 AM

In late August, I suggested several possible theories the Administration might invoke to argue that the use of force against ISIS in Syria is consistent with international law. In the wake of President Obama’s speech on Wednesday night and supplemental Administration statements, do we know anything more about which theory or theories the Administration has picked?

We might, even though the President did not say anything directly about the issue. In particular, we know that the Administration is arguing in the domestic context that its actions are covered by the 2001 AUMF. As Steve (on Lawfare), Marty Lederman (at Just Security), and Deborah Pearlstein (at Opinio Juris) have analyzed, in making this argument the Administration seems to suggest that ISIS is al Qaeda.

Let’s assume that this is the best reading of how the U.S. Government has brought ISIS under the mantle of the 2001 AUMF. If so, the USG appears to be importing ISIS conceptually into the framework of its ongoing armed conflict with al Qaeda. As most readers know, the United States long has argued that it is in an armed conflict with al Qaeda as a group, and rejects the idea that it is only in a conflict with members of al Qaeda in fixed geographic locations such as Afghanistan. In John Brennan’s remarks at Harvard in 2011, he stated: Read more »

We are (or Will Soon Be) at War With the Islamic State

Friday, September 12, 2014 at 9:05 AM

Secretary of State Kerry said yesterday:

We’re engaged in a major counterterrorism operation [against the Islamic State], and it’s going to be a long-term counterterrorism operation.  I think war is the wrong terminology and analogy . . . .

Though the Secretary was not thinking in legal terms, it is worth noting that his statement is belied by the Obama administration’s legal theory.  The Obama administration has long maintained that under the AUMF the United States is in an “armed conflict” with al Qaeda and associates.  The new legal theory is that the Islamic State either is al Qaeda or is (or used to be) associated with al Qaeda within the meaning of the AUMF.  Thus the administration’s legal theory is that the United States is or in the near future will be in an armed conflict with the Islamic State.  And “armed conflict” is the modern term for war.

Further Reflections on the Legal Rationale For Using Force Against the Islamic State

Friday, September 12, 2014 at 7:47 AM

I had a pretty harsh reaction to the administration’s claim that Congress in the 2001 AUMF authorized force against ISIS in Iraq and Syria.  (For a different view, see Marty Lederman’s post.)  While I think the administration’s interpretation of the 2001 AUMF is unconvincing, I do not believe (as Bruce Ackerman appears to say today in the NYT) that military action against the Islamic State — to date or in the future — is unlawful under the Constitution.   The reason, as I have explained before, is that the President is acting in self-defense of the nation.  While I believe it is highly prudent to seek authorization from Congress in this circumstance, doing so is not compelled by the Constitution.  (For a collection of the many precedents in support of this view, see this OLC opinion from September 25, 2001.)

Why, then, didn’t the President simply continue to rely on Article II as he has all summer?  It is impossible to tell from the outside, but one reason may have been the War Powers Resolution.  If Article II is the basis for the use of force (as all of this summer’s seven Iraq WPR letters proclaimed), then under the WPR the administration had a duty to cease the use of force after 60 (or 90) days.  The administration could have avoided this result by arguing – unpersuasively, in my view – that the United States was not engaged in “hostilities” or that each mission was a discrete and complete event.  Or it could avoid the WPR’s clock by arguing that Congress has authorized the war (see Section 5(b) of the WPR).  So by arguing that the AUMF is the basis for the use of force in Iraq and Syria, the administration made its WPR problems go away.  If this interpretation of administration motivations is even partially right, it is surely the largest impact on presidential decisionmaking the WPR has ever had.

So my objection to the Islamic State AUMF gambit is not that it is illegal in the sense that the use of force is illegal (because Article II remains in the background).  The objection is that the President who wanted to cabin the AUMF, and who had the opportunity to put the United States on a more focused and responsible legal path for fighting Islamic terrorists, has instead stretched the AUMF beyond all recognition and probably ensured that it will be the legal basis for war against Islamist terrorists for quite a while to come.  (Even if Congress ultimately authorizes force, the interpretation of the AUMF for the interim period will stand as a precedent.)  I have heard from a lot of people that the President would like to receive authorization from Congress but that Congress is too dysfunctional to give it to him.  I don’t buy it.  When the national security is threatened, Presidents who try hard enough get the support they need from Congress, even when (as is not really the case here) the use of force is controversial.  Indeed, both of the last two uses of force for military action in Iraq – in 1990 and 2002 – were controversial and were made possible only after enormous and risky political efforts by the two Bush White Houses.

There is talk about Congress soon authorizing appropriations for some sort of action in Syria – perhaps training rebels, perhaps something more.  This is a potentially important legal event, because in some circumstances appropriations for armed conflict can constitute authorization for armed conflict.  Moreover, even though the WPR says in Section 8(a) that “authority to introduce United States Armed Forces into hostilities . . . shall not be inferred from any provision of law . . . , including any provision contained in any appropriation Act,” the Executive branch in this OLC opinion for Kosovo has interpreted a later-in-time appropriation to supersede the WPR construction rule.   The Kosovo OLC opinion contains a discussion of the main precedents related to when and to what extent appropriations count as war authorizations, as well as the Executive branch’s view of these precedents.  It should be consulted closely by Congress when drafting the appropriation in question to ensure that Congress achieves what it aims to achieve.  (For my analysis of the significance of this OLC opinion for last year’s debate on Syria, see here.)

In Re Directives Documents Released

Thursday, September 11, 2014 at 8:48 PM

As we noted earlier today, documents bearing on the In Re Directives litigation have now been declassified. The voluminous materials—including briefs and an apparently less redacted version of the Foreign Intelligence Surveillance Court of Review’s 2008 opinion—indeed can now be found at the DNI’s Tumblr site, and below.

We’ll likely have more to say on this; stay tuned.

Yahoo Brief (May 29, 2008) 

Government Ex Parte Merits Brief (June 5, 2008)

Yahoo Reply Brief (June 9, 2008)

Yahoo Rule 28(j) Letter to FISC-R Clerk from Zwillinger (June 13, 2008)

Government Ex Parte Supplemental Brief (June 26, 2008)

Yahoo Motion for Leave to File and Reply Brief to Gov’t Supplemental Brief (June 30, 2008) CR 357

Read more »

The Legal Justifications For Domestic Surveillance: A Summary

Thursday, September 11, 2014 at 7:00 PM

Late last week, the Department of Justice released two memos authored by Lawfare‘s own Jack Goldsmith back when he was the head of the Office of Legal Counsel (“OLC”) in the Bush Administration. The memos provide the most comprehensive legal analysis to date of the surveillance program codenamed STELLAR WIND, which President Bush initiated in October 2001 to intercept terrorist communications within the United States. What follows is the CliffNotes version: a brief, yet thorough summary of the memos’ contents. Both memos are well worth reading in full. (N.B.: Jack Goldsmith played no role in the editing of this post.)

The first memo, dated May 6, 2004, begins with an extensive—and extensively redacted—history of STELLAR WIND, from its inception in the wake of the September 11, 2001, terrorist attacks to its periodic reauthorization and occasional modification to reflect the evolving methods for tracking terrorist threats.

The heart of the memo is its substantive legal analysis, beginning with a brief and completely redacted portion on the applicability of Executive Order 12,333. The memo then turns to analysis of the content collection portion of STELLAR WIND under the Foreign Intelligence Surveillance Act (“FISA”) and title III of the Omnibus Crime Control and Safe Streets Act of 1968. Although FISA declares that it is “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted,” the memo explains that reading FISA to prohibit STELLAR WIND would render FISA unconstitutional as applied in those circumstances as an “impermissible infringement” on the President’s inherent constitutional authority as Commander in Chief to conduct warrantless electronic surveillance for foreign intelligence purposes. Instead, statutes should be read where “fairly possible” to avoid an unconstitutional congressional encroachment on executive power.

Read more »

Deteriorating U.S.-Russian Relations and Treaty Compliance

Thursday, September 11, 2014 at 3:28 PM

Proceeding in lockstep with a general chill in relations brought about by the Ukraine crisis, the United States and the Russian Federation are currently at odds over compliance with international arms treaties, most notably the Intermediate-Range Nuclear Forces Agreement (INF). Reuters reported that American and Russian officials will meet in Moscow today to discuss allegations that Russia violated the INF by test-firing a ground-launched cruise missile in violation of the treaty.

Many observers seem unsurprised by Russia’s alleged violations. Writing in the Wall Street Journal last month, Keith Payne and Mark Schneider argued that Russia’s policy was one of “compliance if convenient,” and contrasted Russian treaty behavior with that of the United States:

The INF violation fits into a long pattern of Soviet-Russian misbehavior that can only be described as “compliance if convenient.” Moscow appears to observe arms-control commitments when convenient but violates them when not. This contrasts sharply with America’s scrupulous adherence to the letter and often the supposed “spirit” of treaty commitments, long after Moscow has ceased to do so.

Even accepting the argument that America’s compliance record on international arms agreements is exemplary when contrasted with Russia’s (hardly a soaring compliment), there are a series of worrisome trends in American treaty behavior that deserve mentioning.

First, the United States still refuses to ratify the Comprehensive Nuclear Test Ban Treaty, despite being a signatory. Russia, on the other hand, ratified the agreement in 2000. Despite initially identifying the CTBT as a “top priority” during the President’s second term in March of 2013, the administration later acknowledged that getting Congress to move on the Test Ban fell somewhere between highly-unlikely and hopeless.

Second, the Obama Administration has struggled to push treaties through the Senate—as our colleague John Bellinger has chronicled here and here, arguing that the White House has failed to put the necessary muscle into both submitting treaties to the Senate in a timely fashion and in expending political capital to secure their ratification. With respect to arms control issues, in addition to the CTBT, the Senate has yet to ratify Protocols 1, 2, and 3 to the South Pacific Nuclear Free Zone Treaty (transmitted to the Senate in 2011), as well as Protocols I and II to the African Nuclear-Weapon-Free Zone Treaty (which the other four permanent members of the UN Security Council have signed and ratified).

What do these additional Protocols require of State parties that make them so controversial? Take the African NWFZ case. Protocol I provides that each party to that instrument undertakes not to use or threaten to use a nuclear explosive device against (1) any African NWFZ Treaty Party or (2) any territory within the zone for which a Protocol III Party is internationally responsible (France is currently the only party to Protocol III; Spain is the only other country eligible to become a party). In his message to the Senate accompanying the text to Protocol I, the President added the following caveat (on p. IX), presumably to encourage otherwise-skeptical legislators that the NWFZ Protocols would not affect America’s freedom of maneuver in its nuclear posture:

With respect to Article 1 of Protocol I, the United States of America will not use or threaten to use nuclear weapons against any Party to the Treaty that is a non-nuclear weapons State Party to the Nuclear Non-Proliferation Treaty (NPT) and in compliance with its nuclear non-proliferation obligations.”  (emphasis added).

In other words, the President suggested that the Senate include a Reservation in its assent to the Treaty that the United States would consider itself free (as a legal matter) to use nuclear force against some nuclear-weapons states party to the African NWFZ Treaty (but not to the NPT and/or in compliance with its obligations under that instrument), and by ratifying the Protocols was in reality only committing itself not to use nuclear weapons against the non-nuclear likes of Mauritius, Gabon and Lesotho. Notwithstanding that suggested Reservation, Sen. Jon Kyl, a Republican heavyweight on nuclear issues before his retirement in 2013, expressed deep concern that the President was “attempting to codify by international agreement his flawed nuclear weapons declaratory policy, which would limit the instances in which the President would use nuclear weapons to defend the United States and its allies from attack.” Three years later, no action has been taken on either of the two Protocols to the African NWFZ Treaty (Protocol II asks states to agree not to test nuclear weapons in African zone, and is presumably even more of a political non-starter in the Senate given the problems associated with the Test Ban Treaty).

Ultimately, recent US treaty behavior in the area of arms control may have little impact on the talks with the Russian Federation over its alleged violation of the INF. That said, the fact that relatively innocuous treaties related to arms control – including those that would lead to no change whatsoever in US law – have been languishing in the Senate for years with no action taken suggests that the United States may have some future difficulties in convincing other states to both join international treaty regimes and to comply with their requirements down the line.

FISCR: Stay Tuned for Declassified Version of 2008 Directives Opinion

Thursday, September 11, 2014 at 2:57 PM

The Foreign Intelligence Court of Review (“FISCR”) issued this order today. It concerns the FISC’s 2008 opinion in In Re Directives, an appeal brought by Yahoo! and regarding directives for warrantless electronic surveillance of some of the company’s customers.  In a heavily classified ruling, the appeals court had affirmed a Foreign Intelligence Surveillance Court (“FISC”) order requiring Yahoo! to comply.

Today’s ruling announces that a long-running declassification review, prompted by Yahoo! and eventually carried out by the United States in consultation with the FISCR and Yahoo!, has come to an end.  Thus the operative part of the ruling;

In light of the government’s declassification review of this court’s opinion and the record materials in this case, the court sees no reason to continue to treat the declassified portions of the opinion and record as sealed. The court therefore orders the declassified portions of those documents to be unsealed.

It seems we can expect a relatively less redacted version of the 2008 opinion any day now.

Today’s Headlines and Commentary

By and
Thursday, September 11, 2014 at 1:48 PM

“If you threaten America, you will find no safe haven,” President Obama said last night in a highly anticipated statement outlining his strategy to “destroy” ISIS militants. The President made it clear that the United States “will hunt down terrorists who threaten our country, wherever they are…That means I will not hesitate to take action against ISIL in Syria, as well as Iraq.”

In case you missed it, you can watch the full speech here or read the remarks here.

In the speech, the President outlined a four-point “counterterrorism campaign” to degrade and ultimately destroy the militant group called the Islamic State: 1) The President plans to expand the scope of airstrikes and go on the offensive, targeting ISIS militants in both Iraq and Syria and authorizing missions that go beyond defense and humanitarian measures (The Washington Post explains how the U.S. could carry out strikes in Syria); 2) The United States will step up its efforts to arm and train Iraqi and Kurdish forces, as well as provide enhanced intelligence and targeting information; 3) The U.S. will work with allies to cut off ISIS funding and stem the flow of foreign fighters; 4) The U.S. and allies will continue to provide humanitarian aid to populations in Iraq and Syria.

As the Wall Street Journal writes, the President’s plan focuses on utilizing local forces to take the fight to ISIS under the cover of overwhelming American air power and intelligence. However, the Journal notes that America has historically had a mixed track record with this approach.

The remarks came one day before the thirteenth anniversary of the September 11, 2001 attacks, and Obama was quick to point out that this campaign would be very different from the previous wars in Afghanistan and Iraq, likening them to the ongoing missions against suspected terrorists in Yemen and Somalia. In short, it was Obama where he is most comfortable: counterterrorism operations, special forces, air power including drones, coalitions, and humanitarian aid. Even so, Peter Baker in the New York Times notes, “in ordering a sustained military campaign against Islamic extremists in Syria and Iraq, President Obama on Wednesday night effectively set a new course for the remainder of his presidency and may have ensured that he would pass his successor a volatile and incomplete war, much as his predecessor left one for him.

He continues: “After years of trying to avoid entangling the United States in another “dumb war,” as he called the 2003 invasion of Iraq, Mr. Obama is now plunging the United States into the middle of one of the world’s bloodiest, most vicious and fratricidal conflicts.”

And while President Obama was resolute in stating that there would be no American combat troops, Defense News points out why “no boots on the ground” does not mean that U.S. service members will not take part in combat in Iraq and Syria. In fact, with the 475 additional troops that President Obama authorized last night, there are now more than 1600 American troops on the ground.

Read more »

Reorganizing Congress — A 9/11 Perspective

Thursday, September 11, 2014 at 1:26 PM

On this day of remembrance, the three prior Secretaries of the Department of Homeland Security have issued a joint letter calling on Congress to reorganize itself and streamline oversight of DHS.  I can think of no better way for Congress to honor those who have died than by taking steps to get its own house in order as a way of helping to stop such horrors from happening again.  Here is the opening:

In advance of the upcoming Rule X hearings for reorganization for the 114th Congress, we are writing to recommend the streamlining and consolidation of Congressional oversight of the U.S. Department of Homeland Security.  This is a matter of critical importance to national security on which there is broad bipartisan agreement, and it remains the only major recommendation of the 9/11 Commission that ten years later has not been acted upon.

President Obama’s Astonishing War Powers Legacy

Thursday, September 11, 2014 at 7:55 AM

That is the topic of my essay at in reaction to the announcement yesterday that the Obama administration believes the 2001 AUMF authorizes force against the Islamic State today.  The essay begins:

Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) and his successor did not. They will puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist. And they will wonder why he claimed to “welcome congressional support” for his new military initiative against the Islamic State but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.

The essay ends:

The largest irony here is that President Obama has long hoped to leave a legacy of repealing the Bush-era authorization and declaring the “war” against al Qaeda over. “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal” the 2001 law’s mandate” he said in a speech last May at the National Defense University. “I will not sign laws designed to expand this mandate further,” he added, before insisting that “history” and “democracy” demand that “this war, like all wars, must end.”

President Obama never did engage Congress to refine the 2001 law. The violent reality of the Islamic State has quickly belied the supposed demands of history and democracy. And the President, all by himself, has now dramatically expanded the 2001 mandate.

ISIL as al Qaeda: Three Reactions

Thursday, September 11, 2014 at 1:52 AM

Like Bobby, Wells, and Ben, I, too, was surprised to discover that the Obama Administration’s legal theory (for the moment) appears to be that the Islamic State of Iraq and the Levant (ISIL) can be targeted under the 2001 AUMF despite its very public split from al Qaeda. That said, I think all three of my friends miss the animating premise of the government’s argument in trying to figure out how ISIL could be an “associated force” of al Qaeda (given that it is not currently supporting al Qaeda’s hostilities against the United States). What’s more, as I explain below the fold, Ben’s and Bobby’s reactions, in particular, seem to be in at least some tension with their views of how force authorizations should be undertaken, more generally.

Read more »

The 2001 AUMF: From Associated Forces to (Disassociated) Successor Forces

Wednesday, September 10, 2014 at 11:46 PM

Like my colleagues Ben and Wells, I’m astonished to learn this evening that the Obama administration, having previously justified 140+ airstrikes against IS in Iraq on Article II grounds alone (at least insofar as the stream of WPR reports indicated), has discovered that IS all along was covered by an AUMF…and not the 2002 AUMF relating to Iraq, but the 2001 AUMF relating to al Qaeda.

To be sure, there was a time when this would have been a perfectly fine argument; IS is the descendant of AQI, after all, and for many years it would be easy to show that AQI was an associated force of AQ engaged in hostilities against the US. But so far as I know no one seriously denies that it has since had a fundamental rupture with AQ, and indeed engages in combat at times with AQ’s Syrian outfit, the al Nusrah Front. For the administration to claim, as Marty Lederman reports here, that IS nonetheless remains subject to the 2001 AUMF both because of this past and because IS though now independent in some fashion claims to be the “true inheritor” of “bin Laden’s legacy” (and because AQAP and other AQ associated forces have made ambiguous statements, for whatever reason, applauding IS’s claims and achievements) is just stunning from a legal perspective.

To be clear, I’m not driven to this argument out of hostility to the policy the President described this evening; on the contrary, I’m cautiously supportive. It’s just that I think the legal arguments really do matter, or at least that they should. Until this evening the big AUMF interpretive boundary seemed to be the notion that it extended only to AQ’s associated forces actually engaged in hostilities against the United States (though the recent al Shabaab strike perhaps shows this line was not so important after all?). Now we are speaking not just of “associated forces,” but also “disassociated forces” that might, from a certain point of view, be seen as “successor forces.” Will we later hear of the AUMF applying to associated forces of this successor force? It is not hard to imagine many of them popping up the Iraqi-Syrian theater.

To be sure, the White House isn’t saying the AUMF covers just any group. There is still a thread of AQ connection in the IS fact pattern, after all, thanks to IS’s specific history as AQI. But if a past nexus is now all that is required, the door may be opened to applying the AUMF to any situation in which members of some new entity have substantial prior ties to AQ or an AQ associated force. Given the sprawling social network that undergirds the larger salafist jihadi movement, and the constant froth of new groups and entities that movement produces (often building from the remains of earlier groups and entities), this is a somewhat daunting prospect, at least if you would prefer to see the use of force against such targets resting on a clear domestic law foundation.

The 2001 AUMF Covers 2014 Counterterrorism Operations Against ISIS?

Wednesday, September 10, 2014 at 10:05 PM

What Ben said.

I certainly can see why the executive branch would want to adopt a reading as aggressive as this one: it nips some War Powers Resolution questions in the bud, and helps to make it more likely that, going forward, talk of any additional congressional authorization can be held in best practices terms rather than legal ones.

But the statute that Congress passed in the wake of, and as a response to, the 9/11 attacks, read now so as to authorize the use of force in Iraq and Syria against ISIS–a group that al-Qaeda expelled publicly?  It seems like quite a stretch.

Not Asking the Girl to Dance

Wednesday, September 10, 2014 at 9:41 PM

Here’s President Obama coyly not asking Congress to dance—that is, as I put it in my post earlier today, “signal[ing] that [he] would like to dance with Congress—saying [he] will consult with her, that [he] invites her support—but [stopping] short of anything like a formal request, and he insist[ing] that he’s happy to dance alone.” In his speech tonight, Obama said:

My Administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL. But I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.

My earlier post, however, got one thing wrong, and it’s an important thing. Apparently, the administration’s legal theory for why it has authority to dance alone here is not inherent Article II authority. It is the 2001 AUMF.

I have to say, I find this reading extremely implausible. I have always supported the administration in taking a broad view of what it means to be an “associated force” under the AUMF. But “associated” does not mean “not associated” or “repudiated by” or “broken with” or even “used to be associated with.”

This is not a stable or sustainable reading of the law, absent some dramatic, non-public intelligence about the ISIS-Al Qaeda relationship. Remember that this is a law that barely a year ago, President Obama was lecturing us needed to be narrowed and repealed. “This war like all wars must end,” he piously intoned. Apparently not, however, before we dramatically expand its interpretive scope and deploy it to support a new and open-ended military campaign that, in the president’s own words, “will take time.” All to avoid asking the girl, who might say no, to dance.

President Obama Addresses the Nation on ISIS

Wednesday, September 10, 2014 at 8:50 PM

Watch it here live:

Here’s the text of the speech:

Read more »

9/15 Upcoming Brookings Event: The Future of Civilian Robotics

Wednesday, September 10, 2014 at 6:30 PM

Loyal Lawfarers: next Monday, September 15th at 2:00 pm, Brookings will host an event titled “The Future of Civilian Robotics.” Ben will host a conversation between Wells, John Villasenor, and Gregory McNeal on the many civil liberties, privacy, legal, and regulatory issues the rapid advances in robotics present.

We’d love for you to join us here at Brookings for a cup of coffee and a conversation on the changing landscape of civilian robotics in the United States.

You can find the full event invitation here.

US Draft UN Security Council Resolution on Foreign Terrorist Fighters

Wednesday, September 10, 2014 at 5:00 PM

The UN Report blog has posted a draft of the United States resolution to the UN Security Council on foreign terrorist fighters (FTFs) that was teased in yesterday a Reuters story.

We’ll have an analysis up shortly, but you can find the full text here.

The Proliferation Security Initiative: Interdiction on the High Seas to Prevent Proliferation

Wednesday, September 10, 2014 at 3:35 PM

Interested in the legal and policy architecture relating to the high seas interdiction of ships possibly bearing WMD material? Me too! The Proliferation Security Initiative, was a somewhat hot topic about a decade ago, but has not gotten much attention lately. But I learned today that DOD has a nifty new website on the program, and urge you to check it out: here.

And if you are really into the topic, or just bored, maybe you’ll get a kick out reading this short piece I wrote on PSI, back in 2003, for Dick Friedman’s National Strategy Forum.