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Dianne Feinstein Responds to Director Brennan

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Thursday, December 11, 2014 at 9:45 PM

The text is here:

Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today released the following statement after CIA Director John Brennan spoke about the CIA’s detention and interrogation program:

“CIA Director Brennan’s comments were not what I expected. They showed that CIA leadership is prepared to prevent this from ever happening again—which is all-important.

“I watched today’s press conference closely and agree with many of the things Director Brennan said. He discussed the context of the detention and interrogation program that started shortly after the horrific attacks on 9/11, as well as the vital work being done by the CIA workforce. He is right on both counts.

“Director Brennan also acknowledged that the CIA was not prepared to effectively manage this program when it started and that many mistakes were made as it was implemented. I believe that the Intelligence Committee’s report demonstrates these facts beyond dispute, and I am pleased the director announced some of the reforms that have been and will be implemented at the CIA.

Throwback Thursday: Pearl Harbor and Declaring War

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Thursday, December 11, 2014 at 9:30 PM

Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Now Lawfare has decided to get in on the action by means of a new feature. Each week, Lawfare will turn back in time to a specific event, and briefly explain how it relates to today’s security and/or legal environment.  

This last Sunday—December 7th—marked the 73rd anniversary of the surprise Japanese attack on the United States Naval Base at Pearl Harbor. It would be, as President Franklin D. Roosevelt accurately predicted, a day that would live in “infamy.” The President’s denunciation came as he stood in a combined session of Congress to request that Senators and Representatives recognize the existence of a state of war between the United States and Imperial Japan—and, in addition, authorize him to prosecute the war to its fullest extent. That declaration, and the subsequent declarations against Axis powers, mark the last occasion on which the United States declared war.

The anniversary prompts a reconsideration of the six declarations of war passed by Congress during World War Two. The subject is relevant, given Senator Rand Paul’s draft legislation regarding the use of force against the Islamic State—the only recent proposal, of which we are aware, that includes a congressional declaration of  war. (On Lawfare, Jack Goldsmith covered Senator Paul’s draft declaration, and accompanying authorization of force, here and here.)

Without further ado, here are the six World War II declarations—the text of which comprise this week’s truncated #tbt.   Read more »

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Four

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Thursday, December 11, 2014 at 4:25 PM

In this post, we proceed with Lawfare’s ongoing, side-by-side comparison of the SSCI Study’s key findings, and responses to them by both the SSCI Minority as well as the CIA.

By way of reminder, the SSCI’s Study made twenty findings and conclusions about the CIA’s detention and interrogation practices after 9/11—twelve of which the blog has summarized so far, along with any corresponding Minority and CIA remarks.

A breakdown of findings 13-16 can be found below, the lone goal being to isolate areas of dispute as between the SSCI, its Minority, and the CIA.

Read more »

Today’s Headlines and Commentary

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Thursday, December 11, 2014 at 1:40 PM

Today, the New York Times brings us news that when the CIA first received detention and interrogation authorities in 2001, the Agency initially planned to create a system of worldwide jails that would abide by the standards of the U.S. Bureau of Prisons. The conditions were to mirror those as maximum security prisons around the United States and interrogations would proceed in accordance with the U.S. Army Field Manual. The report suggests that then Secretary of Defense Donald Rumsfeld scrapped a plan that would have established the jails on U.S. military bases, which forced the CIA to begin planning “black sites.”

The Times also brings us news that the Department of Justice has told a court that documents from an earlier DOJ investigation into the torture and detention of detainees by the CIA, which includes summaries of interviews with about 100 witnesses, should remain secret. The Obama administration claims that releasing the documents may affect the candor of law enforcement deliberations about whether or not to bring criminal charges in other cases in the future.

The Washington Post reports that lawyers for 9/11 suspects held at Guantanamo believe that the release of the Senate’s CIA interrogation report could help their cases, providing new leverage to demand the release of classified material. The attorneys have suggested that the “fact that these men were tortured…precludes the imposition of the death penalty.”

One day after the SSCI report, the United States also announced that it has closed Bagram prison, its last detention facility in Afghanistan. At its peak, Bagram held hundreds of detainees, with a U.S. court finding that two detainees had been beaten to death in 2002.

That news comes as Afghan President Ashraf Ghani expressed shock at the torture revelations in the Senate’s Study. In a public statement, Ghani assured Afghans that recent security agreements with the United States would not allow Americans to maintain prisons or make arrests in Afghanistan, noting that “we are entering an era of national sovereignty where we will be the only legitimate authority.” The New York Times has more on Ghani’s statement.

Dick Cheney continues to defend the CIA’s interrogation tactics, calling the Senate’s report “full of crap,” and asking “what are you prepared to do to get the truth against future attacks against the United States?” Fox News reports that the former Vice President also refuted claims that President George W. Bush was kept in the dark, noting that “he knew everything he wanted to know and needed to know.” Cheney admitted that he had not read the report. (We’ll just leave that last line there to linger.)

In the White House, President Obama has found himself caught in the middle of a dispute between managing the Central Intelligence Agency and pleasing his fellow Democrats, putting the president on the defensive, writes the New York Times. Senator Mark Udall has called on Mr. Obama to “purge” the agency.

In the Daily Beast, Shane Harris and Tim Mak discuss what the torture report kept hidden, highlighting how a lack of detail regarding the role of dictatorships in Syria and Libya, as well as the lack of information about who really gave the torture authority, undercuts critical issues the report doesn’t address.

Bloomberg covers an important story: emails from CIA officers reveal that many of the balked at the harsh interrogation techniques, with one email about the interrogation of Abu Zubaydah reading, “several on the team profoundly affected…some to the point of ears and choking up.”

Back in the Daily Beast, Kimberly Dozier reports that Jose Rodriguez, the head of the CIA’s Counterterrorism Center at the time of the program, said that he was unaware of some of the Agency’s worst abuses until the release of the Senate’s report. According to Rodriguez, he had “no knowledge of people forces to stand with broken bones” and that he was not aware that detainees were subjected to rectal feedings.

Bloomberg notes that CIA officials linked to torture could face possible prosecution and a future stuck in US should international courts seek to charge them. And while the New York Times reports that such cases are unlikely to materialize, they are certainly within the realm of possibility. Bloomberg highlights a November 2009 conviction in absentia of 23 Americans in an Italian court. The court seized the CIA station chief’s retirement home, selling it to pay a damages award to a rendered detainee and his wife.

The New York Times also carries a story on the architects of the CIA’s interrogation program and how they drew on the lessons of psychology to induce “learned helplessness.” The two contract psychologists attempted to create techniques that would cause a detainee to lose his “sense of control and predictability.” Another psychiatrist, Dr. Charles A. Morgan, who works at the University of New Haven is quoted saying, “they misread the theory.” DefenseOne has more on what your brain looks like on torture. Vice News carries an interview with one of the architect’s, James Mitchell. And Foreign Policy describes how after 9/11, the CIA ignored its own lessons in turning to torture.

Conor Friedersdorf comments on the “graywashing” of CIA torture and how its far less defensible than moderate critics seem to realize. In the Washington Post, David Ignatius tells us that the torture report’s most glaring weakness is that it ignores Congress’s own failure to oversee the CIA.

DefenseOne tells us that Senator Carl Levin is leaving Congress disappointed the NDAA doesn’t do more.

Moscow seized on the release of the CIA report and demanded that those responsible for the Agency’s interrogation and detention program be “brought to justice.” The New York Times, which notes that the Kremlin is “often castigated” by Washington over its human rights record, has more on the statement.

Zacarias Moussaoui, who is known as the “20th hijacker” in the Sept. 11, 2001 terror attacks, has asked a Florida federal judge to transfer him to Guantanamo Bay. According to Al Arabiya, Moussaoui is requesting the transfer because he says he has been assaulted by guards and other inmates at the Florence “Supermax” prison he is currently jailed in.

Speaking of Guantanamo, the Miami Herald reports that a Yemeni, Abdel Malik Wahab al Rahabi, has been cleared for release from the prison facility. Rahabi was one of the first 20 detainees to arrive at the facility, but was never charged.

In a grim assessment of the Syrian Civil War, Brett McGurk, a senior State Department official, said yesterday that the Syrian rebels are never going to militarily defeat Bashar al Assad. Foreign Policy carries his comments.

Relatedly, the Wall Street Journal has details on a recurring fissure in the anti-ISIS coalition; namely, whether the al Assad regime should be directly targeted.

At DefenseOne, Bernard Gwertzman reports on Russian President Vladimir Putin’s recent state of the nation address. He quotes CFR’s Stephen Sestanovich, who said that it was an “eclectic, even incoherent, speech” that did not adequately address “some of the big economic problems that the country faces.”

Reuters carries comments made recently by Indian Prime Minister Narendra Modi, who said that Russia will remain India’s top defense partner in the coming years. The two countries recently reached an agreement wherein state-owned Rosatom will build 12 nuclear reactors for New Delhi; major oil company Rosneft also signed a 10-year crude oil supply deal with Essar Oil in the past few weeks.

The Star in Canada reports that the Canadian Supreme Court just released a potentially-controversial ruling that will allow police to search cell phones upon arrest.

The Turkish Foreign Minister, Mevlut Cavusoglu, will travel to Iran on December 17th at the behest of Iranian Foreign Minister Mohammed Javad Zarif, Hurriyet confirms. The talks take place as Ankara and Tehran find themselves on “opposite pages” over the Syrian Civil War and other regional issues.

Add hip-hop to the list of weapons the US has tried to use against Cuba’s government. In an article published yesterday, the Associated Press asserts that for more than two years, a US agency “secretly infiltrated” Cuba’s underground music scene and attempted to use unwitting rappers to spark a youth-based movement against the regime in Havana.

Israeli website Ynetnews reports that party strongman and former Interior Minister Gideon Sa’ar will not challenge Israeli Prime Minister Binyamin Netanyahu for the Likud’s helm. Sa’ar’s statement comes after PM Netanyahu successfully lobbied the party bureaucracy to push up internal elections from January 6th to December 31st. The move was largely seen as a way of blunting Sa’ar’s election chances by curtailing his ability to drum up party support.

Israeli, Palestinian and Jordanian pathologists have offered conflicting reports as to how a high-ranking Palestinian Authority Minister died recently at a West Bank demonstration. While Israeli doctors concluded that Ziad Abu Ein died of a heart attack, with stress as a possible contributor, Palestinian and Jordanian doctors say that the PA Minister for the Settlements/Wall died of violent causes, and not natural ones. The New York Times has more on the event, which could have serious ramifications for Israel-PA security cooperation.

Additionally, the Times features an interactive map on the other ISIS: Nigerian militant Islamist group Boko Haram.

The Times also notes that the city government of Urumqi, capital of China’s restive Xinjiang province, has officially banned wearing Islamic veils in public.

DefenseOne is out with a list of the top 10 cybersecurity threats China faced this year.

Defense News reports that DARPA sees a future in “transparent computing.” The Defense Advanced Research Projects Agency is trying to mitigate the “sneakiest” and “most persistent” cyber threats and is offering up to $60 million to develop ways of doing so.

Drones beware. DefenseOne provides an update on the Navy’s Scary New Death Ray: the system is doing better than predicted.

ICYMI: Yesterday, on Lawfare

Wells Bennett, Cody Poplin, and Ben Bissell shared part 3 in Lawfare’s review of the findings, conclusions, and areas of dispute in the SSCI Study, Minority and CIA comments.

Jack Goldsmith offered his reactions to Secretary Kerry’s testimony in front of the SFRC on the need for a new AUMF.

Ben Wittes also brought us a few thoughts on the SFRC AUMF hearing.

Paul Rosenzweig shares news of Congress’s attempt to stop the IANA transition and how it will most likely fail.

Well Bennett provided video of Senator Mark Udall’s (D-CO) remarks on the SSCI Study of CIA Interrogation and Detention.

Stewart Baker linked us the this week’s Steptoe Cyberlaw Podcast, which features an interview with Shane Harris.

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.

CIA Director Brennan Delivers a Statement on SSCI Report

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Thursday, December 11, 2014 at 1:28 PM

At approximately 1:40 p.m., John Brennan, the Director of the Central Intelligence Agency, will make a statement on the SSCI’s detention and interrogation study.  Here’s the CSPAN video:

Here is the text of Brennan’s remarks:

It was 8:46 a.m. on the morning of September 11th, 2001, when the North Tower of the World Trade Center in New York City was struck by an aircraft commandeered by al-Qa’ida terrorists. Seventeen minutes later, the clear blue skies over Manhattan were pierced yet again by another hijacked aircraft, this one tearing into the adjacent South Tower.

At 9:37, the Pentagon—the proud symbol and heart of our Nation’s military—suffered a similar attack. And at 10:03 a fourth plane shattered the serene landscape of Shanksville, Pennsylvania, as its passengers refused to allow al-Qa’ida to use one more plane as a missile to strike our Homeland.

Read more »

Sony Counter Attacks

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Thursday, December 11, 2014 at 11:32 AM

The reality of conflict (not war) in the cyber domain — Sony is now reported to be launching DDoS attacks against the hackers attempting to distribute its confidential documents:

Sony has launched a counterattack against people trying to download leaked files stolen from its servers after a massive hack.

Re/code is reporting that Sony is using Amazon Web Services to rent cloud computer power and aim traffic at sites offering the company’s files for download.

Sony’s attack is actually similar to a tactic used by cybercriminals. When hackers want to take down a website, they point huge amounts of internet traffic at it. That’s called a “distributed denial of service” attack. Sony is essentially doing the same thing to fight back against hackers.

This Morning’s SFRC Business Meeting

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Thursday, December 11, 2014 at 10:45 AM

There are many subjects under discussion right now, including recent proposals to authorize force against ISIS.

Update: it appears the Committee approved a draft authorization authored by the Committee’s Chairman, Senator Robert Menendez, by a vote of 10-8.

USG Closes Bagram Detention Facility

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Thursday, December 11, 2014 at 10:12 AM

The news comes from Time

The United States Department of Defense said Thursday that it had shuttered the last American detention facility in Afghanistan, bringing to an end a controversial practice of holding prisoners in the country without trial.

The U.S. said it no longer had custody of detainees in Afghanistan following the transfer on Wednesday of remaining detainees from Bagram Airfield north of Kabul, which once held hundreds of detainees, Reuters reports. In recent weeks, detainees have been shifted out of U.S. custody, including a top Pakistani Taliban member who was handed over to Pakistan and a Tunisian detainee who was placed in Afghan custody on Tuesday.

A Few Thoughts on Yesterday’s AUMF Hearing

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Wednesday, December 10, 2014 at 11:39 PM

Jack aptly stated earlier today many of my thoughts on yesterday’s hearing on an Islamic State AUMF—at which Secretary of State John Kerry testified. In particular, he highlighted the broad authorization the administration is seeking—one with few of the sort of accountability mechanisms Jack, Matt, Bobby and I have suggested. And he highlighted as well the administration’s backhanded method of seeking this authorization, which involves refusing to ask for it—a tactic Jack describes as “leading from behind” and which I have described elsewhere as analogous to the boy who wants to dance with a girl but doesn’t want to risk rejection by asking.

In this post, I want to focus on a different aspect of the hearing: The diversity of opinion among senators on some of the key policy issues on which an AUMF must take a position. After all, while the senators seemed—quite rightly—united in frustration at the lack of administration leadership, they don’t at all agree among themselves on the key elements of what an ISIS AUMF should say.

They agree on one important element: that there should be an ISIS AUMF. There seems to be broad agreement that Congress should play a greater role than it has to date, that members should—as Senator Barbara Boxer put it—go on the record in support of action against ISIS. But beyond this basic point of agreement, there’s not a great deal of consensus.

Here are some of the fault lines:

Broadly speaking, the Democrats want a restriction on ground troops. They cast this limitation on authorization as a desire not to authorize more than the president—who has promised not to launch a major ground operation—wants actually to do. The idea is that if he wants later to expand the conflict to involve a major troop deployment, he can come back to Congress and get authorization for it. But many of the Republicans on the committee feel strongly, with Kerry, that this would be tying the President’s hands. The basic division here is between those who don’t want to give the president a blank check and those who don’t want to signal a lack of commitment to the fight. Both sides seem to feel pretty strongly on this point, and I wonder if the result will be a kind of stand-off in which nothing moves.

Second, some Republicans spoke up against a sunset provision, while Rand Paul and some Democrats want a sunset shorter than the three years that Chairman Menendez proposed—and Kerry accepted subject to an ill-defined administration override. The concern here is that a three-year sunset will shackle the next president, creating a situation in which he or she comes into office and suddenly faces a lapsing of authority to wage a conflict everyone still expects to be ongoing. Conversely, those who want a shorter sunset worry about recreating a Forever War and want a relatively quick forcing mechanism to make the President come back to Congress.

Third, there is a sharp divide on the committee over geographic limitations, on which some members insist and which others see as legislative micromanagement of the conduct of a war.

After watching the hearing and reading a transcript, I was honestly left unsure as to whether there’s a way to thread the needle and come up with language that a broad bipartisan majority will support and that the administration would also embrace.

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 3

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Wednesday, December 10, 2014 at 7:49 PM

Below you will find the third in our running comparison of broad areas of agreement and disagreement as between the Executive Summary to the Senate Intelligence Committee’s Study on the CIA’s Detention and Interrogation Program, the report by the Committee’s Minority, and the response by the CIA itself.   The Study, you’ll recall, sets forth twenty broad “findings and conclusions,” many of which the Minority and the CIA address.

Our first two posts covered the SSCI’s first eight findings; here is a discussion of findings nine through twelve.

Committee Conclusion #9: The CIA impeded oversight by the CIA’s Office of Inspector General.

The Study observes that, for example, the CIA did not brief the Office of the Inspector General (“OIG”) until after a detainee had died, “by which time the CIA had held at least 22 detainees at two different CIA detention sites.” And while the Inspector General thereafter investigated and conducted oversight, “CIA personnel provided OIG with inaccurate information on the operation and management of the CIA’s Detention and Interrogation Program, as well as on the effectiveness of the CIA’s enhanced interrogation techniques.”

The leadership played a role here, too. “In 2005, CIA Director Goss requested in writing that the inspector general not initiate further reviews until reviews already underway were completed.”  Likewise, “[i]n 2007, Director Hayden ordered an unprecedented review of the OIG itself in response to the OIG’s inquiries into the CIA’s Detention and Interrogation Program.”

Minority Views as to Conclusion #9

The Minority pulls no punches here, calling Conclusion #9 “among the most serious charges the Study levels at the CIA. As such, the Study should back up this charge with clear and convincing evidence. In our opinion it not only fails in that effort, but the Study itself is replete with examples that lead to the opposite conclusion—that the CIA did not significantly impede” OIG oversight.

The OIG itself never claimed that it had less than the legally-required “full and direct access to all information” needed to fulfill its duties.  To the contrary, it certified that it indeed had such access throughout all four semiannual reports it filed during the Interrogation Program’s lifespan. According to the Minority, the OIG likewise never complained to the intelligence committees about any CIA obstruction, as the OIG was required by law to do immediately upon encountering any. Instead, in 2006 Inspector General Helgerson testified that he undertook a comprehensive look at alleged cases of detainee abuse. And small wonder: the OIG’s reports speak of access to “more than 38,0000 pages of documents and …. more than 100 interviews” in one review of rendition, detention and interrogation practices. In another, writes the Minority, OIG personnel “had access to facilities and individuals responsible for managing and operating three detention sites.”  OIG officials were “able to review documentation on site, observe detainees through closed-circuit television or one-way mirrors, and the IG even observed the transfer of a detainee aboard a transport aircraft.”   Read more »

Steptoe Cyberlaw Podcast, Episode #46: An Interview with Shane Harris

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Wednesday, December 10, 2014 at 4:00 PM

Our interview focuses on Shane Harris and his new book, @War:  The Rise of the Military-Internet Complex.   It’s a good read and a good book, marred by the occasional deployment of easy lefty tropes – government contractors are mercenaries, the military sees war as an opportunity to expand turf, cybersecurity is a threat to privacy, anonymity is all about rights, etc.  But Harris is first and foremost a storyteller, and his zeal for the story is far more important to him than ideology.  When he tells the story of the guys who used cybertactics to break al Qaeda in Iraq during the surge, or of the banks’ cyberbattle with Iran, he lets the reader decide who to root for.

We talk about some of the more surprising stories that Harris tells, including:

  • The (contested) claim that Chinese hackers caused a large Florida blackout by mistake
  • The mismatch between an estimated 300-1000 US government hackers and China’s estimated 20 thousand  (A land war in Asia could be coming to a network near you)
  • Harris’s controversial suggestion that the banks may be assembling their own zero-day exploits in preparation for a hackback campaign against Iran
  • The possibility that foreign governments systematically compromised the networks of American natural gas pipeline companies in preparation for an attack – and whether we’d even know when cyberweapons had been used

In our news roundup, we start with This Week in NSA, but the latest Intercept story on NSA and cell phone interception is so boring and opaque it’s practically encrypted.   So we switch to This Week in GCHQ.   At the suggestion of a listener, we mine the UK parliamentary report on the killing of a soldier on the streets of London for lessons about the need for MLAT reform in the United States.

Verizon escapes an FTC investigation without an eternal oversight regime.  Why?  Because of its aggressive effort to cure a security flaw or because the FTC realized it had overreached?  You be the judge.

We unpack the judicial decision refusing to dismiss bank claims against Target for its credit card breach, raise questions about a Boston hospital’s surprisingly cheap settlement of a privacy case arising from a stolen laptop.  And then dive into the biggest breach case of the year, maybe the decade:  Sony.  We think North Korea did the hack, and the lack of a US response could have bad consequences for the country.  Among other things, the only bad guys we’ll ever see in future movies are Serbs.  And US government officials, of course.

We remind everyone that the Podcast welcomes feedback, either by email ([email protected]) or voicemail (+1 202 862 5785).

Today’s Headlines and Commentary

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Wednesday, December 10, 2014 at 2:46 PM

The news cycle over the past day has been dominated by the release of the extensive report on CIA intelligence-gathering techniques, popularly known as the “torture report” or the “CIA report.” The New York Times writes that the review portrays a broken CIA that was devoted to a failed interrogation program. NBC News reports that the CIA paid “torture teachers” over $80 million to develop and operate the “enhanced interrogation techniques.According to Vox, the Senate report proves “once and for all” that the use of enhanced interrogation techniques did not lead to the capture of Osama bin Laden. The New York Times has its own piece on that latter point, too.

The Times also claims that, according to the report, the CIA used media leaks to its advantage by shaping public discourse and opinion over the EITs. The Washington Post outlines some of the more gruesome techniques interrogators employed, including rectal rehydration and feeding. NBC News takes a look into how the CIA tried to “break” prisoners in its ultra-secret “Salt Pit” detention center in Afghanistan. The Los Angeles Times notes that according to the report, the CIA struggled to continuously rationalize the brutal interrogations. Also, the Boston Globe repeats a report allegation that former President Bush was “kept in the dark” on certain CIA tactics.

The Hill carries President Obama’s response to the report, wherein he states that torture is “contrary to our values.” The Washington Post features more on his comments and the report here. The Post also has CIA Director John Brennan’s rebuttal to the study. RollCall covers Senator McCain’s reaction to the report and his “unique moral perspective” on the question of torture.

Politico outlines what is not in the report. The New York Times notes that the release of the study has prompted calls, both domestically and abroad, for prosecution of CIA agents involved. However, those hoping for trials shouldn’t hold their breath, says Bloomberg View. According to them, there are more than a few reasons why the CIA is not likely to be punished.

In addition to their coverage, the Washington Post also has a timeline of important dates regarding the report. US News features the numbers behind the CIA interrogation report. For those interested in knowing more about the 54 countries that aided the CIA’s detention and interrogation program in some way, Vox provides a map. Also, the Washington Post collated the 10 “most harrowing” excerpts from the report.

If you want to know what the CIA actually did, Time explains. And, for an oldie, check out this piece in the Post that examines five myths about torture.

For more related coverage, here is a handy list:

For more commentary, here is another roundup:

If you are looking for all of the primary materials involved with the report, Lawfare has got you covered. Stay tuned—we are currently sifting through all of the documents and will be publishing and updated commentary and analysis along the way.

In other news, the Long War Journal reports that the 6 Guantanamo detainees that were transferred to Uruguay were reportedly part of al Qaeda’s network.

The New York Times carries the testimony US Secretary of State John Kerry gave yesterday on the fight against ISIS

McClatchy writes that rebels in northern Syria say the US has stopped paying them.

According to the Washington Post, Iraqi officials are pressing outgoing US Secretary of Defense Chuck Hagel for more military support.

The Daily Beast is out with a new article that explains ISIS slavery for dummies.

The Wall Street Journal reports on the security gaps at US posts abroad.

ISIS has another jihadi competitor; NBC News reports that Boko Haram’s level of violence is now comparable to the Islamic State.

The West Bank is on high alert today after a high-ranking Palestinian Authority minister died during an altercation with Israeli security forces. Zaid Abu Ein, the PA Minister for Settlement and the Fence, reportedly collapsed and passed away during a demonstration in Emek Shilo, an area “prone to frequent clashes.” The New York Times has more.

Israel’s Labor party, led by Isaac Herzog, and Hatnua party, led by Tzipi Livni, announced their merger today ahead of early elections in the country. The Jerusalem Post provides more on the move.

Finally, Reuters reports that the US and Pakistan have agreed to increase their bilateral cooperation.

ICYMI: Yesterday, on Lawfare

Ben Wittes provided an overview of what to expect from Lawfare as we review the SSCI report on CIA Enhanced Interrogation Techniques.

The Lawfare staff curated the primary documents from the SSCI study, including the full report, Minority and CIA responses. Ben Wittes also provided video reactions from various senators.

Wells Bennett, Cody Poplin, and Ben Bissell have began to review the findings, conclusions and areas of dispute between the SSCI study, the Minority, and the CIA. You can find Part 1 here and Part 2 here.

Paul Rosenzweig introduced a new series on the Lawfare Bitcoin. Make sure to follow along in this experiment.

Ben Wittes linked us to the text of Secretary Kerry’s opening statement and the video of his full testimony yesterday in front of the Senate Foreign Relations Committee.

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.

The Obama Administration Wants a Super-Broad AUMF for the Islamic State (and Other Reactions to Yesterday’s AUMF Hearing)

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Wednesday, December 10, 2014 at 2:07 PM

Secretary of State Kerry testified yesterday before the Senate Foreign Relations committee on the need for a new AUMF for the Islamic State (which Kerry referred to by the new moniker “Daesh,” and I will for now call “IS”).  It was a revealing few hours.  The Senators were well-informed and asked good questions with an unusual bipartisan flavor.  Kerry was well-informed too and did his best to answer their questions.  The big news is that Kerry laid the administration’s cards on the table about what it wants in an AUMF for IS.  It wants quite a lot.

Some reactions:

Obama’s Past Pledges.  President Obama has long said he wants to work with Congress to update presidential authorities to comport with the modern Islamic terrorist threat.  Most recently, on November 5, the President stated: “I’m going to begin engaging Congress over a new Authorization to Use Military Force against ISIL.”  Yesterday’s hearing made plain that this pledge, like past similar pledges, was hollow.  Senators from both sides of the aisle complained about the lack of Executive branch engagement, the absence of a concrete presidential proposal, and Congress’s general inability to get information from the Executive branch related to a new AUMF.

Kerry’s Outline of Administration Preferences.  While Kerry resisted the notion that the administration should send Congress a concrete AUMF proposal, he did state the four main elements of what the administration prefers in an IS AUMF: (i) authority to use force against IS andassociated forces; (ii) no geographical limitation; (iii) no ground troop limitation; and (4) a three-year time-limit on the authorization, with an exception for an “extension in the event that circumstances require it.”  Kerry was very vague on point (iv) but it sounds like he wants to maintain the Executive branch’s ability to extend the conflict beyond three years based on the President’s (as opposed to Congress’s) determination about the continuing threat posed by IS.  That does not sound like much of a time limit, and certainly not one that requires new congressional authorization after three years.

The Extraordinary Breadth of the Administration’s Desired AUMF.  What the administration appears to be seeking is an open-ended IS AUMF akin to the one that Congress gave the President for al Qaeda and affiliates in the 2001 AUMF.  In addition to the features noted above, the administration would like an “associated forces” extender but (apparently) not a reporting requirementabout covered groups or places.  This would replicate the problem under the 2001 AUMF of Congress (and the American people) not necessarily knowing who we are fighting against, or where.  It is also worth noting that Kerry envisions the proposed IS AUMF to extend very broadly geographically.  When Senator Udall asked how Kerry’s outlined AUMF would “treat groups who have pledged their allegiance to the Islamic State, including, as of December 2014, groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia?,” Kerry responded: “They should be associated forces. They fit under that category.”  All of these factors, taken together, amount to a desire for an extraordinarily broad IS AUMF.  Pretty amazing coming from an administration whose Chief Executive said in his NDU speech 18 months ago (i) “Unless we discipline our thinking, our definitions, our actions, we may . . . continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” (ii) that he “look[ed] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate,” and (iii) that he “will not sign laws designed to expand this mandate further.”  I view of Kerry’s testimony as the final repudiation of this element of the NDU speech, and as an acknowledgment that the “Forever War” is not close to over.  Read more »

Mysterious ’08 Turkey Pipeline Blast Opened New Cyberwar Era

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Wednesday, December 10, 2014 at 1:47 PM

Bloomberg has the story.  For those who think that cyber conflict is a bit of a myth, this is a cautionary tale.  From the opening:

The pipeline was outfitted with sensors and cameras to monitor every step of its 1,099 miles from the Caspian Sea to the Mediterranean. The blast that blew it out of commission didn’t trigger a single distress signal.

That was bewildering, as was the cameras’ failure to capture the combustion in eastern Turkey. But investigators shared their findings within a tight circle. The Turkish government publicly blamed a malfunction, Kurdish separatists claimed credit and BP Plc (BP/) had the line running again in three weeks. The explosion that lit up the night sky over Refahiye, a town known for its honey farms, seemed to be forgotten.

Senator Mark Udall Now Speaking on the Senate Floor

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Wednesday, December 10, 2014 at 11:13 AM

We only have a C-Span link thus far, but will embed video, and post a transcript, when and if one or the other becomes available.

The outgoing Democrat and member of the Senate Intelligence Committee is addressing the Committee’s Study, released yesterday; and, among other things, the search of Committee staffers’ computers by the CIA.

[Update: the Senator has concluded his remarks.]

Congress Tries To Stop the IANA Transition — But Does It?

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Wednesday, December 10, 2014 at 10:57 AM

By now, readers of this blog are aware of the decision by the Obama Administration to relinquish the last vestiges of control of the Internet Assigned Numbers Authority (known as the IANA function).  The IANA function is currently operated by a non-profit corporation, the Internet Corporation for Assigned Names and Numbers (ICANN), under contract to the National Telecommunications and Information Administration (NTIA), which is an Administration within the Department of Commerce.  The mechanism by which the Obama Administration has chosen to relinquish control is through a decision to simply not renew that contract when it expires in September 2015 (thereby leaving ICANN with the authority to manage the IANA function on its own).  The NTIA has set certain conditions on this decision (background here, here, and here) and ICANN is busy trying to develop a proposal that meets those conditions — so the decision is a contingent one, where NTIA will, in the end, have to evaluate ICANN’s proposals.

Now Congress has intervened.  In the Omnibus spending bill that looks to be going through Congress this week the following language appears:

SEC. 540. (a) None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.

(b) Subsection (a) of this section shall expire on September 30, 2015.

I think this is unlikely to have the effect that Congress seems to intend.  As I said back in May, when this proposal was first made, the language prohibits the NTIA from spending funds to carry out the transition.  So, if enacted in law, NTIA would be disabled from participating in discussions with ICANN about the nature of the transition, precisely at the critical moment when those discussions would be most useful to NTIA, to ICANN and to America.

More importantly, since the act of not signing a contract (which is what NTIA proposes to do) costs nothing, there can be no funding prohibition that effectively prevents NTIA from declining to renew the contract.  To achieve that end it need simply let the current contract expire on its own terms by doing precisely zero — inaction that is consistent with the funding prohibition.  The only way for Congress to achieve its objective of preventing the transition would be to affirmatively prohibit the transfer (a result that has nearly no likelihood of occurring).

In short, I read this language as disabling NTIA from engaging in discussions of the transition while not, in the end, preventing the transition itself — a lose-lose proposition if ever there was one.  And if, to the contrary, the NTIA reads this  language as compelling renewal of the contract and preventing the transition altogether, then this will send the wrong message to the rest of the world, many of whom doubt the bona fides of American stewardship of the network.  The United States achieved a fairly successful result at NetMundial in Brazil — at least in part because the proposed IANA transition created good will.  This points in the opposite direction.

Video of Secretary of State Kerry’s Testimony on ISIL AUMF

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Tuesday, December 9, 2014 at 9:52 PM

Today before the Senate Foreign Relations Committee:

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 2

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Tuesday, December 9, 2014 at 9:46 PM

Below, you will find the second installment in our ongoing effort to identify, in summary form, key areas of dispute as between the SSCI, the SSCI minority, and the CIA with regard the CIA’s detention and interrogation program. As you surely know by now, all three today released long-anticipated reports regarding the CIA’s post-9/11 detention and interrogation activities. 

A little reminder about structure: the two Committee reports both follow the same basic setup, in that the SSCI’s Study (among other things) made twenty separate findings and conclusions, and the minority responded to each. The CIA’s submission, by contrast, was written in reaction to an earlier draft of the Study, so it’s therefore organized differently. As noted in our first installment, our overview follows the majority report’s organization—and seeks to set forth, as simply as possible, places where the three parties agree an disagree with respect to the Committee’s twenty factual findings.

Our first post in the series detailed the first four of those findings; below, you’ll find a summary of findings five through eight. Stay tuned for more.

Committee Conclusion #5: The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program.

According to the Study, the Office of Legal Counsel (OLC) relied on the CIA to provide information on the following topics: (1) the conditions of the detainees’ confinement; (2) the application of the CIA’s enhanced interrogation techniques; (3) the physical effects of the EITs on detainees; and (4) the efficacy of the EITs in producing actionable intelligence. But there was a caveat. If the facts were to change, the OLC warned Langley, its legal conclusions might no longer apply. Yet when the CIA determined that the information it had provided earlier was no longer correct, it “rarely” told the DOJ, according to the Committee.

Read more »

Various Senators React to the SSCI Report

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Tuesday, December 9, 2014 at 9:23 PM



Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 1

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Tuesday, December 9, 2014 at 5:31 PM

We’re going to start processing this voluminous release of material by comparing the top-line conclusions reached by the three major entities: The SSCI majority, the SSCI minority, and the CIA, each of which issued its own document today.

The two committee documents both follow the same basic trajectory. The committee made twenty separate findings and conclusions, and the minority responded to each of them. (To be clear, we refer to the merits findings contained within the SSCI piece and any responses—but not to process critiques by the minority or CIA regarding the Committee’s investigation, for example with respect to the Committee’s having not interviewed witnesses. We will deal with those later.)  The CIA’s submission, by contrast, was written in reaction to an earlier draft, so it’s therefore organized differently. We’re going to follow the majority report’s organization, and using quotations wherever possible, simply lay out where the different documents agree and where they disagree with respect to the Committee’s main claims.

We will be posting this summary in stages and will keep adding to it as we thumb through the various reports; you’ll find a summary of the Committee’s four main findings below, along with minority and agency responses.  The remaining sixteen will follow, and we’ll update the post as we go.

Committee Conclusion #1: The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence of gaining cooperation from detainees.

The Study says, for example, “according to CIA records, seven of the 39 CIA detainees known to have been subjected to the CIA’s enhanced interrogation techniques produced no intelligence while in CIA custody.” There’s more: “[W]hile being subjected to the CIA’s enhanced interrogation techniques and afterwards, multiple detainees fabricated information, resulting in faulty intelligence.” “CIA officers,” moreover, “regularly called into question whether the CIA’s enhanced interrogation techniques were effective, assessing that the use of the techniques failed to elicit detainee cooperation or produce accurate intelligence.” Read more »