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The Al Bahlul Argument: Article III, Conspiracy, and Precepts of International Law

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Thursday, October 23, 2014 at 9:33 AM

Some may wish that Ex Parte Quirin, the Supreme Court’s case upholding the military commission convictions of Nazi saboteurs would recede into history.  However, as Steve has noted, the oral argument in the D.C. Circuit Wednesday in Al Bahlul v. United States suggested that Quirin is very much alive.

The D.C. Circuit decided in an en banc decision in July that the Ex Post Facto Clause did not bar the conviction for inchoate conspiracy of Ali Hamza al Bahlul, a former bin Laden aide whose acts the D.C. Circuit found “directly relate” to the 9/11 attacks.  Wednesday’s argument centered on whether commission jurisdiction over al Bahlul’s case violated Article III of the Constitution.  In typically thoughtful questioning, Judge David Tatel asked whether military commission jurisdiction in al Bahlul’s case was consistent with “strong dicta” in Quirin that ties commission jurisdiction to the “rules and precepts of the law of nations” (p. 28).  The best answer is that this passage and others in Quirin, when read in context, favor the government’s view that charges that are “cognizable” in commissions (again quoting Quirin) include two categories of charges: 1) those expressly authorized by international law (such as the murder of civilians), and, 2) those domestic law charges related to armed conflict that international law permits states to try in commissions.  Read more »

Oral Argument in Al Bahlul: Judge Tatel and Quirin Dicta

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Wednesday, October 22, 2014 at 7:24 PM

Much could be said about this morning’s argument, before a three-judge panel of the D.C. Circuit, in the long-running military commission case of Ali Hamza Ahmad al Bahlul v. United States. In this little read-out, I’ll make this lone observation (one I see Steve also mentioned too, over at Just Security): with his questions to both parties today, Judge David Tatel demonstrated keen sensitivity to a key precedent, Ex Parte Quirin.

Tatel pressed both appellant and appellee hard on precisely what the Supreme Court’s famed Nazi saboteurs opinion had held, as opposed to what it merely said—and what that distinction might mean for resolution of a critical issue left unresolved by the D.C. Circuit’s July en banc opinion in Al Bahlul: whether the jurisdiction of a Guantanamo military commission constitutionally may include only international offenses, or both international as well as domestic ones.

The detainee’s attorney Michel Paradis unsurprisingly took the former position, arguing that under Quirin, “law of war” commission jurisdiction simply does not extend to conspiracy, a concededly domestic law offense. Consistent with that view, when asked by the court, Paradis claimed Quirin had held that the “law of war,” so far as military commissions are concerned, consists of the international law of war—full stop. Tatel wasn’t having that. Quirin, the judge said, pointedly declined to explore the outer limits of commission jurisdiction; indeed it “held” (in the words of the opinion itself) “only” that the sabotage specification against the captured Nazis “constitute[d] an offense against the law of war which the Constitution authorizes to be tried by military commission.” That didn’t sound like a holding one way or the other on the (in)validity of domestic law offenses in the law of war commission setting. To be sure, Judge Tatel also pointed out that the Quirin opinion is littered with talk to the effect that the law of war is, in fact, entirely international. Nevertheless, having not actually held that domestic offenses can never be brought in a military commission, consistent with the Constitution, Quirin did not actually resolve the question now presented by Al Bahlul’s case. Or, at least, it did not do so in a fashion directly binding so many years later, on the D.C. Circuit.   Read more »

DNI Releases Update on PPD-28 Implementation

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Wednesday, October 22, 2014 at 6:57 PM

On Friday, the Director of National Intelligence (DNI) released an update on the implementation of Presidential Policy Directive/PPD-28, regarding signals intelligence activities. Issued on January 17 by President Obama, PPD-28 “directs intelligence agencies to review and update their policies and processes … to safeguard personal information collected through signals intelligence.”  (In January, Ben unpacked both the directive and President Obama’s speech regarding it.)

Among other things, PPD-28 required the DNI to work with both the Justice Department and the broader Intelligence Community to release an interim report regarding the status of the directive’s implementation. According to a summary released by the DNI, the newly released interim document outlines “principles for agencies to incorporate in their policies and procedures[,]” including some that reach beyond minimums set by PPD-28.  The principles include:

  • Ensuring that privacy and civil liberties are integral considerations in signals intelligence activities.
  • Limiting the use of signals intelligence collected in bulk to the specific approved purposes set forth in PPD-28.
  • Ensuring that analytic practices and standards appropriately require that queries of collected signals intelligence information are duly authorized and focused.
  • Ensuring that retention and dissemination standards for United States person information under Executive Order 12333 are also applied, where feasible, to all personal information in signals intelligence, regardless of nationality.
  • Clarifying that the Intelligence Community will not retain or disseminate information as “foreign intelligence” solely because the information relates to a foreign person.
  • Developing procedures to ensure that unevaluated signals intelligence is not retained for more than five years, unless the DNI determines after careful evaluation of appropriate civil liberties and privacy concerns, that continued retention is in the national security interests of the United States.
  • Reinforcing and strengthening internal handling of privacy and civil liberties complaints.
  • Reviewing training to ensure that the workforce understands the responsibility to protect personal information, regardless of nationality. Successful completion of this training must be a prerequisite for accessing personal information in unevaluated signals intelligence.
  • Developing oversight and compliance programs to ensure adherence to PPD-28 and agency procedures, which could include auditing and periodic reviews by appropriate oversight and compliance officials of the practices for protecting personal information contained in signals intelligence and the agencies’ compliance with those procedures.
  • Publicly releasing, to the extent consistent with classification requirements, the procedures developed pursuant to PPD-28.

The Intelligence Community is tasked with implementing PPD-28 by January 2015.

North Korean Ambassador to the UN Talks at CFR

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Wednesday, October 22, 2014 at 3:56 PM

In case you need a macabre laugh. Transcript is available here if you can’t stand watching Jang Il Hun compare human rights in his country favorably to those in South Korea.

Today’s Headlines and Commentary

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Wednesday, October 22, 2014 at 1:43 PM

The Washington Post shares breaking news of multiple shooting incidents in Ottawa, Canada. “Dozens of gunshots were heard inside Canada’s Parliament… shortly after a soldier was reported shot at the nearby National War Memorial.” CNN has details of the unfolding situation. One shooter is apparently dead.

Pentagon spokesperson Rear Adm. John Kirby announced yesterday that U.S. campaign against the Islamic State has cost $424 million so far. The Associated Press has more.

On Monday and Tuesday, the U.S. military conducted four airstrikes in Syria against the Islamic State. The U.S. was joined by an international coalition in three additional attacks on targets in Iraq. Reuters details the strikes.

McClatchy informs us that a pallet of weapons dropped by the U.S. to aid Kurdish fighters in the Syrian border town of Kobani may have instead been captured by the Islamic State. A Youtube video released by the militant group depicts “fighters pulling hand grenades, rocket-propelled grenades and other arms from a crate.” Defense spokesperson Rear Adm. John Kirby admitted yesterday that the arms shown in the video “certainly are the kinds of munitions dropped.”

The Wall Street Journal reports that, because of the symbolic importance of Kobani, the U.S. has been working secretly with Kurdish forces battling the Islamic State. The level of American involvement in the fight over the border town signals that “the U.S. [has] crossed a Rubicon that could herald a more hands-on role in other towns and cities under siege by Islamic State.”

Defense News shares that in a speech yesterday, Iraq’s new defense minister, Khaled al-Obaidi promised to investigate the military’s mistakes, failings, and corruption that enabled the Islamic State to overtake swathes of territory in the northern part of the country.

The U.S. and Iraqi militaries are developing a strategy for Iraqi ground troops to retake towns and cities lost to the Islamic State. The Post brings us details of the plan so far.

Reuters examines the vulnerabilities of Iraq’s Anbar province. According to Faleh Issawi, a member of the Anbar provincial council, “Eighty percent of the province is under the control of IS and the remaining 20 percent is under control of some security forces and tribal fighters.”

The New York Times profiles David S. Cohen, the Treasury Department’s Under Secretary for Terrorism and Financial Intelligence, who is working to choke off funding for the Islamic State.

The AP reports that Syrian President Bashar al-Assad has taken advantage of the international coalition against the Islamic State by focusing his resources and efforts on combating more moderate rebel groups.

In Germany, the Federal Bureau of Investigation (FBI) intercepted three teenage girls from Colorado who were on their way to join the Islamic State. According to the Times, one of the girls had “become inspired” by Islamic State militants and then convinced the other two to come with her. A spokesperson for the FBI announced yesterday that the three are “safe and reunited with their parents.”

Congresswoman Carolyn Maloney (D-NY) has called for legislation, which would deny welfare benefits to Americans who have joined the Islamic State. The Hill shares her statements.

Yesterday, the Afghan defense ministry released statistics on casualties among its military and police forces over the past year. The Wall Street Journal informs us that 2014 has been the “deadliest for Afghan troops since the war began 13 years ago.”

As nuclear negotiations with Iran continue, some U.S. lawmakers have called for a bigger congressional role in the process. According to Foreign Policy, “at issue is the administration’s plan to temporarily suspend economic sanctions against the Islamic Republic without a vote in Congress.”

A spokesperson for the Ukrainian military affirmed yesterday that Ukraine has never used cluster bombs in its fight with pro-Russian rebels, despite reports to the contrary by Human Rights Watch. The Los Angeles Times shares details.

The U.S. and South Korea are revising plans that would give Seoul control of the two countries’ military forces “in the event of war on the Korean peninsula.” According to Stars and Stripes, the two nations are working to outline “goals for Seoul’s military capabilities before a transfer can be made.” U.S. Secretary of Defense Chuck Hagel and South Korean Defense Minister Han Min-koo meet Thursday to discuss.

In November, the U.S. and Japanese militaries will conduct joint exercises, aimed at ensuring interoperability and strengthening “island defense capabilities.” Reuters has details.

According to BBC News, U.S. Secretary of State John Kerry has chosen former Democratic presidential nominee Senator Gary Hart (D-CO) to serve as the U.S. Special Envoy for Northern Ireland.

Reuters reports that the National Security Agency (NSA)’s Chief Technical Officer Patrick Dowd will end his part-time work for IronNet, the private cybersecurity company started by former NSA Director General Keith Alexander, amidst a conflict of interest review by the agency.

In War on the Rocks, Ben FitzGerald, director of the Technology and National Security Program at the Center for a New American Security, examines the U.S. military’s technology strategy.

Chairman of the Joint Chiefs of Staff General Martin Dempsey posted a video to Youtube yesterday, addressing concerns regarding the deployment of U.S. troops to combat the Ebola outbreak in western Africa. Navy Times has more.

The Centers for Disease Control and Prevention has announced a new program to screen and monitor passengers traveling to the United States from western Africa. USA Today has details.

Breaking Defense shares an interview with Air Force General Mike Hostage, the head of Air Combat Command.

The Post describes disputes between former Defense Secretary and Central Intelligence Agency (CIA) Director Leon Panetta and the CIA’s Publications Review Board regarding redactions from the former Director’s recently published memoir, Worthy Fights. Apparently, Panetta “allowed his publisher to begin editing and making copies of the book before he had received final approval from the CIA.”

Breaking Defense explains how biometric technology may spell the end of the covert spy.

Reuters also informs us that the Department of Justice “is restructuring its national security prosecution team to deal with cyber attacks and the threat of sensitive technology ending up in the wrong hands.” Spearheading the changes is Assistant Attorney General John Carlin, who has recruited a number of experienced prosecutors to join his team.

In Real Clear Defense, Mackenzie Eaglen and Charles Morrison of the American Enterprise Institute explain how cyber espionage by Chinese nationals “is eroding U.S. military superiority.”

Senator Dan Coats (R-IN), a member of the Senate Select Committee on Intelligence, shares an opinion in USA Today, criticizing the USA Freedom Act and explaining the merits of the Intel Committee’s FISA Improvements Act.

Yesterday, before a federal district court in New York, Haroon Aswat, a British citizen extradited to the U.S., pleaded not guilty to terrorism charges. Aswat is accused of attempting “to set up a jihadist training camp in Oregon in 1999.” Reuters has details.

Today, a jury in Washington convicted four Blackwater Worldwide guards for killing 14 Iraqis and wounding 17 others during “a botched security operation” in Baghdad in September 2007. The Post describes the case.

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.

Charging Snowden With…Murder? Really?

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Wednesday, October 22, 2014 at 12:57 PM

Offered without (or only a little) further comment: this piece from The Hilland a rather eyebrow-raising quotation therein from House Intelligence Committee Chairman Mike Rogers regarding Edward Snowden:

The former government contractor who leaked details about secret programs of the National Security Agency (NSA) and its British counterpart is a “traitor,” Chairman Mike Rogers (R-Mich.) told members of Parliament in the British House of Commons on Tuesday, according to reports.

“We are treating him, as I would argue, [like] the traitor that he is,” Rogers added. “And by the way—and this is important—I would charge him for murder.”

So far the Justice Department has not charged Snowden with murder, or even hinted in that direction. Pursuing a murder count would raise the stakes significantly, both for the United States and, naturally, Snowden himself. It’s also totally unclear what basis, if any, Rogers may have for suggesting this. Who exactly is Snowden supposed to have killed, when, and where? If Rogers has any grounds—factual or legal—for this rather dramatic statement, he should make them clear.

Government Files Response in Allaithi v. Rumsfeld

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Wednesday, October 22, 2014 at 12:48 PM

The government has filed its response to six Guantanamo detainees’ August 25, 2014 petition for en banc rehearing in Allaithi v. Rumsfeld. The detainees argued that (1) the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014) established that they were entitled to freedom from substantial burdens on their religious practices as “persons” under the Religious Freedom and Restoration Act (RFRA, and (2) the panel incorrectly relied on Rasul I to find that the detainees’ treatment fell within defendants’ scope of employment, as Rasul I applies only to enemy combatants.

The government spends most of its 15-page brief arguing that the panel corrected affirmed the dismissal of the detainees’ RFRA claims, as Guantanamo detainees do not constitute “persons” under the statute even after Hobby Lobby, and defendants are entitled to qualified immunity. Addressing the detainees’ two more minor arguments in brief, the government contends that (1) the panel correctly determined that the defendants were acting within the scope of their employment, such that the United States properly substituted itself for the defendants under the Westfall Act, and that (2) the detainees forfeited any challenge to the dismissal of the “John Doe” defendants by failing to raise the claim in their appellate briefs or at oral argument.

Defendants in United States v. Muhtorov Move to Compel Notice of Surveillance Techniques

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Wednesday, October 22, 2014 at 11:23 AM

As Orin Kerr has already noted on this site, the Department of Justice policy offers very little “notice” to criminal defendants of the surveillance techniques used to obtain evidence.  The defendants in United States v. Muhtorov, charged with providing material support to foreign terrorist organizations, filed a motion Monday asking the District Court for the District of Colorado to compel the government to disclose the specific techniques used to obtain the evidence against them.

In essence, the defendants argue that the lack of notice of the specific techniques precludes them from arguing for suppression of evidence as “fruit of the poisonous tree,” thus violating their due process rights.  The motion speculates—and that’s all it can do, absent notice—that the government relied in its investigation on surveillance under E.O. 12,333, the domestic call records program challenged in Klayman v. Obama, the internet metadata reportedly discontinued in 2011, and other secret intelligence collection programs.  Instead of providing notice of these techniques, the motion alleges, the government engaged in “evidence laundering” and parallel construction to obscure the original, potentially illegal, sources of evidence.

The motion notes that the government apparently does not believe it is required to disclose its techniques, perhaps on the basis that collection of metadata does not constitute a search.  But, defendants argue, the government “cannot preempt the right to seek suppression by withholding notice based on its own conclusion that its methods are lawful.”

The defendants also attack the government’s keeping secret its interpretation of when evidence is “derived from” such surveillance.  If the government’s definition of “derived from” is impermissibly narrow, then it can withhold notice on its own judgment and prevent the defendants, and the court, from ever testing both the underlying surveillance techniques and the determination that evidence was not in fact “derived from” those techniques.  The motion further argues that the government cannot hide behind the veil of national security to avoid notice.  The defendants point to United States v. U.S. Dist. Court (Keith), where the Supreme Court ordered disclosure of the wiretap records even though the government had threatened to abandon the prosecution if the Court ordered the disclosure.  Finally, defendants assert a broad statutory right to notice of surveillance techniques under 18 U.S.C. § 3504, and a specific right to notice of the use of the internet-metadata program under FISA.

Audio of Last Week’s ODNI Conference at the University of Texas

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Wednesday, October 22, 2014 at 6:56 AM

I am happy to report that we now have the audio from last week’s conference at the University of Texas exploring the lessons learned from the past ten years’ experience under the ODNI and NCTC.  The event was sponsored by UT’s Robert Strauss Center for International Security and Law, which I direct, as well as UT’s Clements Center for History, Strategy & Statecraft (directed by Will Inboden) and the Intelligence and National Security Alliance. The full agenda, with corresponding audio for each session, appears below.  For those who prefer to watch rather than listen, we hope to have the videos posted by the end of the week.

THURSDAY, OCTOBER 16

Moderated Dialogue with Admiral William McRaven (ret.)

Keynote Address: “Ten Years of Intelligence Integration and Reform”: James Clapper, Director of National Intelligence

FRIDAY, OCTOBER 17 Read more »

PRB Recommends Repatriation for One Saudi Detainee, Continued Detention for Another

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Tuesday, October 21, 2014 at 2:56 PM

Yesterday the Periodic Review Board recommended the repatriation of Muhammad Murdi Issa al-Zahrani, a Saudi detainee who has been held in Guantanamo for 12 years after being captured in Afghanistan in 2002.

The Board’s short statement concluded that given the “uncorroborated nature” of Zahrani’s association with Al Qaeda, his lack of ties to at-large extremists, and his apparent good behavior while in detention—along with his expressed desire to pursue a peaceful life after Guantanamo—detention was “no longer necessary to protect against a continuing significant threat to the United States.” Instead, the Board wrote, release and reparation to Saudi Arabia was appropriate. The Board also expressed confidence in the Saudi rehabilitation program, and highlighted Zahrani’s intent to participate in that program upon his return to his home country.

(A more detailed profile of Zahrani, which includes the circumstances giving rise to his capture in Afghanistan and his behavior while in detention, was declassified this past April.)

However, the Board also found that continued detention would be necessary in the case of Mohammed al Rahman al Shumrani, another Saudi national. The government had described him in a previously declassified report as “a problematic and unpredictable detainee throughout his incarceration at the Guantanamo Bay detention facility” who had “committed several significant disciplinary infractions and used his authority as a religious leader to encourage other detainees not to cooperate with detention staff.” In that declassified report, from February 2014, the government said that Shumrani had “told interrogators and other detainees he would reengage in extremism if he were released from Guantanamo.”

In it’s brief announcement denying Shumrani’s repatriation, the government reiterated that Shumrani had been engaged in  “problematic and unpredictable behavior” while in detention, and that the “Board had difficulty assessing the detainee’s current mindset due to his decision not to participate in the hearing.” The Board also said that it would review Shumrani’s file in six months, and would welcome participation from any representatives from Saudi Arabia.

 

Today’s Headlines and Commentary

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Tuesday, October 21, 2014 at 2:04 PM

According to Reuters, the United Kingdom has authorized “spy planes and armed drones to fly surveillance missions over Syria.” London’s statement that it would send Reaper drones and Rivet Joint surveillance aircraft to the embattled Middle Eastern country came soon after Turkey’s announcement on Monday that it would allow “Iraqi Kurdish fighters to reinforce fellow Kurds in the Syrian town of Kobani.” The Wall Street Journal and McClatchy report that the shift by Ankara came in response “to US pressure” and is “a striking reversal for a country that had considered those fighters its enemy.”

Still, all is not settled. The BBC reports that “fierce fighting” has erupted to the north of Kobani “after two days of relative calm,” driving speculation that ISIS is making a strong push to take the city before the arrival of peshmerga reinforcements. The New York Times has more on the rapidly-evolving situation, and the Washington Post provides several satellite photos of the struggle being waged in and around the city. The United States Central Command released a summary of recent military actions in the area, which include six airstrikes that destroyed ISIS fighting and mortar positions, an ISIS vehicle, and a stray resupply bundle, preventing it from falling into militant hands.

Liz Sly of the Washington Post reports on earlier failed tribal revolts against ISIS, including one that left 700 civilians dead. She argues that Western silence over ISIS’s brutal response may obstruct efforts to persuade those living under Islamic State rule “to join the fight against the jihadist group.”

And just for good measure, Syrian rebels claim Bashar al Assad’s forces are still using chemical weapons to kill civilians. FT has more. Read more »

Some Implications of President Obama’s Plans to Sidestep Congress on Iranian Sanctions

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Tuesday, October 21, 2014 at 9:28 AM

David Sanger recently reported that the Executive branch thinks it can suspend “the vast majority” of congressional sanctions unilaterally if it reaches a deal with Iran to forestall that nation’s nuclear weapons program.  “President Obama will do everything in his power to avoid letting Congress vote on” the matter, Sanger tells us.  “We wouldn’t seek congressional legislation in any comprehensive agreement for years,” says one senior official.

There are many different statutory sanctions against Iran, and Congress’s most recent word – from 2012 – tightens and narrows the President’s authority to waive the sanctions.  Without getting into the details, it nonetheless appears that the President can waive most if not all sanctions against Iran for the remaining two years of his term if he is willing to make the requisite findings.  If he does so, what are the implications for any nuclear deal with Iran?  Answer: The deal will be tenuous.

The fact that the President does not think he can get Congress on board for any deal with Iran signals to Iran that any deal would be with the President alone, and would last only as long as his waiver authority – i.e. two more years.  The deal could last longer, as it did with the last major unilateral presidential deal with Iran, the 1981 Algiers Accords that effectuated the release of the hostages.  In the transition between the Carter and Reagan administrations in January 1981 some in Congress and the press questioned whether President Reagan should honor the deal that Carter struck with Iran through Algerian intermediaries.  President Reagan did honor it, of course, and the courts upheld his and Carter’s actions.  But the situation with Iran today is different than 1981.  Among other differences, (1) Congress appears more skeptical of this deal-to-be than it did of the deal in 1981, (2) President Reagan and Congress faced powerful financial incentives to stand by the deal struck by President Carter (namely, the ability of American firms to recover property expropriated by Iran) that are not present in the current negotiation, and (3) Congress’s consent is probably necessary to make any deal now with Iran work over the medium term in a way that it was not necessary to make the deal work in 1981.

The bottom line, then, is that any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous.  And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.

Here we can see the underappreciated benefits that accrue when the President succeeds in winning congressional approval for a foreign policy deal (whether it is a treaty, a congressional-executive agreement, or something short of those things).  To win such approval the President must expend political capital and convince the American people and its representatives about the value of the deal.  The expenditure of presidential capital signals the importance of the deal to the President.  If he succeeds in winning approval from Congress, that approval credibly conveys that the nation, as opposed to a particular president, is behind the deal.  The negotiating partner thus receives meaningful information about the depth of the United States’(as opposed to the President’s) commitment, which makes possible (but does not guarantee) a deeper and more meaningful commitment by the negotiating partner.  Vladimir Putin understood this when he rejected President Bush’s handshake deal on nuclear weapons reduction and insisted instead on ratification of what became the Treaty of Moscow, which significantly cut U.S. and American nuclear weapons arsenals.

Of course, winning legislative approval for initiatives such as these is hard and sometimes impossible – which is precisely why such approval sends such strong signals about the nature and degree of the nation’s commitment.  President Obama believes, certainly correctly, that Congress is simply not going to cooperate on this issue right now.  (Sanger’s article will likely make Congress even more ornery on this topic.)  So if he wants a deal with Iran (which he clearly does), Obama must strike the deal on his own.  The President’s team might think that a short-term and tenuous deal with Iran – with the implication that Iran’s commitment to the deal will be tenuous as well – is better than no deal at all.  And it likely further thinks that the deal will prove its worth over two years, and might persuade the next President and Congress that it is worth continuing.  (Count me as doubtful on this last point.)

A final point.  Sanger notes that, just as Iran must assess the domestic support in the United States for any deal the President strikes, the United States similarly must assess whether the Iranian negotiator, Mohammad Javad Zarif, can sell his deal to the Iranian Revolutionary Guard and many of the mullahs.  Both sides are playing two-level games, and each is trying to understand how the domestic game by the adversary informs what is achievable in the international negotiation.  And surely there is much bluffing and posturing going on in each of these three negotiations (Obama-Congress, Obama-Zarif, Zarif-Revolutionary Guard).  Even with these complications, I still believe that Obama’s plan to sidestep Congress suggests that the United States’ commitment to any deal with Iran would be fragile, and that Iran will understand this, and shape its commitment to the deal (and its future plans for nuclear weapons development) accordingly.

Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

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Monday, October 20, 2014 at 4:11 PM

U.N. Special Rapporteur Ben Emmerson’s report on “mass surveillance” may signal increasing conflict between the US and world bodies on surveillance issues.  The Emmerson report makes sweeping normative claims but fails to ground those claims in an accurate description of the US surveillance program.  The report claims, for example, that a state must impose the same restrictions on surveillance of foreign nationals overseas that it imposes on surveillance of its own citizens within sovereign territory.  Universal state practice clashes with this claim.  Furthermore, no tribunal, domestic, regional, or international, has ever embraced such a sweeping limitation.  Emmerson’s document makes a valuable point on the need for independent checks on surveillance, but its casual legal analysis and cavalier posture on facts undermine its value.

The first problem with the Emmerson piece is its failure to include widely available factual descriptions of US surveillance that rebut the report’s findings.  Take the excellent U.S. Privacy and Civil Liberties Oversight Board (PCLOB) report on § 702 of the Foreign Intelligence Surveillance Act, which governs U.S. surveillance overseas.  The Special Rapporteur suggests that US surveillance abroad, such as surveillance authorized by § 702, constitutes illegal “mass surveillance.”  However, the Emmerson report does not incorporate the PCLOB’s extensive discussion (at pp. 32-36), of the nuanced nature of § 702 surveillance.

While Special Rapporteur Emmerson suggests that the US indiscriminately collects communications off the Internet’s backbone, the United States’ approach is far more tailored.  The text and structure of § 702 require targeted surveillance, not indiscriminate collection.  Surveillance methods have to be approved by the Foreign Intelligence Surveillance Court (FISC); persons targeted include those working with international terrorists, such as ISIS, international nuclear weapons dealers, and individuals evading sanctions that the US and global bodies have imposed on terrorists. (Section 702 also permits targeting that serves the “foreign affairs” of the US, a less concrete category.  Congress should consider refining this category, as I say in a forthcoming Hastings Law Journal paper on § 702, although the largest use of this category may be targeting of foreign governments and firms that engage in anti-competitive practices.)   Read more »

Pushing Treaty Limits?

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Monday, October 20, 2014 at 2:49 PM

Suppose the United States government helps to negotiate, and subsequently champions, certain framework treaties–ones justly viewed as imposing significant constraints on all signatories. Down the road, the United States occasionally even calls out counterparties for their looser policy innovations, when the latter push the outer boundaries of what’s permitted under the treaties; a treaty-created monitoring body does likewise in its annual reporting. This pattern essentially holds year in and year out and from one presidential administration to the next.

But then the facts on the ground change radically. History shifts course. Unforeseen challenges arise. Some quite unprecedented changes insist upon–in the view of the executive branch–a more flexible approach, one in visible tension with the treaties’ express (and now seemingly outdated) language.  The United States claims that instruments once thought to be airtight are in fact rather capacious, and that the treaties build in enough discretion to permit states parties to decide, unilaterally, how best to further the accords’ larger aims. This in turn permits the United States to oppose any calls to revisit the treaties, and to avoid the messy, uncertain business of international negotiation and (shudder) eventually winning Senate approval.

Here’s a Lawfare thought experiment: what’s the body of law in play here? And what’s the policy shift now confronting that law?

Read more »

Today’s Headlines and Commentary

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Monday, October 20, 2014 at 11:14 AM

The US-led coalition fighting against the Islamic State of Iraq and Syria (ISIS) launched new airstrikes in Kobani, a Syrian town along the Syrian-Turkish border. Reuters reports on the airstrikes.

CNN reports that at least 70 ISIS militants were brought to a western Syrian hospital over the weekend, a direct result of the US-led airstrikes in Kobani, along with a reinvigorated military offensive on the part of Iraqi and Kurdish forces.

The AP tells us that the US also airdropped weapons, ammunition and other supplies into the city of Kobani. The aid is meant to help the Kurdish forces who have been helping to push back ISIS.

But the Daily Beast breaks some pretty distressing news: while the airstrikes have indeed been hitting ISIS, apparently, US humanitarian aid—everything from medical supplies to food—has been inadvertently landing in ISIS’ lap. The aid is intended for displaced Syrians, but ISIS has increasingly been gaining control of the various shipments, often holding them ransom or even distributing the goods as if ISIS militants were the ones to provide struggling Syrians with support.

Ibrahim Kalin, the Deputy Undersecretary of State and Senior Adviser to the Prime Minister of Turkey, has penned an opinion piece for the Wall Street Journal addressing Turkey’s role in the ongoing crisis in Syria. Kalin says that asking Turkey to send in ground troops to Syria—which many have encouraged the country to do—“defies any logic.” Kalin lists many reasons why Turkey shouldn’t send troops into Syria, and reminds us that Turkey has done the most to help displaced Syrians since the beginning of the conflict. Finally, Kalin argues, strongly, that the only way to a path to stability in Syria is to finally bring down Bashar al-Assad.

Still, it seems Turkey will help to “facilitate the movement of Iraqi Kurdish forces, known as pesh merga, to the embattled Syrian town of Kobani to join the fighting there.” The New York Times reports.

Lawfare’s Sean Mirski has a written a piece for The National Interest arguing that ISIS may be further in decline that we might realize. Mirski argues that ISIS’ strategy of attempting to establish itself as a legitimate “state” will ultimately be its undoing:

By creating a caliphate, ISIS has also created a new vulnerability for itself: it has become governor of a territory encompassing millions. Its statehood has brought it fame, funding and foreign fighters, but it has also established fixed assets that the United States and its allies can easily hold at risk. It is hard for the United States to pin down shifting and elusive people-based networks like Al Qaeda; it is much easier to target the infrastructure and operations of a territorial government.

Iraq has formed a new unity government.  But many concerns still remain about the longevity of the unity in parliament, and a new UN report highlights the extraordinarily high use of the death penalty in the country as a potential challenge to unity. The Atlantic covers the report. Also in Iraq, per the Times: at least 43 have been killed in suicide and car bomb attacks.

“Denmark Tries a Soft-Handed Approach to Returned Islamist Fighters.”  That’s the headline from this piece in the Post. 

The Pentagon has announced plans to help address the Ebola crisis in America. The Washington Post tells us that the Pentagon’s Northern Command is compiling a team of 30 medical experts that will be ready to “quickly leap into a region” if new Ebola cases materialize.

Apropos, the Times’ Helene Cooper hails originally from Ebola-stricken Liberia. In this article, she shares her unique perspective on the crisis.

Al Jazeera reports of an increase in violence in Benghazi, and across Libya generally. Libya is in a state of internal chaos: two competing governments continue to vie for power, while terrorist organizations have also taken retreating to Libya as a kind of safe haven.

Rhe crisis in Libya shows no signs of dying down, but the US and its European allies have “called” for an end to the violence, according to the Telegraph. The countries released a statement expressing disappointment at the continued fighting and also threatened sanctions should it continue.

It was a messy weekend for Nigeria. First, on Saturday, the AP told us that the Nigerian government announced a truce had been struck with the militant organization Boko Haram. The group is still holding over 200 schoolgirls captive after kidnapping them over six months ago. But, on Sunday, a wave of violence across the country at the hands of Boko Haram put serious doubt into the success of any kind of a ceasefire, dampening the hopes that the girls might soon be recovered.

Sweden is searching for a suspected Russian submarine in waters east of Stockholm. DW explains that the Swedish government received a report of “foreign underwater activity,” which prompted the search.

The AP reports that there was an exchange of gunfire along the border of North Korea and South Korea on Sunday. The South Korean army placed the blame on North Korea, explaining that some of their soldiers had aggressively approached the military demarcation line. After both sides traded fire, the North Koreans retreated.

The United States has been accused of misleading the British government concerning the conditions of Shaker Aamer, a British citizen held at Guantanamo. Earlier this year, US officials assured the British government that Aamer was not subject to force-feeding and other harsh tactics, despite reports indicating otherwise from fellow Guantanamo detainees. But, the Guardian explains, the director of British legal charity Repreive isn’t buying it. Clive Stafford Smith insists that that reassurance is deceptive.

The National Security Agency has launched an internal review of its Chief Technical Officer, Patrick Dowd, and his part-time work for former NSA director Keith Alexander’s private corporation. Reuters reports that Dowd’s part-time work for IronNet Cybersecurity Inc, though somewhat unprecendented, had been approved by the upper echelon of the NSA. But the arrangement is now under review, amid concerns that Dowd’s work might “blur” the lines between government and business.

Lastly, new research suggests that a key pay-gap may be closing the Washington-area job market: the pay differential between security-cleared workers and their un-cleared counterparts has been on the decline.  Read more in the Post.  

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.

Chertoff Ties Visa Waiver Program With Surveillance Tools

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Monday, October 20, 2014 at 11:00 AM

In a recent speech at The Heritage Foundation, former Secretary of Homeland Security Michael Chertoff made the case for continuing the Visa Waiver Program (VWP). On the surface, his speech addressed only why the United States should keep and expand the program. But it did far more. Subtly yet forcefully, it made the case for robust surveillance programs that work hand in glove with the VWP.

For those not familiar with the VWP, it is a program where participating countries (38 to date) agree to share basic data and security information with the United States about travelers from their countries and offers privileges to U.S. citizens travelling to their countries. Participating countries also must have a visa refusal rate below 3 percent.

According to a Heritage paper by a colleague, prior to travel, “VWP tourists are prescreened using the databases of all VWP member through the Electronic System for Travel Authorization (ESTA), which determines whether or not they are eligible to travel to the U.S.”  The national security benefit to us is obvious, and VWP has also allowed for greater economic flow between the United States and VWP member states.

Secretary Chertoff said that “we are in a dangerous place in the world, perhaps more dangerous than in the past 10 years.  And that is because of the proliferation of terrorist groups.”  He rejected the call by some in Congress to scale back the VWP, saying that “it would be a huge mistake.” Read more »

The Week That Will Be

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Monday, October 20, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, October 20th at 3 pm: The Brookings Institution will host a panel discussion on US-Russia Relations: Beyond the Crisis in Ukraine. Victoria Panova, Steven Pifer, Jeremy Shapiro, and Michael E. O’Hanlon will speak on the future of U.S.-Russia cooperation on the two countries many common interests, including Iran, Afghanistan, and to some extent, North Korea. More information here.

Tuesday, October 21st at 12 pm: At the Woodrow Wilson Center, Jubin Goodarzi, will give a speech on Iranian Policy Toward the Iraqi and Syrian Crises, providing an overview of the evolving situation and focusing on Iran’s policies, perspectives, interests, and options in the ongoing Syrian and Iraqi crises. RSVP here

Wednesday, October 22nd at 3 pm: The entangled threat of crime, corruption, and terrorism remain important security challenges in the twenty-first century. In her new book, Dirty Entanglements: Corruption, Crime, and Terrorism, Louise Shelley argues that their continued spread can be traced to economic and demographic inequalities, the rise of ethnic and sectarian violence, climate change, the growth of technology, and the past failure of international institutions to respond to these challenges when they first emerged. Join Carnegie for a discussion with Louise Shelley. Milan Vaishnev will act as discussant, and Moisés Naím will moderate. Register to attend here.

Thursday, October 23rd at 9:30 am: The Stimson Center will hold a panel discussion entitled Iran and the Arab World After the Nuclear Deadline: Possible Scenarios. Discussants will cover Iran’s involvement and interventions in the Middle East and whether recent developments in nuclear talks will cause Iran to adopt a different course in the region. Geneive Abdo will moderate a conversation with Mehrzad Boroujerdi and Abbas Kadhim. RSVP here

Thursday, October 23rd at 10 am: The Carnegie Endowment for International Peace will host a discussion with David S. Cohen on Disrupting ISIL’s Money Trail. With a broad international effort underway to degrade and defeat the Islamic State of Iraq and the Levant (ISIL), David S. Cohen will outline the United States’ strategy to undermine the organization’s financial foundation. He will discuss the terrorist financing challenge posed by ISIL, the group’s sources of revenue, and explain how the Treasury Department, together with its counterparts across the U.S. government and its international partners, is working to address the threat. Marwan Muasher will moderate. Register here.

 

Employment Announcements (More details on the Job Board)

Senior Associate General Counsel

ORGANIZATION: Office of the Director of National Intelligence

JOB ANNOUNCEMENT NUMBER: 16871

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

JOB SUMMARY:

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

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

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

Ask Wells: #ComeyCrypto, Our Mysterious Publisher, and Cancelled Hearings

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Sunday, October 19, 2014 at 5:00 PM

I am stoked to post the first installment of Lawfare’s latest (and perhaps most peculiar) experimental feature: “Ask Wells.”

The format, as Benjamin Wittes explained earlier, is straightforward.  Readers can write in and ask questions on most any topic—from national security law to the site’s content and editorial choices to whatever other things may be on their minds. I will do my best to answer—though I obviously do not promise to answer every single question.

Here are three queries.

The first didn’t come via the newly-minted “Ask Wells” channel at all, but instead over Twitter—where the ACLU’s technologist, Chris Soghoian, challenged Wittes about why nobody with a technical background would share the stage with FBI Director James Comey on Thursday. As you likely know by now, the latter made public remarks at Brookings, followed by questions from Ben and members of the audience. As you also likely know, the gist of Comey’s speech was to warn that new and more rigorous default cellphone encryption protocols will keep law enforcement from accessing data at rest in a timely fashion, and thereby block investigations of serious crime.

I gather from Chris’ Tweet that, in his view, the addition of a tech-savvy person to the program was needed in order to push back against the FBI Director’s assertions about the bad consequences of “going dark”—to borrow government folks’ preferred and rather ominous term for the consequences of strengthened encryption. The absence of a technical voice, the worry went, doomed Thursday’s discussion to lopsidedness or inaccuracy; Ben and Brookings thus ought to explain the programming choice.

I asked Ben for an explanation. Here’s what he said:

First off, this is really a Brookings issue, not a Lawfare issue. But I make no apologies for giving the FBI director an opportunity to have a direct dialog with the Brookings audience without being part of a panel. To be sure, sometimes think tanks host panel discussions on this or that issue, along the lines Soghoian suggested in his tweet. But normally, when senior government officials want to give policy addresses, we don’t put them on panels. Comey wanted to give a brief speech and then have a conversation with the audience about encryption. That’s what we did, and I think the results speak for themselves. I’m proud of the event.

For what it’s worth, I would add that I think there was a good, rather skeptical back-and-forth between Comey and folks in the audience—which indeed comprised some tech-minded people, including Soghoian himself. He asked the morning’s first question, which was a strong challenge to Comey’s premise, and at least one other civil liberties activist asked a question too. I have invited Soghoian to expound upon his thoughts on Comey’s ideas in next week’s Lawfare Podcast.

This brings us to the week’s second question: Nick Rostow, formerly of Yale Law School and these days of National Defense University, wrote in and asked who “puts [Lawfare] out.”

That’s an easy one: A non-profit corporation called the Lawfare Institute publishes Lawfare, with a big assist from Brookings—where Ben and Cody and I all work.  It’s roughly a partnership-type setup: the non-profit controls Lawfare’ s editorial and other policies, but the project very much depends on Brookings’ support; the two therefore work together closely from one day to the next. Lawfare also draws on any number of Brookings scholars in the context of the weekly Foreign Policy Essay, which is edited by Brookings Senior Fellow Daniel Byman.

I’ll close with a query from the estimable journalist Margot Williams, who just joined the team over at The Intercept.  She asked why a scheduled hearing in the 9/11 military commissions case this week was abruptly cancelled by a military judge at Guantanamo. Public records made it hard to tell. As is maddeningly typical, the court’s order canning the hearing was noted on the military commissions’ website but not available for reads or downloads—owing to the automatic and almost always needless delay, imposed on all litigation documents by the Department of Defense, so as to ensure that filings do not contain national security secrets.

So what gives? By now you may have read an update from the dean of GTMO journalism, the Miami Herald‘s Carol Rosenberg. She reported this week that, in essence, the military judge thought that going forward with this week’s hearing would be unproductive. These days the 9/11 case moves at a glacial pace for many reasons, one of which has to do with recent allegations regarding conflicts of interest in the representation of the accused. Such allegations were to be the subject of the scheduled session this week. (Because of the nature of the allegations, only the defense and specially-appointed Justice Department lawyers—ones entirely walled off from the 9/11 prosecution—were to take part.)

From Carol’s piece:

Progress in the case has mostly been paralyzed since an attorney for accused 9/11 plot deputy Ramzi bin al Shibh told Pohl in April that FBI agents had compromised his team by questioning a member, and then trying to turn him into a secret informant. Other Sept. 11 defense team members alleged that their attorney-client privilege may also have been compromised by what the FBI agents were investigating, too.

A special Justice Department prosecution team has told the judge that the probe is now closed, that information was forwarded to a Department of Defense security team and, from what they’ve seen of the FBI activity, no conflict-of-interest exists.

Pohl tried to remedy it over the summer by severing Bin al Shibh from the five-man death penalty trial and planning to proceed with a four-man trial of alleged mastermind Khalid Sheik Mohammed and three other accused accomplices. The Pentagon prosecutors objected, however, and the judge reinstated the joint five-man prosecution at the last hearing in August.

Pohl’s order seeks a filing from the defense lawyers. “It was clear that there’s more information on the investigation yet to come and any litigation on this topic would be premature and unproductive,” said defense attorney Cheryl Bormann, the lawyer for alleged Sept. 11 conspirator Walid bin Attash.

I asked around a little bit and heard stuff along the same lines.  It seems some discovery issues relating to the conflict question are still being litigated; the court also apparently wants to hear more from the defense about the nature of the alleged conflict before proceeding further.

Got a pressing national security law question? Ask Wells. Got a complaint about Lawfare? Ask Wells. Need relationship or professional advice? Ask Wells. Need to know if your contemplated military action complies with the separation of powers or international law? Ask Wells. Got a question about the D.C. oughties music scene? Ask Wells. Send along good, interesting, or intelligent questions, and I’ll do my best to post answers.

The Foreign Policy Essay: The Arab World’s Foreign Fighter Problem

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Sunday, October 19, 2014 at 10:00 AM

The Arab world’s foreign fighter problem makes the West’s concerns seem minor. Specific numbers should be treated with suspicion, but the current estimate is that there are roughly 15,000 foreign fighters in Iraq and Syria, of which the vast majority are from the Arab world. When these fighters return home, they may further radicalize Arab politics, reorient existing terrorist groups in a more dangerous direction, create new violent organizations, and otherwise make the Middle East’s already bleak prospects even worse.

As my Brookings colleague Jeremy Shapiro and I have argued, the terrorism threat from European and American volunteers fighting in Iraq and Syria is real but manageable. To summarize our arguments, we contend that the Syria and Iraq wars are dangerous because they are pulling in large numbers of Western volunteers who may become more skilled and indoctrinated into anti-Western ideologies. Several mitigating factors, however, lessen the danger: some of the volunteers will die; some will stay in the region as professional jihadists; some will return home disillusioned or with no interest in further violence; some will be tied to terrorist groups focused on the Arab world, not the West; and many of the remaining dangerous ones will be caught by competent security services that are focused on this problem. The foreign volunteers’ propensity to use social media to broadcast every detail of their jihadist lives makes them even more likely to be caught. Better policies, ranging from de-radicalization programs to improved prison monitoring, can further reduce the risk. The likely result is not a complete absence of terrorism, but rather fewer acts than many observers fear.

Jeremy and I may be wrong, but suspend disbelief for now and assume, as our mothers do, that we’ve nailed it. Some of these mitigating factors are present in the Arab world—jihadist volunteers will still die on Syria’s battlefields, and some will come home disillusioned—but most are lacking or are much-reduced. More to the point, these countries begin with much greater societal problems than the U.S. or Europe—problems that returning foreign fighters will likely make much worse.

Let’s begin with the numbers. Several thousand Europeans are fighting in Syria and Iraq. Western governments are fearful because this flow comprises more Western fighters than went to Iraq, Somalia, and other jihads combined. The Arab world should be so lucky. Tiny Tunisia, with about one-sixth of Britain’s population, has sent perhaps 3,000 fighters, and 1,500 have gone from neighboring Morocco. Not surprisingly, Syria’s neighbors Jordan and Lebanon and nearby states like Saudi Arabia are also in deep: over 2,000 for Jordan, around 890 for Lebanon, and roughly 2,500 for Saudi Arabia. There are also thousands of Shi’a foreign fighters, who often travel as members of groups (such as the Lebanese Hizballah), which I’ve written about for Lawfare readers already.

Although some Western jihadists have burned their passports and will never return home, that’s not good news for the region. Individuals traveling to Syria and Iraq may end up fighting in Lebanon, Jordan, or another nearby country, simply shifting the threat. Even more important, the biggest magnet for foreign fighters—the Islamic State—has an ambitious regional agenda. The group for now has not prioritized attacks on the United States or Europe, but it has done or attempted strikes in Lebanon, Saudi Arabia, and Turkey. Indeed, the group seeks to use the territory it controls in Syria and Iraq as a base and expand further into these countries and into neighboring territory. Read more »

The Week That Was: All of Lawfare in One Post

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Saturday, October 18, 2014 at 9:54 AM

This Thursday, FBI Director James B. Comey gave a speech at the Brookings Institution and was interviewed by our very own Benjamin Wittes. Besides giving a shoutout to Lawfare, which Comey apparently reads “every single day,” he spoke about the need for law enforcement to adapt in the post-Snowden, phone encryption era. Cody shared a live feed of the event and copied his prepared remarks. Additionally, Ben provided audio of the speech and subsequent Q&A, which doubled as this week’s Lawfare Podcast.

Apropos of surveillance, Jack shared Susan Landau’s new paper on NSA’s efforts to secure private sector telecommunications infrastructure.

Wells linked to a UN Special Rapporteur report on mass digital surveillance and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which obligates states to respect the privacy and security of digital communications.

Ben publicized an event that was held at the Center for Democracy and Technology on the paper he and Wells recently published entitled, “Databuse and a Trusteeship Model of Consumer Protection in the Big Data Era.” He also shared a New Yorker profile of Laura Poitras and her upcoming film, and commented on the latest Intercept story about alleged NSA activities abroad, positing that its lack of traction may be due to “Snowden fatigue.” Later, he linked to the recent Jane Mayer interview of Snowden himself, and explained why Glenn Greenwald’s challenge to people who think they have nothing to hide is “asking the wrong question.”

Last Saturday, Jack asked a question that remains unanswered: what will US troops in Baghdad do if/when ISIS militants arrive at the Iraqi capital? Later, he and Matt Waxman shared their recent essay in the New Republic that maintains that Obama’s precedents “will constitute a remarkable legacy of expanded presidential power to use military force.” Jack also shared the administration’s recent explanation as to why it thinks strikes against ISIS comply with the War Powers Resolution, and discussed the never-ending “Forever War.”

Jodie provided a video of a recent speech Matthew Olsen, former director of the National Counterterrorism Center, gave at Harvard Law School. Olsen offered his perspective “on the changing nature” of the threat posed by ISIS and other emerging terrorist groups.

Bobby flagged a conference being held at the University of Texas at Austin entitled, “Intelligence Reform and Counterterrorism After a Decade: Are we Smarter and Safer?” The conference, which kicked off on Thursday, aims to “explore lessons learned from a decade’s worth of experience with ODNI and NCTC.”

Lauren Bateman provided a blow-by-blow readout of the hearing on the Department of Justice’s state secrets claim in Restis v. UANI.

Andy Wang noted that the Supreme Court asked for the views of the Solicitor General in Samantar v. Yousuf. He also summarized the arguments in the Fox-DOJ subpoena fight. That case was prompted after a reporter for Fox News, Mike Levine, broke a story about “federal prosecutors secretly filing terrorism charges against…Somali-Americans” using confidential information “leaked to him by various unidentified government officials.”

Jane flagged the government’s response to the detainees’ petition for an en banc rehearing in Hatim v. Obama.

In this week’s Foreign Policy Essay, Raphael S. Cohen, a scholar at the RAND Corporation, advised the US to dispense with attempts to win “hearts and minds” among the local population and instead focus on defeating ISIL militarily.

In the 38th episode of the Steptoe Cyberlaw Podcast, Stewart Baker spoke with Shaun Waterman, editor of POLITICO Pro Cybersecurity and an expert on cybersecurity and counterterrorism. The two discussed Edward Snowden, the right to be forgotten, and the recent Twitter lawsuit, among other topics.

Last week’s Lawfare Podcast featured a speech at Brookings by Ambassador Shivshankar Menon, former national security adviser and former foreign secretary to the government of India. Ambassador Menon’s speech, entitled, “India’s Role in the World,” touched on many topics, including the “new optimism in US-India bilateral relations” and “how leaders can capitalize on this new momentum.”

Ben urged readers to support Lawfare and be a part of improving it and thereby contributing to the national conversation about security law. He later noted that you can also support Lawfare without spending “a dime” by using AmazonSmile, a feature where Amazon donates a small percentage of objects bought there to select non-profits, i.e. Lawfare. The AmazonSmile box is on the website’s sidebar.

Ben also announced an exciting new feature to the Lawfare website: “Ask Wells.” Part Q&A, part advice column, Wells is open to any good, interesting, or intelligent questions, and will respond accordingly.

Finally, for all those fearful of drones taking over, Ben posted a video showing that Mother Nature still has some tricks up her sleeve.

And that was the week that was.