The following guest post is from Professor Geoffrey Corn (South Texas College of Law), in response to a post in which I raised the possibility that, in light of the non-battlefield targeting standards articulated by the President in his NDU address and other considerations, it is no longer obvious that the armed-conflict model is serving a function beyond the battlefield (excepting the legacy GTMO detention cases), in the sense that the same authorities could be invoked on self-defense grounds.  Geoff writes in to express concerns about the costs of moving in that direction:

Professor Chesney’s post in response to the President’s speech at the National War College invited reactions. I want to focus a brief response to the end of the post, where Professor Chesney wrote:

 Yesterday’s speech reinforces my conclusion, as it clarifies both that the long-term detention option is defunct and that we are using force within boundaries that will be no different postwar thanks to the flexibility of the pre-9/11 self-defense model.  Put another way, it seems to me ever clearer that the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.

The President’s speech – like prior statements of other administration officials – certainly suggests that the inherent right of self-defense is defining the permissible scope of kinetic attacks against terrorists. I wonder, however, if this is more rhetoric than reality? I think only time will tell whether actual operational practice confirms that “we are using force within boundaries that will be no different postwar”. More significantly, if practice does confirm this de facto abandonment of AUMF targeting authority, I believe it will result in a loss of the type of operational and tactical flexibility that has been, according to the President, decisive in the degradation of al Qaeda to date. The inherent right of self-defense is undoubtedly a critical source of authority to disable imminent threats to the nation, but it simply fails to provide the scope of legal authority to employ military force against the al Qaeda (and associated force) threat that will provide an analogous decisive effect in the future. Read more »

Christof Heyns, the UN’s special rapporteur on extrajudicial killings and other bad stuff has issued a statement reiterating his call for a “moratorium” on the use of lethal autonomous robots. It reads:

GENEVA (30 May 2013) – The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, today called for a global pause in the development and deployment of lethal autonomous robots (LARs), to allow “serious and meaningful international engagement on this issue before we proceed to a world where machines are given the power to kill humans.”

“While drones still have a ‘human in the loop’ who takes the decision to use lethal force, LARs have on-board computers that decide who should be targeted,” he stressed.

“The possible introduction of LARs raises far-reaching concerns about the protection of life during war and peace,” Mr. Heyns noted during the presentation of his latest report* to the UN Human Rights Council. “If this is done, machines and not humans, will take the decision on who is alive or dies,” he said.

“This may make it easier for States to go to war; and raises the question whether they can be programmed to comply with the requirements of international humanitarian law, especially the distinction between combatant and civilians and collateral damage,” he explained.

“Beyond this, their deployment may be unacceptable because no adequate system of legal accountability can be devised for the actions of machines,” the independent human rights expert noted, based on his analysis of potential violations of the rights to life and human dignity should the use of LARs materialize.

In his report, Mr. Heyns urges the UN Human Rights Council to call on all States “to declare and implement national moratoria on the production, assembly, transfer, acquisition, deployment and use of LARs, until a framework on the future of LARs has been established.” He also invites the UN High Commissioner for Human Rights to convene or to work with other UN bodies to convene a High Level Panel on LARs to articulate this framework.

“War without reflection is mechanical slaughter,” the UN expert on summary executions said. “In the same way that the taking of any human life deserves as a minimum some deliberation, a decision to allow machines to be deployed to kill human beings deserves a collective pause worldwide.”

For the Special Rapporteur, the time is ripe for a thorough and cool-headed global reflection in order “to ensure that not only life itself but also the value of life and human dignity is protected in the long run.”

“If deployed, LARs will take humans ‘out of the loop,’” Mr. Heyns warned. In his view, “States find this technology attractive because human decision-making is often much slower than that of robots, and human thinking can be clouded by emotion.”

“At the same time, humans may in some cases, unlike robots, be able to act out of compassion or grace and can, based on their understanding of the bigger picture, know that a more lenient approach is called for in a specific situation,” he underscored.

The Special Rapporteur stressed that there is now an opportunity to pause collectively, and to engage with the risks posed by LARs in a proactive way, in contrast to other revolutions in military affairs, where serious reflection mostly began after the emergence of new methods of warfare. “The current moment may be the best we will have to address these concerns,” he said.

The new report provides specific recommendations to the UN system, regional and inter-governmental organizations, and States, as well as to developers of robotics systems, NGOs, civil society, human rights groups and the International Committee of the Red Cross.

The Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns (South Africa), is a director of the Institute for International and Comparative Law in Africa and Professor of Human Rights Law at the University of Pretoria, where he has also directed the Centre for Human Rights, and has engaged in wide-reaching initiatives on human rights in Africa. He has advised a number of international, regional and national entities on human rights issues. Mr. Heyns’ research interests include international human rights law and human rights law in Africa.

The report underlying this statement is available here–and critiqued by Matt and Ken here. And here is the UN’s snazzy video of Heynes explaining his report:

By coincidence, I will be giving a speech on the autonomous weapons debate at the Pacific Command’s MILOPS conference in Bangkok on Wednesday and will offer thoughts in response to Heynes’ statement in that talk.

Hearing few objections (and indeed many expressions of support!), I forge ahead with Lawfare’s newest feature: the Week That Was.

The week’s big news was that President Obama plans to nominate James Comey to be Robert Mueller’s successor as Director of the FBI. Ben endorsed the choice.  Later, he shared a speech on intelligence and the law, which Comey delivered and which The Green Bag later published.

Reactions to President Obama’s speech at the National Defense University continued. Jack flagged his essay at the Council on Foreign Relations, but disassociated himself from a part of CFR’s initial summary of his piece.  (The relevant language was eventually changed).  Ben noted Southpark’s  interpretation of the President’s remarks, and reacted to what he called the “Chesney Conjecture”: Bobby’s positing that our current approach to counterterrorism no longer requires an AUMF, or an armed conflict approach generally. Jack weighed in on the issue, too.

Read more »

Let’s begin with some good news about terrorists for a change.

Mansour J. Arbabsiar, the Iranian-American man who was accused of plotting to hire Mexican assassins to murder Saudi Arabia’s ambassador to the United States, has been sentenced to 25 years in prison, reports Benjamin Weiser of the New York Times.

Carol Cratty of CNN tells us that Sami Samir Hassoun, a Lebanese gentleman living in Chicago, has been sentenced to 23 years in prison for attempting, in 2010, to detonate what he believed was a bomb. He will be deported afterward.

Stephen Castle of the Times says that Michael Adebowale, the man suspected of stabbing a British soldier to death in London, has been charged with murder and possession of a firearm.

Speaking of that attack, the latest issue of Inspire—no surprise here—praises it. The Al Qaeda publication also extols the Boston marathon bombings, and encourages readers to follow the Tsarnaevs’ example. However, the quality of the magazine’s English seems to have deteriorated, reports CNN’s Security Clearance blog.  Samir Khan’s death in a drone strike might have had something to do with that.

Tamar Birckhead, one of Dzokhar Tsarnaev’s defense attorneys, has this piece in the Nation about being a federal public defender—and what it was like to defend Shoe Bomber Richard Reid. Check out Alan’s podcast with Miriam Conrad, one of Birckhead’s colleagues who represented Reid and also now represents Tsarnaev.

Michael S. Schmidt and Ellen Barry of the Times inform us that Ibragim Todashev—who investigators questioned because of his connection to Boston bombing suspect Tamerlan Tsarnaev—threw a table at an FBI agent and rushed at him with a metal pole, before the agent shot and killed Todashev. Will Englund of the Washington Post also reports on the events surrounding Todashev’s death, as well as the press conference that the deceased’s father held in Moscow.

The Post editorial board argues that more information is needed about the circumstances surrounding Todashev’s death.

Scientists speak out in favor of domestic drones at the International Conference on Unmanned Aircraft Systems in Atlanta this week, saying that the national furor over the technology is misplaced. They argue, according to Liz Goodwin of Yahoo News, that drones can be used to

take images clear and comprehensive enough to help farmers design irrigation systems for their crops, or create the most efficient system for fighting a wildfire, or conduct search-and-rescue missions. The camera-equipped drones are also useful for determining the health of a river’s vegetation or finding out how much of a wetlands area is destroyed after a new road is built.

Josh Begley, a graduate student at NYU, has created this website (using the Bureau of Investigative Journalism’s data) in an attempt to add a visual and interactive component to information about drone strike casualties.  Begley experiments with a few different interfaces; one allows users to search for specific drone strikes, while another allows users to filter through all the strikes.

Akbar Ahmed, Islamic Studies chair at American University and the former government administrator in South Waziristan, has this op-ed in the Times arguing that U.S. drone strikes have devastated tribal structures in the FATA.  That, in turn, has led to greater instability and violence in the region.

The Pakistani Taliban has officially acknowledged the death of its second-in-command, Wali ur-Rehman. Trouble is already brewing: six commanders aligned with the late ur-Rehman announced a successor—but without the approval of the Taliban leadership, according to the Times. Unsurprisingly, the Pakistani Taliban also has called off peace talks, reports Saeed Shah of the Wall Street Journal.

The Times discusses the nature of the confirmation hearings Jim Comey is likely to face when President Obama publicly announces him as his pick for next FBI director.

Garrett M. Graff, editor of Washingtonian magazine, describes the unlikely friendship between current Bureau Director Robert Mueller and Jim Comey. As Ben noted, Graff also has this op-ed in the Post arguing that Comey could be “the antidote the Justice Department needs to restore its moral compass.”

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

In light of Jim Comey’s reported selection as FBI director, this 2005 speech—published later in the Green Bag—is a matter of inherent interest. It’s one of the things I’ll be reading over the next few days on a long series of long-haul flights to and from the PACOM/MILOPS Conference—from which I hope to do some blogging and podcasting. Hat tip to Garrett M. Graff, author of this related oped in the Washington Post, for reminding me that it exists.

James Comey: Intelligence Under the Law

All you ham consumers should now be on alert: Chinese company Shuanghui International is proposing to acquire pork producer Smithfield Foods. According to the Washington Post’s Howard Schneider and Brady Dennis, this is the largest proposed takeover by a Chinese firm of an American corporation. Here are other stories from NPR, the Wall Street Journal, the Guardian, and Forbes.

This Wall Street Journal advocates in favor of the Smithfield deal, which is now set to be reviewed by the interagency Committee on Foreign Investment in the United States (CFIUS) because of the acquirer’s foreign status.

It’s actually a big week for CFIUS (at least in the public square): the most recent controversial transaction before the committee, Japanese telecommunications firm SoftBank’s acquisition of a majority interest in Sprint-Nextel, has been blessed.  The deal now must undergo the Federal Communications Commission’s own review process, and then be approved by shareholders.  Here’s Brendan Sasso of The Hill and the Times.

Today’s Times editorial says the SoftBank-Sprint transaction would be a boon for American mobile users.

From foreign acquisitions to murky payments: the Times’s Nicole Perlroth covers Liberty Reserve, an online payment systems company facing money laundering charges.  Part of this seemingly has to do with Liberty Reserve’s approach to anonymity: according to Perlroth, users need not submit personal information in order to make payments.  Contrast this with the policy of online payment house Bitcoin, whose users aren’t quite as anonymous as those of Liberty Reserve.  But Bitcoin-ers nevertheless might be able to proceed on a more anonymous basis in the future, through the addition of a newfangled plugin.  The latter would make Bitcoin transactions untraceable.   In a separate article, she writes about some other anonymous online payment schemes.

The man charged in connection with hacking group Lulzsec’s breaches of Stratfor Global Intelligence Services has pled guilty.  The defendant acknowledged his connection to Anonymous as well, write the Times’s Nicole Perlroth and Colin Moynihan.

Reuters tells us that China is conducting a “digital” technology military exercise—its first, according to the Chinese government.

The Hill’s Jennifer Martinez quotes White House Press Secretary Jay Carney on recent high-level meetings between Administration officials and the Chinese government.  According to Carney (as reported by The Hill), national security adviser Tom Donilon “made clear that the United States will do all it must to protect our national networks, our critical infrastructure and our valuable public and private sector property.”

Another government agency wants to dip its feet in the cybersecurity pond: New York State’s Department of Financial Services has requested information about cyberattacks from regulated health insurance companies. Here’s the Hartford Courant with more.

On to the DOJ/reporter leaks controversy: AG Eric Holder is contending with the media now. Charlie Savage and Jonathan Weisman write on the latest developments in the Times, while Jordy Yager of The Hill says that Holder has meetings on the books with the bureau chiefs of major news outlets.  The subject will be the Department’s media subpoena policies.

And yes, it’s official: President Obama will nominate James B. Comey to lead the FBI. Here’s Sari Horwitz and Peter Finn with more details in the Post.  NPR‘s Mark Memmott has Comey’s background. Ben endorsed Mr. Comey earlier today.

Ari Shapiro of NPR reports on All Things Considered about President Obama’s campaign to rewrite the AUMF, and the Washington Post editorial board discusses the President’s remarks on that topic last week. (Jack gets a mention, and the online version links to work by Bobby, Ben, Jack, and Matt.)  Wired’s Spencer Ackerman suggests that yesterday’s killing of the deputy commander of the Pakistani Taliban might have violated the Obama Adminstration’s stated criteria for drone strikes.  Ackerman wonders whether the fellow truly posed a “continuing, imminent threat to U.S. persons”—as he must, under rules announced by the White House last week.

Speaking of drones, the Stimson Center is launching a new task force on drone policy, which will be lead by Retired Army General John P. Abizaid. Here’s its press release. Our John Bellinger, Georgetown Law’s Rosa Brooks and MIT’s Missy Cummings also will serve on the task force.

House Oversight Committee Chairman Darrell Issa has issued subpoenas seeking all the executive branch’s communications about Benghazi talking points.  Here’s the press release from the Committee.

More somber news from Syria: the AP tells us that the Assad regime says it has received its first shipment of Russian anti-aircraft missiles.

Over in Afghanistan, insurgents wearing suicide vests attacked the Red Cross office in the Panjshir Valley. The Journal says at least one person is dead.  According to the Times,  this marks the first attack on a Red Cross facility in Afghanistan in its 30+ years of operations there.

Meanwhile, the Afghan National Directorate of Security (read: intelligence agency) says it thwarted an attack by the Haqqani network in Kabul, and confiscated a large weapons cache. Here’s the BBC News story with more.

And also on the topic of Afghanistan, Staff Sgt. Robert Bales will plead guilty next week to the March 2012 killing of 16 Afghan civilians. Bales’s attorney won’t confirm whether the plea agreement will take the death penalty off the table, though, according to James Dao of the Times.

The UN’s special rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, went before the Human Rights Council in Geneva.  He advocated for a moratorium on the development and use of armed robots. Here’s the Times story on his remarks.

Last week’s print edition of The Economist has two interesting pieces.  The first concerns the government practice of pressuring foreign weapons dealers to supplement their sales.  In addition to sending guns and missiles and other munitions, the companies agree to invest in local projects.  The apparent goal is to make the buyer country whole: cash leaves the country for the weapons, but comes in for the projects.

Secondly, The Economist discusses recent developments in quantum mechanics and cryptography, and their implications for eavesdropping. In short, it may become altogether impossible to intercept communications that utilize certain encryption methods.

Sari Horwitz and Peter Finn update us in the Post on the Boston bombing investigation: the Chechen who was shot and killed last week by an FBI agent was not armed.

In the ICTY, Six Bosnian Croats have been convicted of persecuting and murdering Muslims during the 1992-1995 war in Bosnia. Here’s Marlise Simons of the Times.

New York City Mayor Mike Bloomberg was sent a letter that has tested positive for ricin.  Ditto the leader of a Bloomberg-financed gun control organization. Joseph Goldstein writes in the Times that the letters were postmarked in Louisiana.

FEMA is promoting its latest information sharing tool, which sends emergency messages via wireless networks. Here’s Jane Levere describing the alert system in the Times.

In the New York Times, Donald G. McNeil Jr. discusses the global response to two concerning viruses originating in China and the Middle East.

The New York Daily News profiles a former GTMO guard who is now a devout Muslim and outspoken detainee rights activist.

Folks in the D.C. metro area will be excited to know that the Corcoran Gallery is opening an installation by British artist James Bridle.  His subject?  Drones.  The installation will run from June 19 to July 7. Here’s the DCist blog’s story, and the Gallery’s webpage.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll and blog, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

In the abstract, the last thing President Obama needs in a new FBI director is another (very) tall, white, male moderate Republican. But there are people who compel you to throw out the rule book. And Jim Comey is one of those people. President Obama deserves a lot of credit for choosing him as FBI director—assuming for a minute that the current spate of news stories is correct.

Comey is a friend, and he is a friend of this site. He is also, speaking objectively, a near-perfect candidate to run the FBI.

Here’s the easy part: A qualified director of the FBI needs to have significant managerial experience in law enforcement. These days, you particularly want someone with a real intimacy with national security investigations and counterterrorism cases. You want someone who knows the bureau and can command the respect of its famously insular culture. You want someone with that ineffable quality of great leadership. And you want someone who somehow projects an anti-Hoover-like incorruptibility. Put this all together, and the easy part is not at all easy. There are very few people who truly have all of these qualities—and Comey is one of them.

But Comey also has an additional quality that makes him a unique candidate for the position—unique not just now but over a very long time. To be a successful FBI director, you have to be someone the public believes is truly independent, someone who will follow the facts wherever they go, who will investigate other members of the administration in which you (sort of) serve. The public should even believe that if it came to that, you would stare down the President himself over compliance with the law. It requires highly specialized circumstances to establish this particular quality beyond a shade of public doubt—and most people, fortunately for them and for the public—never have the opportunity to do so. But Comey did have this quality of his leadership tested—and in an episode initially secret, and now famous, he showed himself capable of looking a president of his own party in the eye and telling him that he would resign unless legal problems in a high-stakes classified program were fixed.  Nobody, including Barack Obama, can now doubt for a minute that he is capable of doing what needs to be done and telling the president the painful truths he may need to hear.

For which reason—again, assuming the stories are true—this is a great decision by the President, one which Congress should ratify as quickly as possible.

I have written many posts about China’s cyber exploitations that make two points (among others): (1) USG complaints about China’s cyber exploitations against USG databases (such as those in DOD) are hypocritical (and not likely to influence Beijing) since the USG is at least as aggressive against China’s government databases as China is against ours, and probably better at it; and (2) while the USG does not engage in espionage against private firms abroad to the same degree as our adversaries (and some of our allies), such espionage is widely practiced and does not violate international law, and our complaints seem to amount to the claim that the Chinese are not playing by the rules that suit the USG.

Against this background, and in light of Ellen Nakashima’s scary report on China’s cyber-intrusions into U.S. weapons design systems (the significance of which DOD has questioned), I highly recommend this piece by Michael Riley at Bloomberg/Businessweek, entitled How the U.S. Government Hacks the World.  The whole story is worth a read.  (For example, it quotes former DNI Mike McConnell to the effect that over 75% of the information in the President’s daily intelligence briefing comes “from government cyberspies”).  But I was especially interested to see the two points above articulated by General Michael Hayden, the former NSA and CIA Director:

Created in 1952 to intercept radio and other electronic transmissions—known as signals intelligence—the NSA now focuses much of its espionage resources on stealing what spies euphemistically call “electronic data at rest.” These are the secrets that lay inside the computer networks and hard drives of terrorists, rogue nations, and even nominally friendly governments. . . .

The key role NSA hackers play in intelligence gathering makes it difficult for Washington to pressure other nations—China in particular—to stop hacking U.S. companies to mine their databanks for product details and trade secrets. . . .

The Chinese response, essentially: Look who’s talking. “You go in there, you sit across from your counterpart and say, ‘You spy, we spy, but you just steal the wrong stuff.’ That’s a hard conversation,” says Michael Hayden, who headed the NSA, and later the CIA, under Bush. “States spying on states, I got that,” says Hayden, now a principal at the Chertoff Group, a Washington security consulting firm. “But this isn’t that competition. This is a nation-state attempting espionage on private corporations. That is not an even playing field.” . . .

The U.S. government doesn’t deny that it engages in cyber espionage. “You’re not waiting for someone to decide to turn information into electrons and photons and send it,” says Hayden. “You’re commuting to where the information is stored and extracting the information from the adversaries’ network. We are the best at doing it. Period.” The U.S. position is that some kinds of hacking are more acceptable than others—and the kind the NSA does is in keeping with unofficial, unspoken rules going back to the Cold War about what secrets are OK for one country to steal from another.  “China is doing stuff you’re not supposed to do,” says Jacob Olcott, a principal at Good Harbor Security Risk Management, a Washington firm that advises hacked companies.

Great stuff, which makes clear why the United States doesn’t have a leg to stand on in complaining about China’s infiltration of our government databases.  As for cyber exploitation of private firms in the United States, when Hayden complains about an uneven playing field in private cyber exploitation, and when Olcott says “China is doing stuff you’re not supposed to do,” I read: “China is engaged in cyber exploitation of our private firms that we don’t like and to an extent we would never contemplate, and it’s just not fair!”  This is basically what the USG position has been for a while.  The United States can whine all it wants.  But it seems rather pathetic, as do the supposedly “tough” sanctions that Washington has been “considering” for what seems like years, including publicly accusing China of cybercrimes (which always seems like a big step inside the government but which is a yawn to the outside world) and threatening “trade sanctions, diplomatic pressure, indictments of Chinese nationals in U.S. courts and cyber countermeasures—both attack and defense.”  I don’t think any of these threats except cyber countermeasures has any chance of being effective.  But there is an interesting question about what form such countermeasures might take, since I do not believe either domestic or international law would permit retaliatory cyber-attacks, and the USG is already engaged in extensive cyber exploitations, and has little to gain on the “private” side in China.  Chinese cyber exploitation of U.S. firms is a real conundrum about which I have complained a lot, but for which, I must confess, I don’t have great solutions.

So report the New York Times and the Washington Post.  

The Taliban’s second-in-command appears to have met the dangerous end of a Hellfire missile early this morning, reports Tim Craig of the Washington Post. Wali ur-Rehman and three other people were killed in North Waziristan—but the Taliban’s spokesman has denied it, so ur-Rehman may yet surface alive and well.

Management issues plague terrorist organizations too.  Moktar Belmoktar—the man responsible for engineering a vicious attack on a gas plant in Algeria, and bombings in Niger at a military base and a French mine—was not that different from that employee at your office.  You know, the one everybody knows to be hanging on by a thread. The Associated Press found a letter in an abandoned Timbuktu building, which was sent from an Al Qaeda Shura to Belmoktar.  In it, the leadership berated him for thirty alleged failures:

The list of slights is long: He would not take their phone calls. He refused to send administrative and financial reports. He ignored a meeting in Timbuktu, calling it “useless.” He even ordered his men to refuse to meet with al-Qaida emissaries. And he aired the organization’s dirty laundry in online jihadist forums, even while refusing to communicate with the chapter via the Internet, claiming it was insecure.

. . .

“Any observer of the armed actions (carried out) in the Sahara will clearly notice the failure of The Masked Brigade to carry out spectacular operations, despite the region’s vast possibilities — there are plenty of mujahedeen, funding is available, weapons are widespread and strategic targets are within reach,” the letter says. “Your brigade did not achieve a single spectacular operation targeting the crusader alliance.”

National Public Radio interviewed Rukmini Callimachi, the AP reporter who broke this story.

Ben Weiser of the New York Times reveals that Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, will be allowed to retain Stanley L. Cohen as his private lawyer, despite the fact that Mr. Cohen faces criminal charges.

Army Judge Col. Tara Osborn has ordered a medical evaluation to determine wither Maj. Nidal Hasan is physically able to represent himself. CNN’s Larry Shaughnessy has more.

Stephen Castle of the Times reports that at least ninety Afghans are being detained at a British military facility in Afghanistan.  Officials assert that that the men will be handed over to Afghan authorities, and that delays were the fault of problems in transferring detainees to the Afghan legal system.

Over the weekend, Afghan security forces—without NATO assistance—rescued ten international aid workers during a Taliban assault, says the AP. John weighs in here.

Elizabeth Goitein and Faiza Patel of NYU Law’s Brennan Center for Justice outline the ways in which President Obama’s speech last week fell short (hint: every which way).

CFR interviewed John Bellinger on many aspects of the president’s speech—the tone, drone policy, the AUMF, Guantanamo Bay, and the president’s comment about Attorney General Holder “sharing” the President’s concerns about leak investigations.

David Cole argues in the New York Review of Books that President Obama’s speech was a long-term and honest look at the sustainability of his counterterrorism policies.

Al Shabaab claims to have shot down a U.S. drone that had overflown Somalia’s Lower Shabelle region. NPR’s Scott Neuman has the story.

The AP reports that French authorities have made an arrest in the stabbing of a French soldier over the weekend. The BBC tells us that the suspect has been identified only as Alexandre, a 21-year old convert to Islam.

Drones patrolling Germany’s subway stations to catch graffiti artists?  Germans are quite anxious about the prospect, says Melissa Eddy of the New York Times.

According to the Washington Times, Oversight and Government Reform Committee Chairman Darrell Issa has issued a subpoena for all communications regarding the Benghazi talking points, as between particular State Department officials.  The list includes Victoria Nuland and Deputy Secretary of State William Burns.

The AP reports on a meeting between National Security Advisor Tom Donilon and General Fan Changlong, a vice chairman of the commission overseeing China’s armed forces, on greater military cooperation between the two countries.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

Everyone seems to be talking about private sector active defenses these days — but we all seem to be focused on domestic American law (witness the debate between Stewart Baker and Orin Kerr).  That got me to thinking — what about international law and the law of other nations?  The result is this short academic paper that I’ve just posted on SSRN — International Law and Private Actor Active Cyber Defensive Measures.  Here’s the abstract:

American legal theorists and policy analysts are increasingly considering whether it would be appropriate to authorize private sector actors to take active measures in their own cyber self-defense, a concept known colloquially as “hack back.” But none, to date, have given any consideration to how authorized American hack back might implicate international law. This short article seeks to fill that gap with some preliminary thoughts regarding the application of non-American law to American private sector hack back. The fundamental conclusions are two-fold: 1) To the extent any customary international law exists at all it is likely to discourage private sector self-help outside the framework of state-sponsored action; and 2) Almost certainly, hack back by an American private sector actor will violate the domestic law of the country where a non-US computer or server is located. In light of these twin conclusions, American companies considering offensive cyber operations would do well to proceed with caution.

The paper is still a work in progress, scheduled for publication in the Stanford Journal of International Law later this year, so any constructive feedback is most welcome.

The BBC is reporting that British forces have been holding up to 85 Afghan detainees at a base in Afghanistan, some for as long as 14 months.   A British official is quoted as saying “Many are either suspected killers of British troops or known to be involved in the preparation, facilitation or laying of improvised explosive devices. They are held pending transfer to Afghan authorities for further investigation prior to prosecution.”   But British lawyers for the detainees claim that the detainees are being held in violation of international law and have filed for habeas in UK courts.   The situation is complicated by the fact that the British Defence Minister imposed a ban last November on turning captured Afghans over to the Afghan government for fear of mistreatment.  And the British government will be reluctant to free the Afghan men after reports that British officials had recommended in 2010 that Kenya release the man who later killed a British soldier last week in London.

Robin Simcox, research fellow at the Henry Jackson Society in London—who wrote this guest post for Lawfare last year about control orders in the UK—writes in after last week’s horrific terrorist attack in London about the burden on the British intelligence community and the difficulties of preventing and prosecuting domestic terrorism cases:

As Lawfare readers surely know, a British soldier was hit by a car and then hacked to death with machetes in Woolwich, London last week.

The assailants, two naturalized British citizens from Nigeria named Michael Adebolajo and Michael Adebowale, demanded that passers-by film their justification for the attack (which consisted of largely standard al-Qaeda inspired rhetoric). At present, this seems to be a homegrown plot without direct instruction from international terrorist groups.

The fallout from these events in the UK has been significant, particularly because British intelligence agency MI5 was aware of one perpetrator’s radical leanings for around eight years. Adebolajo had been arrested in Kenya in 2010, apparently while trying to connect with al-Shabaab. He had also attended meetings in the UK organised by al-Muhajiroun, a now-banned Islamist group, and in 2007, he had been arrested for involvement in an al-Muhajiroun protest.

The headline in Britain’s foremost conservative broadsheet newspaper read “Why was he [Adebolajo] free to kill?” This was followed up by a story on a variety of supposed MI5 blunders implying that Adebolajo was not treated with sufficient seriousness. Prime Minister David Cameron has now ordered an investigation to be carried out by the Parliamentary Security and Intelligence Committee, attempting to find out “what went wrong.”

There is certainly a need for the police to investigate whether the murderers were part of a wider domestic network. Arrests have been made, yet no charges have been brought as of yet. However, how much can MI5 really shoulder the blame for what happened in Woolwich?

Criticisms of MI5 have an added resonance because two of the July 2005 bombers had also been under surveillance, only to be later assessed as not being an imminent threat. However, the agency has been perfectly clear about the problems they have to manage. There are approximately 2,000 individuals who pose a national security threat, yet current funding levels mean authorities can only “hit the crocodiles nearest the boat.”

It would be more concerning if the London killers were not on MI5’s radar. Asking it to identify terrorists and then predict with near-certainty who is going to make the transition into violence is an unrealistic expectation. There is not always an obvious trigger; I am yet to see a satisfactory explanation as to why someone such as Adebolajo, who had been on the fringes of extremist activity for at least eight years, would suddenly decide to carry out an attack.

Furthermore, anyone who thinks Adebolajo’s trip to Kenya and connections with al-Muhajiroun are enough to lead to his conviction in a UK court has not been paying attention to either British legal precedents or handling of terrorism cases. There have been individuals who have been actual members of al-Qaeda or who have fought alongside its senior leadership, who, for a variety of reasons have not been prosecuted. Adebolajo’s activities prior to last week are small fry in comparison.

It is also worth remembering that a host of other legal rulings have made it harder for MI5 to operate effectively. Britain has had significant problems with being able to deport foreign terror suspects: Abu Qatada remains in London, despite Labour and Conservative governments attempting to deport him for over a decade. Detention without trial has been struck down as an alternative in the House of Lords.

In 2005, control orders were introduced as a last resort in an attempt to monitor those who posed a national security threat but who also could not be deported or convicted. However, they too were sacrificed in 2011 as part of a political compromise that enabled the Conservative and Liberal coalition government to endure. The successor regime, Terrorism Prevention and Investigation Measures, retained some of the key functions of control orders, yet it lost the crucial ability to relocate terror suspects to a different part of the country.

In summary: there are a lot of suspected national security threats in the UK; only a small minority can be prosecuted; there are not enough resources to place them all under surveillance; the law is insufficiently robust; and no foolproof way exists of knowing who will make the transition from expressing radical sentiments to actual terrorist plotting. There is no easy way out of this quandary.

MI5 has helped to thwart at least one major al-Qaeda inspired terrorist attack in the UK virtually every year for the last decade, and it should clearly still aspire to operate more efficiently. Yet to lambast the agency now—for not noticing a plot that essentially only needed a car and a machete to succeed—is to place a degree of expectation on it that no free society can reasonably request.

As many of you might have read, the Department of Justice announced a large scale money-laundering indictment against Liberty Reserve yesterday.  I will have some analysis of this development (and the related demise of BitCoin) once I’ve had a chance to think this through some more — though the national security implications of a separate monetary market seem palpable.  For now, however, I would like to request some information and assistance from the Lawfare readership.  Can anyone help me understand this passage from the DOJ press release:

Officials said the case was a series of firsts for U.S. authorities. In addition to being the largest international money-laundering case brought by the Justice Department, it involved the first search warrant executed by American officials against a cloud-based server. Bharara said 30 search warrants were executed during an 18-month investigation.

What does the bolded text mean?  Surely it does NOT mean that DOJ has never served a warrant on a service provider who uses a cloud based architecture to control access to its servers.  After all, we know that many service providers configured in that way (Google, Microsoft, Amazon) routinely respond to search warrants.  So, does it mean that the servers used by Liberty Reserve were some virtualized construct resident in a distributed way across the hardware component?  But would this really be the first time such a construct was searched?  And is the distinction meaningful — aren’t the underlying hardware components still resident somewhere (whether in the US, Costa Rica or elsewhere)?  And if that is the case, where was the warrant issued, served and executed?

I am, quite honestly, confused by all of this –  so if any readers have a better guess (or real knowledge) please let me know.

BTW, for those who are curious a “bleg” is a portmanteau word combining “blog” and “beg” to denote an instance where a blogger begs his readership for assistance.  I suppose “blask” was too harsh a construct!

The case is Federal Trade Commission v. Wyndham Worldwide Corporation, a civil suit brought in the District of Arizona by the FTC relating to a cybersecurity breach at Wyndham.  To understand why the case matters quite a bit, we need to step back and understand the FTC.

The FTC has two grounds on which it can bring a civil lawsuit.  One is an allegation of deception – in other words an argument that some consumer service organization (like, say Wyndham Hotels) had made representations to the consuming public that were false.  As you may imagine allegations of that sort are often very fact specific and tied to particular circumstances.

The second ground for FTC enforcement is a broader one – that a company has engaged in “unfair” business practices.  In other words that a company “caused or [is] likely to cause substantial injury to consumers that consumers cannot reasonably avoid themselves and that is not outweighed by countervailing benefits to consumers or competition.”

The FTC suit against Wyndham is tied to a breach of Wydham’s computer systems by a Russian criminal organization that, allegedly, resulted in more $10 million in fraud losses.   It seeks a permanent injunction, directing Wyndham to fix its cyber systems so that they are more secure and unspecified damages.

The suit asserts both grounds for FTC jurisdiction.   It first alleges that Wyndham’s privacy policy about how they will maintain the security of information about their customers is deceptive – in other words that Wyndham made cybersecurity promises it couldn’t keep.  The suit also alleges that, systematically, Wyndham’s failure to provide adequate cybersecurity for the personally identifiable information of its customers is an unfair business practice.

This type of lawsuit by the FTC is not unusual.  These legal theories have been the foundation, for example, of the FTC’s investigation of Google, Twitter and HTC, and its investigation of data breaches at large consumer companies like Heartland.    In almost all of these cases, the FTC deploys some combination of the argument that a company has misled the public about the nature of its cybersecurity (“deception”) or that it has failed to invest adequately in cybersecurity measures (“unfair practices”).  Until now, all of these actions have resulted in out-of-court settlements, leaving the validity of the FTC’s legal theories untested.

It is fair, I think, to say that at this point in time the FTC’s efforts are the only effective aspect of a Federal program to compel the business community to adopt more stringent cybersecurity measures.  [I use “effective” here in a descriptive manner, as it is indisputable that the FTC’s efforts are having an effect.  Whether, as a normative matter, those effects are good or bad is a different question.]  Cybersecurity legislation is still in the future and the Administration’s Executive Order remains in development.  The FTC is the only effective game in town.

But now – in the Wyndham case — the FTC’s authority is being questioned.  As the Wall Street Journal recently reported, Wyndham is challenging the basic premise of the FTC’s suit, arguing that consumer protection statutes cannot be stretched to cover cybersecurity issues.  Wyndham has argued that the lawsuit exceeds FTC’s enforcement authority – a position supported by the Chamber of Commerce.

The principal evidence that the FTC may be acting beyond its authority is its own report from 2000, in which it asked Congress to expand its legal authority to consider security breaches as consumer-protection issues.  Congress has never acted on that request, but the FTC has decided to proceed anyway.  Indeed, as Wyndham notes, there are a host of more specific data-security laws already on the books (HIPPA; COPPA; Graham-Leach-Bliley; Fair Credit Reporting), suggesting that there has not been a broad, general grand of data-breach security regulatory authority to the FTC.

Now, we can see why this is a significant matter.  In the absence of comprehensive cybersecurity legislation and while we are waiting for the cybersecurity standards of the Executive Order to be developed, the only effective method for cybersecurity regulation by the government is to use the FTC;s enforcement authority.  If, in the end, it turns out that the FTC lacks the authority it has been asserting then … well, then the government will be without any real authority to compel cybersecurity improvements.  Some will see that as a victory; others as a defeat – but either way it will be quite important.  We’ll keep an eye on Wyndham as it moves forward.

Many thanks to all of of those readers—all 505 of you—who took the time to fill out our readership survey. While the survey is not a scientific instrument, the data it collects will be hugely valuable to us as we contemplate the next phase of Lawfare‘s expansion. In addition, people’s written comments, which are not included in the data summary, were hugely interesting and mostly insightful and helpful (though I’ll confess to being mildly alarmed by the one that began, “I am the son of God come again, and should replace Benjamin Wittes as Editor in Chief.”)

Here is the data summary, compiled in a set of slides:

A few takeaway points of high salience to me:

First, our readership is—no surprise here—highly weighted toward government practitioners. More surprisingly, it is also weighted towards law students, which seems to me a very promising fact for our future.

Second, the readership is remarkably loyal: More than half of respondents say they read the site at least daily, and more than 80 percent say they read it at least a few times a week. There is, granted, a certain self-selection bias in who responds to a survey of this kind, but it’s still a remarkable degree of readers intensity. Lawfare is also a deeply trusted source—with more than 70 percent of readers choosing one of our top two indicia of trust on the survey’s scale. What’s more, more than a quarter of respondents say they would donate, if asked, to support the site as it becomes a non-profit organization of its own.

Third, Lawfare readers are quite traditional for new media consumers. Respondents prefer to access the site by visiting it directly; many fewer say they access it through RSS, Kindle, email subscription, Facebook, or Twitter. A surprisingly small percentage of readers listen to our podcast. On the other hand, our analysis, book review, and news aggregation features—Today’s Headlines and Commentary and The Week That Was—enjoy much wider reader use. This suggests to me that people engage Lawfare as a kind of traditional magazine, not really as a multimedia site. Over the coming months, I’m going to give some serious thought to the question of how to break the podcast through to a wider group of the readership.

Third, there is a lot of appetite in the readership for the site’s growth, including into material for which we would have to charge. Significant percentages of readers say they would pay for live events, CLE materials, specialized publications, and professional networking services. In addition, there is remarkable enthusiasm for our work in areas (like Pakistani and Middle Eastern politics and robotics) that are not themselves national security law but which inform people’s work in the discipline. Fully 86 percent of respondents encouraged us to keep plying these spaces—with only 14 percent suggesting that we should “stick to the law.”

Once again, thanks to everyone who took the time to fill out the survey. It gives us a lot of food for thought.

Washington Post national security reporter Greg Miller has an excellent story in Sunday’s paper on the operational role of the CIA in drone warfare.  Back at the time of the Brennan confirmation hearings, and even before, there had been discussion that the CIA would be pulled – even if only gradually – out of drone warfare and this form of using lethal force would be turned over the military.  The CIA would re-focus itself on intelligence gathering and analysis, which many commentators inside and outside government said had taken a backseat to operational roles.  Brennan himself urged this re-configuring of CIA priorities – including a shift away from counterterrorism to re-emphasize other intelligence missions; and the administration has said similar things in recent weeks.

Focusing on drone warfare in Yemen, however, Miller’s report suggests this is easier said than done – whether in Yemen (or, it might be added, in Pakistan).  A fundamental reason seems to be something noted many times here at Lawfare – the firing of a missile from a drone is the last kinetic step in a long chain of intelligence-gathering that includes surveillance over time from drones, signals intelligence and, crucially, on-ground human intelligence networks that give the US reason to be focusing on certain people as possible targets.  Whether in Pakistan or Yemen, the effectiveness of drone warfare has been a function of the quality of the front-end intelligence that finally might lead to a strike.   The drone’s contribution to the intelligence is far from being entirely tactical, of course – the drone’s surveillance has far more utility than just the preparation of a strike and that surveillance is crucial for reducing collateral harm from the strike itself. But drones are not quite so useful if one has no prior idea who one is searching for or where he might be or even why him – and much of this intelligence is gathered at the front end of the process in reliance on human intelligence networks.

Although in principle the functions of intelligence gathering at the front end might be separated out from the intelligence involved in the preparation of a strike and from the actual strike itself, with the CIA engaged in the intelligence side and the military serving as the trigger pullers, the experience in Yemen raises some cautions about how easy it is to create this division of labor.

Four years ago, as a new al-Qaeda affiliate in Yemen was proving itself a potent adversary, the Obama administration made plans to attack it with airstrikes just as the United States had been doing to the terrorist network’s core in Pakistan.

But this time, the White House decided there would be a key difference: The strikes in Yemen would be carried out by the U.S. military, not the CIA. Two years later, in mid-2011, a mysterious construction project began to emerge in the Saudi desert, an elongated compound with a ribbon of concrete running parallel to the ridgelines of the surrounding dunes. CIA drones were about to enter the skies over Yemen after all. The change was driven by a number of factors, including errant strikes that killed the wrong people, the use of munitions that left shrapnel with U.S. military markings scattered about target sites and worries that Yemen’s unstable leader might kick the Pentagon’s planes out.

But President Obama’s decision also came down to a determination that the CIA was simply better than the Defense Department at locating and killing al-Qaeda operatives with armed drones, according to current and former U.S. officials involved in the deliberations. Even now, as the president plans to shift most drone operations back to the military, many U.S. counter­terrorism officials are convinced that gap in capabilities has not been erased.

The WaPo story quotes an official saying that Yemen is an exception, not the rule – the result of its special circumstances, and with the official “making clear that the administration regarded the CIA campaign as an anomaly and saw lethal operations as the province of the military.”  I am not so sure that Yemen is so completely an anomaly, at least given how important CIA intelligence networks in Pakistan have proved to be in making targeting effective.  Over time, and particularly in the case of both a convergence and division of labor between the CIA and JSOC to divide intelligence networks and lethal operations, I imagine that any deficits could be overcome.

But in any case, as of now, a figure as important as Sen. Diane Feinstein – chairman of the Senate Intelligence Committee – has raised caution about the military taking over for the CIA in Yemen, saying that “she had seen the CIA ‘exercise patience and discretion specifically to prevent collateral damage’ and that she ‘would really have to be convinced that the military would carry it out that well’.” (I discuss some of these issues in my new Commentary essay, The Case for Drones.)

Welcome back. Here’s hoping your Memorial Day Weekend was restful and relaxing.

The biggest news item of the day is this story by Ellen Nakashima of the Washington Post.  It’s about designs for some of our country’s most sensitive weapons systems—which were compromised, earlier this year, by Chinese cyber attacks.

Hackers have attempted to breach American energy infrastructure as well, says CNN. Iran is thought to be behind this string of incidents.

Carol Rosenberg of the Miami Herald reports that, as of Sunday, 35 Guantanamo Bay detainees were being force fed. The number could be higher, however—prison officials are not allowed to include the 15 former CIA captives in their numbers.

Coverage of President Obama’s speech at National Defense University continues: In case you didn’t get enough Republican criticism of his address—check out Raffaela’s excellent post on this subject—The Hill has you covered.  Here are remarks from House Homeland Security Committee Chairman Michael McCaul (R-TX), Rep. Peter King (R-NY), Sen. Rand Paul (R-KY), and, of course, Sen. Lindsey Graham (R-SC). Sheryl Gay Stolberg of the Times also has talking points from the Sunday talk shows.

Declan Walsh of the Times discusses the effect that policies announced in the president’s remarks will have on Pakistan.  Less engagement with Pakistan will diminish the country’s strategic significance to Washington; Pakistan also will have to begin taking responsibility for terrorists on its soil.

Peter Bergen of the New America Foundation argues in this CNN op-ed that the essential part of the president’s address was not his discussion of specific policies in the War on Terror, but his “overarching framework for how to conceptualize the conflict”:

But the most significant aspect of the speech was the president’s case that the “perpetual wartime footing” and “boundless war on terror” that has permeated so much of American life since 9/11 should come to an end.

Obama argued that the time has come to redefine the kind of conflict that the United States is engaged in: “We must define the nature and scope of this struggle, or else it will define us.”

Jeremy Herb of the Hill reports that defense experts believe that targeting criteria outlined in President Obama’s speech spell a curtailment of drone strikes—and a possible end to signature strikes altogether.

Jane Harman of the Woodrow Wilson International Center for Scholars has this article in Foreign Policy about how to lessen the risk of self-radicalization in the United States. She outlines four ways to mitigate the risk:

1.) intervene in the grey area between radical beliefs and violent behaviors; 2.) install redundant layers of security at both hard and soft critical targets; 3.) instill trust with communities where alienation is likely; and 4.) integrate a whole-of-government approach that embodies U.S. values.

Speaking of homegrown radicalism, the horrendous stabbing of a British soldier last week has led to the same questions about domestic intelligence failures that arose on these shores, after the Boston marathon bombings. John F. Burns of the Times informs us that the UK government acknowledged yesterday that it knew for two years that Michael Adebolajo, one of the two suspects, had links to Al Qaeda. He had been arrested by Kenyan police in 2010 on suspicions he was planning to join Al Shabaab. The Wall Street Journal has more.

Sadly, a French soldier was also stabbed over the weekend while patrolling a crowded commercial district, announces the Associated Press. The suspect remains at large.

And, African leaders have decided to move forward with plans for a military rapid reaction force to respond to security emergencies on the continent. Reuters has more.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

Those who are fans of the classic Bill Murray movie Groundhog Day will be forgiven if they see echoes of that story line in the immigration reform bill.  For much as Murray is seemingly doomed to repeat the same day over and over again until he realizes the need to modify his behavior, it seems that Congress, likewise, is intent on repeating itself endlessly, hoping against hope for a different result.

I refer here to the recently reported “compromise” that the Senate has adopted about the development and deployment of a biometric visa exit system.  According to the Washington Post, as part of strengthening American border security, the immigration reform bill would require the Department of Homeland Security to deploy fingerprint scanners at airports in the United States in phases over the next 5 years.   By the end of 5 years, foreigners leaving from the 30 busiest airports in America would be required to undergo outbound fingerprinting.  The Senate rejected an amendment that would have extended the fingerprint requirement to all outbound ports of entry/exit.

But biometric exit has been American policy for 12 years – and not just at the top 30 airports but nationwide.  If we haven’t done it in the last dozen years, why do we think we will succeed in the next 5?

[A brief word of explanation on two points:  First, this program is known as “biometric” exit because it relies on a biometric factor – a fingerprint – to conclusively identify and match an alien who is exiting this country to a record of his entry, for which a fingerprint is also taken.  Currently the outbound match is done by a “biographic” means – that is, by checking a name on an outbound manifest provided by the airlines and matching it against the name an alien provided (on his/her passport) at the time of entry to the United States.  Though biographic name matching is highly accurate (I have seen reports of over 90% effectiveness) it is quite clear that biometric exit matching is likely to be even more accurate.

Second, an exit matching program is thought to be essential because visa overstays represent a significant fraction of those who are in the country illegally.  While many who are illegally present in the US entered illegally, roughly 40 percent first arrived in the US lawfully – with, say a tourist visa or a student visa, or in a situation where no visa was required – and then overstayed their welcome.  An effective exit matching program would help identify all of those who arrived lawfully but remained beyond the end of their lawful term in the US.  Hence Congress’s insistence on a biometric exit program.]

So given that background, what could possibly be wrong with a biometric exit program?  Quite a lot as it turns out. Read more »

Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.”  Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended.  This is because, as Bobby says, the administration’s “imminent threat” constraint outside hot battlefields – which has allowed quite a lot of lethal force to be used in many nations – “is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years.”  When these factors are combined with technological innovations (drones and the like) and the global dispersion of the threat, Bobby concludes:

In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed.   Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model.

Ben weighed in yesterday with some questions about Bobby’s thesis, including the extent to which Article II could cover current operations outside Afghanistan, whether the nation is comfortable with the “militarily active peace” that Bobby describes, and what kind of interstitial legislation might round out the President’s Article II authorities.

Several thoughts:

First, I agree with Bobby’s implication that we are on the road toward post-AUMF uses of military force around the globe justified entirely on the basis of self-defense and the President’s Article II powers.  Self-defensive military actions based on Article II are (I think) what Jeh Johnson was talking about when he referred to “military assets available in reserve to address continuing and imminent [extra-AUMF] terrorist threats” and what Harold Koh meant when he said “I see no proof that the U.S. lacks legal authority to defend itself against those [beyond the AUMF] . . . who pose to us a genuine and imminent threat,” and what the President probably had in mind when he said that “[o]ur systematic effort to dismantle terrorist organizations must continue” even after the AUMF-war ends.

Second, it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II. Read more »

The major challenge to legitimating the shadow war against terrorists is that the Executive branch is hand-tied by its own secrecy rules, and cannot disclose what it is doing to permit Congress and the American people to judge whether it approves.  Even Executive branch officials who want to be open about what is going on (as I believe the President and many of his national security officials want to be) are prevented by secrecy rules from being entirely candid.  Officials convey information in what I recently described as “limited, abstract, and often awkward terms” that “usually raise more questions than they answer,” a problem exacerbated by the fact that “secrecy rules often preclude the administration from responding to follow-up questions, criticisms, and charges.”  Disclosures designed to enhance trust can end deepening mistrust, especially when journalists start reporting on events that don’t fit the administration’s narrative, and the administration cannot (perhaps because of secrecy rules, perhaps because the truth is uncomfortable) respond fully.  This dynamic is made worse by the fact that partial disclosures are greeted for demands for more disclosures that the government simply cannot abide.

This is starting to happen with the abstractions that the President used to describe his ostensible curtailment of the war.  Ryan Goodman and Sarah Knuckey have a careful analysis of the speech that note its ambiguities and uncertainties on the geographical scope of the war, the continued use of signature strikes, the meaning of non-feasible captures as prerequisite for strikes, whether Americans “not specifically targeted” (in the President’s words) were targeted as part of a signature strike or some other reason that prevented the president from describing their deaths as accidental, whether any member of a terrorist organization or only its leaders are targetable, and the crucial meaning of phrases like “near certainly,” “imminence,” and “associated forces.”  Goodman and Knuckey conclude that these ambiguities and uncertainties make it “impossible for the public to, in the President’s words: “make informed decisions and hold the Executive Branch accountable,” and note that “until the White House releases the legal memos that explain its understanding of such terms and its legal justification for the drone program more broadly[,] there is reason to remain deeply skeptical.”  Along similar lines, Lesley Clark and Jonathan S. Landay at McClatchy compare the President’s speech with past administration speeches and conclude that the speech might imply an expansion of drone killings.

Pushing in the other direction, however, is the reality that drone strikes (and their consequences) are in some senses verifiable, and the rate of strikes in both Pakistan and Yemen have dropped this year (and having been dropping for a few years in Pakistan).  In the end, the credibility of the government’s new standards might turn less on the President’s words, which by themselves cannot establish credibility, but rather on how he is perceived to use drones (and other forms of fire) in fact.  It does not follow, of course, that reduced drone strikes mean that the new standards have bite, or are constraining.  As David Cole notes in a good if perhaps-too-hopeful NYRB essay:

[The reduction in drone strikes] may reflect a diminishing number of appropriate targets. It may suggest that the administration has for some time been employing more restrictive standards. Or it may reflect increasing acceptance of the view that drone strikes have become counterproductive—a point made publically by former counterterrorism intelligence chief Dennis Blair and retired General Stanley McChrystal, who headed the US forces in Afghanistan.

There is at present a correlation between reduce-the-war rhetoric and at least the verifiable elements of Obama’s stealth war.  But as Ben suggested at the end of this post, the causes of drone strike reduction, and the duration of their reduction, and the relationship between the reduction and the rhetoric, remain unclear.

The single most challenging, interesting, and profound comments I have read about President Obama’s speech the other day is this post by Bobby. Drawn from his ongoing book project, Bobby poses the question of what the end of the conflict—sought by the Left for years and dangled before the American people in the President’s speech with passion and at length—really means. Specifically and most importantly, Bobby asks whether we have already reached it and just haven’t noticed:

Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period).  And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting).  The question is: would any of that matter in actual practice?

Bobby quotes from his book manuscript—written long before Obama’s speech based on prior administration statements:

The post-9/11 claim that we are in an “armed conflict” with al Qaeda and its associated forces has long since ceased to matter in strict legal terms, other than in connection with the lingering detention of the legacy populations at GTMO and (for non-Afghan detainees) at Parwan.  We have not taken new detainees into long-term military custody in many years, and there is no prospect that we will do so for years to come.  What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all.  As the  Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the “hot battlefield” to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard).  This is far more restrictive than the status-based targeting model associated with armed conflict.  Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier.

. . .

[O]ne might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model.  Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.

Bobby concludes—in light of Obama’s speech—that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate—or an AUMF, for that matter.”

I have been thinking about this arresting conclusion—call it the Chesney Conjecture—all weekend, and I want to pose some questions about it. If the Chesney Conjecture is correct, its corollary is that we are already substantially at peace. Yes, we are in a wind-down phase with respect to operations in Afghanistan. And yes, we have some legacy detainees, both at Parwan and at Guantanamo. But Bobby’s key point is that nothing outside of those spheres that is currently taking place under the AUMF could not also take place under a post-AUMF regime based on self-defense—particularly given the administration’s fulsome notion of imminence of threat.

So the first question is an empirical one: Is the Chesney Conjecture correct? Put another way: Leaving aside residual detention operations and residual combat operations in Afghanistan, can anyone identify U.S. operations anywhere in the world that rely on the AUMF that would not also find support in self-defense law given the US’s interpretation of imminence? If so, what are the set of activities in which the US is currently engaged that will have to stop with the lapsing the AUMF? 

If the answer to this question is a null set and the logical conclusion is that we are already at peace (outside of Afghanistan), how do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime? 

If the Chesney Conjecture is correct, it follows as well that the current debate over the future of the AUMF—a debate in which Bobby and I have both actively participated—is a bit of a misfire. Rather than asking what new authorization the president may need to conduct the shadow war, the question we should be asking is: What sort of authorization—if any—should Congress give to the executive branch for the routine use of military force in peacetime? If we frame the question this way, is there greater room for agreement between those who have argued against and those who have argued for openness to a new AUMF?

Finally, if the Chesney Conjecture is right, it follows that the real role the AUMF is playing (outside of Afghanistan) may lie only in certain very-specific exertions of power at the intersection between military and civilian authorities—for example, in giving the power to hold Ahmed Warsame for two months on a warship before turning him over to prosecutors. Can we identify all of these interstices, and is it possible to imagine narrow legislation, rather than a broad authorization for the use of force, to handle these situations?

Last week, the President talked about winding down the conflict under the AUMF. The week before that, the Defense Department declared that the conflict could go on for another two decades. Bobby now poses the question of whether it has already meaningfully ended. It’s a huge, conversation-changing question—one whose implications we need to talk through.

I can do no better than quote Oliver Wendell Holmes from his famous speech to the University of Virginia in 1884:

So to the indifferent inquirer who asks why Memorial Day is still kept up we may answer, it celebrates and solemnly reaffirms from year to year a national act of enthusiasm and faith. It embodies in the most impressive form our belief that to act with enthusiam and faith is the condition of acting greatly. To fight out a war, you must believe something and want something with all your might. So must you do to carry anything else to an end worth reaching. More than that, you must be willing to commit yourself to a course, perhpas a long and hard one, without being able to foresee exactly where you will come out. All that is required of you is that you should go somewhither as hard as ever you can. The rest belongs to fate. One may fall-at the beginning of the charge or at the top of the earthworks; but in no other way can he reach the rewards of victory.

When it was felt so deeply as it was on both sides that a man ought to take part in the war unless some conscientious scruple or strong practical reason made it impossible, was that feeling simply the requirement of a local majority that their neighbors should agree with them? I think not: I think the feeling was right-in the South as in the North. I think that, as life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived.

If this be so, the use of this day is obvious. It is true that I cannot argue a man into a desire. If he says to me, Why should I seek to know the secrets of philosophy? Why seek to decipher the hidden laws of creation that are graven upon the tablets of the rocks, or to unravel the history of civilization that is woven in the tissue of our jurisprudence, or to do any great work, either of speculation or of practical affairs? I cannot answer him; or at least my answer is as little worth making for any effect it will have upon his wishes if he asked why I should eat this, or drink that. You must begin by wanting to. But although desire cannot be imparted by argument, it can be by contagion. Feeling begets feeling, and great feeling begets great feeling. We can hardly share the emotions that make this day to us the most sacred day of the year, and embody them in ceremonial pomp, without in some degree imparting them to those who come after us. I believe from the bottom of my heart that our memorial halls and statues and tablets, the tattered flags of our regiments gathered in the Statehouses, are worth more to our young men by way of chastening and inspiration than the monuments of another hundred years of peaceful life could be.

With gratitude to those who have served and reverence who gave that “last full measure” of their devotion to our country.

This week, I interviewed CDR Walter Ruiz, a lawyer for accused 9/11 co-conspirator Mustafa al-Hawsawi.

Our discussion touched on, among other things: the fairness of military commission rules; Ruiz’s contention that the rules allow evidence derived from torture; Ruiz’s own background; his experiences as capital defense counsel in history’s most closely-watched terrorism case;  and the burdens on commission defense lawyers.  Ruiz describes a lack of needed logistical resources, onerous secrecy restrictions, his concerns about the confidentiality of defense communications.

Regarding the latter, Ruiz mentioned some recent and widely-publicized mishaps in the case—such as a hidden third party’s cancellation of the courtroom’s audio feed, and the disclosure of defense emails to prosecutors—but suggested that these episodes are actually good the defense in that they have created possible issues for appeal.

Some readers may have read about the ongoing proposal that SoftBank purchase a controlling interest in Sprint/Nextel.  As the Washington Post has reported, the Dish network has made a competing offer to purchase Sprint.

Not content with the overt business competition, Dish has also taken a second step of attempting, through the political process, to deter the SoftBank purchase.  SoftBank, you see, is a foreign-owned company (it is domiciled in Japan) and Dish has raised the specter that a foreign company might gain a controlling interest in a critical domestic company.  You may have seen the full page color ad in the Post comparing the purchase of Sprint to the now-infamous proposed purchase of an American port company by Dubai Ports World.   And, needless to say, Dish has is political advocates – a Republican Congressman whose district is home to Dish and Senator Chuck Schumer.

I have no real knowledge of the substance of the purchase – except that it seems SoftBank has offered some pretty significant concessions to US concerns, including that the US would be able to nominate a national security expert of its own choosing to the new SoftBank board.  But I thought that it would be worth offering a short “explainer” of why, after all, the US government has any say at all in a proposed private sector transaction.

The answer lies in the Committee on Foreign Investment in the United States (CFIUS).  CFIUS is an inter-agency committee authorized to review transactions that could result in control of a US business by a foreign person (known as “covered transactions”), in order to determine the effect of such transactions on the national security of the United States.  CFIUS operates pursuant to section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007 and as implemented by Executive Order 11858 (as amended), and regulations at 31 C.F.R. Part 800.  The Director of National Intelligence is tasked with conducting an intelligence assessment of the risks posed by certain transactions and reporting to the committee on his findings.  His representative sits, ex officio, on the committee and brings a counter-intelligence perspective to its deliberations where appropriate.

If CFIUS determines that the proposed transaction poses a risk of some sort it may prohibit the transaction altogether or, far more frequently, it may enter into a mitigation agreement that puts in place mechanisms and requirements that it deems necessary to ameliorate the risk.  Though CFIUS was initially created to focus on the sale of companies that would result in foreign control of defense-critical industries, in the post-9/11 world it has come, as well, to focus on sales that will effect critical infrastructure (such as the sale of port facilities to Dubai Ports World).  This focus has, on at least one publicly acknowledged occasion, involved the review of a purchase that implicated cybersecurity concerns.

According to the Congressional Research Service, the Israeli firm Check Point Software Technologies decided to call off its proposed $225 million acquisition of Sourcefire, a U.S. firm specializing in security appliances for protecting a corporation’s internal computer networks, because of a CFIUS inquiry).  I’m personally aware of several similar transactions, the details of which are protected by the confidentiality rules that apply to CFIUS activities.

But the bottom line here seems clear – CFIUS has the legal authority to review the proposed SoftBank purchase.  Apparently it is in the midst of doing so and as part of that review SoftBank has already offered some concessions to mitigate concerns.  Dish Network’s political intervention through Congress is an attempt to influence the CFIUS process through public pressure.  We’ll see how that works out.

A Happy Memorial Day to one and all.

Former Director of National Intelligence Dennis Blair ABC, speaking about how leaks from the top of the Obama administration set the tone for leaks further down that are subject of DOJ investigations:

Martha Raddatz: “You’ve heard the press’s side there.  Admiral Blair, you were in the White House. The leak investigations have been quite intense in the Obama White House.

Dennis Blair: Right.  And they have been directed, the ones that I knew about, mostly against the U.S. government employees who were talking with reporters which is where I think they should be directed.  I know of no institution in America better able to defend itself than the press.  So I think that will work out okay.  But what I think is that the leaking at the top of this administration … is what sets the tone for those below.  And I think that most of the — most of what administration spokesmen should talk about with reporters should be talked about on the record, with their names attached to it.  To set an example so that those further down the line don’t think that leaking is the way it’s done, the way it should be done. (emphasis added)

And Senator Schumer on CBS, proposing that a court decide when journalists must divulge sources:

I proposed along with [Sen.] Lindsey Graham [R-S.C.], we’ll be announcing that we have four Democrats, four Republicans, another Gang of Eight . . . [that will introduce] legislation that sets up rules where . . . if the government wants to go to a member of the press and say you have to divulge your sources and certain information, they first have to go to a judge, and that judge will impose a balancing test [and say] ‘which is more important? The government desire to… find out who leaked the information or the robust freedom of the press?’”

Senator Schumer did not explain how judges would balance these aims, or why the proposal would be constitutional.

In response to some of my commentary on President Obama’s speech, the estimable Alex Remington tweeted at me the following South Park clip—which seems, uh, relevant to a president who wishes to present himself as a conscientious objector to his own policies:

As I noted yesterday, I have an essay at CFR on the President’s speech.  I don’t write the headlines or the summaries of my pieces, and I was surprised and dismayed when someone at CFR summarized my piece by saying: “President Obama’s counterterrorism speech didn’t earn its hype. When it comes to the war on terror, the president’s top priority has always been saving face, not solving problems.”   The first sentence is an accurate summary; the second, italicized phrase is not remotely accurate, and not what I think.  I contacted my editor yesterday, and at my request he changed that summary as it is displayed on the page of the essay.  But I just noticed that the erroneous summary is still present (as of 2:30 p.m. Saturday) on the main CFR web page.  I hope to get it changed ASAP, but in the meantime, and for the record, I want to disassociate myself from the absurd statement that “the President’s top priority has always been saving face, not solving problems.”

UPDATE: Fixed now.

The main topic on Lawfare this week was the President’s address at the National Defense University on counterterrorism policy.  We previewed the Thursday address in our early week coverage: Jack was the first to note the speech on the blog, Bobby and Matt suggested possible points for the president to cover, Rick shared an abstract of a chapter he authored in a forthcoming book about drone strikes, and John reminded us of the Bush administration’s efforts to close GTMO.  Also in advance of the speech, Attorney General Eric Holder sent a letter to Congress acknowledging that four American citizens have been killed in drone strikes.  Matt and John reacted to the letter.

Then came the speech itself.  We’ve got all of your primary source materials here at Lawfare: video, prepared remarks, and fact sheet.  To those things you can add plenty of Lawfarer commentary: by Rick, Wells, Ben (on whether we’re at war, Guantanamo,  targeting criteria, and a drone court), John, Jack, and Ken. I pulled together reactions of Republican senators as well.

Jack noted some additional post-speech commentary by Ryan Goodman and Sarah Knuckey.  The pair ask a series of questions about  targeting rules announced during the President’s address.

Just in time for the speech, the Hoover Institution released the second chapter of Ken’s and Ben’s book on the Obama administration’s addresses on national security law. Meanwhile, Ken’s essay in Commentary Magazine was published; it has the self-explanatory title of “The Case for Drones.”

Bobby asked whether the armed conflict model really matters in practice any more, and overviewed some reasons why today’s armed conflict and the post-conflict era might closely resemble one another.

Steve wrote about the Center for Constitutional Rights’ efforts, in civilian court, to gain access to the Bradley Manning court martial proceedings.

David Kris’s guest posts on reforming U.S. surveillance laws went up: read his introduction, and his three pieces on the challenges and approaches to, and concluding thoughts about, a blue sky overhaul.

Likely you’ve heard of the Al-Bahlul case, pending before the D.C. Circuit en banc.  Wells posted on the filing, Friday, of the petitioner’s brief.

Wells also noted this week’s filings by GTMO detainees, wherein they argued that detention center policies chill them from meeting with counsel. He also shared the D.C. Circuit’s order affirming the district court’s denial of habeas corpus to GTMO detainee Al Warafi; Susan analyzed the order more closely.

It seems a Yemeni detainee’s plea to the D.C. Circuit,to force the District Court to decide a long-pending motion of his, prompted action at last.  On Thursday the District Court denied Hani Abdullah’s motion for a preliminary injunction, as Wells discussed.

We shared video from a recent event at the Heritage Foundation on detention policy, which featured four former Deputy Assistant Secretaries of Defense for Detainee Policy—including Matt.

More information came to light about the Rosen/Kim investigation, which Jack discussed.  Paul wondered whether Fox News understands the insecurity of Gmail, given that Rosen, a Fox reporter, used the email platform to communicate with Kim, the accused government leaker. A government official wrote in about the leak investigation, and Alan put together another “explainer,” this time on third party leak prosecutions and the Espionage Act.

Jack reacted to Bill Keller’s New York Times column, in which Keller argued for the appointment of a special counsel to investigate the IRS fiasco.

Ben and Bobby testified before the House Judiciary Committee on the constitutional rights of U.S. citizens in the war on terror; here’s their testimony.

We welcomed a great addition to the blogosphere: Brookings Iran expert Suzanne Maloney launched Iran@Saban blog.

And that was the week that was. As always, we continue to solicit readers’ views about this experimental feature.  Please drop me a line and let me know yours. Or, you can do us a solid and fill out our readership survey.

Ryan Goodman and Sarah Knuckey maintain that the new targeting framework announced by the President “raises some troubling questions and leaves important older questions completely unanswered.”  Their list is long, but here are the first two:

Where do the rules apply? The new rules apply only to operations conducted outside “areas of active hostilities.” A lot turns on the definition of that geographic boundary. For all we know, the administration may define parts of Pakistan, Yemen, and elsewhere as a zone of hostilities. The administration, however, doesn’t tell you how it decides when and where places of active hostilities exist. And wherever such zones exist, the new rules are irrelevant. In short, it is possible that the “new” rules may leave completely untouched some of the most significant parts of the existing drone program.

Signature strikes: in or out? Some suggest that the new rules put an end to controversial signature strikes, carried out based on patterns of behavior assumed to indicate militancy. The new rules do finally rebut reports (sourced originally to anonymous government officials) that “all military-aged males in the vicinity of a target are deemed to be combatants.” Yet there is no clarity at all about what actual “signatures” were used, or might still be in use. Nothing in the new rules requires that the government kill only named targets, and nothing in the rules prohibits behavior-based targeting. On the contrary, senior administration officials, hours before the President’s speech, suggested that signature strikes will continue but perhaps decrease “over time.”

The entire essay is worth a read.

This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a “postwar” setting…and advances the argument that we already have largely crossed into that world. 

In yesterday’s speech, President Obama repeatedly referred to the possibility that the armed conflict with al Qaeda may end, and indeed that it must and should end lest we find ourselves in a perpetual state of war.  It is the same perspective previously articulated by then-DOD General Counsel Jeh Johnson in his Oxford Union address, but stated in more detail here–and with much more impact on public narratives, as seen for example in today’s New York Times editorial touting the “End of the Perpetual War.”

This is an attractive vision in many ways, and one certainly hopes that the day will soon arrive when al Qaeda has been devastated to the point where it is proper for the president to declare that the armed conflict has indeed run its course.  Time will tell whether and when that point arrives.  In the meantime, however, it would be good to take a closer look at what it would mean, legally speaking, to move to a “postwar” model.

Obviously there will be a rhetorical difference from the status quo, and that alone could have a real impact on domestic politics and related considerations such as budgetary allocations.  But set all that aside.  What I’d like to concentrate on is the question of what legal differences would follow with respect to detention and targeting.

Formally speaking, the answer is straightforward. With respect to detention, the end of the conflict by definition spells the end of authority to detain for the duration of hostilities (albeit subject to some reasonable wind-up period).  And with respect to targeting, the end of the conflict would preclude invocation of status-based targeting (i.e., targeting individuals based either on their membership in the enemy force or, perhaps, on a continuous-combat function theory that approximates status-based targeting).  The question is: would any of that matter in actual practice?

To be sure, it has clear implications for the legacy population of detainees at GTMO and Parwan (my understanding is that the transfer of detainees at Parwan to Afghan control has been focused on the Afghan detainees, and has not necessarily reached the non-Afghans); those folks will need to be prosecuted or released in a postwar world.  Other than that, though, it is not clear that moving from war to postwar would really matter much in terms of available options. Here is an illustrative passage from my book, written prior to hearing yesterday’s speech:

The post-9/11 claim that we are in an “armed conflict” with al Qaeda and its associated forces has long since ceased to matter in strict legal terms, other than in connection with the lingering detention of the legacy populations at GTMO and (for non-Afghan detainees) at Parwan.  We have not taken new detainees into long-term military custody in many years, and there is no prospect that we will do so for years to come.  What we do still do is use lethal force, but on close inspection, our uses of force outside of Afghanistan arguably do not depend on the existence of an armed conflict after all.  As the  Brennan speeches underscored, the government as a matter of policy has adopted constraints that limit the use of force outside the “hot battlefield” to scenarios involving an “imminent threat” to life in circumstances where capture is not feasible (albeit subject to an understanding of that phrase that would better be described as a “continuous threat” standard).  This is far more restrictive than the status-based targeting model associated with armed conflict.  Indeed, it is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years, discussed earlier.

To be sure, that model was acted upon only rarely in the pre-9/11 era.  There were many reasons for this, but a major one was sheer lack of practical capacity: we had little relevant intelligence when it came to tracking individual terrorist threats, and even when we obtained actionable intelligence our capacity to strike normally was limited by the multi-hour process associated with cruise missiles.

Today things are quite different.  The capacity for collecting the requisite intelligence has expanded by leaps and bounds thanks to sweeping institutional and technological changes over the past dozen years, and in the same period we have acquired an extraordinary capacity to strike quickly and precisely thanks to armed drones. In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed.   Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model.  Combined with the abandonment of detention as an option, in fact, it makes no sense to talk of a return to the pre-9/11 framework; we already are there in practice.

Yesterday’s speech reinforces my conclusion, as it clarifies both that the long-term detention option is defunct and that we are using force within boundaries that will be no different postwar thanks to the flexibility of the pre-9/11 self-defense model.  Put another way, it seems to me ever clearer that the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.  If that is correct, it will please some and horrify others. At any rate, I’d appreciate hearing from readers as to whether they think this is in fact correct.

Here it is.  Filed with the brief were two appendices, the first of which is here.  (The second exceeded our humble site’s maximum upload size.)  Background on Ali Hamza Ahmad Suliman Al-Bahlul’s appeal can be found on the case’s Wiki page.

The brief’s “Summary of Argument” section says:

This case deals with the retroactive application of a criminal law. The 2006 Act was passed five years after Bahlul was taken into custody. A military commission convicted him for offenses the act proscribed on the basis of allegations that predated its enactment by as many as seven years. The resolution of this case turns on a single question. Were the war crimes for which Bahlul was convicted – to wit, conspiracy, solicitation, and material support for terrorism – war crimes when he is alleged to have committed them?

A vast and unambiguous body of jurisprudence, state practice, and scholarship on international humanitarian law says they were not. The overwhelming majority of historical sources say they were not. And the government concedes they were not. Consequently, the answer to the question at the center of this case is no.

Whatever basis Bahlul’s pre-arrest conduct might give the government to detain him under its war powers, and whatever basis it might give the government to pursue a grand jury indictment, the government overstepped the law in seeking to convict him as a war criminal because none of the charges it brought against him were war crimes.

Ben Emmerson, UN Special Rapporteur on Human Rights and Counterterrorism—who Ben and I interviewed for a special edition of the Lawfare Podcast—issued the following statement on President Obama’s speech at the National Defense University:

Ben Emmerson, UN Special Rapporteur on Counter-Terrorism and Human Rights welcomed the President’s speech, and the publication of policy principles governing counter-terrorism operations, including targeted killings.

“This extremely important speech breaks new ground in a number of key respects. It affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay.

“The publication of the procedural guidelines for the use of force in counter-terrorism operations is a significant step towards increased transparency and accountability. It also disposes of a number of myths, including the suggestion that the US is entitled to regard all military-aged males as combatants, and therefore as legitimate targets.

I will be engaging with senior Administration officials in Washington over the coming days and weeks in an effort to put some flesh on the bones of the announcements made today.

“The President’s historic statement today is to be welcomed as a highly significant step towards greater transparency and accountability; and as a declaration that the US war with Al Qaida and its associated forces is coming to an end. The President’s principled commitment to ensuring the closure of Guantanamo is an utterly essential step. His acknowledgement that the time has come to tackle not only the manifestations of terrorism but also its social, economic and political causes around the world – to seek long term solutions – signals a shift in rhetoric and a move in policy emphasis towards promoting a strategy of sustainable and ethical counter-terrorism, consistent with Pillar I of the UN Global Counter-Terrorism Strategy.

Along with President Obama’s speech yesterday on counterterrorism policy, the White House released a document titled Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.  Among other important matters (such as declaring a preference for capture), the Fact Sheet provides “Standards for the Use of Lethal Force,” which enumerates criteria that “must be met before lethal action may be taken,” and requiring among other things:

2. Near certainty that non-combatants will not be injured or killed.

Imagine for a moment that you are an operational commander in al Qaeda or one of its associated forces – Al Qaeda in the Arabian Peninsula, for example.  You are working on ways to attack the United States, its allies, or interests; perhaps you are working with AQAP’s key bomb-maker, the same who came up with the Detroit Christmas bomber’s underwear bomb and the xerox printer cartridge bomb.  Imagine that he has managed to come up with a way to implant explosives in a person’s body, and you are working on a way to deploy this operationally.  You know that you are a possible, indeed likely, target of a drone strike.  But you have just read President Obama’s speech carefully, and you have also just read the White House Fact Sheet.  What would your rational course of action be, given your aims? Readers are invited to state what their course of action would be if they were the AQAP commander in this scenario.

I don’t want to suggest that the transparency of standards contained in the Fact Sheet is necessarily a mistake.  (Although I incline at first blush to agree with Kevin Jon Heller at Opinio Juris that setting so high a standard was a substantive mistake, in part because it is so far from the actual law of war requirements and because it is unlikely that attacks of the kind that this and future administrations will carry out could meet such a standard each and every time, even allowing for reasonable mistakes about “near certainty.”)  I have been calling for greater transparency about targeting processes and criteria, certainly.  But it should be pointed out that (as this thought experiment presumably reveals) transparency about standards such as these involves a not-inconsiderable tradeoff. Read more »

As Wells reported this morning, the D.C. Circuit has affirmed the habeas denial in Al Warafi. Mukhtar Yahia Naji Al Warafi unsuccessfully argued that even if he was a member of the Taliban, he was entitled to protected status as permanent medical personnel under Article 24 of the First Geneva Convention. The appellate court agreed with the D.C. district court decision that Al Warafi could not prove he qualified as medical personnel because he failed to carry the mandatory credentials—an armband and medical status identification.

The question of Al Warafi’s membership in the Taliban was resolved in February 2011, when the D.C. Circuit concluded that the government met its burden of demonstrating that Al Warafi was “more likely than not” a member. Affirming in part on the question of membership, the D.C. Circuit remanded to the lower court to determine whether Article 24, in fact, applied to Al Warafi. In the remand opinion, the court noted that:

Because he did not carry an identification card or wear an armlet bearing the emblem of the Medical Services at the time of capture, it appears that Al Warafi bears the burden of proving his status as permanent medical personnel. See First Geneva Convention, arts. 40, 41; id. art. 25 commentary; id. art. 40 commentary; Army Reg. 190-8, § 3-15(a).

On remand, the district court found that proper identification was necessary to prove one’s protected status under the Convention. Because Al Warafi did not wear an armband or carry a special identification of his status as medical personnel, he did not and could not meet his burden to prove protected status.

Today’s D.C. Circuit decision resolves the question of the relationship between Section 5 of the Military Commissions Act—which bars detainees from invoking the Geneva Conventions in habeas proceedings—and Al Warafi’s claim to Article 24 protections:

In Section 5 of the Military Commissions Act of 2006, Congress provided, among other things, that a detainee may not invoke the Geneva Conventions in a habeas proceeding. However, Army Regulation 190-8 expressly incorporates relevant aspects of the Geneva Convention’s medical personnel protection. Army Regulation 190-8 is domestic U.S. law, and in a habeas proceeding such as this, a detainee may invoke Army Regulation 190-8 to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody. Therefore, for purposes of determining whether Al Warafi is entitled to release as medical personnel under Army Regulation 190-8, we may and must analyze the relevant aspects of the Geneva Conventions that have been expressly incorporated into Army Regulation 190-8.

On appeal, Al Warafi claimed that because the D.C. Circuit knew at the time of remand that he did not wear an armband or carry identification, by directing the lower court to consider the applicability of Article 24, the appellate court effectively ruled that it was possible to prove medical personnel status by some other means. Therefore, Al Warafi claimed, the district court decision holding that the official credentials were necessary violated the remand opinion. In this morning’s opinion, the D.C. Circuit quickly disposed of this argument, stating that its prior opinion was agnostic as to the issue and merely required further development. Upon reviewing the lower court’s conclusion on the developed issues, the appellate court now affirms that the Convention speaks in mandatory terms and the commentary expressly provides for identification as a necessary element:

The Geneva Conventions and their commentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi was serving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has not carried Al Warafi to the destination. We hold that without the mandatory indicia of status, Al Warafi has not carried his burden of proving that he qualified “as permanent medical personnel.”

The decision further affirms the lower court holding that:

Nothing prevents parties like the Taliban from providing medical personnel with the identification materials mandated by Article 40. But until they do so, their medical personnel will lack the means by which they can prove their entitlement to Article 24’s protections.

Judge Janice Rogers Brown wrote a separate concurrence to underscore “the unstated significance of [the] holding.” According to Brown, this case resolves whether the Hamdan v. Rumsfeld opinion finding that Common Article 3 affords some minimal protections to members of Al Qaeda, “should now reverberate through every Article of the Geneva Convention [and require that] all protections, not just the minimum protections of Common Article 3, should be made accessible to terrorists and their ilk.” Brown writes separately to explicitly note it does not:

And therein lies the true significance of today’s holding: in determining how the Convention operates and to whose benefit, courts must run a discrete calculus for each Article (or related series of Articles) that considers the treaty’s language, structure, history, and purpose. For all the reasons outlined in the District Court opinion, see Al Warafi v. Obama, 821 F. Supp. 2d 47 (D.D.C. 2011), I believe the court got it right in adopting a bright-line test. In addition to its “strong mandatory language,” Op. 8, Article 24 reflects an intricate regulatory scheme that implicates a unique balancing of interests; imposes potentially burdensome affirmative obligations; attempts to remedy a particular historical wrong; and, among other things, both implicitly and explicitly recognizes the role that formal military corps must play on both sides of the repatriation. Compliance, it follows, is a necessary condition to invoke Article 24 protections. Hamdan’s willingness to bend the Geneva Convention to favor those who openly disregard the laws of war need not extend past Common Article 3.

For those interested in reviewing the timeline, Ben first discussed the appeal back in October 2010. Links to Judge Royce Lamberth’s original opinion in the matter and the various public briefs are available here. Lawfare covered the oral arguments in the first appeal with a preview, summary, and analysis, as well as post-argument maneuvering. The D.C. Circuit’s February 2011 partial remand is covered here, with additional analysis as to the implications here.  Judge Lamberth’s decision on remand is here, with coverage of the second round of oral arguments here.

Among the policies President Obama announced in his speech: a renewed commitment to transfer detainees to third countries, where possible. To that end, he said he would appoint a new GTMO-focused envoy at the Departments of State and Defense.  (Recall that the State Department office responsible for transfers was closed earlier this year and its primary staffer re-assigned).  The president also formally lifted his self-imposed moratorium on transfers to Yemen.  Going forward, the White House will review transfers to Yemen on a case-by-case basis.

Four Republican Senators—Graham, McCain, Chambliss and Ayotte—sharply criticized the president’s remarks at a press conference immediately after the speech.  According to The Hill, Senator Lindsey Graham told reporters that “the president may be solving a political problem by these transfers in his own mind, but he’s creating a national security problem for our soldiers and our diplomats.”

Read more »

My reactions to the President’s speech can be found in this essay at the CFR page.  The headline writers gave it the title of Obama Passes the Buck: The President’s Empty Rhetoric on Counterterrorism.  The subtitle captures the basic thrust of the essay, which is a pretty cynical reaction to the President’s speech grounded mostly in my cynicism about the President’s pledges to work with Congress on counterterrorism policy.

A few additional reactions beyond what I say in the essay:

• One increasingly important element in the Obama administration’s counterterrorism philosophy is a growing comfort level with reliance on inherent Article II power to address extra-AUMF threats.  Jeh Johnson and Harold Koh were pretty clear about this in their Oxford Speeches, and the President’s speech implied as much.  This is a remarkable development which deserves close scrutiny and on which I will have more to say later.

• As Spencer Ackerman notes, a lurking contradiction in the President’s speech is that he says he prefers capturing detainees to killing them, but he has no good plan for detention.  I think that civilian trials and military commissions can achieve more than Ackerman does, but I agree that they are not complete solutions.

• Speaking of Commissions, one of the most consequential elements of the President’s speech was his support for Commissions.  He thrice mentioned them as important tools.  And his direction that DOD designate a site for Commissions inside the United States implied that they should be normalized into the USG’s set of available counterterrorism tools, even if confined to a narrow law of war jurisdiction alongside, and with review by, civilian courts.  This might not seem like a big deal, but inside the Executive branch this vote of confidence by the President is enormously important.

• I thought the President gave a strong defense of the use of drones.  As for his drone policies, Joe Pappalardo notes that a remarkable aspect of the speech was its criticism of the very policies that the President himself designed and presided over.  “The very precision of drones strikes, and the necessary secrecy involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites,” said the President.  “It can also lead a President and his team to view drone strikes as a cure-all for terrorism,” he added.  The President’s announcement of enhanced internal procedures and heightened targeting standards was a response to this self-criticism.

• It is very hard to judge the significance of the new targeting standards because we don’t really have a firm grasp on how the old standards were applied.  Ironically, the new standards accomplish most if we believe some of the broader previous reports about the administration’s signature strike policy, and they accomplish much less if we take seriously prior administration speeches about careful legal standards for targeting.  The baseline matters and we don’t know the baseline.

• This was a rich statement from the President whose administration has gone after national security journalists so aggressively:  “Journalists should not be at legal risk for doing their jobs.  Our focus must be on those who break the law.”  It was a strong statement as well – depending on what it means for journalists to do their jobs, and what “break the law” means.

Coverage of President Obama’s speech yesterday is plentiful: Here are Peter Baker of the New York Times, Karen DeYoung and Greg Miller of the Washington Post, and Mark Mazzetti of the Times with an analysis of the key points of the speech. Scott Wilson of the Post also provides a rundown of the speech, and cites Ben. The Associated Press reports on lifting the transfer ban on Yemeni detainees, and Colleen McCain Nelson, Adam Entous, and Julia E. Barnes of the Wall Street Journal have more.

Reactions to President Obama’s speech also abound: Brookings Institution scholar Michael O’Hanlon argues in CNN that the president did a great job explaining the rationale behind his targeted killing policy. Conor Friedersdorf of the Atlantic is skeptical of the change in counterterrorism policy that some are trumpeting. Lesley Clark and Jonathan S. Landay of McClatchy believe that Obama’s speech appeared to broaden the scope of targeting operations because the president made “no reference at all to senior operational leaders [of Al Qaeda and associated forces].”

The Times editorial board lays out what the President said—and should have said—about targeted killing, Guantanamo Bay, and civil liberties. The Post editorial board finds itself in agreement with much of President Obama’s speech, but says that he left the “nature of the war” question unanswered.

Of course, nothing President Obama does is complete without negative reaction from Congressional Republicans. Khalid Khattak and Janet Hook in the Wall Street Journal have the lowdown on criticism from the Hill.

Senators Angus King (I-ME) and Marco Rubio (R-FL), who sit on the Senate Select Committee on Intelligence, introduced the Targeted Strike Oversight Reform Act of 2013 today. Based on the press release, the bill “would ensure independent oversight of cases where the head of a U.S. intelligence agency has determined that a U.S. person is engaged in international terrorism against the U.S., and the government is considering the legality or the use of targeted lethal force against that individual.”

Representative Adam Schiff (D-CA) is also preparing a bill that, Spencer Ackerman of Wired reports, aims to “sunset” the AUMF.

What did our friends and frenemies abroad think of the much-anticipated speech, you ask? According to the AP, Pakistani officials are still miffed—to put it nicely—but Yemenis had more cause for optimism.

Meanwhile, Josh Gerstein of Politico tells us that U.S. District Court Judge Rosemary Collyer issued an order asking government lawyers to explain if, and how, a letter Attorney General Holder sent to Congress on the eve of President Obama’s speech would impact a lawsuit over Anwar al-Awlaki’s death.  In the letter, Holder had disclosed that four Americans had died in drone strikes abroad.  Only one of these attacks deliberately targeted a citizen—al-Awlaki.

Mark Mazzetti discusses the CIA’s shifting role in America’s drone program, saying that the pivot back to spying (and away from things like targeted killing) will be hard for the Agency.

Mirza Shazad Akbar, a Pakistani lawyer, has an op-ed in the Times from a few days ago about the civilian casualties of drone strikes—and the Pakistani government’s role in the program.

It’s really not Britain’s week: CNN reports that two Pakistani passengers were arrested and removed from a UK-bound Pakistan International Airlines flight, after they threatened to blow up the aircraft. The incident comes right after a British soldier was killed in broad daylight by two radicalized British Muslim men.

Behold The Rendition Project: a collaborative research effort between the University of Kent, Kingston University, and Reprieve, a human rights organization. The interactive is truly amazing: users can track almost 11,000 of the CIA’s confirmed and suspected rendition flights of terrorist suspects, access government documents related to the once-secret program, read accounts of rendered detainees, and much more. Here is The Guardian on the project.

Karen DeYoung of the Post informs us that President Obama has picked Victoria Nuland, former State Department spokeswoman, to be assistant Secretary of State for Europe, and retired Gen. Douglas E. Lute as ambassador to NATO.

Two car bombs in Niger killed 26 people and injured 30. The attacks, says the AP, were carried out by Islamic militants in Mali.

For more interesting law and security-related articles, follow us on Twitter and check out the Lawfare News Feed, visit the Georgetown Center on National Security and the Law’s Security Law Brief,  Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

In 2010, Yemeni detainee Hani Abdullah had sought a preliminary injunction from the district court.  He argued that the United States had to treat him in accordance with an executive agreement concluded between the United States and Yemen, which obligated the parties to treat each others’ nationals in accordance with international law.    According to Abdullah, that law (among other things) proscribed his indefinite detention.

The motion nevertheless went unaddressed by the district court; the detainee thus recently filed a supplemental memorandum regarding the matter, and even asked the D.C. Circuit to order the district court to resolve his long-pending request for preliminary relief.

Those efforts prompted action, apparently.  Yesterday the district court rejected the detainee’s bid.  The essence of its order, excerpted below, is that Abdullah has not met the legal requirements for a preliminary injunction:

Abdullah invests the bulk of his efforts in arguing that the Yemen agreement can provide the basis for relief. Even if he is right, he reduces his efforts regarding the remaining factors to little more than saying “[t]he familiar test for the grant of interim injunctive relief is set out in the margin.” See Petitr.’s Mot. at 39; and see Reply at 13-14. If Abdullah seeks pre-adjudication release, he has not made any showing that his case is one where pre-adjudicative release is necessary to effectuate habeas. Nor has he shown a lesser harm to the respondents if they cannot regain his custody should habeas be ultimately found unwarranted, or likewise that the public interest would favor the release now on an as-of-yet unadjudicated habeas claim. If Abdullah does not seek preadjudicative release, he has not explained what irreparable  injury he faces outside of the injuries addressed by the merits of underlying habeas petition itself if his order is not granted, and he has not explained how the order he seeks would rectify that injury. Nor has he shown the public interest and a lesser harm in precluding the executive from making assessments about the stability and safety of nations to which detainees might be transferred.

Judge David Sentelle wrote today’s majority opinion in this long-running habeas case, in which Mukhtar Yahia Naji Al Warafi had claimed (among other things) that even if he was a Taliban member, he served the group as a permanent medic only.  This, argued the detainee, brought him within the coverage of Article 24 of the First Geneva Convention—a provision conferring special protections on medical personnel—and exempted him from law of war detention.

The gist of the ruling is to affirm the district court’s conclusion that, as a matter of fact, Warafi had not demonstrated that he worked as medical personnel under Article 24.  (In an earlier phase of the case, the district court had found that the detainee had twice served as a medic at Talban clinics, and worked at a hospital in Afghanistan.) Specifically, he hadn’t carried an official armband and identification card—which the deemed to be necessary, in order to establish Warafi’s protected status as medical personnel.  From Judge Sentelle’s opinion:

In the end, the question of whether Al Warafi has met his burden of establishing his status as permanent medical personnel entitled to protection under the First Geneva Convention is one

of fact, or at least a mixed question of fact and law. Although the district court believed, and we agree, that military personnel without appropriate display of distinctive emblems can never so

establish, it also found facts—e.g., the prior combat deployment—inconsistent with that role. These are findings of fact reviewed by us for clear error. See, e.g., American Soc. for Prevention of Cruelty to Animals v. Feld Entertainment, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011). The evidence in the record gives credence to the view that Al Warafi is unable to provide the proof required under the Convention because he was not a medic. Read more »

There are a number of areas in the president’s speech yesterday in which Obama publicly aligns himself with critics of his administration, while promising in hard terms very little. As I described yesterday, he spent a lot of time criticizing the idea of endless war under the AUMF—while not concretely committing himself to ending hostilities. He criticized Guantanamo and indefinite detention, without promising to release detainees who pose a serious threat yet cannot face trial.

One of the more blatant of these areas is Obama’s comments about the idea of additional review mechanisms for drone strikes:

Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested—the establishment of an independent oversight board in the executive branch—avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these—and other—options for increased oversight.

Notice here what the president is not promising. He is not promising to support a drone court. He is not promising to support proposals like Neal Katyal’s or Jen Daskal’s for an enhanced, court-like internal executive review mechanism. He is only promising to have his administration “review [such] proposals” and saying that he will “actively engag[ing] with Congress to explore” such ideas.

Nobody can possibly object to this, and I certainly don’t, but it is notable that the president nowhere hints what sort of outcome he expects from his engagement. This is a way of signaling respect for the ideas—and the underlying idea that he needs to be on the side of “increased oversight”—without actually committing his administration to doing anything concrete.

The President’s speech was a dog’s breakfast: some good parts, some bad parts, and some ugly parts.

The Good.   The most significant part of the speech was the President’s description of clearer standards for use of force against terrorists, including by drones.  These standards are set forth in even greater detail in a White House fact sheet entitled “U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities” issued in conjunction with the speech.  Together, the speech and fact sheet set forth more restrictive standards, including that the same targeting standard applies to Americans and non-Americans; that the targeted individual must pose a “continuing and imminent” threat (a higher standard than the “significant threat” previously described by John Brennan in his Wilson Center speech); that the threat must be to U.S. persons (not simply “U.S. interests”); and that there must be a “near certainty” that non-combatants will not be injured or killed.   Together, these standards set a high bar for the use of drones by the United States, or by any country.  In this regard, unlike Ben in his most recent post, I believe these standards are more restrictive than those previously articulated by the Administration, although I agree that it is not clear whether these standards are entirely new, or have evolved over the last year, perhaps in response to domestic and international criticism.  In any case, these standards represent important work by Administration lawyers.

The Bad.  Other parts of the speech were less clear.    As Ben has described, the actions the President announced with respect to Guantanamo are simply to re-start actions that he had stopped, including appointing a special envoy at the State Department and Defense Department (two envoys?) to handle transfers; lifting the moratorium on transfers to Yemen; transferring detainees who have been cleared for release; and insisting on judicial review for every detainee.  After four years, he still does not offer any suggestions for dangerous detainees who cannot be prosecuted.   And the President’s stated desire to “ultimately repeal” the AUMF, while candy for the President’s political base, leaves unclear what authority he will rely on to continue to conduct drone strikes or to detain members of al Qaida who are not prosecuted.

The Ugly.  Much of the speech is filled with platitudes and political bones for the base, such as the commitment to repeal the AUMF and to require the Attorney General to review guidelines for investigations of the media.   Unfortunately, the President continued to go out of his way to blame and caricature the Bush Administration, including by repeating the canard that the Obama Administration is engaged in “a series of persistent, targeted efforts to dismantle specific networks” as opposed to a “boundless ‘global war on terrorism.’”   (In fact, I made clear in numerous speeches between 2005-2009 that the phrase “Global War on Terror” was a rhetorical term and that the Bush Administration considered itself to be a legal state of armed conflict with al Qaida and its affiliates.)   Obama Administration officials have emphasized how Obama policies (especially drone policies) have evolved during the first term, while refusing to acknowledge the similar evolution in counterterrorism policies during the Bush Administration.  The President’s speech reminds me of President Bush’s September 2006 speech in which he announced the closing of the CIA blacksites and the transfer of the CIA detainees to Guantanamo; the important  policy changes enunciated in both speeches were overshadowed by inflammatory political rhetoric.

Addendum:  I should note that the restrictive policy standards and procedures set forth in the Fact Sheet apply only to the use of force OUTSIDE areas of active hostilities.  Indeed, in his speech, the President notes that “in the Afghan war theater,” the U.S. “will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces.”   Query whether signature strikes against groups in Pakistan would still be permitted under this standard.

Perhaps the most puzzling and opaque aspect of President Obama’s speech today involves the question of whether he did, or didn’t, narrow the criteria for targeting in drone strikes. The wording of the speech on this point is incredibly careful, and to parse it, one has to read it next to prior administration statements on targeting rules—a subject Ken Anderson and I treat in some detail in both Chapters 1 and 2 of Speaking the Law. The following is my best effort at an early read.

There are two key paragraphs on targeting standards. The first reads:

Beyond the Afghan theater, we only target al Qaeda and its associated forces. Even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists—our preference is always to detain, interrogate, and prosecute them. America cannot take strikes wherever we choose—our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals—we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured—the highest standard we can set.

The second key paragraph says:

Of course, the targeting of any Americans raises constitutional issues that are not present in other strikes—which is why my Administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well. But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life.

Let’s start by clearing the brush and identifying what is certainly not new in these criteria. Read more »

President Obama made two important announcements about aspects of Guantanamo and its detainees in his speech today. These are worth flagging before I pivot and harp on the big problem with the President’s comments about the base and those held there.

The first important announcement came in this paragraph:

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. . .  I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. . . . And we will insist that judicial review be available for every detainee.

The important statement is that the president is lifting his moratorium on transfers to Yemen. With this act, the President removes himself from the posture of being the principal obstacle to the effectuation of his own policy—the frustration of which he bitterly criticizes both in this speech and in other recent statements. After all, most of the detainees at Guantanamo are Yemeni; and the reason they could not go anywhere is only secondarily because of the transfer restrictions from the legislature. The primary reason was that Obama forbade it. Today’s move is therefore an important step towards the ability to remove from Guantanamo a group of detainees whose detentions may be lawful but who may not need to be there. That is a salutary thing.

The second important statement is more subtle–and more broken up in the speech. But I think Obama very carefully hinted that we may see the use of military commissions in future cases:

To repeat, as a matter of policy, the preference of the United States is to capture terrorist suspects. When we do detain a suspect, we interrogate them. And if the suspect can be prosecuted, we decide whether to try him in a civilian court or a Military Commission.

. . .

I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. . . . Where appropriate, we will bring terrorists to justice in our courts and military justice system.

It’s not quite a full-throated endorsement of military commissions, but it is a clear statement that the president regards their use as approrpriate—and importantly, not just with respect to Guantanamo cases but prospectively as well. The latter passage, after all, occurs in the president’s comments about how to deal with legacy cases from the last administration. The former passage, however, is a description of Obama’s preference for how cases should be handled in the present and in the future. In other words, the president wants a military commission site in the United States for Guantanamo detainees but also for future detainees whom our forces may capture and, after interrogating, decide to try before a military commission. I can think of no reason for Obama to include military commissions in that first paragraph other than to signal a commitment at least to the possibility of their use down the line.

These two important items notwithstanding, Obama’s comments about Guantanamo were pretty lame.

Obama once again pontificated a fair bit about the need to close the site, and he situated the whole discussion in terms of his larger theme of bringing the war to an end:

During the past decade, the vast majority of those detained by our military were captured on the battlefield. In Iraq, we turned over thousands of prisoners as we ended the war. In Afghanistan, we have transitioned detention facilities to the Afghans, as part of the process of restoring Afghan sovereignty. So we bring law of war detention to an end, and we are committed to prosecuting terrorists whenever we can.

The glaring exception to this time-tested approach is the detention center at Guantanamo Bay.

. . .

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future—ten years from now, or twenty years from now—when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

The trouble is that, as Wells pointed out earlier, Obama proposes nothing—nothing—concerning how to deal with those whom his own review task force deemed too dangerous to release but not plausible to bring to trial. The only thing he could say on that subject was that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”

And what basis for confidence could he possibly have on that score? It’s not as though these cases have never been reviewed before.

There is only one way to resolve this problem other than maintaining a group of people in custody whom one cannot try: That is not maintaing that group of people in custody. But is Obama really going to free Abu Zubayda–against whom I have not seen a criminal case materialize? What about Mohammed Qatani, the would-be 9/11 hijacker turned away from this country’s borders in Orlando with Mohammed Atta waiting for him on the other side of customs? What about the nearly 50 people whom the task force determined could not be tried but who pose real risks—and the additional people whom the task force believed could face trial but for whom that assessment proved optimistic? Until the president is willing to say that he means to set these people free, he should cut out the pieties about what sort of country we are—or would be if only a certain group of retrogrades would stop him from closing Guantanamo.

One week ago, a senior Pentagon official went before the Senate Armed Services Committee, along with the Pentagon’s top lawyers, and declared that the armed conflict with Al Qaeda and its associated forces under the AUMF would go on for another decade or two. He declared that the conflict geographically followed the enemy worldwide. The witnesses described the AUMF as giving the Pentagon adequate authority to target members of Al Qaeda and its associated forces.

If there was a unifying theme of President Obama’s speech today at the National Defense University, it was an effort to align himself as publicly as possible with the critics of the positions his administration is taking without undermining his administration’s operational flexibility in actual fact. To put it crassly, the president sought to rebuke his own administration for taking the positions it has—but also to make sure that it could continue to do so.

A great deal of the President’s speech was noise—noise in the form of broad, overarching accounts of his strategic vision, noise in the form of continuous veiled (or not-so-veiled) criticisms of his predecessor’s strategic vision and fidelity to American values, and noise in the form of apparent changes in policy that in actual fact change very little. But there are also a few important announcements contained in the speech. Over the next few posts, I will offer some initial thoughts, focused on trying to identify those aspects of the speech that seem to me either more than verbiage or as notable because they in fact reflect less than meets the eye.

The overarching theme of the speech definitely falls into the latter category. The President presents himself throughout the speech as bringing this war to a close: “[O]ur commitment to Constitutional principles has weathered every war, and every war has come to an end,” he said at the outset. And then, later on, he declares: Read more »

In his speech today, President Obama explicitly raised this perennial, maddeningly difficult issue.  But he stopped well short of proposing a solution. Instead he said that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”

That might well prove true—I sincerely hope it does prove true—but the question remains: exactly what does the United States plan to do with law of war detainees who it cannot try but who it also cannot release, having in mind the conflict’s eventual end?  Elsewhere in his address, the President called on Congress to lift GTMO transfer restrictions.  Given that, perhaps the idea is detention within the United States, under some different legal framework?   It’s unclear.

THE WHITE HOUSE

Office of the Press Secretary

May 23, 2013

 Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

Since his first day in office, President Obama has been clear that the United States will use all available tools of national power to protect the American people from the terrorist threat posed by al-Qa’ida and its associated forces.  The President has also made clear that, in carrying on this fight, we will uphold our laws and values and will share as much information as possible with the American people and the Congress, consistent with our national security needs and the proper functioning of the Executive Branch.  To these ends, the President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.  Additionally, the President has decided to share, in this document, certain key elements of these standards and procedures with the American people so that they can make informed judgments and hold the Executive Branch accountable. Read more »

There are many important strands to President Obama’s national-security speech, but I want to focus on just one particularly noteworthy element. In clear terms, President Obama announced today that the same substantive standards apply to targeted killings operations against non-American enemy combatants overseas as apply to American enemy combatants overseas. Here is what the President’s text says:

But the high threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life

When American citizens are involved, the President made clear that different procedures might be used (such as informing the Department of Justice in advance). But in terms of when the use of lethal force overseas is justified, the same substantive standards will govern.

This judgment, announced for the first time clearly in this speech, arguably is in some tension with, or resolves ambiguity in, the prior legal and policy pronouncement on targeted killings of Attorney General Holder. In the AG’s Northwestern speech, he indicated that force would be used as a last resort against American enemy combatants overseas, because the Constitution required that result when American lives were at issue. Today, the President announced the same constraint applies when non-American lives are at issue (without, understandably, going further and saying whether this equal treatment was required by international law, or by prudential policy judgments, or by more general moral considerations).

I think the President is right on this issue and his administration’s policy is now philosophically clearer than before. In the article I flagged earlier today, we raised questions about whether the administration’s prior position (or what appeared to be that position) was defensible:

Differentiating the treatment of threats coming from citizens as opposed to non-citizens is a deeply controversial matter, both in theory and in international law. Particularly when force can be used only once the enemy “target” is highly individuated, in terms of his specific actions, it is not at all clear why, in principle, an American citizen in the same overseas location who poses the identical threat as a non-American should have greater legal protection. As a matter of domestic politics, perhaps, one can understand why political leaders would want to ensure their own citizens that they receive special protection against the exceptional circumstance of their own government using lethal force against them. But as a matter of law, why should governments have the power to kill non-citizens who could otherwise be captured but not kill citizens in that circumstance? As a matter of morality, David Luban argues, “the nationality of casualties is irrelevant. . . To focus on the lives of Americans is parochial in a way that the morality of war is not.”

Further, as a matter of international law and the domestic law of some countries, providing greater protections to one’s own citizens in the terrorism context can be a reason to condemn, not praise, the practices by which a country metes out its use of military force; political process theory would suggest that the only protections non-citizens are likely to have in these and similar contexts is if a country’s own citizens must live under the same legal regime. Indeed, United Kingdom’s House of Lords held British anti-terrorist detention policy illegal precisely because it imposed greater restrictions on non-nationals than on British citizens. And finally, despite the apparent distinctions suggested by Attorney General Holder’s speech between targeting citizens and non-citizens, Daniel Klaidman, in describing President Obama’s decision to authorize the killing of Al-Awlaki, writes that after the President reviewed the intelligence and was left with no doubt that Al-Awlaki posed a major and imminent threat to American security, the fact that Al-Awlaki was an American, President Obama believed, “was immaterial.” Perhaps there is journalistic license in that summary statement, but whether the emerging individuation of the laws of war, both domestically and in international law, requires or permits the further individuation and differentiation of citizens and non-citizens remains a difficult and unresolved question.

Today President Obama appears to have resolved that question, at least as a matter of policy regarding the use of lethal force.

The President’s remarks follow below.

Watch President Obama’s speech at National Defense University below: