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The Foreign Policy Essay: Afghan Lessons Learned

Sunday, August 10, 2014 at 10:00 AM

Editor’s Note: The United States is supporting the Afghan government with troops and other military assistance in the fight against Islamist radicals based in Pakistan. As the United States ponders its policy options, it would do well to heed lessons from a time when the situation was reversed. In one of America’s biggest Cold War successes, the Carter and Reagan administrations supported the anti-Soviet mujahedin in Afghanistan and helped them defeat the Soviet Union. Bruce Riedel, author of the newly released What We Won: America’s Secret War in Afghanistan, identifies lessons from the anti-Soviet struggle and contends that the United States risks repeating some of Moscow’s many mistakes.


Twenty five years ago, after 3,331 days of war, the Soviet 40th Red Army retreated in defeat from Afghanistan. An American-led coalition had orchestrated support for the Afghan mujahedin that shattered the myth of Red Army invincibility. The CIA had won the last and decisive battle of the Cold War. The Berlin Wall fell within months of the Soviets’ defeat in Afghanistan and the Warsaw Pact disintegrated. The danger of nuclear war between the two super powers, which had terrorized the world for generations, vanished overnight.

This secret war a quarter century ago holds many lessons for Americans considering how to react to crises in 2014. At a cost of roughly $3 billion and without a single American casualty, the secret American war in Afghanistan may have been the most successful covert action in our nation’s history. It was a bipartisan victory. President Jimmy Carter created the coalition of Pakistan, Saudi Arabia, China, Britain and others that secretly backed the mujahedin in just a few weeks after the Russian invasion in early 1980. President Ronald Reagan continued the covert campaign and then escalated it in 1986 to victory. The Congress was not only kept fully informed on the war, it was an enthusiastic supporter.

Riedel photo with borderCovert actions can produce significant policy successes if they are well planned, have achievable goals, are supported by robust coalitions, and exploit enemy weaknesses. But they inevitably have unforeseen consequences which must be understood in real time, not after the fact.

Days after the Soviet invasion of Afghanistan on Christmas Eve 1979, Carter told the CIA to turn Afghanistan into Russia’s Vietnam, a quagmire that would bog Moscow down in an endless insurgency. The goal was simple and clear cut. The Afghans were eager to fight the Russians; all they needed was weapons. In 1986, at the prompting of Pakistan’s dictator, Zia-ul-Haq, Reagan gave the mujahedin Stinger surface-to-air missiles. In less than six months, both the Russians and Iranians had captured Stingers, but Reagan did not stop supplying them. He was not paralyzed by fear of weapons falling into the wrong hands; it was a price worth paying for victory.

Zbigniew Brzezinski, Carter’s national security advisor, traveled in early 1980 to Asia to assemble the alliance that defeated Russia. Bill Casey, Reagan’s CIA director, guided it to victory. Zia was the keystone of the alliance. Carter and Reagan both put aside their concerns about Pakistan’s nuclear program to focus on the more immediate goal. Read more »

DHS Secretary Jeh Johnson Speaking at the ABA Convention

Saturday, August 9, 2014 at 5:00 PM

At this hour, DHS Secretary Jeh Johnson is speaking at the ABA Convention. Here’s the text of his speech:


Release Date: Aug. 9, 2014


Hynes Convention Center

(As prepared for delivery)


Thank you, Elizabeth, for that kind introduction. I also thank the American Bar Association for the invitation to speak here today.

I believe in the importance of the bar association. For starters, I pay my dues very year. For years I served on the ABA’s Committee on Law and National Security – an experience that helped prepare me for the job I hold today. In 2013, I was a member of the Judiciary Committee of the ABA, until I resigned when I was nominated to take this job.

I got to know Judge Stong through our service together with the New York City Bar Association. I served that bar association  as a member of the Ethics Committee, the Judiciary Committee, Chair of the Judiciary Committee, and then as a member of the City Bar’s Executive Committee.

So, I love the bar association!  You raise the standards of the legal profession and advance the rule of law.

Today, I want to talk to you about what your Department of Homeland Security is doing. I say your Department of Homeland Security, because you are the public and we are the public servants. Like my boss the President, I work for you.

DHS is the third largest department of our government, with 240,000 employees, 22 components and a total budget authority of about 60 billion dollars. The Department is responsible for, among other things: counterterrorism; the administration and enforcement of our immigration laws; cybersecurity; aviation security: maritime security; border security; the security of our land and seaports; protection against nuclear, chemical and biological threats to the homeland; protection of our national leaders; protection of our critical infrastructure; training of federal law enforcement personnel; coordinating the federal government’s response to natural disasters; and emergency preparedness grants to state and local authorities.

Read more »

The Lawfare Podcast, Episode #87: The Future of Somalia

Saturday, August 9, 2014 at 1:55 PM

Washington was abuzz this week as more than 50 African leaders were in town for the first U.S.-Africa Summit. Yesterday, Hassan Sheikh Mohamud, the President of Somalia, spoke at Brookings on the future of his country. In his talk, President Mohamud addresses the challenges to democracy that Somalia faces, and how Somalia, the African Union, and other international partners can work together to ensure security, foster development, and promote stable state-building in the country. President Mohamud also addresses the challenges his state faces in its ongoing battle against Al-Shabab militants—a mission that the U.S. has contributed more than half a billion dollars to since 2007. President Mohamud provides a realistic assessment of that threat, while highlighting the efforts his country is taking to bring democracy to Somalia. Michael E. O’Hanlon, Senior Fellow in Foreign Policy at Brookings, provides introductory remarks and moderates the conversation.

The Case for Seeking Congressional Authorization for Iraq Strikes Just Grew Stronger

Saturday, August 9, 2014 at 12:28 PM

In his WPR notification yesterday, President Obama stated that military operations in Iraq “will be limited in their scope and duration.”   But today, according to the NYT, President Obama “sought to prepare Americans for an extended presence in the skies over Iraq, telling reporters on Saturday that the airstrikes he ordered this week could go on for months as Iraqis try to build a new government.”  The President specifically stated: “I don’t think we’re going to solve this problem in weeks.  This is going to be a long-term project.”  The NYT also paraphrased the President as saying that “the broader effort was intended to help Iraqis meet the threat from the militants over the long term.”

If the President plans to engage in military operations in Iraq for “months” (and almost certainly longer) in an effort to address the militant threat posed over the long term there, then the case for doing so in reliance solely on his inherent Article II self-defense power just grew weaker, legally and especially politically, and the case for seeking authorization from Congress for the military strikes just grew stronger.  As I noted yesterday, the case for seeking congressional authorization in this context was made forcefully and persuasively less than a year ago by President Obama himself, when he explained why he was seeking congressional authorization prior to military strikes in Syria.  (The Syrian strikes were supposedly going to be “limited in duration and scope,” unlike the longer term strikes now planned for Iraq.)  The President said last year that “all of us should be accountable as we move forward, and that can only be accomplished with a vote”; and that “the country will be stronger if we take this course [i.e. congressional authorization], and our actions will be even more effective”; and that “[w]e should have this debate, because the issues are too big for business as usual”; and that “our democracy is stronger when the President and the people’s representatives stand together.”  If this was true last year, why not now, with even greater force?

I expect this question will be asked more and more in the coming days.

The Week that Was: All of Lawfare in One Post

Saturday, August 9, 2014 at 10:00 AM

Yesterday, the U.S. conducted air strikes and aid drops in response to the ongoing crisis in Iraq. Wells informed us on Thursday that President Obama was considering renewed U.S. involvement in Iraq. Cody and Jack shared the news when the strikes occurred. Jack considered the domestic legal basis for such action and came up with three potential justifications: the 2001 Authorization for Use of Military Force (AUMF), the 2002 Iraq AUMF, and inherent executive authority under Article II of the U.S. Constitution. He later returned to the idea of Article II power and further examined what it would mean for the President to rely on inherent authority in relation to a purely humanitarian operation.

Given these recent events, this week’s Foreign Policy Essay, written by Seth Jones, director of the RAND Corporation’s International Security and Defense Policy Center, was prescient. It focused on the example of Iraq for the withdrawal of U.S. forces from Afghanistan.

Meanwhile, Libya also slips further into chaos. Matt Waxman highlighted an article he wrote on the matter for CNN’s Global Public Square.

Ben shared the Lawfare Podcast, which featured a conversation on the current Israeli-Palestinian conflict with Natan Sachs, Khaled Elgindy, and Tamara Cofman Wittes.

Orin Kerr further weighed in on the discussion from last week on the Article III problems he sees with Senator Patrick Leahy (D-VT)’s National Security Agency (NSA) reform bill. Steve Vladeck provided a reply, considering the broader constitutionality of the Foreign Intelligence Surveillance Court. Orin then shared his final thoughts on “the prudential limits of justiciability and . . . Article III.” Later, Ben noted the release of a letter written by U.S. District Judge John Bates, director of the Administrative Office of the Courts, which criticized the bill’s proposed public advocate.

Ben informed us that Russian President Vladimir Putin has extended former NSA contractor Edward Snowden’s asylum. He then shared his recent Twitter exchange with Glenn Greenwald in regard to the news.

Taj Moore examined the relevant changes to the current Freedom of Information Act (FOIA) represented by the proposed FOIA Improvement Act of 2014.

As we anticipate the release of the Senate Select Committee on Intelligence (SSCI)’s report on the Central Intelligence Agency (CIA)’s post-9/11 use of torture, Wells highlighted a statement made by SSCI Chairwoman Dianne Feinstein (D-CA) on the nature of the redactions from the executive summary. Joseph Margulies, an attorney representing Guantanamo detainee Abu Zubaydah, considered “the din of the spin machines” that will follow the report’s release.

In United States v. Al-Nashiri, a weeklong pre-trial motions hearing began Monday before Air Force Col. Vance Spath, the case’s new judge. Beforehand, Wells flagged the Chief Prosecutor Mark Martins’ statement. Ben noted Martins’ remarks on the effects of the decision in United States v. Al-Bahlul, calling them “a bit of a wow.” Wells then posted dispatches from Monday’s session before Judge Spath. After providing a programming note, he shared coverage from Tuesday’s session, which was reported by Lauren Bateman, and Wednesday’s session, which was covered by Zoe Bedell. Finally, Wells highlighted a statement from Chief Prosecutor Martins on the conclusion of the week’s hearing.

In other Guantanamo news: Ben noted Judge Gladys Kessler’s denial of detainee Mohammed al-Adahi’s motion to reopen his case.

Wells shared comments from David Remes, a defense lawyer in Hatim v. Obama, on the D.C. Circuit Court’s ruling in that case.

Taj summarized the U.S. District Court for the District of Columbia’s opinion in Al Odah v. United States.

Jack highlighted Dan Geer’s speech on cybersecurity at the Black Hat conference.

Ken Anderson noted the publication of an article on autonomous weapon systems by Geoff Corn.

President Obama’s War Powers Letter to Congress on Iraq

Saturday, August 9, 2014 at 9:56 AM

Here is the letter.  Two points of note.

First, the President makes clear that he is authorizing military force in Iraq “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”  This is a standard formulation in this context for inherent Article II power.  The President is not relying on any congressional authorization.

Second, the President states that the military operations he authorized “will be limited in their scope and duration as necessary to protect American personnel in Iraq by stopping the current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”

The Case for Seeking Congressional Authorization for the Iraq Strikes – Made by President Obama

Friday, August 8, 2014 at 8:16 PM

It is pretty clear that President Obama today relied on Article II to attack the Islamist State (IS) in Iraq.  I have addressed the legality of such unilateral military action here and here.  I have also argued that the 2002 AUMF could be used as a basis for attacks in Iraq now.  But the administration appears to have rejected reliance on any AUMF.  That decision, and the unilateral military action under Article II, raise a question about the wisdom of unilateralism.  About a year ago I asked, “Why Doesn’t President Obama Seek Congressional Approval for Syria?”  The question, and reasoning in my answer, apply now with respect to IS in Iraq.  Why not get Congress on board, regardless of the legality of unilateral action, especially since some aspects of unilateral action are legally controversial?  One can perhaps understand the need to act unilaterally in the short term, to prevent a humanitarian catastrophe.  But the planning for the use of force against IS in Iraq has been going on for a while now.  If the administration continues to deploy force, it should seek congressional authorization.

The case for congressional authorization now was made a year ago by President Obama, when he explained why he was seeking such authorization for the (later-aborted) Syria attacks.

Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets.  This would not be an open-ended intervention.  We would not put boots on the ground.  Instead, our action would be designed to be limited in duration and scope. . . .

But having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I’m also mindful that I’m the President of the world’s oldest constitutional democracy.  I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.  And that’s why I’ve made a second decision:  I will seek authorization for the use of force from the American people’s representatives in Congress. . . .

In the coming days, my administration stands ready to provide every member with the information they need to understand what happened in Syria and why it has such profound implications for America’s national security.  And all of us should be accountable as we move forward, and that can only be accomplished with a vote. . . .

Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.  We should have this debate, because the issues are too big for business as usual.  . . .

A country faces few decisions as grave as using military force, even when that force is limited.  I respect the views of those who call for caution, particularly as our country emerges from a time of war that I was elected in part to end. . . .

So just as I will take this case to Congress, I will also deliver this message to the world. . . .

We all know there are no easy options.  But I wasn’t elected to avoid hard decisions.  And neither were the members of the House and the Senate.  I’ve told you what I believe, that our security and our values demand that we cannot turn away from the massacre of countless civilians with chemical weapons.  And our democracy is stronger when the President and the people’s representatives stand together.

Powerful stuff.  And every bit of it persuasive.

In fact, it is more persuasive as applied to the current situation in Iraq.  For IS in Iraq, unlike Assad in Syria, poses a direct and unambiguous threat to the United States.  Here is what a prominent member of the President’s party, Senator Dianne Feinstein, said today:

[IS, or ISIL] is not a typical terrorist organization—it is a terrorist army, operating with military expertise, advancing across Iraq and rapidly consolidating its position. . . .

I believe that once this group solidifies its hold on what it calls the Islamic State, its next target may be Baghdad.

It has become clear that ISIL is recruiting fighters in Western countries, training them to fight its battles in the Middle East and possibly returning them to European and American cities to attack us in our backyard. We simply cannot allow this to happen.

It takes an army to defeat an army, and I believe that we either confront ISIL now or we will be forced to deal with an even stronger enemy in the future. Inaction is no longer an option.

Against this background, the administration should get Congress to authorize force.  Doing so would be politically draining, but the administration would surely succeed.  And it would benefit politically in the medium term.  Congress supports the President’s actions now, but the cracks in that support are already showing, with some thinking the President should go very slow and others thinking he should be more aggressive.  Beyond the President’s self-interest, seeking congressional support is the right thing to do.  As the President said last year: “our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.”  As he also said, “all of us” – the President and members of Congress, and (presumably) the American People – “should be accountable as we move forward, and that can only be accomplished with a vote.”  As the President added, “the country will be stronger if we take this course, and our actions will be even more effective,” and “[w]e should have this debate, because the issues are too big for business as usual.”  As he also added, “our democracy is stronger when the President and the people’s representatives stand together.”

The logic of the President’s speech last year so obviously applies to the Iraq situation that if he does not now seek congressional authorization, one might reasonably question his sincerity last August – as many did at the time.  On the other hand, seeking congressional authorization now would show that the President really meant what he said last year.

The Legal Stakes in an Article II Humanitarian Intervention in Iraq

Friday, August 8, 2014 at 3:37 PM

Yesterday I maintained that the Iraq strikes were not legally problematic to the extent that they were justified as self-defense of U.S. persons, but said that “[i]f the Iraq strikes are conceptualized as pure humanitarian intervention, they would go further than even the Kosovo and Libya precedents, for they would lack both congressional authorization or any plausible U.N. or regional organization support.”  In his analysis of “the executive’s initial explanation of domestic law authority for the use of force in Iraq,” Marty Lederman appears to agree when he says:

The only potential legal innovation or close legal question here will arise under U.S. constitutional law if and when the U.S. uses lethal force at Mount Sinjar in order to stop a “potential act of genocide.”  To be sure, preventing genocide would “further U.S. national security and foreign policy interests.”  Moreover, because we would be acting with Iraq’s consent, this action would not risk an extended conflagration between nations (one of the principal concerns that animated the constitutional allocation of war powers).  And presumably it is not anticipated that the use of force would be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause.”

The difficulty of the constitutional question, then–as I discussed in this post–would be in assessing whether the particular interest in preventing genocide is of the sort that can justify the President acting without statutory authorization.  And that question will arise only if and when the military uses lethal force at Mount Sinjar.

I just want to add that this is not a small issue.  If the President has inherent authority to use U.S. military force for a pure humanitarian intervention that he alone defines, then one of the last threads of limitation within the Executive precedents – at least for “force from a distance” (drones, cyber, and the like) – will be eliminated.  What I wrote about the (aborted) Syria intervention applies here. Read more »

Today’s Headlines and Commentary

By and
Friday, August 8, 2014 at 1:11 PM

“Today America is coming to help,” announced President Obama as he authorized U.S. airstrikes and humanitarian airdrops in northern Iraq. The Associated Press notes that “the announcements reflected the deepest American engagement in Iraq since U.S. troops withdrew in late 2011.”

Reuters reports that this morning EDT, two U.S. F/A-18 warplanes bombed Islamic State targets in northern Iraq. The explosives took out “mobile artillery” that have been used to combat Kurdish troops. Additionally, the Wall Street Journal notes that U.S. forces are supporting the Iraqi airstrikes by supplying intelligence information and target locations. Meanwhile, according to Defense News, last night, the U.S. dropped “critical meals and water” to Iraqis trapped on Mount Sinjar.

Jack examined the legal basis for current U.S. involvement in Iraq here, while the Washington Post notes the complicated nature of U.S. efforts to aid Iraq in its current conflict with the Islamic State. For now, President Obama’s efforts seem to entertain support from Congress and even critics. The Wall Street Journal notes that both Democratic and Republican lawmakers have lauded the President’s decision to employ airstrikes and send humanitarian relief. Even Conor Fridersdorf, a self-proclaimed “frequent critic of President Obama’s foreign-policy record,” acknowledges the difficult choices the President is currently faced with in Iraq and supports airdrops of food and water.

As the U.S. renews its involvement in Iraq, Islamic State militants continue to gain ground in the semi-autonomous Kurdistan region. Reuters reports that the movement’s black flag flies a little over thirty minutes from the Kurdish regional capital of Erbil. Meanwhile, Vice News shares a five-part video series on the “inner workings” of the Islamic State.

The AP reports that Syrian fighters, who over the weekend captured the Lebanese border town of Arsal, withdrew yesterday, following the negotiation of a ceasefire.

Violence resumed in Gaza today, as a 72-hour cease-fire expired. According to the New York Times, Palestinian militants launched at least 33 rockets into Israel while the Israeli military responded with its own airstrikes. This latest round of attacks comes as talks in Cairo look to establish a more durable cease-fire agreement, but the Israeli government said in a statement that “Israel will not hold negotiations under fire.” The Wall Street Journal has more on the story.

The Post has a story on why the latest war in Gaza could lead to Palestinian Authority President Mahmoud Abbas’s return to Gaza, where he has been unable to visit since Hamas took over seven years ago.

Yesterday in Kiev, NATO Secretary General Anders Fogh Rasmussen outlined a proposal for the alliance to provide communications, cyber defense equipment, and command-and-control guidance to Ukraine, while calling on Russia to “step back from the brink.” Echoing concerns of other U.S. and NATO officials, Rasmussen said that Russia should “not use peacekeeping as an excuse for war-making.” The LA Times has the story. USA Today has a special report that claims Ukrainian rebels are recruiting fighters, raising funds, and soliciting combat gear in Moscow.

The Times Editorial Board chastises Vladimir Putin for forcing Russia to sanction itself, saying that the measures “will hurt Russians far more than they will hurt Westerners.”

Back in Kiev, Ukrainian authorities attempted to clear the last occupants of Independence Square’s protest camps on Thursday, provoking activists to light tire barricades on fire. The Wall Street Journal describes the last occupants as a “ragtag array of far-right activists and worn-down men in camouflage” who have refused to leave, instead demanding items like toilets and refrigerators.

The Wall Street Journal also has a roundup of activity in Donetsk—where fighting continues unabated, but Alexander Borodai, a Russian citizen with close ties in Moscow, has resigned as prime minister of the Donetsk People’s Republic. While insisting that the militants are not losing ground, Mr. Borodai suggested that the appointment of Alexander Zaharachenko, a local leader of an insurgent militia, would make it easier to hold negotiations with Kiev.

U.S. and Iranian negotiators continued nuclear discussions in Geneva yesterday. Deputy State Department spokesperson Marie Harf called the talks “constructive.” Reuters has details.

The AP informs us that the body of Maj. Gen. Harold Greene, who was killed during an “insider attack” on an Afghan training camp, reached Dover Air Force Base in Delaware yesterday. Meanwhile, Secretary of State John Kerry is in Afghanistan on an unannounced trip to help resolve the country’s presidential election dispute. The Guardian has more.

Secretary of Defense Chuck Hagel travelled to India yesterday to push new weapons deals in hopes of improving relations with “the world’s largest democracy.” The AP reports on his visit.

The Wall Street Journal informs us that the Egyptian government has unveiled plans to expand the Suez Canal.

With the conclusion of the U.S.-Africa Leaders Summit, Defense One examines security threats emanating from the continent and recent statements on U.S. counterterrorism efforts there. Meanwhile, the Ebola outbreak continues to wreak havoc in Western Africa. The AP and Reuters note that last night, the State Department ordered family members of U.S. diplomats in Liberia to leave the country. The Post shares statistics on the current health crisis.

Breaking Defense shares an exclusive exit interview with outgoing Defense Intelligence Agency (DIA) director Lt. Gen. Michael Flynn. He calls the current confluence of global crises “the most uncertain, chaotic and confused international environment that I’ve witnessed in my entire career.”

McClatchy analyzes the battle between the Central Intelligence Agency (CIA) and the Senate Select Committee on Intelligence (SSCI) over redactions from the Committee’s report on the CIA’s post-9/11 use of torture.

The Wall Street Journal Editorial Board examines Russian President Vladimir Putin’s decision to extend former U.S. National Security Agency contractor Edward Snowden’s asylum.

Yesterday, we shared news that a Russian crime syndicate has assembled a massive collection of user names, passwords, and email addresses. Bruce Schneier explains why the story is actually not as scary as it sounds. Still, the Post Editorial Board calls for congressional action. Meanwhile, Google is employing its own methods to ensure that websites provide secure connections to Internet users. The Guardian has details.

Yesterday, President Obama signed a bipartisan veterans’ health care overhaul bill. CBS News has footage of his signing statements. The new law comes as the Times shares details of a new study of post-traumatic stress disorder among veterans.

USA Today reports that Senator John Walsh (D-MT) has renounced his candidacy for a full term as the junior U.S. Senator from Montana. An Iraq war veteran, Walsh was appointed to fill the seat earlier this year when Senator Max Baucus stepped down to serve as the U.S. ambassador to China. Senator Walsh has been accused of committing plagiarism in a masters thesis, which he wrote in pursuit of a degree from the Army War College.

The Post reports that the National Guard has ended its partnership with NASCAR and the Indy Racing League.

Yesterday around 8:10 PM, Secret Service officers intercepted an intruder on the White House lawn: a toddler who had slipped away from his parents. According to Politico, Secret Service spokesperson Edwin Donovan noted, “We were going to wait until he learned to talk to question him, but in lieu of that he got a timeout and was sent on [his] way with parents.”

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

U.S. Air Strikes in Iraq Begin

Friday, August 8, 2014 at 9:44 AM

The Pentagon tweets that the U.S. military has begun airstrikes against Islamic State (IS) positions in Iraq.  Precisely, force has been deployed against IS artillery that was used “against Kurdish forces defending Erbil, near US personnel.”  I have not yet seen a clear explanation of the domestic legal basis for the strikes, but the mention of “U.S. personnel” suggests (as I speculated yesterday) a self-defense rationale, at least in part.  (Apparently the government of Iraq has consented to the strikes, which satisfies the relevant international law jus ad bellum requirements.)  As the WSJ notes, Congress generally supports the strikes.  That means that, for now, few will worry about the legal basis.  If anything, the pressure from Congress appears to be for the President to do more, not less, to degrade ISIS.  As long as this remains the case, the President can deploy U.S. military force against IS without domestic political/legal consequence or controversy, especially as long as the fire comes from a distance and from drones and nothing major goes wrong.

Many stories this morning (e.g. here) note that the strikes in Iraq are a policy reversal for President Obama.  The President clearly wants to keep the use of American force in Iraq to a minimum.   The problem (well, one problem) is that the self-defense and humanitarian and strategic rationales for strikes against IS apply more broadly than these initial strikes.  (This WP story is a good summary.)  The administration will be pushed to explain why it should attack IS here and now and not elsewhere at another time.

Dan Geer Cybersecurity Keynote at Black Hat

Friday, August 8, 2014 at 8:47 AM

Dan Geer gave this keynote address at the Black Hat conference yesterday.  It is entitled Cybersecurity as Realpolitik.  It begins with some general thoughts on the state of play in cybersecurity, addresses ten pressing policy issues, and is characteristically filled with insights throughout.  The speech is very much worth a read.  Or a watch – here is the video.

U.S. Forces Said to Have Bombed ISIS Targets in Iraq

Thursday, August 7, 2014 at 5:20 PM

The New York Times is reporting that, according to Kurdish officials, American forces have bombed ISIS targets in Iraq:

American military forces bombed at least two targets in northern Iraq on Thursday night to rout Islamist insurgents who have trapped tens of thousands of religious minorities in Kurdish areas, Kurdish officials said.

Word of the bombings, reported on Kurdish television from the city of Erbil, came as President Obama was preparing to make a statement in Washington.

Kurdish officials said the bombings targeted fighters from the Islamic State in Iraq and Syria who had seized two towns, Gwer and Mahmour. Residents who had fled those areas by car were heard honking their horns in approval.

Obama administration officials had said earlier in the day that Mr. Obama was considering airstrikes or airdrops of food and medicine to address a humanitarian crisis among as many as 40,000 members of religious minorities in Iraq, who have been dying of heat and thirst on a mountaintop where they took shelter after death threats from ISIS.

Pentagon Press Secretary Rear Adm. John Kirby quickly tweeted that the reports were false.

Earlier today on Lawfare, Jack weighed in on the legal basis for air strikes.

We wait to see what is really going on in Iraq at the moment…

Another Bad Day for Another Guantanamo Detainee in the Courts

Thursday, August 7, 2014 at 3:42 PM

This time, it’s Mohammed Al-Adahi (remember him?). The opinion is by Judge Gladys Kessler. It reads in relevant part:

Petitioner remains conditionally cleared for release since the action of the [Guantanamo] Task Force. Petitioner alleges that his health has declined so substantially that the possibility of “any significant physical activity—much less any involvement in the hostilities—is virtually impossible ….[T]herefore, no legitimate basis for Petitioner’s continued detention [exists] and he should be released and repatriated to Yemen.” Pet.’s Mem. at 1. Despite having been cleared for release approximately four and one-half years ago, Petitioner remains at Guantanamo Bay and the Government has refused to provide his counsel any timeline for when he will be allowed to return to his wife and two children in Yemen.

The ruling of our Court of Appeals in Ali A wad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), provides the answer to Petitioner’s claim and governs this case. In Awad, whose leg had been amputated, Petitioner argued that “the District Court erred in denying his petition [for release] without a specific factual finding that [he] would be a threat to the United States and its allies if he were released.” Id. at 4, 11. The Court of Appeals rejected this argument, and relying upon its earlier decision in Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010), which examined the scope of the Executive Branch’s detention authority under the Authorization for the Use ofMilitary Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001), held that the “United State’s authority to detain an enemy combatant is not dependent on whether an individual would be a threat to the United States or its allies if released but rather upon the continuation of hostilities.” Id. The Court of Appeals went on to make it clear that “[w]hether a detainee would pose a threat to U.S. interests if released is not the issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.” Id. (emphasis added).

Petitioner relies heavily on Basardh v. Obama, 612 F. Supp. 2d 30 (D.D.C. 2009), where the District Court ordered the release of Basardh, a Yemeni national, when the prospects that he would take up arms “[was], at best, a remote possibility.” Id. at 35. First, Basardh was decided over a year before Awad. Second, and more significantly, with all due respect to the fine District Court Judge who wrote that Opinion, our controlling authority is the Court of Appeals decision in Awad, rather than a District Court decision. As the Government summarized “[t]he Basardh decision … predates and is fundamentally inconsistent with the decision of the Court of Appeals in Awad.” Govt. Opp’n at 11. The Court agrees.

Chief Prosecutor Statement on this Week’s Hearings in Al-Nashiri

Thursday, August 7, 2014 at 3:23 PM

Here y’are.  Brig. Gen. Mark Martins, the Chief Prosecutor at Guantanamo, opens his statement as follows:

Good afternoon. This Friday will mark sixty-nine years since the signing of the London Agreement and Charter by representatives of the United States, the Soviet Union, the United Kingdom, and France, thus establishing the International Military Tribunal for the trial of major war criminals at Nuremburg. That trial—and subsequent proceedings at Nuremburg under Control Council Law Number 10—resulted in a body of law that remains central to all present-day efforts to hold individuals responsible in judicial proceedings for horrific war crimes. One modern international criminal court describes those efforts as seeking an “end to impunity.” On the anniversary of this important event in history, the legacy of Nuremburg is very much alive in ongoing military commission proceedings.

This week, the military commission convened to try the charges against Abd Al Rahim Hussayn Muhammad Al Nashiri continued its consideration of pre-trial issues raised by the defense and prosecution. I emphasize that Mr. Al Nashiri is presumed innocent unless and until proven guilty beyond a reasonable doubt.

To date, the parties have briefed 334 motions and have orally argued some 267 motions. Of the 334 motions briefed, 31 have been mooted, dismissed, or withdrawn; 115 have been submitted for decision; and 215 have been ruled upon by the Commission. The Commission has taken over 14 hours of testimony from 11 witnesses.  These examples, which are never meant to imply that justice can be quantified, serve as important indices of the less visible work the parties continue to accomplish between sessions.

Quick Thoughts on the (Domestic) Legal Basis for Air Strikes in Iraq

Thursday, August 7, 2014 at 2:03 PM

As Wells notes, the Obama administration is contemplating air strikes in Iraq to protect threatened religious minorities there. Setting aside the moral and strategic merits of such strikes, how might they be consistent with domestic law?

The President has three possible legal bases for the strikes.

The first is the 2001 AUMF.  The problem with relying on that statute is that ISIS (or IS) appears to have few if any remaining connections to the “organizations, or persons . . . [who] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”  It seems a stretch to say that ISIS is an associate of al Qaeda.  (But see the Corker-Preston exchange here).

The second in the 2002 AUMF, which provides: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq.”  As I argued a few months ago:

The relatively narrow original purpose of this statute is captured in its preambular language.  But what counts is the operative text of the authorization.  That text gives the President the discretion to determine when the use of the U.S. Armed Forces is necessary and appropriate to defend U.S. national security against the continuing threat posed by Iraq (not the government of Iraq, not Saddam Hussein, but Iraq), and authorizes the President to use those forces in that circumstance.  It is not at all hard to interpret this statute to authorize the President to use force today to defend U.S. national security from the threat posed by the ISIS-induced collapse of Iraq.

(Some (see, e.g. here and here) disagree with my interpretation.)  For the 2002 authorization to work, the President would need to determine that air strikes against ISIS to protect religious minorities in Iraq would further U.S. national security interests; but that should not be hard to do.  The main hurdle to relying on the 2002 authorization is that National Security Advisor Susan Rice has disclaimed its relevance and urged Congress to repeal it.  (For criticism of that position, see here.)

The third basis is the President’s inherent power under Article II.  Given the administration’s distaste for the 2002 AUMF, this is likely the way the President will go.  If the Iraq strikes are conceptualized as pure humanitarian intervention, they would go further than even the Kosovo and Libya precedents, for they would lack both congressional authorization or any plausible U.N. or regional organization support.  But I expect that the administration will emphasize the self-defensive elements of attacking ISIS, bringing an Iraq strike closer to the fold of past Executive branch precedents.  (It will be tricky and interesting to see how the administration explains that it is in U.S. self-defense to attack and degrade ISIS in this context and not in others in Iraq and Syria.  See below.)

The prudent move would be to rely on both statutory and constitutional bases for the Iraqi air strikes. But the larger politics of the 2001 and 2002 AUMFs will likely lead the President to rely on Article II alone.  If I am right, this is an example of how a powerful Islamist threat requires the use of force, and the absence of plausible (or, in the case of the 2002 AUMF, politically palatable) statutory authorization forces the President into reliance on Article II as the basis for force.  Wanting to declare the statutory war against Islamist terrorists over, the administration has long maintained that the residual use of Article II in this context will be exceptional and limited.  Given the large and growing nature of the Islamist threat, not just in Syria and Iraq, but elsewhere, I do not see how the President can protect U.S. national security interests with exceptional and limited uses of force under Article II.  Put more simply, the threat is not limited, and neither can (or will) be our response.  The current crisis in Iraq might be a test of this view, and of whether the Congress and the nation are comfortable with a President using force in its name under the broad, unilaterally determined parameters of self-defense, or whether it wants more formal and defined input and guidance and limitations from the legislature.

Today’s Headlines and Commentary

By and
Thursday, August 7, 2014 at 1:16 PM

This morning, CNN asks “Will anyone stop ISIS?” It may be that the New York Times has the answer: “President Obama is considering airstrikes or airdrops of food and medicine to address a humanitarian crisis.” Some 40,000 Iraqis, most of them members of the Yazidi sect, are trapped on Mount Sinjar, perishing from heat and thirst. “A lack of ammunition and advanced weaponry forced” Kurdish troops, who had been protecting Sinjar and the Yazidi, to retreat. According to the Washington Post, Iraqi politicians begged for emergency assistance.

Islamic State militants have now taken control of the Christian town of Qaraqosh and the border around the semi-autonomous Kurdish state. Reuters, the Wall Street Journal, and the Post have details on the extremists’ gains. The Times notes that, though ISIS “is on nearly every nation’s public enemy list,” coordinating international action against the group has so far proven difficult.

Meanwhile, the Associated Press informs us that two car bombs in Shia districts of Baghdad have killed 21 people and wounded 34 others.

The Wall Street Journal has more on the chaos in the Middle East, as the U.S. Treasury Department has moved to sanction three Kuwait-based financiers for allegedly funding extremist groups in Iraq and Syria. Two are accused of being major fundraisers for the Al Nusra Front, while one was a financier for the Islamic State.

The final day of the 72-hour Israeli-Palestinian ceasefire began this morning. Reuters informs us that negotiators are working to extend the agreement and transition to discussions for a more permanent peace. Reuters also notes that U.S. State Department official Frank Lowenstein is among the mediators.

According to the Times, yesterday, Israeli Prime Minister Benjamin Netanyahu declared, “Every civilian casualty is a tragedy, a tragedy of Hamas’ own making.” At a press conference yesterday, U.S. President Barack Obama remarked, “Hamas acts extraordinarily irresponsibly when it is deliberately siting rocket launchers in population centers, putting populations at risk.” Time details his statements.

The Wall Street Journal explains how close security cooperation between Israel and Egypt contributed to the current conflict.

The Times reports that yesterday, two insider attacks on Afghan police personnel killed eleven officers. These assaults follow the death of Maj. Gen. Harold Greene at the hands of a gunman at Camp Qargha, a training base in Kabul. According to the AP, the shooter “hid in a bathroom before the assault and used a NATO assault rifle in his attack.” Reuters informs us that the killer previously served in the Afghan army for three years. Defense Secretary Chuck Hagel announced that the death of Maj. Gen. Greene “is not going to affect our decision or resolve to continue moving forward on an enduring presence post-2014.” Indeed, the AP shares that “President Barack Obama’s decision to cut the number of troops in Afghanistan … will stand.”

Tensions continue to mount in eastern Ukraine as Ukrainian government forces advance on rebel strongholds while Russia continues to add forces along Ukraine’s border, in what some officials fear may be a sign of a coming invasion. The AP reports that violence is marching ever closer to the city-center of Donetsk, as Ukrainian forces make gains against pro-Russian separatists. The AP also reported yesterday that U.S. and NATO officials are concerned that Russia may use the violence as a  pretext for a humanitarian or peacekeeping mission to send in troops, with U.S. Secretary of Defense Chuck Hagel saying that “it’s a threat; it’s a possibility – absolutely.” According to Reuters, President Obama said that Ukraine did not need additional U.S. military assistance at the moment, but signaled that a Russian invasion could change his thinking, saying that an invasion would pose “a different set of questions.”

The White House also warned that Russia’s round of retaliatory sanctions against U.S. agricultural imports would only “deepen Russia’s international isolation, causing further damage to its own economy.” The Hill has more.

Reuters reports that the United States will spend $110 million each year over the next three to five years to assist African nations in developing peacekeeping and counterterrorism forces that can fight domestic militant threats. The U.S. will spend an initial $65 million to support security forces and institutions in Ghana, Kenya, Mali, Niger, Nigeria, and Tunisia. Other country partners include Senegal, Ethiopia, Rwanda, Tanzania, and Uganda. However, Defense News tells us that some lawmakers on Capitol Hill remain skeptical of the “US military and intelligence pivot to Africa.”

U.S. nuclear negotiators resume talks with Iran today in Geneva. The AP reports that Under Secretary of State Wendy Sherman and Deputy Secretary of State William Burns are among the U.S. delegation members.

According to the Post, Iranian Deputy Foreign Minister Hassan Ghashghavi announced that the arrest of Washington Post journalist Jason Rezaian, his wife, and two other reporters “is an internal matter in which the United States has no say.”

In a Post op-ed, Senator Bob Corker (R-TN), the Ranking Member of the Senate Foreign Relations Committee, remarks that President Obama’s foreign policy choices demonstrate that he cannot be relied upon during international crises.

On Tuesday, U.S. District Judge John Bates, the current director of the Administrative Office of the Courts and a former Foreign Intelligence Surveillance Court (FISC) judge, sent a letter to Senator Patrick Leahy (D-VT) about the Senator’s recently proposed NSA reform bill. In it, Judge Bates explains why a FISC public advocate poses a problem from both a privacy and national security standpoint. The Wall Street Journal has the story, while Ben shares the news with Lawfare here.

Edward Snowden’s attorney announced today that the Russian government has approved a three-year extension of the former U.S. National Security Agency (NSA) contractor’s asylum. The Times has details; Ben highlighted the story for us here.

The Daily Beast examines the White House’s declassification review of the Senate Intelligence Committee’s report on post-9/11 use of torture by the Central Intelligence Agency (CIA). Apparently, the Obama administration is still considering “whether or not masked references to specific foreign countries and individuals who helped the CIA will be allowed to come out.”

The Post reports that USIS, a contractor for the Department of Homeland Security responsible for conducting background checks, was the victim of a cyber assault with “all the markings of a state-sponsored attack.” According to DHS spokesperson Peter Boogaard, “some DHS personnel may have been affected.”

The Times informs us that Hold Security, a cybersecurity firm based in Milwaukee, has discovered that a Russian crime syndicate “has amassed the largest known collection of stolen Internet credentials, including 1.2 billion user name and password combinations and more than 500 million email addresses.”

The Wall Street Journal describes U.S. intelligence agencies’ use of social media, including “Facebook, Twitter, and overseas regional networks,” for information-gathering.

The Times provides an update on the investigation into Sgt. Bowe Bergdahl’s abduction by the Taliban: yesterday, Maj. Gen. Kenneth Dahl conducted his first interview with Bergdahl.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Air Strikes or Supply Drops in Iraq?

Thursday, August 7, 2014 at 12:30 PM

The New York Times reports: 

WASHINGTON — President Obama is considering airstrikes or airdrops of food and medicine to address a humanitarian crisis among as many as 40,000 religious minorities in Iraq who have been dying of heat and thirst on a mountaintop after death threats from the Islamic State in Iraq and Syria, administration officials said on Thursday.

The president, in meetings with his national security team at the White House on Thursday morning, has been weighing a series of options ranging from dropping humanitarian supplies on Mount Sinjar to military strikes on the fighters from ISIS now at the base of the mountain, a senior administration official said.

Al-Nashiri Motions Hearing: August 6 Session

Thursday, August 7, 2014 at 9:48 AM

This week’s pre-trial session in United States v. Al-Nashiri came to a close yesterday; courtesy of new Lawfare contributor Zoe Bedell, you’ll find summaries of the day’s key developments in our “Events Coverage” section, and links to those summaries below.  Enjoy.

8/6 Motions Hearing #1: Tu Quoque

8/6 Motions Hearing #2: MRIs and Skype

My Twitter Exchange with Glenn Greenwald this Morning

Thursday, August 7, 2014 at 8:39 AM

The thing kind of speaks for itself:

Snowden Residency in Moscow Extended

Thursday, August 7, 2014 at 7:45 AM

So reports the New York Times:

MOSCOW — Edward J. Snowden, the American intelligence contractor who published a raft of secret documents and then fled to Russia, has been granted a three-year residence permit, his lawyer announced Thursday.

Anatoly G. Kucherena, the lawyer, told a news conference that Mr. Snowden was not given asylum in Russia, but rather had been granted permission to live here until 2017, Russian news media reported.

So much for my theory that Vladimir Putin was getting reading to sell Snowden out.