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Today’s Headlines and Commentary

Friday, July 18, 2014 at 12:48 PM

Yesterday, Cody and I flagged the news that a Malaysian Airlines Boeing 777, en route to Kuala Lumpur, had crashed in Ukraine near the border with Russia.

U.S. officials confirmed yesterday that the plane had been shot down  The New York Times reports that the perpetrators allegedly used a Russian-made surface-to-air missile. According to the Associated Press, Ukraine has blamed pro-Russian militants for the crash. In support of these statements, the Ukrainian Secret Service released a video containing a sound recording of a Russian intelligence official and a rebel discussing the attack.  The Washington Post shares the video. According to the Hill, both Senator John McCain (R-AZ) and former Secretary of State Hillary Clinton yesterday suggested that the Russian separatists may be responsible. Today, President Obama announced that current U.S. intelligence indicates that the rebels are, in fact, to blame for shooting down the airliner. The Times has details on his statements.

Investigation into the crash has begun.  But, per the Post, the inquiry may already be compromised. On that point, speaking to CBS News, former Chairman of the National Transportation Safety Board (NTSB) Mark Rosenker noted, “It’s a contaminated site” due to stolen parts. And the Times reports that the plane’s data and audio recording devices appear to be missing. Both the Ukrainian government and rebel forces claim to have them.

Of the investigation, President Obama declared, “[t]he United States will offer any assistance we can to help determine what happened and why.” Yesterday, he spoke separately with Dutch Prime Minister Mark Rutte, Malaysian Prime Minister Najib Razak, Ukrainian President Petro Poroshenko, and Russian President Vladimir Putin. Politico notes that the crash certainly adds “new pressure on the White House and European leaders to address the conflict in Ukraine and confront… Putin.” Apropos: Stars and Stripes says that the U.N. Security Council met today at 10 a.m. to discuss the situation in Ukraine. According to the Post, during the discussion, U.S. ambassador to the U.N. Samantha Power outlined the conclusions of the United States: “Our assessment is that Malaysia Airlines Flight 17… was likely downed by an SA-11 missile, operated from a separatist-held location in eastern Ukraine.” The Times Editorial Board argues that the one person who can end the violence is Putin.

In a Post op-ed, David Ignatius examines how European energy needs complicate the sanctions process against Russia. Indeed, German Chancellor Angela Merkel announced today that sanctions against Russia in response to the plane crash would be “premature.” The Hill has more on her statements.

Meanwhile, Reuters reports that the CIA station chief in Berlin has left Germany, following a request from the Berlin government that he do so.

Yesterday, we shared news that Russia was set to re-open an intelligence facility in Cuba. According to Reuters, the Kremlin said it has no such intentions.

Israel launched a ground invasion of the Gaza Strip yesterday. According to the Post, “Israel chose to launch a ground offensive after exhausting other options.” This morning, Israeli Prime Minister Benjamin Netanyahu called for “a significant expansion” of the attack. The AP describes the current situation in Gaza. In a daily press briefing, State Department spokesperson Jen Psaki declared, “We are increasingly concerned about the safety and security of civilians on both sides… [and] heartbroken by the high civilian death toll in Gaza.” In an interview with the AP, the Palestinian U.N. envoy said he hoped for an Egyptian-brokered cease-fire to end the violence soon. In a Post op-ed, though, Eugene Robinson is doubtful, writing that we may not see an Israeli-Palestinian peace “in our lifetimes.”

According to the Hill, yesterday, members of the Senate Appropriations Committee defeated an amendment from Senator Mark Pryor (D-AR).  It would have denied the Obama administration’s $500 million request to arm and train Syrian rebels.

In the Daily Beast, Christopher Dickey argues that the U.S. should let Iran handle the situation in Iraq. Meanwhile, in a Post op-ed, American Enterprise Institute research fellow Katherine Zimmerman articulates why the Obama administration’s strategy in Yemen should not serve as a model for U.S. policy in Iraq and Syria.

The Times informs us that an audit of nearly eight million ballots cast during the Afghanistan election commenced yesterday.

From the Daily Beast: following the assault on Kabul International Airport, a number of Pakistani Taliban militants have moved into Afghanistan to assist in attacks there.

Although the global violence seems overwhelming, Fareed Zakaria in a Post op-ed asserts that it is actually “not the worst of times.”

The Guardian shares an interview with former NSA contractor Edward Snowden. During the discussion, Snowden declares, “Regardless of what happens, if I end up in chains in Guantanamo, I can live with that.” The Hill has more on the quote.

On Wednesday, a judge for the Southern District of New York sentenced Ahmed Abassi, a Tunisian man who allegedly had wanted to use bacterial agents to contaminate the U.S. air and water supply, to time served. Following the hearing, Abassi will be deported to his home country. The Times shares the story.

The AP notes that Pvt. Chelsea Manning will begin receiving gender treatment at the military prison at Ft. Leavenworth, Kansas.

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Bringing More Due Process to CFIUS: An Overview of the D.C. Circuit’s Opinion in Ralls

Thursday, July 17, 2014 at 6:00 PM

Tuesday’s opinion in Ralls v. Committee on Foreign Investment in the United States came as quite a surprise. For the first time, a federal court considered the relationship between due process, on the one hand; and, on the other, the Committee on Foreign Investment in the United States (CFIUS), an interagency mechanism with which the executive branch reviews foreign acquisitions of U.S. property for possible national security risks.

As Lawfare-ers have described here (and here, and here, and here), the CFIUS process is unique, as Ralls itself illustrates. The company, owned by two Chinese nationals, had acquired four American-owned companies in Oregon in order to develop windfarms.  The deal raised national security concerns—the windfarms notably were situated not far from a U.S. military installation—and the President accordingly issued a rare executive order ordering Ralls to divest of any interests in the Oregon businesses. Crying foul, Ralls brought suit against CFIUS in the United States District Court for the District of Columbia, which last year dismissed the suit on jurisdictional grounds.

A three-judge panel of the D.C. Circuit, composed of Circuit Judge Karen LeCraft Henderson (who authored the opinion), and Circuit Judges Janice Rogers Brown and Robert L. Wilkins, heard oral arguments back in May (read Yishai’s recap here).  The panel this week sided with Ralls, concluding that President Obama’s 2012 order violated the company’s due process rights.

Below the fold I offer a summary of the opinion, followed by some preliminary thoughts on its potential impact on the government’s review of corporate transactions implicating national security.

Read more »

The Tanking of US-German Relations: A Recent History in Links

Thursday, July 17, 2014 at 2:15 PM

If you’ve been focused the last few weeks on ISIS, on Gaza, on the Iran deal, or on the Afghan elections, you might have missed the precipitous decline of U.S.-German relations that is taking place before our eyes—a decline that is occurring almost entirely because of disagreements over intelligence matters. Russell Miller published a lengthy summary of a conference he organized on the subject in Freiburg. But for those who want a basic primer on the issues in dispute, here is a historical summary of the relevant events with links to news stories.

At the beginning of July, German police forces arrested a 31-year-old German (New York Times) officer in the Bundesnachrichtendienst (BND), the German intelligence organization, for suspected spying against Germany. The man was arrested because of an email he sent to the Russian Consulate in Munich (Der Spiegel) on May 28, in which he offered to funnel classified German documents to Russian representatives. The German government intercepted the email and began an investigation, ultimately leading to the suspect’s apprehension. During the German government’s questioning of the BND official, he mentioned that he had already served as a spy for the US (Deutsche Welle). His arrest led to an investigation of a second potential US agent (Washington Post) who had already been suspected of spying because of his suspicious ties to a US intelligence official. The second individual’s apartment and work office were promptly searched (Der Spiegel). This does not appear to have been a sophisticated scheme (The Daily Beast); the BND officer is thought to have volunteered for the role and to have an identifiable speech impediment and physical injury. This does not sound like the spy of choice for typically covert US intelligence missions but it could also have been a result of poor vetting procedures, assuming the allegations are true.

Der Spiegel has reported that the first suspect, Markus R., alleged to have received $34,000 from the US for his services. During a nine-hour interrogation, he shared information about two US contacts he interacted with. The German government has not identified those two individuals yet, should they exist. According to the Spiegel, the CIA might have been managing the operation through its embassy in Austria, not the US Embassy in Berlin.

Despite the uproar this incident has inspired, Der Spiegel also reported that Markus claimed only to have shared “five files of material” with US agents. He did, however, smuggle more than 200 documents out of his office. The German government, in reviewing the documents, found an inquiry (Der Spiegel) the Federal Criminal Police Office had sent to BND in the spring; it requested information about an individual working for the Defense Ministry, Leonid K. As the inquiry indicates, Germany had already been investigating Leonid, the second person (Der Spiegel) now suspected of spying on Germany for the US.

The U.S. government did not have anything to say (The White House, Office of the Press Secretary) initially. Chancellor Merkel, presumably to demonstrate German frustration with US indifference, publicly announced Germany’s decision to remove the CIA’s head of station in Germany (New York Times), a largely symbolic response to what might be yet another case of US spying in Germany. German leaders have suggested increasing spying against Washington (The Guardian), removing the entire CIA presence in Germany (Foreign Policy), and they have demanded that the US government formally declare whether the individual was an CIA agent (International Business Times). On July 15 (The White House, Office of the Press Secretary), Merkel and Obama held a phone call in which they discussed additional ways to cooperate on intelligence matters. How effective that conversation will be in reducing German frustrations remains to be seen.

Taken on their own, these two incidents—particularly given a paucity of public evidence regarding what happened—would probably be just a blip. But they come after a year of what the Germans call the “NSA Affair,” which has already riled German public opinion. Just a few days before the arrest, reports circulated that the NSA had been spying on a German student (New York Times) who was affiliated with a European computer hacking group, as well as a digital encryption organization. Even before that, despite some signs of slow US-German progress (Deutsche Welle) on mitigating German fears of broad surveillance practices, feelings were pretty raw.

It all started with Edward Snowden’s June 2013 and the revelation that NSA had tapped Chancellor Merkel’s phone. Chancellor Merkel called President Obama to clarify news that the US government had bugged her “handy,” (The Guardian) as well as to express her severe disapproval of the spying. After the phone call, President Obama and Chancellor Merkel agreed to cooperate more on intelligence sharing (The White House, Office of the Press Secretary). Germans are also sensitive about the degree to which NSA surveillance infringes the privacy of ordinary Germans. It acted on the international stage by introducing and co-sponsoring a United Nations resolution on the “right to privacy in the digital age” (New York Times). Its introduction, and subsequent adoption, was crafted as a global response to the NSA’s expansive surveillance practices.

After that there was relative calm until the past couple of weeks. Germany’s political class was still upset, and there were apparent cases of tension over the failure to create a more durable cooperative framework (New York Times) but there were few public disputes. That changed with the discovery of this latest round of potential espionage cases.

What happens next will depend on the results of the German investigation, a formal response by the US government, or the revelation of another separate case of spying. A lot is at stake. Not only is basic trust with an important ally at issue, but a number of cooperative agreements between the EU and US could be as well. For instance, there is an ongoing effort to create a free trade deal between the US and EU, but Germany has been reluctant (Reuters) toward committing to it for several reasons, US spying being one of them. Some German leaders have called for an end to the Safe Harbor pact (Der Spiegel), which allows US companies to transfer the personal data of EU citizens to the US for business purposes. This latest revelation will likely add to European frustration over NSA spying on the SWIFT financial database (Der Spiegel), which many EU leaders believe should have led to US access suspension (RT). The same could be true of the passenger name records agreement (Reuters), which was already a topic of controversy because of the NSA affair.  Some believe this deteriorating relationship could push Germany closer to Russia (Der Spiegel), which would further weaken US-German relations. Clearly, there is no shortage of potentially damaging reactions.

What is clear is that Germany is upset. Not only is it troubled by the breadth of the surveillance program, it is dismayed that it is the United States, a friend, that is spying on Germany. What Germany might want in order to repair the partnership is unclear, but it likely wants more than platitudes about enhancing intelligence sharing. It might want tangible changes this time around.

Today’s Headlines and Commentary

By and
Thursday, July 17, 2014 at 12:58 PM

A Malaysian Airlines Boeing 777, travelling from Amsterdam to Kuala Lumpur with 280 passengers and 15 crew members, crashed in Ukraine near the Russian border. Reuters notes that all 295 people aboard died in the crash.  We don’t yet know the cause; a Ukrainian official apparently said the plane had been struck by an anti-aircraft missile. FOX News reports, as do USA Today and the New York Times and Washington Post.  

Tensions between Russia and Ukraine continue to escalate. Army Times notes that as many as 12,000 Russian troops have lined up along the border between the two countries. A Ukrainian military spokesperson also announced today that a Ukrainian jet pilot was forced to eject yesterday evening, after being shot down by a Russian military plane. USA Today has details.

Reuters reports that the U.S. has sanctioned some of Russia’s largest companies. No surprise: President Vladimir Putin denounced the move. The AP has more on his statement. Meanwhile, the Guardian tells us that following an agreement with Cuba, Russia is poised to open a Cold War-era intelligence base right in America’s backyard.

So much for Russia-Ukraine; on to another conflict. From 10 a.m. (3 a.m. EST) to 3 p.m. (8 a.m. EST), Israel and Hamas honored a “humanitarian truce” requested by the U.N. The Post reports that during this five-hour window, Gaza citizens stocked up on food, water, and money. However, according to the Guardian, at least three mortars were fired into southern Israel during the ceasefire.  Per the Times,  immediately after 3 p.m., rocket fire from Gaza resumed.  The Daily Beast’s Eli Lake argues that during the current hostilities, Hamas has actually won “a significant victory.”

For his part, President Obama announced in a statement that the U.S. “has been working with our partners in the region to pursue a cease-fire.” The AP has more on his remarks.

President Obama also noted that the U.S. has “a credible way forward” in nuclear talks with Iran. The Times informs us that the President is likely to request an extension of the negotiations. Reuters reports that Iran and the P5+1 group are now working on the details of such an extension. Both the Post and the Times Editorial Boards argue that the United States should continue participating in the discussions in Vienna.

Yesterday, Afghan officials amended the death toll estimates from Tuesday’s car bomb attack in the Paktika province. Reuters reports that 43, rather than 89, people died. Meanwhile, the AP shares news that this morning, militants attacked Kabul International Airport in the Afghan capital.

The Times reports that Bashar al-Assad was sworn in yesterday for a third, seven-year presidential term in Syria. The move is seen as a gesture of defiance towards the United States and other powers who encouraged his ouster. The United Nations remains committed to brokering peace in Syria, and the Hill tells us that last Friday, Secretary-General Ban Ki-moon appointed U.N. official Staffan de Mistura to negotiate on his behalf. Reportedly, given the situation, de Mistura is not expected to fare much better than his unsuccessful predecessors.

At the same time, The Wall Street Journal reports that a Pentagon plan to aid rebels in Syria is emerging, but advocates for a large support package are likely to be disappointed. Military officials told congressional committees that the $500 million program would train a 2,300 man force, but probably would not begin until next year.

In the Daily Beast, Leslie Gelb, President Emeritus and Board Senior Fellow at the Council on Foreign Relations, articulates his view of the best course of action for the U.S. in the Middle East.

Remember the early 2016 foreign policy debate, that Governor Rick Perry and Senator Rand Paul previewed last week? A.B. Stoddard has the score: Paul 1. Perry 0. Nick Gillespie weighs in too, writing in the Daily Beast that it is time to try a Libertarian foreign policy.

The Times reports that six low-level Guantanamo prisoners will be transferred to Uruguay as early as next month. The detainees include four Syrians, a Palestinian, and a Tunisian. A State Department spokesperson noted, “The United States is grateful to our partner, Uruguay, for this significant humanitarian gesture.” The Post has more.

Yesterday, Secretary Kerry named retired Coast Guard Adm. Robert J. Papp as the first U.S. Special Representative for the Arctic. In a statement, Kerry noted, “The Arctic region is the last global frontier and a region with enormous and growing geostrategic, economic, climate, environment, and national security implications for the United States and the world.” The AP has details.

Following an unusually extended period of artillery fire and missile launches by North Korea, the United States and South Korea have launched a five day, joint naval exercise in the East Sea. North Korea has denounced the routine drill, which will emphasize search and rescue operations, as modern day “gunboat diplomacy.” Defense News has the story.

From the Hill: as the National Institute of Standards and Technology (NIST) reviews technology encryption standards, outside experts are encouraging the agency to “consult with but not submit anything to the NSA.”

According to the Times, Sgt. Bowe Bergdahl’s lawyer, Eugene Fidell, said that because of a lack of precedent, Bergdahl’s case is “open to almost complete discretion in what course the Army might take.” In an interview with the Daily Beast, though, Fidell said “Sergeant Bergdahl is deeply grateful to President Obama for saving his life.”

During a hearing before the Senate Veterans’ Affairs Committee, acting VA Secretary Sloan Gibson announced that it will take “as little as two years” for the beleaguered department to change. National Journal has more on her statement.

Defense News reports that for the first time in a decade, the U.S. Air Force has opened competition for a national security space launch. The mission would be scheduled for 2016.

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.

Al Bahlul and Article III: A Reply to Marty and Steve

Wednesday, July 16, 2014 at 4:00 PM

Marty and Steve’s post on al Bahlul (and Steve’s post here) is right that the D.C. Circuit’s decision should not be read as a green light for inchoate conspiracy charges in military commissions.  However, Marty and Steve go off course in magnifying the modest issues remanded to the panel in al Bahlul, particularly the impact of Article III on military commissions.  In the context of this case, neither of these issues is as complex as the Ex Post Facto Clause question that the en banc D.C. Circuit decided.

First, a point of clear agreement between Marty, Steve, and me: Nothing in the decision opens the floodgates on inchoate conspiracy charges for pre-Military Commissions Act (MCA) conduct.  The limited holding in the case, which upholds the conspiracy charge in al Bahlul’s case only because it did not constitute “plain error,” is hardly a ringing endorsement.

After this common ground, however, Marty and Steve go astray with an unjustifiably broad view of Article III restrictions on military commissions.  Marty and Steve are of course right that Article III imposes constraints.  However, their argument goes far beyond the leading precedents on this question, Ex Parte Milligan and Ex Parte Quirin.

Marty and Steve’s sweeping Article III argument, which owes much to Steve’s important article on military justice, categorizes military commissions as an “exception” to Article III’s requirement that independent federal courts conduct criminal trials governed by federal law.  In Ex Parte Quirin, Chief Justice Stone explained that military commissions aren’t an “exception” to Article III.  Rather (p. 39), they simply “are not courts in the sense of the Judiciary Article.”  Military commissions, which the Framers were clearly familiar with because of General Washington’s use of a military commission to try British Maj. John Andre during the Revolutionary War, are a necessary incident of war.  A state conducting an armed conflict with another party must have a means to hold its adversaries accountable for violations of the law of armed conflict.  The military commission serves that purpose; it’s not a court in the Article III sense, and couldn’t be, given what Chief Justice Stone described as its usual functioning under “conditions precluding resort to such procedures.”

Article III limits on commissions stem from the test the Court adopted in Milligan and interpreted in Quirin: to avoid impairing the right to a jury trial under Article III (and the right to a grand jury under the Fifth Amendment), the Constitution only permits commissions when, 1) courts are not open, or, 2) the defendant is a belligerent in an armed conflict.  The Milligan Court found that Lambdin Milligan was not a belligerent, despite his attempted subversion of the lawful government of Indiana during the Civil War.  In contrast, the Quirin Court found that the defendants in that case were belligerents who had disembarked on the East Coast of the U.S. during World War II on orders of the Nazi High Command and shed their uniforms to enable acts of sabotage.

When courts are not open, military commissions function as a source of law and order, as they did during war-torn Missouri during the Civil War.  Nothing in Milligan questioned the legality of the Missouri commissions.  Indeed, the al Bahlul majority unduly discounts the commissions’ lawful role.  The majority opinion (p. 46) reports that one commission convicted a defendant, Henry Willing, for the vague transgression of being a “bad and dangerous man.”  The majority doesn’t share the main charges against Willing, whom members of the commission found had conspired successfully to destroy portions of a railroad used by Union troops.  Without a commission to hold him accountable, Willing would have continued his work with impunity.

Quirin explains that while the dysfunction of civilian courts is one basis for the convening of military commissions, it is not the only one.  Even when courts are open, Quirin held, military commissions are still appropriate for the trial of belligerents in the conflict, such as the Nazi saboteurs convicted in that case.  A finding that a defendant is a belligerent is a sufficient assurance that the convening of the commission is not subject to Article III’s requirements.

Al Bahlul was clearly a belligerent in the noninternational armed conflict between the U.S. and Al Qaeda.  Evidence at his military commission trial includes a letter al Bahlul wrote acknowledging his “role” in the 9/11 attacks, and his interviews to the same effect with FBI agent Ali Soufan (whose excellent work Marty and Steve don’t acknowledge, relegating Soufan to the ranks of unnamed “Guantanamo interrogators”).

While Marty and Steve don’t directly address the question of Congress’s power to convene military commissions under Article I, the best answer is that courts should provide Congress with a measure of deference, as Judge Janice Rogers Brown explained in her concurrence (see my post).  That deference is not unlimited.  At the very least, inchoate conspiracy charges should entail some nexus to an acknowledged war crime, such as the murder of civilians.  Congress surely had the power to establish a commission to try al Bahlul’s conduct, which entailed intentional participation in a common plan resulting in a completed war crime (the 9/11 attacks).

In sum, Marty and Steve are right about future cases.  However, they exaggerate the difficulty of issues facing the panel that will hear remaining issues in al Bahlul’s appeal.  Reading Milligan and Quirin together should ease the panel’s task.

A Brief Reply to Jack and Peter on Al Bahlul

Wednesday, July 16, 2014 at 1:51 PM

This morning, Marty Lederman and I have posted a detailed analysis of Monday’s en banc D.C. Circuit decision in al Bahlul—and what it portends for the future of military commissions, especially with respect to offenses not recognized as international war crimes. As Marty and I conclude, “Monday’s decision . . . underscores the serious constitutional objections that the commissions would have to overcome if they were to be used to prosecute domestic law offenses.”

Readers may see in such a conclusion (and in our post, more generally) a fair amount of tension with Jack’s “longer view” of al Bahlul from yesterday, and with today’s analysis by Peter Margulies with respect to Congress’s power to “define” international law. Jack, for example, sees Monday’s decision in al Bahlul as “a step in the direction of judicial acceptance of the basic legitimacy of commissions.” And Peter concludes that, “When there are colorable arguments for Congress’s approach to military commission jurisdiction, judicial deference is the wisest course,” suggesting that, on remand, the original three-judge panel should reject al Bahlul’s claim that Congress lacks the Article I power to subject non-LOW offenses to trial by military commission because Congress is free to define what the LOW is. (An argument the government does not even make.)

At the risk of oversimplifying a complex series of legal issues, the real daylight between our post, on the one hand, and Jack’s and Peter’s readings of al Bahlul, on the other, appears to be the Article III issue that Marty and I emphasized, but that Jack’s and Peter’s posts ignore. Simply put, the Supreme Court has recognized carefully circumscribed exceptions to Article III, including one for military trials of servicemembers and one for international war crimes committed by enemy belligerents. But the Court has never recognized an analogous exception for non-international war crimes committed by enemy belligerents, and, as I’ve previously written at some length, there are a number of good reasons why such an exception would be ill-conceived (to say nothing of the Court’s recent admonition that all such exceptions ought to be narrowly construed). Of course, the D.C. Circuit (or the Supreme Court) may yet disagree, and eventually recognize an exception to Article III for offenses against the “U.S. common law of war.” But only one of the seven judges in al Bahlul (Judge Kavanaugh) even addressed the Article III issue, and his analysis, as Marty and I explained, was problematic, at best—and did not address any of the countervailing arguments made in the amicus brief that I helped to file on the subject.

But whatever the ultimate merits of the Article III question, the critical point for present purposes is that Monday’s decision brought that issue to the forefront, and it will now presumably be one of the central challenges al Bahlul raises before the original three-judge panel. (And, as Marty and I explained, there won’t be any argument for “plain error” review on this issue, since it unquestionably goes to the constitutional jurisdiction of the commission—a challenge that cannot be forfeited.)

What that means, in practice, is that Jack’s suggestion that al Bahlul is a “step in the direction of judicial acceptance of the basic legitimacy of commissions” is premature, at best; and Peter’s focus on the Article I question—whether Congress has the power to proscribe violations of the “U.S. common law of war” in general—utterly misses the Article III elephant in the room, since the answer may very well differ as between Congress’s power to make such offenses triable in civilian versus military courts.

At least for the power of U.S. military commissions to try non-international war crimes, then, all is still to play for—and, as Marty and I concluded in our post, there’s no reason to think that Monday’s decision in al Bahlul will make the government’s case any easier going forward.

Today’s Headlines and Commentary

By and
Wednesday, July 16, 2014 at 12:45 PM

Yesterday, after Hamas refused to sign a cease-fire agreement with Israel, Secretary of State John Kerry declared, “I cannot condemn strongly enough the actions of Hamas.” The Wall Street Journal notes the Secretary’s statement that “Israel has right to defend itself.” Indeed, according to the Associated Press, the Israeli Prime Minister vowed to use “great force” against Gaza. The Times reports  that 100,000 Gazans were encouraged to “flee” their homes. The Israeli offensive may soon force the U.S. to become involved in mediating an end to the violence. The Post describes the pressure the U.S. is soon to face.

Until then, it appears that the U.S. Congress is prepared to approve additional funding for Israel’s Iron Dome anti-missile system. Foreign Policy and Defense One have more.

The Post Editorial Board examines Hamas’ rejection of the cease-fire and concludes that “the Islamic movement calculates that it can win the concessions it has yet to obtain from Israel and Egypt not by striking Israel but by perpetuating the killing of its own people in Israeli counterattacks.”

From the Daily Beast: given recent developments in Iraq, officials within the Obama administration are concerned about the proposed withdrawal of U.S. forces from Afghanistan.

In a letter to Secretary of Defense Chuck Hagel and Marine Corps. Gen. Joseph Dunford, John Sopko, the U.S. Special Inspector General for Afghanistan Reconstruction, recommended “delaying the delivery of additional cargo planes” to the Afghan air force. The Wall Street Journal reports.

Just days after the announcement of a U.S.-brokered deal to resolve the Afghan election crisis, the ballot audit was “postponed indefinitely” as candidates Abdullah Abdullah and Ashraf Ghani disputed who—the U.N. or the Afghan Independent Election Commission—would conduct the audit. The Post has more on Afghanistan’s continued election troubles.

Despite “very real gaps,” Secretary Kerry said yesterday that nuclear negotiations with Iran had achieved “tangible progress.” According to the Times, the involved parties are likely to extend the Sunday deadline to reach a long-term agreement.

Meanwhile, a recent poll conducted by the University of Maryland’s School of Public Policy and the Program for Public Consultation indicates that 61 percent of Americans support cooperating with Iran on the situation in Iraq. The Post has details.

The Associated Press writes that on Tuesday, Vice President Joe Biden called moderate Sunni lawmaker Salim al-Jubouri to congratulate him on his election as Iraq’s new parliamentary speaker. The Vice President pledged to work closely with him to tackle the threats the country faces.

The Times tells us that Iraqi forces have withdrawn from the rebel-held city of Tikrit after yesterday’s highly publicized attack met heavy resistance. The Long War Journal has the details of the battle, including images that rebels published of newly captured U.S. military vehicles. This was the Iraqi military’s second failed attempt to retake Tikrit.

The Times also has a new and disturbing recruitment video from ISIS that appears to target English speakers in the West. In the video, Canadian Andre Poulin notes that there is a place for everyone in the Islamic State. The video comes three days after Attorney General Eric Holder called the threat that Americans and Europeans will join the fight in Syria “something that gives us really extreme, extreme concern.”  (Jack highlighted Holder’s comments on Sunday.) Meanwhile, Vice has a story that raises a number of questions about the methods the FBI uses to deter, track, and arrest would be jihadists.

According to the Long War Journal, a newly released (but obviously old) video of Osama bin Laden is part of a major al Qaeda effort to push back against the foundations of the Islamic State and its sophisticated recruitment tactics.

Reuters reports that on Friday, as part of its anti-Taliban offensive, the Pakistani military captured Taliban commander Adnan Rashid in South Waziristan near the Afghan border. Today, Pakistani jets killed 35 alleged insurgents, while U.S. drones killed another 20. Reuters has more on that, too.

Despite such successes, the Times notes the “alarmingly rapid” growth of Islamist groups across Pakistan.

Stars and Stripes reports that after a recent spate of violence in Tripoli and Benghazi, the interim Libyan government may ask the international community to send forces to help ease the hostilities. Secretary Kerry has urged an end to the “‘dangerous’ levels of violence” in the country. Reuters has more.

The Post tells us that yesterday, Somali security forces in Mogadishu arrested over 200 people with alleged ties to militant groups. Meanwhile, the U.N. Somalia and Eritrea Monitoring Group has accused the Somali “president, a foreign minister, and a U.S. law firm of conspiring to divert Somali assets recovered abroad.” Reuters reports on that story, too.

The Wall Street Journal notes that as violence continues in eastern Ukraine, both Russia and Ukraine are condemning each other’s involvement in the dispute.

According to the AP, Washington is contemplating unilateral sanctions against Russia. The Obama administration is also encouraging the European Union to adopt tougher sanctions. Bloomberg shares more.

Yesterday, President Obama spoke over the phone with German Chancellor Angela Merkel regarding “U.S.-German intelligence cooperation.” According to a White House statement, President Obama assured Chancellor Merkel that “he’d remain in close communication on ways to improve cooperation going forward.” The Times has details.

In a Time op-ed, John Rizzo argues that German outrage over U.S. spying is “just for show,” and intended to serve the German leadership’s own domestic political constituencies.

Just Security has post from Rolf Mowatt-Larssen, former Chief of Europe Division in the CIA.  He lays out the spies’ “rules of the game,” and argues that “threats are unpredictable, and any state’s interests can be incompatible with another’s under certain circumstances.”   As such, “written no-spy agreements are inherently disingenuous.”

According to the Wall Street Journal, the United Kingdom’s electronic surveillance policies were also in the spotlight on Tuesday, and on two different fronts.  First, parliament passed legislation that requires telecom companies to keep customer data for up to 12 months. At the same time, human rights groups met with a special tribunal and argued that British spying practices are overly broad and violate protections of privacy and free speech.

On this side of the Atlantic, the Hill reports that debate on the Cybersecurity Information Sharing Act (CISA) is heating up.  Supporters hope that the bill will get a floor vote before the August recess. Today, Treasury Secretary Jack Lew came out in support of the effort, suggesting that “our cyber defenses are not yet where they need to be.” This statement comes a day after civil liberties advocates released a letter asking President Obama to veto the bill. The Hill has more.

According to Defense News, U.S. Chief of Naval Operations Admiral Jonathan Greenert yesterday met his Chinese counterpart in Beijing to discuss cooperation between the two countries.

Meanwhile, senior American officials announced this week that in March, Chinese hackers attacked records from not only the Office of Personnel Management, but also from the Government Printing Office and the Government Accountability Office. The Times notes that it is unclear yet if the intruders were acting on behalf of the Chinese government.

Reuters brings news that North Korean Supreme Leader Kim Jong Un supervised rocket drills near the inter-Korean demilitarized zone yesterday.

The Post describes the new drones on display at the Farnborough International Airshow.  Apropos,  per the Wall Street Journalthe British and French governments have agreed to an extension of their defense cooperation strategy, Future Combat Air Systems (FCAS) program, which intends to develop a “high-end drone that would be radar evading and… able to drop bombs.”

According to Representative Rob Wittman (R-VA), a senior member of the House Armed Services Committee, Congress may need to pass a short-term continuing resolution to fund the Pentagon until after the upcoming midterm elections. The Hill has details.

The Post shares news that a U.S. Navy nurse refused to force-feed Abu Wa’el Dhiab, a Guantanamo prisoner on a hunger strike.

Roll Call examines a number of recent staff firings at the House Homeland Security Committee.

The Hill reports that Sgt. Bowe Bergdahl has retained Eugene Fidell, a Yale law school professor, as counsel.

A Norwegian man affiliated with al Qaeda has been added to the U.S. State Department’s list of global terrorists. Reuters shares the story.

Closing arguments began today in the case against the friend of the alleged Boston Marathon bomber. The AP has more.

USA Today describes Twitter’s recent hashtag #betterciatweets.

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Bahlul and the Power of Congress to Define International Law

Wednesday, July 16, 2014 at 10:00 AM

In Al-Bahlul, the en banc D.C. Circuit resolved some quite important issues regarding military commissions, but declined to address other no less important ones. Among other things, the full court opted to remand the question of Congress’s Article I power to make inchoate conspiracy an offense triable by commission. When a three-judge panel once more takes up the Guantanamo detainee’s appeal, Judge Janice Rogers Brown’s subtle and incisive concurring opinion—which discusses that very issue at length—should be on the front burner.

Unlike the majority, Judge Brown chose to evaluate an argument raised by al-Bahlul, regarding Congress’s Article I power to “define and punish… Offences against the Law of Nations.”  (Full disclosure: Judge Brown cites my paper, which informed the amicus brief Jim Schoettler and I filed for national security law profs and former officials and military lawyers.)  In evaluating al-Bahlul’s conviction for conspiracy, Judge Brown makes a cogent argument that a congressional determination regarding an offense’s status is worthy of deference, because the Framers devised the Define and Punish Clause to give Congress the opportunity to “interpret and define international law in a more flexible way that serves the country’s self-interest, but still remains compatible with international norms.”

Both domestic and international law, Judge Brown writes, support providing Congress with a measure of deference. Judge Brown notes that one should read the Define and Punish Clause in tandem with other provisions of the Constitution that exhibit wariness about foreign influence.  The Foreign Gifts Clause was drafted to minimize that risk, which the Framers feared in part because of extravagant gifts to Ben Franklin by the King of France.  Hamilton, in Federalist No. 66, defended the Treaty Clause on similar grounds, arguing that the requirement of a 2/3 vote in the Senate would preclude domination by a cabal of legislators serving as “mercenary instruments of foreign corruption.” As Judge Brown wisely observes, it would be incongruous to regard the Framers as precluding Congress from avoiding this risk of foreign influence as it defined offenses against the law of nations.

Congress’s role is especially important because of what Judge Brown calls the “protean quality” of international law.  In Federalist No. 37, Madison stressed the difficulty in “delineating the several objects and limits of different codes of laws.”  That challenge is nowhere more apparent than in international law, where some scholars sense faint glimmers of an emerging rule at breakfast and proclaim a peremptory norm at lunch. A body like Congress, that is both deliberative and representative (or so the Framers hoped), is surely the appropriate forum for deciding how to define and punish violations of international law.  Congress’s status as the voice of the people situates it well to reconcile fealty to international law norms with basic concerns of U.S. self-interest.  The political branches, acting together, traditionally have been given great deference in matters touching on foreign affairs.  Courts, in contrast, are not entrusted with such constitutional responsibilities.  Deference to the legislature is the most prudent path for courts in this context. Read more »

Steptoe Cyberlaw Podcast, Episode #28: An Interview with David Medine

Tuesday, July 15, 2014 at 10:08 PM

Our guest this week is Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), David Medine.  We do a deep dive into the 702 program and the PCLOB’s report recommending several changes to it.  Glenn Greenwald’s much-touted “fireworks finale” story on NSA may have fizzled, but this week David and I deliver sparks to spare.

I question the PCLOB’s enthusiasm for giving new responsibilities to the flawed Foreign Intelligence Surveillance Court (Judge Lamberth and his wall make an appearance).  I challenge David’s notion (shared with Judge Wald) that the 702 program, crucial as it is for our terrorism defenses, nonetheless stands balanced so close to the edge of constitutionality that without new minimization restrictions it could tip over into constitutional unreasonableness at any moment.  David gets a chance to comment on stories about U.S. citizens whose data is stored by the NSA, including Glen Greenwald’s disclosure of the Americans targeted by NSA and Bart Gellman’s defense of his Washington Post article.  (There we find common ground; like me, David has doubts about the significance of Gellman’s claim that “9 out of 10 accountholders” in NSA’s database aren’t targets.)  And we argue over whether NSA analysts need 89,000 new make-work assignments justifying their targets, let alone a massive judicial logjam before they can search data already gathered lawfully.  All in all, a rewarding workout.

The news roundup is truncated to allow more time for the Medine dialogue, but this week in NSA features includes more Snowdenista journalist misrepresentations, including the demonstrably false claim that NSA has flagged the Linux Journal as an “extremist forum.”

The Senate Intelligence Committee produces a cybersecurity information sharing bill as a bookend to the House’s bill, but getting it to the floor and then to the President is going to be tough in today’s climate and under the current calendar.  Maury Shenk tells us the Russians are planning to balkanize the Internet and in the name of privacy no less. He also reports that the UK is pursuing stopgap legislation to make sure it doesn’t lose its data retention authority in the wake of an unfavorable ECJ decision, and to allow UK law enforcement to require foreign entities to turn over data under a warrant.  David can’t help intervening to remind us that the UK has also proposed creating their very own PCLOB.

Transatlantic Dialogue on IHL and IHRL

Tuesday, July 15, 2014 at 4:58 PM

Hot on the heels of the transatlantic dialogue event in Germany on surveillance law and policy, about which Russ has a fascinating post here, I’m happy to report that there is a similar event taking place at Oxford this week concerning the interplay of IHL and IHRL.  The event (now in its second year) is co-sponsored by the ICRC’s DC and London delegations, the Oxford Institute for Ethics, Law, and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations, South Texas College of Law (through the good offices of my friend Geoff Corn), and the Strauss Center at UT (which I direct).  It’s going to be an amazing event, though alas it is not open to the public and won’t be recorded (last year we did it under Chatham House rules, and may be doing so again).  At any rate, I thought readers would at least be interested in seeing the topics that will be debated and discussed.  They are: Read more »

Opinion from D.C. Circuit in Ralls v. CFIUS

Tuesday, July 15, 2014 at 1:34 PM

Here it is; you’ll find some background here and here.

Today’s ruling from a panel of the D.C. Circuit opens as follows:

KAREN LECRAFT HENDERSON, Circuit Judge: In March 2012, Appellant Ralls Corporation (Ralls) purchased four American limited liability companies (Project Companies) previously formed to develop windfarms in north-central Oregon. The transaction quickly came under scrutiny from the Committee on Foreign Investment in the United States (CFIUS), an Executive Branch committee created by the Defense Production Act of 1950 (DPA), codified as amended at 50 U.S.C. app. § 2170, and chaired by the Secretary of the U.S. Treasury Department (Treasury Secretary), see 50 U.S.C. app. § 2170(k). Pursuant to section 721 of the DPA, CFIUS reviews any transaction “which could result in foreign control of any person engaged in interstate commerce in the United States.” Id. § 2170(a)(3). Although Ralls is an American corporation, the transaction fell within the ambit of the DPA because both of Ralls’s owners are Chinese nationals. CFIUS determined that Ralls’s acquisition of the Project Companies threatened national security and issued temporary mitigation orders restricting Ralls’s access to, and preventing further construction at, the Project Companies’ windfarm sites. The matter was then submitted to the President, who also concluded that the transaction posed a threat to national security. He issued a permanent order (Presidential Order) that prohibited the transaction and required Ralls to divest itself of the Project Companies. Ralls challenged the final order issued by CFIUS (CFIUS Order) and the Presidential Order in district court, alleging, inter alia, that the orders violate the Due Process Clause of the Fifth Amendment to the United States Constitution because neither CFIUS nor the President
(collectively, with Treasury Secretary and CFIUS Chairman Jacob Lew, Appellees) provided Ralls the opportunity to review and rebut the evidence upon which they relied. The district court dismissed Ralls’s CFIUS Order claims as moot and its due process challenge to the Presidential Order for failure to state a claim. For the reasons set forth below, we reverse.


Today’s Headlines and Commentary

By and
Tuesday, July 15, 2014 at 1:24 PM

Iraqi lawmakers have broken political deadlock and elected Sunni lawmaker Salim al-Jubouria as the new speaker of parliament, the Associated Press reports. The election is a first step to forming a new government, which is widely seen as necessary to confront militants who have seized much of the country. The New York Times quotes Abbas al Bayati, a Shiite lawmaker, as saying, “We shortened the time compared to the last – this is evidence that Iraqi democracy is on the right track.”

The election comes as the Iraqi army launched an assault on the rebel-held city of Tikrit. Al Jazeera writes that Iraqi security officials are “very confident” that they are in “complete control” of the area, but such claims could not be independently verified. Only a day before, the Hill reported that U.S. military advisers in Iraq are still assessing the situation and have yet to offer advice to the Iraqi security forces.

Yesterday, Egypt offered terms for a cease-fire between Israel and Hamas. According to the Washington Post, Israeli Prime Minister Benjamin Netanyahu’s security cabinet met this morning and approved the deal. But Hamas refused, calling the proposed agreement “unacceptable.” Gaza continued to fire rockets and Israel resumed airstrikes. The Times has more details.

The Post shares that Israel’s successful Iron Dome has changed the way the country responds to Palestinian hostilities. Meanwhile, Hamas is now claiming that it has drones. The Times reports.

From The Hill:  Senator James Inhofe (R-OK), Ranking Member of the Senate Armed Services Committee, praised the Afghanistan election deal brokered by Secretary of State John Kerry, calling it “a positive step in a process that is absolutely essential to a peaceful transition of power in Afghanistan.” The Post Editorial Board also expressed its support for the deal.

Today, a car bomb in eastern Afghanistan killed 89 people and wounded at least 42 others. The Times indicates that this marked one of the “deadliest” assaults since 2001, when America invaded Afghanistan. Meanwhile, the Post examines the potential vulnerability of Afghan forces in the Panjwai district to future insurgents.

Yesterday, Jane caught us up on the ongoing nuclear negotiations with Iran in Vienna. Today, the Times tells us that Iran’s chief nuclear negotiator has announced that the country could accept a deal that essentially freezes its capacity to produce nuclear fuel at current levels for several years. The proposal is seen as an extension of the same limited concessions Iran made last November. However, American officials suggested that the proposal does not address the most central of America’s concerns: the plan, it seems, would leave most of Iran’s centrifuges spinning.

The Times also points out that negotiations are occurring on a domestic political level in the United States, as well.  And Reuters reports that Senators Robert Menendez (D-NJ) and Lindsey Graham (R-SC) have circulated a letter to their Senate colleagues, demanding that Iran accept tough conditions in the nuclear talks before Congress agrees to ease any sanctions.

Yesterday, the U.N. Security Council approved humanitarian access to Syria, despite the lack of consent from the country’s government. Reuters has details.

Meanwhile, McClatchy updates us on ISIS matters:  yesterday the Islamic State of Iraq and al-Sham gained took control of Deir el Zour, a town in eastern Syria.

According to Reuters, Secretary Kerry called Bahrain’s Foreign Minister Khaled al-Khalifa, regarding the expulsion of U.S. Assistant Secretary of State for Democracy, Human Rights, and Labor Tom Malinowski from Manama.

From the Times we learn that yesterday, a Ukrainian AN-26 cargo plane containing food and water took fire and collapsed near Davydo-Nikolskyoe, a town close to the Russian border. According to the Guardian, President Petro Poroshenko accused Russia of conducting the attack.

Yesterday, the Chinese Foreign Ministry declared that the U.S. should essentially play no role in the dispute over the South China Sea.  China would have the regional powers work the situation out amongst themselves. Reuters has more.

A new video from Boko Haram shows the leader of Nigeria’s Islamic extremist group claiming responsibility for two recent “victories,” including two explosions at a fuel depot in Lagos. The group’s leader, Abubakar Shekau, also reiterated his demand that the government release detained militants in exchange for the more than 200 schoolgirls kidnapped three months ago. The Wall Street Journal has more.

In an op-ed in the Post, Dana Milbank considers White House Press Secretary Josh Earnest’s statement yesterday that President Obama’s foreign policy has “substantially improved the… tranquility of the… global community.”

The Wall Street Journal reports that having finished the reintegration process, Sgt. Bowe Bergdahl will now resume active duty service in the U.S. Army. According to Pentagon spokesperson Col. Steve Warren, “he will essentially be doing a desk job.”

On Friday, Texas Governor Rick Perry published an op-ed in the Post, arguing against American isolationism. Yesterday, in Politico, Senator Rand Paul (R-KY) responded to Perry’s ideas. Both predictably claimed fidelity to President Ronald Reagan’s legacy. Having that in mind, in a piece over at the Atlantic, Peter Beinhart considers how Reagan really would respond to current foreign affairs.

Walter Pincus of the Post examines a July 2 Privacy and Civil Liberties Oversight Board report regarding surveillance conducted under Section 702 of FISA.

Defense News reports that the U.S. and Qatar have reached an $11 billion arms deal. Relatedly, the Daily Beast explains why the United States is no longer the world’s premiere purveyor of military technology.

Apropos of arms sales, the Journal reports that U.S. may be about to relax some of its strict export controls on armed military drones. Its a timely development, considering events elsewhere: at the Farnborough International Airshow, Britain and France are expected to announce their own agreement to produce an advanced armed drone.

Meanwhile, scientists at the Defense Advanced Research Projects Agency are developing “experimental .50-caliber ammunition that can adjust flight paths after being fired from a weapon.” The Post covers the story.

According to a Global Attitudes poll conducted by the Pew Research Center, drones are widely unpopular in most of the world, although the majority of Americans approve of them. The Post and USA Today consider the stark findings.

According to documents made public pursuant to a FOIA request, CIA employees have many complaints regarding Langley’s cafeteria. See the Post for more key details on, among other things, CIA’s allegedly unsatisfactory menu offerings.

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Privacy and Power: A Reflection on the German-American Intelligence Crisis

Tuesday, July 15, 2014 at 12:00 PM

The Germans are angry.  They have been simmering since Edward Snowden’s disclosures last summer revealed the startling extent of American intelligence-gathering and data-collection activities in Europe. Now they are boiling-over. The discovery, in the last few days, of paid American informants in the German Federal Intelligence Service and the Ministry of Defense, left President Joachim Gauck sounding exasperated. “Now we really have to say,” he insisted in his annual summer interview, “this is enough.” Alongside reports that the German Government has demanded that the highest-ranking American intelligence officer in Germany leave the country, the Frankfurter Allgemeine Zeitung published an essay in Friday’s edition calling this the “worst crisis in transatlantic relations since the 2003 Iraq war.”

Is there a way out of the crisis? Only if we can foster a better understanding of the very different political mindsets—and the resultingly very different legal frameworks—in both countries.  That was the aim of the two-day symposium Ralf Poscher and I convened at the University of Freiburg this week under the title “Privacy and Power:  A Transatlantic Dialogue in the Shadow of the NSA.” The program built upon our conclusions, outlined in an essay that we published in the fall [German Version] [English Version], about the fundamental nature of the differences between Germany and the United States with respect to the way our countries seek to balance security and liberty. At their core, they are differences in historical experience, political culture and legal culture. Those differences are the source of the dismay and disillusionment felt by Germans and Americans.  They are also a significant barrier to the authentic and constructive conversation we must have to move beyond the current malaise.  The symposium was sponsored by the University of Freiburg’s Center for Security and Society, the University’s KORSE project, and the German Law Journal.

The different political and legal perspectives—and the different rhetoric upon which they depend—were emphatically on display at the event’s opening session, which featured keynote presentations from Prof. Dr. Anne Peters (Director of the Heidelberg Max Planck Institute for Comparative Public Law and Public International Law) and Lawfare’s editor, Benjamin Wittes. Peters revisited her previous commentary on the NSA Affair, in which she has argued that the NSA programs are illegal as a matter of international law. Peters proceeded in three steps. She systematically mapped the scope of state-based and individual-based protections against espionage, surveillance and data collection (relying in particular on the U.N. Charter and the ICCPR). She then argued, with a reference to the initiatives revealed in the Snowden disclosures, that American programs constituted a serious infringement of the relevant legal protections. Finally, she concluded that the programs were disproportionate.

Wittes responded with a characteristically strong dose of Realpolitik, in which he advanced three arguments.  First, he insisted that the activities of the American intelligence community are subject to consequential legal limits and effective political oversight in ways that the intelligence communities in other countries—including Germany—are not. Second, he noted that a widening divergence between German and American foreign policy (emphasizing the countries’ different responses to the Ukrainian/Russian conflict) itself justified American espionage and surveillance interest in Germany. “Merkel regularly speaks with Putin,” Wittes said.  “Of course the U.S. wants to know what they’re talking about.” Third, Wittes made the pragmatic observation that intelligence services, by their very nature, defy international legal controls. Leaning heavily on the last point, Wittes concluded that it is an unavoidable reality of international relations that countries spy on one another, on their friends as well as their enemies, and that these activities necessarily unfold in the shadows. Recalling that Israeli espionage against the United States had not profoundly disrupted the Israeli-American relationship, Wittes urged the Germans to “finally grow up.” Peters responded by demanding that the Americans “obey the law.” Read more »

USG Files Opening Brief in Klayman Appeal

Tuesday, July 15, 2014 at 10:00 AM

Yesterday the government filed its opening brief in Klayman v. Obama, in a bid to overturn D.C. District Court Judge Richard J. Leon’s December 16 ruling requiring the government to cease collecting, and to destroy, any Section 215 metadata associated with plaintiffs Larry Klayman and Charles Strange.

By way of background: last year, the district court consolidated two putative, kitchen-sink-style class actions filed in the wake of the Snowden revelations to challenge the lawfulness of the government’s bulk telephony metadata program. Judge Leon granted a preliminary injunction to two (of five total) plaintiffs, finding it “significantly likely” that the government’s use of “almost-Orwellian technology” to collect and store telephony metadata of individuals that it does not suspect of wrongdoing constitutes an unreasonable search in violation of the Fourth Amendment. In so ruling, Judge Leon notably rejected the Obama administration’s key characterization of its metadata collection program as a technological descendant of the pen register lawfully and warrantlessly used to collect phone numbers dialed by a suspect in the 1979 case of Smith v. Maryland.
As for yesterday’s filing: about half of the government brief is devoted to detailing the authorities granted and bulk telephony-metadata program conducted under Section 215, and to overviewing the proceedings below. It’s worth noting that, here and elsewhere, the government’s account emphasizes the mechanized, minimized, and therefore non-injurious nature of the metadata collection and query process. For example, the government insists that, with respect to general database querying, this is “metadata that no person reviews” and that “never come to any human being’s attention.”
The government brief makes all of the usual arguments for why the district court erred in granting the preliminary injunction, contending that the plaintiffs have not demonstrated standing, that the plaintiffs are not likely to succeed on their Fourth Amendment claim, and that the district court abused its discretion in balancing the equities and assessing the public interest.
Also as expected, the meat of the government’s argument lies in its repudiation of the Judge Leon’s Fourth Amendment analysis. That is, the government argues that (1) obtaining bulk telephony metadata from telecommunications companies under Section 215 does not constitute a Fourth Amendment search because Smith v. Maryland does indeed control, and (2) even if the collection were a search, it would nonetheless be reasonable under the special needs doctrine and therefore constitutional.
The government summarizes its Fourth Amendment arguments thusly:
Every other judge who has decided the question has correctly concluded that the district court’s holding conflicts with the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which held that individuals lack a Fourth Amendment privacy interest in telephone call record information provided by callers to their telecommunications companies. In concluding otherwise, the district court below relied on the novel logic that changes in technology and differences between the scope of the Section 215 program and that of the pen register arrangement in Smith vitiate its holding. That reasoning is a non sequitur, because those changes do not diminish the force of Smith’s basic rationale—that telecommunications subscribers relinquish any cognizable privacy interest in information that they voluntarily convey to their telecommunications companies, which is then aggregated and maintained in the business records of those companies. That doctrine is binding law and serves important functions. The notion that plaintiffs’ Fourth Amendment privacy interests have been infringed by the Section 215 program is especially implausible, given that it is entirely speculative whether any government analyst has ever reviewed, or ever would review, metadata about plaintiffs’ calls.
Even if plaintiffs possessed a cognizable privacy interest in business records consisting of telephony metadata—and they do not— producing those records to the government under Section 215 is reasonable and permissible under the Fourth Amendment’s special needs doctrine. The Section 215 telephony-metadata program serves the paramount government interest in preventing and disrupting terrorist attacks on the United States, a compelling special governmental need. And because of the significant safeguards in the program—including a requirement of court authorization based on reasonable suspicion before a human analyst accesses the data—the impact, if any, on legitimate privacy concerns is minimal.

Oral argument has not yet been scheduled. For a thorough refresher on Judge Leon’s opinion, check out Raffaela’s summary here.

Bahlul: A Longer View

Tuesday, July 15, 2014 at 6:46 AM

Steve says of yesterday’s Bahlul decision.

Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility of which is only exacerbated by today’s decision, which unanimously throws out material support and solicitation, and creates a huge headache with respect to conspiracy. In other words, for commissions the legal legitimacy of which was already in limbo, today’s decision only makes it worse insofar as it opens the door to additional years’ worth of litigation over the basic question of which offenses the commissions can try.

This strikes me as an unduly pessimistic account.  There was always going to be uncertainty and litigation after this ruling, as well as the possibility of Supreme Court review.  But far from exacerbating the fragility of commissions and weakening their legitimacy, this decision can be seen to accomplish the opposite.  The en banc Bahlul ruling is, I think, the first appellate court decision to uphold a military commission conviction on direct appeal.  The plain error analysis in the decision does leave open many questions about the availability of conspiracy charges pre-2006, but it does not appear to call into question the commissions’ recent narrowed emphasis on completed versus inchoate conspiracy charges.  More broadly, in contrast to the Supreme Court’s decision in Hamdan, which some read to signal that military commissions could not survive in the modern era, the D.C. Circuit is not here questioning the basic legitimacy of commissions, but rather is assuming their legitimacy (in fact and in tone) and is working out the invariably messy details of their proper scope.  We understandably focus on commissions as they apply to the 9/11 conspirators, and on current skirmishes about retroactivity.  But the jurisdiction of commissions as set forth in the Military Commissions Act extends far beyond the 9/11 conspirators.  If one takes Congress’s longer view that commissions are a narrow but important tool for the very long war against still-expanding terrorist threats – a tool that over time can complement other law enforcement and military tools without the burden of either retroactivity concerns or problematic interrogations – then Bahlul appears to be a step in the direction of judicial acceptance of the basic legitimacy of commissions.

Of course, only time, and the many intervening imponderables that time brings, will tell.

A Rough Overview of Today’s Ruling in Al-Bahlul

By and
Monday, July 14, 2014 at 7:45 PM

This morning, the full D.C. Circuit resolved military commission defendant Ali Hamza Ahmad Suliman al-Bahlul’s’s long-running appeal, in split fashion: by rejecting al Bahlul’s challenge to his conspiracy conviction, but also by vacating his convictions for material support and solicitation. Now it seems additional arguments regarding the conspiracy count will be considered further, by the same three-judge D.C. Circuit panel that took up al-Bahlul’s case initially; after panel review, the entire case will be returned to the Court of Military Commission Review, for evaluation of the effect, if any, of the vacaturs upon al-Bahlul’s life sentence.

The quite complex decision encompasses 150 pages and five opinions. They touch on al-Bahlul’s preservation of key arguments on appeal, the proper reading of the MCA, the application of the Constitution’s federal ex post facto clause, and other issues. With these in mind, we below offer a quick and dirty summary of each opinion in Al-Bahlul v. United States.  (The post assumes some familiarity with this case’s facts and procedural development; additional background can be found here.)

The Majority Opinion

Judge Henderson penned the opinion for the court. After reciting the facts, it makes an important, two-part procedural move: the opinion first concludes that, his attorneys’ claims to the contrary, al-Bahlul had not raised his principal arguments on appeal below, and thus forfeited them; and secondly, that as a consequence, the en banc court would review the case pursuant to the more exacting, “plain error” standard, and not according to the “de novo” standard that usually governs appellate courts’ evaluation of legal issues.

Part one turns on the factual record, which the majority parses in a fashion adverse to al-Bahlul: Read more »

Barton Gellman on the Washington Post’s NSA Story

Monday, July 14, 2014 at 5:19 PM

Over at the Washington Post, reporter Barton Gellman has a lengthy article on his (and his coauthors’) reporting methods and ethical choices in their recent story on the large cache of electronic conversations that Edward Snowden gave them. The article is excellent—interesting and illuminating in a number of respects—and I recommend reading it in its entirety. For present purposes, however, I want to flag and reflect briefly only on Gellman’s response to a post of mine about the ethics of Snowden’s actions in giving him this material. It’s a short section of the article. It reads in full:

In framing our story, we faced a paradox: How do we report on harms to privacy without compounding them? Some readers were disturbed by our quotation of private correspondence — and even of our decision to read it.

Ben Wittes, writing on Lawfare, describes Snowden’s transfer of NSA content to me this way:

The contractor gives a cache of 160,000 such conversations — some of them very lengthy — to a third party. He does so apparently indiscriminately, and he leaves to nothing more than trust that the recipient will use the material responsibly. The third party then proceeds to publish passages . . . from the correspondence of a private individual, written to a boyfriend about their apparent affair — a private individual who has been accused of no wrongdoing. . . . If the contractor in question were anyone other than Edward Snowden, we would immediately recognize this disclosure for what it is: a massive civil liberties violation of precisely the type we put intelligence under the rule of law to try to prevent.

We recognize a dilemma here, but we do not think the answer is obvious. There was an important story to tell about surveillance and privacy. We did not believe we could tell it with broad allusions to unspecified personal content in the NSA’s intercepted files. We also believed we had to give weight to the privacy and national security implications of quoting them.

Wittes writes, in reference to the woman we quoted, that although we “delicately kept her name out of the story, her whole social world will know who she is.” That is speculation. The woman tells me otherwise.

We decided from the start that we would not quote from any conversation without the speaker’s consent. The Australian woman gave us that, provided that we left out her name and other details she specified. Afterward, she wrote to praise a “fantastic article” and said her employer and friends, other than those who knew the story already, had not connected it to her.

“Thanks very much,” she wrote. “I appreciate your efforts for anonymity.”

The one example aside, Wittes makes a broader attack on “Snowden — in the unfettered exercise of his unlimited discretion — choosing Gellman as the sole check and balance on the disclosure of personal data — Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts.”

It is true that, with a few exceptions such as libel, the government does not lay down standards of publication or compel me to follow them. That is a fairly basic feature of our constitutional system. The way I make use of that freedom, and the choices The Post made for this story, are fair game for anyone to judge. We are comfortable with our choices and the way we made them.

Gellman makes two points here, and they are of very different merit, to my mind anyway. On his first point—that the Australian woman was not outed by his story to her social world, my speculation notwithstanding—I have no reason to doubt Gellman and am pleased to be corrected. I am also pleased that the woman in question liked the article, which I also praised in general for discretion with respect to highly sensitive material. “[T]he Post here appears to have done a pretty thoughtful job of deciding what information to report and what information to withhold,” I wrote. “By and large, the Post deserves credit for taking the sensitivity of this information seriously.”

That said, I don’t think Gellman’s point here bears much on the ethics, legality, or propriety of what Snowden did in giving this material to him. Snowden, after all, did not know that Gellman would make responsible judgments about what information to loose upon the public. Nor did he know that the specific woman in question would be gratified, rather than mortified, by the decisions his chosen journalists would later make. How much to expose her to journalistic scrutiny simply wasn’t under the law his decision to make.

This brings me to Gellman’s second point, which is actually non-responsive to the argument I was making. Yes, it is a feature of our constitutional system that the government can’t generally regulate Gellman’s publication decisions. But I was in no way suggesting that it should. I was suggesting, rather, that the absence of such legal standards is one reason it is so unethical to steal large volumes of the most personal data the government can legally collect and dump them willy nilly in the hands of a journalist. It is emphatically not any part of our constitutional system that the government is disallowed from regulating Snowden’s handling of material—both to protect national security and to protect privacy–or his legal right to give material to Gellman.

I recommend Gellman’s article and I commend him and his colleagues for the steps they took to protect the individuals whose material they ended up in possession of. But as you read the article, ask yourself this: Isn’t the reason we have certain privacy laws precisely to prevent individuals in government from misusing this sort of material for their own political ends? And are we really going to forgive egregious violations of privacy and civil liberties just because Snowden committed them in the name of privacy and civil liberties? And why don’t any of the privacy and civil liberties groups seem to mind what Snowden did here?

Today’s Headlines and Commentary

Monday, July 14, 2014 at 11:22 AM

According to the Wall Street Journal, the “convergence of security crises” from the Middle East to the South China Sea marks a “breadth of global instability” unseen since the late 1970s. And on that note, we plunge into weekend world developments:

The Associated Press reports that thousands of Palestinian residents of the northern Gaza Strip fled their homes on Sunday, in the wake of warnings from the Israeli military about plans to bomb the area. On Monday, and using a U.S.-supplied Patriot missile, Israel shot down a Hamas drone which was circling a city in southern Israel; the Washington Post has details.

Reuters reports that on Sunday, Russia threatened Ukraine with “irreversible consequences” after a Russian man was killed by a shell, the first fatality on Moscow’s side of the border.

On Sunday, American and Afghan officials confirmed that in the wake of Afghanistan’s election crisis, the sides have agreed to alter the government’s power structure. From the New York Times:

The candidate who is declared president after a complete vote audit in the coming weeks would then appoint either the loser, or that candidate’s nominee, to become a “chief executive” for the government, with powers to be agreed on later. Then, in the following two or three years, the Constitution would be amended to create a parliamentary democracy with a prime minister as head of government and a president as the head of state.

The Times summarizes a classified military assessment of Iraq’s security forces.  The latter document concludes that Sunni extremist informants and Iran-backed Shiite personnel have so deeply infiltrated Iraq’s operational units that Americans assigned to advise Baghdad’s forces could be at risk. And Vali Nasr has an op-ed in the Times calling for the United States to bring its diplomatic powers to bear on the crisis in Iraq. He writes,

Americans alone have the ability to bring together all the stakeholders to end the fighting. Once we take on that role, the cooperation of the three regional powers would be not only useful, but essential.

On Sunday, Secretary of State John Kerry landed in Vienna to try to rescue nuclear negotiations with Iran. The Times describes the talks as three-part, with the G6 struggling to strike a deal with Mohammad Javad Zarif, Iran’s foreign minister; Zarif attempting to come to terms with Ayatollah Khamenei and the generals of the Islamic Revolutionary Guards Corps; and President Obama struggling with members of Congress who are pushing for tougher sanctions and more pressure. The AP notes that Kerry is scheduled to hold in-depth discussions with Zarif today in an effort to assess “Iran’s willingness to make the critical choices it needs to make.”

On Sunday, Attorney General Eric Holder told ABC’s “This Week” that intelligence suggesting that bomb-makers from Yemen and terrorists from Syria are combining forces to create undetectable explosive devices is “more frightening than anything I think I’ve seen as attorney general.”

Calling Britain’s policy towards the Bashar al-Assad regime “stupid,” Syria’s deputy foreign minister, Faisal Mekdad, declared that the Brits should apologize for supporting rebel forces and work with al-Assad to combat terrorism. Here‘s the GuardianThe Guardian also says that Prime Minister David Cameron faces “acute embarrassment” for allowing a Russian state-owned arms firm that supplied weapons to the Syrian regime to exhibit fighter jets at Britain’s biggest air show this week.

Seven people have been killed and another 36 wounded as rival militias continue to battle for control of Libya’s main airport in Tripoli. Al Jazeera reports that in response to the violence, the U.N. has relocated some of its international staff outside of Libya.

In an exclusive seven-hour interview with the Guardian, to be published later this week, Edward Snowden criticized the new surveillance bill being pushed through the UK’s parliament. Teaser: “So what’s extraordinary about this law being passed in the UK is that it very closely mirrors the Protect America Act 2007 that was passed in the United States at the request of the National Security Agency, after the warrantless wire-tapping programme, which was unlawful and unconstitutional, was revealed.”

On Monday North Korea fired artillery shells into waters near the maritime border it shares with South Korea, the latest developments in what the AP describes as North Korea’s “unusually large” number of recent missile and rocket tests.

Bloomberg reports that China’s state-owned media is claiming that the iPhone’s location-tracking function could compromise Chinese state secrets.

The Lockheed Martin Corp F-35 fighter jet is America’s newest warplane. An entire fleet of those planes was grounded following a massive engine failure on one plane last month. Yesterday, Defense Undersecretary Frank Kendall explained that the failure appears to have been caused by “excessive” rubbing of fan blades, not a fundamental design flaw. Reuters reports.

Possibly coming soon to an airport near you: the Qylatron Entry Experience Solution, designed to reinvent the security check and already tested on World Cup fans in Curitiba, Brazil. Wired’s “Danger Room” explains:

Qylur isn’t keen on explaining how the technology works, but we know it has radiation and chemical sensors to pick out explosives. With a multi-view X-ray, it matches the shapes of objects it sees against a large, pre-programmed library of images to pick out prohibited items like guns and knives.

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En Banc D.C. Circuit Opinion in Al-Bahlul

Monday, July 14, 2014 at 10:29 AM

I am thumbing through the long-awaited and seemingly split ruling, which opens as follows:

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment in part and
dissenting filed by Circuit Judge ROGERS.

Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge BROWN.

Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: Ali Hamza Ahmad Suliman al Bahlul (Bahlul) served as a personal assistant to Osama bin Laden, produced propaganda videos for al Qaeda and assisted with preparations for the attacks of September 11, 2001 that killed thousands of Americans.  Three months after 9/11, Bahlul was captured in Pakistan and transferred to the United States Naval Base at Guantanamo Bay, Cuba. Military prosecutors charged him with three crimes: conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. A military commission convicted him of all three crimes and sentenced him to life imprisonment. The United States Court of Military Commission Review (CMCR) affirmed his conviction and sentence. Bahlul appeals. For the reasons that follow, we reject Bahlul’s ex post facto challenge to his conspiracy conviction and remand that conviction to the original panel of this Court for it to dispose of several remaining issues. In addition, we vacate his material support and solicitation convictions.

The Drone Memo Makes It Clear: Khadr’s Conviction Lacks Legal Foundation

Monday, July 14, 2014 at 9:15 AM

As readers of this blog will know, after the Second Circuit released a redacted copy of the OLC’s “drone memo,” those of us who represent Omar Khadr filed a motion with the U.S. Court of Military Commission Review (“CMCR”) arguing that it undermined the validity of his convictions.  In due course, the government filed its opposition to the motion, which somewhat predictably argues that the OLC’s analysis is not relevant to the case.  As we were about to file a reply, the CMCR denied the motion to vacate, albeit “without prejudice.”  Thus, the issue is not going away any time soon.

As its prosecution of Mr. Khadr was nearing trial in 2010, the Department of Defense and the CIA were contemplating a drone strike against Anwar al-Aulaki, an accused al-Qaeda operative located in Yemen.  In April 2010, President Obama placed al-Aulaki on a list of people whom the United States was authorized to kill because of terrorist activities. This contemplated action raised special legal concerns, not only because al-Aulaki was an American citizen.  CIA officials are not members of the armed forces entitled to combatant immunity, but were being asked to directly participate in the use of military force.

The worry, according to a New York Times report, was that CIA officers involved in the drone program might be exposed to war crimes liability for their actions, specifically because of Mr. Khadr’s prosecution for substantively identical conduct:

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition [of unprivileged belligerency] could be construed as a concession by the United States that C.I.A. drone operators were war criminals.

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