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Strikes in Syria: The International Law Framework

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Wednesday, September 24, 2014 at 2:25 AM

[Cross-posted at Just Security]

As is now well-known, the United States last night hit approximately 25 targets inside Syria, some of which were directed at ISIL, and some at a group that has only recently been brought to the public’s attention – the Khorasan Group, which is reportedly comprised of al Qaeda militants and led by senior al Qaeda officials from among Usama bin Laden’s inner circle.  According to a letter submitted by the United States to the United Nations on Tuesday, the Administration is justifying the strikes against ISIL as a lawful exercise of collective self-defense of Iraq. The letter then goes on to state that the strikes against the Khorasan Group “address terrorist threats that they pose to the United States and our partners and allies.”

As the letter suggests, the legal justification for strikes against ISIL is presumably not the same as that for strikes against Khorasan.  The following unpacks some of the key differences. (See also Ashley Deeks here and here and Ryan Goodman here and here for analysis of some of these issues.)

Collective Self-Defense and ISIL

The U.S. government received a letter from the Iraqi government explicitly asking for U.S. help in the fight against ISIL, thus supporting a claim of collective self-defense. According to the U.S. notification to the United Nations, Iraq has specifically requested that the United States lead international efforts to strike ISIL sites inside Syria to suppress continuing attacks on Iraq and protect Iraqi citizens. Under a theory of collective self-defense, the United States is assisting Iraq in responding to the direct and ongoing threat posed by ISIL; the threat stems in part from ISIL forces in Syria; and Syria is either unable or unwilling to quell the threat, thereby justifying an incursion into Syria’s territory.

Read more »

Transatlantic Dialogue on Int’l Law and Armed Conflict: Verdirame on Theory, Human Rights, and Conflict

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Tuesday, September 23, 2014 at 6:20 PM

The newest installment in the Transatlantic Dialogue series is now posted at ICRC’s Intercross blog. It is from Professor Guglielmo Verdirame, and it addresses the larger implications of IHRL’s expansion into the armed conflict setting, including implications for matters of theory. A preview:

The relationship between theory and practice in international law eludes easy explanations. In the history of international law there are examples of ideas shaping practice. But at times the phenomenon of international law – with its complex mix of state practice, adjudication and politics – finds directions not foreseen by any theory.

The application of human rights law to armed conflict may be a case in point. It emerged over the last two decades from the decisions of international and domestic courts without being preceded by a reflection – by jurists, policy-makers or others – on how human rights could contribute to regulating armed conflict. Can this development be accommodated within the system of international law or does it in some way challenge its architecture?

More Tightening of Internet Restrictions by China

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Tuesday, September 23, 2014 at 4:00 PM

The Chinese Communist Party (“CCP”), already infamous for its deep censorship of internet in the People’s Republic, seems to be squeezing the web’s net even tighter.

Since coming to power, President Xi Jinping has consolidated internet regulatory agencies into a new, streamlined entity: the State Internet Information Office (SIIO). According to noted China specialist Bill Bishop, the SIIO is “now clearly the lead Internet regulatory body” in China. Additionally, on February 27th, President Xi instituted a new leading group on “Internet Security and Informatization.” He chairs this himself, showing a significant level of interest in making sure the government’s organs are capable of censoring over 600 million internet users. Many Chinese officials have benefitted from this bureaucratic arrangement—though none more so than Lu Wei (鲁炜), who in his roles as the head of the SIIO, the Vice Minister for Propaganda, and the office head of the Leading Group on Internet Security and Informatization is now the top internet regulator in China. Until 2013, he was a local, albeit relatively powerful, Chinese Communist Party official in Beijing. Since then, Lu has surged.

Under Lu’s leadership, over the past month and a half, the SIIO has been relentlessly expanding its regulatory domain. The most notable example: little-reported regulations issued by the SIIO on August 7th, which have come to be known as the “WeChat articles.” The articles, which bear the official title of “Provisional Regulations for the Development and Management of Instant Messaging Tools and Public Information Services,” increase the SIIO’s power to regulate WeChat and other instant messaging media.

The move has a clear purpose in mind. In the past few years, WeChat and other instant messaging media, until recently lightly-regulated, have filled a niche left by older, more heavily-regulated microblogging platforms, such as Sina Weibo.  (Lu Wei himself is widely believed to be responsible for China’s 2013 repression of “Big V” users on the microblogging site.). WeChat has turned into an important “citizen journalist” and “social organization” platform, primarily because of the 2012 reform that allowed its users to have public accounts capable of creating and sharing text, video, and circles of subscribers. That’s butted up against a primary, if unstated, goal of Chinese officialdom—to curtail online social mobilization and collective action regardless of content, whether critical of the government or not. For this reason, what WeChat’s 438 million active monthly users say, share, and read is of supreme interest to the CCP—and to the SIIO. Read more »

The Obama Administration’s Legal Justification for Strikes Against the Islamic State In Syria

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Tuesday, September 23, 2014 at 3:38 PM

Based on comments from senior Obama administration officials who spoke on “the condition of anonymity,” Charlie Savage reports the Obama administration’s legal theory for the use of force against the Islamic State.

Savage says that the domestic legal justification is both the 2001 and the 2002 AUMFs:

Administration officials have said that as a matter of domestic law, they believe the United States has statutory authority to attack the Islamic State under Congress’s 2001 authorization to fight Al Qaeda. They also believe that Congress’s 2002 authorization of the Iraq war could provide an alternative source of such authority. The United States has been bombing Islamic State forces in Iraq since August.

Both congressional authorizations provide legal authority for the strikes in Syria, too, the officials contended, because of the Islamic State’s history of ties to Al Qaeda — notwithstanding the fact that the two groups recently split. And, they said, the 2002 Iraq war authorization can be read in part as promising to help foster a stable, democratic government in Iraq, which would include defending it from terrorist attacks.

The administration also appears to rely on Article II.  In today’s WPR letter to Congress, the President states:

I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40 [2001 AUMF] and Public Law 107-243) [2002 AUMF] and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.

In addition, Savage reports that the international law justification is the self-defense of Iraq, plus, secondarily, the self-defense of U.S. personnel in Iraq:

Senior Obama administration officials said on Tuesday that the airstrikes against the Islamic State — carried out in Syria without seeking the permission of the Syrian government or the United Nations Security Council — were legal because they were done in defense of Iraq. . . .

[T]he senior administration officials said on Tuesday that Iraq had a valid right of self-defense against the Islamic State — also known as ISIS or ISIL — because the militant group was attacking Iraq from its havens in Syria, and the Syrian government had proved unable or unwilling to suppress that threat. Iraq asked the United States for assistance in defending itself, making the strikes legal, the officials said. . . .

The United States is also asserting a right to defend its own personnel in Iraq from the Islamic State. The officials said this should be understood as supplementary authority to helping Iraq defend itself directly.

Quick analysis, more later: The President is on pretty strong legal ground under both domestic and international law.  I think the 2001 AUMF argument is weak, but the combination of the three domestic authorities (2001 AUMF, 2002 AUMF, and Article II) is an adequate legal foundation for the strikes.  However, for reasons I have argued at length, and that the President articulated in his speech on August 31, 2013, it would have been politically wise and constitutionally prudent for him to force Congress to vote on and authorize this dramatic expansion of the “war on terrorism.”

Today’s Headlines and Commentary

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Tuesday, September 23, 2014 at 3:03 PM

The United States and its allies began airstrikes in Syria with a massive assault across vast swaths of the country’s airspace last night. Foreign Policy carries the story. President Barack Obama authorized the the strikes, which, according to CENTCOM, involved a “mix of fighter, bomber, and Tomahawk land attack missiles.” Using a fleet of F-15Es, F-16s, FA-18s, B-1 bombers, F-22 Raptors, and Predator drones, the US and its allies carried out 14 attacks against ISIS targets, including “command and control facilities, training compounds, headquarters, storage facilities, a finance center, and supply trucks and armored vehicles.” According to Reuters, the Syrian Observatory for Human Rights said at least 70 ISIS fighters were killed in the strikes.

The United States also targeted a little-known group of hardened al Qaeda veterans called Khorasan. Per US intelligence, the militant organization consists of jihadists from all over the globe; more distressingly, intelligence personnel thought the group had possibly reached the operational stage of a plot that included Yemeni bomb makers in an attempt to bring down a US airliner. The core of the group is said to be veteran al Qaeda fighters from Pakistan and Afghanistan who have linked up in Syria with the al Nusra Front. The move to Syria was reportedly aimed at gaining access to Western jihadists with US or European passports, which could be used to access planes and then hijack them. AP has more.

In response to this threat, the Pentagon announced Tuesday morning that the US carried out an additional 8 Tomahawk cruise missile airstrikes near Aleppo against KhorasanAccording to the Washington Post, the attacks targeted “training camps, an explosives and munitions production facility, a communications, building and command and control facilities.” Reuters reports that 50 fighters and 8 civilians were killed in the strikes. We expect to hear much more on this as many questions remain regarding the group and US actions against them.

Today, Pentagon Press Secretary Admiral John Kirby told reporters that “last night’s strikes were only the beginning.”

The New York Times reports that the Arab states participating in the airstrikes, whose “intensity and scale…were greater than those launched by the United States in Iraq,” included “Bahrain, Jordan, Qatar, Saudi Arabia, and the United Arab Emirates.” The strikes took place around Raqqa, ISIS’s headquarters, as well as Dayr az Swar, Al Hasakah, and Abu Kamal. Earlier this morning, the US Navy uploaded a video to Youtube of the launch of Tomahawk Land-Attack Missiles from the USS Philippine Sea. Over at the National Journal, there are pictures of US forces in action, including the first-ever combat utilization of the new stealth F-22 Raptor.

This morning, the Department of Defense provided a before and after photo of a target hit during the F-22’s maiden combat voyage:

It is still unclear what the F-22 Raptor’s mission was, and where it flew from. The Daily Beast tackles some of the questions about what brought the jets, costing $150 million each, into the arena. 

You can also find a map of the attacks across Syrian airspace over at Vox, while War is Boring has a detailed rundown of the operation, its phases, and which aircraft struck what.

Why did the US go big in Syria on a single day? At the Washington Post, Dan Lamothe posits a few reasons, including the possibility of an imminent attack by the Khorasan group, as well as the risk of continued violation of Syrian airspace should the Assad government no longer welcome U.S. strikes.

NBC News reports that the Syrian Foreign Ministry released a statement today asserting that the US informed Syria’s envoy to the UN in advance of the airstrikes. A State Department spokesman confirmed that “the Syrian regime was notified that the coalition was going to take direct action” against ISIS militants in regions of the country, but took pains to point out that the US “did not seek the regime’s permission” and did not “coordinate our actions with the Syrian government.” Furthermore, she asserted that Secretary of State John Kerry did not personally send a letter to the Syrian regime. The Washington Post quotes the Pentagon’s director for operations, Army Lt. Gen. William C. Mayville Jr., as saying Syrian military radar was “passive” during the airstrikes and no attempt was made to interrupt them.

President Obama gave a statement today on the airstrikes, and the Guardian has the full transcript. The video of the speech can be found on Youtube here.

At the New York Times, David D. Kirkpatrick and Omar al-Jawoshy write that ISIS has proved resilient in the face of US airstrikes in Iraq, in part because many important Sunni tribes continue to sit the conflict out. Additionally, ISIS continues to deal devastating blows to the Iraqi army, with reports today claiming that hundreds of soldiers have been killed in mass executions by the group at a camp north of Fallujah.

The New York Times writes that ISIS militants are pummeling Sunni Kurds in northern Syria. More than 130,000 Syrian Kurds have fled from the violence near Kobani north to Turkey. It remains unclear whether the US will attempt to aim airstrikes so as to halt the deteriorating situation there.

Speaking of Kurds, Al-Monitor asserts that the US and Iran are courting rival Kurdish factions in their joint crusade against ISIS.

The BBC carries a series of maps detailing the latest situation in the region.

In a mountainous region in northern Algeria, ISIS-affiliated militants kidnapped a French citizen hours after ISIS exhorted militants worldwide to attack Westerners. The New York Times reports that the group, Jund al-Khilafah, vowed to kill Herve Gourdel if France did not halt its airstrikes against ISIS within 24 hours. Separately, ISIS released a second video featuring British journalist John Cantlie, who was kidnapped in Syria in 2012. ISIS has held at least 23 Westerners hostage so far. The BBC has more.

The Guardian reports that US intelligence clarified that there are 20-30 Americans are currently fighting in Syria for jihadist groups. Earlier statements that estimated 100 Americans included those that had gone and returned to the United States. Not all of them are warring for ISIS; the Pentagon estimated earlier this month that approximately 12 Americans work for the Islamic State.

At the BBC, Jonathan Marcus argues why air power alone will not defeat ISIS.

RIA Novosti carries comments by Russian President Vladimir Putin in response to the airstrikes, who warned that US-led airstrikes against ISIS in Syria “should not be conducted without the consent of the Syrian government.”

Kimberly Dozier of the Daily Beast analyzes President Obama’s UN plan to choke off ISIS’s foreign recruits, and suggests that its major weakness lies in its probable lack of punitive measures, due to resistance by other UN members.

Also at the BBC, Marc Weller, professor of international law at Cambridge, assesses the lingering legal questions surrounding the strikes against ISIS, while at the New York Times, Charlie Savage reports that Senior Obama administration officials claiming that airstrikes against ISIS in Syria, without permission of the Syrian government of UN Security Council, are legal because they were done in defense of Iraq, and because Syria is “unwilling or unable” to deal with the threat. 

Today, at the Center for American Progress Action Fund, Sen. Tim Kaine (D-VA) speaks about Congress’ important role in approving a new AUMF for  the fight against ISIS and its impact on war powers.

According to the New York Times, the World Food Program announced on Monday that the organization will have to scale back rations for those living in Syria by 40% next month. The agency faces a $350 million deficit in its Syria programs by the end of 2014.

Georgia has offered to host a training site for Syrian rebels, Foreign Policy reports. If approved, the site could supplement planned areas in Saudi Arabia expected to train 5,000 anti-ISIS Syrian rebels.

Semih Idiz of Turkish newspaper Hurriyet argues that Ankara cannot sit on the fence regarding ISIS, and that the group’s geographic proximity to Turkey poses significant threats to the country’s stability.

King Abdullah II of Jordan said on Monday that his country’s borders are resilient against ISIS, and its military has the “capacity to withstand an advance” by the militant group. His comments come after 11 members of the group were arrested for allegedly planning a terror attack in the Hashemite Kingdom. The Times of Israel has more.

Israeli forces killed two Hamas members that were accused of murdering three Israeli teenagers earlier this year. The death of Marwan Qawasmeh and Amer Abu Aisha near Hebron adds another chapter to a tragic saga which began this summer. The teenagers’ killing in June, and a subsequent reprisal attack by ultra-Orthodox Jews on an Arab, had precipitated a debilitating war in Gaza that ended with thousands of Palestinian fatalities and dozens of deaths among Israelis. The New York Times has more.

Ynetnews writes that despite earlier reports that Hamas was leaving the Cairo ceasefire talks with Israel in response to the deaths of Qawasmeh and Abu Aisha, the Islamist group will press on with negotiations.

The New York Times reports that the Israeli military shot down a Syrian fighter jet on Tuesday morning that had infiltrated Israeli airspace. The Russian-made Sukhoi warplane was brought down by a Patriot missile over the Israeli-controlled Golan Heights, but the pilots ejected safely into Syrian airspace.

Iran is refusing to move its Fordo underground enrichment plant due to its fear that a relocation would leave it more vulnerable to Israeli airstrikes. The plant’s move is a key US demand in negotiations with the Islamic Republic over its nuclear program that are set to expire on November 24th. The Times of Israel has more.

Ynetnews reports that the Israeli Navy’s newest submarine, the INS Tanin, has officially arrived at Israeli waters after leaving its shipyard in Germany. The Dolphin-class submarine is purported to be one of the most advanced conventional models in existence.

The Times of Israel writes that a US jury has convicted Arab Bank on 24 counts of supporting terrorism by financing Hamas. This is the first time that a financial institution has been found liable for terrorism by a US court. The suit was brought after a legal team “representing around 300 American relatives and the victims of 24 attacks carried out in Israel and the Palestinian authorities during the Second Intifadah” alleged that the bank violated the 2001 Anti-Terrorism Act.

The New York Times reports that if fresh graves in Sierra Leone are to be believed, the death toll from the current Ebola outbreak in the country is likely understated. While the Sierra Leone Health Ministry confirmed only 10 Ebola deaths in the capital Freetown as of Sunday, a point of good news compared to the numbers coming out of next-door-neighbor Liberia, the internment of over 110 Ebola victims at the King Tom Cemetery near the city raised doubts as to whether authorities are reporting the true scale of the crisis. At Foreign Policy, Siobhan O’Grady examines how colonial legacies are contouring Western responses to the outbreak.

The WHO published new figures on Monday that paint a much more dire situation than anticipated in Ebola-stricken regions. Not only does the report warn that without improvement the outbreak will reach 20,000 cases by November 2nd; it also suggests the virus could reach a critical mass sufficient to make Ebola endemic to the region. The death rate observed in the three most heavily affected countries, Guinea, Liberia, and Sierra Leone, is approximately 70%.

On Monday, the chief mediator tasked with resolving the conflict simmering in South Sudan called on all sides to “stop stalling with procedural issues,” and further asserted “neither side could win on the battlefield.” Reuters reports that the conflict between troops backing President Salva Kiir and soldiers affiliated with his former deputy, Riek Machar, has killed more than 10,000 and put the young nation of 11 million on the brink of famine.

A bomb in Peshawar killed has three people, BBC reports. Nine others were injured in the explosion, which was reportedly directed at a convoy of the paramilitary Frontier Corps. The BBC also reports on the continuing ability of Pakistani militants to strike at will in the country.

The head of the United Nations election audit in Afghanistan supported a decision to announce Ashraf Ghani as the new president without releasing the final vote count, reports the New York Times. The decision to omit final results was a requirement of Abdullah Abdullah, the runner-up, who argued that releasing the results would legitimize an election result he feels was fraudulent.

Al Jazeera reports that Houthi rebels have carried out raids just one day after a U.N.-brokered peace deal with the government came into place. The group attacked the homes of a powerful military commander, Ali Mohsen al-Ahmar, and his allies in Sanaa.

On the sidelines of the United Nations General Assembly, British Prime Minister David Cameron will meet with Iranian President Hassan Rouhani, according to the AFP. In the first meeting between leaders of the two countries since 1979, Cameron intends to urge Iran to join the coalition against the Islamic State.

The BBC tells us that China has sentenced Ilham Tohti, a prominent Uighur academic and former member of the Communist party, to life in prison on charges of trying to divide China and encouraging separatism. The development is significant, as Tohti was not an independence activist; in fact, many of his publications had encouraged building bridges between the Uighur community in Xinjiang and leaders in Beijing, and insisted that the province remain part of China.

Yesterday, the White House announced that the United States will no longer use anti-personnel landmines outside of the Korean peninsula. However, neither the United States nor the Republic of Korea will fully implement the Ottawa Convention prohibiting landmines on account of the “unique situation” of the Demilitarized Zone. Defense One has more on the story.

Judge Richard Leon has put a hold on Senator Rand Paul’s (R-KY) lawsuit against the NSA, reports Politico. Judge Leon did not offer an explanation but granted the stay while the U.S. Court of Appeals for the D.C. Circuit considers the NSA surveillance issue in a case brought by Larry Klayman.

Bloomberg reports that Congress denied the Pentagon’s request for $1.5 billion in funds to buy 8 new F-35s and 21 AH-64 Apache helicopters.

The Atlantic Council think tank just announced its newest fellow: Dave Anthony, director and writer of popular war strategy game Call of Duty. Foreign Policy has more on the pick.

Here’s your wartime interlude: War is Boring has the CIA’s Monster Manual – A Bizarre Personification of the Agency’s most hated Cliches.

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.

DCCA: USG Must Respond to Detainees’ Petition for En Banc Rehearing in Hatim

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Tuesday, September 23, 2014 at 11:00 AM

Now this is interesting.

Last week, detainees Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif together sought en banc rehearing in Hatim v. Obama, the so-called “counsel access” case.

Yesterday, the D.C. Circuit ordered the United States to respond to the detainees’ arguments supporting rehearing—a summary of which can be found here—within 15 days.

Stay tuned.

Government Files Reply in Klayman v. Obama, ACLU Moves to Participate in Oral Argument

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Tuesday, September 23, 2014 at 9:20 AM

On Friday the government filed its response-and-reply brief in Klayman v. Obama, (1) arguing that the Judge Richard Leon erred in granting plaintiff-appellee-cross-appellants a preliminary injunction against Section 215 bulk telephony-metadata collection and (2) countering Klayman et al.’s cross-appeal for additional preliminary injunctive relief against government programs that involve “internet data surveillance activity.”
Most of the government’s 45-page brief is devoted to making out the usual argument for reversal of the preliminary injunction granted below, alleging that the plaintiffs lack standing and are unlikely to succeed on the merits, and that the district court abused its discretion in balancing the equities and assessing the public interest.

On the issue of standing, the government claims plaintiffs provide only “unsupported speculation” that telecommunications companies handed over the plaintiffs’ telephony metadata to the government. On the likelihood of success of the merits, the government argues that the Section 215 program does not implicate constitutional privacy rights, and would be reasonable even if it did. As expected, the government focuses on the first issue—whether plaintiffs have a privacy interest in telephony metadata collected under the Section 215 program—contending that finding such requires disregarding Smith v. Maryland, 442 U.S. 735 (1979), whose precedential effect remains unaffected by the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473 (2014). (Recall that plaintiff-appellees used the Court’s reasoning in Riley to argue in their response brief that past Court rulings “around the time of Smith” on unlawful searches do not apply in the context of today’s technologies.) The government also takes a few jabs at amicus curiae Electronic Frontier Foundation for “mak[ing] much” of cases like United States v. Jones, 132 S. Ct. 945 (2012), and United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. Jones, 132 S. Ct. at 945, both cases about long-term GPS monitoring that the government contends are narrow in their holdings and involved location data subject to far less restriction and judicial supervision than telephony metadata.
In a few short pages, the government rejects plaintiffs’ claims that the Section 215 program violates their First Amendment rights, since any program-imposed burdens are incidental to the enforcement of laws of general applicability, and rejects the statutory arguments put forth by amicus curiae Center for National Security Studies, on the grounds that the plaintiffs have dropped their statutory claims. The government’s brief ends by rejecting the plaintiffs’ argument that the preliminary injunction granted by Judge Richard Leon should be broadened to enjoin surveillance involving the acquisition of content and Internet metadata under FISA Sections 702 and 402. The filing cites Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), for the proposition that plaintiffs can only speculate as to whether their communications have been targeted under Section 702 and have similarly provided no evidence that the government ever collected metadata about plaintiffs’ internet communications.
Also on Friday, amici curiae ACLU filed a motion for leave to participate in oral argument, scheduled for November 4, 2014. Disputing ACLU’s assertion that it has the most experience litigating the matter at hand, Klayman et al. contend that (1) the ACLU should not be granted any time that would cut into the time of plaintiff-appellees, and (2) that any time the organization is granted should come strictly after plaintiff-appellees have argued, and should be no more than five minutes.

The Financial Costs of Guantanamo

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Tuesday, September 23, 2014 at 8:05 AM

Jessica Schulberg, writing at the New Republic, has a good piece about the financial costs of Congress’s insistence on maintaining the detention facility at Guantanamo:

In 1995, the U.S. military built a small temporary food preparation station on the Guantánamo Bay Naval Base to feed an influx of Haitian and Cuban refugees. Within a year, the migrants had either repatriated to their home countries or received asylum in the U.S., and the food preparation station was used minimally, preparing about 300 meals a day. After September 11, however, the Bush administration detained hundreds of men from vaguely defined battlefields on the other side of the world and sent them to Guantánamo Bay for temporary imprisonment. These men, and the military personnel that oversaw them, needed to be fed.

The food preparation station was soon serving 3,800 meals each day. Next to the food prep station, the military hastily constructed a tent-like dining area for soldiers. The Bush administration had no long-term plans for the detention program, and the military was told to prioritize quick and inexpensive construction.They used white vinyl tension fabric for the ceilings and adorned the place with faux sea creatures, framed photographs of Guantánamo’s beaches, and wall-mounted kayaks. They called it the Seaside Galley, implemented a ban on tank tops, and declared Wednesdays “taco night.” The military built the facility to last five to ten years.

Eleven years later, the Seaside Galley is still in use. The structure, which was renamed the Camp America Dining Facility in late 2013, is now corroding. There are holes in the roof and structural support beams, and a 2011 inspection found it posed an above-average risk for food-borne illness. According to the Defense Department, “the facility has degraded to the point of unsanitary conditions for food preparation and comfortable working conditions,” and is “in jeopardy of imminent failure.” 2015 defense budget reports peg the cost of repairs at $12 million.

That hefty sum is still just a drop in the bucket of the $5 billion the U.S. government has spent operating the Guantánamo Bay detention program since it began in 2002.

At a cost of $2.8 million per prisoner per year, Guantánamo is the most expensive prison in the world. (The costliest prison in the U.S., the Colorado Supermax, at $78,000 per prisoner per year.) And the costs will continue to rise as facilities that were built to be temporary, like the Camp America Dining Facility, deteriorate. In addition to the dining facility repairs, the 2015 defense budget also calls for $11.8 million to upgrade a medical clinic that was never built to serve an aging population of prisoners. Congress earmarked another $69 million to renovate Camp 7, the top-secret facility that holds the 15-high value detainees who were tortured in CIA black sites prior to their transfer to Guantánamo. In March, The Miami Herald reported that the ground below the facility had shifted, causing the floors and walls of the building to crack.

Two thoughts: First, it is certainly true that Guantanamo is not a cost-efficient means of detaining a small number of people. The argument for Guantanamo was far more powerful when the number of detainees was much larger and the base lay outside of the habeas jurisdiction of U.S. courts. Now, however, there is virtually no legal advantage to detaining people at Guantanamo rather than in facilities in the United States, and the number of detainees renders the fixed costs of operating the facility far higher on a per capita basis. If one were making these decisions based on money, this is certainly not the way one would do it.

Schulberg, however, make a common error when she contrasts the costs and difficulty of detention at Guantanamo with criminal trial and imprisonment in the United States:

It didn’t have to be this way, of course. In 2009, before the current Congressional restrictions, a Guantánamo detainee named Ahmed Ghailani was transferred to the U.S. to stand trial before a federal court in lower Manhattan. His trial lasted just over one year and he was found guilty of planning the 1998 Kenya and Tanzania embassy bombings. He is now serving a life sentence without parole in the Colorado Supermax, where Ramzi Yousef, one of the 1993 World Trade Center bombers, and Umar Abdulmutallab, the unsuccessful Al Qaeda-trained “underwear bomber,” are also held.

“We have hundreds of terrorists, mass murderers, and truly violent, dangerous people locked up in the U.S.,” said Representative Smith. “The idea that we are incapable of safely holding people here is patently ridiculous.”

As it currently stands, there is no legal way to transfer detainees to the U.S. to stand trial. The military commissions in Guantánamo are riddled with dysfunction, and even detainees who have been cleared for release can’t be safely sent back to their home countriesin some cases because of the fact that they were held in Guantánamo. The small handful of detainees that can be charged with a crime will face the judge in a makeshift courtroom called the “Expeditionary Legal Complex.” The U.S. government built it in 2007, at a cost of $12 million dollars.

For the overwhelming majority of detainees at Guantanamo, the alternative is not criminal prosecution in the United States and lockup in a federal prison like the SuperMax. It’s law of war detention in the United States. This would surely be less expensive than Guantanamo, but it would require the construction of a Guantanamo-like facility in which to hold people. It is fair to compare the performance of military commissions at Guantanamo (which have certainly had growing pangs) with the performance of federal courts in terrorism cases. But it’s not analytically sound to compare the performance of federal courts in terrorism cases with the performance of a non-criminal system full of people who could never plausibly face trial in federal court at all.

Are We Facing an ISIS Detention Mess?

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Monday, September 22, 2014 at 11:17 PM

Over at Newsweek, Jeff Stein wonders: “What Will U.S. Forces Do With ISIS Prisoners?

Among the many unresolved issues in the campaign to “degrade and destroy” ISIS, as it’s generally known, is what to do with prisoners in Iraq or Syria, should American special operators or U.S.-backed forces be lucky enough to capture any. How deeply will we be involved in interrogating them? Will we stand by as our “moderate” Syrian rebels and our Iraqis “partners,” as the administration now calls them, go to work on prisoners? Where will detainees be held, and for how long? How will we enforce our newly embraced ban on torture, when the Iraqi security forces we’re advising employ mutilation and murder as a matter of course?

To say all this is a work-in-progress is an understatement.

I’m not sure that nearly as much of putative U.S. detention policy is realistically in play as Stein suggests. For one thing, an air campaign does not net captives. As long as U.S. force is largely a matter of air power and Iraqi and Syrian rebel forces are working the ground, Stein’s question will answer itself: U.S. forces won’t have ISIS prisoners, though the U.S. will have to look the other way as abuses of captives take place that our forces would not tolerate. Even if U.S. forces do get involved in special forces operations, as long as the numbers of U.S. forces involved remain small, they can leave whatever detention operations arise to local forces—keeping, perhaps a small number of high value detainees with immediate tactical intelligence and transferring a small number of others to U.S. law enforcement for prosecution.

A problem only arises if the U.S. ground mission grows substantially, and there too we actually have a model—one honed in the latter years in Afghanistan, where the United States and ISAF forces transferred the vast majority of detention operations to Afghan forces, keeping only a narrow swath of theater internment in its own hands. It wasn’t pretty. A lot of detainees were treated worse for the U.S.’s disengagement from detention operations. But it is almost surely what the United States will do if it finds itself coming into possession of more than a small handful of cases.

Jason Leopold on the Samir Khan Case

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Monday, September 22, 2014 at 9:59 PM

Over at VICE News, reporter Jason Leopold has this very interesting story about the FBI investigation of Samir Khan, the AQAP propagandist and editor of Inspire magazine, who was killed in the strike against Anwar Al-Aulaqi. Khan, like Al-Aulaqi, was a U.S. citizen, though the government maintains that he was not the target of the strike that killed him. The article is based largely on documents released by the FBI under the Freedom of Information Act. While Leopold notes that they are heavily redacted, he actually gleans a lot of worthwhile detail from them. The story opens:

In 2006, a high priority for the FBI was tracking the owner of a blog called Inshallahshaheed who frequently posted commentary in support of Muslim extremist groups and violent jihad.

The FBI feared that both the shifting tone of the blog entries and the dozens of videos the blogger posted to YouTube depicting terrorist operations indicated that he was planning an attack against the US, or intended to join up with militants in Iraq and Afghanistan to fight the US military.

Five years later, that blogger, Samir Khan, was killed in a CIA drone strike in Yemen alongside radical cleric Anwar al-Awlaki, who the Obama administration had secretly targeted for death, setting off a fierce debate over executive power. Both men were affiliated with al Qaeda in the Arabian Peninsula — and both men were US citizens.

“Together, Aulaqi [Awlaki] and Khan have drawn on their understanding of the United States to craft a radicalizing message tailored to American Muslims,” Lauren O’Brien, an intelligence analyst in the FBI’s counterintelligence division, wrote in September 2011, the month the two men were killed.

Julian Sanchez on the NSA Controversies and Surveillance Reform

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Monday, September 22, 2014 at 9:23 PM

Cato Institute scholar Julian Sanchez has this lengthy interview with a podcast called Free Thoughts from libertarianism.org on the NSA controversies. I haven’t listened to it yet, but I look forward to doing so.

CRS Report on Major Court Rulings Concerning Enemy Combatant Detainees

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Monday, September 22, 2014 at 1:21 PM

The Congressional Research Service has put out a new report entitled “Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings.”

The summary reads, in part:

This report discusses major judicial opinions concerning suspected enemy combatants detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance. In particular, it summarizes notable decisions which have (1) addressed whether the Executive may lawfully detain only persons who are “part of” Al Qaeda, the Taliban, and affiliated groups, or also those who provide support to such entities in their hostilities against the United States and its allies; (2) adopted a functional approach for assessing whether a person is “part of” Al Qaeda; (3) decided that a preponderance of evidence standard is appropriate for detainee habeas cases, but suggested that a lower standard might be constitutionally permissible, and instructed courts to assess the cumulative weight of evidence rather than each piece of evidence in isolation; (4) determined that Guantanamo detainees have a limited right to challenge their proposed transfer to foreign custody, but denied courts the authority to order detainees released into the United States; (5) held that the constitutional writ of habeas does not extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan; and (6) determined that Guantanamo detainees may challenge conditions of their detention. Finally, the report discusses a few criminal cases involving persons who were either involved in the 9/11 attacks or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities, as well as reviews of military commission cases in federal appellate courts.

Government Asserts State Secrets Privilege in Defamation Suit Against Non-Profit

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Monday, September 22, 2014 at 11:30 AM

Last week—and in a somewhat unusual development—the Department of Justice filed a motion to intervene, stay, and dismiss a private lawsuit against a non-profit organization, citing the state secrets privilege. In short, the United States believes that the litigation’s further progress might risk the release of national security information. 

United Against Nuclear Iran (UANI) is a private non-profit group that describes its core mission as “ending the economic and financial support of the Iranian regime by corporations, firms, entities, and individuals at a time when the international community is attempting to compel Iran to abandon its illegal nuclear weapons program, support for terrorism and gross human rights violations.”  In May 2013, the organization accused Victor Restis, a Greek businessman, of providing “shipping and financial services to the Iranian regime and facilitating the expansion of its oil industry.”  Restis filed suit against UANI in the Southern District of New York for defamation.
The lawsuit swiftly attracted the attention of the Department of Justice. Last month, Matt Apuzzo from the New York Times reported that “a federal law enforcement official who was briefed on the case and was not authorized to discuss confidential matters” disclosed that the government was “concerned enough about [the release of UANI's internal documents] that government lawyers are quietly mediating settlement talks to try to end the lawsuit.”  Against this backdrop, the government has written letters and filed motions with S.D.N.Y. Judge Edgardo Ramos in an effort to halt discovery and dismiss the suit.
In a letter dated April 9, 2014,  the government requested time to determine whether a special evidentiary privilege for law enforcement matters might protect information at issue in discovery of the case.  Mr. Restis’ attorney responded five days later, writing:

Read more »

Today’s Headlines and Commentary

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Monday, September 22, 2014 at 11:21 AM

After more than two months of uncertainty and tension in Afghanistan over a presidential election gone awry, the two presidential candidates, Abdullah Abdullah and Ashraf Ghani, have reportedly agreed to a power-sharing deal. The New York Times explains that the deal, brokered by Secretary of State John Kerry, will make Mr. Ghani the president of the country, while Mr. Adbdullah will serve as the chief executive of the government.

On Saturday, the U.S. released 14 Pakistani detainees from Bagram prison in Afghanistan. Reuters reports that the detainees were repatriated to Pakistan, and the news came from Justice Project Pakistan, a legal organization representing several Bagram detainees.

Over the weekend, ISIS freed 49 Turkish hostages from Syria.  The news was met with applause and good cheer, but the L.A. Times can’t help but ask: what did Turkey do or offer in order to get its citizens back home safely? The Turkish government is insisting that it did not pay a ransom in exchange for the prisoners, but is reluctant to give many more details.

On Friday, President Obama signed a $1 trillion stopgap-spending bill. The bill included provisions authorizing U.S. support of Syrian rebels, which the president had specifically requested be included. The Hill has more.

In the wake of the United States’ recent increase of support of the rebels in Syria, Greg Myer, over at NPR, considers past efforts that the United States has taken to support rebel movements, and explains that those have met with mixed results.

NBC News reports that Army Gen. Marin Dempsey has called on more Arab nations to join in the U.S.-led coalition to defeat ISIS.

While the U.S. waits for more Arab countries to join its coalition, France has launched its first airstrike on ISIS targets. The Independent tells us that French warplanes successfully destroyed an ISIS logistics depot in northeastern Iraq on Friday.

The Washington Post discusses the inception of a new organization, the Counter Extremism Project. The organization’s mission is to expose companies and individuals who have helped to funnel money to extremist organizations, like ISIS.

Reuters reports that the United States plans to deliver 10 Apache helicopters to Egypt to help support Cairo’s counter-terrorism efforts.

Meanwhile, Egypt is to host talks between Fatah and Hamas in the coming week, according to the Guardian. The two rival factions hope to reconcile, so that they might put forwarded a united front when negotiating with Israeli delegates in Cairo later in the week.

Yemen’s two warring sectarian factions have signed a peace agreement. Recent violence in the country has claimed the lives of nearly 150 people and caused political turmoil. The LA Times explains that the agreement calls for an immediate ceasefire, but spats of violence broke out again in Sanaa yesterday before the agreement was officially signed.

A 60 Minutes interview with Former Defense Secretary Leon Panetta aired last night. In the interview, Panetta criticizes President Obama’s prior military strategy of completely pulling out troops from Iraq. Time covers the interview.

China and Iran will conduct joint naval exercises, according to the Times. In an unprecedented move, China has sent two warships to Iran, and the two countries will conduct four days of joint exercises.

Negotiations with Iran over its nuclear capabilities may have hit a bump in the road. The LA Times explains that multiple political parties in Iran are unhappy about the proposed plan to disconnect, rather than dismantle, Iran’s centrifuges, in a move that could save face with Iranians: the government could say that it did not dismantle its nuclear program, which it has insisted it will never do. Conservatives in Iran are unhappy with the deal, however, calling it a “stunt,” while reformists who favor a deal aren’t pleased with it either, as they think it doesn’t go far enough.

There was some courtroom confusion in federal court in New York on Friday. The Times reports that Adel Abdul Bary, an Egyptian terror defendant, was prevented from pleading guilty to charges that he had assisted Osama bin Laden in passing messages claiming responsibility for the deadly bombing of two U.S. embassies in East Africa in 1998. Judge Lewis Kaplan, instead of accepting Barys’ guilty plea, asked for more information concerning the government’s decision to allow the defendant to make the plea: the plea would carry a maximum sentence of 25 years in prison, while other charges that were on the table would have put Adel Bary in jail for life, had he been found guilty after a trial.

The Post highlights the Department of Homeland Security’s pretty terrible employee retention rate: “employees have left DHS at a rate nearly twice as fast as in the federal government overall, and the trend is accelerating, according to a review of a federal database.” This issue is a worrying one, as it might mean that the agency isn’t fully able to stay on top of evolving threats.

The Times takes a look at the Obama administration’s nuclear track record. When a candidate running for office, President Obama was staunchly anti-nuclear, and yet, he has helped to spearhead a “nationwide wave of atomic revitalization that includes plans for a new generation of weapon carriers.”

CNN reports that three Afghan National Army soldiers have disappeared somewhere in Massachusetts. The soldiers were in Massachusetts for training, and were not heard from after they went for a trip to the local mall.

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.

 

 

Ongoing “Covert” Training of Syrian Rebels: But Is It Still Covert . . . , And, If So, Why?

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Monday, September 22, 2014 at 8:45 AM

[Cross-Posted at Just Security

Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals,” for three specified purposes, including “defending the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL), and securing territory controlled by the Syrian opposition.”

Earlier in the week, in a hearing of the Senate Foreign Relations Committee, Senator Tom Udall argued that in order to evaluate whether to authorize such spending, legislators had to learn more about the effectiveness of the U.S.’s ongoing efforts, for more than a year, to train those same Syrian rebels.  He asked Secretary of State Kerry for such details:

Everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years.  And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?

Secretary Kerry’s response was . . . that he is not at liberty to respond:  “I hate to do this, but . . . I know it’s been written about in the public domain that there is, quote, ‘a covert operation.’  But I can’t confirm or deny whatever that’s been written about and I can’t really go into any kind of possible program.”

Worse than that–the Executive’s view might be that most of Congress, including the Senate Foreign Relations Committee itself, cannot be informed about this “covert action” program.  As Andy Wright recounted, Committee Chairman Menendez lamented that:

[T]his is a problem that both the administration, as well as the Senate leadership must be willing to deal with because when it comes to questions of being briefed on covert operations, this committee does not have access to that information. Yet it is charged with the responsibility of determining whether or not the people of the United States should, through their representatives, support an authorization for the use of military force.  It is unfathomable to me to understand how this committee is going to get to those conclusions without understanding all of the elements of military engagement, both overtly and covertly.  And so I am foursquare with you, but this is a challenge – I’ll call it for lack of a better term a procedural hurdle – that we’re going to have to overcome if we want the information to make an informed judgment and to get members on board.

(We do not know whether, in response to the Chairman’s complaint, the Administration has taken any steps to offer the Senate Foreign Relations Committee and its House counterpart access to information about the covert training program.)

This inability of government officials to speak publicly of the ongoing aid program–and perhaps not even to be able to brief the Senate Foreign Relations Committee and other relevant committees about it–appears a bit strange, to say the least.  After all, one year ago, in another Senate Foreign Relations Committee hearing, in response to a question from Senator Corker about why U.S. aid to the Syrian rebels had been delayed, Secretary of Defense Hagel acknowledged that in “June of this year . . . the president made a decision to support lethal assistance to the [Syrian] opposition, as you all know,” and that “[t]his is, as you know, a covert action.”

Then, on Thursday of last week, in debating the legislation to authorize overt training of the rebels, Senator Graham said on the Senate floor:  “I think the issue people are focusing on about the continuing resolution is the changing of the training of the Free Syrian Army from title 50, a covert program, to title 10, the Department of Defense, where it will be out in the open.”  160 Cong. Rec. S5749; see also id. at S5739 (Sen. Paul) (“We did give arms and assistance to the rebels through secret CIA operations, through our allies, through our erstwhile allies.  We gave 600 tons—let me repeat that—we gave 600 tons of weapons to the Syrian rebels in 2013 alone.”).

The rebel training operation, in other words, is not only an open secret, but has also been publicly acknowledged, to various degrees, by several Senators and by the Secretary of Defense.  Perhaps certain details of the operation must remain classified in order to, for example, protect sources or the promised secrecy of particular agreements with parties overseas.  But what is the justification for officials not speaking publicly at all, even in general terms, about the nature and effectiveness of the ongoing Syrian rebel aid, and for (apparently) refusing to brief Senators on the committee charged with overseeing the conduct of U.S. foreign relations?

The fact that the President originally authorized the rebel training (according to the SecDef and Senators Graham and Udall) as a covert action–i.e., pursuant to a covert action “finding” described in 50 U.S.C. 3093(a)–is not a reason for such categorical secrecy requirements.  As Marty has explained, this gets it exactly backward:

[T]he primary function of the [covert action] statute is to prescribe what must happen if an activity is intended to be unacknowledged, rather than prescribing whether an activity can or should be acknowledged in the first instance.  And this brings us to a common cart-and-horse misunderstanding:

It is often assumed that a particular activity must remain unacknowledged because the President has signed a covert action finding authorizing that activity.  But that gets things backwards.  Rather, the President must sign a covert action finding if–that is, because–he has already determined that U.S. involvement in an activity to influence political, economic, or military conditions abroad should or must be unacknowledged–a determination that . . . is a function of diplomacy and policy, not domestic law.

The President’s covert action finding, in other words, is not the source or reason for the nonacknowledgement, but is instead a legally required incident of an independent decision, made for nonlegal reasons, that U.S. involvement in the operation must not be acknowledged.

Nor would the CIA’s possible involvement in the Syrian aid operation–as recounted by anonymous “officials” in this story a year ago–create a legal barrier to officials’ public discussion of the operation.  Marty has also explained that there is nothing in the law that requires secrecy of CIA operations:  As CIA General Counsel Caroline Krass recently attested, the CIA can engage in “overt” activities (i.e., activities in which U.S. involvement is acknowledged).  And as the example of the bin Laden “Operation Neptune Spear” demonstrates, an operation involving the CIA that was once “covert”–in the sense of being originally unacknowledged and the subject of a covert action finding–can nevertheless be openly discussed, if and when the President determines that U.S. involvement need no longer be unacknowledged.

It’s hard to imagine why U.S. involvement in the training of Syrian rebels must remain officially unacknowledged even now, in light of Secretary Hagel’s public acknowledgment, and in light of the very public debate and congressional vote that just occurred on this very subject:  After all, going forward there won’t be any secret that the U.S. is training the rebels; so why must the current operation remain unacknowledged?

For all we know, there may be some good reason for officials’ inability to discuss the topic in a Senate hearing or in a closed session with the Senate Foreign Relations Committee, even as a general matter.  (Each of us has previously explained what the diplomatic and operational–not legal–reasons might be for official nonacknowledgement of U.S. involvement in particular actions overseas.  See, for example, this post, and this one.  Those reasons generally do not, however, preclude sharing information with members of Congress.)  If there is such a justification, however, it is not that the President issued a covert action finding, or that the CIA was involved . . . or, more generally, that the law requires continued nonacknowledgement or refusal to share information with particular legislators.

The immediate need for greater transparency, at least in the Senate, may have passed–after all, Congress has now voted to authorize overt training of Syrian rebels.  Even so, the continuing legislative and public debate about the U.S. campaign against ISIL should not be unduly limited by nonacknowledgement and secrecy about operations except where there are good operational and/or diplomatic reasons for such constraints.  The executive and Congress alike should understand that the covert action statute, and the law more generally, do not foreclose transparency.

Lawfare Podcast Twitter Feed

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Monday, September 22, 2014 at 7:56 AM

The Lawfare Podcast now has its own Twitter feed. Click here to follow it for announcements of new episodes when they go up on the podcast server (sometimes a day or two before we announce them on the site on Saturday mornings), upcoming episodes, and other fun stuff.


The Week that Will Be

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Monday, September 22, 2014 at 12:00 AM

Event Announcements (More details on the Events Calendar)

Monday, September 22nd at 10:30 am: The East-West Center hosts an event entitled Trade and Innovation: India’s and China’s Diverse Experiences with the Information Technology Agreement. Dr. Dieter Ernst, Senior Fellow at East-West Center will address why China’s electronics industry benefited substantially from the ITA, while in India, gains from trade liberalization were overshadowed by major costs that are eroding domestic electronic manufacturing.

Monday, September 22nd at 12:15 pm: The New America Foundation hosts Arif Jamal, author of Calls for Transnational Jihad, Lashkar-e-Taiba 1985-2014 for a discussion on The Rise of Lashkar-e-Taiba and that the terrorist organizations history can tell us about its future. Josh White, Deputy Director of the South Asia Program at the Stimson Center will moderate the conversation. RSVP here.

Monday, September 22nd at 4:45 pm: At the Center for Strategic and International Studies, Bob Schieffer, Juan Zarate, Jon Alterman, Julianna Goldman, will participate in a Schieffer Series event entitled Jihad 3.0. Register here.

Tuesday, September 23rd at 10 am: The Bipartisan Policy Center will release a new threat assessment of Jihadist Terrorism authored by Peter Bergen. The report will examine threats from ISIS, Al-Qaeda and other jihadist groups, cybersecurity concerns, and drone strikes and drone proliferation. Mary Habeck, Peter Bergen, and William McCants will speak. RSVP here

Wednesday, September 24th at 12 pm: Nearly three years after the fall of Muammar Qaddafi, Libya is in the throes of a bitter civil war. At a Carnegie Endowment event on Libya’s Civil War, Frederic Wehrey will present the findings of a new Carnegie paper on the institutional roots of Libya’s violence and present options for how the United States and the international community can assist. Wolfram Lacher and Dirk Vandewalle will act as discussants and share their own insights. Michele Dunne will moderate. More information here

Wednesday, September 24th at 3:30 pm: The Carnegie Endowment hosts Samir Saran to discuss India First: Modi’s Approach to Foreign Policy. Mr. Saran will explore ow the prime minister’s preferences, legacy imperatives, and ambitious agenda to transform the Indian economy could finally define a new and pragmatic approach to the region and the world. RSVP here

Wednesday, September 24th at 3:30 pm: Georgetown University Law Center will host a panel discussion on the National Security Implications and Legal Solutions for 3D Printing. More information here.

Thursday, September 25th at 12 pm: If there is one event you make it to, go do the Heritage Foundation’s important discussion on The Legal Basis for Military Action Against ISIS. The panel discussion will include Steven G. Bradbury as well as Lawfare’s Bobby Chesney and Steve Vladeck. Cully Stimson will moderate. RSVP, or watch online, here. Read more »

The Foreign Policy Essay: Al Qaeda’s Re-launch in South Asia

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Sunday, September 21, 2014 at 10:00 AM

Lost in the hubbub over the rise of the Islamic State and the Obama administration’s move to war in Iraq was the Al Qaeda core’s declaration of a new affiliate in South Asia—long a home to jihadist activity. C. Christine Fair, a colleague of mine at Georgetown, preeminent South Asia expert, and chef d’evil cuisine, explains why Zawahiri might find the region ripe for expansion.

***

On September 30, 2014, the head of al-Qaeda, Ayman al-Zawahiri, released a video in which he declared a revivified and more ambitious al-Qaeda presence in South Asia. This ostensibly newly branded franchise of al-Qaeda in the Indian subcontinent is called the Jamā‘at Qā‘idat al-Jihād fī Shibh al-Qārra al-Hindīya (the “Organization of the Base of Jihad in the Indian Sub-Continent” or simply Al Qaeda in the Indian Subcontinent, or AQIS). The leader of AQIS is a well-known Pakistani Islamic scholar with long-standing ties to al-Qaeda known by the name Sheikh Asim Umar. Umar has long operated freely in Pakistan, where he has authored many tomes such as Teesri Jang-e-Azeem aur Dujjal (“The Third World War and the Anti-Christ”), Dujjal ka Lashkar: Blackwater (“Blackwater: the Army of the Anti-Christ”); and Burmuda Tikon aur Dujjal (“The Bermuda Triangle and the Anti-Christ”). Notably, all of these publications are in Urdu and are widely available in Pakistan and on the Internet. Helpfully, the online versions provide a list of bookstores throughout Pakistan (along with their phone numbers) from which one may procure the tomes in question.

Fair photoAccording to Zawahiri, AQIS would raise the flag of jihad in the subcontinent and usher a return to Islamic rule, which was the law of the land until the “infidel army” took it over and divided it. Zawahiri anticipated that AQIS would be welcomed by the Muslims in “Burma, Bangladesh, Assam, Gujarat, Ahmedabad, and Kashmir” and asserted that this new organization would liberate Muslims of South Asia from oppression and injustice.

What explains this move and its timing? How important is it?

Something Old and Something New

Despite the fanfare surrounding this announcement and claims to novelty, al-Qaeda has had a long and simmering presence in the South Asian subcontinent. Afghanistan, which sits at the crossroads of South and Central Asia, hosted al-Qaeda and its deceased supreme leader, Osama Bin Laden, from 1996 until late 2001, when the organization and its leadership dispersed into Pakistan, Iran, and elsewhere following the October 2001 U.S.-led invasion. As is well known, Afghanistan and Pakistan served as two of the most important countries in planning and executing the 9/11 terror attacks, which precipitated the U.S.-led military action in Afghanistan and sustained counterterrorism operations in Pakistan.

Mullah Omar, the leader of the Afghan Taliban, had long been wary of Bin Laden and requested that he keep a low profile. Bin Laden did not abide by Omar’s diktat and even masterminded the attack on the U.S. embassies in Kenya and Tanzania in 1998 from his Afghan redoubt. The attacks provoked U.S. retaliatory cruise missile strikes on al-Qaeda camps near Khost and Jalalabad in eastern Afghanistan. Following that affair, the Taliban made Bin Laden promise to desist from planning future attacks on U.S. interests from Afghanistan and even looked for ways of handing him over to an Islamic court. Despite these reservations, Bin Laden’s al-Qaeda continued to remain co-located with the Taliban, in part because handing him over would make it appear as if the Taliban were cowards deferring to foes of Islam. Read more »

The Lawfare Podcast, Episode #92: Benjamin Wittes on “A Constitution Under Chronic Stress”

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Saturday, September 20, 2014 at 1:55 PM

This week, the nation once again celebrated Constitution Day, for which Ben gave an address at Kenyon College, which we provide to you in full. In his talk, Ben covered what he calls a “Constitution Under Stress,” and how the post-9/11 world has catalyzed a prolonged debate over liberties in the United States and in turn, how the Constitutional framework has shaped our response to the challenges of drones, cyber security, surveillance, detention, and extended overseas military operations. Ben provides an overview of the challenges that remain in sorting out these issues and offers a few thoughts on how these tensions can be reconciled.

The Encryption Wars Continue

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Saturday, September 20, 2014 at 12:31 PM

For quite a while it has been the case that properly implemented encryption will defeat efforts to crack it (at least using current technology). Yet it has been the case for an equally long time that very few people actually use encryption to protect their vital secrets – not journalists, not criminals, and most assuredly not the (perhaps mythical) “average layman user.”

Why is that the case? Nobody knows for sure of course, but speculation reasonably focuses on a range of possibilities: ignorance; complexity; laziness and hubris lead the list. User error is a frequent issue. Of all of these, I tend to think complexity and laziness lead the list – that is, most encryption programs are difficult to use and need to be installed. They don’t have “one button” applications and they are not “on” by default.

That seems to be changing. And the reason is, as many have predicted, less about the utility of encryption and more about the business necessity of appearing resistant to government surveillance. That explains Apple’s recent decision to make encryption the default in its new operating system iOS8, that is being delivered in the new iPhone6. For data stored on a device the user (and only the user) will have the passphrase to unlock the data. The move is so widely lauded that Google moved quickly to follow with its own Android operating system.

There are a number of legal and practical implications of this transition, almost all of which reset the balance between security and liberty in a way that tends to favor more libertarian impulses:

  • The transition will essentially render moot last terms decision in Riley v. California (proving once again that by the time the Supreme Court addresses a technological issue the issue is irrelevant!). Riley held that, as a general matter, law enforcement will need a search warrant to access data on a cell phone. While that certainly raises the bar for access, it does not do so to an impossible degree. Probable cause is, after all, a standard that law enforcement establishes every day around the country.
  • By contrast, however, the new operating systems act technologically to divest Apple and Google of any ability to respond to a warrant – they can’t produce what they don’t have. So this Fourth Amendment question now becomes converted to a Fifth Amendment question – whether or not the owner of the cell phone can be compelled to unlock his phone by providing the passphrase. Unlike the Fourth Amendment context, this privilege is absolute. If courts recognize the Fifth Amendment protection then the data on the phone is absolutely unavailable to law enforcement – which would be a significantly greater crimp in law enforcement (or counter-terrorism) investigations.
  • That makes the growing debate over the extent of a Fifth Amendment privilege even more salient. When last I wrote about it, the latest word was an Eleventh Circuit case In Re: Grand Jury Subpoena (US v. Doe), which held that disclosure of the passphrase could not be compelled. That debate is not, however, over. Earlier this year, the Massachusetts Supreme Judicial Court ruled to the contrary. In Commonwealth v. Gelfgatt, the Court held that disclosing the passphrase disclosed only the capacity to decrypt, which was a “foregone conclusion” and did not implicate any proof of authenticity, control, or knowledge. That seems to me a highly suspect conclusion – but it is evidence that the legal question is not settled in the least.
  • Notwithstanding all of the strum und drang there may actually be less to these announcements than meets the eye. Why? Because the encryption default lock applies =only= to data on the phone itself. As we’ve noted before, unless you encrypt data before you store it with a cloud service provider then it is the provider’s encryption, not the user’s, that matters. And, of course, most Apple users store data in the iCloud (they like to synchronize data across all their devices) and Android users store their data in Google’s cloud storage for the same reason. And that sort of synchronicity remains the default “on” function in both operating systems. So, all that data stored behind a hard encryption lock on your phone is accessible from your cloud storage provider as a back up. And that data may sometimes be accessed with a subpoena – that is, on a basis requiring less than probable cause. So the only way to be completely privacy protective is to turn off the cloud storage portions of your new iPhone or Android tablet – hardly a way to advance efficiency and productivity (and also, perhaps, a sign that law enforcement fears are overstated).
  • Meanwhile the same business reasons that are driving the adoption of encryption are likely to frustrate any effort to end the synchronicity default. Apple makes its money by offering you the seamless cross-platform product. And Google’s business model involves its access to your data for advertising purposes. So don’t expect a default “off” switch for cloud storage anytime soon.
  • Finally, it is worth pondering the larger individual trade-off question. While I certainly respect the opinion of those who perceive government surveillance as a threat, I sometimes wonder if they are forgoing too many technological advantages in the pursuit of personal privacy. Encrypting your data and turning off your synchronization means that if you forget your passphrase your data is gone … totally gone. It means that you can’t automatically see a picture you took on your iPhone when you go to create a family newsletter on your Mac. One answer, of course, is differential encryption (protecting only sensitive data), which is what I do with my client files. But overall, we sometimes don’t recognize, I think, the efficiency/security tradeoff.