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Today’s Headlines and Commentary

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Wednesday, November 12, 2014 at 2:49 PM

As Congress enters its lame-duck session, Foreign Policy outlines the nine ways that foreign policy will dominate the agenda.

Senator Tim Kaine (D-VA) anticipates that the Senate will soon consider an Authorization for Use of Military Force (AUMF) against the Islamic State. The Virginian-Pilot quotes him as saying, “I think you’ll see us move to debating the authorizations and hopefully promptly moving to a vote.” The Senate Foreign Relations Committee is expected to turn toward this issue in both a public meeting and private intelligence briefing today. Here at Lawfare, Bobby, Jack, Matt Waxman, and Ben proposed a draft AUMF “to get the discussion going.”

Today, Iraqi Prime Minister Haider al-Abadi announced a reorganization of the Iraqi military. The Associated Press reports that 26 officers have been relieved of their positions, 10 others have been retired, and 18 new commanders have been appointed. Al-Abadi affirms, “The aim is not to punish anyone, but rather to improve our military performance.” Since September, the U.S.-led coalition against the Islamic State has killed 860 people in Iraq and Syria.

Three militant attacks in and around Baghdad today have killed 17 people and wounded 40 others. The AP informs us that although no one has claimed responsibility for the bombings yet, “they all bore the hallmarks of the Islamic State group.”

In China, President Obama and Chinese President Xi Jinping today announced new bilateral agreements on greenhouse gas emissions and the military. The Wall Street Journal notes that these follow deals on tariffs and visas, which were reached before the beginning of the Asia Pacific Economic Cooperation summit this week.

The New York Times profiles President Xi, whom it describes as “a strongman with bold ambitions at home and abroad.”

Today, the White House released a statement, affirming that the U.N. Convention Against Torture applies both inside the territorial United States and anywhere abroad where it exercises governmental jurisdiction, such as Guantanamo Bay, Cuba. In Geneva, State Department officials are answering questions about the changed policy before the Committee Against Torture. The Times has the story. Lawfare shared the news here too.

Carol Rosenberg of the Miami Herald informs us that on Friday, Navy Captain Judge J.K. Waits released an interim order, which stops female soldiers from handling Guantanamo detainee Abd al Hadi al-Iraqi during transports from his cell to his legal meetings.

Meanwhile, Syrian prisoner Abu Wa’el Dhiab is appealing U.S. District Court Judge Gladys Kessler’s opinion, upholding the force-feeding of the hunger striker. The Miami Herald has that story, as well.

Yesterday, U.N. special representative to Syria Staffan de Mistura formally proposed the establishment of an “action plan” leading toward a ceasefire in the beleaguered city of Aleppo. Syrian President Bashar al-Assad has deemed the idea “worth studying.” The Washington Post shares details.

Newsweek explains to us how the Central Intelligence Agency’s vetting process for “moderate” Syrian rebels works—or doesn’t.

Breaking Defense examines the U.S.’s history of arming rebels to fight proxy wars and offers some advice for our current foray in Syria.

U.S., Iranian, and European diplomats affirmed yesterday that they may need to extend nuclear negotiations beyond their self-imposed November 24 deadline, as few advancements have been made during the current round of talks in Oman. The Wall Street Journal has more on the effects of another extension.

The Wall Street Journal also reports that Moscow has signed an agreement with Tehran to build two more nuclear reactors “at the Russian-built Bushehr plant in Iran.”

Yesterday, top NATO commander U.S. General Philip Breedlove affirmed that Russia has been reinforcing its bases in the disputed territory of Crimea. According to the AP, it is unclear if this support includes nuclear weapons.

Reuters reports that shelling in eastern Ukraine has put increased pressure on the crumbling ceasefire signed by the Ukrainian government and separatist forces earlier this fall.

U.S. Secretary of State John Kerry travels to Jordan today. According to Reuters, Secretary Kerry will speak with Jordanian King Abdullah about tensions in nearby Jerusalem and the U.S.-led coalition against the Islamic State.

The Post examines the number of travel miles (602,320!) that Secretary Kerry has already logged while in office so far.

Following the conclusion of the Asia Pacific Economic Cooperation summit, President Barack Obama travels to Myanmar, where democratic transitions have stalled, following ethnic tensions between Buddhists and Muslims there. McClatchy has more on the situation there.

According to an unidentified Pakistani security official, a U.S. drone strike in North Waziristan killed six foreign militants yesterday. The Times has the story.

The Post informs us that Marines withdrawing from Afghanistan are working on “stripping bases to the basics.” Aware of the limitations of the Afghan Army and fearful of allowing U.S. equipment to later fall into the hands of militants, as happened with the Islamic State in Iraq, American forces are destroying or removing infrastructure, leaving “bare-bones” bases.

The AP explains how the Diplomatic Security Service is training to stop the next Benghazi.

U.S. soldiers are suing a number of big name banks, including Barclays, HSBC, Royal Bank of Scotland, Credit Suisse, Standard Chartered, and Bank Saderat for conspiring with Iran “to withhold certain data from transactions, enabling them to circumvent monitoring by U.S. regulators.” The soldiers allege that these actions allowed Iran to funnel at least $150 million to militant groups, which then carried out attacks against U.S. forces. Bloomberg reports the story.

The Times examines autonomous weapons systems and the regulation of them. Here at Lawfare, Matt Waxman and Ken Anderson highlight their recent article, which argues that “with proper international and national-level processes, emergent autonomous weapon systems can be effectively regulated within the existing law of armed conflict framework.”

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

U.S. Delegation Asserts Article 16 of Convention Against Torture Applies Outside U.S. Territority in Certain Circumstances, but Law of Armed Conflict “Takes Precedence” In Situations of Armed Conflict

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Wednesday, November 12, 2014 at 2:10 PM

As previewed by Charlie Savage in the New York Times this morning, the U.S. delegation appeared before the Committee Against Torture in Geneva today and announced a modest but important change in the U.S. Government position regarding extraterritorial application of Article 16 of the Convention Against Torture (which prohibits cruel, inhuman, and degrading treatment in “territory under U.S. jurisdiction”).  At the same time, the U.S. delegation reaffirmed that U.S. military operations are governed by the laws of war, not the CAT, although the U.S. delegation carefully avoided using the fraught phrase lex specialis.  As I explain below, however, this should not necessarily be viewed as a concern from a human rights perspective.

In her opening statement, Acting Legal Adviser Mary McLeod stated that the obligations in Articles 2 and 16 of the CAT “extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘all places that the State Party controls as a governmental authority.’” She added that “We have determined that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”

This is a welcome clarification. As Harold Koh had noted in his memo on the CAT, former Legal Adviser Abe Sofaer and I had both taken the position that Article 16 of the CAT applies outside the territory of the United States in some circumstances. Harold quoted from a memorandum I had written to the Secretary of State in 2005 arguing that Article 16 should apply in Guantanamo. I would add that the newly stated U.S. position does not reverse what the U.S. delegation told the CAT committee in 2006. Then, the U.S. delegation did not state that Article 16 does not apply outside U.S. jurisdiction. Instead, the U.S. delegation told the CAT that “the U.S. does not accept that de facto control equates to territory under its jurisdiction.” The U.S. Government position announced today that Article 16 applies to “all places that the State Party controls as governmental authority” appears to reaffirm that the U.S. continues to believe that de facto control does not trigger extraterritorial obligations under Article 16, but that de jure control will do so.

While acknowledging for the first time that Article 16 applies outside the United States in some circumstances, the U.S. delegation was careful to state that “the law of armed conflict is the controlling body of law with respect to the conduct of hostilities and the protection of war victims.” A statement issued by the NSC spokesman today adds some additional gloss on this point: “Although the more specialized laws of war—which contain parallel categorical bans on torture and other inhumane treatment in situations of armed conflict—take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application.” In other words, the U.S. Government has reaffirmed that the law of armed conflict, or international humanitarian law, is the lex specialis applicable to U.S. military operations. Although the U.S. was criticized (and I was personally pilloried) for stating this same position in 2006, this was a longstanding U.S. view. Indeed, as I noted in this Lawfare post last month, Harold Koh had stated in his memorandum on the extraterritorial application of the ICCPR that “U.S. military operations in the conduct of the armed conflict with al Qaida (and associated forces) in Afghanistan and elsewhere are properly governed by relevant standards of international humanitarian law, not international human rights law.”

The U.S. delegation also added today that “a time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict.” This is clearly correct, and the U.S. delegation had made the same statement in 2006.

Finally, I should note that the continuing U.S. position that the law of armed conflict takes precedence over the CAT as applied to U.S. military operations should not necessarily be problematic from a human rights perspective. When it gave its consent to the CAT in 1994, the Senate (then with a Democratic majority) included a reservation that the cruel, inhuman, and degrading treatment prohibited by Article 16 was the same treatment already prohibited by the Fifth, Eighth, and Fourteenth Amendments of the Constitution. Thus, U.S. obligations under Article 16 are limited by U.S. domestic law.  In contrast, U.S. obligations under Common Article 3 of the Geneva Conventions (which also prohibits cruel, humiliating, or degrading treatment, or outrages on the personal dignity)  are subject to no such reservation.

NYT on Autonomous Weapons and Ways to Regulate Them

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Wednesday, November 12, 2014 at 1:08 PM

The New York Times has a useful article today on autonomous weapon systems and debate about their regulation.  The issue is also on the discussion agenda this week in Geneva for the UN Convention on Certain Conventional Weapon.  The Times article says:

Warfare is increasingly guided by software. Today, armed drones can be operated by remote pilots peering into video screens thousands of miles from the battlefield. But now, some scientists say, arms makers have crossed into troubling territory: They are developing weapons that rely on artificial intelligence, not human instruction, to decide what to target and whom to kill.

As these weapons become smarter and nimbler, critics fear they will become increasingly difficult for humans to control — or to defend against. And while pinpoint accuracy could save civilian lives, critics fear weapons without human oversight could make war more likely, as easy as flipping a switch.

In a recent article co-authored with Daniel Reisner, we argue that with proper international and national-level processes, emergent autonomous weapon systems can be effectively regulated within the existing law of armed conflict framework (Anderson, Reisner & Waxman: Adapting the Law of Armed Conflict to Autonomous Weapon Systems).  The Times article lays out some of the dangers attendant to these systems as well as their potential benefits, including with respect to preventing civilian collateral damage, which we think are best balanced through application and refinement of traditional law of armed conflict principles and standards.  The Times article also discusses the difficulties of line-drawing in any effort to prohibit autonomous systems, which we think cut strongly against ideas promoted by many NGOs for an international treaty ban, and in favor of an incremental approach that adapts as technology evolves.

The Preamble to the ISIS AUMF

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Wednesday, November 12, 2014 at 11:49 AM

Allow me to stress an issue perhaps in the capillaries, rather than at the heart, of the ISIS AUMF debate: language in the next AUMF’s preamble.

So far as I know, nobody is talking about this just yet. And that makes sense, given the need first to agree about what the broader contours of a congressional authorization—substantive coverage, modification or chucking of the 2001 and 2002 statutes, accountability mechanisms, and so on—should look like.

Still, if precedent is any guide, the words preceding an ISIS AUMF’s operative language could prove consequential. They often reveal Congress’s own thinking about the president’s standalone powers, for one thing; the preambles to the 2001 and 2002 AUMFs recognized independent presidential authority “to take action to deter and prevent acts of international terrorism against the United States.” (One draft 2013 AUMF, regarding Syria, seemed to sweep more broadly, declaring that the president has “authority under the Constitution to use force in order to defend the national security interests of the United States.”)  For another, a preamble can suggest clues as to just how broad or narrow an AUMF’s scope really is—and that ought to matter, say, to a legislator keen to avoid mission creep between the enactment and sunset of an ISIS AUMF.

Don’t get me wrong: the operative clauses in any force authorization probably are of the greatest importance. But the words preceding those nevertheless will be important, too—and thus ought to be the subject of close legislative attention.

Wilson Center Event on ISIS and Congressional Authorization

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Wednesday, November 12, 2014 at 10:07 AM

Streaming video is below.

As noted earlier, Senator Tim Kaine (D-Va) will give remarks on ISIS and congressional authorization; afterwards, Wilson Center Director and former Representative Jane Harman, and Lawfare’s own Jack Goldsmith, will join with Senator Kaine for a moderated discussion.

UPDATE: the event has ended. Archived video can be found here; Senator Kaine’s remarks can be found below the fold.

Read more »

PCLOB Hearing on “Defining Privacy”

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Wednesday, November 12, 2014 at 9:50 AM

It’s ongoing now.  Details are available here. and live streaming video is available over at C-SPAN.

The Obama Administration’s Position on the CAT

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Wednesday, November 12, 2014 at 9:34 AM

The New York Times’ Charlie Savage has the scoop:

WASHINGTON — A treaty ban on cruel treatment will restrict how the United States may treat prisoners in certain places abroad, the Obama administration is expected to tell the United Nations on Wednesday, according to officials.

That interpretation would change a disputed Bush administration theory that the cruelty ban does not apply abroad. But the Obama administration also stopped short of an unequivocal acceptance that the ban imposes legal obligations everywhere that American officials have a prisoner in their custody or control, as human rights advocateshad urged it to say.

An American delegation will unveil the administration’s position in Geneva on Wednesday in a presentation before the United Nations Committee Against Torture. The panel, which monitors compliance with the United Nations Convention Against Torture, has asked whether the United States still takes the Bush-era view.

Most of the torture treaty contains no geographic limitations. But its ban on “cruel, inhuman or degrading treatment” that falls short of torture is one of several provisions that apply to a state’s conduct “in any territory under its jurisdiction.” That phrase is ambiguous, and the administration of President George W. Bush took the view that the ban did not apply beyond domestic soil.

The Obama administration, after an internal debate that has drawn global scrutiny, is taking the view that the cruelty ban applies wherever the United States exercises governmental authority, according to officials familiar with the deliberations. That definition, they said, includes the military prison at Guantánamo Bay, Cuba, and American-flagged ships and aircraft in international waters and airspace.

Privacy as a Utilitarian Value

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Wednesday, November 12, 2014 at 9:30 AM

The Privacy and Civil Liberties Oversight Board is is an advisory body to assist the President and other senior Executive branch officials in ensuring that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to war against terrorism.    On November 12th the Board is holding an open meeting to discuss “Defining Privacy.”  According to the Board:  “While the Board will address the definition of privacy in the context of government counterterrorism programs, it is also interested in what conceptual interests are involved in the protection of privacy, how the impact of technology has affected privacy, what privacy interests have been identified by government privacy officials, what lessons have been learned in the private sector, and what the best way is for government to address privacy concerns. ”

I have been invited to speak on the first panel.  My remarks are entitled “Privacy as a Utilitarian Value” and they reflect my views on how we should best conceive of privacy (and therefore how best to protect it).  The text of my remarks is as follows:

Mr. Chairman, Members of the board, thank you very much for the opportunity to speak with you today about the future of privacy. I appreciate the opportunity to share my thoughts with you.

It’s entirely appropriate for the board begin a discussion of privacy in the new technological age. Indeed it is essential in my judgment for this Board and others within the government to think about how privacy should be reconfigured in light of the twin challenges of new threats and new technology. The fair information practice principles or FIPs were, when first conceived, a commendable and useful guide to protecting privacy. But they were created in 1973. Today they are antiques. The 1973 Thunderbird was a marvelous car but we would not think of holding it out today as a state-of-the-art example of automotive engineering. Nor should we think of the FIPs as the state-of-the-art of privacy thinking. What we need in effect is a new Tesla for privacy. Read more »

A New AUMF, The Lame-Duck Session, and the Meaning of Sunset Clauses

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Wednesday, November 12, 2014 at 8:50 AM

Two quick reactions to John Bellinger’s post on a new ISIL AUMF:

I agree that the new Congress and not the lame duck Congress is best suited to revise the 2001 AUMF (and, in my opinion, also to put the war against ISIL on a firmer statutory footing).  I don’t think our proposal suggested otherwise.  And the President himself said in his press conference that “right- siz[ing] and updat[ing]” the AUMFs “may carry over into the next — into the next Congress.”

John is also “troubled about the proposal … to sunset a combined new AUMF after 36 months” because the “conflict with al Qaida and associated groups shows no sign of ending within three years” and a sunset would “send a signal to Al Qaida that Congress lacks the resolve to use force over the longer term.”  If indeed the conflict with AQ and associates continues for three more years, which I agree is likely, I do not think a sunset will send that signal.  The successful sunset clauses in the surveillance context have not signaled to anyone that Congress lacks the resolve for aggressive U.S. surveillance past the sunset date.  Rather, it has meant only that Congress must reconvene to update the authorities in light of new conditions.  Nor does the need to fund military operations every so often signal that Congress or the nation lacks the resolve to continue a fight.  Similarly, a sunset on an AUMF will mean, and should signal, only that in our democracy it is prudent that Congress reconvene to assess and update the President’s authorities to use force every few years.

The Lame Duck Congress Should Not Sunset the 2001 AUMF

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Tuesday, November 11, 2014 at 7:53 PM

I am troubled that the two proposals for a new AUMF posted by my Lawfare colleagues (Jack, Bobby, Ben, and Matt) and by a group at Just Security — while constructive — would both repeal the 2001 AUMF.   The Lawfare proposal would repeal it immediately and fold it into a new AUMF that would also cover ISIL and would sunset that new combined AUMF within 36 months of enactment. The Just Security proposal would repeal the 2001 AUMF within 18 months. In my view, both proposals are wrong to try to address the 2001 AUMF at this time, and in particular to sunset congressional authorization for use of force against al Qaida.   The 113th Congress should address the more urgent need for a new legislative authorization for use of force against ISIL during the lame duck session, and the 2001 AUMF should be reviewed and revised after the new 114th Congress is seated.

To be clear, I have long supported revising and limiting the 2001 AUMF. I was one of the earliest voices calling for its revision in this op-ed in the Washington Post in November 2010, where I argued that “Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation.” I suggested that the 2001 AUMF be refined to address emerging threats and to place limitations on targeting of Americans and on indefinite detention.

But it is premature to address the 2001 AUMF or to sunset it during the lame duck Congress.  Here’s why:

    1. The lame duck Congress will only be in session for a few weeks. It will be hard enough to reach agreement on the parameters of a new ISIL-specific AUMF, without adding in the significant complexity of revising the 2001 AUMF.
    2. It is more appropriate to let the new 114th Congress — with its many new members — consider and vote on the broader and much more complicated issue of revising (and potentially sun-setting) the 2001 AUMF, which authorizes the use of force against groups associated with al Qaida in many countries and provides the legal basis for detention and drone strikes, among other actions. (I would also note that my Lawfare colleagues’ proposal to simply fold the 2001 AUMF into a new ISIL-specific AUMF would not address the need several of them had previously identified in their Hoover paper to revise the 2001 AUMF to address other emerging terrorist groups. In my view, it would be better for Congress to address that issue in 2015, rather than delay for three years.)
      3. The Just Security proposal would sunset the 2001 AUMF (and potentially the new ISIL-specific AUMF) 18 months after enactment. As

Ben has noted

    , even if the legislation did not pass until early 2015, the sunset would be smack in the middle of a Presidential election year. It would be beyond foolhardy to expect Congress to focus on reviewing the AUMFs in a calm and non-partisan way in the middle of a Presidential election.
    4. I am also troubled about the proposal of my Lawfare colleagues to sunset a combined new AUMF after 36 months. Although three years is a much longer period and would not expire in an election year, I remain concerned about sun-setting congressional authorization to use force to defend the United States against further attacks by al Qaida and its associates. The conflict with al Qaida and associated groups shows no sign of ending within three years.   Either an 18-month or 36-month sunset — like President Obama’s announcement that the U.S. would withdraw from Afghanistan — would send a signal to Al Qaida that Congress lacks the resolve to use force over the longer term.
    5. For the foregoing reasons, I would support rapid enactment of an ISIL-specific AUMF during the lame duck session and a sense of the Congress resolution that the 2001 AUMF should be reviewed and refined in 2015, leading to a revision that would authorize use of force against Al Qaida and associated groups, and potentially other terrorist groups that pose an imminent threat to the United States, both within certain defined limits.

Happy Veterans Day

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Tuesday, November 11, 2014 at 2:08 PM

From all of us here at Lawfare: a note of profound gratitude for the sacrifices made by our veterans and their families.

 

A Response to Steve Vladeck on the AUMF Principles

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Tuesday, November 11, 2014 at 1:51 PM

I am a little perplexed by Steve’s response to my critique of the AUMF principles he helped write. Steve accuses me of “hiding the ball.” But he seems to me, rather, to be moving the goalposts. He may have moved them into a position that, as he suggests, gives rise to less disagreement on my part with the principles he is advancing. But I can’t quite reconcile his new post with the principles he and his colleagues have written.

Steve starts by saying that I have mischaracterized his call for an 18-month sunset, by which he now says he really means a sunset sometime in 2017. “[T]he Principles don’t actually say the ISIL AUMF sunset should be exactly 18 months from now,” he clarifies. “They refer to the 18-month sunset that Congress included in the 1983 Lebanon authorization as a model—and stress that ‘A similar approach would be appropriate for a sunset here, as well.’”

Actually, no. That’s not what they say—at least not about the sunset of the 2001 AUMF, which was what I was writing about. Here’s what the principles say on when the 2001 AUMF should expire: “As with a sunset for the ISIL-specific AUMF, an additional 18 months would establish an appropriate sunset date for the 2001 AUMF.” Steve is right that when that 18 months would end would depend on when Congress enacts it. But you’d have to imagine that it takes a full six months from the time the new Congress comes into session in order to believe that 18 months would take us into the 115th Congress.  Read more »

Ben’s Sweeping Endorsement of the Just Security AUMF Principles

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Tuesday, November 11, 2014 at 12:32 PM

In his post this morning, Ben identifies what he calls “flaws” with three of the six principles for a use-of-force authorization for ISIL that were introduced yesterday by a group of legal experts (that includes me). Although Ben has done us the courtesy of critiquing the Principles, it appears he didn’t actually read them all that carefully. If he had, he might have realized that, rather than highlighting the distance between our preferred approach and the one that he, Bobby, Jack, and Matt endorsed yesterday, they reveal our far deeper agreements as to just about everything that matters.

Read more »

Why Three of the Six Just Security AUMF Principles are Flawed

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Tuesday, November 11, 2014 at 9:25 AM

By coincidence, the same day that Jack, Bobby, Matt and I released our draft AUMF text, a group associated with Just Security released a document entitled “Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL.” There’s a lot of common ground between this set of principles and our text, but in my view at least, our draft violates—in whole or in part—three of the principles, and I think it’s right to do so.

So I’m going to briefly survey the common ground, and then dwell a little on the areas in which I part company with the scholars—Steve Vladeck, Ryan Goodman, Rosa Brooks, Sarah Cleveland, Jen Daskal, Walter Dellinger, Harold Koh, and Marty Lederman—who put the Just Security document together.

First, the common ground: I find nothing to disagree with in Principles Three, Five, and Six, and I think our text complies with those principles fully. Principle Three says that a new AUMF should have a sunset clause. Ours does. Principle Five says that a new AUMF should authorize “necessary and appropriate force” and thus require compliance with international law. Our proposal does exactly that. It also explicitly requires compliance with international law in terms of the geography of the conflict. Principle Six seeks transparency and accountability mechanisms. Ours are slightly different from the ones the Just Security principles would demand, but the differences are slight—and in some ways, at least, our draft is more demanding. In any event, the ideas are certainly consistent.

I’m afraid, however, that I can’t sign on to Principle One, which strikes me as, well, wrongheaded, particularly in combination with Principles Two and Four. “A New AUMF should be ISIL-specific and mission-specific” reads the section headline for the first principle. “Any new AUMF should be limited to the current armed conflict with ISIL,” the document says.

Really? Why would we want that? I don’t want the military proceeding in Iraq on the basis of this new instrument, in Afghanistan—to the extent we will still use force in Afghanistan—on the basis of the 2001 AUMF, and elsewhere in the world on the basis of some indeterminate melange of the 2001 AUMF and inherent Article II powers. I want Congress to lay out what groups it is authorizing a fight against and how much give there is in the joints of that authorization. That is what we tried to do in our text, naming three specific groups—ISIL, Al Qaeda, and the Afghan Taliban—and authorizing military action against associated forces to the extent those forces are engaged in hostilities against the United States.

The principles don’t really say why a new AUMF should be ISIL-specific, saying only that “Specifying both the identity of the enemy and the objectives of the authorized force is the epitome of democratic responsibility, as it ensures that any new AUMF will be appropriately tailored to the specific threat and conflict justifying such force.” But it does not seem to me the epitome of democratic responsibility to define a conflict far more narrowly than one expects to fight it. And I, for one, still anticipate having to use military force against certain older enemies.

Leaving these older enemies out of a new authorization might be defensible if Congress were planning to leave the prior authorization for force against them in place. Then my criticism might be dismissed as a housekeeping objection. But the problem with Principle One gets worse as a result of Principles Two and Four. Principle Two holds that “Congress should geographically limit the authorization to uses of force in Iraq and Syria, where there is now an ongoing armed conflict between ISIL and Iraq and the United States, and to any other locations from which ISIL forces actively plan and/or launch attacks against the United States or Iraq.” Principle Four, meanwhile, holds that “Congress should include within the ISIL-specific AUMF a sunset provision for the 2001 AUMF.”

In other words, the Just Security principles propose marrying an ISIL-specific new AUMF with taking away the authority to use force against Al Qaeda and its allies.

I actually believe in limiting the conflict geographically (as we do in our draft to situations in which the use of force is consistent with international law) and in repealing the 2001 AUMF outright (as we also do). But if you put these three principles together in the fashion the scholars do here, you end up with a dangerous gap. Over a period of 18 months (the proposed period of the sunset for the 2001 AUMF), we would go from a situation in which the use of force against Al Qaeda and its associated forces is authorized to one in which there would be no congressional authorization for force in Afghanistan (where we will still have 10,000 troops on the ground), Yemen (where AQAP is based), or the tribal areas of Pakistan (where core Al Qaeda is based). We would have instead authorization for the use of force against ISIL only and only in Iraq and Syria and other locations in which the group operates. There would be no authorization to operate against core Al Qaeda, AQAP, the Haqqani Network, the Taliban or any other Al-Qaeda linked nasties to the extent they do not rise to the level of an imminent threat. Do we want that? I certainly don’t.

The Just Security group proposes that “Setting such a date would allow the next administration and Congress to consider afresh—and with the benefit of renewed democratic participation through the 2016 elections—how to ensure that both the ISIL-specific AUMF and the 2001 AUMF best address the situations that exist at that time.” I’m afraid the group’s math is a little off. A sunset after 18 months, if enacted in the next few months, would land the lapsing of the 2001 AUMF—and all authority to operate against any non-ISIL group or anywhere outside of Iraq and Syria—smack in the middle of an ongoing presidential election campaign.

The authorization to use force against Al Qaeda needs to be modernized, not vaporized. The conflict should be geographically contained to the boundaries in which the enemy operates, not contained to arbitrary boundaries drawn by legislators. And while Congress should define the conflict precisely, it shouldn’t write out of the conflict major enemy forces by legislative diktat.

Why A Substantively Neutral But Procedurally Constraining AUMF Makes Sense

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Tuesday, November 11, 2014 at 5:55 AM

A few weeks ago Matthew Waxman and I ended our critical essay on President Obama’s war powers legacy by noting that “Obama’s legacy will look quite different if, after the midterm elections, he seeks and receives congressional authorization for the use of force against IS, especially if he also works with Congress on a framework statute that updates the 2001 AUMF to deal with the many emerging threats around the world in a principled, transparent manner with prudent limits.”  Last week President Obama said:

I’m going to begin engaging Congress over a new authorization to use military force against ISIL. …

… [T]he idea is to right- size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.

… [I]t makes sense for us to make sure that the authorization from Congress reflects what we perceive to be not just our strategy over the next two or three months, but our strategy going forward.

The President has suggested before that he wants to engage Congress on a revised AUMF.  But this time I think he means it.  And so in that connection I want to briefly explain why I think the draft AUMF proposed by Bobby, Matthew, Ben, and me is the right way to go.  In a nutshell, the draft AUMF codifies all of the authorities the President currently says he possesses and needs, and adds no new authorities; it imposes a three-year time limit on the authorities and robust disclosure requirements about who we are fighting and where; and it repeals the 2001 and 2002 AUMFs.  Here in brief is why I think this a good solution to the problem of how to “right-size and update” Congress’s authorization for the use of force against terrorist threats.

First, there are numerous policy debates that one might have about what should be added to or subtracted from the President’s current array of counterterrorism authorities.  The White House might like to use this as an opportunity to close GTMO, the ACLU might want to ban targeted killing of American citizens or eliminate detention authority going forward, the Republicans in Congress might want to direct Syria policy or include an express proviso on ground troops in Iraq.  And so on and so on.  The nice thing about codifying the status quo of substantive authorizations is that it is a salient neutral point.  One danger with a new authorization – and especially a danger for those who are less hawkish than the soon-to-be-Republican-controlled-Congress – is that once one starts adding to or subtracting from the President’s current array of authorities, who knows what direction it might go in, or where it  might end up.  Although there is a great deal of uncertainty and debate about the legal basis for the President’s current actions against al Qaeda and associated forces and the Islamic State, there is also a political consensus that the President’s authorities should extend this far, and no obvious need to extend them any further.  So a neutral first right-sizing step, a right-sizing step that everyone can in theory claim is “fair” (or at least not a “loss”), is to maintain and refresh the status quo of the President’s substantive authorities to use force.

Second, the proposed AUMF should be attractive to Congress, including one controlled by Republicans in the new year.  It gets Congress back in the game, increasing its relevance on counterterrorism.  It also gives Congress hugely important information – information, embarrassingly, that even the Senate Armed Services Committee has not had – about which terrorist groups the United States is at war with, and where.  This is obviously a necessary first step for real oversight which Congress should cherish.  The draft AUMF also (potentially) increases Congress’s bargaining power on the issue of counterterrorism authorities by forcing the (next) President to return to Congress for new authorities in three years.  I realize that many members of Congress are going to be very tempted to tack on their preferred counterterrorism policy outcomes, to lard on extraneous matters, and perhaps even to provide broader authorities than the President now possesses or wants.  It is worth remembering, obviously, that the Commander in Chief warrants significant discretion in carrying out the war against Islamist terrorists.  But much more importantly and pragmatically, members of Congress inclined to depart from the substantive status quo in ways that the President thinks go too far should remember that the President can always decline to sign any new joint resolution, and rely on his current interpretations of the 2001 and 2002 AUMF, and Article II, to conduct counterterrorism operations for the rest of his term.  For this reason, and (if this does not sound too naïve) because bipartisanship in war policy is vital and the status quo is a salient and “fair” place to rest the President’s authorities, I think Congress should be happy (or at least not unhappy) with our proposed AUMF, especially since it receives significant procedural gains in the exchange.

Third, the proposed AUMF should be attractive to the President.  The President gets a new AUMF that will take the question of the legality of his current counterterrorism actions off the table, and will also draw Congress in for some of the accountability for current counterterrorism operations.  The President also gets to say that he presided over the repeal of the 2001 and 2002 AUMFs, which have been important policy goals, and that he set the authorities under the 2001 AUMF to expire in three years, also serving one of his policy goals (though of course Congress and the next President might want to renew).  The President can even claim that he remained true to his promise not to expand the war begun in 2001, since the draft gives him no authorities he does not currently claim, and hems the presidency in procedurally.  Yes, the reporting requirements will be painful, especially since DOD (and perhaps, the entire Executive branch) has shown little interest in explaining to the public which groups the United States is at war with, and where.  But it is the right thing to do, and the pain will be evidence of genuine constraint on the Executive branch that President Obama, who often says he is in favor of such constraint, can take credit for proposing and accepting.

I know that there are counterarguments to these arguments, and I also know that politics in the worst sense will make rational policy very hard in this area.  I nonetheless thought it worth making the argument for preserving (but updating) the substantive status quo while also adding procedural limits, perhaps as a starting point for negotiation even if not an ending point.

Appellees File Supplemental Brief in Klayman v. Obama

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Monday, November 10, 2014 at 5:55 PM

A few days after oral argument before a three-judge panel of the D.C. Circuit last week, Larry Klayman and company filed a supplemental brief, citing a desire to more fully address questions as to how their Fourth Amendment rights were being violated in light of the government’s contention that it had not accessed their calls for reasons beyond metadata collection.

In their new filing and in the accompanying affidavits, the appellees/cross-appellants argue that they have made a prima facie showing that the government has targeted their communications for surveillance and manipulation. Specifically, Klayman, Charles Strange and a computer expert named David Siler accuse the government of a comprehensive spying and intimidation scheme, one that includes sending hoax messages to and from their phones and email accounts and installing viruses and malware on Strange’s computer. As in oral argument, for evidence that the government’s assertions of good faith cannot be trusted, the appellees marshal 2013 media reports of numerous instances where individual NSA employees violated minimization procedures.

The (corrected) brief itself is 21 pages long, with 167 pages of exhibits appended. The numbering of the exhibits is confusing, so we provide a roadmap below.

Exhibit 1 comprises affidavits by Larry Klayman and Charles Strange attesting to, among other things, evidence that the government has been intercepting and manipulating their email and phone communications.

Exhibit 1: an email that Strange describes as a hoax designed to appear as though it were from his son, an NSA crytologist technician who was killed in Afghanistan in August 6, 2011

Exhibit 2: a screenshot of Strange’s phone displaying text messages sent from “indiscriminate numbers.”

Exhibit 3: a snapshot of a copyright violation message and accompanying photo captured of Strange’s wife; affidavit of David Siler, a network administrator who describes his work removing from Strange’s computer viruses and spyware that Siler contends the government used for spying.

Exhibit 2: a redacted 2009 Inspector General memorandum on improper NSA practices released by NSA on October 21, 2014.

Exhibit 3: a November 6, 2014 FISA Court opinion granting in part and denying in part the government’s petition for approval of certain metadata collection

Exhibit 4: the accompanying order for production of tangible things.

Exhibit 5: a September 2013 Fox News article on individual NSA employees’ misuse of agency tools to spy on love interests.

Exhibit 6: four August 2013 media articles on Snowden’s disclosure of an internal agency audit revealing 2,776 privacy violations committed by NSA employees over the course of a year.

Oral argument took place last Tuesday before Judge Janice Rogers Brown and Senior Judges Stephen Williams and David Sentelle (audio here). The court has yet to grant the appellees leave to file the brief.

Your Weekly Reminder to Contribute to Lawfare

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Monday, November 10, 2014 at 4:48 PM

Editor’s Note: For those of you who have already contributed to Lawfare in response to my appeals, many thanks from all of us. For those who have not yet done so, I am reposting the appeal, and will occasionally do so again between now and the end of the year. Please considering making a donation of any size.

The other day, I listened to a fascinating episode of Freakonomics Radio featuring a lengthy discussion with a noted economist about what actually works in non-profit fundraising. I listened to this with, I suspect, more-than-average attention, as we have been working hard recently to raise money to grow Lawfare. The secret, according to University of Chicago economist John List, is relatively simple and boils down to the following: Don’t appeal to pure altruism, but use a pitch that makes people feel warm and fuzzy about themselves for giving; make clear that they gain transactional benefits from giving; and make sure all your requests for funds—to men, at least—are made by beautiful blonde women. No, I’m not making that last bit up. Listen to the episode if you don’t believe me:

Recruiting a cadre of young blondes to canvas for Lawfare is probably impractical, but the other two points are well taken. Lawfare is growing constantly. We have ambitious plans for new content, live events, and a revamped web site—all of which takes resources to make happen.

So here’s my warm-and-fuzzy pitch: You can be part of it. Make a donation and you’ll know that you helped develop Lawfare, that you helped improve the national conversation about security and law, and that you pushed back against the polarized left-right shouting match. You’ll know that because of you, more people got better information before making hard and fateful decisions that affect real people’s lives and liberty. You’ll know that because of you, new voices in the field are emerging, as are new forms of scholarship. You’ll feel incredibly good about yourself: warm and fuzzy. Really. I promise.

And here are some transactional benefits, benefits beyond the hand-written thank-you note from me or Wells and the tax deduction that comes from giving to a 501(c)(3) organization like the Lawfare Institute. Every dollar of any contribution you give will enter you separately in a drawing for an array of cool prizes—Lawfare swag, mugs, t-shirts, etc.—the grand prize being dinner with an available Lawfare writer of your choice. That’s right: For $100, you get a hundred different chances to win dinner with a Lawfare contributor and a hundred other chances to win the world-famous Lawfare mug.

That and the warm and fuzzy feeling.

Click here or send a check to: The Lawfare Institute, P.O. Box 33226, Washington DC 20033-3226.


ODNI Releases FISC Primary Order Pertaining to Telephony Metadata

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Monday, November 10, 2014 at 3:34 PM

On Thursday, the Office of the Director of National Intelligence released the latest declassified Foreign Intelligence Surveillance Court (FISC) Primary Order on its website.

The Primary Order, issued by Judge Raymond J. Dearie on September 11, 2014, gives the government authority to collect telephony metadata until December 5. The ODNI had announced publicly on September 12 that it had applied for the renewal of authority to collect telephony metadata and that the request had been approved by the FISC.

Final Version, A Rule of Lenity for National Security Surveillance Law

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Monday, November 10, 2014 at 2:06 PM

The final version of my article, A Rule of Lenity for National Security Surveillance Law, has been posted online at the Virginia Law Review website.   The article advocates a new approach to FISA reform: A rule of narrow judicial construction of national security surveillance powers, to be enacted by express Congressional enactment.   I first elaborated on the idea in a blog post here at Lawfare last year. The text would be simple, such as this: “The scope of government powers permitted by this chapter shall be construed narrowly.” The basic idea is for the scope of authorities concerning national security surveillance to be settled by Congress instead of the Foreign Intelligence Surveillance Court.  It’s not a cure-all, certainly, but I think it would help make the law more democratically accountable and more transparent.

A Draft AUMF to Get the Discussion Going

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Monday, November 10, 2014 at 1:00 PM

President Obama said last week that he wants an AUMF for the ISIL conflict, and he further stated that he wants to “right-size and update whatever authorization Congress provides to suit the current fight, rather than previous fights.” So we thought we would draft a notional AUMF along those lines to get a discussion going. What follows is an attempt, in 475 words, to put on a contemporary statutory basis the authorities that the President has claimed he has already under the 2001 and 2002 AUMFs to fight Al Qaeda, the Islamic State and their allies. The proposal attempts to do this without giving adding any additional authority and while also imposing some novel substantive and procedural limits, including extensive reporting requirements, a sunset clause, and while repealing the 2001 and 2002 AUMFs. Our draft also incorporates some comments and criticisms received in connection with our earlier policy paper on AUMF reform. No doubt there remains room for further improvement, so we look forward to feedback.

We offer some explanatory comments about our choices after the text itself, which reads as follows:

To revise and clarify the authority of the President to use all necessary and appropriate force against certain terrorists or terrorist organizations.

Whereas …

SEC 1 – Short Title

This joint resolution may be cited as the “Revised Authorization for Use of Military Force of 2014”

SEC. 2. Authorization for Use of Force

(a) The President is authorized to use all necessary and appropriate force against Al Qaeda, the Islamic State, and the Afghan Taliban.

(b) The authorization of force in Section 2(a) extends to associated forces of the entities listed in section 2(a) insofar as such forces are engaged in hostilities against the United States.

SEC 3.  Geography

The authorization of force in Section 2 extends only to operations in places where force can be used consistent with applicable international law concerning sovereignty and the use of force.

SEC 4.  Sunset Clause.

The authorization granted in Section 2 shall terminate on the date that is 36 months after the date of the enactment of this joint resolution.

SEC 5.  Reporting

(a)  In addition to all reporting requirements under the War Powers Resolution or other applicable statute, the President shall:

(1) no less often than every ninety days publish in unclassified form a list of the entities against which the force authorized in Section 2 has been deployed and, to the extent not strictly precluded by national security, where such force was deployed;

(2) no less often than every ninety days report to the Senate and House armed services, foreign relations or affairs, and intelligence committees the geographic location of operations carried out pursuant to Section 2, and a summary of the factual predicate for concluding that an entity is an “associated force” covered by Section 2.  To the extent strictly necessary in the interests of national security, this report may be made in classified form.

(b)  If the President deploys force under his constitutional authorities in Article II against a terrorist or terrorist organization that does not fall within the authorization in Section 2, he shall, in addition to all reporting requirements under the War Powers Resolution or other applicable statute, comply with the reporting requirements specified in Section 5(a) concerning the identities of the terrorist or terrorist organizations, the geographic location of the use of force, and the summary of the factual predicate for the use of force.

SEC. 6. Repeal of Prior Authorizations

(a) The September 18, 2001 Authorization to Use Military Force (Public Law 107–40; 50 U.S.C. 1541 note) is repealed.

(b) The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 50 U.S.C. 1541 note) is repealed.

SEC. 7. War Powers Resolution Requirements

Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that section (a) is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

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