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Read Out: Hearing on DOJ’s State Secrets Claim in Restis v. UANI

Sunday, October 12, 2014 at 4:00 PM

The transcript of Judge Edgardo Ramos’ Wednesday hearing in Restis v. United Against Nuclear Iran (“UANI”) is in—and full of fascinating questions about the government’s use of the state secrets privilege.  

As we reported earlier, the case is notable because the government took the unusual (though not completely unprecedented) step of intervening in a private lawsuit to assert the privilege.  The move provoked a flurry of speculation in the press: as New York Times reporter Matt Apuzzo wrote, “If United Against Nuclear Iran possesses American classified information, it is not clear how the group obtained it. Government intelligence agencies are prohibited from secretly trying to influence public opinion.” In a September 12th motion, the government first asserted the privilege and asked for dismissal of Restis’ lawsuit. In response, the plaintiff sought leave to file a motion to have the government to furnish further factual background its filing.

A blow-by-blow read out of the hearing—digested from the transcript—follows below.  In short, on Wednesday Judge Ramos considered argument from lawyers for both Mr. Restis’ and the United States as to whether the government’s assertion of the privilege in these circumstances is a novel one.  Additionally, the court requested more briefing on possible alternatives to dismissal, and on the First Amendment implications of the injunctive relief sought against UANI.

Read more »

Hawk v. Drone

Sunday, October 12, 2014 at 2:10 PM


The Foreign Policy Essay: Hearts, Minds, & ISIL

Sunday, October 12, 2014 at 10:00 AM

Editor’s Note: The return of U.S. military advisors to Iraq and U.S. airstrikes against the Islamic State in Iraq and the Levant have dashed hopes that the United States would be able to put the latest counterinsurgency era behind it as U.S. forces draw down in Afghanistan. As it finds itself fighting an insurgency once again, the United States should dispel the myths of past campaigns. The accepted wisdom is that victory in a counterinsurgency campaign requires winning the goodwill of the local population: commonly referred to as winning “hearts and minds.” Yet it is unclear whether this wisdom really holds true. Raphael S. Cohen of the RAND Corporation contends that winning hearts and minds does little to help counterinsurgents win and that the U.S. military can and should focus on defeating ISIL forces militarily and not on winning over the population.


With the decision to combat the Islamic State in Iraq and the Levant (ISIL), the United States is once again fighting an insurgency. The United States is loath to admit this fact, preferring to label its actions somewhat differently—as a “comprehensive and sustained counterterrorism strategy.” And yet the fact remains that ISIL—with an organization that numbers tens of thousands strong, controls territory, mobilizes the population, and seeks to overthrow and replace a constituted government—fits most definitions of an insurgency. Though it also behaves at times like a terrorist group, it is nonetheless an insurgency. The challenge facing the United States is what to do about it.

The most prominent strategy for how to counter an insurgency is “to win hearts and minds.” Popularly attributed to Field Marshal Sir Gerald Templer’s Malayan Emergency campaign against communist insurgents shortly after World War II, the term actually dates at least as far back as the American Revolution and has regularly been used to describe strategies against insurgencies ever since. Indeed, the term even made an appearance in President Barack Obama’s recent United Nations speech.

Raphael-Cohen-Photo“Hearts and minds” as a strategy rests on the assumption that any insurgency’s lifeblood is its access to the population, who provide it with fighters, resources, and intelligence: in sum, everything the insurgency needs to survive and thrive. Combating an insurgency, therefore, requires wooing the population—the majority of whom are believed to be neutral or at least passive—away from the insurgency and over to the government side, often by providing political and economic incentives. Once the battle for popular opinion is won, they will provide the government with the information it needs to effectively prosecute these wars and the insurgency, starved of support, will wither away.

There are at least two problems with the “hearts and minds” logic. First, most of the population may not be open to persuasion. Violence—and its corresponding emotional toll—tends to entrench people’s views of the combatants, leaving relatively few undecided and persuadable. Moreover, changing loyalties mid-conflict can be a dangerous proposition, as those who do so are often branded turncoats or collaborators. Economic inducements, political reforms, and other such “carrots” seem paltry in comparison to matters of life and death. As a result, many may only be willing to take such a risk after the conflict’s outcome has already been decided.

Second and more problematic, even if the counterinsurgents can persuade a majority of the population to change sides, it may not matter much to the conflict’s outcome. Insurgencies do not require overwhelming popular support for their efforts to thrive. For example, while it is difficult to tell how much genuine support there is for ISIL, even if one takes the high-end estimates of ISIL’s strength, some 31,500 according to publically-released intelligence estimates, this would still be a tiny fraction of the populations of Syria and Iraq. ISIL’s passive support base likely is also smaller than often believed. Much of its wealth is believed to come from looting lucrative assets throughout the territory it controls and coercing the hapless minorities under its control into paying “taxes” rather than voluntary contributions. Read more »

What Will U.S. Troops in Baghdad Do When Islamic State Militants Arrive?

Saturday, October 11, 2014 at 4:01 PM

There are several stories today about how Islamic State militants are threatening Baghdad.  Some of the stories suggest that “an all-out assault on Baghdad” may be in the cards, while others say that the militants will instead simply “wreak havoc” on the city from its western edge.  Whichever is right, Islamic State forces are threatening Baghdad itself.

President Obama has pledged that he will not put American boots on the ground in order to degrade and destroy the Islamic State.  But he has already sent 1000-1500 troops to Baghdad to provide (in the words of a June 30 letter to Congress) “support and security for U.S. personnel and the U.S. Embassy in Baghdad.”  And so quickly the question is becoming:  What will the U.S. boots on the ground in Baghdad do if and when the Islamic State brings the fight to them?

Fresh Out of NCTC Office, Matthew Olsen Speaks at Harvard Law School

Saturday, October 11, 2014 at 4:00 PM

Matthew Olsen, former director of the National Counterterrorism Center, stopped by Harvard Law School last week to offer his perspective on the changing nature of the terrorist threat. After giving a brief primer on the origins and goals of ISIL, Olsen tackled thornier questions: what is the United States’s strategy for dealing with ISIL and other emerging terrorist organizations—especially vis à vis boots on the ground—and what is its legal basis for action? Olsen says that he doesn’t see the threat subsiding in less than three years, but that this is a fight that the United States wants to enable Syria and Iraq to handle themselves, not one where the United States should take the lead in terms of boots on the ground. As for the legal basis question, Olsen agrees with the President as to the 2001 AUMF, while acknowledging that it is not a slam dunk argument. 

The Lawfare Podcast, Episode #95: Shivshankar Menon on India’s Role in the World

Saturday, October 11, 2014 at 1:55 PM

On his recent trip to the United States, Indian Prime Minister Narendra Modi emphasized India’s desire to take up a greater role on the world stage. With India’s renewed ambition, it is increasingly important for policymakers to understand what that role may look like, how it is envisioned from the Indian perspective, and how the country views international developments. Great opportunity exists for improved bilateral relations that bring stability, increased trade, and future defense, intelligence, and counterterrorism cooperation in the region.

This week, Ambassador Shivshankar Menon, former national security adviser and former foreign secretary to the government of India, gave a speech at Brookings entitled, “India’s Role in the World.” In his address, Ambassador Menon discusses the new optimism in U.S.-India bilateral relations on the heels of newly elected Prime Minister Narendra Modi’s recent visit and how leaders can capitalize on this new momentum. Ambassador Menon also delves into India’s relations with Pakistan, Bangladesh, and other countries in the region, its evolving outlook on China, and what role, if any, India can play in countering violent extremism found in groups like transnational terrorist organizations like ISIS and al Qaeda .

Strobe Talbott, president of The Brookings Institution, introduced Ambassador Menon and moderated the discussion.

 You can also watch the full event below:

The Week That Was: All of Lawfare in One Post

Saturday, October 11, 2014 at 9:55 AM

Jack continued to analyze the ISIS-AUMF controversy this week, and noted that history suggests Congress will only authorize force against ISIS “if the President proposes and pushes for an authorization (or screws up unilateral force badly).” Later, he argued here and here that the Obama administration violated the War Powers Resolution “unless it is right about the applicability of the AUMFs” to ISIS. He also responded to Ryan Goodman’s “hopeful take” on the possibility of ending the Forever War.

On Wednesday, Cody publicized the 11 “rules” ISIS recently issued to journalists in areas under its command.

This week, Wells and I attended the preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker, Abu Wa’El (Jihad) Dhiab. We composed a three-part readout of the courtroom proceedings, which can be found here, here and here.

Speaking of Dhiab, Jack analyzed Judge Kessler’s recent videotape order in the case and explained why it is “remarkable.”

Ben had the following to say about reports President Obama was considering a unilateral executive action to close Guantanamo: “I will believe this the day it happens, and not a moment before.”

Wells also analyzed these reports, and expressed skepticism about the possibility raised by the Journal’s Jess Bravin and Carol Lee: that President Obama could “sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief.”

John opined that the current rancor over closing Guantanamo is just the latest salvo in a “long-running partisan battle” over the issue.

Alex Ely noted that the Supreme Court did not just deny  certiorari in the same-sex marriage cases this week; it also rejected petitions in the Mehanna and Ali cases.

Jane announced that the Fourth Circuit affirmed the 2012 refusal to vacate the sentence in the United States v. Abu Ali case. She also noted that Ali Hamza Al Bahlul filed his reply brief this week in Bahlul v. United States, and summarized its arguments.

Ben shared videos of some recent NSA debates, including one at Georgetown entitled, “The NSA, Privacy & the Global Internet: Perspectives on EO 12333,” and one held by Intelligence Squared US, “Mass Collection of US Phone Records Violates the Fourth Amendment.”

Andy Wang shared the recent NSA report on civil liberties and privacy protections under EO 12333 and summarized its contents.

Jane noted that the plaintiffs in Klayman v. Obama filed their reply to the government’s response and reply brief. She also announced the beginning of oral argument in Under Seal v. Holder on Wednesday, and gave an overview of the trial so far.

Regarding the protests in Hong Kong, Paul Rosenzweig noted that Chinese cyberattacks against demonstrators are “incredibly sophisticated.” Not only that, but they are also targeting the popular Firechat app, which was thought to be relatively safe from government control.

Paul also linked to a few stories examining the national security implications of 3D printing technology.

In this week’s Steptoe Cyberlaw Podcast, Stewart Baker interviewed Rob Corbet, “a partner and head of the Technology and Innovation group in Arthur Cox, a large Irish law firm.” They discussed Ireland’s dynamic role in data protection issues and the replacement of the country’s longstanding data protection commissioner, among other topics.

Alex Ely noted Twitter’s recent suit against Attorney General Eric Holder, the DOJ, FBI Director James Comey, and the FBI, and summarized the internet giant’s complaints.

In this week’s Foreign Policy Essay, Joshua Rovner, an associate professor at Southern Methodist University, argued that exaggerating ISIS’s strength may have detrimental intelligence consequences and possibly augment their strength in the region.

In the 94th episode of the Lawfare Podcast (@lawfarepodcast), Jennifer Williams sat down with terrorism scholar Audrey Kurth Cronin to discuss ISIS, al Qaeda, and the “bloated counterterrorism bureaucracy that has emerged since 9/11,” among other topics.

Looking for a first-hand account of the Hong Kong protests? This week, Sophia Yan, a reporter at CNNMoney and Lawfare‘s official pianist, provided an inside look at the demonstrations rocking this semi-autonomous Chinese city.

As the Ebola epidemic has worsened in West Africa and spread to other countries, including the US, calls to screen passengers from “Ebola hot zones,” or shut down air traffic to them altogether, have increased. In light of this, Paul summarized the law and policy questions underlying “Ebola interdiction.”

Paul also linked to Department of Homeland Security Secretary Jeh Johnson’s recent speech on “Border Security in the 21st Century.”

Finally, Ben examined whether or not the controversial opera entitled, “The Death of Klinghoffer,” is anti-Semitic and/or justifies terrorism, as its detractors claim. His conclusion: it’s not, and it doesn’t.

And that was the week that was.

FBI Director James Comey to Speak at Brookings Next Week on Encryption

Friday, October 10, 2014 at 5:56 PM

I’m excited to be hosting FBI Director James Comey this coming Thursday for a speech and conversation on encryption at the Brookings Institution. Here’s how Brookings is describing the event:

Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?

Issues of privacy and security are at the forefront of public debate, particularly in light of recent national security disclosures and increasingly pernicious cyber attacks that target our personal information, our ideas, our money, and our secrets. But are privacy rights trumping public safety interests?  And if so, at what cost?  Has the post-Snowden pendulum swung too far in one direction?

On Thursday, October 16, Governance Studies at Brookings will host FBI Director James Comey for a discussion of the impact of technology on the work of law enforcement. Law enforcement officials worry that the explosion in the volume and the means by which we all communicate threatens its access to the evidence it needs to investigate and prosecute crime and to prevent acts of terrorism.

In particular, officials worry that the emergence of default encryption settings and encrypted devices and networks – designed to increase security and privacy – may leave law enforcement in the dark. Director Comey will talk about the need for better cooperation between the private sector and law enforcement agencies. He will also discuss potential solutions to the challenge of “going dark,” as well as the FBI’s dedication to protecting public safety while safeguarding privacy and promoting network security and innovation.

Following these remarks, Brookings Senior Fellow Benjamin Wittes will moderate a discussion with Director Comey and audience questions.

The event will be webcast, and the Lawfare Podcast (@lawfarepodcast) will be running it as well.

Signing Statements, the Commander in Chief Power, and Guantanamo Closure

Friday, October 10, 2014 at 4:00 PM

According to the Wall Street Journal,  the President’s people are “drafting options” to bring about Guantanamo’s closure, an objective that would require the White House to get around a statutory restriction on transferring GTMO detainees to the United States.  Or not: Vice’s Jason Leopold reports that NSC Spokeswoman Caitlin Hayden today said the Administration does not know what “‘new press reports are referring to when they say the Administration is ‘drafting options’ intended to ‘override a congressional ban.’” At any rate—and to the extent there really is a policy change under consideration—there are two choices. One option would be to veto annual legislation which presumably will renew the domestic transfer ban, the National Defense Authorization Act (“NDAA”). But there’s another possibility in play, too, according to the Journal’s Jess Bravin and Carol Lee:
A second option would be for Mr. Obama to sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief, as he has done previously. Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.
Put aside the chances–good or bad or zero–that President Obama actually ever would sign legislation renewing the no-U.S.-transfer ban, while also proclaiming that he won’t enforce the ban for Commander-in-Chief reasons. Suppose he takes that approach.  How would the move square with recent practice?  (So as to avoid any doubt, I ask as someone who, as a policy matter, would love to see the prison shuttered posthaste.)
So far as I am aware—and I welcome correction—signing statements in fact have not claimed that funding restrictions for transfers to the United States are generally unconstitutional, or would implicate the President’s authority as Commander-in-Chief specifically. On the other hand, the Administration explicitly has cited potential conflicts with that very authority, with respect to the NDAA 2013′s provisions concerning the detention facility at Parwan, and still earlier, with respect to the NDAA 2012′s requirement of military detention for certain persons.  On the former the President said legislative restrictions regarding Afghan detainees “could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.”  On the latter, the President said the Administration would implement the NDAA 2012′s mandatory military detention language through procedures designed to ensure flexibility—and that the President would “exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short.”

Read more »

Today’s Headlines and Commentary

By and
Friday, October 10, 2014 at 3:40 PM

Tragic news out of Yemen: a suicide bomber reportedly blew himself up in a crowd of protesters, killing approximately 70 people. The New York Times reports that the explosion heightens fears that “Sunni extremists were mobilizing new attacks against a Shiite rebel group” that took control of the capital, Sanaa, one month ago.

In Syria, the Associated Press writes that ISIS has captured 40% of Kobani, the latest development in the fast-evolving situation there. The Washington Post reports that ISIS today began shelling a Syrian border crossing with Turkey in an attempt to “close the noose” around Kobani. The crossing is the town’s only access point into Turkey and its loss would prevent any civilian refugees from fleeing. The Washington Post has more on the “street-by-street” battles between ISIS fighters and Kurdish militiamen in the sieged city.

The stakes are high: according to the UN, thousands of people ‘will most likely be massacred’ if ISIS forces are victorious in Kobani. Reuters goes on to report that the fighting has been conducted “in full view of Turkish tanks that have done nothing to intervene.”

Turkey’s relative inaction in the fight against ISIS continues to produce friction with the US, its NATO ally, and sources from both countries are looking to end the standoff by possibly implementing a “buffer zone” along Turkey’s frontier with Syria. According to the New York Times, the buffer would require a “no-fly zone and stepped up combat air patrols to take out Syrian air defense systems.”

Yesterday, Secretary of Defense Chuck Hagel told reporters that the key assistance the U.S. would like from Turkey would be permission to use Turkish air base Incirlik and an agreement to help arm and train moderate Syrian forces. The Washington Post has more on the Secretary’s remarks, which came as Special Presidential Envoy General John Allen met with Turkish officials in Ankara. A joint military planning team will visit Ankara next week to follow up in military-to-military channels.

Meanwhile, in Foreign Policy, Berivan Orucoglu argues that “it’s time for Turkey to stop denying that ISIS is a threat.

Finally, the Atlantic has 32 photos of the battle for Kobani.

Things do not look much better in the other front of the war against ISIS either. The Washington Post brings us news that Islamic State militants are close to overrunning Iraq’s Anbar province. The Post notes that over the last few weeks, ISIS has “systematically invaded towns and villages in Anbar, besieged army posts and police stations, and mounted attacks on Iraqi troops in Ramadi, the provincial capital.” The concerning development, if successful, would put Baghdad under serious threat by opening a supply line from Syria to valuable positions from which to launch attacks.

The air strikes last month against Khorasan operatives “failed to stop ongoing terror plots to blow up airplanes” in Europe or the US, according to US intelligence officials. The Associated Press reports that the strikes apparently killed only one or two key members of the group.

Using tactics resembling ISIS methods in Iraq and Syria, Sunni insurgents in Pakistan have “increased attacks” on border areas of Shiite-dominated Iran. The Times writes that multiple Iranian officers have been killed in car bombings and planned ambushes in the past week. Elsewhere, the Daily Beast reports that some in Iran are beginning to think that ISIS is attacking the country.

According to Pajhwok Afghan News, the governor of Afghanistan’s eastern Kunar province, Shujaul Mulk Jalala, reported that shelling of the province from Pakistan has slowed down since Afghanistan signed the Bilateral Security Agreement with the United States.

Seeking to support efforts in unstable North Waziristan, Pakistani Prime Minister Nawaz Sharif made a rare visit to a military camp in the area. The New York Times notes that his tour comes three months after the military began a “sweeping offensive” against Taliban and al Qaeda activity there.

North Waziristan is not the only border region of Pakistan currently racked by instability; on the country’s disputed Himalayan border with India in Kashmir, fighting and “days of heavy shelling and gun battles” finally paused on Friday. Nine Pakistani civilians and eight Indian ones have been killed in the week-long spate of border violence, the worst “in more than a decade.” Livemint and the Nation have details here and here.

The New York Times reports that an explosion and fire ripped through the lower levels of Iran’s secretive Parchin military base outside of Tehran on Sunday night. Parchin is a key military installation in the country, and is where Iran “produces crucial elements of its missiles and other munitions.” According to official Iranian government reports, two people are missing and six buildings were ‘damaged or destroyed.’ While it is possible that the explosion was an accident, “the Iranians will almost certainly suspect foul play.” The report goes on to state that both the United States and Israel have been accused of sabotaging key aspects of the Iranian military in the past in the hopes of derailing Iran’s controversial nuclear program.

Hong Kong protesters are regrouping after the semi-autonomous city’s government rejected a meeting with the demonstrators’ leaders, Reuters reports. The decision by the government on Thursday “came as democratic lawmakers demanded anti-graft officers investigate a $6.4 million business payout to the city’s pro-Beijing leader, Leung Chun-ying.”

In a clash with the South Korean coast guard about 90 miles to the west of Wangdeung-do, “an island off western South Korea,” a Chinese fishing boat captain was shot and killed. South Korean authorities accuse the ship of “illegally fishing in South Korean waters.” The confrontation is the latest incident in the increasingly-fraught maritime relations between China and its neighbors. The New York Times has more.

According to Reuters, Putin is trying to convince members of the Commonwealth of Independent States to join the Eurasian Economic Union, the Russian-backed economic group that already commands a population of 170 million and an annual GDP of $2.7 trillion. Yet faultlines over the Ukrainian crisis, suspected Russian designs in its traditional sphere of influence, as well as other long-simmering disputes together “pose questions” as to the club’s implicit goal of “rival[ing] the economic might of the European Union.”

More bad news out of Western Africa: the World Health Organization warned on Thursday that Ebola is now ‘entrenched’ in the capital cities of Guinea, Liberia, and Sierra Leone, and is “accelerating in almost all settings.” The BBC has more. ABC News writes that in response to calls for more international aid to combat the epidemic, six US military planes holding 100 Marines landed outside of the Liberian capital of Monrovia, increasing the total amount of American troops in the “Ebola hot zone” to over 300.

On Thursday, Estonia announced that it acceeded to a US request to resettle one detainee from Guantanamo Bay, “as long as that person has not been convicted of a crime.” Fox News notes that Estonia reserved the right to choose the prisoner itself, which will be selected from the ~80 inmates that are approved for release but denied repatriation to their home country.

Where in the world is North Korean leader Kim Jong-un?  Many analysts are asking, as the Hermit Kingdom’s head continues his month-long public absence. According to the New York Times, Kim Jong-Un was not seen at an “important annual ritual” celebrating the 69th anniversary of the establishment of the ruling Workers’ Party of Korea on Friday, spurring new speculation as to his health and hold on power. However, Reuters quotes an unnamed source “with access to the secretive North’s leadership” that says that the 31-year-old leader is in “firm control of his government” but “hurt his leg taking part in a military drill.”

State attorneys general from across the US are discussing whether or not to form a multistate group to examine the cyberattack on JP Morgan this summer. Dow Jones Business News reports that the officials intend to examine whether JP Morgan, as well as other financial institutions, “followed state disclosure laws on data breaches.” The recent spate of cyberattacks on US companies is also spurring calls for “going on the offensive.” The Washington Post has more on the merits and drawbacks of “hacking back.” The New York Times writes that in the wake of the JP Morgan hack, President Obama and his top national security advisers have begun “receiving periodic briefings” on the topic. Despite the scrutiny, the motive behind the attacks remains unclear.

The Senate Select Committee on Intelligence has quietly begun investigating nearly every US intelligence program. In April, the Committee assigned staffers to the project, which have already sent “information requests to US spy agencies and…expect to complete the review by next September.” The Daily Beast reports that the new investigation, which comes on the heels of the Snowden revelations and reports of US spying on foreign government officials, is meant to find out about “intelligence collection activities that may have been kept from the committee.”

According to Politico, the White House is vexed on how to replace retiring Attorney General Eric Holder. The Obama administration is reportedly considering waiting until after the midterm elections to announce his replacement, in order to “avoid creating a new political problem for vulnerable Senate Democrats.”

The Wall Street Journal writes that President Obama is considering “overriding a congressional ban” on bringing Guantanamo detainees to the US in order to close the controversial detention facility. Such a move would likely “provoke a sharp reaction from lawmakers,” who have consistently voted to disallow the transfer of inmates to the US. Indeed, according to the Hill, Sen. Pat Roberts (R-Kan.) vowed on Friday to filibuster all legislation in the upper chamber if President Obama goes through with this plan. On that note, Ben writes here at Lawfare that he will believe Obama’s serious “the day it happens, and not a moment before.” Maybe so: a spokesperson for the White House seemed to dismiss the Journal article, as Vice’s Jason Leopold reports.

Apropos of Guantanamo, US District Judge Gladys Kessler ordered the Obama administration to comply with an October 17th deadline for redacting and releasing “dozens of videos of a Guantanamo captive being tackled, shackled, and forced-fed at the prison camps.” The Miami Herald has more on the Obama v. Dhiab case, as does Lawfare: here, here, and here.

A federal judge delayed on Thursday the detention hearing for 19-year-old Mohammed Hamzah Khan, who is accused of attempting to join ISIS. The Chicago Tribune writes that the decision comes amid concerns that prosecutors in the case wanted to “close the courtroom to the public and media.”

On Friday, the Norwegian Nobel Committee awarded its 2014 peace prize to Malala Yousafzai of Pakistan and Kailash Satyarthi of India. Malala is famous worldwide for her work to extend female education in Pakistan’s Swat Valley, as well as the Taliban’s attack on her at the age of 15, when she was shot in the head by the organization’s militants. At 17, she is the youngest ever recipient of the prize, and joins 60-year-old Sathyarthi, who is a veteran Indian activist for ending child labor and trafficking. The New York Times has more on both of the honorees.

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.

More Partisanship Over Guantanamo Closure

Friday, October 10, 2014 at 3:16 PM

Congressional Republicans are reportedly rushing to condemn the White House’s alleged consideration of ways to close Guantanamo and move detainees to the United States despite legislative prohibitions.   Senator Pat Roberts has vowed to “shut down the Senate” if the President tries to bring Guantanamo detainees to the United States (Fort Leavenworth is in his home state of Kansas) and Speaker John Boehner has challenged Democrats to “make their position known” whether they support “the President’s maneuver to override a bipartisan law” or “stand with the American people and oppose this dangerous plan.”

This is just the latest salvo in the long-running partisan battle over Guantanamo closure. As I have explained in the past, President Obama has fanned the political flames by calling Guantanamo “a facility that should never have been opened” and by announcing the Bergdahl-Taliban swap in a Rose Garden press conference. It’s therefore no surprise that he elicits hyberbolic reactions from Congressional Republicans, especially three weeks from the mid-term elections, when he continually inserts politics into a vexing national security problem.

While not surprising, the responsive politicization of Guantanamo by Congressional Republicans is similarly unfortunate.  Republicans should recall that President Bush also wanted to close Guantanamo because he considered the prison to be “a propaganda tool for our enemies and a distraction for our allies.” (Decision Points, p. 180)   He returned more than 525 detainees from Guantanamo to other countries, and Bush Administration officials also developed plans to close Guantanamo and transfer the remaining detainees to prisons in the United States (but prior to legislation prohibiting such transfers).

It is appropriate for Republicans to question how the President could transfer detainees to the United States in the face of  legislative restrictions.  But rather than condemning the President’s plans to close Guantanamo altogether, Congressional Republicans would do better to offer (publicly, not just privately) to work with the President to close Guantanamo in a responsible way, including by transferring a small number of detainees (including any convicted by military commission) to maximum-security prisons in the United States.

Border Security Today

Friday, October 10, 2014 at 1:55 PM

DHS Secretary Jeh Johnson gave a very useful speech earlier this week at the Center for Strategic and International Studies.  Entitled “Border Security in the 21st Century,” it provides a detailed overview of how our effort to secure the border (most notably, of course, the southwestern border) has matured in this century.  The entire text is well worth a read, but some highlights include:

  • More than doubling the number of Border Patrol agents since 2000
  • A near 10-fold increase in border fencing since 2002
  • Very large increases in technology deployed, ranging from night goggles to unmanned aerial vehicles, with everything in between.

Indeed, the only question I really have about the speech is the boundary conditions set for analysis.  It is appropriate to measure our progress on border security since 2000.  After all, that is the start of the century.  It also allows us to capture accurately the step-function increase in border security focus that occurred as a result of the 9/11 attacks.  But I do also wonder what the data look like for the time period 2009-14 — i.e. since the start of this Administration?  I have a sense that capital investments have leveled off — but that’s only an anecdotal sense.  Hard data would be most welcome …


Unilateral Executive Action to Close Guantanamo? Bah!

Friday, October 10, 2014 at 10:32 AM

The estimable Carol E. Lee and Jess Bravin, over at the Wall Street Journal, are reporting this morning that:

The White House is drafting options that would allow President Barack Obama to close the detention facility in Guantanamo Bay, Cuba, by overriding a congressional ban on bringing detainees to the U.S., senior administration officials said.

Such a move would be the latest and potentially most dramatic use of executive power by the president in his second term. It would likely provoke a sharp reaction from lawmakers, who have repeatedly barred the transfer of detainees to the U.S.

The discussions underscore the president’s determination to follow through on an early campaign promise before he leaves the White House, officials said, despite the formidable domestic and international obstacles in the way.

Administration officials say Mr. Obama strongly prefers a legislative solution over going around Congress. At the same time, a senior administration official said Mr. Obama is “unwavering in his commitment” to closing the prison—which currently has 149 inmates detained in connection with the nation’s post-9/11 war on terrorism—and wants to have all potential options available on an issue he sees as part of his legacy.

Let me be blunt about this: I will believe this the day it happens, and not a moment before.

If Obama were serious about using the power of his office to close Guantanamo, he would have done it already. He would have vetoed one of the bills that have carried the transfer restrictions. He would have signaled clearly in one of his earlier signing statements that he reserved the right to defy the relevant provisions—and done so. He would have used his considerable negotiating leverage in his dealings with Congress to work his will at a substantive level on the relevant legislation. He has not done these things, because closing Guantanamo—while a sincere priority, I am sure—has always been a secondary or tertiary priority. It’s a priority that has yielded to health care and to other national security needs and concerns. And so it will yield again to his higher-order priorities.

It is costless for the administration to float to reporters that it is “drafting options” for unilateral action in this area. It signals seriousness about reviving the matter. I wouldn’t be surprised to see more such stories. I will be very surprised, however, to read the one that says the president has actually signed an order to proceed with Guantanamo closure without Congress on board. Yes, I know: political calculations may be different after the mid-terms; the costs to Obama of action will be less. But even after this last election, Obama will still need to get things done—ISIS fight appropriations, for example, or authorization. The question is whether Obama will want to gum up the works on everything over where he stores a small number of people, a matter on which nearly all Republicans and most Democrats will oppose him. He won’t. If he were willing to stick his neck out on this issue, he wouldn’t have spent the last six years protecting it from the axe.

On Ryan Goodman’s Hopeful Take on Ending the Forever War (Or: Why Legal Debates About the 2001 AUMF Don’t Affect National Security Reality)

Thursday, October 9, 2014 at 3:14 PM

A few responses to Ryan Goodman’s reality-defying take on my claim that the Obama administration’s idea of ending the “Forever War” is dead:

*       Legal rationales debated by law professors will have zero influence on the duration of the “Forever War.”  The actions of the Islamist terrorists, and our success in defeating them, will determine that.  Recent events suggest that we are not close to victory.

*      Ryan and I are not experts on how serious the threat is, or on how long it will take us to defeat it.  But the people who are expert say it will take a very long time.  Two years ago Greg Miller reported in the WP (my emphasis):

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.  . . . Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years.  Among senior Obama administration officials, there is a broad consensus that such operations are likely to be extended at least another decade. Given the way al-Qaeda continues to metastasize, some officials said no clear end is in sight.

This analysis came before the rise of the Islamic State as a momentous threat.  So did Assistant Secretary of Defense Michael Sheehan’s statement last year that the war on terrorism would last “at least 10 to 20 years.”  Then came the Islamic State.  President Obama said in his September 10 speech that it would “take time to eradicate a cancer like ISIL.”  He did not say how much time, but his former CIA Director and Defense Secretary did.  “I think we’re looking at kind of a 30-year war,” said Leon Panetta.  Another former Obama administration CIA Director, David Petraeus, says “[w]e’re talking about years, many years in the case of [the Islamic jihadists in] Syria.”  Similarly, former Secretary of State Hillary Clinton said earlier this week that the United States and the Islamic State were in a “long-term struggle.”  So the people with true expertise, people who serve or served in the highest positions in the national security establishment, think the struggle with the Islamic State will go on for a very long time.  (See Glenn Greenwald’s piece, from which I got some of these quotes, for more.)

*     A lot of the debate about the “Forever War” has been about what to do with the 2001 AUMF.  The President and his subordinates said until recently that they hoped to narrow and then repeal it.  But then, in response to the rise of the Islamic State, the President stretched the 2001 AUMF significantly to extend it to the Islamic State.  And then Harold Koh, a proponent for ending the Forever War, endorsed the President’s interpretation.  These developments, underscored by the reality of a very lengthy conflict, mark the end of any realistic ambition to end the Forever War.

*      Ryan says that the Obama administration’s expansion of the AUMF to include the Islamic State has “limiting principles.”  The administration said its previous interpretation of the AUMF was limited and would not be extended under any circumstances – until it changed its mind and extended it.  Limiting principles on the new AUMF interpretation are hard to fathom, since we don’t have an official legal explanation of that interpretation.  But I wouldn’t be optimistic about any such principles.  Since the President unilaterally interprets the 2001 AUMF, and since we don’t know what new threats may appear, or how the Islamic State might morph, we cannot know how the AUMF may be extended in the future. 

    There is sometimes confusion on what ending the Forever War means.  Ryan seems to think it will end once we repeal the 2001 AUMF.  Harold Koh speaks like this as well.  I don’t see it that way.  Congress could repeal the 2001 AUMF tomorrow and replace it with something else, or with nothing at all, leaving the matter to the President’s inherent Article II powers (which Bobby has argued suffice).  That course of action would not end the Forever War.  Or, putting the point another way, if repealing the AUMF by itself ends the Forever War, then the war will end in a way that matters only to law professors. Whatever happens to the 2001 AUMF, the United States is going to continue to use aggressive force in many countries to degrade and try to destroy al Qaeda, associated forces, the Islamic State, and other threatening terrorist organizations around the globe.  That is a piece of national security reality that the Obama administration understands and that legal debates will not touch.

*      Given the reality of a persistent, long-term, ever-morphing Islamic terrorist threat, what is the best legal foundation to fight that threat?  A lot of us have been debating that question, and it is an important question.  I have made two suggestions.  First, I proposed with some Lawfare colleagues a statutory authorization that would replace the unilateral (and secretive) Executive branch expansion of the AUMF to new groups with an authorization that establishes regularity, transparency, rigor, and substantive limits.  And I also argued that Congress should specifically authorize the conflict against the Islamic State, again with limits.  Because my foundational preference is for congressional participation and contemporary authorization, I would be happy with either approach.  I ultimately prefer the former because I do not think Congress has the capacity to authorize force on a threat-by-threat basis against the Islamic State and what Leon Panetta says are the “emerging threats in Nigeria, Somalia, Yemen, Libya and elsewhere” that the United States will need to address.  Ryan says I have contradicted myself in my writings.  I don’t think so, and to the extent that I understand what Ryan is saying about my work, I do not believe he is reading my writings charitably.  But interested readers can decide for themselves.

     Ryan says that I used the occasion of the post he addresses to “try to inject life into the Hoover Institute proposal for an open-ended congressional authorization against ‘Islamist terrorist organizations.’”  This is a baffling statement since I did not mention the Hoover proposal in my post.  In any event, I think Ryan has mischaracterized the proposal, which is neither open-ended nor directed at all Islamist terrorist organizations.   I have responded to similar claims in the past, and once again interested readers can decide for themselves.

Today’s Headlines and Commentary

By and
Thursday, October 9, 2014 at 1:42 PM

We start with a tweet from Jenan Moussa, a reporter on the ground just across from Kobani in Turkish territory:

The battle for Kobani rages on.

U.S. Central Command reports that yesterday the U.S.-led coalition conducted nine strikes in Syria, eight of which were around Kobani, with another three conducted in Iraq. According to the Command, the “eight strikes near Kobani destroyed five ISIL armed vehicles, an ISIL supply depot, an ISIL command and control compound, an ISIL logistics compound, and eight ISIL occupied barracks, plus damaged another.” The report also notes that “Kurdish militia there continue to control most of the city and are holding out against ISIL.”

However, the success yesterday may have been overcome in recent hours. According to Ms. Moussa, there have been at least five airstrikes around the city today. Yet, according to a breaking Reuters update, the Syrian Observatory for Human Rights is reporting that Islamic State fighters have seized more than a third of the town. The report notes that the commander of the Kurdish forces confirmed that ISIS had made significant gains, but put the area under ISIS control about a quarter of the city.

Yesterday, even as the Pentagon said that coalition airstrikes had forced some ISIS militants out of the town, they cautioned that it might still fall, with Pentagon press secretary Rear Adm. John Kirby saying, “Kobani could be taken. We recognize that.”

While almost everyone has acknowledged that airstrikes alone cannot save Kobani, a complicated web of alliances, political grievances, and competing interests has kept capable parties from intervening. The New York Times covers the divisions, noting that Kurds insist that Turkey allow Kurdish fighters and weapons to flow into the encircled town, but Turkey has refused to do so unless the beleaguered fighters distance themselves from an an outlawed Kurdish separatist party in Turkey. While Kurdish fighters in the region have suggested they do not want Turkish military intervention, the Washington Post reports that the United States is becoming increasingly frustrated with Turkish inaction to prevent what some fear will be a massacre. One senior White House official said, “Of course they could do more,” adding, “they want the U.S. to come in and take care of the problem.”

However, Turkey’s foreign minister said that “it is not realistic to expect Turkey to conduct a ground operation on its own.” Instead, Turkey has called for a no-fly zone and for the coalition to establish a buffer zone for refugees, and for the active effort of the coalition to remove Syrian President Bashar al-Assad from power. The BBC has more on the road blocks, which are certain to be discussed when President Obama’s emissary to the international coalition, U.S. General John Allen, holds high-level talks in Ankara today.

In the wake of U.S.-led coalition’s fight against ISIS, Assad has turned his guns exclusively on other rebel groups, reports the New York Times. Some in Syria have suggested that the U.S. laser-like focus on the Islamic State has given cover to Assad, allowing him to tackle less extreme and more moderate forces – those same forces the United States may eventually need to employ to defeat ISIS. The Times notes that the attacks, which occur from the same airspace that the U.S. now occupies, have triggered resentment from Syrians who feel betrayed. Many view the White House’s decision to focus on ISIS as playing into Assad’s strategy of eliminating moderate opposition, and forcing the international community to choose between him or the extremists.

Strikes also continue in Iraq, with U.S. aircraft hitting targets inside Mosul yesterday. However, while Pentagon officials continue to assert that they have partners on the ground in Iraq – partners they argue they do not have in Syria – the Daily Beast reports that Iraqi soldiers are bribing officers in order to avoid having to fight ISIS. One officer laments that the “phenomenon is destroying the Iraqi army.”

Finally, in Foreign Policy, Shane Harris dives into the murky efforts to free Americans held hostage in Syria, where uncoordinated and inconsistent policy means that “no one’s really in charge.”

Violence surged again in Kashmir today, with Indian and Pakistani defense ministers trading warnings. BBC notes that 19 civilians have been killed since fighting resumed last Friday. The BBC also has on-the-ground reporting, visiting both sides of the border to find out how people are coping with this latest round of violence. Yet, even as the situation continues to devolve, Indian Prime Minister Narendra Modi was quoted saying, “everything will be fine soon.” The newly elected leader gave no further explanation. The sparing continued online, as #CowardModi trended on Twitter in Pakistan, while #BuzdilPakistan (coward Pakistan), trended in India.

The U.S. conducted another drone strike in Pakistan today, Reuters reports. At least three people were killed and two wounded in the fourth strike in as many days.

In an unprecedented move, sitting Prime Minister Nawaz Sharif became the first Pakistani prime minister to visit the restive tribal region of North Waziristan, a trip designed to boost morale of security forces in the ongoing military operation in the province. Pakistan’s Dawn has more.

Instability continues rocking eastern Ukraine. According to the United Nations’ human rights office in Geneva, approximately 331 people have died since a ceasefire was announced in the conflict last month. That brings the total number of fatalities to at least 3,660, in addition to 8,756 wounded. The New York Times reports that “most civilian deaths had been caused by indiscriminate shelling of residential areas” by both sides. These totals do not include alleged mass graves by separatist groups, which have not been independently corroborated.

The Times also writes that the sanctions “tit for tat” continues between Western nations and Russia. In the saga’s latest development, the Russian Duma on Wednesday passed a law through first-round reading that would authorize the Kremlin to “seize foreign assets and use them to compensate individuals and businesses being hurt by Western sanctions.” The sanctions are causing jitters among large multinational corporations with billions of dollars at stake in Russia, including Pepsi, McDonald’s, and ExxonMobil. The legislation still requires two more readings and the signature of the President to become law.

Carol Rosenberg of the Miami Herald publicizes the recent reveal in Obama v. Dhiab that Guantanamo staff this year offered six hunger-striking detainees comfy seats, communal force-feedings, and television distraction “as a way to get them to stop their food protest.” Wells Bennett and Ben Bissell have also been tracking the details of this case for Lawfare in a three-part readout, which you can peruse here and here and here.

Speaking of Guantanamo, the Associated Press reports that on Wednesday, Uruguayan President Jose Mujica said he would have to consult with his successor “about whether Uruguay should let six prisoners…resettle in the…country.” Growing public opposition to the “humanitarian gesture” has put the plan under new scrutiny.

In the latest development in the Anas al Libi trial, al Libi’s lawyer told a federal judge yesterday that his client, “grilled for six days on a Navy warship by the CIA, should “not be held to what he later told the FBI.” His lawyer claims he was held under “extraordinary circumstances.” While al Libi signed a form that waived his Miranda rights, he later revoked it and pleaded not guilty to charges that “he assisted in the attacks on two US Embassies in 1998.” Courthouse News has more.

According to the Associated Press, a government lawyer argued in a case before the 9th US Circuit Court of Appeals that national security efforts would be endangered if the FBI was “barred from sending secretive demands for customer data,” known as national security letters, “to telecommunication companies, banks and other businesses.” The case is examining whether or not gag orders barring said recipients of national security letters are free speech violations.

In a round-table in Silicon Valley that examined “The Impact of Mass Surveillance on the Digital Economy,” Google Chairman Eric Schmidt said surveillance fears are going to end up “breaking the Internet.” The Washington Post reports that Schmidt was joined at the event by US Senator and Chairman of the Senate Finance Committee Ron Wyden (D-Ore.), as well as the heads of other major technology/Internet companies. According to the Associated Press, Senator Wyden also sounded the alarm, saying NSA spying could imperil the US digital economy.

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.


Dhiab Preliminary Injunction Hearing Read-Out, Part Three

By and
Thursday, October 9, 2014 at 1:38 PM

Today marks our last little dispatch about the preliminary injunction hearing in the case of Abu Wa’El (Jihad) Dhiab, Syrian national, cleared-for-release Guantanamo detainee, and—most relevantly for present purposes—intermittent hunger-striker.

Yesterday’s open proceedings can be summarized straightforwardly: in essence, the government concluded its evidence against Dhiab’s motion for a preliminary injunction with respect to certain Guantanamo force-feeding protocols. In keeping with the day before, such evidence was presented without the calling of witnesses; instead, attorneys for the United States highlighted, and read aloud from, key pieces of documentary proof.

There followed a lengthy closed session; upon its conclusion, and at the court’s direction, the parties’ forewent closing oral arguments on the motion.  Summation instead will be presented in forthcoming written briefs; presumably, a written ruling will come after that.

You will find a brief summary of yesterday’s action below the jump.

Read more »

Some Recent NSA Debates

Thursday, October 9, 2014 at 11:33 AM

Here’s some video of some recent NSA debates.

Here’s one that took place a couple of weeks ago at Georgetown on “The NSA, Privacy & the Global Internet: Perspectives on EO 12333.” Participants included law professors Nathan Sales, Laura Donohue, DNI General Counsel Bob Litt, and former State Department official John Tyre.

This one, from Intelligence Squared US, took place the other day around the resolution: “Mass Collection of U.S. Phone Records Violates the Fourth Amendment.” Debaters include former NSA General Counsel Stewart Baker, law professor and former OLC official John Yoo, Alex Abdo of the ACLU, and Elizabeth Wydra of the Constitutional Accountability Project.

The Law and Policy of Ebola Interdiction

Thursday, October 9, 2014 at 7:00 AM

A few days ago President Obama announced his intention to do greater screening of passengers arriving in the United States, as a way of interdicting the spread of the Ebola virus. According to the Washington Post, the new procedures will include “entry” screening – that is screening upon arrival in the United States – layered on top of the already existing “exit” screening that is being conducted at airports in West Africa. “The new screening possibilities being considered by the administration include taking the temperature of travelers from affected countries upon their arrival at major U.S. airports and more-closely tracking travel histories for international travelers arriving in the United States.” According to an NPR story today, the new screening will happen at the top 5 airports in the US (including Dulles) and will at least in part also involve CBP officers “looking at patients for signs of distress.”   [Traffic to the US from West Africa typically transits Europe. Given the current African focus of Ebola the other 4 airports being covered are also European-focused: JFK, Atlanta, O’Hare and Newark. Note that this still leaves large transit hubs like Miami and Dallas uncovered for now.]

It is useful, as this plan moves forward, to consider both some of the legal issues involved in such screening and some of the practical/policy considerations that are likely driving the discussion. Herewith a short synopsis [with the caveat that my own experience is exclusively in the DHS/homeland security law space – there are applicable public health laws, with which I’m generally familiar, but I lack expertise and may misstate slightly – corrections welcome]:

Legal Authority

In dealing with a pandemic from overseas, HHS has, pursuant to the Public Health Service Act, 42 U.S.C. 201 et seq., statutory and regulatory responsibility for preventing the introduction, transmission, and spread of communicable disease from foreign countries into the United States. Applicable HHS regulations are found in 42 C.F.R. Parts 34 and 71. These responsibilities are delegated to the Centers for Disease Control and Prevention (CDC), National Center for Infectious Diseases, Division of Quarantine. Read more »

Twitter Files Lawsuit Against Justice Department, FBI

Wednesday, October 8, 2014 at 9:23 PM

Twitter filed suit yesterday against Attorney General Eric Holder, the Department of Justice, Federal Bureau of Investigation Director James Comey, and the FBI in the District Court for the Northern District of California. You can read the company’s announcement on their website, and a copy of the complaint is available here. The latter is—forgive the e-humor—a bit longer than 140 characters.

The company’s principal gripe with the government is that it has been prevented from publishing a Transparency Report detailing the number of Twitter accounts the government has sought to monitor for national security purposes. According to the complaint, Twitter submitted the document to the government on April 1, 2014; the United States informed the company in September that “information contained in the [Transparency Report] is classified and cannot be publicly released” because it does not comply with a framework for reporting data about government requests, as set forth under two surveillance laws.

The first of the pair: Section 2709 of the Stored Communications Act. This authorizes the FBI to issue National Security Letters (“NSLs”) to electronic communication service providers, compelling them to disclose subscriber information and billing records upon a certification by the FBI that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” The other statute in play is the Foreign Intelligence Surveillance Act.

The company claims that the non-disclosure and judicial review provisions of both statutes are unconstitutional, chiefly on First Amendment grounds. In particular, plaintiffs say the United States’ “position forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.” Twitter also argues that Section 2709 is unconstitutional on separation of powers grounds because it requires courts to apply a more deferential standard of review than would otherwise be constitutionally permissible. (The challenge to Section 2709 is made on an  “as applied” as well as a facial basis.)

Finally, the company also rejects the notion that Twitter is “similarly situated” to the group of technology companies which settled a dispute with the Justice Department in January. Under that settlement, tech companies could report the number of surveillance requests in broad bands of 1000, but could not disclose more specific figures. Here, Twitter claims that imposing the requirements of the settlement on Twitter, a non-party, represents both a violation of the Administrative Procedure Act and Twitter’s First Amendment rights.

According to the complaint, Twitter met with representatives of the DOJ and FBI on January 29, 2014, and sought clarification about whether the government considered them a “similarly situated” party that would thus be bound by the terms of the previous settlement, set forth in a January 27, 2014 letter from Deputy Attorney General James M. Cole (the “DAG Letter”). That letter—sent to the General Counsels of Facebook, Google, Microsoft, LinkedIn and Yahoo!—laid out the permissible disclosure options for the tech companies, and provided guidelines for the types of aggregate data regarding surveillance requests that these companies could release to the public.

Although the government has not specifically commented on the substance of Twitter’s complaint, it seems—from the breakdown of negotiations and from Twitter’s complaint—that the government’s position is likely to be that Twitter is also bound by the same disclosure requirements, both for FISA-related information and for NSLs. Specifically, the complaint alleges that at the January 29th meeting, “the DOJ and FBI told Twitter that the DAG Letter sets forth the limits of permissible transparency-related speech for Twitter and that the letter would not be amended or supplemented with additional options of preapproved speech.” Crucially, under both disclosure options presented in the DAG letter, Twitter apparently cannot report if it received zero requests, and would instead have to report the number of requests in bands, i.e. 0-250 or 0-1000 (the specific options available under the framework are laid out on page 7 of the complaint).

In other words, if the government had never issued an NSL or a FISA order to Twitter (and keep in mind that Twitter accounts are generally public), Twitter could not report that fact to its users in order to put their minds at rest, because such disclosures—not having been previously authorized by the DOJ or FBI—would run afoul of 18 U.S.C. § 2709(c)(1), which provides that the recipient of an NSL shall not disclose “to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records.”

Government sources told the Washington Post that they are currently reviewing the complaint.


NSA Report on Civil Liberties and Privacy Protections under EO 12333

Wednesday, October 8, 2014 at 4:00 PM

In January 2014, the NSA’s Civil Liberties and Privacy Office (CLPO) was created. The CLPO was tasked with ensuring that civil liberties and privacy protection considerations are integrated into the NSA’s mission activities. Yesterday—and importantly, given the disclosures about NSA surveillance, and subsequent developments—the CLPO released its Report on Civil Liberties and Privacy Protections for Targeted SIGINT Activities under Executive Order 12333.  (The latter, as readers well know, represents the legal basis for a great many of the United States’ signals intelligence programs.)

As the executive summary puts it, the report “addresses the general civil liberties and privacy protections employed by the NSA” and “documents additional procedures for targeted Signals Intelligence activities under Executive Order (E.O.) 12333.” Specifically, the report examines: 1) the NSA’s Management Activities that are applied throughout the Agency; and 2) the Mission Safeguards used in SIGINT missions conducted under E.O.12333. Significantly, the report is limited in scope: it “focuses only on U.S. person protections.”

Below, I overview the report’s contents.

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