The Week That Was

The Fortnight That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, December 5, 2015, 8:38 AM

Ben shared 10 reasons to support Lawfare this holiday season. We promise the “big plans for the coming year that you really want us to be able to afford” are incentive enough but, in case you need more, “every dollar you donate between now and December 30 constitutes a separate entry into our drawing for this year's grand prize: Lawfare's special ‘Handmaiden of Power’ Starter Pack.”

In her first post for Lawfare, our new managing editor, Susan Hennessey, considered the national security implications of immigration and examined the role of immigration fraud in terrorism prosecutions. She concluded that the real issue posed by immigration “is how to strike the appropriate balance between facilitating access to the United States—thus obtaining tremendous economic and cultural benefits—and rigorous security measures which inevitably make entry more difficult.”

Ben shared the "Gobble, Gobble, Toil and Trouble" Edition of Rational Security, which featured Susan Hennessey in her first podcast appearance. The Rational Security crew and Susan discussed what Turkey’s shoot down of the Russian warplane means for Putin.

 

Following reports that the pilots of the Russian plane had been shot after ejecting from the craft damaged by Turkey, Adam Klein pointed out that this action would constitute a war crime. He cited the Geneva Conventions and DoD rules which state that “‘persons parachuting from aircraft in distress’ are considered hors de combat” and cannot be intentionally fired upon.

Reflecting on the Paris attacks and the wave of Islamic State attacks on global targets, Jen Williams looked at why experts failed to notice the globalization of the group’s strategy. Regardless of how the shift occurred, she suggested that ”there is no longer any doubt that the group and its adherents have both the desire and the capability to carry out relatively sophisticated mass-casualty attacks in the West, or at least in Europe.”

Jessica Stern asked what ISIS really wants. She suggested that the group appeals most to those who have felt oppressed —including potential foreign recruits— and argued that the United States and its allies will have to go beyond efforts to contain the group geographically and work to limit the spread of its ideological appeal among potential recruits.

Cody linked to the recently published report from Lorenzo Vidino and Seamus Hughes of the Program on Extremism at George Washington University entitled ISIS in America: From Retweets to Raqqa. The report looks at cases against U.S. persons related to the Islamic State's activities as well as the individuals’ various motivations, backgrounds, and links to the ISIS.

Paul Rosenzweig discussed the renewed importance of homeland security following the Paris attacks. While acknowledging the inevitability of terrorist attacks, he predicted where we might expect to see significant policy changes in efforts to strengthen security.

Bruce Schneier explored the policy repercussions of the Paris attacks. Arguing that the “politics of surveillance is the politics of fear," he questioned whether Paris would shift the debate in favor of increased government powers with regards to surveillance and other authorities deemed necessary to stave off terrorist attacks.

Ashley Deeks analyzed the unprecedented provision in the UN Security Council Resolution 2249 which condemns ISIS and calls on all U.N. member states “that have the capacity to do so to take all necessary measures, in compliance with international law [...] to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL.” The resolution was passed on November 20, following the Paris attacks.

David Bosco highlighted the United Kingdom’s parliament debate over what UN Security Council Resolution 2249 actually says. Adopted a week after the attacks in Paris, the resolution appears to provide grounds for military action and use of force against the Islamic State as Prime Minister David Cameron suggests, but its failure to invoke Chapter 7 explicitly raised questions among Labour opposition leader Jeremy Corbyn. For more on the British debate, Cody linked to a U.K. House of Commons Library briefing paper on the "legal basis for UK military action in Syria," which explores the implications of UNSC Resolution 2249.

Following the U.K. Parliament’s decision to authorize strikes in Syria, Zoe Bedell pointed to the irony that the British Parliament, unlike the U.S. Congress, actually debated and voted on the use of force in Syria, even though the British Prime Minister can legally deploy troops without Parliament’s approval.

Jack opined that the Obama administration only wants an AUMF in the fight against ISIS in order to boost “troop morale.” In a testimony before the House Armed Services Committee, Secretary of Defense Carter and Joint Chiefs of Staff Dunford both suggested that while the President has the legal authority he needs to wage war against ISIS, the creation of an ISIS-specific AUMF would demonstrate support for troops involved in the region.

Butch Bracknell considered whether the U.S. policy of warning ISIS oil transport truck drivers in advance of attacking their trucks was motivated by legal or policy concerns. He concluded that as long as “U.S. and allied military units establish the trucks benefit ISIL military capacity, there is no legal obligation to warn the drivers.” Aurel Sari responded to Bracknell’s post. After exploring whether or not the trucks and their drivers constitute military targets, he suggested that the policy to warn drivers makes sense from both a policy and legal perspective.

Ben wrote about comments made by G.O.P. candidates Donald Trump and Ben Carson on the against Muslim Americans wherein both candidates are peddling ficticious and inflamatory tales. In what Ben refers to as “Trump-Carson blood libel,” he writes that, “assuming they are not suffering both from the same hallucination, they are lying in a fashion calculated to instill anger and hatred against a minority population at a time when nerves are raw, fears are high, and tempers are short.”

Daniel Severson articulated which powers the French government has gotten through its extended state of emergency. He outlined the expanded powers granted to the state, and questioned whether these powers were constitutional.

Aaron Zelin shared the latest Jihadology Podcast, which features Charles Lister on the history of the Syrian jihad. The two explored pre-2011 Islamism and jihadism in Syria, the entrance and evolution of Jabhat al-Nusra, Ahrar al-Sham, and Jaysh al-Islam into the Syrian conflict, as well as the reasons foreign fighters entered the conflict. They also discussed the entrance of ISIS into the war and what the group’s rise has done to influence other jihadi movements in the country.

Paul Rosenzweig provided a metaphor to explain counter-terrorism: raising a dog. He argued that by substituting the words "terrorist" for "dog;" "DHS" for "mom and dad" or "owners," and "the American public" for the "child," one creates the perfect counter-terrorism metaphor.  

Paul also provided a primer on refugee law. He distinguished refugees, asylum seekers, and immigrants before examining how refugees are processed and resettled. He suggests that although refugees pose some “bad but manageable” effect on security, there are fare better ways to enter the U.S. as a terrorist than by applying for refugee status.

Paul followed up his primer by posting a letter signed by several former high-level national security officials to Senator Jeff Sessions (R-AL) in opposition to the Senator’s proposals to halt the resettlement of Syrian refugees to the United States.

Paul also shared Senator Rand Paul's (R-KY) proposal to kill the Visa Waiver Program. Though the Senator's amendment was rejected, Rosenzweig notes that the Senator is not a libertarian but rather "a nativist and an isolationist."

Ammar Abdulhamid answered the question, “Who are those Syrian refugees really?” He wrote that “Syria’s refugees are ordinary people who would have preferred to stay at home, or at least stay in any of the neighboring countries where the challenges of integration might have been less, shall we say, challenging” reminding us that “no people this large and diverse can be painted with one stroke unless prejudice is involved.”

Ben applied for Estonian e-residency after the Economist’s Edward Lucas asserted the superiority of Estonia’s cybersecurity during the third Hoover Book Soiree. Estonian e-Residency provides e-Residents with a government-issued digital identification card which “is designed to allow people to verify their identities for purposes of signature, login, secure communications, and other interactions with government, companies and individuals.” Ben will keep Lawfare readers updates as he pursues his application, so stay tuned!

Stewart Baker provided the latest edition of the Steptoe Cyberlaw Podcast in which Jason Healey of the Atlantic Council and Columbia University and the Steptoe gang debate whether the Internet is really worth it. In doing so, they consider the possibility of a “Leviathan Internet, where the inherently controlling aspects of the network are embraced by governments around the world.”

Andrew Keane Woods considered the increasing territorial control over the Internet asserted by states. He suggested that the real issue is that “states must be allowed to exercise local regulatory control over the Internet in ways that are consistent with their legitimate government interests [...] without compromising the Internet’s ability to act as a global platform for communication, commerce, and speech.”

Ben updated us on the latest happenings inside the cyber arm of the People’s Liberation Army, following reports that the Chinese military has begun to dismantle its cyber espionage branches after the U.S. indictments of PLA hackers. He concluded that “maybe those Chinese cyber espionage indictments weren’t so dumb.”

Matthew Dahl asked if agreements on commercial cyber espionage could lay the groundwork for an emerging cybersecurity norm, writing that “it is encouraging that highly influential global actors have taken preliminary steps towards rules governing the actions of states in cyberspace.”

Cody shared that Chinese officials now claim that the OPM hack was not a state sponsored attack but “a criminal case.” Chinese officials reportedly arrested the supposed hackers in what appear to be the first signs of accountability for the “devastating” hack.

Cody also alerted us to the end of the NSA’s bulk metadata collection program under Section 215 of the Patriot Act.

Stewart Baker interviewed the New York Times’ Charlie Savage in the 90th episode of Steptoe Cyberlaw Podcast. The two discussed Savage’s new book, Power Wars: Inside Obama’s Post-9/11 Presidency. Also on the podcast, the Steptoe crew looks at the litigation over the recently expired NSA 215 program.

Cody posted this week’s Lawfare Podcast which featured Jack’s discussion with Charlie Savage on his latest book at the second Hoover Book Soiree. The two explored the Obama administration’s national security legacy.

Ben linked to DC Circuit Judge Brett Kavanaugh’s opinion on the Section 215 metadata program as outlined in the Circuit’s decision to reject a rehearing en banc of Klayman v. Obama.

Paul Rosenzweig updated us on the Email Privacy Act, which now has 300 co-sponsors in the House of Representatives. The bill “would update the Stored Communications Act to apply a warrant requirement to law enforcement requests for email content from internet service providers.”

In light of the rekindled debate about encryption and the limits of surveillance following the Paris attacks, Matthew Waxman and Doron Hindin discussed Israeli regulation of encryption. They note that Israel’s Ministry of Defense encourages “private-sector engagement with government on matters related to information security” which “helps ensure that the MOD is continually updated regarding encryption developments and, when necessary, serves to initiate collaboration in managing specific encryption-related challenges.” Responding to their piece, Ben asked if Israel had avoided going dark.

In an attempt to distinguish the “technical debate” over encryption from the “values debate,” Herb Lin offered a biometric approach to encryption which would distinguish between communications and other forms of data.

Jennifer Daskal and Andrew Woods proposed a framework for cross-border data requests. Their proposed framework incorporates elements of expedited access to data, human rights considerations, and transparency. Greg Nojeim responded to their proposal, specifically as “it relates to the U.S. probable cause requirement for cross-border requests for content.”

Cody shared that the five amici curiae for the Foreign Intelligence Surveillance Court have been announced, as part of reforms enacted under the USA Freedom Act.

David Ryan explained what the Second Circuit Court of Appeals’ recent decision in New York Times v. Department of Justice means for future FOIA lawsuits.

Paul Rosenzweig alerted us that the annual conference on European Data Protection in Brussels was cancelled due to security concerns.

Cody highlighted a few GTMO relevant passages of the 2016 National Defense Authorization Act and shared the White House’s statement on the NDAA as it relates to the closure of the U.S. detention facility at Guantanamo Bay.

Ben linked to the D.C. Circuit’s en banc oral argument in al Bahlul.

Bobby shared the news that former Russian tank commander Irek Hamidullin has received a life sentence for his involvement with the Haqqani Network. He noted that while the decision is a victory for the administration and for the Department of Justice, he does not anticipate it will impact the politics surrounding the Guantanamo closure.

Ben posted the “Slippery Slope” edition of Rational Security. In this edition, the crew discussed President Obama's recent decision to send over 100 special operations forces to Iraq to aid the campaign against the Islamic State. Among other subjects, they also considered the slowdown in Chinese hacking.

 

Aaron Zelin posted the latest Jihadology Podcast in which he is joined by Dalia Ghanem-Yazbeck to discuss the history, legacy, and relevance of Algerian jihadism today.

 

 

Marc Meyer considered why mass shootings are not an effective tactic for terrorism in America given that such violent attacks rarely spark a long-term, continued interest in the attackers’ ideologies.   

Rebecca Crootof explained why the prohibition on permanently blinding lasers is a poor precedent for banning autonomous weapons systems. She suggested that “states would ideally negotiate an entirely new framework convention on autonomous weapon systems, with additional protocols addressing issues of accountability, proliferation, and other specific subjects.”

Herb Lin highlighted the final report from the Unmanned Aircraft Systems Regulation Task Force Aviation Rulemaking Committee. In its report, the Task Force notes that “a person may only operate an aircraft when it is registered with the FAA.” Zoe Bedell walked us through the specific recommendations issued by the Task Force which “proposed a system where drone operators must go online and provide their names and street addresses to the FAA.” The FAA has ultimate authority as to whether to implement the recommendations contained in the report.

Matthew Weybrecht noted the State Department’s recent letter to Rep. Mike Pompeo (R-KS) which affirms that the Iran deal is only a political commitment as opposed to a legally binding obligation. He added that “while this issue is not new, it has received some heightened scrutiny in the wake of multiple Republican presidential candidates vowing to repudiate the deal if elected.”

Julian Ku argued that the United States should “hold its fire over China’s boycott of UNCLOS arbitration” of the Philippines’ South China Sea claims against China. Among the reasons he puts forth, the United States is not a signatory to UNCLOS and has been content to disregard international tribunal rulings in the past. He suggested that the “U.S. should focus its criticism and response on island building rather than arbitral procedures.”

Ingrid Wuerth considered the Supreme Court's unanimous decision in in Sachs v. OBB Personenverkehr. The Court ruled that OBB, an Austrian government-owned railroad company, was immune from the Foreign Sovereign Immunities Act.

Ellen Scholl gave us the latest edition of Hot Commodities in which she notes new reports on the human and economic toll of extreme weather patterns around the world and examines how those countries most impacted have responded. She also considered the effect that Russia and Turkey’s recent tensions could have on energy ties between the two countries.

Finally, Jack provided the December 2015 supplement for his casebook with Curtis Bradley, Foreign Relations Law: Cases and Materials.

And that was the fortnight that was.