Today's Headlines and Commentary

Today's Headlines and Commentary

By Cody M. Poplin, Sebastian Brady
Thursday, May 7, 2015, 2:24 PM

The Second Circuit Court of Appeals has ruled that the NSA’s warrantless bulk collection of Americans’ phone records under Section 215 of the Patriot Act is illegal. The Hill notes that the ruling, written by Judge Gerard Lynch, does not extend to Fourth Amendment questions, instead limiting itself to whether or not the NSA program is consistent with the current statutory regime; the appeals court finds that the NSA’s program “exceeds the scope of what Congress has authorized.” However, the ruling did not come with an injunction ordering to program to cease. Even so, Stewart Baker, the former NSA general counsel told the Wall Street Journal that the ruling “really opens the door pretty wide to future lawsuits from all across the country.” The majority opinion can be found here, and a concurrence from Judge Robert Sack can be found here. Charlie Savage of the New York Times has more.

Israeli Prime Minister Benjamin Netanyahu formed a new government last night, less than an hour before the deadline to do so. The Washington Post reports that the coalition government appears to be further to the right and more religious than the last; the Associated Press adds that the coalition brings Israel’s ultra-orthodox parties back into power after two years in opposition.

Israeli experts, however, said that the government was unlikely to last long, the Times notes. The coalition has just 61 of the 120 seats in the Israeli parliament and was formed only by making concessions to the more conservative Jewish Home party led by Naftali Bennett, with whom Prime Minister Netanyahu has repeatedly clashed over a variety of issues. And while Netanyahu’s aides reportedly left open the possibility of a national unity government including opposition leader Isaac Herzog, Herzog had only harsh words for Netanyahu’s camp: "I have no intention of serving as a fifth wheel, uncorker or hole-plugger for Bibi Netanyahu. I intend to replace Netanyahu, and I intend to lead a fighting opposition."

After a meeting with Secretary of State John Kerry yesterday, Saudi Arabia has reportedly offered a five-day suspension of its attacks in Yemen as part of a “humanitarian pause” in the conflict, the Post reports. However, it remains unclear when the pause, which appears to be contingent on Houthi rebels agreeing to not exploit the pause in aerial attacks to their own advantage, would take effect. But if the ceasefire does take hold, the Saudi foreign minister noted, it could possibly be extended.

Secretary Kerry expressed confidence in the sincerity of the offer, saying that “I am convinced of their desire to implement the pause,” the Times writes. The Secretary added that the Houthi rebels may also “be willing to engage in a pause.” The potential for a temporary cessation in the fight comes as amid a growing humanitarian crisis in the country.

But just as Saudi Arabia was opening the door to a ceasefire, a Saudi military spokesman indicated that it was considering ground operations against Houthi militias to prevent cross-border mortar attacks on Saudi towns, Reuters reveals. The spokesman did not, however, indicate whether Saudi Arabia would back a request by the Yemeni government for the United Nations to authorize the deployment of foreign troops to beat back Houthi rebels, especially in the cities of Aden and Taiz.

The Syrian army, working in concert with Hezbollah militants, has reportedly reclaimed areas in the Qalamoun Mountains along the border with Lebanon from insurgents, including some militants from al Nusra Front, Reuters reports. The report came from Hezbollah, which announced on Tuesday that it would fight al Nusra forces in the area.

In the face of this victory, however, Syrian President Bashar al-Assad admitted yesterday that his military has faced serious “setbacks” in recent weeks, the Post notes. He asserted, however, that these defeats were part of the “ups and downs” of war, countering claims by many analysts that the recent string of defeats indicates that Assad is losing his grip on power in the country.

The Times adds that, according to rescue workers in the country, the recent swing of momentum away from the regime has coincided with an increase in the use of chemical weapons by the Assad regime. Despite agreeing to dismantle its chemical weapons stores two years ago, there appears to be increasing evidence that the regime is dropping jerry-rigged chlorine bombs in areas held by rebels. The Times notes that “The Assad government has so far evaded more formal scrutiny because of political, legal and technical obstacles to assigning blame for the attacks.”

The Pentagon acknowledged yesterday that ISIS militants are threatening to seize Iraq’s largest oil refinery, the Baiji refinery, and that the militants are already in control of part of the complex, McClatchy notes. Pentagon spokesman Army Col. Steve Warren sounded a somber note yesterday: “It’s a tough fight. I don’t know which way it’s going to go.” The Wall Street Journal adds that losing the refinery jeopardizes Iraqi plans to retake Mosul. According to one U.S. military official, “If you want to move on Mosul you have to take Beiji.”

As the United States works to bolster Iraqi forces fighting ISIS, the Obama administration is trying to get lawmakers to excise a controversial provision in a congressional spending bill that drew the ire of the Iraqi government. The Post reports that the provision, included in a House defense spending bill reported out of committee last week, mandates that some funds earmarked for Iraqi military assistance be used to support Kurdish forces and Sunni tribal fighters. Moreover, the bill would have deemed some of these groups “a country,” a move that infuriated the Iraqi government and a prominent Shiite cleric, who threatened to mobilize militants loyal to him to attack U.S. interests in response.

Helping the Obama administration’s efforts to mitigate the fallout from the provision, the president of the Kurdish region’s government rolled back his earlier demand that the United States directly arm forces in the region for their fight against ISIS. Foreign Policy notes that the shift by the Kurdish leader comes after a Tuesday meeting with President Obama and Vice President Biden, in which the two U.S. leaders expressed their commitment to a united Iraq.

In Tikrit, the city recently recaptured from ISIS militants, 11 mass graves are being unearthed, the Times reports. While authorities are still working to identify the victims found in the graves, authorities believe that around 1,700 Shiite military personnel were executed by Sunni ISIS militants in the area. The Times writes that the site of the massacre, which has become a destination of Shiite pilgrimage, is “already taking a prominent place in Iraq’s ledger of sectarian atrocities,” highlighting the sectarian divide that will remain even when ISIS has been defeated.

The Wall Street Journal reports that Iran has released the ship that it seized in the Strait of Hormuz last week, according to Maersk Line, the company that owns the vessel. The paper adds that the U.S. Navy’s mission to accompany U.S. ships through the Strait, initiated in response to the boat's capture, has ended. The Times writes that the denouement of the brief crisis indicates that neither side wanted military shows of force to upset their ongoing nuclear negotiations.

However, Iran’s Supreme Leader expressed wariness about those talks in a speech yesterday, the Wall Street Journal notes. Ayatollah Ali Khamenei said in the speech that Iran would not partake in the negotiations under military threat, and accused two unnamed U.S. officials of threatening a military attack against Iran. Apparently, the Supreme Leader didn’t elaborate and it remains unclear what he was referring to.

The United Nations Security Council is preparing to introduce a resolution that would allow Europe to use military force to stop boats smuggling migrants across the Mediterranean Sea. The measure comes amid an influx of migrants that has seen hundreds of migrants drown on the journey; the death toll for this year alone is already 1,800, according to the International Migration Organization. The Times has more on the measure and the legal and diplomatic questions it raises.

Yesterday, India’s upper house of parliament unanimously approved a land boundary agreement between India and Bangladesh which had been reached in 1974, and which would allow the two countries to exchange enclaves along their shared border (for an in-depth explanation of these enclaves from Lawfare, see here). If the lower house of the legislature signs off, as it is expected to do today, the deal will then need the approval of the legislatures in at least half of India’s 29 states. Livemint and the Hindu provide more coverage of the agreement.

The Pakistani Taliban has absorbed three other jihadist groups, the Long War Journal reveals. One of those groups is led by Qari Matiur Rehman, a senior leader in al Qaeda, indicating that the merger may have been orchestrated by al Qaeda leadership. The move comes as the Pakistani Taliban looks to rebuild after a 2014 split that followed the killing of the group’s emir by a U.S. drone strike.

Britain goes to the polls today to elect a new parliament and possibly a new prime minister. The AP has a live-blog of the election, and also notes that, while the parties’ allocation of seats will be known tomorrow, the formation of a new government could take weeks.

In Germany, the Guardian reports that pressure is mounting for Chancellor Angela Merkel to reveal exactly how much she knew about the level of German cooperation in the NSA’s surveillance operations. As both the Austrian government and Airbus file legal complaints with German prosecutors over the recent revelations, German parliamentary committees are also investigating exactly who knew what and when. Reuters shares that in response, Germany has claimed it is halting its cooperation with the NSA. Some commentators have suggested that the revelations could be the first cracks in the armor of her government, with 62 percent of Germans saying her credibility was in doubt.

Yesterday, the lower house of the French parliament passed a new surveillance law granting French authorities sweeping new authorities to collect and analyze bulk metadata, read text messages and email, and tap cellphones with almost no judicial oversight. In the Times, Alissa J. Rubin and David Sanger echo Ben in their analysis that what Europe has really objected to is not surveillance, but the “American involvement in that surveillance.”

In Canada, lawmakers have also passed a new anti-terror law expected to dramatically expand the powers and reach of the Canadian Security Intelligence Service (CSIS). The bill criminalizes the promotion of terrorism, makes it easier for police to arrest and detain individuals without charge, and allows for the first time CSIS to spy outside Canada. Agence France-Presse has more.

If you’re in the Washington, D.C. area tomorrow, take a look skyward around noon. In what is billed as one of the most diverse arrays of World War II aircraft ever assembled, more than two dozen different types of vintage military planes will fly above the National Mall at 12:10 pm, marking the 70th anniversary of Victory in Europe Day.

In light of the recent attack on a cartoon contest for drawings of the Prophet Muhammad in Garland, Texts, the AP carries a round-up of recent examples of arrests in “homegrown terrorism” cases.

The Hill reports that in a letter to President Obama, Senators Patrick Leahy (D-VT), Dianne Feinstein (D-CA), and Dick Durbin (D-IL) have urged the president to move quickly to transfer more detainees from the U.S. military detention facility at Guantanamo Bay, Cuba, warning that “time is of the essence.”

Shane Harris at the Daily Beast informs us that in a new book, former deputy director of the CIA Michael Morell says that Edward Snowden’s leaks about U.S. surveillance capabilities and operations “played a role in the rise of ISIS.” In the memoir, Morell also claims that “within weeks of the leaks, terrorist organizations around the world were already starting to modify their actions,” shifting their communications to “secure” platforms and using encryption.

Finally, KVUE out of Austin, Texas has more information on the latest conspiracy theory to sweep through the Lonestar state: that the Obama administration is planning the military takeover of the state of Texas.

Parting Shot: In their seemingly absurdist pursuit of the legitimacy of a modern nation-state, ISIS has announced that it has re-opened a five star hotel in Mosul, Iraq. The Daily Beast has more.

ICYMI: Yesterday, on Lawfare

Bobby pointed us to a document produced by the U.N. Working Group on Arbitrary Detention laying out what the prohibition on arbitrary detention means, including in the context of armed conflict.

Ashley Deeks detailed how the Snowden leaks have led states to be more open about their opinion on spying and its relation to international law.

Yishai analyzed three different reports on the 2014 war in Gaza.

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