The Week That Was

The Week that Was: All of Lawfare in One Post

By Staley Smith
Saturday, July 4, 2015, 10:00 AM

On Wednesday, Ben spoke with FBI Director James Comey about the growing number of Americans engaging with ISIS through Twitter and mobile apps. Concerns are mounting for the FBI about the effect of end-to-end encryption on its ability to detect and interdict ISIS recruiting and operational activities. This makes for a particular category of risk, as Ben put it: persons whom authorities believe to be communicating with ISIS, for whom surveillance is lawful and appropriate, but for whom signals interception is not technically possible due to end-to-end encryption. It's a stark illustration of what Comey and others refer to as “going dark."

A big week for translations by Jihadology's Aaron Zelin: First he presented us with a translation of a letter sent from the Taliban to ISIS leader Abu Bakr al Baghdadi earlier this month. In the text, the Shura Council of Afghanistan claims that America and its allies “have almost abandoned the battlefield and mujahideen are expanding their territories day by day.” The Taliban also requests that the Islamic State refrain from engaging in Afghanistan territory because it is essential to their success to have unity “in lines of jihadists.” Divisions in the jihadist ranks, it seems, are bad for business.

Aaron also offered a translation of an article by Sheikh Abu Muhammad al Maqdisi, a Salafi jihadist writer best known as the mentor of Abu Musab al Zarqawi. Al Maqdisi condemns Islamic State extremism and the group's distorted interpretation of Islam, asserting that its members “do not raise their head for the Sharia rulings except if it’s in their benefit.”

Additionally, Aaron contributed a translation of a statement from Al Qaeda-affiliated terrorist group al Shabab, “Avenging the Honour of our Prophet,” following its “blessed attack” on a military base in Somalia. The seige left as many as 80 Burundian soldiers dead; the group seized the entire cache of weapons at the base, including vehicles and heavy weaponry, before setting the base on fire. The raid took place near a location where dozens of Ethiopian African Union soldiers were massacred by the Somalian terrorist organization two weeks prior.

Lastly, Aaron provided a statement from the Islamic Movement of Uzbekistan's leader, Uthman Ghazi, in which the latter proclaims that it has been thirteen years since anyone has heard “From You, Mullah Muhammad Omar.” So what gives? Ghazi alleges that because Omar, the supreme commander of the Taliban, has not been seen for 13 years, he must be dead. Were Omar alive, says Ghazi, he would not have remained “silent when the disbelievers disseminated a series of cartoons and films mocking the Prophet Muhammad” or when the Islamic State in Iraq and Sham was proclaimed.

The deadline for a nuclear deal between Iran and the P5+1 has been extended yet again. Both sides agreed to extend talks for another week as President Obama, in what seemed to be a response to the Ayatollah’s ultimatum last week, warned that “[t]here’s still some hard negotiations to take place, but ultimately this is going to be up to the Iranians” to meet the demands of the international community. Last week, a bipartisan group of American diplomats, legislators, policymakers, and experts released a public statement on U.S. policy toward the Iran nuclear negotiations. Yishai Schwartz outlined three different interpretations of the statement that, together, highlight the the complexities of bipartisan consensus building, and the overwhelming advantage the White House now enjoys over opponents of a nuclear deal.

Cody informed us that the Department of State has named former National Security Council official Lee Wolosky as the new special envoy for the closure of Guantanamo Bay, a position that has been vacant for the past six months. U.S. Secretary of State John Kerry described a few of Wolosky’s tasks: “Lee will assume lead responsibility for arranging for the transfer of Guantánamo detainees abroad and for implementing transfer determinations, and overseeing the State Department’s participation in the periodic reviews of those detainees who are not approved for transfer.”

Laurie Blank disputed the application of the law of armed conflict (LOAC) in the United Nations Gaza Report, a law that applies to all parties to a conflict. She focused on three areas where the Commission contorts or misapplies the law: warnings, civilian vs. military objects, and the role of context and policy or strategy in analyzing a party’s law compliance. In doing so, the report completely undermines the foundational notion of equal application of the law and relies on an effects-based analysis, which runs counter to LOAC’s basic premise.

Ashley Deeks considered whether the United Kingdom will begin airstrikes against ISIS in Syria. Thirty British citizens were killed last week in the terrorist attack on a Tunisian beach and hotel, which has spurred renewed interest in participating in coalition airstrikes against ISIS inside Syria. Prime Minister David Cameron will seek approval from parliament before carrying out any airstrikes. Ashley contended that Cameron’s government will need to articulate more precisely its legal theory before Parliament is convinced.

Bobby tipped us off to the 3rd annual Transatlantic Workshop on International Law and Armed Conflict which will occur at Oxford next week. Some of the topics that will be debated and discussed are: targeting in armed conflict; humanitarian access in armed conflict; foreign intervention in non-international armed conflicts; the judicial application of international humanitarian law.

Also apropos of LOAC, Herb Lin questioned Charlie Dunlap's impressions of the new Department of Defense Law of War Manual that was issued last month. Herb reflected on the implications of Charlie’s statements regarding the manual’s cyber operations; according to Herb, it seemed that “creating a botnet using civilian computers for attacking an adversary in cyberspace does not violate the laws of war, or at least the DOD’s interpretation thererof.”

Things Military: In last Sunday's Foreign Policy Essay, Raphael Cohen detailed the U.S. Military’s morale “crisis” and suggested the “military’s discontent may stem from dissonance between the commitment to, and pride in, the mission in Iraq and Afghanistan and the knowledge that these sacrifices have not yielded the desired results.” Raphael insisted that the morale problem requires hard critical thinking about what went wrong in wars over the past ten years.

Cody advised us that the Pentagon unveiled a new National Military Strategy this week, the first update to the strategy document in four years. In its introduction, Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey states that, “global disorder has significantly increased while some of our comparative military advantage has begun to erode.” General Dempsey anticipates that the United States is “more likely to face prolonged campaigns than conflicts that are resolved quickly,” and that Russia, Iran and North Korea pose the greatest threats to U.S. and global security.

In this week’s Rational Security podcast, the “War on the War on Terror” edition: Senators call for hearings on domestic terrorism in the wake of the Charleston shootings; do we need a new National Commission on the War on Terrorism? And a cat fight between the FISA court and the 2nd Circuit Court of Appeals.

Speaking of foreign intelligence surveillance: Cody advised us that the Foreign Intelligence Surveillance Court has “revived the National Security Agency's bulk collection of Americans' phone records” for an additional five months, as allowed under the USA Freedom Act passed earlier this month. He presented the order in full.

FISC-overseen surveillance may face new legal challenges. In a significant win for privacy advocates, the U.S. Supreme court decided that the Fourth Amendment blocks the City of Los Angeles from enforcing regulations that require hotel operators to disclose particular records to police. Paul Rosenzweig argued that “the Patel court’s decision to permit a facial challenge to the constitutionality of the Los Angeles inn-keeper records ordinance makes it more likely that a facial challenge to the constitutionality of the Section 702 program will be heard.”

Paul presented some of the lecture material he produced for a course series on cybersecurity. In his piece, Paul describes the surveillance which came to pervade Communist East Germany; the notorious Stasi monitored telephone conversations, utilized counter-intelligence systems and even had a division responsible for garbage analysis. (The latter rooted around in trash cans for evidence that East Germans had been eating subversive western foods.) The most distinguishable feature of the East German surveillance state, in Paul's view, was the massive size of its informant system.

In the week’s Lawfare Podcast, Porn, Condoms, Pregnant Teens and the Privacy Benefits of Privacy Threats, Ben spoke at the George Mason Law and Economic Center on his recent Brookings paper, “The Privacy Paradox: The Privacy Benefits of Privacy Threats.” In the talk, he considers the very flawed way we keep score in contemporary privacy debates through tackling questions about pornography, Fifty Shades of Grey and more. For those interested in Ben’s paper, he recommended checking out a new draft paper by Columbia Law School professor David E. Pozen, “Privacy Privacy Tradeoffs.” The paper covers some similar thematic ground: the idea that while we often think of privacy goods as clashing with other values, they often clash, in fact, with other privacy goods. And, Ben says, Pozen attempts to apply this idea to the controversies over NSA surveillance.

In Episode #73 of the Steptoe Cyberlaw podcast, Stewart Baker sat down with cybersecurity policy expert Rob Knake from the Council on Foreign Relations to discuss the weak response from the United States over the recent OPM database breach. He also pondered Google's fight to overcome a gag order and why President Obama was foolish to promise he would not spy on the French President’s communications.

Meditating on the fallout of the OPM hack and security debacle, Ben asserted that the intelligence community itself must take responsibility. The notion that the security clearance process is “the first step in building a bridge of trust between you and the Agency” is a rather comical one. The United States forces you to cough up your deepest darkest secrets to make sure you are trustworthy, yet it seems the government itself isn’t so trustworthy after all. Ben then posed, “Is it reasonable for the government to insist that you strip naked, so that government can assess whether you present a tolerable security risk, when the government demonstrably poses a much higher risk in this respect to you than you do to it?”

Ben announced the Lawfare Drone Smackdown, Part Deux. Send us your drones, send us your robots; ask not what your drone can do for you, ask what we can do with your drone!

Ingrid Wuerth alerted us to the 110 anniversary of the death of John Hay, Secretary of State to Presidents McKinley and Roosevelt. John Hay had a fascinating tenure as Secretary of State from 1898 – 1905, a time known for the increase in the power of the President, especially during Roosevelt's terms.

And that was the week that was.