The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, May 2, 2015, 9:22 AM

Don’t forget: the Triple Entente Beer Summit is coming up! On May 7, the cast of characters behind the Lawfare Podcast, the Rational Security Podcast, and the Steptoe Cyberlaw Podcast will meet at the Washington Firehouse for a first-of-its-kind, clash-of-the-titans live-taping extravaganza-palooza. You don’t want to miss it. Get your tickets here.

Last weekend, the New York Times published a story detailing the “unwavering support” in Congress for the CIA’s drone program. In the course of the story, the Times named three covert CIA operatives involved in conducting the program. Robert Litt, the General Counsel for the Director of National Intelligence, was none too impressed with the leaks, and said as much on Monday. The paper "disgraced itself" by publishing the names, he said.

Jack later interviewed Dean Baquet, the Executive Editor of the Times and the person who made the call to publish the operatives’ names. Baquet made a variety of points in his defense of the leak, which Ben summarized as follows:

The drone program is more of a military operation than a traditional covert intelligence program. It’s highly controversial and much debated. Some of the people who have run it are the same people who earlier ran the CIA’s interrogation program. So there’s an accountability need to describe who they are. Moreover, the CIA didn’t make a strong case for keeping their names secret.

Ben conceded that Baquet made some solid points in his defense, but pointed out that the comparison between CIA officers and military officers isn’t apt. Outing CIA officers can have a much greater negative impact than naming military officers, especially given the delicate relationships CIA operatives must maintain with the foreign governments that play host to these officers.

Mark Mazzetti, one of the authors of the piece, also weighed in, pointing out that the positions held by the exposed officers have historically not been undercover positions. Indeed, Mazzetti noted that even some CIA officials have privately expressed concern to him about the fact that more and more senior level officials now remain undercover.

Ben also shared a response from an intelligence community reader who noted that, even if the Times discounts the risk that leaking the officers’ names poses to those officers, its argument can’t countenance the risk it creates for those connected to the officers.

Whatever the merits of the Times’s arguments, Jack argued that the leak was just “the latest example of how much the norms governing the publication of classified information have loosened since 9/11.” Jack attributed this looseness to a variety of factors, including government acceptance of these new, weaker norms. This acceptance, he wrote, simply further loosens the norms: “And so the NYT has crossed another line, the government will likely do nothing material in response, and the norms against publication of classified information will spiral further downward. It is a very different new world of transparency for the U.S. intelligence community.”

The Times article that started this whole flap was, of course, brought about by revelations that a U.S. drone strike near the Afghanistan-Pakistan border inadvertently killed two Al Qaeda hostages, one of whom was an American. Late Sunday night, Bobby reported the news that the CIA's drone operations in Pakistan have thus far been exempt from the “imminent threat to U.S. persons” requirement for the use of lethal force outside areas of "active combat operations" laid out in President Obama’s May 2013 Presidential Policy Directive. The import of the hitherto classified waiver, Bobby posited, may have been that it allowed greater flexibility in targeting individuals who did not pose an imminent threat to Americans. Whatever the backlash to this latest drone revelation, Cody pointed out a new poll indicating that 60 percent of Americans favor the use of drones to “target and kill people belonging to terrorist groups like Al Qaeda.” Only 13 percent of respondents opposed that proposition.

Jack noted a recent push by Republicans to add amendments to the Iran Review bill that would, at least by some estimations, kill the legislation. While the move by lawmakers who are generally skeptical of an Iran deal may at first seem odd---without an Iran Review bill, President Obama would have a much easier time reaching and implementing a deal---Jack laid out some reasons why the push for such “poison pill” amendments might make sense.

But while these amendments might make an Iran deal easier to conclude by torpedoing the review legislation, an apparent fundamental misunderstanding between Iran and the United States about the deal may complicate things, Jack added. On the one hand, the Obama administration has consistently said that any deal would be non-binding under international law. On the other, Iranian Foreign Minister Mohammad Javad Zarif said on Wednesday that the U.N. Security Council resolution that would accompany a deal with Iran would obligate the United States under international law to lift sanctions on Iran. The two positions are simply incompatible, and Jack noted that, if senators are worried that the deal may match Zarif’s position, then there is all the more reason to pass the Iran Review bill.

Wells linked us to the U.S. government’s response brief in the habeas case of Al-Warafi v. Obama. The brief responds to Warafi’s claim that, because President Obama has publicly stated that the U.S. war in Afghanistan is over, there is no legal basis for Warafi’s continued detention.

In other GITMO-related news, Omar Khadr, the convicted war criminal transferred from Guantanamo to Canadian custody in 2012, has been granted bail by a Canadian court. At GITMO, Khadr pled guilty to throwing a grenade that killed a U.S. soldier in Afghanistan and was sentenced to eight years in 2010. Ben shared the news and posted the judge’s bail order.

With the June 1 sunset of Section 215 of the Patriot Act fast approaching, Ben informed us that Senate Majority Leader Mitch McConnell has thrown down a gauntlet in the fight for reauthorization (or not). Carrie Cordero followed by noting that Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) introduced a revised version of the USA Freedom Act.

Ben also told us that last Friday night, in response to a FOIA lawsuit, the Times received a 750-page report on Stellarwind, the NSA’s once-secret post-9/11 surveillance program and that preceded the NSA's current surveillance activities. The report was a 2009 joint project of the inspectors general of five intelligence and law enforcement agencies. According to the Times, it reveals that the program’s effectiveness was hampered by the secrecy surrounding it and that members of the intelligence community “struggled to identify any specific terrorist attacks it thwarted.”

Ingrid Weurth explained how a case in which the Supreme Court recently granted certiorari with seemingly little connection to national security and foreign relations law is actually quite germane to these topics. The case, Spokeo v. Robbins, is a Fair Credit Reporting Act case about standing, specifically about “Congress’s power to confer standing on private parties who do not suffer an injury-in-fact but have been deprived of the legal rights created by the statute.” Given that standing arises repeatedly in foreign relations cases, “the Court’s opinion in Spokeo will likely have important implications for Congress’s ability to create standing in foreign relations and national security cases more generally.”

In this week’s Foreign Policy Essay, Khalid Homayun Nadiri explored the ways in which Pakistan’s efforts to influence Afghanistan have both helped the Taliban and made Pakistan itself less stable. Despite the fact that this approach to Afghan relations actively harms Pakistan, Khalid argued, changing this approach is no easy matter.

Paul Rosenzweig updated us on efforts by state legal advisers from dozens of countries to produce Tallinn 2.0, the follow-up to the Tallinn Manual on the International Law Applicable to Cyber Warfare that will examine “the international legal framework that applies to cyber operations that do NOT rise to the level of an armed attack.”

Paul also rounded up the latest cyber goings-on in "Bits and Bytes," and noted the cool (to put it lightly) welcome given to the intelligence and defense community at RSA, the “premier convention of cybersecurity professionals in America.”

Yishai Schwartz and Jennifer Williams kept us apprised of the latest news out of the Middle East.

Wells linked us to a video feed of the House Armed Services Committee markup of the FY 2016 defense bill.

Kenneth Anderson reviewed Documents on the Law of UN Peace Operations, a new sourcebook containing exactly what you would think such a book would contain: documents related to the law of U.N. peace operations.

Cody reported the news that Stephen Preston will step down as General Counsel of the Defense Department at the end of June. Preston has served as DoD General Counsel since October 2013, and before that served as General Counsel at the CIA from 2009 to 2013. We wish him the best of luck in his future endeavors.

Ben visited the Strauss Center for International Security and Law at the University of Texas to talk about The Future of Violence: Robots and Germs, Hackers and Drones—Confronting A New Age of Threat, his new book co-written with Gabriella Blum. Audio from the talk served as this week’s Lawfare Podcast.

Relatedly, he also provided us with yet another example of the New Age of Threat: really strong tiny robots.

While Ben was away, Wells admirably filled his shoes in the "Hell in a Yemeni Handbasket" Edition of the Rational Security Podcast. The gang reunited sans Wells for the newest episode, the “Drones Who Cannot Be Named” Edition.

 In this week’s Steptoe Cyberlaw Podcast, Stewart Baker sat down with Mary DeRosa, who served as Legal Adviser to the National Security Council during the early years of the Obama administration.

And that was the week that was.