Archive | National Security

New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. […]

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Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30″ a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction […]

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Why Engaging in More Counterterrorism “Capture” Ops Makes Them Less Feasible Over Time

(Special note:  Lawfare, where I serve as His Serenity, Book Review Editor, is absolutely delighted VC’s own Orin Kerr has agreed to post there when the Spirit of National Security Law moves him.)

Over at Lawfare, I have a longish post about the declared US government policy of preferring capture operations over kill operations where “feasible.” This has been a constant refrain from senior US government officials for several years, including John Brennan (previously White House counterterrorism adviser and now CIA director) and President Obama in his May 23, 2013 speech at the National Defense University on counterterrorism (which Benjamin Wittes and I analyze closely in Chapter 3 of our e-book on the national security law speeches of the Obama administration, Speaking the Law, just now made available with open access at SSRN).  It is safe to say that these assertions have been widely seen among journalists and commentators as mere pieties, window dressing on a policy of kill over capture if only because the administration doesn’t have any place to hold new detainees.

So there was a flurry of commentary three weeks ago when US special operators, in conjunction with CIA, launched capture operations in Libya and Somalia.  Did this presage the beginning of a new era of special forces capture operations rather than drone strikes? Two days ago, on the other hand, the US launched a drone strike that killed someone it had been seeking for four years as the mastermind of a strike in Afghanistan against a CIA outpost that killed seven Americans, Hakimullah Mehsud, leader of the Pakistan Taliban.  What was “feasible” supposed to mean?  In practical terms, a kill operation differs from a capture operation in that the kill operation can be carried out by a drone, whereas a capture […]

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Two Posts at Lawfare

I recently mentioned how much I like the Lawfare blog. That post led to an invitation to write for Lawfare, and I’ve decided to post there on occasion on national security law issues. My tentative plan is to link to those posts from here when I do. In that spirit, here are my first two Lawfare posts:

1. “Is the Supreme Court Likely to Rule on FISA Section 702?” It begins:

The Justice Department recently changed its policy on notice to criminal defendants about the use of evidence derived from surveillance under Section 702 of FISA. Press reports have treated the change as momentous, with the New York Times and the Associated Press predicting that the new policy will likely lead to a Supreme Court case on whether Section 702 violates the Fourth Amendment. I have a different view. My sense is that the notice is less significant than many believe, and that a future Supreme Court decision on the validity of Section 702 isn’t particularly likely in the short term—and maybe even in the long term. Here’s why.

2. “Should U.S. Law Protect the Privacy of Foreigners Abroad?” From the intro:

United States privacy law traditionally has only protected the privacy of those in the United States and U.S. citizens abroad. Over at Just Security, David Cole argues that this should change. Privacy is a human right, Cole argues, and U.S. law should protect the privacy of foreigners all around the world. David offers three pragmatic reasons for his approach, but I don’t find his arguments persuasive.

[…]

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Does Nigeria Share Responsibility for Pirate Attack on US Sailors?

Two Americans have been kidnapped off an oil supply vessel off of Nigeria by local pirates, according to breaking new accounts.

Nigeria, like many nations, has been making it difficult for private security contractors to work off its shores. For example, it has recently arrested 15 Russian sailors from a ship operated by a security company, and held them for a year before dropping charges. Such nations do not like private security because, I gather, they would rather force oil companies and shippers to pay for their state-provided security monopoly.

India has in recent weeks arrested a ship operated by a U.S. based security company, and is holding the crew on weapons charges. India in turn is probably particularly jumpy about these things because of the Italian Marines who accidentally killed some Indian sailors thinking they were pirates, leading to an ongoing conflict between the two countries. Of course, this underscores that private contractors certainly do not have a monopoly on excessive use of force.

However, countries have a duty to repress piracy, codified in Art. 100 of the United Nations Convention on the Law of the Sea. Private security is the most effective measure against piracy: i for example, no ship with private security has been successfully hijacked in the entire Somali pirate epidemic. Thus I would argue that nations that make it difficult for private security to operate are in breach of their duty under international law, not that that amounts to much.

There will doubtless be speculation about a “Captain Phillips”-style dramatic rescue. If the hostages have been take back to Nigeria, I hope Abuja does not raise difficulties about American assistance in a rescue, as there own efforts will likely result in a bloody mess.

[Updated w/minor correction.] […]

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Belgium’s Remarkable Capture of Pirate Ringleader

Belgium has captured a senior Somali pirate kingpin in a remarkable operation. The leader of a pirate group, he had long been sought for hijacking a Belgian vessel in 2009. Now, undercover agents lured him and an associate to the Low Countries by pretending to be documentary film makers interested in making a movie about him.

The remarkable affair highlights some points about universal jurisdiction and pirate kingpins.

Belgium’s commendable efforts to catch those involved contrast highlights a big difference between universal and traditional jurisdiction: the bad guys have to be caught before being brought to justice, and no one wants to invest much effort in other people’s – or the “global community’s” bad guys.

Though there is a lot of talk about pirate kingpins, they almost never face prosecution, because catching them would generally require getting on the ground in Somalia. Indeed, this seems to be the biggest – and only – pirate boss yet captured.
The U.S. has caught and convicted one real pirate leader, responsible for a murderous attack on a U.S. yacht; he was apparently nabbed in Somalia by federal agents.

The Belgian case poses a fascinating contrast to a U.S. gambit to catch a pirate kingpin. Ali Mohamend Ali, whose case I’ve written about, was arrested while attending an education conference in North Carolina – he was an education ministry official (not a staged conference, a real one). But Ali wasn’t really a pirate, let alone a kingpin, just someone paid to negotiate the ransom. Two years after his arrest, his trial will begin in the D.C. Federal District Court, appropriately enough on Halloween, when lots of people get dressed up as pirates.

Ali himself is the subject of a documentary (in which I also appear) made before his legal troubles began; in the […]

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Four Points on Syria

1. “Internal” Separation of Powers. Forget whether President Obama went through Congress, or the Security Council, or even our NATO friends. The real question is if the Administration wants to prevent atrocities in Syria, why turn to the Navy? Isn’t this the job of the Atrocities Prevention Board?

2. More Evidence of Evolution.

Barack Obama put the Bush era decisively behind him today in a speech to the United Nations in which he rejected unilateralism in favour of countries working together to tackle problems ranging from the Middle East to Iran and North Korea.

… At the heart of his speech, he promised to work with the UN in a way that Bush had not.
-From 2009.

And in 2008: “President-elect Barack Obama on Monday emphasized diplomacy, internationalism and alliances as he laid out a national security outlook far from President George W. Bush’s more unilateral approach..”

3. I do not understand the obsession with chemical weapons. It is a grisly way to kill people. So are machetes. I assume the only reasons the Syrian rebels aren’t using them (if they are not) are technical: they make the hearts and livers taste bad afterwards.

4. The most damaging news from Britain yesterday was that Assad had used such weapons 14 times. If true, it is hard to imagine the deterrent or punitive message a U.S. attack now could serve. First baker’s dozen of gassings come free? For weapons of mass destruction, 13 is a lucky number? […]

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The Overcollection Problem Identified in the 2011 FISC Opinion

The FISC’s newly-declassified 2011 Opinion on the NSA’s implementation of Section 702 surveillance is both dense and fascinating. In this post, I thought I would just bring readers up to speed on the basic factual problem identified in the opinion (at least to the extent I can understand it). In later posts, I’ll consider the legal implications of those facts, both as Judge Bates interpreted them and as I see them.

Here’s the context. Under Section 702 of the Foreign Intelligence Surveillance Act, the law permits wiretapping of communications from “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” The government has to offer its plan for how to do that to the FISC, and the FISC needs to determine whether the government’s “procedures are reasonably designed to” achieve compliance with the statute.

In this opinion, Judge Bates concludes that one aspect of the government’s procedures failed that test: specifically, the NSA’s “upstream collection” protocols. To understand what that means, you need to realize that the government can get Section 702 information in two ways: 1) By going directly to the major providers such as Facebook, Microsoft and Google and getting data from them, or 2) by installing its own devices at major Internet hubs and scanning for traffic. According to the opinion, 91% of the data collected under Section 702 involves data directly from ISPs, the so-called PRISM program.

The FISC opinion deals only with the remaining 9% of Section 702 acquisition, which is obtained directly by the NSA in what the opinion calls “upstream collection.” “Upstream collection” is ther term used for collection using the NSA-installed surveillance tools installed an Internet traffic hubs; it is “upstream” in the sense that it collects the traffic before it has reached individual providers […]

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The Administration of the “Least Untruthful Answer”

In an article titled “The Lies Aren’t What Makes Obama’s NSA Stance So Awful,” TNR‘s Jeffrey Rosen takes apart the legal justification for the NSA’s surveillance and data collection programs. (Orin discussed the relevant memos here.)

The Obama administration’s 22-page White Paper setting out the supposed legal basis for NSA surveillance demonstrates that the Obama administration . . . is not relying on legal defenses that are too clever. Rather it’s relying on defenses that are too flimsy and weak. Many of these are warmed over versions of arguments that principled judges and officials rejected during the Bush administration, and that the Supreme Court is now being asked to reject once and for all.

The White Paper, released August 9, is surprisingly mostly in the lameness of its effort to justify what it calls “Bulk Collection of Telephony Metadata under Section 215 of the Patriot Act.” The core of the argument is an attempt to redefine the meaning of the word “relevance” beyond recognizing, just as the administration’s earlier, and equally flimsy, drone memos attempted to redefine the meaning of the word “imminence” in the context of responding to an imminent threat.

Rosen concludes:

Until the administration issues the legal memos justifying its latest contortions of Foreign Intelligence Surveillance law, it’s impossible to make a firm judgment about just how elastic the arguments are. But as the belated release of the drone and Section 215 memos show, once the administration’s legal arguments are exposed to light, they are underwhelming and unconvincing. In other words, it’s not the secret nature of the programs that requires the president to tie himself in knots by giving the “least untruthful answer.” It’s the flimsiness of the legal arguments on which he is relying to justify his actions.

[…]

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The Problem With the Administration “White Paper” on the Telephony Metadata Program

On Friday, the Obama Administration released a “white paper” articulating its case for the legality of the NSA call records program under Section 215 of the Patriot Act and under the Fourth Amendment. I found the “white paper” a somewhat frustrating read, as it is essentially a brief for the government’s side with no brief coming to oppose it. Although the white paper raises some interesting points, it also fails to confront counterarguments and address contrary caselaw.

Consider the critical issue of whether a massive database of billions of records can be deemed “relevant” because some records inside the database are relevant. Here’s the key discussion of that issue from the white paper:

[C]ourts have held that the relevance standard permits requests for the production of entire repositories of records, even when any particular record is unlikely to directly bear on the matter being investigated, because searching the entire repository is the only feasible means to locate the critical documents.[FN7] More generally, courts have concluded that the relevance standard permits discovery of large volumes of information in circumstances where the requester seeks to identify much smaller amounts of information within the data that directly bears on the matter. Federal agencies exercise broad subpoena powers or other authorities to collect and analyze large data sets in order to identify information that directly pertains to the particular subject of an investigation. Finally, in the analogous field of search warrants for data stored on computers, courts permit Government agents to copy entire computer hard drives and then later review the entire drive for the specific evidence described in the warrant.

[FN7]See, e.g., Carrillo Huettel, LLP v. SEC, 2011 WL 601369, at *2 (S.D. Cal. Feb. 11, 2011) (holding that there is reason to believe that law firm’s trust account information for all of

[…]

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Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach

Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was paralleled by similar practices in his own administration:

George Mason law professor Ilya Somin… correctly concludes that when a “president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss….”

However, Professor Somin misses the mark when he equates the record of President George W. Bush with the current administration with respect to pushing the limits of federal executive power. Having participated in more discussions than I can count on terrorism-related issues with some of the brightest lawyers in America, I can attest that the legal issues we confronted after the September 11, 2001 attacks were difficult and unique. I concede we did not always accurately anticipate where the Supreme Court would draw the balance between security and liberty. However, I derive some professional satisfaction knowing that, unlike with the 9-0 court shutouts the professor highlights, the justices struggled with the issues presented in the four major terrorism cases decided during my tenure in government: Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush.

Collectively these four cases produced 17 opinions, not one of which was able to attract more than five votes. In the Hamdan case alone, six of the eight participating justices felt compelled to author an opinion, thus showing the difficulty of the issues presented….

The Obama era cases identified in Professor Somin’s writing deal primarily with issues in the domestic arena. At least in those cases

[…]

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The Bourne Implausibility: Movie Inspires Blog Post, Which Inspires Video, Which Inspires Blog Post

Three months ago, under the heading “The Bourne Implausibility,” I offered up the following (wry?) observation:

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

It has recently come to my attention that someone named “Badger Pundit” has posted a YouTube video inspired by this blog post. Since this is, to my knowledge, the first time that a blog post of mine has inspired a video, it seems only fitting to come full circle and link to the video, here. […]

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Bill to Be Introduced to Increase Armed Services Committees’ Oversight Over Special Operations

Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military.  University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary.  Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that  they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)

Seen within the framework of US law and oversight of overseas use of force operations, this is an important step.  A couple of observations.  First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50.  Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities.  It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations.  Why this focus on military operations conducted by JSOC?

Counterintuitive as many might find it, […]

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The American Athens Becomes a Prison City

Two Chechen Islamist terrorists have succeeded in turning Boston, America’s cradle of liberty, into a prison. Just when we had gotten used to obscene lines and searches at airports as the price we pay for safety, the lockdown of Boston illustrates the extent to which civil liberties are at stake in the war on terror. Since 9/11, there has been an ongoing debate about the protection of the rights of suspected terrorists. But today’s events show that its is not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians.

If Boston is “closed” for just six hours, that is 175000 man days of functional house arrest; roughly as many as would be required to keep everyone in Guantanamo confined for a year or two. No doubt the police overreaction will be severely criticized in coming days, but largely on policy grounds, not civil rights grounds.

Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)

Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, […]

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The Debate About to Heat Up Over HRW’s Call to Ban “Killer Robots,” AKA Autonomous Weapon Systems

(And: thanks to Instapundit for linking to the new policy essay by Matthew Waxman and me from the Hoover Institution, referenced at the end of this post, Law and Ethics for Autonomous Weapon Systems – thanks Glenn!)

Last November, two documents appeared within a few days of each other, each addressing the emerging legal and policy issues of autonomous weapon systems – and taking strongly incompatible, indeed opposite, approaches.  One was from Human Rights Watch, whose report, Losing Our Humanity: The Case Against Killer Robots, made a sweeping, preemptive, provocative call for an international treaty ban on the use, production, and development of what it defined as “fully autonomous weapons” and dubbed “Killer Robots.”  Human Rights Watch has followed that up with a public campaign for signatures on a petition supporting a ban, as well as a number of publicity initiatives that (I think I can say pretty neutrally) seem as much drawn from sci-fi and pop culture as anything.  It plans to launch this global campaign at an event at the House of Commons in London later in April.

The other was the Department of Defense Directive, “Autonomy in Weapon Systems” (3000.09, November 21, 2012).  The Directive establishes DOD policy and “assigns responsibilities for the development and use of autonomous and semi-autonomous functions in weapon systems … [and] establishes guidelines designed to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems.”

By contrast to the sweeping, preemptive treaty ban approach embraced by HRW, the DOD Directive calls for a review and regulatory process – in part an administrative expansion of the existing legal weapons review process within DOD, but reaching back to the very beginning of the research and development process.  In part it aims to ensure that whatever level of autonomy a weapon […]

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