Archive | War on Terror

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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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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The 12th Anniversary of the 9/11 Attacks

Today is the twelfth anniversary of the 9/11 attacks. I don’t think anyone who lived through that day at an age old enough to understand what was happening is likely to ever forget it. I doubt I can say anything about that event which has not already been better said by others. But, for what it is worth, I briefly recounted my own experience of 9/11 here. It isn’t particularly profound or moving, but does give a small example of how knowledge of history and social science can sometimes mislead rather than inform. [...]

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The Nature of the Syrian Rebels and the Case for Intervention in Syria

I have previously suggested that the case for military intervention in Syria depends in large part on the nature of the rebels fighting to overthrow the regime of Bashar Assad. If the rebels are primarily radical Islamists who would establish a government as oppressive and anti-American as Assad’s, it would be both foolish and immoral to launch an intervention that ends up strengthening their position. Assad’s use of chemical weapons is a great evil. But it makes no sense to combat it by indirectly supporting an equal or greater evil.

The nature of the rebels should concern even those Americans who may be indifferent to the effect of intervention on Syria and care only about US strategic interests, narrowly defined. To put it mildly, radical Islamists tend to be strongly anti-American, and helping them seize power is unlikely to benefit the United States. If, as a result, al Qaeda-aligned elements among the rebels capture some of Assad’s chemical weapons, the consequences for the US might be dire indeed. And a “shot across the bow” attack that avoids helping the rebels because it doesn’t have much effect on Assad’s forces would be simply useless.

Last week, Secretary of State John Kerry told Congress that most of the Syrian rebels are moderates, and only 15-25% are radical Islamist extremists. Unfortunately, Kerry’s optimistic view is contradicted by independent experts (see here and here), and by US and allied intelligence assessments. No one doubts that there are Syrians opposed to Assad who want to replace his regime with a liberal democracy, or at least a less oppressive government than the status quo. The key question is whether such people will come to power if the rebels prevail, or whether the radical Islamists would dominate instead.

I am far from an expert on [...]

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2008 Restrictions on NSA Lifted in 2011

The Washington Post has a story that begins:

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinionby U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

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Thoughts on the Senate Foreign Relations Committee’s Narrow Version of the Syria AUMF

The Senate Foreign Relations Committee has drawn up its own version of a resolution authorizing the use of military force in Syria, which imposes significantly tighter constraints on the president than the administration version. Here is the key language [SEE IMPORTANT UPDATES BELOW]:


(a) AUTHORIZATION-The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

(b) REQUIREMENT FOR DETERMINATION THAT USE OF MILITARY FORCE IS NECESSARY- Before exercising the authority granted in subsection (a), the President shall make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that—

(1) the United States has used all appropriate diplomatic and other peaceful means to prevent the deployment and use of weapons of mass destruction by Syria;

(2) the Syrian government has conducted one or more significant chemical weapons attacks;

(3) the use of military force is necessary to respond to the use of chemical weapons by the Syrian government;

(4) it is in the core national security interest of the United States to use such military force;

(5) the United States has a military plan to achieve the specific goals of responding to the use of weapons of mass destruction

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Syria and the Morality of Humanitarian Intervention

Legal scholar Fernando Teson, a leading academic expert on humanitarian intervention has an interesting post on why the humanitarian case for intervening in Syria is weak. Like Fernando, I’m not opposed to such intervention on principle. But it can only be justified if there is a high probability of improving the situation in the targeted nation. In this instance, the case is dubious for reasons Fernando describes:

Some supporters of the proposed intervention in Syria call it a genuine case of humanitarian intervention….

In reply, critics may:

A) Deny the validity of the doctrine itself…., or

B) Accept the doctrine but deny that it can justify the intervention in Syria.

I have long defended the doctrine of humanitarian intervention….. I would like to explain, therefore, why my position on Syria falls under B) above: the military action proposed by the Obama administration (limited aerial bombings) would not be justified under the doctrine. In contrast, a full-fledged intervention that would overthrow Al-Assad while neutralizing Al-Qaeda could be justified under the doctrine if it complied with the principle of proportionality. Given the predictable dire consequences of a full invasion for the region and the world, such action is unlikely to be proportionate, and therefore the United States should stay out…

For starters, the proposed action is caught in a dilemma. Either the bombings will weaken the regime or they will not. If they do, they will help Al Qaeda win. The (putative) humanitarian action will predictably open the door for something much worse for the Syrians and the world. If instead the bombings do not weaken the regime, they would have served no purpose and would have been therefore impermissible under the humanitarian intervention doctrine, especially given the fact that the bombings would have killed innocent persons for no reason.

As I [...]

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DEA Has Its Own Phone Call Database

The NYT reports on the Drug Enforcement Administration’s “vast phone trove,” “an enormous AT&T database that contains the records of decades of Americans’ phone calls,” and appears more expansive than that maintained by the National Security Agency.

The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.

The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987. . . .

The scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act. The N.S.A. stores the data for nearly all calls in the United States, including phone numbers and time and duration of calls, for five years.

Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.

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Obama Will Seek Congressional Approval for Military Intervention in Syria

President Obama announced today that he will seek congressional approval for US military action against Syria in retaliation for the Assad regime’s use of chemical weapons [BUT SEE IMPORTANT UPDATE BELOW]:

President Barack Obama said that the United States “should take military action against Syrian targets” in a Rose Garden address Saturday. However, he said he would seek congressional authorization when federal lawmakers return from recess.

The president appealed for congressional leaders to consider their responsibilities and values in debating U.S. military action in Syria over its alleged chemical weapons use.”Some things are more important than partisan differences or the politics of the moment,” he said. “Today I’m asking Congress to send a message to the world that we are united as one nation.”

In previous posts (e.g. – here and here), I have argued that congressional approval is constitutionally required for anything more than an extremely small attack. In addition, congressional authorization would strengthen the political support for any intervention, and thereby increase the chances of success. So I very much welcome Obama’s decision to seek congressional authorization. This wise decision stands in sharp contrast with the administration’s approach to the Libya intervention in 2011, where Obama violated both the Constitution and the 1973 War Powers Act by failing to secure congressional authorization.

If Obama fails to get congressional authorization, that might damage US credibility. Obama would then have to retreat from his threat that the use of chemical weapons by Assad crosses e a “red line” that would result in military retaliation. But, as Charles Krauthammer suggests, such a setback would be less harmful than a small-scale strike that fails to achieve any real benefit because it is not enough to deter Assad from future atrocities or accomplish any other worthwhile goal.

Republican senators John McCain [...]

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Democratic Members of Congress Press Holder for Answers on Use of NSA Surveillance Data in the War on Drugs

Eight Democratic members of Congress are pushing Attorney General Eric Holder to answer questions about the use of NSA surveillance data in the War on Drugs:

Eight Democratic senators and congressmen have asked Attorney General Eric Holder to answer questions about a Reuters report that the National Security Agency supplies the Drug Enforcement Administration with intelligence information used to make non-terrorism cases against American citizens.

The August report revealed that a secretive DEA unit passes the NSA information to agents in the field, including those from the Internal Revenue Service, the FBI and Homeland Security, with instructions to never disclose the original source, even in court. In most cases, the NSA tips involve drugs, money laundering and organized crime, not terrorism.

Five Democrats in the Senate and three senior Democrats on the House Judiciary Committee submitted questions to Holder about the NSA-DEA relationship, joining two prominent Republicans who have expressed concerns. The matter will be discussed during classified briefings scheduled for September, Republican and Democratic aides said.

“These allegations raise serious concerns that gaps in the policy and law are allowing overreach by the federal government’s intelligence gathering apparatus,” wrote the senators – Tammy Baldwin of Wisconsin, Ron Wyden of Oregon, Tom Udall of New Mexico, Richard Blumenthal of Connecticut and Sherrod Brown of Ohio.

I previously wrote about this dangerous trend in this post.

The Reuters article quoted above notes that some Republicans are pushing for answers as well. But it’s more telling that these Democrats are doing so, despite the fact that the policy in question is conducted by a president of their own party. [...]

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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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Using NSA Surveillance Data in the War on Drugs

On Monday, Reuters reported that the Special Operations Division, a secretive unit of the Drug Enforcement Administration is using NSA electronic surveillance data in the War on Drugs, and then deceiving judges and defense lawyers about the source of the evidence when it is used in criminal trials. As various experts quoted by Reuters point out, such deception is a violation of elementary due process.

Julian Sanchez of the Cato Institute has a good post discussing some of the other risks of this kind of “mission creep”:

This should serve as a crucial reminder that you can’t build a massive architecture of surveillance “just for terrorism” and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we’ve seen again and again how—mostly because there just aren’t all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act’s “Sneak and Peek” searches (used almost exclusively in drug rather than terror investigations) to federally funded “fusion centers.”

Such expansive use of surveillance data beyond national security purposes has already occurred in France. In the United States, as Sanchez notes, the New York Times recently reported that many domestic agencies are clamoring to use NSA data for their own purposes:

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the

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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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Julian Sanchez on Pilon and Epstein’s Defense of the NSA Electronic Data Collection Program

Last week, Roger Pilon of the Cato Institute and famed libertarian law professor Richard Epstein published an op ed defending the NSA policy of collecting data on millions of Americans’ electronic communications. Pilon and Epstein may be the only prominent libertarian defenders of the NSA on this issue; though, obviously, that doesn’t necessarily mean they are wrong.

Pilon’s Cato Institute colleague Julian Sanchez recently posted a thorough and compelling critique of Pilon and Epstein’s argument. I think this part does a great job of capturing the main danger posed by the program:

[T]he crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience—though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster….

Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.

Among other things, Sanchez’s post includes a good critique of Smith v. Maryland, the 1979 Supreme Court decision cited by both Pilon and Epstein and many other defenders of the NSA program. Like Sanchez, I [...]

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