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Recap of Recent Posts at Just Security (May 16–22)

I. Surveillance, Privacy, & Cybersecurity

  1. Megan Graham, German Cooperation with NSA Spies Broader Than We Knew (Tuesday, May 19)
  2. Megan Graham, Transcript: Comey Says Authors of Encryption Letter Are Uninformed or Not Fair-Minded (Wednesday, May 20)
  3. Patrick Eddington & Jennifer Granick, Sen. Paul’s Great Surveillance ‘Filibuster’ and What to Expect Next (Thursday, May 21)
  4. Kristen Eichensehr, DOJ Guidance on Cybersecurity Carrots and Sticks (Thursday, May 21)

II. Detention and Torture

  1. Ruchi Parekh, Polish Outrage to Paying Victims of CIA Black Sites—and What the Eur Court Said (Wednesday, May 20)
  2. Ruchi Parekh, U.K. High Court: U.K. Gov’t Can Be Held Liable for Abuse of Detainees in U.S. Custody in 2003-2011 Iraq Conflict (Friday, May 22)

III. Congressional Hearings

  1. Harold Koh, Confirm the Legal Adviser (Monday, May 18)
  2. Megan Graham, National Security-Related Congressional Hearings, May 18–22 (Monday, May 18)

IV. Lethal Force and Civilians in Conflict

  1. Marty Lederman, U.S. Special Forces Kill ISIL leader, detain another, during capture operation in Syria [UPDATED] (Saturday, May 16)
  2. Nicolette Boehland, Guest Post: What Civilians Themselves Say About Targeting and Their Participation in Conflict (Thursday, May 21)

V. UN Review of US (Universal Periodic Review)

VI. Restatement on Foreign Relations Law: Treaties

VII. Events

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U.K. High Court: U.K. Gov’t can be Held Liable for Abuse of Detainees in U.S. custody in 2003-2011 Iraq conflict

Earlier this week, the U.K. High Court handed down a further judgment in the ongoing litigation brought on behalf of hundreds of Iraqi civilians against the British government—holding that the U.K. could be held liable for transferring detainees to U.S. forces under certain circumstances.

In Iraqi Civilians v Ministry of Defence, the Court was dealing with claims relating to those individuals who were detained in Iraq by British troops and subsequently handed over to U.S. custody, where they allegedly suffered torture or serious ill-treatment. The period of detention in each of the three test cases varied, ranging between July 2003-August 2009. The claims are grounded in (1) the Human Rights Act 1998 (which incorporates the European Convention on Human Rights into domestic law) and (2) the law of tort (which remains an independent ground for challenge notwithstanding the HRA). However, under the relevant provisions of the Private International Law (Miscellaneous Provisions) Act 1995, the law of Iraq is the applicable law for the tort claims.

This week’s ruling determined a preliminary issue in relation to the tort claims, namely: whether, on the alleged facts of the test cases, Iraqi law provides for joint liability and/or vicarious liability of the U.K. government for acts alleged to have been committed by U.S. troops. Mr. Justice Leggatt (who has been tasked with this sizeable, complex litigation) relied on expert witnesses adduced by each side, taking into account the ordinary principles to be applied when deciding a question of foreign law. He concluded: Continue Reading »

News Roundup and Notes: May 22, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news. 

IRAQ and SYRIA

U.S. airstrikes “likely led to the deaths of two non-combatant children,” the U.S. Central Command acknowledged yesterday, following the investigation into the airstrikes targeting the Khorasan group last November.

The Islamic State has claimed the last Syria government-controlled border crossing with Iraq, forcing government troops to withdraw, according to a monitoring group. [BBC]

ISIS militants are ready to claim one of Syria’s largest weapons depots after their victory in the historic city of Palmyra, which has seen the group take over an airport, army bases, important oil fields and a prison. The capture of Palmyra will also facilitate the group’s efforts to make gains in state-held territory of Homs and Damascus, according to analysts. [VOA’s Jamie Dettmer]

The Islamic State is advancing eastward from Ramadi in an effort to counter the Iraqi troops and militias who are preparing a counteroffensive at Habbaniyah, effectively breaching this defense line. [Long War Journals’ Bill Roggio]

Sunni tribes in Iraq’s Anbar province are split over joining the fight against the Islamic State, Continue Reading »

DOJ Guidance on Cybersecurity Carrots and Sticks

In a speech yesterday to the annual Cybersecurity Law Institute, Assistant Attorney General Leslie Caldwell showed how far the Department of Justice has come in its dealings with the private sector on cybersecurity. Caldwell praised public-private collaboration on issues like botnet takedowns and highlighted recent outreach the DOJ’s Cybersecurity Unit has done to private sector groups. In particular, one recent event, cohosted by the Center for Strategic and International Studies, involved a discussion with security experts about “active defenses” deployed by companies. This discussion may trigger a very positive outcome: While reiterating that “hacking back” is problematic as a matter of both law and policy, Caldwell announced that DOJ’s Cybersecurity Unit is considering issuing guidance on the legality of various other defensive measures companies might want to take to protect their systems and networks.

Such guidance would be a welcome development. Greater clarity about the scope of the Computer Fraud and Abuse Act (CFAA) as it relates to defensive measures could empower companies to engage in more robust network defenses, consistent with existing law.

However, Caldwell also made clear that the DOJ and its federal agency counterparts are not all about carrots. They’re also retaining the right to use sticks. Caldwell highlighted a statement on the FTC website declaring that as the FTC increasingly flexes its enforcement muscles with respect to data security, it will take into consideration whether a company has cooperated with law enforcement and “likely . . . view that company more favorably than a company that hasn’t cooperated.” Continue Reading »

Sen. Paul’s Great Surveillance ‘Filibuster’ and What to Expect Next

Senator Rand Paul, joined by Senator Wyden and other surveillance reform advocates, as well as five members of the House of Representatives, spent much of last night on the Senate floor, making history. He used the platform of a de facto filibuster to name drop privacy and civil liberties advocates like EFF’s Mark Jaycox, former NSA whistleblowers like cryptographer William Binney, and of course America’s Founders, to make his case for surveillance reform. He was joined by Senator Mike Lee with a history lesson on The North Briton No. 45, and Senator Martin Heinrich giving a dramatic reading of the Fourth Amendment from the floor.

Paul filibustered a bill offered by Majority Leader Mitch McConnell that would reauthorize section 215 of the USA PATRIOT Act. Section 215 is the purported legal basis for the NSA’s dragnet collection of American’s phone records, and is scheduled to sunset, or expire, June 1.

However, by filibustering yesterday, Paul all but ensured that section 215 will not be reauthorized. The reason why is the arcane legislative procedures of the Senate. In brief, Senate Majority leader Mitch McConnell can’t bring his reauthorization bill to a vote without cloture, a procedural vote required to end debate and move to a vote on the underlying measure and any related amendments. After a cloture vote, the Senate gets 30 hours before the bill can be voted on up or down and to address any amendments offered. That brings us into, or even past, the weekend. But the House goes on recess after last votes today (expected to be completed by 3pm), and doesn’t come back until June 1, after section 215 sunsets.

So, by Paul filibustering up till midnight, and with time so tight, the Senate is left with a choice: either sunset 215 or pass USAFreedom as it is. But … and this is where Senator Paul diverges from some of his colleagues in the filibuster … Paul wants a robust discussion and amendment process for USA Freedom Act. Again, a variation on USA Freedom can’t be passed before the House leaves. Continue Reading »

What Civilians Themselves Say about Targeting and their Participation in Conflict

“What I think is that there is no line at all … Civilians can turn into fighters at any time. Anybody can change from a fighter to a civilian, all in one day, all in one moment.”

I remember pausing when I heard this assertion. It was July 2012, and I was sitting across from Walid, a 27-year-old insurance salesman from the suburbs of Tripoli, Libya. Over several cups of tea at Casa Café, he told me of his experience of the conflict in 2011. In the first few months, he started posting on Facebook and tweeting about supplies and protests, quickly assuming the role of an informal spokesperson for Libyan civilians. Walid’s story included his eventual arrest and torture, his stint as a recruiter for the rebels, and finally his efforts to distribute anti-Qaddafi fliers in his neighborhood. Near the end of the interview, as we were discussing his understanding of the concept of the civilian, he responded with the unforgettable line above. Walid, the seventeenth Libyan I had interviewed, convinced me then that the research I had undertaken for the Center for Civilians in Conflict (CIVIC) on civilian involvement in war was worthwhile. His experiences were simply too rich and his views too nuanced to be ignored.

After this interview, we conducted 233 more with people like Walid who have lived through conflict in Libya, as well as in Bosnia, Gaza, and Somalia. The results of this research are released in an 84-page report titled The People’s Perspectives: Civilian Involvement in Armed Conflict.

The study centers on the concept of civilian immunity, which at its essence is the idea that certain people should be protected from harm during war. As many readers of Just Security know, this concept was enshrined in the principle of distinction, according to which civilians must be protected from direct attack during war. This principle is arguably the cornerstone of international humanitarian law, yet still, civilian immunity is not absolute. The Additional Protocols to the Geneva Conventions set out the important limitation that civilians are immune from being targeted “unless and for such time as they take a direct part in hostilities.”

Military commanders, government officials, lawyers, humanitarians, and academics have engaged in a heated debate over how this phrase should be understood and applied. In their debates — primarily focused on definitions, legal obligations, and criteria for targeting — they have argued about key questions such as which activities should qualify as direct participation and when a civilian should lose and regain legal immunity from direct attack. In all these debates, we found the views of one important group was missing: ordinary people who had lived through war. CIVIC therefore set out to gather and analyze their perspectives in this study. Continue Reading »

News Roundup and Notes: May 21, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

ISIS militants are in full control of Palmyra, following the group’s advancement into the ancient Syrian city yesterday, according to activists and a monitoring group. The fall of Palmyra could pave the way for the Islamic State to advance toward government-held areas of Homs and Damascus, reports Al Jazeera.  The city is of strategic importance as it is situated among gas fields and a network of roads cutting across Syria’s central desert, report Anne Barnard and Hwaida Saad. [New York Times]  UNESCO has expressed deep concern at the risk posed to the civilian population and the celebrated World Heritage site. [UN News Centre]

More than half of Syria’s territory is now under Islamic State control, a monitoring group has said. [Reuters]

Iraqi forces fought off a third Islamic State attack on the outskirts of Ramadi, which fell to the militant group on Sunday. [Reuters]  The Iraqi government has waived restrictions on those coming into Baghdad, allowing civilians displaced by the situation in Anbar province to enter the capital. [BBC]

The U.S. is sending 1,000 antitank rockets to Iraq to assist forces in countering the suicide vehicle bombs deployed by the Islamic State in seizing Ramadi. [New York Times’ Eric Schmitt]  The U.S.-led coalition has also carried out airstrikes targeting Ramadi, according to administration officials. [Al Jazeera]

Administration efforts are now focused on Iraq’s Anbar province, with the capture of Ramadi forcing a shift away from the planned offensive to reclaim Mosul in the country’s north. [Wall Street Journal’s Felicia Schwartz and Julian E. Barnes] Continue Reading »

Transcript: FBI Director Says Authors of Encryption Letter Are Uninformed or Not Fair-Minded

Earlier today, FBI Director James Comey implied that a broad coalition of technology companies, trade associations, civil society groups, and security experts were either uninformed or were not “fair-minded” in a letter they sent to the President yesterday urging him to reject any legislative proposals that would undermine the adoption of strong encryption by US companies. The letter was signed by dozens of organizations and companies in the latest part of the debate over whether the government should be given built-in access to encrypted data (see, for example, here, herehere, and here for previous iterations).

The comments were made at the Third Annual Cybersecurity Law Institute held at Georgetown University Law Center. The transcript of his encryption-related discussion is below (emphasis added). Continue Reading »

The UN’s “Universal Periodic Review” of US Human Rights Practices—National Security Highlights

Last week, the UN Human Rights Council’s Working Group on the Universal Periodic Review released a draft of its report on the United States’ UPR. The UPR is a process during which each UN member state has the opportunity to explain what measures it has taken to meet international human rights standards and receives feedback and recommendations from other member states in a sort of “peer review” process.

While the UPR covers all human rights (including economic and social) and contains information on a wide range of topics, a number of recommendations may be of special interest to Just Security readers. We have collected and organized some key recommendations below that relate to national security law and policy.

Lethal Force, Extrajudicial Killings, and Drones (5.207–13)

A number of states submitted recommendations related to lethal force, extrajudicial executions, killings, and drone strikes, largely focused on ending “unlawful” extrajudicial killings, compensating victims, and protecting innocent civilians. The specific recommendations were: Continue Reading »

Polish Outrage to Paying Victims of CIA Black Sites—and What the Eur Court Said

Poland will be paying a quarter of a million dollars to two Guantánamo detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri. The payment arises in the context of the torture of the terror suspects at a CIA “black site” operating on Polish territory.

Last July, the European Court of Human Rights handed down its much-awaited judgments in the cases of Abd al-Rahim al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland in relation to Poland’s involvement in the CIA rendition, detention and interrogation program. The Court ruled that Poland violated the substantive and procedural aspects of the detainees’ right to be free from torture or inhuman or degrading treatment or punishment (Article 3, European Convention on Human Rights). The Court also found violations of, among other rights, Articles 5 (liberty and security), 8 (private and family life), and 13 (effective remedy) of the ECHR.

The Court ordered the Polish government to pay €130,000 to Zubaydah and €100,000 to al-Nashiri, within three months from when the judgments become final. Poland appealed the ruling, but the request was rejected by a Grand Chamber panel on February 16, making last weekend the deadline for the payments. The Polish Foreign Ministry said on Friday that it was processing the payments, AP’s Vanessa Gera reported.

The ruling, which predated the publication of the redacted version of the Senate Intelligence Committee report on the CIA program, brought important judicial scrutiny to the agency’s post-9/11 practices, including the controversial role played by U.S. allies. The Senate report has since provided some further details about Poland’s involvement, although the country is not identified by name.

The AP report notes the frustration of those in Poland who view the ruling as unjustifiably punishing the country for CIA actions. An opposition Polish lawmaker has recorded his discontent, stating that the terror suspects remained in the sole custody of U.S. officials throughout their detention. Former Foreign Minister Radoslaw Sikorski has similarly been quoted by the LA Times’ Carol Williams as saying:  Continue Reading »