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National Security and the 2014 Midterms:
A Preview of Monday’s CQ Roll Call / Just Security Event

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This Tuesday marks the first anniversary of the launch of Just Security. To help celebrate our first year, we’re co-sponsoring an event tomorrow with CQ Roll Call on the role of national security issues in the 2014 midterm elections–and in shaping Congress’s agenda thereafter. The panel will run from 5:30-7:00 p.m. at NYU’s Washington, DC Center (1307 L Street, N.W.), and features Rachel Kleinfeld (Carnegie Endowment for International Peace), Gerald Seib (Wall Street Journal), Tim Starks (CQ Roll Call), Cully Stimson (Heritage Foundation), and yours truly, and will be moderated by David Ellis (Vice President of News for CQ Roll Call). Full details (and a link to RSVP) are available here. But in advance of tomorrow’s discussion, I asked Rachel, Jerry, Tim, and Cully to help set the stage with their quick reactions to three sets of broad, overarching questions:

  1. In your view, will national security issues play a pivotal role in the 2014 midterms—or at least some of the key races therein? If yes, how? If not, why not?
  2. Should national security issues play a larger role in the midterms? (Why / why not?)
  3. Among the universe of national security issues, which one(s) do you see as most likely to help shape the agenda of the 114th Congress?

Continue Reading »

Recap of Recent Posts at Just Security (Sept 13-19)

I. Military Action against ISIL

  1. Ryan Goodman, White House Relies on 2002 Iraq Authorization—But What’s the Theory? (Saturday, Sept 13)
  2. Eric Messinger, The House’s New Proposal for an AUMF Against ISIL (Monday, Sept 15)
  3. Martin Scheinin, ISIS/ISIL Remains Associated with Al-Qaida Because the UN Security Council Says So? (Monday, Sept 15)
  4. Ryan Goodman, When Institutions Fail: A Thought Experiment (Monday, Sept 15)
  5. Michael Lewis, A Response to Jonathan Horowitz – Why Unwilling or Unable is Measured by a State’s Capacity to Act as Well as its Willingness to do so (Monday, Sept 15)
  6. Megan Graham, Hagel and Dempsey Won’t Rule Out Possibility of U.S. Ground Combat Troops in Iraq (Tuesday, Sept 16)
  7. Just Security Staff, Kaine’s Proposed AUMF Would Allow Limited Ground Combat Against ISIL (Wednesday, Sept 17)
  8. Ryan Goodman, Sec. Kerry’s Difficult Defense of 2001 AUMF Application to ISIL–and Senators’ Disbelief (Wednesday, Sept 17)
  9. Andy Wright, SFRC Access to Intelligence Information During Force Authorization Debate (Thursday, Sept 18)
  10. Eric Messinger, Congress Appropriates Funds for President to Train Syrian Opposition (Friday, Sept 19)

II. Surveillance

  1. Steve Vladeck, The Posse Comitatus Act, Unlawful Surveillance, and the Exclusionary Rule (Sunday, Sept 14)
  2. Ahmed Ghappour, Guest Post: Justice Department Proposal Would Massively Expand FBI Extraterritorial Surveillance (Tuesday, Sept 16)
  3. Julian Sanchez, Reading Jack Goldsmith’s STELLARWIND Memo (Part II) (Tuesday, Sept 16)

III. Detention, Trial & Treatment

  1. Marty Lederman, What’s the Matter with the Revised DoD Directive 2310.01E? (Monday, Sept 15)
  2. Steve Vladeck, A Guantánamo Test Case for the “New” D.C. Circuit (Tuesday, Sept 16)
  3. John Reed, ECHR: UK Did Not Violate Hassan’s Human Rights (Tuesday, Sept 16)
  4. Ryan Vogel, Guest Post: A Response on Department of Defense Directive 2310.01E (Detainee Program) (Wednesday, Sept 17)
  5. Marty Lederman, The Unresolved Problems with the DoD Directive Definition of “Unprivileged Belligerency”: A Response to Ryan Vogel [Updated] (Thursday, Sept 18)
  6. Gabor Rona, Guest Post: A Reply to Ryan Vogel and Marty Lederman on DoD Directive 2310.01E [Updated] (Thursday, Sept 18)

IV. Expatriation

Congress Appropriates Funds for President to Train Syrian Opposition

This week, Congress passed a continuing resolution for the fiscal year 2015, H.J. Res. 214, with a roll call of 78-22 in the Senate and 319-108 in the House. [TextPDF.] Section 149 of the resolution authorizes the Department of Defense to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups.” (On Wednesday, the House had voted on this authorization in isolation, approving it 273-156).

President Obama commented favorably on the resolution, and is expected to sign it shortly:

I’m pleased that Congress — a majority of Democrats and a majority of Republicans, in both the House and the Senate — have now voted to support a key element of our strategy: our plan to train and equip the opposition in Syria so they can help push back these terrorists. As I said last week, I believe that we’re strongest as a nation when the President and Congress work together. And I want to thank leaders in Congress for the speed and seriousness with which they approached this urgent issue — in keeping with the bipartisanship that is the hallmark of American foreign policy at its best.

Congressional approval for this effort is notable in its own right, and may also add to ongoing debate over domestic legal authority for United States military operations in Iraq and Syria.

Section 149 is not, on its face, congressional authorization for the President to use force against the Islamic State. But congressional votes of this kind can nonetheless influence interpretation of the President’s power to act. Ryan noted on September 9 that appropriations might be a vehicle for some form of congressional “authorization.” And Charlie Savage of The New York Times highlighted yesterday the complex equations of congressional “intent” in situations where the legislature does not expressly authorize or disapprove of Presidential action (often referred to as Youngstown Category II).

In this context, Section 149 is worth consulting closely, and the full text is below. I encourage anyone interested in this ongoing debate to read it in its entirety. Note especially section (i)—denying any intent for the appropriation to be read as a broader force authorization; and section (j)—denying any effect of the appropriation on the President’s reporting obligations under the War Powers Resolution. See also 50 U.S.C. 1547(a)(1), the provision of the War Powers Resolution designed to prevent express reliance upon appropriations measures as authorization.

Finally, for further reading in a conceptually related—though not parallel—context, consult this 2000 Office of Legal Counsel memorandum on “Authorization for Continuing Hostilities in Kosovo.” The Clinton Justice Department analyzes funding as a means to express congressional authorization, especially in Section III, and the opinion provides a sense of how arguments about congressional approval may develop going forward. The memorandum is especially interesting for its argument that 50 U.S.C. 1547(a)(1) cannot be a total bar to authoriziation-via-appropriation, but must be read as a “background principle.”

Sec. 149.

(a) The Secretary of Defense is authorized, in  coordination with the Secretary of State, to provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals for the following purposes:

            (1) Defending the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL), and securing territory controlled by the Syrian opposition.

            (2) Protecting the United States, its friends and allies, and the Syrian people from the threats posed by terrorists in Syria.

            (3) Promoting the conditions for a negotiated settlement to end the conflict in Syria.

(b) Not later than 15 days prior to providing assistance authorized under subsection (a) to vetted recipients for the first time–

            (1) the Secretary of Defense, in coordination with the Secretary of State, shall submit to the appropriate congressional committees and leadership of the House of Representatives and Senate a report, in unclassified form with a classified annex as appropriate, that contains a description

        of–

                    (A) the plan for providing such assistance;

                    (B) the requirements and process used to determine appropriately vetted recipients; and

                    (C) the mechanisms and procedures that will be used to monitor and report to the appropriate congressional committees and leadership of the House of Representatives and Senate on unauthorized end-use of provided training and equipment and other violations of relevant law by recipients; and

            (2) the President shall submit to the appropriate congressional committees and leadership of the House of Representatives and Senate a report, in unclassified form with a classified annex as appropriate, that contains a description of how such assistance fits within a larger regional strategy.

    (c) The plan required in subsection (b)(1) shall include a description of–

            (1) the goals and objectives of assistance authorized under subsection (a);

            (2) the concept of operations, timelines, and types of training, equipment, and supplies to be provided;

            (3) the roles and contributions of partner nations;

            (4) the number of United States Armed Forces personnel involved;

            (5) any additional military support and sustainment activities; and

            (6) any other relevant details.

    (d) Not later than 90 days after the Secretary of Defense submits the report required in subsection (b)(1), and every 90 days thereafter, the Secretary of Defense, in coordination with the Secretary of State, shall provide the appropriate congressional committees and leadership of the House of Representatives and the Senate with a progress report.

Such progress report shall include a description of–

            (1) any updates to or changes in the plan, strategy, vetting requirements and process, and end-use monitoring mechanisms and procedures, as required in subsection (b)(1);

            (2) statistics on green-on-blue attacks and how such attacks are being mitigated;

            (3) the groups receiving assistance authorized under subsection (a);

            (4) the recruitment, throughput, and retention rates of recipients and equipment;

            (5) any misuse or loss of provided training and equipment and how such misuse or loss is being mitigated; and

            (6) an assessment of the effectiveness of the assistance authorized under subsection (a) as measured against subsections (b) and (c).

    (e) For purposes of this section, the following definitions shall apply:

            (1) The term “appropriately vetted” means, with respect to elements of the Syrian opposition and other Syrian groups and individuals, at a minimum, assessments of such elements, groups, and individuals for associations with terrorist groups, Shia militias aligned with or supporting the Government of Syria, and groups associated with the Government of Iran. Such groups include, but are not limited to, the Islamic State of Iraq and the Levant (ISIL), Jabhat al Nusrah, Ahrar al Sham, other al-Qaeda related groups, and Hezbollah.

            (2) The term “appropriate congressional committees” means–

                    (A) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives; and

                    (B) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate.

    (f) The Department of Defense may submit a reprogramming or transfer request to the congressional defense committees for funds made available by section 101(a)(3) of this joint resolution and designated in section 114 of this joint resolution to carry out activities authorized under this section notwithstanding sections 102 and 104 of this joint resolution.

    (g) The Secretary of Defense may accept and retain contributions, including assistance in-kind, from foreign governments to carry out activities as authorized by this section which shall be credited to appropriations made available by this joint resolution for the appropriate operation and maintenance accounts, except that any funds so accepted by the Secretary shall not be available for obligation until a reprogramming action is submitted to the congressional defense committees: Provided, That amounts made available by this subsection are designated by the Congress for Overseas Contingency Operations/Global War on Terrorism pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985: Provided further, That such amounts shall be available only if the President so designates such amounts and transmits such designations to the Congress.

    (h) The authority provided in this section shall continue in effect through the earlier of the date specified in section 106(3) of this joint resolution or the date of the enactment of an Act authorizing appropriations for fiscal year 2015 for military activities of the Department of Defense.

    (i) Nothing in this section shall be construed to constitute a specific statutory authorization for the introduction of United States Armed Forces into hostilities or into situations wherein hostilities are clearly indicated by the circumstances.

    (j) Nothing in this section supersedes or alters the continuing obligations of the President to report to Congress pursuant to section 4 of the War Powers Resolution (50 U.S.C. 1543) regarding the use of United States Armed Forces abroad.

News Roundup and Notes: September 19, 2014

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

The Senate voted 78-22 to approve President Barack Obama’s plan to arm and train moderate Syrian rebels, one day after the House voted in favor of the measure [MSNBC’s Aliyah Frumin]. President Obama thanked congressional leaders “for the speed and seriousness with which they approached this urgent issue.”

The New York Times (Michael R. Gordon et al.) reports on the challenges ahead for the U.S. in rolling back the gains made by the Islamic State in Mosul, Falluja, and other areas, and notes that the Pentagon is more willing than the White House to accept that more Special Operations forces will be required on the ground.

Craig Whitlock [Washington Post] writes that the “awkward and uneasy relationship” between President Obama and U.S. military leaders is coming under further strain due to disagreements over how to tackle the Islamic State.

Mark Landler [New York Times] explores the administration’s “extremely narrow definition of combat” as part of an expanded campaign against ISIS, one that has been “rejected by virtually every military expert.”

Legal experts believe that Congress’ inaction over the administration’s reliance on previous congressional authorizations for airstrikes against the Islamic State could create a precedent for stronger executive war-making powers [New York Times’ Charlie Savage].

French President François Hollande pledged to join the U.S.-led air campaign against ISIS yesterday, with the first French airstrike destroying an ISIS military logistics warehouse in north-east Iraq earlier today [France 24’s Joseph Bamat].

The Islamic State released another video last night, Continue Reading »

Guest Post: A Reply to Ryan Vogel and Marty Lederman on DoD Directive 2310.01E [Updated]

Time and again since 9/11 we’ve seen laws, regulations and government officials say one thing, but when awkward facts come to light, we find out that they meant something different. We do not torture. We do not secretly detain. We obey the laws of war. No civilians have been killed. Detention operations at Guantanamo are transparent. I could go on.

Given this history, Prof. Ryan Vogel’s spirited and thoughtful defense of what DoD intended to convey in various provisions of the recently revised Directive 2310.01E on detention is not as convincing as the plain meaning of the words the document actually contains. In the same vein, I can’t share Marty Lederman’s relief upon reading Ryan’s remarks that nothing momentous was intended in the revised Directive. On the contrary, Ryan concedes that the changes from past doctrine and policy were not inadvertent, but rather the fact that the document is “dramatically different than its predecessor” reflects a deliberate attempt to codify “practices and lessons learned over the past decade.”

Marty’s response to Ryan covers much of what’s wrong with the Directive, so let me stick to what Marty has not covered, or where I don’t agree with him.

First, and in partial defense of the Directive and Ryan, the Directive does not categorically deprive “unprivileged belligerents” of Geneva Conventions protection. Marty’s suggestion to the contrary, citing para. 3(m)(1) of the Directive is not quite accurate. 3(m)(1) denies unprivileged belligerents the protections of the 4th Geneva Convention on Civilians, but does not deny other Geneva Convention protections under Common Article 3. [UPDATE: Marty has since updated his post to clarify that DoD does not deny "unprivileged belligerents" all of the Geneva Convention protections, such as those of Common Article 3, but that it does deny them the privileges that the Fourth (Civilian) Geneva Convention affords to "protected persons."  I continue to believe that DoD errs in withholding GC IV "protected person" treatment to unprivileged belligerent detainees, in an international armed conflict.] It’s a major mistake of the U.S. to deny 4th Geneva Convention coverage to unprivileged belligerents in wars between States, so in this respect, the Directive fails the test of international law. The majority of international legal opinion holds with the ICRC that no one is outside the protection of the Conventions. If, in a war between States, a detainee is not a national of the detaining authority and doesn’t qualify as a privileged belligerent/PoW under the 3d Geneva Convention, then the detainee is per force covered by the 4th Convention. But it is absolutely correct that the 4th Geneva Convention’s protections do not apply to wars against non-State armed groups (whose fighters are by definition, unprivileged belligerents). In fact, with the exception of Common Article 3, neither the 3d (PoW) nor the 4th (Civilian) Geneva Convention applies to wars against non-State armed groups.

Next, let me acknowledge one point on which Ryan is right and I was wrong in my earlier post on the topic. The Directive does require ICRC access to detainees. Even here, however, it permits waiver of that requirement in cases of “military necessity.” The document doesn’t define military necessity for purposes of denying ICRC access. Yet applicable international law is quite strict on this issue: “military necessity” is a doctrine applicable only to the actual fighting in war (means and methods of combat). It has no place in the realm of detention. Bottom line under international law: ICRC access may be not be denied in international armed conflict (war between States). Ryan points out that the Directive goes beyond the requirements of international law by mandating ICRC access in all armed conflict, for example in wars against non-State actors. But the improper “military necessity” caveat is an exception fully capable of swallowing the rule as well as the policy. My beef, inartfully stated in my earlier critique, is that while the Directive requires that the ICRC “be promptly notified of all ISN (Internment Serial Number) assignments,” it also foresees delay, and perhaps even denial of such assignments in “exceptional circumstances,” which again, are undefined. That would lead to detainees falling through the cracks, returning us to the days of secret detention at black sites.

Third, Ryan says that the reason the Directive refers to Common Article 3’s provisions as “standards,” but to Additional Protocol I, Article 75’s provisions as mere “principles” is simple. The United States is party to the Geneva Conventions, which include Common Article 3, but is not party to Additional Protocol I. In response to my observation that there should be no distinction because the United States recently announced its recognition of Article 75 as reflecting established customary international law, Ryan says, not exactly. It’s true, as Ryan notes, that the U.S. declaration on Article 75 merely said that “(t)he U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict . . .”. Ryan claims the language was carefully crafted to avoid equating Article 75 with custom. If that’s the case, the U.S. is trying to get credit for agreeing with the majority of the world that Article 75 is applicable law, while at the same time, denying that very fact and leaving itself an out to ignore the “fundamental guarantees” contained therein. Yet another example of an apparent salutary development losing its luster upon closer examination.

SFRC Access to Intelligence Information During Force Authorization Debate

On Wednesday, the Senate Foreign Relations Committee held a hearing on the Administration’s proposed strategy to defeat the Islamic State featuring Secretary of State John Kerry.  Ryan wrote about the chilly reception, from both sides of the aisle, Secretary Kerry received as he advanced the Obama Administration’s theory of existing statutory authority under the 2001 AUMF to conduct military operations against the Islamic State.

I write separately to highlight an exchange about congressional oversight and exclusive intelligence committee jurisdiction that raises significant issues of impairment of core legislative functions. The key concern is that the SFRC is being asked to legislate on matters of war and peace without being adequately briefed by the administration on intelligence activities. The source of the problem lies not only in the Executive Branch but also in the structure of the committees.

An important  exchange occurred when Sen. Mark Udall (D-CO) awkwardly asked Secretary Kerry a question based on public reports that there has been a covert operation to train-and-equip the non-Islamic State Syrian resistance groups fighting the Assad regime that the Administration describes as “moderate.”  Specifically, Sen. Udall asked Secretary Kerry:  “[W]hat has been the effectiveness over that last two years of this covert operation, of training 2-to-3,000 of these moderates?”

Secretary Kerry demurred as to the existence of any covert activity and indicated that, if there were any such activity, it could be discussed only in a classified session.  To be fair to Sen. Udall on the classification issues, earlier in the hearing Secretary Kerry had said:

Continue Reading »

The unresolved problems with the DoD Directive definition of “unprivileged belligerency”: A response to Ryan Vogel [Updated]

Thanks so much to former DoD official Ryan Vogel for his important guest post explaining the origins and objectives of the new Department of Defense Directive 2310.01E, regarding DoD detention practices.  Professor Vogel confirms what I surmised in a post earlier this week–that there’s nothing suspicious about the effort to revise the Directive, nor is the Directive designed to stealthily introduce or reflect any unfortunate new DoD detention practices or policies.

Most of Professor Vogel’s explanations are reassuring.  Nevertheless, what he has to say about the final provision in the appendix Glossary, defining the term “unprivileged belligerent,” does not really address the problems in that provision, which continue to be very troubling, even if (as Vogel suggests) they were not intended.

Professor Vogel emphasizes that the Directive is intended to apply only to govern DoD detention operations, and not to affect other important practices—most importantly, targeting.  I have no reason to question his representation that that was the intent of those who worked on the Directive.  Unfortunately, however, the definition of “unprivileged belligerent” not only includes at least one potentially significant legal problem related to detention itself, but also, by its terms, could reasonably be read to reflect DoD views on other important matters, as well, such as who can be targeted and who can be criminally prosecuted (i.e., who lacks “combatant immunity”) for their belligerent acts.  And in several important respects, those views would be wrong. Accordingly, especially if, as Professor Vogel suggests, it was not the purpose of the definition to address such matters, DoD should promptly amend it (and its “examples”) to eliminate those problems and confusions.*

As I explained in my earlier post, the substantive provisions of the Directive refer to three categories of DoD detainees:  POWs, civilians, and “unprivileged belligerents.”  As for the latter category, the Directive explains two substantive things of note related to detention:

– (i) that, like POWs, “unprivileged belligerents” may lawfully be detained until the end of an armed conflict or until active hostilities have ceased—in contrast to civilian internees, who may lawfully be detained only “until the reasons that necessitated the civilian’s internment no longer exist.”  See paragraph 3(f).

and

(ii) that, unlike certain civilian detainees, “unprivileged belligerents” do not qualify for “protected person” status under the Fourth Geneva Convention.  See paragraph 3(m)(1).  [UPDATE:  Just to be clear:  The Directive does not suggest that such detainees are entitled to no protection at all under the Geneva Conventions:  Paragraph 3(a)(1) specifies that all detainees, without regard to status, are entitled to, inter alia, the protections of Common Article 3.]

The purpose of the definition of “unprivileged belligerent,” then, should be to identify those detainees who are subject to those two detention-related propositions.

That’s where the first problem comes in—a problem related to detention itself.  The Glossary definition suggests that a person who has “substantially support[ed] an enemy non-state armed group in the conduct of hostilities” is thereby an “unprivileged belligerent,” i.e., someone who can, per paragraph 3(f) of the Directive, lawfully be detained until the end of hostilities.  That may, perhaps, be true in some cases—such as with respect to substantial supporters of enemy forces who are apprehended while accompanying such forces.  But in other cases, DoD could lawfully hold persons who “substantially support” an enemy non-state armed group only in an internment capacity, if their support makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible detention of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention.  Indeed, this is reportedly what DoD did with respect to such civilian supporters of the enemy during the war in Iraq.  Such supporters, contrary to the definition of the Glossary, do not automatically “forfeit the protections of civilian status,” even for purposes of detention.  (Steve Vladeck and I have more on this topic toward the end of this post.)

Professor Vogel responds that it would be “strange” for the Directive not to refer to substantial supporters as among those who might be detained by DoD, since that has been the Administration’s view since it filed its March 13, 2009 brief in the Guantánamo habeas litigation.  Vogel is correct that that has been the Administration’s view.  The problem, however, is the Glossary’s reference to all such (hypothetical) supporter detainees as “unprivileged belligerents” and to suggest that they forfeit all protections of civilian status–something the March 13th brief was very careful not to do.  The Directive likewise should avoid such characterizations.  (Indeed, it’s not obvious to me that the Directive has to address “substantial supporters” at all:  The question of when and under what conditions they may be detained is a complicated one, and it appears that it might be largely academic, since few if any DoD detainees are held on the basis of such “support.”  Therefore it might be best not to try to untangle this (largely) hypothetical puzzle in the context of this Directive.)

The other problems with the definition of “unprivileged belligerent,” however, are even more troubling, because they expressly state or strongly imply mistaken conclusions about topics other than detention—something that Professor Vogel assures us the drafters did not intend.  For example:

– that civilians who are not part of enemy forces but who “engag[e] in hostilities” thereby “incur[] the . . . liabilities of combatant status”—presumably including the “liability” of being a lawful target at any time, which is the principal “liability of combatant status” under the laws and practices of war;

– that an individual who “substantially support[s] an enemy non-state armed group in the conduct of hostilities” also not only “forfeit[s] the protections of civilian status,” but also “incur[s] the . . . liabilities of combatant status”—again, presumably including the “liability” of being a lawful target at any time; and

– that combatants who engage in spying, sabotage, or other similar acts behind enemy lines thereby “forfeit[]the privileges of combatant status”—apparently even if those combatants are part of state armed forces, or have returned to their own lines before being apprehended.

In my earlier post, I explained why each of these propositions is wrong or misleading.  At a minimum, however, they do not relate to questions of detention policy, and therefore have no place in this Directive, regardless of their substantive merits.

_________________

* Professor Vogel implies that the definition in question is no change from the status quo, as reflected in two earlier DoD documents, the prior version of Directive 2310.01E itself, and Army Regulation 190-8.  Neither of those documents, however, incorporates the problems found in the new definition of “unprivileged belligerent,” and the Bush Administration version of the Directive notoriously included a definition of “unlawful enemy combatant” that contained its own distinct problems–a definition that has, appropriately, been removed from this new version.

News Roundup and Notes: September 18, 2014

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

In a rare bipartisan move, the House voted 273-156 to approve President Obama’s plan to arm and train Syrian rebels, even as lawmakers from both parties remain skeptical of the President’s strategy to counter the Islamic State. The Senate is expected to pass the legislation today [Politico’s John Bresnahan and Lauren French; Washington Post’s Ed O’Keefe and Paul Kane]. Reuters (Patricia Zengerle And Richard Cowan) notes that the measure—an amendment to a stopgap spending bill—leaves several questions unanswered, including whether the moderate rebels will be armed with the advanced weapons they have requested.

Secretary of State John Kerry sought to defend the administration’s strategy against ISIS before the Senate Foreign Relations Committee yesterday [The Hill’s Kristina Wong]. Ryan Goodman at Just Security considers Kerry’s “difficult defense” of the application of Congress’ 2001 AUMF to ISIS at the hearing—and “senators’ disbelief.”

In a statement yesterday, President Obama restated that he would not commit American forces “to fighting another ground war in Iraq,” but emphasized his commitment to destroying ISIS in coordination with the “broad coalition of countries that have a stake in this fight” [New York Times’ Michael D. Shear].

The Wall Street Journal editorial board suggests that rather than placating those skeptical of military force, President Obama “would be smarter to rule nothing out and be honest about the sacrifices that might be required” in efforts to eradicate the Islamic State.

In an interview with the Associated Press, Iraqi Prime Minister Haider al-Abadi ruled out the possibility of U.S. ground troops in Iraq saying: Continue Reading »

Sec. Kerry’s difficult defense of 2001 AUMF application to ISIL–and Senators’ Disbelief

Wednesday’s Senate Committee on Foreign Relations (SCFR) hearing on ISIL presented an opportunity for the administration to defend its theory that the use of force against ISIL is covered by Congress’ 2001 Authorization for the Use of Military Force (AUMF). It didn’t go well.

A key exchange occurred between the Chair of the Committee Sen. Menendez and Secretary Kerry, followed by comments from Ranking Member Sen. Corker (video clip below and transcript below).

First, Secretary Kerry strangely emphasized that the 2001 AUMF applies to “associated forces” (see 2:08 in the video clip). But that is not the administration’s argument. As Marty Lederman (Just Security post) and Steve Vladeck (Lawfare post) have explained, the administration’s legal position is that ISIL is not an associated force, but is instead Al Qaeda itself (one of two splinter groups or a “successor model”). It would be a fool’s errand to try to claim ISIL is an associated force given the major breakup between AQ and ISIL. Indeed, Sen. Menendez interjected: “al-Qaida threw out ISIL.” Moreover, AQ’s affiliate in Syria and ISIL, it would be fair to say, have been engaged in an armed conflict against one another.

Second, by the time Secretary Kerry started to present a “successor”-type analysis, he seemed to have lost his audience. The Chair began by referring first to the 2001 AUMF and reminding Mr. Kerry that administration officials had recently testified before the committee that the 2002 AUMF should be repealed. Sen. Menendez then asked a pointed question: “How is it that the administration now thinks it can rely upon that for legal authority?” Secretary Kerry replied, “Mr. Chairman, how is it? It is because (pause) good lawyers within the White House, within the State Department, who have examined this extremely closely, have come to the conclusion across the board…” And then he began reading directly from the text of the 2001 AUMF.

Better to have led with a substantive argument and stated a rationale (and answer the part of the question about the 2002 AUMF). Sec. Kerry’s response also raises other questions. The administration lawyers came to the same conclusion “across the board”? That’s remarkable given that lawyers outside the government, including those who have previously served in the administration don’t exactly buy it. Also, did Mr. Kerry mean to refer just to the White House and the State Department? What about the Justice Department and the Office of Legal Counsel? Was excluding the DOJ a purposeful omission? [It should be noted that Sen. Boxer remarked in defense of Mr. Kerry's position: "I voted for the one in'01, and I've re-read it about six times. Mr. Secretary, the lawyers I've consulted with believe that you have the authority to go after ISIL. It's very clear. You read the parts. If people listened to you, you read the parts that are correct."]

Regardless, Sen. Menendez expressed his incredulity: “I appreciate your ability as a former prosecutor and a gifted attorney to try to make the case. I will tell you that at least from the chair’s perspective, you’re going to need a new AUMF.” Sen. Corker added: “I’m disappointed that you as secretary of state, after being chairman of this committee, Continue Reading »

No, You Can’t Strip Americans of their Citizenship, Senator Cruz: The Folly of the Expatriate Terrorists Act

Today, as the nation debates serious matters such as how best to address the ISIS and how best to reform NSA surveillance authorities, Senator Ted Cruz will reportedly seek unanimous consent to enact the Expatriate Terrorists Act, a useless piece of legislation that would serve no good purpose, and would raise serious constitutional questions.  In my capacity as co-chair of the Constitution Project’s Liberty and Security Committee, I sent a letter to the Senate today to urge members to oppose this ill-advised sport.  If enacted, it would not lead to the expatriation of a single citizen, would not make Americans more safe, would raise serious constitutional questions, and would achieve no more than provide Senator Cruz an empty symbolic public relations hit.

The ETA would amend 8 U.S.C. § 1481(a), which sets out limited circumstances under which U.S. citizens can be denaturalized or expatriated.  The bill would add the following to the short list of predicate acts that can result in loss of citizenship:  1) taking an oath of allegiance to a foreign terrorist organization; 2) joining a foreign terrorist organization’s armed forces while they are fighting the United States; and 3) “becoming a member of, or providing training or material assistance to,” a foreign terrorist organization that the person knows or has reason to know will engage in hostilities or terrorism against the U.S.

The reason this bill would serve no purpose is that the Supreme Court has long ruled that citizenship is a constitutional right.  Therefore, like all other constitutional rights, it cannot be taken away from individuals against their will under any circumstances.  We cannot, as a constitutional matter, strip citizenship from people convicted of treason, much less people who do nothing more than affiliate in some unspecified way with a group we have labeled terrorist, as Cruz’s bill attempts to do.

Like any constitutional right, citizenship can be waived.  Citizens are entitled, of their own free will, to renounce American citizenship.  But the Constitution requires that before anyone loses his citizenship, the government must establish that the individual knowingly, voluntarily, and intentionally relinquished his right – just as courts must establish that an individual knowingly, voluntarily, and intentionally waived his trial rights before accepting a guilty plea.

Before the Court declared citizenship a constitutional right, one could lose one’s citizenship by committing an expatriating act – such as joining another nation’s army.  But after Afroyim v. Rusk, 187 U.S. 253 (1967), citizenship is a constitutional right, and no conduct, no matter how venal, Continue Reading »