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Security Agreement With Afghanistan Raises Key Questions About How and When War Ends

Today, the United States and Afghanistan signed a long-awaited bilateral security agreement. The U.S. government promised to withdraw combat troops by December, and to leave nearly 10,000 U.S. troops plus allied forces in the country in an “advise-and-assist mission” after combat forces withdraw at the end of this year.

Afghanistan’s new president, Ashraf Ghani, signed the agreement after his predecessor Hamid Karzai, refused to sign one in 2013. The hope is that the U.S. presence will help ensure Afghanistan’s government does not fall victim to Iraq-like sectarian chaos. But as for where and how the U.S. combats terrorism going forward, the deal — which remains largely secret — raises at least as many questions as it answers.

For example, what will happen to several dozen prisoners the United States still holds at the Parwan detention facility (formerly known as Bagram) outside Kabul?  The U.S. formally turned over management of the facility to Afghanistan last year, but retained control over its non-Afghan detainees. Although the United States has refused to disclose their identities, U.S. officials have unofficially revealed that most are Pakistani. Others are believed to be from Yemen, Russia and Saudi Arabia. Many have been imprisoned by the United States without charge or trial for over a decade.

U.S. Brigadier General Patrick J. Reinert recently told Reuters that the United States may send some back to their home countries, may bring some to the United States, and may even send some to Guantanamo Bay. But adding to the population at the Guantanamo prison, which President Obama has been promising to close since he first took office, would be a huge mistake. (Instead, here’s how the U.S. can close it.)

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War: What is it good for? 20 ISIL Questions for Congress

We still don’t know if Congress will even vote on providing new and specific authorization for a military campaign in Iraq and Syria. Thankfully, responsible members of Congress rightly take the stand that part of their job is weighing in on whether our country should again go to war in the Middle East.

Although the President has begun military operations in Iraq and Syria, the question of whether and how the United States will continue to fight is far from closed. Congress still gets to decide three things: 1) whether to have a new authorization vote, 2) whether to have a meaningful substantive debate before that vote, and 3) what questions to ask if there is a meaningful debate.

My hope is that Congress decides to vote and to have a meaningful debate. These steps would air the pros and cons of war more fully before the United States commits. If it makes more sense to stop or scale back operations, the country can. Alternatively, if full consideration of the facts supports keeping the U.S. in the conflict, a decision by Congress to authorize force will be better informed and better understood by the public, and will also stand on a firmer legal foundation.

A debate about a vote is important, but Congress can do much more than vote on the war. Congress can find out the facts about the war.  How?  By asking tough but necessary questions.

Here are twenty questions about the conflict with ISIL that Congress could serve the nation by asking:

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The Need for Both Legal and Technical Privacy Protections

Last week, Apple and Google came under intense criticism from the law enforcement and national security communities for their decisions to encrypt user data when devices are locked. Their new features mean that the companies can no longer technically comply when they receive warrants from the government requesting that data.

Civil liberties advocates praised these announcements. Others chastised the companies for implementing design decisions that largely serve to thwart legal government requests. I will return to these criticisms below but first want to state upfront that I don’t think these changes will have a major impact on user privacy or law enforcement capabilities. Rather, the new features are notable because they illustrate a broader and much more important trend.

United States-based companies are increasingly making technical decisions that thwart authorities ability to collect user data from them. These decisions include efforts to: 1) be more judicious about what user data is collected in the first place; 2) encrypt data and store it in locations that may be out of the reach of governments’ legal authorities; and 3) design access regimes such that the companies themselves cannot decrypt data and therefore cannot satisfy government requests. I call these hybrid legal-technical surveillance countermeasures because they are technical mechanisms designed explicitly to address what some see as shortcomings of current law. They complement purely technical measures, such as efforts to eliminate security vulnerabilities, and purely legal measures, such as efforts to more consistently challenge government data requests.

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British Parliament Authorizes Airstrikes in Iraq; Debate Predictably Weighs in on Action in Syria

On Friday, the British House of Commons overwhelmingly voted (524-43) to approve the U.K.’s participation in airstrikes against ISIL targets in Iraq. The success of the vote was largely predicted after Prime Minister David Cameron reached an agreement with Opposition Leader Ed Miliband on the motion, but the nearly seven-hour debate (full text) contained notes of skepticism and caution. Several members of parliament questioned the lack of a broader strategy to tackle ISIL or the underlying problems in the region, and whether the Iraqi army has the ability to defend against ISIL on the ground.

In this post I wish to highlight the arguments that were made in relation to the legality of extending British military action to neighboring Syria. The motion specifically ruled out strikes in Syria, but the Prime Minister laid the groundwork for such an extension early on in the debate. While Cameron acknowledged that “the Syrian situation is more complicated than the Iraqi situation,” he said he did not believe there was a legal barrier to action in Syria. Cameron cited two reasons. First:

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News Roundup and Notes: September 30, 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.

Afghanistan

Today, the U.S. and Afghanistan signed the Bilateral Security Agreement, allowing up to 9,800 American soldiers to remain in the country after 2014 to assist Afghan forces [Washington Post’s Sudarsan Raghavan].

The Wall Street Journal (Joe Lauria) reports that Pakistan wishes to strengthen recently soured relations with Afghanistan following the inauguration of the new president.

Iraq and Syria

The U.S. along with partner nations conducted eight airstrikes in Syria over Sunday and Monday, while U.S. forces separately carried out three strikes against ISIS positions in Iraq. The U.S. said that ISIS was using the grain storage facility in Syria, targeted by airstrikes yesterday, as a logistics hub and vehicle staging facility.

The Pentagon responded to reports of civilian casualties from American strikes in Syria yesterday, with spokesperson Army Col. Steve Warren stating that the U.S. is unable to corroborate the reports, but is taking the matter “very seriously” [The Hill’s Kristina Wong].

ISIS fighters are adapting their tactics to avoid U.S. strikes by dispersing themselves, requiring greater effort on part of the U.S. forces to appropriately target the militants, according to Air Force Maj. Gen. Jeffrey Harrigian [The Hill’s Kristina Wong].

On the ground, Islamic State militants have made new advances in both Iraq and Syria and have reportedly reached within six miles of the Iraqi capital, Baghdad [The Telegraph’s Ruth Sherlock et al]. ISIS fighters are also closing in on Syria’s Kurdish area near the Turkish border, despite the campaign of airstrikes that began last week [Associated Press’ Desmond Butler and Diaa Hadid]. The move has prompted the Turkish government to deploy tanks to the border [Al Jazeera].

The U.S.-led strikes are posing a problem for the moderate Syrian rebels, who say they are losing public support, with many Syrians angered at civilian casualties and wary of U.S. motives [Reuters’ Tom Perry]. The New York Times (Anne Bernard) reports on protestors in Syria burning the American flag, as some see the U.S. airstrikes as assisting President Bashar al-Assad.

Based on President Obama’s recent comments, U.S. efforts to oust the Assad regime from Syria have been put on the backburner by the airstrike campaign against the Islamic State, Continue Reading »

FBI is Hurting Apple and Google’s Competitiveness with Crypto Backdoor Demands

Last week, FBI Director James B. Comey dispatched his minions to yell at Apple and Google for architecting their smartphones such that government officials cannot decrypt information stored on the devices — even when they have valid search warrants that would authorize them to do so. Comey said he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.”

Can it be that the U.S. government still doesn’t realize that Apple, Google, and other U.S.-based firms have to compete in the global marketplace? U.S. surveillance policies are undermining our companies’ ability to compete. As Chris Sprigman and I argued back in June of 2013, the U.S.’s warrantless surveillance of everyday foreigners’ communications causes serious collateral damage to America’s technology companies and to our Internet-fueled economy, not to mention to human rights and democracy the world over. NSA’s use of fake Facebook servers to deliver malware to surveillance targets doesn’t do the U.S. based company any favors in the global marketplace.

Nor will FBI pressure on Google and Apple help those companies compete in the smartphone market. There are about five or six major smartphone manufacturers which currently dominate the U.S. market. Google and Apple are competing domestically with South Korea-headquartered Samsung and LG, and Taiwan-based HTC. All these players are battling globally for market share and competition is fierce. China’s Xiaomi is suddenly fifth in the world, and there are fourteen other Asian manufacturers hoping to crush leaders Samsung and Apple.

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The Foreign Fighter Resolution: Implementing a Holistic Strategy to Defeat ISIL

United Nations Security Council Resolution 2178, adopted on September 24 after a debate involving dozens of world leaders, including United States President Barack Obama, is legally and strategically significant, reflecting the magnitude of the danger posed by the Islamic State of Iraq and the Levant (ISIL). Mirroring the complex dynamics of the threat itself, the resolution has many significant components, including encouragement of states to increase their efforts to counter violent extremism; changes to the UN institutions charged with counterterrorism policy; and calls for enhanced intelligence sharing among member states. But the most consequential requirements of the resolution are those designed to stem the flow of foreign fighters streaming to the zone of instability in the Fertile Crescent. The mandates of the resolution are innovative, and its structure is modeled after UN Security Council Resolution 1373. UNSCR 1373 was adopted in the weeks after 9/11 and imposed on states an obligation to criminalize the provision of financial support to terrorist groups, and to make substantial efforts to effectuate the resolution’s requirements.

The international fight against terrorist financing has seen significant successes. But a similar effort to curtail the flow of foreign fighters may struggle to achieve its stated aims for the same reasons a Security Council mandate to crack down on the phenomenon was necessary in the first place: Many of the most relevant states lack the political will or the capacity to prevent the flow of fighters to Iraq and Syria.

If Resolution 2178 is to work as hoped, therefore, the US government and its allies in the Security Council must follow the same blueprint that has led to important achievements in the terrorism financing context, and must follow up the resolution with a mix of three diplomatic tools: 1) Consistent pressure at the highest levels designed to overcome domestic political obstacles to robust enforcement of UNSCR 2178 in states that are the origin or transit points for foreign fighters; 2) Sustained information sharing to help states with less effective intelligence services identify networks of facilitators operating in their countries; and 3) Working-level assistance, including by UN organs like the Counterterrorism Executive Directorate, to build effective border control and interdiction processes. Only by doing so will the resolution live up to its promise.

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Obama’s ISIL Legal Rollout: Bungled, Clearly. But Illegal? Really?

Editors’ NoteThe following post is the fourth installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take a longer view each Monday through a look back at the big stories from the previous week and/or a look ahead to key developments on the horizon.

One month ago, when the drums of war started beating, I suggested a legal strategy that the Obama administration might deploy to fight the Islamic State (ISIL or ISIS) in accordance with domestic and international law. In brief, I urged that: (1) under domestic law, the administration engage Congress proactively to secure a tailored ISIL-specific authorization to use military force (AUMF) to achieve those policy objectives that it shares with Congress and our allies, and (2) under international law, the administration ramp up diplomatic efforts to enlist support for military operations against ISIL by seeking a UN Security Council resolution defining the particular purposes for which multilateral action is authorized, including sanctions, humanitarian assistance, aid to responsible Syrian rebel groups who oppose both Assad and ISIL and the protection of civilians, refugees, NGO workers and journalists.

By now, everyone knows that the administration did not exactly follow that path. Instead, it proceeded with its ragged rollout of its legal grounds for fighting ISIL. With respect to the President’s position under domestic law, some hints leading up to the President’s ISIL speech on Sept. 10 were that the administration would rely on his Article II Commander-in-Chief powers, “welcoming,” but not specifically requesting, whatever congressional support might be forthcoming from a Congress eager to avoid voting on that issue just before the midterm elections.  The night the President spoke, unnamed administration sources told The New York Times that instead of relying on a pure Article II argument, the administration was resting its war against ISIL on an existing statute: the 2001 al-Qaeda AUMF—which the President had said in May 2013 he wanted to “refine and ultimately repeal.” Despite ISIL’s well-publicized rift with al-Qaeda, the administration’s one-paragraph legal justification claimed not that ISIL is a co-belligerent of al-Qaeda, but that it is effectively a “successor” to Osama bin Laden’s al-Qaeda. When this claim was derided by a range of commentators (e.g., Bruce Ackerman, Noah Feldman, Jack Goldsmith, Deborah Pearlstein, and Jonathan Turley), the administration confided to the Times that a different statute—the 2002 Iraq AUMF—also provided statutory authority for military action. Just a month earlier, White House National Security Adviser Susan Rice asked House Speaker Rep. John Boehner (R-Ohio) to repeal that law as well, saying that “the Iraq AUMF is no longer used for any US government activity.” All this reinforced the unfortunate impression that the government was making up its legal argument as it went along.  To make matters worse, the administration’s entire public legal analysis was an authorless “background statement from a senior administration official” emailed to the New York Times on Sept. 12. Meanwhile, as the controversy over the domestic legal case boiled, no one inside the United States government offered an international law basis for a conflict extending into Syria until the bombing was underway.

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News Roundup and Notes: September 29, 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

Strikes in Iraq and Syria continue. U.S.-led airstrikes against ISIS positions in northern and eastern Syria overnight hit grain storage areas and the country’s largest gas plant, killing civilians, according to the Syrian Observatory for Human Rights [Reuters].

Over the weekend, the American-led coalition targeted Islamic State oil assets as well as positions in the Syria-Turkish border area, assisting Syrian Kurds who have been struggling to counter the terrorist organization near the Turkish border [Wall Street Journal’s Felicia Schwartz].

Human Rights Watch has called on the U.S. Government to investigate possible unlawful airstrikes in Syria that killed seven civilians and reportedly hit no legitimate military target.

The U.S. continued to carry out separate airstrikes targeting ISIS in Iraq over the weekend.

More countries pledge assistance in Iraq. The U.K. and Belgian parliaments have authorized participation in strikes against ISIS in Iraq, in a move welcomed by the White House as demonstrating “the clear commitment of the international community to take action together against these terrorists.” The governments of Denmark and the Netherlands also announced plans to provide fighter aircrafts to the mission in Iraq.

Terrorists respond to strikes. The leader of the al-Qaeda-linked al-Nusra Front in Syria has vowed to “use all possible means” to retaliate against the U.S.-led airstrikes, Continue Reading »

Recap of Recent Posts at Just Security (Sept 21-26)

I. ISIL

A. Grand Strategy

  1. David Cole, Unfinished Business: The Trickle-Down Effects of the War on ISIS on Civil Liberties, Human Rights, and the Rule of Law (Monday, Sept. 22)
  2. Rolf Mowatt-Larssen, Four Key Observations About the Campaign Against ISIL (Wednesday, Sept. 24)
  3. Rolf Mowatt-Larssen, ISIL as an Insurgency and a Terrorist Threat (Thursday, Sept. 25)

B. International Law on Use of Force in  Syria

  1. Marty Lederman, The War Powers Resolution and Article 51 Letters Concerning Use of Force in Syria Against ISIL and the Khorasan Group [Updated] (Tuesday, Sept. 23)
  2. John Reed, Unwilling or Unable: A Roundup of Just Security’s Debate on the Legality of Airstrikes Inside Syria (Tuesday, Sept. 23)
  3. Ryan Goodman and Sarah Knuckey, Remarkable Statement by UN Secretary General on US Airstrikes in Syria (Tuesday, Sept. 23)
  4. Jennifer Daskal, Ashley Deeks and Ryan Goodman, cross-posted at Lawfare, Strikes in Syria: The International Law Framework (Wednesday, Sept. 24)
  5. Ryan Goodman, Australia, France, Netherlands Express Legal Reservations about Airstrikes in Syria [Updated] (Thursday, Sept. 25)
  6. Ryan Goodman and Michael Schmitt, Having Crossed the Rubicon: Arming and Training Syrian Rebels (Friday, Sept. 25)

C. Domestic Procedures 

  1. Jack Goldsmith and Marty Lederman, cross-posted at Lawfare, Ongoing “Covert” Training of Syrian Rebels: But Is It Still Covert … and, if So, Why? (Monday, Sept. 22)
  2. Marty Lederman, The War Powers Resolution and Article 51 Letters Concerning Use of Force in Syria Against ISIL and the Khorasan Group [Updated] (Tuesday, Sept. 23)

D. Allies

  1. Just Security Staff, Full Text: House of Commons Motion on ISIS for Debate Tomorrow and Accompanying Summary of the Legal Position (Thursday, Sept. 25)
  2. Kristen Eichensehr, French Prime Minister’s Statement on Action Against ISIL (Full Text) (Friday, Sept. 25)

E. Detention

F. Syrian Rebels

II. UN Resolution on Foreign Terrorist Fighters

  1. Faiza Patel, President Obama to Preside Over Flawed UN Security Council Resolution on Foreign Fighters (Tuesday, Sept. 23)
  2. Martin Scheinin, Back to Post-9/11 Panic? Security Council Resolution on Foreign Terrorist Fighters (Tuesday, Sept. 23)
  3. Abby Zeith, Australia Introduces Foreign Fighter Bill on Eve of Obama Chairing UNSC Meeting on Foreign Fighters (Tuesday, Sept. 23)

III. Drones

  1. Sarah Knuckey, Human Rights Groups Petition UN on Drone Strikes (Monday, Sept. 22)
  2. Christopher Rogers, Towards a Global Debate? UN Human Rights Council Takes on Drones (Thursday, Sept. 25)

IV. Foreign Surveillance 

V. Detention, Trial & Treatment

  1. Ryan Vogel, The DoD Detainee Directive and Its Definition of “Unprivileged Belligerency” (Monday, Sept. 22)
  2. Daphne Eviatar, Abu Ghaith Sentence Confirms We Don’t Need Guantanamo (Tuesday, Sept. 23)
  3. Jonathan Horowitz, Now is the Time to Think About Detentions in Iraq and Syria: with ISIL A Response to Benjamin Wittes (Wednesday, Sept. 24)
  4. Abby Zeith, UK High Court Hears Case of Pakistani Held for a Decade Without Charges by UK and US (Wednesday, Sept. 24)

VI. “Yemen Model” of Counterterrorism and Al Qaeda in the Arabian Peninsula (AQAP)

VII. Counterterrorism Actions in Europe

VIII. North Korea

IX. Just Security Home News

  1. Steve Vladeck, National Security and the 2014 Midterms: A Preview of Monday’s CQ Roll Call / Just Security Event (Sunday, Sept. 21)
  2. Ryan Goodman, A Year of Great Debates on National Security Law at the Just Security Blog (Monday, Sept. 22)
  3. Ryan Goodman and Steve Vladeck, Welcoming Four New Just Security Editors (Tuesday, Sept. 23)