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Thanksgiving Schedule

Due to the Thanksgiving holiday, Just Security will be on an abbreviated schedule until Monday, December 1, with a lower volume of posts than normal. We wish safe travels and a happy holiday for those of you celebrating .

If any major, time-sensitive developments occur over this period, we will aim to address those issues.  We anticipate, for example, one such issue on Friday morning.

As always, follow us on Twitter and Facebook for the latest coverage and analysis.

Guest Post: NSA Reform — The Consequences of Failure

If you were expecting this to be a detailed post-mortem on the demise of the USA Freedom Act, you will be disappointed. As others have covered that ground, I want to focus on the consequences of the failure to rein in NSA to date, and what a failure to do so in 2015 will mean for this country.

In the absence of real reform, people and institutions at home and abroad are taking matters into their own hands. In America, the NSA’s overreach is changing the way we communicate with and relate to each other. In order to evade government surveillance, more and more Americans are employing encryption technology.  Continue Reading »

News Roundup and Notes: November 26, 2014

Today’s News Roundup will be our last for the remainder of this week, as we are off Thursday and Friday for the Thanksgiving holiday. From the entire Just Security Team, we wish you a very Happy Thanksgiving. The News Roundup will be back in your inbox on Monday morning. Here’s today’s news.

IRAQ and SYRIA

U.S.-led airstrikes continue. U.S. and partner nations carried out 15 airstrikes on Islamic State targets in Iraq from Nov. 21-24. Separately, U.S. and partner nations conducted a further seven airstrikes in Syria on Islamic State targets near Kobani and Raqqa. [Central Command]

Syrian government airstrikes on Raqqa killed at least 60 people yesterday in an “unusually intense” attack. [AP]

The U.S. has not yet begun recruiting and training moderate Syrian rebels, highlighting the fact that the Obama administration’s “strategy and its execution are deeply flawed.” [The Daily Beast’s Tim Mak]

Renewed efforts by Russia to encourage Syrian peace talks are unlikely to gain any ground as Moscow continues to reject calls for President Bashar al-Assad to step down, reports Gabriela Baczynska and Sylvia Westall. [Reuters] Continue Reading »

The Long Game: Why the Extension of Nuclear Talks With Iran is a Good Thing

Somewhere, Harry Truman is smiling. On Monday, Secretary of State John Kerry announced an extension of the Joint Plan of Action (JPA). This interim accord, reached in late 2013, provided Tehran with modest sanctions relief in exchange for a freeze and rolling back of Iran’s nuclear program. American—and global—efforts continue to be focused on a long-term agreement on Iran’s nuclear program, and the new deadline represents significant opportunity for a diplomatic victory. President Truman, however, would smile at this diplomatic settlement, because he would appreciate President Obama’s dilemma.

Simply put, President Obama cannot abide a nuclear-armed Iran. At the same time, Obama, like Truman before him, confronts a complicated world with many moving parts. Consequently, he, similar to Truman, is forced to balance the short, medium, and long games.  Continue Reading »

What is the Remedy for American Torture?

Asst. Sec. of State for Democracy, Human Rights, and Labor, Tom Malinowski stated to the UN Committee on Torture two weeks ago that:

A little more than ten years ago, our government was employing interrogation methods that, as President Obama has said, any fair-minded person would believe were torture. At the same time, the test for any nation committed to this Convention and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.

But what does correction look like? What obligations of repair follow from the acknowledgement that torture was routinely and consistently practiced by the United States? It is very clear that the Convention Against Torture (Article 14) as well as the collective jurisprudence of regional and international courts require that reparations follow from harm committed in breach of human rights treaty obligations. At the same hearings, Acting Legal Advisor to the State Department, Mary McLeod claimed that the United States “has taken important steps to ensure adherence to its legal obligations.” These include the creation and enforcement of laws and processes “to strengthen the safeguards against torture and cruel treatment” including Executive Order 13491. We are told that Army Field Manual Rules on Interrogation are now being fully enforced, and that there is great transparency in interrogation procedures, though with some ambiguity whether these procedures apply outside the territory of the United States. There is one resounding silence. In the context of torture committed at Guantanamo Bay and in other detention sites across the world not one word emerged from the delegation on what direct and specific obligations of reparation were owed to those persons who experienced torture at the hands of agents of the United States. This gap was directly addressed by Jens Modvig, the Country Rapporteur who asked the delegation to clarify:

… how many victims of torture have legally pursued and successfully obtained effective remedy for torture during U.S. custody within and outside U.S. territory?

In parallel, the US position on prosecution maintains a curious silence on the salience of accountability for torture post 9/11, though prosecutions in other contexts against international recognized torturers is touted as evidence of a commitment to broadly based accountability. In the midst of this resounding silence, my comments focus on what the Committee can and should expect of the United States with respect to reparations for Guantanamo Bay detainees and others ill-treated in black sites.

A starting point to addressing why the United States has an obligation of reparations is to recall why remedies exist for human rights violations under international treaty law. Reparations exist because they provide a concrete means to show a desire for non-repetition, to give redress to persons who have been harmed and to individually confirm meaningful condemnation in the aftermath of grievous harm to a human being. Recall that the ICJ has held that “the power to afford reparations is implicit in jurisdiction to hear a case, as a necessary concomitant to deciding disputes.” Simply put, reparations are necessary to repair the legal injury.

Continue Reading »

News Roundup and Notes: November 25, 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.

DEFENSE SECRETARY’S RESIGNATION

Chuck Hagel will be stepping down as Secretary of Defense “under pressure.” President Obama announced the resignation yesterday. Helene Cooper reports that Hagel resigned following weeks of tension with Obama’s inner circle over a range of issues, including a dispute with national security adviser Susan Rice over policy in Syria. [New York Times] Senior defense officials told NBC News that Hagel was forced to resign after the White House lost confidence in the Pentagon leader, with one official stating: “He wasn’t up to the job,” reports Jim Miklaszewski.

Hagel’s resistance to Obama’s plans for closing Guantanamo also added to the friction between the leaders, according to sources familiar with the situation. [Politico’s Josh Gerstein]

Former senator Joe Lieberman has been proposed as a replacement for the Pentagon job. [Washington Post’s Colby Itkowitz] The Hill’s Martin Matishak names five other possible candidates for the position. 

Hagel’s departure “may represent the final triumph of a White House-centric approach to national security,” writes Mark Landler, who notes the lack of a broader shake-up within the administration. [New York Times] 

Hagel was chosen to help the president wind down the Middle East wars, but arrived instead at a time when Obama needed to reconsider the conflicts, which according to Gerald F. Seib explains “why the fit was never quite right.” [Wall Street Journal] The New Yorker’s John Cassidy raises questions about Obama’s judgment, particularly his decision to hire Hagel in the first place and his failure to foresee the current challenges facing the Pentagon.

The core of the administration’s military problem, Continue Reading »

The Global Reach of the U.S. Position on Torture

The U.S. government’s public pronouncement that the Convention Against Torture (CAT) applies beyond U.S. borders and in situations of armed conflict—its unequivocal “yes” that torture is prohibited as a matter of law anytime and anywhere—turns an important historical page. In her opening statement before the Committee Against Torture and in response to questions posed by the Committee, Acting State Department Legal Adviser Mary McLeod clarified the U.S. position by stating:

[W]here the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to all places that the State Party controls as a governmental authority. (emphasis added).

These places, McLeod added, currently include the Naval Station at Guantánamo Bay and U.S.-registered ships and aircraft. She further clarified that Convention Against Torture obligations to prevent torture and cruel, inhuman, or degrading treatment or punishment (CIDT) (Arts. 2 and 16) “remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the law of armed conflict.”

As Harold Koh and Sarah Cleveland have explained, these statements have realigned the U.S. with its pre-Bush administration position, as articulated in 1990 by Legal Adviser Abraham Sofaer in his testimony before the Senate and in President Ronald Reagan’s letter of transmittal, and in 2000 during then-Assistant Secretary Harold Koh’s presentation to the Committee Against Torture. While adding detail to its evolving views, the U.S. also affirmatively rejected the claim that, under lex specialis, international humanitarian law altogether displaces human rights law in situations of armed conflict. In so doing, the U.S. officially repudiated the Bush administration position, which had called into question both the CAT’s extraterritorial reach and its application in armed conflict. This is a critical victory for the United States in standing for humane treatment and human rights, hopefully a sturdy nail in the coffin of Bush administration positions that evoked “intense domestic and international criticism,” as then-Legal Adviser John Bellinger acknowledged in opposing them. Continue Reading »

Senator Rand Paul’s Proposed Declaration of War and AUMF against ISIL

Senator Rand Paul (R-KY) has released a proposal to declare war against the Islamic State and authorize the use of military force against it. In relevant part, Paul’s joint resolution would authorize and direct the President:

to use the Armed Forces of the United States to protect the people and facilities of the United States in Iraq and Syria against the threats posed thereto by the organization referring to itself as the Islamic State, also known as the Islamic State of Iraq and the Levant (ISIL) and the Islamic State of Iraq and Syria (ISIS).

This authorization would terminate one year after enactment. Paul’s proposal shares features with several other AUMF proposals—including sunset of the 2001 AUMF, repeal of the 2002 AUMF for Iraq, and limitations on ground troops. It also has several distinguishing aspects.

Declaring War

Paul’s AUMF would also declare war, for the first time since World War II: Continue Reading »

The US Needs a New International Strategy for Cyberspace

Editors’ NoteThe following post is the latest installment of our weekly feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

In May 2011, the United States released its first “International Strategy for Cyberspace.” Two of the pillars of the strategy were supporting multistakeholder governance and establishing “norms of responsible behavior” for states’ actions. Since then, progress on both issues has ebbed and flowed. Now, at the end of 2014, multistakeholder governance seems to be faring well, but norm development lags far behind.

As we approach the four-year anniversary of the initial International Strategy, it’s time for the United States to issue a new strategy to account for the developments of the past few years and either reaffirm and expand upon the goals laid out in the 2011 Strategy or articulate new goals and a strategy for achieving them.  Continue Reading »