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Labor Day

Just Security is on an abbreviated schedule for Labor Day with a lower volume of posts than normal. If any major, time-sensitive developments occur, we will aim to address those issues.

The Early Edition will resume tomorrow.

You can follow us on Twitter and Facebook for our latest coverage and analysis.

Recap of Recent Posts on Just Security (August 22-29)

I. ISIS

  1. Beth Van Schaack, ISIL = Genocide? (Friday, Aug 29)
  2. Ryan Goodman, Harold Koh on the International and Domestic Legal Options for Containing ISIL (Friday, Aug 29)
  3. Ryan Goodman, International Law on Airstrikes against ISIS in Syria (Thursday, Aug 28)
  4. Ryan Goodman, The Administration’s Theory for How the 2001 AUMF Could Apply to ISIS (Tuesday, Aug 26)
  5. Ryan Goodman, Does the Administration Consider the War Powers Resolution Applicable in Iraq? (Monday, Aug 25)

II. Detention, Trial & Treatment

  1. Jennifer Daskal, Hope for Yemeni Detainees? (Wednesday, Aug 27)
  2. Marty Lederman, Cert. Petition in Ali Accepts Justice Breyer’s Invitation (Monday, Aug 25)

III. Surveillance, Privacy & Technology

  1. Jennifer Granick, FISC OKs Section 215 Investigations of Americans, Despite First Amendment (Thursday, Aug 28)
  2. Jennifer Granick, Intercept Reporting Raises Broader Metadata Minimization Question (Monday, Aug 25)

IV. Lethal Action (Targeted Killings)

V. Israel-Palestine (and International Criminal Court)

VI. Official Act Immunity

VII. Pakistan 

VIII. Job Opening

ISIL = Genocide?

As we have discussed, the United States has launched further military action in Iraq. This would follow the launch of limited airstrikes against the Islamic State of Iraq and the Levant (ISIL) in Kurdistan earlier this month, ostensibly to avert the fall of Erbil (the Kurdish capital), protect U.S. diplomatic personnel and other U.S. citizens, and break the siege on the mountain where thousands of Yazidis had sought refuge. (The President’s earlier statement is here). The articulated motives of the earlier operation invoked two distinct strands of the doctrine of humanitarian intervention: the extraterritorial defense (1) of nationals and (2) of others when the territorial state is unable, or unwilling, to provide the necessary protection. [Some argue that states have the right to use military force on such grounds in the absence of consent of the territorial state (in this instance, Iraq consented and invited us, but Syria is a more difficult case). And some contend that severe humanitarian concerns may give rise to a duty, or responsibility, to protect civilians when the territorial state is ineffective.] The former (rescue of one’s nationals without territorial state consent) has a long history, including the 1976 Israeli operation at the Entebbe airport in Uganda to rescue Israeli civilians and others from German and Palestinian hostage-takers.

Humanitarian Intervention & The Prevention of Genocide

The legality and legitimacy of the latter variety of humanitarian intervention (rescue of others without territorial state consent), as we have often discussed, remains disputed. Examples include the 1971 invasion by India of Bangladesh (then East Pakistan) to protect the Bengali population from West Pakistani depredations; the invasion by Vietnam of Cambodia to oust the Khmer Rouge in 1978, Tanzania’s 1979 efforts in Uganda to end Idi Amin’s cruel reign, and—of course—Operation Allied Force in Kosovo (1999). Some would argue that humanitarian intervention in defense of others is now subsumed under the Responsibility to Protect doctrine, the third pillar of which envisions military action—as a last resort—when civilians are threatened with grave harm. The most authoritative, and recent, articulation of R2P, however, envisions the deployment of military force solely under the aegis of the Security Council. Whether the ancient concept of humanitarian intervention remains available to states—acting singly or jointly—when action at the Security Council is blocked remains contested.

To many, the threat of genocide offers the most compelling scenario for the continued viability of some doctrine of humanitarian intervention absent Security Council approval. And yet, any authorization to use force in the face of an unfolding genocide would have to come from customary international law. Although the Genocide Convention, which enjoys 146 members including Iraq and Syria, clearly states that its object and purpose is to ensure both the prosecution and the prevention of the crime of genocide, the treaty is primarily penal in nature: it establishes genocide as an international crime, outlines the elements of genocide, and identifies punishable forms of liability (conspiracy, incitement, attempt, and complicity). Continue Reading »

Harold Koh on the International and Domestic Legal Options for Containing ISIL

Just Security’s Harold Koh has a must-read piece in Politico, analyzing the legal and policy choices for the President to confront ISIL. Harold stakes out several important positions including:

On Article II authority:

“President Obama can hardly extend a conflict with ISIL to Syria based on claims of inherent constitutional authority, when he rightly criticized the Bush administration for pursuing a ‘Global War on Terror’ based on similar sweeping claims.”

On the need for the President to go to Congress for a new AUMF:

“To secure a domestic legal ground for action, the administration should engage with Congress to develop an ISIL-specific AUMF.”

On the purpose of the military mission (containment):

“We should ‘re-contain’ ISIL by using military force to stop it from metastasizing and ‘shrink ISIL back into ISIS’ as a smaller, less ambitious non-state actor that limits its aspirations and activities to Syrian territory.”

Harold also analyzes the international legal basis for different missions, the scope of existing AUMFs, the conditions that Congress should place on the ISIL-specific AUMF, and more.

Here’s the link to the full Op-Ed.

News Roundup and Notes: August 29, 2014

The News Roundup will be back on Tuesday morning, after Labor Day. Here’s today’s news.

Russia and Ukraine

NATO is holding an emergency meeting this morning to discuss the crisis in eastern Ukraine. Secretary-General Anders Fogh Rasmussen accused Moscow of a “blatant violation” of Ukraine’s sovereignty and dismissed Russia’s “hollow denials” [BBC].  Yesterday, the alliance released satellite imagery showing Russian combat troops inside Ukrainian territory and said that at least 1,000 Russian troops had entered the country [Associated Press]. Amid the escalation of hostilities in the east, Ukrainian Prime Minister Arseny Yatsenyuk announced he will seek NATO membership [BBC].

The UN Security Council also held emergency talks on the situation yesterday [UN News Centre]. In a strong statement to the Council, U.S. ambassador to the UN Samantha Power said that Russia has “outright lied,” but that in the last 48 hours, the “mask is coming off.” Power said Russia’s actions are “a deliberate effort to support, and now fight alongside, illegal separatists in another sovereign country.”

President Obama similarly accused Russia of “deliberately and repeatedly violat[ing] the sovereignty and territorial integrity of Ukraine.” However, Obama emphasized:

“We are not taking military action to solve the Ukrainian problem.  What we’re doing is to mobilize the international community to apply pressure on Russia.”

Obama also said that German Chancellor Angela Merkel was in agreement with the U.S. that “Russia is responsible for the violence in eastern Ukraine.” The two leaders further agreed to consider additional sanctions [White House]. Continue Reading »

FISC OKs Section 215 Investigations of Americans, Despite First Amendment

The Foreign Intelligence Surveillance Court declassified an opinion today which, although highly redacted, illuminates the way at least one Judge is interpreting his mandate to protect the First Amendment activities of Americans who the FBI seeks to investigate under USA PATRIOT Act Section 215, codified at 50 USC 1861.

Essentially, the question the judge, John D. Bates, confronts is when are international terrorism investigations involving Americans based “solely upon activities protected by the first amendment to the Constitution.” Judge Bates concludes that so long as a international terrorism investigation is premised on some unprotected activity, the FBI can nevertheless investigate law-abiding US persons.

In this case, the FBI is conducting an investigation to protect against international terrorism. It appears that a US person is the target of the invesigation or section 215 order. Judge Bates finds that the target’s conduct and speech suggests sympathy toward— if not support of—internation terrorism. However, all of the target’s speech and conduct fall within the protections of the First Amendment. So target’s own words and conduct do not meet the statutory standard for an order.

Of course, we don’t know what happened to bring this law abiding American target under FBI scrutiny. Its easy to imagine that the American is in some way complicitious with the suspected terrorists illegal acts. However, federal criminal law prohibits certain activities in preparing for or seeking to commit another crimes, including aiding and abetting, conspiracy, and solicitation. The definition of these crimes is broad, but apparently the FBI could not identify facts suggesting the American might be committing one of these crimes. Nor does it appear that Judge Bates had any reason to believe the American was associated with illegal activity. Rather, all his conduct and speech fell within the First Amendment.

Despite the absence of illegal conduct, Judge Bates allows the FBI to investigate the American. Bates concludes that he may consider related conduct of other people that illuminates the “the character (protected by the first amendment or not) of the ‘activities’ that are the ‘basis’ of the investigation.”  The other party’s or parties’ actvities would not be protected by the First Amendment even if those people were US persons. Therefore, Judge Bates concludes that the investigation of the American is not based “solely” on First Amendment activities, but rather at least in part on the unprotected activities of others.

Under section 215, is the question whether the terrorism investigation is solely premised on First Amendment activities, or whether the investigation of the American during the course of a terrorism investigation is solely premised on First Amendment activities? The statute suggests the latter. It says an order for production of tangible things can issue in:

an investigation … to protect against international terrorism, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The phrase “conducted solely upon the basis of activities protected by the first amendment to the Constitution” directly follows, and should relate to, the “investigation of a United States person” and not to the more general “investigation … to protect against international terrorism”. The statute prohibits the FBI from investigating law abiding Americans unless their own conduct fell outside of the First Amendment, regardless of the conduct of other people related to the investigation. I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.

They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.

The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.

For people who were reassured that section 215’s language would protect law abiding Americans from getting sucked into counterterrorism investigations, this is another tchotchke for your Curio Cabinet of Naïveté. But the FISC, to its credit, declassified this opinion and now Congress and the public have a chance to understand what “law” is actually being applied.

International Law on Airstrikes against ISIS in Syria

The administration is actively considering the option of using military force against ISIS in Syria. As the New York Times editorial board states today: “The United States, however, has not been invited into Syria, and the Obama administration has not articulated a legal justification for crossing the border.”

So what might be the justification under international law?

[Colum Lynch has a very good piece in Foreign Policy, which canvases experts on this very question and in which I am quoted. This post provides a further elaboration of my opinion on the international legal framework.]

In conducting attacks against ISIS, the United States might assert either (1) the right of individual self-defense due to ISIS’s direct threat to the United States; or (2) the right of collective self-defense in coming to the aid of Iraq. At this point, the former is a weak one—without a truly imminent or actual “armed attack” against the United States. The latter is solid.

But what about US forces crossing the border into Syria? The US government would likely assert that Syria is “unwilling or unable” to deal effectively with the ISIS threat. This is the same prerogative that the United States invokes in other parts of the world (think: the US operation to kill Osama bin Laden without seeking Pakistan’s approval). The “unwilling or unable” test is now a fairly well settled part of the US government’s legal position. Nevertheless, it remains controversial under international law.

In a post back in February, I referred to some of the active debates among international legal scholars on this question of international law:

“Can the United States send armed forces into another state to deal with a national security threat from a militant group when the host state is “unwilling or unable” to contain the threat? That question has been a focus of debates among international legal experts including Daniel BethlehemAshley DeeksKevin Jon HellerChristian Tams (plus many others in the American Journal of Int’l Law in April 2013 and July 2013).”

There are potentially two additional complications for airstrikes in Syria.

First, a strong case could be made that the US prerogative to strike in Syria would be conditioned on Iraq’s request for assistance including Iraq’s determination with respect to Syria. That is, if the United States were to conduct operations against ISIS in Syria on the basis of collective self-defense of Iraq, the government of Iraq would presumably need to request the US take the fight to Syria. Iraq may thus also need to accept the doctrine of unwilling or unable and determine that Syria fails the test.

Second, does Syria present a case of a state that is “willing and able”? Assad has demonstrated that he is utterly unwilling or unable to deal with the ISIS threat effectively. But, the Syria government has now essentially stated that it is willing and able to cooperate with the United States in carrying out strikes against ISIS. And the Syrian government has said, “Any strike which is not coordinated with the government will be considered as aggression.”

In a statement that is a bit stunning when viewed in light of international law, the State Department spokesperson said earlier this week, “We’re not looking for the approval of the Syrian regime.”

Therein lies the complication: What is the international law when Continue Reading »

Australia’s collateral damage in the US drone program

In the last few years there has been a hotly contested global debate about the civilian impact of the U.S. drone strike program and its moral and legal justifications. Despite being geographically part of Asia (where the majority of drone strikes took place) and politically aligned with the west (states responsible for the strikes), until now the global debate went largely unnoticed in Australia.

The death of two Australians has led to a new reality Down Under – there is now an increasing public debate about whether the U.S-Australian intelligence sharing alliance has fairly been used as cover for Australia’s secret involvement in the controversial U.S. targeted killing program. The debate has raised concerns that Australia’s democratic institutions and rule of law could be collateral damage in the US drone program.

In April 2014, the human suffering caused by the U.S. drone program was brought home to many Australians for the first time, with reports that the U.S. had killed two Australians in a drone strike in Yemen.  In November 2013, Australians Chris Havard and Muslim bin John were killed in a US Predator drone attack on a convoy in Hadramout Province, Yemen.  Their deaths were reported in Australia five months later.

The news of the Australian deaths was reported amid increasing concern that Pine Gap, a joint Australian-American facility located in the desert of Australia’s Northern Territory, is used to locate the targets of U.S. drone strikes. Pine Gap controls U.S. spy satellites that intercept communications across key parts of the globe including Pakistan and the Middle East.

Australia and the United States, along with the other countries in the Five Eyes alliance, have long benefited from sharing intelligence.  Unsurprisingly, Australia sees its close relationship with the United States as essential to Australia’s prosperity and security and vital to meeting global and regional security challenges.

But the deaths of two Australian citizens in a US drone attack have publicly highlighted the perils and limitations of that friendship.

Diminishing support for the Joint Defence Facility Pine Gap

Established in 1970 as an intelligence gathering base, Pine Gap has long been shrouded in secrecy. The facility is staffed by Australian and American officials, and Australia claims “full knowledge and concurrence” of all activities at the facility.

Malcolm Fraser was Australia’s conservative Prime Minister not long after Pine Gap was established and he believes that the fundamental nature of the joint facility has changed over time. “Initially Pine Gap was collecting information – it was, if you like, listening in.  It’s now targeting weapons systems. It’s also very much involved in the targeting of drones.”

Fraser’s view is supported by reports in the Australian press, based on information from former Pine Gap personnel, that Continue Reading »

News Roundup and Notes: August 28, 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.

Russia and Ukraine

In an escalation of hostilities, pro-Russian rebel forces, backed by Russian tanks and soldiers, are battling Ukrainian troops on multiple fronts, after opening a new front in Ukraine’s south-east. Rebels have seized control of the town of Novoazovsk and are threatening to take the city of Mariupol. Ukraine’s military condemned the developments as a “full-scale invasion,” while the country’s Prime Minister called for an immediate Security Council meeting [BBC; CNN’s Victoria Butenko et al].

State Department spokesperson Jen Psaki said that the latest reports of additional Russian tanks, rocket launchers and armored vehicles entering Ukraine “indicate a Russian-directed counteroffensive is likely underway in Donetsk and Luhansk.”

U.S. Ambassador to Ukraine Geoffrey Pyatt announced on Twitter: Continue Reading »

The National Security Implications of Pakistan’s Latest Political Crisis

Once again, Pakistan is suffering from a self-induced political crisis. For days, street protests led by opposition politicians Imran Khan and Tahir-ul-Qadri have paralyzed Islamabad and threatened the government of Prime Minister Nawaz Sharif. Layers of intrigue surround Pakistan’s domestic political soap opera, keeping Pakistan’s cable news anchors hyperventilating and its twittersphere on overdrive. So far, however, the smart money is on continuity, not change, when it comes to Pakistan’s foreign and defense policy. This is both good and bad for U.S. national security.

The good news is that no matter how Pakistan’s latest protests end—whether a fizzle or a bang—we have little reason to fear an imminent, radical revolution in the way Pakistan deals with the United States, India, Afghanistan, its own nuclear arsenal, or any of the other major issues the United States cares most about.

This is because when it comes to national security and foreign policy issues, the cardinal rule for understanding Pakistan still holds: the army, far more than the civilian government, tends to call the shots. Time and again, Pakistan’s civilian leaders have had their wings clipped by the generals, and this would almost certainly be the case in the (highly unlikely) event that Khan or Qadri finds his way to power.

Although both opposition leaders have been eager to pick fights with the ruling government, they have been equally careful not to clash with the army. Qadri routinely speaks of the need for “revolution” in Pakistan, but the only real revolutionary movement in the country—the only one that rejects the state and the army’s dominant role in it—is the Pakistani Taliban. That group is now at the receiving end of a military offensive in North Waziristan. For the time being, the army’s strength and relative unity limit the prospects for a genuinely revolutionary turn in Pakistan’s political order.

Of course, this is also the bad news. The repressive, anti-democratic character of a political order in which the military plays a dominant role staves off revolution, but it also stymies healthy reform and progress. As many of Pakistan’s best political analysts have concluded, the only “winner” in the recent political crisis has been the military and its associated intelligence service, the ISI.

Because opposition politicians have so far failed to mobilize Continue Reading »