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UN Human Rights Committee Offers Concluding Observations on Israel

As Ruchi Parekh highlighted earlier this month on Just Security, the United Nations Human Rights Committee has been considering both the fourth periodic report of Israel and the fifth periodic report of Sri Lanka, two countries significant to United States security interests. The Committee has released an advanced unedited version of its “Concluding observations on the fourth periodic report of Israel,” as adopted on October 28. We will have additional coverage of the Committee’s concluding observations on Sri Lanka soon.

The Committee singled out for praise several steps taken by the government of Israel, including protections for sexual orientation and gender identity for students, reforms to institutional oversight, and the 2012 ratification of the Convention on the Rights of Persons with Disabilities. The bulk of the release, however, consists of “matters of concern” and recommendations for remedial measures.

As Ruchi anticipated in her earlier post, the Committee indeed prominently criticized Israel’s position that the International Covenant on Civil and Political Rights (ICCPR) does not apply to the Occupied Territories: Continue Reading »

Social Media Companies and Material Support

Over the past several months, there has been increasing focus on terrorist use of social media. In the immediate aftermath of the execution of reporter James Foley by ISIL in July, the State Department acknowledged that, along with the Department of Defense, it reached out to social media sites, specifically Twitter and YouTube, to alert them to accounts posting the execution video and related images in violation of the sites’ “own usage polic[ies].”

This was not the first time that government officials had requested social media sites to suspend or shut down accounts affiliated with or related to Foreign Terrorist Organizations (“FTOs”). During the 2012 conflict between Israel and Hamas, both the Israeli Defense Forces and Hamas employed social media, including Twitter, to influence public perception. In response, seven House Republicans asked the FBI to force Twitter take down Hamas’s official account, as well those purported to belong to Hezbollah and al-Shabaab. Twitter ultimately suspended Hamas’s account in January 2014. In 2011, American officials announced that they were “looking closely” at al-Shabaab’s use of Twitter and exploring legal options to shut down related accounts. That same year, then-Senator Joe Lieberman requested that Twitter suspend all Taliban-related accounts.

In 2011, Glenn Greenwald speculated that the Department of Justice “could consider Twitter’s providing of a forum to a designated Terrorist organization to constitute the crime of ‘material support of Terrorism.’” The following year, the pro-Israel group Christians United for Israel (CUFI) began a petition campaign demanding that the U.S. government pursue charges against Twitter, under 18 U.S.C. § 2339A for providing service to Hamas. However, section 2339A would not provide the legal authority to prosecute social media sites because it requires specific intent to further the organization’s terrorist activities. Continue Reading »

News Roundup and Notes: October 31, 2014

Always Improving. As you may have noticed, we’ve recently been tweaking the design of the News Roundup to make it easier for you to read. We’d love to get your feedback on the design changes and hear your thoughts about how we can improve the News Roundup. Take this quick survey and share your thoughts about how we’re doing. Click here to see an older version of the News Roundup. Thanks!

Here’s today’s news.

IRAQ and SYRIA

The first group of around 10 Iraqi Kurdish peshmerga fighters in Kobani are preparing for the arrival of the larger convoy equipped with heavy weaponry, but intensified firing by ISIS fighters in the area appears to have caused delays. [Reuters’ Humeyra Pamuk and Omer Berberoglu]  The Economist explores the “huge symbolic significance” that Kobani has acquired, noting that “if it holds out, the psychological damage to IS will be real.”

The Syrian regime criticized the Turkish government for violating its sovereignty by allowing Iraqi Kurds to cross the Turkish border into Syrian territory. [Washington Post’s Liz Sly]

Foreign fighters from more than 80 countries are joining the conflicts in Iraq and Syria on “an unprecedented scale,” according to a UN Security Council report. [The Guardian’s Spencer Ackerman]  The flow of foreign jihadists into Syria has not been affected by the American-led air operations, according to U.S. intelligence officials. [Washington Post’s Greg Miller]

The bodies of more than 200 Sunni tribal fighters were discovered in Iraq’s Anbar province yesterday. The increasing death toll is likely to frustrate the government’s efforts to convince further tribal leaders to join the fight against the Islamic State. [Wall Street Journal’s Matt Bradley and Safa Majeed]  Meanwhile, an important Anbar tribal chief told Asharq Al-Awsat that Baghdad is not doing enough to assist the province against ISIS. Continue Reading »

The Article I argument in Zivotofsky

For over two centuries, federal courts have not had occasion to adjudicate whether and to what extent Congress has the power to regulate or supersede the President’s power to decide which nations and governments the United States will officially recognize, or the President’s related power to articulate the U.S. view on which nation is sovereign over a particular disputed territory.

This longstanding judicial silence is a function of the fact that Congress has rarely if ever actually enacted a statute that has been inconsistent with the President’s foreign recognition and sovereignty determinations.  But in 2002, the legislature (arguably) did so:  Section 214(d) of the 2003 Foreign Relations Authorization Act purports to require the Secretary of State to record the place of birth of a U.S. citizen born in Jerusalem as “Israel” on that person’s passport “upon the request of the citizen or the citizen’s legal guardian.”  This statutory directive contravenes the Executive’s decades-long practice to record the place of birth in such cases as “Jerusalem,” which reflects the United States’s official view, since the Truman Administration, that no state has sovereignty over Jerusalem, and that the status of Jerusalem must be resolved pursuant to a negotiated agreement between Israel and the Palestinians.

The constitutionality of Section 214(d) is at issue in Zivotofsky v. Kerry, a case that will be argued in the Supreme Court on Monday.  It has widely been expected that in Zivotofsky the Supreme Court must finally decide which political branch has the final word on questions of recognition and U.S. views on sovereignty over disputed territory.

Zivotofsky himself, however, insists that the Court need not resolve that fundamental constitutional question, because Section 214(d) (he argues) does not in fact determine recognition, or an authoritative U.S. view on the sovereignty of Jerusalem.  And notably, both the Senate and 42 members of the House, filing as amici on Zivotofsky’s behalf, agree that Section 214(d) is not a statute that formally alters the United States’s official view, as articulated by the Executive, on the status of Jerusalem.

In a blogpost this morning, Jack Goldsmith concurs with Zivotofsky (and the Senate and House amici) that the Court can and should avoid a determination on the difficult question of which branch has the last word on recognition . . . but for a reason very different from that urged by Zivotofsky.  Pointing to an argument at pages 46-48 of the Solicitor General’s brief, Jack contends that Congress simply lacks any affirmative Article I authority to require the Secretary to record the word “Israel” rather than “Jerusalem” on the passport of a U.S. citizen born in Jerusalem who requests such a designation.  If Jack and the SG are right about that Article I question, then that’s sufficient to resolve the case.

Responding to Jack, Eugene Kontorovich takes a page from the Senate brief:  He argues that of course Congress exercised an Article I authority here–namely, the “passport power,” pursuant to which Congress can and does regulate passports in order to facilitate the overseas travel of U.S. persons, a form of “commerce with foreign nations” (art. I, sec. 8, cl. 8).

I think the SG and Jack probably have the better of the argument here.

Continue Reading »

Gideon’s Army at Guantanamo

Despite enormous logistical and legal hurdles, defense attorneys for high value detainees at the Guantanamo Bay, Cuba, military prison, say they press on for the judgment of history, if not for a fair turn before the embattled military commissions that substitute for trials in federal court.

Attorneys for alleged 9/11 attack planners Khalid Shaikh Mohammed (KSM) and Ramzi Bin al-Shibh and alleged USS Cole bombing plotter Abd al-Rahim al-Nashiri described their challenges to an audience gathered by the Center on National Security at Fordham Law School in Manhattan on Wednesday night.

Even though all the defense attorneys are vetted and cleared to access Top Secret documents, they agree that secrecy remains the root of most delays and dysfunction.

“If you sat down to design a system and said, ‘I want to create a legal system where everything will move slowly, glacially,’ you would design this,” said Richard Kammen, who represents al-Nashiri. For example, if Kammen, who is based in Indianapolis, wants to read a classified court document, he must travel to a secure facility in Washington, D.C. to do so. Once, Kammen said, he was ordered to respond to motions he was not allowed to read.

Even when the attorneys are at Guantanamo to meet in person with their clients, a detainee’s own words are considered secret.

Continue Reading »

A Big Week in Afghanistan War Oversight

It has been a busy week for John Sopko, the US-appointed Special Inspector General for Afghanistan Reconstruction (SIGAR). He and his team just published a number of reports indicating that US-funded reconstruction efforts in Afghanistan continue to be plagued by contract performance problems, cost-overruns, corruption, and secrecy. SIGAR also exposed a significant legal issue related to classified evidence as a basis for suspension and debarment of a US government contractor who supports Taliban insurgents.

Many of these findings were published in, SIGAR’s quarterly report to Congress cataloging the host of troubles it found with NATO’s reconstruction efforts in Afghanistan between July and September 2014. To give a snapshot of the funds at stake, the US has appropriated approximately $104.1 billion for Afghanistan reconstruction, with about $14.5 billion still to be spent. Chief findings include:

  • SIGAR is “deeply troubled” by NATO’s recent decision to classify the executive summary of a quarterly report assessing the capability of the Afghan National Security Forces (ANSF) of the eve of NATO’s withdrawal from the country. Classification of the report summary “deprives the American people of an essential tool to measure the success or failure of the single most costly feature of the Afghanistan reconstruction effort,” reads SIGAR’s report, which also notes that the executive summaries were unclassified in earlier NATO reports on Afghan security forces.
  • Afghanistan’s “opium economy” is booming to record levels and now directly provides more full-time jobs (some 411,000) than the entire ANSF.
  • DOD reported a funding cut of $225.58 million for its counter-narcotics effort in Afghanistan. These cuts were partially attributed to the threat of sanctions against parts suppliers for the Russian-made Mi-17 helicopters used by the Afghan Air Force Special Mission Wing that performs anti-drug missions.
  • Irrigation projects in Afghanistan may have facilitated increased opium-poppy cultivation after periods of significant reductions.

Continue Reading »

The Private Frontline in Cybersecurity Offense and Defense

Two reports released Tuesday highlight the important role private actors are playing in cybersecurity defense. Cybersecurity company FireEye released a report on espionage activities by “APT28,” a group FireEye alleges is “sponsored by the Russian government.” In a second report, a coalition of security companies, led by Novetta, identified a sophisticated group dubbed “Axiom” that has directed cyber-espionage against companies, governments, journalists, and pro-democracy groups for the past six years. The report alleges Axiom is “part of the Chinese Intelligence Apparatus” and explains that the Novetta-led coalition performed “the first ever-private sponsored interdiction against a sophisticated state sponsored advanced threat group.” These reports, coupled with ongoing discussion about “hacking back” by victims of cyber intrusions, show the extent to which private actors are increasingly playing government-like roles in the cybersecurity arena.

My recent post on software bug bounties and zero-day vulnerabilities showcased governments acting like private actors by participating as customers in vulnerability markets, but these new reports show the flip-side: private parties acting like governments.

Here’s how.

Continue Reading »

Belhaj v. Straw: UK Court of Appeal allows torture claims to proceed

The UK Court of Appeal has handed down its judgment (full text) in the case brought by Abdul-Hakim Belhaj and his wife against the UK’s alleged role in their abduction, rendition to Libya, and mistreatment at the hands of US and other foreign officials in 2004. In December last year, the High Court had struck out the civil lawsuit on the basis that the act of state doctrine prevented the court from determining the claims.

The Court of Appeal rejects the government’s argument that the doctrine of state immunity prevents the claims from being heard in UK courts. The Court also rules that the act of state doctrine does not preclude the claim [paragraphs 114-121]. Citing, among other reasons, the universal condemnation of torture and the “stark reality” that these allegations will escape judicial investigation unless English courts are able to exercise jurisdiction in this case, the Court finds that:

“[T]he present case falls within the established limitation on the act of state doctrine imposed by considerations of public policy on grounds of violations of human rights and international law and that there are compelling reasons requiring the exercise of jurisdiction.”

Stay tuned for further analysis and coverage of the case at Just Security.

News Roundup and Notes: October 30, 2014

Always Improving. As you may have noticed, we’ve recently been tweaking the design of the News Roundup to make it easier for you to read. We’d love to get your feedback on the design changes and hear your thoughts about how we can improve the News Roundup. Take this quick survey and share your thoughts about how we’re doing. Click here to see an older version of the News Roundup. Thanks!

Here’s today’s news.

IRAQ and SYRIA

The first group of Iraqi Kurdish peshmerga fighters entered the Syrian town of Kobani through the Turkish border this morning, with others expected to join “within hours.” [Reuters]  The Islamic State carried out heavy shelling in the area ahead of the arrival of the Iraqi Kurds, who are bringing heavy weaponry to assist the Syrian Kurdish fighters in Kobani. [Wall Street Journal’s Ayla Albayrak and Emre Peker]

Iraqi troops are advancing toward Fallujah in Anbar province as part of an effort to recapture the town from ISIS, following their success against the militants in Jurf al-Sakhar. [Asharq al-Awsat’s Hamza Mustafa] 

ISIS fighters publicly executed at least 46 men from a Sunni opposition tribe in the western city of Hit, which the group seized earlier this month. [Washington Post’s Loveday Morris and Mustafa Salim] 

A Syrian regime helicopter dropped two barrel bombs on a displaced persons camp in the northern province of Idlib, reportedly killing at least 60 people. [Al JazeeraContinue Reading »

UN Panel: Blackwater Convictions are the “Exception, not the Rule”

Last week’s Blackwater convictions highlight an urgent need for an international treaty ensuring that private security contractors are held accountable if they commit human rights violations, according to an expert United Nations panel mandated to identify and develop global standards regulating mercenaries.

While the panel welcomed the conviction of four Blackwater contractors for the 2007 shooting deaths of 14 unarmed Iraqi civilians, it argued that “such examples of accountability are the exception rather than the rule” and called for an international treaty to “address the significant role that private military companies play in transnational conflicts,” in an Oct. 27  statement.

The panel, officially titled “The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination,” was established by the UN Human Rights Council in 2005. It has focused much of its attention on the need for an international treaty to effectively regulate the activities of what it calls Private Military and Security Companies (PMSCs), and in 2009 prepared a draft convention aimed at doing so.

The draft attempts to address two significant gaps in international law: a lack of rules prohibiting the outsourcing of “inherently governmental functions” to private security firms and ambiguity about the international law obligations owed by PMSCs.

Continue Reading »