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A Last Word on Lisa Monaco and AUMF Reform

In light of various offline comments, and Ben’s latest Lawfare post, let me briefly elaborate upon my post from this morning with respect to Saturday’s remarks by Lisa Monaco and the ongoing debate over AUMF reform. To my mind, folks are misreading Monaco’s comments because they are conflating three very different questions:

  1. What, if anything, is going to happen to the September 2001 AUMF?
  2. What additional (“extra-AUMF”) statutory authorities, if any, will the President seek for groups not covered by the 2001 AUMF (e.g., ISIS)?
  3. What powers does the President believe he has in the absence of any statutory authorization?

I didn’t see anything in Lisa’s comments—including her response to Raha—that suggested that the Administration has changed its view since at all with respect to questions (1) or (3) since the President’s May 2013 speech at the National Defense University. They are still seeking to refine or repeal the AUMF in light of the changed nature of the threat posed by al Qaeda and the Taliban; and they still believe that the President has at least some authority to use military force in the absence of any statute.

The million-dollar question is (2). And although Congress may address (2) in the same bill that addresses (1), we would all do well to keep these questions distinct. Thus, if what Lisa was saying was, in fact, about authority to go after groups clearly outside the scope of the AUMF (again, think ISIS), I think that only underscores the conclusion that there’s nothing new here. The Administration has never said it wouldn’t go to Congress if and when the need for extra-AUMF authority came along; it’s just resisted the notion that we’re there yet. And the whole point of the fight between Jen Daskal & me, on the one hand, and the Lawfare crew, on the other, is whether Congress should provide such forward-looking authority against groups with no connection to September 11 before they’re actually needed. The Hoover paper says yes; Jen and I rather emphatically say no. If the Administration does eventually seek a limited, group-specific use-of-force authorization against a group not covered by the 2001 AUMF, that only vindicates what Jen and I argued for in our paper–contra the broad and open-ended proposal at the core of the Hoover paper.

Of course, only folks inside the Administration can say for sure whether a shift in policy is nigh. But it would behoove all of us to be clear on what the current policy actually is before we can assess whether unscripted remarks to an unscripted question portend a shift thereof.

Int’l Human Rights and Domestic Surveillance: What the HRW/ACLU report reveals about officials’ views

This morning, Human Rights Watch and the ACLU released a joint report on the chilling effects of domestic surveillance. The report examines, in particular, the impact of surveillance on two groups: (1) journalists (e.g., on their ability to protect sources and acquire information including unclassified matters); and (2) lawyers (e.g., on their ability to maintain the confidentiality of client information).

The report analyzes these issues through the frameworks of constitutional law and international human rights law. The latter includes not only reference to the right to privacy but also freedoms of expression and association, freedom of the press, the public’s right to access information, and the right to counsel. [For recent coverage at Just Security on UN bodies’ suggestions that US surveillance runs afoul of international human rights law, see here and here. And also check out our annotated "Editors’ Picks: International Human Right Law on Privacy (and Surveillance)"]

One of the most interesting parts of the report is a short section in the middle (pp. 66-69) which relays statements by senior government officials on the status of international human rights law in their analysis of domestic surveillance programs. [H/T: Thanks to John Knefel who brought my attention to this excerpt of the report in an email exchange.] An excerpt of that section is below.

Among other things, note how this excerpt suggests, among other things, that there is no reference to the so-called Charming Betsy analysis. In other words, what about the Supreme Court’s admonition to construe any ambiguous statutory authority, if possible, as consistent with international law? Indeed, as I noted last month, the David Barron drone memo invokes the Charming Betsy canon of construction in the context of targeted killing. Surely if the Supreme Court’s holding applies to targeted killings, it applies to surveillance.

Here’s the excerpt from the Human Rights Watch/ACLU report:

The question of whether the programs fall within the letter of US statutory law has been discussed elsewhere. … However, our research strongly suggests that the US did not design the programs with protection of human rights foremost in mind.

When asked about the role of human rights law in shaping the surveillance activities of the US intelligence community, officials suggested it exists, but is limited. The senior FBI official acknowledged the significance of treaty-based human rights law, noting that “[t]reaties are the supreme law of the land,” and adding, “[i]f it’s the law, and it applies, we’ll enforce it.” Yet he also pointed to challenges “operationalizing concepts from international law,” and the comments of other officials suggested that a domestic legal analysis predominates.

“I don’t think that we have historically looked to international human rights law as having a substantial weight of its own, as opposed to … the kind of principles of freedom and dignity and individuality that it’s meant to incorporate,” noted the senior intelligence official. A former DOJ official said that most of the internal legal assessments would take the form of a “primarily … constitutional analysis”—not an analysis that explicitly takes into account the language of applicable human rights treaties.

Overreading Lisa Monaco on AUMF Reform

Over at Lawfare, Bobby Chesney, Jack Goldsmith, Matt Waxman, and Ben Wittes have posted a reaction to a Josh Gerstein story in Politico, which was itself reporting on remarks that Homeland Security Advisor Lisa Monaco made on Saturday at a conference in Aspen. The gist of Josh’s story is that Monaco “suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.” And the gist of the Lawfare post, which takes Josh’s story well past its facts, is that “Mo[n]aco’s statement, if we’re understanding it correctly, seems to represent a shift from the White House’s prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.”

Respectfully, I think both Josh and my Lawfare colleagues are dramatically overreading an unscripted response to an unscripted question about what will happen to detention authority under the 2001 Authorization for the Use of Military Force if and when combat troops are withdrawn from Afghanistan (see the video from around 45:00-48:00). Whereas Josh’s article and the Lawfare post see in Monaco’s response the deliberate endorsement of a more expansive AUMF (which allows the Lawfare crew to plug their Hoover Institution white paper on how such a forward-looking use-of-force authorization ought to be crafted–notwithstanding Jen Daskal and my rather scathing critique thereof), my own reaction to Saturday’s comments is that Monaco was hedging. That is, her answer suggests that, contra the Lawfare post, the President is still committed to the promise to repeal or refine the AUMF from last May’s speech at the National Defense University, but he doesn’t want to forswear the possibility that some new statutory authorities might be necessary at some point in the future depending upon the specific nature of the threat posed by specific groups with increasingly less of a connection to 9/11–who, rightly, should be seen as falling outside the ambit of the 2001 AUMF. That’s not a shift in policy; that’s just a candid concession that we don’t know what we don’t know. The Hoover paper was premised on the notion that Congress should therefore provide forward-looking authority today that the President can trigger if and when such a situation arises in the future; the principal objection Jen and I offered was that nothing can or would stop Congress from providing a more specific and carefully circumscribed authorization if and when it is needed. More info »

News Roundup and Notes: July 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.

Israel-Palestine

Reuters (Maayan Lubell and Dan Williams) reports that Israeli and Palestinian assaults have eased today, following strong calls from the United Nations and the United States for a durable ceasefire in the region. The death toll in the 21 day conflict now exceeds 1,000 people.

In a phone call with Prime Minister Benjamin Netanyahu, President Obama emphasized the “imperative of instituting an immediate, unconditional humanitarian ceasefire” leading to a “permanent cessation of hostilities.”

Meeting in an emergency session yesterday, the UN Security Council also called for an “immediate and unconditional” ceasefire allowing for humanitarian assistance to enter Gaza [UN News Centre].

Secretary of State John Kerry returned to Washington yesterday after a week of failed attempts to broker a comprehensive ceasefire between Israel and Hamas [Wall Street Journal’s Jay Solomon and Joshua Mitnick].

Top Pentagon intelligence official, Lieutenant General Michael Flynn warned over the weekend that the destruction of Hamas would only result in the gap being filled by something more dangerous [Reuters’ Phil Stewart]. More info »

Recap: A Guide to Recent Posts on Just Security (July 19-25)

I. Surveillance, Privacy & Technology

  1. David Medine, Guest Post: The PCLOB Report and Eight Questions About Section 702 (Tuesday, July 22)
  2. Jonathan Horowitz and Sarah Knuckey, Major New United Nations Report Rebukes Five Eyes’ Attempts to Weaken Digital Privacy Rights (Wednesday, July 23)
  3. Julian Sanchez, All the Pieces Matter: Bulk(y) Collection Under §702 (Friday, July 25)

II. Law Enforcement: Sting Operations and Prosecutions

  1. Tarek Z. Ismail, Guest Post: The Illusion of Justice Report, and the Use of “Radicalization Theories” in Counterterrorism Sting Operations (Monday, July 21)
  2. Samuel J. Rascoff, Guest Post: Sting Operations and Counterterrorism: What’s Really at Stake (Wednesday, July 23)
  3. David Cole, The Problems with Counterterrorism Stings: A Response to Samuel Rascoff (Thursday, July 24)
  4. Samuel J. Rascoff, Rejoinder to David Cole (Thursday, July 24)

III. Transparency & Accountability

IV. Detention, Trial & Treatment

V. Ukraine (and Malaysia Airlines Flight 17)

  1. Alex Whiting, Guest Post: How to Prosecute the Perpetrators of the Malaysian Jet Downing (Friday, July 25)
  2. Just Security, President Obama Delivering Remarks on Ukraine (Monday, July 21)

VI. Just Security Job Opening

VII. In Memoriam 

  1. Andy Wright, Dan Markel (1972-2014) (Tuesday, July 22)
  2. Steve Vladeck, Dan Markel (Saturday, July 19)

Guest Post: How to Prosecute the Perpetrators of the Malaysian Jet Downing

The Dutch government has opened a criminal investigation of the downing of Malaysia flight 17, and President Obama has pledged that the U.S. will assist the Dutch to bring those responsible for the attack to justice.  Assuming the persons responsible for firing the missile, or ordering its firing, could be identified, what are the options for pursuing individual criminal responsibility?

The Prime Minister of Ukraine has suggested that the International Criminal Court (ICC) might investigate and prosecute the case.  Although Ukraine is not yet a member of the ICC, it could refer the case to the Court pursuant to Article 12(3) of the Rome Statute. This provision allows non-States Parties to accept the jurisdiction of the Court on an ad hoc basis absent full ratification, even retroactively.  Ukraine has already relied on this Article to accept jurisdiction for events that occurred in Ukraine between 21 November 2013 and 22 February 2014 to the ICC.  Since the plane was shot down over Ukrainian territory outside of this time frame, a renewed Article 12(3) declaration would be necessary along with a proper referral from Ukraine in order to give the Court jurisdiction over all alleged perpetrators, regardless of their nationality, and no country could “veto” the referral to the ICC since it would not be coming from the UN Security Council but from Ukraine itself.

The fighting in Ukraine certainly qualifies as an “armed conflict,” determined in a non-international conflict by looking at the intensity of fighting and the organization of the parties on each side, and therefore international humanitarian law and international criminal law apply.  In this case, investigators would consider whether the killing of the civilians on the plane constituted war crimes.  But here is where the difficulties would begin if it is in fact true that the perpetrators thought that they were shooting at a military transport plane.  In a non-international armed conflict, the Rome Statute criminalizes both the murder of civilians (Article 8(2)(c)(i)) and “intentionally directing attacks against the civilian population” (Article 8(2)(e)(i)).  As set out in the ICC Elements of Crimes, murder requires proof that the perpetrator was aware of the civilian status of the victim.  With respect to intentionally directing attacks against the civilian population, one might argue that this includes attacks that are indiscriminate, that is where the perpetrators take insufficient steps to ascertain the status of the target (see the ICTY Galić Appeals Chamber judgment at paragraphs 131-132, which provides some support for this argument). More info »

All The Pieces Matter: Bulk(y) Collection Under §702

In a recent guest post, Chairman David Medine of the Privacy and Civil Liberties Oversight board gamely responds to several questions about §702 surveillance posed by my co-blogger Jennifer Granick.  Among other things, he attempts to reassure skeptics that the NSA is not “creatively” interpreting its authorities to engage in “bulk” surveillance.  I am, however, only partly reassured.  The restrictions on collection Medine describes do indeed rule out some forms of “creative” collection that intelligence agencies have previously attempted, but there are nevertheless at least two scenarios apparently permitted by the current rules which, at least in the colloquial sense, I would regard as “bulk collection.”

First, a brief semantic digression: The PCLOB report follows the practice of the intelligence community in using “bulk collection” as an antonym for “selector-based” or “targeted” collection.  Thus, “the Board does not regard Section 702 as a ‘bulk’ collection program, because it is based entirely on targeting the communications identifiers of specific people.”  But a moment’s reflection should make clear that the use of selectors is not, in itself, necessarily an obstacle to bulk collection in the looser, intuitive sense of “vacuuming up vast quantities of communications unrelated to foreign intelligence from large numbers of people.”   So, to pick a crude example, an order for interception of all phone calls to or from Karachi would clearly be a form of “bulk collection.”  An order for records of all calls to or from each number contained in the Karachi phone directory would be nominally “targeted” collection based on “specific selectors,” but indistinguishable in effect from “bulk collection.”  To bypass needless verbal disputes, I’ll refer to nominally selector-based vacuuming of this sort as bulky collection. The requirement that an individual “foreign intelligence purpose” determination be made for each selector tasked under §702 ought to preclude my “phone directory” hypothetical, but may not rule out two forms of bulky collection that I’ll sketch momentarily.

Before getting to those, I should acknowledge at least two types of potentially bulky acquisition that do appear to be ruled out by the rules Medine describes—hence my partial reassurance.  The first is tasking of all “facilities” (such as phone lines or e-mail accounts) registered to a foreign corporate target, even if some of those facilities—like a company-issued mobile phone or the account USEmployee@ForeignCorp.com—are used exclusively by an American in the United States.  The government has, in fact, attempted precisely this move in the past: In U.S. v. Bin Laden (S.D. N.Y. 2000), the government argued  that wiretaps of a U.S. person’s mobile and home telephone lines were “directed at” the foreign entity Al Qaeda rather than the individual American using them.  (The court, fortunately, rejected that rather disingenuous argument in the instance, though without categorically ruling it out under different factual circumstances.)  The second form of “bulky” collection apparently excluded would be tasking of selectors that would designate facilities used by a target, but also by hundreds or thousands of unrelated, innocent persons.  The public-facing Internet Protocol address for an Internet café, corporate firewall, mobile access point, or VPN exit node, for example, may be associated with the online activity of a legitimate foreign target—but also huge numbers of other users, some of them potentially U.S. persons. According to Medine and the PCLOB, the FISC has determined that “the users of any tasked selector are considered targets – and therefore only selectors used by non-U.S. persons reasonably believed to be located abroad may be tasked.”  On face, then, these two types of bulky collection would appear to be ruled out, at least under §702 authorities, by the FISC’s interpretation.  Here are two others that may not be. More info »

News Roundup and Notes: July 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.

Israel-Palestine

A UN-protected school functioning as a shelter for Palestinian evacuees came under attack yesterday, killing at least 16 people and wounding dozens [New York Times’ Somini Sengupta]. The UN Office for the Coordination of Humanitarian Affairs expressed outrage, stating that Israel was aware of the exact coordinates of the school and its use. However, the Israeli army said it does not know if it was Israel or Hamas shelling which hit the facility, saying that it had warned the UN agency of potential firing from the Israeli forces in the past days [Haaretz’s Gili Cohen, and AP].

UN Secretary General Ban Ki-moon said he was “appalled” by the attack, which killed women, children, and UN staff, adding that “[yesterdays]’s attack underscores the imperative for the killing to stop – and to stop now” [UN News Centre].

The New York Times [Michael R. Gordon] reports that Secretary of State John Kerry has proposed a weeklong halt to hostilities in the Gaza Strip, according to an official involved in negotiations.

At least two Palestinians have been killed and 200 wounded in the West Bank following protests against the Israeli offensive in Gaza [BBC]. Palestinian leaders in the West Bank have called today for a “day of anger.”

Senate Minority Leader Mitch McConnell (R-Ky) said the Republicans would introduce legislation to assist Israel with emergency funding for its Iron Dome defense system [The Hill’s Ramsey Cox]. More info »

Rejoinder to David Cole

In his reply to my guest post of yesterday, David Cole criticizes me for offering an imperfect defense of counter-terrorism stings.   Actually, his criticism does not go far enough.   What Cole should have said is that I offered no defense of counter-terrorism stings at all.    There he would be right, for the simple reason that I did not mean to defend the practice (still less its use in any particular case) but merely to elaborate what a more robust analysis of its pros and cons would have to look like.

The problem with the report that issued this week is not that it fails to make powerful arguments – for example, that stings may take a toll on the willingness of Muslim community members to cooperate with police, which, as I observed yesterday, is a deeply serious charge.   The problem, instead, is that the report (and others like it) fails to take seriously potential counter-arguments, tradeoffs, and practical limitations.   It does little to take us beyond a stylized debate in which prosecutors tout every arrest as if it were the next 9/11 averted and critics assume that these interventions are always and inevitably counter-productive.   My aim is to get past these obviously tendentious claims and to create space for serious conversation to be had about stings – and a host of other necessarily controversial counter-terrorism practices, for that matter.

My strong sense is that Cole and I are in radical agreement here.   A few months ago, he had this to say about Glenn Greenwald’s No Place to Hide:

“This is an important and illuminating book. It would have been more important and illuminating were Greenwald able to acknowledge that the choices we face about regulating surveillance in the modern age are difficult and that there are no simple answers.”

Change a few words, and I think you have a pretty good summary of my take on Illusion of Justice.

The Problems with Counterterrorism Stings: A Response to Samuel Rascoff

[Editor's note: Don't miss, Samuel Rascoff's rejoinder to David Cole's post, which was subsequently published here on Just Security.] 

In his guest post yesterday, NYU Law Professor (and former director of intelligence analysis for the NYPD) Samuel Rascoff defends the US’s use of sting operations as a counterterrorism tool on three grounds: (1) even if we may have entrapped some individuals who would never have committed a terrorist offense, such initiatives have a deterrent effect on others; (2) if we had fewer sting operations, we might well have more intrusive surveillance, because the state needs some way to identify and disrupt potential threats; and (3) sting operations are not unique to counterterrorism operations, but a central feature of criminal law enforcement more generally, and especially in the war on drugs. Each of Rascoff’s points is well-taken, but I don’t think they add up to a defense of the kind of sting operations the United States has let loose on its Muslim communities.

Even if we granted Rascoff’s three points, would that justify these cases, which I write about in an article on the New Yorker website, which was in turn based on an extensive, and damning Human Rights Watch report on the many abuses of “preventive” terrorism prosecutions targeted against the American Muslim community More info »