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Chemical Weapons and Secrecy: a Terrible Combination

Last week’s New York Times article detailing the fact that, between 2004 and 2011, American troops in Iraq “secretly reported finding roughly 5,000 chemical warheads, shells or aviation bombs,” revealed a number of important flaws with the US government’s credibility when it comes to chemical weapons.

To begin with, the story doesn’t demonstrate that Iraq had a chemicals weapons program that justified the 2002 invasion. While the caches of weapons found by American forces are certainly dangerously toxic, they do not suggest that Saddam Hussein’s regime had an active program to develop a chemical warfare capability. The chemical weapons discovered in Iraq pre-date 1991 and appear to have been supplied by the United States and allied countries to support Saddam’s war against Iran.

Then there’s the question of, should we be concerned about chemical weapons falling into the hands of ISIS? The militant group controls the area around the ruins of the Muthanna State Establishment, the locus of Iraqi chemical weapons production in the 1980s, where many weapons were found. The public assessment by US officials is that it’s unlikely that “Sunni militants will be able to create a functional chemical weapon from the material. The weapons stockpiled at al-Muthanna complex are old, contaminated and hard to move.” It’s true that handling these weapons without proper precautions would be extremely hazardous. That being said, it is conceivable that a group like ISIS would throw caution to the wind and find ways to use toxic payloads. That would be a truly horrific consequence of the US playing fast and loose with the requirements of the Chemical Weapons Convention (CWC).

How did the US play fast and loose with these requirements?

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News Roundup and Notes: October 21, 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.


Islamic State militants launched a series of attacks on Kurdish troops in northern Iraq yesterday in what has been described as a renewed push for territory. The group also launched offensives against Mosul Dam and the Sinjar mountain range. [CNN’s Brian Walker]  The Yazidi people on Mount Sinjar have reportedly pleaded for U.S.-led airstrikes to assist their plight. [Washington Post’s Loveday Morris and Mustafa Salim]  Shi’ites were targeted elsewhere in Iraq, with a number of fatal attacks in Baghdad, including a suicide attack that killed 15 people. [New York Times’ Kirk Semple]

Fresh fighting has erupted in Kobani, with Islamic State fighters having launched an offensive “on all fronts,” according to activists. [BBC]

Britain will authorize surveillance aircrafts and drones over Syria “very shortly” in an effort to obtain intelligence on the Islamic State. [Reuters]

U.S. airstrikes continue. Military forces carried out six strikes near Kobani over Sunday and Monday, and a further six strikes in Iraq, including in the southeast of Fallujah and south of the Bayji Oil Refinery. [Central Command]

The Turkish decision to allow Iraqi Kurds to pass through its border into Kobani marks a significant departure from Ankara policy, previously focused on preventing a Kurdish insurgency within its own borders. [Al Jazeera America’s Michael Pizzi]  In an opinion piece in The Guardian, Turkish Foreign Minister Mevlüt Çavuşoğlu called for a collective response to the situation in Iraq and Syria, arguing that “Turkey cannot continue to act as if it were the United Nations.”

The supply of weapons and ammunition to Syrian Kurds is “not a shift of policy” by the U.S., but “a crisis moment” and a “momentary effort” to tackle an emergency, Secretary of State John Kerry said yesterday.   Continue Reading »

Folk tales

Editors’ NoteThe following post is the seventh installment of a new feature, “Monday Reflections.”

A few weeks back, Naz Modirzadeh and I exchanged posts about what she characterizes as the Obama Administration’s creation of so-called “folk international law.”  In her most recent entry in the dialogue, Naz continues her thoughtful and provocative engagement on questions relating to the norms for the U.S.’s use of lethal force against al Qaeda and its co-belligerent forces.

Naz and I agree on important matters of substance.  Even so, Naz remains concerned about how the Administration has endorsed and applied certain humanitarian and human rights norms in its counterterrorism operations; and my sense is that her critique has struck a chord with certain readers who, to various degrees, share her anxiety about the Obama Administration’s efforts to apply and incorporate such norms.  Therefore I thought I might use this “Monday Reflection” post to examine Naz’s account in somewhat greater detail.

I.  Areas of Agreement Continue Reading »

Time to Give the Sleeves From Our Vest and Acknowledge the Extraterritoriality of the Convention Against Torture

As David Luban noted yesterday evening, Charlie Savage of The New York Times reported that the Obama Administration likely plans to continue to espouse Bush-era positions on the prohibition against torture and the extraterritoriality of U.S. obligations under the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The United States is slated to appear before the ten-person U.N. Committee Against Torture, the experts’ body charged with evaluating countries’ compliance with the treaty. The proceedings will take place in November 2014 during the Committee’s 53rd session. As I’ve discussed in the past, the extraterritoriality issue arose recently in connection with the United States’ appearance before the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee urged the United States to adjust itsviews to bring them more in line with the treaty’s text, authoritative judicial and other pronouncements, and the near-uniform interpretation of other signatories. Although in its submission to the HRC the United States took note of the fact that its stance is increasingly out of step with current law, it ultimately did not offer a change of position.

This issue has taken on new salience given that President Obama, back in August 2014 and in connection with debates on the declassification and release of the Report on interrogations currently in the hands of the Senate Intelligence Committee, has admitted that the United States engaged in torture. For the reasons I’ve outlined in a prior post, the United States should use this opportunity before the CAT Committee to relinquish an increasingly untenable and ultimately pointless position. Having the courage to make a strategic concession on extraterritoriality would do much to bring to a close a historical chapter marred by allegations that the United States in the past endeavored to create—and exploit—rights-free zones.  It would also signal that the Obama Administration is willing to accept international human rights obligations regarding the treatment of individuals abroad that mirror those that have already been imposed upon it by the federal courts and Congress.

The Text of the Torture Convention

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Apple, Boyd, and Going Dark

Apple’s recent announcement that it will encrypt its newest iPhones is again pushing to the fore the question of whether the law should be updated to require companies to have systems that would enable them to comply with court orders for information. In other words, does the law properly balance privacy and security in this area?

It is easy to get side-tracked by the inflammatory nature of the Apple announcement. The novelty in Apple’s approach is that it has chosen to justify its encryption policy as a means to be unable to respond to lawful court orders. Heretofore, such encryption measures were justified as a way to create safer security systems for users, with a by-product of precluding the government’s ability to obtain such information, even through lawful court-issued warrants. That a large American corporation such as Apple – which enjoys myriad benefits from the American legal system – decided to tout its new encryption as an anti-law enforcement measure is certainly one result of the Snowden leaks and the backlash against companies who may be perceived as being too cozy with the government.

However, the substance of Apple’s announcement – using encryption that results in systems that are harder to hack as well as for the government to obtain lawful access to – is not new. The “going dark” problem has been the subject of debate for years. It has in recently years taken on increasing urgency in domestic and international law enforcement and intelligence communities. Apple’s announcement, particularly its formulation of encryption as an anti-government tool to thwart court-ordered interception, has served to resurrect an issue that had been dormant after the Snowden leaks.

Currently, a limited number of companies that provide certain means of communications — such as traditional telephone firms like AT&T — are required by a law called the Communications Assistance for Law Enforcement Act (CALEA) to have systems that permit government access through a court order. Not covered are emails, chat, instant messaging, and other modes of communicating that are common now, but were not in 1994 when CALEA was passed. The law has not been updated to take into account that we communicate now in very different ways than when CALEA was written. As a result, companies like Apple need only provide the government with “technical assistance” in implementing court ordered interceptions, but technical assistance does not require a system that the government can intercept with a court order.

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Military Commissions After Guantánamo

This Wednesday morning at 9:30 (EDT), a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Tatel, JJ.) will hear oral argument in al Bahlul v. United States–a Guantánamo military commission appeal on remand from the July 14 decision of the en banc Court of Appeals. Readers who have been following these proceedings thus far will recall that the en banc court sent back to the original panel four of al Bahlul’s challenges to his conspiracy conviction: that “(1) the Congress exceeded its Article I, § 8 authority by defining crimes triable by military commission that are not offenses under the international law of war; (2) the Congress violated Article III by vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war; (3) his convictions violate the First Amendment; and (4) the 2006 MCA discriminates against aliens in violation of the equal protection component of the Due Process Clause.” [Readers may also recall that I've filed an amicus brief on behalf of the National Institute of Military Justice in support of al Bahlul, and so have a stake in the outcome.] But whether or not you’ve been following this case, or the commissions more generally, Wednesday’s oral argument will almost certainly mark a turning point for the commissions–and, as the post that follows explains, a referendum not just on the current proceedings at Guantánamo, but whether there’s any prospect for military commissions after Guantánamo, as well.
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News Roundup and Notes: October 20, 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.


Turkey will allow Iraqi Kurdish troops to cross its border into Syria to assist in the fight against the Islamic State in Kobani, the Turkish Foreign Minister Mevlut Cavusoglu said today. [BBC]

U.S. drops arms and aid near Kobani. Military forces carried out airdrops to resupply Kurdish forces in the Syrian border town, delivering weapons, ammunition, and medical supplies provided by Kurdish authorities in Iraq. [Central Command]  The escalation in U.S. support of local forces is likely to anger Turkey, although Ankara was given advance notice of the plan. [Reuters’ Arshad Mohammed and Tom Perry]

Renewed fighting took hold of Kobani over the weekend, as ISIS militants fired dozens of mortar shells at Kurdish fighters, while the American-led coalition targeted Islamic State targets, including oil infrastructure. Coalition airstrikes also took place southeast of the Syrian city of Dayr Az Zawr, damaging an ISIS oil refinery. [Wall Street Journal’s Rory Jones]

The U.S. has conducted more than 135 airstrikes against ISIS in Kobani.  Initial assessments suggest the strikes have slowed down the militants’ advances, although the security situation “remains fragile.” [Central Command]

Recent strikes in Syria have killed 10 civilians, according to a monitoring group, although a Central Command spokesperson said there is “no evidence at this time to corroborate claims of civilian casualties.” [Reuters]

The U.S. has stepped up operations in Iraq, carrying out 10 strikes in the country over the weekend, including in the Anbar province, Continue Reading »

“Just looking for loopholes…”

…is what W. C. Fields supposedly said when someone found him leafing through the Bible. Apparently some lawyers in the Obama administration are following Fields’s lead, and may succeed in returning to the kind of loophole lawyering of the Bush administration’s “torture memos,” in order to fend off constraints on prisoner abuse abroad.

In today’s New York Times, Charlie Savage reports that the Obama administration is debating whether to circle back to a Bush administration interpretation of the Convention Against Torture’s ban on cruel, inhuman, and degrading treatment (CIDT) that doesn’t rise to the level of torture. The relevant treaty language is this (article 16 of CAT):

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

The Bush administration understood this to mean that there are no obligations to prevent CIDT outside the territorial jurisdiction of the United States — in particular, in U.S. interrogation facilities abroad. Congress closed that loophole in 2005, and so did President Obama in Executive Order 13491, issued in his first days in office. The executive order requires that prisoners must be treated humanely and not subjected to cruel treatment, torture, or outrages on personal dignity, including humiliating and degrading treatment – and it applies everywhere, provided the prisoner is in the custody or effective control of the United States or its agents. Savage reports that some lawyers within the intelligence and military communities favor interpreting the CAT prohibition on cruelty in the Bush manner, as applying only within U.S. territorial jurisdiction. (Lest this seem obvious: Congress has extended U.S. jurisdiction to cover U.S. military bases and other U.S. “entities” in foreign states, which seems clearly to include interrogation facilities.)

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Ebola Could Become President Obama’s Katrina

Ebola could become President Barack Obama’s hurricane Katrina in terms of the inadequacy of the government’s response. The US government is in reaction mode, seemingly surprised by each new ebola-related event. Downplaying the threat, as Obama did in his Oct. 15 speech on the virus, is dangerous, because each new case undermines the government’s credibility to a greater extent. Providing reassuring updates on the current situation guarantees that Washington will be wrong, when the next case occurs.

If the disease turns into a microbial hurricane that lands on US shores, there’s a good chance Obama’s White House will be as unprepared as the Bush administration was for Hurricane Katrina when it hit New Orleans. Unless the US government starts preparing now for nation-wide outbreaks by the end of the year, things could get ugly.

Many people would say that ebola is not a national security crisis, and that the scale of the problem in the US is small compared to many other causes of death in the country. That may presently be true. But what will happen as three African nations are overwhelmed by the outbreak? How far and how fast will the disease spread? How will widespread fear and lack of confidence in controlling the outbreak contribute to increasing its threat to the US?

To this, I say it never hurts to be over-prepared for a potential crisis of this magnitude, just under-prepared. If worries about a catastrophic domestic outbreak turn out to be too dire, great.

Why is the US government’s response to the ebola threat inadequate? And how can the response be improved?

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Recap of Recent Posts at Just Security (Oct 11-17)


  1. Abby Zeith, The Arming of Syrian Rebels – Does it Breach the Arms Trade Treaty? (Monday, Oct. 13)
  2. Megan Graham, CIA Report: Giving Rebels Weapons Without Direct Support Rarely Helps (Wednesday, Oct. 15)
  3. Fionnuala Ní Aoláin, Authorizing Force: A Review of Turkish, Dutch and French Action (Thursday, Oct. 16)

II. Presidential War Powers

  1. Shalev Roisman, Rejecting the Bush Comparison: A Response to Goldsmith & Waxman (Friday, Oct. 17)
  2. Brett Max Kaufman, One More Thing on Goldsmith & Waxman (Friday, Oct. 17)

III. Surveillance and Privacy

  1. Martin Scheinin, EU-Funded Study: Electronic Mass Surveillance Fails – Drastically (Tuesday, Oct. 14)
  2. Jeffrey Vagle and Matt Blaze, Security “Front Doors” vs. “Back Doors”: A Distinction Without a Difference (Friday, Oct. 17)

IV. Detentions & Trials

  1. Shaheed Fatima, Reflections on Hassan v UK: A Mixed Bag on the Right to Liberty (Part 2) (Tuesday, Oct. 14)
  2. Phil Hirschkorn, East Africa Embassy Bombing Defendant Contests Miranda Waiver (Wednesday, Oct. 15)
  3. Marty Lederman, New al-Nashiri Developments … Regarding the MV Limburg and USS COLE Charges (Friday, Oct. 17)

V. State Secrets and Transparency

  1. Jennifer Granick, Shhh! Last Week Was All About Secrets (Monday, Oct. 13)
  2. Sudha Setty, State Secrets Might Get a Little More Secret (Friday, Oct. 17)

VI. Immunity of Foreign States and Officials

  1. Tamara Morgenthau, Supreme Court of Canada Rules Individuals Cannot Sue a Foreign State in Canada for Torture Committed Abroad (Tuesday, Oct. 14)
  2. Beth Van Schaack, The Third Time’s The Charm? SCOTUS CVSGs in Samantar (Wednesday, Oct. 15)

VII. Syria and the Chemical Weapons Convention

VIII. US-Iran Relations (and Civil Suits for Acts of Terrorism)

IX. Elections for the United Nations Security Council

X. Miscellaneous