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News Roundup and Notes: April 18, 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.

Military Commissions

The Chief Prosecutor in the 9/11 case has appointed Justice Department lawyer Fernando Campoamore-Sanchez as Special Trial Counsel to investigate the alleged attempt by the FBI to recruit a defense team security officer as a secret informant [Miami Herald’s Carol Rosenberg].  Independent defense counsel has also been appointed to advise two detainees on whether the alleged actions by the FBI have compromised their defense.

Although meeting for four days this week in the 9/11 case, the military commission held barely four hours of court time in total.  Pre-trial motions hearings have been ongoing for nearly two years, and while the prosecution seeks jury selection in early 2015, that date now seems unlikely given the recent delays [Associated Press].

Meanwhile, in the al Nashiri case, Judge Pohl has ordered the CIA to provide a detailed account of the detention and interrogation of Mr. al Nashiri in the agency’s so-called secret “black sites” [The Guardian].  Also see our coverage yesterday on the development.

Relatedly, the Miami Herald has updated their interactive timeline of the hunger strikes at Guantanamo.

Surveillance, Privacy, & Technology

The Washington Post has released an e-book of their complete, Pulitzer prize-winning coverage of the NSA surveillance programs, titled NSA Secrets.  Meanwhile, The Guardian has a new interactive feature “NSA Files Decoded” on what the NSA revelations mean to you as an individual.

In what some are calling a highly questionable decision [Washington Post], Edward Snowden participated in a live Q&A session with Vladimir Putin, asking the Russian President whether Russia intercepts communications of its citizens, to which Putin replied that his country does not conduct “mass-scaled, uncontrolled” surveillance.…   continue »

State of play of the SSCI report on the CIA interrogation program: the relationship between declassification and disclosure

Last Thursday, Senator Diane Feinstein, the Chairman of the Senate Select Committee on Intelligence (SSCI), issued a statement that the SSCI had voted that afternoon “to declassify” a 480-page executive summary of the SSCI’s report on the CIA Detention and Interrogation Program, as well as 20 findings and conclusions of the Committee majority.  The Senator’s statement further explained that “[t]he full 6,200-page full report has been updated and will be held for declassification at a later time.”

This statement, and related news accounts of the SSCI vote, have led to some confusion about just what the Committee voted to do; about who has the final say on declassification; about who has the authority to publicly release the documents in question; and about the relationship between declassification and the authority to release the documents.  The confusion is compounded by the fact that the committee vote was taken in a closed session, and no transcript is available to the public.

In this post, I’ll try to clear up some of that confusion.  The upshot is this:  Although the Senate and the Executive appear to have a difference of views on whether the SSCI would have the lawful authority to disclose any information that remains classified, there is unlikely to be any need to confront that question with respect to the Executive Summary (ES) of the Report and the Findings & Conclusions (F&C).  The Committee’s 11-3 vote last Thursday–which was not to “declassify” the ES and F&C, but instead to send them to the President so that the Executive branch can declassify those documents–was an exercise in comity, designed to reach a consensus about what should be released, and thereby preclude any need to invoke the Senate’s process for dealing with cases in which the SSCI wishes to release classified information over the President’s objections.…   continue »

Hersh’s Syria Conspiracy Theory: The CIA and Intelligence Oversight Questions

In a previous post, I discussed the Senate Intelligence Committee report on the attack against U.S. facilities and personnel in Benghazi, Libya.  That post contemplated bias by congressional committees in favor of their oversight subject agencies.  On Monday, Ryan addressed Seymour Hersh’s latest article advancing a theory that Turkey was responsible for a false flag operation in Syria in which the rebels were the real perpetrators of the sarin gas attacks in Ghouta.  Others have been withering in their criticism of the theory and sourcing.

Ryan alerted me to the following additional allegation by Hersh that related to the Senate Intelligence Committee’s report:

A highly classified annex to the report, not made public, described a secret agreement reached in early 2012 between the Obama and Erdoğan administrations. It pertained to the rat line. By the terms of the agreement, funding came from Turkey, as well as Saudi Arabia and Qatar; the CIA, with the support of MI6, was responsible for getting arms from Gaddafi’s arsenals into Syria. A number of front companies were set up in Libya, some under the cover of Australian entities. Retired American soldiers, who didn’t always know who was really employing them, were hired to manage procurement and shipping. The operation was run by David Petraeus, the CIA director who would soon resign when it became known he was having an affair with his biographer. (A spokesperson for Petraeus denied the operation ever took place.)

The operation had not been disclosed at the time it was set up to the congressional intelligence committees and the congressional leadership, as required by law since the 1970s. The involvement of MI6 enabled the CIA to evade the law by classifying the mission as a liaison operation.

  continue »

Letter to the Editor from former Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations

In her recent post, Fionnuala Ní Aoláin examines the legality of Palestinian accession to the Geneva Conventions, i.e. whether Palestine’s status under international law sufficiently satisfies the statehood status required for accession. This twenty-five-years-old (at least) debate has been lately rekindled, following the most recent turn in the Israeli-Palestinian labyrinth; the legal analysis takes place in light of yet another recent turn – the UN General Assembly resolution according Palestinians with ‘non-member observer State status in the United Nations.’ However, this telegraphic resolution doesn’t detail what this status entails, so in order to assess whether the resolution “removes accession uncertainty” for the Palestinians, Ní Aoláin relies on the “Holy See precedent”. From there she draws normative content for the “parallel status” accorded to the Palestinians, and suggests that previous legal barriers in their path have now been removed.

At first blush, it seems nothing could be more straightforward than making the Palestinian claim for statehood based on a long-standing precedent, a notion which carries inherent legal, prudential, and moral weight – and which most probably guided the drafters of the resolution. While this move is indeed crucial for upgrading Palestine’s international legal status, the commonsensical appearance here is highly misleading. On the contrary, in terms of both international legal doctrine and institutional analysis, this is a much more complex proposition, as I will immediately turn to show; only when recognized as such this move could be fully appreciated, taking into account its implications – which I suspect some would be hesitant to follow through on.

Soon after being established as an international legal entity by the 1929 Lateran Treaty, the Holy See acted and was treated as a State. It joined the UPU that same year.…   continue »

The al-Aulaqi Opinion and Fourth Amendment “Seizures”

Friday’s decision by Judge Collyer, in which she dismissed Bivens claims brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan (arising out of their targeted killing by U.S. forces), has something for everyone. Thus, for example, Judge Collyer rejected the government’s argument that the political question doctrine should apply, explaining (quite rightly, in my view) that the political question doctrine simply has no bearing when it comes to the deprivation of life and liberty by the U.S. government, especially in ex post suits seeking money damages.

Militating in the other direction, Judge Collyer refused to “extend” Bivens to encompass the plaintiffs’ claims under the Due Process Clause of the Fifth Amendment, noting the rather pervasive hostility to Bivens in recent years–especially in national security litigation, as typified in the D.C. Circuit’s Doe v. Rumsfeld decision. I’ve written before at great length about why such hostility to Bivens gets the relevant considerations backwards in national security cases, and Carlos Vázquez and I published an article last year explaining on a more basic level how these cases represent the very judicial lawmaking that is supposedly behind the opposition to Bivens. But whether all of these circuit-level decisions are rightly decided or not, it’s hard to blame Judge Collyer for simply following the trend, at least on the plaintiffs’ due process claims.

At the same time, no “new” Bivens claim arguably needed to be inferred to cover the plaintiffs’ Fourth Amendment claims–since Bivens itself was a Fourth Amendment case. But instead of distinguishing Bivens (however implausibly) and holding that no remedy exists in this context, Judge Collyer opted for a different tack–rejecting the plaintiffs’ Fourth Amendment claim on the merits.…   continue »

Seymour Hersh’s Second Bite at the Apple: The Syrian chemical weapons conspiracy 2.0

In December 2013, Seymour Hersh published a potential bombshell story entitled, “Whose sarin?” The story purported to show that the White House knew it had insufficient evidence that Assad’s military forces — rather than the rebels — were responsible for the sarin attacks in Ghouta despite President Obama’s invoking those attacks as the public justification for going to war. In response, I published a post at Just Security which attempted to evaluate Hersh’s evidence in its most favorable light. But my conclusion was that his evidence was weak and, in important respects, misleading. Other analyses of Hersh’s story (Eliot Higgins and Joanna Paraszczuk and Scott Lucas) reached similar conclusions. The bombshell story seemed more like a dud.

This weekend, the London Review of Books published a new story by Hersh. This time, Hersh claims to show that Turkey was responsible for covertly supplying the Syrian rebels with the sarin used in the chemical weapons attacks in Ghouta, and that Prime Minister Erdoğan’s agents were responsible for helping bring about the false flag operation.

Others have already raised significant concerns (here and here) about Hersh’s latest report. I am not going to dive as deeply into Hersh’s new story this time, except for a few observations.

At the outset, I should note a couple observations in favor of Hersh. First, his latest story could provide answers to some of the questions raised by his earlier report. Most importantly, it might help to address the criticism that the rebels would not have had the capacity to produce the quantity of chemicals used in the attacks. The potential answer: they got it from Turkey. Second, other critics correctly note that key pieces of Hersh’s latest story rely on a single source, an anonymous “former senior US intelligence official, who has access to current intelligence,” and, indeed, this individual may not have even served in the Obama administration.  continue »

Yemen Banned Pentagon’s Drone Operations after US Struck Wedding Procession

In Sunday’s New York Times, a must-read story by Mark Mazzetti chronicles a wide range of issues involving the CIA and counterterrorism programs. A news development that might be lost, among all the other issues covered in the story, involves the Pentagon’s drone operations in Yemen. Take the first paragraph and two paragraphs that appear much later in the story, and the following emerges:

1. The Defense Department’s Joint Special Operations Command was responsible for the drone strike that hit a wedding convoy in Yemen in December 2013 (the US military’s role was also previously reported by NBC).

2.  Following the “botched” strike, Yemen’s government called for a halt to all drone operations conducted by the Defense Department.

3. Defense Department drone operations have since stopped, though CIA drone operations in Yemen have been allowed to continue.

Two matters of importance emerge from this account.

First, it is notable that Yemen’s preference for CIA over DOD operations is now part of a pattern repeated in other countries such as Jordan and Pakistan which also favor the CIA over the DOD, according to the Times story. (The covert program in Jordan involves arming and training Syrian rebels.)

Second, the strong reaction by the Yemeni government is more consistent with reports by human rights groups contending that the December 2013 strike killed innocent civilians and is less consistent with recent (anonymous) US officials’ claiming that only members of al-Qaida were killed in the attack. If the latter were correct, why would it have outraged the Yemeni government to the point of calling off future DOD operations?

Here are the three relevant paragraphs from the New York Times:

“In the skies above Yemen, the Pentagon’s armed drones have stopped flying, a result of the ban on American military drone strikes imposed by the government there after a number of botched operations in recent years killed Yemeni civilians.

  continue »

States, Almost States, Non-State Actors and the Geneva Conventions: Palestinian President Abbas’s attempt to join the Club

The announcement yesterday that President Mahmoud Abbas has signed applications to multiple international treaties and international organizations, including the 1949 Geneva Conventions (see full list), on behalf of Palestine reignites an old conversation about whether non-state entities (and proto states) can be parties to such treaties. In its public statement following President Abbas’ actions, the Palestinian Authority (PA) stressed the importance of the Fourth Geneva Convention to the Palestinian polity. This position was doubtlessly informed by the breakdown in an agreed prisoner release process with Israel that has been the trigger for this move to join international organizations by the PA.

The signing and stated intention to join the Geneva Conventions raises questions about the legality of such a move under international law. To date, the Geneva Conventions have generally been signed, acceded to, and ratified by state parties. The language of the Conventions and the process of depositing state consent seems to envisage only fully fledged and recognized states becoming parties. Yesterday’s events are not the first foray by the Palestinian polity into Geneva Conventions territory.

On 21 June 1989, the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the United Nations Office at Geneva informing the Swiss Federal Council “that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto”. On 13 September 1989, the Swiss Federal Council informed the States that it was not in a position to decide whether the letter constituted an instrument of accession, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine”.…   continue »

Getting Under the Hood of the HPSCI Bulk Collection Bill

While details on the president’s proposal to end NSA bulk collection of telephony records remain sparse, we do now have an actual piece of legislation to look at from the House Permanent Select Committee on Intelligence—one that tracks the broad outlines of the White House plan even as it differs in several critical details. I’ve already done a quick take in broad brushstrokes over at The Daily Beast; here I want to get into the weeds a bit.

The HPSCI bill actually covers quite a bit more than just NSA bulk collection—there are a few transparency measures and a provision for the FISA Court to appoint amici curiae, which mostly seems like an attempt to preempt legislation creating a more robust FISC “advocate”—but in this post I want to focus on the meat: The prohibition (or so it seems) on bulk collection, and the new authority in §503 designed to replace the current bulk telephony program.

(A) The Bulk Prohibition

The first thing to note is that the (apparent) prohibition on bulk collection is structured somewhat oddly, even taking into account the framers apparent desire to limit that prohibition to certain subcategories of records.  The USA Freedom Act, for instance, does this by means of a fairly straightforward modification: It limits the scope of §215 (as well as FISA pen/trap orders and National Security letters) to  records that are both relevant to an investigation and pertain to a suspected foreign agent or their direct contacts, using language the Senate had unanimously approved back in 2005. The HPSCI bill is rather bit more convoluted.

First, Section 2 of the bill completely excludes “call detail records” from the scope of §215—and only from §215.…   continue »

Afghanistan Withdrawal & Wartime Contract Oversight

Ukraine notwithstanding, many recent conflicts have been asymmetrical and sub-state, with ramifications for various legal doctrines, including the law of armed conflict, humanitarian law, intelligence collection, and criminal law.  Another zone of consequence to these more-disorganized conflicts is oversight of government contracts.  As we begin, in earnest, the military drawdown in Afghanistan, I offer a few thoughts on oversight during America’s longest war.

Profiteers and waste are always of inherent risk during wartime.  Harry Truman’s political rise was fueled, in part, on his wartime contracting oversight work as part of the Truman Committee.  The Committee was widely credited with saving some $15 billion (at 1940s value) and uncovering faulty military equipment that averted certain injury and death to members of the U.S. armed forces.

Wartime contracts are more complicated than ordinary, and yet often problematic, government contracts.  The Congressional Research Service observes:  “In peacetime, the goal of contracting is generally to obtain the good or service that is required.  The measurements of success are generally getting the right good or service, on schedule, and at a fair price.  In wartime, however—and particularly in a counterinsurgency environment—cost, schedule, and performance are often secondary to larger strategic goals of promoting security and denying popular support for the insurgency.”  While oversight tends to generate partisan controversy, constructive and credible oversight of wartime contracts is important for fiscal responsibility, military safety, and combat effectiveness.  Constructive oversight is also critical to successful U.S. aid and development efforts in Afghanistan.

Over the last thirteen years, the war in Afghanistan has generated a ton of contract issues that have complicated, and at times frustrated, our efforts.  While there are plenty of specific projects that have gone awry, a recent episode of HBO’s VICE (previewed by Huffington Post here) offers a pretty succinct parade of horribles to the tune of tens of billions of dollars. …   continue »