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Letter to the Editor: The Opposite of Discrimination Against Veterans

In Charles Dunlap’s recent article about discrimination against veterans and ROTC, he mentioned Brown as an example of Ivy League discrimination because a “Brown University columnist” had called for the ban of “ROTC criminals”. This is an extremely biased (nearly dishonest) depiction of events. The writer of that article (Peter Makhlouf) was not representing the University, but was rather a Brown student, writing an editorial in the Brown student newspaper — an entity entirely independent from the University, over which the University exercises no control. In addition, Peter’s article was one of many on the topic (with many of the others being strongly in support of ROTC), and was part of an open, campus-wide discussion on expanding the ROTC program. In the end, the program was expanded, so it’s unfortunate that this author twisted around what is actually an example of increased efforts to connect and welcome military-affiliated students at Brown.

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Third Circuit Holds Suspension Clause Does Not Apply to Non-Citizens Physically (But Not Lawfully) Present in the United States

In a breathtaking 80-page opinion handed down today in Castro v. U.S. Dep’t of Homeland Security, a unanimous panel of the Third Circuit has held that the Suspension Clause does not protect non-citizens physically (but not lawfully) present within the United States — at least where they have recently (and surreptitiously) entered the country. The holding comes in the specific context of habeas petitions filed by dozens of Central American migrants seeking to block their expedited removal from the country, but the reasoning has much broader scope (and, potentially, enormously troubling consequences). Continue Reading »

A 9/11 Commission Approach to the Russian Hack of the DNC

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On the eve of the Democratic convention, WikiLeaks released thousands of stolen emails from the Democratic National Committee (DNC). The leak roiled the American election across the political spectrum. Democratic Leader Rep. Nancy Pelosi (Calif.) called the DNC hack “electronic Watergate.” Circumstances and evidence point to Russian intelligence services as the hackers. As Vice President Joe Biden might less delicately say: This is a big deal.

Russian interference in the U.S. political system calls for action by the intelligence community, law enforcement, and congressional committees. There is a paramount need for a credible factual accounting of the hack and its aftermath for the sake of policy formulation, our strategic posture, and democratic legitimacy. But Congress’s track record is not great in this arena. Therefore, these unique circumstances call for a 9/11 Commission-like entity to handle this investigation.

America views the DNC Hack through two primary lenses. The first lens is the 2016 Election. Nearly all players involved in the race were touched: from the DNC and its staff as victims of the hack, to Bernie Sanders’ supporters aggrieved by the emails’ content, to Hillary Clinton’s campaign being damaged by WikiLeaks’ release at her convention moment, to the Trump campaign’s efforts to capitalize on the discord. The leak led to Florida Rep. Debbie Wasserman Schultz’s (D-Fla.) resignation as DNC Chair. Shortly after, a number of other senior DNC staffers whose emails were leaked left the party committee shortly into Donna Brazile’s tenure as interim DNC Chair.  More recently, there have been reports that Russian entities targeted some Republicans’ emails as well, although to less political effect.

Russian meddling also plays out in more traditional American politics. Some prominent Trump advisers have ties to Russia and its allies. Trump has made puzzling policy pronouncements that are in line with Russian interests, such as his occasional comments questioning US commitment to the North Atlantic Treaty Organization (NATO). Even Republican leaders rebuked Trump’s NATO wavering. He was roundly criticized for publicly encouraging Russia to “find” more of Clinton’s emails. Just this week, Vice President Biden traveled to the Baltics to reassure US allies rattled by Trump’s suggestion he might walk away from them in the face of Russian aggression. Trump’s refusal to release his tax returns has fueled speculation that his business interests are heavily leveraged by Russian financing. The Clinton campaign is actively connecting these dots in its messaging, including openly speculating about Russian financing in television ads.

The other lens through which to view the DNC Hack is geopolitics. It is clear that Russian President Vladimir Putin prefers Trump to Clinton. Former US Ambassador to Russia Michael McFaul explained the geopolitical reasons for Putin’s Trump preference. In that column, he noted that the Russian state-controlled news organization Sputnik validated Trump’s incendiary claim that President Barack Obama “founded” the Islamic State and in a Tweet containing the hashtag #CrookedHillary.

Russian interference in the US election is the geopolitical passive-aggressive move par-excellence. According to a report by the New York Times, “American intelligence agencies have told the White House they now have ‘high confidence’ that the Russian government was behind” the DNC Hack. But it is hard to confront this kind aggression. No matter how many credible investigative analyses cast suspicion or confirm Russia as the culprit, it can issue denials.

Congress’s role

Congress has a number of oversight and investigative angles it can take, some of which are more constructive than others. Continue Reading »

Evaluating Proportionality and Long-Term Civilian Harm under the Laws of War

As noted by Alex Whiting in his piece last week, the law of armed conflict, or international humanitarian law (IHL), contains broad principles and prohibitions that are applied to a set of concrete facts in the context of any armed conflict. This analysis happens both ex ante—as a target set is being identified and an attack is launched—and ex post—when a completed operation is being evaluated for its compliance with IHL, including the war crimes prohibitions.

The Saudi-led coalition’s August 11 attack on a bridge in Yemen helps to exemplify the difficulty in applying these concepts to real-world examples.  The details of the attack remain rather sparse (some of the best reporting on this topic is here).  What we do know is that the bridge in question was located on the main road from the port city of Hodeidah to the capital of Sanaa.  In addition, we know, and presumably the attackers also knew, that an enormous amount (90% to be exact) of the food coming from the U.N. World Food Program and other humanitarian actors apparently traversed that bridge en route to civilians in need.  This food aid is helping to keep the Yemeni civilian population alive: over half of the country’s population (14 million souls) are suffering from malnutrition and food insecurity.  According to UNICEF, more than 300,000 children under the age of 5 have acute malnutrition, which can lead to death and long-term developmental, cognitive, and other impairments. It’s been reported that the United States considered the bridge to be a piece of vital infrastructure and thus included it on a “no strike” list.  The State Department has accordingly denounced the attack:

We have seen those reports, and if the bridge was deliberately struck by coalition forces, we would find this completely unacceptable. The bridge was critical for the delivery, as you note, for humanitarian assistance. Destruction will further complicate efforts to provide assistance to the people of Yemen.

The spokesperson later clarified that her statement was meant to be a “condemnation”—strong language when it comes to international diplomacy. At the same time, she also rebuked the most recent (of many) Saudi attack on a Médecins sans Frontières hospital. The International Committee of the Red Cross and Amnesty International, among others, have blamed Saudi Arabia for deliberately targeting hospitals and medical facilities since that country first overtly intervened in the conflict in March 2015.

This post walks through the analysis necessary to evaluate the attack on the bridge and concludes that the attack in question should have been precluded had the attackers respected the principle of proportionality in light of the facts as we know them. The post concludes with a quick discussion of the potential war crimes that could be charged depending on the facts that emerge and other legal implications of the attack. Continue Reading »

Recap of Recent Posts on Just Security (Aug. 22 – Aug. 25)

I. The 2016 Presidential Election 

II. The International Criminal Court

III. The Law of Armed Conflict and the ICRC Updated Commentaries

IV.  Discrimination Against Veterans

V. Mass Surveillance and Privacy

V.  Saudi Arabia and Yemen

VI. AUMF against ISIL

The Early Edition: August 26, 2016

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.

IRAQ and SYRIA

Secretary of State John Kerry and his Russian counterpart Sergei Lavrov met today in Geneva to finalize a cooperation agreement on fighting the Islamic State in Syria. Diplomats are hopeful that the talks will lead to a cessation of hostilities and the restarting of discussions on political transition in Syria, reports Reuters.

Rebels in the besieged Syrian town of Daraya struck a deal with the Syrian government to surrender control of it in exchange for the evacuation of the town’s 8,000 residents. Daraya, a suburb of Damascus, was one of the first towns to stage peaceful protests against President Assad in 2011, and to face violence in response. Anne Barnard and Hwaida Saad report for the New York Times.

The Obama administration is putting pressure on Assad and his Russian backers ahead of an Aug. 30 UN Security Council meeting to look at the issue of chemical weapons in Syria through a series of leaked reports from UN agencies, according to a US intelligence official. Why now, Christopher Dickey and Noah Shachtman ask at The Daily Beast? Because in 2014, the world was indifferent to reports that Assad was using chemical weapons, and so the US decided it was best to “work through the slow UN process, get the Russians to a place where they’re cornered diplomatically,” according to the same official.

Military talks due to take place today in Ankara between Russia and Turkey have been postponed to “a later date,” reports the Hürriyet Daily News. No reason for the delay has been reported.

The Turkish military incursion into Syria with US support illustrates the “complications” of American foreign affairs, says the New York Times editorial board. While the US shares Turkey’s goal of ousting the Islamic State, Turkey also wants to keep Syrian Kurds – the US’s most reliable allies in Syria – away from its borders. That said, Obama is right to focus on combating the Islamic State and on trying to improve relations with Turkey, says the board.

Turkey’s operation in Syria, so soon after its failed coup, highlights how President Erdoğan has secured more operational control of the military, and – contrary to Western fears that a post-coup Turkey would be unable or unwilling to be a partner in the fight against the Islamic State – has finally been able to realise his ambitions in Syria, including stopping Kurdish militias from seizing more territory there. [New York Times’ Time Arango]

Turkey’s intervention in Syria was opposed by military officers who later participated in the July 15 coup attempt, delaying it for more than a year, report Erin Cunningham and Liz Sly at the Washington Post.

 “As if the war in Syria did not have enough combatants,” Turkey has “entered the fray.” The Economist unravels the chaos of shifting alliances in Syria, in the midst of which America risks being drawn away from its narrow mission of defeating the Islamic State and into the wider conflict.

Syria has been Obama’s worst mistake, Roger Cohen writes at the New York Times, and within that mistake the worst error was the last –minute “red line” wobble  in 2013, when Obama resisted “immediate pressures” and decided not to react militarily to the use of chemical weapons in Syria, which has “undermined America’s word, emboldened Putin and empowered Assad.”

Iraq’s parliament sacked its defense minister yesterday, ahead of the biggest fight against the Islamic State so far, in Mosul, highlighting the country’s serious political instability as it tries to oust the terror group from its remaining strongholds. [Washington Post’s Loveday Morris]

The Islamic State’s leader Abu Bakr al-Baghdadi was held in the notorious Abu Ghraib prison in Iraq, the US military now says, a fact not previously known and which provides another potential key to the leader’s biography and the role US detention facilities played in the rise of the terrorist organization, reports Joshua Eaton at The InterceptContinue Reading »

Are Saudi-led Coalition Forces Committing War Crimes in Yemen?

This month, Saudi-led coalition forces recommenced airstrikes on Sanaa, the capital of Yemen, targeting the forces of Ansar Allah (known as the Houthis), after peace talks that began back in April broke down. The coalition – which includes forces from Bahrain, Egypt, Jordan, Kuwait, Morocco, Qatar, Sudan and the United Arab Emirates – supports ousted President Abdu Rabu Mansour Hadi of Yemen, whose government is still recognized by most countries, and has been at war with the Houthis since March 2015.

With the recommencement of hostilities, allegations also immediately resumed that the coalition forces were again targeting civilians and civilian structures. It is alleged that coalition airstrikes this month struck a potato chip factory, a school, a Médicins Sans Frontières-supported hospital, and a bridge used to bring 90-percent of World Food Program food to the capital. Similar charges have been made against the coalition since the beginning of the conflict, which has resulted in over 3700 civilian deaths.

Do these coalition strikes constitute war crimes? The law is relatively clear, if not exactly precise. It is a war crime to directly target civilians or civilian structures or to use force that results in civilian casualties disproportionate to the expected military objective. See para. 190 of the International Criminal Tribunal for the former Yugoslavia’s Galić Appeals Judgment:  Continue Reading »

A Problematic Pseudo-Category of Surveillance Information and Promising Post-Collection Policy

This week, the Office of the Director of National Intelligence declassified a Foreign Intelligence Surveillance Court of Review (FISCR) opinion that has important broad implications for privacy and warrantless surveillance.

The opinion, issued on April 14 and released pursuant to the USA FREEDOM Act’s disclosure requirements, deals with government collection of the numbers one dials into a phone during a call, such as a credit card number or passcode (called post-cut-through digits), that’s done under the auspices of authorized Pen Register/Trap and Trace (Pen/Trap) surveillance. While this ruling may seem to deal with a very selective matter, I believe the substance of the ruling presents both concerning and promising big-picture issues, which have implications beyond the government’s ability to collect the numbers people dial during phone calls.  (Marcy Wheeler has already discussed process risk of consolidating appellate review within the FISC system.)

The Troubling New “Content Information” Pseudo-Category

The FISCR opinion centers on treating post-cut-through digits as a new pseudo-category of “content information,” which does not receive the same Constitutional protection via a probable cause standard, as content at large.  The opinion distinguishes “content information” from more fully “substantive” content based on two factors:  the limited information collected as “content information,” and the limited technological ability to stop incidental collection of “content information.” However, the exact bounds of the distinction between content and “content information” were never clearly defined, and this in itself is the first major problem.  All other exceptions for content collection that bypass the probable cause requirement are clearly defined.  By creating a vague new pseudo-category of “content information,” the FISCR muddies legal standards and risks encouraging improper surveillance in the future.  Continue Reading »

The Early Edition: August 25, 2016

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.

IRAQ and SYRIA

Another nine or more Turkish tanks entered northern Syria today as the “Euphrates Shield” operation to force the Islamic State out of Jarablus and the surrounding area and prevent the Kurdish militia from taking its place there continues, reports Reuters.

Syrian rebels backed by the US and Turkey announced they had seized the town of Jarablus by yesterday evening, Tim Arango et al report at the New York Times.  They have now advanced up to 10 km south of the town, according to the UK-based Syrian Observatory for Human Rights, in an apparent attempt to pre-empt rebel advances. [Reuters]

Secretary of State John Kerry told his Turkish counterpart that Syrian Kurdish forces have begun to withdraw east of the Euphrates River, Turkish officials said today, acceding to Turkey’s demand that they do so. [AP’s Suzan Fraser]  Vice President Biden warned the Syrian Kurds that they would lose all support from the US if they did not comply with Turkey’s demand that they withdraw, during his visit to Ankara yesterday. [Washington Post’s Karen DeYoung]

The tensions between Turkey and the Kurds pit a NATO ally against the most effective US military proxy in Syria’s complex civil war, reports Philip Issa at the AP, who takes a look at the battle-hardened Syrian Kurds and their craving for the sort of autonomy their northern Iraqi counterparts enjoy.

Syrian government planes have dropped bombs containing chlorine on civilians at least twice over the past two years, according to a joint report from the UN and the Organization for the Prohibition of Chemical Weapons, which will be made public after the UN Security Council has considered it, according to a statement released by Secretary-General Ban Ki-moon’s spokesperson yesterday. President Assad signed a treaty banning chemical weapons around three years ago after an attack killed hundreds in a Damascus suburb, Rick Gladstone reports at the New York Times.  The report also accuses the Islamic State of using mustard gas in Aleppo on Aug. 21, 2015, reports the Wall Street Journal’s Farnaz Fassihi.  Continue Reading »