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Obama Shouldn’t Wait for Congress to Ensure He Leaves Behind a Clearly Defined War

Against the backdrop of a collapsing ceasefire in Syria, President Obama announced last week that he approved the deployment of an additional 250 special operations troops to Syria, a marked increase over the 50 troops currently “advising and assisting” local forces fighting ISIS. Jen Daskal responded to the increase in troops with an op-ed in The New York Times urging President Obama to do more to engage with Congress on a new authorization for use of military force (AUMF) during his remaining months in office. Steve Vladeck followed up, discussing the dangerous precedent being set by Congress’s failure to act in relation to the use of military force against ISIS, leaving a broadly interpreted authorization open to even broader interpretations by subsequent administrations. Daskal is right that Obama should push Congress harder — and both Daskal and Vladeck are right that Congress should step up.

But Obama should not, and need not, wait for Congress to act in order to avoid leaving an amorphous and indefinite war as his legacy. Obama should define, clarify, and formalize the parameters of the current conflicts with various terrorist organizations in an executive order or presidential memorandum before he leaves office. Obama rightly disavowed the Global War on Terror moniker when he became president and has ever since been attempting to define who the United States is at war with, where, and on what legal basis. But these boundaries are set forth in scattered court filings, congressional testimony, a White House factsheet, a draft ISIL AUMF, and over half a dozen speeches without domestic legal force (e.g., here, here, here, here, here, here, here, and here). The years of effort spent clarifying the administration’s views on the key legal and policy boundaries are at risk of being for naught if the administration does not formalize them before Obama leaves office. The administration would be wise to synthesize these efforts into a single official document that defines and clarifies the parameters of the wars Obama will leave to his successor.

Signing an order won’t stop a future president or future Congress that is hell bent on expanding the existing wars from doing so. But it will make it more difficult for either to do so without good reason and without strong public support. Continue Reading »

The Early Edition: May 3, 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

Syria conflict resolution. America and Russia have agreed to increase coordination aimed at achieving a resolution to the conflict in Syria, officials said yesterday. [Wall Street Journal’s Andrey Ostroukh and Felicia Schwartz]  Negotiations are taking place with the hope of extending a fragile ceasefire agreement to the northern city of Aleppo, where violence has surged over recent weeks. [New York Times’ Anne Barnard and Sewell Chan]  UN Secretary General Ban Ki-moon warned all fighting parties in the Syrian conflict to immediately recommit to a truce yesterday. [UN News Centre]

Moscow and Washington “must find a way to work together” in Syria, writes Gideon Rachman, noting that despite differences, “their views of the Syrian conflict have been converging, laying the basis for a joint approach to defeating ISIS and ending the war.” [Financial Times]

Another hospital in Aleppo, Syria, has been hit during a shelling attack today, apparently by rebel factions, Syrian media has reported. Dozens of people have been killed or injured. [Washington Post’s Brian Murphy]

Following the shelling, “terrorists” launched a wide-scale attack on Aleppo, according to the Syrian military, which says it is “repelling.” [AP]

More than 35 airstrikes hit Raqqa, the Islamic State’s de facto capital, overnight, killing at least 134 people and wounding many more, according to the Syrian Observatory for Human Rights. It is unclear whether the planes belonged to Russia or the US-led coalition. [Reuters]

A US serviceman has been killed in combat in Irbil, Iraq, Defense Secretary Ash Carter informed reporters today. The soldier has yet to be identified. [AP’s Robert Burns]

US troops are moving closer to the front lines in Iraq, reports Loveday Morris. A new US outpost, “Firebase Bell,” is less than 10 miles from the front line pushing towards Mosul, and is manned by around 200 Marines. [Washington Post] Continue Reading »

Recklessness, War Crimes, and the Kunduz Hospital Bombing

Last Friday, the US military announced that it was disciplining 16 service members involved in the bombing of the Médicins Sans Frontières hospital in Kunduz, Afghanistan that killed 42 people, for violations of the laws of war and the rules of engagement. However, because the military concluded that the violations were not committed intentionally, it determined that criminal charges were not warranted. Some commentators have criticized this conclusion, arguing that recklessness can be sufficient for war crimes, and that the limited facts presented by the military either indicate that the soldiers acted recklessly, or fail to exclude the possibility that they did so.

Is recklessness sufficient for war crimes, and if it is, how should prosecutors think about whether the standard has been met in a case like this? And what do these questions suggest about the limitations of international criminal law to address some of the horrific consequences of war? Continue Reading »

One-and-a-Half Cheers for Salim v. Mitchell

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.

Lots of attention has been paid to Judge Quackenbush’s denial of James Mitchell and John Jessen’s motion to dismiss the ACLU’s lawsuit (on behalf of former US detainees) against them, the central allegation of which is that they “designed, implemented, and personally administered an experimental torture program for the [CIA].” Although Judge Quackenbush denied the motion orally at the April 22 hearing, he issued a 19-page opinion last Thursday setting out his specific reasons for doing so in more detail.

There’s plenty one could say about Judge Quackenbush’s three major holdings — that the political question doctrine does not bar the claims; that the defendants are not entitled to “derivative sovereign immunity”; and that the Alien Tort Statute does confer jurisdiction over the claims. Indeed, if I hadn’t already written my Federal Courts exam, it would’ve made for fascinating fodder for my students. There’s also plenty that could be said about the government’s somewhat surprising decision not to seek dismissal of the suit at this stage based upon the state secrets privilege — which has been celebrated by many (prematurely so, in my view) as signaling a broader scaling back in the Justice Department’s approach to such privilege claims.

But rather than get lost in the weeds of Federal Courts doctrine or Justice Department politics, I wanted to take this opportunity to make a somewhat more cynical point, lest the interest in this still-forming tree obscure our vision of the far more problematic forest. Put simply, even if Salim v. Mitchell somehow makes it to an adjudication on the merits, it will be at most the exception that proves the rule — a rule in which the federal courts have found over a dozen different reasons to not rule on the merits of a challenge to post-September 11 US counterterrorism policies. And even the exception will be deeply equivocal — with two independent, private contractors left as the only individuals held liable for the widespread torture and other abusive treatment of post-September 11 detainees, abuses that were sanctioned at the highest levels of the US government. Continue Reading »

The Early Edition: May 2, 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

Protests in Baghdad’s Green Zone. Dozens of supporters of radical Shiite cleric Moqtada al-Sadr breached the city’s heavily guarded International Zone on Saturday to protest the suspension of parliament before it finished voting on a slate of new ministers. [Wall Street Journal’s Ghassan Adnan and Matt Bradley]  The protesters disbanded after a day inside the building at the direction of al-Sadr. Iraqi Prime Minister Haider al-Abadi has ordered authorities to arrest and prosecute the protesters who attacked security forces and legislators. The Guardian‘s Simon Tisdall profiles al-Sadr and describes some of the political context of the protests.

The Islamic State killed 23 people at a crowded sheep market in Baghdad with a truck bomb this weekend. The group originally meant to target Shiite pilgrims as they walked to a shrine in Baghdad. [Washington Post’s Loveday Morris]

Who will rule Mosul once the city is liberated from the Islamic State’s control? Foreign Policy’s Dan De Luce and Henry Johnson describe the political maneuvering that is underway to determine who will run Mosul before the fighting to retake the city has even begun.

Syrian ceasefire. Speaking from Geneva, US Secretary of State John Kerry said that talks with Russia and coalition partners are “getting closer to a place of understanding” on a renewed ceasefire in Syria that would include Aleppo, which has seen a serious escalation in violence in recent weeks. [Reuters] Continue Reading »

Recap of Recent Posts at Just Security (April 23–29)

I. Surveillance, Encryption & Privacy

  1. Jake Laperruque, Guest Post: Revelations From the Newly Declassified FISC Opinion on Section 702 (Wednesday, April 27)
  2. Julian Sanchez, Feinstein-Burr: The Bill That Bans Your Browser (Friday, April 29)

II. Kunduz Bombing

III. International Law

  1. William Dodge, Guest Post: Would JASTA Violate International Law? (Tuesday, April 26)
  2. Douglas Cantwell, Guest Post: Yes, Russia’s Antics in the Baltic Sea Violate “International Rules” (Tuesday, April 26)

IV. Congress

  1. Just Security, National Security-Related Congressional Hearings, April 25–29 (Monday, April 25)
  2. Steve Vladeck, Congress’s Embarrassingly Empty (National Security) Record (Friday, April 29)

V. Guantánamo & Military Commissions

VI. Miscellaneous

US Government Concludes no “War Crimes” in Kunduz Strike, But Fails to Explain Why

The US government’s 120-page report on the Kunduz airstrike — in which US forces killed 42 civilians and destroyed a Médicins Sans Frontières hospital — found that US forces violated their rules of engagement and violated fundamental rules of international humanitarian law (the law of armed conflict). A summary released with the report also concluded that no “war crimes” were committed because US forces had no “intention” to strike a hospital or civilians. The report, however, fails to explain this conclusion. In particular, the report does not examine why the series of mistakes and errors that were found do not satisfy a “recklessness” test for intention.

Given the grave consequences of the strike, and the seriousness of the violations that were found, the government should explain its reasoning. Below is a short guide to the law of armed conflict violations committed, and an explanation of the inadequacies of the report’s war crimes findings.

Violations of international humanitarian law

According to the summary, the investigation found that “certain personnel failed to comply with the rules of engagement and the law of armed conflict.” Violations of fundamental rules of international humanitarian law in the Kunduz strike included:  Continue Reading »

Feinstein-Burr: The Bill That Bans Your Browser

Last week, I criticized the confused rhetorical framework that the Feinstein-Burr encryption backdoor proposal tries to impose on the ongoing Crypto Wars 2.0 debate. In this post, I want to try to explain why technical experts have so overwhelmingly and vehemently condemned the substance of the proposal.

The first thing to note is how extraordinarily sweeping the bill is in scope. Its mandate applies to:

device manufacturers, software manufacturers, electronic communication services, remote communication services, providers of wire or electronic communication services, providers of remote communication services, or any person who provides a product or method to facilitate a communication or to process or store data. [emphasis added]

Any of these “covered entities,” upon receipt of a court order, must be able to either provide the government with the unencrypted “plaintext” of any data encrypted by their product or service, or provide “technical assistance” sufficient to allow the government to retrieve that plaintext or otherwise accomplish the purpose of the court order. Penalties aren’t specified, leaving judges with the implicit discretion to slap non-compliant providers and developers with contempt of court. Moreover, “distributors of software licenses” — app stores and other software repositories — are obligated to ensure that all the software they host is capable of complying with such orders.

Some types of encrypted communications services either already comply or could comply in some reasonably obvious way with these requirements. Others, not so much. Because of the incredible breadth of the proposal, it’s not possible to detail in a blog post all the varied challenges such a mandate would present to diverse types of software. But let’s begin by considering one type of software everyone reading this post uses daily: Your Web browser. To the best of my knowledge, every modern Web browser is non-compliant with Feinstein-Burr, and would have to be pulled from every app store in US jurisdiction if the bill were to become law. Let’s explore why. Continue Reading »

Congress’s Embarrassingly Empty (National Security) Record

This week, we learned the United States will send 250 special operations troops to the war in Syria, bringing the publicly known total number of American troops operating in the country to 300. This news came little more than a week after the Pentagon announced it was sending 200 more troops and Apache attack helicopters to Iraq, pushing the official US troop numbers there to 4,087 (this number doesn’t include units temporarily deployed into Iraq). While the Obama administration still maintains these Americans are in the middle east on a “train and advise” mission, its long been apparent these troops are engaged in combat against the Islamic State.

These increasing numbers of Americans fighting against the Islamic State have stirred concerns from some lawmakers about a creeping growth of an American war in the Middle East. Earlier this month, Sen. John McCain (R-Ariz.) publicly said what might have been on the minds of many, that the US’s slowly escalating war against ISIL is starting to remind him of the Vietnam War.

These comments came barely a month after the House Judiciary Committee’s (subtly named) Task Force on Executive Overreach held its first hearing, the purpose of which was to begin developing a record of President Obama’s many excesses — from health care to immigration to environmental regulation to the war against the Islamic State in Iraq and the Levant (ISIL). But by the end of the hearing, the one point of agreement between the witnesses and lawmakers appeared to be that, any expansion in the White House’s willingness to leave lawmakers behind and take action on a number of fronts, isn’t the fault of an overly aggressive President, but rather a Congress that simply hasn’t been governing. At all.

Consider the data: As of today, the current Congress has passed 146 public laws in 16 months on the job. By contrast, the Congress famously derided by President Truman as the “Do-Nothing Congress” enacted 906 bills during its tenure. And even the most unproductive Congress in American history — which served from 2011 to 2013 — passed 283 laws, a pace the current legislature is on track to fall far short of.

But while Congress’s refusal to govern has been fairly ubiquitous — ranging from confirming a nominee to fill Justice Scalia’s seat on the Supreme Court to everyday matters like the budget — there is no area in which Congress’s abdication has been more embarrassing (or the potential consequences more alarming) than with regard to national security policy, including its refusal to pass meaningful cybersecurity legislation; its obstinacy vis-à-vis Guantánamo; and its inability to provide legislation that might have avoided the recent fight over encryption between Apple and the FBI. But by far, the most significant and troubling example of Congress’s refusal to act is with regard to the ever-increasing use of military force against ISIL. Congress is refusing to exercise its obligation to govern what could become a never ending war that began with al-Qaeda and the Taliban in Afghanistan, and has expanded to include ISIL and a number of “affiliates” around the world. What are we going to do about the next ISIL when it inevitably emerges? Continue Reading »

The Early Edition: April 29, 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

Syria peace talks. “Bombs hitting hospitals, doctors and rescue workers killed, civilians starving, scored of dead and injured every day – the raw, bleeding statistics of Syria’s unending war are making a nonsense of an already fragile truce and destroying the slim hopes that peace talks can even carry on.” Ian Black gives a frank assessment of the fraught situation in Syria, at the Guardian.

Moscow has charged the US with violating Syria’s sovereignty, by sending special forces to the country without coordination with Damascus. [Reuters]

A “regime of calm” is to be enforced in Syria’s Latakia and Damascus regions from 1am April 30, lasting 72 and 24 hours respectively, according to a Syrian military statement. Aleppo was not mentioned in the statement. [Reuters’ Lisa Barrington; AP]  The agreement is sponsored by the US and Russia. [Reuters]

Vice President Joe Biden made an unannounced visit to Iraq yesterday, for the first time in close to five years, and at a time when “the country’s political leadership is mired in yet another crisis.” [New York Times’ Gardiner Harris; Wall Street Journal’s Carol E. Lee and Matt Bradley]  Iraq’s political turmoil is such that some have suggested that partition may be the only way forward for the country. Tim Arango reports. [New York Times]

Biden emphasized the “serious” progress being made against the Islamic State during his visit. Nolan D. McCaskill discusses the vice president’s agenda for the trip at Politico.

Congress is attempting to use its budgetary powers to micromanage the fight against ISIS, Defense Secretary Ash Carter said yesterday before the Senate Armed Services Committee. [Politico]

The American-led coalition against ISIS does not have the Sunni Arab forces it needs to reclaim the militant group’s de facto capital, Raqqa, according to Gen Joseph Dunford, chairman of the Joint Chiefs of Staff. [Wall Street Journal’s Paul Sonne] Continue Reading »