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Obama Admin: Only One Civilian Killed by U.S. Outside of War Zones in 2016


On the eve of the inauguration of a new president, the Director of National Intelligence released a report (full text) that summarizes the number of military strikes taken by the US government outside of hot battlefields during 2016, including the total number of civilians killed in those operations. For example, the US operations in the report occurred in places like Somalia and Yemen. The report is the second in a series that are mandated by a July 1, 2016 Executive Order. One thing to always keep in mind when digesting these reports: they cover only strikes “outside of areas of active hostilities”–in other words, they exclude places like Afghanistan, Iraq, and Syria. One has to turn to regular Department of Defense updates for information about civilian casualties in those war zones.

There are three significant items in the report: Continue Reading »

Norms Watch: Tracking the Erosion of Democratic Traditions (Jan. 13-20)

Last week, we launched a regular series tracking President-elect Donald Trump’s adherence, or lack thereof, to democratic norms. These norms are not necessarily legally required, but help make up the fabric that holds together broader democratic values, such as accountability and the rule of law.

Especially in light of events this past week, we have broadened our analysis. We now include responsive norm violations in which American institutions — like the news media, the military or Congress — deviate from traditional norms in reaction to the current political climate. We do not attempt to place a value judgment on those deviations. Some might be viewed as necessary correctives, or bad precedents. We leave that for readers to decide.

The destruction of democratic norms was discussed during Barack Obama’s last interview as president, which he did with Pod Save America. The podcast’s host, former Obama speechwriter Jon Favreau, remarked that it was fair to say Republicans had eroded certain democratic norms over the last eight years, including blocking Judge Merrick Garland’s confirmation process and the debt ceiling crisis. Favreau asked Obama: “Do you think that progressives should follow suit to win more? Or do you think that it’s more important to be the institutionalists?”

Obama responded: “Look, I think that it doesn’t help the progressive cause to undermine norms that help support a progressive society. So, in that sense, maybe we’re a little bit disadvantaged relative to [Senate Majority Leader] Mitch McConnell. But I don’t know how we’re served with more judicial vacancies. I don’t know how well served we are with us trying to suppress voters the way they try to suppress voters in places like North Carolina. That doesn’t sound like a good solution. But in terms of cooperation, in terms of how does a Democratic Congress work with President Trump, my suggestion has been: You stand your ground, and where there are areas of agreement, you just make sure you’re negotiating tough and negotiating well.”

Moving ahead, Just Security intends to capture the more complex and interactive ecosystem of norms violations happening today. Our primary aim is to provide a digestible breakdown of when and how Trump administration policy and actions diverge from custom, practice, and precedent in politics and law, but we’ll also be on the lookout for when norms are violated as a response to Trump. We’re tracking the news, and keeping our Twitter feeds refreshed. Think we’re missing something? Let us know on Twitter Continue Reading »

The Early Edition: January 20, 2017

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.


A slew of senior positions throughout the federal government including the State and Defense departments will remain empty when Donald Trump takes the oath of office today, observe Matthew Nussbaum and Eli Stokols at POLITICO.

Trump is keeping around 50 senior Obama administration officials, including key national security figures, to “ensure the continuity of government,” spokesperson Sean Spicer said yesterday. The Hill’s Jordan Fabian and Ben Kamisar report.

The Trump team has, however, reportedly demanded that many of Obama’s national security choices leave their posts immediately, the Pentagon, the office of the Director of National Intelligence and the Department of Homeland Security all having interim successors to run things until Trump’s permanent appointments are confirmed, Mattathias Schwartz reports at The Intercept.

Senators will take up at least two of Trump’s national security nominees today, the Hill’s Jordain Carney reports.

Donald Trump takes office today having promised to enact policies that would threaten rights at home and abroad if implemented, Human Rights Watch said today.

“You know, I’m not a person who breaks promises.” Trump gave what Ian Fisher and Isabel Kershner at the New York Times suggest was his strongest statement on the issue of moving the US embassy in Israel to Jerusalem yesterday to a conservative Israeli news outlet.

An announcement on moving the US Israeli embassy from Tel Aviv to Jerusalem is “coming soon,” press secretary Sean Spicer said yesterday. Amir Tibon reports at Haaretz.

If Trump’s son-in-law Jared Kushner can’t bring peace to the Middle East, “no-one can.” Trump said he is counting on Kushner to bring peace to the region last night, CNN reports.

EU leaders called for an official complaint over Trump’s fatalistic view of the bloc at the European Parliament’s plenary session Wednesday, DW reports.

Trump is tweeting the US into war with North Korea, but can he cut a deal to prevent it? Jeffrey Lewis writes at Foreign Policy.

Turkey anticipates significant improvements in its relations with the US under Trump, Turkish Foreign Minister Mevlut Cavusoglu said yesterday, Karen DeYoung reporting at the Washington Post.

Turkish Prime Minister Binali Yildirim made three demands of the incoming Trump administration Wednesday night: the extradition of cleric Fethullah Gulen, ceasing support for Syrian Kurdish troops, and taking steps to counter anti-American feelings in Turkey, Hande Firat reports at the Hürriyet Daily News. Continue Reading »

GTMO at the End of the Obama Administration: 31 uncharged detainees remain

With today’s transfer of four more detainees to the UAE and Saudi Arabia, President Obama will leave office tomorrow with 31 uncharged individuals remaining detained at the Guantánamo Bay Naval Base, potentially for the duration of U.S. hostilities with al Qaeda.  (Ten others have been charged in the military commissions system, of whom seven are awaiting trial.)  Below is the President’s final letter to congressional leadership regarding GTMO.  He is right that Congress’s refusal to permit him to close the facility “make[s] no sense.”

Of the 31 remaining uncharged detainees, five have been cleared for transfer either by the 2009 Task Force or by the PRB, based on a unanimous assessment of all agencies that their further detention is no longer necessary to protect against a significant threat to the security of the United States:  Ridah bin Aleh al Yazidi (from Tunisia, ISN #38); Abdul Latif Nassir (from Morocco, ISN #244); Mjuayn al-Din Jamal al-Din Abd al Fadhil Abd al Sattar (unknown home nation, ISN #309); Sufyian Barhoumi (from Algeria, ISN #694); and Tawfiq al Bihani (from Yemen, ISN #893).

One of the other 26 detainees has had a follow-up full PRB review, with no announced resolution yet:  Uthman Abd al-Rahim Muhammad Uthman (from Yemen; ISN #27).  And two others, also from Yemen, are slated for follow-up full PRB reviews:  Omar Muhammad Ali al-Rammah (ISN #1017) (review scheduled for Feb. 9); and Sharqawi Abdu Ali Al Hajj (ISN #1457) (review not yet scheduled).

As I’ve previously explained, this is about as close as President Obama could possibly have gotten to actually closing the detention facility at GTMO, in light of statutory restrictions that Congress has needlessly and unwisely imposed.  (See my three-part post — Part OnePart Two, and Part Three.)  As I discuss in the first of those posts, however, the remaining small population at GTMO is the only blot on what is otherwise a remarkable transformation:  the President’s policies and practices have ensured not only that long-term military detention is exercised in accord with domestic and international law, but that such detention has, in fact, come to be the rare exception rather than the rule—indeed, virtually a dead letter in U.S. practice.  It is now up to the new President whether and to what extent that fundamental transformation endures.

The President sent this letter today to the Speaker of the House and President Pro Tempore of the Senate, which was accompanied by a final memorandum on “Obama Administration Efforts to Close the Guantanamo Bay Detention Facility”:



January 19, 2017

Dear Mr. Speaker: (Mr. President:)

For 15 years, the United States has detained hundreds of people at the detention facility at Guantanamo Bay, a facility that never should have been opened in the first place. Rather than keeping us safer, the detention facility at Guantanamo undermines American national security. Terrorists use it for propaganda, its operations drain our military resources during a time of budget cuts, and it harms our partnerships with allies and countries whose cooperation we need against today’s evolving terrorist threat. By any measure, the costs of keeping it open far exceed the complications involved in closing it.

As President, I have tried to close Guantanamo. When I inherited this challenge, it was widely recognized that the facility — which many around the world continue to condemn — needed to close. Unfortunately, what had previously been bipartisan support for closure suddenly became a partisan issue. Despite those politics, we have made progress. This Administration established a comprehensive, interagency review process to assess whether the transfer of a detainee is in the national security interest of the United States. Under this rigorous process, we have transferred 196 detainees from Guantanamo with arrangements designed to keep them from engaging in acts that pose a threat to the United States and our allies. Of the nearly 800 detainees at one time held at the facility, today only 41 remain.

The Department of Defense has also provided the Congress with a comprehensive plan to finally close Guantanamo once and for all. In addition to calling for us to continue to identify and effectuate secure transfer opportunities, it calls for the continued periodic review of the threat posed by individuals still detained, the use of all legal tools to deal with the remaining detainees still held under law of war detention, and the identification of a secure location in the United States to hold remaining detainees who are subject to military commissions or who we have determined must continue to be detained because they pose a continuing significant threat to the United States. I have included an update to that plan here.

The restrictions imposed by the Congress that prevent us from imprisoning detainees — even to prosecute and secure a life sentence — in the United States make no sense. No person has ever escaped one of our super-max or military prisons here, ever. There is simply no justification beyond politics for the Congress’ insistence on keeping the facility open. Members of Congress who obstruct efforts to close the facility, given the stakes involved for our security, have abdicated their responsibility to the American people. They have placed politics above the ongoing costs to taxpayers, our relationships with our allies, and the threat posed to U.S. national security by leaving open a facility that governments around the world condemn and which hinders rather than helps our fight against terrorism.

If this were easy, we would have closed Guantanamo years ago. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to bring it to a responsible end. Once again, I encourage the Congress to close the facility and permit more of our brave men and women in uniform serving at Guantanamo Bay to return to meeting the challenges of the 21st century around the globe. There remains bipartisan support for closing Guantanamo and we can do so in a responsible and secure way that also saves the American taxpayer money. Guantanamo is contrary to our values and undermines our standing in the world, and it is long past time to end this chapter in our history.




Image: John Moore/Getty

Five Quick Observations: The CIA’s New Guidelines for Handling Americans’ Data

Yesterday, the Central Intelligence Agency released newly updated guidelines regarding the treatment of American data collected pursuant to Executive Order 12333.  John Reed has already highlighted some key aspects of the guidelines here.  I write separately with five  brief observations.

First, the fact that these are fully unclassified and made public is a big deal.  It’s a stark contrast to the heavily redacted release of the 1982 documents, which were kept secret for well over two decades, and has entire pages blacked out.  This is a welcome change—one that will help foster and encourage informed debate.  It is also good policy, helping to protect against the spread of misinformation and speculation that fosters distrust and ultimately works to the disadvantage of our intelligence community and their mission.

 Second, they reflect a long-overdue reflection of the fact that whereas the information available to the CIA of the 1980s was limited to a finite number of hard documents, now even a single storage device can contain the equivalent of millions of files.  This has two key implications:  First, it takes longer to review.  In recognition of this fact, the guidelines specifically address the presumably large quantity of so-called “under-evaluated information” and include specific storage, access, and destruction requirements.  And second, the sheer scope of collection (coupled with the way in which electronic communications transit the globe) means that it is much more likely that the CIA will, in the course of its overseas operations,  gather incidentally collected information on U.S. persons (defined to include U.S. citizens, legal permanent residents, unincorporated associations substantially composed of U.S. citizens or legal permanent residents, and corporations incorporated in the United States, so long as they are not directed or controlled by a foreign government).  The guidelines incorporate a number of provisions that both acknowledge and seek to address that fact.  Continue Reading »

The UK Supreme Court’s Landmark Judgment Belhaj v. Straw: A View From the United States


On Tuesday, the Supreme Court of the United Kingdom gave its judgment in Belhaj v. Straw and Rahmatullah v. Ministry of Defence, two human rights cases brought against UK officials in UK courts. Plaintiffs did not claim that UK officials were the main actors in the alleged human rights violations, which included unlawful detention, rendition, and torture. Rather, plaintiffs claimed that UK officials had assisted other countries—principally, the United States and Libya—in committing such violations. The UK officials argued that a court could not decide the assistance claims without ruling on the legality of other countries’ actions and that the cases should therefore be dismissed on grounds of state immunity or under the foreign act of state doctrine. But the UK Supreme Court unanimously rejected these arguments. This means that the claims may proceed to trial where the actions of the United States, Libya, and other countries may be reviewed.

Lord Mance gave the leading judgment, with concurring judgments by Lord Neuberger and Lord Sumption. The state immunity question was whether the suits against UK officials indirectly impleaded foreign states because, in order to maintain their claims against the former, the plaintiffs would have to show that the latter acted unlawfully. The act of state question was whether an English court should abstain from adjudicating upon sovereign acts committed by a foreign state, even outside its own territory.

How does the reasoning in Belhaj compare to the approach taken in the United States? What insights might we derive from the UK Supreme Court’s treatment of these areas of law and the role of the judiciary in adjudicating questions that implicate international relations?  Continue Reading »

The Early Edition: January 19, 2017

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.


Trump will enter the White House tomorrow with most national security positions unfilled, threatening to cripple the incoming administration from the beginning and creating the risk that it will present confused or contradictory policies to the rest of the world, Dan De Luce and John Hudson observe at Foreign Policy.

The NATO mission will continue as the Trump administration takes office, Vice President-elect Mike Pence insisted following Trump’s comments that the transatlantic organization is “obsolete.” Mallory Shelbourne reports at the Hill.

Trump’s pick for UN ambassador departed from him on several foreign policy issues at her Senate confirmation hearing yesterday, voicing skepticism on Russia and optimism about NATO, Anne Gearan and Sean Sullivan report at the Washington Post.

NATO Secretary General Jens Stoltenberg pushed back against Trump’s comments that the organization is “obsolete” yesterday, insisting that NATO is constantly evolving to meet security threats, Michael Birnbaum reports at the Washington Post.

The Iran nuclear deal is working and must be maintained. The UN, the EU and key players in the Iran nuclear deal delivered a united message to President-elect Donald Trump yesterday, Edith M. Lederer reports at the AP.

The US military is ready to present options to the new Trump administration to accelerate the fight against the Islamic State, chairman of the Joint Chiefs of Staff Marine Gen. Joseph Dunford told reporters including Julian E. Barnes at the Wall Street Journal.

The US can “be great again” if it shows leadership in a worldwide response to the cyber threat posed by Russia, Ukrainian President Petro Poroshenko said yesterday, Stephen Adler and Sujata Rao reporting at Reuters.

The Senate Armed Services Committee overwhelmingly recommended that retired Gen. James Mattis be the next defense secretary yesterday, Jeremy Herb and Connor O’Brien report at POLITICO.

Sen. John McCain is still undecided whether he will support the nomination of Rex Tillerson as secretary of state, he said yesterday. POLITICO’s Burgess Everett reports.

Department of Energy head pick Rick Perry reportedly did not realize that the job involved maintaining the nation’s nuclear stockpile when he agreed to take it, Coral Davenport and David E. Sanger report at the New York Times.

Sanctions against Russia for its annexation of Crimea should remain tied to that issue and not be repealed in return for a reduction of nuclear arms as President-elect Trump suggested, President Obama said yesterday, Louis Nelson reporting at POLITICO.

Trump deserves the space to pursue his agenda, outgoing President Barack Obama said yesterday in his final scheduled news conference, while suggesting that he tread carefully on issues such as the Israeli-Palestinian conflict. Carol E. Lee and Damian Paletta report at the Wall Street Journal.

An annotated version of Obama’s final press conference speech yesterday is provided at NPR.

The Obama administration has written 275 briefing papers for the incoming Trump administration including nearly 1,000 pages on North Korea, the military campaign against the Islamic State and tensions in the South China Sea, – and nobody knows whether anyone in Trump’s team has read them, Mark Landler writes at the New York Times.

Ten views from ten countries: CNN compiles the opinions on the incoming Trump administration from commentators from around the world.

European leaders’ insistence that the ties underpinning the world since World War II will endure in Trump’s new world order will be put to the test as “tweets and interviews turn into policy and action,” write Griff Witte, Michael Birnbaum and James McAuley at the Washington Post.

Trump will inherit a conflict in Afghanistan that is a “stalemate” after eight years of the Obama administration, write Greg Jaffe and Missy Ryan at the Washington Post, discussing how Trump might approach this particular foreign policy challenge.

Trump’s all-but-abandonment of human rights as a foreign policy principle has raised the prospect of once “unimaginable” alliances for some Middle Eastern countries, writes the AP. Continue Reading »

The CIA’s New Guidelines for Handling Americans’ Information

In acknowledgment of the mass scale of modern electronic intelligence collection, the Central Intelligence Agency today released newly updated guidelines governing how it treats Americans’ data that are swept up in the agency’s overseas espionage efforts conducted under Executive Order 12333.

The requirements, set to go into effect on March 18, 2017, are designed to deal with the fact that so much of everyone’s life is spent in the digital space, that the sheer volume of data collected in 21st Century espionage means that Americans’ data will be collected by the agency — in a way that couldn’t be imagined when the previous guidelines were released decades ago.

The new guidelines (full text below), dubbed the Attorney General Guidelines, were developed by the offices of US Attorney General, Loretta Lynch and CIA Director, John Brennan, and they replace a heavily redacted set of predecessor rules that were implemented in 1982. While much of the new regulations are a consolidation of the 1982 documents — and subsequent CIA policy updates for handling Americans’ data that were developed in the years since — the rules announced today lay out several new requirements to deal with the fact that “inherently, there’s going to be more incidental collection” of Americans’ data, CIA Privacy and Civil Liberties Officer Ben Huebner said today during a small press briefing at CIA headquarters in Virginia.

Here’s a quick rundown of what’s new, apart from the fact that the entire document was released unclassified, per Huebner:  Continue Reading »

A Right to Fight?

Do the laws of war give soldiers a right to fight, irrespective of their cause and free from other constraints? Or are the laws of war merely one set of constraints among others? In previous posts, I took the view that the laws of war constrain but do not authorize the use of deadly force during armed conflict (see here and here). The laws of war apply alongside other legal and moral constraints, including the jus ad bellum and human rights law, which may prohibit what the laws of war do not.

In two perceptive and generous interventions (see here and here), Charles Kels—a major in the U.S. Air Force writing in his personal capacity—defends the opposing view that the laws of war both constrain and authorize, limit and license, thereby creating “a distinct moral and legal space” that “doles out judgment only according ‘to a separate moral code’.”

Charles’s view is shared by many thoughtful military officers, particularly in the United States, an unfortunate state of affairs that may be related to the enduring prominence of Michael Walzer’s Just and Unjust Wars in the curricula of U.S. military academies. I discuss the Walzerian picture of the law and morality of war at some length in my forthcoming book. In this reply, I will try to limit myself to specific points raised by Charles himself. 
Continue Reading »