This morning, Kent Walker, Senior Vice-President and General Counsel of Google, gave a speech to a packed audience at the Heritage Foundation, laying out the need for new laws to address law enforcement’s need for data that happens to be held across territorial borders. (Video is here; Paul Rosenzweig ably moderated.)

The news is less what was said, then the fact that he said it, particularly given that his company is currently litigating some of the issues in the courts. He thus joins number of other prominent individuals – including Brad Smith, President and Chief Legal Officer of Microsoft – urging U.S. Congress to modernize our laws in a way that better accounts for the way data moves around the globe. The audience was notably packed.

I don’t agree with everything Walker said. (In particular, I am not particularly fond of last Congress’s version of the International Communications Privacy Act, which effectively gives Russia veto power over U.S. law enforcement ability to access data overseas.) But I strongly agree with the gist of his message: the importance of addressing the cross-border access problems in ways that both ensure law enforcement can access data in the legitimate investigation of criminal activity and protect privacy and due process rights; the dangers of doing nothing; and the need for Congress to act.

Notably, Walker’s speech follows on the heels of two Congressional hearings (one in the Senate and one in the House) where a wide range of stakeholders all agreed on these same basic points. Of course, there are some key differences of opinion that remain. Yet, there is general consensus as to the following: Continue Reading »

April 4: Chemical attack

A rocket laced with the nerve agent sarin kills more than 80 civilians in Khan Shaykhun in the rebel-held Idlib province. The attack is attributed to the government of Bashar al-Assad.  There is reportedly “mounting evidence” that Russia was “complicit” in the attack at least through knowledge or acquiescence.

April 6: Cruise missile response

The U.S. launches 59 Tomahawk cruise missiles at a Syrian government air base.

A Russian spokesman says the strike “deals a significant blow to relations between Russia and America, which are already in a poor state.” Russia says it will strengthen Syria’s air defense systems to “protect the most sensitive Syrian infrastructure facilities,” and will suspend the memorandum of understanding with the U.S. to deconflict airspace to avoid accidents.

May 6: Memorandum of understanding reinstated

Russian and U.S. chiefs of general staff agree to resume implementation of the aircraft safety memorandum of understanding.

May 18: First strike against pro-Syrian government forces at al-Tanf

The Coalition bombs pro-Syrian regime forces that had advanced into the 55-kilometer “de-confliction zone” surrounding al-Tanf, a garrison used by U.S. Special Forces and allies to train Syrian partner forces. “Iranian-directed” militias were building an outpost within the zone, and after failing to deter them by firing a warning shot, U.S. planes bomb a tank, a bulldozer and an excavator.

The following day, chairman of the Joint Chiefs of Staff, General Joseph Dunford, tells reporters the strike was “a force protection strike. Our commanders on the ground felt like they were threatened at that point. And their rules of engagement allow them to do that.”

While the strike stops the forces progressing, they remain “deep” within the de-confliction zone.

Secretary of Defense James Mattis says of the Iranian-directed forces:

“We believe they moved into that zone against the advice of the Russians.  Or — or — you know, apparently against the advice of the Russians.  I can’t confirm that either, but it looks like the Russians tried to dissuade them.”

The U.S. captured the al-Tanf garrison over a year ago and unilaterally declared the territory around it to be a “de-confliction zone”. That zone is not recognized by Russia or the Syrian regime (and should not be confused with the formal de-confliction agreement and hotline established between Russia and U.S.). U.S., British, Norwegian and possibly Jordanian special forces are present at al-Tanf.

The Military Times reports, “U.S. and coalition forces operating at the Tanf training facility use the location to train two partner forces, the Maghawir al-Thawra and Shohada al-Quartayn. CENTCOM contends these groups are anti-ISIS fighters, but in the past they have fought against the Assad regime.”

Defense One notes that on May 18, “Fars, an Iranian news agency affiliated with the Islamic Revolutionary Guard, reported that 3,000 Hezbollah fighters had been sent to Tanf to back the Syrian military in its fight against the United States ‘and establish security at the Palmyra-Baghdad road.’”

Week of May 29: Russia fires on US-supported forces protecting al-Tanf

In the al-Tanf area after repelling pro-regime forces, US-supported forces are reportedly “forced to pull back when they were attacked by Russian aircraft.” Continue Reading »

Former Secretary of Homeland Security Jeh Johnson testified Wednesday before the House Intelligence Committee as part of the House investigation into Russian interference in the 2016 election. Much of the hearing focused on Johnson’s decision, announced on January 6, to designate election infrastructure as “critical infrastructure.” Both Rep. Mike Conaway (R-TX) and Rep. Joaquin Castro (D-TX) questioned whether that designation includes political parties, and Johnson repeatedly clarified that it does not.

It might seem obvious that political parties and campaigns should be covered as critical infrastructure. After all, it was the hack of the Democratic National Committee (DNC) that started the Russian hacking scandal. But the question of whether to include political parties and related entities as critical infrastructure is tied into the broader, ongoing debate about how to treat information operations designed to influence democratic elections. That’s a harder question than simply whether political entities are critical infrastructure or not.

When asked why designating election infrastructure as critical infrastructure was important, Johnson gave three reasons. He explained first that “critical infrastructure receives a priority in terms of the assistance [DHS] give[s] on cybersecurity,” and second that communications between critical infrastructure and DHS receive “a certain level of . . . confidentiality.” Johnson’s third reason goes to the international implications of the designation. He explained, “[W]hen you’re part of critical infrastructure, you get the protection of the international cyber norms. Thou shalt not attack critical infrastructure in another country.”  Continue Reading »

[Editor’s note: for an analysis of the legal issues raised by this news, see Steve Vladeck’s post, “The Potential Legal Implications for the U.S. in the AP’s Disturbing UAE Torture Scoop.”]

Early Thursday morning, Maggie Michael and Maad al-Zikry of the Associated Press published a disturbing story documenting widespread Emirati-led torture and mistreatment of suspected terrorists in Yemen.  Michael and al-Zikry also make the case that U.S. forces operating in Yemen are likely aware of at least some of the abuses and in fact have provided questions for the prisoners to their Emirati partners to ask during interrogations.  Steve Vladeck has provided preliminary legal analysis of this report that raises some serious questions as to whether the United States may have violated international human rights law and the law of war in its partnership with the Emiratis.  Regardless of the legal analysis, there is good reason to be outraged on policy grounds as well.  In the coming days, hard questions will need to be asked as to how much the U.S. government knew about these alleged abuses, who all was involved in advising the Trump Administration on our partnership with the Emiratis, and what this means for larger strategic questions in Yemen and beyond.

Among other issues, I identify here the types of questions that members of Congress and reporters must now pose to the Trump administration. Continue Reading »

[Editor’s note: for an analysis of the policy issues raised by this news, see Luke Hartig’s post “Reported Emirati Abuse of Detainees and the Perils of U.S. Partnerships.”]

There is a lot to say about Maggie Michael and Maad al-Zikry’s deeply disturbing Associated Press story out early this morning—that the United Arab Emirates (UAE) has operated (and may still be operating) a number of different secret terrorism detention centers in Yemen; and that there is evidence that dozens of individuals suspected of being al Qaeda (and/or AQAP) members were tortured and subjected to other abuses by UAE agents at those facilities. And most relevant here, the AP reports that the United States has played at least some role in these cases—which may include feeding questions to (and perhaps even observing) some of the interrogations; receiving intelligence from those interrogations; and even conducting subsequent interrogations of some of the same detainees by US forces themselves inside UAE detention centers. According to the AP, the Pentagon’s response has been to acknowledge the interrogations, to deny that any US personnel were directly involved in committing any of the alleged abuses; and, apparently, to otherwise wash its hands of responsibility for the actions of the UAE—even if those actions softened up the detainees for American interrogators and produced intelligence information shared with (and utilized by) the US intelligence community. (Never mind how troubling such an apparent “not our problem” response to this story is as a matter of policy, ethics, or, you know, basic human decency.)

There’s no possible way to cover all of the important legal, policy, and political implications of the claims in the AP story in a single piece. Instead, my analysis starts by asking—and trying to answer—three questions:

1. Do any of the allegations in the AP story suggest a violation by US forces of US domestic or international law?
2. Would the detainees have any remedy available to them under US law?
3. What options would the US government have if it seeks to assert jurisdiction over any of these detainees, going forward?

Continue Reading »

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.

POSSIBLE U.S. COMPLICITY in TORTURE in YEMEN

American forces have been involved in interrogations of detainees in Yemen, where hundreds of people have disappeared into a secret network of prisons where abuse and torture are routine, senior U.S. defense officials acknowledged yesterday, denying any participation in or knowledge of human rights abuses, Maggie Michael reports at the AP.

While American defense officials say U.S. interrogators were not involved in any abuses of Yemeni detainees, legal experts explain that obtaining intelligence that may have been extracted through torture albeit inflicted by another party could would constitute complicity in torture in contravention of the International Convention Against Torture, Maggie Michael and Maad Al-Zikry explain at the AP.

Do any of the allegations in the AP’s story suggests a violation by U.S. forces of domestic and/or international law? Would the detainees have any remedy under U.S. law? What options would the U.S. government have if it seeks to assert jurisdiction over any of the detainees? Just Security’s Steve Vladeck provides an examination of these three questions by way of a starting point for analysis of the wealth of legal, policy and political implications of the AP’s claims.

TRUMP-RUSSIA INVESTIGATION

Russian government hackers targeted the voting systems in nearly two dozen states last year “for the purpose of influencing [the U.S.] election,” current and former officials testified yesterday, including former Department of Homeland Security secretary Jeh Johnson, who told the House Intelligence Committee that the hackers could be traced back specifically to Russian President Vladimir Putin, Byron Tau and Erica Orden report at the Wall Street Journal.

There was no delay in informing Americans of Russian interference in last year’s presidential election by the previous administration, Johnson said yesterday, arguing that his response to the Russians’ interference was one of careful characterization intended to ensure that the Obama administration was not seen as taking sides in a political fight, the Hill’s Katie Bo William reports.

Cyberattacks aimed at undermining U.S. elections will “get worse before they get better” and officials should “assume” that “the Russians will be back, and possibly other state actors, and possibly other bad cyber actors,” Johnson warned yesterday, Andrew Rafferty reporting at NBC News.

The Senate Judiciary Committee will likely investigate whether President Trump obstructed justice by firing former F.B.I. director James Comey, Sen. Chuck Grassley (R-Iowa) told CNN’s Manu Raju yesterday, John Bowden reporting at the Hill.

Obstruction of justice would be one of the areas his committee would pursue, Judiciary Committee member Grassley also hinted in an earlier interview with POLITICO’s Seung Min Kim and Josh Gerstein.

The Senate Judiciary Committee will move forward with its own probe of possible Trump-Russia collusion, Sens. Grassley, Diannie Feinstein (D-Calif.), Lindsey Graham (R-S.C.) and Sheldon Whitehouse (D-R.I.) confirmed in a joint statement following their meeting with special counsel Robert Mueller yesterday, Jordain Carney reporting at the Hill.

Subpoenas may be the next step if the White House fails to comply with a deadline tomorrow to provide information on any tapes of meetings between President Trump and former F.B.I. director James Comey, the top Democrat on the House Intelligence Committee said yesterday, Austin Wright reporting at POLITICO.

The F.B.I. is providing a substantial number of personnel to support special prosecutor Robert Mueller in his investigation into Russian interference, the acting head of the agency Andrew McCabe told a House appropriations subcommittee yesterday, Josh Gerstein reporting at POLITICO.

House Intelligence Committee Chairman Devin Nunes (R-Calif.) has had no involvement in the committee’s investigation into Russian interference since his recusal, the new leader of the probe Rep. Mike Conway (R-Texas) said yesterday, Katie Bo Williams reporting at the Hill.

Why does White House adviser Jared Kusher still have security clearance despite reports indicating that he failed to disclose meetings with Russian officials and businesspeople? the top Democrat on the House Oversight Committee Rep. Elijah Cummings asked White House Chief of Staff Reince Priebus in a letter also signed by all the other Democrats on the committee yesterday, Austin Wright reports at POLITICO.

The KOREAN PENINSULA

The latest version of a Beijing proposal for the U.S. to open negotiations on a temporary freeze on North Korea’s nuclear and missile tests in exchange for reducing the American military presence in the Korean Peninsula was put to Secretary of State Rex Tillerson and Defense Secretary Jim Mattis in talks with China’s foreign minister and one of its top military officials yesterday, Tillerson telling reporters after the meeting that China has “a diplomatic responsibility to exert much greater economic and diplomatic pressure” on the Pyongyang regime. David E. Sanger and Gardiner Harris report at the New York Times. Continue Reading »

The government just filed its final pleading before the Justices’ consideration of the entry-ban cases tomorrow.  This follows final briefs that the IRAP and Hawaii plaintiffs filed yesterday.

In a post on Monday, I offered some thoughts on three of the most important considerations the Court will be considering:  (i) whether there’s any basis for the Court to grant cert., and to consider the case in the Fall, as the Government proposes (see p.40)–or whether that course of action would be futile; (ii) whether the government has satisfied its burden–especially the demonstration of irreparable harm–necessary to warrant a stay of the two preliminary junctions pending the Court’s hypothetical hearing on the merits of the cases in the Fall; and (iii) the merits of the statutory basis for the Ninth Circuit’s ruling, namely, that the President acted without statutory authority because his purported “finding” did not satisfy what 8 U.S.C. 1182(f) requires.

I encourage interested readers to read the three briefs filed in the past two days, which have much to say on these three crucial questions, and more.  For now, I’ll merely stress three quick points raised by the Government’s brief today, which correspond to matters I discussed in my post on Monday:

First, the government has implicitly conceded that there would be nothing for the Court to review this Fall if it were to grant certiorari.  The Acting Solicitor General confirms, once again, that the entry ban is designed to operate “in tandem with the parallel review[] [prescribed in Section 2], just as the Order envisions.”   Because the district court judge in Hawaii amended his injunction on Monday, that internal agency review will begin tomorrow and should be completed before October.  The temporary entry ban therefore will not be in operation come the Court’s next Term, regardless of whether the injunctions are stayed–and there will be no substantive basis for it to operate then, even if the government were to prevail on the merits.  Therefore there will be nothing for the Court to review.  As the IRAP plaintiffs put it in their latest brief:

What is before the Court now . . .  is a request to review a temporary ban provision that, even by the government’s telling, will be overtaken by events by the time the Court hears oral argument. If, after the review is complete, the government decides not to impose further travel restrictions, the 90-day ban at issue here will be a pointless relic of prior circumstances, and will not require review. And if the government does take more-permanent actions after that process ends, see Order §§ 2(e), (f), the Court can review any challenges to those actions in due course, after the lower courts have addressed them in the first instance.

The government once again does not even address this dispositive, timing-specific reason for the Court to deny the cert. petitions.

Second, this basically means–and the Acting SG comes very close to saying so directly–that the entire dispute will be resolved by virtue of the Court’s disposition of the stay applications, which will determine whether the entry ban is in effect this summer (and only this summer), during the pendency of the internal agency review.  Because the stay applications are ostensibly designed for the period “pending appeal,” however, it follows that a denial of the cert. petitions–thereby precluding appeal–should automatically defeat the stay applications.  Moreover, with respect to the merits of the stay applications, the government still offers no substantial ground for establishing any irreparable harm, other than an alleged, abstract, alleged harm “to the government and the public” in the very fact of a judicial “interference with the President’s national-security judgment.”  (See also the Hawaii brief at 31-32.)  Continue Reading »

Below is a timeline of publicly reported events of Russian provocations and dangerous acts since January 20, 2017. Are we missing anything? Let us know over Twitter at Just Security or my account.

February 10: Multiple Russian aircraft buzz the U.S.S. Porter, a destroyer, which was patrolling in the Black Sea. The captain of the U.S.S. Porter called the actions “unsafe,” and said the aircraft did not respond to radio calls. It is the first such fly-by since Trump’s inauguration. (Washington Post)

February 14: Under the headline, “Russia Deploys Missile, Violating Treaty and Challenging Trump,” the New York Times reports that Russia has deployed a cruise missile in violation of the Intermediate-Range Nuclear Force (INF) treaty between the two countries. In congressional testimony, Gen. Paul Selva, the vice chairman of the Joint Chiefs of Staff states, “we believe that the Russians have deliberately deployed it in order to pose a threat to NATO and to facilities within the NATO area of responsibility.” The administration does not issue a public statement rebuking Russia. When President Trump is asked about the violation in a February 24 interview with Reuters, he does say, “To me, it’s a big deal” and he says, he “would bring it up” with Putin “if and when we meet.” (New York Times; Reuters)

February 16: The Viktor Leonov, a Russian spy ship is spotted 30 miles off the coast of Connecticut, according to a US defense department official, while an armed Russian plane recently performed a “mock attack” against a US ship. (CNN) This is farthest north the Russian spy vessel has ever been identified. The vessel made similar patrols in 2014 and 2015. (CNN)

February 28: A retired Russian colonel writes an article in a Russian tabloid claiming that Russia has planted underground “nuclear ‘mole’ missiles” along the U.S. shoreline which can be detonated on command if war broke out with the United States. Newsweek explains, that the retired colonel’s “numbers do not quite add up, however, and his unlikely nuclear weapons plan was chalked up to psychological warfare by James Nixey, head of the Russia and Eurasia program at Chatham House.” (Newsweek; The Independent)

March 14: According to diplomatic sources, Russia deploys special forces to an airbase in western Egypt near the border with Libya, potentially as part of a bid to support Libyan renegade military commander Khalifa Haftar contrary to western governments’ interests. (Reuters) Continue Reading »

House investigators have scheduled an interview with the Trump campaign digital director to question him about any campaign coordination with Russian-financed Internet advertising. Amid all the intense attention to obstruction of justice issues, this is a timely reminder of the central question of Trump campaign collusion with Russian interference in the election.

As argued here and here, Trump campaign liability would be grounded in a provision of the campaign finance laws prohibiting “substantial assistance” to a foreign national in an electoral intervention. It is new territory for a prosecution under this law: the government has not applied the regulation in circumstances like these.  The question has not come up, as it could not have: there have been no comparable circumstances.  Also, on the facts known so far, the Trump campaign’s actions in support of the Russian program have been “in plain sight”—carried out openly and notoriously.  So it may seem to some observers that, even if not requiring any stretch of the plain language of the rule, the substantial assistance theory is novel. They may hesitate to see it deployed in a case involving, at least in part, political campaign speech, namely, what the Trump campaign would prefer to characterize as routine commentary on the Wikileaks disclosures.

It may be easier to appreciate the case to the contrary–that liability with the requisite intent could be imposed for these actions–by considering how the case could also be brought under ordinary “aiding and abetting” principles of the criminal law.

It is well understood that established “aiding and abetting” principles have wide, elastic application. The abettor is not required, of course, to have been “in on it” from the beginning. In Learned Hand’s classic formulation in United States v. Peoni, the law requires only “that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”  The courts have defined in various terms this association, but what is required is “some affirmative conduct designed to aid in the success of a venture with knowledge that [the]actions would assist the perpetrator, the principal of the crime.” United States v. Cowart, 595 F.2d 1023, 1031(1979).

Note that the assistance constituting aiding and abetting does not have to be substantial. The accomplice liability provision of the federal campaign finance law, focused on “substantial assistance,” is, in that sense, stricter. ,So federal prosecutors proceeding on an “aiding and abetting” theory may have the latitude to reach a broader range of Trump campaign conduct in support  of the Russian program.

It would not be the first time that Prosecutors would have enforced campaign finance law with an “aiding and abetting” charge.  And they have evidence in the Trump/Russia case with which to work. Continue Reading »

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.

SYRIA

A U.S. warplane shot down an Iranian-made armed drone after it approached U.S.-led coalition soldiers in southern Syria yesterday, the third occasion in two weeks on which the U.S. has brought down a pro-Assad regime aircraft seen as a threat to coalition and rebel fighters, Dion Nissenbaum, Ben Kesling and Maria Abi-Habib report at the Wall Street Journal.

The downing of the drone merely “helps those terrorists whom the United States fights,” the Russian deputy foreign minister said yesterday, though behind the heated remarks there were signs that the U.S. and Russian militaries were working together to manage the situation, writes Michael R. Gordon at the New York Times.

Russia has requested a “detailed explanation” of why the U.S. shot down a Syrian warplane Monday, Russian Foreign Minister Sergei Lavrov said last night, the AP reporting.

Australia will soon resume airstrikes against Islamic State targets in Syria following the suspension of operations in response to the shooting down of a Syrian warplane by the U.S. earlier this week, Australia’s defense chief confirmed today, the AP reporting.

Iran has set up a drone base close to a U.S. military base near Palmyra in Syria which could be the source of the drone that was shot down by the U.S. yesterday, U.S. defense officials told NBC News’ Courtney Kube.

America will have to do more to counter Iran’s actions in Syria before it an “demolish” the Islamic State there, including Iran’s use of proxy militias to challenge U.S. efforts to train local forces in southeastern Syria, writes Dennis Ross at POLITICO MAGAZINE.

The race to capture territory vacated by the Islamic State in eastern Syria is raising the risk of confrontation between the U.S., Iran and Russia, a risk that is already materialising, Rebecca Collard, Erika Solomon, Najmeh Bozorgmehr and Katrina Manson examining the signs at the Financial Times.

The ongoing surge of U.S. military operations and arms sales across the Middle East by President Trump is happening without an engaged public discussion about the risks or about diplomacy or other tools needed to protect the U.S., the downing of a Syrian warplane on Sunday and last month’s strike against a pro-Assad regime militia just the latest episodes in an escalation that lacks well-defined goals and strategy understood by the American public, write former Hillary Clinton campaign chair John Podesta and Brian Katulis at the Washington Post.

The KOREAN PENINSULA

China has failed to convince North Korea to halt its nuclear and missile programs, President Trump declared via Twitter yesterday – an “extraordinarily cavalier” statement given his formerly ardent efforts to obtain the cooperation of Beijing in dealing with Pyongyang, observe Mark Landler and Gardiner Harris at the New York Times.

South Korean President Moon Jae-in is willing to collaborate with the U.S. in putting maximum pressure on North Korea to give up its nuclear program, but believes it is also important to send a message to Pyongyang that “if it decides to denuclearize and to come to the negotiating table, then we are willing to assist them,” he told the Washington Post’s Lally Weymouth ahead of his first visit to the White House next week.

Discussions on taking on a potential role as broker for negotiations with North Korea are being discussed by the European Union with South Korea and China, E.U. officials said, Jeremy Page and Laurence Norman reporting at the Wall Street Journal.

Activity at an underground site in North Korea used to test nuclear weapons has been detected by U.S. satellites, U.S. officials concerned that North Korea could initiate a test during a visit by Chinese officials to Washington today, CNN’s Barbara Starr, Elise Labott and Zachary Cohen report.

The U.S. is weighing up a ban on travel to North Korea following the death of 22-year-old Otto Warmbier shortly after his return to America from North Korea where he had been imprisoned for the past 17 months, Secretary of State Rex Tillerson reportedly having been considering the move since late April when American teacher Tony Kim was detained in Pyongtang, the AP’s Josh Lederman reports.

Japan will test its missile interceptor capability tomorrow in the wake of several recent missile tests by North Korea, according to Japanese media, Ellen Mitchell reporting at the Hill.

Is war with North Korea the next step? President Trump has begun the U.S.’ final campaign to disarm North Korea, but will it involve going after Chinese banks, or war with Kim Jong-un? Gordon G. Chang writes at The Daily Beast.

TRUMP-RUSSIA INVESTIGATION

Former national security adviser Michael Flynn was present while C.I.A. Director Mike Pompeo briefed President Trump on sensitive intelligence nearly every day for three weeks in January despite senior officials across the government being convinced that he had become vulnerable to Russian blackmail, Matt Apuzzo, Matthew Rosenberg and Adam Goldman writes at the New York Times. Continue Reading »