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President Obama’s Report on the Legal and Policy Frameworks Guiding and Limiting the Use of Military Force [UPDATED]

The Administration just released five new documents relating to the use of force, including detention, in counterterrorism operations against nonstate armed groups. The most important of these is this remarkable report, which comprehensively describes the domestic and international legal bases for the United States’ ongoing use of military force overseas and some of the key legal and policy frameworks that the law and the Obama Administration have established to govern and limit such uses of force and related national security operations, such as detention, transfer, and interrogation operations. (I’ll refer to it here as the “Use of Force Framework Report,” or “the Report.”)

In addition, the President has issued a Presidential Memorandum that will–unless a future President rescinds it–require the Executive branch to build upon the Use of Force Framework Report; it directs the national security departments and agencies to prepare such a report annually.

The President also transmitted his final semiannual War Powers report to Congress, describing the basis for the current and ongoing U.S. use of military force in six nations—an account of current operations that the Use of Force Framework Report explains in much greater detail.

Fourth, the Administration has posted the unclassified portions of the August 2009 Report, issued by the special task force established by Section 5 of Executive Order 13491, to study and evaluate the practices of transferring individuals to other nations.

Finally, the Department of Justice has posted the 2012 report it issued to Congress on “U.S. detention policy, including the legal basis for such a policy, as it applies to current and future terrorism detainees,” consistent with the Manager’s Statement regarding the 2012 “Minibus” Appropriations Act, Public Law No. 112-55.

In the first part of this post, I summarize some of the most important aspects of the Use of Force Framework Report. In the second part, I identify a small handful of questions that the Report does not address, and one discrete matter (about a provision of the Convention Against Torture) as to which the Report (in a footnote) errs. Continue Reading »

Memo to President Obama: You Have Another Memo to Withdraw

The election of Donald Trump has triggered an anxious conversation about how President Obama can entrench some of his accomplishments before January 21, 2017.  Importantly, given the Trump campaign’s embrace of waterboarding and “worse”, President Obama would do well to ensure that he has fully dismantled the Bush Administration’s post-9/11 detention and interrogation system. A series of interlocking memoranda emanating from the Office of Legal Council (OLC) of the Bush Administration’s Department of Justice undergirded this system, although some of these memos were actually written after-the-fact to rubber-stamp decisions already made and conduct already underway.  Indeed, as legal ethicist Professor David Luban testified before the Senate Judiciary Committee, rather than providing sound, defensible, and balanced advice for policies under consideration, these memoranda were actually part of an executive branch cover-up for torture and other abusive tactics already underway:

[The memos] read as if they were reverse engineered to reach a pre-determined outcome: approval of waterboarding and the other CIA techniques.

All of these memos and more on the U.S. torture program are available in the Torture Database maintained by the ACLU, which won the public release of many of these memoranda through its dogged litigation, and in the OLC’s FOIA Reading Room

Many of the most problematic memoranda regarding executive power and authorizing conduct that constitutes torture or other forms of prohibited cruel treatment have been withdrawn by the OLC or invalidated by President Obama by way of Executive Order.  At least one, however, has escaped this deserved fate: an August 15, 2005, memorandum to the file entitled “Whether Persons Captured and Detained in Afghanistan are ‘Protected Persons’ under the Fourth Geneva Convention” (Memo).  This Memo argues that the Fourth Geneva Convention, which protects civilians in the hands of a state of which they are not nationals, applies only to individuals on U.S. territory—an interpretation that would significantly truncate, if not virtually gut, the protections of that treaty.  President Obama and the OLC should repudiate and withdraw this memorandum before the change of administration in order to ensure that there is no risk that the spurious reasoning it contains ever governs U.S. law-of-war practices in the future. This would confirm that Convention protects civilians in the hands of a party to which they are not nationals in all international armed conflict situations, including enemy territory.

The rest of this post sets forth the history of the politicized and impugned OLC memoranda; explains the origins of the Geneva Conventions and the scope of their protected persons regime; deconstructs and repudiates the reasoning in the Memo; and provides the correct interpretation of the Fourth Geneva Convention.  Continue Reading »

National Security-Related Congressional Hearings, December 5–December 9

Tuesday, December 6

9:30am – Senate Committee on Armed Services – Emerging U.S. Defense Challenges and Worldwide Threats (here)

2:00pm – House Committee on Foreign Affairs – Step or Stumble: The Obama Administration’s Pivot to Asia (here)

2:30pm – Senate Select Committee on Intelligence – Closed Briefing: Intelligence Matters  (here)

2:30pm – Senate Committee on Foreign Relations –  Business Meeting  (here)

2:45pm – Senate Committee on Foreign Relations – Defeating the Iranian Threat Network: Options for Countering Iranian Proxies (here)

Wednesday, December 7

9:00am – House Committee on Oversight and Government Reform – Examining the Costs of Overclassification on Transparency and Security (here)

10:00am – House Committee on Foreign Affairs – Corruption: A Danger to Democracy in Europe and Eurasia (here)

2:00pm – House Committee on Armed Services – California National Guard Bonus Repayment Issue (here)

3:30pm – Senate Select Committee on Intelligence – Closed Briefing: Intelligence Matters  (here)

Thursday, December 8

9:00am – House Committee on Armed Services – Oversight Review of the U.S. Navy’s Littoral Combat Ship (LCS) Program (here)

10:00am – Senate Committee on Foreign Relations – State Department and USAID Management Challenges and Opportunities for the Next Administration (here)

Congress on Track to Extend Condolence Payments to Syrians

airstrike

The Pentagon will soon have permission from Congress to make condolence payments to the families of civilians killed or injured by American airstrikes in Syria, as well as Iraq and Afghanistan. The new funding is buried deep in the annual defense policy bill, which is quickly on its way to becoming law.

On Friday, the House passed it and the Senate is expected to hold a vote on it this week before it goes to the president for his signature.

As part of this bill, Congress is  carving out $5 million — a tiny fraction of the larger $619 billion bill — to be available to make what are called “ex gratia” payments to the civilian casualties of U.S. airstrikes, according to the bill.

Last year’s defense policy bill paved the legal way for such payments to be made in Iraq in addition to Afghanistan. This year’s bill extends permission for those payments through 2018, and adds Syria to the list of countries where such payments can be made.

The expansion of this fund comes after President Obama laid out his administration’s policies for reducing the likelihood of civilian casualties and taking “appropriate steps when such casualties occur” in an executive order this summer. In that order, Obama directed relevant agencies to:

(ii) acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed;

That part of the executive order also came with a qualification: agencies were directed to take such action “as appropriate and consistent with mission objectives and applicable law.”

The money for Iraq and Syria is included in a program tied to current operations in Afghanistan called the Commanders’ Emergency Response Program, or CERP. In the military it’s also referred to as the Money as a Weapon System.

As I wrote last year for The Daily Beast:

Since 2004, the CERP fund, which was first created for Iraq but then expanded to Afghanistan, has provided American commanders with over $6 billion in petty cash to spend on small reconstruction projects that could help foster goodwill with local populations. It’s also been used to make condolence payments to the families of innocents killed by U.S. forces.

The rules that govern CERP say that most commanders can approve up to $2,500 per person or damaged property, but higher ups can sign off on even bigger sums if needed, according to a May 2015 investigation by ProPublica.

The U.S. military made use of the funding last year to pay the survivors of the airstrike on the hospital run by Doctors Without Borders in Kunduz. While there is no public information about similar payments being made in the fight against ISIS, the fact that the military has requested the funding shows it’s anticipating a need for it.

As of Dec. 2, the US has conducted almost 13,000 strikes in Iraq and Syria, with 7,183 in Iraq and 5,693 in Syria, according to the Pentagon.

The Defense Department is constantly receiving and assessing reports of civilian deaths and, in recent months, has started to provide reporters more information about when US-led coalition strikes have killed civilians.

In November, U.S. Central Command, which overseas military operations in Iraq and Syria, said over the past year, “24 U.S. airstrikes in Iraq and Syria regrettably may have killed 64 civilians and injured 8 other civilians.”

“The assessments determined that in each of these strikes the right processes were followed; each complied with Law of Armed Conflict and significant precautions were taken, despite the unfortunate outcome,” said CENTCOM spokesman Col. John Thomas at the time.

To date, the Pentagon admits to killing 173 civilians since the beginning operations against ISIL in the summer of 2014.

Outside monitoring groups — like the Syrian Network for Human Rights or Airwars put the death toll much higher.

In a speech at NYU Law School earlier this week, Jennifer O’Connor, the Defense Department’s general counsel, discussed how commanders and military lawyers make targeting decisions and weigh the potential for civilians casualties before taking a strike.

Image: U.S. Air Force F-15E Strike Eagles fly over northern Iraq after conducting airstrikes against ISIL targets in Syria. U.S. Air Force photo by Senior Airman Matthew Bruch

Rule 41 Has Been Updated: What’s Needed Next

On December, 1, the revised version of Federal Rule of Criminal Procedure 41 went into effect. The Department of Justice, which first proposed an earlier (and more expansive) version of the rule change in September 2013, has described the amendment as a much-needed procedural update in light of the growing use of anonymization tools and multi-jurisdictional cybercrime.   Specifically, it grants courts jurisdiction to issue remote search warrants when the location of a sought-after device or data has been concealed due to technological means, and it allows for the issuance of multi-jurisdictional remote search warrants in certain circumstances.

But a range of privacy groups and outside observers—on both this site and elsewhere—have decried the changes as much more than that. They have accused the Judicial Conference, the policy-making arm of the federal judiciary, of pushing through sweeping substantive changes in the guise of a procedural amendment. The rule has been described as resurrecting “general warrants,” authorizing “mass hacking,” and enabling “the broadest expansion of extraterritorial surveillance power since the FBI’s inception.” Senator Ron Wyden (D-OR) and Respresentative Ted Poe (R-TX) introduced “Stopping Mass Hacking” Acts in their respective chambers of Congress that, had it been adopted, would have prevented adoption.   And the day before it went into effect Senators Wyden, Steve Daines (R-MT) and Chris Coons took to the floor warning of “unlimited power for unlimited hacking” and urging the Senate to take action to delay or prevent the rule change.

But while the changes are clearly more than the mere procedural updates suggested by the Judicial Conference and government, they are not nearly as sweeping or dramatic as the anti-rule-change rhetoric suggests. That said, they do carry the risk of unintended side effects, with potentially significant implications for both security and privacy, as well as foreign policy.   Careful judicial scrutiny of sought-after warrants and additional statutory controls are needed to prevent the rhetoric from becoming reality.

The background

The key amendments are four-fold: Continue Reading »

New ICRC Survey: Large Global Divide in Public Respect for Humanitarian Norms

A massive global survey on the laws of war includes some striking findings on public attitudes, including large differences of opinion that vary according to where people live. One of the most consistent survey results, for example, finds that people who live in war-torn countries are more likely to respond humanely to questions on the laws of war—compared to the populations of the five permanent members of the Security Council (P5) plus Switzerland. The survey results are contained in the 2016 People on War report published by the International Committee of the Red Cross (ICRC) on Monday. I had the opportunity to ask the ICRC’s Director General, Yves Daccord (pictured above) about the survey results. We discussed the marked discrepancies in public opinion across different countries, and implications for compliance with fundamental legal norms.

The survey results provide extraordinary insight into questions about how violations of humanitarian norms might become normalized (in some countries but not others), how exposure to war can deepen—rather than erode—one’s faith in international law, the extent to which taboos such as the torture prohibition in the United States can easily collapse, and the extent to which States’ military practices have become disconnected from the preferences of their domestic populations.

The study was carried out by WIN/Gallup International and reflects the opinions of an astounding number of people (17,000 respondents) in 16 countries. Many of the findings are, or can be, divided into two groups of countries: 10 conflict-affected countries (including Afghanistan, Colombia, Nigeria, and Syria) on the one hand, and the P5 countries + Switzerland, on the other.

1. A global divide in support of humane behavior

Respondents were asked whether certain kinds of military attacks are wrong. Individuals responded differently in countries directly affected by armed conflict compared to people in the P5 countries + Switzerland—but in the opposite way than one might have imagined. Individuals in war-torn countries were far more supportive and respectful of humanitarian norms. Consider five examples: Continue Reading »

The Early Edition: December 5, 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.

DONALD TRUMP’S FOREIGN POLICY

Exxon Mobil Corp. CEO Rex Tillerson has been added to the list of candidates for the post of Donald Trump’s secretary of state, according to one transition adviser, Carol E. Lee and Peter Nicholas observing at the Wall Street Journal that choosing a secretary of state with no foreign policy background like Mr Tillerson could further unnerve government officials serving in an institution that functions on strict protocols.

A running list of the key positions Trump has filled so far is being maintained by the Washington Post and Partnership for Public Service.

Trump’s controversial phone call Friday to Taiwan’s leader was planned weeks in advance as a provocative stunt to demonstrate that Trump is a radical change from previous presidents, Anne Gearan, Philip Rucker and Simon Denyer report at the Washington Post.

Trump is clear about China’s position on Taiwan and China has maintained contact with his team, the Chinese foreign ministry said today, Ben Blanchard and Roberta Rampton reporting at Reuters.

The President-elect took to Twitter to rail against China’s military and economic policy Sunday, David Smith reports at the Guardian.

Trump is overhauling US foreign policy without a strategy, Sen. Chris Murphy (D-Conn.) said via Twitter on Friday, warning that “that’s how wars start.” [The Hill’s Jordain Carney]

Trump’s conversation with Taiwan’s leader demonstrated why his presidency has the potential to restore “badly-needed credibility to a host of global challenges,” Rupert Hammond-Chambers argues at the Wall Street Journal.

Trump may have taken the first steps to stabilize East Asia, according to Gordon G. Chang writing at The Daily Beast.

The Pentagon will review its strategy for defeating the Islamic State for President-elect Trump, Joint Chiefs Chairman Gen. Joe Dunford said. Connor O’Brien reports at POLITICO.

Iran and China’s foreign ministers urged governments not to violate the Iran nuclear deal today in remarks the AP suggests were directed at Donald Trump’s incoming administration.

Russian President Putin’s concerns that Trump could be an unpredicable partner were signalled by his recent comments about the difference in level of responsibility for Trump as a businessman and as the President of the US, writes Andrew Roth at the Washington Post.

The election of Donald Trump as president raises the possibility of a dramatic shift in the US’s approach to Syria next January, while major losses by rebels fighting in Syria have scrambled US policy calculations at this crucial moment in Syria’s war, Jay Solomon, Carol E. Lee and Felicia Schwartz write at the Wall Street Journal.

Trump’s contradictory messages to nuclear-armed arch rivals Pakistan and India tell us something about how the President-elect operates: he tells whoever is listening exactly what they want to hear, observes Dana Milbank at the Washington Post.

Trump’s economic nationalism will redefine America’s global role in “a fundamentally deceptive and destructive way,” US leaders having embraced the idea that trade can foster prosperity and promote democratic societies ever since World War II, Robert J. Samuelson writes at the Washington Post.

Homeland security secretary candidate and current House Homeland Security Committee Chairman Michael McCaul (R-Tex.) is going public with detailed and relatively workable plans to turn Trump’s ideasextreme vetting of immigrants and refugees, a border structure with Mexico, and deporting criminal illegal immigrants – into reality, writes Josh Rogin at the Washington Post.

SYRIA

Assad regime forces pushed deeper into rebel-held parts of Aleppo yesterday, around half of the rebels’ enclave now under government control, Anne Barnard reports at the New York Times.

Leave Aleppo or face “inevitable death,” the Syrian army warned rebels in the besieged city. [AP]

Russia and the US will hold talks on rebel withdrawal from Aleppo in Geneva on Tuesday or Wednesday, and Secretary of State John Kerry has sent his proposals on routes and timing of the withdrawal, Russian Foreign Minister Sergei Lavrov said, telling a news conference that any rebels who refused to leave would be treated as terrorists. [Reuters] Continue Reading »

Recap of Recent Posts on Just Security (Nov. 27-Dec. 2)

I. President-elect Trump: Federal Bureaucracy, Europe, Expatriation, Conflicts of Interest, Appointments, and Executive Power

II. The Law of War: al Shabaab, AUMF, Targeting, and the DOD Law of War Manual

III. Surveillance

IV. Torture and Guantanamo

V. United Nations Peacekeeping

VI. Africa and the ICC

And Mattis Makes Four—Senior Policymakers in a Trump Administration Who Would Take a Hardline on Russia

Trump’s selection for Defense Secretary, retired General James N. Mattis, is the fourth in the line of senior policymakers who would presumably take a very different approach to Russia than the one articulated by the President-elect and by retired Lt. Gen. Michael Flynn during the campaign season. Along with Mattis, two others are Vice President-elect Mike Pence and nominee for CIA Director, Mike Pompeo. The fourth is Trump’s pick for Deputy National Security Advisor, KT McFarland (see my earlier post, KT McFarland’s Hardline on Russia with Nuance). Mitt Romney or retired General David Petraeus as Secretary of State would make five.

The New York Times reports: “General Mattis believes, for instance, that Mr. Trump’s conciliatory statements toward Russia are ill informed. General Mattis views with alarm Moscow’s expansionist or bellicose policies in Syria, Ukraine and the Baltics.”

Yochi Dreazen at Vox writes:

Mattis is also a Russia hawk of sorts — a position that would potentially leave him at odds with the president-elect.

Mattis, echoing the assessments of most of the Pentagon’s top brass, has a sharply different assessment of Putin, whom he sees as a clear threat to both the US and many of Washington’s closest European allies.
According to an article by the US Naval Institute, Mattis used a speech to a conservative think tank last May to warn that Russia’s annexation of Crimea and continued meddling in eastern Ukraine was a “severe” and “serious” threat that was being underestimated by the Obama administration.
Putin, Mattis concluded, was trying to “break NATO apart.”

Former US Ambassador to Russia, Michael McFaul tweeted:

It is obviously unclear how Trump administration policies will play out as we turn from campaign rhetoric to governing. At least with the announcement of General Mattis as our next likely SecDef, NATO allies can breathe a little easier this morning.

[Editor’s Note: To see more on this topic, read Rolf Mowatt-Larssen’s piece, The Strategic Balance: A New US-Russian Zero Sum Game.]

Image credit: U.S. Dept. of Defense.

 

 

A Word to a Newfound Ally

As a longtime (and long-exasperated) reader of Lawfare, I’ve been heartened to see the site’s recent editorial turn, in response to current events, toward newly appreciating the dangers inherent in a too-powerful executive branch. In particular, the site’s chief, Benjamin Wittes, has been remarkably eloquent in calling out the coming risks of the Trump Administration. My protracted feud (in my own head) with Wittes has cooled of late, with columns like this one offering common ground for the hard years ahead. I may hold my grudges against a man who once blamed the rising tide of terrorism not on the “barbarities of any groups” but on the “indulgence of the self-appointed guardians of IHL, human rights law, and international law more generally,” a “soft-law world” that is “just not quite as horrified by Hamas as that group’s behavior and the relevant IHL conventions would lead one to expect.” But here’s to new friends in new foxholes.

Yesterday, Wittes was at his refreshing best again, aping Brendan Nyhan and defending “libertarian panic” (and its more robust cousin, “Trump Panic”) as a rational response to Trump’s election. Hear, hear. It’s frankly exciting to have a writer like Wittes marshaling these kinds of arguments, and it bodes well for the heightened state of vigilance that our common work will soon require. But in explaining his intense distrust of the erratic personality about to inherit the awesome power of the presidency, Wittes shows that his old animosities still run deep. To wit, this unwarranted low blow:   Continue Reading »