As we enter our fourth year, Just Security is adding five new members to our Board of Editors, to help us continue to provide informed, thoughtful and nuanced analysis of today’s most pressing national security questions. This outstanding group brings years of experience and expertise to help us navigate the legal nitty gritty and policy implications of a wide range of issues including the Russia investigation, the Trump administration’s expanded use of drone strikes, the new era of cyber and surveillance, the impact of U.S. national security policies in different parts of the globe, and more. We couldn’t be more excited that they are joining the Just Security team.  Continue Reading »

Monday, September 25

5:00pm – House Committee on Rules – H.R. 2792 Control Unlawful Fugitive Felons Act of 2017 (here)

Tuesday, September 26

10:00am – House Committee on Oversight and Government Reform – Recommendations of the Commission on Evidence-Based Policymaking (here)

10:00am – House Foreign Affairs Committee – The Department of State Redesign (here)

10:00am – House Homeland Security Committee – Raising the Standard: DHS’s Efforts to Improve Aviation Security Around the Globe (here)

10:00am – Senate Committee on Armed Services – Nomination: General Joseph F. Dunford, Jr., USMC for Reappointment to the Grade of General and Reappointment to be Chairman of the Joint Chiefs of Staff (here) Continue Reading »

Late last week, Charlie Savage and Eric Schmitt of the New York Times reported that President Donald Trump might soon adopt a new policy on U.S. lethal operations outside hot warzones. As reported, the new policy would make two key changes to the Presidential Policy Guidance (PPG), which President Obama adopted in 2013. First, it would eliminate the requirement that anyone targeted for attack be suspected of posing a “continuing imminent threat” to Americans. The targetable class would be enlarged to include, as Savage and Schmitt put it, “foot-soldier jihadists with no special skills or leadership roles.” Second, the new framework would no longer require “high-level vetting” of decisions to use lethal force; it would devolve decision-making authority to people closer to the operational level.

When the news broke, Luke Hartig wrote an excellent article for Just Security analyzing the reported changes. I agree with a lot of what Luke says and strongly recommend his piece. In particular, he’s right that we need more details before we can assess the implications of any policy change. Still, I’m less optimistic than he seems to be. To explain why, I want to expose the problems with three common claims on the PPG. These claims are not completely wrong, but neither are they completely correct. They obscure why the reported changes have the potential to be both legally and operationally significant—and quite problematic. Continue Reading »

In coming days and weeks, much of the discussion about President Donald Trump’s new travel ban will focus on its similarities and differences from its predecessors and what those mean for its avowed constitutionality and statutory basis.  And rightly so.  For the moment, though, it’s worth pausing to reflect on what its very issuance means for this President’s relationship to the courts.  As with other signature Trump activities, from the pardon of former Sheriff Joe Arpaio to the practices of the Presidential Advisory Commission on Election Integrity (a.k.a. the “Pence-Kobach Commission”), the issuance of a new travel ban just weeks before the Supreme Court was scheduled to hear oral argument on the last one may sit uneasily with one’s sense of proper Executive Branch respect for the judiciary.  Yet, just as with those other matters, there are ways to see the timing of the new travel ban as cause for special concern about this White House’s approach to the courts, and ways to see it as fairly ordinary Executive practice.  It’s important to spell out these different views and to consider why, at this point, each could be valid. 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.

The TRAVEL BAN

President Trump issued a new order restricting travel to nationals from eight countries yesterday, replacing the previous order which was due to expire yesterday and imposing indefinite restrictions on travel for most citizens from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and subjecting Venezuelan citizens to heightened security checks. Devlin Barrett reports at the Washington Post.

“Making America Safe is my number one priority,” Trump tweeted yesterday, linking to a presidential proclamation issued on the same day. It is unclear how the new order will affect the legal challenge by the American Civil Liberties Union (A.C.L.U.), which is due to be considered by the Supreme Court next month. The BBC reports.

The restrictions on the new countries included in the order and the revised waiver policy are set to take effect on Oct. 18; existing visa-holders are exempt from the travel ban and waivers remain available for travelers with ties to the U.S., however the order seems to have narrowed the exemptions. Josh Gerstein and Ted Hesson report at POLITICO.

The new order is more targeted than the president’s previous orders, according to officials, tailoring travel restrictions depending on nationality, with officials expecting that the inclusion of two non-Muslim countries would overcome the charge that it was an unconstitutional ban on Muslims. Laura Meckler reports at the Wall Street Journal.    

Critics of the original ban expressed similar concerns about the new order, the executive director of the A.C.L.U. Anthony D. Romero arguing that the inclusion of North Korea and Venezuela “doesn’t obfuscate the real fact that the administration’s order is still a Muslim ban.” Michael D. Shear reports at the New York Times.

The restriction on North Korea is largely symbolic as most North Koreans in the U.S. are based at the United Nations and North Korea generally does not allows its ordinary citizens to travel abroad. The AP reports.

Iraqi citizens are no longer included in the travel ban but will face heightened security checks, restrictions on citizens from Sudan were also removed. Jeff Mason and Phil Stewart report at Reuters.

“The State Department will coordinate with other federal agencies to implement these measures in an orderly manner,” Secretary of State Rex Tillerson said in a statement yesterday, Laura Jarrett and Sophie Tatum report at CNN.

The Supreme Court could avoid deciding on the travel ban legal case altogether, according to legal experts, the new order potentially allowing the court to consider the case no longer a live issue. Lawrence Hurley reports at Reuters.

A summary of who is affected by the entry restrictions is provided by Marty Lederman at Just Security.

NORTH KOREA

An attack on the U.S. mainland is “inevitable,” North Korea’s Foreign Minister Ri Yong-ho said Saturday during a speech to the U.N., on the same day the U.S. flew eight warplanes close to North Korea’s eastern coastline while remaining in international airspace, according to a statement by the Pentagon. Farnaz Fassihi and Ben Kesling report at the Wall Street Journal.

“This is the farthest north of the Demilitarized Zone (D.M.Z.) any U.S. fighter or bomber aircraft have flown in the 21^st century,” Pentagon spokesperson Dana White said Saturday, adding that the mission demonstrates “U.S. resolve” and sends a “clear message that the President has many military options to defeat any threat.” John Bowden reports at the Hill. Continue Reading »

Based on my very quick and preliminary reading of the President’s new proclamation, below is my summary of who is affected.  I’ll update and correct this post as warranted.  I wrote earlier today about the likely impact of the new restrictions on the cases pending in the Supreme Court.  [UPDATE:  Solicitor General Noel Francisco just sent the following letter to the Clerk of the Supreme Court.  His proposal–that all parties simultaneously brief the impact of the new rules on Thursday, October 5–is rather odd.  After all, he’ll be filing his reply brief on Tuesday, October 3, and the parties, Justices and clerks will be spending the next couple of weeks preparing for the scheduled October 10 oral argument–an argument that might never happen.  One might have thought the SG would instead file a brief now, or in the next few days, explaining to the Court why the cases are moot, and thereby save everyone the trouble of so much unnecessary work so close to oral argument.]:

Dear Mr. Harris:

Earlier today, the President issued the attached Proclamation, pursuant to Section 2(e) of Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (Order). The Proclamation takes effect (with certain exceptions) today, September 24, 2017, following the expiration of the 90-day entry suspension in Section 2(c) of the Order, which ends today. See pp. 26-27. As the Proclamation explains, it was issued after the completion of a worldwide review conducted under Section 2(a) of the Order to determine what additional information (if any) is needed from each foreign country to assess whether that country’s nationals who seek to enter the United States pose a security or safety threat. See pp. 1-7. At the recommendation of the Acting Secretary of Homeland Security, and in consultation with the Acting Secretary, the Secretaries of State and Defense, and the Attorney General, the Proclamation imposes certain conditional restrictions on entry into the United States of nationals of a small number of countries based on the President’s findings regarding those countries’ information-sharing capabilities and practices and other serious terrorism-related risks the countries present. See pp. 7-27. The government respectfully suggests that the Court direct the submission of simultaneous supplemental briefs from the parties, to be filed no later than 5:00 p.m. on October 5, 2017, addressing the effects of the Proclamation on the issues currently pending before the Court in these cases.

 

Sincerely, Noel J. Francisco, Solicitor General]

The entry of nationals of Sudan is no longer restricted.

The entry of the nationals of seven nations as immigrants is suspended indefinitely:  Iran, Libya, Somalia, Syria and Yemen, all of which were subject to the March entry ban, as well as Chad and North Korea, which were not covered by the earlier ban.  An “immigrant” is defined in the Proclamation as someone admitted on an immigrant visa, who would, when in the U.S., become a lawful permanent resident.

The entry of nonimmigrants is suspended as to some or all of the nationals of seven countries.  In descending order of the comprehensiveness of the suspension:

The entry of nonimmigrants of the nationals of North Korea and Syria is suspended, without any country-specific categorical exceptions.

Nationals of Iran may not enter as nonimmigrants except under valid student (F and M) and exchange visitor (J) visas.  Iranian nationals entering under those three forms of visas will be “subject to enhanced screening and vetting requirements.”

Nationals of Chad, Libya and Yemen may not enter as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, but may otherwise enter as nonimmigrants.  This restriction applies as well to a small number of Venezuelan nationals — officials of Venezuelan agencies involved in screening and vetting procedures, including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations, as well as their immediate family members.

All other nationals of Venezuela who are visa holders will be subject to appropriate additional measures to ensure their traveler information remains current.

And “additional scrutiny” will be applied to the visa adjudications and entry decisions regarding Somali nationals, “to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”

* * * *

The suspensions will generally become effective at 12:01 a.m. eastern daylight time on October 18, 2017, except that their effect is immediate–i.e., continuing–for anyone in the covered categories whose entry was already barred by Section 2(c) of the March Executive Order as of this morning (that is to say, covered nationals of Iran, Libya, Somalia, Syria and Yemen who lack a credible claim of a bona fide relationship with a person or entity in the United States).

The suspensions will be regularly reevaluated, and no less frequently than every six months.

* * * *

As I read the proclamation, the various entry suspensions listed above do not apply to the following:

i. Lawful permanent residents of the United States.

ii. Persons who are inside the United States at 12:01 a.m. eastern daylight time on October 18, 2017.

iii.  Persons who have a valid visa at 12:01 a.m. eastern daylight time on October 18, 2017.

iv.  Any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on October 18 or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission.

v.  Any dual national who is traveling on a passport issued by a country other than the eight covered countries.

vi.  Anyone admitted to or paroled into the United States on or after October 18.

vii.  A person traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa.

viii.  A foreign national who has been granted asylum by the United States.

ix.  A person who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

x.  A person who has already been admitted to the United States as a refugee.  [It’s not clear to me what the limiting effect of “already” is supposed to be, because Section 6(e) specifies that an individual otherwise covered by the suspensions may continue to seek refugee status.]

xi.  Any person granted a “case-by-case,” individualized waiver by a consular officer or CBP official, which “may be granted only if [the] foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that: (A) denying entry would cause the foreign national undue hardship; (B) entry would not pose a threat to the national security or public safety of the United States; and (C) entry would be in the national interest.”

Five relevant government documents:

1. Proclamation: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats
2. Responses to Queries (RTQ) – For Internal Use Only
3. Fact Sheet and FAQ (0924) – Bullets
4. Fact Sheet V.11 – Narrative
5. Press Release President Donald J. Trump Announces Enhanced National Security Measures

By the time you read this, the heart of the so-called “travel ban” will probably be no more.

Since June 29, the Executive branch, acting pursuant to Section 2(c) of Executive Order 13,780, has prohibited the nationals of six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the United States unless they have a bona fide relationship with a person or entity in the United States.  Section 2(c) expires 90 days after its “effective date,” which, according to a June 14 presidential memorandum, was the morning of June 26, the date and time at which the Supreme Court partially stayed preliminary injunctions against its operation.  The entry ban, in other words, expires this morning, at approximately 10:30 a.m.  Therefore, unless and until the President acts further, nationals of the six nations who do not have a bona fide relationship with a person or entity in the United States will once more be permitted to enter the United States under the same terms and conditions as they could before June 29.  (A separate entry ban, applying to all refugees who lack such a bona fide relationship with a person or entity in the United States, expires in one month, on October 24.)

By all accounts, however, the President will soon act to impose new conditions and limitations on entry.

According to a July 12 State Department cable, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, provided a report to the President in early July outlining what information was deemed needed from every country on earth “in order to sufficiently vet the nationals of that country in order to obtain a visa, admission at a port of entry, or other immigration benefit.”  That report “prioritize[d] country engagement based on certain risk factors,” and recommended new standards “related to (1) identity management and (2) information sharing on security and public safety threats.”  The report also included a classified list of countries preliminarily assessed as not meeting the report’s new standards, as well as a list of other countries deemed to be “at risk” of not meeting them.

On or shortly after July 12, the State Department asked virtually every government on the planet to “provide the requested information or develop a plan to do so.”  The contemplated 50-day period for consultation and communications with all those nations ended on or shortly after August 31.   According to government officials, governments the world over were told that if they failed to comply with the U.S. requests within those 50 days, their nationals would face the threat of “severe travel restrictions.”

Most countries reportedly satisfied the U.S. conditions during that period (they “added measures to improve security for passports and to better identify potential terrorist threats”), but others “either could not meet the tougher vetting standards or willfully refused to engage with the United States government.”  The nationals of the latter group of countries therefore will soon be subject to a reported “spectrum” of new conditions and limitations on their entry into the United States.  It apparently will not be one-size-fits-all:  The new rules are “tailored and specific to each country,” said Miles Taylor, counselor to the DHS secretary.

As of Friday afternoon, the government was not yet ready to announce what that “spectrum” of new rules would be, nor which countries’ nationals they will cover.  Some of the original six Muslim-majority counties presumably will  be affected, but others might not be, and the new rules reportedly will apply to some countries that were not among the original six.  According to Laura Meckler, the President has tentatively approved restrictions for the nationals of nine nations, including more than one that is not majority Muslim.

What if the President, DHS and State are not prepared to impose the new rules by this morning?  According to Chris Geidner, a White House principal deputy press secretary acknowledged that “[t]here are some contingency plans” in that case, but “he wouldn’t say what those are.”

In any event, the new rules will likely be in place by October 3, and therefore the Solicitor General presumably will explain them to the Supreme Court in the reply brief he files that day in the consolidated cases challenging the Section 2(c) entry ban.

What happens to the cases then?  I assume they will be moot, at least as to Section 2(c), because the challenged government action will simply no longer be operative and thus there will be no ongoing dispute about whether it should be enjoined.  Likewise, Section 6(b)’s cap of 50,000 refugees in Fiscal Year 2017 will be moot as of this coming Saturday, when that fiscal year ends.  (Sometime this week, the President will set a new quota for the Fiscal Year 2018 that begins October 1.  Reports are that it might be substantially lower than 50,000–that DHS has recommended 40,000 and that Stephen Miller has pushed for 15,000.)  The third challenged provision–the Section 6(a) moratorium on entry of refugees–expires on October 24, two weeks after the scheduled October 10 oral argument, and so that will soon be moot, too.

To be sure, the forthcoming new restrictions and conditions on entry might themselves be subject to legal challenge, including on the statutory question that has (properly) become the lead argument in the current cases, namely, whether 8 U.S.C. 1182(f) authorizes the President’s actions.  Perhaps it will be appropriate to raise those challenges in the existing suits, or perhaps it will be necessary to file new cases, involving new plaintiffs–that all depends on what the terms of the new rules are, who they affect, and how.  One thing is fairly certain, however:  As I wrote back in June, the new challenges will be based on a different factual record, different national security assessments, and, presumably, different restrictions affecting different (if perhaps overlapping) sets of immigrants, families and institutions.*

______________________

*The Solicitor General argues that if the Court does conclude that the appeals are moot, “the appropriate course would be to vacate the courts of appeals’ judgments upholding the injunctions barring enforcement of Section 2(c).”  For substantially the reasons offered in Part III of Seth Waxman’s brief on behalf of FedCourts scholars, I think the more appropriate course would be not to vacate the court of appeals’ judgments.  If a party chooses to invade the legal rights of another party for only a short period of time—a period that does not allow for the full scope of appellate litigation, up to and including the Supreme Court’s disposition after full briefing and argument, absent extraordinary expedited proceedings—that party should not be entitled to have any adverse judgments vacated simply by virtue of the fact that it chose not to extend its conduct for a longer period and that the plaintiffs chose to seek only injunctive relief.

That said, I have serious doubts whether the question of vacatur will have much, if any, practical effect on any subsequent litigation in this context, especially because the federal government is not subject to nonmutual collateral estoppel and because the follow-on litigation is likely to be resolved, in the end, by en banc courts of appeals and/or the Supreme Court, such that any stare decisis impact from the past preliminary injunction proceedings will be limited, at best.  I therefore would not be surprised if the Court vacates the lower court judgments.

 The Trump-Russia saga has more characters than War and Peace and plot twists harder to follow than Game of Thrones. So making sense of the latest news – that the FBI had taken out not one, but two surveillance orders under the Foreign Intelligence Surveillance Act (FISA) on former Trump campaign chairman Paul Manafort – can be difficult to put into context. But in fact, this new piece of information actually can help connect the counterintelligence and criminal investigations that Special Counsel Robert Mueller is overseeing, and show how a FISA warrant may have played a role in each.

I have already provided a detailed description of the (onerous) process of obtaining a FISA order, and the legal standards it requires. The only thing to add in Manafort’s case is that since he is a U.S. person (or USPER, in intel slang), the standards to obtain a FISA warrant on him are slightly higher than the generic process I described in my earlier piece. First, the probable cause standard required the FBI to provide evidence that Manafort was “knowingly engaging in clandestine intelligence activities” (rather than merely being “an agent of a foreign power”)– in other words, that he wasn’t just acting on behalf of a foreign power, but that he was doing so with full knowledge that what he was doing involved spying. Second, in order to continue monitoring Manafort, the FBI would have been required to check in with the FISA court every 90 days and show that their surveillance had, in fact, produced foreign intelligence information. Only with this continuing, additional evidence would the FISA order be renewed for an additional 90 days at a time.  Continue Reading »

Trump-Russia Investigation

• Max Bergman, How Facebook Could Crack the Trump-Russia Case
• Andy Wright, The Cobb-Dowd BLT Summit Heard ’Round the World
• Renatto Mariotti, Former Federal Prosecutor Dissects Trump Lawyer, Michael Cohen’s Statement to Senate
• Ali Cooper-Ponte, What Does it Mean that Mueller Got a Warrant to Obtain Facebook Data?

Drone Policy

• Luke Hartig, Trump’s New Drone Strike Policy: What’s Any Different? Why It Matters
• Lt. Col. Alan Schuller, Autonomous Weapon Systems and the Decision to Kill

US Operations, Civilian Casualties and the War in Syria

• Adil Ahmad Haque, A Careless Attack on the UN’s Commission of Inquiry on Syria

Libya and War Crimes

• Alex Whiting, Smoking Gun Videos Emerge: US Citizen, Libyan Warlord Haftar Ordering War Crimes
• Beth Van Schaack, Libya’s Haftar and Liability of Superiors: Ordering Offenses v. Responsibility for Omissions

Trump Administration and UN General Assembly

• Jennifer Norris, Why Trump Should Support the UN, Even in the Era of “America First”

9/11 Military Commissions

• Steve Vladeck, Two Powerful Speeches from the NATSECDEF Conference

National Security Law Podcast

• Steve Vladeck, Episode 37 of the National Security Law Podcast: Enemy Combatants, Agents of Foreign Powers

The Wall Street Journal and CNN recently reported that Facebook provided data about Russian advertising purchases made in the run-up to the 2016 election to Special Counsel Robert Mueller pursuant to a search warrant. According to the WSJ and CNN reports, Facebook produced copies of the ads, detailed information about the accounts that purchased the ads, and information about how the ads were targeted at Facebook users in the United States. Mueller’s choice to send Facebook a warrant and not a subpoena or a (d) order under the Electronic Communications Privacy Act (ECPA) (though he certainly may have sent Facebook and other providers additional legal process, including subpoenas and (d) orders) provides insight into the kind of information he may have been seeking and the kind of information he may have obtained.

Under its policies, Facebook requires a probable cause warrant to “compel the disclosure of the stored contents of any account, which may include messages, photos, videos, timeline posts, and location information” to the government. This is because Facebook, like other large tech companies, has adopted the Sixth Circuit’s interpretation (in United States v. Warshak) of ECPA and the Fourth Amendment as requiring a warrant to obtain emails. This matters because Congress enacted ECPA in 1986, when Mark Zuckerberg was just two-years old, roughly 15 years before Facebook would be conceived in a Harvard University dorm. ECPA has not been updated since, and, as a result, technology companies and courts are tasked with applying its antiquated language to govern the compelled disclosure of data held by modern tech companies like Facebook.

Under ECPA, Facebook would have disclosed some information to Mueller without a warrant, though some form of legal process is still required. For example, information that falls into the category of “basic subscriber information,” such as the information a user provides at account creation, like a name and email address, is obtainable with a subpoena issued under a “relevance” standard and without judicial review. That is, the information sought must have some connection to the investigation at hand. This is a low bar, and, under United States v. R. Enterprises, there is a presumption that a subpoena issued by a grand jury, such as the one Mueller impaneled, is reasonable. Meanwhile, “records and other information,” is something that Mueller would have been able to obtain using a 2703(d) order, which requires “specific and articulable facts showing reasonable grounds to believe” that “the records or other information sought are relevant and material to an ongoing criminal investigation.” This is a higher standard than the subpoena relevance standard, and (d) orders are subject to judicial review, but this is still lower than the probable cause standard of review required for a warrant. Consequently, a (d) order is insufficient to obtain content information stored by providers, like emails. This reflects Congress’ attempt to weigh the privacy interests an individual might have in information shared with a provider. Congress viewed content information, like correspondence, as deserving of greater protection than subscriber or billing information.  Continue Reading »