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Better Never Than Late? The D.C. Circuit’s Problematic Standing Holding in Klayman

This morning, nearly 10 months after it was argued, the D.C. Circuit finally handed down its decision in Obama v. Klayman—the government’s appeal of Judge Leon’s December 2013 ruling that had held that the pre-USA FREEDOM Act metadata program violated the Fourth Amendment. The three D.C. Circuit judges produced four opinions, but here’s the nutshell:

  1. The panel (Brown, Williams, & Sentelle, JJ.) unanimously (a) held that the case was not mooted by the enactment of the USA FREEDOM Act; and (b) that the district court’s injunction could not stand;
  2. Judge Brown concluded that the plaintiffs had not met the “higher burden of proof required for a preliminary injunction” with regard to their standing, and so remands to the district court to give the plaintiffs an opportunity to meet that burden;
  3. Judge Williams largely agreed with that part of Judge Brown’s analysis, and “join[ed] Judge Brown in remanding to the district court for it to decide whether limited discovery to explore jurisdictional facts is appropriate”; and
  4. Judge Sentelle concluded that the plaintiffs clearly lacked standing and could not cure that defect on remand, and so the case should be dismissed.

Given the intervening passage of the USA FREEDOM Act, the practical impact of today’s decision is limited at best (and leaves one to wonder what the heck took so long). The case will go back to the district court, but one has the sense that the plaintiffs will have a hard time meeting the burden that Judges Brown and Williams have imposed—and so the merits of the challenge to the pre-USA FREEDOM Act program will go unreached, at least in the D.C. courts.

But lest folks think the story ends there, the underlying theory behind each of the three judges’ standing analysis could have significant implications in future cases seeking to challenge secret government programs, and, perhaps, in all cases seeking preliminary injunctive relief. Below the fold, I explain why. Continue Reading »

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Armed Drones and the Influence of Big Business on Police Surveillance Technology

On Wednesday, the Daily Beast reported that the North Dakota state legislature recently passed a bill allowing law enforcement drones to carry less-than-lethal weapons. In theory, this means that unmanned aircrafts toting bean bags, tasers, pepper spray, rubber bullets, and tear gas could soon be coming to a state near you (at least if you live in Montana, South Dakota, or Minnesota).

Given the physical challenges associated with shooting a projectile from a small flying object, a drone firing bean bags from above may in fact be about as likely as a “shark with a frickin’ laser beam” attached to its head. Nevertheless, this latest development is concerning in part because it showcases a trend: The increasing influence of technology companies and other business interests on the development of surveillance policy is creating significant consequences for civil rights and civil liberties.

The North Dakota bill, for instance, originally banned all weapons on drones, lethal or not, and required police officers to get a search warrant before using a drone to look for criminal evidence. But the weapons ban changed once a police association lobbyist started visiting the state chamber, backstopped by local business interests.

In one hearing, a representative of a local economic development group criticized both the ban on weapons and the search warrant requirement on business grounds. He testified that it would be “a negative in terms of companies looking and investing in opportunities in the state of North Dakota” if the bill were to restrict drone manufacturers from modifying their products to carry weapons, or law enforcement from using them without a warrant (though the warrant requirement did ultimately survive).

If some residents are less than pleased that the open skies of North Dakota could be populated by drones bearing pepper spray and tear gas — well, that’s the cost of attracting businesses to the Peace Garden State. Continue Reading »

News Roundup and Notes: August 28, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

An Islamic State suicide bomber killed two Iraqi army generals yesterday as they headed up forces against militant positions in the country’s restive Anbar province, outside of Ramadi, military officials said. [AP; New York Times’ Tim Arango]

The UN is moving forward with its plans to investigate the use of chemical weapons in Syria; Secretary General Ban Ki-moon told the Security Council yesterday that he will set up a three person team to conduct the probe. [AFP]

The YPG has launched an offensive against ISIS into territory in northern Syria, testing the US and Turkey’s plan to establish a “safe zone” in the area which excludes Kurdish forces. [NOW]

Mosul’s top Iraqi army officer stayed on vacation last summer, despite repeated warnings that ISIS was intending to seize control of the northern city. An Iraqi parliamentary report also found that the officer’s units had under a third of the soldiers they were supposed to have on the day of battle, reports Loveday Morris. [Washington Post]

The UN’s humanitarian chief has called on the Security Council to do everything in its power to encourage a diplomatic solution to the conflict in Syria, describing the suffering of civilians there as “needless and immense.” [UN News Centre]

Iraq’s prime minister, Haider al-Abadi ordered the military to make it easier for civilians to get into Baghdad’s Green Zone, a heavily defended district of the city, home to many official buildings. [Reuters]

The targeting of ISIS hacker Junaid Hussain “shows the extent to which digital warfare has upset the balance of power on the modern battlefield,” write Margaret Coker et al, discussing the important role the Briton played in the group’s cyber force. [Wall Street Journal]

Realistic predictions about the duration of the fight against the Islamic State are not well received by the White House or Congress; Dan De Luce explores whether America is “ready for an endless war” against the militant group. [Foreign Policy]

America might find that the price of using Turkish bases to launch strikes against ISIS in Syria “may well be too high in the long run,” opines Eric S. Edelman, adding that the US must use its leverage to pressure Turkish leaders if the country “is to avoid being sucked into the vortex created by a failed Syria policy and [President Recep Tayyip Erdogan’s] dogged quest for absolute power.” [New York Times] Continue Reading »

The government’s baffling brief in Ba Odah

Tariq Ali Abdullah Ba Odah is a detainee at Guantánamo who the government has determined to be a member of al Qaeda and/or Taliban forces.  Ba Odah filed a petition for habeas corpus to challenge that determination, but he never made efforts to defend the petition (he filed no traverse in response to the government’s factual return and sought no discovery), and he voluntarily dismissed it in March 2014.  Even so, the President’s GTMO Task Force concluded that Ba Odah ought to be transferred back to his home nation of Yemen, or elsewhere, if and when “the security situation in Yemen improves[] [or if] an appropriate rehabilitation program or third-country resettlement option becomes available[.]”  A State Department spokesperson recently said that the administration was working on finding a nation to which it might transfer Ba Odah; however, according to Charlie Savage, the State Department apparently does not yet “have any deal in place to relocate Mr. Ba Odah.”

Ba Odah has been on a hunger strike since 2007, during which time his weight has dropped from 133 to 74 pounds.  In June 2015, Ba Odah’s attorneys made a motion to Judge Thomas Hogan to “reinstate” his habeas petition, and to order the government “to take all necessary steps to facilitate his release from Guantánamo without further delay,” in light of his deteriorating medical condition.

The Department of Justice has opposed the motion, in a memorandum that was publicly filed in slightly redacted form on Monday.  Much of that brief is fairly unremarkable.  The government acknowledges that Ba Odah’s “current health” is “poor,” and that the GTMO Senior Medical Officer “remains very concerned” about Ba Odah’s declining health.  Yet when it comes to the most important legal question in the case, the brief is strangely silent:  Except for a conclusory sentence in the introduction, the government does not say whether or not Ba Odah is legally entitled to medical repatriation or transfer based upon the criteria listed in Article 110 of the Third Geneva Convention–namely, whether he is unlikely to recover his health within one year, and whether his mental or physical fitness seems to have been gravely diminished.  Instead, the government argues that the habeas court is disabled from even considering such questions.  Such an argument–that the habeas courts must stay out of the picture altogether–has, to say the least, not fared well when the government has previously raised it in the context of GTMO (see, e.g., Boumediene).  It is unlikely to carry the day this time, either, particularly because the government cites virtually no authority in support of it.  Moreover, and as I explain further below, the most disconcerting thing about the government’s position is that although it insists that Judge Hogan defer to the Executive’s determination on the legal question . . . it never explains what that determination is. Continue Reading »

News Roundup and Notes: August 27, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

ISIS has seized five villages from Syrian rebels in northern Syria, gaining territory in an area where the US and Turkey intend to open a new front against the Islamist group. [Reuters]

A new 48-hour ceasefire has been agreed to by Syrian rebel forces and government troops to halt fighting in the western town of Zabadani. [Al Jazeera]

A British hacker for the Islamic State has died following a US airstrike in Syria, officials told the Guardian. The man, who fought under the non de guerre Abu Hussain al-Britani, was considered the second-most prominent UK citizen to join ISIS after the man known as “Jihadi John,” reports Spencer Ackerman.

The commander of a US-backed Syrian rebel group was killed by a car bomb yesterday in the Turkish city of Antakya. There was no immediate claim of responsibility. [Wall Street Journal’s Ayla Albayrak and Mohammed Nour Al Akraa]

US terrorism analysts have been “inappropriately pressured” by senior military and intelligence officials to present data about the fight against the Islamic State in positive terms, three sources familiar with the subject told The Daily Beast, report Shane Harris and Nancy A. Youssef.

Experts and medical professionals have given testimony which further supports claims that the Islamic State used a chemical agent – most likely mustard gas – in an attack on civilians in a town close to Aleppo last Friday. [The Guardian’s Kareem Shaheen and Spencer Ackerman]

Syria’s president Bashar al-Assad makes concerted efforts to persuade his people that the country will remain normal as long as he is in control, despite suffering growing losses, an approach which has proven “indispensable” to the regime. [Wall Street Journal’s Raja Abdulrahim]

US-led airstrikes continue. The US and partner nations carried out two airstrikes on Islamic State targets in Syria on August 26. Separately, military forces conducted a further 18 strikes on targets in Iraq. [DoD News]

US art dealers have been warned by the FBI to take care when purchasing antiquities from the Middle East, citing recent reports that collectors have been offered artifacts plundered by ISIS. [Reuters]

Sir John Chilcot has defended his long-delayed Iraq war inquiry, suggesting that the British government is partly to blame, though still failed to set a publication date, in a new statement. [The Guardian’s Ewen MacAskill and Richard Norton-Taylor]

The New York Times editorial board discusses the Islamic State’s crimes in Palmyra, concluding that “however daunting the struggles of the Middle East, ISIS stands out in the threat it poses to humanity.”

“Jihadi Trails: The Circuitous Routes Foreigners Take to Syria and Iraq;” profiles hosted at the Wall Street Journal.

IRAN

Sen Bob Corker said it is “very unlikely that [the GOP will] have a veto-proof majority to disapprove” the Iran nuclear deal, in light of growing support from Senate Democrats, in an interview with The Tennessean. Continue Reading »

The Alarming Gaps in Military Appellate Review

We pay a lot of attention on this blog to the Guantánamo military commissions and the principal structural defect in those tribunals as currently constituted, to wit, their power to try wholly “domestic” offenses (which a three-judge panel of the D.C. Circuit rejected in al Bahlul, but which the government is currently trying to resuscitate through a pending petition for rehearing en banc). We tend to pay far less attention to the other side of contemporary US military justice — the court-martial system — perhaps because we assume that, unlike the Guantánamo commissions, the structure and substantive scope of such criminal prosecutions of servicemembers is well-settled.

I’ve already blogged at some length about why the latter assumption is unfounded, especially vis-a-vis private military contractors. But as illustrated by a decision handed down last week by the Court of Appeals for the Armed Forces (CAAF) (hat tips to CAAFlog and Global Military Justice Reform), the structure of the court-martial system also remains a matter of significant controversy in one crucial respect: the unavailability of meaningful appellate review in many — if not most — cases. In the post that follows, I aim to explain both what the problem is, and why it should matter even to those of us with no connection to the military.  Continue Reading »

News Roundup and Notes: August 26, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

Kurdish peshmerga forces launched a fresh offensive against the Islamic State group in Iraq’s northern Kirkuk province today; the front line between the two sides has hardly moved in recent months. [Reuters]

Washington and Ankara have finalized details for the full inclusion of Turkey in the coalition against the Islamic State, Pentagon Press Secretary Peter Cook said yesterday. Airstrikes by Turkey are not expected to begin immediately. [Wall Street Journal’s Gordon Lubold and Dion Nissenbaum]

A Pentagon inquiry is looking into allegations that intelligence assessments about the US-led coalition against ISIS have been skewed by officials to suggest a more optimistic account of progress against the group, according to officials. [New York Times’ Mark Mazzetti and Matt Apuzzo]

The Syrian president, Bashar al-Assad is confident in the continued support of Russia for his regime, stating that Moscow has been “sincere and transparent” in its relationship, in an interview with Hezbollah’s al-Manar TV network. Assad also described the presence of Hezbollah fighters in Syria as “legitimate.” [AFP]

ISIS has released propaganda photos appearing to show the destruction of Baal Shamin temple in Palmyra, sparking outrage from historians and archaeologists, reports Kareem Shaheen. [The Guardian]

A powerful opposition force in Syria is posing a challenge to the US; the group, Ahrar al-Sham, or the Free Men of Syria, has vowed to combat ISIS and urged engagement with the West, but has its roots in militant Islam. [New York Times’ Ben Hubbard]

Parties to the Syrian conflict are “using water to achieve military and political gains,” according to a new report from UNICEF in which the organization says it has recorded 18 deliberate cuts to the public water supply in Aleppo this year. [New York Times’ Rick Gladstone]

“Palestinian refugees from Syria … are the shadow refugees” of the four-year civil war; Nina Strochlic explains that they are refused entry by all of Syria’s neighbors other than Turkey, and that the political motives behind the policies remain opaque. [The Daily Beast]

YEMEN

Houthi-allied army units fired a ballistic missile toward southern Saudi Arabia today, Houthi-run Al Maseera TV reported on twitter. Fighting between the Saudi-led coalition and the Iran-backed rebels has intensified recently. [Reuters] Continue Reading »

Does CISA Contain a Surveillance Law XSS Attack?

Skeptical concerns about the proposed Cybersecurity Information Sharing Act have, thus far, tended to fall into two main categories: Doubts about efficacy—most actual practitioners seem to think the law’s impact on network security would be marginal at best—and worries about the nature and volume of private data about users being funneled to the government (and intelligence agencies) by companies who opt to participate in the information sharing scheme contemplated by the law.  Precisely because I’m among the skeptics on the question of CISA’s efficacy, my anxiety about its privacy implications has been relatively tempered: Because I doubt it will yield much in the way of demonstrable benefit, I don’t expect the enactment of a liability shield will induce a huge number of companies to suddenly begin piping terabytes of data to the government, which itself has a less than stellar track record on data breaches.

Recently, though, I’ve been mulling over how CISA might interact with other provisions of electronic privacy law—in particular the Foreign Intelligence Surveillance Act—and gotten somewhat more concerned.  In web application security, a “cross site scripting” attack is a type of exploit wherein a site trusted by users (and, more importantly, the user’s browser) is tricked into delivering data to or from a malicious site controlled by the attacker.  It seems to me that a clever Justice Department lawyer might well be able to carry off a legal equivalent—injecting code from CISA into the operating instructions executed by the Foreign Intelligence Surveillance Court.  Here’s how. Continue Reading »

The Supreme Court, ISIS, and the War Powers

In the latest issue of the Atlantic, Yale Professor Bruce Ackerman has a provocative essay titled “Can the Supreme Court Force Congress to Own the War on ISIS?” Not surprisingly, his answer is yes. Although the Supreme Court has historically resisted intervening in disputes over the war powers, Ackerman flags two circuit court decisions toward the end of the Vietnam War (Berk v. Laird and Massachusetts v. Laird) recognizing that servicemembers facing imminent deployment to a combat zone had standing to challenge the legality of military force–even though those decisions both rejected the servicemembers’ claims on the merits. Assuming similar plaintiffs seek to challenge a future deployment to fight ISIS, Ackerman argues, the federal courts (and, eventually, the Supreme Court) will have the ability to consider the claim that the use of force against ISIS, without express statutory authorization, transcends the limits of the War Powers Resolution. As I explain below the fold, not only could I not disagree more emphatically, but I fear that Professor Ackerman’s argument is a very dangerous one, indeed. Continue Reading »

News Roundup and Notes: August 25, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

The Islamic State’s destruction of the ancient temple of Baal Shamin constitutes a war crime, UNESCO’s Director-General said, describing the incident as an “immense loss for the Syrian people and for humanity.” [The Guardian’s Kareem Shaheen]  “The ravaging of irreplaceable antiquities in Syria and Iraq has become something of a grim wartime routine,” writes Anne Bernard, discussing ISIS’s accelerated campaign against archaeological sites. [New York Times]

“Comprehensive” joint operations between the US and Turkey will soon begin against the Islamic State, including the provision of air cover for moderate Syrian rebels. [TIME’s Helen Regan]

At least 30 people have been killed for sodomy by the Islamic State, the executive director of the International Gay and Lesbian Human Rights Commission told the UN Security Council at a meeting in New York. [AP]

A new hotline has been launched in Iraq to respond to the humanitarian needs of those displaced by fighting in the country, particularly those scattered in hard-to-reach areas, UN humanitarian agencies announced yesterday.

Morocco and Spain arrested 14 people today, suspected of recruiting militants to travel to Syria and Iraq to fight for the Islamic State, the Spanish Interior Ministry said. [Reuters]

The New York Times editorial board opines that despite the “formidable” obstacles in the way of a political transition in Syria, the “serious interest” which has recently been expressed by relevant parties in finding a diplomatic solution must be seized upon, and “Russia and Iran bear a special responsibility” in moving it forward. Continue Reading »