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Senate Judiciary Hearing on Legislation to Insulate Special Counsels

Momentarily, the Senate Judiciary Committee will begin a hearing on “Special Counsels and the Separation of Powers,” where the principal focus will be on the two pending bills designed to protect Special Counsels (like the one pictured above) from being terminated without good cause — Senator Graham and Senator Booker’s “Special Counsel Independence Protection Act,” and Senator Tillis and Senator Coons’s “Special Counsel Integrity Act.” Both bills would provide that, when the Attorney General believes he has cause to remove the Special Counsel under 28 C.F.R. 600.7(d), that decision would ultimately be subject to review by a three-judge D.D.C. district court. The major difference between the proposals is when that review would happen, but the basic structural idea is the same.

The witnesses (with links to their prepared testimony) are Yale Law School’s Akhil Amar, UVa Law’s John Duffy, Chicago Law’s Eric Posner, and yours truly. (For helpful additional background on the issue and the bills, see Marty’s thorough post from August.)

The Committee’s website promises a livestream of the video once the hearing begins, which should be available at this link.

Credit: Alex Wong / Getty Images

How Obama’s Drones Rulebook Enabled Trump

In Trump’s New Drone Strike Policy: What’s Any Different? Why It Matters, Luke Hartig astutely flags some – but not all – of the key dangers in the Trump administration’s reported plan to rescind many, if not most, rules for US lethal operations against terrorism suspects outside conventional warzones. What Hartig largely ignores is how flaws in the existing targeted killing policy, crafted under President Barack Obama, helped pave the way for President Donald Trump to kill more civilians.

“Based on initial reports, it’s actually not nearly as bad as we might have feared,” Hartig writes of the proposal, which would make it easier for the United States to kill more people off the battlefield with less oversight, greater secrecy, and no due process. Hartig notes that the plan is more tempered than Trump’s campaign vow to “take out” not only Islamic State members but also their families. That’s a perilously low bar to assess a dismantling of already insufficient rules for a program that has killed thousands of people in countries including Pakistan, Somalia, and Yemen—the vast majority of them during Obama’s presidency. Debates rage over how many of those were killed lawfully and how many were civilians.

The Trump administration proposal, reportedly advanced by his top national security advisers, would scrap protections that Obama approved in 2013 for lethal targeting, including the core requirement that the target pose a “continuing, imminent threat” to American lives. In an exclusive New York Times report, the Trump team rationalizes that dropping this safeguard will allow the US to kill not only the people it deems to be in the top echelon of a terrorist group but also those it considers lower-level members, even if they are far from any battlefield, and in countries such as Nigeria and the Philippines where the US is not already conducting such strikes. That Obama rule was already a fig leaf, as I explain shortly, but it may have been better than nothing.  Continue Reading »

Six Reasons Why the US and Other States Should Support an Independent, International Inquiry on Yemen

 

This week, governments will vote at the United Nations on whether to create an international commission of inquiry on Yemen. In recent weeks, 67 international, regional, and Yemeni NGOs urged the UN Human Rights Council to establish an independent inquiry into serious allegations of human rights and humanitarian law violations—a call that Canada, the Netherlands, and China have echoed. It is critical that the United States and other states support the creation of this commission so that Yemenis can have a credible mechanism to advance their rights to truth and accountability. The UN commission would also aid states in fulfilling their legal obligations to ensure proper investigations, facilitate comprehensive investigations of abuses by all sides, support peace efforts, complement existing bilateral efforts to improve international law compliance, and ensure that the UN Human Rights Council fulfills its mandate to respond to human rights emergencies.

Many others have rightly called for an independent, international inquiry on Yemen: 14 members of U.S. Congress led by Rep. Ted Lieu (D-Calif.), the UN High Commissioner for Human Rights, the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, the Special Advisers to the UN Secretary General on the Prevention of Genocide and on the Responsibility to Protect, and an independent panel of UN Security Council-mandated experts. At times, even members of the Saudi-led coalition at war in Yemen have themselves recognized the need for an independent inquiry. The United Arab Emirates, for example, reportedly said that it would “welcome any independent international investigation into” the bombing of a boat carrying Somali refugees off the coast of Yemen in March.

Some readers may be feeling a sense of déjà-vu about this UN vote: This is not the first time it has come before the Human Rights Council. In 2015 and 2016—as the war in Yemen descended into complete calamity, its population subject to relentless bombing, mass arbitrary detention, famine, cholera, and impunity for every violation—the Council was called upon to decide on this issue. Yet Saudi Arabia and allied countries, in particular the US and the UK, repeatedly used their positions on the Human Rights Council to block any inquiry, and there is a risk they will now try to do so again.

An independent UN commission of inquiry is urgently needed. The people of Yemen are being battered from all sides. According to a recent UN report, 4,983 civilians have been killed and 8,553 injured in more than 1,000 incidents since March 2015. A man-made famine and a cholera epidemic have claimed the lives of thousands more, and, as an independent panel of experts mandated by the UN Security Council reported in January, all sides are committing “widespread violations” of international law in Yemen.

These reports confirm the findings of organizations who have been carrying out independent research on the ground since the outbreak of the conflict, such as the Mwatana Organization for Human Rights (co-authors of this blog, Radhya Almutawakel and Abdulrasheed al-Faqih are respectively chairperson and executive director of Mwatana), Amnesty International, Human Rights Watch, and others (see, for example, here, here, here, here, and here).

UN Commissions of Inquiry should only ever be part of a more comprehensive response to dire human rights emergencies, and always come with limitations. For example, UN commissions of inquiry ordinarily lack any formal power to enforce accountability, often face challenges carrying out investigations due to a lack of cooperation by the parties to a conflict, and may take some time to investigate and report their findings.

However, they perform essential functions as a credible, authoritative source of violations by all parties to a conflict and help focus the attention of the international community on a dire human rights emergency. By helping to uncover the truth through rigorous investigation they benefit victims, and provide the whole of society with a crucial and detailed historical record. Commissions of inquiry also go beyond conventional or narrower investigations by reporting on patterns of abuse, and identifying both the root causes of violations and the linkages between peace and security and human rights. As such, they are ideally placed to make recommendations for fuller accountability.

This post sets out six specific reasons why the US and other states, especially those close to the Saudi coalition, should support—or at the very least, not obstruct—the establishment of an independent, international commission of inquiry into Yemen. They are:  Continue Reading »

The Early Edition: September 26, 2017

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

NORTH KOREA

The U.S. has declared war on North Korea and North Korea has “every right to make countermeasures,” North Korea’s Foreign Minister Ri Yong-Ho told reporters in New York yesterday, stating that a tweet by the president at the weekend was a proclamation of war and adding that Pyongyang’s right to respond extends to shooting down U.S. strategic bombers, “even if they are not yet inside the airspace border of our country” – referring to a the flight of eight U.S. warplanes near North Korea’s coastline on Saturday. Farnaz Fassihi reports at the Wall Street Journal.

The international community “should clearly remember that it was the U.S. who first declared war on our country,” Ri also told reporters yesterday, adding that “the question of who won’t be around much longer will be answered then.” Edith M. Lederer reports at the AP.

The U.S. has not declared war on North Korea and “frankly the suggestion of that is absurd,” White House press secretary Sarah Huckabee Sanders said yesterday in response to Ri’s comments, the BBC reports.

It is “never appropriate to shoot down a country’s aircraft when it’s over international waters,” Sanders also said yesterday, emphasizing that the U.S. seeks a peaceful resolution to the crisis on the Korean peninsula, separately Pentagon spokesperson Col. Robert Manning told reporters that if North Korea did not stop its provocations the Pentagon would make sure that the president would be provided with options “to deal with North Korea.” Rick Gladstone and David E. Sanger report at the New York Times.

North Korea appears to have bolstered its defenses on its east coast following the flight of U.S. warplanes near the Korean peninsula at the weekend, according to the South Korean Yonhap news agency, which has not been immediately confirmed by South Korea’s National Intelligence Service. Christine Kim and Christian Shepherd report at Reuters.

Russia’s Foreign Ministry has been “working behind the scenes” to find a political solution to the North Korea threat, the R.I.A. news agency cited a senior Russian diplomat as saying. Reuters reports.

“Fiery talk can lead to fatal misunderstandings,” Stéphane Dujjaric, the spokesperson for the U.N. Secretary-General António Guterres, warned yesterday, reflecting fears that a miscalculation could lead to military confrontation. Carol Morello reports at the Washington Post.

“It’s getting too dangerous,” China’s ambassador to the U.N. Liu Jieyi said yesterday, responding to comments made by Ri and emphasizing that the crisis could only be resolved through negotiations. Reuters reports.

Twitter stated that the president’s tweet about North Korea did not violate its terms of service, adding that, among other considerations, the social media company looks at whether a tweet is of “public interest.” Alex Johnson reports at NBC News.

IRAN

“As far as we can see, it did not happen,” a Trump administration official said yesterday in relation to reports from Iran at the weekend that the country launched a new ballistic missile. Barbara Starr reports at CNN.

The demise of the 2015 Iran nuclear agreement “would be a major loss,” the E.U. envoy in Washington David O’Sullivan said yesterday, joining the British, French and German ambassadors to Washington in support of the deal amid signals that the Trump administration is considering withdrawing. Patricia Zengerle reports at Reuters. Continue Reading »

Just Security Is Excited to Welcome Five New Editors

 

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 »

National Security-Related Congressional Hearings, September 25-30

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 »

Three Half-Truths on U.S. Lethal Operations and Policy Constraints

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 »

What Does the New Travel Ban Say About Trump’s Relationship to Judges? Stay Tuned…

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 »

The Early Edition: September 25, 2017

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

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 21st 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 »

The New Entry Suspensions and Restrictions: A Synopsis (with Update on SG Letter to Court)

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