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Is Money a Legitimate Target?

Last month, the United States targeted a “cash distribution site” where millions of dollars belonging to ISIS had reportedly been stored. The target was considered so valuable that it would have justified a high number of civilian casualties (rumors say that the magic number was 50). Yet, the determination of whether money is civilian or military in nature, assuming this test is even relevant, is not as straightforward as it seems.

The nature of money makes it difficult to ascertain its origin or purpose. Perhaps for this reason, the law of armed conflict does not assign a status — civilian or military — to money. However, the well-established rule that civilians cannot be targeted based solely on the ground that they pay taxes to the state suggests that money does not turn people (or objects) into legitimate targets.

The strike against ISIS’s money marks a departure from this traditional interpretation. We have little information about the target itself — one possibility is that it was the Diwan Bayt al-Mal, ISIS’s finances and currency authority —or the legal rationale behind the strike, but we may speculate on what it might have been.

Unless the building itself was the target, which does not seem to be the case, the strike supposes that money may constitute a legitimate target; i.e., that money could be either civilian or military in nature. Whether or not money constitutes a legitimate target would depend, I assume, on its projected use. Funds destined for the military effort would be regarded as a legitimate target, but funds earmarked for the wellbeing of the civilian population would not.

While it is virtually impossible to isolate funds destined for the military effort from the broader pool of resources in a state apparatus, the situation might be different in a terrorist organization. Continue Reading »

News Roundup and Notes: February 10, 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.

IRAQ and SYRIA 

The fight against ISIS. The US is facing the challenge of convincing Arab allies to contribute more to the fight against the Islamic State, Defense Secretary Ash Carter convening a meeting in Brussels tomorrow in “one of his biggest leadership tests” since entering office, report Michael S. Schmidt and Helene Cooper. [New York Times] UN member states must adopt a “strategic response” to ISIS that “includes addressing the underlying political and socio-economic causes of conflicts,” particularly in Libya and Syria, the UN Under-Secretary-General for Political Affairs told the Security Council yesterday. [UN News Centre]  And Saudi Arabia’s offer to send ground troops to Syria demonstrates that Riyadh considers the conflict there as a security issue. [Wall Street Journal’s Margherita Stancati and Ahmed Al Omran]

ISIS has claimed responsibility for its first attack on the Syrian capital, Damascus yesterday. The group claimed a car bomb attack targeting a policy officers’ club in the north of the city. Several people were killed and dozens injured. [New York Times’ Anne Barnard]

Director of National Intelligence James Clapper confirmed that ISIS has succeeded in making and using chemical agents in Syria and Iraq, during testimony before the Senate Armed Services Committee. [Fox News]

The battle for Aleppo may result in a new surge of refugees across the border into Turkey, warns the country’s leaders, Turkey’s foreign minister saying that the latest bout of fighting could force as many as 1 million Syrians to flee to Turkey. [Wall Street Journal’s Dion Nissenbaum] And up to 300,000 civilians could be cut off from humanitarian assistance if Syrian government forces succeed in encircling parts of the city, the UN has warned. [Reuters]

There is “little hope of a diplomatic breakthrough” while Russian-backed forces loyal to President Assad continue to heavily bomb Syria. The UN has already halted an attempt to negotiate a peace, while Senator John Kerry pushes for a ceasefire. [Reuters’ John Irish and Louis Charbonneau] Continue Reading »

Surveillance Is Still About Power

Since the Snowden revelations in 2013, surveillance has gone from a somewhat arcane term of art used mainly by scholars, spies, and tinfoil hat types, to a household word that now comes up in conversations on such far ranging topics as national security, law enforcement, advertising, education, health and fitness, and even toys. While the general concept appears straightforward — one party watching another — the conversation can quickly become bogged down in technical details that can easily confuse non-experts. But what we should not lose in the noise is the fact that surveillance is, at its core, about the establishment, use, and maintenance of power, a relationship Michel Foucault understood well.

Using the words “surveillance” and “power” in close proximity tends to make people uncomfortable, as it can inspire dark images of dystopias, real and imagined. For this reason, we often spurn this general association as alarmist or reactionary, and prefer instead to reserve this assessment to government abuses either long past or so egregious to make them highly unlikely, especially within western democracies. Post-Snowden, this aversion has been weakening, however, as our general awareness of sweeping government surveillance programs — particularly those that exploit technologies that we increasingly rely upon — grows. Many who had never given the topic more than a fleeting thought are now beginning to seriously ponder topics like encryption, dragnet data collection programs, and the meaning of privacy in a digital world. And while it is important — and encouraging — to have a broader discussion of these issues, we should not let the luster of high-tech surveillance blind us to the more prosaic, often very low-tech, surveillance programs that many are forced to live with on a daily basis.

As Alvaro Bedoya and Dorothy Roberts and I recently pointed out, even the most common surveillance practices have a power dynamic that too often shifts from generally beneficial to abusive. Police patrols enhance public safety, but police stop-and-frisk programs have been shown to enable racial abuse. Health data can be used to fight disease and prevent epidemics, but can also be used to selectively deny government benefits to disenfranchised populations.

These are everyday examples of surveillance, and they all involve the use — or abuse — of power. But these examples are often invisible to those of us lucky or privileged enough to avoid its gaze. Widespread stop-and-frisk programs are not deployed in the suburbs. Mandatory drug testing is only required for certain government benefits, although nearly all of us receive these benefits in one form or another. And those of us with Anglo-Saxon or northern European names are rarely (if ever) randomly selected by airport security for “enhanced screening procedures.” These examples illustrate the existence of a structural system of surveillance where certain segments of the population feel its weight, while others are free to ignore its existence.

Michel Foucault was a prominent thinker on the topic of power and its use. Continue Reading »

The Poisoning of Alexander Litvinenko and the Geographical Scope of Human Rights Law

On January 21, a British investigation concluded that Russian President Vladimir Putin “probably” approved the poisoning of former Russian spy Alexander Litvinenko, who died in a London hospital in November 2006. Litvinenko was poisoned with Polonium-210 seemingly poured into a cup of tea by two Russian operatives. A former FSB intelligence agent, he had fled to the UK in 2000, where he was later granted asylum and eventually British citizenship. From the UK, he was a harsh critic of the Russian government and seemed to have entered into some sort of relationship with the British intelligence service, MI-6.

The British government responded to the “disturbing” report by stating that the Russian operation constituted a “blatant and unacceptable breach of the most fundamental tenets of international law and of civilized behavior.” If the operation and poisoning of Litvinenko were indeed sanctioned by Putin and the Russian state, it clearly constitutes a violation of British sovereignty. As the Permanent Court of International Justice — a predecessor to the UN’s International Court of Justice — noted in the seminal Lotus case, failing the existence of a permissive rule to the contrary, a State “may not exercise its power in any form in the territory of another State.”

A more vexing question, however, relates to Russia’s responsibilities under the European Convention on Human Rights (ECHR) and the obligation to protect the right to life in Article 2 of that Convention. The right to life encompasses both a substantive right not to be unlawfully killed and a procedural duty on the part of the State to conduct an investigation of the circumstances that led to the deprivation of life.

For the ECHR to apply, Litvinenko would have had to be under Russian jurisdiction at the time of his poisoning. The determination of whether or not that was the case raises broader questions about the extraterritorial scope of human rights treaties on issues that extend far beyond a single assassination of a former spy. Continue Reading »

News Roundup and Notes: February 9, 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.

IRAQ and SYRIA

Fight for Aleppo. Shi’ite fighters, including forces led by Iran and Hezbollah, are pushing toward Aleppo, giving the Syrian government offensive the “greatest momentum” seen in years. [Wall Street Journal’s Nour Malas and Raja Abdulrahim]  The Syrian opposition needs assistance from Arab nations in order to avoid defeat in Aleppo, rebels have warned, saying that the “Russians will kill us all” if no help is sent. [The Guardian’s Martin Chulov]  And German Chancellor Angela Merkel condemned Russian airstrikes in northwestern Syria during a visit to Ankara to discuss the refugee crisis. [Wall Street Journal’s Dion Nissenbaum]

The offensive on Aleppo is challenging the Obama Administration’s “diplomacy-first approach,” reports Nahal Toosi, writing that some commentators believe Syrian peace talks will become irrelevant if Russia is not sent a “tough message.” [Politico]

Russia has conducted daily airstrikes using cluster bombs, which are internationally prohibited, in rebel-held areas throughout Syria, according to Human Rights Watch. [Al Jazeera]

Iraqi forces retook territory from ISIS today, reconnecting Ramadi to a major army base in the west of the country. [Reuters]

Canada will cease airstrikes against the Islamic State within two weeks, Prime Minister Justin Trudeau announced yesterday. [National Post]  As Canada pulls out its fighter jets, it will triple its training mission of Iraqi forces and increase its military personnel from 650 to 830. [The Guardian’s Jessica Murphy]  And Defense Secretary Ash Carter “greatly appreciates” Trudeau’s decision to “step up” Canada’s involvement in the war against ISIS. [DoD News]

The Assad regime and other parties must uphold their duty to protect civilians and allow safe passage of aid, says the UN humanitarian relief chief, amid reports that 30,000 Syrians have been displaced due to heavy attacks on Aleppo. [UN News Centre]

Thousands of Syrians have been killed in detention over the past four and a half years, with warring parties committing war crimes and crimes against humanity, reported a UN commission yesterday. [UN News Centre]  The report accuses the Syrian government of “inhuman actions” on a scale that “amounts to extermination.”  Full text of the report is available here. Continue Reading »

National Security-Related Congressional Hearings, February 8–12

Below is a calendar of congressional hearings on national security matters for this week.

Tuesday, February 9

9:30am – Senate Armed Services – Worldwide Threats (here)

2:30pm – Senate Armed Services – Subcommittee on Strategic Forces – Department of Defense Nuclear Acquisition Programs and the Nuclear Doctrine (here)

2:30pm – Senate Intelligence – Intelligence Matters (here)

5:00pm – Senate Foreign Relations – Administration Update on the Way Forward in Syria and Iraq – closed hearing (here)

Wednesday, February 10 Continue Reading »

A New UK-US Data Sharing Agreement: A Tremendous Opportunity, If Done Right

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On Friday, The Washington Post reported that the Brits and Americans are negotiating a new data sharing agreement that would permit UK-based law enforcement to request stored communications and live intercepts directly from US-based providers — as an alternative to the laborious Mutual Legal Assistance Treaty (MLAT) process and other less transparent means of accessing the data. As a general matter, this is a good thing. That said, the specifics — at least as reported — leave much to be desired.

As Andrew Woods and I (and many others, for example here and here) have written previously, the current system is untenable, and it is incentivizing a whole host of negative developments. Imagine, for example, UK law enforcement investigating a local crime involving a UK victim and alleged UK perpetrator. The UK seeks the emails of the alleged perpetrator. If the perpetrator had been using a UK-based provider, UK law enforcement officials can get the data directly from the provider, likely within days. If, however, the perpetrator uses Gmail, the UK can’t — thanks to the blocking provision in the Stored Communications Act — get the data from Google. Instead the UK government must make a diplomatic request to the US government (employing the MLAT system) and eventually get a US judge to sign off on the request based on a US standard of probable cause. This process takes an average of 10 months. The UK, as well as many other foreign governments, are understandably frustrated by this state of affairs. Why, after all, should the United States insist on this laborious process — requiring American standards and American warrants when the only connection to the United States is that the data happens to be located here? Continue Reading »

News Roundup and Notes: February 8, 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.

IRAQ and SYRIA 

Forces loyal to the Assad regime pushed close to the Turkish border today, part of a major offensive supported by Russia and Iran. Iran-backed militias have taken on a key role on the ground while Russian planes engaged in an increased air campaign. [Reuters]

“A defining battle for Aleppo … seems imminent.” Tim Lister reports that the government siege of Aleppo, supported by Russian airstrikes, constitutes a major shift in the country’s civil war. [CNN] 

Humanitarian workers rushed to assist Syrians at the Turkish border yesterday, as 35,000 civilians fled the battle for control of Aleppo. [Wall Street Journal’s Ayla Albayrak] Aid was delivered by Turkey across the border into Syria. [Reuters] Civilians fleeing Aleppo were blocked from crossing into Turkey over the weekend due to concerns over a fresh influx of refugees. [Washington Post’s Liz Sly and Zakaria Zakaria]

The Wall Street Journal editorial board opines that the “Syrian disaster is becoming so painfully obvious that even members of the pro-Obama national security establishment are calling for the President to drop his let-it-burn policy.”

The UAE is prepared to send ground troops to Syria to assist in efforts to fight the Islamic State, a senior official said. [Al Jazeera] And an Iranian commander has mocked an earlier offer from Saudi Arabia to send troops to Syria. [CNN’s Jason Hanna]

A member of the ISIS gang responsible for the detention and beheading of western hostages in Syria has been identified as Alexanda Kotey, a 32-year old Londoner. The British group included Mohammed Emwazi, dubbed “Jihadi John.” [The Guardian’s Robert Booth et al; Buzzfeed News’ Jane Bradley et al] The British Home Office would “neither confirm nor deny” the reports. [New York Times’ Kimiko De Freytas-Tamura]

ISIS has been forced to cut fighters’ pay by up to 50% as a result of US airstrikes targeting its resources. [Reuters] Continue Reading »

Recap of Recent Posts at Just Security (January 30–February 5)

I. Encryption & the “Going Dark” Debate

  1. John Reed, Moving Beyond the “Going Dark” Frame (Monday, February 1)
  2. Julian Sanchez, Cryptopanic and James Comey’s Xanatos Gambit (Tuesday, February 2)
  3. Marshall Erwin, Guest Post: The High Standard of Proof in the Encryption Debate (Friday, February 5)
  4. Ross Schulman, Guest Post: When the NSA Merges Its Offense and Defense, Encryption Loses (Friday, February 5)

 II. Syria & War Crimes

  1. Beth Van Schaack, Mapping the Law That Applies to War Crimes in Syria (Monday, February 1)
  2. Beth Van Schaack, Siege Warfare and the Starvation of Civilians as a Weapon of War and War Crime (Thursday, February 4)

III. Surveillance & Privacy

  1. Tamir Israel & Christopher Parsons, Guest Post: Why We Need to Reevaluate How We Share Intelligence Data With Allies (Wednesday, February 3)
  2. Neema Singh Guliani, Guest Post: Questions Congress Should Ask About Section 702 (Thursday, February 4)

IV. Counterterrorism & Technology

V. Colombia Peace Agreement

VI. Congressional Hearings

When the NSA Merges Its Offense and Defense, Encryption Loses

How do you create strong encryption standards when the organization tasked to build them finds itself absorbed into an organization that dedicates huge quantities of resources to break them? The recently announced reorganization of the National Security Agency this week brings this question to the forefront. As part of the reorganization, the defensive arm of the NSA (the Information Assurance Directorate, or IAD) will be subsumed by the intelligence-gathering program (which collects signals intelligence, or SIGINT). The IAD will effectively cease to exist, which raises questions about both the privacy and security of the nation’s data. We need to make sure that we have something that replaces it.

There’s always been an uneasy relationship between the two missions of the National Security Agency. On one hand, the organization is responsible for all of the US government’s foreign signals intelligence. The NSA gathers up a phenomenal amount of information on foreign targets (and, all too often, Americans’ information as well) through the networks and devices it subverts. As part of that process, it’s always looking for ways to get into a locked system. Often, that means developing ways to hack into targets’ computers or breaking encryption when it can. Sometimes that means subverting cryptographic standards before anyone even uses them.

On the other side of the Ft. Meade complex is IAD, whose mission is to protect US government networks and systems. There are, of course, foreign governments who are looking to do to the US what the US is trying to do to them. IAD works to see that they can’t. Among their many tools in that fight is modern and unbroken encryption. That’s one of the reasons why the National Institute of Standards and Technology (NIST) consults with them as they develop new cryptographic standards.

This conflict of interest extends outside of Ft. Meade as well. Continue Reading »