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Important Features of Senators Kaine and Flake’s Proposed War Authorization for ISIS–with Annotations

 

Just Security serves as a space for discussion of whether now and how exactly Congress might tailor legislation authorizing the Executive Branch to wage war against ISIS. On Thursday, Sen. Tim Kaine (D-Va.) and Sen. Jeff Flake (R-Ariz.) introduced a bipartisan bill providing authorization for the use of military force (AUMF) against ISIS, al-Qaeda, and the Taliban. Back in 2015, the two senators introduced an AUMF for ISIS. The following are ten key features of their 2017 AUMF with some annotations.

The Kaine-Flake AUMF of 2017:

1. Provides that the “President is authorized to use all necessary and appropriate force

Note: This differs from the language of the Kaine-Flake AUMF of 2015, which authorized force that “the President determines necessary and appropriate.” The 2017 wording is preferable in my view because it makes clear that the determination of what is appropriate is not solely for President Trump, and this text properly matches the language and design of the 2001 AUMF.

2. Makes no reference to authorizing force against a “successor entity” to ISIS/AQ/the Taliban

Note: The Kaine-Flake AUMF of 2015 authorized targets to include “any closely-related successor entity” of ISIS. I am not sure what changed their minds, but they seem to have come around to my way of thinking. I recently wrote about the dangers of including “successor” entities in an AUMF (See “Why Congress Should Not Add ‘Successor Organizations’ in Authorizing War Against ISIS”).

3. Refers to associated forces and associated “persons” Continue Reading »

Russia and a Divided United States: What Comes After Trump?

While the United States, along with its Western allies, became preoccupied with post-9/11 wars in Afghanistan and Iraq, global counterterrorism operations, and the aftermath of the 2008 financial crisis, it largely took its eye off what was happening in its Cold War foe, Russia. In 2000, a teetotaling KGB man and his associates took control from Russia’s first post-Soviet president, the boozy Boris Yeltsin. The new president, Vladimir Putin, initially struck an amicable tone with the West, offering up words of support to then U.S. president George W. Bush after 9/11.

Despite this, Putin and his colleagues, many of whom came from the Soviet security services, were set on rebuilding Russia as a great power in accord with their own vision. By the time Putin-ally Viktor Yanukovych was ousted as president of Ukraine in 2014, Moscow had long turned its focus toward combatting what it saw as a Washington-led effort to hold Russia subservient.

Against the U.S., the KGB’s president saw an opportunity to employ the dark arts that Russian security services mastered decades ago, but updated for the social media age. Putin’s regime focused on pushing back against what it saw as America threatening Moscow’s power after humiliating it following the Cold War, while we, and our expanding number of European allies, focused on terrorism, demographic change, and economic volatility.

Putin watched the U.S. expanding NATO up to Russia’s doorstep and decided U.S. pro-democracy efforts were sowing chaos among Kremlin-friendly governments in the former Soviet Union in a way that threatened Russia. In response, Moscow launched an unrelenting campaign to use the foundations of open democracy against itself. This consisted of mass-media manipulation, working with unsavory Western lobbyists and political operatives, potentially compromising western government officials and elected office-seekers — all of which relied on stirring the pot of popular discomfort and discontent which was emerging in many Western nations. In other words, Putin’s government did what the KGB (now known as the FSB and SVR) does. It looked at the West’s psychological profile and used it against itself, exploiting the very real problems and divides the U.S. and other nations are wrestling with in order to stop the West from threatening Russia’s power.  Continue Reading »

Protecting Civilians through Wartime Investigations: Applying the 2016 Minnesota Protocol When it Matters Most

It is highly important to have internationally recognized standards in investigating and prosecuting “potentially unlawful deaths”—an issue that is well recognized in the Foreward of the recently updated Protocol on Investigation of Potentially Unlawful Death (the “Minnesota Protocol”), as well as in Christof Heyns’ piece published at Just Security on Wednesday. As Heyns points out, however, the Protocol deals primarily with investigations outside the conduct of hostilities. Unfortunately, for the norms of human rights to truly have impact, and for civilians to be protected, States must find a way to apply the Protocol during the conduct of hostilities – when it often matters most, but also when it can be most difficult to apply as a practical matter.

Paragraph 21 of the Protocol requires a State to “conduct a full investigation and prosecute those who are responsible” when there are “reasonable grounds to suspect that a war crime was committed.” (For more on this, Nathalie Weizmann’s excellent 2015 Just Security article discusses when international law requires countries to investigate war crimes). Paragraph 20 of the Minnesota Protocol recognizes that conducting investigations during armed conflict may pose “practical challenges,” but gives short shrift to the realities of conflict as well as to the principles for which the Protocol stands in such situations. Investigating allegations of unlawful deaths “promptly, effectively and thoroughly, with independence, impartiality and transparency” is a monumental task at any time; doing so during armed conflict – with or without resources readily available – is even more so.

In 2012, I was the lead prosecutor in the military court martial of Robert Bales, a US Army soldier who eventually pled guilty to murdering sixteen Afghan civilians in an event referred to as the “Kandahar Massacre.” The reports of Bales’ crimes gained immediate international attention, and conducting an investigation was a priority for the US military. At the time, there were still nearly 100,000 American troops on the ground in Afghanistan. The available resources included a detachment of American military criminal investigators at Kandahar Airfield, less than 50 kilometers from the crime scene; a local ability to conduct autopsies, if given the opportunity; and a prosecution team from the US that was quickly dispatched to Afghanistan to guide the investigation. In short, conditions were as good as they were going to get to facilitate a “full investigation” as required by the Protocol. Continue Reading »

Three Reasons Why You Should Care About the Fourth Circuit’s Wikimedia Ruling

At any other moment in the recent past, Tuesday’s ruling by the U.S. Court of Appeals for the Fourth Circuit in Wikimedia Foundation v. NSA would have been a much bigger deal, and would likely have received far more coverage than it’s gotten thus far. (Thanks, Obama…) In a nutshell, the Fourth Circuit held that Wikimedia does have Article III standing, at least at the motion-to-dismiss stage, to challenge the legality of “upstream” surveillance under section 702 of the Foreign Intelligence Surveillance Act (as added by the FISA Amendments Act of 2008), reversing a district court decision that had concluded to the contrary. There’s no 2017-worthy headline here; the court said nothing about the merits of Wikimedia’s case or the legality/constitutionality of “upstream” collection. But I still think there are three major reasons why anyone following U.S. national security law in general (and surveillance law in particular) should care about this ruling–which I elaborate upon them below the fold.

Reason #1: Clarifying Clapper

Folks who have studied post-September 11 civil litigation challenging U.S. counterterrorism policies are likely quite familiar with the Supreme Court’s 2013 ruling in Clapper v. Amnesty International, in which a 5-4 Court rejected the standing of a number of human rights and civil liberties groups (and other plaintiffs) to challenge the constitutionality of section 702 on its face. In his majority opinion, Justice Alito held that the plaintiffs could not establish that collection of their communications under section 702 was “certainly impending,” and so could not demonstrate an “injury-in-fact” sufficient to satisfy Article III’s case-or-controversy requirement.

Clapper was controversial when it was handed down, but it was also not quite as sweeping a ruling as was often portrayed. Of most relevance here, Clapper was about an alleged future injury, not, as in Wikimedia, a past or ongoing injury; and it arose at the summary judgment stage of the litigation–meaning that the plaintiffs had already had an opportunity, by that point, to adduce evidence tending to substantiate their claims of unlawful surveillance. In Wikimedia, in contrast, the standing issue arose at the motion-to-dismiss stage, at which point courts are supposed to assume all of the (plausible) allegations alleged in the complaint. Thus, as Judge Diaz explained for the Fourth Circuit on Tuesday, “the district court blurred the line between the distinct burdens for establishing standing at the motion-to-dismiss and summary-judgment stages of litigation. Put another way, what may perhaps be speculative at summary judgment can be plausible on a motion to dismiss.”

What this means in practice is that plaintiffs who marshal plausible (and, sometimes, less plausible) allegations of unlawful secret government programs can and will survive motions to dismiss for lack of standing notwithstanding Clapper–a point that could have ramifications far beyond challenges to upstream surveillance under section 702. Then, the focus of the litigation will shift (rightly) to the post-motion-to-dismiss stage (discovery), whether plaintiffs will actually be able to make out their claims, and whether the state secrets privilege might get in the way. That is, the merits are still a long way in the distance, but Tuesday’s ruling brings them one important step closer. And, if left intact, the ruling will effect the elimination of what had been (to me, at least) a troubling over-reading of standing doctrine to do work that it was never meant to do.

Reason #2: The Snowden Effect

On the day of the first big Snowden revelations, I wrote a post for Lawfare titled “The Verizon/Section 215 Order and the Clapper Mindset,” which wondered whether Clapper would have come out the same way after Snowden’s disclosures. As it concluded, “Justice Alito’s specific analysis aside, it’s the mindset that I just don’t get. Reasonable people can certainly disagree about the normative desirability (and, I dare say, legality) of the degree of governmental surveillance that is now underway. But can reasonable people really continue to disagree that this is the world in which we’re living?”

In addition to the technical clarification of the Clapper ruling that Wikimedia represents (described above), it also seems to be to be vindication of this idea–that, thanks to Snowden (and the uptick in government releases of de-classified materials that followed), we (and the federal courts) are now not nearly as naive about the powers and authorities that our government claims in this space–or as likely to dismiss claims such as those in this case as “speculative.” Here, there’s a direct nexus between what we learned from Snowden and the plausibility of the plaintiffs’ claims. It will be interesting to see if the same effect repeats itself in a context with a less-direct connection (e.g., a challenge to some secret use of military force). Either way, whatever you think of Edward Snowden, he had a lot to do with this ruling…

Reason #3: One (Big) Step Closer to Full Adversarial Litigation of the Legality of Upstream… Continue Reading »

The Early Edition: May 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.

TRUMP-RUSSIA INVESTIGATION

Intelligence showing senior Russian officials discussing how to exert influence over President Trump using his advisers was collected by U.S. spies months before the presidential election, Matthew Rosenberg, Adam Goldman and Matt Apuzzo report at the New York Times.

Attorney General Jeff Sessions failed to include two meetings with the Russian ambassador on a security clearance form submitted last year, his aids insisting that the meetings were removed from the form by a Sessions staffer after the F.B.I. told her they did not need to be included, Josh Gerstein reports at POLITICO.

Recently fired former F.B.I. director James Comey should provide his memos detailing his interactions with President Trump to the Senate Judiciary Committee and then testify about them, the top Democrat on the committee Sen. Dianne Feinstein (Calif.) said yesterday, the Hill’s Max Greenwood reporting.

Former Trump campaign manager Paul Manafort handed over 305 pages of documents related to the Trump-Russia investigation to the House and Senate intelligence committees last week in response to letters sent to various Trump campaign associates with potential ties to Moscow over the past few weeks, Tom Hamburger reports at the Washington Post.

Deutsche Bank A.G. has been asked to provide details about its internal review of Russian trades and clients as well as loans made to President Trump, including whether any loans to the president “were backed by guarantees from the Russian government, or were in any way connected to Russia” by Democratic lawmakers, Jenny Strasburg reports at the Wall Street Journal.

Chief of Staff Reince Priebus asked former F.B.I. director and his then-top deputy Andrew McCabe to rebut news reports of the Trump-Russia investigation the day after President Trump reportedly asked Comey to dial back on the bureau’s investigation of former national security adviser Michael Flynn, three White House officials telling The Daily Beast’s Betsy Woodruff, Lachlan Markay and Asawin Suebsaeng that Peibus is worried about what could happen to him if Comey reveals more of his secret memos detailing conversations with Trump and senior administration officials.

TRUMP DISCLOSES CLASSIFIED ISRAELI INTELLIGENCE

Israel’s defense minister appears to have confirmed that the intelligence leaked by President Trump during a meeting with Russian officials last month was Israel’s, saying yesterday that Israel had made a “specific correction” to its intelligence-sharing protocols with the U.S. after the incident but providing no further details, the AP reports.

Legislation intended to keep Congress informed when top-secret information is shared with a nation considered hostile to the U.S. was introduced in the House by Rep. Stephanie Murphy (D-Fla.) yesterday following the president’s disclosures to Russian officials this month, the Hill’s Cristina Marcos reports.

TRUMP IN EUROPE

President Trump is in Brussels today for the fourth leg of his first overseas trip, meeting with the president of the European Council Donald Tusk and the President of the European Commission Jean-Claude Juncker, with further meetings with other European leaders to follow, the New York Times reports, providing live updates on Trump’s trip.

Trump is anticipated to publicly endorse N.A.T.O.’s mutual defense commitment at a ceremony at the alliance’s headquarters today, ending months of silence on whether the U.S. would automatically come to the aid of an ally under attack per Article 5 of the N.A.T.O. pact, Michael D. Shear and Mark Landler report at the New York Times. Continue Reading »

Restating the Law on the Investigation of Potentially Unlawful Death: The 2016 Minnesota Protocol

 

The Office of the United Nations High Commissioner for Human Rights in Geneva (OHCHR) on 24 May 2017 announced the release of the 2016 Minnesota Protocol on the Investigation of Potentially Unlawful Death on its website.

This document is an updated and revised version of the 1991 UN Manual on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions, which through common usage became known as the Minnesota Protocol. The new document is currently available in English, but will be translated into the other five official UN languages and others in due course.

The Minnesota Protocol sets out the international standards for the investigation of suspicious deaths, where States may in one way or another be considered responsible, because its agents may have caused such death, or because the State has failed to exercise due diligence in protecting the victim/s. It also applies to enforced disappearances.

The right to life, as protected for example by article 6 of the International Covenant on Civil and Political Rights, has two components: the prohibition of arbitrary deprivation of life, and accountability where that occurs. Investigations play a central role in securing accountability. As such, the Protocol can be seen as a restatement of a central part of the protection of the right to life, often described as the “supreme right.”

The Protocol is aimed at informing and guiding the actions of crime scene investigators, medical practitioners, lawyers, commissions of inquiry and others involved in investigating suspicious deaths. The Minnesota Protocol plays a similar role in the context of the right to life to that of the Istanbul Protocol to in the context of torture.

The 2016 revision of the Protocol was undertaken by a group of legal and forensic experts over a period of two years under the auspices of the Special Rapporteur on extrajudicial, summary or arbitrary executions (a position the current author held at the time) and the OHCHR.

A scoping exercise before the revision showed that the original Minnesota Protocol was regarded as the gold standard in the area of forensic investigations by medical practitioners, and in this context had been relied upon by several international and national tribunals. At the same time, it had to some extent become outdated in the 25 years since it was first adopted, in that new medical developments, such as DNA evidence, were not reflected. The legal section was also underdeveloped in the original version. The revised text seeks to provide a stronger basis for the protection of the right to life by ensuring the Protocol sets out both the state of international law and best forensic practice in the investigation of suspicious deaths.

The new version of the Protocol, like the original one, is an expert document whose legitimacy resides in the wide acceptance of the Protocol since its inception, and the level of expertise reflected in its contents. Several states were among those who submitted comments during the various rounds of public consultation conducted during the revision.

The Protocol sets guidelines for the procedures to be followed during death investigations from the outset to the conclusion. On the question when an investigation must be undertaken, the Protocol (in para 15) provides that: Continue Reading »

Can Flynn Assert a Fifth Amendment Privilege to Withhold Documents?

 

The news that retired Lt. Gen. Michael Flynn, Trump’s former national security advisor and campaign aide, has refused to comply with a Senate Intelligence Committee subpoena for documents raises the question of when witnesses may lawfully resist subpoenas for testimony or documents based on Fifth Amendment grounds, which is the basis cited by Flynn’s lawyer. The answer is it depends on what you’re trying to avoid doing.  It is fairly straightforward to rely on the privilege against self-incrimination to refuse to provide testimony, but much more difficult when the subpoena is for documents. Continue Reading »

The Early Edition: May 24, 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.

TRUMP-RUSSIA INVESTIGATION

U.S. intelligence officials discovered contacts between Donald Trump’s campaign and Russia last year, sparking concerns that Moscow could attempt to foster Trump’s associates, former C.I.A. director John Brennan testified before the House Intelligence Committee yesterday, shedding further light on why federal agents decided to launch a full investigation last year. Byron Tau and Joshua Jamerson report at the Wall Street Journal.

Brennan did not know if the Trump campaign colluded with Russia and the contacts between them may have been benign, he said yesterday, the New York Times Matt Apuzzo reporting.

President Trump has retained the services of long-time personal lawyer Marc E. Kasowitz to help him navigate the Trump-Russia investigations, John Wagner and Ashley Parker report at the Washington Post.

Former national security adviser Michael Flynn is being served with two further subpoenas to oblige him to hand over documents related to his contacts with Russian officials, Senate Intelligence Committee leaders said yesterday after Flynn invoked his Fifth Amendment rights in response to a previous subpoena. Austin Wright and Burgess Everett report at POLITICO.

“All options should be on the table” if Flynn refuses to comply with the additional subpoenas, member of the Senate Intelligence Committee Sen. Marco Rubio (R-Fla.) warned the former national security adviser via Twitter yesterday.

It is “not appropriate” to talk about his conversations with President Trump about the Russia probe, the Director of National Intelligence Daniel Coats told a Senate Armed Services Committee hearing yesterday after he was asked about reports that the White house tried to recruit Coats and Director of the National Security Agency Michael Rogers to help with pushing back on the F.B.I.’s investigation into Trump-Russia ties. Madeline Conway reports at POLITICO.

Coats would be willing to disclose the details of his conversations with President Trump to the Senate Intelligence Committee, he said after the hearing, Martin Matishak and Austin Wright extracting five takeaways from the intelligence leaders’ Trump testimony yesterday at POLITICO.

Coats has “not discussed” the issue of President Trump’s reported disclosure of highly classified intelligence to Russian officials during an Oval Office meeting earlier this month, he told the Senate Armed Services Committee yesterday, Morgan Chalfant reporting at the Hill.

The issue of leaks to the media was given a serious response from both current and former administration officials at Trump-Russia probe panel hearings yesterday, despite Democratic criticism of the G.O.P. focus on leaks as a partisan attempt to protect the president, Katie Bo Williams and Morgan Chalfant reporting on this and four other takeaways from a day of Russia probe hearings before various panels at the Hill.

“If the president crosses a line, he knows what he’s doing.” Ignorance is no longer an excuse for President Trump’s repeated attempts to subvert the proper boundaries between himself and government agencies investigating possible Trump-Russia collusion now that he has been widely rebuked for firing former F.B.I. director James Comey, writes the Washington Post editorial board.

Brilliant legal strategy – or just brilliantly stupid. Was White House Press Secretary Sean Spicer laying the groundwork for a “foreign policy defense” to potential charges of obstruction of justice over the firing of Comey with his explanation that Comey’s firing was necessary because he was making it difficult for the president to “engage and negotiate with Russia” as was suggested by former Acting Solicitor General Neal Katyal? Asha Rangappa considers the feasibility of such a defense at POLITICO MAGAZINE.

TRUMP VISITS ISRAEL

Israeli and Palestinian leaders are ready to reach a peace agreement, President Trump declared at the end of his three-day tour of the Middle East yesterday, without revealing how he intended to work with both sides toward that goal, Ian Fisher, Peter Baker and Isabel Kershner write at the New York Times.

The obstacles that have stood in the way of outside brokers of Israeli-Palestinian peace for decades have not been removed as a result of Trump’s trip to the region, where he outlined a “detail-free” strategy involving ignoring the key sticking points that have hindered talks in the past. Dan Perry takes a look at where things stand following Trump’s trip at the Washington Post. Continue Reading »

Preview: Senate Judiciary Committee Hearing (5/24) on Cross-Border Access to Data

 

Tomorrow, the Senate Judiciary Subcommittee on Terrorism and Crime, spearheaded by Senators Lindsey Graham (R-SC) and Sheldon Whitehouse (D-RI), will be holding a hearing on a topic of increasing importance to law enforcement’s ability to effectively detect and prosecute crime, the future of privacy rights, and the economic interests of the tech sector. The topic — Law Enforcement Access to Data Stored Across Borders: Facilitating Cooperation and Protecting Rights. According to the UK Embassy, this will be the first time ever a sitting UK government official has testified in Congress. And not just any official, but the UK Deputy National Security Advisor, Mr. Paddy McGuinness. If this doesn’t highlight the significance of the issue (at least to one of the nation’s key allies), I don’t know what does.

The hearing will primarily focus on two distinct, but interrelated issues:

First, the reach of US warrant authority pursuant to the Electronic Communications Privacy Act (ECPA) to access stored communications content, an issue I have previously addressed here and here.  This is a weighty issue in the wake of the Second Circuit’s decision in Microsoft Ireland case, which held that the U.S. warrant authority extends only to data that is physically located within the territorial boundaries of the United States. As I explain in my testimony, it is a decision that is concerning on almost every relevant axis — with negative consequences for our security, our privacy, and our economy.  In fact, just about everyone, including even the judge who wrote the Microsoft Ireland opinion, agrees that the current state of affairs is troubling, and that Congress should step in to fix it.

That said, a simple legislative reversal of the opinion is not a satisfactory answer.  It fails to take into account the sometimes legitimate countervailing interests of foreign governments in limiting access to their citizens and residents data — something that the United States would and should want foreign governments to respect when seeking access to U.S. citizen and resident data.  A simple legislative reversal also fails to grapple with the importance of perceptions.   Rightly or wrongly, foreign customers of major U.S. tech companies are increasingly concerned about what they see as overbroad surveillance by the U.S. government; failure to address these concerns will have negative consequences for the competitiveness of a key sector of the U.S. economy.

In my testimony, I suggest concrete ways in which Congress can address these concerns, while also ensuring that law enforcement can, pursuant to a warrant based on probable cause, access data needed for legitimate investigations regardless of where the data happens to be at a particular point in time.  Continue Reading »

Fourth Circuit Holds Wikimedia Has Standing to Challenge Upstream Surveillance

In a major ruling handed down this morning, the Fourth Circuit has reversed a district court ruling from last year and held that Wikimedia has Article III standing, at least at the motion to dismiss stage, to challenge “upstream” collection under section 702 of the Foreign Intelligence Surveillance Act. Judge Diaz wrote the 39-page majority opinion (which also affirms that the other plaintiffs lack standing); Judge Davis concurred, but wrote separately to suggest that the other organizational plaintiffs have also alleged enough to establish Article III standing.

I hope to have more to say later about the analysis and its implications, but this is a big deal–and, at first blush, the right result, methinks. If left intact, this means we’ll finally have meaningful adversarial litigation (outside the context of a motion to suppress in a criminal case) over the legality and constitutionality of “upstream” collection.