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The President’s NDAA signing statement re: GTMO and anti-torture provisions

The President today signed into law into law S. 1356, the National Defense Authorization Act for Fiscal Year 2016.

The good news is that Section 1045 of the NDAA in effect codifies two of the provisions of the President’s Executive Order 13491, “Ensuring Lawful Interrogations.”

Subsection 1045(a) provides that any individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual 2–22.3. That subsection also requires a review of Field Manual 2–22.3 every three years, and requires that the Manual be revised as necessary to ensure that it “complies with the legal obligations of the United States and the practices for interrogation described therein do not involve the use or threat of force.”

Subsection 1045(b) requires the head of any department or agency to “provide the International Committee of the Red Cross with notification of, and prompt access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractor of the United States Government, consistent with Department of Defense regulations and policies.”

The bad news, of course, is that the NDAA also contains provisions that will effectively prevent closure of the detention facility at Guantánamo, which I described here–including sections 1031 and 1032, which prohibit the relocation of the final few dozen GTMO detainees to the United States. (In this post, I explain why those provisions, although reprehensible and deeply unwise, are not unconstitutional.)

The President’s signing statement is set forth below, with the remarks about the interrogation and GTMO provisions in boldface. Continue Reading »

Thanksgiving at Just Security

Wild turkeys at the Eufaula National Wildlife Refuge in Alabama. Image credit: US Department of the Interior

In observance of the Thanksgiving holiday, Just Security will be on an abbreviated schedule for Thursday and Friday of this week. If any major, time-sensitive developments occur, we will aim to address those issues. The Daily News Roundup will resume on Monday (you can sign up here to receive it in your inbox each morning). In the meantime, you can follow us on Twitter (@just_security) and Facebook for the latest.

Just over half a century ago, President John F. Kennedy issued Proclamation 3560 just a few days before his assassination. His words announced the celebration of Thanksgiving 1963 and reminded Americans of some of the many things we, as a country, have to be thankful for.

So as Just Security’s editors and staff take a few days to celebrate with family and friends, we leave you with the tail end of President Kennedy’s proclamation and our sincere wishes for a happy Thanksgiving for all our readers, here and abroad. Continue Reading »

Liberté, Égalité, Fraternité … Sécurité

Within a few hours of the terrorist attacks on Paris which left 130 dead and some 350 injured, President François Hollande declared a nationwide state of emergency in accordance with Public Law 55-385. As we noted previously, this declaration marked only the second time that a nationwide state of emergency was declared in France since the end of World War II.

The state of emergency, which went into effect at midnight on November 14, grants broad police powers to the French government and to the prefectures. In accordance with the law of 1955, these powers — granted for up to 12 days — include the power to impose curfews and traffic bans, to control public movements, to prohibit assembly and public gatherings, to conduct warrantless searches and house arrests (day or night), and to close theaters and other meeting places.

Pursuant to the declaration of a state of emergency, in the first five days after the terrorist attacks, the French police and military conducted 793 raids — most notably a house raid in the Paris suburb of Saint-Denis that led to the killing of the person believed to have orchestrated the attacks, Abdelhamid Abaaoud. The government also detained 90 individuals and placed 164 under house arrest; charged 124 individuals with offenses; and seized 174 different weapons, including 18 described as “military-style firearms,” 84 rifles, and 68 handguns (a notable fact, given France’s stringent firearms laws).

Less than a week after the attacks, the French Parliament approved the extension of the state of emergency for an additional period of three months. They did so by wide margins and with little debate and discussion (the lower house approved the extension by a 551-6 margin on November 19 and the French Senate voted to approve the extension on November 20). Beyond just extending the timeframe of the state of emergency, French lawmakers also amended the underlying 1955 law, expanding the scope of the government’s emergency powers to allow for house arrests with a lower level of suspicion, as well as various powers to search computer data and to dissolve groups that participate in or incite “serious violations of public order.” Continue Reading »

Remember Why We Have the Fourth Amendment

The Paris attacks have fueled a debate over surveillance on both sides of the Atlantic that, while not new, has reached a level of hysteria that I have not witnessed since the weeks and months following 9/11. There is great cause for grief and great cause for concern over whether those horrific events could have been prevented. But in our desire to prevent such a tragedy at home, it is vital for Americans to remember the values that drove the birth of our nation, and to guard them jealously. It is not “handwringing” to fret over the future of privacy rights, religious freedom, and free speech. At a time when the British government has spent months discussing its desire to implement a “Snooper’s Charter” and ban strong encryption, we would do well to remember that the Brits are the reason we have the Fourth Amendment (and the First), rather than echoing their arguments for broader surveillance powers.

The UK may have a spell on us. In recent days, US officials have exploited the Paris attacks to demand increased surveillance in the US, reflexively regurgitating UK proposals already rejected by the White House. CIA Director John Brennan called for the easing of the post-Snowden reforms to US surveillance practices. Former CIA Director James Woolsey and former NSA chief Mike McConnell have been vocal advocates for more electronic surveillance, while local officials in New York City have renewed their calls for an end to strong data encryption, as in the United Kingdom. Prominent members of Congress have joined the surveillance bandwagon, as have some presidential candidates (see here and here). The idea is to force big technology companies to build security flaws into their software — aka “backdoors” — that facilitate government surveillance. Of course, those flaws also facilitate unauthorized access by criminals and other non-state actors.

Also courtesy of the UK and other parts of Europe comes the idea of “soft surveillance,” better known stateside as Countering Violent Extremism (CVE), which aims to have community members and schoolteachers identify would-be terrorists using a vague set of “risk factors” developed by law enforcement. The notion has appeared in various iterations since 2007, but all of them rest on a debunked and overly simplistic, conveyer-belt theory of radicalization with no basis in empirical evidence. Still, the theory has gained traction in the US with official pilot programs launching in Los Angles, Boston, and Minneapolis-St. Paul. Unsurprisingly, community groups have had difficulty (for example, here, here, and here) connecting with law enforcement following previous surveillance incidents masquerading as outreach. Civil rights advocates (including the Brennan Center, my employer) regularly question whether the models track Muslim stereotypes better than would-be terrorists. (We have more than a half-dozen public records requests pending for additional information about CVE programs, the specifics of which are generally not known, almost all of which are approaching a year old.)

The takeaway is that Europe is not always a good model for the US when it comes to balancing civil liberties and security. The French, for example, have implemented a three-month state of emergency, complete with warrantless home searches, following on the heels of the most expansive surveillance charter that Europe has seen in decades. Those French laws, enacted in the wake of the Charlie Hebdo attacks, brought newfound surveillance authority that sadly did not prevent the most recent disaster in Paris. The proposed powers granted by the “Snooper’s Charter” would be similarly sweeping and most likely, equally unhelpful. These new UK powers would, however, be sure to expand intrusive surveillance and violate human rights principles.

Thankfully, we as Americans have a bit of experience calibrating the balance between liberty and national security. Continue Reading »

The UK Draft Investigatory Powers Bill (aka, the Revised “Snooper’s Charter”)

Earlier this month the Draft Investigatory Powers Bill, the UK Government’s attempt to legitimize State surveillance powers, was presented to Parliament. Depending on your perspective, it is either a necessary security measure or a revised “Snooper’s Charter” (revised since it purports to build on the recommendations of three independent reviews by the Parliamentary Intelligence and Security Committee, the Independent Reviewer of Terrorism, and the Royal United Services Institute).

Three aspects of the bill are particularly controversial. First, it requires web and phone companies to keep records of website domains, though not actual pages, visited by citizens for 12 months. The records can then be accessed by police, the security services, and other public bodies if they meet certain requirements. Secondly, it expressly empowers the police and security services to hack into and bug computers and phones, and obliges companies to assist with bypassing encryption. Thirdly, there are concerns about the limited extent of judicial oversight allowed under the bill.

In this post, I consider the first of these, the domain-retention requirement.

In her Foreword to the bill the Home Secretary, Theresa May, defends the enhancement of powers in this area as being “only because a strong operational case has been made.” But it will be difficult for the Government to shake the perception that the bill is “backwards” and that, as Edward Snowden has observed, it “is trying to fit the law around the spying, rather than making spying fit the law.” This perception is only strengthened by May’s revelation, when introducing the bill into Parliament, that mass surveillance of UK citizens began soon after 9/11, purportedly pursuant to a broad power in section 94 of the Telecommunications Act 1984. As former Deputy Prime Minister Nick Clegg has said, this is “a capability that only a tiny handful of senior cabinet ministers knew about.”

May has sought to minimize the extent of the proposed intrusion, describing it as “the modern equivalent of an itemised phone bill.” This analogy has been strongly criticized. The comparison has been rejected by Snowden (who says that it is more “like a list of every book you’ve ever opened”), by UN Special Rapporteur on privacy Joe Cannataci (who has described the phone analogy as being “misleading”), and by Guardian commentator Frankie Boyle (who wrote, “It’s a document that shows what we’re thinking about. The government wants to know what we’ve been thinking about, and what could be more sinister than that?”).

Whatever the appropriate analogy might be, there is little doubt that the data has the potential to reveal highly personal information.  Continue Reading »

Al Bahlul and the Risks of Legitimating Departures from Article III Jurisdiction

Editor’s Note: This is the most recent post in a mini-symposium leading up to next week’s en banc oral argument in the DC Circuit in Al Bahlul v. United States. You can check out all of the pieces in the series here.

For the second time, Al Bahlul v. United States is before the full DC Circuit. Previously, in July 2014, the DC Circuit sitting en banc upheld Ali Hamzi al Bahlul’s conviction for inchoate conspiracy by a military commission against an Ex Post Facto Clause challenge, although under a plain error standard of review (Al Bahlul II). This time, the Court will review the panel’s July 2015 ruling invaliding the conviction as a violation of Article III (Al Bahlul III). The en banc court’s July 2014 ruling in Al Bahlul II had remanded the case back to the original panel to consider al Bahlul’s other constitutional challenges. A divided DC Circuit panel then held in Al Bahlul III that Article III limited military commission jurisdiction to established violations of the international law of war, which inchoate conspiracy concededly is not, and rejected the US government’s theory that commission jurisdiction also encompassed violations of offenses traditionally triable in military commissions as part of a domestic common law of war.

The implications of the Al Bahlul litigation can be viewed in three main ways: (i) a one-off ruling that controls only al Bahlul’s case; (ii) a ruling that affects only “legacy” cases — i.e., prosecutions of remaining Guantánamo detainees whose conduct predates the 2006 Military Commissions Act (2006 MCA), the statute that codified conspiracy as an offense triable by military commission; and (iii) a ruling that affects prosecutions of all current and future detainees because it concerns the constitutional limits of military commission jurisdiction.

Al Bahlul II, which involved an Ex Post Facto Clause challenge to pre-2006 MCA conduct, concerned a combination of the first two possibilities. The holding, however, ultimately affected only al Bahlul because it rested on the plain error standard of review the court adopted due to al Bahlul’s failure to preserve his ex post facto challenge at trial. Al Bahlul III could similarly wind up as a one-off ruling because the government now maintains that al Bahlul’s constitutional challenge should be reviewed for plain error, in which case the precedent would be confined to al Bahlul’s case. But as the Al Bahlul III panel made clear, the government’s argument of waiver should fail because al Bahlul’s challenge presents a structural violation of Article III. Assuming that the en banc Court decides the current challenge under the ordinary standards of appellate review, as the panel did, Al Bahlul III will fall within the third category. That is, it will affect all present and future military commission prosecutions in which conspiracy and, potentially, other non-international law-of-war violations, such as material support for terrorism, are alleged as a basis of liability. (Al Bahlul II rejected material support as a basis for liability only for pre-2006 MCA conduct based on ex post facto grounds.)

This means that Al Bahlul III could have significant ramifications for the allocation of jurisdiction between Article III courts and military commissions for the prosecution of inchoate terrorism-related offenses going forward. Continue Reading »

Power Wars Symposium: A Study in Contrasting Views of Executive Authority

Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura DonohueJennifer DaskalJennifer Daskal & Steve VladeckRichard Pildes, David Golove, and Bob Bauer.

The numerous reviews and commentary generated by Charlie Savage’s powerful Power Wars, including in this symposium, may prove as valuable as the impressive book itself. They are a testament to Savage’s success here and in his first book, Takeover, in chronicling and analyzing how the two presidential administrations of the 21st Century have dealt with extraordinary challenges to national security, executive authority, and the rule of law.

In this post, I’ll address one recurring theme of the commentaries that has surprised and concerned me. Power Wars details the considerable extent to which the Obama administration has restored the rule of law to its traditional role as a constraining force on executive branch action. What concerns me is the extent to which several commentators have questioned whether and how law should constrain executive action. And, related to that, they also question whether presidential legal advisors, traditionally led by the Office of Legal Counsel, should offer their best, honest, accurate interpretations — as opposed to merely reasonable or plausible interpretations.

To be clear, I believe that Savage and his commentators raise important questions about the potential for legal advice to play an inappropriate role — for example, when it drives policy to the outer legal limits or is otherwise considered at the expense of full and optimal policy evaluation. Law does not answer all questions and, particularly on national security matters, relevant legal authorities may not be susceptible to one best interpretation.

Often, though, there is a best answer. Power Wars recounts time after time when Obama administration lawyers worked diligently with other officials to craft lawful, successful policies. That usually required close and difficult analysis of complex legal questions that in the end served the President well in fulfilling his constitutional obligation to act within the law as he led the nation on vital matters, both domestic and foreign.

It hardly takes going out on a limb to applaud those successes and embrace the mainstream of US legal thought and practice: Where there is a clear best interpretation of a legal constraint, I believe the President’s legal advisors should clearly convey that conclusion. And presidents should act within the legal constraints compelled by those interpretations.

Of course it is not always simple. Continue Reading »

News Roundup and Notes: November 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.


Russia is ready to coordinate airstrikes against ISIS as part of a joint command with the US, France and others, including Turkey, according to the Russian ambassador to France today. [Reuters]

The UN and NATO have called for calm following the downing of a Russian war plane by Turkish aircraft. Russian President Vladimir Putin described the incident as a “stab in the back by the accomplices of terrorists,” cutting off military ties with the Turkish defense ministry. Turkish President Recep Tayyip Erdogan said that everyone should respect his country’s right to defend its borders. [The Guardian’s Julian Borger]

US and European security leaders called for the restart of talks between NATO and Russia that stalled last year, eager to ensure the de-escalation of tensions in the Middle East, reports Bryan Bender. [Politico]

President Obama affirmed Ankara’s right to defend itself following the incident, and urged Turkey and Russia to engage in talks to avoid military escalation. [The Hill’s Jordan Fabian]

German Chancellor Angela Merkel said that “we have to do everything now to avoid a further escalation,” in a speech before parliament today. [AP]

One of the pilots is “alive and well” at a Russian air base in Syria, while the other, along with a marine sent in on a rescue mission, was killed. [BBC]

US-led airstrikes continue. The US and coalition military forces carried out 9 airstrikes against Islamic State targets in Syria on Nov. 23. Separately, partner forces conducted a further 17 strikes on targets in Iraq. [Central Command] Continue Reading »

The Government Should Stop Rewarding Bad Policies for Police Body Cameras

Body cameras have major potential to increase police accountability. However, without informed policies governing their use, they might not only fail in this goal, they could actually increase street-level surveillance and the targeting of minorities. Cameras may be intended to better review police conduct but these cameras aren’t pointed at officers — they’re recording the community around them. Unfortunately, so far, federal funding is pushing local police departments in the wrong direction. This is a problem we can fix, but the government will need to dramatically change course. Not only must it stop rewarding departments with bad policies, it needs to establish specific rules that protect civil rights and civil liberties as a condition to receive body camera funding.

Earlier this year, the Justice Department announced that it would provide funds for local and tribal law enforcement agencies to purchase body cameras, and condition grants on development of effective policies governing how the cameras are used. That makes sense. Many communities across the country are conflicted about body cameras, which have strong potential for improving accountability, but also carry the potential to become powerful surveillance tools that catalog the location and activities of citizens en masse. But a new study released this month suggests that DOJ is failing in its efforts; contrary to its commitment, the government handed out the biggest awards to cities with some of the worst body camera policies.

The study, the Police Body Worn Cameras Policy Scorecard, evaluates how more than two dozen police departments’ body camera policies stack up against eight criteria derived from a set of Civil Rights Principles for Body Worn Cameras. These criteria address a range of issues that include the privacy of individuals filmed, police retention and use of footage, public access and transparency, and limits on use of body cameras in combination with biometric data. The principles were released in May by the Leadership Conference for Civil and Human Rights with the backing of 34 civil society organizations, including the ACLU, the NAACP, La Raza, and New America’s Open Technology Institute. They are, at least in theory, closely aligned with the DOJ grant announcement for body camera funding, which states that awards would be conditioned on adoption of good policies on technology usage, evidence acquisition, data storage and retention, privacy issues, accountability, and transparency and accessibility.

But the scorecard shows just how out of sync DOJ’s funding is with critical civil liberties goals. Continue Reading »

No War Crime? No War Crimes Trial!

Editor’s Note: This is the most recent post in a mini-symposium leading up to next week’s en banc oral argument in the DC Circuit in Al Bahlul v. United States. You can check out all of the pieces in the series here.

When the DC Circuit first decided Ali Hamzi al Bahlul’s ongoing appeal en banc last year, they decided that it was not “plain error” to allow his conviction for conspiracy to stand because there was a history of prior military commission convictions for this charge. Since al Bahlul had not objected to the charge at trial, the court held that the issue had not been formally preserved for appeal, failing to qualify for the traditional de novo review accorded to questions of law. They then remanded four constitutional questions, including whether the inclusion of conspiracy — which all sides now concede is not a war crime under international law — in the Military Commissions Acts (MCA) of 2006 and 2009 exceeded congressional authority under the Define and Punish clause and usurped Article III’s commitment of the judicial power to the federal courts. After a three judge panel invalidated the conviction earlier this year, the case is returning for another en banc reconsideration next week.

The parties have been directed to address the standard of review, suggesting potential interest in deciding the case on some basis other than the constitutional legitimacy of committing an offense not recognized as a war crime to a law of war tribunal. I think that doing so would be an injustice to al Bahlul (admittedly not a sympathetic appellant, particularly given recent world events), a departure from the key role of the courts as the protectors of the constitutionally mandated separation of powers, and a decision that will put any future captured American military personnel at risk. I have both written a law review article identifying flaws in the government’s historical arguments in favor of conspiracy charges and submitted an amicus brief advocating reversal.

Few now remember al Bahlul’s original request to be allowed a Yemeni attorney consistent with general international law mandates to the right to counsel of choice, and the practice of virtually all previous law of war trials which have allowed foreign defendants to be represented by co-national counsel at the prosecuting nations’ expense. When that request was denied on the grounds that the MCA limits defense counsel to US nationals, al Bahlul elected to exercise the right of self-representation granted by that same statute. It was only when that right was also denied at the government’s request that he refused to mount any defense other than voicing objection to the commission’s jurisdiction — arguably preserving that fundamental claim.

Military commission jurisdiction has always been subject to strict legal limits, with three distinct historically recognized usages. Continue Reading »