Show sidebar

A Test Case for Guantánamo’s New Convening Authority

The latest Guantánamo military commission case to make headlines—the new charges against Encep Nurjamen (a.k.a. Hambali)—is shrouded in an unusual amount of secrecy. But when that veil is lifted, it reveals a charge sheet containing a legal flaw significant enough for the Pentagon’s newly appointed senior official in charge of such matters—Convening Authority Harvey Rishikof—to demand a do-over. Otherwise, it’s likely to provoke yet another major legal challenge to the jurisdiction of the Guantánamo tribunals, along the lines of the two analogous challenges with cert. petitions pending before the U.S. Supreme Court.

The charges are significant. According to the government, Hambali directed the 2002 Bali nightclub bombings and the 2003 attack on the Marriott hotel in Jakarta. If true, then that’s ever-more reason for the government to get the legal charges right—and in a more perfect world to do so in a federal civilian court that doesn’t suffer from the same continuing challenges to its basic legitimacy. For the foreseeable future, however, Hambali’s fate rests with the military commission process, and the flaw in the charges against him could present yet another stain on that institutional apparatus—as well as a major threat to a successful prosecution.

So what’s the flaw? Continue Reading »

Timeline: Trump’s Acts of Appeasement/Accommodation to Russia

 

 

I recently published a timeline called, “Russian Provocations and Dangerous Acts since January 20, 2017,” Below is a new timeline of publicly reported events of Donald J. Trump’s acts of accommodation toward Russia since the U.S. presidential election. Some readers may view several of these steps as acts of rapprochement to try to develop a more cooperative relationship with Russia, for example, to fight common enemies and avoid dangerous escalation. Other readers may view several of these steps as incriminating evidence of quid pro quo or a dangerous appeasement to an adversary who attacked and will likely attack again the U.S. democratic system.

Am I missing anything? If so, tell us over at Just Security’s or my Twitter account.

November 8-May 9: May 9 marks the final day that FBI Director James Comey serves in office. In his testimony before the Senate Intelligence Committee, Comey is later asked (by Senator Joe Manchin) whether President Trump showed “any concern or interest or curiosity about what the Russians were doing.” Comey responds that he does not recall any conversations with Trump about Russian election interference during the former FBI Director’s time in office. Comey is also asked (by Senator Martin Heinrich): “Did the President in any of those interactions that you’ve shared with us today ask you what you should be doing or what our government should be doing or the intelligence community to protect America against Russian interference in our election system?” Comey says he does not recall any conversation like that–“never.” (Politico – full transcript of testimony)

November 14: In their first official phone call, President-Elect Trump and Russian President Vladimir Putin agree on the “absolutely unsatisfactory state of bilateral relations” between Russia and the U.S., and the two leaders agree to meet at some point in the future. (New York Times)

November 18: President-Elect Trump names retired Lt. Gen. Michael Flynn as his National Security Advisor, stirring controversy in part because of Flynn’s ties to Russia. (Washington Post)  In 2015, Flynn accepted payment from RT – a Russian propaganda channel –  to attend the station’s gala event in Moscow. President Putin also attended the gala, and RT later publishes photos of the two dining next to each other.

Early-December: Russian Ambassador Sergey Kislyak meets with former National Security Advisor Michael Flynn and Trump Senior Advisor Jared Kushner in Trump Tower. The meeting is not disclosed to the public until March 2017. According to the White House in March, its purpose was to “establish a line of communication.” (New York Times). It is later revealed that in the meeting, Kushner suggested setting up a secure channel between the Trump transition team and the Kremlin, to be hosted at the Russian embassy or consulate. (Washington Post)

December 12: President-Elect Trump officially nominates Rex Tillerson as Secretary of State, drawing some controversy around Tillerson’s close relationship with Russia, having previously engaged in joint ventures with Rosneft, a state-backed Russian oil company, while CEO of Exxon-Mobil, and having received the Order of Friendship from Russia in 2013. (New York Times)

Mid-December (possibly the 13th or 14th, according to flight data reviewed by the Washington Post): Senior Trump Advisor Jared Kushner meets with Sergey Gorkov, chairman of Russia’s government-owned Vnesheconombank (VEB) and a close ally of President Putin, at Russian Ambassador Kislyak’s request. The bank was placed on the sanctions list following Russia’s annexation of Crimea. (New York Times)

December 29: Shortly after the White House notifies Russia of sanctions that the Obama administration will impose for election interference, Michael Flynn speaks with Russian Ambassador Kislyak. During the phone call, Flynn discusses the sanctions. According to several current and former officials who read transcripts of the call, Flynn told Kislyak that Russia should not overreact to impending sanctions for election interference because the Trump administration would be in a position to revisit the sanctions and change policy toward Russia. (Washington Post)

December 29: Within four hours of the Obama White House’s announced sanctions against Russia for election interference, President-Elect Trump issues a written statement saying “it’s time for our country to move on to bigger and better things.” (Fox News Politics)

December 30: Following Russia’s surprise turnaround decision not to respond to the U.S. sanctions in kind, President-Elect Trump tweets: “Great move on delay (by V. Putin) – I always knew he was very smart!” (Twitter) Putin’s decision came as a surprise in part because Russian Foreign Minister Sergey Lavrov had earlier said in  televised remarks, “Of course, we cannot leave these sanctions unanswered … Reciprocity is the law of diplomacy and international relations.” (ABC News).

January 11: The United Arab Emirates helps set up a secret meeting in the Seychelles between Erik Prince, the founder of Blackwater and a Trump supporter (and brother of Betsy DeVos), and a Russian official close to President Putin whose identity is not disclosed. The apparent purpose of the meeting is reportedly to test Russia’s commitment to Iran and to set up a communication channel between President-Elect Trump and Moscow. Both the White House and Blackwater later deny that the meeting had a diplomatic purpose. (Washington Post)

January 11: At a news conference, President-Elect Trump says he “think[s] it was Russia” that hacked the 2016 U.S. election but diminishes its significance, adding “but I think we also get hacked by other countries and other people,” drawing comparisons to other incidents of hacking that have drawn less news coverage, and suggests that the DNC left itself open to hacking and deserves some blame. (CNBC)

Post-January 20: In the “early weeks” of the administration, “top Trump administration officials, almost as soon as they took office, tasked State Department staffers with developing proposals for the lifting of economic sanctions,” until their efforts were blocked by State Department officials and members of Congress (Yahoo News’ Michael Isikoff reporting with source on-the-record)    

January 20-early February: National Security Advisor Michael Flynn advocates for closer military communication with Russia to fight ISIS. According to several current and former Pentagon sources, Flynn suggested that a military communications channel established to prevent in-air collisions be expanded for other purposes. Both the Pentagon and CentCom oppose Flynn’s idea. (Daily Beast)

January 26-February 13: Acting Attorney General Sally Yates meets personally with White House Counsel Don McGahn about National Security Advisor Flynn’s conversations with Russian Ambassador Kislyak in December. Yates warns the White House Counsel that Flynn’s saying that he did not discuss sanctions with the Russian Ambassador is untrue and that in her view Flynn is accordingly vulnerable to being blackmailed by Russia. Yates is fired on January 30th for refusing to enforce the immigration ban. (ABC News). It is not until February 13 that Flynn is asked to resign following a Washington Post story revealing the meeting with Yates and the White House Counsel. (New York Times)(Washington Post)

February 14:The New York Times reports that Russia has deployed a cruise missile in violation of the Intermediate-Range Nuclear Force (INF) treaty between the two countries. In congressional testimony, Gen. Paul Selva, the vice chairman of the Joint Chiefs of Staff states, “we believe that the Russians have deliberately deployed it in order to pose a threat to NATO and to facilities within the NATO area of responsibility.” The administration does not issue a public statement rebuking Russia. When President Trump is asked about the violation in a February 24 interview with Reuters, he says, “To me, it’s a big deal” and that he “would bring it up” with President Putin “if and when we meet.” (New York Times; Reuters)

March 17: German Chancellor Angela Merkel visits the White House for a meeting with President Trump. At the meeting, following a reporter’s request that they shake hands, Merkel asked Trump if he wanted to oblige the reporter for a handshake, but he ignores her. (BBC) Trump later tweets that it was a “GREAT” meeting, but reiterates that Germany has to invest more in NATO. (Twitter)

March 21:The State Department announces that Secretary Rex Tillerson will not attend his first NATO meeting in Brussels on April 5-6, and will instead stay in the U.S. to meet with Chinese President Xi Jinping and President Trump at Trump’s Mar-a-Lago resort in Florida. During the same announcement, the State Department notes that Tillerson will travel to Russia in April, drawing criticism that the administration is prioritizing Russia over historical allies and the NATO alliance. (Reuters) Subsequently, the State Department offers new dates to reschedule the NATO meeting so that Tillerson can attend. (Reuters)

March 31: Secretary of State Rex Tillerson meets with NATO leaders in Brussels. In his remarks, Tillerson says: “As President Trump has made clear, it is no longer sustainable for the U.S. to maintain a disproportionate share of NATO’s defense expenditures. Allies must increase defense spending.” (Washington Post)

April 2-27 Response to U.S. Ambassador to the United Nations Nikki Haley

  • April 2: In an interview, U.S. Ambassador to the United Nations Nikki Haley says: “Certainly I think Russia was involved in the U.S. election.” (Bloomberg)
  • April 5: UN Ambassador Nikki Haley criticizes Russia for obstructing UN action on Syria and for supporting Syrian dictator Bashar al-Assad. She says Russia made an “unconscionable choice” by opposing a resolution condemning the use of chemical weapons, and rhetorically asks “how many more children have to die before Russia cares?” (Fox News Politics)
  • April 24: During a working lunch with UN Security Council ambassadors including UN Ambassador Nikki Haley, President Trump jests, “Now, does everybody like Nikki? Because if you don’t … Otherwise, she can easily be replaced.” (Washington Post)
  • April 27: Secretary of State Tillerson sends UN Ambassador Haley an email instructing her that from then on her comments should bere-cleared with Washington if they are substantively different from the building blocks, or if they are on a high-profile issue.” (New York Times)

April 23: In an Associated Press interview, President Trump expresses strong support for far right candidate Marine Le Pen in upcoming French elections; Le Pen is supported by President Putin and promises to remove France from the EU, a long-term goal for Putin. Le Pen had also visited Trump Tower in January. [AP; Politico]

May 10: Secretary of State Tillerson meets with Russian Foreign Minister Lavrov and Ambassador Kislyak and says the US would no longer require Russia to unfreeze the construction of an American consulate in St. Petersburg before it considered handing back seized Russian diplomatic compounds in Maryland and New York as part of the Obama sanctions for election interference – a reversal of the position staked out two days prior by Undersecretary of State Thomas Shannon. (Washington Post)

On May 10: during the Oval Office meeting with Russian Foreign Minister Lavrov and Ambassador Kislyak, President Trump:

  • tells the Russian officials that he had fired the “nut job” FBI director (James Comey) who  was investigating Russian election interference. Trump also says he had faced “great pressure” because of Russia, which had now been relieved. (New York Times)
  • discloses highly classified information to the Russian officials. The intelligence was  provided by Israel which had not authorized the U.S. to share it. (Washington Post) It is later revealed that the intelligence centered on Syrian extremist bomb-making plans, which was obtained in part through highly classified cyberoperations, the disclosure of which “infuriated” Israeli officials (New York Times) Israel subsequently changes its intelligence sharing protocols with the United States (New York Times; Voice of America)
  • does not allow any US press into the Oval Office, but does allow TASS, the Russian state-owned news agency (Washington Post)
  • does not disclose to press that Kislyak attends the meeting until TASS publishes photographs showing him in the room (NBC News); the White House release following the meeting only mentions Lavrov
  • apparently avoids the issue of Russian election interference (in an interview afterwards, National Security Advisor Lt. Gen. H.R. McMaster refuses to confirm that Russian interference was discussed, even when asked directly about it) (ABC News).

May 10: Following the meeting with President Trump, Russian Foreign Minister Lavrov tells TASS: “At present, our dialogue is not as politicized as it used to be during Obama’s presidency. The Trump administration, including the President himself and the Secretary of State, are people of action who are willing to negotiate.” (TASS)

May 25-26: Arriving in Europe with President Trump, White House economic advisor Gary Cohn tells reporters the U.S. is “looking at” the future of sanctions on Russia. When pressed on what the U.S. position currently is, he says: “Right now we don’t have a position.” (ABC News) The following day, Cohn counters that position, saying the U.S. will not lower sanctions on Russia and, “if anything, we would probably look to get tougher.” (Politico) Continue Reading »

Congratulations to Fionnuala Ní Aoláin, New U.N. Special Rapporteur on Human Rights and Countering Terrorism

Just Security‘s editorial board is the bedrock of our success. Its members provide indispensable commentary and analysis on which our readers rely to make sense of the latest developments occurring at the intersection of national security, rights, and liberties. With this in mind, we are thrilled to announce that our Executive Editor, Professor Fionnuala Ní Aoláin has been appointed UN Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism. A quick scan of her writing at Just Security reveals the deep expertise behind her work to ensure that rights and freedoms, especially those protecting the most vulnerable, are central to legitimate government pursuits of security.

Please join us in congratulating her on this exciting new career development!

Rethinking US Security Assistance Beyond the Leahy Law

An American special operations soldier observing Burkina Faso troops practice clearing a vehicle.

I just had the pleasure of speaking alongside Colonel Carl Kelly, Chief of Staff for the U.S. Army’s Special Forces Command, at the opening plenary of a conference on Security Assistance and Human Security at the University of North Carolina. I was pleasantly surprised to see how much we agreed on – and dismayed to think about how little difference it would make.

The conference was under the Chatham House Rule, so I won’t attribute comments to anyone but myself. But there was widespread head nodding to my broad point that security assistance is highly effective at training troops to execute missions and tactics – while failing to do anything to actually improve security when a country’s security goals were not aligned with our own.

That’s a polite way of saying that the U.S. gives security assistance to about 124 states – all but 13 on the Fragile States Index – and the vast majority of these states are not weak due to a lack of money or ignorance, but because the governments are complicit in supporting non-state violent actors and governmental violence that is ravaging their citizenry.  This is stunningly obvious in, for instance, Yemen, where years of U.S. assistance have made the U.S. complicit in an Abu Ghraib-style torture scandal that is getting lost in the circus that is the Trump media cycle.

The “weak states” thesis that prevailed after 9/11 conveniently merges countries that lack the ability to protect their citizens with those that lack the will. My fabulous research assistant, Elena Barham, and I are in the midst of crunching numbers that will show that there is a large category of countries which have the ability to deliver public goods – but whose delivery of state services is highly skewed towards some parts of the population. In these same states, minority rights are systematically violated, and journalists mysteriously turn up dead.

These countries aren’t too weak to deliver services. Continue Reading »

The Early Edition: June 28, 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.

SYRIA

The Pentagon stepped up preparations for a possible strike against the Syrian regime yesterday in light of intelligence that Washington said signaled that President Assad was preparing another chemical weapons attack, Dion Nissenbaum and Thomas Grove report at the Wall Street Journal.

The U.S. has observed chemical weapons activity at known production facilities and the activity is at least partly centered on an aircraft hangar at the Syrian government’s Shayrat air base, Pentagon spokesperson Marine Maj. Adrian Rankine-Galloway said yesterday, Louisa Loveluck, Dan Lamothe and Ellen Nakashima reporting at the Washington Post.

“We just refuse to get drawn into a fight there in the Syria civil war, we try to end that one through diplomatic engagement,” Defense Secretary Jim Mattis said yesterday, avoiding addressing the White House warning to the Assad regime on Monday or the nature of the intelligence on which the warning was based, Julian Borger reports at the Guardian.

Concerns that the Trump administration is escalating U.S. involvement in the Syrian War without a clear strategy and objectives were expressed by U.S. lawmakers yesterday, Rebecca Kheel reports at the Hill.

A U.S.-led coalition airstrike on an Islamic State prison near al-Mayadeen in eastern Syria Monday resulted in high numbers of civilian deaths, according to Syrian activists and monitoring groups, a U.S. military spokesperson responding that the civilian deaths would be investigated and that the coalition targets command-and-control facilities and other Islamic State infrastructure, Ben Hubbard reports at the New York Times.

A second strike near to the Islamic State-held town of al-Mayadeen killed at least 30 civilians this morning, the U.K.-based Syrian Observatory for Human Rights said today, adding that the identity of the jets that carried out the strike was unknown. Reuters reports.

Turkey returned fire after a cross-border attack by the U.S.-backed Syrian Kurdish Y.P.G. forces, the Turkish military said today. The AP reports.

“We are at a time of testing whether the political will exists for real de-escalation and more meaningful political talks and movement beyond preparatory talks,” U.N. special envoy to Syria Staffan de Mistura said yesterday, expressing hope that Syria peace talks scheduled for July 10 will result in significant progress, the AP reports.

While President Trump has drawn a new “red line” for Assad with U.S. officials describing preparations at the Shayrat airbase in an attempt to bolster his threat to deter an attack, the administration has not elaborated on what exactly the president meant when he said that Assad would pay a “heavy price” if he conducted another chemical attack on his own people, causing uncertainty in both the U.S. and the Middle East, Michael D. Shear, Helene Cooper and Eric Schmitt write at the New York Times.

U.S.-led airstrikes continue. U.S. and coalition forces carried out 27 airstrikes against Islamic State targets in Syria on June 26. Separately, partner forces conducted four strikes against targets in Iraq. [Central Command]

TRUMP-RUSSIA INVESTIGATION

Donald Trump campaign chairman Paul Manafort’s consulting firm received over $17 million over two years from a Ukrainian political party linked to the Kremlin, he disclosed yesterday in a filing that serves as a retroactive admission that he performed work in the U.S. on behalf of a foreign power without disclosing it, which is required by law, Nicholas Confessore, Mike McIntire and Barry Meier report at the New York Times.

Former Hillary Clinton campaign chairman John Podesta was interviewed by the House Intelligence Committee yesterday as part of its investigation into Russian interference in the presidential election, Podesta, whose personal email account was hacked and the contents passed to WikiLeaks in the lead-up to the election, indicating afterward that the panel had been interested in what he knew about Russian hacking. Katie Bo Williams reports at the Hill.

GULF-ARAB DISPUTE

The list of 13 demands issued to Qatar by four Arab nations is non-negotiable, Saudi Foreign Minister Adel al-Jubeir said yesterday, stating that it’s up to the Qataris to amend their behaviour.” Al Jazeera reports. Continue Reading »

Unlocking the Mysteries of the Supreme Court’s Entry Ban Case

Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why.  With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.

1. Why did the Court grant certiorari in a case it almost certainly will not decide?

As I’ve explained in a series of posts, the 90-day “entry ban” will expire before the Court hears argument in October.* Why, then, did the Court bother to grant the petitions in cases it almost certainly will not decide?  And, as Will Baude asks,”[w]hy didn’t the Court say more about the endgame it seems to have deliberately set up,” where “[i]t does rather seem as if the effect of today’s ruling is to schedule the case for an argument date that it will never reach”?

I think there might be a very simple, pragmatic answer to this question, one that the Court did not expressly offer for understandable reasons:  The Justices know full well what I and others have been stressing over the past couple of weeks–namely, that all of the action that matters will occur over the summer, i.e., during the next 90 days.  It appears that a majority of the Court also wanted to affirm the preliminary injunctions against the bans during that “review” period for the most part, but also wanted, for whatever reasons (see below), to trim back the injunctions so that they would not protect aliens who have not yet developed close ties to the United States.  The only way for the Court to be able to so tailor the preliminary injunctions, however, was to grant the cert. petitions, because the government had applied for stays “pending appeal.”  Without a live appeal–if cert. were denied–the Court would not have had any obvious authority to put its mark on the summer injunctions.  Hence, the pragmatic, immediate need to grant the petitions.  The stay application “tails,” in other words, wagged the cert. petition dogs.  Or so it seems from this vantage-point, anyway.

2.  Why did the Court permit the preliminary injunctions to run against some aliens unconnected to the plaintiffs?

The most vulnerable part of the preliminary injunctions was always their virtually unlimited scope:  They enjoined application of the entry ban not only to aliens who had some connection to the U.S. persons and state parties who were plaintiffs in the two cases, but to all aliens who are nationals of the six named countries, regardless of whether they have any alleged connection to the plaintiffs.  Justice Thomas, in his partial dissent, is right to note the ordinary rule that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” in the case.  Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (emphasis added).  [An exception to this general rule might be found in court-of-appeals review of agency rulemaking:  The Administrative Procedure Act appears to empower such courts to “set aide” an agency rule, even in a case brought by a single plaintiff, upon a finding that the rule is arbitrary and capricious, unconstitutional, or “in excess of statutory jurisdiction.”  5 U.S.C. § 706(2)(C).  It’s not clear whether that APA authority applies in these cases.]

The U.S. Court of Appeals for the Fourth Circuit, in the IRAP case, reasoned that an across-the-board injunction is necessary to provide relief to the Muslim plaintiffs in that case under their Establishment Clause claim, because enforcement of the entry ban against anyone from the covered nations “would only serve to reinforce the ‘message’ that Plaintiffs ‘are outsiders, not full members of the political community.’”  It is, safe to say, extremely unlikely that the Supreme Court would eventually adopt this understanding of cognizable Establishment Clause injury, at least for purposes of standing; indeed, yesterday’s per curiam decision implicitly suggested that, as the Court sees it, any injury to the plaintiffs in the cases is fully remedied if aliens with whom they have specific connections are not barred from entering the United States.

What is striking about the per curiam opinion, therefore, is that the Court goes on to uphold the preliminary injunctions as applied to many aliens who have no connections with the U.S. persons and entities who are plaintiffs in the two cases.  Justice Thomas is right to wonder what’s going on there.  Why do the Chief Justice and five other Justices ratify injunctions that are, on their view, plainly broader than what is necessary to give full relief to the named plaintiffs?

Here’s one speculative answer:  Some or all of the Justices in the per curiam might well be uneasy about the increasing practice of district court judges to offer relief to nonparties that goes beyond what is necessary to protect the parties.  Even so, the Justices also know full well that there are many other cases in the pipeline–and many more, besides, that surely will be filed in the wake of the court of appeals’ decisions–that involve countless numbers of plaintiffs with connections to some aliens who are nationals of the six named countries.  Some of those cases might even involve certified classes of plaintiffs, and classwide relief.  Thus, even if the Court had cut back the two preliminary injunctions to be limited to aliens with connections to the plaintiffs in the two cases, it’d be inevitable that follow-on injunctions would proliferate, covering similarly situated aliens throughout the land.  Moreover, these cases are now in the Supreme Court, not the district courts.  And the ordinary (and appropriate) effect of a Supreme Court decision declaring a widespread government action to be unlawful is that the government stops engaging in that action across the board, even in the absence of a “nationwide” injunction.  Yesterday’s per curiam was, implicitly, the expression of at least a tentative view of the Court that the entry ban is unlawful–the sort of holding that ordinarily would result, at least at the merits stage, in a de facto categorical cessation of the unlawful government conduct. Continue Reading »

Saif Gaddafi’s Release and the Challenge for International Criminal Justice

Saif Gaddafi in 2005

Six years after his capture during the Arab Spring uprising against his father Muammar Gaddafi, and despite pending charges in the International Criminal Court, Saif al Islam Gaddafi has been set free by his captors, a western-Libyan militia known as the Abu Bakir Siddiq Brigade. Although he had no official position in the administration of his dictator father, Saif Gaddafi was influential and expected to succeed his father as Libya’s leader. Whether he will mount a campaign to return to power is yet to be seen, but his newfound freedom is sure to make his political opponents anxious. His release also poses a challenge to the United Nations and the International Criminal Court (ICC), which have sought his extradition to face ICC charges, and undermines the potential of the international criminal justice system to help bring peace to the country.

Saif Gaddafi’s release, which took place under the General Amnesty Law passed by the House of Representatives – a body unrecognized by the international community – reflects the power vacuum left in the wake of his father’s toppling. According to this law, perpetrators of torture, terrorism, corruption, rape, and ethnically-motivated murder are not covered by the amnesty, but its stipulations for forced displacement, kidnapping or forced disappearance, and extrajudicial killings are opaque. The Office of the General Prosecutor in Tripoli released a statement last week clarifying that the General Amnesty did not protect Saif Gaddafi. Yet the lack of a unified, central government and ensuing disarray in the country’s political system means that Saif Gaddafi’s fate remains unpredictable as does Libya’s political future. For example, an Islamist assembly that is also based in Tripoli and calling itself the Government of National Salvation has been challenging the authority of the weak but UN-backed Government of National Accord and seeking its overthrow while another rival faction, the House of Representatives, operates from the eastern city of Tobruk. The GNA has been unable to establish order, consolidate the rule of law, and build democratic institutions. Moreover, since the revolution began, Libya has become a hotbed of violent extremism and despite international efforts to defeat ISIS, the group continues to operate in the country. In March of this year, the Pentagon’s head of Africa Command warned, “The instability in Libya and North Africa may be the most significant near-term threat to U.S. and allies’ interests on the continent.” 

In 2015, the Court of Assize in Tripoli sentenced the younger Gaddafi to death in absentia for his role in the killing and torture of civilians during the revolution. His captors in Zintan refused to comply with the order to hand him over, claiming they did not trust the authority and capacity of the court. The UN also cast doubt on the Tripoli trials, instead advocating for Gaddafi to face international criminal justice processes. (A UN report released in February concluded that the trials failed to meet international standards of due process and were motivated by vengeance.) The UN called for the central government to recover Gaddafi from the rebel held territory and transfer him to The Hague to face charges of murder and persecution.  Continue Reading »

The “Leahy Law” Prohibiting US Assistance to Human Rights Abusers: Pulling Back the Curtain

 

With almost weekly news reports of US support for foreign governments with track records of gross human rights abuse—think torture in Yemen by Emirati security forces, violations by Iraqi forces in Mosul, or extrajudicial killings by police in the Philippines—it is worth focusing attention on the statute intended to bar some of this assistance. In the fall of 2013, I assumed the role of overseeing implementation of the so-called Leahy Law, and the accompanying process commonly referred to as “Leahy vetting” for the Bureau of Democracy, Human Rights and Labor (DRL). The Leahy Law is the colloquial term for a provision of the Foreign Assistance Act (section 620M) and its twin provision in the National Defense Authorization Act. There are some important differences between the State and DOD laws, but for the sake of simplicity, I will deal primarily with the Department of State’s law or the features that are common to both.

The Leahy Law is intended to prevent US-funded assistance from reaching specific security force units or individuals who have committed gross violations of human rights. Less commonly acknowledged, the law is also intended to promote accountability for violations through its “remediation” clause which allows the restoration of eligibility for US assistance once violators have been held to account.  Anybody who has touched the Leahy Law has an opinion about it, but it’s hard to find anybody fully satisfied by the way it is interpreted or implemented. Human rights advocates tend to love the law but believe it is not applied comprehensively or rigorously enough.[1] Many people inside State and DOD privately tend to resent the law as a noxious irritant at best or a dangerous threat to US national security at worst. (The Leahy Law may be unrivaled in its ability to generate hyperbole.) Continue Reading »

The Early Edition: June 27, 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.

SYRIA

“The United States has identified potential preparations for another chemical weapons attack by the Assad regime,” White House press secretary Sean Spicer said in a statement yesterday, Felicia Schwartz reporting at the Wall Street Journal.

Syrian President Bashar al-Assad would “pay a heavy price” if he carried out another chemical weapons strike, the White House warned in the unusual statement, which caught several military officials off guard, Michael D. Shear, Helene Cooper and Eric Schmitt report at the New York Times.

The activities identified by the U.S. are “similar to the preparations the regime made” before its Apr. 2 attack, the statement added, reiterating that the U.S. mission in Syria is to combat the Islamic State group but that a chemical attack from the Assad regime would not be without consequences, Abby Phillip and Dan Lamothe report at the Washington Post.

The assessment of the potential for a chemical weapons attack was based in part on the location of suspected sites and the security surrounding them, as well as other information, according to an anonymous official, adding that the intelligence was not conclusive but the Trump administration hoped that a warning would deter Assad, Jeff Mason and John Walcott report at Reuters.

“Any further attacks done to the people of Syria will be blamed on Assad, but also Russia & Iran who support him killing his own people,” U.S. ambassador to the U.N. Nikki Haley tweeted yesterday, adding her voice to the White House’s surprising and risky public warning against Assad and his backers. Bryan Bender and Annie Karni write at POLITICO.

The Kremlin dismissed the White House’s warning to Assad, Russian President Vladimir Putin’s spokesperson saying that “such threats to Syria’s legitimate leaders are unacceptable,” the AP reports.

“The U.S. is readying a new attack on Syrian forces, that’s obvious,” the deputy head of the defense and security committee in Russia’s upper house of Parliament Frants Klintsevich said today in response to the White House statement, Alex Johnson reporting at NBC News.

Russian Foreign Minister Sergey Lavrov and Secretary of State Rex Tillerson discussed the need to secure a cease-fire in Syria in a phone call yesterday, the AP reports.

The possibility of the U.S. supplying the Syrian Kurdish Y.P.G. militia with weapons after the capture of Raqqa from the Islamic State group was left open by Defense Secretary Jim Mattis in his first public appearance on the issue today, which may further complicate U.S.-Turkey relations as Turkey consider the Y.P.G. to be a national security threat, Phil Stewart reports at Reuters.

Iran’s expansionism and meddling in Syria must not be left unchecked, and the lack of a U.S. strategy to counter Iran’s growing influence has the potential to further destabilize the Middle East, David Horowitz writes at The Daily Beast.

The MUSLIM BAN

The U.S. Supreme Court allowed the Trump administration to implement part of the revised travel ban on travelers from six Muslim-majority countries but said that the ban could not be imposed on anyone who had “a credible claim of a bona fide relationship with a person or entity in the United States” in an opinion released yesterday which sets up a historic legal fight in which the president’s power to set national security priorities will be weighed against the need to protect individuals from discrimination based on their nationality or religious belief. Michael D. Shear and Adam Liptak write at the New York Times.

President Trump welcomed the Supreme Court’s decision as a “clear victory for our national security” in a statement released yesterday.

The court’s action represents a significant reversal of fortune for President Trump and means that a limited version of his travel ban can take effect in as soon as three days, but also raises the immediate question about which travelers would qualify for the court’s “bona fide” exception, writes Brent Kendall at the Wall Street Journal.

What is a “bona fide” relationship? This question will be litigated aggressively over the summer – as was anticipated in the partially dissenting opinions of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – the Supreme Court providing general guidelines: for example, a family member of someone living in the U.S., a student admitted to a university or a worker with an employment offer, whereas relationships that exist only to get around the ban are not acceptable. The New York Times editorial board anticipates what will follow yesterday’s decision by the Supreme Court.

The decision may not be a total loss. Even though it implies that the court is skeptical of the arguments against parts of the executive order, its decision to allow the ban to go into effect only against applicants who have few ties to the U.S. may mean it will decide to protect immigrants with close ties to the country, David J. Bier writes at the Washington Post.

The Supreme Court’s decision is likely to affect refugees from some of the world’s most dangerous places while allowing for a flow of visitors from the six countries identified in Trump’s revised ban – Iran, Libya, Somalia, Sudan, Syria and Yemen – albeit in smaller numbers, writes the Washington Post editorial board.

The revised ban remains largely enjoined since travelers without a real connection to the U.S. wouldn’t be able to get visas anyway, legal experts taking a closer look at the Supreme Court’s decision suggest. Sabrina Siddiqui writes at the Guardian.

Any victory for Trump in the Supreme Court’s decision is only partial and only temporary: the Court did agree to hear the case, but it also guaranteed that it will never tender a decision on the merits because the hearing will not happen until much of the order has expired anyway – that is, apart from the separate opinion partly dissenting from the per curiam of the court, in which three justices gave their view that the ban should go into effect now in its totality based partly on the opinion that it is probably valid, signaling that they are less than invested in the attempt at statesmanlike compromise the per curiam decision represents. Richard Primus writes at POLITICO MAGAZINE.

Whatever happens, it’s important to remember that the travel ban makes little sense on its face. Ishaan Tharoor at the Washington Post reminds us that the two federal appeals courts that ruled against the ban said it was neither discriminatory toward Muslims nor necessary for national security, and the Supreme Court will hear arguments in the case in the fall when, given that the ban was framed as “temporary” while the Trump administration looked at its vetting procedures, it may rule there is no longer a need for such a blanket ban.

TRUMP-RUSSIA INVESTIGATION

Former campaign adviser Carter Page has been repeatedly questioned about his Russia contacts and his interactions with the Trump campaign by F.B.I. agents as part of the agency’s probe into Trump-Russia collusion, the most extensive known questioning of a possible suspect in the investigation so far, reports Devlin Barrett at the Washington Post. Continue Reading »

Ron Wyden Lights the Batsignal

There’s a reason privacy advocates are fond of Sen. Ron Wyden, and its not just because he routinely champions legislation aimed at protecting civil liberties. From his perch on the Senate Select Committee on Intelligence, Wyden is uniquely well situated to spot intelligence programs that strain the limits of the law or unduly encroach on Americans’ privacy.  And while Wyden takes his obligation not to reveal classified information seriously, he has a history of doing all he can to draw public attention to those potential problem areas.  Long before Edward Snowden revealed the NSA’s now-defunct mass database of domestic telephone records, Wyden was sounding the alarm about a secret and radical interpretation of the Patriot Act’s “business records” provision.  Most notoriously, at a public hearing in 2013, he pressed then–Director of National Intelligence James Clapper on whether NSA collected any type of data on Americans in bulk—and received the now-infamous answer “not wittingly,”  which seriously weakened Clapper’s credibility when it was revealed to be false just a few months later.

Privacy and surveillance wonks even have a tongue-in-cheek nickname for the intriguing hints the Oregon senator drops: Wyden’s “Batsignal.”

Well, it appears the Batsignal has been lit again.  At a recent hearing on the reauthorization of section 702 of the FISA Amendments Act—most of which was ultimately consumed by questions about Russia and former FBI Director James Comey—Wyden asked the new Director of National Intelligence,  Dan Coates, whether the government can use 702 “to collect communications that it knows are entirely domestic.”  Coates said it could not—”not to my knowledge”—and that it would be against the law to do so.

Here privacy geeks perked up their ears.  Section 702 allows the National Security Agency to target foreigners who use U.S. communications facilities for electronic surveillance without a warrant—even when they’re communicating with Americans, something that, before 2008, would have required a search warrant under the Foreign Intelligence Surveillance Act.  Inevitably, given that some 100,000 persons are targeted under the authority each year, NSA does end up inadvertently vacuuming up some entirely domestic messages in the process.  But the statute at least seems to contain a clear answer to Wyden’s question: The government “may not intentionally acquire any communication as to which the sender and all known recipients are known at the time of acquisition to be located in the United States.”  Wyden, of course, knows this full well—and so surveillance wonks quickly surmised the question might allude to some form of collection that was sweeping in domestic communications more systematically.

That suspicion was strengthened when Coates’ office followed up on Wyden’s question by citing the statutory language, and Wyden shot back a terse letter insisting that this “was not my question” and asking for  a public response to the query he’d posed.  Somehow, Wyden’s line of inquiry implied, the government had found a way to knowingly collect domestic communications without explicitly violating the statute’s prohibition.  But how?

One possibility that quickly occurred to many was that it might have something to do with the problem of what are known as “multiple communications transactions“: Internet sessions in which the contents of many messages are delivered in a single package, such as when a user loads their e-mail inbox via a web interface that shows previews of all their most recent messages.  When one message in such a stream triggered the NSA’s powerful filters, all of them would end up sucked into the agency’s database—and if the inbox in question belonged to an American, that might mean collecting dozens of entirely domestic messages along with the one that had contained a targeted “selector.”  The secret FISA Court had blasted this process as “unreasonable” under the Fourth Amendment, noting that it was likely to result in tens of thousands of constitutionally protected domestic e-mails being acquired without a warrant each year.  The public should certainly learn more about how the NSA has adapted its procedures to deal with the MCT problem, but it seems unlikely to be what Wyden was alluding to.  After all, this issue has been publicly known since 2013, and if Wyden had wanted to ask about it, he could have done so directly.

There’s another obvious possibility, however, that was suggested to my by Electronic Frontier Foundation attorney Andrew Crocker: What about domestic communications that are acquired from storage on a server after the sender or recipient has left the United States?  The statute, after all, does not explicitly say the government must not acquire messages whose sender and recipients were all in the United States at the time the message was sent–the language only requires that at least one party be outside the United States when the message is acquired.  So, for instance, a foreign student who spends the school year in the United States, then leaves the country for the summer, might be subject to having all his old messages—including correspondence with his American friends that was sent when all the parties involved were on U.S. soil—vacuumed up after the fact, as long as the NSA waits until the foreign target has left the country.

Something like this appears likely to have occurred in one of the few cases in which evidence derived from 702 was introduced in a public trial.  Mohamed Osman Muhamud, a naturalized U.S. citizen, was convicted in 2013 of plotting to bomb a Christmas tree lighting ceremony in Portland, Oregon.  Key to the case against him was e-mail correspondence with a Saudi-born suspected terrorist, Amr Solaiman Al-Alali, who had been enrolled as a student at Portland State University when he befriended Muhamud.  As the American Civil Liberties Union noted in a brief it filed in that case, any 702 surveillance targeting Al-Alai would likely have encompassed messages he exchanged with Muhamud while both were still in Oregon—messages clearly entitled to the full protection of the Fourth Amendment.

While it may not always be possible for the government to know which of a legitimate foreign target’s e-mails might have been sent or received while that target was in the United States, it would certainly be disturbing if the government were deliberately exploiting this loophole to gather messages that, at the time they were sent, could only have been collected by applying to a judge for a particularized search warrant. About a million foreign nationals are enrolled in American colleges and universities—in California they make up a tenth of the student population—and American peers who befriend those students should not have to worry that months or years worth of wholly domestic correspondence will be at risk of being vacuumed up without a warrant whenever summer break rolls around.

If this is indeed the loophole to which Sen Wyden sought to draw attention, Tuesday morning’s Senate Judiciary Committee hearing on 702 should provide an opportunity for senators to demand more details on how often the NSA exploits it, and whether reforms are needed to reassure Americans that their domestic e-mails, at least, can only be read by the government after a judge has signed a search warrant.

Photo: The Batsignal shines up from the convention floor during WonderCon 2016 at the Los Angeles Convention Center on March 25, 2016t: Frazer Harrison/Getty Images