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The Early Edition: July 28, 2016

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

IRAQ and SYRIA

US-backed Syrian Kurdish and Arab militias have seized over 10,000 documents and 4.5 terabytes of digital data from the Islamic State in the past few weeks while fighting the insurgents in Manbij, close to the Turkish border and a major hub for Islamic State fighters moving in and out of Syria. An initial review offers fresh clues about “foreign fighters, the networks, where they’re from,” Brett McGurk, the US’s special envoy for combating the Islamic State, has said. Eric Schmitt reports for the New York Times.  Operation Inherent Resolve spokesperson Army Col. Chris Garvey said yesterday that the information could also provide insight into the Islamic State’s plots outside of Iraq and Syria, reports Kristina Wong for the Hill.

The Russian and Syrian militaries will begin a “large-scale humanitarian operation” in Aleppo, Russia’s Defense Minister Sergei Shoigu said today. Three corridors will be opened for civilians to leave the city, and a fourth will be established for militants in the north of Aleppo, close to the Castello road. [Reuters]

Eight Eastern European countries have approved the sale of €1.2bn of weapons to countries known to ship arms to Syria, a year-long investigation by the Balkan Investigative Reporting Network and the Organized Crime and Corruption Reporting Project has found. Thousands of weapons including assault rifles, rocket launchers and anti-tank weapons are being sent via a new arms pipeline from the Balkans to the Arabian Peninsula and countries bordering Syria, and the suspicion is that they are ending up in Syria itself. Ivan Angelovski et al report for the Guardian.

The death toll from the Islamic State’s bombing attack in Syria’s predominantly Kurdish Qamishli yesterday continues to rise. As of last night, at least 50 had died, according to Al Jazeera.

Thousands of Afghan men are travelling to Syria to fight alongside the Syrian government and its allies, reports Kareem Fahim for the New York Times. Most of them are Shiite Muslims from the Hazara ethnic minority, and the chief motivation is lack of work at home.

“At some point there is going to be a terrorist diaspora out of Syria like we’ve never seen before.” Speaking at a cybersecurity conference at Fordham University yesterday, FBI Director James Comey warned that eventual victory against the Islamic State in Syria would push the “really dangerous” jihadists out, primarily into Western Europe. [New York Times’ Joseph Goldstein]

Al-Qaeda’s Syria branch the Nusra Front is considering splitting ties with the global terror group, its members have told the AP’s Bassem Mroue. It then intends to merge with other insurgent groups in Syria, a move that could complicate negotiations between the US and Russia on a military partnership in Syria, which involves separating militant fighters from other moderate rebel factions.  Al-Qaeda has issued an audio statement to its Syrian branch today telling it that it could break ties if it needed to, to preserve its unity and continue its battle in Syria, reports Reuters.

Hezbollah should be the US’s target in Syria. Daniel Serwer, a professor and director of the conflict management program at the Johns Hopkins School of Advanced International Studies, makes the case for focusing efforts on the group, which is “a major factor in the military balance in Syria” that has allowed Assad to “make progress against his opponents.” [Washington Post]

A series of bomb attacks in and around Baghdad, Iraq, yesterday have left at least 18 dead, officials have said. A provincial council south of Iraq’s capital has approved the demolition of homes of convicted militants and the banishing of their families from the province, the AP’s Sinan Salaheddin reports.

US-led airstrikes continue. US and coalition forces carried out 12 airstrikes against Islamic State targets in Syria on July 26. Separately, partner forces conducted 10 strikes against targets in Iraq. [Central Command]

TURKEY

A top-level military meeting chaired by Turkish Prime Minister Binali Yildrim today is likely to lead to a “major shake-up” within the armed forces, suggests Suzan Fraser in the AP. The Supreme Military Council, which yesterday discharged almost 1,700 officers on suspicion of involvement in the failed coup, is expected to announce more dismissals today.

Two of Turkey’s highest-ranking generals have resigned ahead of the meeting, according to Turkey’s private news agency, Dogan. Lower-ranking officers are expected to be fast-tracked to fill the gaps in the top positions. [AFP]

The Turkish government ordered the closing of over 100 media outlets yesterday, including newspapers, publishing companies and television channels, as the crackdown following the failed military coup this month continues. [New York Times’ Ceylan Yeginsu]

Turkey is intensifying pressure on the US to extradite Muslim cleric Fethullah Gulen, reports Nahal Toosi for Politico, comparing the demand to that made by the US of Afghanistan that it hand over Osama bin Laden, and the failed putsch to the 9/11 attacks. Despite the invocation, Turkey is unlikely to take direct military action against the US over Gulen, suggests Toosi. However, Turkey can make life difficult for the US is other ways, particularly in relation to the fight against the Islamic State. Continue Reading »

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Guest Post: US Dollars and Kenya’s ‘Disappeared’

Just over a year ago, in May , 2015, Kenyan Border Patrol police arrested Hussein Ali Abdullahi from his shop in Wajir, northeastern Kenya, and took him to Wajir military camp. His family hasn’t been able to trace him since that day. Omar Yusuf Mohamed’s family is looking for Omar too. Security officers arrested him in Mandera in April, 2015. Omar’s family and friends have gone to countless government offices, police stations, and military camps and to court in unsuccessful attempts to either trace him or compel police to produce him. There has been no response from any government office.

Omar and Hussein are among 34 people a new Human Rights Watch report found to have been forcibly disappeared by Kenya’s security agencies in the last two years amidst the government’s response to undeniable and significant security challenges. Attacks by the armed Islamist group, Al-Shabaab, have killed hundreds of Kenyans in the northeastern region, along the coast, and the capital, Nairobi. Kenyan security forces have escalated operations to respond to attacks. Kenya’s donors – including the US – have been steady allies in the fight to combat Al-Shabaab, providing millions of dollars in assistance to Kenya’s security agencies. But those operations have been marked by serious abuses such as enforced disappearances and torture, particularly of ethnic Somali Kenyans, abuses that put the effectiveness of the US-backed counterterrorism efforts at risk.  Continue Reading »

The Early Edition: July 27, 2016

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

IRAQ and SYRIA

A truck bomb in Qamashli, northeast Syria, has killed 44 people this morning. The Islamic State has said it was behind the attack. [BBC]  The bomber – initially reported as two separate attackers, but it now appears that the initial blast caused a gas tank to explode – hit a security headquarters of the Kurdish administration that controls most of the province in which Qamishli is located, Hasaka, reports Reuters.  The death toll is currently at 22, the AP reports.

The UN intends to proceed  with the third round of intra-Syrian peace talks toward the end of August, UN Special Envoy for Syria Staffan de Mistura told reporters yesterday, expressing the hope that the US and Russia would make “concrete progress” so that the atmosphere would be improved for the next round of talks and on the ground in Syria. [UN News Centre]

US-led airstrikes continue. US and coalition forces carried out seven airstrikes against Islamic State targets in Syria on July 25. Separately, partner forces conducted 13 strikes against targets in Iraq. [Central Command]

TURKEY

Turkish authorities issued warrants for the detention of 47 former executives or senior journalists of “Zaman” newspaper today for alleged association with cleric Fethullah Gulen, the AP reports.

Turkish national security demands that the US hand over Muslim cleric Fethullah Gulen, Turkey’s Prime Minister Binali Yildirim said during an interview yesterday, accusing the US of what he called a heartbreaking lack of support for Turkey’s mission to bring the alleged perpetrators of the July 15 coup attempt to justice. [Wall Street Journal’s Margaret Coker]

Turkey’s Foreign Minister Mevlüt Cavuşoğlu also reiterated Turkey’s call for the US to extradite Gulen, in an article published by Al Jazeera yesterday. The Turkish government has sought the extradition of Gulen for the past two years, without formally requesting it, reports Hürriyet Daily News.

Rumors of US involvement in the coup attempt appear to be circulating in Turkey, Hürriyet Daily News reporting on a speech by Turkey’s Nationalist Movement Party leader Devlet Bahçeli yesterday in which he said that, if the rumors that “the CIA and Pentagon are behind” those who instigated the coup are true, this “means that the U.S. and the global centers of power are planning to drag Turkey into civil war.” Continue Reading »

Secret Law, Targeting, and the Problem of Standards: A Response to Dakota Rudesill

In his recent posts and an article, Dakota Rudesill tackles the phenomenon of secret law. Dakota persuasively describes a growing body secret law, which he defines as “legal authorities that require compliance that are classified or otherwise unpublished,” and explains this growth across all three branches of the US government. Dakota then offers a series of recommendations that accepts some degree of secret law, but seeks to govern it more fully, deliberately, and consistently. His recommendations include adopting principles to cabin secret law’s growth, establishing notification requirements to signal the creation of new unpublished legal authority by the Executive Branch (to ensure secrecy remains shallow, and not deep), and strengthening accountability through presumptive sunset and declassification dates.

Dakota’s comprehensive treatment of this subject provides a valuable framework for both understanding and addressing legal secrecy. I would, however, offer another perspective on the phenomenon of secret law, focusing on lethal drone operations by the United States. As I argue in a recent article, drone strikes illustrate how what is commonly referred to as “secret law” can also be understood as a problem of broad legal standards that resist liquidation into more specific rules. While there are substantial similarities between our analyses, the variations suggest the utility of multiple approaches moving forward.

Lethal drone strikes are one of most frequently-cited examples of secret law. Indeed, there remains tremendous secrecy surrounding drone operations, including the circumstances under which individuals have been killed by strikes. This secrecy persists despite the recent steps towards greater transparency with the release of the Executive Order on civilian casualties and the Summary of Information by the Director of National Intelligence (DNI) on drone strikes conducted outside areas of active hostilities (such as Libya, Pakistan, Somalia and Yemen).

Yet, the descriptor of secret law does not fully capture the phenomenon of overly broad rules shielded from public scrutiny. Continue Reading »

The Early Edition: July 26, 2016

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

IRAQ and SYRIA

Syrian government air strikes have killed more than 42 civilians in the city of al-Atareb, Aleppo province, as violence in the area continues to escalate. [Al Jazeera]

The UN has called for weekly 48-hour humanitarian pauses in Aleppo, where over a quarter of a million people are trapped, the UN Emergency Relief Coordinator and Under-Secretary-General for Humanitarian Affairs, Stephen O’Brien, delivering a briefing to the Security Council yesterday. He called the situation in Aleppo “medieval and shameful,” reports the AP.

A long and violent insurgency is foreshadowed by the Islamic State’s latest suicide in Baghdad, Iraq, according to US diplomats and commanders, report Michael Schmidt and Eric Schmitt for the New York Times. Many Islamic State fighters have blended back into the mainly Sunni population in the city, officials have said, and are waiting their chance to conduct future terrorist attacks. Meanwhile, Iraq’s Prime Minister Haider al-Abadi has shown little sign of being able to forge an inclusive partnership with Sunnis.

Israeli warplanes have hit a Syrian position from which mortars were fired into the Israeli-held Golan Heights, the Israeli military has said. No-one was injured in the mortar fire, which hit an open area close to Israel’s frontier fence, but Israel’s army has said that  the Syrian government is responsible and that it will “continue to act” to preserve Israel’s sovereignty. Israel has largely kept out of the Syrian war, but has delivered similar reprisals for errant fire on its territory in the past, the AP reports.

Over 100 Chinese nationals have joined the Islamic State in Syria, leaked Islamic-State registration forms show. Two recent studies by US think tanks found that most of the Chinese fighters listed in the records came from China’s northwestern region of Xinjiang and could be members of the Muslim Uighur ethnic group that has been resisting Beijing’s rule for decades. [Wall Street Journal’s Jeremy Page]

The US is looking at ways to increase counter-terrorism cooperation with China, a senior US official said today at the end of a visit to China by National Security Adviser Susan Rice. China has been trying to get Western countries to help it with its fight against what it calls its Islamist extremists, but up till now, Western countries have been reluctant to cooperate because of a lack of evidence that the extremists exist. [Reuters]

US-led airstrikes continue. US and coalition forces carried out 13 airstrikes against Islamic State targets in Syria on July 24. Separately, partner forces conducted seven strikes against targets in Iraq. [Central Command]

TURKEY

Turkish Airlines fired 211 employees on suspicion of links to US-based cleric Fethullah Gulen, accused of orchestrating the July 15 failed coup, yesterday. [AP]

Turkey’s religious affairs directorate has removed a total of 1,112 personnel, including preachers and instructors in the Koran, since the coup, it confirmed today. [Reuters]

The Turkish government has also accused dozens of journalists of being part of a network linked to cleric and alleged coup mastermind Fetullah Gulen. Dozens of reporters have had their press credentials revoked, report Ceylan Yeginsu and Tim Arango for the New York Times.

Erdoğan justified the reintroduction of the death penalty in Turkey as the democratic response to voters’ call for its return during an interview with German news agency ARD aired late yesterday. Erdoğan also accused the EU of failing to uphold its side of a deal to prevent migrants from entering Europe via Turkey, saying the EU has only transferred a fraction of the 3 billion euros ($3.3 billion) promised to Ankara as part of the agreement. Continue Reading »

Donald Trump’s Wall, David Rieff’s Long War, and the Dangers of Fear-Mongering

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

So it has come to this. In yesterday’s New York Times, David Rieff, a human rights skeptic, argued that in light of continuing terrorism across the world, Western democracies have only two choices: “either the wall Mr. Trump wants to build and the mass deportations that many right-wing European politicians have begun calling for, or a vast expansion of the national security apparatus.” The latter, he continued, “would require serious increases both in budgets and personnel and in the methods at their disposal.” It would also require sacrificing “a certain amount of our humanity,” although he did not specify which aspects of “our humanity” he would sacrifice. Absent such a “vast expansion,” Rieff maintains, the people will opt for the draconian approaches pressed by Trump and other right-wing demagogues. We must give the security forces more power if we are to deny Donald Trump power. There are no other options.

This is a remarkably dangerous argument. It comes on the heels of the Republican convention, in which Trump did all he could to fan the flames of fear, and immediately before the Democratic convention, in which Hillary Clinton will set forth her national security vision. Rieff is right that Trump’s fear-mongering cannot simply be ignored or dismissed. It demands a response. But Rieff’s solution – an unspecified but “vast” expansion of the national security state – is no different from Donald Trump’s wall. It is, on the one hand, a dramatic piece of theater, designed to make the masses think that the government is doing something. And at the same time, it is patently ill-conceived, and fails for the same reasons the wall would fail – it favors simple dramatic “solutions” over measures that address the full complexity of the issue. And most disturbingly, it concedes rather than challenges the fear-mongering, thus playing on Trump’s turf.

What would the “vast expansion” of the security state consist of, and what would it get us? Continue Reading »

Summer Slowdown at Just Security

Sunset_at_Huntington_Beach

Image credit: Wikimedia Commons

As a heat dome locks much of the US in sky-high temperatures, Just Security is taking its annual summer slowdown. This means we’re going to be on an abbreviated schedule this week. While we’ll have a lower volume of posts than normal, we’ll do our best to address any time-sensitive developments that occur and the The Early Edition, our morning news roundup, will run as usual (sign up hereto receive it in your inbox each morning).

We hope you’re having a fantastic summer!

The Early Edition: July 25, 2016

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

MULTIPLE ATTACKS IN GERMANY

A suicide bombing in German town Ansbach late last night has injured 12 people and killed the man responsible. Ansbach was hosting a music concert that had attracted a crowd of around 2,000. The attacker detonated his bomb nearby having been denied entry to the concert, Bavarian Interior Minister Joachim Herrmann told reporters early this morning. [Wall Street Journal’s Anton Troianovski; New York Times’ Niraj Chokshi]

The man responsible for the attack – the fourth to hit Germany in a week – has been identified as a 27-year-old Syrian who had been denied asylum a year ago, but had been allowed to remain in Germany due to the ongoing situation in Syria. He had been receiving psychiatric treatment, according to the Bavarian interior minister. The AP’s Tomislav Skaro and Kirsten Grieshaber report.  The attacker was reportedly due to be deported to Bulgaria. [AP]

Another Syrian refugee used a long knife or a machete to kill a woman in Reutlingen, Southwestern Germany, on Sunday. However, the killing is not being treated as terrorist in nature, a police spokesperson has confirmed. [New York Times’ Melissa Eddy]

German police have detained a 16-year-old Afghan on Sunday in connection with a shooting attack at a Munich shopping center on Friday, on suspicion of having been aware of the attack but failing to report it. He is also suspected of posting an announcement on Facebook inviting people to a cinema close to Munich’s train station, similar to the post left by the gunman himself inviting users to the McDonald’s where the shooting began, described by investigators as a lure. [Reuters]

Again, the attack is not believed to have been terrorist in nature, and the perpetrator – an Iranian-German teenager – is being described as depressed and as having a fascination with mass killings, but with no links to the Islamic State or any other extremist group. The shooting took place on the fifth anniversary of the attack in Oslo, Norway, and on the island of Utoya, but Anders Behring Breivik, which left 77 dead. Souad Mekhennet at al report for the Washington Post.

The string of violence has thrown Germany into high alert, assured France’s continued state of emergency, and poured fuel on the contentious debate of Europe’s migration crisis and its security, write Julian E. Barnes and Matthew Dalton for the Wall Street Journal. Although there is a difference between terrorism and mass killings perpetrated by unstable individuals, experts have said that images of one high-profile attack can encourage others: mentally-ill would-be killers “absorb the violence and aggression” of terrorist attacks.

TURKEY

Detention warrants for 42 journalists have been issued by Turkish authorities today as part of the crackdown on the “virus” that President Recep Tayyip Erdoğan says infected state bodies and led to the coup attempt. [BBC]

Thousands gathered in Istanbul’s Taksim square for the first cross-party rally to condemn the coup attempt, yesterday. Among the strongly patriotic crowd, reports AFP, a few banners displayed messages such as “sovereignty belongs to the people alone,” and “no to the coup, yes to democracy!” as the post-coup state of emergency and the ongoing purge of alleged state enemies contribute to rising concerns among citizens.

The rally was a rare show of unity between opposition group and ruling party members, report Christopher Torchia and Cinar Kiper for the AP. The rally was organized by the opposition Republican People’s Party, which was close to the secularist generals who used to control Turkey’s military. The party has lost influence since Erdoğan came to power on the votes of a pious Muslim class.

Over 2,250 social, educational and healthcare institutions and facilities were seized by Turkish authorities on Saturday, a new tactic against suspected coup plotters. In an interview broadcast Saturday, President Erdoğan was critical of the West’s concern over possible human rights violations in the crackdown on alleged coup plotters, telling reporters that it was his duty to take such measures. [Washington Post’s Christopher Tochia and Crinar Kiper]

“Law is suspended:” the Ankara Bar Association human rights commission and other lawyers and human rights organizations have reported beatings and mistreatment of those detained since Turkey’s failed coup. Prisoners are being held in sports facilities and stables and subjected to “systematic” abuse, according to the deputy head of the commission. The Turkish government strongly denies the allegations. Loveday Morris reports for the Washington Post.

Turkey is in no position to become a member of the European Union any time soon, EU Commission President Jean-Claude Junker said today, adding that negotiations will stop altogether if Erdoğan reintroduces the death penalty in Turkey. [Reuters]

IRAQ and SYRIA

Government airstrikes have hit five medical clinics in the northern province of Aleppo amid intensifying fighting in the area, leaving four out of service, according to the Britain-based Syrian Observatory for Human Rights. [AP]

A suicide car bomb in Khalis, a town northeast of Baghdad, has killed at least 21 this morning. No group has claimed responsibility, but the Islamic State regularly attacks security forces and civilian areas in the region, and was responsible for a suicide bombing in Baghdad’s Kadhimiyah neighborhood on Sunday, which killed at least 15. [Al Jazeera]

Iraq has banned the bomb detectors proved to be fake years ago – even before the 2013 conviction for fraud of the two British men who sold them to Iraq – despite which the Iraqi government has continued to use them until now, spending almost $60 million on them despite the warnings of US military commanders and the devices’ repeatedly proven failure to prevent bomb attacks in Baghdad. The ban was prompted by the massive suicide bombing that killed almost 300 people in Baghdad on July 3, reports Hamza Hendawi for the AP.

AFGHANISTAN

Security has increased at mosques in Afghanistan after an Islamic State bombing at a protest by ethnic Hazaras, a largely Shiite minority group, on Saturday killed over 80 people and injured hundreds of others. In claiming responsibility for the attack, the Islamic State said that it had targeted the “gathering of Shiites,” reports Ehsanullah Amiri and Jessica Donati for the Wall Street Journal.  This is the first time that the Islamic State leadership in Syria has claimed responsibility for such a deadly strike in Afghanistan. [New York Times’ Mujib Mashal et al]

Afghanistan’s President Ashraf Ghani ordered a 10-day ban on public protests yesterday, amid fears that sectarian violence could be unleashed in the Sunni-majority nation. [Washington Post’s Muhammad Sharif and Pamela Constable]

Does the attack signal a change of tactics for the Islamic State in Afghanistan? Sune Engel Rasmussen considers the veracity of the terrorist group’s claim of responsibility for the attack, and the potential outcomes if it was indeed responsible, for the Guardian.

Civilian casualties in Afghanistan are headed toward a record high this year, according to a UN report, released today. The report records 1,601 civilian deaths and 3,565 injuries in the first six months of this year, an increase of 4 per cent on the same period last year. The increase is attributed to an escalation in fighting in heavily-populated areas such as Helmand, which are teetering toward Taliban control, reports Jessica Donati for the Wall Street Journal.

GUANTANAMO BAY

The government destroyed a clandestine CIA prison with secret permission from the trial judge, defense lawyers for the alleged 9/11 plotters submitted for the first time yesterday, saying they only learned of the destruction after the fact. The defense have been alluding to the mysterious destruction of evidence since May, in response to which Prosecutors have said they did nothing wrong, but without being specific. Carol Rosenberg provides the details in the Miami Herald.

Afghan Guantánamo Bay detainee Haroon al-Afghani has been denied parole, the Periodic Review Board finding that he lacked “credibility and truthfulness” as to his future plans if released. Al-Afghani has been at the detention center since June 22, 2007, and is considered by the US military to be a former Hezb-e-Islami Gulbuddin commander, responsible for organizing attacks on US troops in Afghanistan. [Miami Herald’s Carol Rosenberg]

SOUTH CHINA SEA

US National Security Adviser Susan Rice attended talks with Chinese officials in Beijing today, the highest-level visit by a White House official since the international tribunal in The Hague issued a ruling rejecting China’s territorial claims in the South China Sea – a topic that was not raised in opening remarks to reporters, reports the AP.

US Secretary of State John Kerry met with his counterparts from the 10 member states of the Association of Southeast Asian Nations – ASEAN – at a regional security conference in Laos today. He made no direct reference to the South China Sea, but praised ASEAN for upholding “a rules-based international system that protects the rights of all nations.” [AP]

ASEAN has gathered in Laos for its most important series of meetings since the July 12 ruling, which China has been putting pressure on ASEAN to reject. Diplomats at the conference said over the weekend that they are increasingly offended by what they call China’s manipulation of the bloc, which only makes decisions by consensus, and has been unable to issue a statement on the ruling because of blocks by Chinese ally Cambodia. ASEAN is considering allowing majority decisions as a result, reports Ben Otto for the Wall Street Journal.

OTHER DEVELOPMENTS

A shooting at the Club Blu nightclub in Florida early this morning has left two dead and 16 injured. Three people have been arrested in connection with the attack. Police are trying to determine the motive for the shooting. [BBC]

The Department of Homeland Security is pushing to increase the number of law enforcement personnel stationed at airports abroad to screen passengers before they board planes to the United States.  Ron Nixon of The New York Times reports that this extended preclearance program would be designed to extend the United States’ border security of foreign airports as part of new initiatives to reduce the risk of potential terrorists entering the country.

The Russian government has been accused of trying to meddle in the US presidential election by orchestrating the release of damaging Democratic Party records, following Friday’s release of some 20,000 stolen emails, many of which were embarrassing to Democratic leaders. Researchers have concluded that the National Democratic Committee’s servers were hacked by two Russian intelligence agencies, also responsible for cyberattacks on the White House, the State Department and the Joint Chiefs of Staff last year. [New York Times’ David E Sanger and Nicole Perlroth]

The UN Security Council has decided to authorize member countries to help Libya destroy its chemical weapons stockpile.  The UN News Centre reports the Council’s actions follow a decision by the OPCW that call for international assistance to help Libya’s national unity government expedite the destruction of its chemical weapons.

Iran’s judiciary has confirmed the detention of an Iranian-American who was visiting his family in Iran.  The AP reports that Robin Shahini, a recent graduate from San Diego State University, was likely taken into custody on July 11 and has not been heard from since. His girlfriend is concerned that Shahini was arrested over online comments criticizing Iran’s human rights record.

Australia has proposed indefinitely detaining people convicted of “terrorism-related charges” if they are considered to pose an ongoing danger to society. Prime Minister Malcolm Turnbull said the measure was prompted by an increase in the frequency and severity of terrorist attacks worldwide. [Al Jazeera]

Could NATO be the next alliance to unravel? CNN’s Ryan Browne asks whether, after last month’s Brexit, NATO could be facing an Amerixit or even a Turkxit, following Republican presidential nominee Donald Trump’s comments last week that the US may not immediately defend a NATO ally under his leadership. The answer? “Probably not,” says Browne.

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Recap of Recent Posts on Just Security (July 18 – 22)

I. International Justice

II. Secret Law

III. Theresa May

IV. International Data

 

 

It’s Time to Come to Terms With Secret Law: Part II

On Wednesday, I summarized the findings of my recent study of alleged secret law in the three branches of the US government and my conclusion that secret law is a limited but important exception to our constitutional norm of publishing the law.  Today’s post considers the way ahead.  Here, I identify relevant constitutional values, outline arguments and options, and recommend rules of the road if the republic decides that secret law is something it can live with but wants to govern more consciously, explicitly, and consistently.

Normative Considerations: Values, Arguments, and Options

As I explained Wednesday, secret law is a problematic and under-appreciated phenomenon, warranting a thoughtful national conversation.  What normative considerations and options can we discern?

Five main constitutional values are relevant.  In no particular order, we begin first with the rule of law.  This includes consistency of law, and the proper functioning of constitutional separation of powers and checks and balances.  The Constitution’s multi-branch, multi-stage lawmaking process has the effect of improving or rejecting questionable legal authorities (statutory, regulatory, interpretive).  A second constitutional value is political self-government by the people, in the senses of law and policy choice, and public official choice (election and removal).  Third is personal self-government, in the sense of ability to adjust one’s conduct based on knowledge of the law.  A fourth value is protection of classified factual national security information.  Fifth and finally is protection of pre-decisional deliberative space for confidential and candid discussions.  Generally, but not always, the first three constitutional values cut against secret law, while the latter two augur for space for it.  Ultimately, the first three mean that the people have the right to determine the content of the law, and have the law they can see truly be the supreme law of the land.

Because the conversation about secret law has been so ad hoc, start-stop, and focused on individual examples such as unpublished Justice Department Office of Legal Counsel (OLC) memoranda, a full case for secret law generally as it exists in the United States today has not been articulated.  We can construct three main lines of argument.  Continue Reading »