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Q&A on Senate Intelligence Committee Press Conference with Burr and Warner

 

Sen. Richard Burr (R-N.C.) and Sen. Mark Warner (D-Va.), who are leading the Senate Intelligence Committee’s investigation into Russia’s interference in the 2016 presidential election, were nothing but professional and bipartisan at their Wednesday press conference. Both men vowed that “the investigation’s scope will go wherever the intelligence leads us.” Their appearance created a stark contrast with the House Intelligence Committee’s growing disfunction.

In conducting their investigation, which Burr described as the biggest he’d ever seen during his many years on Capitol Hill, the senators said they’d be conducting private interviews as well as public hearings. Burr also said the committee would be willing to use subpoenas if necessary. As I watched the press conference, I had a handful of questions about how the investigation would unfold behind the scenes. To get answers, I turned to Just Security’s Andy Wright, whose previous work in the White House Counsel’s office and on Capitol Hill, means he’s very familiar with the ins and outs of investigations like these.

Q. How does a congressional investigator decide to interview someone in private versus public? How do those two interviews differ?

A. Investigation contacts can range from an informal meeting (usually at the initial stages) to an informal briefing (where you expect the briefer to have prepared information in advance) to a formal briefing (often looks almost like a hearing, especially in the intel committees). Private meetings facilitate confidential and nonpublic information exchanges, such as classified info, defamatory info, or whistleblowing leaks. Or, less nobly, a private meeting may be called where it involves info the chair might think is politically unhelpful to have in the public domain.

Q. When you’re being interviewed as part of a congressional committee investigation, do you bring a lawyer? 

A. It varies by committee but generally yes, you may bring personal counsel. Some committees object to institutional counsel (e.g, a Department of Justice lawyer in addition to David O’Neil for former Acting Attorney General Sally Yates). Some committees purport to limit the scope of representation to constitutional rights only.  I think that’s super lame, as I discuss ad nauseum in Congressional Due Process (downloadable, with a committee rules survey, here).  Continue Reading »

Sally Yates, Russia Testimony & Executive Privilege in the Trump Era

This week has shed light on the Trump administration’s aggressive approach to executive privilege but it has also cast doubt over President Donald Trump’s ability to assert it successfully over the longer term. We watched this play out when the Justice Department warned former Acting Attorney General Sally Yates that she needed White House clearance to testify before the House intelligence committee due to issues of executive privilege. Executive privilege is an umbrella concept by which a president may seek to shield executive branch confidences from disclosure, even in the face of judicial or congressional subpoenas. It includes a number of categories such as presidential communications, deliberative processes, open investigative files, and state secrets. But the issue became moot, at least for now, when Devin Nunes (R-Calif.), the committee’s chairman, abruptly cancelled the public hearing where Yates was scheduled to appear. As a former White House lawyer who advised presidents and vice presidents on matters of executive privilege, these events increase my concern that important institutional interests served by executive privilege will suffer under Trump.

Yates’s testimony is critical to one of the major lines of investigation: former National Security Advisor Mike Flynn’s ties to Russia. In January, Yates warned White House Counsel Don McGahn that Flynn’s public denials that he had discussed sanctions with the Russian ambassador to the US during the transition were false. By that time, Flynn’s assertion had been parroted by senior White House officials including Vice President Mike Pence. Ultimately, once Flynn’s dishonesty became public, Trump fired him. By then, Trump had also fired Yates because of her noisy refusal to allow the Justice Department to defend Trump’s travel ban on her watch. Because of her central role in reporting Flynn’s misconduct to the White House, Chairman Nunes and Ranking Member Adam Schiff (D-Calif.) invited Yates to testify on Tuesday, March 28.

The executive privilege debate first played out in an exchange of letters between Yates’s attorney David O’Neil and Associate Deputy Attorney General Scott Schools. Then, on March 23, O’Neil wrote to Acting Assistant Attorney General Samuel Ramer to inform the Justice Department that Yates intended to appear before the committee voluntarily. He assured Ramer that Yates “will not disclose any classified information, nor will she provide any information that she believes could interfere with any ongoing criminal or intelligence investigations.” O’Neil notes a previous interaction in which the Department had advised it “believes there are further constraints” on Yates’s testimony because there are “client confidences that she may not disclose absent written consent of the Department.”  In his letter, O’Neil objected to that position as “overbroad, incorrect, and inconsistent with the Department’s historical approach to the congressional testimony of current and former senior officials.”  He argued that the Justice Department position is “particularly untenable given that multiple senior administration officials have publicly described the same events.” O’Neil concluded his letter by asking that the Justice Department articulate any confidentiality interests it maintains still exist.

Scott Schools, Associate Deputy Attorney General, responded to O’Neil’s letter the next day. Schools asserted that Yates’s testimony about “communications she and a senior Department official had with the Office of Counsel to the President” would likely be “covered by the presidential communications privilege and possibly the deliberative process privilege.” Because the “President owns those privileges,” Schools argued Yates “needs consent” and must therefore “consult with the White House.” Later that day, O’Neil wrote to White House Counsel McGahn to advise the White House that Yates intends to testify. O’Neil questioned whether either privilege could apply to the testimony at issue and further asserted that “any claim of privilege has been waived” due to previous public comments made by senior White House officials. He concluded: “If I do not receive a response by Monday, March 27, at 10 am EDT, I will conclude that the White House does not assert executive privilege over these matters with respect to the hearing or other settings.”

The White House never granted express permission for Yates to testify, but it also did not respond to O’Neil by his stated deadline. But the issue never came to a head because Nunes canceled the hearing the same day O’Neil sent McGahn the letter. Schiff cried foul, charging that Nunes canceled the hearing to protect Trump. All of this played out during a week of bizarre behavior by Nunes, during which he met a confidential intelligence source at the White House, briefed the President on lawful incidental intelligence collection of conversations (unrelated to Russia) involving Trump transition team members, refused to brief his intelligence committee colleagues before briefing the President, and continues to refuse to divulge his intelligence source to those colleagues.

On Tuesday, White House Press Secretary Sean Spicer denied the White House pressured Nunes to cancel the Yates hearing. He also denied that the White House made any move to block Yates’s testimony: “The White House did not respond [to O’Neil’s letter] and took no action that prevented Ms. Yates from testifying…I hope she testifies. I look forward to it.” Spicer also flatly denied that White House Counsel “ever” considered invoking executive privilege over Yates’s testimony. He also falsely asserted that everyone – Democrats and Republicans – briefed on the Russia investigation has concluded there was no collusion between the Trump team and Russian officials. The investigation is far from complete, and just last week, Schiff said there is “more than circumstantial” evidence that the Trump campaign may have colluded with Russian efforts to disrupt the election.

This episode raises many questions about the Trump administration’s handling of executive branch legal doctrine.

The Trump administration is probably correct that Yates’s testimony would touch on conversations traditionally covered by the presidential communications component of executive privilege. United States v. Nixon is most famous for ordering production of the Nixon tapes and hastening Nixon’s resignation. But the Supreme Court held that presidential communications are subject to claims of executive privilege that flow from the very structure of the Constitution.  Continue Reading »

Why the Foreign Policy Sky is Not Falling

 

Both Michael Fuchs’ angst-ridden piece for Just Security (“The Deconstruction of America’s Global Leadership”), and Jack Goldsmith’s equally frenetically titled (but less fevered textually) essay over on Lawfare (“The Trump Onslaught on International Law and Institutions”) foresee nothing but bleakness for America’s standing in the world. Allow me to steal from Mark Twain to suggest that reports of our demise as an effective foreign policy leader are – at this early point anyway – “greatly exaggerated.”

To be clear, I certainly don’t approve of everything the new president has done in his first months in office, and his record shows plenty of missteps. But I also believe that we need balance in our national security and foreign policy discussions before we don sackcloth and ashes and hoist our “The End is Near” signs.

True, we are in an era of change, which is what happens in democracies when a candidate runs on a platform of change and wins, and change can be disquieting to those who prefer the status quo. But how good was the status quo? Last summer, after nearly eight years of the Obama administration, the U.S. ranked a lowly 28th among the world’s most reputable countries. In an analysis in American Interest, Walter Russell Mead and Sean Keely, while noting negative international skepticism about Donald Trump, also concluded that, “2016 may have been the worst year yet for the Obama Administration.” They pointed to:

[A] string of foreign policy failures that further undermined American credibility across the world. In Syria, Russia brutally assisted Assad in consolidating control over Aleppo and sidelined Washington in the subsequent peace talks. China continued to defy the American-led international order, building up its military presence in the South China Sea and reaching out to American allies like the Philippines. Iran and its proxies continued their steady rise in the Middle East, while the Sunnis and Israel increasingly questioned Washington’s usefulness as an ally.

Can’t we agree that there was room for improvement? Even at this embryonic stage of the Trump administration have we seen any? Actually, yes.  Continue Reading »

The Early Edition: March 29, 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.

The TRUMP CABINET’S RELATIONSHIP WITH RUSSIA

“Our investigation is stalled.” Top Democrats and a Republican called for House Intelligence Committee Chairman Devin Nunes (R-Calif.) to step aside over his decision to visit the White House last week to view unspecified intelligence documents and his subsequent cancellation of a hearing to hear testimony from former acting Attorney General Sally Yates and other former officials, Byron Tau and Aruna Viswanatha report at the Wall Street Journal.

Nunes’s declaration that he will not hold any more interviews and depositions until FBI Director James Comey and NSA Director Mike Rogers return to Capitol Hill for an as-yet unscheduled private briefing effectively puts the House Intelligence Committee’s probe into suspected Russian meddling in the 2016 election on indefinite hold, Karoun Demirjian explains at the Washington Post.

“I hope she testifies.” White House Press Secretary Sean Spicer denied “entirely false” reports that the White House blocked Yates from testifying yesterday, insisting that it wants her to testify, Jonathan Easley reports at the Hill.

We will “never reveal” the “sources and methods” behind intelligence reports indicating that the Trump team was incidentally surveilled, Nunes told Reuters yesterday.

Nunes could soon be facing a House Ethics Committee investigation for his possible “unauthorized disclosure of intelligence,” lawyers familiar with the House’s rules told Tim Mak at The Daily Beast.

Devin Nunes is dangerous. Frank Bruni sets out the “many reasons” why Nunes should recuse himself at the New York Times.

If Nunes has to resign then so should ranking Democrat Adam Schiff (D-Calif.) for “spreading innuendo without evidence,” writes the Wall Street Journal editorial board.

Getting an independent commission to investigate possible Trump-Russia connections won’t be easy, Erik Ortiz explains at NBC News.

TRUMP ADMINISTRATION FOREIGN POLICY

Secretary of State Rex Tillerson will push NATO “very hard” to renew their commitment through increased defense spending when he attends the military alliance’s meeting in Brussels this week, according to a State Department official. Ellen Mitchell reports at the Hill.

Trump’s “very clear message” about NATO members paying their fair share on collective defense has put the issue “even higher on the agenda,” to the approval of NATO Secretary Jens Stoltenberf who told the BBC’s Barbara Plett Usher that he had already been pressing NATO members to pay more.

Tillerson’s visit to Turkey on Mar. 30 may determine the future of US-Turkey relations, suggests Metin Gurcan at Al Jazeera.

Despite Trump’s “curious affection” for Russia, US support for Ukraine has been consistent, the US ambassador to the UN Nikki Haley condemning Russian aggression against Ukraine at the UN Security Council on Feb. 2, while congressional legislation aimed at deterring Russia was introduced in February, Dirk Mattheisen writes at the Hill.

The debate in the US over whether to lift sanctions on Russia miss the “key point” that they might not actually be hurting Russia much, if at all, Andrey Movchan writes at POLITICO.

The Trump administration’s disregard for international institutions generally and human rights in particular was demonstrated by its failure to appear at hearings at the Inter-American Commission on Human Rights on Mar. 21, writes Lauren Carasik at Al Jazeera. Continue Reading »

Trump’s Islamophobic Record Provides Backdrop for New Counterterrorism Policies

 

Every one of the 10 airports targeted by the new “laptop ban,” issued last week by the Department of Homeland Security, is located in a Muslim-majority country. Unsurprisingly, advocates from the ACLU and Amnesty International have expressed concerns that this may be just the latest Trump administration policy motivated by Islamophobia. But there are several reasons why this policy may be upheld, even if the travel ban is not.

Courts that have struck down the travel ban so far have focused on two key elements: (1) evidence directly linking Islamophobic statements made by the president and his staff to the executive order as written and (2) a “dearth of evidence indicating a national security purpose.” Both of these elements are harder to establish with regard to the laptop ban.

First and foremost, with the travel ban, you can point to President Donald Trump’s explicit call to ban Muslims, which he made on the campaign trail and which remains on his website. Then, there is his statement from July that he would “expand” his ban by making it based on  territory. More recently, in January, former New York mayor and early Trump supporter, Rudy Giuliani said that the executive order resulted from his efforts to create a legally defensible Muslim ban. Finally, there are the comments from Stephen Miller, a senior advisor to Trump, where he said that the latest travel ban was specifically crafted to address the courts’ rulings against the first ban. With the laptop ban, there isn’t the same rhetorical track record, and so no such links have been established.

Furthermore, in this case, there is reason to believe these restrictions were prompted by specific threat information, which would be evidence of a legitimate national security purpose.

The Trump administration’s order, which took effect over the weekend, covers 10 airports in the Middle East and North Africa. It affects nine airlines that fly directly to the US, ordering them to ban passengers from bringing laptops and other large electronic devices into the passenger cabin for U.S.-bound flights. Now, those devices must be checked and carried in the cargo hold, while passengers can still bring smartphones on board.

While there are conflicting reports from U.S. officials about whether the restrictions were responses to specific threats, there are several credible sources outside the administration that have suggested that this may be the case. 
Continue Reading »

Shaky Legal Grounds: Syria Demands US Assault on Raqqa Must Work with Assad’s Forces

 

On Friday, Syria’s Ambassador to the United Nations stated that a U.S.-backed assault on ISIL’s capital city of Raqqa would be illegitimate unless militarily coordinated with Assad’s government. “Any military presence on our territory without the approval of the Syrian government is an illegitimate presence,” Syria’s Ambassador to the UN Bashar al-Ja’afari told reporters. This statement harkens back to statements made by the Syrian government in August 2014, days before the United States first launched strikes inside the country. At that time, Damascus declared, “Any strike which is not coordinated with the government will be considered as aggression.” The Syrian government’s position, however, is on shaky legal grounds, and the United States may be legally precluded from accepting such a demand.

We have been down this path of legal analysis before–with respect to the Secretary John Kerry’s consideration of military cooperation with the Russian military inside Syria. This issue has also been directly discussed at Just Security by the highly respected Claus Kreß. In his piece, Professor Kreß addressed the question whether the United States could accept Syria’s invitation to militarily coordinate strikes against ISIL given the Assad regime’s commission of war crimes. Here’s the key paragraph in Kreß’s analysis: Continue Reading »

National Security-Related Congressional Hearings, March 27-March 31

Tuesday, March 28

10:00am – House Committee on Armed Services – Military Assessment of Russian Activities and Security Challenges in Europe (here)

10:00am – House Committee on Homeland Security – The Current State of DHS’ Efforts to Secure Federal Networks (here)

10:00am – House Committee on Foreign Affairs – The Budget, Diplomacy, and Development (here)

10:30am – Senate Committee on Foreign Relations – U.S. Policy on Iran (here)

10:30am – House Judiciary Committee – Restoring Enforcement of Our Nation’s Immigration Laws (here)

2:00pm – House Committee on Foreign Affairs – Venezuela’s Tragic Meltdown (here)

2:30pm – Senate Select Committee on Intelligence – Intelligence Matters (Closed) (here)

2:30pm – House Committee on Foreign Affairs – East Africa’s Quiet Famine (here)  Continue Reading »

The International Legal Environment for Nuclear Deterrence

Russian spy ships stationed off the U.S. coast, provocative overflights of U.S. warships, and deployments of U.S. tanks in Central Europe are no longer artifacts of the Cold War, they are troubling features of the current international security environment. Whether and to what extent recurrence of these incidents will resurrect Cold War political and military strategies is for now unclear. But the security calculus of major powers and their allies will surely involve new reviews of the nuclear strategies and capabilities that remain at the core of their national strategic deterrence. In fact, among the new U.S. administration’s flurry of initial directives was a Jan. 27 memorandum ordering the Defense Department to initiate a Nuclear Posture Review “to ensure that the United States nuclear deterrent is modern, robust, flexible, resilient, ready, and appropriately tailored to deter 21st Century threats and reassure our allies.”

Just one month earlier, the United Nations General Assembly passed a resolution to convene a March 27 conference in New York “to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination[.]” In addition to backing from the 113 Member States which voted in favor of the resolution, the effort has support from influential non-State actors like the International Committee of the Red Cross and a host of Nobel Laureates.

Predictably, nuclear-armed States and their allies oppose the resolution and the conference. A joint statement by the United States, the United Kingdom, and France argued a new convention would undermine the existing, consensus-based 1968 Treaty on Non-Proliferation of Nuclear Weapons (NPT). Interestingly, China and India, both acknowledged as nuclear-armed States, merely abstained on the resolution and even recently attended an organizing meeting that produced a draft agenda for the conference. Some have already concluded the anticipated treaty between the member states who voted for the conference will outlaw nuclear weapons per se.

Of course, no agreement between select States can produce such ban. Only a universally-ratified treaty or an airtight rule of customary international law could do this. The most likely outcome of the conference will be a nuclear-weapon ban applicable to select, ratifying States, in addition to the obligations non-nuclear States already bear under the NPT.  Continue Reading »

San Francisco Sets an Example of How to Resist Surveillance in Trump Era

 

The San Francisco Police Department (SFPD) suspended its participation in the FBI’s Joint Terrorism Task Force (JTTF) last month. JTTFs are counterterrorism-focused intelligence-sharing centers, and by the FBI’s count, it operates 104 across the country. Many interpreted the SFPD’s suspension as a reaction to President Donald Trump’s “Muslim ban,” and to some degree it was. But it was also the culmination of a seven-year effort by community groups to hold the SFPD to the city’s legally codified standards of transparency and accountability. San Francisco’s success is a model for local resistance to Trump’s plans to mobilize the massive surveillance infrastructure he has inherited against targeted groups.

The effort began in 2010, when a group of almost 80 organizations formed The Coalition for a Safe San Francisco in response to concerns over improper surveillance and infiltration of Muslim communities by the SFPD and the FBI. Through a public records request, the Coalition uncovered a 2007 Memorandum of Understanding between the two law enforcement agencies that the SFPD Chief had signed without public knowledge or legislative review. It mandated that officers assigned to the task force operate under the same set of federal guidelines that govern the FBI. These federal guidelines are significantly looser than the city’s “reasonable suspicion” requirement, which specifies that police officers must have an articulable basis for suspecting criminal activity before they begin an investigation.

After uncovering the memorandum, the Coalition partnered with District Supervisor Jane Kim to draft the San Francisco Civil Rights Ordinance, a revised version of which was ultimately passed unanimously and signed into law.

The revision lays out three important provisions. First, it eliminates the possibility of secret agreements between the FBI and the SFPD by requiring proposed changes to the MOU be submitted for public comment at a Police Commission meeting. Second, it mandates that all local officers assigned to the task force comply with stronger state and local standards instead of weaker federal guidelines. And finally, it requires the police department to submit an annual report about its work with the FBI.

The Ordinance was criticized by some for having no “teeth.” But, as the Asian Law Caucus notes in a 2015 report: “like all laws, the Ordinance’s strength lies in its enforcement.”  Continue Reading »

What Explains the Rise in Civilian Casualties in US Military Ops–Iraq, Syria and Elsewhere

 

Last Friday, several news outlets reported that perhaps as many as 200 civilians had been killed in a recent U.S. airstrike in Mosul in northern Iraq, where the U.S. is participating in an offensive against the Islamic State.  The U.S. coalition has confirmed that a strike occurred in the area where casualties were reported, and it has opened an investigation into the facts surrounding the strike.   This story comes on the heels of reports that at least 30 Syrian civilians had been killed in an airstrike by the U.S.-led coalition (reports that have not, as yet, been confirmed by the U.S. government). A non-profit group, Airwars, declared on Friday that it was overwhelmed by claims of U.S.-caused civilian casualties and was shifting nearly all its resources to tracking them.

All of this naturally has raised questions about whether the Trump Administration has adopted different targeting standards that have opened the door to greater civilian casualties. During the campaign, after all, Trump famously declared of the Islamic State that he “would bomb the sh-t out of ‘em” and even suggested killing the families of terrorists.  There were reports earlier this month that the White House was exploring how to dismantle or bypass restrictions put in place by the Obama Administration to prevent civilian casualties. In one known step toward relaxing targeting rules, the Trump Administration declared parts of Yemen “areas of active hostilities” to which the 2013 Presidential Policy Guidance—requiring near certainty that a lawful target is present and near certainty that no civilians will be injured or killed—do not apply.  The Pentagon has denied that the rules of engagement (ROE’s) have changed in Iraq, but not everyone is convinced.

I wrote a piece on Just Security back in June raising the concern that the new Department of Defense Law of War Manual’s provisions opened the door to increased civilian casualties.  Subsequent revisions, discussed in a Just Security piece by Marty Lederman, addressed some—but not all—of those concerns. In particular, it eliminated the passages indicating that civilians in or proximate to military objectives need not be counted in a commander’s proportionality analysis.  But it left unchanged the deeply troubling and inaccurate statement in Section 5.4.3.2 that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects.”  Speaking on background with me and Marty, DoD officials indicated that they were willing to revisit this provision, but thus far it remains unchanged.

All of this leaves five possible explanations for the recent uptick in civilian casualties:

(1) Random bad luck. It is possible that the U.S.-led coalition is applying precisely the same targeting rules and standards as usual and the recent events are just terrible bad luck.  I find this explanation less persuasive due to the repetition of incidents. One unusual civilian casualty event is bad luck; this looks more like a pattern.

(2) Change in context. It may be that there are higher civilian casualties because the battleground is moving into more heavily populated areas.  These are areas where civilian casualties are harder to avoid.  (And, indeed, the Islamic State may be exploiting this by intentionally using civilians as human shields in ways that are hard to detect.)  But this explanation is undermined by the fact that targeting standards would ordinarily account for the greater risk in more densely populated areas.  If there are significant concerns about large numbers of civilian casualties, that usually would result in more cautious targeting decisions—especially once a pattern of higher civilian casualties begins to emerge. Continue Reading »