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Lenient Sentences in Int’l Criminal Court Obstruction Case Undermine Court’s Authority


The International Criminal Court faces many external challenges when investigating and prosecuting its cases. But sometimes the wounds are self-inflicted. Last week Jean-Pierre Bemba, his lawyer, his case manager, and two others were sentenced in a scheme to bribe witnesses in Bemba’s main trial, in which he was ultimately convicted for his involvement in crimes against humanity and sentenced to 18 years’ imprisonment. Although the judges in the witness interference case found the five defendants’ activities to be planned, widespread, severe, and prolonged, the panel imposed extraordinarily lenient sentences. In a thinly-reasoned decision, the court failed to connect the purposes of sentencing to the circumstances of the case and missed an important opportunity to protect the court’s authority.

While Bemba was on trial in his crimes against humanity case, the prosecution learned that he, his lawyer Aimé Kilolo Musamba (“Mr. Kilolo”), his case manager Jean-Jacques Mangenda Kabongo (“Mr. Mangenda”), and two others were paying bribes and coaching witnesses. Following an investigation, the five were arrested in November 2013. Despite a mountain of evidence that included damning intercepted conversations, witness evidence, and financial records, the accused fought the case every step of the way – as was their right – through nearly two years of pre-trial proceedings and eight months of trial. Ultimately the Trial Chamber handed down a 458-page judgment convicting the five of violating Article 70 of the Rome Statute which criminalizes “[o]ffenses against the administration of justice.” At no time did the accused accept responsibility for their actions or express remorse.

The five accused faced a maximum five-year sentence for their crimes (the judges having rejected a prosecution argument that the court could impose a distinct sentence for each instance of obstruction). In their sentencing decision, the judges found that the defense had bribed, coached and scripted 14 of the 34 witnesses that testified for the defense, and that all 14 testified falsely at trial. The judges further found that the witness interference occurred over a two-year period and was devised and planned by Bemba, Kilolo, and Mangenda. What’s more, the judges concluded that “the offences were extensive in scope, planning, preparation and execution. A series of sophisticated and elaborate measures were adopted to conceal the illicit activities, such as the use of codes, the use of third parties to effect payments, and the distribution of cell phones to some of the 14 Main Case Defence Witnesses without the knowledge of the Registry.”

The evidence shows that when the five obstructers of justice caught wind that the prosecution was investigating their conduct, Kilolo became afraid that Bemba would have to serve an additional five years in prison (as it turns out, he judged Bemba’s conduct more severely than would the judges). At this point did the five accused stop their illegal actions? No. They doubled down and began taking steps to obstruct the prosecution’s investigation of their tampering. The court found that they began to contact witnesses to find out who had spoken to the prosecution and to persuade any who had to recant.

On the basis of these findings, one might have expected the court to drop the hammer, but that is not what happened. Continue Reading »

Reforming Surveillance In the Age of Donald Trump

An NSA site in Germany.

On Wednesday, the Republican chair of the House Intelligence Committee, Devin Nunes (R-CA), gave a press conference in which he reported that Trump transition team members’ communications were intercepted by US intelligence agencies through “incidental collection.” This follows on Nunes’ concerns, after Michael Flynn stepped down following intelligence reports that he had talked to the Russian ambassador. Nunes (R-Calif.) said then, “[t]he big problem I see here is that you have an American citizen who had his phone calls recorded.”

Nunes’s concern for Flynn was misplaced. The Russian ambassador, Sergey Kislyak, is an obvious foreign intelligence target. If Flynn was talking to him, he would almost certainly be recorded as part of “incidental collection.” Depending on who Trump transition team members were speaking with, their incidental collection might also be unsurprising.

But Nunes is broadly correct that Americans’ sensitive communications are picked up by incidental collection and that the minimization rules governing how those conversations are handled are not robust enough to protect American privacy from official and unofficial mishandling.

As I explain in my new book, American Spies: Modern Surveillance, Why You Should Care, and What to Do About It, “incidental collection” is what the intelligence community calls the monitoring of Americans that happens as a result of surveillance targeting foreigners. The phrase makes it sound like there are only a few incidents when this kind of collection happens. In other words, incidental sounds unintentional and insignificant. But incidental collection can overwhelm collection about the target. Depending on the legal authority underpinning foreign intelligence interceptions and the technology used to conduct the collection, spying on foreigners can have a huge impact on American privacy. Use of the word “incidental” obscures this truth.  Continue Reading »

President Trump’s Campaign Promises Stick with Us—They should stick with him, too


The ongoing travel ban litigation has triggered intense debate on whether an assessment of the ban’s constitutionality must be limited to the “four corners” of President Trump’s revised Executive Order. This is partly because there is little else to discuss. Given the Trump Administration’s many anti-Muslim statements, it’s hard to imagine how the ban could be upheld by any court that gives serious weight to that evidence. Indeed, the few judges who have suggested that the ban might survive judicial review have largely declined, in the words of Ninth Circuit Judge Jay Bybee, to look “behind the curtain” of the Executive Order itself.

As several commenters have shown, including the ACLU’s David Cole, the strict “four corners” view is wrong. In assessing whether the travel ban is constitutional, courts should not turn a blind eye to its broader anti-Muslim context.

But does the relevant context include everything the Trump Administration has said?

In a brief just filed with the Fourth Circuit, the government argues that campaign statements should carry essentially no weight. Versions of this argument have also been advanced by Ninth Circuit Judge Alex Kozinski and The New Yorker’s Jeffrey Toobin.

Of course, even if only the Executive Order’s four corners are considered, the ban is still unconstitutional. But it’s worth asking whether a special rule for campaign statements, which might be called “four corners lite,” has merit.

In the government’s view, campaign statements “do not prove anything” about the motives of President Trump’s actions in office. Judge Kozinski has warned that if campaign statements are deemed to be evidence in court, politicians’ free speech in electoral contests might be chilled. And in Toobin’s telling, courts that consider campaign statements are unfairly “playing gotcha with the President,” because campaign statements can be improvised and informal.

It’s true that campaign statements deserve special consideration. But their special qualities don’t make them less relevant than other presidential statements. If anything, the opposite is true. Continue Reading »

We Have Met the Enemy, and He Is…?

Apparently, my post on treason from yesterday was too short–and it has generated lots of skeptical commentary, especially in response to Kate’s tweet, below, from folks who think it’s self-evident that we’re “at war” with Russia, and that, even if we’re not, they’re clearly our “enemy” for purposes of the treason statute, 18 U.S.C. § 2381.

Not to put too fine a point on it, but, again, this is just wrong. There is no international armed conflict between the United States and Russia, nor has Congress done anything to recognize one, so “war” is out. The “enemies” question is a bit harder, because the treason statute does not specifically define the term “enemies,” and because that term is often bandied about to describe lots of groups whose interests are at least nominally adverse to the United States.

But a statute enacted not long after the treason statute–the Alien Enemy Act of 1798–is much more specific about who alien “enemies” are, referring to “all natives, citizens, denizens, or subjects” of a country against which the United States has “declared war.” This is an extremely narrow definition (we haven’t declared war since 1942), and does not even cover the opposing side in un-declared wars, such as Vietnam, the conflict against al Qaeda and its affiliates, and so on. But even assuming, for the sake of argument, that the treason statute is broader than the Alien Enemy Act, and that opposing forces under more limited use-of-force authorizations are indeed “enemies” for purposes of the treason statute (there are vanishingly few examples of such prosecutions), it still requires, at a minimum, the existence of an armed conflict under both domestic and international law–something noticeably lacking with regard to the United States and Russia. Consider United States v. McWilliams, a treason prosecution from World War II. In McWilliams, the D.C. district court rejected those aspects of a treason charge that arose from conduct the defendant engaged in on behalf of Nazi Germany between 1933 and 1940 because “an essential element therein is aid and comfort to ‘enemies’ and Germany did not become a statutory enemy until December 1941.” Indeed, even at the height of the Cold War, it was not treason to commit espionage on behalf of the Soviet Union, because we weren’t actually “at war” with Russia.

It may seem strange to adopt such a narrow definition of “enemies” for purposes of the treason statute, but there are longstanding and really important reasons carefully to cabin the scope of the statute. As the Seventh Circuit explained in 1986, “[t]he reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.”

There are other, less serious, statutes that Americans might violate through their collusion with foreign powers, friend or foe. But we would do well to save “treason,” both legally and colloquially, for the rare but critically important cases in which it actually occurs.

Recap of Recent Posts on Just Security (Mar. 20-Mar. 24)

I. The Travel Ban Executive Orders

II. Russian Interference in U.S. Election  

III. Norms Watch

IV. U.S. Foreign Policy

V. The Supreme Court: Judge Gorsuch

VI. Yemen: U.S. Support to Saudi Arabia

VII. Surveillance

VIII. UN Peacekeeping

IX. CIA Extraordinary Rendition 

X. International Court of Justice: Ukraine v. Russia


Incidental Collection Is Extremely Troubling, Regardless of Legality

A lot of ink has been spilled over statements by House Intelligence Committee Chairman Nunes that President Trump’s communications were incidentally collected pursuant to a surveillance order under the Foreign Intelligence Surveillance Act (FISA). This has a lot of Americans scratching their heads and asking what incidental collection is, so now seemed like a good time to explain.

Incidental collection happens when an individual is in contact with the target of surveillance. So if Bob were being targeted for surveillance and Alice called or emailed Bob, Alice’s communications with him would be collected incidentally. Incidental collection happens over the course of most surveillance, whether it is targeted surveillance under traditional FISA authorities, or it is large scale surveillance pursuant to Section 702 of the FISA Amendments Act where vast amounts of Americans’ communications are swept up by the National Security Agency (NSA).

Under traditional FISA authorities, surveillance is targeted at a single person, and the NSA conducts it pursuant to a warrant based on probable cause that the target is a foreign power or an agent of a foreign power. Here, if Bob is targeted for surveillance and Alice contacts him during that surveillance, resulting in the incidental collection of her communications with him, her name should be redacted or “masked” unless leaving it un-redacted provides foreign intelligence value.

But, there’s a loophole. If the NSA analyst reviewing the information believes Alice’s communications may contain evidence of any crime, the NSA can share those communications with law enforcement or other relevant agencies. Those agencies can use that information in their investigations and prosecutions, even if the crimes are completely unrelated to the purpose for surveilling Bob’s communications, or to foreign intelligence or national security investigations.

When it comes to surveillance under Section 702, incidental collection of Americans’ communications and this loophole are profoundly troubling. Since 2013, there have been nearly 100,000 targets for surveillance under Section 702 each year, and that number is steadily increasing. This means that for each of those 100,000 Bob’s under surveillance, there may be at least one Alice whose communications are being incidentally collected.  Continue Reading »

Trump is Making Us All Fight for the Truth


By almost any measure, this was a disastrous week for President Donald Trump.

What went wrong for the president? On Monday, FBI Director James Comey confirmed that the FBI is investigating whether individuals associated with the Trump campaign “coordinated” with Russian efforts to interfere in the 2016 election. By Wednesday, CNN reported that associates of Trump “communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign.” Then, Trump suffered a major political and legislative setback on Thursday when leaders of the House, worried they didn’t have enough support, decided to delay a vote on the healthcare bill that Trump has endorsed. To get enough votes, the president needed to convince members of his own party to support it, but both conservative and moderate-leaning wings of the GOP refused to get behind it. Thursday night, Trump resorted to what some might see as political bullying, telling House Republicans they had to hold the vote on Friday, and if the bill fails, they’re stuck with Obamacare for good.

For a candidate, who promised voters that “we’re going to win so much. You’re going to get tired of winning,” this can’t be what he had in mind.

What went well for the president? Amidst all of this not winning, Trump and his team are actually achieving a lot of success in one area: making the press, and therefore the public, work really hard at keeping track of what’s true and what’s bogus.

So far, their hard work is paying off: Trump’s slanderous accusations and wild claims are being debunked, fact-checked and refuted right and left. But that effort is taking up energy, time and resources — in newsrooms, on Capitol Hill and in people’s brains. It’s exhausting, and there are opportunity costs for all of us. Continue Reading »

Did U.S. Provide Helicopter Used in Attack of Somali Refugees in Yemen?


Earlier this month, a dramatic event occurred in the war in Yemen that could even shock those numbed by the continued pace of civilian casualties. A military craft and helicopter reportedly engaged in an attack on a boat carrying over 140 Somali refugees killing upwards of 42 people on board. Despite initially conflicting accounts, the evidence points to the Saudi-led coalition. On March 24, the UN reported that according to survivors’ accounts, the vessel “was hit by shelling from a Coalition warship, without any warning, followed by shooting from an Apache helicopter overhead.” What has not received adequate attention is the potential role of the United States.

It will take time to sort out the details of what exactly occurred, but this potentially brazen attack comes just as the White House is considering increasing its involvement in the Saudi-led operations against the Iranian-back Houthi militia in this Middle East nation.

So, how might the United States be implicated given that it didn’t come anywhere close to pulling the trigger? The United States provides not only attack helicopters for the leading members of the coalition, the Saudis and the United Arab Emirates. Official records reveal that the United States also provides parts and technical support that presumably attaches to the life of the helicopters. The Defense Department’s public notification of a $1.9 billion sale of multi-purpose helicopters used in maritime operations to Saudi Arabia in 2015, for example, includes a guarantee of “U.S. Government and contractor engineering, technical and logistics support services.” This is a boilerplate part of the agreements for U.S.-manufactured Apache and Blackhawk helicopters sold to the Saudis. (The same holds true for US-manufactured helicopters sent to the UAE.) The Department of Defense has also had a substantial military presence in Saudi Arabia to help them use the equipment.

Back in 1994 the Justice Department’s Office of Legal Counsel warned US officials that they could be found guilty of aiding and abetting an offence by providing intelligence information to foreign governments who used that information to shoot down civil aircraft. To illustrate the point, the Justice Department used the example of “the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.” The U.S. provision of attack helicopters is even more directly tied to the acts of the Saudis than the hypothetical seller of gasoline or a gun dealer. The United States is responsible for continued maintenance and support of the sold equipment, the Saudi coalition has repeatedly engaged in bad acts, and the United States retains the ability to suspend its logistical support. In the case of these highly sophisticated helicopters, the U.S. support is an irreplaceable part of the equation. Continue Reading »

[Calling it] Treason Doth Never Prosper…


This post is going to be brief. There’s still a lot we don’t know about what role, if any, Russia played in the 2016 election, and what role, if any, the Trump campaign had in facilitating that role. But that hasn’t stopped lots of folks from throwing around the t-word to describe the most sensational versions of the allegations, or insinuating that various officials–from Paul Manafort to Michael Flynn to President Trump himself–may have committed treason.


Here’s the full text of the treason statute, 18 U.S.C. § 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

Note the key terms here: “levies war against” [the United States] or “adheres to their enemies.” Whatever one thinks of Russia, Vladimir Putin, or the current state of relations between it/them and the United States, we are not at war with Russia. Full stop. Russia is therefore not an “enemy” of the United States. Full stop. Collaborating with Russia is a serious allegation, and may violate other federal laws. But treason is something very special, unique, and specific under U.S. law–and, as my friend and UC-Davis Professor Carlton Larsen has long explained, for good reason. Let’s keep it that way.

Image: Getty

Norms Watch: Tracking the Erosion of Democratic Traditions (Mar.20-24)



It was a tough week for the Trump administration, as the FBI Director confirmed an ongoing investigation into both Russian election inference and the possible collusion between Trump campaign aides and Russian intelligence. The ability of Congress to independently tackle the investigation, however, is now under question.


FBI Confirms Investigation into Russian Interference, and Possible Trump Campaign Collusion

Just hours before FBI Director James Comey was set to testify before the House Intelligence Committee on Monday, Mar. 19, Trump took to Twitter to preemptively attack forthcoming information and diverting attention again to leakers. The “prebuttal” is a newly emerging Trump tactic, seen last week with a preemptive response to the release of his tax returns on MSNBC.

By the afternoon, however, Comey “had systematically demolished his arguments in a remarkable public takedown of a sitting president,” writes The New York Times. Comey stated that the FBI was looking into possible collusion between members of the Trump campaign and suspected Russian operatives, driven by “a credible allegation of wrongdoing or reasonable basis to believe an American may be acting as an agent of a foreign power.” It was “a hearing the likes of which Washington hasn’t seen in many a day—if, indeed, there has ever been anything like it,” wrote John Cassidy for The New Yorker.


Continue Reading »