Georgetown Security Law Brief

Analysis: Obama's "red line" on Syria blurs

05/01/13: The Hill reports President Obama further blurred the “red line” he has imposed against Syria over chemical weapons on Tuesday, declining to lay out specific consequences if the line is crossed but reiterated that it would be a “game changer” for the entire international community.  Asked about possible US military action if it’s confirmed Syrian President Bashar al-Assad’s forces have used chemical weapons, Obama said only that the administration would “rethink the range of options” available.  As the President sounded a cautious tone, however, there were reports Tuesday afternoon that he might be planning to take new steps, including that Obama is now ready to provide arms to the opposition, although he had not made a final decision.  National Security Council spokeswoman Caitlin Hayden declined to confirm or deny that report.  Obama also spoke by phone Monday with Russian President Vladimir Putin, a strong supporter of Assad, about the chemical weapons allegations.

Analysis: Four reasons Senators Graham and McCain are wrong

04/20/13:  Lawfare posted, in an article by Benjamin Wittes, that Sens. Lindsey Graham and John McCain were quick out the box last night in declaring that the Obama administration should hold Dzhokar Tsarnaev in military detention: "Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes... Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel. Our goal at this critical juncture should be to gather intelligence and protect our nation from further attacks." Bobby quickly explained why this is both unncessary and a bad idea; this very find Wall Street Jouranl blog sketches out why it would pose legal problems as well. But the idea has had legs on Twitter, so I want to bring together in one place  and explain the several distinct but overlapping reasons why it would be not merely ill-advised but absolutely nuts to try to treat Tsarnaev as an enemy combatant. First and most important, Tsarnaev may not be an enemy combatant.   Second, assuming for a moment that the facts as they emerge would support an enemy combatant designation, Tsarnaev is reportedly a naturalized American citizen, and the government’s appetite for the detention of American citizens under the laws of war has waned—and rightly so. This began under the Bush administration, which tried twice—in the early cases of Yaser Hamdi and Jose Padilla—to detain US citizens under the laws of war and ultimately backed down both times. The question of whether such detention is legally appropriate for a US citizen captured by law enforcement remains an open one.  He was certainly captured in the United States, and the military detention of domestic captures is problematic for many of the same reasons that the detention of the citizen poses difficulties. Fourth, military detention offers no clear advantages in this case and has several big disadvantages. 

Analysis: The Death of the ATS and the Rise of Transnational Tort Litigation

04/18/13:  Opinio Juris posted this analysis by Roger Alford concerning yesterday's Supreme Court ruling in Kiobel v. Royal Dutch Petroleum: The Alien Tort Statute (ATS) as we know it is dead. The presumption against extraterritoriality, combined with a narrow interpretation of territoriality, means that the Filartiga human rights revolution is essentially over. Other posts this week will discuss whether the ATS has a future after Kiobel, but that is simply a search for a silver lining in what is, for plaintiffs, otherwise a dark and ominous thunderstorm that has destroyed an entire cottage industry. What now? Obviously there is the Torture Victim Protection Act (TVPA), which may be sufficient for some causes of action. But per Mohamed v. Palestinian Authority, such causes of action are only available against natural persons. No corporate claims may be brought under the TVPA, and claims against corporate officers will struggle to overcome the Iqbal/Twombly pleading standards. Others will argue that the ATS survives as long as there is some territorial nexus. This may mean that the old American Banana and Sisal Sales standard applied in the antitrust context is now applicable to human rights litigation. The search is on for some constituent act that occurred within the forum to satisfy the territorial nexus. And if Alito’s standard for territoriality is required, then the constituent territorial act must violate an international law norm. Good luck finding that conduct. More promising than these options is transnational tort litigation.  Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. In the quest to provide relief for victims of grave abuse, international human rights violations will now be reframed as transnational torts. Virtually every complaint pleading an ATS violation could allege a traditional domestic or foreign tort. What does this mean in practice? Now more than ever, human rights lawyers must become experts on choice of law and comparative tort law. It is a trend that already has been applied for over a decade in the terrorism context, but no one has been paying attention. Pursuant to the FSIA’s Flatow amendment, victims of international terrorism have secured billions (yes billions) of dollars in judgments against state sponsors of terrorism. They typically have done so by invoking choice of law principles to apply domestic tort laws to redress foreign terrorist attacks. In most cases the state tort law of the decedents’ domiciliary has controlled. Thus, when a suicide bomber kills Americans in Israel, or Lebanon, or Nigeria, it is Illinois, Louisiana, or Nebraska law that is applied to hold the perpetrators accountable.

Analysis: Palestinian future, peace process uncertain (even more than usual) after Fayyad resignation

04/15/13: The New York Times has this piece discussing the uncertain future in Palestine after Saturday’s resignation of Palestinian Authority Prime Minister Salam Fayyad.  Fayyad, the internationally respected Palestinian politician and economist, is widely credited with ending the chaos in the West Bank and putting things in order in his six years in office.  But his resignation over the weekend, the result of internal power struggles, has left the Palestinian Authority suspended in political ambiguity and confusion.  By accepting Fayyad’s resignation, Palestinian President Mahmoud Abbas has put himself in a political bind just as the Obama Administration has been trying to restart long-stalled Israeli-Palestinian peace talks, because the vacuum created by Fayyad’s resignation presents an opportunity for renewed reconciliation efforts between Abbas’ Fatah party and its bitter rival Hamas, the Islamic militant group that controls Gaza.  Healing the rift would be a popular course of action among Palestinians, but it could complicate peace efforts and cause some Western donor nations to consider withholding much-needed funds, fearing that they could be used by Hamas.  The group is classified as a terrorist organization by Israel, the United States, and the European Union, and it seeks the ultimate destruction of the Jewish state.

Lawmakers close to immigration overhaul bill after business-labor deal, but details remain

04/01/13: The Miami Herald reports optimistic lawmakers on Sunday cautioned they had not finished work on an immigration overhaul that would provide a path to citizenship for 11 million illegal immigrants.  The AFL-CIO and the pro-business US Chamber of Commerce reached a deal late Friday that would allow tens of thousands of low-skilled workers into the country to fill jobs in construction, restaurants, and hotels, but lawmakers from both parties conceded negotiations are not finished.  The agreement hasn’t taken the form of a bill and Senator Lindsey Graham (R-S.C.) said the “Gang of Eight” Senators searching for a compromise haven’t met about the potential breakthrough.  “There are a few details yet.  But conceptually, we have an agreement between business and labor, between ourselves that has to be drafted,” Graham said.  Still, Senator Marco Rubio (R-Fla.), a favorite of the Republican right-wing who functions the group’s emissary to hardcore conservatives, warned he was not ready to lend his name and political clout to a deal.  Rubio called the agreement a starting point but pointed out ninety-two Senators from forty-three States haven’t yet been involved in the process.

UPDATED: Voice in Kim Jong-un's head tells him to stop what he's doing

04/01/13: The Onion reports that while performing his duties as Supreme Leader of North Korea Monday, Kim Jong-un reportedly heard a small voice in the back of his mind telling him that his actions over the last six months have been very strange and wrong.  Sources confirmed that the tiny voice, which spoke to Kim at various points throughout the day, quietly suggested that the four-star military general and Worker Party’s secretary is a weird person with out-of-whack priorities who acts in a way that makes little sense to anyone.  “You are a very odd man who does things that are bizarre and indicative of a mentally ill person,” the little voice reportedly said following a speech in which Kim issued apocalyptic threats to enemies in the West and predicted the destruction of America.  “The things you say on a daily basis are not only extremely creepy and off-putting, but they are also very wrong. You should probably not be the leader of a country.”

UPDATE: April Fool.

Analysis: Hagel facing tough decisions at the Pentagon

04/01/13: The New York Times has a piece discussing the arduous task facing Secretary of Defense Chuck Hagel in managing the US military budget.  As President Obama – who has placed some of the military’s long-favored weapons programs in his sights – continues to negotiate with Congress over a spending and revenue deal, the Pentagon is bracing for a protracted period in which they may have to manage even larger budget reductions than anticipated.  “There will be changes, some significant changes,” Secretary Hagel warned at a news conference last week, and he is expected to begin outlining those changes in a major speech this week.  Already, Hagel has directed General Martin E. Dempsey, the Chairman of the Joint Chiefs of Staff, and Deputy Defense Secretary Ashton B. Carter to conduct a sweeping “Strategic Choices and Management Review” due by the end of May.  Their challenge is to trim the Pentagon while also assuring that the military continues to attract high-quality personnel and can maintain American and allied security around the world.

Turkey sees greater regional role after agreements with Israel, Kurds

03/25/13: The Miami Herald reports that after two major breakthroughs in less than a week – an accord to end a three-year squabble with Israel and a landmark step by a jailed Kurdish leader to settle a 30-year insurgency – Turkish Prime Minister Recep Tayyip Erdogan’s star appears to be rising, and with it, the country’s role as a major regional power.  Erdogan seemed matter-of-fact and serious on Saturday as he voiced hope that the Turkish-Israeli reconciliation that President Barack Obama brokered on Friday might even help resolve the Arab-Israeli dispute.  Israel, for the first time in memory, formally apologized for a military operation and promised compensation to families of eight Turks and one Turkish-American killed in the attack on a ship bringing supplies to civilians in Gaza in July 2010 that ran Israel’s blockade.

Analysis: The AUMF will soon extend to Syria (if it doesn't already)

03/24/13: Lawfare has this post by Jack Goldsmith discussing a report that the CIA is expanding its role in the campaign against the Syrian regime by feeding intelligence to select rebel fighters to use against government forces.  The point of the CIA aid is to stem the rise of Islamist extremists in Syria by aiding secular forces and in particular to blunt the influence of the extremist al Nusra Front, the main al-Qaeda-linked group operating in Syria.  Goldsmith highlights the fact that, according to US officials, al-Nusra is deepening its ties to al-Qaeda’s central leadership in Pakistan.  The ties to al-Qaeda’s central operations have become so significant that officials are debating whether al Nusra should now be considered its own al-Qaeda affiliate instead of an offshoot of al-Qaeda in Iraq, as it has generally been viewed within the US government.  Goldsmith points out that, if the former view is taken, the authority the President has to fight al-Qaeda and its affiliates under the 2001 Authorization for the Use of Military Force (AUMF) would now extend, for the first time, to Syria.

DC Circuit seeks reply on Government's petition for rehearing in war crimes case

03/11/13: SCOTUSBlog reports the US Court of Appeals for the District of Columbia Circuit on Friday afternoon asked lawyers for a foreign national convicted of war crimes at Guantánamo Bay to answer the Obama Administration’s plea for a new look by that court at the powers of the military commissions to try terrorist suspects.  The order does not assure that the court will pursue that issue further, but at least it raises the prospect that it could, as a prelude to a likely Supreme Court appeal.  On Tuesday, the Administration asked for en banc review the validity of the convictions of Yemeni national Ali Hamza Ahmad Suliman al Bahlul.  At the center of the controversy is a ruling by the court last October in a different case that military commissions cannot try offenses that took place before they were designated as war crimes by the Military Commissions Act of 2006.  The DC Circuit held the Act didn’t reach such offenses, concluding that otherwise a serious issue would arise under the Constitution’s Ex Post Facto Clause.  The government counters the offenses previously existed and were simply codified by Congress, and has asked the DC Circuit en banc to revisit its previous ruling.  In 2006, four members of the Supreme Court held in Hamdan v. Rumsfeld that the crime at issue - conspiracy - was not an internationally accepted war crime, but there was no majority holding on the issue.

US responded to FOIA requests at same rate in 2012 as previously, but used state secrets more

03/11/13: The Associated Press reports the US Government, led by the Pentagon and CIA, censored files that the public requested last year under the Freedom of Information Act (FOIA) more often than at any time since President Barack Obama took office.  Overall, the Obama Administration last year answered its highest number of FOIA requests so far, and it slightly reduced its backlog of requests from previous years.  But it more often cited legal provisions allowing the government to keep records or parts of its records secret, especially the state secrets privilege.  Still, the AP’s analysis showed government released all or portions of the information that citizens, journalists, businesses and others sought at about the same rate as the previous three years.

As North Korea blusters, South breaks taboo on nuclear talk

03/11/13: The New York Times reports a new sense of vulnerability created by recent aggressive talk from the North is causing some influential South Koreans to break a decades-old taboo by openly calling for Seoul to develop its own nuclear arsenal, a move that would raise the stakes in what is already one of the world’s most militarized regions.  While few in the South think this will happen anytime soon, two recent opinion polls show that two-thirds of South Koreans support the idea posed by a small but growing number of politicians and columnists.  In recent weeks, Pyongyang has approached a crucial threshold with its weapons programs, followed by a barrage of apocalyptic threats to rain “preemptive nuclear strikes” and “final destruction” on Seoul.

Analysis: How a US citizen came to be in America's cross-hairs

03/10/13: The New York Times has this in-depth piece reporting on the hunt for Anwar al-Awlaki, the American citizen and al-Qaeda cleric who was killed by a CIA drone strike in Yemen in September 2011.  The account of what led to the Awlaki strike fills in new details of the legal, intelligence and military challenges faced by the Obama administration in what proved to be a landmark episode in American history and law.  The strike that killed Awlaki — a terrorist leader whose death lawyers in the Obama Administration believed to be justifiable — also killed Samir Khan, though officials had judged he was not a significant enough threat to warrant being specifically targeted.  The next month, another drone strike mistakenly killed Awlaki’s 16-year-old son, Abdulrahman, who had set off into the Yemeni desert in search of his father.  Within just two weeks, the American government had killed three of its own citizens in Yemen.  Only one had been killed on purpose.

Decades-old illegal wiretap inspires demand on CIA for more information

03/04/13: The Washington Post has this story about Jim Scott, the son of the late journalist Paul Scott, who is involved in a dispute with the CIA over the Agency’s spying on his father in the 1960’s.  In 2007 the CIA declassified a trove of documents popularly called “the family jewels,” which revealed the Agency’s unlawful surveillance of the Scott home in an operation code-named “Project Mockingbird.”  For the past five years, Jim has sought to declassify and make public any documents Langley might still have on his father and why he was wiretapped.  So far, the CIA has released to Jim a handful of intriguing documents, but Jim has been trying to compel the agency to cough up more. A federal declassification review panel is reviewing Jim’s case.  Paul Scott died in 2001.

Analysis: Debating a court to vet drone strikes

02/10/13: The New York Times reports a proposal is gaining steam that would require court approval before targeting American citizens overseas for lethal force.  The idea is to apply the model exemplified by the Foreign Intelligence Surveillance Court – created by Congress so that surveillance had to be justified to a federal judge – to the targeted killing of suspected terrorists, or at least of American suspects.  A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts.  But with the war in Afghanistan winding down, al-Qaeda fragmenting into hard-to-read offshoots, and the 2001 terrorist attacks receding into the past, they said, it is time to consider how to forge a new, trustworthy and transparent system to govern lethal counterterrorism operations.

Analysis: Debating a court to vet drone strike

02/09/13:  The New York Times reports since 1978, a secret court in Washington has approved national security eavesdropping on American soil — operations that for decades had been conducted based on presidential authority alone.  Now, in response to broad dissatisfaction with the hidden bureaucracy directing lethal drone strikes, there is an interest in applying the model of the Forieign Intelligence Surveillance Act court to the targeted killing of suspected terrorists, or at least of American suspects.  A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts. But with the war in Afghanistan winding down, Al Qaeda fragmenting into hard-to-read offshoots and the 2001 terrorist attacks receding into the past, they said, it is time to consider how to forge a new, trustworthy and transparent system to govern lethal counterterrorism operations.

Analysis: Report on targeted killing spurs desire for less secrecy

02/06/13: The New York Times has this piece discussing yesterday’s big news revealing the “white paper” describing the Obama Administration’s legal justifications for the use of lethal force against American citizens suspected of being unlawful combatants abroad (the paper is here courtesy of NBC News).  This piece discusses the Administration’s having kept its arguments secret, and the fact that its disclosure is fueling greater demand for information.

Analysis: DOJ White Paper on targeted killing of US citizens

02/05/13:  Opinio Juris posted two articles by Kevin Jon Heller analyzing the legal argumetns in the DOJ's White Paper on targeted killing of US citizens.  One discusses the requirement for organization in non-international armed conflict and the other discusses imminence and capture.

Obama Administration concludes President has broad cyberwarfare powers

02/04/13: The New York Times reports a secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a preemptive strike if the United States detects credible evidence of a major digital attack looming from abroad.  That decision was among several reached in recent months as the administration moves, in the next few weeks, to approve the nation’s first rules for how the military can defend, or retaliate, against a major cyberattack.  The rules will be highly classified, like those governing drone strikes.  John Obama’s chief counterterrorism adviser and his nominee to run the Central Intelligence Agency, played a central role in developing the administration’s policies regarding both drones and cyberwarfare, the two newest and most politically sensitive weapons in the American arsenal.

Analysis: Who decides the laws of war?

01/27/13: The New York Times today features this piece by Charlie Savage discussing Brigadier General Mark S. Martins, the chief prosecutor of the military commissions system who is leading the case against Khalid Sheikh Mohammed and four other Guantánamo Bay detainees accused of aiding the September 11 attacks.  General Martins is currently involved in a dispute with the Justice Department as to whether to defend a past conviction by those tribunals on a charge of conspiracy after that charge was invalidated by the US Court of Appeals for the District of Columbia Circuit in a separate case.  The dispute involves the thorny question, which has vexed national security law going back to the decision in Hamdan v. Rumsfeld in 2006, as to whether conspiracy to commit a war crime is a standalone offense under the laws of war.  On the other hand, Benjamin Wittes at Lawfare argues the dispute between General Martins and DOJ has less to do with substantive questions about the laws of war and as more about tactical legal positions.  Both pieces are worth a read.

Global Trends 2030 report released

12/11/12:  The New York Times reports a new intelligence assessment of global trends projects that China will outstrip the United States as the leading economic power before 2030, but that America will remain an indispensable world leader, bolstered in part by an era of energy independence. The product of four years of intelligence-gathering and analysis, the National Intelligence Council study presents grounds for optimism and pessimism in nearly equal measure. One remarkable development it anticipates is a spreading affluence that leads to a larger global middle class that is better educated and has wider access to health care and communications technologies like the Internet and smartphones. At the same time, it warns, half of the world’s population will probably be living in areas that suffer from severe shortages of fresh water, meaning that management of natural resources will be a crucial component of global national security efforts.

DOD General Counsel Johnson on conditions for the end of the conflict

11/30/12:  OpinioJuris posted part of Department of Defense General Counsel Johnson's speech related to the conditions for the end of the conflict with al Qaeda.  "I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed."

White House presses for clear standards and procedures on drone use

11/25/12: The New York Times reports that the Obama Administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that in the event the President lost his bid for reelection, his successor would inherit clear standards and procedures.  Despite Obama’s victory, the Administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.  Though publicly the Executive Branch presents a united front on the use of drones, behind the scenes there is longstanding tension.  The Defense Department and the CIA continue to press for greater latitude to carry out strikes; Justice Department and State Department officials, as well as White House counterterrorism chief John O. Brennan, have argued for restraint.

UN Committee against Torture adopts General Comment on right to redress

11/21/12: IntLawGrrls reports the UN Committee against Torture has adopted an authoritative interpretation of the content and scope of the right to redress for victims of torture and cruel, inhuman, or degrading treatment.  General Comment No. 3, issued last Friday, is the first interpretive statement by a UN human rights treaty body aimed at clarifying this relatively ambiguous area of international law.  It draws from and consolidates decades of the Committee’s jurisprudence on the right to redress, including views that the Committee has articulated in its periodic reviews of states parties and in decisions rendered on individual complaints.  The Comment includes the clarification that “the restoration of the dignity of the victim is the ultimate objective in the provision of redress.”

Obama gains leverage over Netanyahu with support for Israel in crisis

11/21/12: The New York Times reports on the changing dynamics in the uncomfortable relationship between US President Barack Obama and Israeli Prime Minister Benjamin Netanyahu, who all but openly opposed Obama’s reelection in November.  After more than a year of Obama needing – and not getting – much support from his Israeli counterpart in his efforts to woo American Jewish voters at home ahead of his reelection, it is now Netanyahu who needs Obama to help shore up his support at home.  The Israeli leader is facing an election in January, and if there is one thing that Israeli voters do not like it is any kind of daylight between their Prime Minister and the American President in times of strife.

Commentary: Obama v. Bush (and Romney) on counterterrorism policies

11/12/12: Our friends at Lawfare have produced this fascinating exchange between Jack Goldsmith and Trevor Morrison on the counterterrorism measure President Obama has taken and is likely to take in his second term, and how they differ from those taken by President Bush and those that would have been implemented by a President Romney.  Morrison sees those differences as more signficant than Goldsmith.

Reports indicate extremists get most arms sent to Syrian rebels

10/15/12: The New York Times reports most of the arms Saudi Arabia and Qatar are shipping to supply Syrian rebel groups fighting the government of Bashar al-Assad are reportedly going to hard-line Islamic jihadists, and not the more secular opposition groups that the West wants to bolster.  That conclusion, of which President Obama and other senior officials are aware from classified assessments of the Syrian conflict that has now claimed more than 25,000 lives, casts into doubt whether the White House’s strategy of minimal and indirect intervention in the Syrian conflict is accomplishing its intended purpose of helping a democratic-minded opposition topple an oppressive government, or is instead sowing the seeds of future insurgencies hostile to the United States.

Few good options to secure Syria's chemical weapons

10/15/12: The Miami Herald reports the US and regional allies are closely monitoring Syria’s chemical weapons – caught in the midst of a raging civil war – but options for securing the toxic agents stuffed into shells, bombs, and missiles are fraught with risk.  President Bashar al-Assad’s embattled regime is believed to have one of the largest chemical weapons stockpiles in the world.  Fears have risen that a cornered Assad might use them or that they could fall into the hands of extremists, whether the Lebanese Hezbollah militia, an Assad ally, or al-Qaeda-inspired militants among the rebels.  For now, the main storage and production sites are considered secure.  However, some suggest the civil war poses one of the gravest risks of losing control over non-conventional weapons since the breakup of the Soviet Union two decades ago.

The U.S. and regional allies are closely monitoring Syria's chemical weapons - caught in the midst of a raging civil war - but options for securing the toxic agents stuffed into shells, bombs and missiles are fraught with risk.

President Bashar Assad's embattled regime is believed to have one of the largest chemical weapons stockpiles in the world. Fears have risen that a cornered Assad might use them or that they could fall into the hands of extremists, whether the Lebanese Hezbollah militia, an Assad ally, or al-Qaida-inspired militants among the rebels.

For now, the main storage and production sites are considered secure. However, some suggest the civil war poses one of the gravest risks of losing control over non-conventional weapons since the breakup of the Soviet Union two decades ago.

Syria's suspected arsenal is scattered across a number of locations, mainly in the north and west, where fighting between Assad's forces and rebels seeking to oust him has been heaviest.

"We need to be up front that this is not something very easy to do," Steven Bucci, a former senior Defense Department official, said of attempts to keep the weapons locked up.

The price of military action against the arsenal is prohibitively high, Bucci and others say.

Airstrikes on chemical weapons depots could inadvertently release toxic clouds or expose them to looters. A ground operation would require thousands of troops, and the U.S. administration has pushed back on any suggestion of direct military action in Syria. Pinpoint operations by special forces could easily go wrong.

Read more here: http://www.miamiherald.com/2012/10/13/3048338/few-good-options-to-secure-syria.html#storylink=cpy

Commentary: Not All That It Can Be: The myth of American military superiority

10/12/12:  Foreign Policy published an article by Winslow Wheeler argues many think that because the United States spends multiples of any conceivable opponent or even combinations of them, has the largest modern navy and air force, and can operate all over the world, there is no conceivable enemy or enemies that can take on America successfully. The history of warfare is full of this kind of arrogance before the fall. There are far more subtle and supremely powerful forces at play in deciding who wins in warfare than the stuff that occupies the hollow defense debates in the American political spectrum.

Romney: "Long way to go" before attacking Iran

10/10/12: Haaretz reports Republican presidential nominee Mitt Romney acknowledged Tuesday that there is “a long way to go” before it would be necessary to take military action against Iran’s nuclear program, but reiterated that he and Israeli Prime Minister Benjamin Netanyahu were both committed to preventing Tehran from reaching nuclear weapons capabilities.  He accused President Barack Obama of being insufficiently committed to stopping Iran from obtaining a nuclear weapon, but failed to point out any substantial differences between President Obama’s policies in that area and the ones he would pursue.

A history of the Alien Tort Statute

10/01/12: Reuters has this piece by Rebecca Hamilton sketching a quick history of the Alien Tort Statute (ATS), which is at the center of a case being argued today before the US Supreme Court.  The 33-word statute was enacted by the First Congress in 1789 and reads, “The [US] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  The question being argued today, in Kiobel v. Royal Dutch Petroleum Co., is whether, and to what extent, the ATS applies to an incident that takes place in the sovereign territory of a foreign nation.  The case also presents the question of corporate liability under the ATS.

Analysis: Torture creep: Why are more Americans accepting Bush-era policies than ever before?

09/26/12: Foreign Policy features an op-ed by Amy Zegart discussing a recent poll on Americans' attitudes towards fighting terrorism.  The poll reveals, among other things, the rather alarming statistic that 25 percent of Americans are willing to use nuclear weapons to kill terrorists (presumbly meaning , rather than using quasi-surgically precise drone strikes, we should drop atomic bombs on neighborhoods in Yemen and Pakistan).  The numbers also suggest that, in general, Americans have become more hawkish on counterterrorism policy since Barack Obama became president.  Specifically, they are more willing than previous polls indicated to employ torturous interrogation methods such as waterboarding, the use of dogs, or sexual or religious humiliation in order to obtain information.  Zegart ascribes this mostly to the fact that the controversy is off the front pages, and that, in general, we become acclimated to policies as they are once they have been in place for long enough (a kind of "torture creep").

The bogus claim that Obama skips his intelligence briefings

09/24/12: The Washington Post’s Fact-Checker blog has this post debunking a current claim that President Obama fails to attend his intelligence briefings.  The misleading statistic that Obama has missed half his intelligence briefings has been repeated on television and in the Post itself, but is derived simply from the fact that different Presidents have wanted intelligence briefings in different ways: some have gotten them in writing or through top Cabinet officers, others through face-to-face meetings with intelligence officials.  Ultimately, what matters is what a president does with the information he receives from the CIA. Republican critics may find fault with Obama’s handling of foreign policy. But this attack ad turns a question of process—how does the President handle his intelligence brief?—into a misguided attack because Obama has chosen to receive his information in a different manner than his predecessor.  As it turns out, no president does it the exact same way.  Under the standards of the claim, Republican icon Ronald Reagan skipped his intelligence briefings 99 percent of the time.

Rare earth metals: Will we have enough?

09/20/12: Phys.Org discusses rare earth minerals including recent moves by China on exports and a recent CRS report on the growing demand. High-tech products and renewable energy technology cannot function without rare earth metals. Neodymium, terbium and dysprosium are essential ingredients in the magnets of wind turbines and computer hard drives; a number of rare earth metals are used in nickel-metal-hydride rechargeable batteries that power electric vehicles and many other products; yttrium is necessary for color TVs, fuel cells and fluorescent lamps; europium is a component of compact fluorescent bulbs and TV and iPhone screens; cerium and lanthanum are used in catalytic converters; platinum group metals are needed as catalysts in fuel cell technology; and other rare earth metals are essential for solar cells, cell phones, computer chips, medical imaging, jet engines, defense technology, and much more.

After 2011 spike, US arms sales now make up most of global market

08/27/12: The New York Times reports weapons sales by the United States tripled in 2011 to a record high, driven by major arms sales to Persian Gulf allies concerned about Iran’s regional ambitions.  A report prepared by the Congressional Research Service said overseas weapons sales by the United States totaled $66.3 billion last year, or more than three-quarters of the global arms market, valued at $85.3 billion in 2011.  Russia was a distant second, with $4.8 billion in deals.  The American weapons sales total was an “extraordinary increase” over the $21.4 billion in deals for 2010, the study found, and was the largest single-year sales total in the history of United States arms exports.  The previous high was in fiscal year 2009, when American weapons sales overseas totaled nearly $31 billion.

Syria expected to dominate Islamic nations' summit in Mecca

08/14/12: CNN reports a Tuesday summit in the Muslim holy city of Mecca will bring together the biggest ally of the Syrian government and its top regional antagonists, with the country’s increasingly bloody civil war topping the agenda. The Sunni monarchy of Saudi Arabia is among the most prominent countries backing the Syrian opposition, while the Shiite Islamic Republic of Iran across the Persian Gulf casts itself and its allies in Damascus as part of an “Axis of Resistance” to domination of the region by outsiders. Even before the summit began, OIC foreign ministers agreed to suspend Syria from their ranks in a show of support for the Syrian people. The CNN piece does a good job of outlining the stakes for the major players at the conference.

Egypt's President grants self complete legislative, executive power

08/14/12: JURIST reports Egyptian President Mohamed Morsi issued a declaration on Sunday that gives his office complete legislative and executive power, abolishing a June declaration that reserved power for the military.  The declaration grants President Morsi the power to establish public policy and sign international treaties, and it also allows him to create a new legislature to draft a constitution if the current legislature fails to do so.  The post on JURIST also does a good job summarizing the series of constitutional decisions made by Egypt’s President, its military, and the courts that have taken place since Morsi took office.

Tracking "lone wolf" domestic terrorism threats is difficult

08/12/12: The Washington Post has an article about the difficulty in tracking perhaps the most difficult portion of or years, government analysts and watchdog groups have been warning about a specific kind of terrorist threat: the “lone wolf” white supremacist.  But they have been hampered by the growing decentralization of a movement that increasingly organizes online.  They have had to broaden their mission to address the pressing concerns over international terrorism.  And they have butted up against a persistent problem: figuring out who among the throngs that espouse their constitutionally protected hate speech will one day take it upon themselves to commit an atrocity.  The difficulties came into focus Sunday when Wade Michael Page, a 40-year-old Army veteran with ties to “white power” groups, opened fire in a Wisconsin Sikh temple.

Romney's VP pick has little national security background

08/11/12: Wired has an interesting piece today discussing the national defense and security background, or lack thereof, of Representative Paul Ryan (R-Wis.), who has just been announced as Mitt Romney’s running mate.  Like Romney, Ryan is a fairly blank slate when it comes to national security, and his tech-policy record is a mixed one.  Ryan is chairman of the House Budget Committee, which has a say in shaping military spending.  But he’s tended to focus more on the budget deficit and domestic policy than national security.  Ryan tends to talk about defense policy choices less as a matter of national survival and more in the context of sensible budgetary choices.  In the few public pronouncements Ryan’s made about foreign policy, he’s sounded less aggressive than many in his party, but his geopolitical views may be a work in progress.

The nuts and bolts of the sequester

08/09/12: The Miami Herald has this piece today giving a basic primer on the steep automatic “sequestered” budget cuts in many areas of government, including national defense, that are scheduled to take effect on January 1 if Congress fails to pass legislation reducing the deficit.  It gives succinct answers to significant and frequently asked questions, and is invaluable for those not steeped in congressional politics.  Some $110 billion in cuts will kick in, hitting defense and domestic programs equally hard unless Congress figures out over the next five months a way to avoid the reductions.  But increasingly bitter partisanship and election-year politics make a solution unlikely before the November elections, leaving the issue to a jam-packed lame-duck session of Congress.

Obama signs law limiting protests at military funerals

08/08/12: JURIST reports President Obama Monday signed the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, which provides a number of benefits to veterans and also limits the ability to protest at a military funeral.  The law requires that protests be at least 300 feet from the funeral and bars protesting within two hours before or after a ceremony.  The newly signed law is apparently written in part to prevent protests like those led by Reverend Fred Phelps and members of the Westboro Baptist Church, who picket military funerals claiming American soldiers have been killed because the US tolerates homosexuals.

The Supreme Court ruled last year in Snyder v. Phelps that Phelps’s activity is protected by the First Amendment, but there was no law against the protests in that case; it was simply a tort suit for intentional infliction of emotional distress brought by the father of a soldier whose funeral was picketed.  It’s unclear how that case will affect the validity of this law.

Commentary: Al-Qaeda's specter in Syria

08/07/12: The Council on Foreign Relations features a piece by Ed Husain discussing how invaluable al-Qaeda has been in aiding the rebel Free Syrian Army (FSA) in their effort to overthrow the government of President Bashar al-Assad.  The Syrian rebels would be immeasurably weaker today without al-Qaeda in their ranks.  By and large, FSA battalions are tired, divided, chaotic, and ineffective.  Feeling abandoned by the West, rebel forces are increasingly demoralized as they square off with the Assad regime’s superior weaponry and professional army.  Al-Qaeda fighters, however, bring discipline, religious fervor, battle experience from Iraq, funding from Sunni sympathizers in the Gulf, and most importantly, deadly results.  The unspoken political calculation among Western policymakers appears to be to get rid of Assad first – weakening Iran’s position in the region – and then deal with al-Qaeda later.

Sinai attack poses new challenge for Egypt's Morsi

08/07/12: The Washington Post has a piece discussing Sunday night’s attack by militants in the Sinai Peninsula and the challenge it will present to new Egyptian President Mohamed Morsi.  Cairo on Monday vowed to act swiftly to restore security in north Sinai after the brazen attack near the Israeli border that killed sixteen Egyptian security personnel dealt Morsi a vexing first crisis.  The ambush and the gunmen’s attempt to storm across the border Sunday night brought into sharp focus challenges that could define or undo the presidency of the nation’s first Islamist statesman.  The assailants are believed to be Islamist extremists who have secured a foothold near the Israeli border as the area has descended into lawlessness in recent years.  There has not yet been any claim of responsibility.

Obama Administration failing to live up to transparency promise

08/04/12: The Washington Post reports that despite repeated campaign promises to have perhaps the most transparent White House in history, new evidence suggests that Obama Administration officials have struggled to overturn the long-standing culture of secrecy in Washington.  Some of these high-profile transparency measures have stalled, and by some measures the government is keeping more secrets than before.  Media organizations and individuals requesting information under the Freedom of Information Act last year were less likely to receive the material than in 2010 at ten of the fifteen Cabinet-level departments.  The federal government was more likely last year than in 2010 to use FOIA’s exemptions to refuse information, and the government overall had a bigger backlog of requests at the end of 2011 than at the start.

Massive FBI leak investigation and proposed laws chill national security news coverage

08/02/12: The New York Times reports FBI agents on a hunt for leakers have interviewed current and former high-level government officials from multiple agencies in recent weeks, casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.  The criminal investigation, which has reached into the White House, the Pentagon, the National Security Agency, and the CIA, appears to be the most sweeping inquiry into intelligence disclosures in years.  It coincides with Senate consideration of new legislation, designed to curb intelligence officials’ exchanges with reporters, that intelligence veterans and civil libertarians fear could be counterproductive and may raise constitutional issues.

Pakistan report details how doctor helped US find bin Laden

07/28/12: The Washington Post reports a newly surfaced Pakistani intelligence report supposedly based on interrogations of Shakil Afridi, the imprisoned physician who has been lauded in Washington as a hero for his role in the operation that led to Osama bin Laden’s death but is branded a traitor in Pakistan, details his role in the plot to find and kill the al-Qaeda leader.  “[Afridi] met twenty-five times with foreign secret agents, received instructions and provided sensitive information to them,” states the investigative report, filed by prosecutors Wednesday in an appeals court where Afridi is seeking to overturn his 33-year sentence.  The report’s reliability is questionable; the interrogations it allegedly summarizes were carried out under a tribal judicial system in which Afridi had no counsel and could not challenge the evidence against him.

Experts concerned by Iran's improved retaliation capability in Gulf

07/27/12: The Washington Post reports Iran is rapidly gaining new capabilities to strike at US warships in the Persian Gulf, amassing an arsenal of sophisticated anti-ship missiles while expanding its fleet of fast-attack boats and submarines.  US and Middle Eastern analysts say the new systems, many of them developed with foreign assistance, give Iran’s commanders new confidence that they could quickly damage or destroy US ships if hostilities erupt.  And although US Navy officials remain confident they would ultimately prevail in a fight, Iran’s advances have fueled concerns about US vulnerabilities during the opening hours of a conflict in the gulf.  Military analysts worry increasingly accurate short-range missiles, combined with Iran’s use of “swarm” tactics involving hundreds of heavily armed patrol boats, could strain the defensive capabilities of even the most modern US ships.

Al-Qaeda forcing itself into Syrian conflict

07/25/12: The New York Times reports al-Qaeda and other Islamic extremists are doing their best to hijack the Syrian revolution, with a growing although still limited success that has American intelligence officials publicly concerned and Iraqi officials next door openly alarmed.  While leaders of the Syrian political and military opposition continue to deny any role for the extremists, al-Qaeda has helped to change the nature of the conflict, injecting suicide bombings (the weapon it perfected in Iraq) into the battle against President Bashar al-Assad with growing frequency.  The presence of jihadists in Syria has accelerated in recent days in part because of a convergence with the sectarian tensions across the country’s long border in Iraq.  Al-Qaeda says Syria’s uprising, like its own insurgency in Iraq, is a religious war pitting Sunnis against ruling Shi‘ites.

"I really resent you using the word 'torture:'" interview with Jose Rodriguez

07/22/12: The New Yorker has this thought-provoking interview by Amy Davidson with former CIA officer Jose Rodriguez, whose book Hard Measures: How agressive CIA actions after 9/11 saved American lives argues that harsh (or torturous, if you prefer), interrogation techniques are necessary to protect the United States.  Rodriguez spent more than thirty years with the CIA, eventually serving as the director of its Counterterrorism Center. He was involved in the Agency’s detention-and-interrogation program, which included holding prisoners in black sites and waterboarding them.  The interview is especially worth reading side-by-side with an earlier interview Davidson did with Ali Soufan, a former F.B.I. agent who led the investigation into the bombing of the U.S.S. Cole and into events surrounding 9/11.  His view on these techniques is diametrically opposed to that of Rodriguez.

H/T Neal R. Sonnett

Highest military court upholds court-martial jurisdiction over civilian contractors

07/19/12: Lawfare reports the nation's highest-level military court Wednesday concluded that Congress may constitutionally subject civilian contractors to trial by courts-martial.  In United States v. Ali, the US Court of Appeals for the Armed Forces (CAAF) upheld the constitutionality of Article 2(a)(10) of the Uniform Code of Military Justice (UCMJ), which authorizes court-martial jurisdiction over civilian contractors accompanying the armed forces in the field “during a contingency operation.”  If that holding is to be reviewed – and it may well be – it will have to be by a writ of certiorari to the US Supreme Court.