Georgetown Security Law Brief

Commentary: Approach to a blue-sky overhaul of surveillance laws

05/20/13:  Lawfare posted the third of David Kris's commentaries on a blue-sky overhaul of surveillance laws which outlines a proposed approach to reform. The first task in any overhaul effort would probably be to define the conduct to be regulated.  The project would need to consider more than just electronic surveillance.  It could include physical searches, and other methods of collecting information.  Current law governing intelligence collection offers a starting point for defining the scope of the project, but perhaps we would want to regulate more, or less, than we currently do.  The Fourth Amendment provides another starting point, but it may be too narrow because many current statutes (e.g., those governing pen-trap surveillance) regulate conduct that is not a Fourth Amendment search or seizure.  Extant foreign intelligence collection activity (as opposed to regulation) might also serve as a guide, but that too is subject to change, and not all current foreign intelligence activity is equally regulated.  Kris identifies four broad areas on which expound: (1) distinctions concerning the target of surveillance and/or interlocutors, (2) distinctions based on how the government conducts the surveillance, (3) levels and types of approvals for surveillance, and (4) use of information obtained or derived from surveillance.

Commentary: It's not just China, India is also buying and building aircraft carriers

05/17/13:  Foreign Policy published an article by John Reed who notes that as China commissioned its first-ever aircraft carrier aviation unit, Asia's other rising power, India, gave its carrier aviators a serious equipment upgrade with the introduction of 16 brand-new Russian-made MiG-29K and four MiG-29KUB carrier-borne fighters earlier this week. India has operated old British aircraft carriers for decades. Right now it flies aging Sea Harrier jump jets from INS Viraat, formerly the Royal Navy carrier Hermes. These Sea Harriers are subsonic attack planes with limited payloads operating from a carrier that was built in the 1950s. The supersonic MiG-29K is an updated, naval version of the Soviet Union's 1980s-vintage MiG-29, which was designed to counter U.S. Air Force F-15s and F-16s in the skies over Europe should the Cold War ever turn hot. The planes are way faster than the 1980s-vintage Sea Harriers and can carry more weapons capable of shooting down enemy planes and hitting enemy ships. The Indian navy's new MiGs are going to be flown off of India's newest carrier, the former Soviet navy "aircraft-carrying cruiser" Admiral Gorshkov. That vessel has been massively refurbished at a Russian shipyard into the soon-to-be delivered INS Vikramaditya, a full-on carrier that, after much work, looks remarkably similar to China's first carrier, the Liaoning -- herself an old Soviet carrier.

Commentary: Daskal and Vladeck working paper on "After the AUMF"

05/15/13: Lawfare has this post, which links to a working paper authored by our own fellow Jennifer Daskal and Professor Steve Vladeck.  The paper - which is available here - is a more comprehensive effort to explain the authors' view that proposals for an expanded, open-ended Authorization for the Use of Military Force (AUMF), from whatever quarter and with whatever caveats, are unneccessary, counterproductive, and unwise. Instead, we offer out an alternative vision for the next generation of U.S. counterterrorism policy—one in which law enforcement and intelligence-gathering capabilities, with the backstop of self-defense authorities, are the baseline. We hope that this is an approach that Congress will take seriously if and when it decides to revisit the AUMF.  As this is an early draft of the paper, Profs. Daskal and Vladeck both (1) welcome comments of all shapes and sizes (whether online or via e-mail); and (2) beg readers’ indulgence for typos or other early-draft indiscretions.

Commentary: Should we arm the Syrian rebels?

05/11/13:  Foreign Policy published an article by Rosa Brooks discussing arming Syrian rebels. As tempting as it is, past experience suggests that arming the Syrian opposition could be every bit as hazardous, difficult and uncertain as putting US boots on the ground. I don't mean to suggest that arming the Syrian opposition should be taken off the table entirely. But if we proceed, we should do so only with the utmost caution: After all, history suggests that US efforts to arm insurgents tend not to end well. Like so many global tragedies, this is one with no simple solution. It's a mess, and any "solution" will be messy, as well. But as with any proposed intervention with humanitarian motives, "do no harm" should be our first priority. If we can help, we should, even if there is some risk involved -- but if our actions are likely to just make things worse, we should refrain, painful as that is.

Commentary: Xi's War Drums

05/02/13:  Foreign Policy published an article by John Garnaut: China's new leader is using the military to consolidate his power. But has he unleashed forces beyond his control? Xi has taken charge at a moment when China has been building up its military power as never before, surprising the United States and shocking its neighbors with the speedy development of new hardware and the aggressive manner in which it has deployed those tools to support its expanding ambitions. Top US intelligence analysts and generals have admitted to being caught out by the 2011 flight-testing of China's new J-20 stealth fighter. They were dumbfounded by China's subsequent deployment of the East Wind 21D, the world's first anti-ship ballistic missile, dubbed "the carrier killer" in the West. And now China is on track to nearly triple its fleet of maritime strike aircraft by 2020. China is simultaneously developing and producing seven types of submarine and surface warships. That's after a decade in which it quadrupled its number of modern submarines, including nuclear submarines designed to carry nuclear-armed ballistic missiles. It has massively expanded production of corvettes, frigates, amphibious ships, and destroyers. In September, China launched its first aircraft carrier.  But the specter of war is not the only possible explanation for Xi's saber rattling and demands for combat readiness. For even as Japanese leaders and US officials were publicizing their concerns this winter about a region on the brink of naval conflict, it became clearer that Xi and his close military confidants are squarely focused on domestic politics. Xi, then, has ultimately chosen to defend the Communist Party against internal political threats rather than prepare it to face external military threats. There is little doubt the Communist Party has been sharpening its identity in a post-communist world by defining itself against the West, fanning nationalist fervor, and promising a restoration of China's ancient grandeur. Xi thus has little choice but to keep pumping enormous resources into a war machine if he is to justify his party's continuing monopoly on power.

Commentary: Obama's Syria subtext: I'm not George W. Bush

05/01/13: The Atlantic has this piece arguing that one of the principal goals in President Obama’s discussion yesterday of the use of chemical weapons in Syria was to remind the American people of the dangers inherent in a rush to war, symbolized by the colossal intelligence failure leading up to the Iraq War.  For all the talk of ‘red lines,’ Obama’s remarks served as a reminder that the former Senator from Illinois was one of the staunchest opponents of military action in Iraq and was elected 2008 partially on the platform that that war, launched based on faulty intelligence, was a mistake.  Obama was against a rush to war in Iraq 2002 and 2003, and he’s taking a similarly cautious approach in the complex environment of the Syrian conflict.  A poll released Tuesday found that majorities are across party lines decidedly opposed to American intervention in Syria right now, with 62 percent of the public agreeing that “the United States has no responsibility to do something about the fighting in Syria between government forces and antigovernment groups.”

Commentary: The legality of President Obama’s “red line” on Syrian chemical weapons

04/26/13:  Opinio Juris posted an analysis by Julian Ku concerning President Obama's red line on Syrian chemical weapons. New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the US for military action in Syria. First of all, there is that pesky US Constitution, Article I, Section 8 which many folks think grants the the US Congress the exclusive power to authorize US military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the UN Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof). A unilateral US attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

Commentary: Small Cells vs. Big Data: Can information dominance crush terrorism?

04/23/13:  Foreign Policy posted an article by John Arquilla discussing terrorism and big data. The fundamental dynamic of the Cold War was an arms race to build nuclear weapons; conflict today is primarily driven by an "organizational race" to build networks. Terrorists, insurgents, and other militants focus on the creation of dispersed cells -- most comprised of just handfuls of operatives -- pursuing common goals, but without central controls. Intelligence, law enforcement, and military organizations strive to network their information flows, the aim being to mine "big data" to illuminate enemy cells, then to use this knowledge to eliminate them. In Boston last week, both aspects of this organizational race were evident -- the small cell and big data -- and both had their innings. Opposed to this new terrorist trend are the rising informational networks of many countries that hinge upon the sustained effort to unmask small cells and preempt them before they can strike. These counterterror networks have been doing pretty well, and to date have prevented about 20 major terrorist attacks -- not least two recent ones involving cells comprised of North Caucasians that were aiming to hit Americans at Naval Station Rota, in Spain, and British targets at Gibraltar. Yes, a small cell did pull off an attack in Boston last week, but massive flows of shared information swiftly identified the malefactors and brought them down. One and done. If this is how matters will play out, terrorist networks will be in big trouble because of the power of big data. And when one adds in the losses to the small-cell network due to preemptions before some of these cells can mount a single attack, terrorist prospects look even worse.

Opinion: The appeal of the courts

03/26/13: Foreign Policy published an article by Phillip Carter and Deborah Pearlstein arguing we've already figured out how to win the legal war on terrorism. The Justice Department in fact has a far better record than the Defense Department in prosecuting and convicting terrorist suspects. Surveillance abroad by military and intelligence agencies, strong allied cooperation, coupled with US prosecution and incarceration -- has now been used successfully in a range of cases. This blended, postwar approach works precisely because the military plays a supporting, not a leading, role. A number of foreign intelligence and law enforcement agencies are far more likely to cooperate with their American intelligence and law enforcement counterparts than they are with the US military. This was true in the Abu Ghaith case for Turkey and Jordan, two key allies in the counterterrorism effort against al Qaeda, both of which cooperated with US intelligence and law enforcement agencies. The same was true in the Harun case, in which Italian authorities gave the suspect to the United States upon assurances he would be prosecuted in civilian court -- and not transferred to Guantánamo Bay or charged before a military commission. Let's be clear: This is not a call for a law-enforcement-only approach. It is not a rejection of military force (including the power to detain) when a public case can be made that force is necessary to US national security and in keeping with our obligations under domestic and international law. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy

Commentary: Iran is just too dysfunctional to cut a nuclear deal

02/21/13:  Foreign Policy published an article by Patrick Clawson arguing the slow pace of nuclear negotiations with Iran are only the beginning of the reasons to be discouraged about resolution of the standoff. More worrying is that political infighting in Tehran is so bad that Iran might not be able to bring itself to accept unilateral U.S. unconditional surrender were it to be offered. By their actions, Iranian leaders are giving the strong impression that they are so preoccupied by their internal differences that they cannot agree on, well, a damn thing. Disunity helps the enemy, Khamenei frequently says. But the world powers negotiating with Iran would be glad to see more unity in Tehran, because a more unified Iranian government would be better able to reach a deal and then implement it. That seems less and less likely. The time is rapidly approaching when the big powers, or at least the United States, need to set out a stark choice for Iran's leaders: Either accept a generous offer to resolve the nuclear impasse or be prepared for the consequences.

Commentary: Military brain drain

02/14/13:  Foreign Policy published an article by David Barno.  During any military drawdown, equipment, training, force structure, and end-strength will inevitably be sacrificed. But the "crown jewel" that must be preserved in order to be able to fight and win in the years ahead is human capital. Recruiting and retaining highly talented people remains the best guarantor of success in future conflicts.  Senior service leaders must take a harder look at themselves in the mirror when defending a 60-year old personnel system. It is 2013, not the Mad Men era of 1963. And sustaining the military preeminence of the United States starts with a uniquely American ideal -- cultivating the best and brightest, so they can lead the force into a dangerous future. It should be the first priority of today's senior military leaders, not their last.

Opinion: Obama's legal netherworld

02/09/13:  Foreign Policy published an article by John Yoo and Robert Delahunty.  In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the "due process" rights of enemy soldiers, judge whether they pose an "imminent" threat, or decide if capture "becomes feasible." Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the "nature and quality of the intrusion" on the enemy's constitutional rights against "the governmental interests." And Attorney General Eric Holder limits the target to "an operational leader continually planning attacks" against the United States.

Commentary: President Obama, did or did you not kill Anwar al-Awlaki?

02/08/13:  The Washington Post published an op-ed by David Cole: there are plenty of problems with President Obama's targeted killings in the war against terrorism: The policy remains secret in most aspects, involves no judicial review, has resulted in the deaths of innocent civilians, has been employed far from any battlefield and has sparked deep anti-American resentment in countries where we can ill afford it.  But when it comes to the particular legal issue raised in a recently leaked "white paper" from the Justice Department — namely, whether it is legal to kill Americans with drones — one problem looms largest: The policy permits the government to kill its citizens in secret while refusing to acknowledge, even after the fact, that it has done so.  There may be extraordinary occasions when killing a citizen is permissible, but it should never be acceptable for the government to refuse to acknowledge the act. How can we be free if our government has the power to kill us in secret? And how can sovereign authority be accountable to the people if the sovereign can refuse to own up to its actions?

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.

Commentary: FBI needs hackers, not backdoors

01/15/13:  Wired published an article by Matt Blaze and Susan Landau discussing wiretap ready requirements versus the use of hackers in gathering digital information.  Whether we like them or not, wiretaps — legally authorized ones only, of course — are an important law enforcement tool. But mandatory wiretap backdoors in internet services would invite at least as much new crime as it could help solve.  Especially because we’re knee deep in what can only be called a cybersecurity crisis. Criminals, rival nation states, and rogue hackers routinely seek out and exploit vulnerabilities in our computers and networks — much faster than we can fix them. In this cybersecurity landscape, wiretapping interfaces are particularly juicy targets.

Commentary: The myth of nuclear necessity

01/15/13:  The New York Times published an article by Ward Wilson discussing myths behind nuclear weapons and arguing for disarmament.  America and other nuclear powers must pursue the gradual abolition of nuclear weapons, but it will not be easy. Many leaders have little interest in giving up power, real or perceived. Any agreement would have to include stringent inspections and extensive safeguards. It would have to include all current nuclear-armed states in a complicated diplomatic process. But bans on other dangerous but clumsy armaments, like chemical and biological weapons, have been negotiated in the past. These bans — like laws — are sometimes broken. But the world is far safer with the bans than it would be without them.  Nuclear weapons were born out of fear, nurtured in fear and sustained by fear. They are dinosaurs — an evolutionary dead end. The trend in warfare today is toward smaller, smarter, more effective precision-guided weapons. Nuclear weapons — extremely dangerous and not very useful — are the wave of the past.

Commentary: Don’t Close Guantánamo

01/11/13:  The New York Times published an article by Jennifer Daskal arguing that we should keep Guantánamo open.  Guantánamo in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees’ lawyers, there has been a significant, if not uniform, improvement in conditions.  The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.

Commentary: 'Zero option' for Afghanistan

01/08/13:  Foreign Policy published an article by David Barno discussing possible future troop levels in Afghanistan.  Afghan President Hamid Karzai's visit this week to Washington marks one of the final big decision points in America's 11-year Afghanistan war. This week's meetings are likely to determine the final U.S. footprint in Afghanistan after 2014, when all international combat operations are slated to end. And that residual number of U.S. forces could well be zero.

Commentary: US, Israel should support Palestinian statehood

11/26/12: The New York Times features an op-ed by former Israeli diplomat Yossi Beilin arguing that the United States and Israel should support the Palestinian Authority's expected bid for recognition by the United Nations General Assembly, and ultimately their drive for statehood.  Beilin points out that Palestinian President Mahmous Abbas' Fatah faction, which governs the West Bank, favors the establishment of a Palestinian state alongside Israel - ostensibly Israel's goal - and that opposing him will only strengthen the extremist group Hamas, which rules Gaza and aims to destroy Israel.  "It is paradoxical that Israel’s current government is so vehemently opposed to Mr. Abbas’s bid for recognition," Beilin says.  "After all, it was 65 years ago this week that the Palestinians and their friends in the Arab world expressly rejected United Nations General Assembly Resolution 181, which recognized the need to establish a Jewish state alongside an Arab state in the former British Mandate territory of Palestine.  Now, the Palestinians are admitting their mistake and asking the same assembly to recognize a state of Palestine alongside Israel."  Supporting that bid will serve the interests of both Israel and the United States.

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.

Commentary: The national security consensus

11/06/12:  Foreign Policy published an article by James Dobbins arguing the next four years of US foreign policy will look a lot like the past four years, regardless of who's elected president.  America's political polarization does not extend far into the international realm. For all the rhetoric on the campaign trail, a recent Chicago Council on Global Affairs poll found that Democrats and Republicans have largely similar views on most foreign-policy issues. Republicans are marginally more worried about external threats than Democrats, but a strong majority of Americans now agrees that the Iraq and Afghan wars were not worthwhile, and there is a consensus in favor of a more cautious and selective brand of American global leadership.

Commentary: The US military needs to prepare for more operations along the world's coastlines

11/02/12:  Foreign Policy published an article by Richard Mills arguing that the US needs to focus more on naval capacity. Maritime nations make up 80 percent of the international community, increasing the likelihood that the next crisis or regional conflict will occur within the operational reach of US naval forces. With the initial response capability and decision room it provides, the naval force represents the leading edge, forward operating force called for in the nation's power projection strategy. As a critical element in that strategy, the Marine Corps conducts operations to deter and combat adversaries or deny them the ability to exert their will on US interests. However, further refinement of aggregated operations and littoral maneuver is required to exploit our at-sea advantage.

Commentary: Letting go of loose nukes

11/01/12:  Foreign Policy published an article by Douglas Birch arguing that it is time to let Russia pay for securing their own nuclear weapons.  The Kremlin's refusal to renew a U.S. program that has spent more than $10 billion since 1992 on security for Russia's nuclear and unconventional weapons has caused angst, hand-wringing and finger-pointing. Who'd have thought a foreign aid program could be so popular.

Commentary: Thoughts on the Brennan Profile

10/25/12:  Jack Goldsmith posted on Lawfare some comments on drone transparency and the Washington Post profile on Brennan (this morning's first post).  He argues it is quite right to question whether getting CIA out of the business of drone strikes, and giving that responsibility primarily or exclusively to JSOC, would (under current legal and cultural assumptions) promote transparency.  The CIA’s formal reporting requirements to Congress are more robust than JSOC’s, and in the last decade CIA drone activities have more readily leaked to the public than JSOC’s drone activities.

Commentary: The limits of deterrence with Iran

10/23/12:  In an article by Ruth Hanau Santini the Brookings Institute argues the logic behind Western sanctions targeting several economic sectors (but far yet from being a full trade embargo) in Iran is straightforward: economic and financial isolation, the devaluation of the national currency, the rising inflation and unemployment will increase domestic pressure on the government and lead it either to capitulation in nuclear negotiations or to regime change if domestic unrest will be massive. The diplomatic window will likely close next spring, with the upcoming Iranian presidential elections scheduled for June.

Task force tells DHS to offer cybersecurity jobs to gov't workers, test them like pilots

10/13/12:  Wired's Threatlevel reports in order to attract the highly skilled and qualified cybersecurity workers the Department of Homeland Security needs to fulfill its mission of protecting government computer systems and overseeing the security of critical infrastructure systems, DHS has to reserve its coolest cybersecurity jobs for federal workers, not contractors, according to a task-force report submitted to DHS this month. This means, in part, hiring at least 600 new cybersecurity professionals, including ones who have proven, hands-on experience to take on critical tasks, the task force recommended in its 41-page report.

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.

Commentary: Private Security: How companies meddle in Cyberwar

10/12/12: Foreign Policy published an article by Tim Maurer which argues it's clear that governments across the world are bolstering their cyberwarfare capabilities. But there is a counterforce to the global cyber arms race: an entire industry built on identifying and neutralizing malware. In fact, two races are taking place simultaneously -- an arms and a disarmament race. This disarmament race is driven by the Symantecs, McAfees, and Kasperskys of the world.

Commentary: Deterrent effect - How high-tech weapons could make states hang on to their nukes

10/06/12:  Bates Gill at Foreign Policy argues with the improvement and proliferation advanced conventional capabilities, the major nuclear powers are coming to a critical disarmament crossroads that will demand far greater confidence amongst them so that significant new reductions are possible while still preserving a fundamentally stable deterrence dynamic. The phrase "fewer but newer" may best sum up the future disarmament situation: fewer nuclear warheads, but newer systems -- especially in the conventional realm -- with the potential to transform the global strategic landscape and make the task of complete nuclear disarmament an even more difficult prospect.

Commentary: Providing a legal basis to attack Iran

09/28/12:  The Washington Post published an op-ed by Jeffrey Smith and John Bellinger III discussing the legal basis for an attack on Iran.  Law is important, especially in issues of war and peace.  The United States has long maintained the right, under international law, to take unilateral, preemptive action to prevent an attack on the nation. We have, for example, never agreed to a “no-first-use” policy for our nuclear weapons.

Commentary: Water security conflicts: a regional perspective

09/28/12:  The Small Wars Journal published an article by Nelson Hernández about the growing concern of water security.  Water scarcity disputes and tensions, if left unaddressed or unsuccessfully resolved, may lead to increased levels of violence and armed conflict that undermine intrastate, interstate, regional, and international peace and security.

Commentary: No army for young men

09/28/12:  Foreign Policy published an article by Rosa Brooks noting that it's time to question the near-universal assumption that the ideal military recruit is young and male. The nature of warfare has changed dramatically in the last century and the capabilities most needed by the military are less and less likely to be in the exclusive possession of young males. In fact, the opposite may be true: when it comes to certain key skills and qualities likely to be vital to the military in the coming decades, young males may be one of the least well-suited demographic groups.

Commentary: No, we do not think we could win a nuclear war.

09/25/12:  Foreign Policy published an article by Harold Brown clarifying PD-59.  The Cold War has been over for more than 20 years and the security threats, both current and prospective, are different. Nuclear destruction does not now threaten the United States. But nuclear weapons remain. And looking forward, the lessons of strategic nuclear competition between the United States and the USSR inform and can ease the threat of nuclear war from or between other powers. The difficulties that hampered both the Americans and the Soviets, even with decades of experience, in signaling and in reading the short- and long-term intentions of the other, are likely to repeat or intensify for new or aspiring nuclear powers. Those nations offer a grave threat to international security in their interstate interactions and through possible leakage to non-state actors. It's therefore important that a correct interpretation of the past inform the present.

Commentary: Is the US obligated to defend Japan’s Senkaku Islands against China? probably.

09/21/12:  Julian Ku argues on Opinio Juris that the US may be obligated to protect the Senkaku Islands. As things continue to get ugly between China and Japan over the Senkaku/Diaoyu Islands, the U.S. has tried to stay out of the way.  Still, although the U.S. has tried to stay neutral on the territorial dispute, it appears the U.S. is obligated by treaty to defend any incursion by China into the Senkaku/Diaoyu.

Commentary: Lessons from an Iranian war game

09/21/12:  David Ignatius writes an Op-Ed in the Washington Post outlining the results of a war game focused on a US-Iranian escalation. Perhaps it was the “fog of simulation.” But the scariest aspect of a U.S.-Iran war game staged this week was the way each side miscalculated the other’s responses — and moved toward war even as the players thought they were choosing restrained options. The bottom line: The game showed how easy it was for each side to misread the other’s signals. And these players were separated by a mere corridor in a Washington think tank, rather than half a world away.

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.

Commentary: Obama, Romney seem to have forgotten war in Afghanistan

08/04/12: The Washington Post features an op-ed by Rajiv Chandrasekaran that takes Barack Obama and Mitt Romney to task for seemingly having forgotten the Afghanistan War on the campaign trail.  There are still almost 80,000 US troops in Afghanistan, and each month brings a few dozen home in coffins — more than 2,000 since 2001.  Hundreds more return on medical evacuation flights, many of them without a limb.  The war will cost taxpayers more than $100 billion this year.  The Taliban, which enjoys sanctuary in nuclear-armed Pakistan, continues to conduct devastating attacks.  But you wouldn’t know any of it from listening to President Obama and Governor Romney.  Because even if voters wanted to confront the war (and they don’t), each candidate would still have his own motives to run from it.

"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

Commentary: Debate over civilian casualties notwithstanding, drones are a fair way of waging war

07/19/12: The Atlantic has this post from Conor Friedersdorf arguing that the methodology used by counterterrorism expert Peter Bergen to count civilian casualties in drone strikes is flawed. Bergen, whose analysis with the New America Foundation has been cited by many media outlets including us, has concluded that civilian casualties have dropped dramatically this year in Pakistan. Friedersdorf argues that Bergen and others are repeatedly overstating the conclusions that can be draw from their research. The dispute boils down to a question of the reliability of Bergen's sources.

The pieces make for interesting reading even though, for me at least, Friedersdorf's analysis does little to shake my view that this appears to be the best method of warmaking we've found in recent years. That's because the argument isn't really over Bergen's methodology (or the number of civilians killed in drone strikes for that matter) as much as the same argument Friedersdorf and others have been making that drone warfare is little more than extrajudicial killing without due process of law. This argument has some merit, but I still find it hard to believe that, at least as a legal matter, targeting enemy combatants with drones is different than targeting enemy soldiers, which doesn't require due process under the law of war. It's true that a terrorist doesn't wear a uniform, but after all that just makes his belligerent acts violations of the laws of war, and that certainly shouldn't entitle him to greater protection than lawful combatants in uniform who, again, can be killed without due process.

--Isaac Levey, CNSL research assistant

Former District Judge: Boumediene is being "gutted"

07/18/12: SCOTUSBlog reports a retired federal judge – one of about a dozen given the initial assignment to carry out the Supreme Court’s detainee rights decision in Boumediene v. Bush – on Tuesday criticized the Court for doing nothing to protect that decision from being “gutted” by the US Court of Appeals for the DC Circuit.  Former District Judge James Robertson, who began full retirement two years ago, spoke at a symposium in Washington on the “legacy” of Boumediene, which had its fourth anniversary last month.  That decision, Judge Robertson said, “called for ‘meaningful review’” of the military’s reasons for holding prisoners at Guantanamo Bay in Cuba.  But he contended the DC Circuit hasn’t provided that review, and the Supreme Court has refused to review any of the Court of Appeals’ decisions.

Commentary: All quiet on the war front

07/18/12: The LA Times features an op-ed by Doyle McManus arguing that our political leaders should be paying more heed in public discussions to issues of foreign policy and warmaking.  About 87,000 Americans are still fighting in Afghanistan, and some are likely to stay past 2014.  We’re at war in neighboring Pakistan too, mostly using unmanned drones but with a handful of people on the ground.  US drone and special operations forces are also waging attacks in Yemen and Somalia, operations big enough that President Obama felt compelled to acknowledge them publicly last month in a letter to Congress.  McManus argues that, at the very least, President Obama and Governor Romney owe the American people some discussion of these issues, and what their plans would be should they win the election this November.

Commentary: When the drones come home to roost

07/17/12: The Huffington Post features an op-ed by Center alumnus Robert Friedman discussing the use of drones for domestic purposes, from everything from surveillance to national defense to emergency preparedness and first response teams.  Friedman acknowledges the great potential drones have to improve our lives, but says the process by which their use is now approved by the Federal Aviation Administration (FAA) lacks crucial safeguards.  But it's not too late, he says for the agency to put in place sensible privacy and civil liberties protections to keep pace with an era of vast proliferation, whether through rulemaking or legislation.  By so doing, we can uphold the great promise of drone technology in our modern society, while minimizing interference with the liberty.

Analysis: The moral case for drones

07/16/12: The New York Times has a piece discussing the case being made by some philosophers and political theorists that drone warfare, despite the controversy around it, may actually be a more humane, moral way to wage war than any we have yet discovered.  “I had ethical doubts and concerns when I started looking into this,” said Bradley J. Strawser, a former Air Force officer and an assistant professor of philosophy at the Naval Postgraduate School.  But after a concentrated study of remotely piloted vehicles, he said, he concluded that using them to go after terrorists not only was ethically permissible but also might be ethically obligatory, because of their advantages in identifying targets and striking with precision.

US urged to recruit master hackers for counterterrorism efforts

07/16/12: The Guardian has this interview with cyberwarfare expert John Arquilla in which he argues that instead of prosecuting hackers, the United States should recruit them to assist our efforts in the war on terror.  The brilliance of hacking experts could be put to use on the United States' behalf in the same way as German rocket scientists were enlisted after World War II, said Arquilla, a defense analyst at the US Naval Postgraduate School in Monterey, California.  Arquilla, who invented the term cyberwarfare two decades ago, said a few master hackers had already been recruited but more were needed.  He acknowledged that many dabbled in illegal or questionable acts, but noted that Wernher von Braun, Hitler’s top scientist, was put to work on American rockets and space programs.

H/T to John-Michael Cummings

New Guantanamo battle over access to counsel

07/12/12: Lawfare has this post by Benjamin Wittes on a court filing just made by Guantanamo client Yasein Khasem Mohammad Esmail.  Esmail previously lost his habeas case, and according to the filing, the government is now taking the position that he can no longer meet with his lawyers under the protective order that governed his case, because the case has been terminated.  Instead, Esmail says, the government is insisting as a condition of continued access that the lawyers sign a highly-restrictive memorandum of understanding.  The post has an e-mail from Esmail’s lawyer explaining his position, to which Wittes gives a brief response.

Commentary: The case for an ICC indictment of Assad

07/02/12: The Wall Street Journal’s Law Blog features a post by Chelsea Phipps discussing the feasibility of an indictment by the International Criminal Court (ICC) against Syrian President Bashar al-Assad.  There are many challenges to such a course.  It’s not clear, for instance, that the ICC’s jurisdiction stretches that far.  Syria signed but didn’t ratify the Rome Statute, the treaty that established the ICC.  The ICC has jurisdiction over crimes committed in the states that have ratified the treaty, but states that are signatories are obligated to refrain only from “acts which would defeat the object and purpose” (unless they declare they don’t intend to ratify).  To overcome the limits of its jurisdiction, an ICC indictment of President Assad would require a Security Council referral.  With Russia and China on the Council, this is highly unlikely.

Commentary: The new national security canon

06/28/12: Lawfare features a post by Steve Vladeck discussing how much difficulty plaintiffs have had in suing the US government over post-September 11 governmental abuses.  Vladeck argues the courts have created a “national security canon,” a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment.  The essay suggests that as the national security canon becomes more deeply ingrained, the likelihood increases that it will expand into contexts other than those in which it has thus far been recognized.

Commentary: Why SCOTUS leaks less than the CIA

06/24/12: The New Republic features an essay by Harvard law professor Jack Goldsmith contrasting the recent spate of intelligence leaks (arguably more like floods or geysers) from the intelligence community with the complete secrecy that still prevails at the United States Supreme Court, even as the whole country awaits the Court's ruling next week on the constitutionality of the Patient Protection and Affordable Care Act.  Indeed, not since 1986 has a news outlet reported a Supreme Court decision before the Court released it.  Goldsmith points out that in the Court there are far fewer people who know things and thus less opportunity for information to leak, but moreover, he concludes, the contrast can best be explained by the vast difference in incentives for leaking in the two institutions.

Commentary: Anatomy of a leak

06/23/12: The Washington Post features an op-ed by David Ignatius discussing the process of leaking and trying to put the recent outrage over intelligent leaks in context.  He points out, first, that this is something every administration has done, and that the recent information published about cyberattacks against Iran contained some stories that took place before President Obama was in office and could only have been known (and thus leaked) by operatives in George W. Bush's administration.  He also points out that rather than leakers simply going to reporters, a leak often begins with the reporter getting his information some other way and asking his source to corroborate it, or for clarification.  At that point, since the reporter is likely to go to press even without the source's cooperation, the source cooperates to put the story in the best light he can.

Commentary: Who's afraid of the kill list?

06/17/12: Slate features an op-ed piece by Fred Kaplan arguing that it is entirely appropriate for President Obama to exercise direct control over the so-called ‘kill list’ of suspected terrorists targeted by drone attacks.  Kaplan points out that for such an extraordinary occasion, ripe with moral issues and potential diplomatic consequences, it is properly the President’s call, not the CIA director’s or the nearest four-star general’s.  The disclosure of Obama’s ‘kill list,’ Kaplan says, should be reassuring. Not only are people – trained, authorized personnel – very much in control of what the drones do; but in the most sensitive cases, the ultimate decision is made, in a very deliberate fashion, by the President of the United States.