Georgetown Security Law Brief

Commentary: Gitmo’s prying eyes

02/01/12: The American Conservative features an opinion piece by Kelley Beaucar Vlahos alleging that Department of Defense actions have deprived Guantanamo detainees of the attorney client privilege.  Vlahos notes that the Office of Chief Defense Counsel for Military Commissions, whose clients are incarcerated at Guantanamo Bay, is engaged in a standoff. They’ve refused to sign the user agreement required by the Department of Defense that consents to “the routine monitoring, interception and search” of “all communications using or data stored on” the Pentagon’s global computer network, which all DoD personnel—including the attorneys—use every day. HT to Neal R. Sonnett.

Opinion: Drones for human rights?

01/31/12: The New York Times features an opinion piece by Andrew Stobo Sniderman and Mark Hanis, in which the authors contend drones are not just for firing missiles in Pakistan. In Iraq, the State Department is using them to watch for threats to Americans. Snider and Hanis believe it’s time we used the revolution in military affairs to serve human rights advocacy.  With drones, they say, we could take clear pictures and videos of human rights abuses, and we could start with Syria.

Commentary: Questions for the intelligence community

01/31/12: The Washington Post suggests that there are some questions that members of the Senate Select Committee on Intelligence should ask the heads of the intelligence community when the panel meets Tuesday morning for Congress’ first public assessment in 2012 of worldwide threats. Afghanistan is the only country where substantial numbers of US forces are fighting. President Obama and the NATO coalition have set 2014 as the date for all foreign combat forces to withdraw and the Afghan army and police to take over security responsibilities.

Scholarship: Special issue of the Journal of National Security Law & Policy released

01/30/12: The Journal of National Security Law & Policy (JNSLP) is pleased to announce the publication of its special issue, Vol. 5:2, examining “Shadow Wars.” Articles examine the law and policy regarding US  paramilitary operations, including use of drones, payment of contractors to spy, and training of local operatives to chase terrorists in what The New York Times has described as a “shadow war against Al Qaeda and its allies.”

Opinion: With its deadly drones, the US is fighting a coward's war

01/30/12: The Guardian features an opinion piece by George Monboit. He argues that if, as the US air force says, a drone’s missiles are less likely to kill civilians than those launched from a piloted plane, it must also be true that such easier and less risky deployments are more frequent.  Monboit notes that this danger is acknowledged in a remarkably candid assessment published by the UK's Ministry of Defence, which maintains that the undeclared air war in Pakistan and Yemen "is totally a function of the existence of an unmanned capability – it is unlikely a similar scale of force would be used if this capability were not available."

Opinion: Privacy, technology and law

01/29/12: The New York Times features an opinion piece by Barry Friedman. Everyday, Friedman contends, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information? Friedman argues that the Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes.

Commentary: North Korea succession offers US opportunity

01/28/12: The San Francisco Chronicle features an opinion piece by Joel Brinkley concerning the succession of Kim Jong Un. Brinkley contends that North Korea’s elite has its own goals in mind when it presents him as a militant god-like leader. Brinkley argues that even in his first few days in office, Kim has offered indications that he may not preside over business as usual. North Korea did not go through with a predicted unprovoked attack on South Korea, and announced it would release prisoners, the first general amnesty in seven years. And then, for the first time, it agreed to allow a Western news agency, the Associated Press, to open an office in Pyongyang.

Scholarship: Proportionality in modern asymmetrical armed conflicts

01/24/12: Amichai Cohen of the Ono Academic College of Law has posted Proportionality in Modern Asymmetrical Armed Conflicts. The paper attempts to show that a proper interpretation of the existing principles of IHL might sometimes provide satisfactory answers to the problems posed by non-state actors. Its main argument involves the principle of proportionality, contending that commander’s determinations in this regard should be reviewed both in advance and after the fact.

Opinion: Do drones undermine democracy?

01/22/12: The New York Times features an opinion piece by Peter W. Singer concerning the impact of the use of drones. In democracies like ours, he contends, citizens have historically participated in decisions to take military action, through their elected representatives, helping to ensure broad support for wars and a willingness to share the costs, both human and economic, of enduring them. In America, our Constitution explicitly divided the president’s role as commander in chief in war from Congress’s role in declaring war. Yet Singer argues these links and this division of labor are now under siege as a result of a technology that our founding fathers never could have imagined.

Commentary: Are new technologies to blame for combat zone misconduct?

01/21/12: Stars and Stripes features an article by Chris Carrol questioning whether, at a time when the US military is moving toward equipping individual soldiers with government-issued smartphones and similar devices, these increasingly powerful technologies could themselves be helping to create behavior problems, not to mention public-relations nightmares for the Pentagon.

Opinion: Guantánamo 10 years on and the future of indefinite detention

01/11/12: IntLawGrrls features an opinion piece by Kristine A Huskey, Director of the Anti-Torture Program at Physicians for Human Rights and one of the first attorneys to represent Guantánamo detainees in the seminal case, Rasul v. Bush. On the tenth anniversary of the detention camp, Huskey discusses how President Obama, the Congress, and the American people have accepted the establishment of indefinite detention of citizens and non-citizens alike, as well as the militarization of civilian processes in our democratic society in belief that the trade off will make us more secure. She concludes that Guantánamo should close "because it is fast becoming a symbol for the destruction of a free and just society – the kind of society we all yearn for."

Opinion: Notes from a Guantánamo survivor

01/09/12: The New York Times features an opinion piece by Murat Kurnaz, the author of “Five Years of My Life: An Innocent Man in Guantánamo,” and Guantánamo detainee from 2001 to 2006. As the tenth anniversary of Guantanamo approaches, Kurnaz describes his experience there and how he was eventually released, further describing that his American lawyer recently made public a number of American and German intelligence documents from 2002 to 2004 that showed both countries suspected he was innocent. Kurnaz concludes by stating how he continues to "wonder how it is possible that a democratic government can detain people in intolerable conditions and without a fair trial."

Opinion: My Guantanamo nightmare

01/08/12: The New York Times features an opinion piece by Lakhdar Boumediene, Guantanamo detainee from 2002 to 2009 and the lead plaintiff in Boumediene v. Bush.  Boumediene discusses how this Wednesday marks the ten year anniversary of Guantanamo, and how for seven of them, he was held at the military prison without explanation or charge.  He describes how some American politicians say that people at Guantánamo are terrorists, but argues that he has never been a terrorist. "Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty," he says.  

Opinion: Terror on trial

01/08/12: The Wall Street Journal features an essay by William Shawcross, author of Justice and the Enemy: Nuremberg, 9/11 and the Trial of Khalid Sheikh Mohammed, to be released next week. Shawcross discusses the upcoming trial of Khalid Sheikh Mohammed, the accused mastermind of 9/11, and his associates, and its parallels to Nuremberg.  He concludes: "Since the beginning of the 20th century, America's commitment and sacrifices have been essential to the world's ability to resist the forces of nihilistic aggression. That was certainly true in the war against fascism, and it is still true today." HT to Neal R. Sonnett.

Commentary: British Court of Appeal decision implicitly repudiates Goldsmith memo

12/20/11: Opinio Juris features commentary by Kevin Jon Heller concerning the Court of Appeal judgment ordering the UK government to seek the release of Yunus Rahmatullah, an alleged member of Lashkar-e-Taiba who has been detained at Bagram since 2004, from US custody.  What is particularly interesting about the decision is that it directly — though implicitly — rejects a little-known memo written by Jack Goldsmith while he was at the Office of Legal Counsel, in which he argued that “operatives of international terrorist organizations” were not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention, which provides that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive.”

Opinion: War really is going out of style

12/19/11: The New York Times features an editorial by Joshua S. Goldstein and Steve Pinker arguing that the Iraq war could be the last all-out war between two nations.  They argue interstate wars have become increasingly rare, and the world hasn’t seen one since the three-week invasion of Iraq in 2003. They further contend that other kinds of armed conflict, like civil wars and conflicts that result in fewer than 1,000 deaths have likewise been in decline. Civil wars are fewer, smaller and more localized. Terrible flare-ups occur, and for those caught in the middle the results are devastating — but far fewer people are caught in the middle.

Commentary: What will history say about Iraq?

12/12/11: The Christian Science Monitor features commentary by John Yemma. Words like Da Nang, Hue, and Hanoi Hilton still stir painful memories for many Americans and Vietnamese, especially those who were directly involved in the Vietnam War. But as time passes, perspectives shift. Surprising changes occur. Time does that – softens old animosities, consigns desperate conflicts to the pages of history. New generations arise with only a faint notion of the pain that ripped through their parents’ lives. The battlefields of Manassas, Virginia, and Waterloo, Belgium, are now beautiful lawns. For Americans and Iraqis, the departure of the last US military units from Iraq starts the slow fade from present tense to past.

Opinion: China’s spies are catching up

12/11/11: The New York Times features an opinion piece by David Wise, concerning China’s development of a world-class espionage service, one he claims rivals that CIA. During the cold war, only a handful of FBI agents specialized in Chinese spy cases, and their work was not regarded as career-enhancing. Wise argues that Washington’s ongoing failure to make Chinese espionage a priority has allowed China to score a number of successes in its espionage efforts against the United States. China’s foreign intelligence service and its military intelligence agency actively spy on the American defense industry, our nuclear weapons labs, Silicon Valley, our intelligence agencies and other sensitive targets.

Commentary: DoD’s combat exclusion policies limit commanders and strain our current forces

11/20/11: The Small Wars Journal features an article on the DOD’s female Combat Exclusion Policy, based on a 1988 DoD restriction on women’s service that created the “Risk Rule” for assignment of women in the military.  The rule excluded women from non-combat units or missions if the risks of exposure to direct combat, hostile fire, or capture were equal to or greater than the risk in the combat units they supported. Of course, the logic of combat exclusion policies, as currently written, turns on the conceptualization of the battlefield as a linear environment.

Saudi Arabia expands its power as US influence diminishes

11/19/11: The Washington Post features an opinion piece by David Ignatius concerning the balance of power in the Middle East.  According to Ignatius, over this year of Arab Spring revolt, Saudi Arabia has increasingly replaced the United States as the key status-quo power in the Middle East — a role that seems likely to expand even more in coming years as the Saudis boost their military and economic spending. Saudis describe the kingdom’s growing role as a reaction, in part, to the diminished clout of the United States.

Opinion: America’s unnecessary secrets

11/08/11: The New York Times features an opinion piece by Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, and J. William Leonard, director of the Information Security Oversight Office from 2002 to 2007. Goitein and Leonard discuss how the danger of excessive government secrecy is a lesson we should have learned over the last decade. They assert that proper classification of information is vital to keeping the nation safe, but that “overclassification,” as the 9/11 Commission found, jeopardizes national security by inhibiting information sharing.

Opinion: Tortured by solitude

11/07/11: The New York Times features an opinion piece by Sarah Shourd, a writer who was imprisoned in Iran from July 2009 to September 2010.  Shourd discusses how during the 9,840 hours that she was held as a political hostage in Tehran, she spent 9,495 of them in solitary confinement. Shourd describes how she was shocked to find out that the Convention Against Torture does not mention solitary confinement. Shourd argues excessive use of solitary confinement constitutes cruel and unusual punishment -- that it is torture -- and proposes that the UN should proscribe this inhumane practice, and that the US should take the lead role in its eradication. 

Opinion: Why a cybersecurity treaty is a pipe dream

10/28/11: Council on Foreign Relations features an opinion piece by Adam Segal, Ira A. Lipman Senior Fellow for Counterterrorism and National Security Studies at the Council on Foreign Relations, and Matthew C. Waxman, fellow at the Council on Foreign Relations, Associate Professor at Columbia Law School and member of the Hoover Institution Task Force on National Security and Law.  Segal and Waxman discuss how there is almost universal belief that any durable cybersecurity solution must be transnational. They propose that the solution can only be achieved through multiple arrangements hammered out between state and private actors rather than through a global accord. 

Opinion: Reform the un-American Patriot Act

10/27/11: CNN features an opinion piece by Farhana Khera, the president and executive director of Muslim Advocates, a national legal advocacy and educational organization.  Khera discusses how ten years after the passage of the USA Patriot Act, the law has eroded America's freedoms and wasted precious resources. Khera proposes that the law should be amended to require law enforcement to focus on actual threats, and further seeks Congress to perform a full public accounting of the use of the Patriot Act and all federal surveillance powers. 

Scholarship: Military-Intelligence convergence and the law of the Title 10/Title 50 debate

10/18/11: Robert Chesney’s latest paper, "Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate," will be published in the forthcoming 2011 edition of the Journal of National Security Law and Policy. A draft of the paper, exploring the legal issues generated by the convergence of military and intelligence activities and institutions, has been posted on SSRN. Chesney discusses the domestic legal architecture for military and intelligence operations, maps the convergence of these two regimes, and suggests a set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

Opinion: No need to override system of justice for terror suspects

10/03/11: The Detroit Free Press features an opinion piece by Col. Lawrence Wilkerson (US Army Ret.), a member of the Constitution Project's Liberty and Security Committee and former Chief of Staff to Secretary of State Colin Powell.  Wilkerson discusses two provisions in a major defense authorization measure, which would require military custody of certain terrorism suspects, regardless of their place of capture, and formalize a system of indefinite detention for terrorism suspects, including suspected US citizens.   

Opinion: Trapped in Guantanamo

09/29/11: The Los Angeles Times features an opinion piece by Joseph Margulies, a lawyer with the MacArthur Justice Center and a law professor at Northwestern University.  Margulies discusses how the prison at Guantanamo Bay, Cuba, is again in the news after two Americans released this month by Iran reported that when they complained about conditions in their Tehran prison, the jailers would "immediately remind us of comparable conditions at Guantanamo Bay."

Opinion: The danger of space debris

09/26/11: The Council on Foreign Relations website features an opinion piece by Micah Zenko, a Fellow for Conflict Prevention. Zenko discusses the growing threat space debris pose to civil, military and commercial satellites. Zenko characterizes the space debris problem as a classic global governance dilemma: though eleven states can launch satellites, and over sixty countries or government consortia own or operate the approximately 1,100 active satellites, no one country or group of countries has the sovereign authority or responsibility for regulating space.

Opinion: Justice denied at Guantánamo

09/20/11: The National Law Journal features an opinion piece by Allison M. Lefrak, defense counsel for a Guantanamo detainee. Lefrak argues that the longer the Guantanamo cases are delayed, the more credibility the US judicial system loses.  Lefrak quotes Chief Justice Warren Burger for the proposition that "a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.…Delay will drain even a just judgment of its value." HT to Neal R. Sonnett.

Opinion: How not to catch a terrorist

09/18/11: The Los Angeles Times features an editorial by Petra Bartosiewicz concerning counter-terrorism FBI sting operations. Bartosiewicz discusses how, under the FBI’s new preemptive law enforcement model, catching an actual terrorist would constitute a failure because the perpetrators would have committed the act. Instead, we are in effect seeking "pre-terrorists" — individuals whose intentions, more than their actions, constitute the primary threat. After taking stock of the major "terrorist" prosecutions that this approach has yielded, Bartoseiwicz concludes that it's not at all clear we're safer from another attack.

Commentary: What we still don’t know after September 11

09/18/11: The New York Review of Books features a new article by David Cole, addressing what, precisely, did and did not change after September 11, particularly with respect to law, liberty, and security. Cole discusses the response of the Bush and Obama administrations to terrorism, concluding that one of the most important lessons of the past decade may be that the rule of law has proved far more resilient than many would have predicted.

Commentary: False claims about FOIA

06/13/11: The New York Times has posted an editorial opinion on the recent holding in Schindler Elevator Corp. v. United States ex rel. Kirk. It concludes that the result will curtail lawsuits by whistle-blowers who suspect that a contractor may be defrauding the government but need information obtained from FOIA requests to help confirm their allegations.

Katyal speaks of Solicitor General 'mistakes' in Japanese internment cases

05/23/11: The Blog of the Legal Times reports that Acting Solicitor General Neal Katyal on Friday spoke of the "mistakes" made by a long-ago predecessor in defending the US government's World War II Japanese-American internment program before the Supreme Court. In a post on the Justice Department's blog, Katyal reviewed evidence unearthed in the 1980s that in 1943 and 1944, then-Solicitor General Charles Fahy failed to tell the Court of relevant reports minimizing the danger posed by Japanese-Americans living on the west coast.

Commentary: The lawfulness of the US operation against Osama bin Laden

05/19/11: Opinio Juris has published a commentary by Harold Hongju Koh outlining the legality of the US mission against Osama bin Laden.

Commentary: Guantanamo Bay - Why Obama hasn’t fulfilled his promise to close the facility

04/25/11: The Washington Post has posted a commentary, based on interviews with more than 30 current and former administration officials and members of congress, exploring why the Obama Administration has not followed through on its pledge to close Guantanamo Bay.

Commentary: When secrecy is a weapon

04/06/11: The Los Angeles Times has published an op-ed by Jameel Jaffer of the ACLU arguing that secrecy in the national security realm harms US democracy. He argues that the public knows too little about the government's national security and counterterrosim policies, and without leaks it would be even more ill-informed. But recent leaks show that government officials feel that certain information must be made public - if through informal channels - even as the organizations that employ them work to quash FOIA lawsuits and other formal mechanisms to achieve disclosure.

The Pentagon’s biggest boondoggles

03/13/11: The New York Times has published commentary by John Arquilla describing a sampling of defense systems that in his opinion represents tens of billions of dollars of unnecessary costs to the Defense Department. Arquilla believes that these projects could be abandoned without endangering US security, and would represent significant savings during a time when Congress and the President are haggling over spending cuts across the government. 

Cairo needs help to avoid al-Qaeda’s grip

02/16/11: The Financial Times has published commentary warning that current instability in Egypt may give al-Qaeda and other extremist Islamic groups the chance to expand their influence in the country. Egypt needs international help quickly to ensure the reform agenda is speeded up, and that extremists cannot lay down roots.

Scholarship: Indefinite Detention Under the Laws of War

01/09/11:  The International Law Reporter has posted scholarship by Chris Jenks (Judge Advocate General's Corps, US Army) & Eric Talbot Jensen  (Fordham University - Law): Indefinite Detention Under the Laws of War (Stanford Law & Policy Review, forthcoming). Here's the abstract:

The recent acquittal of the first Guantanamo Bay detainee to stand trial in U.S. federal court on all but one of the 286 charges he faced stemming from the 1998 bombings of two U.S. embassies in Africa has reinvigorated the discussion on indefinite detention under the laws of war. While the issue has been raised in the past, the discussion hasn’t extended beyond stating that the law of war, or law of armed conflict (LOAC) as it is often called, provides a legal basis for detention, including detention for the duration of hostilities. In fact, the Obama Administration has made it clear that some detainees will be held indefinitely “under the laws of war” but has provided no clear guidance as to what that detention would look like.

This article seeks to extend the dialogue to substantive consideration of whether the LOAC rules on detention are sufficiently flexible and comprehensive to provide worthwhile and meaningful individual protections the United States could apply to those who are detained indefinitely.

Historical practice has generally involved detention for much shorter periods of time than many at Guantanamo have already been detained. There are some notable exceptions, however, where fighters were detained for extended periods of time, including more than twenty years in the case of Morocco. Surprisingly, considering the number of armed conflicts that have involved detention, there is no common international practice concerning long-term or indefinite detention upon which states may rely.

The question then becomes, assuming that long-term and potentially indefinite detention of unlawful enemy combatants (or unprivileged enemy belligerents) will occur as justified by the law of war, what should that detention look like? This article argues that the basic provisions and safeguards currently extant in the law of armed conflict are sufficient to satisfy an indefinite detention paradigm. Though many of these provisions are under-utilized or ineffective in the current detention framework, the current structure could be adapted to provide a LOAC detention model that accounts for a contemporary view of individual rights, protections, and privileges. Such an adapted paradigm would be completely appropriate for the indefinite detention of the 48 detainees designated by the U.S. Government to be held at Guantanamo Bay, and would provide all the safeguards and ensure the overall security necessary for that detention until the conflict is over or until the detainees no longer pose a risk.

Commentary: The year in counter-terrorism

01/04/11: Counterpunch has posted a summary of the seminal court cases, books, and events that marked counter-terrorism in 2010. HT to Neal R. Sonnett.

A counterterrorism law in need of updating

11/29/10:  The Washington Post published an opinion piece by John Bellinger III, former legal adviser at the State Department, on the need to update and clarify the legal authority for US military and intelligence agencies to kill and detain terrorists who threaten the United States.

HT to CFR.

Commentary: Why hasn't the war against terrorism produced any great First Amendment cases?

11/27/10: Slate has posted an article that explores various reasons why, after nearly 10 years of the "war on terror" there has not been a single consequential free speech case before the Supreme Court.

Commentary: Extreme divide on terror issues

11/10/10: Politico contributor Josh Gerstein has an article that discusses how the intense focus on the differences between President Barack Obama and House Republicans on government spending and tax cuts has eclipsed the yawning gulf that separates Obama and the incoming House leadership on counterterrorism policy, Guantanamo and the use of civilian courts to try accused September 11 plotter Khalid Sheik Mohammed and other terrorism suspects. HT to How Appealing.

Editorial: Warped justice

11/09/10: The New York Times has posted an editorial about the case of Omar Khadr, the 24-year-old Canadian that was captured in Afghanistan at the age of 15 and detained at Guantánamo. It argues that in reaching a plea deal to end the prosecution of Khadr, the Obama administration achieved its political goal of avoiding having this disturbing case be the first to go to trial under its revamped military commissions. But this is not a legal victory anyone can feel proud about.

Commentary: Manufacturing insecurity

10/27/10: Foreign Affairs has published an article that questions whether the United States has achieved its goal of enhancing US national security by building a worldwide system of more than 1,000 military bases, stations, and outposts. The article argues that it has actually done the opposite, provoking conflict and creating insecurity. HT to Council on Foreign Affairs.

Editorial: An indefensible defense

10/25/10: The New York Times has published an editorial criticizing both the Bush and Obama administrations in their handling of detainee policy. The article discusses the Ashcroft v. al-Kidd case, to which the Supreme Court granted certiorari last week, and the government's use of the material witness law, which allows the government to keep a witness from fleeing prior to testifying about alleged crime committed by someone else. HT to How Appealing.

Opinion: Generals gung-ho for New START

10/23/10: The Washington Times has an opinion piece by retired Lieutenant Generals John Castellaw, Arlen Jameson, Donald Kerrick and Retired Brigadier General John Adamsver, urging the US Senate to ratify the New START treaty and pointing out that the treaty has been endorsed by leaders from across the political spectrum.

Commentary: Two pieces on negotiations with Taliban in Afghanistan

10/18/10: Two opinion pieces discuss NATO's decision to allow safe passage to certain members of the Taliban to participate in negotiations with the Afghan government:

The Council on Foreign Relations defense expert Max Boot argues that increased military pressure and reassurances by the United States that it will not pull out of Afghanistan in July 2011 are keys to successful negotiations with the Taliban.

The Small Wars Journal has posted a paper by retired Marine Corps Colonel Gary Anderson, "Afghanistan: It Never Hurts to Talk," in which he presents three reasons in support of General Petraeus’ decision that allows certain Taliban leaders safe passage to conduct preliminary peace negations with the Afghan government.

Opinion: Terror detentions deserve time limits

10/10/10: The Washington Post has an opinion piece by Richard Pildes of NYU Law arguing against indefinite military detentions for Taliban and al-Qaeda members.

Bodies, borders, and the national security sovereign

10/03/10: At Balkinization, guest blogger John T. Parry of Lewis & Clark Law School contests the claim that the "national security sovereign" idea did not exist prior to 9/11, arguing that the law of international extradition and the practice of irregular rendition demonstrate the existence of expansive executive authority over national security issues before the “war on terror.”