05/01/13: Politico reports the FBI says its agents are on solid legal ground if they continue to question a terrorism suspect who has asked for an attorney, as they reportedly did with Boston Bombing suspect Dzhokhar Tsarnaev. The February 2011 article by Carl Benoit, a lawyer and FBI Academy instructor, points to two federal appeals court rulings that concluded such questioning was constitutional and that evidence obtained as a result could be used in court. The article appeared in the Law Enforcement Bulletin, an FBI publication aimed at “the larger policing community.” The Los Angeles Times reported last week that Tsarnaev “asked several times for a lawyer, but that request was ignored.” DOJ’s current policy on questioning terror suspects without Miranda warnings does not give explicit guidance, at least publicly, about how to proceed if a suspect invokes his right to counsel.
05/01/13: CNN reports Director of National Intelligence James Clapper believes an independent review of how the government handled its investigation of Boston Marathon bombing suspect Tamerlan Tsarnaev prior to the attack is a prudent step “to ensure that nothing was missed.” Clapper spokeswoman Shawn Turner said the DNI believes all of the agencies involved in collecting and sharing information “took all the appropriate steps,” but that the Intelligence Community inspector general, a watchdog that investigates risks, vulnerabilities, and deficiencies within sixteen intelligence-related agencies and departments across the government will lead a review. Tamerlan Tsarnaev was killed in a shootout with Boston police days after the April 15 bombings. His brother Dzhokhar, also a suspect, remains in custody and has been charged with using a weapon of mass destruction.
05/01/13: The Washington Times reports President Obama Tuesday vowed to redouble his efforts to close the US detention facility in Guantánamo Bay, Cuba. “I don’t want these individuals to die,” the President said of detainees currently on a hunger strike. “Obviously, the Pentagon is trying to manage the situation as best as they can. All of us should reflect on why exactly are we doing this. Why are we doing this?” He decried the US policy of holding the suspects without trial “in a no-man’s land” in perpetuity. “That is contrary to who we are, it is contrary to our interests, and it needs to stop.” Congress has blocked efforts to move detainees to the United States, even though the Government has tried and convicted other terrorism suspects on US soil without incident.
05/01/13: The Blog of Legal Times reports the Justice Department has renewed its effort to shut down a lawsuit in Washington over the scope of information a former US defense intelligence officer can publish in a memoir about service in the war in Afghanistan. DOJ lawyers said in court papers filed April 26 that the government has determined that some of the details in the book, Operation Dark Heart, written by Anthony Shaffer, are classified and cannot be publicly disclosed. “[T]here is no First Amendment right to publish classified information,” DOJ lawyer Scott Risner wrote. Shaffer’s book, DOJ said, reveals “intelligence activities, sources and methods, as well as information about military plans and the foreign activities of the United States that … could reasonably be expected to cause serious identifiable damage to our national security.”
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.
03/31/13: The Hill reports the White House said Saturday it was taking threats of war from North Korea “seriously,” while acknowledging that Pyongyang has a history of bellicose rhetoric. “We take these threats seriously and remain in close contact with our South Korean Allies,” said Caitlin Hayden, a spokeswoman for the National Security Council. “But, we would also note that North Korea has a long history of bellicose rhetoric and threats and today’s announcement follows that familiar pattern.” North Korea Saturday declared that a “state of war” existed with the South and threatened to “dissolve” the United States in an “all-out war and nuclear war.” Pyongyang has cut the military hotline with Seoul and earlier this week said the armistice ending the Korean War in 1953 was void.
03/28/13: The New York Times reports a CIA officer directly involved in the 2005 decision to destroy interrogation videotapes and who once ran one of the agency’s secret prisons has ascended to the top position within the CIA’s clandestine service, according to current and former intelligence officials. The officer, who has been serving in the position in an acting role for several weeks since the retirement of her direct boss, is one of a small group of candidates being considered to take over the job permanently. The decision about whether to keep the officer in the job presents a dilemma for the new CIA director, who said that he was opposed to the brutal interrogation methods used by the spy agency in the years after the Sept. 11 attacks. The promotion of the officer, who spent years working inside the agency’s Counterterrorist Center and once was in charge of a so-called black site, played a role in developing the CIA’s detention and interrogation program, was first reported by The Washington Post. Because the officer remains undercover, The New York Times is not disclosing her identity. The officer served as the CIA station chief in London and New York, and the branch of the agency she now leads, the National Clandestine Service, is responsible for all CIA espionage operations and covert action programs. The head of the clandestine service is one of the most coveted jobs in the CIA, and has never before been run by a woman. The destruction of dozens of CIA interrogation tapes, documenting the interrogations of Qaeda operatives Abu Zubaydah and Abd al-Rahim al-Nashiri in a secret CIA detention facility in Thailand, was one of the most controversial episodes of the past decade. The Justice Department undertook an investigation into the matter after the destruction of the tapes was disclosed in late 2007, but no CIA officers were criminally charged.
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.
03/22/13: The New York Times reports more than two years after Homeland Security officials told Congress that they would produce new, more accurate standards to assess security at the nation’s borders, senior officials from the department acknowledged this week that they had not completed the new measurements and were not likely to in coming months, as the debate proceeds about overhauling the immigration system. Both Democratic and Republican lawmakers were taken aback at a hearing on Wednesday in the House of Representatives when Mark Borkowski, a senior Homeland Security official, said he had no progress to report on a broad measure of border conditions the department had been working on since 2010. The lawmakers warned that failure by the Obama administration to devise a reliable method of border evaluation could imperil passage of immigration legislation. Amid contentious discussions in Congress over immigration, one point of wide agreement is that an evaluation of border security will be a central piece of any comprehensive bill. A bipartisan group in the Senate is working to write legislation that includes a “trigger,” which would make the path to citizenship for more than 11 million illegal immigrants in the country contingent on measurable advances in security at the borders. Lawmakers have been pressing Homeland Security Secretary Janet Napolitano to devise a measure they can use to judge if the Obama administration’s claims of significant progress in border enforcement are justified. Republican senators in the bipartisan group have said a border standard is pivotal to their efforts.
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.
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.
03/10/13: The Hill reports House Foreign Affairs Committee Chairman Ed Royce (R-Cal.) said Saturday that Secretary of State John Kerry had hoped to offer considerably more aid to Egypt than the $250 million he announced during his trip to Cairo but was blocked by Congress. “This is not the aid package that the administration wanted to announce,” Royce said. The Administration wanted to release a “larger sum,” but bowed to the wishes of Royce’s committee as well as congressional appropriators. Royce wouldn’t say how much Kerry had hoped to announce, but the State Department has been pressing Congress to greenlight $450 million in direct aid since last fall. Kerry announced the new aid package last Sunday during a stop in Cairo as part of his first trip overseas.
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.
03/10/13: The Hill reports the Obama Administration’s decision to try former al-Qaeda spokesman Sulaiman Abu Ghaith, a relative of Osama bin Laden, in the US District Court for the Southern District of New York has sparked criticism from Republicans, who say he should be held at the Guantánamo Bay prison camp and tried by a military tribunal, not an Article III court. “Gitmo, a naval vessel, Guam, anywhere other than New York, and anything other than a civilian trial,” said Congressman Trey Gowdy (R-S.C.). Gowdy said a military tribunal would offer distinct advantages over a civilian jury trial, namely that military courts are made up of military officers and don’t require unanimous jury verdicts for conviction, although trials of terrorists have had much more success in regular federal courts than military ones.
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.
03/04/13: Reuters reports a United Nations investigator called on the United States on Monday to publish its findings on the CIA’s program of rendition and secret detention of terrorism suspects during the Bush Administration. Ben Emmerson voiced concern that while President Obama has rejected practices conducted under his predecessor, there have been no prosecutions. “Despite this clear repudiation of the unlawful actions carried out by the Bush-era CIA, many of the facts remain classified, and no public official has so far been brought to justice in the United States,” Emmerson said in a report to the UN Human Rights Council, which he will address on Tuesday. Emmerson has served since August 2011 in the independent post set up by the Council in 2005 to probe human rights violations committed in counterterrorism operations worldwide.
03/03/13: The blog Space War reports new Pentagon chief Chuck Hagel said Friday that new budget cuts will endanger the US military’s ability to conduct its missions. His comments came hours before President Obama authorized automatic “sequestered” cuts in domestic and defense spending, following the failure of efforts to clinch a deal with Republicans on cutting the deficit. Hagel, whose budget at the Pentagon is set to be slashed by roughly $46 billion, said, “Let me make it clear that this uncertainty puts at risk our ability to effectively fulfill all of our missions.” In contrast with his predecessor Leon Panetta, who branded the cuts a “doomsday mechanism” and “fiscal castration,” Hagel was more measured, but he made his thoughts on the military consequences of the sequestration clear nevertheless.
02/13/13: The Hill reports the Senate Select Intelligence Committee will decide on Thursday whether to approve White House nominee John Brennan to become the nation’s chief intelligence officer. Brennan is expected to clear the Committee and be confirmed by the Senate despite the controversy over the Obama Administration’s drone strikes on American terrorist suspects overseas. Committee Chairwoman Dianne Feinstein (D-Cal.) said moves by the Senate Intelligence and Judiciary Committees to explore new court authorities to oversee the drone program will be on hold until her panel weighs in on Brennan. “We really haven’t put anything together [yet],” Feinstein said Tuesday when asked about the possible creation of a new federal court to oversee armed drone strikes. “We will look into it, [but] we are trying to get the Brennan nomination done first.”
02/13/13: The Miami Herald reports a senior official for the Guantánamo Bay prison admitted Tuesday that the Government had placed a hidden microphone inside a meeting room but that he was assured it was not used to monitor the private conversations that prisoners have with their lawyers. Navy Captain Thomas Welsh, the senior legal adviser to Guantánamo’s commander, conceded the microphone appeared to be intended to resemble a smoke detector in the ceiling of a meeting room for men labeled “high-value"” detainees by the Pentagon and held in a special top security camp. “I agree with your point that it was not recognizable, it was not readily identifiable,” Welsh said on cross-examination by a detainee’s lawyer. The admission came during a pretrial hearing.
02/13/13: The New York Times reports the Senate Armed Services Committee on Tuesday approved the nomination of former Senator Chuck Hagel as Secretary of Defense on a sharply partisan vote after a combative two-hour debate that tested the bounds of Senate collegiality. The 14-11 vote to send the nomination to the Senate floor with a favorable recommendation was the latest step in a process that has deepened festering hostilities between congressional Republicans and the White House and has exposed stark disagreements over wartime foreign policy. At times, the meeting slipped into an unusually accusatory and bitter back-and-forth, with Senator Ted Cruz (R-Tex.) suggesting that Hagel had accepted money from North Korea and Senator Jim Inhofe (R-Okla.) saying he was “cozy” with Iran. These remarks were condemned by Democratic Senators such as Bill Nelson (Fla.) and Claire McCaskill (Mo.), as well as Senator John McCain (R-Ariz.) a Republican Vietnam veteran like Hagel who opposes his nomination. The full Senate is likely to vote on the nomination before the end of the week.
02/11/13: CNN reports former Defense Secretary Robert Gates argued Sunday number of innocent victims of drone strikes remains “extremely small” and doesn’t outweigh the benefits of using drones against al-Qaeda operatives. But Gates said a better system of checks and balances could be constructive when targeting Americans, aligning himself with lawmakers concerned about unfettered power in the hands of the President. Gates served under George W. Bush during the beginnings of the drone program and later under President Barack Obama as the use of drones spiked. Recently lawmakers, both Democrats and Republicans, have forcefully questioned the use and oversight of the lethal devices. “I’m a big advocate of drones,” Gates said, that they can limit collateral damage more effectively than “any other weapons system.”
02/11/13: The Miami Herald reports lawyers for the five Guantánamo Bay prisoners charged in the September 11 attacks want to know if government officials have been eavesdropping on their private conversations with the defendants. The evidence for any such listening, the subject of a hearing scheduled to start Monday, is circumstantial. At a hearing January 28, the sound system in the Guantánamo courtroom was suddenly cut. The judge, Army Colonel James Pohl, later revealed that a government official following the proceedings from outside the courtroom intervened to prevent the potential release of classified information. Pohl later said the information was not classified; he ordered the government to disconnect any equipment that could unilaterally cut the sound and released a transcript of the censored remarks. But the incident has made defense counsel concerned about possible monitoring.
02/11/13: The New York Times reports President Obama will use his State of the Union Address on Tuesday to reinvigorate one of his signature national security objectives, drastically reducing nuclear arsenals around the world, after securing agreement in recent months with the military that the American nuclear force can be cut in size by roughly a third. Obama is unlikely to discuss specific numbers in the address, but White House officials are looking at a cut that would take the arsenal of deployed weapons to just above 1,000. Currently there are about 1,700, and the recently ratified arms reduction treaty with Russia calls for a limit of roughly 1,550 by 2018. The big question is how to accomplish further reductions, given that Republicans oppose even the modest cuts in the treaty.
02/11/13: The Miami Herald reports soldiers, sailors and Homeland Security officials came to Guantánamo Bay this weekend to simulate a humanitarian-relief crisis inspired by the tens of thousands of Haitians and Cubans who overwhelmed the base in the 1990’s. The exact nature of the scenario is classified, and only Pentagon-approved photos of the exercise will be released. That’s because nobody wants news about it to touch off a real, live Caribbean exodus. The intent, say organizers, is not to encourage anyone in the Caribbean to get on rafts to reach this Navy base in southeast Cuba, but to be ready in case it happens. One thing they’ll rehearse is registering 1,000 migrants in a single day, and if history is any guide, the actors should cram inside the processing tent, desperate, undocumented and disorganized.
02/11/13: The Hill reports a cybersecurity bill that received pushback from privacy advocates and the White House last year will be re-introduced on Wednesday, setting up a potential battle between Congress and the Administration over cybersecurity legislation. House Intelligence Committee Chairman Mike Rogers (R-Mich.) and Ranking Member Dutch Ruppersberger (D-Md.) will reintroduce the Cyber Intelligence Sharing and Protection Act (CISPA) and hold a public hearing analyzing the current state of cyber threat information-sharing between the US Government and industry next week. The bill aims to thwart cyberattacks by making it easier for private companies to share information about threats and malicious source code with the intelligence community and the Department of Homeland Security. The privacy and civil liberties groups that fought CISPA last year plan to revive their efforts to oppose the bill.
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.