Today's Headlines and Commentary

Michael T. Flynn resigned as national security adviser last night after it was revealed that he had misled Vice President Mike Pence and other top White House officials about his conversations with the Russian ambassador to the United States, Sergey Kislyak. The New York Times reports that Flynn had previously denied that he’d had any substantive conversations with Kislyak, and Pence had repeated the claim on national television. Flynn later walked back his denial, telling the Washington Post through a spokesman that he “couldn’t be certain that the topic never came up.”

The Post informs us that former acting Attorney General Sally Yates informed White House counsel Donald McGahn last month that Flynn had not been entirely forthcoming about content of his conversations and was a security risk because he was potentially vulnerable to Russian blackmail. Then-Director of National Intelligence James R. Clapper, Jr. and then-CIA Director John Brennan agreed with Yates’s assessment and concurred with her recommendation to inform the White House. It is unclear what McGahn did with the information.

The AP tells us that while the Kremlin has downplayed Flynn’s resignation, Russian lawmakers have expressed their disappointment over Flynn’s exit. Konstantin Kosachev, chairman of the foreign relations committee of the Federation Council, said that firing a national security advisor for his contacts with Russia is “not just paranoia but something even worse.” And Alexei Pushkov, chairman of the information committee at the Federation Council, said that “it was not Flynn who was targeted but relations with Russia.” It is not clear whether Flynn’s resignation will influence bilateral ties.

CNN reports that a number of GOP senators are calling for an investigation into connections between President Donald Trump and Russia, and want former National Security Adviser Michael Flynn to testify. Senate Majority Whip John Cornyn (R-TX) told reporters that the Senate Select Committee on Intelligence should look into this carefully, and Senator Roy Blunt, who is a member of the SSCI said that wants to speak to Flynn, and that “we should look into it exhaustively so that at the end of this process, nobody wonder whether there was a stone left unturned.” Senator Lindsey Graham (R-SC) also joined the calls. Senator Richard Burr (R-NC), chairman of the SSCI, told reporters he hasn’t made a decision about whether Flynn should testify, while Senator Mark Warner (D-VA), the ranking Democrat on the committee, has said that he should.

The Guardian writes that retired Army Lieutenant General Keith Kellogg, who until yesterday was the Executive Secretary of the National Security Council, has now been appointed acting national security adviser by the Trump administration. Kellogg has been promoted over Deputy National Security Advisor K.T. McFarland, who is likely to resign her position as well, according to the Times. The Los Angeles Times examines Kellogg’s time in Iraq in 2003 under L. Paul Bremer, where he was “the guy who’s supposed to make the trains run on time.”

The Post notes that the front-runner to replace Flynn as national security advisor is Vice Admiral Robert Harward, a former deputy commander of U.S. Central Command. Vice President Mike Pence is reportedly leading the discussions and working closely with Defense Secretary James Mattis, Homeland Security Secretary John Kelly, CIA Director Mike Pompeo, White House senior advisor Jared Kushner, chief strategist Steve Bannon, and White House Chief of Staff Reince Priebus. Buzzfeed adds that former CIA Director David Petraeus is also in the running, as is Kellogg.

The New York Times informs us that Russia has secretly deployed a new cruise missile despite complaints from American officials that this violates a 1987 treaty that bans American and Russian intermediate-range missiles based on land. The missile has been an issue since 2014, when the Obama administration attempted to persuade the Russians to correct the violation of the treaty while the missile was still in its test phase. But the Russians have moved ahead with the system, deploying a fully operational unit of two battalions. The move presents a crucial test of Trump’s vow to improve relations with Russia, at a time when key policy positions in the State Department and Defense Department have yet to be filled, and the National Security Council is in disarray.

Politico informs us that the White House has been under fire in a string of high-profile controversies over its handling of sensitive information, most recently regarding President Trump’s taking a phone call about the North Korean missile test and poring over government documents using flashlights from cell phones vulnerable to hacking, all while sitting in full view of guests at his private Mar-a-Lago club in Florida. On that note, Senators Claire McCaskill (Mo.) and Tom Carper (Del.) released a letter on Monday to Defense Secretary James Mattis asking for details on the phone and raising the issue of the proper archiving of Trump’s tweets. The two senators are specifically asking the Defense Information Security Agency (DISA) to give a written response as to whether Trump has received and is using a secured smartphone.

The Times reports that North Korean leader Kim Jong Un’s half-brother, Kim Jong Nam, was assassinated in a Kuala Lumpur airport yesterday. A South Korean government official reportedly believes the two spies who carried out the assassination were dispatched by North Korea. Nam, who was once considered to be the heir apparent to Kim Jong Il, Nam had been openly critical of his half-brother’s rule. Reuters reports that the United States strongly believes that the killing was ordered by Kim Jong Un. Nam’s death comes just one day after a ballistic missile test by North Korea led to condemnation by the United States and Japan.

CNN notes that Secret Service Director Joseph Clancy has announced his retirement, effective in early March. In recent weeks, Clancy denied reports of tension between the Secret Service and President Trump’s private security contractors.

BBC reports that Queen Elizabeth II opened the U.K. National Cyber Security Centre as part of the GCHQ, Britain’s communications intelligence agency, this morning. The Centre, part of a £1.9bn five-strategy, is designed to better protect Britain from cyberattacks, particularly in light of recent efforts by Russia.

Reuters notes that Germany is moving forward with plans to strengthen military ties with other European nations in the face of increasing pressure from the United States to raise military spending, setting up a joint fleet of Lockheed Martin Corp C-130J transport planes with France and joining a Netherlands-led fleet of Airbus A330 tanker planes. The agreements are part of a broader effort to expand European defense cooperation, which will be announced at a meeting of NATO defense ministers in Brussels. German Defense Minister Ursula von der Leyen, who has called the U.S. demands for greater burden-sharing “fair,” will sign the expanded declaration of intent for the joint fleet with France.

The Times writes that Canadian Prime Minister Justin Trudeau struck a cordial tone yesterday during his meeting with Trump, alternating between trying to bridge gaps on issues such as immigration, refugees, trade, and climate change, and avoiding them altogether. Trump skirted a question about whether he sees the northern border with Canada as secure, and Trudeau avoided answering questions about Trump’s refugee executive order, saying “the last thing Canadians expect is for me to come down and lecture another country on how they choose to govern themselves.” Maintaining Canada’s close political and economic ties with the United States were at the top of Trudeau’s agenda, especially given Trump’s recent calls to renegotiate NAFTA.

The AP informs us that Israeli Prime Minister Benjamin Netanyahu’s visit tomorrow with Trump that is clouded in uncertainty, given that Trump appears to have softened his tone on some of the key issues in the U.S.-Israel relationship, most notably including settlement construction, since taking office. Netanyahu faces pitfalls from many American Jews who oppose Trump’s policies and pressure from back home to push for policies Trump may not accept.

The Wall Street Journal tells us that Judge Leonie Brinkema of the U.S. District Court for the Eastern District of Virginia granted a statewide preliminary injunction blocking a key section of the executive order restricting entry into the United States from seven majority-Muslim countries. Brinkema cited the president’s campaign-trail comments endorsing a “Muslim ban” to argue that the order was likely unconstitutional under the Establishment Clause.

Human Rights Watch has released a study saying that chlorine gas attacks paved the way for Syrian forces as they advanced into rebel-held portions of eastern Aleppo during the final battle for the city according to the Post. “The pattern of the chlorine attacks shows that they were coordinated with the overall military strategy for retaking Aleppo, not the work of a few rogue elements,” according to Ole Solvang of Human Rights Watch. Eight separate attacks resulted in the death of nine civilians, including four children, and wounded roughly 200 people.

The Times writes that the Trump administration is considering whether it should transfer an al Qaeda operative being held in Yemen who is wanted on terrorism charges in New York to Guantanamo Bay prison. Abu Khaybar, who was captured in Yemen last fall, presents an important legal and policy test for Trump, who promised to fill the prison with “bad dudes.” The decision to transfer Khaybar to Guantanamo would put the administration at odds with career Justice Department prosecutors and FBI agents who say criminal courts at handling terrorism cases than military tribunals, which have been troubled by setbacks and delays.

NPR informs us that Army Sergeant Bowe Bergdahl appeared at a hearing before a military judge yesterday, during which his lawyers argued that President Trump’s comments on the case will prevent their client from receiving a fair trial. Trump personally commented on Bergdahl at length during the campaign, repeatedly referring to Bergdahl as a traitor. Bergdahl’s lawyers submitted a motion to dismiss the charges of desertion and misbehavior he faces. Army prosecutors have alleged that Bergdahl put the lives of other soldiers at risk by disappearing and then having to be exchanged after more than five years in captivity for five Taliban detainees who were held at Guantanamo.

ICYMI: Yesterday, on Lawfare

Paul Gewirtz explained how the lack of impulsiveness by the courts in dealing with President Trump’s refugee executive order should guide the Supreme Court going forward.

Josh Blackman studied the reasoning of the Ninth Circuit’s panel opinion in Washington v. Trump in Part I of a two-part essay.

Tim Maurer and Hannes Ebert flagged their curated list of publications covering cybersecurity in international relations and distinguished it from similar cybersecurity compendiums.

Benjamin Wittes posted about the upcoming Hoover Institution event Cybersecurity in the Trump Administration: What Should We Expect?

Samuel Moyn asked where we are now in the post 9/11 struggles over America’s national security and surveillance state.

Shane Reeves examined what happens in international law when states no longer govern and non-state actors take over.

Quinta Jurecic called for students to intern at Lawfare this summer.

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