Today's Headlines and Commentary

Anonymous senior European officials said yesterday that a proposal for U.N. Security Council approval is in the works to authorize a Western-backed African force to battle with AQIM in Mali. The U.S. has not publicly committed to arming or funding the force, and has already ruled out directly participating in it, writes Anne Gearan of the Washington Post. The AP reports that a drone strike in Yemen hit two cars carrying Al Qaeda militants today. The Washington Post's Robert O'Harrow Jr. writes on the response to the report led by Senator Tom Coburn: Senator Joe Lieberman (he thinks the report was unduly focused on the flow of intelligence to the feds and ignored acknowledged the benefits of local, state, and federal collaboration), the Department of Homeland Security, the International Association of Chiefs of Police, the National Sheriffs' Association, and the National Fusion Center Association. DHS spokesman Matt Chandler called the report "inaccurate and misleading." Brent Rushforth, Robert L. Palmer, M. Alexander Bowie II and James G. Szymanski, representing Guantanamo detainees, have this piece in the National Law Journal critical of the Supreme Court's decision to deny cert in Gitmo habeas cases. They write:

We believe that in Guantánamo, our nation has sacrificed sacred American ideals for expedience sake. But that is what politicians will do and that is why our nation's founders created our tripartite system of government---with our judicial branch designed to step in when our politicians are unable or unwilling to uphold our ideals. We view the Supreme Court's refusal to hear the Guantánamo appeals as an abdication of that vital function, an abdication that gifts our enemies with the argument that while we proclaim our ideals as universal, to us they are mere matters of convenience.

A curtain of utter darkness now threatens to fall over most of the 169 Guantánamo detainees, interned indefinitely without charge and without recourse, including our clients. Having reviled the Soviet Union for its gulags, we have, it seems, permanently institutionalized our own at Guantánamo. It is ironic but somehow fitting that we've managed to do this on the southeast coast of Cuba---adjacent to, indeed within, the territory of a despotic regime that we have opposed for several generations but now, sadly, choose to emulate in this disgraceful way.

As reported yesterday, the Federal government has purchased a prison in Illinois to house U.S. inmates. The prison was once thought of as a successor to Guantanamo, but Eric Holder says the purchase is not part of the plan to close Gitmo. Here's Reuters' story on the purchase. Republican Congressman Frank Wolf doesn't buy it, though, writes Joel Gehrke of the Washington Examiner. Douglas Cox of CUNY Law argues over at Jurist that the CIA should respond to an inquiry from the National Archives about whether it complied with the Federal Records Act when it destroyed interrogation tapes. His points are four-fold:

First, the focus of the National Archives inquiry is, and has always been, the CIA's institutional responsibility to preserve the records of our government. The CIA's troubling interpretation of that obligation — evidenced by its early public statement that the destruction of the tapes was "in line with the law" — is precisely what allowed the destruction to occur and what made proving individual criminal intent so difficult. That CIA officer Jose Rodriguez, who ordered the destruction, was not charged with a crime should hardly come as a surprise given that, as Rodriguez explained at length in his recent book, CIA attorneys repeatedly advised him that there was no legal obligation to preserve them. This alarming advice was also consistent with the CIA's distressing public assertion that the tapes were not "records" under the Federal Records Act. The National Archives inquiry at last requires the CIA either to defend that position or abandon it.

Second, preventing the further destruction of records is more important than pursuing criminal charges for past destruction. The CIA's questionable interpretation of the Federal Records Act has now gone unchecked for the last four-and-a-half years and may have already resulted in the destruction of additional material we know nothing about. The National Archives inquiry addresses the underlying problem and, should it conclude that the CIA has failed to comply with its statutory obligations to preserve records, it could force remedial measures within the CIA to prevent further unlawful destruction.

Third, the inquiry profits from the special expertise, credibility and objectivity of the National Archives. The role of an archivist is to ensure the preservation of evidence based on whether it is important — not whether it is "good" or "bad." Lost in the long debate over these tapes is the shortsighted nature of the CIA's actions in destroying the tapes. The importance of the tapes was not limited to protecting the rights of detainees, but also protecting the rights of the interrogators depicted on them as well as any additional intelligence information they may have contained.

Finally, responding to the National Archives inquiry does not require additional years of costly, fact-intensive investigation. It does not require interfering with CIA operations or ongoing investigations. It simply requires that the CIA reply to the inquiry of the National Archives and explain why it believes the federal records laws did not require the preservation of live videotapes depicting activity — the waterboarding of detainees — whose legality and effectiveness is one of the most important moral and legal debates of our times. Or, perhaps under the leadership of Director David Petraeus, the CIA might admit that it was wrong, that the destruction was not "in line with the law," that it has taken steps to prevent more destruction and that it will sin no more.The Pentagon has just approved $1.7M in support of training Iraqi security forces in counterterrorism despite the looming threat of sequestration cuts that are facing it and the rest of the U.S. federal government. Carlo Munoz of The Hill reports.

And NATO's Secretary General is discounting claims that there will be an early withdrawal from Afghanistan. Secretary-General Anders Fogh Rasmussen called the claims "at best misleading . . . at worst mischievous." Del Quentin Weber has  a fascinating piece over at the Post about negotiators working on behalf of Somali pirates. It focuses particularly on Mohammed Shibin, who assumed this role during the 2010 capture of the Marida Marguerite and recently was prosecuted in the Eastern District of Virginia for his role. The AP provides details from the unsealed indictment of Alexander Fishenko, who is accused of obtaining military technology for Russia and evading export controls, money laundering, and operating as an unregistered agent for the Russian government in the U.S. A group of GOP senators are displeased with the White House's decision to go the executive order route on cybersecurity policy. Brendan Sasso of The Hill describes their letter, which is available here. It seems that sensitive documents in the Benghazi compound were found amidst the rubble by a Washington Post reporter and an interpreter yesterday. France has introduced legislation providing its police with more authority to arrest individuals traveling to Pakistan or Afghan terrorist training camps, reports Steven Erlanger of the Times. Conor Friedersdorf says over at The Atlantic that his opposition to drones isn't an objection in principle of using drones in warfare, but is the "dearth of transparency, the use of CIA personnel rather than Army or Air Force officers . . . the attacks on individuals whose identities aren't even known, the hundreds of dead innocents, and the fact that all dead males of military age are presumed to be militants." For those waiting with bated breath for General Stanley McChrystal's forthcoming memoir My Share of the Task, you'll have to wait a little while longer as it is goes through its security review by the Pentagon, writes The Hill. Jennifer Gibson of Reprieve writes in the LA Times on the Stanford/NYU report on the use of drones that came out last week. She contributed to the interviewing efforts in Pakistan. For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and singh.lawfare@gmail.com, and check out the Lawfare Events Calendar for upcoming national security events.