The Week that Was: All of Lawfare in One Post

On Thursday, the Obama administration revealed that a January drone strike killed two hostages being held by Al Qaeda, one American and one Italian. Jack noted that this openness by the administration about what appears to have been a covert action was extraordinary. Moreover, it raises tricky questions for the administration going forward about transparency in its counterterrorism operations, such as

why the government cannot officially acknowledge and openly discuss much more about the particular activities revealed yesterday, or about its drone operations abroad more generally … or which enemy forces were targeted and killed (and why), or the “guidelines under which we conduct counterterrorism efforts in the region” (the President’s words).

Bobby followed by asking if, like in the aftermath of the drone strike that killed American AQAP leader Anwar Al-Awlaki, we will now enter “another catalytic moment for policy change” regarding the drone program. He then laid out several of the issues at play in evaluating the program, and noted how the newly-revealed strike does or doesn’t affect each of those issues. The questions about targeting now being raised follow hot on the heels of a discussion started last week about whether a cleric (specifically, AQAP’s Ibrahim al-Rubaysh) can be legally targetable. Over at Just Security, Ryan Goodman suggested that, because religious leaders are generally non-targetable, Rubaysh’s theological role in AQAP may make him non-targetable as well. Cody pointed out, however, that Ryan understated Rubaysh’s operational role in the terrorist group. Indeed, by AQAP’s own account,  Rubaysh “waged Jihad with his hands, fought with his weapon and battled with the Blessing of Allah.” This participation in combat operations, Cody reasoned, forfeited for Rubaysh whatever immunity his religious duties could have bestowed upon him. Speaking of AQAP, Dan Byman and Jennifer Williams posited in this week’s Foreign Policy Essay that, although the terrorist group appears to be an early winner in the Yemeni civil war, the conflict also presents challenges that may “dramatically reorient the organization in ways it has long sought to avoid.” One of the challenges facing the group is the growth of ISIS, whose ranks continue to swell with foreign fighters. On Monday, Bobby told us about yet another group of young men who were stopped while attempting to travel to Syria to join the militant group. The six men were arrested in the Minneapolis area on material support charges; the complaint and FBI affidavit can be seen here. The complaint, Bobby noted, “is a handy case study in the variety of investigative techniques that FBI might employ in a case of this kind.” This week, the Washington Post ran a story detailing the Defense Department’s efforts to transfer dozens of Guantanamo detainees out of the facility by the end of the year. Bobby linked us to the story, and broke down the math of closing Guantanamo. While the administration appears to be committed to whisking the 57 detainees already cleared for release out of Guantanamo as soon as possible, that would still leave 65 detainees at the facility. Steve Vladeck added that the math gets even more complicated when you try to figure out the status of each of those 65 detainees. Currently, 33 apparently fall into the category of those who are “too dangerous” to transfer but who can’t be tried, while at most seven of the remaining detainees may be added to the group of 10 detainees facing military commission proceedings. That leaves at least 15 detainees who have been precluded from being tried by a military commission. These individuals must be either cleared for review or dropped into the “too dangerous” category. As we assess the way forward on closing Guantanamo, “it sure would be helpful to know into which of the two non-military commission categories these 15-plus detainees fall …” Over the weekend, Andrew McCarthy railed against the Iran Nuclear Agreement Review Act, calling it “a Constitutional Perversion.” Jack responded by pointing out a few basic flaws in McCarthy’s argument, starting with the fact that the Constitution doesn’t, as McCarthy claimed, require the President to muster 67 votes to pass a binding international agreement; that requirement only applies to treaties under domestic law, which the Iran deal is not. Moreover, Jack noted that the Iran review bill would empower the President to waive sanctions, as McCarthy seemed to say. That authority was actually granted to the President by the Iran sanctions bills themselves. Both sides responded once more (McCarthy here and Jack here), and the exchange ended with Jack noting a point of agreement: “it is possible that Obama might try to 'legalize' the non-binding deal via a UN Security Council Resolution.” But while McCarthy sees that possibility as reason enough to mention impeachment, Jack pointed out that in all likelihood the President won’t attempt that tactic. Gabriella Blum and Ben ran an essay in the Wall Street Journal this week adapted from their new book, The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. Ben then reported the news that a drone containing traces of radiation was found on the Japanese Prime Minister’s office. The New Age of Threat may already be upon us. Ben also waded into the Harold Koh-NYU melee this week, pointing out a few absurdities in the ongoing debate, including the idea that Koh was the “key legal architect” of the Obama administration’s drone program. In fact, Ben wrote, he was more obstructionist than enabler. Ben later shared a couple of the responses he received: one that argued that Koh was only an obstructionist insofar as he vigorously argued for his position, and one that claimed Koh “was an incredibly effective, convincing, and eloquent obstacle.” Bruce Schneier shared a section from his book Data and Goliath dealing with QUANTUM, the NSA’s computer-hacking program approach now apparently also employed by China. In fact, this malicious technology has proliferated so much that a recent homework assignment given to students by a professor at Stony Brook University involved building a rudimentary QUANTUM tool. In the face of such vast proliferation, Bruce posited, “End-to-end encryption is the solution” In other cyber news, Cody told us about the Defense Department's newly released cyber strategy document. Herb provided some observations on the new strategy: first, the document is relatively open about the use of offensive cyber weapons; second, the document nonetheless only uses the word "offensive" twice, making the reader infer when certain operations being discussed are offensive in nature. Kenneth Anderson reviewed War Reparations and the UN Compensation Commission: Designing Compensation After Conflict, an edited volume looking at a variety of aspects of the UNCC. While Kenneth noted that the book will probably be of most use to those specializing in the history of the First Gulf War---the UNCC was established after that war to manage compensation claims arising from it---he added that it could interest those looking for examples of U.N. Security Council subsidiaries working outside of the UNSC’s usual issues relating to the use of force. Aurel Sari and Noëlle Quénivet responded to a report released recently by a British think tank that claims that Britain's armed forces must be saved from "Defeat by Judicial Diktat." The authors agreed that the British armed forces are facing legal challenges, but laid out several reasons for why the report's proposed reforms aren't the most effective means to "preserve the operational freedom of the military." Yishai Schwartz and Jennifer Williams kept us apprised of stories from the Middle East in the latest Middle East Ticker. Bruce Schneier made us a handy scorecard to help keep track of U.S. intelligence community leakers. Jack tipped us off about Security Mom, a great new podcast series from Juliette Kayyem, who served as Assistant Secretary for Intergovernmental Affairs in the Department of Homeland Security. In Kayyem’s own words, the podcast discusses “what we can do to keep our country, and each other, safe---and how we can better equip ourselves for when we can’t.” This week’s Lawfare Podcast featured Deputy Secretary of State Anthony Blinken’s recent appearance at Brookings, where he spoke about the current priorities and future prospects for U.S. engagement in Central Asia. Ben brought us Episode #15 of the Rational Security Podcast: Crusader Airstrikes Edition. And Stewart Baker rounded out our week of podcasts with Episode 63 of the Steptoe Cyberlaw Podcast, in which the Steptoe team rounded up the latest cyber news and Stewart interviewed Alan Cohn, former Assistant Secretary for Strategy, Planning, Analysis & Risk in the Department of Homeland Security Office of Policy. And that was the week that was.