The next installment in the series of posts derived from this summer’s Transatlantic Dialogue on International Law and Armed Conflict is now live at the ICRC’s Intercross blog. It is from Ken Watkin, and it concerns the overlap of IHL and IHRL. A taste:

It is possible to address the perennial debate about the relationship between international humanitarian law (IHL) and international human rights law (IHRL) from a number of perspectives. In these posts, I would like to set out some of the issues that deserve close attention. First, there is the strategic theoretical conflict that continues to play out between the advocates of exclusionary applications of IHL and IHRL. This is a conflict that is firmly grounded in different views emanating from each side of the Atlantic. Secondly, there are the different perspectives brought to this issue based on the unique North American (in this context the United States and Canada) and European legal systems, as well as differing geographic and experiential factors. Thirdly, there is the ongoing reliance on customary international law, domestic law and policy to assist in resolving what appears on its surface to be an intractable theoretical impasse. Finally, notwithstanding the exclusionary debate the reality is that military forces are applying both IHL and IHRL norms during contemporary operations, although approaches that seek to uniquely apply one legal framework over the other will continue present operational challenges.

Today has been characterized as “Decision Day” at the NATO Summit in Wales, and so far, the moment appears to be living up to its appellation.

The Ukrainian government and pro-Russian separatist forces have agreed to a cease-fire, reports the New York Times. According to negotiators from both sides, the cease-fire will begin today. However, fighting around the Ukrainian city of Mariupol had escalated dramatically just before the ceasefire, calling into question the strength of the agreement. The Guardian suggests that the shelling has since died down and may have been part of a strategy to push Ukraine to sign the agreement. The agreement comes after Russia intervened in the conflict in order to prevent the defeat of the rebels. The Washington Post has more on the story.

Even as the cease-fire begins, President Obama and European leaders are finalizing a new round of sanctions on Russia’s financial, defense, and energy sectors, writes the Wall Street Journal. President Obama expressed skepticism that the separatists will uphold their end of the agreement or that Russia will stop violating Ukrainian sovereignty, proposing that it might be better to impose sanctions, and then lift them if there is progress. The sanctions could be imposed as early as today, relays the Times.

According to the Associated Press, NATO leaders approved the creation of a 4000-troop rapid response force with a headquarters in Eastern Europe. While NATO Secretary-General Anders Fogh Rasumussen seemed reticent to name any specific threat the force was intended to deter, it is widely seen as a response to recent Russian aggression in the region. British Prime Minister David Cameron said that the new force would be able to deploy anywhere in the world within two to five days.

Writing in Christian Science Monitor, Howard LaFranchi explains how after a decade of sitting adrift, Russian President Vladimir Putin has breathed new life into an alliance many people thought outdated. In Foreign Policy, former U.S. Secretary of State Madeline Albright calls for a “united front,” arguing that only a strong NATO can stop Russian aggression.

The Guardian has live updates on the NATO Summit as it happens.

Turning our attention to Iraq and Syria: A coalition appears to be emerging that will take the fight to ISIS. This morning, Secretary of State John Kerry identified a “core coalition” of ten countries that would support U.S.-led efforts to disrupt and destroy the Islamic State, reports Politico. Britain, France, Germany, Canada, Australia, Turkey, Italy, Poland, and Denmark have all agreed to join the United States, although officials have offered few details of the commitments.

In many ways, it also appears that a strategy, however limited, is developing. Philip Ewing in Politico writes, “The overall message so far is that if the U.S. does most of the flying and attacking in a potential campaign against ISIL in Syria, it will at least have assistance and diplomatic cover from as many allies as possible.”

In a joint statement from Secretary Kerry and U.S. Defense Secretary Chuck Hagel, specific U.S. goals appeared for the first time: military support for Iraq, curbing the flow of foreign fighters into the region, cutting off ISIS’s financing and funding, assisting with the region’s humanitarian crisis, and “delegitimizing” ISIS’s ideology.

However, the Secretary of State told the assembled leaders, “Obviously I think that’s a redline for everybody here: no boots on the ground.”

While concrete actions have yet to be announced, the Daily Beast reports that Britain is preparing for strikes against ISIS. The Financial Times has more on the potential UK military operations in Iraq.

Far away from Wales, a most unlikely coalition partner has signaled its willingness to coordinate with the United States against ISIS. The BBC reports that Iran’s Supreme Leader Ayatollah Khamenei has authorized his top commander to coordinate with the U.S., Iraqi, and Kurdish forces. While the Iranian government immediately denied the report, such coordination would not be unprecedented – Iran cooperated with the U.S. in Afghanistan by arming the Northern Alliance in 2001. Indeed, the BBC notes that this cooperation may have already started as General Qasem Soleimani, Commander of the elite Qud’s Force, was pictured in Northern Iraq near Amerli at the time of the breaking of the siege.

Even so, those hoping that the United States will expand its operations into Syria are likely to be disappointed in the immediate term. The Washington Post adds that as the U.S. has sought commitments for the fight against the Islamic State, it has focused “tightly” on Iraq.

In Iraq itself, sectarian violence continued yesterday, with two bombs killing at least 20 people in Baghdad. The BBC also carries the story.

On Thursday, an air strike in the ISIS-held city of Mosul killed Abu Bakr al-Baghdadi’s top aide, according to the Iraqi defense ministry. In Syria, an Assad-government air raid has killed eighteen ISIS militants – many of whom were foreign fighters. Among the dead was an American jihadist. Reuters reports that a second raid on Thursday targeted a former intelligence headquarters in Abu Kamal that was used by the Islamic State. It is unknown how many militants were killed.

Reuters also has an exclusive report detailing a troubling new level of cooperation between ISIS militants and Ansar Bayt al-Maqdis, a militant group in Egypt that has killed hundred of government security forces over the last year.

Following a briefing from Sigrid Kaag, the head of the United Nations’ effort to remove chemical weapons in Syria, U.S. Ambassador to the United Nations Samantha Power noted discrepancies in Syria’s declared stockpile of chemical weapons and those actually destroyed. The differences, according to Power, have sparked concerns that ISIS may get a hold of chemical weapons left in Syria. The Associated Press has more.

Al-Monitor has coverage of a depressing new turn in the conversation regarding a potential U.S. mission in Syria. Citing a Lebanese source close to the Syrian government, they report that Assad’s forces may be deliberately focusing on defeating moderate rebel groups other than ISIS in order to eliminate possible alternatives to for Western military collaboration against ISIS.

And because American forces in Syria would either benefit Assad or ISIS, writing in the Daily Beast, Representative Adam Schiff (D-California), a member of the House Intelligence Committee, argues that American airstrikes in Syria against ISIS would do more harm than good.

Finally, the Washington Post has an excellent new interactive graphic that tracks the rise of the Islamic State.

The New York Times sheds new light on Hamas’s role in the murder of three Israeli teenagers that sparked the latest Gaza war. According to new documents released from the ongoing investigation, the kidnapper was indeed associated with Hamas, but there is no evidence that top Hamas leaders directed the plot.

NATO leaders breathed a sigh of relief on Thursday as Afghanistan’s two presidential candidates signaled that they would form a government of national unity and sign an agreement permitting foreign troops to stay in the country. The announcement comes as the Independent Election Commission spokesman in Afghanistan confirmed that election officials have completed the U.N. supervised audit of votes. However, it remains unclear when the final results of the audit will be announced. Reuters has more coverage on the political crisis that has taken a back seat to Ukraine, Iraq, and Syria in recent weeks.

Now to Africa: Following the apparent capture of the town of Bama on Thursday, Reuters reports that Nigerian warplanes have initiated strikes against Boko Haram bases in Borno, a state in the northeast of the country. The New York Times reports that amid fears that the major city of Maiduguri may also be overrun, hundreds of residents have fled. This comes as the United States announced plans to launch a major border security program to help Nigeria combat the extremists.

Today, the White House confirmed that Ahmed Godane, the leader of al-Shabaab in Somalia, was killed last weekend in a targeted U.S. military strike.

Across the Atlantic, Vice News covers the upcoming hearing wherein a federal judge will rule on the possible release of 2,100 photos of U.S. soldiers abusing Afghan and Iraqi prisoners. The hearing is on September 8th, when the government will be given the opportunity to provide additional evidence to justify withholding the images. Judge Alvin Hellerstein has already stated in a 21-page ruling that he believes the “government has failed to submit to this Court evidence supporting the Secretary of Defense’s determination that there is a risk of harm” to U.S. national security should the photos be released. The hearing follows this week’s federal court ruling that the U.S. government can withhold photographs and videotapes of a Guantanamo Bay detainee.

The BBC reports that the British High Court has approved the extradition of Haroon Aswat to the United States. Aswat is accused of conspiring with radical cleric Abu Hamza al-Masri to establish a terrorist training camp in Oregon.

Finally, in Politico’s 50, Editor Michael Hirsh examines the future for Gleen Greenwald’s Brazilian-based journalistic enterprise, asking, “Has Greenwald, Inc. Peaked?”

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

The White House has just released a statement confirming the death of Ahmed Godane, the leader of Al Shabaab in Somalia. According to the statement, the U.S. military targeted Godane in a successful air strike last weekend. The full statement is below:

Today, the Department of Defense confirmed that Ahmed Godane, the leader of al-Shabaab, is dead as a result of a U.S. military targeted airstrike in Somalia undertaken over the weekend. Godane’s removal is a major symbolic and operational loss to the largest al-Qaida affiliate in Africa and reflects years of painstaking work by our intelligence, military and law enforcement professionals. Even as this is an important step forward in the fight against al-Shabaab, the United States will continue to use the tools at our disposal—financial, diplomatic, intelligence and military—to address the threat that al-Shabaab and other terrorist groups pose to the United States and the American people. We will also continue to support our international partners, particularly the African Union Mission in Somalia, that are working to support the Federal Government of Somalia build a secure and stable future for the Somali people.

The U.S. Department of State named al-Shabaab a Foreign Terrorist Organization under Section 219 of the Immigration and Nationality Act (as amended) on February 26, 2008, and a Specially Designated Global Terrorist entity under Executive Order 13224 on February 29, 2008.

In September 2013, Godane publicly claimed al-Shabaab was responsible for the Westgate Mall attack, which killed and injured dozens in Nairobi, Kenya, calling the attack “revenge” for Kenyan and Western involvement in Somalia and highlighting its proximity to the anniversary of the attacks of September 11, 2001.  Under his leadership, the group has claimed responsibility for many bombings—including various types of suicide attacks—in Mogadishu and in central and northern Somalia, typically targeting officials and perceived allies of the Somali Government as well as the former Transitional Federal Government (TFG) of Somalia. Godane has also continued to oversee plots targeting Westerners, including U.S. persons, in East Africa.  In recent months, al-Shabaab claimed responsibility for a suicide bombing in Djibouti that killed a Turkish national and wounded several Western soldiers as well a car bomb at the Mogadishu airport that targeted and killed members of a United Nations convoy.   Al-Shabaab was responsible for the twin suicide bombings in Kampala, Uganda, on July 11, 2010, which killed more than 70 people, including one American. The group has also been responsible for the assassination of Somali peace activists, international aid workers, numerous civil society figures, and journalists. In February 2012, al-Shabaab and al-Qaida announced their formal alliance through a statement in which Godane swore allegiance to al-Qaida and promised to follow “the road of jihad and martyrdom in the footsteps that our martyr Osama bin Laden has drawn for us.”

And now for something completely different: Cyborgs. No, this is not a joke. For years, certain technology enthusiasts have floated variations on the question or whether we are becoming cyborgs—or already are cyborgs. In our newly released paper, titled “Our Cyborg Future: Law and Policy Implications,” we take a different, more legal angle.

The law remains embryonic on virtually all points of interest to the adolescent cyborg: everything from your right to access your own data, to your right to restrict access to your data, to your ability to secure something more than property restitution when an airline destroys your custom mobility assistance device and leaves you bedridden for a year. That’s right: whether you rely on a pacemaker to stay alive or on a cellphone to stay connected, when we say “adolescent cyborg,” we are talking about you.

Here’s the introduction:

In June 2014, the Supreme Court handed down its decision in Riley v. California, in which the justices unanimously ruled that police officers may not, without a warrant, search the data on a cell phone seized during an arrest. Writing for eight justices, Chief Justice John Roberts declared that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”This may be the first time the Supreme Court has explicitly contemplated the cyborg in case law—admittedly as a kind of metaphor. But the idea that the law will have to accommodate the integration of technology into the human being has actually been kicking around for a while.

Speaking at the Brookings Institution in 2011 at an event on the future of the Constitution in the face of technological change, Columbia Law Professor Tim Wu mused that “we’re talking about something different than we realize.” Because our cell phones are not attached to us, not embedded in us, Wu argued, we are missing the magnitude of the questions we contemplate as we make law and policy regulating human interactions with these ubiquitous machines that mediate so much of our lives. We are, in fact, he argued, reaching “the very beginnings of [a] sort of understanding [of] cyborg law, that is to say the law of augmented humans.” As Wu explained,

[I]n all these science fiction stories, there’s always this thing that bolts into somebody’s head or you become half robot or you have a really strong arm that can throw boulders or something. But what is the difference between that and having a phone with you—sorry, a computer with you—all the time that is tracking where you are, which you’re using for storing all of your personal information, your memories, your friends, your communications, that knows where you are and does all kinds of powerful things and speaks different languages? I mean, with our phones we are actually technologically enhanced creatures, and those technological enhancements, which we have basically attached to our bodies, also make us vulnerable to more government supervision, privacy invasions, and so on and so forth.

And so what we’re doing now is taking the very first, very confusing steps in what is actually a law of cyborgs as opposed to human law, which is what we’ve been used to. And what we’re confused about is that this cyborg thing, you know, the part of us that’s not human, non-organic, has no rights. But we as humans have rights, but the divide is becoming very small. I mean, it’s on your body at all times.

Humans have rights, under which they retain some measure of dominion over their bodies. Machines, meanwhile, remain slaves with uncertain masters. Our laws may, directly and indirectly, protect people’s right to use certain machines—freedom of the press, the right to keep and bear arms. But our laws do not recognize the rights of machines themselves. Nor do the laws recognize cyborgs—hybrids that add machine functionalities and capabilities to human bodies and consciousness.

The European Court of Human Rights released its opinion in the case of Trabelsi v. Belgium on yesterday, holding that by extraditing Nizar Trabelsi to the United States, where he possibly faced an irreducible life sentence, Belgium had violated Trabelsi’s rights under Article 3 of the European Convention on Human Rights (which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”).

As the opinion describes, Nizar Trabelsi, a Tunisian national, was arrested in Belgium in the days following the attacks of September 11, 2001. Based on, among other things, the “false passports, automatic weapons and ammunition, . . . chemical formulae [for explosives], and a detailed plan of the United States Embassy” that were found during the execution of a search warrant (pg. 2), Trabelsi pled guilty to the offenses of criminal conspiracy, destruction by explosion, possession of combat weapons, and belonging to a private militia. The court stated that Trabelsi “attempted to commit one of the most serious crimes since Belgian independence” (pg. 2), and he was sentenced in September 2003 to ten years imprisonment.

In November 2007, the United States government issued an arrest warrant for Trabelsi on charges that he conspired with and provided support to Al Qaeda in order to kill U.S. nationals and use weapons of mass destruction to destroy property used by the U.S. government in Europe. The United States submitted an extradition request to the Belgian government in April 2008. As the case wound its way through the Belgian system, the U.S. Department of Justice provided a series of assurances in accordance with Belgian law, including that Trabelsi would only be detained in civilian facilities, that he would not be tried before a military commission, and that he did not face an irreducible life sentence. The Minister of Justice ultimately issued the extradition order in November 2011. Read more »

It looks like it’s time for Lawfare to update an old post of ours, “Who is Saying What about the Leahy Surveillance Bill.”

On September 2, Attorney General Eric Holder and Director of National Intelligence James Clapper sent a letter to Senator Patrick Leahy endorsing the Senator’s version of the USA FREEDOM Act.  Key passages are highlighted below:

The Intelligence Community believes that your bill preserves essential Intelligence Community capabilities: and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency.

The letter continues:

The Intelligence Community believes that, based on communications providers’ existing practices in retaining metadata, the bill will retain the essential operational capabilities of the existing bulk telephone metadata program while eliminating bulk collection.

On the creation of an amicus curiae to the FISA Court:

We believe that the appontment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government.

Concluding;

Overall, the bill’s significant reforms should provide the public greater confidence in our programs and the checks and balances in the system.

You can read the full letter here.

You may also find a copy of Senator Leahy’s bill here and Lawfare’s summary here.

As ambassadors from NATO member countries gather in Europe to discuss crises in Ukraine, Iraq, Syria, and elsewhere, more details about a possible ceasefire in Eastern Europe are emerging. Russian President Vladimir V. Putin laid out a seven-point plan to stop the fighting between Ukraine, pro-Kremlin separatists, and their Russian patrons. Putin apparently wrote the list while flying across Siberia to a state visit in Mongolia, and drew its details from an involved telephone call with Ukrainian President Petro Poroshenko. The New York Times has a read out of Putin’s proposal. Critically, Putin did not specify a mechanism to make sure all of the listed demands are carried out, nor is he yet willing to admit to Russia’s part in the instability. A piece at CBC News tells us that on his Twitter account, Poroshenko wrote that a ceasefire could be signed on Friday in Minsk.

Still, danger lurks. According to the Hill, Russia’s foreign minister Sergey Lavrov warned on Thursday that any Ukrainian attempts to seek to NATO membership could derail the peace talks. The comments come a day after Putin’s plan was revealed, and shortly after President Obama made a strong speech in Estonia promising resolve in the face of further Russian advances into eastern Europe. The Atlantic characterized the speech as especially “forceful.” Air Force News quotes Obama as calling the conflict in Ukraine a “moment of testing” for the Western World. To all this, add a Hill story revealing that approximately 200 U.S. troops are set to head to Ukraine in mid-September for “peacekeeping exercises.” For his part, Putin has made a number of strong, and arguably bizarre, speeches in recent days. The Times has a list of notables.

Per the Associated Press, French President Francois Hollande announced yesterday that his country is suspending the delivery of a Mistral-class amphibious assault ship, the Vladivostok, to Russia. The vessel was originally slated for shipping for next month. The Vladivostok is the first of two ships; the second is named (ironically enough) the Sevastopol, after an important port city in Russia-annexed Crimea. France could lose over 1.1 billion euros on the deal if it is ultimately canceled. The Times reports that the ships are capable of holding up to 30 helicopters, 60 armored vehicles, 13 tanks, and 700 soldiers.

Speaking of warships, the Navy Times divulges that the destroyer USS Ross began heading into the Black Sea, allegedly to promote “peace and stability” in the region. 3 other NATO warships are set to sail into the Black Sea before September 7th, according to RT.  The latter also analyzes recent overtures by Russia to its Caucasian client states amidst efforts by the Kremlin to create a new military alliance in the former Soviet Union to counter NATO’s reach.

What if the sanctions on Russia do not arrest Putin’s advance across Europe? Jamila Trindle at Foreign Policy speculates that the sanctions may hurt the bottom line for average Russians—but not be enough to dissuade Putin. Relatedly, the Moscow Times has a poll today that shows that more than 70% of Russians would support banning foreign booze or cigarettes from Western countries in retaliation for sanctions; 77% would support blacklisting foreign hotels. However, only 43% would support banning the import of foreign cars. Importantly, the poll was conducted in mid-August, right after the latest round of sanctions against the country by the U.S. and the EU.

Vladimir Soloviev at Foreign Policy contemplates the fate of Putin’s next possible victim, Moldova, and the very low probability Europe would do anything significant to protect it.

Also on the agenda at the NATO Summit: developing a response to ISIS. Today, British Prime Minister David Cameron and President Barack Obama published an op-ed in the Times of London, saying that the two powers will not “waiver in our determination to confront ISIL.” The pair conclude that the United States and Britain “will not be cowed by barbaric killers.” Rounding out the rhetoric against ISIS, Vice President Joe Biden declared yesterday that the United States would follow ISIS “to the gates of hell until they are brought to justice.”

The Wall Street Journal reports that Iraqi politicians are beginning to unite in urging U.S. forces to return to the war-torn country. The Journal notes that even once anti-American politicians are calling for U.S. forces to bring “an end to terrorism in Iraq.” At the same time, President Obama announced that he has approved the deployment of 350 additional U.S. troops to provide security at diplomatic facilities in Iraq. Defense One notes that this puts the number of U.S. military personnel in Iraq well north of 1,100. In fact, the figure is now four times higher than when President Obama stated in June that “American combat troops are not going to be fighting in Iraq again.”

What are all those troops doing? A few days ago, we provided a report from the Daily Beast that suggested U.S. and potentially German forces were embedded in combat battalions with Kurdish Peshmerga fighters. The Pentagon denied this, stating that “there are no U.S. troops on the ground in or around Zumar.” However, writing in The Week, Marc Ambinder explains all the reasons why U.S. forces probably are already on the ground fighting ISIS, despite what the Pentagon keeps saying.

Al Jazeera reports that Iraqi forces have launched a massive ground and air offensive around northern Iraqi cities, including Tikrit. Initial reports suggested that significant numbers of ISIS militants were withdrawing. It is unknown whether the air strikes were carried out by the United States; we do know that U.S. aircraft dropped leaflets warning residents of the impending strikes.

Reuters reports that Islamic State militants have kidnapped 40 men from Kirkuk, a northern province in Iraq. It remains unclear why the men were taken.

According to the Associated Press, Human Rights Watch has determined that in a horrific, mass killing in June, ISIS militants killed 770 Iraqi troops—several times more than was previously thought. The incident occurred after militants overran Camp Speicher, an Iraqi airbase near Tirkrit. The New York Times has one survivor’s harrowing story. 

The BBC tells us that the British government is funding international investigators to compile evidence against Islamic State fighters who have carried out atrocities in Iraq and Syria. Apparently, documents show a “command responsibility” for the Islamic State’s massacres, beheadings, kidnappings, torture, executions, and crucifixions. The report also includes an outline of the Islamic State’s command structure.

The propaganda war with ISIS looks more and more like a game of wack-a-mole, with pro-Islamic State accounts being created faster than Twitter can take them down. NBC News reports that at least 28,000 Twitter accounts supporting the Islamic State have been created since the beheading of American James Foley.

The Iraqi Defense Ministry has provided photographs that allegedly show a captured Chinese man fighting for ISIS. If true, this would be the first Chinese citizen fighting with ISIS; the group has drawn members from around the world. The New York Times has more.

Apropos of foreign jihadists in Iraq and Syria, the Associated Press covers the global drive to stop would-be militants from traveling to the two countries. The efforts include new laws that make it easier to seize passports, block finances, and close radical mosques. Private firms are also working to clean extremist content from websites, social media, and other internet forums that could serve as propaganda and recruitment channels. The Wall Street Journal details how Turkey is struggling to close the “jihadist highway,” a route that has previously allowed militants to slip across the border into Syria. However, Turkey’s ability to crack down on the militant flow is hampered by the Islamic State’s kidnapping of 49 Turkish diplomats and their families in June.

Even so, yesterday, U.S. National Counterterrorism Center Director Matt Olsen told an audience at the Brookings Institution that “ISIL is not al Qaeda pre-9/11.” He continued, saying that there is “no indication at this point of a cell of foreign fighters operating in the United States.” Lawfare covered the speech yesterday, and Shane Harris has an excellent article on Mr. Olsen’s remarks today in Foreign Policy.

Remember the North Carolina man who was arrested by U.S. officials at JFK airport in New York City a few weeks ago on a weapons charge? NBC News has a profile on him. It explains how a Catholic-born, military school student, and former law enforcement officer ended up on a path to jihad.

Team America, Assad and the Ayatollah? That seems to be what what Senator Rand Paul believes to be necessary in order to stop ISIS. The Daily Beast has coverage of the Senator’s remarks.

The ongoing operations in Iraq, potential for strikes in Syria, and the brutal murder of two Americans by ISIS have pushed Congress to more directly engage the question of American military involvement in the region. Wednesday, Senator Tim Kaine repeated calls for President Obama to consult legislators, saying the Administration should “come to Congress with clear objectives and scope of mission to combat the ISIL threat, and Congress should immediately debate an authorization to use military force.” Earlier in the week, Senator Bill Nelson said that he would introduce a bill to allow the president to strike ISIS in Syria when Congress returns from recess next week.

On the other side of the aisle, House Intelligence Committee Chairman Mike Rogers said that Congress should give the president “authority to go after ISIS where they find them.” Rogers suggested that no effort to defeat ISIS would be successful without operations inside Syria, saying “that’s where their headquarters is.” Echoing the words of his colleague, Representative Frank Wolf (R-VA) announced that he will introduce legislation next week to authorize the use of military force against international terrorist groups such as ISIS, al Qaeda and affiliates, al Nusra, Ansar al Sharia, al Shabaab, and Boko Haram. Wolf’s announcement is here, and the full text of the proposed authorization here. At Just Security, Jennifer Daskal argues that the proposal shows exactly how not to authorize armed conflict.

Roll Call explains how the House and Senate are both laying the groundwork for war on ISIS, while Defense News notes that the short session before Congress leaves for midterm election campaigning could postpone any authorization of force. However, Senator John McCain told reporters yesterday that Congress should not leave before authorizing force, saying “We should stay in session until we work this issue out.”

The New York Times reports that the Taliban have attacked an intelligence base in the southeastern city of Ghazni. 14 people were killed in the offensive, including 12 Afghan security personnel. The attack on the provincial headquarters of the National Directorate of Security, the domestic intelligence entity of Afghanistan, was the second in less than a week. Elsewhere in the country, Reuters announces that Afghan security forces are currently hunting for Qari Bilal, a senior Islamist militant who was allowed to return to the country under a 2011 peace plan. But now he is leading hundreds of insurgents in Kunduz province. And struggles may be ahead for the Pakistani Taliban: according to Medium, the organization is currently losing foreign fighters to “sexier” conflicts in Syria and North Africa.

In its latest bid to quell rising inter-ethnic violence in Xinjiang, its restive province to the west, the Chinese government is pushing intermarriage between the Uighur minority group and the majority Han. According to the Times, the plan offers annual payments of approximately $1,600 for five years to couples. where one partner is a minority and one is Han, in addition to other benefits in healthcare, education, public sector jobs and housing.

The Guardian reports that South Korea is set to create an army unit with the U.S. in the event of a war with the North Korean regime. The mechanized unit will be led by a U.S. major general, and should be set up by early next year.

The Jerusalem Post announces that Israel’s fourth Dolphin-class submarine is currently on its way to Haifa from Germany after finishing final tests. The latest addition to Israel’s burgeoning naval forces is among the most capable and advanced of conventionally-powered submarines, and the largest built by Germany since World War II. The vessels reportedly can fire cruise missiles equipped with nuclear warheads from Israel’s Dimona nuclear plant. If true, the submarines would give Israel second-strike capability in the event of a war with Iran. A fifth submarine is slated to be delivered by the end of this year, with a sixth currently under construction.

The Times of Israel reports that a group of private companies has concluded a $15 billion deal to sell natural gas from Israel’s Leviathan reservoir to Jordan. The transaction, if approved by the governments of Israel and Jordan, would cement ties between the two countries as well as with Egypt, who would liquefy the gas. Foreign Policy has more on Israel’s rise as a “linchpin” in the region’s energy grid.

The New York Times reveals that Steven Sotloff, the journalist recently beheaded by ISIS militants, was Israeli-American. It analyzes why and how authorities withheld the man’s background until they could confirm his death. The Times also reports that the reconstruction in Gaza may end up costing $7.8 billion.

Foreign Policy reports a story we’ve been following for a few days now: there is growing unrest in Israeli Prime Minister Benjamin Netanyahu’s coalition government.

The New York Times brings us troubling news that al Qaeda has announced a new branch on the Indian subcontinent.  Appearing on an hour-long video, Ayman al-Zawahri, the group’s leader, tells would-be sympathizers in Burma, Bangladesh, Assam, Gujarat, Ahmedabad, and Kashmir that al Qaeda “did not forget you and that [it is] doing what [it] can to rescue you.” The new group represents the fifth official branch of the militant network. Some experts have suggested the video is meant to present a counter-narrative to ISIS, calling on Muslims to unite against the West instead of killing each other. The Indian Express and Vice News have more.

Foreign Policy has information on the Indian government’s response to the video, while the Washington Post explores why al-Qaeda is opening a new wing in South Asia.

In War on the Rocks, Myra MacDonald reports on the soft coup in Pakistan that has stalled, signaling what might be a watershed moment for Pakistan’s fragile democracy. In the Long War Journal, Bill Roggio examines the Pakistani military’s claim that their most recent operation in the tribal regions of North Waziristan has killed 910 terrorists. Also in War on the Rocks, Michael Kugelman asks, is Omar Khalid Khorasani as “Bad as Baghdadi?”

The BBC reports that Islamist militant group Boko Haram has reportedly taken the town of Banki in Nigeria’s northeastern state of Borno. The rebels are quickly advancing towards the state’s capital, Maiduguri. One prominent think tank, the Nigeria Security Network, warns that if the city falls, it would represent a “symbolic and strategic victory unparalleled so far in the conflict.”

Across the continent, Businessweek writes that the Somali government is currently working to identify Al-Shabaab militants killed in recent U.S. airstrikes. No word yet on whether the airstrikes ended the life of Ahmed Abdi Godane, leader of the Islamist group.

In Washington, the Hill reports that U.S. Attorney General Eric Holder and Director of National Intelligence James Clapper support a leading Senate proposal to reform certain NSA surveillance practices. Politico has a PDF of the letter sent by them to Senator Patrick Leahy, the Chairman of the Judiciary Committee.

Suspected Al-Qaeda operative Anas al-Liby decided to stick with his defense lawyer, despite a potential conflict of interest due to the fact that the Libyan government is paying his fees. Reuters has more.

And finally, the New York Post reports that police officers today arrested a man alleged to have flown a drone outside of a U.S. Open, during a quarter-final match featuring Serena Williams and Flavia Panetta. Charges against the man, Daniel Feighery, 34, are still pending.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Wow, this is really impressive. On a podcast called “Hardcore History,” a fellow named Dan Carlin is doing a lengthy series on World War I. The episodes run between three and four hours each, and Carlin has done four of them so far, so listening to them is admittedly a time investment. I know little about Carlin, except that he also runs a political podcast called “Common Sense” and used to be a radio talk show host. These are incredibly thoughtful and informative, and they are absolutely gripping to listen to. I’m completely hooked. Here are the World War I episodes that have run so far.

Highly Recommended.

As Dapo Akande of Oxford and Tracey Begley of the ICRC explain here and here, the next few weeks will see a series of short pieces posted here at Lawfare, at EJIL:Talk! (the blog of the European Journal of International Law), and at Intercross (the blog of the ICRC) giving readers a flavor of the topics addressed at this summer’s 2nd annual Transatlantic Dialogue on International Law and Armed Conflict (though of course each post is a reflection of no more than that author’s own views). It was an amazing event, and I’m very happy that we are following up with the series. In addition to my own post below, which was designed to stimulate discussion of when IHL/LOAC ceases to apply, the series will include:

Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part I, September 5th on Intercross
Sarah Cleveland, Harmonizing Standards in Armed Conflict, September 8th on EJIL:Talk!
Ken Watkin, Overlap of IHL and IHRL: A North American Perspective, Part II, September 10th on Intercross
Lawrence Hill-Cawthorne, Developing the Law of Non-International Armed Conflict: A view on the Harmonization Project, September 12th on EJIL:Talk!
Geoff Corn, Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility, September 15th on Lawfare
Guglielmo Verdirame, September 17th on Intercross

A final word to note the tremendous partnership that helped bring about the Dialogue: It was organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations, the International Committee of the Red Cross Delegations for the United States and Canada and for the United Kingdom and Ireland, the South Texas College of Law, and the Robert S. Strauss Center for International Security and Law at the University of Texas. And now, on to business:

“Law at the End of Conflict”
Bobby Chesney Read more »

Here’s the transcript. The speech opens:

This past May, a man walked into a Jewish Museum in Belgium and opened fire, killing four. The suspect, a 29-year old French-national, had recently returned from Syria, where he fought alongside the Islamic State of Iraq and the Levant.

The next day, a 22-year old American from Florida blew himself up while detonating a massive truck bomb in a restaurant in northern Syria, one frequented by Syrian soldiers. The bomb killed dozens. The American suicide bomber was with al-Nusrah Front—an al-Qa’ida affiliate—and the group posted a video of the attack online.

Finally, over the past two weeks, an ISIL terrorist—probably of British origin—executed two American journalists, who were taken hostage while covering the plight of the Syrian people. ISIL then posted these images for the world to see.

Let me pause here and echo the words of the President this morning. On behalf of everyone at NCTC, our prayers are with the families of Steven Sotloff and James Foley today.

Taken together, these horrific acts of violence highlight why security and intelligence officials in the United States, across Europe, and around the world are alarmed about the rise of ISIL and the terrorism threats emanating from Syria and Iraq—threats to both those in the region and to the West.

Last week and again this morning, the President spoke directly these concerns, calling ISIL an “immediate threat to the people of Iraq and people throughout the region.” Likewise, the British Prime Minister announced that the UK was raising their threat level, citing information that ISIL is targeting Europe.

So, this morning, I would like to spend a few minutes talking about the nature of the terrorism threat we see in Syria and Iraq. I will talk about the rise of ISIL and some of the challenges we face, but also why ISIL is far from invincible.

I will discuss how the situation in Syria and Iraq fits into the overall terrorism landscape, as I try to place this into a broader context.

Finally, I will touch on some of the steps we’re taking to confront ISIL and other groups operating in Syria to address the threats they pose to our security.

Before I begin, let me thank Bruce and the Brookings Institution for inviting me here to speak and also to acknowledge the terrific work that Brookings does on the full range of terrorism and intelligence issues. There’s a natural connection between NCTC and Brookings, given our role at NCTC as the primary government organization for all-source analysis of terrorism information. Indeed, we’ve sent some of our best and brightest here to serve as fellows.

As the Director of NCTC, I believe that our role includes talking to groups like this about our analysis and sharing our insights. This summer, the 9/11 Commissioners released their most recent report and asked national security leaders to “communicate to the public—in specific terms—what the threat is, and how it is evolving.” I see this event as an opportunity to do this and to shed some measure of light on the current discourse concerning ISIL.

We’re back!  After a much needed hiatus, during which we shared wilderness paths with bison, woke up to wolf cries, and celebrated the value of ibuprofen, the Steptoe Cyberlaw Podcast is back on the net.

The hiatus allows us to cover this month in NSA, which is a good thing, because the Snowden News Machine is sputtering.  The most significant news was probably made by NSA itself, which released a redacted opinion of the FISC, shedding a lot of light on why the government abandoned its internet 215 program.  Judge Bates’s heavily redacted program criticizes the agency relentlessly for making promises about its technology and procedures that it just couldn’t keep.  My guess is that the agency heads and DOJ got so tired explaining and apologizing to the court that they finally just killed the program.

In other NSA news, Snowdenista journalists try to make an issue of the fact that NSA has developed a search engine for metadata called ICREACH.  Public reaction: Well, duh.

More egregiously, Laura Poitras and Der Spiegel provided detailed information about US intelligence collection on Turkey in a scarcely veiled effort to sabotage the US-Turkey relationship – and to relieve the German government of the embarrassment of a leak showing that despite Angela Merkel’s claim that friends shouldn’t spy on friends, Germany spies enthusiastically on Turkey.

Mustn’t embarrass the German government, after all.  Its insistence on moral purity in intelligence collection is the main political/diplomatic support for what’s left of the Snowden campaign.  But that purity is looking a little sullied after revelations that German intelligence intercepted both Hillary Clinton and John Kerry as they carried out diplomatic efforts.

In other August news, the Microsoft case questioning the government’s authority to issue warrants for overseas data continued to evolve over the month, with the government greatly raising the stakes:  If Microsoft wants to appeal, the government says, its only option is to refuse compliance with the warrant and let the court hold it in contempt.  And it looks like the district court agrees.

Elsewhere, Linkedin settles its data breach case for a relatively modest $1.25 million.  NIST seeks comment on how its Cybersecurity Framework is working out.  And a federal court in Massachusetts offers novel (and probably bad) advice to those hoping to avoid liability under federal computer abuse law:  Just make sure the computer’s been disconnected from the Internet before you attack it.  Finally in what looks like an increasingly American exceptionalist view, US courts continue to hold that search engines aren’t liable for the links they publish or their autocomplete suggestions.

Our guest for the week is David Hoffman, Intel’s Chief Privacy Officer, and one of the most thoughtful privacy officials going–apart from his unaccountable fondness for the European Court of Justice’s decision on the right to be forgotten.  We debate the decision again, and I discover that David and I are famous by Google’s standards, while Michael is not.  I propose new ways to throw a legal spanner in the European data protection agencies’ works.

Yesterday, Ben Bissell and Cody shared news of a video, depicting the murder of American journalist Steven Sotloff by a jihadist representing the Islamic State. According to the Associated Press, U.S. National Security Council spokesperson Caitlin Hayden confirmed the authenticity of the footage in a statement this morning. The Telegraph informs us that the Islamic State was apparently “caught off guard” by the release of the video. The SITE Intelligence Group, which had discovered the footage on a file-sharing site, preempted the extremists in distributing the video. The Telegraph notes that “the apparent leak of the Sotloff video is in stark contrast to the carefully choreographed release of the video showing the killing of James Foley, another American journalist, on August 20.”

In light of the recent killings, USA Today’s Editorial Board considers America’s refusal to pay terrorists for the release of U.S. hostages. Meanwhile, Time reflects on the asymmetric warfare waged by the Islamic State.

In a statement this morning from Tallinn, Estonia, President Obama promised to “degrade and destroy ISIL.” The Washington Post highlights the President’s “tougher tone,” but notes that “Obama gave no clear details on whether the United States planned to escalate its pressure on the group beyond the current wave of limited airstrikes and efforts to forge a stronger international coalition against the militants.”

President Obama has authorized an additional 350 U.S. troops deployed to Iraq in order to ensure security at U.S. diplomatic compounds there. Navy Times has more on the President’s decision.

Meanwhile, members of Congress are considering legislation authorizing military action against the Islamic State. According to Time and Politico, Senator Bill Nelson (D-FL), a member of the Senate Armed Services Committee, intends to introduce legislation next week that would authorize U.S. airstrikes against the Islamic State in Syria. Additionally, Congressmen Ed Royce (R-CA) and Eliot Engel (D-NY), the Chairman and Ranking Member, respectively, of the House Foreign Affairs Committee, announced that they intend to hold hearings regarding U.S. strategic plans against the Islamic State. According to Chairman Royce, “We anticipate there will be a vote on authorization of the use of force for such a plan. That would come within the 60-day window.” The Daily Beast has more on their statements.

Iraqi forces have enjoyed a number of successes against the Islamic State recently. The New York Times shares that a combination of Iraqi and Iranian troops, supported by U.S. air power, successfully repelled jihadi militants from their siege of the town of Amerli. According to the Guardian, Iraqi troops have reclaimed control of a strategic road connecting Baghdad to northern Iraq. Meanwhile, the Navy Times reports that, according to Pentagon spokesperson Rear Adm. John Kirby, the Islamic State continues to pose a threat to the Mosul Dam.

Protesters in Baghdad managed to shut down Parliament yesterday. The Wall Street Journal shares details.

The Wall Street Journal examines the reasons for the Islamic State’s overall success this summer. In a Foreign Policy opinion, J.M. Berger examines the struggle between al-Qaeda and the Islamic State for dominance in the jihadi movement.

Meanwhile, as a number of U.S. forces reenter Iraq, the Atlantic considers the withdrawal of troops from Afghanistan in a series of photographs. The AP also examines the end of NATO missions in Afghanistan.

President Obama is in Estonia today, ahead of a NATO summit in Wales. The Guardian notes that the current crisis between Russia and Ukraine has left Estonia and the other Baltic states feeling unsettled and “vulnerable.”

At the NATO meeting, Western leaders are expected to discuss a coordinated response to Russian aggression, reports the AP. The Times also considers the Western reaction to Russia. According to the Wall Street Journal, the European Union may increase sanctions on Russian companies.

According to Reuters, pro-Russian separatists have announced that they are close to regaining control of the airport in Donetsk. Meanwhile, the International Monetary Fund has stated that the Ukrainian government will likely need a greater cash infusion if the fighting in the east continues. The AP has more on the projected figures.

However, the Post reports Ukrainian President Petro Poroshenko and Russian President Vladimir Putin have agreed to the broad outlines of “a seven-point plan for a peace settlement.” In a statement today, President Obama noted his concern about whether Russia will “follow up.” The Wall Street Journal has the story.

Yesterday, Ben Bissell and Cody highlighted Russian President Vladimir Putin’s claim during a telephone conference that, “If I wanted to, I could take Kiev in two weeks.” Putin has objected, insisting that his words were taken out of context. According to USA Today, the Russian leader is prepared to release the full audio and transcript of the contested call. The Times shares a roundup of Putin’s statements since March with regard to Ukraine.

Reuters informs us that Syrian military forces have launched a new offensive on Jobar, a rebel-held district of Damascus.

According to the AP, Iranian air defense chief Gen. Farzad Esmaili yesterday announced the inauguration of new radar systems and surface-to-air missiles.

The Times informs us that, according to a senior Israeli Defense Forces intelligence official, Operation Protective Edge significantly weakened Hamas. Meanwhile, as part of a strategy to force Israel to withdraw from Palestinian territories, Palestinian President Mahmoud Abbas says he will pursue several international remedies, including accession to the treaty establishing the International Criminal Court. The Times shares that story, too.

NPR reports that Major Jason Wright, one of the lawyers for 9/11 “mastermind” Khalid Sheikh Mohammed, has resigned from the Army, having refused orders to voluntarily remove himself from the defense team in order to attend a mandatory graduate program. Cody shared the news with Lawfare.

Yesterday, the 2nd Circuit U.S. Court of Appeals ruled that photos and video of Mohammed al Qahtani, a Guantanamo detainee thought to the 20th 9/11 hijacker, may remain classified. A three-judge panel found that if the al Qahtani materials were released, they “could logically and plausibly be used by anti-American extremists as propaganda to recruit members and incite violence against American interests at home and abroad.” The AP, the Miami Herald and the Guardian share the story.

The 2nd Circuit U.S. Court of Appeals also heard oral argument yesterday in the ACLU’s case against the National Security Agency (NSA)’s bulk collection of telephony metadata under Section 215 of the USA Patriot Act. The Post recounts the proceedings. USA Today notes that the judges “expressed skepticism… about the government’s continued monitoring of Americans’ phone records.” Josh Gerstein of Politico also comments on the “surprisingly chilly reception [given]… to the government’s arguments for the legality of the surveillance.”

Defense One considers new appointments to the President’s Intelligence Advisory Board.

Reuters informs us that in a briefing yesterday, White House Press Secretary Josh Earnest stated that, “Securing the release of U.S. citizens [in North Korea] is a top priority.”

The Post highlights an article written by Air Force Captain Joseph O. Chapa on the public relations war in the use of drones.

The Post describes new armored exoskeletons developed by defense contractor Lockheed Martin for use by the U.S. military.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

Some recent military commissions news: On August 26th, Major Jason Wright, one of the attorneys representing Khalid Sheikh Mohammed, resigned from the Army after he was ordered to leave the legal team representing Mr. Mohammed at Guantanamo Bay in order to complete a graduate school program required for his promotion from Captain to Major. Wright had sought to have the order deferred—as he had done with respect to an earlier identical order, successfully—but the request was denied.

NPR’s Arun Rath spoke with Major Wright recently about his decision to resign, his concerns with Mr. Mohammed’s trial, and what he sees as the U.S. government’s “abhorrent leadership” in what he calls a “show trial.” You can find the full story here.

The Army issued this statement in response to Major Wright’s interview with NPR. Here’s the most relevant portion:

Deferral requests are initially reviewed by JAG Corps career managers in consultation with the officer and the officer’s supervising attorney. The decision to approve a deferral request is made on a case-by-case basis, balancing the need for the deferral and the need of the officer. In MAJ Wright’s case, The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, MAJ Wright was not the lead or sole counsel, and it ensured MAJ Wright remained professionally competent and competitive for promotion.

I just finished watching the video of the Second Circuit’s argument in ACLU v. Clapper, the challenge to Section 215.  Here are a few impressions.

While I don’t have a strong sense of how the court will rule, there was a lot of attention to the statutory question (does Section 215 authorize bulk collection?) and relatively less attention to the constitutional issue (does bulk collection violate the Fourth Amendment?). The judges on the panel seemed skeptical of the government’s statutory interpretation and also skeptical of the idea that the statute precluded judicial review.

Judge Lynch, who was the most active questioner, repeatedly floated the idea that the doctrine of constitutional avoidance should play an important role in the court’s analysis. (See 0:59, 1:10, 1:32)  I gather his thinking was that the doctrine should be used to allow statutory review of the program, at which point the court could enjoin the program on statutory grounds without reaching the underlying Fourth Amendment question.

I wonder how it would play out if the Second Circuit goes that way. Imagine the Second Circuit enjoins the program on statutory grounds and the Supreme Court grants cert, staying the Second Circuit’s ruling while the Supreme Court considers the case. Section 215 sunsets on June 1, 2015. Even if the Court can decide the issue in the coming Term, the Court is unlikely to rule before Congress acts.

Alternatively, perhaps the Supreme Court stays out to avoid ruling on a case that is so time-bound. But that creates a puzzle, too.  If the Second Circuit enjoins the program but the DC Circuit rules it is lawful, what does the government do if the Supreme Court doesn’t review the case?  Along those lines, the 29 minute mark, Judge Sack pondered the idea of perhaps ruling that the program is unlawful but staying the court’s own ruling given the pending litigation elsewhere. If the Second Circuit ends up enjoining the program on statutory grounds, I’m not sure how these procedural questions will play out.

My own particular interests focus on the Fourth Amendment more than the other issues, so here are some more detailed thoughts on the discussions relating to the Fourth Amendment:

Judge Lynch raised the question to the ACLU at the 39-minute mark of whether the existence of statutory authorization might be relevant to the constitutional question: In other words, does the absence of a clear statutory authorization for surveillance make any expectation of privacy reasonable? ACLU’s counsel didn’t have a good answer, but I think it’s worth noting that Supreme Court precedent appears to preclude that idea. The Supreme Court has indicated that statutory privacy laws and the Fourth Amendment are independent of each other. See, e.g., City of Ontario v. Quon, 560 U.S. 746, 764 (2010); Virginia v. Moore, 553 U.S. 164, 168 (2008); California v. Greenwood, 486 U.S. 35, 43 (1988).

That’s very sensible, I think. Otherwise, you need to reanalyze the constitutional question every time a statute is changed or a statutory power sunsets.  There would also be an extra-strong incentive for the government to oppose privacy statutes to avoid the half-loaf of a statute morphing into a full-loaf of constitutional protection.

Judge Sack raised the question at 1:21 of whether modern metadata analysis allows the government to get content, distinguishing Smith. In my view, the answer is clearly “no,” as there’s a big difference between getting hints as to contents and actually obtaining those contents. As Stuart Delery mentioned for the government but didn’t really drive home, metadata analysis has always given clues about content.

For example, back in the old days, colleges used to send out acceptances in big envelopes packed with promotional materials. Rejections were sent in a thin envelope with a 1-page letter. By looking at the outside of the mailing, you could pretty much know what was inside. But that didn’t mean that the government needed a warrant to see the outside of the mailing, or that observing the outside was the same as opening up the envelope. There’s still a fundamental distinction between the metadata analysis (seeing the outside of the envelope) and the content analysis (opening up the letter and directly seeing the contents). And that’s the same today with phone calls or e-mails as it has always been with letters.  Obtaining hints as to likely content is not the same as actually obtaining content.

Judge Lynch asked the ACLU  at the 24-minute mark about the telephone providers’ ability to conduct its own metadata analysis and reveal that information to private parties. That led to a rather odd discussion of whether such a procedure would be prohibited by Terms of Service or the Stored Communications Act. The discussion was odd because it’s seemingly irrelevant to the Fourth Amendment analysis, at least under current Supreme Court doctrine. It also included a misstatement by Judge Lynch. At one point, Judge Lunch suggests that the SCA would prohibit private providers from disclosing all of its customers’ metadata to a private entity. But that disclosure is clearly allowed under the SCA under 18 U.S.C. 2702(c)(6), which allows disclosure of non-content records to anyone other than a government entity.

Finally, Judge Sack asked whether Edward Snowden’s disclosure of the NSA surveillance meant that there was no expectation of privacy any more. That is, does knowing of the monitoring mean that the monitoring can’t violate the Fourth Amendment? I think the correct answer is that the disclosure of the monitoring is irrelevant to the Fourth Amendment question. Footnote 5 of Smith v. Maryland lamely suggests that this is so because the two-part test of Katz is “inadequate” to resolve the Fourth Amendment question when the surveillance is known. As I explain in this forthcoming article, though, the real reason disclosure is irrelevant is that what people actually anticipate will happen is irrelevant to the Katz inquiry.

The National Security Agency’s Anne Neuberger, the director of the NSA’s Commercial Solutions Center, gave this seminar recently at the Long Now Foundation. Full video is available at the web site. Here’s the audio:

Breaking News: ISIS has released a video that shows the murder of American journalist Steven Sotloff, the New York Times reports. In a previous video of the murder of American James Foley, ISIS had threatened to execute Mr. Sotloff if the United States did not end its bombing campaign in Iraq against the terrorist group. The Times notes that the same executioner appears beside Mr. Sotloff in the video, saying, “I’m back, Obama, and I’m back because of your arrogant foreign policy towards the Islamic State.” The SITE Intelligence Group said that ISIS has threatened to kill a third captive, a Briton identified as David Cawthorne Haines, if the attacks do not stop.

The video appears as the militant group confronts mounting pressure from American airstrikes and recent gains by both Iraqi and Kurdish forces. Yesterday, Jane told us that American airstrikes and Iraqi forces had broken the siege of Amerli. British fighter jets also escorted French and Australian humanitarian airdrops, which were meant to aid the city’s trapped civilians. And, in a sign of the strange bedfellows ISIS has united, the New York Times details how American warplanes and militias backed by Iran worked in tandem in Amerli against ISIS.

Elsewhere, Al-Jazeera reports that Kurdish forces and Shia armed volunteers have retaken the town of Sulaiman Bek, killing Mussab Mamoud, the town’s ISIS head, and Mazen Zaki, the military wing commander, along with more than 20 other Sunni rebel fighters.

And yesterday, President Obama sent a letter notifying Congress of the operation in Amerli, in which he described the attacks as “targeted” strikes that would be “limited in their scope and duration.” Writing today in Lawfare, Jack asks whether the President’s repeated and frequent War Powers Resolution letters are a new tactic to avoid the Resolution’s time limits on operations.

Amid eyewitness accounts that U.S. Special Operations Forces are currently engaged in direct support of Kurdish fighters, the Daily Beast asks, “Are American troops already fighting on the front lines in Iraq?” Perhaps more startling if true, the report suggests that German forces are on the ground as well. In the Wall Street Journal, German Foreign Minister Frank-Walter Steinmeier defends his country’s decision to arm Kurdish forces, but says that the move does not represent a fundamental change in German foreign policy.

In the New York Times, Julien Barnes-Dacey and Daniel Levy argue that to defeat ISIS, the West will have to move beyond the “false dichotomy” of supporting the Assad government or continuing a “halfhearted” policy of supporting Sunni opposition. They propose an anti-ISIS front that draws on both regime and opposition elements and encourages them to “train their guns on ISIS rather than each other.”

On Thursday, ISIS militants released yet another videotape showing militants decapitating a captive, this time a soldier from the Kurdish peshmerga. The Washington Post analyzes why the group chooses to clothe their victims in orange jumpsuits reminiscent of Guantanamo uniforms.

Human Rights Watch on Monday added a new entry to the steadily-growing list of alleged atrocities committed by ISIS, claiming the group is using cluster bombs to attack its enemies. The NGO asserts that over the last two months, ISIS militants used the bombs, which inflict damage indiscriminately, to push back Kurdish forces in Syria’s Aleppo Province. The New York Times has details.

The New York Times also reports that in response to information suggesting British citizens are actively fighting for ISIS in Mideast hotspots, UK Prime Minister David Cameron on Monday proposed legislation that would give police officers the right to seize passports of UK nationals suspected of traveling abroad to fight for radical militant groups. UK officials say over 500 citizens have gone to Iraq or Syria to fight, and half may have returned since then. The decision comes as the UK recently raised its terrorism threat level to “severe,” indicating a terrorist attack is “highly likely.”

Alarmingly, the reach of ISIS may be expanding to the east. The BBC writes that Commander Mirwais of Hizb-e Islami, a militant Islamist group in Afghanistan, said recently that his group may seek to link up with ISIS. Mirwais commended ISIS’s fighters, promising that if ISIS proved to be a true Islamic caliphate, they would seek to join forces with it.

ISIS may also be making inroads towards the south: Al-Jazeera reports that while the threat of an external attack by ISIS against Jordan, a key U.S. ally, is minimal, the Jordanian regime nevertheless is struggling to contain growing domestic support for the group. The article claims that ISIS’ success in the last few months is capturing the attention of young Jordanians, and stoking fears of an Islamist threat to the country’s moderate rulers.

Another day, another bombshell quote from Russian President Vladimir Putin. According to the Guardian, in a Friday phone call to outgoing European Commission President Jose Manuel Barroso, Putin claimed that Russian military forces “could conquer Kiev in two weeks.” Barroso relayed this at an EU summit on Saturday, regarding the crisis in Ukraine; Putin’s provocative claim then leaked to Italian paper La Republica.

The Kremlin’s response? NTV reports that in remarks on Tuesday, Yuri Ushakov, a Russian foreign policy spokesman, did not deny Putin had uttered the words in question. Instead Ushakov asserted that leaking a quote made in confidence does not befit a serious statesman, and further that that Putin’s quote had been out of context—though Ushakov did not make clear how.

Putin’s gambit comes as the Wall Street Journal reports that in Ukraine, Russian forces routed Ukrainian troops in the strategic town of Ilovaisk. The drubbing comes just a month after Ukrainian forces retook the city from pro-Russia rebels, and represents the latest victory for Russia as it advances deeper into Ukrainian territory.

The statement also figures in the context of increasing tensions between NATO members and Russia. The leader of one NATO member situated on Russia’s western flank, Estonia, made a request on Tuesday for a clear and visible NATO presence in his country. Reuters reveals that in an interview, Estonian Prime Minister Taavi Roivas called on the alliance to make sure that its “deterrence is strong enough so it will become unthinkable for Russia to go beyond (Ukraine).” The Prime Minister spoke on the eve of a visit by U.S. President Obama to the country. Estonia, along with the two other Baltic states, Latvia and Lithuania, is seen as especially vulnerable to Russian intervention. This is due not just to its reliance on Russian energy imports, but also to its demographic makeup. According to its 2011 census, Estonia is a country of roughly 1.3 million people, 25.2% of whom are ethnic Russians.

In response to NATO decisions to station crisis response forces in several Eastern European NATO member states, a top Russian official announced that Russia will “alter [its] military strategy towards NATO.” Mikhail Popov, a Kremlin adviser, criticized the alliance’s enlargement, and said the Kremlin views NATO’s actions in Eastern Europe as one of Russia’s key “external threats.” The nature of Russia’s forthcoming strategic changes remains unclear. The BBC has more.

The BBC also reports that the newly designated foreign affairs chief of the European Union, Federica Mogherini of Italy, said recently that NATO countries bordering Russia “need to be sure that Article 5 is not just a written text.” (Article 5 commits all NATO countries to defend another member that is attacked.) The comments come as Mogherini, who has only been foreign minister of Italy since February, faces criticism for perceived softness vis-a-vis the Kremlin. In an opinion piece written just a few days before her appointment, Thomas Wright of the Brookings Institution argued against choosing her for the job, pointing to her lack of experience and her history of allegedly pro-Russian language.

U.S. President Barack Obama and UK Prime Minister David Cameron are set to call for NATO members to increase their defense expenditures at this week’s NATO summit, the Telegraph reports. The two leaders will urge all 28 members to spend at least 2% of their GDP on defense. At the present moment, only 4 members currently reach that target.

Perhaps more importantly, NATO leaders are set to ratify a new addition to the defense treaty’s jurisdiction: cyberwarfare. The New York Times analyzes the change, which will stipulate that a cyberattack on any NATO member will be considered an attack on all.

China has come out against further EU sanctions on Russia. Reuters reports that Chinese Foreign Ministry spokesman Qin Gang said that new sanctions against the Russian Federation for its role in the conflict in Ukraine would only complicate the crisis further. His comments come as U.S.-Russian tensions over the issue spilled out during an APEC meeting in Beijing on Tuesday. The Wall Street Journal writes that Russian Energy Minister Alexander Novak and U.S. Deputy Energy Minister Daniel Poneman sparred over the implications of energy sanctions in the closed-door meeting, an argument that represented a “change in the usual atmosphere” of technical APEC conferences.

Speaking of energy, RBC reports that Slovakian energy company Eustream officially began exporting natural gas to Ukraine on Tuesday, a link that could ultimately satisfy 20% of the country’s annual consumption. According to a report provided by Reuters, Slovakian Prime Minister Robert Fico announced at a press conference that gas imports from Slovakia, Hungary and Poland should be enough to cover Ukraine’s midterm needs. In 2013, Russia supplied half of the gas Ukraine used, but Russian energy company Gazprom cut the imports in the wake of arguments over pricing and the instability in Crimea and eastern Ukraine.

If you are having trouble visualizing the continuously-evolving conflict in Eastern Europe, the BBC has an article chronicling the conflagration in maps. Foreign Policy also provides a piece examining the cost of the instability for civilians in the city of Luhansk.

The Times of Israel references a poll conducted in the wake of the recent conflict between Israel and Hamas, showing the latter’s popularity among Palestinians in Gaza and the West Bank has skyrocketed. A full 79% of respondents believe Hamas won the conflict, which caused over 2,000 fatalities on the Palestinian side and more than 70 in Israel. In related news, Palestinian Authority President Mahmoud Abbas announced a new plan to achieve a Palestinian state, complete with a full IDF pullout, within three years. Failing that, Abbas threatened unilateral moves, such as bringing Israel to the International Criminal Court, and ending security cooperation with Israel in the West Bank.

Last Friday, the Obama administration enacted new sanctions against Iran amidst concerns that Iran’s military is resisting international attempts to gain further access to the country’s nuclear program, the New York Times reports. The Times also notes in reaction to these measures and attacks from hardliners inside Iran, President Hassan Rouhani has toughened talk against the United States. Rouhani’s rhetoric suggested that the U.S. may be responsible for the Islamic State in Iraq and Syria, even as the two governments attempt to battle it back. Speaking of the new sanctions, the Washington Post quotes Rouhani as saying, “Sanctions are an invasion of the Iranian nation.” Still, Rouhani suggested that the sanctions “don’t damage the talks,” instead insisting that they merely “damage trust.”

The Washington Post reports that President Abed Rabbo Mansour Hadi of Yemen has dismissed the country’s cabinet and altered earlier promises on fuel subsidies made in an effort to reach an agreement with Shiite rebels holding protests across the country.

In Nigeria, the BBC divulges that Boko Haram recently seized the northeastern town of Bama, the second biggest town in Borno state.

Farther east, the New York Times reports that the U.S. military recently launched exercises against Al-Shabaab, a leading Islamist militant group operating in Somalia. For those looking to brush up on the history of the group and its aims, the Council on Foreign Relations provides a thorough summary. Bobby has a post on drone strikes in Somalia here.

In response to growing instability in North and West Africa at the hands of Islamist militants, the Washington Post announced yesterday that the Pentagon concluded deals with the government of Niger to open a second drone base in the city of Agadez. The installation is the United States’ second in Niger and third in the region.

Speaking of Islamist insurgencies, the New York Times writes that Islamist militias seized control of the Libyan capital Monday.

Pivoting to South Asia: Tanvi Madan of the Brookings Institution provides a rundown of the first 100 days of Indian Prime Minister Narendra Modi’s foreign policy.

The Washington Post writes that in Pakistan, Prime Minister Nawaz Sharif clings to power, with protesters ramping up their assaults on government buildings. The three-week-long protests have led to increasing fears that the government of the nuclear-armed power could collapse. However, after the protests spread from Islamabad to other Pakistani cities, Pakistan’s parliament offered support to Sharif. Opposition leader Imran Khan has also signaled that he may be willing to meet with a conservative politician who has offered to mediate between Khan and the Sharif government. Reuters has more on the ongoing crisis.

China: the New York Times reports that democracy backers in Hong Kong are pondering how to carry out their threat of widespread protests in the wake of Beijing’s decision to restrict the list of candidates that can run for office in the territory. Beijing made the announcement on Sunday that Hong Kong would have to follow its directives for any possible election or keep the current system in place where the city’s executive is not popularly elected. In related news, a pro-democracy leader and prominent hedge fund manager claimed today that a leading business newspaper, the Hong Kong Economic Journal, canceled his weekly column at the behest of the central government in Beijing. If true, this would be just the latest episode in the continuing fight over media freedoms in the semi-autonomous city.

In the New York Times, Charlie Savage provides an in-depth look into the remaining inmates imprisoned in Guantanamo, and speculates on the future of the facility there.

Finally, the Wall Street Journal reports on today’s argument before the Second Circuit, regarding the NSA’s bulk collection of telephony metadata. The ACLU filed the lawsuit against the agency in June of last year, just days after news reports revealed the program using the leaks by Edward Snowden.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

To the best of my knowledge, the U.S. government has not asserted that al Shabaab as a whole is an associated force of al Qaeda engaged in hostilities against the United States subject to the 2001 AUMF. Nonetheless, the public record reveals that we do use lethal force, from time to time, in Somalia against particular al Shabaab figures. Those strikes must depend either on an independent Article II power argument, or else on the claim that the particular target either was dual-hatted as an al Qaeda member or else had individually crossed the line (perhaps in conjunction with some larger faction within the al-Shabaab network) into “associated forces” status under the AUMF.

Against that backdrop comes news today of a drone strike on Monday targeting al Shabaab leader Mukhtar Abu Zubeyr, better known as Godane. Several years ago, Godane made a public profession of loyalty to bin Laden, and purported to place al Shabaab as a whole within the al Qaeda network (though it appears that some faction leaders within al Shabaab may not have preferred that course). Perhaps, then, the 2001 AUMF was the domestic law justification for this particular strike. Then again, bearing in mind the 120 airstrikes carried out in Iraq over the past several weeks based exclusively on Article II authorities, it is hardly obvious that the administration believes it would have to link the Godane strike to the AUMF in order to justify it in domestic law terms. Consider the possibilities:

Humanitarian grounds: The available intelligence might have suggested he was involved in plotting an attack implicating the humanitarian rationale that has been used vis-a-vis Iraq. This seems unlikely, but can’t be ruled out. The possibility draws our attention, at any rate, to the question of just what sorts of threats to civilians–what scale, for example–are required to trigger this rationale.

Defense of US forces: The U.S. military has an advisory presence in Mogadishu, meant to coordinate with the Somali government effort to suppress al Shabaab. This sounds much like the U.S. military presence in Erbil and Baghdad. Might the strike on Godane, or future strikes on other al Shabaab targets, be justified on force-protection grounds akin to the arguments raised first when U.S. aircraft struck IS targets approaching Erbil and then later when the same argument was made to help explain U.S. airstrikes on IS targets at the Mosul Dam (based on the theory that collapse of the damn threatened US lives downstream in Baghdad)? Again, we can’t answer without the relevant intel, but asking the question highlights the uncertain scope of the rationale.

Having a good argument that Godane was within the organizational and individual scope of the 2001 of course spares the need to contemplate such arguments, or other Article II claims that might be made (such as claims based on the need to preserve regional stability or based on the idea that Godane posed a constant (and therefore “imminent”) threat to American lives apart from protecting US forces in the area). At any rate, it would be good to have a better read on just what the justification was in this instance.

UPDATE: Ryan Goodman has a good post here at Just Security elaborating the point that the administration has not (so far as we know) determined that al Shabaab as a whole has crossed into “associated forces” status.  

You can watch the video of the argument in ACLU v. Clapper here. The argument goes almost two hours. C-SPAN did a nice job with the video, so it’s a pleasure to watch. I hope to have some thoughts on the substance later today.

That seems to be the sum and substance of the Second Circuit’s ruling today.  The 3-judge panel’s decision opens:

Appellant Center for Constitutional Rights seeks disclosure by the government, pursuant to the Freedom of Information Act (“FOIA”), of certain videos and photographs of a high profile Guantanamo Bay detainee, Mohammed al‐Qahtani, who is believed to be the so‐called “20th hijacker” in the September 11, 2001 terrorist attacks on the United States.

We agree with the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) that the government has met its burden of establishing that these images are exempt from disclosure pursuant to FOIA Exemption 1, which authorizes non‐disclosure of records that are properly authorized by Executive order to be kept secret in the interest of “national defense or foreign policy.” 5 U.S.C. § 552(b)(1). The declarations submitted by the government establish with adequate specificity that government release of images depicting al‐Qahtani—one of the most high‐profile Guantanamo Bay detainees, whose treatment at Guantanamo has been widely publicized—could logically and plausibly harm national security because these images are uniquely susceptible to use by anti‐American extremists as propaganda to incite violence against United States interests domestically and
abroad.

Accordingly, we AFFIRM the September 12, 2013 judgment of the District Court.

Yesterday President Obama sent a War Powers Resolution (WPR) letter to Congress concerning U.S. airstrikes “in support of an operation to deliver humanitarian assistance to civilians in the town of Amirli, Iraq.”  This is the third Iraq WPR letter to Congress in a month, and the sixth this summer.  In June the President sent three WPR letters – the first (June 16) on the initial deployment of 275 soldiers to protect the embassy; then another (June 26) on further troops to protect the embassy and increased intelligence-gathering against the Islamic State; and a third (June 30) for ore troops to protect the embassy.  Six weeks later, on August 8, the President sent a WPR letter concerning the use of force in Iraq to stop the “current advance on Erbil by the terrorist group Islamic State of Iraq and the Levant and to help forces in Iraq as they fight to break the siege of Mount Sinjar and protect the civilians trapped there.”  On August 17, he sent a letter concerning the use of force in Iraq “to support operations by Iraqi forces to recapture the Mosul Dam.”  And then yesterday’s letter on Amirli.  (John recently summarized how these WPR letters are typically generated.)

Such frequent letters to Congress about discrete missions within a single country are not typical.  Typically the President sends one WPR letter to cover the use of force within a country, and then updates that use of force as part of a biannual consolidated report.  For example, with respect to the Libya intervention, the President sent a letter to Congress on March 21, 2011, and then updated Congress on the Libya uses of force only once, in his June 2011 mid-summer consolidated report,  even though U.S. drones hit many different targets in Libya over a nine-month period.  In short, the President did not separately report every discrete military initiative in Libya.  Nor, of course, has he done so in Afghanistan or Yemen or Somalia, opting instead to update the Congress in summary fashion on the use of the U.S. Armed Forces in those nations every six months. (The June and December consolidated reports from 2013 can be found here and here.)

Why, then, has the President sent Congress six narrowly tailored WPR letters related to Iraq since mid-June?  I can think of two possible explanations.

First, the President wants to keep Congress super-informed about what he is doing in Iraq.  I doubt this is the reason, or at least the main reason, since the information in the letters was publicly known (or about to be).  Relatedly, the administration might want to emphasize to Congress that each use of force is limited in scope and time, though in the aggregate such discrete reporting might have the opposite effect.

Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq.  (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)  What follows is my analysis of this second possibility. Read more »