Last week, we argued that the public discussion surrounding two of the government’s most controversial mass surveillance programs – PRISM and Upstream – has not sufficiently acknowledged the broad scope of collection under these programs, which take place under section 702 of the Foreign Intelligence Surveillance Act (FISA). In short, hiding behind the counterterrorism justifications for section 702 is a broad surveillance program that sucks up massive amounts of irrelevant private data.

Today we show why, even though digital surveillance conducted under section 702 is directed overseas, such efforts collect substantial amounts of Americans’ private data. Next week we show how that data can be used for multiple purposes that have nothing to do with foreign intelligence or national security, including criminal investigations.

Our efforts come as lawmakers begin to debate the merits of the PRISM and Upstream surveillance programs ahead of section 702’s December 31, 2017 sunset date. We hope to clear misperceptions about the nature of a surveillance regime that is inconsistent with both the US Constitution’s “reasonableness” requirement as well as international human rights norms that require surveillance to be necessary and proportionate.  Continue Reading »

A series of posts at Just Security have focused on the rules that apply to U.S. and U.K. support for the Saudi-led coalition’s military operations against the Houthi rebels in Yemen. A key question is whether supporting States, like the United States and the United Kingdom, avoid becoming a “party” to the armed conflict (and thus being bound by international humanitarian law) by providing assistance that stops short of engaging in direct combat. What type of support will render an assisting State a party to this conflict?

I. Current scope of U.S. and U.K. support

U.S. assistance to the Saudi-led coalition has included providing weapons, sharing intelligence, targeting assistance, and aerial jet refueling. In March last year the spokesperson for the NSC declared that in support of the Gulf Cooperation Council’s actions against Houthi violence, “President Obama has authorized the provision of logistical and intelligence support to GCC-led military operations.  While U.S. forces are not taking direct military action in Yemen in support of this effort, we are establishing a Joint Planning Cell with Saudi Arabia to coordinate U.S. military and intelligence support.”

In the UK, a joint report released last week by the House of Commons Business, Innovation and Skills and International Development Committees and another report by the Foreign Affairs Committee both state: “The UK’s support for Saudi Arabia’s military intervention in Yemen has been extensive while remaining short of engaging in the actual combat. … Our involvement extends from providing the planes and bombs for airstrikes to UK personnel in the Joint Combined Planning Cell and Saudi Air Operations Centre.”

This type of support is not exclusive to the armed conflict in Yemen. For example, we witnessed similar assistance when the U.S. provided aerial refueling and ferried allied soldiers from African nations to support France in the armed conflict in Mali in 2013.

II. Approaches for determining whether a State is a party to a pre-existing non-international armed conflict (NIAC)

In a context such as this particular conflict in Yemen, in which the U.S. and U.K. are not directly engaged in fighting, the traditional 2-pronged test to find them party to a non-international armed conflict (a certain intensity of fighting and level of non-state armed group organization) won’t be met as there are no direct hostilities between them and the Houthis. Nevertheless, as I set out in earlier posts at Just Security in 2015 (see here, and here), two approaches can assist in determining, from the facts, whether a country has become a party to a pre-existing NIAC for the purposes of applying international humanitarian law (IHL): (1) the “support-based approach”; and (2) the concept of “co-belligerency” under the international law of neutrality. Continue Reading »

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

SYRIA

The US airstrikes on Syrian troops were “definitely intentional,” Syrian President Bashar al-Assad told the AP, and the US is to blame for the collapse of the cease-fire brokered with Russia.

Meanwhile, there is “strong” evidence that Russia carried out the airstrike on a UN aid convoy in Syria Monday, UK Foreign Secretary Boris Johnson said. [The Guardian’s Julian Borger]

Secretary of State John Kerry called for an immediate grounding of all military aircraft in “key areas” of Syria yesterday, in a last-ditch effort to preserve the ceasefire agreement. [Financial Times’ Geoff Dyer and Jack Farchy]

Kerry also accused Russia of inventing its “own facts” to explain Monday’s deadly attack on a UN aid convoy in Syria at a UN Security Council Meeting yesterday, after Russian Foreign Minister Sergei Lavrov first suggested it was perpetrated by terrorist ground forces in the area, and then implied it could have been the fault of a US drone, Karen DeYoung reports at the Washington Post.

Lavrov also sought to absolve the Syrian military of responsibility for the attack yesterday, saying it was not able to fly at night, when the attack took place. [New York Times’ Neil MacFarquhar]

While the US and Russia have previously butted heads over critical Syrian resolutions, the agenda for yesterday’s discussion did not even include a suggested course of action, instead paving the way for a meeting today in New York that will involve Kerry, Lavrov and their counterparts in over a dozen other European and Arab countries. [AP’s Bradley Klapper]

The international community’s credibility in upholding “our common humanity” is at risk of being destroyed by its failure to halt the war in Syria, UN Secretary-General Ban Ki-moon said yesterday as he called for full UN Security Council support for the Special Envoy working to convene formal peace talks.

The UN will resume aid deliveries suspended after the attack on the convoy, it said yesterday, the AP’s Philip Issa reports.  Deliveries to unspecified parts of Syria will begin as early as today, a spokesperson for the UN Office for the Coordination of Humanitarian Affairs said.[Al Jazeera]

Airstrikes on rebel-held parts of Aleppo killed dozens of Syrians overnight in what residents described as some of the most intense bombardments in months, Kareem Shaheen reports at the Guardian.

“Dark days lie ahead” unless John Kerry can convince his Russian counterpart to renew the ceasefire in Syria, observes the Economist.

“This is how Russia bombed the UN convoy.” Pierre Vaux at The Daily Beast lays out what he says is the “mounting body of evidence that “the Syrian regime and, in particular, the Russian military, hold responsibility for the atrocity.”

The evacuation of hundreds of Syrian rebels from their last foothold in the city of Homs began today, Reuters reports. The fighters and their families will head to the rebel-held Homs countryside.

Politics, not fighting, will bring the Syrian civil war to an end, Iran’s President Hassan Rouhani, whose country supports the Assad regime, said yesterday. [NBC News’ Jon Schuppe]

Russia will send its only aircraft carrier to waters off Syria’s coast, it announced yesterday. [CNN’s Tim Hume, Schams Elwazer and Bharati Naik]

US-led airstrikes continue. US and coalition forces carried out eight airstrikes against Islamic State targets in Syria on Sep. 20. Separately, partner forces conducted 14 strikes against targets in Iraq. [Central Command]  Continue Reading »

Last Thursday, the House Intelligence Committee (HPSCI) issued a report condemning Edward Snowden and its members unanimously urged President Obama to decline public calls to grant him a pardon. Pulitzer Prize-winning journalist Barton Gellman, who received NSA documents from Snowden, damned the HPSCI’s report as “aggressively dishonest,” ticking off a fistful of errors that swell by the day.

More damning than the report’s apparent errors and falsehoods, however, is the committee’s missed opportunity “to perform any reflection or self-criticism concerning their own role in the Snowden matter,” in the words of Steve Aftergood of the Federation of American Scientists. What would happen if the HPSCI held up a mirror?

Well, to start, former Congressman Rush Holt, who served on the committee, wrote in 2014 that “most members of the committee see their role as enabling the intelligence agencies to operate unencumbered.” Only rarely does it check the overexertion of power by the executive branch. This is the opposite of what Congress intended when it created the HPSCI in the 1970s.  Continue Reading »

In the United States, concerns over the conduct of the Saudi-led coalition in the war in Yemen have grown in intensity in recent weeks amid reports that US-supplied weapons have been used directly in the conflict, including in the bombing of an MSF hospital.

Some members of Congress have responded by trying to block a reported $1.15 billion arms sale to Saudi Arabia, with bipartisan legislation reflecting its Senate counterpart being introduced into the House yesterday by Reps. Lieu, Mike Mulvaney (R-SC) and Tulsi Gabbard (D-HI). How novel is this initiative? More precisely, when in the past has Congress or the Executive terminated, suspended or reduced arms sales or security assistance?

A quick review of the past 40 years shows that such action occurs more often than you might think. The list of examples below is not meant to be comprehensive, nor does it include an analysis of the specific circumstances or legal frameworks concerning each action. These examples are, nevertheless, hopefully instructive.

• In 1974, President Gerald Ford suspended issuance of new Foreign Military Sales credits and guarantees and major new cash sales to Turkey from July to October 1974. Subsequently, Congress passed a ban on military sales, subject only to temporary waiver by the President, which was used on at least one occasion.

• In 1975, following an amendment tabled by Sen. Edward Kennedy, Congress prohibited Chile from receiving any military assistance, extending this indefinitely in 1976, and to Argentina in 1978. Similar initiatives were undertaken in the late 1970s in respect of Uruguay.

• As far back as 1977, Mark L. Schneider, Deputy Assistant Secretary for Human Rights testified before the Subcommittee on International Organizations of the House International Relations Committee that “we have halted security assistance programs and withheld commercial licences for military equipment for armed forces in several countries which have engaged in serious human rights violations. No country can assume that it has a blank check to obtain arms from the United States, but especially those with serious human rights violations.”

Continue Reading »

Ryan Goodman raised a great question yesterday about the US-Russia deal on Syria: may the United States coordinate military operations with Russia if Russia is highly likely to engage in serious violations of the law of armed conflict when conducting its part of the operations? The question might be moot if the deal unravels, which seems to be happening. And because its details are not public, we don’t know exactly how the United States and Russia would coordinate on Syria. Still, it’s worth pondering the legal risks for the United States, as it thinks about its next steps in Syria.

I see two plausible bases for the United States to be responsible under international law as a result of Russian violations. First, the United States might be responsible if it aids or assists Russia in violating the law of armed conflict. Under the customary law on state responsibility, a state is responsible if it: (1) intentionally and/or knowingly, (2) gives another state aid or assistance, (3) that contributes to some internationally wrongful conduct, (4) that the assisting state may not itself commit. In other words, the United States might be responsible if it helps Russia do what it itself may not do—here, engage in gross violations of the law of armed conflict. Continue Reading »

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

IRAQ and SYRIA

Russia was responsible for the bombing of an aid convoy heading for a town near Aleppo, Syria, US officials said yesterday. [New York Times’ Eric Schmitt, Michael R. Gordon and Somini Sengupta]  Two Russian war planes were involved in the attack, US officials told the BBC. Russia strongly denies involvement and says the incident that left 12 aid workers and an unknown number of civilians dead was caused by fire on the ground and not by an air strike.

The Syria ceasefire is “not dead,” Secretary of State John Kerry said yesterday as he emerged from a meeting of the Syria Support Group involving senior officials from 23 nations on the sidelines of the UN General Assembly, during which little more was agreed to other than to meet again this Friday, according to Reuters’ Jeff Mason and Michelle Nichols.

Kerry’s optimism “showed a shocking tolerance for atrocities committed by forces with which the United States is proposing to ally itself,” says the Washington Post editorial board.

UN officials went ahead with the doomed aid delivery despite warnings from other UN staff and Western-backed rebels that the area wasn’t safe, the Wall Street Journal’s Maria Abi-Habib reports.

A plan to arm Syrian Kurdish fighters combating the Islamic State is under discussion at the National Security Council as a way of speeding up the offensive against the terrorist group. [New York Times’ Eric Schmitt]

The US point of contact was not there to receive Russia’s message that US coalition airstrikes were hitting Syrian forces, coalition spokesperson for the war against the Islamic State in Iraq and Syria Air Force Col. J. T. Thomas said yesterday. [The Hill’s Kristina Wong]

An attack on a medical facility in rebel-held territory outside Aleppo killed four staff belonging to the International Union of Medical Care and Relief Organizations last night, reports the AP. The attack, by Russian or Syrian warplanes, also killed at least nine rebels, Reuters reports.

A Syrian warplane crashed north of Damascus today. Reuters reports that it was not clear if it was shot down or crashed due to a technical fault.

President Assad made his intentions clear as soon as the ceasefire started last Monday, Nick Hopkins observes at the Guardian, and his actions underline not just his confidence that he is unlikely to face any sanction but also the difficulties faced by aid groups in Syria.

“Powerful patrons” on both sides of the Syria conflict “have blood on their hands,” UN Secretary-General Ban Ki-moon said in his final speech at the annual UN General Assembly in New York yesterday, Edith M. Lederer and Matthew Pennington report at the AP.

“That’s enough.” French President François Hollande urged world powers to end Syria’s civil war at the UN General Assembly yesterday, saying it would “go down in history as a shame for the international community if we do not quickly put an end to it.” [New York Times’ Aurelien Breeden]

Most mistaken US strikes over the years come down to two main reasons, according to military officers and experts: faulty intelligence and what military strategists call the “fog of war” – confusion on the battlefield, Matthew Rosenberg writes at the New York Times.

Iraqi forces launched an operation to retake the northern town of Sherqat from the Islamic State, 100 kilometers south of Mosul and a stepping stone in the campaign to liberate Iraq’s second-largest city from the insurgents, reports Al Jazeera.

British Prime Minister Theresa May will not allow an “industry of vexatious allegations” against UK troops over claims of abuse in Iraq, she said, as concerns have been raised over the “industrial scale” of claims lodged with the Iraq Historic Allegations Team relating to the 2003 invasion. [BBC]

US-led airstrikes continue. US and coalition forces carried out nine airstrikes against Islamic State targets in Syria on Sep. 19. Separately, partner forces conducted 20 strikes against targets in Iraq. [Central Command]  Continue Reading »

While Secretary John Kerry appears to be trying to resuscitate the US-Russia deal in Syria, one issue worth considering is whether a major step in the US-Russia plan is permitted under international law. As announced by Sec. Kerry, a second stage of the plan would involve coordinated U.S. and Russian military strikes against ISIL and al Nusra. The legal question boils down to this: Is the United States legally permitted to coordinate military operations with Russia if it is highly likely or practically certain that Russia will engage in serious violations of the law of armed conflict in carrying out its part of the operations?

This issue has been discussed in a somewhat related context at Just Security by the highly respected Claus Kreß. In his post, Professor Kreß addressed the question whether the United States could accept Syria’s invitation to militarily coordinate strikes against ISIL given the Assad regime’s commission of war crimes. Here’s the key paragraph in Professor Kreß’s analysis: Continue Reading »

Tuesday, September 20

2:30pm – Senate Select Committee on Intelligence – Briefing: Intelligence Matters – closed meeting (here)

2:45pm – Senate Committee on Foreign Relations – South Sudan: Options in Crisis – (here) 

Wednesday, September 21

10:00am  – House Committee on Armed Services –15 Years after 9-11: The State of the Fight Against Islamic Terrorism (here)

10:00am  – House Homeland Security Committee –Stopping the Next Attack: How to Keep Our City Streets from Becoming the Battleground (here)

1:00pm – Senate Select Committee on Intelligence – Briefing: Intelligence Matters – closed meeting (here)

2:00pm – House Committee on Armed Services – Seapower and Projection Forces in the South China Sea (here)

2:30pm – Senate Judiciary Committee – Subcommittee on Immigration and the National Interest – Oversight of the Administration’s FY 2017 Refugee Resettlement Program (here)

Thursday, September 22 Continue Reading »

The past couple of months have been tumultuous in Turkey. In short order, an ill-conceived military coup was followed by popular mass protest, the quick return of President Recep Tayyip Erdogan to power, and a wave of repression ranging from military and judicial purges, to state restrictions on a panoply of basic human rights protections, to allegations of “widespread human rights abuses” by state actors. One of the most disturbing elements of Ankara’s reaction to the failed coup is its decision to use the ensuing state of emergency as an excuse to forgo commitments to human rights that it made under several major international treaties, a move that cannot be ignored by the international community.

On July 20th, a state of emergency was declared in Turkey putting several inter-related measures into effect. Under the state of emergency, Prime Minister Erdogan can pass legislation via decree and without Parliamentary input, the Turkish military can act abroad to “capture or incapacitate persons who have carried out disruptive actions in Turkey;” the government can restrict media broadcasts and impost curfiews; Turkish residents and visitors are required to carry IDs at all times; state police have the power to conduct on-the-spot searches (without reasonable cause); suspects may now be detained for a maximum of thirty days (increased from a four day maximum) with no access to judicial oversight. The emergency measures also authorized the closure of 1,043 private schools; 1,229 charities/foundations; 19 trade unions; 15 universities; and 35 medical institutions for purported ties to Fethullah Gulen and the Fetullahist Terrorist Organization (FETO).

Later in the summer, Turkey made several formals claims (or derogations) to its partners in two enormously important human rights treaties that it can no longer fully and effectively protect human rights on the basis of national emergency. On July 21, Turkey informed the UN of its derogation from the International Covenant on Civil and Political Rights under Article 4, specifically citing derogation from Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26, and 27; and effective on August 2.  On July 22, Ankara notified the Council of Europe of its derogation from the European Covenant on Human Rights under Article 15. This notification does not indicate specific articles.

This is not the first time that Turkey has derogated from its international human rights obligations. In fact, as I have outlined at length elsewhere, Turkey might well be described as a “serial” human rights derogator. Continue Reading »