On Wednesday, we received news from the New York Times of a revised draft Executive Order that would require the Secretary of Defense to “maintain and continue to use” Guantanamo Bay but wouldn’t preclude the defense secretary from using other facilities “available to the United States for the custody of military detainees.” These two options, using Guantanamo Bay and not using Guantanamo Bay, trigger serious questions about how the Trump administration intends to use detention operations in response to national security threats, and whether he’ll do so lawfully.    

The draft executive order is, however, sparse on details and doesn’t provide a lot of answers. But another place to look is last week’s raid in Yemen that the Navy’s SEAL Team 6 conducted with the support of forces from the United Arab Emirates.  In that raid, a firefight ensued, an Osprey rescue helicopter crashed, U.S. airstrikes were called in, and there were casualties on all sides, including the death of Chief Special Warfare Operator William “Ryan” Owens and the reported death of an eight-year-old girl.

But one question that has yet to be looked at in detail in the context of the Yemen raid is the issue of detention. This is reasonable as several media outlets reported that the U.S. forces didn’t take prisoners during the operation. However, the Trump administration (and certainly the military) should have planned for various contingencies, including potential detentions. The military presumably would have wanted to gather intelligence from individuals captured during the raid. Other possible scenarios could have included surrendering fighters, wounded adversaries, and abled-bodied civilians thought to pose imperative security risks. Each of these eventualities would have implicated a variety of intricate legal rules with associated logistical consequences about what to do when someone enters your custody and care. In other words, it would have required advanced planning. There’s also a fair chance Yemen and the UAE would have asked the US: What happens if someone is captured? Continue Reading »

On Wednesday morning, the New York Times published a revised draft of a proposed Executive Order (EO) concerning the detention of enemy combatants.  The draft EO reflects the Administration’s intent to engage in broader detention operations and to use the Guantanamo Bay detention facility (GTMO) to house future detainees.  As others have observed, the draft avoids mention of potential military commission prosecution or CIA-administered detention.

While bare, the draft EO does raise several questions and leaves others unanswered.  Jack Goldsmith and Ryan Goodman have noted the significant legal risk associated with bringing ISIL-affiliated individuals to GTMO.  The Obama administration maintained since 2014 that the 2001 AUMF applies to the use of force against ISIL. This position has been bolstered by Congressional action, including continuing appropriations for the counter-ISIL effort. The Trump administration is unlikely to diverge from those legal positions.

No court, however, has yet ruled on the propriety of the government’s reliance on the 2001 AUMF in the counter-ISIL effort.  The only legal challenge brought to date was dismissed on standing grounds. Future detainees whose primary affiliation is with ISIL will certainly challenge their detention through habeas petitions.  This will require the D.C. federal district court to rule on the merits of the administration’s domestic legal basis for the use of force against ISIL. A new, ISIL-specific AUMF could preempt such challenges but would raise other risks.

The draft EO also revokes EO 13492, which Obama issued on January 22, 2009.  EO 13492 is significant for two main reasons.  First, it directed the closure of GTMO and release or transfer of all remaining detainees within one year – which obviously did not occur.  Second, it established a framework for a merits review of the basis for detention of all individuals then held at GTMO.  A year later, an interagency task force produced a final report that recommended dispositions – transfer or release, hold for prosecution, hold in continued law of war detention, maintain in conditional detention – for each of the 240 detainees then housed at GTMO.

The salient point is that the draft EO contemplates no framework for determining the disposition of future detainees.  Its reference to a 30% recidivism rate (reengagement or suspected reengagement) suggests that the administration does not contemplate a disposition other than continued law of war detention.  (The 30% figure includes detainees transferred prior to 2009.  As of September 2016, the IC estimated that 5.6% of those transferred since 2009 had reengaged, with an additional 6.8% “suspected” of reengagement.)  That drafting choice may box in the administration should it ultimately have to grapple with appropriate dispositions for any future detainees.  (Likewise, while the draft EO does not affect the Periodic Review Board process established by EO 13567, it does not create a similar process to individuals captured and detained after January 22, 2009.) Continue Reading »

The former chief of President Trump’s EPA transition team recently stated that the President “will definitely pull out of Paris climate change deal.” But according to a new law review article by former Legal Adviser to the State Department and Just Security‘s Harold Koh, that may be “easier said than done.”

The Iran Nuclear deal raises similar questions. On Sunday, George Stephanopoulos had the following exchange with Vice President Pence:

STEPHANOPOULOS: But Secretary Mattis and Secretary Tillerson say, “We have to stand by that deal.” Now, is that administration policy?

PENCE: Well, we’re evaluating that as we speak.

Koh argument is relevant as well to that evaluation.

In Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking, Koh argues that the conventional framework for evaluating the legality of international lawmaking is outmoded, and proposes a set of standards that aims to better reflect the modern practices and constitutional principles of the United States.

With a focus on two case studies—the Paris Climate Change Agreement and the Iran Nuclear Deal—Koh argues that, under this new conceptual framework, international agreements like these can be “stickier than might be assumed,” even when they don’t meet the formal requirements of the traditional legal doctrine.

You can read this timely piece here in the Yale Law Journal (see especially “Part IV. Can a New President ‘Cancel’ These Agreements”).

Image: U.S. Secretary of State John Kerry holds his two year-old grand daughter at the United Nations Signing Ceremony for the Paris Agreement climate change, April 22, 2016 – Spencer Platt/Getty

Today marks the launch of Tallinn Manual 2.0, a key text on how existing international law applies to cyber operations. It was authored by 19 international law experts, and Just Security‘s Michael Schmitt led the initiative. To kick off the launch, the NATO Cooperative Cyber Defence Centre of Excellence, the Atlantic Council, and the Netherlands Embassy to the US are hosting an event in Washington today at 3:30 p.m. The live webcast of the event can be viewed here.

Liis Vihul, the managing editor of the Tallinn Manual 2.0, will give an overview of the analysis. A panel discussion on international law and cyber operations will feature Schmitt, Rutger van Marissing (senior policy officer at the Netherlands Ministry of Foreign Affairs) and Jason Healey (senior fellow at the Atlantic Council and Columbia University).

The focus of the original Manual was on the most severe cyber operations, those that violate the prohibition of the use of force in international relations, entitle states to exercise the right of self-defence, and/or occur during armed conflict. Tallinn Manual 2.0 adds a legal analysis of the more common cyber incidents that states encounter on a day-to-day basis and that fall below the thresholds of the use of force or armed conflict. The expanded edition, like its predecessor, represents the views of its authors, and not of NATO, the NATO CCD COE, its Sponsoring Nations, or any other entity. More information is available at https://ccdcoe.org/research.html. The updated and considerably expanded second edition is published by Cambridge University Press.

Image: Getty

Over the past week, the White House appointed five new senior National Security Council staff officials. Two in particular signify the emerging and disruptive influence Billionaire tech investor Peter Thiel could have on U.S. national security and how he might bring his venture capital perspective — visionary but unconventional leaders, big bets on disrupting established industries — to national security.

Kevin Harrington, a Thiel acolyte, has been named Deputy Assistant to the President for strategic planning. Since early December, Harrington served on the Trump “landing team” at the Commerce Department, where his job was to help hire people for open positions and identify policy priorities. Before that, he worked at hedge funds started by Thiel. Michael Anton, a former executive at an investment management firm and speechwriter, was named Deputy Assistant to the President for Strategic Communications, virtually the same job that Obama advisor Ben Rhodes held.  POLITICO reports that he received the position “thanks to an entree from Thiel.”

The Harrington appointment is unusual for a couple of reasons.  First, the elevation of this position to “Deputy Assistant to the President,” the second highest rank within the White House, suggests that Harrington will have a larger role than his predecessors.  Although the strategic planning office is one of the most important at the NSC, it is typically staffed by a lean team of forward thinkers and the head of the office is ranked accordingly.

Speaking Monday at the Foundation for Defense of Democracies (FDD) in Washington, Harrington explained that the higher rank signified an increased priority on strategy at the NSC.

“There’s a thought that the NSC typically gets bogged down putting out fires and the day-to-day minutiae — and certainly a lot of it’s not minutiae — but it’s difficult to strike a balance between doing the urgent and doing the important,” he said. “There is an elevation of strategic planning in the new NSC structure to focus on what are some of the important things rather than what are the things that we need to do tomorrow or today.”

Second, Harrington has a conspicuous lack of foreign policy experience in a role that typically values extensive tenure in the field.  The NSC’s top strategic planner needs a deep understanding of the range of national security challenges confronting the United States and how they interact, as well as a working knowledge of the tools of U.S. national power and how they can be combined to achieve desired outcomes.

Harrington’s immediate predecessor, Salman Ahmed, had extensive experience at the United Nations and taught at Princeton before joining Susan Rice’s team.  Well-respected Democratic foreign policy strategist Derek Chollet held the job during Obama’s first term.  In some ways, Harrington is a classic Thiel executive.  Thiel is known for hiring and investing in visionary leaders (e.g., Mark Zuckerberg) who may not be as thoroughly steeped in the industry as their competitors.  The question is whether the “disruptor” model carries over to foreign policy, where the most successful strategists have been people like Brent Scowcroft, Richard Holbrooke, and Michele Flournoy, people with years of highly relevant government experience under their belt.

As for Harrington’s background, according to his White House bio:  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.

TRUMP ADMINISTRATION FOREIGN POLICY

President Trump and his Turkish counterpart Recep Tayyip Erdoğan discussed “the close, longstanding relationship” between Turkey and the US and their “shared commitment to combating terrorism” in a phone call yesterday, Carol E. Lee reports at the Wall Street Journal.

Trump and Erdoğan agreed to act jointly against the Islamic State in the Syrian cities of al-Bab and Raqqa, Turkish presidency sources told Reuters today.

Trump might find it hard to be as flexible as a relationship of mutual admiration might warrant when it comes to Turkey’s most urgent demands – a rejection of Pentagon proposals to arm Kurdish fighters in Syria and the extradition of cleric Fethullah Gulen accused of orchestrating Turkey’s July 2015 failed coup, write Kareem Fahim and Karen DeYoung at the Washington Post.

An order to designate the Muslim Brotherhood – the “oldest and possibly the most influential Islamist group in the Middle East” – as a foreign terrorist organization is being debated by President Trump’s advisers, the proposal to do so paired with a plan to also designate Iran’s Islamic Revolutionary Guards as such, Peter Baker writes at the New York Times, citing officials briefed on the deliberations.

There is “no moral equivalence” between President Putin’s Russia and the US, Sen. John McCain (R-Ariz.) insisted from the Senate floor yesterday, the Hill’s Jordain Carney reporting.

The Department of Defense is looking to rent space in Trump Tower in New York, a move which Drew Harwell at the Washington Post suggests could directly funnel government money into President Trump’s business interests.

“Is it worth the political risk to invite him for a visit?” This is the question President Trump is forcing his foreign counterparts to grapple with, writes Nahal Toosi at POLITICO.

Trump may still be able to address the UK parliament during his state visit – in a second room in the House of Lords which remains an option after House of Commons speaker John Bercow vowed to block any Trump speech, the Guardian’s Anushka Asthana and Peter Walker report.

UK Conservative party Trump apologists fail to see that the “special relationship” between the UK and the US is based on values that the US President maligns, writes Rafael Behr at the Guardian.

The MUSLIM BAN

A three-judge panel from the US Court of Appeals for the 9^th Circuit aggressively questioned both the Justice Department lawyer – on the limits of the President’s power an the evidence he relied on in justifying the travel ban – and Washington State’s solicitor general – over what evidence he had to show religious discrimination and whether the lower court’s stay on the ban was too wide, Matt Zapotosky and Robert Barnes report at the Washington Post. Continue Reading »

[Editor’s Note: Watch this space for a response by Ryan Goodman and Marty Lederman]

There’s something very wrong with the Director of National Intelligence report (full text) on the number of civilians killed in U.S. military strikes “outside areas of active hostilities” in 2016, and reported on by Ryan Goodman here. The official tally of one civilian killed is not credible, because it is built on several premises ranging from questionable to incoherent.

We know that the government considers hostilities involving the military and “outside areas of active hostilities” to fall within the scope of application of the laws of armed conflict. (See recent remarks of State Department Legal Advisor Brian Egan: “…in every case in which the United States takes military action, whether in or outside an area of active hostilities, we are bound to adhere as a matter of international law to the law of armed conflict.”) Although the law of armed conflict can apply outside areas of active hostilities, Egan’s statement is false and dangerous. Not only is the United States not bound to adhere to the law of armed conflict in “every case in which the United States takes military action,” the United States is bound by international law NOT to apply law of armed conflict rules to its military activities outside the context of armed conflict. When and where the law of armed conflict applies isn’t determined merely by whether the action is or is not conducted by the military. It’s determined by the identifiability of parties operating under a command structure and the frequency or severity of hostilities. The distinction is important because in war, lethal force may be used simply on the basis of someone’s identity or status as a member of enemy armed forces – in other words, regardless of whether or not the target is actively engaged in hostilities or individually poses a threat. This person is usually referred to as a “combatant.” Outside of war, on the other hand, lethal force is prohibited by human rights law, except in the very narrow situation of self-defense, that is, in the face of attack or imminent threat of attack. Outside of war there are no combatants, so these people, even if lawfully subject to the use of lethal force, are civilians. More importantly, it’s wrong to apply the more permissive killing rules of the law of war to situations governed by the more restrictive rules of human rights law.

Second, that’s why it is significant – and wrong – that a report limited to targeting “outside areas of active hostilities” in situations that do not involve armed conflict speaks of “combatants” and “civilians.” Further evidence that our government misconstrues the distinction between “combatant” and “civilian” is found in the report’s convoluted footnote: Continue Reading »

Among the many peculiar characteristics of the recently elected President is Donald Trump’s unwillingness to follow the ordinary and established norms of the office of President.  In some cases, these are not binding laws but traditions or rules of custom and decorum.  Presidents traditionally, for example, release their taxes for greater transparency and as a bulwark against even the appearance of impropriety.  Customarily, Presidents agree to avoid conflicts of interest and divest as necessary.  Other rules are, for certain, binding legal proscriptions, such as those contained in the Emoluments Clause.  President Trump has thus far refused—despite in some cases earlier promises, such as his commitment to release his tax returns—to follow any of these sorts of established norms.

It is not at all surprising then that a President so willing to transgress the most well-settled rules and reasonable expectations, is seen by some in his administration to give them license not to follow norms either.  That’s how such authority and institutions work. As a result, it cannot be entirely unexpected that when he issued what the President termed a “ban” on Muslims entering the U.S. from certain countries, and federal judges ordered, as one example, the Department of Homeland Security provide the detained access to lawyers, that such officials were reportedly comfortable flouting a federal court order. In light of the President’s predilection for transgression, non-compliance with judicial decrees by his administration will likely not be an isolated matter—that is, if left unchecked.

This intolerable situation is precisely why courts should be prepared to exercise inherent and statutory contempt powers more rigorously. Permitting even small-scale or symbolic disobedience to lawful decrees would be exceedingly dangerous.  Whether one agrees or disagrees with a particular court order, federal officials especially must comply or must be coerced to comply.  They can appeal as appropriate to be sure, but allowing defiance of court orders weakens the very fabric of our legal system and undermines a key attribute of good governance – the rule of law.  Rule of law is what distinguishes nations with relatively effective governance from those underdeveloped ones in cyclical crisis.  Continue Reading »

In recent days, much of the focus has been on Washington State’s challenge to Trump’s Muslim Ban, which resulted in a nationwide stay upheld by the Ninth Circuit (see here for Marty Lederman’s analysis). DHS and the State Department have stated that they are complying with the judge’s order, even though there remains considerable confusion as to what it actually means for people whose visas were already revoked.

At the same time, lawyers faced major challenges in getting border authorities to comply with earlier rulings staying parts of the ban. On 28 January, attorneys filed an emergency application for a temporary restraining order on behalf of two the Aziz brothers, two Yemeni nationals who hold U.S. green cards, and 60 additional lawful permanent residents detained at Dulles, all of whom were barred from coming into the country and denied access to attorneys. Judge Brinkema of the Eastern District of Virginia granted the application. The authorities were required to “permit lawyers access to all legal permanent residents being detained at Dulles International Airport” and forbidden from removing lawful permanent residents from Dulles for seven days.

But the attorneys waiting at Dulles were not able to speak with their clients and others held at the airport. While DHS Secretary Kelly promised that the agency would comply with all court orders, according to Politico, “senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport.” The first weekend after the ban was issued, several members of Congress who went to Dulles were not able to get clarification about the status of those detained there, but were mostly unable to make any progress. In addition, various news outlets reported and plaintiffs’ amended complaint alleged that the Aziz brothers and others were coerced into signing documents that may have waived their visa rights. I have also heard many similar stories from attorneys representing those affected by the ban. 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.

TRUMP ADMINISTRATION FOREIGN POLICY

“Dishonest” journalists “have their reasons” for failing to cover Islamic State attacks in Europe and playing down the threat posed by the terrorist group, President Trump told American military personnel yesterday, the White House later backing up his claims with a list of 78 attacks from Sept. 2014 to Dec. 2016 – including the major attacks in Paris, Brussels, San Bernardino and Orlando – most of which it said had “not received the media attention they deserved.” Julie Hirschfeld-Davis reports at the New York Times.

The full list is provided by John Wagner and Philip Rucker at the Washington Post.

President Trump seems to be laying the groundwork to preemptively shift the blame for terrorist attacks on US soil from himself to the judiciary and the media, observes Philip Rucker at the Washington Post.

EU foreign policy chief Federica Mogherini will meet with the Trump administration in Washington this week to discuss the US position on the Israel-Palestine peace process, Julian E. Barnes and Felicia Schwarz report at the Wall Street Journal.

The UK government does not agree with the Speaker of the House of Commons John Bercow that President Trump should not be allowed to address parliament when he makes a state visit because of the UK parliament’s opposition to “racism and sexism,” communities secretary Sajid Javid said today, Peter Walker, Anushka Asthana and Jessica Elgot reporting at the Guardian.

Bercow’s “extraordinary” intervention last night means it is unlikely that Donald Trump will be given the honor of addressing both houses of the UK Parliament when he makes his state visit to the UK, writes Karla Adam at the Washington Post.

Differences over Iran and other issues between Russia and the US should not impede efforts to improve relations between the two countries, the Kremlin said yesterday, James Marson reporting at the Wall Street Journal.

Trump should respect the US and its constitution, Sen. Patrick Leahy (D-Vt.) told Trump from the Senate floor, calling him out for his apparent comparison between the US and Russia in an interview with Fox News over the weekend, the Hill’s Jordain Carney reports.

Lifting sanctions on Russia would not be “smart” and he is not aware of any plans to do so, newly-appointed deputy assistant to the president for strategic planning Kevin Harrington said yesterday, Julian Borger reporting at the Guardian.

The crippling of the Russian opposition, the increased propagandizing of the population and the  a reduction in the ability of the US to stop internal and foreign Russian atrocities would be the results of Trump’s efforts to improve relations with Russia in order to create conditions for a US-Russian alliance against the Islamic State, writes David Satter at the Wall Street Journal.

Trump has shown little support for America’s traditional role as a champion of universal values, instead kowtowing to Russian President Putin while attacking allies and laying the groundwork for an aggressive campaign that could result in conflict with Iran, writes the New York Times editorial board.

New Zealand’s Prime Minister Bill English told President Trump he disagreed with his travel ban in a phone call yesterday but the conversation remained friendly, English reported afterwards. The AP’s Nick Perry reports.

White House national security adviser will recommend that President Trump supports Montenegro’s membership of NATO even though Russia strongly opposes it, Andrew Hanna reports at POLITICO.

A bipartisan resolution “reaffirming the strong commitment to the United States-Australia alliance relationship” was introduced by Sens. Lamar Alexander (R-Tenn.), Ben Cardin (D-Md.), Marco Rubio (R-Fla.) and Ed Markey (D-Mass.) yesterday after the reportedly antagonistic phone call between Australia’s prime minister and President Trump last week, the Hill’s Jordain Carney reports.

It will seriously damage US credibility and capacity if the Trump administration follows through on threats to withdraw UN funding, marginalize other international organizations and withdraw the US from certain multilateral treaties, Matthew Bolton argues at the Hill.

The MUSLIM BAN

An hourlong oral argument is scheduled for today by the US Court of Appeals for the Ninth Circuit in San Francisco after the Justice Department urged it yesterday to reinstate President Trump’s travel ban, the subsequent ruling almost certain to be followed by an appeal to the Supreme Court, Adam Liptak reports at the New York Times. Continue Reading »