Category Archives: National Security

Trump’s Authority to Launch Attack at Syria

by Travis Normand
April 7, 2017

This is currently a rough draft and needs to be edited. However, due to current events, I am posting the rough draft for any and all to read.

The U.S. fired 59 Tomahawk cruise missiles at Syria in response to what it believes was a chemical weapons attack that killed more than 100 people. For more on the attack itself, you can read about it here at CNN.com and CNBC.com.

The chemical weapons attack, carried out by the Assad regime (apparently), is a violation of the Chemical Weapons Treaty. The use of chemical weapons are banned under the law of armed conflict because, among other things, they are indiscriminate and cause inhumane suffering. Further, the use of chemical weapons are also banned under customary international humanitarian law (thus, even if Syria wasn’t a party to the treaty, the use of these weapons would still be illegal).

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Expanding the Reach of the 2001 AUMF

by Travis Normand
December 28, 2016

The following article was posted about a month ago at NYTimes.com. It explains that the Obama administration has expanded its reading/interpretation of the 2001 AUMF to include Shabab in Somalia.

While some are critical of this move by the administration, it is always interesting to me to see how Congress will react and if they will step-in and say that such an interpretation of their 2001 AUMF (Congressional Authorization) is incorrect or too expansive. Or, will Congress sit back and do nothing, giving the implied authorization that such a reading is correct?

Either way, you can rest assured that the President will take the heat for having such an expansive reading, while few will blame Congress for staying silent on the issue.

I have not reposted the entire article below. I have merely reposted the parts that I found most poignant (emphasis added). To read the entire article, please visit NYTimes.com.

Obama Expands War With Al Qaeda to Include Shabab in Somalia
By Charlie Savage, Eric Schmmitt and Mark Mazzetti
November 27, 2016
NYTimes.com

WASHINGTON — The escalating American military engagement in Somalia has led the Obama administration to expand the legal scope of the war against Al Qaeda, a move that will strengthen President-elect Donald J. Trump’s authority to combat thousands of Islamist fighters in the chaotic Horn of Africa nation.

The administration has decided to deem the Shabab, the Islamist militant group in Somalia, to be part of the armed conflict that Congress authorized against the perpetrators of the Sept. 11, 2001, terrorist attacks, according to senior American officials. The move is intended to shore up the legal basis for an intensifying campaign of airstrikes and other counterterrorism operations, carried out largely in support of African Union and Somali government forces.

The executive branch’s stretching of the 2001 war authorization against the original Al Qaeda to cover other Islamist groups in countries far from Afghanistan — even ones, like the Shabab, that did not exist at the time — has prompted recurring objections from some legal and foreign policy experts.

The Shabab decision is expected to be publicly disclosed next month in a letter to Congress listing global deployments. It is part of the Obama administration’s pattern of relaxing various self-imposed rules for airstrikes against Islamist militants as it tries to help its partner forces in several conflicts.

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Later in the summer, the administration deemed Surt, Libya, an “area of active hostilities,” after the Libyan prime minister asked for assistance in dislodging Islamic State militants from that city. The move exempted the area from 2013 rules that restrict drone strikes and other counterterrorism operations away from battlefield zones, which President Obama had announced in a major speech that year that sought to turn a page in the long-running war against Al Qaeda.

As of last week, the Pentagon had carried out 420 airstrikes against militants in Surt since August.

In Somalia, the 2013 rules limiting airstrikes away from “areas of active hostilities” still apply for now. But in practice, restrictions are being eased there in another way: Over the past year, the military has routinely invoked a built-in exception to those rules for airstrikes taken in “self-defense,” which can include strikes to help foreign partners even when Americans are not at direct risk.

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The Task Force on US Drone Policy Releases its Report

By Jessica Poarch Hernandez

This morning a panel of intelligence experts released “Recommendations and Report of The Task Force on US Drone Policy” which reviews the risk and benefits of current US drone policy.

The panel made the following eight recomendations:

  1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.
  2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.
  3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.
  4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly. Continue reading

[Foreign Affairs] Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones

by Jessica Poarch Hernandez

On 16 August, Foreign Affairs posted an article by Martin Libicki entitled “Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones” which I think is an interesting counterpoint to some of the other articles considered on this blog. Essentially, the article argues that instead of spending time worrying about how to respond to Cyberattacks, we should spend time discouraging and finding ways to prevent them. The author points out that, “Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is. No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence officials fear has not taken place in the 21 years since the Internet became accessible to the public.” He then argues that the responding to cyberattacks, especially with conventional warfare, risks escalating the conflict to the point of a war which nobody wanted. He concludes that, “The United States can best mitigate the risks of cyberwar by adopting technical and political measures to discourage cyberattacks before they happen.”

The author’s  conclusion, in my mind, is logical and, should we take his approach,I believe it would be a good use of our time and resources but I question the wisdom of discounting the “cyberhype” altogether. Now is the time to prepare and determine the rules for responding to major cyberattacks, both by cyber-means and kinetic means. If the unlikely happens we should have a response on hand that has been reasoned out before hand and prevents an unnecessary waste of time or resources. 

Issue Guide: The Domestic Surveillance Debate

by Jessica Poarch

The Council on Foreign Relations recently published an Issue Guide for the on-going debate surrounding the NSA’s surveillance policies. It provides links to articles detailing the arguments on both sides of the issue along with back ground information and primary sources.

The Guide begins: “Media reports of the Obama administration’s domestic surveillance activities have provided new grist for the debate over privacy and national security. The White House and many lawmakers from both parties have defended the counterterrorism programs–many of which were greatly enhanced after the September 11, 2001 attacks–as effective, legal, and limited. Opponents have decried some of the activities, like the National Security Agency’s so-called PRISM program that mines troves of data related to U.S. citizens, as government overreach. The following materials provide background and analysis on the debate. …”

To continue reading click here.

ASIL Insights: U.S. Court Issues Writ of Mandamus, Effectively Removing Organization from Terror List: In Re People’s Mojahedin Organization of Iran

by Jessica Poarch

In his article written for the American Society of International Law’s Insights bulletin, Tom Syring discusses the removal of the People’s Mujahidin Organization of Iran (PMOI) from the State Department’s Foreign Terrorist List.

In September 2012, after unprecedented involvement by the U.S. Court of Appeals for the District of Columbia Circuit, the Secretary of State removed the PMOI from the Foreign Terrorist List. Prior to this decision, inaction by the Secretary left the organization in administrative limbo, which prompted the Court to step in and mandate that the Secretary make a decision regarding the organization’s status.

The article discusses the PMOI’s background, the implications of being on the Foreign Terrorist List, and the arguments before the Court. Syring concludes, “Considering what is at stake, the D.C. Court’s ruling…may start a trend of closer scrutiny and judicial review of governments’ terrorist designations. The ‘unreviewable political realm’ may be justiciable after all.”

Read the entire paper here

Visit the ASIL Website.

Fact, Fiction, or merely Opinion…?

by Travis Normand

In his article on April 20th 2012, Bruce Ackerman stated the following quote as fact:

The risk of attacks from Yemen may be real. But the 2001 resolution doesn’t provide the president with authority to respond to these threats without seeking further congressional consent.

Mr. Ackerman may be 100% correct and there are undoubtedly many experts out there that share his point of view. However, one must not be confused by his factual assertion that the “2001 resolution doesn’t provide the president with the authority to respond to these threats . . . .”

If I am not mistaken, whether or not the President needs further congressional consent is exactly what makes this area of law so difficult. It is this point that many debate on a daily basis.

Again, I am not stating my own opinion on whether or not I believe the 2001 resolution gives such authority. I am merely pointing out that Mr. Ackerman’s statement could easily be read as a factual assertion.

If there is any question as to whether or not this is a settled discussion, one must only look to the fact that this was posted in the Opinions section of the WashingtonPost.com.

To read the rest of his column, go here!

ABA Journal: Patriots Debate (Series)

by Travis Normand

Currently, these papers/essays are showing up in the magazine editions of the ABA Journal. I have read most of them so far and they are very well done. I found the first one, “Constitutional Dilemma: The Power to Declare War Is Deeply Rooted in American History,” to be a good refresher of my law school National Security course.

If you have time, I highly recommend them (especially if you are new to the subject of National Security).

Hamdi v. Rumsfeld: NPR Talk of the Nation

by Travis Normand

This is a little old, but the information is still good.

I am posting this because I love finding podcasts online of LOAC or National Security discussions.  I find it to be one of the best ways to re-educate my mind on many of the different topics that I learned in law school.

This podcast is from NPR’s Talk of the Nation and features as guests:  (1) David Savage: SCOTUS Reporter for LA Times; (2) Deborah Perlstein: Director of the US Law & Security Program at Human Rights First; and (3) John Yoo: Prof. of Law at Cal Berkeley.

Link to Podcast Page