FedSoc Blog

Upcoming FedSoc Symposium Feb. 24: The NSA, Security, Privacy, and Intelligence

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by Publius
Posted February 12, 2014, 1:08 PM

The NSA, Security, Privacy, and Intelligence

International & National Security Law Practice Group Symposium

In the 12 years since 9/11, as the national security threat matrix has become increasingly complex, technological advances have expanded intelligence gathering capabilities significantly. Recently, public concern about government monitoring of individuals has come to the forefront of the discussion. To address the intersection of security, privacy, and intelligence, the President has proposed several reforms, and is studying others in consultation with Congress. This Symposium will analyze and offer observations on those proposals.

Agenda:

Registration
10:30 – 10:50 a.m.

Welcome and Introduction
10:50 a.m.

Panel I: Foreign Intelligence Collection and the FISA Court
11:00 a.m – 12:30 p.m.

  • Mr. Harley Geiger, Senior Counsel and Deputy Director, Freedom, Security and Surveillance Project, Center for Democracy & Technology
  • Prof. Peter S. Margulies, Roger Williams University School of Law
  • Mr. Julian Sánchez, Research Fellow, The Cato Institute
  • Hon. Honorable Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, former U.S. Homeland Security Advisor, and former Assistant U.S. Attorney General for National Security
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, The Federalist Society

Luncheon
12:30 – 1:45 p.m.

  • Hon. Michael Chertoff, Co-founder and Managing Principal, The Chertoff Group, and former Secretary, United States Department of Homeland Security

Panel II: The NSA Telephone Metadata Program
2:00 p.m. – 3:30 p.m.

  • Mr. Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Mr. Jim Harper, Director of Information Policy Studies, Cato Institute
  • Mr. Benjamin Wittes, Senior Fellow, Governance Studies, The Brookings Institution
  • Moderator: Prof. Nathan A. Sales, George Mason University School of Law

 

 

Registration details:

Lunch will be served. There is no cost to attend this event.

Please register online.

The Snowden Affair and Control of the Internet

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by Publius
Posted December 18, 2013, 4:17 PM

Vincent J. Vitkowsky, Chairman of FedSoc's International & National Security Law Practice Group, published a detailed commentary for Advisen on the Snowden affair's relation to control of the internet. It begins:

There is a serious conflict over future control of the Internet, as nations seek to influence its delivery mechanisms, protocols, economics, security, content, and governance. Until now, key functions have been managed through a multi-stakeholder approach, using technical organizations such as the Internet Corporation for Assigned Names and Numbers (ICANN), with oversight conducted by the US. But the last several years have seen a growing challenge to this system and the US role. Now a tipping point may have been reached. The public disclosures of the scope of the NSA surveillance programs have led to widespread international criticism, focusing and catalyzing the call for changes in Internet governance. The Internet is the most dynamic engine for economic growth in the world today, as well as the vital mechanism for dissemination of ideas. So the outcome of the conflict for control will have profoundly important commercial and political consequences. . . .

In November 2013, at FedSoc's National Lawyers Convention, Vitkowsky moderated a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Mr. Joel F. Brenner, Principal, Joel Brenner LLC and former National Counterintelligence Executive, former Inspector General and Senior Counsel, National Security Agency
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law

You can watch a video of the discussion here.

NSA: “Not (So) Secret Anymore”

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by Publius
Posted December 04, 2013, 5:24 PM

Joel Brenner, former Senior Counsel at the National Security Agency, begins a fascinating essay at Lawfare as follows:

The National Security Agency is down in the dumps. It’s used to being heralded for brilliance.  It can’t understand how millions of Americans, not to mention foreigners, think it’s engaged in voracious, useless, and unlawful eavesdropping around the world, and dangerous to liberty at home.  Past intelligence scandals have always involved the failure to collect or understand critical information – the attack on Pearl Harbor in 1941, for example – or unlawful spying on Americans for political reasons, like in 1976.  This one is different.  NSA is being criticized for collecting too muchintelligence, or the wrong foreign intelligence, and for collecting of U.S. telephony metadata that it does under an act of Congress and repeated orders of the Foreign Intelligence Surveillance Court.  Congress knew when it amended the Foreign Intelligence Surveillance Act law how it was being used, and more than a dozen judges have approved the specific uses of this authority.  Nor has there been a whiff of intelligence abuse for political purposes.  We’re in the midst of the only intelligence scandal in history involving practices approved by Congress and the federal courts and subject to heavy and effective oversight.  How did this happen, and what should be done? . . .

In November 2013, at the the Federalist Society's National Lawyers Convention, Brenner took part in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were Stephen G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice; Michelle Richardson, Legislative Counsel, American Civil Liberties Union; Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal; Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law; Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society.

You can watch a video of the discussion here.

New National Security Law Recommended Reading List

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by Publius
Posted December 02, 2013, 2:13 PM

The Federalist Society's International & National Security Law Practice Group has released the Fall 2013 edition of its Recommended National Security Law Reading List. The list is available here and is also posted below:

Targeted Killings: Law and Morality in an Asymmetrical World, Andrew Altman, Claire Finkelstein, and Jens David Ohlin, eds.

In the Common Defense: National Security Law for Perilous Times, Judge Jamie Baker

Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, Stewart Baker

America the Vulnerable: Inside the New Threat Matrix of Digital Espionage, Crime, and Warfare, Joel Brenner

500 Days: Secrets and Lies in the Terror Wars, Kurt Eichenwald

The Terror Presidency: Law and Judgment Inside the Bush Administration, Jack Goldsmith

Kill or Capture: The War on Terror and the Soul of the Obama Presidency, Daniel Klaidman

Code: and Other Laws of Cyberspace Version 2.0, Lawrence Lessig

The War on Terror and the Laws of War: A Military Perspective, Michael Lewis, Eric Jensen, Geoffrey Corn, and Victor Hansen

Willful Blindness: A Memoir of the Jihad, Andrew McCarthy

National Security Law, 2nd Edition, John Norton Moore and Robert F. Turner

Terror in the Balance: Security, Liberty, and the Courts, Eric A. Posner and Adrian Vermeule

Preventing Surprise Attacks: Intelligence Reform in the wake of 9/11, Richard Posner

Uncertain Shield: The U.S. Intelligence System in Throes of Reform, Richard Posner

In Search of Jefferson’s Moose: Notes on the State of Cyberspace (Law and Current Events Masters), David G. Post

Confronting Terror -- 9/11 and the Future of American National Security, Dean Reuter and John Yoo, eds.

Regulating Covert Action: Practices, Contexts and Policies of Covert Coercion Abroad in International and American Law, W. Michael Reisman and Judge James E. Baker

Cyber Warfare -- How Conflicts in Cyberspace Are Challenging America and Changing the World, Paul Rosenzweig

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers, Paul Rosenzweig, Timothy J McNulty, and Ellen Shearer, eds.

Nothing to Hide: The False Tradeoff between Privacy and Security, Daniel J. Solove

The National Security Court System: A Natural Evolution of Justice in an Age of Terror, Glenn Sulmasy

Law and the Long War: The Future of Justice in the Age of Terror, Benjamin Wittes

The Looming Tower: Al-Qaeda and the Road to 9/11, Lawrence Wright

War by Other Means: An Insider’s Account of the War on Terror, John Yoo

New Engage Article: Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional

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by Publius
Posted December 02, 2013, 11:07 AM

The Federalist Society's International & National Security Law Practice Group has produced an Engage Symposium on the National Security Agency’s bulk data seizures and Foreign Intelligence Surveillance Act programs. The symposium includes an essay by Randy Barnett, Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, and Jim Harper, Director of Information Policy Studies at the Cato Institute. Titled "Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional," the paper argues:

Rather than airy and untethered speculations about “reasonable expectations,” the courts should return to the traditional—and more readily administrable—property and contract rights focus of Fourth Amendment protection reflected in the majority opinion in Katz. Courts should examine how parallels to the walls of the home and the phone booth in Katz conceal digital information are employed by the people to preserve their privacy.

An inquiry into the physical and legal barriers people have placed around their information — for example, by using passwords to restrict access to their email, or entering into terms of service agreements that include privacy protections — can generally answer whether they have held it close. This establishes the threshold of personal security that the Fourth Amendment requires a warrant to cross. No distinction should be made between sealing a letter before handing it to the postman, taking a phone call in a secluded phone booth, password-protecting one’s email, or selecting a communications company with a suitable privacy policy.

In short, the physical and legal barriers people place around their information define both their actual and “reasonable” expectations of privacy and should provide the doctrinal touchstone of the search warrant requirement. When one has arranged one’s affairs using physics and the law of property and contract to conceal information from preying eyes, government agents may not use surreptitious means and outré technologies like thermal imaging to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth Amendment. . . .

FedSoc Symposium on NSA’s Bulk Data Seizures and FISA Surveillance Programs

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by Publius
Posted November 19, 2013, 1:22 PM

The Federalist Society's International & National Security Law Practice Group is pleased to bring you this special Engage Symposium on the National Security Agency’s bulk data seizures and Foreign Intelligence Surveillance Act programs.  This Symposium features diverging points of view on the issues involved from top scholars and experts in the field.  As always, the Federalist Society takes no position on particular legal or public policy initiatives.  All expressions  of opinion are those of the authors.  Additionally, we invite responses from our audience. To join this debate, please email us at info@fed-soc.org.

Click here to download a PDF of the full Symposium. Individual articles are listed below.

Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional by Randy E. Barnett & Jim Harper

Before the House Committee on the Judiciary Oversight Hearing into the Administration’s Use of FISA Authorities Testimony of Steven G. Bradbury

NSA is in Trouble for Good Reason by Jeremy Rabkin

Oversight Hearing on FISA Surveillance Programs Committee on the Judiciary, United States Senate Testimony of Stewart A. Baker

Workshop Regarding Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act Privacy and Civil Liberties Oversight Board Testimony of Nathan A. Sales

Before The House Committee on the Judiciary Oversight Hearing on The Administration’s Use of FISA Authorities Testimony of Jameel Jaffer & Laura W. Murphy

First Principles: Are Judicial and Legislative Oversight of NSA Constitutional? by Robert F. Turner

Slouching Toward Mordor by Grover Joseph Rees

Benjamin Wittes: Five In-Your-Face Thoughts in Defense of the NSA

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by Publius
Posted September 09, 2013, 3:02 PM

Benjamin Wittes, senior fellow in Governance Studies at the Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, comments at Lawfare:

First, the NSA is an intelligence agency, and intelligence agencies collect intelligence. The NSA collects a huge amount of data. It spies on other countries and their leaders. It tries to make sense of the material it collects using data-analytic techniques. It breaks encryption systems that its potential targets use to protect their communications. It develops relationships with private companies that can provide it data. And it engages in activity that is illegal in the countries against which it operates.

As we used to say in grade school, “Duh!” That’s why we have a signals intelligence agency.

Critics of the agency, at home and abroad, trot out many of these facts as damning indictments. Brazil and Mexico and our European allies are outraged—or pretend to be—that we spy on them. Our domestic conversation is laced with fear of the sheer size of NSA collection, as though data volume is what makes Big Brother big. But the criticism is silly. Of course, the agency collects a large volume of material. An intelligence agency is not a think tank or a university. It doesn’t just read newspapers, collect what’s public and analyze what such data say. ”We steal secrets,” former NSA and CIA director Michael Hayden put it in the excellent movie about Wikileaks that used this arresting phrase as its title. This is what spy agencies do. The NSA is good at it—very good at it.

I, for one, think that’s a great thing.

Second, what the agency is actually doing is far less threatening than what people think it is doing. The tone of the conversation about NSA activity is so over-the-top that the agency’s actual activity gets lost in the story. . . .

Third, while a lot of people aren’t interested in the details, those details really matter. At the time of the last document release, Lawfare published a series of detailed posts describing what the released documents actually said (we will do the same with this week’s disclosures). . . .

This brings me to my fourth point: the NSA’s activities are legal. We are not living in the age of COINTELPRO or the Watergate-era intelligence scandals. We are living in an age in which the intelligence activities about which we harbor anxieties take place pursuant to statute and subject to judicial review. . . .

Let me put this point as simply as I can: The NSA can collect a gargantuan quantity of telephone and internet data without violating any statutory or constitutional law. And nearly all of the current debate involves activity that either clearly or arguably falls on the legal side of the line. To the extent that people argue against the legality of what the NSA is doing, they generally arguing that the courts should have ruled other than the way they did. But in our society, that’s not what defines an agency’s legal authority.

In other words, fifth, this is not a scandal but a policy debate. . . .

In November 2011, at FedSoc's Annual Lawyers Convention, Wittes took part in a panel discussion on "The War-on-Terror Government." It was sponsored by the International & National Security Law Practice Group. You can watc a video of the event here.

John Yoo and Sai Prakash Debate the President’s Authority to Intervene in Syria

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by Publius
Posted September 04, 2013, 6:52 PM

On August 29, 2013, given the debate over President Obama’s right to militarily intervene in Syria without Congress’s authorization, the Federalist society held a special Teleforum conference call in which our experts debated the issue.  Speaking were John Yoo--Emanuel S. Heller Professor of Law at University of California, Berkeley School of Law--and Sai Prakash, James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia School of Law. Dean Reuter, Vice President & Director of Practice Groups at the Federalist Society, was the moderator. You can listen to a recording of the call here.

Yoo began by claiming it is a misinterpretation of the Constitution and would reject consistent practice in American history to hold that the president needs congressional approval to use force abroad. He said that this is evident:

not just a matter of history but becomes clear, but it’s clear in the constitutional text as well as in the different a different structures in the Constitution, and even in the legislative history of the Constitution. First, the consistent interpretation given by the branches of government has been that the president can use force abroad, and that the major check by Congress is not the Declare War Clause but Congress's powers over funding the armed forces: If Congress want to to stop a war all it has to do is not build the president the kind of military he needs in the first place to wage that war, or to cut off the funds for the fighting or never vote for the funds in the first place once the hostilities have started. On the presidential side, the president is the commander in chief and holds the executive power, and I think the tradition in our history and in the history before the Constitution was that the executive power did include the power to use force abroad, which is why presidents have used force abroad, some 130 times. I think by last count there have been only five declarations of war.

Yoo argued that the most important provision in which to understand the Declare War Clause is the rest of the constitutional text:

If you look at the other place where the Constitution talks about war--Article One, Section Ten--that provision bans states from engaging in war.  It says, “No State shall . . . engage in any War, unless it shall be actually invaded by Enemies, or the Danger of Invasion be so imminent as not to admit of a Delay, until the Legislature of the United States can be consulted.” That is exactly the way that people who support the Declare War Clause theory think that war powers works between the president and congress. . . . Yet why would the Framers not use that same exact language when it came to the president? Why didn’t they just copy this provision and insert the phrase “no president shall” for "no state shall'?

As the explanation for this, Yoo pointed to British history and said that if you look at the “fights between the executives and the legislatures, the phrase ‘declare war’ never had this meaning. It had more to do with setting the legal status of hostilities. . . . The check on the executive was always the power of the purse.”

According to Yoo, what has really happened over the years is that Congress has attempted to avoid responsibility: “They have granted the president a huge authority for offensive actions. Our military is not designed for homeland defense.  It is designed for offensive operations in other people’s countries, and at the same time Congress doesn’t create limits on how that military can be used. So they live in an ideal world where the president takes the initiative, and if it turns out badly they can say ‘we never approved it in the first place.’”

Speaking next, Prakash began by praising Yoo for maintaining his same position regardless of presidential administration and whether or not he supported any particular military action. Prakash also said that Yoo is “to be praised for bringing us back to the Constitution.  War powers scholarship before John tended to focus on what the Framers said about the Constitution rather than the Declare War Clause.”

Prakash said that he wholeheartedly agreed that the purse can be used as a check. It could even be an ex ante check: appropriating military funds with various provisos as to how it may be used. Where he differed with Yoo is on the claim that it is the only check. Prakash said he believes the Constitution adopts "a kind of belts and suspenders approach." He noted that Yoo himself agrees that the president can’t unilaterally declare war under the Constitution, whatever one means by “declare war.” The question is: what does that expression mean? Prakash said that according to Yoo’s scholarship, to declare war means to invoke the laws of war. Prakash responded that even at the time of the founding, the Framers didn’t think that formal declarations of war were all that useful. They had a broader sense of what it is to declare war. In the 18th century, he explained, it was widely thought that any decision to go to war was a declaration of war. When a nation had invaded another it had ipso facto declared war. A British Prime Minister said in Parliament, “The most common declaration of war in our age comes from the mouth of cannons.” In the American system, however, authorizing war must be more formalized since Congress acts only via writing. Prakash conceded, “I do understand that practice has varied from this to some extent, certainly more so in modern times,” but he claimed that some of those 130 actions Yoo mentioned were actually authorized by Congress. It doesn’t matter if Congress used the word “war."

On the Inadvertent Implications of the War Powers Resolution

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by Publius
Posted September 03, 2013, 9:15 AM

In 2012, Michael A. Newton, a professor at Vanderbilt Law School and a member of the executive board of FedSoc's International & National Security Law Practice Group, published an article on the president's power to use military force. Titled "Inadvertent Implications of the War Powers Resolution," it is especially timely given the debate over whether the U.S. should intervene in Syria, and whether the president has the authority to do so without Congress' permission.  According to the article's abstract:

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy interbranch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon’s veto represented little more than a stark act of congressional opportunism. The President’s veto message was prescient in warning that the Resolution is “dangerous to the best interests of our Nation.” This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations via the appropriations power. It describes reasons why our republic would be well served by clear-eyed reassessment of the War Powers Resolution. It spawned three serious defects: 1) it displaced good faith dialogue between the co-equal branches with after the fact litigation, 2) it highlights American political will as the weakest strand of otherwise formidable military capacity, and 3) it creates a perverse inventive to reverse engineer military operations based on statutory language in ways that undermine strategic objectives. American lives and interests are ill-served by these inadvertent implications.

You can find a PDF of the article here.

On the same subject, FedSoc's International & National Security Law and Federalism & Separation of Powers Practice Groups produced a podcast on "Syria and the President’s Authority to Intervene" on August 29, 2013. It featured:

  • Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Horace W. Goldsmith Research Professor, University of Virginia School of Law
  • Prof. John Choon Yoo,  Emanuel S. Heller Professor of Law, University of California, Berkeley School of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the podcast here.

Teleforum Tomorrow on the Future of the Expectation of Privacy after U.S. v. Jones

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by Publius
Posted June 13, 2012, 9:49 AM

In her concurrence in United States v. Jones, Justice Sotomayor wrote that it "may be necessary" for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Sotomayor argued that such a rule was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection."

Should the longstanding Katz standard concerning information disclosed to third-parties be re-evaluated, either from a statuory or constitutional perspective? Alternatively, would Justice Sotomayor's proposed re-evaluation of this standard represent a huge boon for criminals who seek to keep their online conduct hidden from detection by law enforcement?

Tomorrow, June 13, FedSoc's Criminal Law & Procedure Practice Group will be hosting a teleforum on the case. The details:

Featuring:

  • Prof. Orin S. Kerr, The George Washington University Law School
  • Mr. Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Start : Thursday, June 14, 2012 3:00 PM

End   : Thursday, June 14, 2012 4:00 PM

Registration details:

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

Obama as Targeteer-in-Chief?

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by Justin Shubow
Posted June 05, 2012, 10:08 AM

At Forbes, Pepperdine Law professor Greg McNeal comments extensively on President Obama's allegedly unprecedented personal involvement in targeting decisions:

President Obama is personally involved in vetting targets and approving strikes, according to a recent article in The New York Times entitled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.”  The piece has received a substantial amount of attention with expert commentators such as Ben Wittes describing it as “rich and detailed” and Ken Anderson writing that it is “the most detailed insider account of how the administration has gradually evolved a process for vetting targets.

I think the article amounts to a largely self-serving campaign piece, which is to be expected when the piece is sourced to interviews with President Obama’s “current and former advisers.”  For those not familiar with the targeted killing process, the article may seem to be filled with rich details that suggest that President Obama, the “liberal law professor” who “approves lethal action without hand-wringing” has taken on unprecedented authority and responsibility.  I’m not convinced that his actions are remarkable or unprecedented, let’s unpack what we learn from this story.

The times writes Obama’s “current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.”  I’m sure those advisers are very impressed with the President and their role in supporting him, but he’s hardly the first President to approve targeting decisions, and he’s not the first President to approve targeting decisions against Al Qaeda.

When a botched bombing operation presents the risk of strategic consequences, Presidents have frequently relied on strict rules of engagement and high level approvals of specific targets.  Most students of history are familiar with the tight controls over both target selection and nomination that were implemented during the Vietnam War.  (A great history of the process is available in this School of Advanced Airpower Studies thesis).  Even during Vietnam, targets were selected in Washington by a small team on the joint staff, and approved only at the presidential level.  Thus, contrary to the Times’ assertions, there are some precedents for outsized influence by the Commander in Chief in the targeting process — a fact that was true of Johnson and was also true of President Clinton. . . .

The Times piece tries to paint President Obama as the first President to take moral responsibility for the actions of the military he commands.  Obama, we learn from his aides is a student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.”  Moreover, “[w]hen a rare opportunity for a drone strike of a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final calculation.”  This would be an unprecedented act of political leadership if it weren’t for the fact that there is some precedent for it that predates President Obama.

As I point out in this book chapter, since at least September of 2008 (e.g. during George W. Bush) the Rules of Engagement in Afghanistan required the President or Secretary of Defense to sign off on any pre-planned strike (e.g. targeted killing) where even one civilian casualty was expected.

For a more detailed examination of American policy on targeted killings, see Professor McNeal's article "The U.S. Practice of Collateral Damage Estimation and Mitigation."  Also, in January 2011, FedSoc's International & National Security Law Practice Group aired a podcast on "Predator Drones and Targeted Killings."  It featured Michael W. Lewis, Ben Wizner, and Dean A. Reuter. You can listen to it here.

Who’s Afraid of the Cyber Intelligence Sharing and Protection Act?

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by Justin Shubow
Posted May 21, 2012, 10:19 AM

The Wall Street Journal editorializes about Cyber Intelligence Sharing and Protection Act:

Internet activists who killed an antipiracy campaign on Capitol Hill in January are back on the virtual warpath against efforts to improve America's cyber defenses. As then, the ferocity of the ire is disconnected from the modesty of the legislation.

Concern over the vulnerability of America's digital networks has grown with dependence on them. The government devotes tremendous resources to protect its systems from hackers, terrorists and states like China or Russia. Banks, electrical utilities and other private companies fend for themselves, however, even though a successful attack could do enormous economic harm. Congress rightly thinks the government could lend a hand.

Mike Rogers, the Republican chairman of the House intelligence committee, wants companies to draw on the government's expertise and classified information to counter cyber threats. Companies can, in turn, share their concerns or proprietary information with the National Security Agency, FBI and others. This would all be voluntary.

Dutch Ruppersberger, the ranking Democrat on House intelligence, is co-sponsoring the Cyber Intelligence Sharing and Protection Act, or CISPA. Facebook, Microsoft, Oracle and other tech companies have endorsed the bill. Many of its supporters were on the opposite side during the fight this winter over the Stop Online Piracy Act, which addressed concerns about intellectual property.

Standing in the way, however, is the Obama Administration, which came out against CISPA before the House vote, citing supposed shortcomings on privacy protections. Having worked closely with Republicans to write the bill, Rep. Ruppersberger was blindsided by the White House and has said as much. The House passed the bill 248-168, with 42 Democrats defying the Administration's veto threat.

The online activists, who don't let facts get in the way of a good campaign, needed no invitation to sound the call to battle. The ACLU, privacy evangelists and tea party libertarian-types are in. Search #CISPA on Twitter to behold the Orwellian future of the National Security Agency prying into your Web affairs. But just because you're paranoid doesn't mean someone's out to get you.

One complaint is that the government could use the data provided by Internet service providers and companies to spy on people. But if this bill set out to create a surveillance program, voluntary information-sharing limited to "cyber threats" sounds like a pretty shoddy way to go about it. The bill's definition of "cyber threat" is vague, which is another netroot complaint, precisely to take account of the fast-changing nature of technology.

Podcast: Examining the Legal Rationale for Drone Strikes on U.S. Citizens

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by Publius
Posted April 30, 2012, 10:50 AM

Listen to the audio here.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. On April 24, 20120, our experts discussed this legal rationale, and the future of targeting U.S. citizens.  Participating in the teleforum were:

You can listen to the International & National Security Law Practice Group podcast here.

Obama Approves Broader Drone Use in Yemen

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by Publius
Posted April 26, 2012, 9:53 AM

The Washington Post reports:

The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said.

The policy shift marks a significant expansion of the clandestine drone war against an al-Qaeda affiliate that has seized large ­pieces of territory in Yemen and is linked to a series of terrorist plots against the United States.

U.S. officials said that Obama approved the use of “signature” strikes this month and that the killing of an al-Qaeda operative near the border of Yemen’s Marib province this week was among the first attacks carried out under the new authority.

The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year.

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

On April 5, 2012, at FedSoc's National Security Symposium, former Secretary of Homeland Security Michael Chertoff discussed the nature of intelligence gained from behavior patterns.  You can watch the video of his talk here.

Video of Panel on John Yoo and Julian Ku’s “Taming Globalization”

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by Publius
Posted April 24, 2012, 7:49 AM

On April 19, 2012, The Federalist Society and AEI hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

You can watch a video of the entire event here.

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