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In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.

We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.

Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”

France will present a Security Council resolution this week on behalf of the Palestinian leadership calling for international observers deployed in Jerusalem, according to senior Palestinian official and member of the PLO executive committee Hanan Ashrawi. The proposal will seek a civilian monitoring force at the Noble Sanctuary, the holy complex that houses the Muslim sites the Dome of the Rock and the al-Asqa Mosque, and the Jewish sacred site the Western Wall and the location of two ancient synagogues, called the Temple Mount. It is expected to be similar to an Oslo Accords agreement between Israeli and Palestinian leaders to station in Hebron 150 international civilian observers with no mandate for intervention. Speaking at a briefing in Ramallah today Ashrawi said the draft resolution would be limited to “dealing with the current situation and therefore including observers and condemning the settlements and settlement activities,” noting, “it is not a political initiative that is comprehensive.” The proposal is scheduled for a vote at the Security Council “before Thursday,” Ashrawi said.

Both the Israel and the U.S. have come out against the resolution, condemning any effort to bring new parties into the now tenuous accord between Israel and Jordan, where Jordan is licensed to safeguard the holy sites plaza. Two weeks ago Jordan announced it would consider recalling its ambassador from Israel, in light of Israeli forces firing dispersants into the mosque during clashes with Palestinian protesters.

On March 12, US ambassador to the UN Nikki Haley actually threatened that the US will strike Syrian government forces if they don’t halt their operation against terrorists in Eastern Ghouta. “We also warn any nation that is determined to impose its will through chemical attacks and inhuman suffering, most especially the outlaw Syrian regime, the United States remains prepared to act if we must,” Haley said. The US diplomat proposed a new UN ceasefire resolution that “will take effect immediately upon adoption by this Council. It contains no counterterrorism loopholes for Assad, Iran and the Russians to hide behind”.

According to Haley, the previous resolution “failed” because it had allowed the Syrian Arab Army (SAA) and its allies to conduct operation in Eastern Ghouta against Hayat Tahrir al-Sham (formerly Jabhat al-Nusra, the Syrian branch of al-Qaeda) and other militant groups. Russian ambassador to the UN Vassily Nebenzia reacted by saying that Syria has all the legal right to fight terrorism near its capital. The US-drafted document was not put to the vote on March 12.

The United States deployed U.S. Marines to northeastern Syria to provide artillery support for local forces in the upcoming assault against Islamic State in Raqqa. Turkey criticized the U.S. for supporting Syrian YPG/YPJ forces which Turkey designates as PKK-linked terrorists. So far, the Syrian government has not officially criticized the deployment but complained that Turkish forces targeted Syrian troops in Manbij. Turkey, for its part, has launched major operations against the PKK.

The deployment of U.S. Marines to the region prompted disputes between Turkey and the United States. One of the central issues is the question whether U.S. troops should back the Syrian Democratic Forces (SDF) which are dominated by the PYD and its military wings, the YPG and the all female YPJ, or whether the U.S. troops should back Turkish-led fighters under the umbrella of the so-called Free Syrian Army (FSA). The dispute happens as Turkish, Syrian, Russian, and U.S. troops and the various factions are preparing the assault on an estimated 4,000 fighters of the Islamic State (a.k.a. ISIS, ISIL, IS, Daesh) who are controlling the city of Raqqa. Any of these troops, the newly deployed U.S. Marines included, are entering a highly contested and highly congested theater. The contingent of U.S. Marines arrives Thursday. Their role is to provide artillery support, most probably for the SDF which already have U.S. Special Forces and “advisers” deployed among their ranks. After the arrival of the U.S. troops on Thursday, Turkey’s Foreign Minister Mevlut Cavusoglu warned that Turkish forces would strike the PYD’s YPG/YPJ forces in Manbij. This would imply that Turkey would carry out strikes against forces which already have Special Forces from Turkey’s NATO ally USA amidst their ranks. However, Cavusoglu argued that the Kurdish occupation of the town of Manbij and or Raqqa are a hindrance to what he describes as Turkish efforts to carve out a safe zone in northern Syria. Cavusoglu gave no deadline though for an attac but accused Washington of being confused in its planning for an attack on the IS stronghold of Raqqa.

The deployment marks an escalation of U.S. military involvement in Syria. Several hundred Special Operations troops have been advising the YPG-led Syrian Democratic Forces. Last weekend, some of those Special Forces, a hundred U.S. Rangers, deployed in Manbij in a bid to deter clashes between YPG fighters and Turkish-led fighters. The deployment comes as the administration of U.S. President Donald Trump debates a Raqqa plan drafted by Lt. Gen. Stephen Townsend, the U.S. commander overseeing the campaign against the Islamic State. However, on Thursday the top U.S. commander in the Middle East signalled that there will be a larger and longer American military presence in Syria, allegedly to accelerate the fight against the Islamic State group and quell friction within the complicated mix of warring factions there. Gen. Joseph Votel, head of U.S. Central Command, told Senators that he will need more conventional U.S. forces to insure stability once the fight to defeat Islamic State militants in their self-declared capital of Raqqa is over. The U.S. military, he said, can’t just leave once the fight is over because the Syrians will need help keeping IS out and ensuring the peaceful transition to local control.

The UK government is secretly planning to force technology companies to build backdoors into their products, to enable intelligence agencies to read people’s private messages. A draft document leaked by the Open Rights Group details extreme new surveillance proposals, which would enable government agencies to spy on one in 10,000 citizens – around 6,500 people – at any one time.  The document, which follows the controversial Investigatory Powers Act, reveals government plans to force mobile operators and internet service providers to provide real-time communications of customers to the government “in an intelligible form”, and within one working day.

This would effectively ban encryption, an important security measure used by a wide range of companies, including WhatsApp and major banks, to keep people’s private data private and to protect them from hackers and cyber criminals. 

A new Afghanistan war strategy approved last month by President Donald Trump's top military and national security advisers would require at least 50,000 U.S. forces to stop the advance of the Taliban and save the government in Kabul, according to a classified U.S. intelligence community assessment.U.S. intelligence and national security officials familiar with the assessment tell me that it was drafted in April, and that it provided estimates of necessary troop strengths for various strategic options. But it found that if an ambitious war plan approved by the National Security Council's principals committee got a green light from the president -- a big if -- more than 50,000 U.S. troops would be needed.That proposed strategy, which I wrote about earlier this month, would place the U.S. on a new war footing and in a deeper partnership with the Afghan government in its current campaign against the Taliban. It would also remove arbitrary timelines for withdrawal set by President Barack Obama. The new estimate from the intelligence community envisions significantly more U.S. forces in Afghanistan than the current levels of around 8,400 U.S. troops currently fighting there. It is also more than the modest troop increase for Afghanistan of around 5,000 that was reported last week.  

From: • H <hrod17@clintonemail.com > Sent: Saturday, September 3, 2011 10:28 PM To: Oscar Flores Subject: Fw: tick tock on libya PIs print for me.

To: H Subject: FW: tick tock on libya Here is Draft

Secretary Clinton's leadership on Libya HRC has been a critical voice on Libya in administration deliberations, at NATO, and in contact group meetings — as well as the public face of the U.S. effort in Libya. She was instrumental in securing the authorization, building the coalition, and tightening the noose around Qadhafi and his regime.