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Disclosure of U.S. intelligence surveillance activities in Germany and other allied countries has aroused angry public reaction in those countries, and has prompted discussion of the possibility of negotiating “no spy zones” abroad in which certain types of intelligence collection would be renounced and prohibited. Some have spoken of extending to Germany or other countries the “Five Eyes” agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other. But a rarely-noted statute could make it difficult for any U.S. administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself.

In the FY 2001 intelligence authorization act (P.L. 106-567, sect. 308), Congress said that the imperatives of U.S. intelligence gathering are to be understood to take precedence over any treaty or international agreement: “No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.” By way of explanation, the Senate Intelligence Committee said in a 2000 report:  “There has been a concern that future legislation implementing international agreements could be interpreted…. as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy.” At a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.

In a statement on 4 March 2014, Foreign Minister William Hague deceived the House of Commons about the legitimacy of the new regime in Ukraine. He led the House to believe that the Ukrainian parliament, the Verkhovna Rada, had removed President Yanukovich from power on 22 February in accordance with the Ukrainian constitution. "It is wrong to question the legitimacy of the new authorities", he said. It is simply untrue that the Rada followed the procedure laid down in the Ukrainian constitution to impeach and remove a president from power. Article 108 of the constitution specifies four circumstances in which a president may cease to exercise power before the end of his term. Those are: resignation; inability to exercise his or her powers for reasons of health; removal from office by the procedure of impeachment; death.

The procedure for removal from office by impeachment is laid down in Article 111. It is not unlike that required for the impeachment and removal from power of a US president, which could take months. Thus, Article 111 obliges the Rada to establish a special investigatory commission to formulate charges against the president, seek evidence to justify the charges and come to conclusions about the president's guilt for the Rada to consider. To find the president guilty, at least two-thirds of Rada members must assent. Prior to a final vote to remove the president from power, the procedure requires the Constitutional Court of Ukraine to review the case and certify that the constitutional procedure of investigation and consideration has been followed, and the Supreme Court of Ukraine to certify that the acts of which the President is accused are worthy of impeachment. To remove the president from power, at least three-quarters of Rada members must assent. The Rada didn't follow this procedure at all. No investigatory commission was established and the Courts were not involved. On 22 February, the Rada simply passed a bill removing President Yanukovych from office.

Furthermore, the bill wasn't even supported by three-quarters of Rada members as required by Article 111 - it was supported by 328 members, when it required 338 (since the Rada has 450 members). Nevertheless, justifying UK support for the new regime in Kiev in the House of Commons on 4 March, William Hague said: "Former President Yanukovych left his post and then left the country, and the decisions on replacing him with an acting President were made by the Rada, the Ukrainian Parliament, by the very large majorities required under the constitution, including with the support of members of former President Yanukovych's party, the Party of Regions, so it is wrong to question the legitimacy of the new authorities." That gives the impression that the procedure prescribed in the Ukrainian constitution for the removal of a president from office had been followed, when in fact it hadn't and therefore the new authorities in Kiev are illegitimate. President Putin questioned the legitimacy of the authorities in Kiev at his press conference on 4 March, just before William Hague spoke in the House of Commons:

The United States and the European Union (EU) are negotiating a trade agreement, the Transatlantic Trade and Investment Partnership (TTIP). The aim is to lower trade barriers. Unfortunately those ‘barriers’ include not just traditional trade tariffs and quotas, but also the laws your elected representatives make.

America is in the choosing sides phase of the coming civil war. To use a college recruiting phrase, it is accurate to state that the letters of intent to join one side or another have mostly been signed and the commitments offered. However, there is one big uncommitted piece, but very soon the sides will be drawn.

Chicago Mayor Rahm Emanuel has proposed an ordinance that would compel all gun dealers to video-record sales (“to discourage traffickers and buyers who use false identification”). Presumably the video recordings would have to be kept for an extended time, since future investigations that would use the video recordings could happen years after the sale. A similar New York state bill would require that the videos be kept for one year. Likewise, two weeks ago, Minnesota enacted a law — with much less fanfare — that would require video- or photo recording of people who come to sell cellular phones, with each recording to be kept for at least 30 days:

The ostensible focus of the law is on people who sell the phones (presumably in order to deter phone theft), but any video cameras — which “must be turned on at all times” — will also capture all cell phone buyers as well. The Center for Democracy & Technology has more on this statute. Likewise, last year, Minnesota enacted a similar law applicable to people who sell scrap vehicles, presumably aimed at sellers of stolen vehicles. I suspect that, especially if the gun sales videorecording bills are enacted, similar laws will be proposed for sales of alcohol (which is often sold to underage buyers who have fake IDs, or to straw purchasers who are buying on behalf of an underage buyer), for sales of marijuana in places where it has been legalized, for sales of legal substances that are nonetheless potential drug or bomb precursors, and so on.

The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”

Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”

The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

The “USA Freedom Act”—the proponents of which were heralding as “NSA reform” despite its suffocatingly narrow scope—died in the august U.S. Senate last night when it attracted only 58 of the 60 votes needed to close debate and move on to an up-or-down vote. All Democratic and independent senators except one (Bill Nelson of Florida) voted in favor of the bill, as did three tea-party GOP Senators (Ted Cruz, Mike Lee, and Dean Heller). One GOP Senator, Rand Paul, voted against it on the ground that it did not go nearly far enough in reining in the NSA. On Monday, the White House had issued a statement “strongly supporting” the bill. The “debate” among the Senators that preceded the vote was darkly funny and deeply boring, in equal measure. The black humor was due to the way one GOP senator after the next—led by ranking intelligence committee member Saxby Chambliss of Georgia (pictured above)—stood up and literally screeched about 9/11 and ISIS over and over and over, and then sat down as though they had made a point.

So the pro-NSA Republican senators were actually arguing that if the NSA were no longer allowed to bulk-collect the communication records of Americans inside the U.S., then ISIS would kill you and your kids. But because they were speaking in an empty chamber and only to their warped and insulated D.C. circles and sycophantic aides, there was nobody there to cackle contemptuously or tell them how self-evidently moronic it all was. So they kept their Serious Faces on like they were doing The Nation’s Serious Business, even though what was coming out of their mouths sounded like the demented ramblings of a paranoid End is Nigh cult. The boredom of this spectacle was simply due to the fact that this has been seen so many times before—in fact, every time in the post-9/11 era that the U.S. Congress pretends publicly to debate some kind of foreign policy or civil liberties bill. Just enough members stand up to scream “9/11″ and “terrorism” over and over until the bill vesting new powers is passed or the bill protecting civil liberties is defeated.

Eight years ago, when this tawdry ritual was still a bit surprising to me, I live-blogged the 2006 debate over passage of the Military Commissions Act, which, with bipartisan support, literally abolished habeas corpus rights established by the Magna Carta by sanctioning detention without charges or trial. (My favorite episode there was when GOP Sen. Arlen Specter warned that “what the bill seeks to do is set back basic rights by some nine hundred years,” and then voted in favor of its enactment.) In my state of naive disbelief, as one senator after the next thundered about the “message we are sending” to “the terrorists,” I wrote: “The quality of the ‘debate’ on the Senate floor is so shockingly (though appropriately) low and devoid of substance that it is hard to watch.” So watching last night’s Senate debate was like watching a repeat of some hideously shallow TV show. The only new aspect was that the aging Al Qaeda villain has been rather ruthlessly replaced by the show’s producers with the younger, sleeker ISIS model. Showing no gratitude at all for the years of value it provided these senators, they ignored the veteran terror group almost completely in favor of its new replacement. And they proceeded to save a domestic surveillance program clearly unpopular among those they pretend to represent.

This week, congressional Republicans gave themselves the power to slash the annual salary of any individual federal worker to as low as $1 — and the budget of any individual federal program right down to zero. They executed this attack on the independence of the civil service by reviving an obscure provision enacted by Congress in 1876: The Holman Rule, named after the Indiana congressman who devised it, empowers any member of Congress to submit an amendment to an appropriations bill that targets the funding of a specific government program or employee. The rule was devised before the advent of a nonpolitical, career civil service and was rarely invoked in the modern era. In 1983, Democratic speaker Tip O’Neill laid it to rest. For the past three decades, Congress has had the power to slash any agency’s overall budget, but not to target specific projects or civil servants for funding cuts or downsizing. @media (min-width: 1024px) { .ad.vp-1024-plus { display: block; } } Until now. “This is a big rule change inside there that allows people to get at places they hadn’t before,” House Majority Leader Kevin McCarthy told reporters this week. “All agencies should be held accountable and tested in a manner and this is an avenue to allow them to do it.” This big change flew under the radar when it was enacted Tuesday, as congressional Republicans’ (quickly forfeited) attempt to gut the House ethics office sucked up all available media attention. But the Holman Rule could prove more consequential, particularly if the GOP proves eager to deploy its new weapon.

As I noted in an earlier post, Nathan Smith, a U.S. Army captain deployed to Kuwait as part of the campaign against ISIL, Operation Inherent Resolve, has sued the President, seeking a declaration that Congress has not authorized the hostilities in Iraq and Syria and that therefore the War Powers Resolution requires the President to remove U.S. forces from hostilities in those nations. On Tuesday, the Department of Justice filed a motion to dismiss the case. Its brief in support of the motion includes one argument that I think is correct (albeit not for all the reasons the government offers) — namely, that Smith lacks standing to sue. That ought to be sufficient to have the case dismissed. The brief also includes an argument on the merits (albeit not designated as such) that is very interesting and potentially important — an account of how Congress has allegedly authorized Inherent Resolve in three ways: (i) in the 2001 AUMF; (ii) in the 2002 AUMF; and (iii) in current appropriations statutes. The heart of the brief, however, is devoted to a third argument — that Judge Koller-Kotelly must dismiss the case on the basis of the political question doctrine — that is not only wrong, but that simply ignores the Supreme Court’s recent (and repeated) repudiation of that very argument.

On page 39 of its 45-page brief, the government finally gets around to the reason why the court should dismiss the complaint: Smith lacks standing. Importantly, Smith’s theory of standing is not that he — an Army captain deployed to perform intelligence services in Kuwait — is more likely to be injured or killed by virtue of the President’s decision to deploy troops into hostilities in Iraq and Syria. It is, instead, that the President’s alleged failure to comply with the War Powers Act results in Captain Smith’s own violation of his officer’s oath to “support and defend” the Constitution “against all enemies, foreign and domestic,” and to “bear true faith and allegiance” to the Constitution.

The government’s standing argument begins (p. 35) by suggesting that “[p]laintiff’s claim that he is being forced to betray his oath is insufficient to establish standing because the violation of an oath, by itself, is not an injury in fact.” The cases the government cites for that proposition, however, do not say that a forced oath violation would not be an injury in fact — and that’s not a question the judge needs to resolve. What the cases establish, instead, is the point the government finally argues at page 39 — namely, that a government officer does not violate his oath by complying with superiors’ orders, even if it turns out that the law prohibits the military operation in which those orders are issued. Indeed, Smith would not violate his oath of office even if his superiors’ orders themselves were unauthorized, or if the intelligence activities he is ordered to performed were unauthorized. But he does not allege even those things (as I discuss below, he does not, for instance, alleged that he is being ordered to do anything unlawful). Instead, he merely argues that because President Obama should have withdrawn troops from Syria and Iraq 60 days after their deployment, Smith himself is violating his oath to “bear true faith and allegiance to the Constitution.” This is a non sequitur: Even if Smith is right that the continuation of Operation Inherent Resolve is unlawful, that would not mean that he is acting in violation of his oath. (Much more on this in my earlier post.) And that simple fact is reason enough for Judge Koller-Kotelly to dismiss the case.

In explaining the timing of Trump’s declarations, one always has to look at what he is trying to divert attention from, and right now the uproar over the anti-Muslim travel ban is no doubt involved.  But the supposed trigger for these tweets and for an anti-Iran blast that Trump’s national security adviser delivered in the White House press room was an Iranian test of a ballistic missile.  Missiles have long been used by Iran-bashers as a red herring.  Missiles of various ranges are so much integrated into conventional armed forces, and missile proliferation has gone so far in the Middle East, that it does not make sense to single out an Iranian missile test as something that, in the hyperbolic language of security adviser Flynn, are among Iranian actions that “undermine security, prosperity, and stability throughout and beyond the Middle East and place American lives at risk.” If rivals of Iran can’t develop their own missiles, they buy them.  Saudi Arabia has bought them from China.  The United Arab Emirates has bought them from North Korea.  Short of the negotiation of a comprehensive regional missile disarmament pact, Iran will have missiles. Former State Department intelligence officer Greg Thielmann highlights the most important points about this latest attempt to brew a tempest in the Iranian missile teapot.  A prohibition on Iranian missile activity incorporated in a United Nations Security Council resolution that was enacted during Barack Obama’s presidency was intended and used, just like other sanctions, as one more pressure point on Iran to induce it to negotiate restrictions on its nuclear program.  Accordingly, the later Security Council resolution enacted after negotiation of the nuclear agreement included only a hortatory clause “calling” on Iran to lay off the missile tests.  It is at best a stretch to call the latest test a “violation” of this resolution, and it certainly is not a violation of the nuclear agreement or any other agreement that Iran has signed.  As long as the nuclear agreement lives and Iran does not have nuclear weapons, Iranian ballistic missiles are of minor importance, and they do not pose a threat to U.S. interests (and this most recent test, by the way, was a failure). Thielmann summarizes as follows the environment that Iranian defense planners face, and the reasons Iranian missiles are a symptom rather than a cause of conflict and weapons proliferation in the Middle East: “During the eight-year war following Iraq’s invasion, Iran was more the victim of than the source of ballistic missiles raining down death and destruction. In spite of its large missile arsenal, Iran has no long-range ballistic missiles; three of its regional neighbors do. Iran has no nuclear warheads for its missiles; two of its regional neighbors do. Iran does not have a large and modern air force as an alternative means of projecting force as do Saudi Arabia and Israel.”

The other bit of allegedly “destabilizing behavior” by Iran on which Flynn focused concerned the civil war in Yemen and most recently an attack by Houthi rebels on a Saudi warship.  Flynn disregarded how whatever aid Iran gives to the Houthis pales in comparison to the direct military intervention by the Saudis and Emiratis, which is responsible for most of the civilian casualties and suffering in this war.  It would be surprising if the Houthis, or any force on the opposite side of this conflict from the Saudis, did not try to go after Saudi forces at sea as well as on land.  Flynn also disregarded how the Houthis are not obedient clients of Iran, how in the past the Houthis have ignored Iranian advice urging restraint in their operations, and how there is no evidence whatever, at least not among what is publicly known, that Iran had anything to do the attack on the Saudi ship, let alone of posing a similar threat to U.S. assets in the area.  Nor was anything said about how the major U.S. terrorist concern in Yemen—Al Qaeda in the Arabian Peninsula—is on the anti-Houthi side in this war.  Nor anything about how former president and longtime U.S. counterterrorist partner Ali Abdullah Salih has been allied with the Houthis. Flynn’s statement represents a taking sides in a local rivalry for no good reason, and in which the United States does not have a critical stake.  One of several harmful consequences of this kind of needless side-taking is to embolden those who side is taken to engage in more destructive behavior without being brought to account.  James Dorsey describes this way the destructive behavior that Riyadh is encouraged to take by the United States siding so unquestioningly with the Saudis in their rivalry with Iran: “A four-decade long, $100 billion global Saudi effort to box in, if not undermine, a post-1979 revolution Iranian system of government that it sees as an existential threat to the autocratic rule of the Al Saud family by funding ultra-conservative political and religious groups has contributed to the rise of supremacism, intolerance and anti-pluralism across the Muslim world and created potential breeding grounds of extremism.”

In the latest indication of a growing libertarian wing of the GOP, the Republican National Committee passed a resolution Friday calling for an investigation into the “gross infringement” of Americans’ rights by National Security Agency programs that were revealed by Edward Snowden. The resolution also calls on on Republican members of Congress to enact amendments to the Section 215 law that currently allows the spy agency to collect records of almost every domestic telephone call. The amendment should make clear that “blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court,” the resolution reads.

The measure, the “Resolution to Renounce the National Security Agency’s Surveillance Program,” passed by an “overwhelming majority” by voice vote, along with resolutions calling for the repeal of the Foreign Account Tax Compliance Act and reaffirming the party’s pro-life stance, according to Reince Priebus, the RNC chairman. Among other points, the resolution declares “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution,” a claim embraced by civil libertarians of both parties. The revelation of the NSA programs has caused deepened a rift within the Republican Party between national security hawks and libertarians, but at the meeting, no RNC member rose to speak against the resolution.

WHEREAS, the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause, and generally prevents the American government from issuing modern-day writs of assistance; WHEREAS, unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act; and WHEREAS, Republican House Representative Jim Sensenbrenner, an author of the Patriot Act and Chairman of the House Judiciary Committee at the time of Section 215′s passage, called the Section 215 surveillance program “an abuse of that law,” writing that, “based on the scope of the released order, both the administration and the FISA (Foreign Intelligence Surveillance Act) court are relying on an unbounded interpretation of the act that Congress never intended,” therefore be it

Iranian parliamentarians have proposed a bill to increase uranium enrichment to 60 percent in the event of new Western sanctions, the Iranian Press TV reported Wednesday. In addition to raising the enrichment level significantly, the draft, signed by 100 legislators, would resume activity at the Arak heavy water reactor.

“If the bill is approved, the government will be obliged to complete nuclear infrastructure at the Fordo and Natanz [enrichment facilities] if sanctions [against Iran] are ratcheted up, new sanctions are imposed, the country’s nuclear rights are violated and the Islamic Republic of Iran’s peaceful nuclear rights are ignored by members of the P5+1,” Seyyed Mehdi Mousavinejad, an Iranian lawmaker, said on Wednesday, according to Press TV.

The new bill would be in direct violation of the November 24 interim agreement forged between Iran and six world powers, under which Tehran agreed to halt work at Arak, cap its enrichment at five percent, and neutralize its stockpile of 20% enriched uranium. That agreement has not yet been implemented, because the sides still have to resolve “technical details.” The proposal also serves as a message to world powers about the Iranian commitment to advancing the nuclear program, lawmakers said. “The bill is aimed at giving an upper hand to our government and the negotiating team… It will allow the government to continue our nuclear program if the Geneva deal fails,” Hossein Taghavi Hosseini, spokesman for parliament’s National Security and Foreign Affairs committee, said, according to IRNA.