It is increasingly likely that the U.S. government will use military commissions to help bring about the closure of its detention facility at Guantanamo Bay and to help resolve the question of what to do with the prison’s remaining detainees.  As reported by the Washington Post on March 5^th, President Obama’s advisers plan to recommend that Khalid Sheik Mohammed (KSM) and four accomplices be tried before a military tribunal, a little over a month after the Department of Justice withdrew charges from a military court in preparation for a transfer to the Southern District of New York.  White House Press Secretary Robert Gibbs stated that no decision had been made, but noted “security and logistical concerns” around holding trials in Manhattan.  After the transfer of a Palestinian detainee to Spain in February, 188 detainees remain in Guantanamo.  More than a year after President Obama’s call for the closing of Guantanamo, the task force reviewing the detainees’ cases recommended the prosecution of 35 of the remaining detainees in military or civilian courts, the transfer or release of 110 prisoners, and the indefinite detention of 53 more.  Of the 110 detainees slated for repatriation or transfer, there are approximately 30 Yemenis, who would only be released upon an improvement of security conditions in their home state.

Despite the remaining questions about the current detainees, some elements of the President’s plan to close Guantanamo have become clearer.  As stated in a December 15, 2009 letter signed by five senior officials, the Obama administration intends to purchase the Thompson Correctional Center in Illinois to house the remaining detainees being held in Guantanamo.  While there is no timeline as of yet for the relocation of the detainees, the letter noted that the prison would first be renovated to exceed the security measures currently in place at the federal “Supermax” facility in Colorado.  Any transfers to the United States also would have to overcome the Congressional prohibition on relocation.  Keeping the KSM case in a military court is expected to help secure Republican support for the closure of Guantanamo, and the Obama administration has engaged in negotiations with Senator Lindsey Graham (R-SC) in an attempt to produce a politically viable solution.  The letter further explained that going forward, the government intends to conduct both military commissions and trials in federal courts.

The Administration’s proposals have raised concerns from those on both sides of the aisle.  Anthony Romero, Executive Director of the American Civil Liberties Union, objected to the idea of indefinite detentions, stating, “There is no statutory regime in America that allows us to hold people without charge or trial indefinitely.”  Similarly, Amnesty International issued a strong rebuke to the rumored decision, writing, “Each day that passes without accountability, remedy and resolution of detainee cases in line with U.S. human rights and humanitarian law obligations compounds the damage done to the vision of the Universal Declaration of Human Rights already wrought by actions taken by the USA in the name of ‘countering terrorism’ over recent years.”

At the same time, Senator Graham has been an outspoken critic of the Administration’s plans to close Guantanamo, stating in a February interview, “I’m trying to create a system that will allow us to fight this war within our values, capture enemy prisoners, find out what they know about enemy operations, keep them off the battlefield, then decide what system to put them into, military or civilian, but always focused on the fact that we’re at war.  I will help this administration, but we will never be able to close Guantanamo Bay going down the road they have chosen.  The American people don’t understand putting Khalid Sheikh Mohammed in civilian court in New York.”  Graham also noted the 20% recidivism rate amongst former Guantanamo detainees as a reason to question both the release of prisoners and his own confidence in Deputy National Security Adviser for Homeland Security and Counterterrorism John Brennan.

For information about the current Guantanamo detainees, see this Washington Post graph of the declining number of detainees since 2002 as well as the current composition of those remaining.

Image courtesy of the Associated Press, via the Guardian

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Concerns about the use of Unmanned Aerial Vehicles (UAVs) or drones to conduct targeted killings falls into two related categories: moral and legal questions concerning the legitimacy of drone operations and practical considerations regarding their strategic effectiveness.

Moral and Legal Considerations

Perhaps the most intractable legal question concerning drone strikes is what type of law should apply to them.  Proponents of targeted killings invoke the right of self-defense against armed attack and turn to the laws of war to justify drone attacks.  Humanitarians and others counter that because many drone attacks are occurring in countries with which the U.S. is not at war (e.g. Pakistan and Yemen), peacetime humanitarian law applies.

In fact, it would be imprudent to suggest that one regime would always apply to the exclusion of the other.  In practice, strikes must be evaluated on an individual basis under a regime that reflects the nature of the target being pursued and the theater in which the strike occurs.  Strikes against terrorists and insurgents on the periphery of a war zone will inevitably be held to a different standard than strikes against other actors in other parts of the world.  The search for a single over-arching legal regime to govern the use of drones may be inhibited by the diversity of theaters and uses to which drones have been applied.

Regardless of the legal regime applied, at least four considerations are central to determining the morality and legality of the drone campaign:  proportionality, discrimination, the agent carrying out the strikes, and the process used to make targeting decisions.

Proportionality

The proportionality of drone strikes must be viewed relative to the threat that they are designed to counter.  Ostensibly, the U.S. Government is attacking al-Qaeda operatives intent on unleashing catastrophic terrorist attacks against the United States and Taliban insurgents determined to kill agents of the Afghan, Pakistani, American and other NATO governments.  When considered relative to the available policy alternatives, few analysts dispute the proportionality of drone strikes.

Discrimination/Distinction

Instead, opponents of drone strikes focus their critiques on alleged shortcomings in the capacity of the drone campaign to discriminate between combatants and non-combatants.  The drone campaign is estimated to have killed over 1200 people since 2004.  The morality and legality of the drone strike policy hinges on the veracity of conflicting estimates regarding the civilian casualty rate.

The drone campaign is indisputably effective at killing al-Qaeda and Taliban leaders.  The Long War Journal reports that from January 2008-January 2010, drone strikes killed at least 15 high-value al-Qaeda targets, 1 high-value Taliban leader, and 16 mid-level al-Qaeda and Taliban leaders.

Peter Bergen and Katherine Tiedemann at the New America Foundation have released the most comprehensive analysis of the U.S. policy of UAV drone strikes against al-Qaeda and Taliban operatives in Pakistan to-date.  Bergen and Tiedemann estimate that approximately one out of every three fatalities caused by drone strikes is civilian.  Their estimate, like most other sources, is based on “reliable news media reports.”  In contrast, the Pakistani government has alleged a civilian fatality rate as high as 98% while other sources, like the Long War Journal, suggest figures as low as 10%.  Although it is clear that both combatants and non-combatants are being killed by drone strikes, the discriminatory effectiveness of the drone campaign remains difficult to assess.

Agent

Others have expressed concern regarding who is authorized to execute drone strikes.  Public reporting indicates that both the military services and the CIA are carrying out drone missions.  To the extent that a civilian agency is conducting lethal operations outside of a war zone in a highly public fashion and on an unprecedented scale, this raises important questions about the U.S. Government’s principles and procedures regarding the use of deadly force.

Process

It follows then that process should be another focus of concern.  How are targets selected?    Under what circumstances can strikes be carried out?  Who can be targeted?  This last question has been asked with increased urgency since Director of National Intelligence, Dennis Blair, acknowledged in Congressional Testimony that even U.S. citizens abroad could be targeted for killing under certain circumstances.  For obvious reasons, the processes that drive the drone campaign remain entirely confidential.

Practical Considerations

Beyond, but not separate from, the moral and legal dimensions of the drone campaign, it is important to assess the strategic effectiveness of the drone campaign.  Here also, there is significant disagreement.  The diversity of perspectives in this area is best reflected in the contrast between the enthusiastic views of the U.S. Government, the cautioned analysis of Peter Bergen and Katherine Tiedemann, and the categorical opposition of counterinsurgency experts David Kilcullen and Andrew Exum to the drone campaign in Pakistan.

The U.S. Government is convinced that the drone campaign is strategically productive.  The pace of drone strikes continues to increase.  A total of 58 strikes were launched in Pakistan in 2009 and 18 have been launched this year thru Feb. 24th.  Tactically, the U.S. Government has clearly assessed that drone strikes are effective at disrupting al-Qaeda and Taliban operations.

However, Bergen and Tiedemann dispute this assessment with a number of observations:

• al-Qaeda continues to train Western recruits in Pakistani camps
• Taliban operations in Afghanistan and Pakistan continue
• Drone strikes have lost the element of surprise
• The United States loses valuable intelligence by killing rather than capturing terrorist and insurgent leaders

Bergen and Tiedemann and prominent terrorism scholars including Bruce Hoffman caution that the drone campaign may be a tactical success belying a broader strategic failure.

David Kilcullen and Andrew Exum made precisely this claim in an op-ed some months ago.  They argued that the U.S. preoccupation with killing terrorist leaders both distracts from and undercuts what should be the core American mission in Pakistan — reducing Taliban and al-Qaeda success at intimidating the Pakistani populace into submission.

A Brave New World

Most analysts believe that drone strikes will continue unabated in the near-term.  As Bergen and Tiedemann note, it seems that the drone strike policy is “the least bad” option available to policymakers in a very difficult circumstance.

Finally, it is not too early for the United States to begin thinking about what it should be doing today to deal with the eventuality that other states and even non-state actors will employ drones against U.S. interests.  Should the United States seek to establish norms of use and non-use as it did with nuclear weapons, pursue a policy of counter-proliferation as it did after the advent of the cruise missile, or resign itself to the design of tactical counter-measures to address the inevitability of enemy drones?  These important questions should be considered alongside the more immediate moral, legal, and practical considerations discussed in this article.

Image courtesy of Wired.com

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Congress’s decision to extend these provisions without change has angered many civil liberties advocates, as they view the use of Section 215 and National Security Letters as particularly invasive practices.  Laura W. Murphy, Director of the ACLU Washington Legislative Office, stated:

Congress refuses to make reforming the Patriot Act a priority and continues to punt this crucial issue down the road.  Once again, we have missed an opportunity to put the proper civil liberties and privacy protections into this bill.  Congress should respect the rule of law and should have taken this opportunity to better protect the privacy and freedom of innocent Americans.  We shouldn’t have to live under these unconstitutional provisions for another year.

Republican Senator Jeff Sessions, on the other hand, applauded the choice to extend the sections without change, stating:

Recent terror attacks, such as those at Fort Hood and on Christmas Day, demonstrate just how severe of a threat we are facing.  This extension keeps Patriot’s security measures in place and demonstrates that there is a growing recognition that these crucial provisions must be preserved.

Senator Sessions’s depiction of the recent terrorism-related events captures what is almost certainly the explanation for Congressional Democrats’ choice to turn away from their bills.  In particular, the Obama administration (and by extension Democrats generally) has come under a great deal of fire for the attempted Christmas Day bombing as well as the handling of Umar Abdulmutallab subsequent to his arrest.  With midterm elections approaching and Democrats already facing a bleak election season, they almost surely did not want to risk taking another action that would allow them to be branded as soft on terror.  That said, it is noteworthy that Congress extended the three sections for only one year, whereas the House and Senate Judiciary Committee bills would have extended the sections (albeit with significant changes) through 2013.  Thus, it could be that Congressional Democrats wish to table the issue until the political climate is more favorable and then implement the proposed changes at that later date.

Image Courtesy of CBS News

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Five American Muslims who were detained in Pakistan on suspicion of terrorism have alleged torture by American and Pakistani authorities.  The men, all from the Washington, DC area, were detained in December shortly after arriving in Pakistan.  The Pakistani government has accused them of plotting terrorist attacks in Pakistan and seeking to join Islamist militants fighting U.S. troops in neighboring Afghanistan.

On February 2nd one of the men tossed a tissue to reporters while being led into court.  The tissue read, “Since our arrest, the U.S., F.B.I., and Pakistani police have tortured us.  They are trying to set us up.  We are innocent.  They are trying to keep us away from public, media and families and lawyers.  Help us.”

A spokesman for the American Embassy in Islamabad, Richard W. Snelsire, said the United States “categorically rejects those allegations,” but takes seriously the claims and will ask Pakistan to address the accusations.

This will only further complicate current U.S.-Pakistan relations, as the United States has been pressing an often-reluctant Pakistan to crack down on militants, many of whom are believed to be carrying out attacks on U.S. and NATO forces.

For more information see here.

Image courtesy of the Christian Science Monitor

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Nonetheless, last week the FBI closed the case, clearing other scientists of culpability and deciding only Ivins could have committed the terrorist act.  On February 19, 2010, the Department of Justice released its Amerithrax Investigative Summary, which begins,

In its early stages, despite the enormous amount of evidence gathered through traditional law enforcement techniques, limitations on scientific methods prevented law enforcement from determining who was responsible for the attacks. Eventually, traditional law enforcement techniques were combined with groundbreaking scientific analysis that was developed specifically for the case to trace the anthrax used in the attacks to a particular flask of material.  By 2007, investigators conclusively determined that a single spore-batch created and maintained by Dr. Bruce E. Ivins at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”) was the parent material for the letter spores.  An intensive investigation of individuals with access to that material ensued. Evidence developed from that investigation established that Dr. Ivins, alone, mailed the anthrax letters.

In addition to access, Ivins logged excessive nighttime hours, was absent during the time the envelopes were mailed, and could have made the trip to the mailbox in Princeton, NJ, during that window.  Critics say that without physical or other decisive evidence, the investigation should not be closed.  Regardless, the Justice Department is satisfied with its result.  Assistant Director in Charge Joseph Persichini, of the FBI Washington Field Office, stated categorically that, “Bruce Ivins was responsible for the death, sickness, and fear brought to our country by the 2001 anthrax mailings.”

Normally, when a suspect is not formally indicted, the evidence against him is not publicly released, in part due to the presumption of innocence of criminal defendants.  However, according to the FBI’s website, the U.S. Attorney for the District of Columbia stated at the press conference that “because of the extraordinary public interest in this investigation . . . we are compelled to take the extraordinary step of providing the victims, their families, Congress, and the American public with an overview of some recent developments as well as some of our conclusions.”  The Amerithrax Investigative Summary, 96 pages in length, chronicles in detail the investigation conducted and the evidence obtained.  On the last page, its brief conclusion states, “Based on the evidence set forth above, the investigation into the anthrax letter attacks of 2001 has been concluded.”

Critics of the investigation will no doubt continue to question its processes and the substance of the evidence uncovered.  There is, however, a larger national security issue lurking between the lines.  Nine years later, is the U.S. population prepared to deal with a widespread anthrax attack?  A December 2009 poll conducted by the Harvard School of Public Health found that while 89% of respondents would follow recommended procedures to obtain necessary antibiotics, almost 40% would not begin taking them immediately, as directed.  That study, at a minimum, raises concerns about how effective federal, state, and local programs would be at reducing the effects of such a bio-terror attack, even assuming those programs themselves are operating under ideal conditions.

Image courtesy of the AP, via the Washington Post

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Despite the best efforts of Google and its partners at NSA, improving cybersecurity to a level acceptable from a national security standpoint might be impossible in the near term.  Analysts who measure the cost-effectiveness of defensive measures in cyberspace relative to the accelerating growth of new cyber attack methods suggest that the defending side in cyberspace is already at a severe disadvantage and that the offensive-defensive gap is widening.  Thus, neither the NSA nor any other defense agency will be able to guarantee the complete integrity of Google’s networks.  The CIA recently acknowledged that cyber-attacks have already caused multiple power failures in American facilities outside the United States and in 2009, allegations surfaced that Chinese or Russian hackers placed “logic bombs”–software that is harmless now but could be triggered in the future–in the U.S. electric grid.

The vulnerability of U.S. networks, both public and private, was highlighted on February 16 during a simulation by the Bipartisan Policy Center called “Cyber ShockWave.”  Organized by former CIA Director, Gen. Michael Hayden, Cyber ShockWave simulated a malware attack on smart phones that escalated until it shut down financial markets and blacked-out New York, Philadelphia, and Washington, D.C.  Prominent figures in the defense and intelligence establishments, including former Security of Homeland Security, Michael Chertoff, and former Director of National Intelligence, John Negroponte, took on roles in a mock cabinet attempting to discover the source of the attack and respond, but they were unable to prevent significant damage.

Ironically, the Cyber ShockWave simulation was held at the Mandarin Oriental hotel in Washington, likely an unintentional allusion to one of America’s principle cyber adversaries, China.  Cyber terrorists acting without a flag present a significant threat and are perhaps capable of carrying out significant cyber-attacks, but analysts also believe that the cyber-attacks with the highest potential impact likely require the resources of a major power such as China.  Besides its presumed capability, incidents like the Chinese Google attack, if U.S. reports are accurate, suggest that China possesses the intent to carry out such disruptions in cyberspace.  Although the NSA did not definitively prove Chinese governmental involvement, it has traced the Google attack to computers in a prominent Chinese military academy.  American officials, including Hillary Clinton, indicated their belief that the attack was the work of a state-actor, strongly suggesting China as the culprit.  “States, terrorists and those who would act as their proxies must know that the United States will protect our networks,” Clinton said, although she provided no further details about what the American response would be.

Given that defensive cybersecurity measures seem grossly inadequate and offensive cyber-capabilities are relatively cheap, officials seem to be thinking seriously about the possibility of some type of punitive response to deter cyber-meddlers like China, attempting to discourage attacks on U.S. networks with the threat of retaliatory action.  However, just what that retaliatory action will look like remains a mystery. On the one hand, the United States might choose to deter cyber-attacks by threatening a kinetic response.  Such a deterrence posture would frame cyber-attacks as acts of war worthy of conventional retaliatory force but for this reason, presents a risk of escalation that the United States might be unwilling to bear.  On the other hand, the United States might respond through diplomatic means or by some form of economic sanction.  This, however, might have the converse problem of under-deterring.

Another option that has already received considerable analysis is the deterrence of cyber-attacks by the threat of attacks in kind, through cyberspace.  “Cyberdeterrence,” as defense intellectuals like Martin Libicki and Richard Kugler have referred to it, seeks to import the strategic deterrence framework from the Cold War nuclear era to cyberspace, where the weapons of mass destruction would consist of packets of data rather than nuclear payloads.  Under such a policy, the United States would respond to any attack on its cyber assets with a calculated cyber-retaliation inflicting similar damage on the attacking state’s cyber networks.  The retaliatory attack could be scaled to the severity of the initial attack, warding off both minor cyber-breaches and major cyber-catastrophes–the kind contemplated by Cyber ShockWave.

According to James Lewis, a cyber-expert at the Center for Strategic and International Studies, “The U.S. is widely recognized to have pre-eminent offensive cybercapabilities, but it obtains little or no deterrent effect from this.”  Although the secrecy surrounding U.S. cyber-offenses and the lack of any publicly articulated deterrence policy leave the retaliatory threat an attacking state faces from the United States uncertain, Lewis’ statement that the United States receives almost no deterrent effect from cyber-weapons may be an overstatement.  The presumed preeminence of U.S. cyber-offenses must force some caution on would-be attackers, even if it is difficult to measure.  In some sense, a form of cyberdeterrence is unavoidable. Nonetheless, Lewis and others can point to fundamental challenges facing effective cyberdeterrence, relating to the structure of cyberspace itself.  The virtual anonymity offered by cyber networks makes the attribution of any attack problematic, confounding the state trying to direct a retaliatory attack and therefore undercutting the threat to respond in the first place.  Even beyond the attribution problem, the propensity for cyber-attacks to lead to unanticipated cascade effects creates the risk of unintended escalation for the retaliating state, making cyberdeterrence somewhat unpredictable.

Despite these and other difficulties, cyberdeterrence might be the best short-term option for protecting against massive cyber-attacks for which there are no adequate cyber-defense measures.  Ultimately, effective and reliable attribution itself might be the best deterrence mechanism for potential attackers like China, whose economic interest in fostering growth and encouraging foreign investment will suffer if outsiders lose trust in its cyber networks.  But even if the attribution problem is impossible to overcome in a technical sense, it might be resolved at least in part by a renewed emphasis on creative strategic thinking, such as that which occurred during the nuclear age.  Particularly since cyber-capabilities are constantly evolving, the influence of deterrence logic will be especially important for shaping cyber-weapons to strategic realities in this formative stage of the cyberwar era.

Image courtesy of CBS News

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Assassinating foreign leaders outside of an ongoing armed conflict is of questionable legality, even if doing so would prevent a broader war.  Humanitarian interventions such as the NATO bombings in Kosovo–acts deliberately aimed at saving lives–are prohibited by the laws of war, which do not differentiate between the motivations for acts of armed aggression across borders.   Why do the laws of war–including international humanitarian law (IHL) and international criminal law–in these and many other real and hypothetical cases forbid actions that could result in a net saving of lives?  Gabriella Blum, an Assistant Professor at Harvard Law School, examines that question in the Winter 2010 issue of the Yale Journal of International Law.  Ultimately, she concludes that international law should incorporate a humanitarian necessity exception that would legalize tactics and strategies aimed at saving lives.

The ostensible fundamental purpose of international humanitarian law is to minimize humanitarian suffering of combatants and civilians during the conduct of hostilities.  However, by neglecting to incorporate a humanitarian necessity defense into the relevant international agreements, IHL implicitly condemns some humanitarian acts that violate the letter of the rules while striving to meet their explicit purpose.  Blum explains that the moral rationale for that condemnation is either put in terms of deontology (blanket rules against certain acts in war that are inherently morally repugnant) or consequentialism (having the absolute rules results in more good than harm).

Arguments for broad rules in war stand on shaky grounds.  Blum argues that soldiers are inherently used as means for ends, which suggests the basic utilitarian moral framework of war.  As she puts it, “War is about committing evils and choosing between evils.”  Blanket prohibitions inevitably cause problems when those choices between evils emerge, particularly when a large but legal evil butts up against a lesser but illegal one.  In short, if IHL wants to save lives, it should not logically object to lesser, illegal evils.

The consequentialist arguments for absolute rules are more subtle.  Some argue that it is quite difficult to determine in the fog of war what course of action will be the most humane.  In the absence of certain knowledge, we should not allow combatants to gamble with human lives.  However, as Blum notes, the fact of uncertainty should act “as a risk to be weighed rather than . . . an absolute bar [to humanitarian actions].”  Also, there are inevitably cases where the information is more certain, and in those cases it would seem appropriate to allow some discretion to the combatants (subject to ex post scrutiny in IHL courts).  Blum answers similar arguments that allowing a humanitarian exception could lead to a “slippery slope” of condoning war acts by pointing out that such necessity defenses would always be subject to oversight.  Someone who tried to use them would still have to prove that they took the more humane option; they would not be able to simply plead the humane exception and get away with war crimes.

One final argument against Blum’s humanitarian exception is based on international institutions.  Given that the laws of war will have to be upheld by international organizations, it would seem ill-advised to introduce a fairly complicated standard-based law when very diverse judges and organizations will have to apply it.  One would think that crystalline rules would need less cultural translation or misunderstandings.  After all, everyone can understand “don’t kill civilians,” whereas calculations of lesser humanitarian evils might be subject to considerable disagreement by different judges.  Blum claims that those concerns, while legitimate, are overstated.  It may not be much more ambiguous to say “don’t kill civilians unless you’ll save more lives by doing so.”  Furthermore, having laws which are more fine-tuned to moral subtleties may result in an increase in respect for IHL which tracks better with real-life moral dilemmas.

Overall, Blum’s article provides a fresh take on a long-standing problem, and her proposals may very well eventually become an important part of international law.

Image courtesy of the BBC

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Drones raise unique security issues as their data streams, and possibly control streams, must be secured.  Unlike a manned airplane controlled from a cockpit and generally involving a closed system of control, a drone is often remote-controlled through a two-way data stream carried over sometimes thousands of miles.  Such data streams can be vulnerable to hacking, like any computer network.  According to the Wall Street Journal, in December 2009, militants in Iraq were able to hack a drone’s video feed using low cost off-the-shelf software.  While there was no evidence that the militants were able to take control of the drone, they were able to download and see the drone’s video feed, perhaps allowing them to evade U.S. operations.

The stark difference between resource requirements between the militant hackers and the U.S. military is telling.  While Reaper drones like the one hacked can cost over $10 million, the militants used a computer program that cost around $25.  The low cost of the program allows militants to proliferate the software and thereby increase the danger that drones can be hacked and their video feeds watched by enemy forces.

The ability of militants in Iraq to hack drone video feeds should be cause for concern, especially as far more advanced military forces such as Russia and China have extensive cyber-warfare capabilities.  While Iraqi militants relied on cheap software to capture a video feed, other states’ capabilities could conceivably allow a foreign force to hijack a drone, either to alter the mission or crash the drone before the mission can be completed.  Increased reliance on drone warfare will also increase the opportunities for enemy cyber-warfare units to hack or hijack the unmanned vehicles.

U.S. drone vulnerability stems from the fact that once a drone is far from its base, satellite uplinks are necessary to link the drone to the base.  Such uplinks are vulnerable to hacking, unless the data stream is encrypted.  But the drones’ data stream is unencrypted, and unless significant expenditures are made to add encryption to the proprietary satellite technology, the vulnerability will remain.  The unencrypted data stream vulnerability carries over to other U.S. satellite traffic, as a 2005 CIA report describes.  While the control data stream of drones is encrypted, the ability of enemies to access U.S. drone intelligence seriously undermines the ability of the United States to use that intelligence for mission purposes.

U.S. drone vulnerabilities have been known to the U.S. military since at least the 1999 Yugoslav war.  Whether it was bureaucratic indifference or inertia, the problem was not addressed.  Most worrying, U.S. commanders may have seriously underestimated the ingenuity and technical proficiency of militants.  If this is so, it must be hoped that the same commanders will not continue to underestimate the threat to drone data-gathering and control posed by a lack of data stream security.  Only by addressing this security hole can the ever-growing drone force be considered a fully functional weapon of war, useful in all possible conflicts and with a varied mission profile.

For more, see the article from Wired.com and the CBS news expose.

Image courtesy of Defense Tech

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On March 23rd, the Supreme Court is scheduled to hear arguments concerning the power of a federal judge to compel the Executive to admit detainees into the United States.  But a two sentence order issued by the Court on Friday signaled that new developments may result in the Court never reaching the merits.

The case, Kieymba v. Obama, involves a group of Uighurs, Chinese Muslims who were captured by bounty hunters in the early days of the Afghanistan war.  The Bush administration declared the group enemy combatants and they were sent to Guantanamo.  Eventually, the administration determined they were harmless, but ran into problems trying to release them.  President Bush did not want to let them into the United States, nor did he want to send them to China, where they had legitimate fears of torture.  Other countries did not want to accept the Uighurs out of fears of angering the Chinese. Thus, they were kept in a legal limbo: found to be harmless but remaining detained.

The Uighurs filed writs of habeas corpus to which the Bush administration, after decisions in other cases, eventually dropped its opposition.  The question became the remedy.  Traditionally, the remedy for habeas corpus is release from confinement.  But release to where?  A D.C. Circuit District Court judge ruled that the Executive must release the Uighurs into the United States.  The administration appealed and won in the Court of Appeals for the D.C. Circuit.  That court held that the decision over whom to admit into this country is exclusively one for the political branches; the courts have no say in the matter.  The Supreme Court accepted to hear the case in October.

Earlier this month, the Obama administration got a break: Switzerland agreed to accept the last two Uighurs.  The Solicitor General wrote to the Court claiming that these developments “eliminate the factual premise” of the case, namely that “the prisoners have no possibility of leaving Guantanamo Bay except by release into the United States,” and therefore the case should be dismissed.

The Court has ordered supplemental briefing on what effect these developments have.  If the Court determines that it cannot hear the case, there are two routes it could take.  First, it could decide to dismiss the case as improvidently granted (“DIG” in court parlance).  This would leave the Court of Appeals decision intact, thus giving the Executive a powerful piece of precedent to use in future disputes.  However, there is another avenue.  The Court may reach the merits and decide that the case has become moot, which would have the effect of vacating all lower court decisions.  Any future president wishing to argue for judicial deference on the issue of detainee release would have to start again from a blank slate.

The supplemental briefs are due this Friday, February 19th.

More information about the case can be found at SCOTUSblog and Legal Times.  Linda Greenhouse, former Supreme Court correspondent for the New York Times, offers her assessment here.

UPDATE: On Monday, March 1st, the Supreme Court issued an unsigned order sending the case back to the D.C. circuit court to decide “what further proceedings in that court or in the District Court are necessary and appropriate for the full and final disposition of the case in light of . . . new developments.”

Photo courtesy of the Associated Press, via the Huffington Post

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This bill can be seen as a direct response to the Christmas Day Detroit bombing attempt.  On her website, Rep. Miller stated:

On Christmas Day, the War on Terror came to the skies of Southeast Michigan.  As Northwest flight 253 was on final approach from Amsterdam to Detroit Metropolitan Airport, Umar Farouk Abdulmutallab tried to detonate high explosives that were brought on board the aircraft . . . .  This was another act of war perpetrated by an agent of our terrorist enemies.  After he was captured, this terrorist was . . . then turned over to the Justice Department where he was give Miranda rights, including the right to remain silent, has been arraigned on criminal charges and bound over for trial in civilian court with full Constitutional Rights. This is simply the wrong way to fight our terrorist enemies.

This bill is being introduced amidst the continuing debate about how Abdulmutallab’s arrest and post-arrest treatment were handled by authorities.  Many critics of the Obama administration challenged the use of civilian courts to try Abdulmutallab, in part claiming that he ceased providing valuable intelligence after being read his Miranda rights. Attorney General Eric Holder wrote a letter in response outlining his reasons for bringing criminal charges against Abdulmutallab.  Among other arguments, AG Holder noted:

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney.  But the government’s legal authority to do so is far from clear. . . .  In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney. . . .

H.R. 4415, if passed, would give the government the explicit authority to detain unlawful enemy combatants outside of the criminal justice system.  Rep. Miller argues for this authority because “There’s no difference whether we apprehend a terrorist in Afghanistan or Yemen or Iraq.  In this case, the battlefield was in seat 19A on that Northwest flight.”

The bill has been referred to the House Armed Services Committee.

Related posts:

1. NSJ Analysis on Administration Decision to Forego Preventive Detention Legislation
2. NSJ Analysis: House Judiciary Committee Passes PATRIOT Act Reauthorization
3. NSJ Analysis: Increasing Use of Unmanned Drones Raises Data Security Issues