U.S. National Security and Military News Review

Russia Warned Austin About Alleged Ukrainian Plot in Private Call

Eric Schmitt — Fri, 26 Jul 2024 22:26:35 -0400

Russia’s defense minister said he needed to talk to Defense Secretary Lloyd Austin about an alleged Ukrainian operation. What happened next remains murky.

AIR WEAPONS: Drones Achieve Battlefield Domination

Fri, 26 Jul 2024 21:44:24 -0400

FORCES: NATO Needs More Soldiers

Fri, 26 Jul 2024 21:43:13 -0400

Bullet or Fragment of One Struck Trump’s Ear, F.B.I. Says

Adam Goldman — Fri, 26 Jul 2024 21:03:26 -0400

The explanation was the most definitive to date after the bureau’s director had earlier suggested the former president might have been hit by shrapnel, igniting a political storm.

Justice Dept. Settles Lawsuit With Former F.B.I. Officials Targeted by Trump

Adam Goldman — Fri, 26 Jul 2024 20:02:16 -0400

Peter Strzok, a former F.B.I. agent, and Lisa Page, a former lawyer for the bureau, accused the Trump administration of violating their privacy after it provided explosive texts to the news media.

Send private-security contractors into Gaza? That’s a terrible idea

Peter W. Singer — Fri, 26 Jul 2024 16:00:08 -0400

Here are some basic questions to ask before this not-even-half-baked notion becomes a policy failure.

Army Sees No Link to Blast Exposure in Maine Gunman’s Mental Issues

Dave Philipps — Fri, 26 Jul 2024 12:06:36 -0400

Investigators found lapses in the handling of a troubled reservist who went on to kill 18 people, but they rejected suggestions that his Army work had damaged his brain.

Memo on AI's national-security implications heads for Biden's desk

Alexandra Kelley — Fri, 26 Jul 2024 12:00:00 -0400

The classified memo is expected to propose rules against using AI in certain scenarios.

The D Brief: Russian strike leaves blackouts; SecDef heads to Asia; Earth’s hot streak; Olympians in uniform; And a bit more.

Ben Watson and Bradley Peniston — Fri, 26 Jul 2024 11:20:58 -0400

Dept of Justice Promises to Declassify Standard Operating Procedure for Coordinating with Social Media Platforms

Justin Hendrix — Fri, 26 Jul 2024 10:00:02 -0400

Co-published with Tech Policy Press.

After the US Supreme Court punted, just last month, on First Amendment questions concerning how U.S. law enforcement agencies should interact with social media companies, the Department of Justice is now days away from declassifying its operating procedures for handling such matters. That outcome is the result of a multi-year investigation by the Department’s Office of Inspector General (OIG), which released a report earlier this week.

Background

In late June, the Supreme Court ruled in favor of the Biden administration in Murthy v Missouri, a case that concerned whether the federal government violated the First Amendment rights of citizens by allegedly coordinating with social media platforms to remove disfavored speech. In a 6-3 ruling, the Supreme Court reversed the decision by the Fifth Circuit, finding that the plaintiffs did not have standing to bring the case, since the evidence failed to connect any specific moderation decision by the platforms to inappropriate government influence.

The case’s path to the Supreme Court started on May 5, 2022, when Missouri Attorney General Andrew Bailey filed a lawsuit accusing Biden administration officials of either coercing or colluding with tech companies in a “coordinated campaign” to remove disfavored content. Among the defendants named in the suit were the Section Chief of the Federal Bureau of Investigation’s Foreign Influence Task Force (FITF), and a special agent in the San Francisco division of the FBI who regularly interacted with social media platforms. The suit alleged that “communications” that influenced Meta’s decision to temporarily limit the propagation of a story about Hunter Biden’s laptop ahead of the 2020 election emerged from the FITF.

The allegations in the suit sparked a wave of congressional investigations, and while its most lurid claims turned out to be flimsy or bogus on inspection, fair-minded experts generally agree that there should be clearer rules about how social media platforms interact with the federal government, particularly when it comes to law enforcement, security, and intelligence agencies. Missouri’s Attorney General was likely unaware at the time he filed his suit that the Justice Department’s Inspector General had already initiated a probe to look into the subject. This week, the OIG published the result of its effort in a report titled, “Evaluation of the U.S. Department of Justice’s Efforts to Coordinate Information Sharing About Foreign Malign Influence Threats to U.S. Elections.”

The Next Phase

The report says that OIG’s goal was to assess the effectiveness of the Justice Department’s system for sharing information related to “foreign malign influence directed at U.S. elections,” to evaluate “the Department’s oversight and management of its response,” and to help streamline or otherwise improve the department’s processes. The evaluation, which included fieldwork that commenced in October 2021 and concluded in April 2023, focused on “information sharing with social media companies to evaluate the aspect of the Department’s information-sharing system that the FITF developed following foreign malign influence directed at the 2016 U.S. presidential election.” During that election cycle, a substantial campaign by the Russian government gave rise to concerns over social media platforms as a vector for foreign influence.

The OIG report found that while the FBI had developed an “intelligence sharing model” (depicted in a graphic reproduced below) involving various actors in US law enforcement and intelligence communities and social media companies, there was in fact a significant gap in policies and guidance governing interactions between the government and the platforms. Until February 2024, when the OIG report says the Department of Justice issued a new standard operating procedure (SOP), there was no formal policy, which the OIG says created potential risks such as the perception of coercion or undue influence over private entities and, in turn, the speech of American citizens. The SOP, which is contained in a classified document, sets criteria for determining what constitutes foreign malign influence, lays out supervisory approval requirements for investigating it, and provides standard language for disclosures and guidance on engagement with social media companies, according to the OIG report.

Source: Department of Justice Office of the Inspector General

While the OIG says that the operating procedure is an improvement, it notes the information’s classified nature is a drawback. “Because DOJ’s credibility and reputation are potentially impaired when its activities are not well understood by the public, we recommend that the Department identify a way that it can inform the public about the procedures it has put into place to transmit foreign malign influence threat information to social media companies in a manner that is protective of First Amendment rights,” the report says.

The report also notes that DOJ lacks “a comprehensive strategy guiding its approach to engagement with social media companies on foreign malign influence directed at U.S. elections,” a circumstance that resulted “in varied approaches to its information-sharing relationships with social media companies depending on where those companies were based,” a particular problem when firms are foreign-owned or located outside of the US.

While the OIG found that the FBI’s model for tracking foreign influence and sharing that information with social media companies primarily relied on identifying foreign actors rather than monitoring for specific types of content, the report does note that there were instances where the FBI did share “content” information, such as specific posts, with social media companies in order to alert them to specific themes or narratives that foreign actors intended to promote. This is a particularly fraught area, as it opens the door to the types of risks that were at the core of the original complaint in Murthy v Missouri.

The OIG report makes two recommendations “to address risks in DOJ’s mission to combat foreign malign influence directed at U.S. elections,” including that the department:

1. Develop an approach for informing the public about the procedures the Department has put into place to transmit foreign malign influence threat information to social media companies that is protective of First Amendment rights.

2. Develop and implement a comprehensive strategy to ensure that the Department of Justice’s approach to information sharing with social media companies to combat foreign malign influence directed at U.S. elections can adapt to address the evolving threat landscape.

The DOJ’s response to the OIG report, located in an appendix, notes that the department concurs with the first recommendation, and plans to address it “by making publicly available a detailed summary version of the SOP and posting that summary on DOJ’s website by July 31, 2024.” The response notes that the SOP emerged from the development of “a standardized approach” to sharing information on foreign influence operations that kicked off after the Supreme Court issued a stay of the Fifth Circuit injunction that temporarily prohibited contact between agencies such as the FBI and social media firms.

DOJ also concurred with the second OIG recommendation, and plans to address it with “additional actions by August 31, 2024,” including:

Development and Release of Strategic Principles. DOJ will set forth in a public manner the principles reflecting DOJ’ s strategy for sharing FMI information with social media companies to combat the evolving threat landscape.

Resumption of FBI’s Regular Meetings with Social Media Companies. As part of that strategy, FBI will resume regular meetings in the coming weeks with social media companies to brief and discuss potential FMI threats involving the companies’ platforms. FBI will conduct these meetings-as FBI did before pausing the meetings in summer 2023 due to the now-vacated Missouri injunction (see infra at 5)–in a manner that is entirely consistent with applicable first Amendment principles. As has been FBI’ s practice, FBI will conduct these engagements with social media companies located across the country, depending on the circumstances and nature of the potential threats.

Outreach by FBI Field Offices, to Social Media Companies. FBI will instruct FBI Field Offices in the coming weeks to conduct outreach– in coordination with the FBI’s Foreign Influence Task Force (FITF)– to any identified social media companies located in their areas of responsibility, to develop contacts at those companies and ensure they are aware of the SOP and DOJ’ s overall approach for engaging with social media companies regarding FMI threat information.

Engagements by Senior Officials. In the coming months, senior DOJ officials will highlight and explain, during public engagements with relevant stakeholders and the public, DOJ’s strategy for information sharing with social media companies to combat FMI directed at our elections.

Launch of DOJ Website Page. DOJ plans to launch a new section on its website dedicated to ensuring public awareness of DOJ’s strategy for engaging with social media companies regarding FMI. The website page will collect and highlight in a single location relevant resources, guidance, and other materials, including the summary of the SOP discussed above.

The OIG report notes that the relationship between the FBI and social media companies has been successful in disrupting multiple campaigns by foreign actors to interfere in US elections. Whether the DOJ, FBI, and other security and intelligence agencies can effectively quell public fears not about foreign interference but rather about their own government’s interference in elections is an open question; certainly, these recommendations and the DOJ’s responsiveness to them should help.

The post Dept of Justice Promises to Declassify Standard Operating Procedure for Coordinating with Social Media Platforms appeared first on Just Security.

The Chiquita Verdict Expands International Human Rights Liability for Corporate Conduct Abroad

Jason P. Hipp — Fri, 26 Jul 2024 09:05:44 -0400

Last month, a jury in the Southern District of Florida rocked international human rights law when it held global banana giant Chiquita Brands International (“Chiquita”) liable for $38 million in damages for the deaths of eight Colombian citizens. The historic verdict, rendered after nearly two decades of litigation, has been declared to be the first time a major U.S. corporation has been held liable in an American court for injuries to foreign nationals inflicted abroad. The case’s culmination also represents an important legal development: the novel employment of a longstanding (but rarely utilized) theory of tort liability that could, if followed, considerably expand the scope of liability for U.S. corporations operating abroad.

Chiquita’s Plea with the U.S. Department of Justice & Subsequent Civil Litigation

Chiquita’s wholly owned Colombian subsidiary, C.I. Bananos de Exportacion, S.A. (“Banadex”), was for a time its most profitable venture. But Chiquita’s efforts to expand and maintain banana operations in Colombia came at a human cost.

To operate, according to the announcement of Chiquita’s guilty plea, Banadex paid off guerilla and paramilitary groups engaged in Colombia’s enduring civil unrest. From at least 1997 until 2004, Banadex made regular payments to a right-wing paramilitary group — the Autodefensas Unidas de Colombia (“AUC”) — to do business in certain regions where Chiquita had either acquired, or hoped to acquire, banana plantations. In 2001, the AUC was designated as both a “Foreign Terrorist Organization” (FTO) and a “Specially Designated Global Terrorist” (SDGT). Under U.S. law, it is illegal to make payments to FTOs and SDGTs. Chiquita’s payments to the AUC ultimately exceeded 1.7 million U.S. dollars.

In 2003, outside counsel formally advised Chiquita to stop paying the AUC. But Chiquita did not stop making payments until 2004, at which time it shuttered its Colombia operations — three years after the U.S. government’s terrorist designations of the AUC. Chiquita’s own self-reporting to the U.S. Department of Justice led to an investigation, and it then pled guilty to one count of “Engaging in Transactions with a Specially Designated Global Terrorist,” a violation of sanctions imposed under Executive Order 13224 (prohibiting U.S. citizens and entities from financing designated terrorist groups) and the International Emergency Economic Powers Act, 50 U.S.C. § 1706(b). Chiquita was sentenced to a $25 million criminal fine and five years of corporate probation.

(More recently, in 2022, the French cement maker Lafarge S.A. pled guilty under the criminal provisions of the U.S. Anti-Terrorism Act, a different statute, to conspiring to provide material support to foreign terrorist organizations for payments it made to ISIS to maintain cement operations in Syria. Our firm, Jenner & Block, along with other firms, is pursuing litigation on behalf of ISIS’s victims against Lafarge S.A. and related entities under the civil provisions of the Anti-Terrorism Act, 18 U.S.C. § 2333.)

Colombian citizens harmed by the AUC, totaling approximately 4,500 individual plaintiffs, filed civil claims against the banana producer in several U.S. district courts. These claims were consolidated into a multidistrict litigation (MDL) in the Southern District of Florida from which a group of twelve test cases, or “bellwether” trials, were randomly selected to proceed to consolidated jury trials.

Unsuccessful Federal Statutory and State Law Claims for Human Rights Abuses Abroad

Non-U.S. citizens pursuing claims on the basis of human rights violations outside of the United States often turn to the Alien Tort Statute (“ATS”). The ATS, a 1789 statute, gives district courts original jurisdiction of a civil claim by a non-citizen “for a tort only, committed in violation of the law of nations” — that is, the ability to hear claims for certain international law violations.

At one time a forgotten relic, the ATS was revived in the 1980s by human rights victims who began turning to it for civil remedies for alleged wrongs committed abroad. In the early 2000s, when many of the Chiquita plaintiffs were filing their suits, the ATS appeared to be the most viable means for redress. The Chiquita plaintiffs accordingly made claims under the ATS as well as the Torture Victim Protection Act (“TVPA”), the laws of the states where each suit was filed, and Colombian law.

As the Chiquita litigation dragged on, the Supreme Court increasingly narrowed the reach of the ATS. In Kiobel v. Royal Dutch Petroleum Co., the Court held that there is a strong “presumption against extraterritorial application” of the ATS, suggesting that the ATS does not apply to U.S. corporate misconduct abroad unless said misconduct “touches and concerns” U.S. territory — a steep standard. The ATS has since been narrowed further. In Nestle USA, Inc. v. Doe, the Court held that the relevant inquiry is whether the conduct generating the cause of action occurred on U.S. territory. Mere corporate presence on U.S. territory is insufficient.

In 2014, the Eleventh Circuit dismissed the Colombian plaintiffs’ ATS claims against Chiquita and its executives, citing Kiobel. The Eleventh Circuit likewise dismissed plaintiffs’ TVPA claims, citing Mohamad v. Palestinian Authority, a 2012 Supreme Court case that found that the TVPA permits liability only against natural persons, not corporations.

The district court similarly dispensed with state law claims based on each of the jurisdictions where cases were filed (New Jersey, Florida, Ohio, and the District of Columbia), holding that the state laws did not extend to cover conduct outside the state and therefore could not apply to Chiquita’s conduct in Colombia.

The Transitory Nature of Torts Committed Abroad Gives Rise to U.S. Corporate Liability

After the bulk of plaintiffs’ claims were dismissed, Colombian law tort claims were all that remained. These claims relied on tort liability under the Colombian civil code, analogized to U.S. tort law. Plaintiffs sought relief for a range of torts over the course of litigation, including “acts constituting” wrongful death, assault and battery, “survival” claims for pain and suffering, intentional infliction of emotional distress, and other torts. The claims that ultimately prevailed were generalized Colombian torts that permit liability when the defendant failed to exercise due care in a given circumstance and thereby created a hazardous situation, either by affirmative (e.g., criminal) acts or by omissions, as measured by a “reasonable businessperson standard”—negligence, in a word.

But U.S. courts are not normally in the business of deciding tort claims based on foreign law, nor claims arising predominantly from conduct that took place abroad. Chiquita is therefore remarkable as a case in which foreign plaintiffs urged a U.S. court to hear claims under foreign domestic tort law, opening the door to the doctrine of “transitory torts.”

The transitory tort doctrine is not new; it has a long history internationally and in the United States, by some accounts underpinning early conceptions of the ATS. Transitory tort doctrine is a form of what is known more generally as “transitory liability.” Transitory liability is the concept that tort liability creates a legal obligation that “follows the individual wherever he goes,” meaning the tortfeasor can be sued effectively wherever he is found. The Framers considered transitory torts to fall within each state’s “general jurisdiction” which gives states the power to seek “the resolution of disputes brought within [their] borders.”

Importantly, transitory tort liability describes a means to state a claim only. It does not create an independent cause of action, and it does not prescribe a particular substantive legal standard. For this, the Chiquita plaintiffs relied on foreign law. In other words, a transitory tort could lead a U.S. court to apply the law of the location where the injury occurred. That approach carried the day in Chiquita, presenting the rare circumstance where a U.S. court heard a claim brought by a foreign plaintiff against a U.S. corporation centered around foreign conduct and law.

Often, cases centered around foreign conduct are dismissed on the basis of another doctrine, such as “forum non conveniens,” or an inconvenient forum. Indeed, Chiquita moved to dismiss the Colombian law claims, arguing that a U.S. court — distant from the location where the tortious acts were committed and forced to interpret complex and unresolved questions of Colombian law — was not a suitable venue to hear the case.

The Chiquita court, perhaps surprisingly, denied Chiquita’s motion. While the court found that Colombian courts offered a legal remedy, security risks to plaintiffs and their counsel warranted keeping the cases in the United States. This was despite the fact that Chiquita agreed to appear in suits in Colombia. In fact, at the time, Colombian courts were handling 1,700 ongoing individual mediation demands against Chiquita stemming from its funding of paramilitaries.

In declining to dismiss the case, the court focused on parties’ safety. “Colombia remains an extraordinarily dangerous place to conduct litigation involving human rights abuses: Between 2009 and 2015, at least 335 human rights defenders were murdered, with 95% of the murders committed between 2009 and 2013 left unpunished,” the court observed. Therefore, the court concluded, “the litigation of Plaintiffs’ claims in Colombia would pose an extraordinary and avoidable risk of harm to Plaintiffs, and . . . Plaintiffs’ fears about retaliation from current or former members of paramilitary groups . . . are reasonably justified.” The court thus permitted the Colombian law claims to continue on the basis that trial in Colombia was not truly feasible due to safety concerns. The court also observed that “[t]he United States has a strong interest in monitoring and deterring unethical and illegal conduct of American corporations in supporting foreign terrorist organizations.”

In the June bellwether trial, the jury found Chiquita guilty, determining that the AUC had murdered the plaintiffs’ relatives, that Chiquita had provided substantial material support to the AUC at the time of the murders, and that Chiquita had engaged in hazardous activities that exposed the plaintiffs’ relatives to risk — a failure of Chiquita’s duty of care as measured by a reasonable businessperson standard under Colombian law. The jury was unpersuaded by Chiquita’s duress defense, awarding each plaintiff over $2 million.

The June 2024 verdict concluded the first bellwether jury trial. Approximately half the remaining claims have been settled, though at much lower amounts than the jury verdict awarded individual plaintiffs. A second bellwether trial is postponed indefinitely as Chiquita appeals the verdict.

Implications for Corporations and Victims of Human Rights Violations

As observers have noted, the Chiquita verdict could widen the range of potential liability for corporations with operations outside of the United States. Chiquita is not the first case to suggest that transitory tort doctrine offers a path to liability for foreign nationals seeking redress in U.S. courts for conduct abroad. Its verdict offers little clarity about many of the thorny issues that have summarily defanged U.S. human rights litigation: questions of jurisdiction and forum, uniformity, and the proper place of U.S. courts in the international legal context. And the defendant has appealed the verdict to the Eleventh Circuit. Still, Chiquita offers three important lessons about the future of human rights litigation in U.S. courts.

First, the transitory tort doctrine avoids several obstacles that had previously immobilized human rights claims under the ATS. Extraterritoriality, long seen as the primary roadblock to successful ATS litigation, may not often be a barrier for transitory torts. Tort litigation that applies foreign domestic law neatly avoids the question of extraterritorial application of U.S. law.

Further, tort law offers wide-ranging bases for liability. Whereas the ATS covers a very “modest” number of torts cognizable under the nebulous “law of nations,” “courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred.” The range of torts cognizable under the law of most foreign jurisdictions will be broader than those which violate the “law of nations.”

Second, a prospective defendant’s U.S. presence could expose them to litigation in the United States under the transitory tort doctrine, potentially subjecting corporations with U.S. headquarters or operations to tort liability for their foreign conduct without the barrier of the presumption against extraterritorial application of U.S. law. As the Chiquita litigation demonstrates, corporations based in the United States (or with a strong U.S. presence) cannot be fully confident that accountability for their foreign conduct will stay abroad.

With its global headquarters in Ohio at the outset of litigation and its banana division in Florida, Chiquita carried its foreign torts to the United States. U.S. corporations or foreign corporations with significant business contacts in the United States — including transferring U.S. dollars through the international banking system — should be especially mindful that any illegal contact with, or material support of, FTOs — even under duress or threat — could lead to criminal and civil liability under U.S. and foreign domestic law. There is one caveat, however: “[e]ven though defendants [can] be sued where they [are] found, U.S. judges retain . . . the discretion to decline to exercise transitory tort jurisdiction.”

Third, international human rights victims residing in dangerous countries or those with dysfunctional judicial systems may find an alternative forum in U.S. courts. If Chiquita is any indication, this could be especially applicable for conduct that takes place in countries experiencing significant instability, documented security risks, weak rule of law, or grave human rights abuses with little hope of local remedies. In any of these cases, U.S. courts may choose to assert their jurisdiction as justice requires instead of forcing the parties to litigate in an “inconvenient” or outright dangerous foreign forum. With that said, the factors behind the inconvenient forum doctrine — including the court’s expertise, the location of evidence, and the common international standard that individuals must exhaust local remedies before seeking international redress — will often weigh against U.S. courts hearing cases based entirely on foreign law.

The transitory tort doctrine sparks new hopes and challenges around international rights violations for parties seeking remedies to human rights violations abroad as well as corporations seeking clarity about their evolving liability risks in today’s transnational business environment. U.S. companies should be mindful of potential U.S. liability for their conduct across the globe, and should monitor and direct their own and their subsidiaries’ actions commensurately. Victims of human rights abuses at the hands of companies with a U.S. presence may be considering whether transitory torts offer a path to a courthouse in the United States.

IMAGE: Chiquita Bananas for sale in a grocery story. (Photo by Santeri Viinamäki via Wikimedia, CC BY 4.0)

The post The <i>Chiquita</i> Verdict Expands International Human Rights Liability for Corporate Conduct Abroad appeared first on Just Security.

What the Draft UN “Pact for the Future” Tells Us About International Insecurity

Richard Gowan — Fri, 26 Jul 2024 08:51:22 -0400

In a period of mounting international tensions and worsening conflicts, the role of the United Nations in maintaining international peace and security seems to be waning. The UN Security Council and General Assembly have debated Russia’s all-out aggression against Ukraine and the Israel-Hamas war extensively, but their debates have had little effect in either case. Recent Security Council calls for ceasefires in Gaza and Sudan have gone unheeded. The International Court of Justice has been busy with Gaza, Ukraine, and Myanmar but with equally limited impact.

Lurking behind these individual setbacks for UN diplomacy – which are hardly unprecedented – is a broader question about the world organization and whether it can adapt to an era of geopolitical competition. UN member states have had a chance to chew over this problem as they gear up for a special Summit of the Future that will take place in New York in September, on the eve of the yearly gathering of heads of state and government at the General Assembly. Secretary-General António Guterres initiated this summit in 2021 as an opportunity for leaders to consider wide-ranging reforms to the multilateral system. In preparation for the summit, New York-based diplomats have been negotiating a Pact for the Future (“Pact”) that is intended to offer a consensus vision for cooperation.

On July 17, Germany and Namibia, the co-facilitators of the Pact negotiations, released the latest version of this agreement, which UN members will kick to-and-fro in the coming weeks. It is a capacious piece of work, outlining 58 areas for action ranging from the complex (such as cooperation around artificial intelligence – AI) to the mildly diverting (promoting sport as a contribution to sustainable development). The chapter on international peace and security – and a separate section on reforms to bodies including the Security Council – will receive extra scrutiny.

The draft Pact is very much a work in progress. Member states – and especially the major powers – are likely to demand serious revisions and cuts before it is presented at the Summit. This is UN business as usual. In the run-up to the 2005 World Summit, the last major intergovernmental conference on UN reform, U.S. Permanent Representative John Bolton famously enforced a huge range of cuts to the outcome document, including the deletion of all references to disarmament.

Nonetheless, the Pact’s latest text is worth reading because it represents a good-faith effort by Germany and Namibia to summarize what they have heard from other UN members about the organization’s current and future role in international peace and security. It offers a broadly coherent summary of what worries the bulk of UN members, where they believe the organization could do more, and where they see the main limits of UN diplomacy.

Readers who do not follow the UN closely might reasonably expect this analysis to pivot on options for reforming the Security Council – which has faced widespread criticisms for its inability to affect events in Ukraine and Gaza – and the UN’s best-known conflict management tools, including Blue Helmet peace operations, mediation, sanctions and the implementation of international law.

The draft’s coverage of these issues is distinctly patchy. It does not yet contain a substantive paragraph on Security Council reform. Instead, the co-facilitators include a commitment in square brackets to achieve an “ambitious outcome” on the topic, adding that they “will present language on this issue as soon as possible in light of ongoing deliberations.” UN members isolated these negotiations on Council reform from discussions on the main Pact, recognizing that the topic could complicate agreements on other files. While Austria and Kuwait led the negotiations on Council reform with some vigor, holding a series of televised debates on the topic, there is no sign of consensus among UN members on changes to the size of the Council, the number of permanent members or the use of the veto. The most that leaders may agree to in September is the creation of a small new office at the UN to facilitate future reform discussions, or something similarly technical.

The draft’s language on peace operations is more encouraging. UN members have been seriously concerned in recent years that Blue Helmet missions are losing credibility after a series of crises, including Mali’s decision to expel UN forces from its territory last year. African member states have pushed for the African Union to take a greater role in leading operations. Nonetheless, many diplomats also argue that peace operations remain the UN’s unique selling point and the organization should not downgrade them lightly. The draft Pact includes a call for the Secretary-General “to undertake a review on the future of all forms of United Nations’ peace operations,” which could be a hook for a broader reform process in the years ahead.

Intriguingly, the draft Pact also suggests that member states should invest more in new instruments for dealing with maritime security and safety, a growing topic of interest after the recent Houthi attacks in the Red Sea. Although the UN has deployed ships off Lebanon in an attempt to stem arms smuggling since 2006, most multilateral maritime operations involve ad hoc coalitions. Nonetheless, peacekeeping, whether on land or on water, may still be a space where the UN has value as a coordinator of international actions.

By contrast, the document is notably thin on some other established UN tools. It does not contain the word “sanctions” at all, an omission that reflects growing fissures in the Security Council about sanctioneering. After Russia vetoed the mandate for UN experts to monitor the implementation of sanctions against North Korea in May, many diplomats expect more battles over this and other regimes in the future. The draft does, however, include a brief reference to the need for states to refrain from imposing “unilateral economic measures” on others, although the U.S. and its European allies will likely want this dropped, given their regular use of these measures against Russia and other foes.

With respect to preventive diplomacy and mediation, the draft Pact basically says that these are good things and should be used more widely. It nods to the chapters of the UN Charter that focus on the pacific settlements of disputes, encouraging the Secretary-General – a generally cautious diplomat – to use his good offices more often. But as UN officials working on preparations for the Summit of the Future have noted, opportunities for preventive diplomacy and mediation are irregular and case-specific, and the Pact cannot do much to shape this reality.

When it comes to the role of international courts and tribunals in addressing conflicts, the draft contains a rather strangled paragraph over the need to comply with decisions of the International Court of Justice – a divisive topic given the Court’s recent interventions over the Israeli offensive in Gaza and occupation of Palestinian territory. Unsurprisingly, the draft document has nothing to say about the International Criminal Court, as only two-thirds of UN members are parties to the Rome Statute. It does, however, include language on the need to “end impunity and ensure accountability for atrocity crimes and other gross violations.” It even appeals to the permanent members of the Security Council not to use their vetoes on resolutions addressing mass atrocities. That language may well be for the chopping block, as the U.S., Russia and China oppose any such pledges. But the fact that Germany and Namibia chose to include the plea in this draft speaks to other UN members’ frustration with the Council.

The draft also includes solid if not radical sections on the need to advance the Women, Peace and Security (WPS) and Youth, Peace and Security (YPS) agendas through UN and national mechanisms. These cover the need to prevent violence against women and girls, and to give both women and youth a greater say in political decision-making. The language on some of these points is vague. There is much talk of the need for “concrete steps,” and “concrete measures” a sure sign in multilateral-speak that nobody has very concrete ideas. However, advocates of both agendas will be relieved that they are given due space in the Pact, as China and Russia have led efforts in the Security Council to roll back the advances on the WPS file in recent years.

While the draft touches on a range of other topics – including, inter alia, terrorism, organized crime and environmental security – readers will nonetheless note that two main themes receive particular attention.

The first is the need to tie the UN’s peace and security work more closely to its development efforts. In particular, the draft Pact calls for the UN to invest resources to help states develop domestic conflict prevention mechanisms rather than relying on external crisis management efforts. One of the longest sections of the peace and security chapter (as its stands) is an extended discussion of developing “national prevention strategies and approaches,” touching on the need for programs to tackle problems ranging from racism and sexual violence to disinformation. This was one of the main recommendations coming from the Secretary-General’s A New Agenda for Peace, a document published last July outlining his own views on the UN’s future in international peace and security.

Many officials and diplomats associated with developing the Pact for the Future say that this is one of the most potentially significant parts of the draft. They see this as an opportunity to rebalance the way the UN engages in peace and security issues, shifting away from the interventionist and hard security of Blue Helmet peace and stabilization missions, and toward more consensual, development-led forms of assistance. This has extra appeal for many states in the so-called Global South, which are keen to underline their sovereign right to block outside interference, but are also severely concerned about economic pressures on their societies.

A potential pivot toward nationally-led peace initiatives could also have an institutional corollary within the UN system. Even if the Summit of the Future cannot deliver Security Council reform, the draft Pact suggests that it could endorse steps to strengthen the UN Peacebuilding Commission, a sort of junior cousin to the Council – created at the 2005 World Summit – that works with countries in a consensual fashion to address their fragilities. The draft Pact also suggests that the Commission could play an increased role in assisting states pursue their domestic conflict prevention priorities, possibly by harnessing resources from international financial institutions. While the UN is already planning its quinquennial review of the Peacebuilding Commission in 2025, this could end up being one, limited institutional reform that the Summit endorses.

Despite emphasizing the domestic features of conflict management, the second major preoccupation of the draft Pact is the risk of major interstate war involving powerful new technologies – and in the worst case, nuclear weapons. The draft text for the peace and security chapter warns baldly of “the risks of nuclear war that could pose an existential threat to humanity.” But it does not suggest that the UN’s members think the organization can do very much to reduce this threat. It calls on the nuclear powers to honor their ultimate commitment of full disarmament (dating back to the Non-Proliferation Treaty) and urges them to take steps to reduce the risks of nuclear conflict. But other than a vague nod to the need to bolster the international disarmament and non-proliferation architecture, the drafters of the Pact seem to see no new pathways to address the nuclear threat. Russia – which has persistently argued that the Pact should avoid nuclear questions altogether – may try to kill off what language the draft already contains.

Beyond the nuclear menace, the draft Pact addresses chemical and biological weapons and – significantly – also includes a section on the security implications of technologies such as AI, which Secretary-General Guterres flagged as a potential priority for the Summit of the Future from an early stage. While the Pact may play an important if small step in elevating these topics on the multilateral agenda, the drafters do not seem confident that UN members will make much progress addressing these threats anytime soon. In the New Agenda for Peace, for example, Guterres proposed setting a deadline of 2026, his last year in office, for a treaty outlawing lethal autonomous weapons systems (LAWS). The Secretary-General’s suggestion received a cold reception from diplomats dealing with arms control issues in Geneva, as they thought the timeline was unrealistic. The draft Pact now merely proposes that governments “[a]dvance with urgency discussions of lethal autonomous weapons systems through the existing intergovernmental process.” Although much of this section of the draft is equally mushy, it does at least suggest that the Secretary-General should have a standing mandate to update UN members on security risks from new and emerging technologies.

It remains to be seen which parts of this agenda survive the final stage of intergovernmental negotiations before world leaders finally meet for the Summit of the Future on Sept. 21. But the draft alone does tell us a little about the state of thinking around the UN concerning the organization’s role in peace and security in the years ahead, as well as the institution’s limitations.

Member states have an enduring attachment to some of the UN’s established crisis management tools (such as peace operations) and are keeping an eye on rising challenges (such as maritime security). But they seem to be leaning toward focusing the organization more on development-led security strategies and showing respect for states’ sovereign prerogatives. Conversely, the negotiators of the Pact for the Future also appear to be seized with the risks associated with large-scale war, yet uncertain how to address them. That alone is a worrying sign about the status of the world organization. For all its good work dealing with poverty and intrastate wars over the decades, the UN was designed in 1945 to save succeeding generations from the scourge of interstate war. Looking beyond the Summit of the Future, Secretary-General Guterres and his successors will need to find more openings to do what they can to address that acute danger, which is rising once again.

The post What the Draft UN “Pact for the Future” Tells Us About International Insecurity appeared first on Just Security.

Early Edition: July 26, 2024

Gwendolyn Whidden — Fri, 26 Jul 2024 07:54:04 -0400

Signup to receive the Early Edition in your inbox here.

A curated weekday guide to major news and developments over the past 24 hours. Here’s today’s news:

U.S. PRESIDENTIAL ELECTIONS

Former President Barack Obama endorsed Vice President Kamala Harris to be the Democratic presidential nominee, saying in a statement with Michelle Obama that they would “do everything we can to elect Kamala Harris the next president of the United States.” Obama was the most prominent Democrat to have held out on endorsing Harris’s candidacy. Chris Cameron reports for The New York Times.

Harris is planning to announce her running mate by Aug. 7, expediting a process that typically takes months. The Harris campaign aims to make the selection quickly to remove legal risk related to securing ballot access in Ohio, which has mandated that the major political parties certify their candidates for president and vice president by Aug. 7. Reid Epstein, Lisa Lerer, Shane Goldmacher, and Katie Glueck report for The New York Times.

Former President Trump has backed off his commitment to another debate on Sept. 10, now that the Democrats have changed candidates from President Biden to Harris. Harris has said she’s “ready to debate” Trump and that it appears Trump is “backpedaling.” Maggie Haberman and Shane Goldmacher report for The New York Times; Mariana Alfaro reports for The Washington Post.

The Justice Department’s in-house watchdog issued a report yesterday criticizing former Attorney General William Bar’s role in a 2020 election inquiry. The inspector general said he was “troubled” by Barr’s decision in 2020 to brief Trump on an inquiry over nine discarded ballots, which might have encouraged Trump’s false election claims. Glenn Thrush reports The New York Times.

The Federal Communications Commission has proposed new rules for political ads, mandating the disclosure of AI-generated content in broadcast television and radio ads. The move aims to inform voters about lifelike and misleading AI-generated media in ads, but its implementation before the November election is uncertain. Ali Swenson reports for AP News.

ISRAEL-HAMAS WAR – U.S. RESPONSE

After meeting Israeli Prime Minister Benjamin Netanyahu yesterday, Harris did not stray from Biden on policy, but struck a stronger tone on the plight of Palestinians. Harris told reporters Israel had a right to defend itself, but that “far too many innocent civilians” had died in Gaza and that “I will not be silent” about their suffering. Azi Paybarah reports for The Washington Post; Pete Baker reports for The New York Times.

Trump yesterday urged Netanyahu to end the war in Gaza ahead of their meeting today. Israel must end the war in Gaza “and get it done quickly,” Trump said in an interview on Fox News, arguing that Israel was “getting decimated” by negative publicity over its conduct of the war. Ephrat Livni reports for The New York Times.

The United States has sent thousands of bombs and missiles to Israel over the past ten months, a new report finds. A tally of publicly known deliveries, compiled by the Jewish Institute for National Security of America, shows that more than 20,000 unguided bombs, some 2,600 guided bombs, and 3,000 precision missiles, among other weapons, have been shipped since Oct. 7. Lauren Leatherby reports for The New York Times.

ISRAEL-HAMAS WAR – INTERNATIONAL RESPONSE

Britain has dropped its objections to the International Criminal Court’s arrest warrants for Israeli leaders. A spokesperson for the Labour government said it will not pursue questions on the court’s jurisdiction over Netanyahu and Gallant, “in line with our longstanding position that this is a matter for the court to decide on.” The Guardian reports.

Australia, New Zealand, and Canada today called for an immediate ceasefire in Gaza and asked Israel to respond to the International Court of Justice’s ruling that its occupation of Palestinian territories and settlements there were illegal. “Israel must listen to the concerns of the international community,” the leader’s statement said. Lewis Jackson reports for Reuters.

A Houthi response to Israeli airstrikes near Yemen’s port city Hodeidah is coming, the Iran-backed group’s leader declared in a televised speech yesterday. Reuters reports.

GLOBAL DEVELOPMENTS

A series of fires has hit French high-speed rail lines SNCF, hours before the Paris Olympics opening ceremony. The raid company said it was a “massive attack aimed at paralyzing the network.” BBC News reports.

U.S. law enforcement officials arrested two top leaders of Mexico’s Sinaloa Cartel in El Paso, Texas, the Justice Department said yesterday. Ismael Zambada García and Joaquín Guzmán López are among the most powerful drug traffickers in Mexico. Details of their arrest remain unclear, but it appears they flew into the United States. Max Matza and Will Grant report for BBC News; Alan Feueer and Natalie Kitroeff report for The New York Times.

Philippine authorities are racing to stop the oil spill after a tanker sank yesterday in heavy monsoon rains, fearing it could be the worst in the country’s history if it is not contained. Meanwhile, Typhoon Gaemi has made landfall in mainland China after wreaking havoc in Taiwan and the Philippines. Annabelle Liange reports for BBC News; Ruth Comerford reports for BBC News.

An 18-year-old man has been arrested in southeast Ukraine on suspicion of shooting dead Iryna Farion, a controversial former MP. Paul Kirby reports for BBC News.

A boat carrying at least 45 migrants and refugees capsized off Yemen, the U.N. refugee agency has said. Only four survivors have been found. David Gritten reports for BBC News.

Italy has decided to appoint an ambassador to Syria “to turn a spotlight” on the country, its foreign minister said today, making it the first G7 nation to relaunch its diplomatic mission in Damascus since the civil war broke out in 2011. Reuters reports.

U.N. Secretary-General António Guterres yesterday called for countries to address the urgency of the extreme heat epidemic, days after the world registered its hottest day on record. Reuters reports.

RUSSIA-UKRAINE WAR

Russia yesterday launched 38 Shahed drones at Ukraine overnight, with three straying into NATO-member Romania’s airspace. Ukraine said its air defense intercepted 25 of the drones. Veronika Melkozerova reports for Politico.

The E.U. will transfer 1.5 billion euros, or $1.6 billion, in proceeds from frozen Russian assets to Ukraine, European Commission President Ursula von der Leyen said today. Reuters reports.

OTHER U.S. DOMESTIC DEVELOPMENTS

A 42-year-old man has been arrested on suspicion of starting the Park Fire in California, which has burned over 70,000 acres since it began Wednesday. The suspect, whose name has not been released, is being held without bail. Bill Hutchenson reports for ABC News.

Governor Gavin Newsom (D-CA) has ordered California state officials to begin dismantling thousands of homeless encampments. The move follows a recent Supreme Court ruling that expanded government authority to remove homeless individuals from public spaces. Shawn Hubler reports for The New York Times.

An ex-Uvalde school police officer pleaded not guilty to charges of child endangerment and abandonment in the 2022 massacre. Holly Yan, Shimon Prokupecz, Linh Tran, and Leigh Waldman report for CNN.

A North Korean military intelligence operative has been indicted in Kansas City for hacking U.S. healthcare providers, NASA, and military bases. Nick Ingram, Michael Goldberg, and Heather Hollingsworth report for AP News.

President Biden yesterday signed a bill into laws strengthening oversight of the crisis-plagued federal Bureau of Prisons. Michael Sisak and Michael Baalsamo report for AP News.

The post Early Edition: July 26, 2024 appeared first on Just Security.

Assessing Cause of Trump Wound, F.B.I. Examines Bullet Fragments From Rally

Adam Goldman and Glenn Thrush — Fri, 26 Jul 2024 07:31:26 -0400

The bureau is assessing what caused the former president’s wound during an assassination attempt. The question has turned political.

From Online Drug Lord to Crypto Entrepreneur, Blake Benthall Is Back in Business

Ryan Mac and Kashmir Hill — Fri, 26 Jul 2024 05:21:33 -0400

After Blake Benthall was arrested for running Silk Road 2.0, the infamous illegal drug bazaar, things didn’t go the way you might expect.

Kamala Harris’s Bratty Coconut Memescape + What Does $1,000 a Month Do? + The Empire CrowdStrikes Back

Fri, 26 Jul 2024 05:06:23 -0400

An episode unburdened by what has been.

Austin heads to Asia with $500 mil for the Philippines

Patrick Tucker — Fri, 26 Jul 2024 03:00:00 -0400

Trip described as most important Asia visit of the Biden administration.

Austin heads to Asia with $500M for the Philippines

Patrick Tucker — Fri, 26 Jul 2024 03:00:00 -0400

DOD officials said the SecDef's multi-country swing will be the administration's most important visit for "U.S. defense ties in the Indo-Pacific."

LEADERSHIP: Pathetic Palestine Plods On

Thu, 25 Jul 2024 21:55:11 -0400

MYANMAR: July 2024 Update

Thu, 25 Jul 2024 21:53:58 -0400

How a U.S. Antidoping Law Fueled Global Tensions

Michael S. Schmidt and Tariq Panja — Thu, 25 Jul 2024 20:22:01 -0400

The Olympics are opening amid outright antagonism between international sports authorities and the United States over American investigations into the handling of doping allegations abroad.

A boom in space-based intelligence is coming. Can ground networks keep up?

Patrick Tucker — Thu, 25 Jul 2024 19:30:01 -0400

Companies that used to sell pictures and pixels are selling analysis—and looking for ways to move faster.

U.S. Indicts North Korean in Ransomware Attacks and Theft of Military Data

Michael Crowley — Thu, 25 Jul 2024 19:06:55 -0400

Funds from the ransomware attacks on hospitals subsidized military espionage activities, prosecutors say.

Justice Dept. Watchdog Criticizes Barr’s Role in Election Inquiry

Glenn Thrush — Thu, 25 Jul 2024 17:09:26 -0400

The inspector general said he was troubled by William Barr’s decision in 2020 to brief President Trump on an inquiry over nine discarded ballots, which might have encouraged Mr. Trump’s false election claims.

El tirador del atentado contra Trump buscó datos sobre el asesinato de Kennedy

Adam Goldman — Thu, 25 Jul 2024 12:58:08 -0400

El director del FBI, Christopher Wray, reveló en una audiencia ante los legisladores que el tirador, días antes del tiroteo, buscó en Google: ‘¿A qué distancia estaba Oswald de Kennedy?’.

F-35’s price might rise, Lockheed warns

Audrey Decker — Thu, 25 Jul 2024 12:42:10 -0400

After years of declines, the jet’s cost is being pushed by upgrades, inflation, and a proposal to buy fewer of them.

The U.S. Must Stand Up to Beijing in the South China Sea

Oriana Skylar Mastro — Thu, 25 Jul 2024 12:41:16 -0400

China could seize control of a strategically vital waterway without firing a shot.

Navy still picking winner for F/A-XX next year, Northrop CEO says

Audrey Decker — Thu, 25 Jul 2024 12:07:32 -0400

Despite the service’s proposal to cut funding, “we have not received” word that 6th-gen plans have changed.

The D Brief: Chinese-Russian flight near Alaska; Warships chased from Azov?; B-2 tests cheap shipkiller; France’s big deployment; And a bit more.

Ben Watson, Bradley Peniston, and Lauren C. Williams — Thu, 25 Jul 2024 11:50:42 -0400

International Court of Justice’s Call on All States to End Israel’s Occupation and Find a Path to Peace

Binaifer Nowrojee — Thu, 25 Jul 2024 09:11:40 -0400

A couple months into the war in Gaza, an editorial cartoon depicted two people standing amid the smoldering ruins. One asks, “Where is international law?” The other points to the debris behind him, saying, “Under there.” The image spoke vividly to the moment we are in. The laws that were supposed to bind us to humanity’s core values were being violated daily, heaped like the rubble that is all that’s left of Gaza. Nearly ten months since the October 7 massacre of Israeli civilians, the war grinds on, half of the hostages are not free, the people of Gaza are starving and displaced with nowhere safe to go, and yet there is little sign that any of this will come to an end anytime soon.

Following the breakout of wars in Ukraine and Gaza, many have feared that we have now entered a new and even more dangerous world, one where the most basic protections in war are not just routinely violated, but appeared to have ceased to exist altogether. Now, however, there is some hope that international justice still matters. The International Criminal Court’s arrest warrant against Russian President Vladimir Putin may soon be followed by those against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant as well as the leaders of Hamas. The International Court of Justice (ICJ) is hearing cases on both wars, including South Africa’s allegations that Israel has violated the Genocide Convention. And last week, the ICJ issued a momentous ruling on the legal consequences of Israel’s occupation of the West Bank and Gaza.

The Advisory Opinion, which was set in motion several months before the October 7 attacks, was notable for its wide participation. At the written comments stage, 55 States, overwhelmingly from the Global South, made submissions. With the UN Security Council gridlocked, States from across Latin America, Africa, the Middle East and Asia are pursuing the few avenues still left to them. At a moment when international law has failed people in Palestine and Israel, the reaction from States has not been to abandon it as a failed project but have sought to restore its relevance – drawing on their own histories of international law as a tool for decolonization. This is part of a remarkable trend with the ICJ hearing a flurry of cases with a human rights focus, from the Gambia v. Myanmar genocide case to the forthcoming Advisory Opinion on climate change. More than 100 States are currently active at the ICJ – either as parties to a contentious case, interveners, or participants in advisory proceedings. The ICC is also experiencing a surge in interest from across the globe, with the Pre-Trial Chamber recently allowing nearly 70 States, organizations, and individuals to file amicus briefs in the arrest warrants case involving the situation in Palestine.

It is time now to take stock of what the ICJ has told the world, and the ensuing legal obligations.

In its conclusions, the Advisory Opinion confirms what Israeli, Palestinian and international human rights groups have spent decades calling out. The 57-year-long occupation is not a temporary situation, but a prolonged attempt to enclose the Palestinian people into a suffocating system that denies them their right to self-determination. The sweeping advances of illegal settlements have brought with them settler violence, displacement, and the exploitation of natural resources. The Advisory Opinion notes that the discriminatory system that cuts through the West Bank – carving up communities, assigning distinct roads while impeding movement through permits, and applying different laws to different people – amounts to a violation of the prohibition on segregation and apartheid.

While the Court ruled that there had been a violation of Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, a number of the judges went further in their individual declarations. “On the basis of the Court’s finding concerning the various policies and practices it is hard not to see that Israeli policies, legislation and practices involve widespread discrimination against Palestinians in nearly all aspects of life much like the case in apartheid South Africa,” wrote Judge Dire Tladi of South Africa. In their submissions to the Court, South Africa and Namibia – the two countries that endured that crime against humanity – also argued that Israel’s discriminatory policies breach the prohibition of apartheid.

The judges have also thrown down a challenge. They have not just detailed Israel’s violations of international law but also the legal consequences. Therein lies implications for third States and United Nations bodies. The Israeli government has already made clear that it “rejects” the Court’s views and will do nothing to implement its obligations to end the occupation, cease settlement activity, evacuate settlers, and make reparation. It is up to other States, particularly in the West, not to “recognize” or “render aid or assistance” to the occupation (paras. 278-79 of the Advisory Opinion). This will be a test of their avowed commitment to international law. Will they apply a single standard to all situations, or choose to persist with double standards, invoking international law when it suits them and discarding it when it doesn’t?

Critics of the ICJ have been quick to note that the Advisory Opinion is non-binding. That is true, but only up to a point. This is not a contentious case where parties are bound to comply with the judges’ ruling. But the obligations laid out in the ruling draw on the UN Charter, the decisions of the Security Council, international human rights law, international humanitarian law, and the law of State responsibility. The obligations laid out in these bodies of law are binding on all States that have ratified the relevant agreements or as a fundamental matter of customary international law. And now the world’s most authoritative judicial tribunal has laid them out with abundant clarity and shown how they apply to Israel’s occupation of Palestinian territory. No longer can the occupation be consigned to a zone of exception, where it has long languished, with evasive claims that it is too fraught with history, too complex to grasp, and too difficult to address.

Unlike what some States argued before the Court, the Advisory Opinion can strengthen moves toward a resolution of the conflict rather than impede them. There is an emerging consensus, among both supporters and critics of Israel’s policies, that the current situation is unsustainable. But there is no viable peace process on the horizon. A new process is needed, one that is grounded in international law and guided by the Advisory Opinion – a process that sets down a rights-based approach and envisions a future where both Israelis and Palestinians get the justice they are owed and the peace that they need.

Photo credit: International Court of Justice courtroom during delivery of the Advisory Opinion of the Court, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, on 19 July 2024 (UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ)

The post International Court of Justice’s Call on All States to End Israel’s Occupation and Find a Path to Peace appeared first on Just Security.

US Arrests Former Syrian Prison Chief – But Will the Charges Prove Equal to His Crimes?

Rebecca Hamilton — Thu, 25 Jul 2024 09:00:19 -0400

Samir Ousman al-Sheikh was about to board a one-way flight from Los Angeles to Beirut when his trip came to a sudden stop. Earlier this month, agents from the U.S. Department of Homeland Security arrested al-Sheikh, who has been charged with immigration fraud for lying on his visa and U.S. citizenship applications.

Prosecutors alleged that the 72-year-old ran Syria’s infamous Adra Prison, located on the outskirts of the capital Damascus, from 2005 to 2008, and that from July 2011 to approximately July 2012, he served Syrian President Bashar al-Assad as the Governor of Deir Ez-Zour, a site of violent crackdowns against anti-government demonstrations, as the Syrian civil war began to unfold.

The immigration charges are a welcome start, but there is more that U.S. prosecutors can and should do to hold al-Sheikh fully to account under the Torture Act and the Justice for Victims of War Crimes Act. Additional investigative resources would be needed to assess the entire range of al-Sheikh’s potential criminality. Still, charges of torture (while he headed Adra Prison) and war crimes (as Governor and Head of the Security Committee of Deir Ez-Zour, at least from February 2012 when the Syrian armed conflict arguably commenced – see below) are both credible lines of inquiry.

Against this backdrop, and given that al-Sheikh has been described as the “highest-level Assad regime official arrested anywhere in the world” it would amount to a deep injustice for the victims and survivors his crimes, and a dereliction of stated U.S moral commitments to international justice (and, potentially international legal obligations), if al-Sheikh’s ultimate charge sheet simply reflected immigration fraud.

Historically, such a mismatch (see page 22 of this article) between violations and charges has been the typical result when the U.S. government has arrested perpetrators of atrocities. But, since the fall of 2022, as Congress grew concerned about accountability for Ukrainian victims of Russian atrocities, this trend has begun to shift. Al-Sheikh’s arrest provides an opportunity for this shift to be harnessed and expanded with further changes to both U.S. law and practice.

Legal Opportunities and Constraints

Should U.S. prosecutors decide to pursue full accountability in al-Sheikh’s case, there are several, non-exclusive legal pathways to explore. First, and most straightforward, would be to consider a case under the Torture Act. Passed by Congress in 1994, the Torture Act grants jurisdiction over torture, attempted torture, or conspiracy to commit torture outside of the United States including when “the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.” Based on the factual allegations from the immigration fraud indictment, it appears that the Torture Act would cover alleged acts of torture committed during al-Sheikh’s time as the head of Adra Prison.

A second line of investigation worth pursuing relates to the possibility of war crimes charges. Under the original war crimes law that Congress passed in the 1990s, U.S. officials could only prosecute war crimes if either the victim or the perpetrator was a U.S. national or a member of the U.S. armed forces. Recently, however, the Justice for Victims of War Crimes Act closed this loophole by ensuring that prosecutors can target perpetrators of war crimes who are present in the United States, regardless of the perpetrator or victim’s nationality or where the crime took place. The addition of this “present in” jurisdictional hook means that al-Sheikh could potentially fall within the legislation’s reach.

Pursuing a war crimes prosecution is not without obstacles. First, some question whether the Justice for Victims of War Crimes Act can cover conduct that took place before the Act became law (see, for example, Michel Paradis’ argument that such prosecutions would violate the Ex-Post Facto Clause of the U.S. Constitution). This concern, however, may be surmountable. As Edgar Chen explained during the Senate hearing on the legislation, such jurisdictional amendments “do not declare unlawful what had been lawful before. They merely define U.S. domestic jurisdiction over crimes that are universally unlawful and already prohibited.” If al-Sheikh were to litigate the issue, and a court adopted Chen’s reasoning – which we think is the correct one – then the court would have jurisdiction over such a prosecution.

Second, war crimes charges can only be brought in the context of an armed conflict. Experts differ on when exactly the current conflict(s) in Syria began, but the Independent Commission of Inquiry on Syria, established by the U.N. Human Rights Council, concluded in its August 2012 report that “a non-international armed conflict developed in the Syrian Arab Republic during February 2012 which triggered the applicability of Common Article 3 of the Geneva Conventions” (Annex II, para. 12).

The U.S. war crimes statute enables prosecution of so-called “grave breaches” of Common Article 3 of the Geneva Conventions in the context of a Non-International Armed Conflict (NIAC), specifying such breaches to include murder, torture, cruel or inhumane treatment, and intentionally causing serious bodily injury. In all cases, a conspiracy to commit such crimes falls within the statute. What this means in relation to al-Sheikh is that investigators would need to delve into his conduct as Governor of Deir Ez-Zour from February 2012 onwards.

Critically, it seems that al-Sheikh was not only Governor, but also head of the Deir Ez-Zour Security Committee, reportedly through 2013. Such security committees were established throughout Syria by Assad early in the uprising, coordinating police, military and intelligence services, in the implementation of Assad’s brutal response to dissent. Investigators should explore whether there is evidence that in his role as the head of the Security Committee, al-Sheikh conspired, from February 2012, to commit war crimes that fall within the remit of the War Crimes Act (see here paras. 63-69). The Syrian Network for Human Rights – an independent human rights organization which monitors and documents human rights violations in Syria – is already urging prosecutors to assess al-Sheik’s responsibility for war crimes of murder and torture committed in Deir Ez-Zour in this period.

Finally, al-Sheik’s case highlights the ongoing gap in U.S. legislation with respect to crimes against humanity. Despite over a decade of effort to change this, the United States still does not have legislation that enables domestic prosecution of crimes against humanity outside of torture and war crimes. The conflict in Syria did not reach the required intensity and duration to be classified as a NIAC until, arguably, February 2012. This means that absent crimes against humanity legislation, al-Sheik’s potential criminality, including, for example, conspiracy to commit murder and torture, in the seven-month period from when he was appointed Governor of Deir Ez-Zour in July 2011 until the start of the NIAC cannot be accounted for under U.S. law.

Immigration Fraud Charges: Start Point Not End Point

Arresting international criminals for immigration fraud is the U.S. government’s modern day equivalent of arresting Al Capone for tax evasion. Securing the arrest of someone like al-Sheikh is an excellent first step in the pursuit of justice, but it should not be mistaken for justice itself.

Addressing this mismatch advances the goals that serve as the bedrock of criminal law. Legal experts have coined the term “fair labeling” – the idea that the crimes charged should match the conduct alleged. This is important for defendants, but it also matters for victims and survivors. Seeing someone who was responsible for your torture, or disappearing a loved one, face deportation from the United States for lying on their immigration papers is categorically different from seeing them prosecuted for the atrocities they committed. Also at stake is the power of deterrence, the idea that facing consequences like hefty jail sentences will stop criminal activity, or at least give war criminals pause before they act. That message of deterrence is reduced with the potential maximum penalty for an immigration violation of the type applicable in al-Sheikh’s case is 10 years, compared to the potential sentence of life imprisonment (or, in particular circumstances) the death penalty for a war crimes conviction.

When the U.S. government deports defendants suspected of committing international crimes, on immigration charges, it works to ensure that they will face prosecution for these crimes in the country to which they are sent back. Sometimes this idea is effective and facilitates the principle of justice being served locally, close to survivors and families of the victims. Nedjo Ikonic, a Commander during the genocide in Srebrenica, for example, served time for visa fraud in the United States before being deported to face trial on genocide charges in Bosnia.

Too often though, the impunity gap remains open. This happens when the home country of the defendant is unable or unwilling to prosecute, and there is no international court with jurisdiction to step into the void. Both of these limits are in play with respect to al-Sheikh. With the Assad regime still in place, there is no prospect of prosecution inside Syria. Moreover, because Syria is not a party to the Rome Statute, and the U.N. Security Council has not made a referral (an unlikely outcome with Russia, and its veto power, as a key Syrian ally), the International Criminal Court also lacks jurisdiction over al-Sheikh’s crimes.

Some may argue that this is a situation where the U.S. could save its own prosecutorial resources and extradite al-Sheikh to one of the European nations, like Germany or France, that have been pursuing Syrian accountability through universal jurisdiction. Certainly this would be preferable to deporting him to Syria, and it would satisfy U.S. international legal obligation to “extradite or prosecute” core international crimes. There are, however, at least two reasons for the U.S. government to take on his prosecution itself.

First, Mohammad Al Abdallah (and presumably others like him, anonymized in the indictment), who provided crucial evidence against al-Sheikh, is a refugee in the United States. For the foreseeable future, the United States is his home. As Al Abdallah disclosed on X when the indictment was unsealed, he provided U.S. investigators with his testimony. He should be able to see the fruits of that effort brought to bear without having to travel to a foreign country.

Second, it would behoove U.S. prosecutors to develop expertise in prosecutions stemming from atrocities committed throughout Assad’s long dictatorship. Al-Sheikh will not be the last of Assad’s loyalists to seek safe haven in the United States, especially given Europe’s growing reputation for using universal jurisdiction to prosecute Syrian atrocities. Prosecuting State-sponsored crimes, before and/or during the Syrian conflict, requires a significant upfront investment in understanding the relevant chains of command and communication flows. But that investment pays off and becomes easier with each additional case.

Strengthening Commitments

U.S. authorities cannot identify potential perpetrators of Syrian atrocities trying to evade justice on U.S. soil without the trust and courage of Syrian survivors like Al Abdallah. If the U.S. government wants to sustain and strengthen its commitment to pursue accountability for the most serious crimes of concern to the international community, then it must honor the victims and survivors of Syrian atrocities by pursuing full and meaningful accountability from those who have done irrevocable harm.

IMAGE: The statue of justice in front of an American flag. (Photo via Getty Images)

The post US Arrests Former Syrian Prison Chief – But Will the Charges Prove Equal to His Crimes? appeared first on Just Security.

Early Edition: July 25, 2024

Gwendolyn Whidden — Thu, 25 Jul 2024 07:59:14 -0400

Signup to receive the Early Edition in your inbox here.

A curated weekday guide to major news and developments over the past 24 hours. Here’s today’s news:

U.S. PRESIDENTIAL ELECTIONS

In his first address to the nation since dropping out of the race, President Biden said it was time to let younger voices into the Oval Office. “There is a time and a place for [long] years of experience in public life. There’s also a time and a place for new voices … And that time and place is now,” Biden said. Biden also described his decision to step aside as a bid to “save democracy,” avoiding hard truths about why he ended his campaign. Katie Rogers reports for The New York Times; Bernd Debusmann reports for BBC News; Anthony Zurcher reports for BBC News.

Black Sororities and Fraternities across the nation are lining up behind Vice President Kamala Harris. The more than two million members of Black Greek-letter organizations have quickly united to mobilize Black voters nationwide, in what could be a formidable political advantage for Harris. Maya King reports for The New York Times.

Former President Trump attacked Harris as radically liberal at a campaign rally in North Carolina. “She’s worse than him. Because he’s a fake liberal. You know, he wasn’t that liberal,” Trump said. “She’s a real liberal.” The Trump campaign has sought to portray Harris as too radical for independent or moderate voters. Michael Gold reports for The New York Times.

TRUMP RALLY SHOOTING

The House voted 416-0 yesterday to set up a bipartisan task force to investigate the attempted assassination of Trump. The task force, composed of seven Republicans and six Democrats, will have subpoena authority, and will issue a final report on its findings by Dec. 13. Clare Foran, Annie Grayer, and Haley Talbot report for CNN.

The gunman who tried to assassinate Trump flew a drone 200 yards from the site of his campaign rally hours before the shooting, FBI Director Christopher Wray told the House Oversight Committee. Wray also testified that Matthew Crooks had visited the site a week prior and searched online, “How far away was Oswald from Kennedy?” ABC News reports.

ISRAEL-HAMAS WAR – U.S. RESPONSE

Israeli Prime Minister Benjamin Netanyahu “did not give an inch” in his speech to Congress yesterday. Netanyahu pushed back on condemnations of Israel’s handling of the Gaza war, rejecting blame for the high civilian death toll and accusations that Israel was starving the population. He offered a vague vision of peace, saying “a new Gaza could emerge” if Hamas was defeated and that Israel “does not seek to resettle Gaza,” but did not suggest Israel would stop fighting anytime soon. Ephrat Livni reports for The New York Times.

The mood in Congress was reportedly tense, with Netanyahu entering the chamber to roaring applause from Republicans but little enthusiasm from Democrats. Over half of Democratic lawmakers skipped the speech, though the top three House Democrats and Senate Majority Leader Chuck Schumer (D-NY) were present. Ken Tran and Riley Beggin report for USA Today.

Thousands gathered in Washington yesterday to protest Netanyahu’s speech to Congress. Five people were arrested, and police used pepper spray on protesters. BBC News reports.

ISRAEL-HAMAS WAR

Ceasefire and hostage release negotiations appear to be in their closing stages, according to a senior U.S. official. Biden and Netanyahu are set to discuss remaining gaps today. The official said the remaining obstacles were bridgeable and that an agreement was close. Jacob Magid reports for The Times of Israel.

The Israeli military said it recovered the bodies of five Israeli hostages during an operation in the Khan Younis area. The announcement means 111 of the 251 people taken hostage are still being held in Gaza, including 39 who are presumed dead. David Gritten reports for BBC News.

Gaza’s death toll was largely accurate in the early days of the war, according to a new study by Airwars, a British organization that assesses claims of civilian harm in conflicts. Analyzing the first 17 days of Israel’s bombardment in Gaza, the study found that the Gaza Ministry of Health’s death toll, a subject of debate at the time, was reliable. Lauren Leatherby reports for The New York Times.

ISRAEL-HAMAS WAR – INTERNATIONAL RESPONSE

Israeli Foreign Minister Israel Katz sent a letter to his French counterpart warning him of an Iranian-backed plot to attack the Israeli delegation to the 2024 Paris Olympics. The 88 Israeli athletes at the Games are under round-the-clock protection from French security services, as well as from Shin Bet officials. Amy Spiro reports for The Times of Israel.

U.K. Prime Minister Keir Starmer is expected to withdraw objections to the International Criminal Court prosecutor’s pursuit of an arrest warrant for Netanyahu, two sources told The New York Times. The move, which comes after Britain said last week it would reinstate funding the U.N.’s main agency that aids Palestinians, signals that U.K. policy on Israel is diverging from the United States after ten months of close alignment. Mark Landler and Stephen Castle report.

GLOBAL DEVELOPMENTS

The U.S. military yesterday intercepted Russian and Chinese bombers in international airspace near Alaska. The bombers had entered the Alaska Air Defense Identification Zone, but did not enter U.S. airspace. A U.S. official said it marks the first time Russian and Chinese aircraft have jointly entered the Alaska ADIZ. Faris Tanyos and Steve Smith report for CBS News.

Over 200,000 children and vulnerable adults were found to have been abused in New Zealand. The report from the Royal Commission of Inquiry Into Abuse in Care found that state and religious organizations subjected those in their care to a range of grave abuses. Pete McKenzie reports for The New York Times.

A tanker carrying 1.5 million liters of industrial fuel capsized off the coast of Manila amid a powerful typhoon. The Philippine Transportation Secretary said that 16 crew members were rescued, and one remains missing. Annabelle Liang reports for BBC News.

At least twenty-five migrants died in a shipwreck off the coast of Mauritania, according to the country’s news agency. The International Organisation for Migration said more than 190 people were still missing and that a rescue operation was underway. Ruth Comerford reports for BBC News.

A plane crash on a Kathmandu airport runway yesterday left 18 dead. The Saurya Airlines plane slipped off the runway and fell into a neighboring gorge, killing all but the pilot. Sangam Prasai and Maham Javaid report for The Washington Post.

Attacks on three remote villages in Papua New Guinea killed 26 people, including 16 children, according to the United Nations. U.N. human rights chief Volker Turk said the death toll could rise as authorities search for missing people. Reuters reports

RUSSIA-UKRAINE WAR

A Russian attack on Kharkiv left three dead and six wounded, local officials say. Reuters reports.

Russia has renamed Moscow’s Europe Square “Eurasia Square,” a fresh sign of deteriorating relations with the West. Steve Rosenberg reports for BBC News.

TRUMP LEGAL MATTERS

A federal judge in Florida yesterday allowed Trump’s defamation suit against ABC News to move forward, rejecting the network’s effort to dismiss the litigation. The lawsuit, filed in March, argued that star anchor George Stephanopoulos defamed Trump by saying multiple times on air that he had been found liable for raping the writer E. Jean Carroll. Michael Grynbaum reports for The New York Times.

OTHER U.S. DOMESTIC DEVELOPMENTS

Wildfires are raging across parts of the western U.S. and Canada. As of yesterday morning, there were 79 active wildfires burning over one million acres in California, Oregon, Arizona, Washington, and other states. Meanwhile, Canada is battling over 600 wildfires in Alberta and British Columbia. Dorany Pineda reports for AP News.

Boeing has finalized a plea deal with the Department of Justice over misleading the Federal Aviation Administration during the evaluation of 737 MAX jets. The manufacturer will plead guilty to conspiracy to defraud the United States, pay a fine of $243.6 million, and serve three years of organizational probation. James Hill and Clara McMichael report for ABC News.

The post Early Edition: July 25, 2024 appeared first on Just Security.

Trump Trials Clearinghouse

Norman L. Eisen — Thu, 25 Jul 2024 06:00:56 -0400

Former President Donald Trump is a defendant in a sizable number of criminal and civil cases. To help readers parse through these complex legal developments, we have centralized information on Trump’s major cases in the most comprehensive clearinghouse of its kind. Below you will find links to relevant court proceedings, key statutes, government documents, and defense documents – as well as Just Security resources and analysis, media and other guides.

NEW: The clearinghouse also includes Just Security Journalism Fellow Adam Klasfeld’s courtroom reporting and coverage of the issues.

We will continue updating this page with new information as the trials develop. Moreover, as Trump’s co-defendants plead guilty and cases close, this page will remain a one-stop source for those matters. We hope this repository of information will be useful for analysts, researchers, investigators, journalists, educators, and the public at large.

If you think the Trump Trials Clearinghouse is missing something important, please send recommendations for additional content by email to lte@justsecurity.org.

Master Calendar of Trump Court Dates and the 2024 Campaign

New York: 2016 Election

Department of Justice: 2020 Election Interference

Georgia: 2020 Election Interference

Department of Justice: Classified Documents

New York Attorney General: Corporate Fraud

NB: Sasha Matsuki and Arava Rose also contributed to co-authoring previous versions of this clearinghouse.

The post Trump Trials Clearinghouse appeared first on Just Security.

Clearinghouse: Mar-a-Lago Documents Case – Southern District of Florida

Norman L. Eisen — Thu, 25 Jul 2024 05:25:16 -0400

This repository contains a collection of information for researchers, journalists, educators, scholars, and the public at large. This particular repository is part of a much larger collection – the Trump Trials Clearinghouse – which contains similar documents and information related to other criminal and civil trials involving former President Donald Trump.

The repository and other parts of the Trump Trials Clearinghouse will be continually updated. If you think the repository is missing something, please send recommendations for additional content by email to lte@justsecurity.org.

Expand all Collapse all

Clearinghouse: 2016 Election Interference Case – Manhattan District Attorney

Norman L. Eisen — Thu, 25 Jul 2024 05:25:05 -0400

Expand all Collapse all

United States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel

Marty Lederman — Wed, 24 Jul 2024 09:27:24 -0400

Fifty years ago today, the Supreme Court issued its landmark ruling in United States v. Nixon. Nixon involved the constitutionality of a subpoena for tapes that District Judge John Sirica issued to the sitting President at the behest of Leon Jaworski, a “special prosecutor” who had an unprecedented degree of independence from DOJ leadership (and from the President). Jaworski was appointed to his position by Acting Attorney General Robert Bork. (Indeed, Bork separately created the office that he appointed Jaworski to fill, as I explain below.) In the course of his opinion for a unanimous Court, Chief Justice Warren Burger held that Congress had vested the Attorney General with the power to make such a delegation of authority to the special prosecutor. United States v. Nixon, 418 U.S. 683, 694 & n.8 (1974). As I discuss at the end of this essay, that was not a controversial position at the time—indeed, even President Richard Nixon himself, represented by esteemed counsel, concurred that the Acting Attorney General had such statutory authority, and no one in Congress or the legal community (to my knowledge) suggested otherwise.

For almost a half-century thereafter, the Supreme Court’s conclusion about the Attorney General’s authority became common, uncontradicted wisdom. No one in any of the three branches of government ever questioned it, and Attorneys General repeatedly acted in accord with, and reliance upon, it.

Until last Monday. On July 15, U.S. District Judge Aileen Cannon concluded that the Supreme Court was wrong about the Attorney General’s authority. And on the basis of that holding, Judge Cannon granted former President Donald Trump’s motion to dismiss the indictment against him in the Mar-a-Lago retained-documents case.

This essay explains why the Supreme Court (and virtually everyone else for 50 years) was right about the Attorney General’s authority and why Judge Cannon therefore erred in dismissing the indictment. [Disclosure: I was a Deputy Assistant Attorney General in the DOJ Office of Legal Counsel at the time of the Attorney General’s appointment of Smith. Nothing in this essay, however, reflects any confidential information from my tenure at OLC.]

**How the Question Arises in the Trump Case**

When former President Trump announced in 2022 that he would run for another term as President, Attorney General Merrick Garland deemed it appropriate to appoint a special counsel to supervise two pending criminal investigations of Trump. See 28 C.F.R. 600.1 (requiring the Attorney General to appoint a Special Counsel “when he or she determines that criminal investigation of a person or matter is warranted and—(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter”). Accordingly, on November 18, 2022, Garland appointed Jack Smith—who before that day was not employed at the Department of Justice—“to serve as Special Counsel for the United States Department of Justice.” In his appointment memorandum, the Attorney General authorized Smith to, among other things, “conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021”; “conduct the ongoing investigation” in the Mar-a-Lago documents case; and “prosecute federal crimes arising from the investigation of these matters.” This assignment of authority transferred the supervision of the Mar-a-Lago case to the Special Counsel from the National Security Division within DOJ.

The Attorney General’s appointment memorandum specified that “Sections 600.4 to 600.10 of title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” The cited regulations are among those Attorney General Reno promulgated in 1999, which apply to a “Special Counsel” who is “selected from outside the United States Government.” 28 C.F.R. § 600.3(a). Those regulations provide (id. § 600.6) that such a Special Counsel “shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney” and “shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.” Although a Special Counsel such as Jack Smith is required to comply with DOJ’s rules, regulations, procedures, practices and policies, id. § 600.7(a), he is “not … subject to the day-to-day supervision of any official of the Department,” id. § 600.7(b).

Nevertheless, the Attorney General retains authority to substantially supervise and oversee the Special Counsel. The Attorney General may determine annually “whether the investigation should continue.” Id. § 600.8(a)(2). And he “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Id. § 600.7(b). Although the Attorney General must “give great weight to the views of the Special Counsel” in reviewing such an explanation, he might nonetheless “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” id., in which case the Attorney General may countermand Smith’s decision. Accordingly, as Attorney General Reno explained when she promulgated the regulations, the Attorney General has “ultimate responsibility for the matter and how it is handled.” 64 Fed. Reg. 37,038, 37,038 (July 9, 1999); see also id. at 37,040 (“notification of proposed indictments and other significant events in the course of the investigation, with the resulting opportunity for consultation, is a critical part of the mechanism through which the Attorney General can discharge his or her responsibilities with respect to the investigation”).

Trump moved to dismiss the Mar-a-Lago indictment on the ground that Special Counsel Smith lacks legal authority to prosecute the case. Judge Cannon ruled last Monday that Smith lacks such authority because Attorney General Garland himself did not have the power to confer such authority upon an individual who was not already employed at DOJ.

Trump’s motion and Judge Cannon’s opinion are styled as if the question is a constitutional one—namely, whether the Attorney General’s appointment of the Special Counsel “violate[d]” the Appointments Clause of the Constitution (Art. II, § 2, cl. 2). But as Judge Cannon herself acknowledged on page 3 of her opinion, in truth it’s not a constitutional question at all. The Appointments Clause provides that the Head of a Department, such as the Attorney General, may appoint what the Clause refers to as an “inferior” officer. Judge Cannon assumed, correctly, that the Special Counsel is an inferior officer, at least as a matter of governing precedent.^[1] Accordingly, even if we assume that Attorney General Garland appointed Smith to an “office” (but see my discussion below, suggesting to the contrary), the method of appointment here complied with the Appointments Clause.

If that’s the case, then what was the legal basis for Judge Cannon’s ruling? As Judge Cannon concedes, the determinative question is a statutory one—namely, whether Congress has conferred upon the Attorney General the power to hire someone previously employed outside DOJ to perform the investigatory and prosecutorial functions Garland has assigned to Smith. It’s common ground between the parties that if an Attorney General lacks statutory authority to authorize a Special Counsel to prosecute the case in the way the Smith appointment order contemplates, then that would resolve the legal question on statutory grounds (namely, that the Attorney General’s appointment order was ultra vires), regardless of the Appointments Clause. DOJ does not argue—no one does—that the Attorney General could have conferred that authority absent any statutory authority to do so. On the other hand, however, if the Attorney General has such statutory authority, then Garland’s November 2022 appointment and authorization to Jack Smith were constitutional.^[2]

The Attorney General’s Statutory Authorities to Hire Individuals to Work at DOJ, to Exercise Prosecutorial Functions, and to Delegate Those Functions to DOJ Personnel

In order to properly examine the pertinent statutory question about Congress’s conferral of authority to the Attorney General, it is important to understand that, regardless of whether Attorney General Garland had statutory authority to create an office of Special Counsel for the Mar-a-Lago and January 6 cases—a question I address later in this essay—two other things are clear:

(i) The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice (which Trump does not contest); and

(ii) The Attorney General also had authority to assign the supervision of the two criminal cases to anyone working at DOJ.

Those two Attorney General authorities, together, are sufficient to resolve the question before Judge Cannon—namely, whether it is lawful for Jack Smith to supervise the Mar-a-Lago prosecution.

As for the first: The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice pursuant to 5 U.S.C. 3101 (affording each Executive agency the power to hire employees, defined to include officers, id. § 2105(a)). See also 28 U.S.C. §§ 503, 509 (designating the Attorney General “the head of the Department of Justice” and vesting the Attorney General with the authority to perform virtually all DOJ functions, which includes hiring). (At one point in her opinion (p.41), Judge Cannon described Smith as a “private citizen exercising the full power of a United States Attorney.” He is not: Jack Smith is employed by DOJ. Indeed, Attorney General Garland’s appointment memorandum specifies that Smith is “to serve as Special Counsel for the United States Department of Justice.”)

OK, but what about the second key proposition above—that the Attorney General has authority to assign the supervision of the two criminal cases to anyone working at DOJ? The basis for that conclusion is a combination of 28 U.S.C. §§ 509 and 510.

Section 509 provides that, with discrete exceptions not relevant here, “[a]ll” DOJ functions “are vested in the Attorney General,” even where another statute specifically assigns a particular function to other DOJ officials (such as 28 U.S.C. § 547(1), which authorizes U.S. Attorneys to prosecute offenses against the United States). Therefore, the Attorney General himself may supervise a criminal investigation and prosecution. This has been true since 1870, when Congress enacted the law establishing DOJ. See Act of June 22, 1870, ch. 150, § 3, 16 Stat. 162, 163 (providing that “the Attorney-General may, whenever he deems it for the interest of the United States, conduct and argue any case in which the government is interested, in any court of the United States”).^[3]

Section 510, in turn, provides the Attorney General a virtually unlimited power to delegate those authorities. It provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” (Congress has vested the Attorney General with such a broad delegation power since at least 1950. See Reorganization Plan No. 2 of 1950, § 2, 64 Stat. 1261, 1261.) This means that the Attorney General may assign the functions of criminal investigation and prosecution of a particular case—powers he may personally exercise, per Section 509—to any other officer, employee, or agency of DOJ. For example, Section 510 would have authorized Attorney General Garland to assign supervision of the Mar-a-Lago investigation, and any subsequent prosecution, to an attorney employed in the Office of the Attorney General (OAG), or to an attorney in the Tax Division, or to an attorney in the Environment and Natural Resources Division, etc.

Of particular note with respect to the Mar-a-Lago case, for the past 17 years the Attorney General has exercised his Section 510 delegation authority to assign supervision of criminal investigations and prosecutions involving national-security-related offenses to the DOJ National Security Division (NSD), even though Congress has not vested the Assistant Attorney General for NSD with any statutory authority to prosecute criminal cases. See 28 U.S.C. § 507A(b) (setting forth the statutory functions of the NSD AAG). In 2007, Attorney General Alberto Gonzales promulgated a regulation, 28 C.F.R. § 0.72(a)(7), conferring upon NSD the power to “[p]rosecute Federal crimes involving national security.” See 72 Fed. Reg. 10,064, 10,066 (Mar. 7, 2007). Not surprisingly, Attorney General Gonzales cited Sections 509 and 510 as authority for that regulatory conferral of prosecutorial power to NSD (together with 5 U.S.C. § 301, which vests the head of every Executive department with authority to “prescribe regulations for the government of his department [and] the distribution and performance of its business”). Id. at 10,065. What’s more, the DOJ Justice Manual prescribes NSD control of such cases as the default rule. See United States Dep’t of Justice, Justice Manual § 9-90.010(A) (“The enforcement of all criminal laws affecting, involving or relating to the national security, and the responsibility for prosecuting criminal offenses, such as conspiracy, perjury and false statements, arising out of offenses related to national security, is assigned to the Assistant Attorney General (AAG) of the National Security Division. Where a matter affects the national security, regardless of the specific statute(s) implicated, prosecutions shall be instituted and conducted under the supervision of the Assistant Attorney General, National Security Division, or higher authority.”) (emphasis added). (Although NSD often prosecutes such cases in conjunction with a U.S. Attorney’s office, it need not do so, and my understanding is that NSD regularly supervises such prosecutions even when there is some involvement by attorneys in a U.S. Attorney’s office.)

Accordingly, before Attorney General Garland appointed a Special Counsel in November 2022, the Mar-a-Lago investigation and litigation itself were “instituted and conducted under the supervision of” NSD Assistant Attorney General Matt Olsen, rather than a U.S. Attorney. Such NSD direction of the case was the result of an Attorney General delegation of his own authority to NSD pursuant to Section 510.

It follows that Attorney General Garland could have first hired Jack Smith to work in one of those DOJ components—in OAG, for example, or NSD—and then used his power under Section 510 to delegate to Smith the responsibility to supervise the Mar-a-Lago case.

Judge Cannon appears to concede this point on page 24 of her opinion; there, she writes that Section 510 “gives the Attorney General flexibility to authorize existing DOJ officers, employees, or agencies to perform the functions of the Attorney General, consistent with the nature of those functions” (emphasis in original). Indeed, throughout her opinion Judge Cannon appears to acknowledge (e.g., pp. 27, 29, 38) that Attorney General Garland could have assigned the authority in question to any “already-retained” DOJ attorney. If that is correct (and it is), then Attorney General Garland could have authorized Smith to handle the Mar-a-Lago case had he done so five minutes after hiring Smith to work at DOJ. Judge Cannon’s holding that Section 510 is inadequate in this case, then, appears to be premised upon her assumption that Congress has insisted upon some temporal separation, no matter how brief, between the act of hiring an individual and the act of authorizing that DOJ official to supervise a prosecution.

There is, however, no basis for assuming Congress has required such a two-step dance. Indeed, there would be no reason for Congress to have imposed such a requirement, which would serve no useful purpose and that would have contravened a longstanding practice of hiring individuals from outside DOJ to commence employment at DOJ in order to handle a particular case. Section 510 empowers the Attorney General to delegate his functions—including criminal-law investigation and prosecution—to an incoming DOJ employee who has been hired for the specific purpose of exercising that delegated authority. As noted below, that has happened quite frequently.

Sections 509 and 510 thus are sufficient to afford the Attorney General the authority to delegate the Attorney General’s own investigatory and prosecutorial functions to an attorney hired into DOJ for that purpose from outside the Department.

Section 515 of Title 28, which Judge Cannon discusses more extensively than Sections 509 and 510, is not necessary to establish this point—but it strongly confirms Congress’ understanding that such “special” counsels can be hired into the Department specifically in order to investigate and prosecute an identified case.^[4]

First, subsection 515(a) expressly establishes that such prosecutorial functions are not the exclusive province of U.S. Attorneys. It provides:

The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

In other words, even though criminal trials are proceedings that “United States attorneys are authorized by law to conduct,” the Attorney General himself may conduct such proceedings or “specifically direct” any DOJ officer or “or any attorney specially appointed by the Attorney General under law” to conduct them. That is why it is uncontroverted that the Attorney General can give NSD the authority to prosecute national-security-related cases—as Attorney General Gonzales did in 2007—even though the Assistant Attorney General for NSD, unlike a U.S. Attorney, has no express statutory authority to prosecute cases. The reference in subsection 515 to “any attorney specially appointed by the Attorney General under law” further reflects Congress’s view that the Attorney General can, and occasionally does, make case-specific (i.e., “special”) assignments of such criminal investigative and prosecutorial authority, which can thereby displace the ordinary supervision of a U.S. Attorney.

Subsection 515(b), in turn, reflects a congressional understanding that such an Attorney General may in some cases make such a case-specific “special appointment” to persons who weren’t previously employed at DOJ. It provides that “[e]ach attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law.” (Judge Cannon offers a couple of arguments about why subsection 515(b) shouldn’t be construed to cover a case such as the Attorney General’s appointment of Special Counsel Smith. For reasons I briefly explain in the footnote below, however, those arguments aren’t persuasive.^[5])

It might well be the case that Section 515, standing alone, would be sufficient to establish the Attorney General’s authority to appoint a Special Counsel such as Jack Smith, even if Congress had never enacted the broad delegation authority found in Section 510. Indeed, Congress

Early Edition: July 24, 2024

Gwendolyn Whidden — Wed, 24 Jul 2024 07:06:27 -0400

Signup to receive the Early Edition in your inbox here.

A curated weekday guide to major news and developments over the past 24 hours. Here’s today’s news:

U.S. PRESIDENTIAL ELECTIONS

Vice President Kamala Harris delivered her first speech as the de facto Democratic nominee in Wisconsin yesterday, just two days after President Biden ended his reelection campaign. Harris delivered a sharp critique of former President Trump, vowing to defeat him by attacking him as a prosecutor would. “In this campaign, I promise you I will proudly put my record against his every day of the week,” Harris said. Reid Epstein and Simon Levien report for The New York Times.

Top Congressional Democrats Sen. Chuck Schumer (D-NY) and Rep. Hakeem Jeffries (D-NY) yesterday endorsed Harris for president, officially throwing their support behind her after initially taking a cautious approach. Major Democratic donors Melinda Gates and George Clooney also endorsed Harris yesterday. Catie Edmondson and Maya Miller report for The New York Times; Maya King reports for The New York Times.

Delegates to the Democratic National Convention support the party swiftly nominating Harris as their presidential candidate, rather than going through a prolonged and potentially divisive debate, according to interviews conducted by The New York Times.

Trump will meet with Israeli Prime Minister Benjamin Netanyahu on Friday at Mar-a-Lago in Palm Beach, Florida, Trump said yesterday in a social media post. Shortly after, Trump published a letter he received from Palestinian President Mahmoud Abbas, pledging to work for peace in the Middle East. The letter may signal Abbas wants to rebuild relations with Trump after their fallout in 2017 over Trump’s decision to recognize Jerusalem as Israel’s capital. Michael Gold reports for The New York Times; Barak Ravid reports for Axios.

Ahead of Biden’s planned prime-time address tonight, Trump and his campaign sent a letter to major news outlets yesterday demanding that he be given equal airtime. The campaign’s general counsel asserted that Biden would likely address his endorsement of Harris, meaning it was a “campaign speech,” and citing the Federal Communications Commission’s “equal time” rule, insisted Trump be given equal time on air. Michael Gold and Jim Rutenberg report for the New York Times.

TRUMP RALLY SHOOTING

Secret Service Director Kimberly Cheatle resigned yesterday after bipartisan calls for her to step down over security failures surrounding the assassination attempt on Trump. Biden said he would appoint a new director soon. In the meantime, Ronald Rowe, the Secret Service Deputy Director, has been appointed as the agency’s acting director. Hamed Aleaziz, Zolan Kanno-Youngs, and Kate Kelly report for the New York Times; Avery Lotz reports for Axios.

Secret Service officials encouraged Trump’s campaign to stop scheduling large outdoor rallies and other outdoor events, according to people familiar with the matter. Josh Dawsey reports for the Washington Post.

OTHER U.S. DOMESTIC DEVELOPMENTS

Sen. Bob Menendez (D-NJ) will resign his seat effective Aug. 20, according to a copy of his resignation letter obtained by CNN. Mendez was recently convicted of 16 counts for his role in a yearslong bribery scheme. New Jersey Governor Phil Murphy will appoint a replacement to fill the remainder of his term, which ends in January. Laura Dolan, Lauren Fox and Clare Foran report.

ISRAEL-HAMAS WAR

President Joe Biden will meet with families of American hostages held in Gaza, a U.S. official said. It marks Biden’s second such meeting since the Oct. 7 Hamas attacks on Israel. Reuters reports.

Starlink satellite internet service has been activated in a hospital in Gaza with the help of the United Arab Emirates and Israel, SpaceX CEO Elon Musk said today. Reuters reports.

The Palestinian Authority said the war in Gaza has driven the Palestinian budget deficit up 172%. Reuters reports.

ISRAEL-HAMAS WAR – U.S. RESPONSE

A group of unions representing millions of workers sent a letter to the White House yesterday demanding a cease-fire in Gaza and that the United States stop sending military aid to Israel. Simon Levein reports for The New York Times.

Thousands of pro-Palestinian protesters will converge in Washington today for a “day of rage” over the war in Gaza as Netanyahu speaks in Congress, organizers have warned. Brandon Drenon reports for BBC News.

RUSSIA-UKRAINE WAR

Ukraine’s top diplomat told Chinese Foreign Minister Wang Yi today that Kyiv is open to negotiating with Russia if Moscow is ready to do so “in good faith.” According to a poll released yesterday, almost a third of Ukrainians would accept some territorial concessions to Russia for a quick end to the war, a more than three-fold increase over the past year. Reuters reports.

U.S. Secretary of Defense Lloyd Austin yesterday reaffirmed the United States’ support for Ukraine during a phone call with Ukrainian Defense Minister Rustem Umverov, the Pentagon announced. It marks the first time the defense ministers have spoken since President Biden’s withdrawal from the 2024 election. Reuters reports.

E.U. member states will today discuss options for extending the renewal period of sanctions on the Russian central bank’s assets to secure a G7 plan to extend a major loan to Ukraine. Reuters reports.

A car bomb injured an officer from Russia’s military intelligence agency in northern Moscow today, Russian media reported. Russia’s interior ministry said two people were injured in a blast and that a criminal case had been opened. Reuters reports.

GLOBAL DEVELOPMENTS

Sunday was the hottest day ever recorded on Earth, scientists say, with the planet’s average temperature 62.76 degrees Fahrenheit, breaking a record only set last year. Sarah Kaplan reports for The Washington Post.

French President Emmanuel Macron has said he won’t name a new government until after the end of the Paris Olympics. Meanwhile, authorities are finalizing an unprecedented security operation ahead of the games, which will see up to 75,000 troops on patrol in the city. The operation is the largest peacetime deployment of security forces in French history. Christy Cooney reports for BBC News; Andrew Harding reports for BBC News.

Trash balloons sent by North Korea have landed in South Korea’s presidential compound in the capital city of Seoul, officials say. It is the first time the South Korean leader’s office, which is a designated no-fly zone, has been hit by balloons from Pyongyang. Annabelle Liang reports for BBC News.

More than 200 people have been killed in deadly twin landslides in Ethiopia. Authorities say those who ran to help victims of the first landslide were swept away by the second. Al Jazeera reports.

Dozens of people were detained in Uganda’s Kampala yesterday after joining anti-corruption protests in defiance of an official ban. Lawyers said around 60 people, including a prominent TV presenter and three young protest leaders, were arrested and remain in custody. Christy Cooney reports for BBC World News.

Nigeria’s President Bola Tinubu urged young people not to join nationwide cost-of-living protests planned for next week. Organizers are said to have been inspired by recent protests in Kenya. Natasha Booty reports for BBC News.

A bodyguard of Sierra Leone’s former president Ernest Bai Koroma was found guilty of treason and sentenced alongside 10 others over a failed coup last year. Basillioh Rukanga reports for BBC News.

The United States has invited the Sudanese army and the paramilitary Rapid Support Forces for U.S.-mediated ceasefire talks in Switzerland starting Aug. 14, Secretary of State Antony Blinken said yesterday. Reuters reports.

The post Early Edition: July 24, 2024 appeared first on Just Security.

U.S. National Security and Military News Review

Russia Warned Austin About Alleged Ukrainian Plot in Private Call

AIR WEAPONS: Drones Achieve Battlefield Domination

FORCES: NATO Needs More Soldiers

Bullet or Fragment of One Struck Trump’s Ear, F.B.I. Says

Justice Dept. Settles Lawsuit With Former F.B.I. Officials Targeted by Trump

Send private-security contractors into Gaza? That’s a terrible idea

Army Sees No Link to Blast Exposure in Maine Gunman’s Mental Issues

Memo on AI's national-security implications heads for Biden's desk

The D Brief: Russian strike leaves blackouts; SecDef heads to Asia; Earth’s hot streak; Olympians in uniform; And a bit more.

Dept of Justice Promises to Declassify Standard Operating Procedure for Coordinating with Social Media Platforms

The Chiquita Verdict Expands International Human Rights Liability for Corporate Conduct Abroad

Chiquita’s Plea with the U.S. Department of Justice & Subsequent Civil Litigation

Unsuccessful Federal Statutory and State Law Claims for Human Rights Abuses Abroad

The Transitory Nature of Torts Committed Abroad Gives Rise to U.S. Corporate Liability

Implications for Corporations and Victims of Human Rights Violations

IMAGE: Chiquita Bananas for sale in a grocery story. (Photo by Santeri Viinamäki via Wikimedia, CC BY 4.0)

What the Draft UN “Pact for the Future” Tells Us About International Insecurity

Early Edition: July 26, 2024

Assessing Cause of Trump Wound, F.B.I. Examines Bullet Fragments From Rally

From Online Drug Lord to Crypto Entrepreneur, Blake Benthall Is Back in Business

Kamala Harris’s Bratty Coconut Memescape + What Does $1,000 a Month Do? + The Empire CrowdStrikes Back

Austin heads to Asia with $500 mil for the Philippines

Austin heads to Asia with $500M for the Philippines

LEADERSHIP: Pathetic Palestine Plods On

MYANMAR: July 2024 Update

How a U.S. Antidoping Law Fueled Global Tensions

A boom in space-based intelligence is coming. Can ground networks keep up?

U.S. Indicts North Korean in Ransomware Attacks and Theft of Military Data

Justice Dept. Watchdog Criticizes Barr’s Role in Election Inquiry

El tirador del atentado contra Trump buscó datos sobre el asesinato de Kennedy

F-35’s price might rise, Lockheed warns

The U.S. Must Stand Up to Beijing in the South China Sea

Navy still picking winner for F/A-XX next year, Northrop CEO says

The D Brief: Chinese-Russian flight near Alaska; Warships chased from Azov?; B-2 tests cheap shipkiller; France’s big deployment; And a bit more.

International Court of Justice’s Call on All States to End Israel’s Occupation and Find a Path to Peace

US Arrests Former Syrian Prison Chief – But Will the Charges Prove Equal to His Crimes?

Legal Opportunities and Constraints

Immigration Fraud Charges: Start Point Not End Point

Strengthening Commitments

IMAGE: The statue of justice in front of an American flag. (Photo via Getty Images)

Early Edition: July 25, 2024

Trump Trials Clearinghouse

Master Calendar of Trump Court Dates and the 2024 Campaign

New York: 2016 Election

Department of Justice: 2020 Election Interference

Georgia: 2020 Election Interference

Department of Justice: Classified Documents

New York Attorney General: Corporate Fraud

Clearinghouse: Mar-a-Lago Documents Case – Southern District of Florida

Charging Instruments and Arraignment

Conditions of Release

Pretrial Motions (including motions to dismiss)

Clearinghouse: 2016 Election Interference Case – Manhattan District Attorney

United States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel

How the Question Arises in the Trump Case

The Attorney General’s Statutory Authorities to Hire Individuals to Work at DOJ, to Exercise Prosecutorial Functions, and to Delegate Those Functions to DOJ Personnel

Early Edition: July 24, 2024

**How the Question Arises in the Trump Case**