DOD EXPLAINS EVOLUTION OF 'USE OF FORCE LAW' TO COVER MULTIPLE MILITARY OPERATIONS

FROM:  U.S. DEFENSE DEPARTMENT
General Counsel Charts Use of Force Law’s Evolution
By Jim Garamone
DoD News, Defense Media Activity

WASHINGTON, April 13, 2015 – Though the very idea of law sounds immutable and concrete, the law evolves as circumstances change, the Defense Department’s general counsel told the American Society of International Law here April 10.

Stephen W. Preston updated the group on the latest thinking behind the legal framework for military options and on how that thinking has changed.
Preston explained the history behind the authorization for the use of military force that allowed operations against al-Qaida in 2001. The AUMF, as it is commonly abbreviated, was not a traditional declaration of war against a state, he said.

“We had been attacked, instead, by a terrorist organization,” he said. “Yes, the Taliban had allowed [Osama] bin Laden and his organization to operate with impunity within Afghanistan. But it was not Afghanistan that had launched the attack. It was bin Laden and his terrorist organization.

“The authorization for the use of military force that Congress passed aimed to give the president all the statutory authority he needed to fight back against bin Laden, his organization and those who supported him, including the Taliban,” Preston added.

Associated Forces

Congress, the executive branch and the courts agreed in 2011 that the 2001 AUMF covered associated forces, too: al-Qaida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qaida in the Arabian Peninsula in Yemen; and individuals who are part of al-Qaida in Somalia and Libya, the general counsel said.

“In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qaida referred to as the Khorasan Group in Syria,” he added. “We have also resumed such operations against the group we fought in Iraq when it was known as al-Qaida in Iraq, which is now known as [the Islamic State of Iraq and the Levant].”

Putting groups into this category is done only at the highest levels of the U.S. government, Preston said.

He stressed that American actions against ISIL are consistent with international and domestic law. ISIL grew out of al-Qaida in Iraq, and Americans and American interests have been targets of the terror group since 2004, he said.
ISIL’s recent split from al-Qaida does not change the situation in respect to law, Preston told the group. ISIL considers itself to be the true inheritor of bin Laden’s legacy and groups that have pledged loyalty to ISIL, he explained, adding that this alone covers the group under the 2001 AUMF.

Authorization for Force in Iraq

Preston stressed that the president’s authority to fight ISIL is further reinforced by the 2002 authorization for the use of military force against Iraq. “That AUMF authorized the use of force to, among other things, ‘defend the national security of the United States against the continuing threat posed by Iraq,’” he said.

Though the AUMF was directed against Saddam Hussein’s regime, “the statute … has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq,” he said.

For current operations in Iraq, he noted, the Iraqi government requested American help against ISIL. “In Syria, the United States is using force against ISIL in the collective self-defense of Iraq and U.S. national self-defense, and it has notified the U.N. Security Council that it is taking these actions in Syria consistent with Article 51 of the U.N. Charter,” he said. Article 51 allows for self-defense actions.

Though the NATO combat mission in Afghanistan ended in December, the 2001 AUMF remains valid, Preston said.

“Although our presence in that country has been reduced and our mission there is more limited, the fact is that active hostilities continue,” he said. “As a matter of international law, the United States remains in a state of armed conflict against the Taliban, al-Qaida and associated forces, and the 2001 AUMF continues to stand as statutory authority to use military force.”

The roughly 10,000 U.S. service members in Afghanistan have two missions, Preston told the group. The first -- a NATO mission -- is to continue training Afghan security forces. The second is a counterterrorism mission aimed at the remnants of al-Qaida and to prevent an al-Qaida resurgence or external plotting against the homeland or U.S. targets abroad, the general counsel said.

“The use of force by the U.S. military in Afghanistan is now limited to circumstances in which using force is necessary to execute those two missions or to protect our personnel,” he said.

Adapting Law to the ISIL Fight

Preston then turned to current discussions over an AUMF aimed directly at ISIL. President Barack Obama wants ultimately to repeal the 2001 AUMF and to tailor its authorities to better fit the current fight and the strategy going forward, he said. In February, the president submitted draft legislation authorizing use of “the armed forces of the United States as the president determines to be necessary and appropriate against ISIL or associated persons or forces.”

“This raises the question: If the president already has the authority needed to take action against ISIL, why is he seeking a new authorization?” the general counsel asked. “Most obviously and importantly, as the president has said, the world needs to know we are united behind the effort against ISIL, and the men and women of our military deserve our clear and unified support. Enacting the president’s proposed AUMF will show our fighting forces, the American people, our foreign partners and the enemy that the president and Congress are united in their resolve to degrade and defeat ISIL.”

AG HOLDER, NSA DIRECTOR CLAPPER MAKE STATEMENT ON BULK TELEPHONY METADATA PROGRAM

FROM:   U.S. JUSTICE DEPARTMENT 
Friday, March 28, 2014
Joint Statement by Attorney General Eric Holder and Director of National Intelligence James Clapper on the Declassification of Renewal of Collection Under Section 215 of the Usa Patriot Act (50 U.S.C. Sec. 1861))

Attorney General Eric Holder and Director of National Intelligence James Clapper released the following joint statement Friday:

“Earlier this year in a speech at the Department of Justice, President Obama announced a transition that would end the Section 215 bulk telephony metadata program as it existed, and that the government would establish a mechanism that preserves the capabilities we need without the government holding this bulk data. As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court (FISC) to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three.  These two changes were put into effect on Feb. 5, 2014, when the FISC granted the government’s motion to amend its Jan. 3, 2014, primary order approving the production of telephony metadata collection under Section 215. Following a review for declassification the Jan. 3 primary order, the government’s motion to amend that order, and the order granting the motion were posted to the FISC’s website, as well as the Office of the Director of National Intelligence website and icontherecord.tumblr.com.

“In addition to directing those immediate changes to the program, the President also directed the Intelligence Community and the Attorney General to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata.  He instructed us to report back to him with options for alternative approaches before the program came up for reauthorization on March 28. Consistent with the President’s direction, we provided him with alternative approaches for consideration.

“After carefully considering the available options, the President announced yesterday that the best path forward is that the government should not collect or hold this data in bulk, and that it should remain at the telephone companies with a legal mechanism in place that would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries. The President also noted that legislation would be required to implement this option.

“Given that this legislation is not yet in place, and given the importance of maintaining this capability, the President directed the Department of Justice to seek a 90-day reauthorization of the existing program, which includes the modifications that he directed in January. Consistent with both the President’s direction, and with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, DNI Clapper declassified the fact that the United States filed an application with the FISC to reauthorize the existing program as previously modified for 90 days, and that today the FISC issued an order approving the government’s application. The order issued today expires on June 20, 2014. The Administration is undertaking a declassification review of this most recent court order.

U.S. STATE DEPARTMENT FACT SHEET ON TERRORISM DESIGNATIONS

FROM:  U.S. DEPARTMENT OF STATE
Terrorism Designations FAQs
Fact Sheet Office of the Spokesperson Washington, DC
July 10, 2012
1. What are the different types of terrorism designations for groups and individuals?
There are two main authorities for terrorism designations of groups and individuals. Groups can be designated as Foreign Terrorist Organizations under the Immigration and Nationality Act. Under Executive Order 13224 a wider range of entities, including terrorist groups, individuals acting as part of a terrorist organization, and other entities such as financiers and front companies, can be designated as Specially Designated Global Terrorists (SDGTs).

2. Who can designate FTOs and SDGTs?
The Department of State is authorized to designate FTOs and SDGTs, while the Department of the Treasury designates only SDGTs. Both departments pursue these designations in cooperation with the Department of Justice. All of the Department of State’s designations can be found at: http://www.state.gov/j/ct/list/index.htm. All State FTO and EO designations can also be found at the Treasury OFAC website.

3. What are the criteria for designation?
The Secretary of State designates Foreign Terrorist Organizations in accordance with section 219 of the Immigration and Nationality Act. The legal criteria for designating a group as a Foreign Terrorist Organization are:
The organization must be a foreign organization;
The organization engages in terrorist activity or terrorism, or retains the capability and intent to engage in terrorist activity or terrorism; and
The terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

Under Executive Order 13224, the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, may designate foreign individuals or entities that he determines have committed, or pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the U.S.; or, the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, may designate individuals or entities that are determined:
To be owned or controlled by, or act for or on behalf of an individual or entity listed in the Annex to the Order or by or for persons determined to be subject to the Order;
To assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, acts of terrorism or individuals or entities designated in or under the Order; or
To be otherwise associated with certain individuals or entities designated in or under the Order.

4. What makes you decide to designate or not designate a group or entity?
Within the Department of State, the Bureau of Counterterrorism identifies and evaluates possible individuals or organizations for designation. Other Departments also recommend designation targets.

5. How long does the process take?
For Foreign Terrorist Organizations, once an organization is identified, we prepare a detailed "administrative record," which is a compilation of information, typically including both classified and open source information, demonstrating that the statutory criteria for designation have been satisfied.
If the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, decides to make the designation, Congress is notified of the Secretary’s intent to designate the organization seven days before the designation is published in the Federal Register, as section 219 of the Immigration and Nationality Act requires.
Upon the expiration of the seven-day waiting period and in the absence of Congressional action to block the designation, notice of the designation is published in the Federal Register, at which point the designation takes effect.

For Specially Designated Global Terrorists, As with FTO designations, an “administrative record” is prepared for E.O. 13224 designations. Once it is completed and the Secretary of State or the Secretary of the Treasury designates an individual or entity, the Office of Foreign Assets Control (OFAC) of the Department of the Treasury takes appropriate action to block the assets of the individual or entity in the United States or in the possession or control of U.S. persons, including notification of the blocking order to U.S. financial institutions, directing them to block the assets of the designated individual or entity.
Notice of the designation is also published in the Federal Register. OFAC also adds the individual or entity to its list of Specially Designated Nationals, by identifying such individuals or entities as Specially Designated Global Terrorists (SDGTs), and posts a notice of this addition on the OFAC website.
Designations remain in effect until the designation is revoked or the Executive Order lapses or is terminated in accordance with U.S. law.

 6. What are the consequences of a designation?
Executive Order:
With limited exceptions set forth in the Order, or as authorized by OFAC, all property and interests in property of designated individuals or entities that are in the United States or that come within the United States, or that come within the possession or control of U.S. persons are blocked.
With limited exceptions set forth in the Order, or as authorized by OFAC, any transaction or dealing by U.S. persons or within the United States in property or interests in property blocked pursuant to the Order is prohibited, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of individuals or entities designated under the Order.

Any transaction by any U.S. person or within the United States that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions in the Order is prohibited. Any conspiracy formed to violate any of the prohibitions is also prohibited.
Civil and criminal penalties may be assessed for violations.

Foreign Terrorist Organization:
It is unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide "material support or resources" to a designated FTO.
Representatives and members of a designated FTO, if they are aliens, are inadmissible to and, in certain circumstances removable from, the United States.

The Secretary of the Treasury may require U.S. financial institutions possessing or controlling any assets of a designated FTO to block all transactions involving those assets.