Over at Slate, Eric Posner has a very interesting essay defending the Senate’s recent rejection of the disabilities rights treaty—although rejecting the reasons for rejection proffered by the senators who voted against it. Posner also strikes a skeptical chord towards “empty” human rights treaties more broadly. He opens:

This month, the Senate by a vote of 61-38 failed to amass the two-thirds majority needed to approve the U.N. Convention on the Rights of Persons With Disabilities. The treaty’s supporters, lamenting America’s broader reluctance to join international human rights treaties, snorted at the vote and lampooned the antediluvian (but not prelapsarian) Republicans who shot the convention down. And it’s true that there are about a dozen human rights treaties, the vast majority of countries have ratified them, and the United States, frequently, has not. And rightly so. These treaties are little more than a collective back-scratching exercise involving many of the world’s most unsavory nations: The United States does well to keep its distance.

Money quote:

consider a country like Uzbekistan, a party to the convention protecting the rights of the child, and a place where, according to Human Rights Watch, there is “Government-sponsored forced child labor during the cotton harvest.” Or Saudi Arabia, a party to the convention banning discrimination against women (“girls and women of all ages are forbidden from traveling, studying, or working without permission from their male guardians”). Or Vietnam, a party to the treaty that guarantees political freedoms (“systematically suppresses freedom of expression, association, and peaceful assembly”). Or China, a party to the treaty that bans torture (“forced confessions under torture remain prevalent”). Or Nigeria, a party to the convention outlawing racial and ethnic discrimination (“State and local government policies that discriminate against … people who cannot trace their ancestry to what are said to be the original inhabitants of an area continue to exacerbate intercommunal tensions and perpetuate ethnic-based divisions.”). (All quotations from Human Rights Watch’s 2012 World Report.) Or consider India, which ratified a treaty that confers a right to housing, and yet is unable to house tens of millions of homeless Indians who live in shanties on streets and garbage dumps. The nine most repressive countries of 2011, Freedom House‘s “Worst of the Worst,” including Eritrea, Syria, and Turkmenistan, belong to most of the major human rights treaties.

The human rights regime is a vast international Potemkin village, a kind of communal effort among states to deceive one another and mainly their citizens, or an excrescence of the bureaucratic imperative to deny error and bad intentions, using whatever legal forms happen to be available. Think of it as the modern version of the brass band and fancy bunting that surround the dictator while he harangues the crowd. Fine if other countries want to do that, but why should we be complicit?

Secretary of Defense Leon E. Panetta delivered a wide-ranging address on December 18, 2012 at the National Press Club in Washington DC on the United States’ overall national security strategy. The speech was part valedictory lap prior to Panetta stepping down after the New Year, part plea against “sequestration”  and its effects on DOD if the US goes over the “fiscal cliff,” but it was most importantly a statement and defense of US national security strategy for the years ahead.  I listened to the whole thing broadcast live on CSPAN while stuck in traffic on DC’s Key Bridge, and was particularly struck by the several bits and pieces of the speech in which Secretary Panetta described counterterrorism strategy.  Among other things:

Continued focus on counterterrorism attacks and targeted killings directed against Al Qaeda and its affiliates’ leadership, whether in Pakistan’s tribal territories, Yemen or Somalia, or potentially other places where it seeks to establish new havens:

We have made progress.  We have made progress against Al Qaeda’s core leaders and its affiliates in the FATA.  We continue to do it in Yemen and in Somalia.  But Al Qaeda is seeking new footholds throughout the Middle East and in countries like Mali, in North Africa.  It remains determined to attack the United States and remains one of the serious threats that we must deal with.

Expansion of special operations forces for counterterrorism operations (and, in the future, perhaps increasingly operations directed against states, particularly their WMD capabilities):

In order to boost priority counterterrorism and build partner capacity efforts, we’re continuing a planned growth in special operations forces which will reach 72,000 by 2017, more than double the number we had on 9/11.

Continued investment in current and future unmanned and increasingly automated technologies:

[D]espite budget reductions, we are expanding our fleet of unmanned systems — this is the future — including new carrier launched surveillance and strike aircraft.

Continued integration of defense and intelligence counterterrorism operations:

Our military and intelligence operations — and that’s one of the things I’m very proud of over these last four years, is the integration between intelligence and military operations when it comes to going after terrorists. Over the last year, as a result of those operations, we continue to significantly weaken Al Qaeda’s core leadership and put real pressure on their affiliates …

Ensuring that Afghanistan does not become a terrorist safe haven again, even after “large-scale” US drawdown of forces:

[O]ur commitment to Afghanistan, as we draw down by the end of 2014, our commitment will continue. We are transitioning; we are not leaving. We will maintain an enduring presence aimed at supporting Afghan forces and ensuring the mission that we were embarked on in Afghanistan, the mission that Al Qaeda never again regains Afghanistan as a safe haven from which to attack the United States or our allies.

Denying terrorists groups political control of territory and safe havens beyond Afghanistan, in north Africa and the Horn, and possibly beyond, through security partnerships and military and intelligence advisers and assistance to regimes fighting insurgents with both local civil war and transnational aims:

The past decade of war has reinforced the lesson that one of the most effective ways to address long-term security challenges is to help build the capabilities of our allies.  We have seen this approach with our counterinsurgency campaigns in Iraq and Afghanistan and our counterterrorism efforts in Yemen and Somalia.

We are expanding our security force assistance to a wider range of partners in order to address a broader range of security challenges … To implement this element of the strategy, the services are retaining the security cooperation capabilities we have honed over a decade of war and making investments in regional expertise.

Recognition that, in a world with many asymmetric threats, states as well as non-state actors will  reach to technologies such as cyber as a means to attack, requiring new ways to meet threats:

[T]he nature of military conflict is changing because of the new technologies, like cyber and the proliferation of missiles and WMD.  We are seeing potential adversaries — state and non-state actors alike — acquire more advanced hybrid and high-end capabilities designed to frustrate the conventional advantages of our armed forces.  This means that the military services must remain vigilant, they must remain strong, they must remain prepared to operate in a way that differs significantly from the past.

We will continue to face terrorism and deadly attacks by IEDs, but we must also be ready for more capable adversaries to attack our forces and our homeland in cyberspace, to attack and launch precision strikes against forward bases, to attempt to cripple our power grid, our financial systems, our government systems, to attempt to deny us freedom of action through asymmetric attacks.

Perhaps the counterterrorism strategy could be summarized this way (I extend it a bit beyond the text to clarify and give examples at a couple of points): Read more »

(Note from the Review Editor: We’re pleased to welcome this film review by Lawfare’s own Alan Rozenshtein; the Book Review also handles occasional reviews of media other than books. Other Lawfare contributors will likely weigh in on different matters raised by the film; we’re happy to start with this straight-out movie review.)

Yesterday I saw Zero Dark Thirty, which goes into wide release early next month. Like many reviewers, some in-the-know senators, and (in a remarkable statement) the acting head of the CIA, I was disturbed by the movie’s portrayal of waterboarding and other forms of torture the CIA used against terror suspects in the initial years after 9/11. (I use the word “torture” for its commonly understood meaning, not as a legal term of art. I don’t mean to wade into the debate over whether the CIA’s “enhanced interrogation tactics” rose to the level of torture as defined in treaties and domestic law.) But I disagree with the growing consensus that Zero Dark Thirty‘s depiction of torture “mars an ambitious project” that is otherwise a “stylistic masterpiece.” Zero Dark Thirty is just not that good of a movie; its treatment of torture is only one of its problems.

First, unless you’ve already mastered the bread-crumb trail of intelligence that led to bin Laden, the first half of the movie is impossible to follow. One disjointed interrogation follows another, and an already overlong movie is padded with unhelpful scenes of CIA agents communicating in a dense, difficult-to-follow code of counterterrorism-speak. The dialogue is an exercise in inside baseball, which works well in drawn-out procedurals like The Wire, where the audience has a few seasons to learn the vocabulary, but fails here. Viewer manage to orient themselves just in time for the field agents and Langley bureaucrats to be replaced by Seal Team Six, who turn the last quarter of the movie into a fairly standard (albeit highly entertaining) shoot-em-up. Of course, the audience’s confusion reflects that of the CIA, through years of cold leads and misinformation. In that way, Zero Dark Thirty usefully depicts the reality of intelligence work. But it’s a movie, after all, and it purports to tell a story; it’d be nice to walk away from it with a coherent narrative of how the U.S. found bin Laden.

Second, for a nearly three-hour movie that focuses on a small cast of CIA agents, there’s surprisingly little character development. Zero Dark Thirty gives little insight into the inner lives of the women and men who spend over a decade hunting one man. You get the standard tropes: an attractive young CIA agent with an obsessive pursuit of justice, a hardened interrogator who displays his soft side — he likes to feed ice cream to monkeys — when he’s not matter-of-factly telling prisoners, “When you lie to me, I hurt you.” The effect of a hunt on the hunters is at least as interesting as is its effect on the hunted; it’s a shame that Zero Dark Thirty glosses over it. The one interesting character comes at the beginning: al-Qaeda operative Anmar, whose torture and interrogation brutally show the limits of psychological resilience. (Anmar is spectacularly portrayed by French Algerian actor Reda Kateb in the movie’s standout performance.)

Perhaps asking for brisk pacing and intelligent character development is too much in a movie that’s clearly trying to be authoritative. Therein lies one of the contradictions of Zero Dark Thirty: it can’t decide whether it wants to be a work of journalism or entertainment. It plays too fast and loose with the facts to be the former. As acting CIA Director Michael Morell notes, it took “a decade-long effort [by] hundreds of officers,” not a handful, to track down bin Laden. The real story is as much about the Agency as it is about agents. But the movie hews too close to the actual facts to work as a three-hour feature film.

It’s tempting to stop there, given the over-saturated press coverage of Zero Dark Thirty‘s torture scenes. But it’s impossible to watch the movie and not come away with the sense that something is very wrong with how it deals with this important topic. Kathryn Bigelow, Zero Dark Thirty‘s director, clearly intended that torture figure centrally: the movie opens with a particularly brutal interrogation, and there are numerous other scenes throughout the first half, as the CIA lurches from one dead-end lead to another. Critics of Zero Dark Thirty (and especially of Bigelow) have been scathing on this point. Some of these attacks overreach, especially those that portray Bigelow as a torture apologist. The film unflinchingly forces the audience to witness the effects of torture: grown men soiling themselves and weeping from fear as they are stuffed in boxes and endure simulated drownings. And it certainly doesn’t explicitly endorse torture. But even a charitable interpretation leads to the conclusion that torture, even if it didn’t directly lead the U.S. to bin Laden, provided important intelligence and was in any case a reasonable way to start the hunt.

Perhaps Bigelow herself believes this interpretation, in which case the criticism is properly aimed at her as a historian. By many accounts, information gained from torture played at most a small role in the intelligence leading up to bin Ladin’s death. (To be fair, such information helped point the U.S. to bin Laden’s courier and thus ultimately to his hiding place in Abbottabad, as Mark Bowden argues in The Finish, his influential account of the hunt for bin Laden. But he concedes that it’s impossible to know whether the U.S. could have obtained the information under standard interrogation techniques, noting that “torture may not have been decisive, or even necessary,” even if “it was clearly part of the story.” The CIA’s Morrel similarly notes, after denying that intelligence from torture was “the key to finding Bin Laden,” that “whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”) If, on the other hand, Bigelow doesn’t think that torture was effective, necessary, or justified, then it was irresponsible to not make that clear, especially in a movie that piles one confusing interrogation on top of another. (Spencer Ackerman views Zero Dark Thirty‘s torture scenes as a subtle argument against torture. Even if this was Bigelow’s intention, which I’m not convinced it was, the movie is simply too hard to follow for that message to come through at all, let alone clearly.) Not all art is political, and Hollywood’s responsibility is primarily to entertain, not educate. But the hunt for Osama bin Laden is a unique story that demands extra caution in the retelling, especially when done in the form of a widely watched blockbuster. If drama butted up against truth, Bigelow should have compromised the drama, not the truth.

Bigelow is an immensely talented filmmaker. The Hurt Locker, her previous movie about a bomb squad in Iraq, is a masterpiece for which she deservedly won an Oscar. But The Hurt Locker wasn’t constrained by a complex, pre-existing story. It could tell its own. Nor did it have to grapple with anything remotely as controversial and polarizing as torture inflicted by Americans. Zero Dark Thirty isn’t a bad film; it’s just not a good enough one, especially given the importance and challenge of its subject. I’m willing to accept that no one would have done a better job than Bigelow in making a movie about the decade-long hunt for Osama bin Laden. That just means that Zero Dark Thirty shouldn’t have been made. Sometimes it’s better not to tell a story at all than to tell it badly.

On Friday, a British court rejected a closely watched civil suit by the son of man killed in a 2011 drone strike in Pakistan that requests a judicial declaration that British intelligence officials may be liable for assisting acts of murder, war crimes, and crimes against humanity if they share targetting intelligence with the US government.  The plaintiff, Noor Khan, who was represented by the British human rights group Reprieve, had also asked the court to direct the British Foreign Secretary to issue a policy “identifying the circumstances in which intelligence may lawfully be passed on if it relates to the location of individuals who may be targeted in a drone strike.”

 The British judges hearing the case recognized that they were essentially being asked to pass judgment on the legality of the US drone program (and of Obama Administration drone policies), and they declined the invitation to do so.  The decision concludes:

 “The real aim is to persuade this court to make a public pronouncement designed to condemn the activities of the United States in North Waziristan, as a step in persuading them to halt such activity.

[The plaintiff’s counsel] knows he could never obtain permission overtly for such a purpose. His stimulating arguments have been an attempt to shroud that purpose in a more acceptable veil. That he has, in my view, failed, is no reflection on his admirably clear and attractive efforts.”

Of note, the court based its judgment in part on the principle in both US and British law that the courts of one country will not pass judgment on the sovereign acts of another, which is known in US law as the Act of State doctrine.  Remarkably, the court cites and quotes from the seminal US Act of State case, Underhill v Hernandez, in which the Supreme Court stated in 1897: “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”

 The U.S. Supreme Court may take note of the Noor Khan decision as it considers in the Kiobel case whether the Alien Tort Statute applies extraterritorially to allow US courts to determine whether foreign governments have violated the law of nations.  For example, would a US court allow a foreign plaintiff to sue a US company that supplied drones to a foreign government that used them inside its own territory or on the territory of another country?  As I stated in my supplemental amicus brief in Kiobel, extraterritorial application of the ATS violates the Act of State doctrine in many cases by allowing US courts to judge the actions of foreign governments.  It would be an unusual result if the US Supreme Court were to conclude that the ATS applies extraterritorially, within months of a British court, citing the Supreme Court’s own decisions, concluding that it would not sit in judgment of the acts of the US government.

Noor Khan has said that he will appeal the British court decision.

At this season every year, I think of the story of the Christmas truce of 1914 in the trenches of the Western Front.  With warm wishes to all of of Lawfare’s readers and especial thanks to those of our readers who are serving overseas and are in harm’s way, here’s “Christmas in the Trenches,” by John McCutcheon:

So what exactly is in the NDAA conference report that is prompting the agitation for a presidential veto? Here is a quick and dirty summary of “Subtitle D—Counterterrorism”—along with an explanation of why President Obama ought to veto the bill but probably won’t. I’ve flagged in red the provisions that are actually a problem.

Section 1021 extends the authority to make rewards associated with combatting terrorism and requieres the secretary of defense to send a report to Congress on the subject.

Section 1022 declares that “No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2013 may be used to construct or modify any facility in the United States . . . to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress.” This section, which exists already in current law, prevents the closure of Guantanamo by preventing the Defense Department from replacing it with any state-side facility.

Section 1023 requires that the Defense Intelligence Agency produce an anual report on recidivism by former Guantanamo detainees.

Section 1024—call it the Warsame provision—requires notification to Congress each time a suspect is detained on a U.S. naval vessel. It also requires, more generally, “a report on the use of naval vessels for the detention outside the United States of any individual who is detained pursuant to the Authorization for Use of Military Force.”

Section 1025, which Bobby discussed here, requires prior notice to Congress of transfers of non-Afghan detainees from the Parwan detention facility at Bagram.

Section 1026, which Bobby also discussed, requires a report on recidivism among detainees released from Parwan.

Section 1027 bans the transfer of Guantanamo detainees to the United States. This provision, which also extends a requirement of current law, effectively prohibits federal court criminal trials of detainees (by preventing their being brought to the United States), and—like Section 1022—makes the Guantanamo closure impossible.

Section 1028 essentially extends the restrictions on overseas transfers of Guantanamo detainees, requiring a rigorous certification by the Secretary of Defense before a detainee can be removed from Guantanamo. I haven’t read carefully this version side by side with current law, but it has at least one important difference: Last year’s NDAA (see Section 1028) had two exceptions: The certification was not required where either a court order required a release, or where a preexisting pre-trial agreement in a military commission did so. This year’s version leaves out the exception for military commission pre-trial agreements—though it does allow cooperation in the context of pre-trial agreements to inform assessments of detainee risk. This change is very bad news for at least one Sudanese detainee who is currently serving a military commission sentence following a pre-trial agreement (Sudan is listed as a state sponsor of terrorism, and the certification requirements demand that the SecDef certify that the country of transfer is not a state sponsor of terrorism—which he cannot do). It’s also bad news, I would think, for all the men and women trying to establish military commissions as a viable tribunal: Congress is effectively telling detainee lawyers that you can’t make plea deals with prosecutors—at least not deals that might promise your client’s eventual release.

Finally, in the grand tradition of big-sounding statements that do absolutely nothing, Section 1029 responds to Hedges-like fears of domestic detention in last year’s NDAA by stating that “Nothing in the Authorization for Use of Military Force . . . or the National Defense Authorization Act for Fiscal Year 2012 . . . shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.” That’ll quell the controversy, I’m sure.

Most of this stuff is just noise, required reports and notifications, but a few of the provisions are highly significant and genuinely warrant a president veto. Ironically, the human rights groups that are clamoring for a veto are doing so largely on the basis that the bill, as Human Rights First puts it, would “carry forward burdensome and unnecessary Guantanamo transfer restrictions that hamper President Obama’s ability to close the detention facility,” which “has long been a national liability and stain on American values.” The Obama administration uses much the same rhetoric, but the rhetoric in my view misses the point. The problem with the transfer restrictions is less that they would prevent the Guantanamo closure than that they prevent reasonable dispositions of detainee cases and restrict executive flexibility in handling detainees for whom one wants all options on the table. 

Particularly now that material support charges are not available in military commissions, it is simply self-defeating to preclude federal court charges for some detainees. Some detainees should be transferred. Military commission prosecutors should be able to make plea deals without the fear that the legislature that so belligerently insists on the primacy of their tribunal will make liars out of them and prevent the government from honoring their commitments. I don’t care if one does detention policy at Guantanamo, in Illinois,  or in Kelly Ayotte’s living room, and I have long argued that President Obama should accede to Congress’s preference for Guantanamo as the long-term site for counterterrorism detentions. That said, the provisions of this NDAA, and last year’s, and the previous year’s make good policy at Guantanamo impossible, even as they insist that detention can take place nowhere else. And they thus make it impossible for the administration to bring new detainees there—even as it has nowhere else to put them. So yes, Obama should veto the NDAA and demand a version of it that lets him be commander in chief and lets Guantanamo be something other than a Roach Motel (Detainees check in, but they don’t check out!).

All that said, I doubt very much that Obama will actually veto the NDAA. Yes, his administration has threatened a veto—as it did last year. And yes, there’s a lot of agitation in his political base for a veto—as there was last year. But the problem is—once again—competing priorities. First, Obama couldn’t put his foot down about Guantanamo transfer restrictions because of health care politics. Then he couldn’t do it because he needed other stuff in the NDAA. I just don’t believe that he really wants to drop a huge unrelated bomb in the midst of the fiscal cliff negotiations—which already have a lot of moving parts—by vetoing a bill that, largely, just extends a failure for which he has already paid the price politically. Put differently, I don’t think he cares enough either about detention policy or about Guantanamo to risk compromising his position over them in the core battles he is fighting with the legislature. I’m not even sure he should do so; that is, if I were whispering in his ear and not advising him specifically about detention policy, I might very well tell him this is not a fight he can afford to pick right now.

I’d love to be proven wrong about this. But I suspect that Obama will back down.

The Secretary of Defense has released the attached memo on the implications of the fiscal cliff and sequestration on the Department of Defense. Read it here.

Headlines and Commentary is going on vacation for a week. There’s simply too much homemade lasagne to eat and too many presents to wrap. We’ll be back after New Year’s—and will be using the snazzy Lawfare news ticker to keep you up to date in the meantime.

Lots of coverage on the NDAA: it passed the House yesterday, but the White House hasn’t yet said anything about whether Obama will veto the bill (although Wells Dixon argues in this op-ed in The Hill that he must in order to close Guantanamo). Meanwhile, in the Senate,  Rand Paul believes that the bill is now unconstitutional because the provision prohibiting detention of U.S. citizens was removed, and a provision of the NDAA includes reporting procedures for industry.

The Obama administration’s executive order on cybersecurity, meanwhile, could be issued in January, writes Jennifer Martinez of The Hill.

Here’s the roundup of coverage from yesterday’s Senate Foreign Relations hearing on the Benghazi attack: NPR and the New York Times on Senator Kerry’s request for more diplomatic security funding and the State Department’s new plan to increase security at dangerous posts.

Speaking of Benghazi, there was an attack on a police complex there on Thursday evening by Islamist extremists, and four people are dead. Here’s the Times with that story.

In light of the pro and anti-Hagel-as-SecDef campaigns, Darren Samuelsohn and Kate Brannen of Politico reflect on the new approach to public debate over potential Cabinet nominees.

And Craig Whitlock of the Post discusses how serving in Vietnam shaped Chuck Hagel’s views on the military and foreign policy.

Although he doesn’t appear to have done so just yet, The Hill says that Majority Leader Reid wants to file cloture on the FISA Amendments Act very soon. We’ll see.

Informal talks between the Taliban and former members of the Northern Alliance in Paris started yesterday and are not expected to make much progress. Scott Sayare and Matthew Rosenberg write over at the Times.

Brian Naylor of NPR updates us on some changes to TSA screening standards as we all prepare to head to the airport

For those concerned that Omar Khadr would be freed upon being transferred to a Canadian prison, you can put off your concerns for at least two more years—he will be reviewed for parole in December of 2014, says the Toronto Star and the Miami Herald.

Declan Walsh and Donald G. McNeil, Jr. write about the targeting by the Taliban of female aid workers involved with the polio vaccination effort in Pakistan.

The U.N. Security Council voted unanimously to establish an African force backed by the U.S. and Europe in Mali. The forces would help rebuild Mali’s military and help prepare it to counter the Islamist extremists that are rapidly taking control of the country. Here’s the Washington Post’s Colum Lynch and Rick Gladstone of the Times.

NPR’s Ted Robbins wonders whether our southwest border is actually secure.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

The government has filed its reply brief in Hedges. The new brief rounds out the briefing, joining the government’s opening brief and the appellees’ brief—along with a bunch of amicus briefs. It opens:

We explained in our opening brief that this suit, brought by a handful of journalists and activists, should have been dismissed for lack of standing because plaintiffs are in no danger whatsoever of being subject to capture and detention by the U.S. military. In addition, the district court erred in entertaining this suit for ex ante relief against the President, as Commander in Chief, to enjoin him from carrying out authority conferred on him by Congress in the conduct of an armed conflict. Their challenges to Section 1021(b)(2) of the 2012 National Defense Authorization Act (NDAA) also fail on the merits, and the injunctive order issued by the district court is overbroad in key respects.

Another noteworthy development in the conference version of the NDAA is section 1025.  Think of this as a new direction in the congressionalization of detention operations in Afghanistan.

What do I mean by congressionalization?  I admit I just made that term up.  So let me explain.  We’re all familiar with the idea of judicialization of detention–i.e., the gradual assertion of some degree of control (in the form of both substantive rules and procedural mechanisms) by the judiciary over detention.   We’ve seen this occur as to detention at GTMO, and we’ve seen a parallel initiative fizzle as to Afghanistan. Well, by Congressionalization I mean something similar: a gradual assertion of some degree of control over detention by Congress as to various locations.  There have of course been some detention-related statutes already.  Setting aside the AUMF itself, we also have the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and the NDAA FY ’12.  So what is novel about section 1025 of the pending NDAA FY’13?  Simply that it contains an Afghanistan specific constraint on executive discretion vis-a-vis detention.

Specifically, under Section 1025 SecDef must give written notice to certain congressional committees 10 days in advance of transferring any non-US, non-Afghan person held at the detention facility in Parwan (DFIP) to the control of Afghanistan or any other country.  In addition, SecDef must ensure that certain assessments have occurred first, including (i) assessment of the security threat the person poses and the security situation in the country to which the person will be transferred; (ii) if the person is to be transferred to some place other than Afghanistan with an eye toward prosecution, an assessment of that country’s track record for prosecutions in such cases as well as the strength of the case that can be made in this particular instance (including, specifically, the prospects for significant evidentiary admissibility issues); (iii) if the person is to be transferred to some place other than Afghanistan for rehab, an assessment of that country’s track record on that score; and (iv) if the person is to be transferred to Afghan authorities, an assessment of its prospects for prosecution or detention in similar cases.

I think of this as manifesting lessons learned from the Daqduq mess in Iraq, and I doubt that any of the assessments call for the executive branch to do anything it would not already be doing.  It’s really the 10 days’ notice provision that is striking.  Camel’s nose under the tent, foreshadowing more biting constraints later?  We shall see. Note that the next section, section 1026, requires a report within 120 days describiing recidivism by persons released in the past from the DFIP (interestingly it is DFIP specific), as well as thoughts on the factors involved for those who did return to the fight.  Depending on how those numbers turn out, we might see Congress quickly become more interested in this area.  With the drawdown continuing, might we at some point see a sharp clash between executive discretion to shut down its detention operations (as part of a diplomatic agreement with Afghanistan) and Congressional efforts to perpetuate detention operations?  We shall see.

Today was the big Senate Foreign Relations Committee hearing on the Benghazi attack. You can watch it  on C-SPAN here. Here are a number of stories about the 4 State Department employees who have lost their positions: NPR, the Washington Post and the New York Times.

And don’t forget the New York Times editorial today on the report.

Senator Kerry says that Secretary Clinton will testify on the issue before the committee in January.

Former Senator Chuck Hagel is getting support from Obama administration officials in response to the attacks on rumors of his nomination. Mike Allen of Politico reports that a White House official says that Obama “honestly has not decided who he’s going to pick” but that Chuck Hagel “would walk into the Pentagon and command immediate respect based just on his resume…the attacks on him as somehow anti-Israel are patently unfair and can be explained…”

Paul Rosenzweig isn’t the only one disappointed in the results of the WCIT negotiations in Dubai. U.S. ambassador Terry Kramer voiced his reaction over at American University this week. Here’s Jennifer Martinez of The Hill on his remarks.

Iraqi President Jalal Talabani, who suffered from a stroke this week, is going to Germany for medical treatment, and is in stable condition, write Chris Cottrell and Duraid Adnan of the Times.

The Army has decided that it will seek the death penalty for Staff Sgt. Robert Bales, who is accused of killing 16 Afghan civilians back in March. Here’s the AP story and The Hill on the announcement.

Senators Feinstein, Levin and McCain are calling on the producers of Zero Dark Thirty to warn viewers that the torture scenes are “not based on facts, but rather part of the film’s fictional narrative.” Here’s the Washington Post story on that.

U.S. District Court Judge Rudolph Contreras has ordered that a Navy linguist charged with two counts of felony for taking classified documents to his personal quarters in Bahrain be released from jail and placed in home detention and forced to wear a GPS monitoring device. Here’s Josh Gerstein on that decision.

The U.N. Security Council is expected to vote on authorizing an African military force to Mali. Rick Gladstone reports on the draft resolution offered by France. Meanwhile, over in Mali, the Islamist group Ansar Dine, whom this U.N.-sanctioned force would be attacking, is planning an expansion of its forces farther into the country. Here’s the AP on that announcement.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

Here’s the story from Spencer Ackerman of Wired Danger Room.

As Bobby has already noted the conference report on the NDAA was filed last night.  Some readers may recall that I was concerned about section 936 of the Senate version of the bill – a provision that requires Defense contractors to report cyber breaches without affording them liability protection and without allowing DoD to share the threat or vulnerability information with other parts of the Government.  As I said at the time, it was the worst of both worlds — mandatory reporting without information sharing.

Earlier today, I wrote that “it appears that Section 936 was removed from the bill in conference.”  Sadly, it wasn’t — it was just renumbered as new section 941, where it resides in all its glory, soon to become law.

As Bobby noted last night, the NDAA conference report has been filed, and yes, the Feinstein amendment was dropped. Here’s Politico’s Josh Gerstein and Jeremy Herb and Carlo Munoz of The Hill. If you’d like to read the 1600 page conference report for yourself (as I am sure every member of Congress did last night), knock your socks off. Looks like those interested in detention provisions should start at section 1021 (page 699 of the pdf). The Washington Times tells us that the House will vote on the bill on Thursday, and interprets the bill as a ‘dare’ to President Obama to veto it because of those provisions.

While bipartisan cooperation might seem like it should be the top story of the day, it’s not. Last night, the State Department’s Accountability Review Board for Benghazi released its report, along with a letter to Congress from Secretary of State Clinton. Lots of coverage of the report, including from the Washington Post,  Politico, and NPR.

Prominent members of the GOP are skeptical of the idea of former Republican Senator Chuck Hagel’s being the next SecDef. Manu Raju of Politico writes on the criticisms and Jennifer Rubin of the Post wonders why Michele Flournoy isn’t the frontrunner while Dana Milbank rounds up conservative media criticisms of a Hagel nomination.

The Pentagon’s Inspector General  is look into allegations that Michael Vickers, the undersecretary defense for intelligence, provided classified information to the makers of Zero Dark Thirty. Here’s the AP on that story, and Carlo Munoz of The Hill covers the comments by Congressman Pete King after the DOD announced the investigation by the IG.

Daniel Klaidman writes a lengthy piece in Newsweek that is part reaction to Zero Dark Thirty and part response to the question of whether President Obama will end the war on terror.

It is being reported that Iraq’s Kurdish President Jalal Talabani is in a coma after suffering a stroke yesterday. This New York Times article reminds readers of Talabani’s influence on negotiations between the three main ethnic groups in Iraq despite the largely ceremonial nature of his official duties as president.

More sad news about the polio vaccine work that had just barely begun in Pakistan: the U.N. has suspended all of its field activities on the project after two more public health workers were killed near Peshawar. Declan Walsh of the Times writes.  Shyema Sajjad expresses her frustration with the U.N.’s decision at DAWN.com.

Check out John Bellinger III’s op-ed in the New York Times on treaty ratification (failure) in recent years, which he linked to earlier.

U.S. officials are reporting that Syria has prepared several dozen chemical bombs. Here’s NPR and David Ignatius in the Post.

Another day, another Senate floor debate quashed by the minority. Majority Leader Harry Reid tried to bring up the FISA Amendments Act with a limited number of amendments, but Senator Saxby Chambliss objected. Here’s The Hill’s take on that encounter yesterday.

According to NATO, there have been zero ship seizures by Somali pirates in six months (not that NATO’s bragging or anything).

Ernesto Londono of the Washington Post writes on the report that came out last week on "insider attacks".

Jessica Myers of Politico goes into the weeds on the Coast Guard authorization bill, which would, in her words:

…ensure that organizations that inspect ships for the United States don’t also do so for terrorist-backed countries. Intended to pressure Iran, these few lines underscore the more complex issues of ship security, the Coast Guard’s responsibilities and the somewhat shadowy world of third-party agencies known as classification societies.

These organizations evaluate vessels and approve their safety plans, a requirement under international maritime treaties. Their certifications serve as the green light into major ports and are necessary for conducting international trade.

Congressman Ed Markey has introduced a drone privacy bill that would alter requirements for licensing by the FAA, require law enforcement to detail how agencies would limit data collection to that relevant to criminal investigations, and create a public website listing the approved licenses and other information related to drone use. Here’s Jennifer Martinez in The Hill on the new bill.

Here’s an interesting story in the Post about the influence of Frederick and Kimberly Kagan on David Petraeus when he led U.S. forces in Afghanistan.

NCIS continues to investigate the death of Adnan Latif at Guantanamo, which has been ruled a suicide. Investigators have also found that "acute pneumonia was a contributing factor in his death." Here’s Carol Rosenberg of the Miami Herald.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Syracuse’s Institute for National Security & Counterterrorism’s newsroll, and Fordham Law’s Center on National Security’s Morning Brief and Cyber Brief. Email Raffaela Wakeman and Ritika Singh noteworthy articles to include, visit the Lawfare Events Calendar for upcoming national security events, and check out relevant job openings at the Lawfare Job Board.

Glenn Greenwald has this lengthy and passionate piece on why Americans respond so differently to the killings in Newtown from the way they respond to the deaths of children killed in drone strikes. “There’s just no denying that many of the same people understandably expressing such grief and horror over the children who were killed in Newtown steadfastly overlook, if not outright support, the equally violent killing of Yemeni and Pakistani children,” he writes.”

It is well worth asking what accounts for this radically different reaction to the killing of children and other innocents. Relatedly, why is the US media so devoted to covering in depth every last detail of the children killed in the Newtown attack, but so indifferent to the children killed by its own government?

To ask this question is not – repeat: is not – to equate the Newtown attack with US government attacks. There are, one should grant, obvious and important differences.

Greenwald posits two possible reasons:

To begin with, it is a natural and probably universal human inclination to care more about violence that seems to threaten us personally than violence that does not. Every American parent sends their children to schools of the type attacked in Newtown and empathy with the victims is thus automatic. Few American parents fear having their children attacked by US drones, cruise missiles and cluster bombs in remote regions in Pakistan and Yemen, and empathy with those victims is thus easier to avoid, more difficult to establish.

One should strive to see the world and prioritize injustices free of pure self-interest – caring about grave abuses that are unlikely to affect us personally is a hallmark of a civilized person – but we are all constructed to regard imminent dangers to ourselves and our loved ones with greater urgency than those that appear more remote. Ignoble though it is, that’s just part of being human – though our capacity to liberate ourselves from pure self-interest means that it does not excuse this indifference.

Then there’s the issue of perceived justification. Nobody can offer, let alone embrace, any rationale for the Newtown assault: it was random, indiscriminate, senseless and deliberate slaughter of innocents. Those who support Obama’s continuous attacks, or flamboyantly display their tortured "ambivalence" as a means of avoiding criticizing him, can at least invoke a Cheneyite slogan along with a McVeigh-taught-military-term to pretend that there’s some purpose to these killings: We Have To Kill The Terrorists, and these dead kids are just Collateral Damage. This rationale is deeply dishonest, ignorant, jingoistic, propagnadistic, and sociopathic, but its existence means one cannot equate it to the Newtown killing.

I agree with both of Greenwald’s explanations, though not with the disparaging tone he takes toward the second one. But I also want to mention a third explanation—one that strikes me as obvious but which Greenwald seems to overlook in his column, though it is perhaps implicit in his second point about collateral damage: Civilian deaths in drone strikes are not intentional.

I don’t think even Greenwald believes that American forces are targeting children, as Adam Lanza did in Newtown. The day that happens—that is, the day an American drone pilot shoots a Hellfire missile at a school because it is a school and because it contains children, I would very much hope my emotional reaction would be similar to my reaction to Newtown (though Greenwald’s first point might still generate some differential in the event’s emotional power). But this is not what even the fiercest critics of drone strikes believe to be taking place. Rather, when civilians—adults and children alike—have been killed in drone strikes, they have been killed by accident, either in the course of targeting others or in confusion about who they were. One can criticize American targeting practices as being to liberal, as many do, and one can urge greater care, but a big part of what is so horrifying about Newtown—the intentional targeting of children—is simply not present.

This is not a matter of what Greenwald calls “perceived justification.” It is, rather, a basic difference our moral reaction to the tragic accident versus the intentional crime. A terrible car crash, even when one side is negligent or drunk, might inspire great moral opprobrium, but it doesn’t inspire the same moral horror as, say, intentionally driving one’s car into a crowd in order to kill people. Even if, like Greenwald, one does not accept that the United States is fighting a legitimate war and that civilian deaths are a tragic but inevitable feature of warfare—that is, even if one rejects the United States’s “perceived justification” utterly—there remains a significant difference between accidentally killing innocents and deliberate targeting them. Without diminishing the two factors Greenwald mentions, I think this factor accounts for a part of the disparity as well. It certainly has high salience for me.