Brookings Senior Fellow, Legal Analyst, Author, Editor of the Lawfare Blog

Is Al Qaeda Winning: Grading the Administration’s Counterterrorism Policies

In Uncategorized on April 8, 2014 at 7:52 am

Testimony before the House Foreign Affairs Subcommittee on Terrorism, Non-Proliferation, and Trade

The topics of the vitality and adequacy of the AUMF for the conflict the United States is currently fighting and the NSA surveillance programs that have, of late, dominated news headlines may seem largely unconnected. The AUMF and the FAA, after all, are profoundly different legal authorities, passed at different times, and with different fundamental purposes—one to authorize the conflict with Al Qaeda and the Taliban in response to the September 11 attacks, the other to gather foreign intelligence both inside and outside of the context of that armed conflict.

hank you, Chairman Poe, Ranking Member Sherman, and members of the subcommittee for inviting me to present my views on the future of the Authorization for the Use of Military Force (AUMF) and intelligence collection under Section 702 of the FISA Amendments Acts (FAA). I am a Senior Fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author or editor of several books on subjects related to law and national security: Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). I have written extensively both on the AUMF and on NSA collection under various provisions of the Foreign Intelligence Surveillance Act (FISA). The views I am expressing here are my own.

Yet in considering the question of the state of the U.S. confrontation with Al Qaeda, there is something to be said for considering these questions in conjunction with one another. These are, after all, two of the most important legal instruments in the struggle this committee is endeavoring to assess. One is the key legal authority for virtually every military action the United States undertakes in its military battle against Al Qaeda, its offshoots, and its affiliates. The other is the single most important legal authority the intelligence community has for collecting intelligence against the Al Qaeda target—not to mention other foreign targets of great national security significance. This intelligence is key to arrests and the thwarting of terrorist plots against the United States and its allies. It is also key to accurate and precise targeting judgments in lethal force operations.

Legislative Changes to the Foreign Intelligence Surveillance Act

In Congressional Testimony on September 26, 2013 at 9:56 pm

Testimony before the Senate Select Committee on Intelligence.

Thank you, Chairman Feinstein, Vice Chairman Chambliss, and members of the committee for inviting me to present my views on reform of the Foreign Intelligence Surveillance Act (FISA). I am a Senior Fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author or editor of several books on subjects related to law and national security:Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). The views I am expressing here are my own.

In his press conference of August 9, President Obama said with respect to collection under FISA that he believes “there are steps we can take to give the American people additional confidence that there are additional safeguards against abuse. For instance, we can take steps to put in place greater oversight, greater transparency and constraints on the use of this authority” (emphasis added). I would like today to describe what I see as the major opportunities that now exist for—as the President put it—greater transparency, enhanced oversight, and additional constraint on intelligence collection under the FISA in the wake of the unauthorized disclosures this summer by Edward Snowden and the material declassified by the Executive Branch in response.

Speaking the Law: The Obama Administration’s Speeches on National Security Law

In Books, Uncategorized on March 28, 2013 at 7:02 am

Coauthored with Kenneth Anderson

OVERVIEW

Over the course of President Obama’s first term in office, the president and senior officials of his administration have given a series of major speeches on the legal framework for confronting terrorists overseas. The speeches collectively represent the fullest statement the administration has given of the law of drones, targeted killing, and the larger approach to the war against Al Qaeda and its allies. The Obama administration has faced criticism both for the content of the speeches and for not saying more in them–and releasing the legal memos that lie beneath them. In Speaking the Law, Kenneth Anderson and Benjamin Wittes dissect the Obama administration’s major speeches on national security law–analyzing what the administration has actually said, fleshing out the virtues and vices of the legal framework it has mapped out, and suggesting areas for legislative refinement and further administration development.

This book is being released serially, as each chapter is completed, in electronic form.