Today's Headlines and Commentary

Jordan Brunner
Wednesday, February 8, 2017, 2:07 PM

The New York Times writes that Yemen, angry over the civilian casualties caused by the raid that resulted in the death of a U.S. Navy SEAL, has withdrawn its permission for the United States to run Special Operations ground operations to target terrorists in the country.

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The New York Times writes that Yemen, angry over the civilian casualties caused by the raid that resulted in the death of a U.S. Navy SEAL, has withdrawn its permission for the United States to run Special Operations ground operations to target terrorists in the country. The raid, which failed to capture or kill its intended target, was an early test of the Pentagon’s request to conduct some future missions in Yemen without full White House review. It is unclear as to whether Trump’s ban on immigration from seven Muslim-majority countries, which includes Yemen, has any bearing on the decision.

Buzzfeed notes that Senator John McCain (R-AZ) has called the raid a “failure,” following a classified briefing on the raid yesterday morning. McCain’s characterization of the raid stands in stark contrast to that of the White House, which has continued to call the raid “highly successful.”

The Times writes that the latest draft of Trump’s executive order on Guantanamo would direct Defense Secretary James Mattis to detain suspected members of ISIS along with militants affiliated with al Qaeda and the Taliban. The language allowing the detention of ISIS militants in Guantanamo has been left in numerous drafts, despite warnings from national security officials that this would give federal judges a chance to reject the executive branch’s theory that the war against ISIS is legal, even without explicit congressional authorization. A previous draft of the executive order, which was preemptively released to the public to strong pushback, included a now-deleted provision that would have reopened CIA “black sites” abroad.

Politico tells us that numerous executive orders are stalled at the White House, leaving many guessing what the Trump administration will do next. Along with the order on detention, another order would instruct executive agencies to start consolidating in order to become more efficient and cut costs. Similarly, an executive order dealing with cybersecurity has been stuck at the White House for more than a week.

Reuters and the New York Times report that the White House is considering designating Iran’s Islamic Revolutionary Guard Corps (IRGC) and the Muslim Brotherhood as terrorist organizations. The provision addressing the IGRC, which has strong backing from within the White House, would come in the form of an executive order directing the State Department to consider designating the IRGC as a terrorist organization. However, the proposal to designate the Muslim Brotherhood as a terrorist group has seen its momentum slowed amid objections by career State Department officers and officials at the National Security Council, who argue that the order will alienate allies in the region and lacks a legal basis. The White House is delaying the release of the order, perhaps in response to the chaos associated with earlier rollouts that were not put through the traditional process.

The Los Angeles Times informs us that the Ninth Circuit Court of Appeals will has said that it will rule quickly on the challenge to President Trump’s executive order on immigration. During oral argument yesterday, the judges asked about limiting parts of the ban, rather than blocking it entirely, and the Solicitor General for the state of Washington, Noah Purcell, referenced “public statements from the president and his top advisors,” to demonstrate that the ban was the product of religious discrimination. CNN reports that Trump has done his own legal analysis of the order, and concluded that “even a bad high school student,” would rule in his favor that the ban is legal. In remarks to a group of major city police officers and sheriffs in Washington, Trump said that the order was “written beautifully,” and that “we’re in an area that, let’s just say, they’re interpreting things differently than probably 100% of the people in this room.”

Politico reports that Trump had a tense phone call with French President Francois Hollande, using the exchange to vent about the United States being taken advantage of by China and his frustrations with NATO. Trump seemed to be “obsessing over money,” one official said, as he continued to talk about the cost of NATO to the United States, and that the U.S. “wants our money back.” Trump has continually accused other countries in the NATO alliance of shirking their financial responsibilities.

The Wall Street Journal informs us that Trump had a much more cooperative phone call with Turkish President Recep Tayyip Erdogan, in which he reportedly praised NATO and discussed the “close, longstanding relationship between the United States and Turkey and their shared commitment to combating terrorism in all its forms.” Trump also had a productive phone call with Spanish Prime Minister Mariano Rajoy, reaffirming U.S. commitments and cooperation on security and economic issues. Trump reiterated during the call his commitment to NATO, while also emphasizing the need for all allies to share in the burden of defense spending.

The Washington Post reports that CIA Director Mike Pompeo will visit Turkey tomorrow in his first overseas visit to discuss security issues. Pompeo’s visit was decided during the phone call between Trump and Erdogan yesterday. Turkey has become increasingly frustrated due to its failure to extradite Pennsylvania-based cleric Fethullah Gulen, whom the Turkish government has blamed for the failed July coup, and over the United States’ backing of Kurdish forces in Syria as part of the anti-ISIS coalition.

Reuters tells us that ISIS is suspected of killing at least six Afghan Red Cross workers as they carried supplies to the north of the country hit by deadly snowstorms. Two other workers are unaccounted for, and a search party has been organized to search for them.

The Post writes that some of the foreign fighters that have joined ISIS are now refusing to fight. ISIS documents found by an Iraqi army unit after taking over an ISIS headquarters list 14 “problem” fighters who have become disillusioned, or often want to return to their home country to carry out terrorist attacks rather than stay to fight in Iraq and Syria, particularly those from France.

BBC notes that a married teenage couple from Australia has been charged with planning terror attacks in Australia. Sameh Bayda and Alo-Bridget Namoa, both 19, face a maximum of life in prison if convicted.

AP reports that the Pentagon has delivered to Congress a detailed plan to increase the defense budget by more than $30 billion to acquire new jet fighters, armored vehicles, and improved training. Top defense officials are scheduled to testify next week before the House Armed Services Committee on the state of the military, and address how sequestration has pushed the armed forces to the breaking point by locking them into budgets too small to handle heavy demands and new threats.

The Post informs us that the Pentagon is seeking to rent space in Trump Tower, to house support personnel and equipment for Trump when he resides in the building. Defense officials have made similar arrangements in the past, including at the Chicago home of former President Barack Obama. But the prospect of the Pentagon paying money to a company owned by the president raises questions about the mingling of Trump’s financial interests with his presidency, especially as Trump has continued to resist calls to divest his financial stake in his businesses.

CNN reports that a growing number of senators from both sides of the aisle are planning to stiffen sanctions on Russia and demand that Congress have the final say if Trump decides to weaken penalties on Russia unilaterally. The senators plan to introduce legislation, entitled the Russian Review Act, that would impose strict congressional oversight requiring the administration to explain why it is lifting sanctions, along with a 120-day review period during which final approval for easing sanctions would be reserved to Congress.

U.N Secretary-General Antonio Guterres has decried Israeli legislation “legalizing” the building of settlements on private Palestinian property as a violation of international law, according to Reuters. “The bill is in contravention of international law and will have far-reaching legal consequences for Israel,” said Guterres, who insisted on the need to avoid any actions that would derail a two-state solution.

ICYMI: Yesterday, on Lawfare

Peter Margulies dissected the government’s arguments in the refugee ban case before the Ninth Circuit.

Quinta Jurecic posted the recording of the Ninth Circuit oral argument from Washington v. Trump.

Andrew Kent examined when heads of executive departments can refuse White House orders.

Nora Ellingsen delved into the empirical data on who terrorists are and how they relate to assumptions in Trump’s refugee executive order.

Jane Chong offered some questions and answers to more productively frame the idea of a “Reichstag fire” happening here in the United States.

Jordan Brunner highlighted how President Trump’s controversial views on refugees and climate change are linked to the security issue of climate refugees.

Julian Ku explained that Secretary of State Rex Tillerson did not actually call for a blockade of China’s South China Sea Islands.

Elena Chachko provided a primer on legislation in Israel that purports to “legalize” settlements in the West Bank.

J. Dana Stuster updated the Middle East Ticker.

Quinta flagged the livestream of the Texas Law Review symposium on Tallinn 2.0.

Paul Rosenzweig offered some bits and bytes for consumption.

Lisa Daniels summarized In re Search Warrant No. 16-960-M-01 to Google.

Stewart Baker posted the Steptoe Cyberlaw Podcast: Thigh-High Boots and Defense Dominance.

Stephanie Leutert and Savitri Arvey examined what Mexico’s next moves might be in light of Trump’s recent actions.

Iain Henry described the slowly changing reality of the U.S.-Australian alliance.

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Jordan A. Brunner is a graduate of the Sandra Day O’Connor College of Law at Arizona State University, and was a national security intern at the Brookings Institution. Prior to law school, he was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science.

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