Last week, in the deadliest terrorist attack in New York City since 9/11, Sayfullo Saipov turned a nearly mile-long stretch of bike path along Manhattan’s West Side Highway into a killing ground. The attack reflects a terrorism threat that is morphing from the complex, externally directed attack carried out by a network that we saw on 9/11 to violent individuals, inspired online by ISIS and other radical jihadist groups. We built an architecture to prevent another 9/11, but we have a long way to go when it comes to tackling this latest phase of terrorism.
The good news is that communities have proven resilient when attacked. The bad news is that this week—with calls for “extreme vetting” and denigration of our criminal justice system as a tool against terror—we saw dangerous backsliding instead of a renewed focus on the work needed for the next phase in the war on terror.
How should we respond to this latest terror act on our soil? Rather than demagoguing on immigration, launching divisive political attacks, or disparaging our criminal justice system, we should focus on what works. Effectiveness should be our lodestar. Russia is not the only one who wants to weaken the United States by sowing division in our country—the terrorists want to do so as well. We shouldn’t let them.
When tragedy and terror strike we must deliver swift and certain justice consistent with the rule of law. While it appears cooler heads have prevailed to reverse the President’s initial impulse to send the New York attacker to Guantanamo (an unprecedented and legally dubious move), the fact that we found ourselves having the debate yet again about “war” vs. “law enforcement” in the terror fight prompted disturbing déjà vu. Dedicated professionals across two administrations worked hard to ensure that this country can apply all tools—military, intelligence, law enforcement, diplomacy, financial sanctions—to disrupt threats and hold terrorists accountable. For terrorists caught on U.S. soil, we have relied on a criminal justice system that is the envy of the world not only because it is the hallmark of our rule of law society but also because it gets results.
The record is clear when it comes to generating intelligence, securing convictions and safely holding terrorists. The more than one million federal, state, and local law enforcement officers who work in that system put their lives on the line to keep us safe are anything but a “laughing stock.” To the contrary, they include more than 30,000 FBI agents, intelligence analysts and other professionals who I was proud to call colleagues when I served as Chief of Staff to then FBI-Director Robert S. Mueller. This nation is also served everyday by dedicated federal prosecutors who are no “joke.” That includes those in the Southern District of New York who, true to their tradition of independence, tuned out the political talk and moved swiftly to charge the New York attacker. It was precisely the need for intelligence-driven criminal prosecutions of terrorists and spies that led to the creation of the Justice Department’s National Security Division which I was privileged to lead during the Obama Administration. These elements of our post 9/11 architecture—solidified over both Republican and Democratic Administrations—have brought justice in hundreds of terrorist-related cases since 9/11.
Contrast that approach with the (hopefully short-lived) impulse to send Saipov to Guantanamo on the theory that we’re at war (we are) and he’s an enemy (he is) and enemies don’t get lawyers (not quite). The Supreme Court has determined that Guantanamo Bay, where a detainee has the right to challenge his detention, is not lawyer-free zone. And while a bipartisan effort reformed military commissions in 2009 to maintain a prosecution tool for terrorists caught on a hot battlefield, they have proven anything but swift and certain. In 15 years, the military commissions have delivered just eight convictions or guilty pleas and several of those have been overturned or invalidated. The 9/11 and U.S.S. Cole bombing victims and their families are still waiting for justice today.
Justice would not be served by sending Saipov to Guantanamo. Nor would it serve the goal of generating intelligence and understanding how Saipov came to plow down pedestrians on Halloween afternoon. Saipov reportedly has talked to FBI agents and told them that he consumed ISIS propaganda prior to his attack. Understanding more about how and when he became radicalized is critical to stopping future attacks. But the surest way to keep that from happening would be to interrupt the FBI interrogation and ship Saipov to Guantanamo.
It is dangerous pre-9/11 thinking to suggest that the FBI can’t act in this case—as it has in so many others since 9/11—to obtain intelligence from a terrorist in custody. In fact, the FBI can immediately question terrorists—without giving Miranda warnings—to identify other threats and plots. In 2011 when Congress was considering a mandatory military custody law for terrorist captures here or abroad, the FBI was right to argue that such a mandate would interrupt their intelligence gathering process by turning a terrorist over to the military where he could challenge his military detention with the benefit of a lawyer. Sure enough, in case after case where the FBI has moved quickly to gather intelligence and then bring a prosecution in our courts, terrorists have pled guilty or received lengthy sentences in the highest security Federal prisons. And importantly the FBI has been able to generate intelligence that led to the capture of other terrorists (Just ask Christmas Day bomber Umar Farouk Abdulmutallab). We need this intelligence now more than ever in order to understand how Saipov was radicalized and how someone might have intervened in time to stop him.
It appears that Saipov did not slip through the vetting system, but instead may fall into the more-common category that DHS described in March of this year when it concluded that most foreign born, US-based terrorists are radicalized after they arrive. At the moment, we have a rare opportunity, having taken Saipov into custody alive. As NYPD Deputy Commissioner John Miller said, Saipov followed the ISIS playbook “to a tee” by weaponizing a vehicle and leaving a note to brag about it. This breed of terrorist poses a significant challenge to law enforcement and we should strive to learn as much as we can about Saipov’s path to radicalization.
In response to this challenge, we should reject impulsive responses in favor of what works. Recycling campaign chants of “extreme vetting” and pulling the plug on the Diversity Visa Program which reportedly allowed Saipov entry in 2010 is a distraction; he reportedly was radicalized years after he entered the United States. To be clear, we should support strong and thorough vetting for anyone who wants to enjoy the rights and benefits of this country. Such vetting, regardless of specific program, should be refined based on threat intelligence. This is why following the Paris attacks in 2015, the DHS strengthened the visa waiver program to respond to the threat from foreign fighter returnees who may have traveled to join ISIS in Syria and Iraq but held European passports eligible for visa-free travel to the United States. The future of the Diversity Visa Program might be a reasonable topic for debate, but based on what we know now is in no way related to the tragedy on the Westside Highway.
Rather than creating distractions and issuing blanket travel bans, our vetting process should respond to the actual threats we face. We should be building trust in communities we need to identify future threats, not alienating and marginalizing them. Let’s focus on working with social media companies to stop abuse of their platforms. Let’s work to strengthen relationships with our international security partners.
Sixteen years after 9/11 we face a different type of threat. In response, we should emulate the best we’ve seen from this country. We should model resilience and support, and we should reject politics in favor of pragmatism. We must summon the best in our communities, in our government and politics, and rely on that which makes us different from every other country in the world: the rule of law and our justice system. Anything less allows terrorists to divide us.

Has the United States been at war with al-Qaeda for 21 years? During the most recent 9/11 military commission hearing at Guantanamo Bay, the prosecution finally articulated its view of when the U.S. and al-Qaeda entered into an armed conflict. According to the prosecution, that putative armed conflict began more than 21 years ago, on August 23, 1996, the day Osama bin Laden, the founder of the terrorist group, published a fatwa calling for attacks on Americans. The government characterized this fatwa as a declaration of war:
We do believe that the ’96 document written by [Osama] bin Laden, who was the head of al-Qaeda at the time he wrote it, is a declaration of war.
The prosecution apparently staked out this astonishing position, at odds with history, law, and the U.S. government’s interests outside of the 9/11 military commission, to satisfy its short-term litigation goal of preserving the military commission’s personal jurisdiction over the 9/11 defendants.
The Military Commission Act grants military commissions personal jurisdiction over “alien unprivileged belligerents.” The Act defines those as individuals who are not U.S. citizens, who are not privileged belligerents, and who either (1) engaged in hostilities against the United States or its coalition partners; (2) purposefully and materially supported hostilities against the United States or its coalition partners; or (3) were a part of al-Qaeda at the time of the alleged offense.  All three categories of individual over whom a military commission may have personal jurisdiction must have some connection to hostilities—which the MCA defines as “any conflict subject to the laws of war.”  (The timing element of the third category implicates hostilities through §950p(c), which limits offenses triable by military commission to those “committed in the context of or associated with hostilities.”)  Hostilities, in turn, are defined as any conflict subject to the laws of war.  Thus, the military commission has personal jurisdiction over the 9/11 defendants only if they were connected to an armed conflict between the U.S. and al-Qaeda prior to September 11, 2001.
Since May 2017, the 9/11 military commission is working its way towards a pre-trial, evidentiary hearing on personal jurisdiction.  It was in the context of a preliminary hearing addressing what if any witnesses should provide testimony as to personal jurisdiction that Judge Pohl pressed the prosecution for a specific date on which the armed conflict with al-Qaeda began.  The government’s response—August 23, 1996—was intended to ensure that the 9/11 military commission could proceed.  Unfortunately, that position carries with it significant ramifications implicating state sovereignty—the oldest rule in international law—and fundamental applications and consequences of the law of armed conflict.
It is axiomatic that only states may bring about the legal state of war or, in modern terms, armed conflict, through an act of speech. Historically, the law of war applied to situations of declared war between states.  When the 1949 Geneva Conventions established the modern framework for armed conflict that rests primarily on objective indicators of conflict rather than political declarations or determinations, the drafters retained the notion of declared war between states—but only for conflicts between states.  Thus, international armed conflicts—armed conflicts between two or more states—may arise upon a declaration of war alone or through the use of armed force between two states.  In contrast, non-international armed conflicts——armed conflicts between states and non-state actors (or among non-state actors)—only exist when non-state actors are sufficiently organized and violence between the parties is sufficiently intense. Whereas Common Article 2, which invokes the full panoply of the Geneva Conventions, applies only to interstate war and may be triggered merely by a declaration of war, Common Article 3 applies alone in the event of “an armed conflict not of an international character.” The drafters of the Geneva Conventions simply made no provision for a  non-international armed conflict to be triggered by means of a declaration of war.
In fact, the drafters of the Geneva Conventions intentionally excluded a declared-war trigger for non-international armed conflict. Common Article 3 reflects a careful balance: recognizing that conflicts between states and non-state actors may rise to a level of violence comparable to that of interstate armed conflict, while also accommodating states’ desire to minimize international legal regulation intruding on their internal affairs. This bargain reflects states’ aversion to conferring the sort of legitimacy or legal status on non-state actors that could challenge states’ sovereignty, including by implicitly recognizing their belligerent or insurgent status.
Thus, the final clause of Common Article 3 includes a disclaimer: “The application of the preceding provisions [Common Article 3] shall not affect the legal status of the Parties to the conflict.” Jean Pictet’s authoritative Commentary on the Geneva Conventions specifically attributes the provision’s origin to a desire to “prevent the [non-state] party from basing a claim for recognition as a regular Government on the respect it had shown for the Convention,” as required in the original Convention draft. His explanation of Common Article 3 attributes much of its evolution from its initial proposal to its final form to states’ concerns about legitimizing criminal entities.
“There was also a risk of common or ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Conventions, representing their crimes as ‘acts of war’ in order to escape punishment for them. A party of rebels, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release the captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war?”
Pictet concluded that without the disclaimer, Common Article 3 would not have been adopted. “It meets the fear—always the same one—that the application of the Convention, even to a very limited extent . . . may confer belligerent status, and consequently increased authority, upon the adverse party.”
The same concerns over extending legitimacy to non-state actors persists today.  Indeed, the United States has never ratified Additional Protocol I precisely because it had the potential to “give recognition and protection to terrorist groups” by extending the law pertaining to international armed conflicts to certain non-international armed conflicts. In transmitting his decision not to seek ratification of Additional Protocol I, President Ronald Reagan explained to the U.S. Senate that the application of the full panoply of international humanitarian law to armed non-state actors who do not otherwise comply with the law of armed conflict could legitimate the aims and the practices of terrorist organizations.
Nevertheless, solely in order to extend the military commissions’ jurisdiction over the 9/11 defendants, the government has chosen to legitimize bin Laden and al-Qaeda by placing them on the same legal plane as states, stating last week that:
. . . [O]ur position has always been under international law, when you have international armed conflicts, a declaration of war is sufficient alone [to trigger the law of armed conflict].
. . . .
If we were to declare war on another country today, the law of war would apply from the second we declared war. And that’s really what we are talking about. We are talking about when did the hostilities begin so we know when the law of war took over. And clearly our position has always been that we believe it began in 1996 with [Osama] bin Laden’s declaration . . . .
The military commission prosecution evidently believes that, as a matter of law, an individual or a non-state actor may, through its speech alone, unilaterally bring about a legal state of armed conflict. If the military commission were to credit the prosecution’s position, it would preserve the military commission’s jurisdiction and save the prosecution the trouble and difficulty of demonstrating the existence of a non-international armed conflict prior to 9/11. Unfortunately, the consequences of that inexplicable position are not limited to whether the 9/11 military commission may go forward.
According bin Laden’s 1996 fatwa the legal effect of a declaration of war implies that in 1996 al-Qaeda had the characteristics of a state actor. International law normally limits statehood only to those entities that are able to exert effective control over a definite territory and population, engage in international relations, and garner recognition. But none of this was true of al-Qaeda in 1996. Three months before issuing his fatwa, bin Laden and al-Qaeda were evicted from Sudan and dispossessed of their enterprises there. At the time, al-Qaeda boasted as few as several dozen members. And, seven months later, the Taliban—who by then exerted actual effective control over the territory where bin Laden resided—forced bin Laden to relocate to Kandahar from Nangarhar, where he originally established himself in Afghanistan after fleeing Sudan.
The prosecution’s position imbuing al-Qaeda with state-like powers undermine U.S. interests outside of this military commission in at least five ways.  First, it undermines the lawfulness and legitimacy of the U.S. war of self-defense against Afghanistan in the aftermath of 9/11.  If al-Qaeda were a state or something akin to a state in 1996, then by implication Afghanistan and the Taliban did not so much host al-Qaeda as surround it, as if it were an enclaved state. Under the prosecution’s view, therefore, the Taliban could not be responsible for surrendering bin Laden following the 9/11 attacks, and the United States’ ultimatum to hand him over would have been unreasonable: how could a de facto government with only partial control of its own territory be responsible for curtailing the actions of an enclaved sovereign? Consequently, if the prosecution were right that al-Qaeda was the equivalent of a state actor, the invasion of Afghanistan could be viewed as a misdirected and illegal aggressive war.
Second, the prosecution’s position necessarily suggests that the armed conflict between al-Qaeda and the United States is an international armed conflict—as opposed to a non-international armed conflict—invoking the full panoply of the laws of war.  This position also means that al-Qaeda members were the regular armed forces of a state, meaning that members of al-Qaeda could make a colorable claim to combatant immunity and prisoner-of-war (POW) status. At the very least, all of those currently detained and accused of prior membership in al-Qaeda should have been treated as POWs until they received an Article 5 hearing. (Ammar al Baluchi, for example, has requested, but never received, an Article 5 hearing.) The prosecution’s position in the 9/11 case legitimizes attacks by members of al-Qaeda on U.S. soldiers and military infrastructure, narrowing the scope of criminality associated with al-Qaeda attacks.  For example, according to the prosecution’s view, the attack on the U.S.S. Cole would remain perfidious but the sailors killed and the vessel targeted would be lawful military targets—and the charge of terrorism would be a mere restatement of the object of war: violence intended to coerce a political result.
Third, if the prosecution position prevailed, al-Qaeda would have enjoyed belligerent rights and the benefit of the laws of neutrality. Neutrality of non-belligerents is automatically triggered by the existence of a state of war between belligerents. Neutrals must remain neutral—that is they must not assist one belligerent party against the other. But belligerents must also refrain from conducting hostilities on the territory of neutral states, a fundamental protection for neutrals and against the spread of war. For example, the application of neutrality as a result of the prosecution’s position would mean that the U.S. violated Sudan’s neutrality along with its sovereignty by bombing the al-Shifa pharmaceutical facility in Khartoum in 1998.
Moreover, and outside of the immediate concerns relating to al-Qaeda, the government’s position suggests that declarations of war by non-state actors are a fast-track to sovereignty. The consequences of this implication may be far reaching. There are numerous entities that have substantially stronger claims to statehood than did al-Qaeda in 1996, but that remain outsiders in the international system. Would entities like Somaliland, the Turkish Republic of Northern Cyprus, Abkhazia, and others finally gain admittance to the international system by declaring war on a neighbor or a far-off foe unlikely to take notice?
Finally, the government’s position leaves unsettled how to differentiate non-state declarations of war that have legal effect from those that do not. The U.S. has been the target of numerous supposed declarations of war by violent non-state actors to which it accorded no legal effect. For example, the United States treated neither the Symbionese National Liberation Army nor the Weathermen as enemy belligerents. Similarly, why give bin Laden’s August 1996 fatwa the legal weight of a declaration of war but not al Qaeda’s earlier 1992 fatwa that likewise called for attacks on U.S. forces in Saudi Arabia?
The only conclusion that can be drawn from the prosecution’s astounding position that bin Laden’s fatwa actually caused a legal state of war with the U.S. is that the government is willing to contort the law of armed conflict to suit its short-term litigation goals. Unfortunately, its single-minded and short-sighted effort to patch up the broken 9/11 military commission is simply making wreckage of law and history—and proving the old adage that hard cases make bad law.
The opinions and views expressed are those of the author alone. They do not represent the views of the US Department of Defense or the US Government. 
Image: Getty Read on Just Security »

Last week, in the deadliest terrorist attack in New York City since 9/11, Sayfullo Saipov turned a nearly mile-long stretch of bike path along Manhattan’s West Side Highway into a killing ground. The attack reflects a terrorism threat that is morphing from the complex, externally directed attack carried out by a network that we saw on 9/11 to violent individuals, inspired online by ISIS and other radical jihadist groups. We built an architecture to prevent another 9/11, but we have a long way to go when it comes to tackling this latest phase of terrorism.
The good news is that communities have proven resilient when attacked. The bad news is that this week—with calls for “extreme vetting” and denigration of our criminal justice system as a tool against terror—we saw dangerous backsliding instead of a renewed focus on the work needed for the next phase in the war on terror.
How should we respond to this latest terror act on our soil? Rather than demagoguing on immigration, launching divisive political attacks, or disparaging our criminal justice system, we should focus on what works. Effectiveness should be our lodestar. Russia is not the only one who wants to weaken the United States by sowing division in our country—the terrorists want to do so as well. We shouldn’t let them.
When tragedy and terror strike we must deliver swift and certain justice consistent with the rule of law. While it appears cooler heads have prevailed to reverse the President’s initial impulse to send the New York attacker to Guantanamo (an unprecedented and legally dubious move), the fact that we found ourselves having the debate yet again about “war” vs. “law enforcement” in the terror fight prompted disturbing déjà vu. Dedicated professionals across two administrations worked hard to ensure that this country can apply all tools—military, intelligence, law enforcement, diplomacy, financial sanctions—to disrupt threats and hold terrorists accountable. For terrorists caught on U.S. soil, we have relied on a criminal justice system that is the envy of the world not only because it is the hallmark of our rule of law society but also because it gets results.
The record is clear when it comes to generating intelligence, securing convictions and safely holding terrorists. The more than one million federal, state, and local law enforcement officers who work in that system put their lives on the line to keep us safe are anything but a “laughing stock.” To the contrary, they include more than 30,000 FBI agents, intelligence analysts and other professionals who I was proud to call colleagues when I served as Chief of Staff to then FBI-Director Robert S. Mueller. This nation is also served everyday by dedicated federal prosecutors who are no “joke.” That includes those in the Southern District of New York who, true to their tradition of independence, tuned out the political talk and moved swiftly to charge the New York attacker. It was precisely the need for intelligence-driven criminal prosecutions of terrorists and spies that led to the creation of the Justice Department’s National Security Division which I was privileged to lead during the Obama Administration. These elements of our post 9/11 architecture—solidified over both Republican and Democratic Administrations—have brought justice in hundreds of terrorist-related cases since 9/11.
Contrast that approach with the (hopefully short-lived) impulse to send Saipov to Guantanamo on the theory that we’re at war (we are) and he’s an enemy (he is) and enemies don’t get lawyers (not quite). The Supreme Court has determined that Guantanamo Bay, where a detainee has the right to challenge his detention, is not lawyer-free zone. And while a bipartisan effort reformed military commissions in 2009 to maintain a prosecution tool for terrorists caught on a hot battlefield, they have proven anything but swift and certain. In 15 years, the military commissions have delivered just eight convictions or guilty pleas and several of those have been overturned or invalidated. The 9/11 and U.S.S. Cole bombing victims and their families are still waiting for justice today.
Justice would not be served by sending Saipov to Guantanamo. Nor would it serve the goal of generating intelligence and understanding how Saipov came to plow down pedestrians on Halloween afternoon. Saipov reportedly has talked to FBI agents and told them that he consumed ISIS propaganda prior to his attack. Understanding more about how and when he became radicalized is critical to stopping future attacks. But the surest way to keep that from happening would be to interrupt the FBI interrogation and ship Saipov to Guantanamo.
It is dangerous pre-9/11 thinking to suggest that the FBI can’t act in this case—as it has in so many others since 9/11—to obtain intelligence from a terrorist in custody. In fact, the FBI can immediately question terrorists—without giving Miranda warnings—to identify other threats and plots. In 2011 when Congress was considering a mandatory military custody law for terrorist captures here or abroad, the FBI was right to argue that such a mandate would interrupt their intelligence gathering process by turning a terrorist over to the military where he could challenge his military detention with the benefit of a lawyer. Sure enough, in case after case where the FBI has moved quickly to gather intelligence and then bring a prosecution in our courts, terrorists have pled guilty or received lengthy sentences in the highest security Federal prisons. And importantly the FBI has been able to generate intelligence that led to the capture of other terrorists (Just ask Christmas Day bomber Umar Farouk Abdulmutallab). We need this intelligence now more than ever in order to understand how Saipov was radicalized and how someone might have intervened in time to stop him.
It appears that Saipov did not slip through the vetting system, but instead may fall into the more-common category that DHS described in March of this year when it concluded that most foreign born, US-based terrorists are radicalized after they arrive. At the moment, we have a rare opportunity, having taken Saipov into custody alive. As NYPD Deputy Commissioner John Miller said, Saipov followed the ISIS playbook “to a tee” by weaponizing a vehicle and leaving a note to brag about it. This breed of terrorist poses a significant challenge to law enforcement and we should strive to learn as much as we can about Saipov’s path to radicalization.
In response to this challenge, we should reject impulsive responses in favor of what works. Recycling campaign chants of “extreme vetting” and pulling the plug on the Diversity Visa Program which reportedly allowed Saipov entry in 2010 is a distraction; he reportedly was radicalized years after he entered the United States. To be clear, we should support strong and thorough vetting for anyone who wants to enjoy the rights and benefits of this country. Such vetting, regardless of specific program, should be refined based on threat intelligence. This is why following the Paris attacks in 2015, the DHS strengthened the visa waiver program to respond to the threat from foreign fighter returnees who may have traveled to join ISIS in Syria and Iraq but held European passports eligible for visa-free travel to the United States. The future of the Diversity Visa Program might be a reasonable topic for debate, but based on what we know now is in no way related to the tragedy on the Westside Highway.
Rather than creating distractions and issuing blanket travel bans, our vetting process should respond to the actual threats we face. We should be building trust in communities we need to identify future threats, not alienating and marginalizing them. Let’s focus on working with social media companies to stop abuse of their platforms. Let’s work to strengthen relationships with our international security partners.
Sixteen years after 9/11 we face a different type of threat. In response, we should emulate the best we’ve seen from this country. We should model resilience and support, and we should reject politics in favor of pragmatism. We must summon the best in our communities, in our government and politics, and rely on that which makes us different from every other country in the world: the rule of law and our justice system. Anything less allows terrorists to divide us.

Has the United States been at war with al-Qaeda for 21 years? During the most recent 9/11 military commission hearing at Guantanamo Bay, the prosecution finally articulated its view of when the U.S. and al-Qaeda entered into an armed conflict. According to the prosecution, that putative armed conflict began more than 21 years ago, on August 23, 1996, the day Osama bin Laden, the founder of the terrorist group, published a fatwa calling for attacks on Americans. The government characterized this fatwa as a declaration of war:
We do believe that the ’96 document written by [Osama] bin Laden, who was the head of al-Qaeda at the time he wrote it, is a declaration of war.
The prosecution apparently staked out this astonishing position, at odds with history, law, and the U.S. government’s interests outside of the 9/11 military commission, to satisfy its short-term litigation goal of preserving the military commission’s personal jurisdiction over the 9/11 defendants.
The Military Commission Act grants military commissions personal jurisdiction over “alien unprivileged belligerents.” The Act defines those as individuals who are not U.S. citizens, who are not privileged belligerents, and who either (1) engaged in hostilities against the United States or its coalition partners; (2) purposefully and materially supported hostilities against the United States or its coalition partners; or (3) were a part of al-Qaeda at the time of the alleged offense.  All three categories of individual over whom a military commission may have personal jurisdiction must have some connection to hostilities—which the MCA defines as “any conflict subject to the laws of war.”  (The timing element of the third category implicates hostilities through §950p(c), which limits offenses triable by military commission to those “committed in the context of or associated with hostilities.”)  Hostilities, in turn, are defined as any conflict subject to the laws of war.  Thus, the military commission has personal jurisdiction over the 9/11 defendants only if they were connected to an armed conflict between the U.S. and al-Qaeda prior to September 11, 2001.
Since May 2017, the 9/11 military commission is working its way towards a pre-trial, evidentiary hearing on personal jurisdiction.  It was in the context of a preliminary hearing addressing what if any witnesses should provide testimony as to personal jurisdiction that Judge Pohl pressed the prosecution for a specific date on which the armed conflict with al-Qaeda began.  The government’s response—August 23, 1996—was intended to ensure that the 9/11 military commission could proceed.  Unfortunately, that position carries with it significant ramifications implicating state sovereignty—the oldest rule in international law—and fundamental applications and consequences of the law of armed conflict.
It is axiomatic that only states may bring about the legal state of war or, in modern terms, armed conflict, through an act of speech. Historically, the law of war applied to situations of declared war between states.  When the 1949 Geneva Conventions established the modern framework for armed conflict that rests primarily on objective indicators of conflict rather than political declarations or determinations, the drafters retained the notion of declared war between states—but only for conflicts between states.  Thus, international armed conflicts—armed conflicts between two or more states—may arise upon a declaration of war alone or through the use of armed force between two states.  In contrast, non-international armed conflicts——armed conflicts between states and non-state actors (or among non-state actors)—only exist when non-state actors are sufficiently organized and violence between the parties is sufficiently intense. Whereas Common Article 2, which invokes the full panoply of the Geneva Conventions, applies only to interstate war and may be triggered merely by a declaration of war, Common Article 3 applies alone in the event of “an armed conflict not of an international character.” The drafters of the Geneva Conventions simply made no provision for a  non-international armed conflict to be triggered by means of a declaration of war.
In fact, the drafters of the Geneva Conventions intentionally excluded a declared-war trigger for non-international armed conflict. Common Article 3 reflects a careful balance: recognizing that conflicts between states and non-state actors may rise to a level of violence comparable to that of interstate armed conflict, while also accommodating states’ desire to minimize international legal regulation intruding on their internal affairs. This bargain reflects states’ aversion to conferring the sort of legitimacy or legal status on non-state actors that could challenge states’ sovereignty, including by implicitly recognizing their belligerent or insurgent status.
Thus, the final clause of Common Article 3 includes a disclaimer: “The application of the preceding provisions [Common Article 3] shall not affect the legal status of the Parties to the conflict.” Jean Pictet’s authoritative Commentary on the Geneva Conventions specifically attributes the provision’s origin to a desire to “prevent the [non-state] party from basing a claim for recognition as a regular Government on the respect it had shown for the Convention,” as required in the original Convention draft. His explanation of Common Article 3 attributes much of its evolution from its initial proposal to its final form to states’ concerns about legitimizing criminal entities.
“There was also a risk of common or ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Conventions, representing their crimes as ‘acts of war’ in order to escape punishment for them. A party of rebels, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release the captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war?”
Pictet concluded that without the disclaimer, Common Article 3 would not have been adopted. “It meets the fear—always the same one—that the application of the Convention, even to a very limited extent . . . may confer belligerent status, and consequently increased authority, upon the adverse party.”
The same concerns over extending legitimacy to non-state actors persists today.  Indeed, the United States has never ratified Additional Protocol I precisely because it had the potential to “give recognition and protection to terrorist groups” by extending the law pertaining to international armed conflicts to certain non-international armed conflicts. In transmitting his decision not to seek ratification of Additional Protocol I, President Ronald Reagan explained to the U.S. Senate that the application of the full panoply of international humanitarian law to armed non-state actors who do not otherwise comply with the law of armed conflict could legitimate the aims and the practices of terrorist organizations.
Nevertheless, solely in order to extend the military commissions’ jurisdiction over the 9/11 defendants, the government has chosen to legitimize bin Laden and al-Qaeda by placing them on the same legal plane as states, stating last week that:
. . . [O]ur position has always been under international law, when you have international armed conflicts, a declaration of war is sufficient alone [to trigger the law of armed conflict].
. . . .
If we were to declare war on another country today, the law of war would apply from the second we declared war. And that’s really what we are talking about. We are talking about when did the hostilities begin so we know when the law of war took over. And clearly our position has always been that we believe it began in 1996 with [Osama] bin Laden’s declaration . . . .
The military commission prosecution evidently believes that, as a matter of law, an individual or a non-state actor may, through its speech alone, unilaterally bring about a legal state of armed conflict. If the military commission were to credit the prosecution’s position, it would preserve the military commission’s jurisdiction and save the prosecution the trouble and difficulty of demonstrating the existence of a non-international armed conflict prior to 9/11. Unfortunately, the consequences of that inexplicable position are not limited to whether the 9/11 military commission may go forward.
According bin Laden’s 1996 fatwa the legal effect of a declaration of war implies that in 1996 al-Qaeda had the characteristics of a state actor. International law normally limits statehood only to those entities that are able to exert effective control over a definite territory and population, engage in international relations, and garner recognition. But none of this was true of al-Qaeda in 1996. Three months before issuing his fatwa, bin Laden and al-Qaeda were evicted from Sudan and dispossessed of their enterprises there. At the time, al-Qaeda boasted as few as several dozen members. And, seven months later, the Taliban—who by then exerted actual effective control over the territory where bin Laden resided—forced bin Laden to relocate to Kandahar from Nangarhar, where he originally established himself in Afghanistan after fleeing Sudan.
The prosecution’s position imbuing al-Qaeda with state-like powers undermine U.S. interests outside of this military commission in at least five ways.  First, it undermines the lawfulness and legitimacy of the U.S. war of self-defense against Afghanistan in the aftermath of 9/11.  If al-Qaeda were a state or something akin to a state in 1996, then by implication Afghanistan and the Taliban did not so much host al-Qaeda as surround it, as if it were an enclaved state. Under the prosecution’s view, therefore, the Taliban could not be responsible for surrendering bin Laden following the 9/11 attacks, and the United States’ ultimatum to hand him over would have been unreasonable: how could a de facto government with only partial control of its own territory be responsible for curtailing the actions of an enclaved sovereign? Consequently, if the prosecution were right that al-Qaeda was the equivalent of a state actor, the invasion of Afghanistan could be viewed as a misdirected and illegal aggressive war.
Second, the prosecution’s position necessarily suggests that the armed conflict between al-Qaeda and the United States is an international armed conflict—as opposed to a non-international armed conflict—invoking the full panoply of the laws of war.  This position also means that al-Qaeda members were the regular armed forces of a state, meaning that members of al-Qaeda could make a colorable claim to combatant immunity and prisoner-of-war (POW) status. At the very least, all of those currently detained and accused of prior membership in al-Qaeda should have been treated as POWs until they received an Article 5 hearing. (Ammar al Baluchi, for example, has requested, but never received, an Article 5 hearing.) The prosecution’s position in the 9/11 case legitimizes attacks by members of al-Qaeda on U.S. soldiers and military infrastructure, narrowing the scope of criminality associated with al-Qaeda attacks.  For example, according to the prosecution’s view, the attack on the U.S.S. Cole would remain perfidious but the sailors killed and the vessel targeted would be lawful military targets—and the charge of terrorism would be a mere restatement of the object of war: violence intended to coerce a political result.
Third, if the prosecution position prevailed, al-Qaeda would have enjoyed belligerent rights and the benefit of the laws of neutrality. Neutrality of non-belligerents is automatically triggered by the existence of a state of war between belligerents. Neutrals must remain neutral—that is they must not assist one belligerent party against the other. But belligerents must also refrain from conducting hostilities on the territory of neutral states, a fundamental protection for neutrals and against the spread of war. For example, the application of neutrality as a result of the prosecution’s position would mean that the U.S. violated Sudan’s neutrality along with its sovereignty by bombing the al-Shifa pharmaceutical facility in Khartoum in 1998.
Moreover, and outside of the immediate concerns relating to al-Qaeda, the government’s position suggests that declarations of war by non-state actors are a fast-track to sovereignty. The consequences of this implication may be far reaching. There are numerous entities that have substantially stronger claims to statehood than did al-Qaeda in 1996, but that remain outsiders in the international system. Would entities like Somaliland, the Turkish Republic of Northern Cyprus, Abkhazia, and others finally gain admittance to the international system by declaring war on a neighbor or a far-off foe unlikely to take notice?
Finally, the government’s position leaves unsettled how to differentiate non-state declarations of war that have legal effect from those that do not. The U.S. has been the target of numerous supposed declarations of war by violent non-state actors to which it accorded no legal effect. For example, the United States treated neither the Symbionese National Liberation Army nor the Weathermen as enemy belligerents. Similarly, why give bin Laden’s August 1996 fatwa the legal weight of a declaration of war but not al Qaeda’s earlier 1992 fatwa that likewise called for attacks on U.S. forces in Saudi Arabia?
The only conclusion that can be drawn from the prosecution’s astounding position that bin Laden’s fatwa actually caused a legal state of war with the U.S. is that the government is willing to contort the law of armed conflict to suit its short-term litigation goals. Unfortunately, its single-minded and short-sighted effort to patch up the broken 9/11 military commission is simply making wreckage of law and history—and proving the old adage that hard cases make bad law.
The opinions and views expressed are those of the author alone. They do not represent the views of the US Department of Defense or the US Government. 
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U.S. Commerce Secretary Wilbur Ross on Monday defended his sizable business links to Russian President Vladimir Putin’s inner circle, saying “there is no impropriety.” Ross, a 79-year-old billionaire industrialist, has a 31 percent stake worth $2 million to $10 million in a shipping venture, Navigator Holdings, with connections to Putin’s son-in-law and an oligarch who is subject to U.S. sanctions and is Putin’s judo partner, according to newly leaked documents. But Ross, a member of President Donald Trump’s Cabinet, said on the sidelines of a business conference in London, “I think the media has made a lot more out of it than it deserves.” Navigator earns millions of dollars a year shipping natural gas for Russian energy giant Sibur, which is partly owned by Kirill Shamalov, the husband of Putin’s daughter, Katerina Tikhonova, and Gennady Timchenko, the oligarch who is Putin’s judo partner, according to the documents. Timchenko is subject to the U.S. sanctions because of Russia’s 2014 annexation of Ukraine’s Crimean Peninsula and its subsequent support for pro-Russian separatists fighting the Kyiv government’s forces in eastern Ukraine. ‘Nothing whatsoever improper’ But in a pair of interviews with the BBC and Bloomberg TV, Ross dismissed concern about his involvement in the operation. He said the Sibur deal was arranged before he joined Navigator’s board. “There’s no interlocking of board, there’s no interlocking of shareholders, I had nothing to do with the negotiation of the deal,” he said. “But most importantly the company that is our client itself, Sibur, was not then sanctioned, is not now sanctioned, and never was sanctioned in between. There’s nothing whatsoever improper.” Ross told Bloomberg, “We have no business ties to those Russian individuals who are under sanction.” Ross said he has been selling his stake in Navigator, “but that isn’t because of this.” Ross sold off numerous holdings when he joined Trump’s Cabinet earlier this year to avoid conflicts of interest while he promotes U.S. commerce throughout the world. But he kept his Navigator stake, which has been held in a chain of partnerships in the Cayman Islands, an offshore tax haven where Ross has placed much of his estimated $2 billion in wealth. ‘Paradise papers’ Ross did not disclose the Russian business link when he was confirmed by the U.S. Senate as commerce secretary, but it surfaced in a trove of more than 13 million documents leaked from Appleby, a Bermuda-based offshore law firm that advises the wealthy elite on global financial transactions as they look to avoid billions of dollars in taxes.  Appleby says it has investigated all the allegations and found “there is no evidence of any wrongdoing, either on the part of ourselves or our clients.” The cache of documents, called the Paradise Papers, was first leaked to a German newspaper, Sueddeutsche Zeitung, and then shared with the International Consortium of Investigative Journalists and dozens of other media outlets around the world, including The Guardian in Britain, The New York Times and NBC News in the U.S., all of which reported on the Ross investment on Sunday. The disclosure of Ross’ financial interests in Russia comes as a special prosecutor, Robert Mueller, and three congressional panels are investigating Russian interference in the 2016 U.S. presidential election, an effort the U.S. intelligence community has concluded was led by Putin in an effort to undermine U.S. democracy and help Trump win the White House. Several Trump campaign associates have come under scrutiny, but until the disclosures about Ross’ holdings, there have been no reports of business links between top Trump officials and any member of Putin’s family and his inner circle. The disclosures could put pressure on world leaders, including Trump and British Prime Minister, Theresa May, who have both pledged to curb aggressive tax avoidance schemes. “Congress has the power to crack down on offshore tax avoidance,” said Matthew Gardner, a senior fellow at the Institute on Taxation and Economic Policy. “There are copious loopholes in our federal tax code that essentially incentivize companies to cook the books and make U.S. profits appear to be earned offshore. The House tax bill introduced late last week does nothing to close these loopholes.”

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.
TRUMP ASIA TRIP
“The era of strategic patience is over,” Trump said today at a news conference with Japanese Prime Minister Shinzo Abe on the second day of his Asia trip, referring to the threat posed by North Korea and emphasizing the need to take a hard line against the Pyongyang regime. Kevin Liptak and Jeremy Diamond report at CNN.
Japan could shoot North Korean missiles “out of the sky” with the “massive amount of military equipment” it purchases from the U.S., Trump also said today, Abe reinforced the need for Japan to “qualitatively and quantitatively” enhance its defense capability and that it would intercept missiles “if necessary.” The BBC reports.
Maximum pressure must be exerted on North Korea, Abe said today, agreeing with Trump’s position that all options are on the table to deal with the Pyongyang regime, Reuters reporting.
“No one – no dictator, no regime and no nation – should underestimate, ever, American resolve,” Trump said yesterday in a campaign-style rally with U.S. troops in Japan, also saying before he landed in the country that the Trump administration would consider designating North Korea a state sponsor of terrorism. Julie Hirschfeld Davis reports at the New York Times.
“It’s expected we’ll meet with Putin, yeah,” Trump told reporters at the weekend before landing in Japan, saying that he would seek help from the Russian President on North Korea when they cross paths at multinational conferences in Southeast Asia. Michael C. Bender reports at the Wall Street Journal.
Trump should use his Asia trip to reinforce America’s commitment to the region and serve as a “democratic counterweight to China,” the New York Times editorial board writes.
The Trump administration is slowly shifting toward a more traditional Republican position on China and parts of a more hawkish strategy have been incorporated into speeches that he will give on his Asia trip, but the test of whether the administration will get tougher on China will come once Trump returns. Josh Rogin writes at the Washington Post.
Trump’s trip to South Korea tomorrow could raise “several thorny issues,” Hyung-Jin Kim provides an analysis at the AP.
Trump is the perfect guest for China, his egotistical style, shunning of the normal channels of doing work and ignorance of Chinese history giving Beijing the opportunity to control the situation when he visits this week. James Mann writes at The Daily Beast.
NORTH KOREA
An invasion by ground forces would be the only way to locate and secure all of North Korea’s nuclear weapons sites, the Pentagon told lawmakers in a letter at the weekend, noting that further details about responding to a threat could not be publicly discussed but adding that the Pentagon “assess that North Korea may consider the use of biological weapons.” Dan Lamothe and Carol Morello report at the Washington Post.
The Pentagon assessment demonstrates that a diplomatic solution should be the priority as an outbreak of war “would kill hundreds of thousands of people,” Sen. Dianne Feinstein (D-Calif.) said yesterday. Martin Pengelly reports at the Guardian.
A U.N. report on North Korea’s human rights situation and satellite photos showing the extent of abuse provide another reason why we should not “turn a blind eye” to the Pyongyang regime. The Washington Post editorial board writes.
South Korea imposed unilateral sanctions on 18 North Korean individuals today due to their direct affiliation to North Korean banks, according to an announcement by the South Korean finance minister, Seoul taking the measure a day ahead of Trump’s visit to South Korea. Christine Kim reports at Reuters.
TRUMP-RUSSIA
Enough evidence has been gathered by special counsel Robert Mueller to bring charges against Trump’s former national security adviser Michael T. Flynn and his son Michael G. Flynn, according to sources familiar with the matter, investigators will be speaking to multiple witnesses to gather more information about Flynn’s lobbying work which has been under scrutiny for months due to the Flynn Intel Group’s links to Russia. Julia Ainsley, Carol E. Lee and Ken Dilanian report at NBC News.
The Commerce Secretary Wilbur Ross has business connections with Russian President Vladimir Putin’s family and inner circle according to documents leaked over the weekend, known as the Paradise Papers, Ross did not fully disclose the financial ties during the confirmation process and the revelations come amid congressional investigations and Mueller’s investigation into possible collusion between the Trump campaign and Russia. Carol Morello reports at the Washington Post.
The revelations about Ross creates a potential conflict with his role in the administration and raises ethical concerns. Mike McIntre, Sasha Chavkin and Martha M. Hamilton report at the New York Times.
“Secretary Ross misled me, the Senate Commerce Committee, and the American people,” Sen. Richard Blumenthal (D-Conn.) said in a statement yesterday, adding that the financial disclosures “are like a Russian nesting doll, with blatant conflicts of interest carefully hidden within seemingly innocuous holding companies.” Barney Jopson reports at the Financial Times.
The Trump campaign foreign policy adviser Carter Page met with Russian government officials during a trip to Moscow in July 2016, Page said in testimony to the House Intelligence Committee last week, contradicting previous accounts of his trip to Moscow, Mark Mazetti and Adam Goldman report at the New York Times.
The House Intelligence Committee has called on Trump’s security chief Keith Schiller to testify tomorrow in relation to their investigation into Russian interference in the 2016 election, and lawmakers are expected to ask about the details contained in the dossier compiled by former British Intelligence officer Christopher Steele, which alleged connections between the Trump campaign and Russia. Carol D. Leonnig and Greg Miller report at the Washington Post.
Kremlin finances supported Russian billionaire Yuri Milner to invest millions of dollars in Facebook and Twitter through the Russian state-controlled V.T.B. bank and the government-controlled Gazprom Investholding financial institution, however there has been no suggestion that Milner or his companies have direct connections to Russia’s online propaganda campaign. Jesse Drucker reports at the New York Times.
Milner invested $850,000 in a startup co-founded by Trump’s son-in-law and senior adviser Jared Kushner according to the Paradise Papers, a revelation that is likely to attract more questions about Kushner’s business ties and possible connections to the Kremlin. Andrew Desiderio reports at The Daily Beast.
At least nine Trump associates had contacts with Russian during the 2016 U.S. election campaign or the presidential transition, the documents that were released last week as part of the Trump campaign adviser George Papadopoulos’s guilty plea show that Mueller’s team has an interest in a range of individuals, however the question remains whether the connections between Trump campaign officials and Russian operatives amounted to a concerted Russian government campaign or were isolated coincidences. Rosalind S. Helderman, Tom Hamburger and Carol D. Leonnig explain at the Washington Post.
The potential legal battles in the charges against former Trump campaign chairman Paul Manafort and former campaign aide Rick Gates are set out by Darren Samuelsohn and Josh Gerstein at POLITICO.
The role of Gates has been under the spotlight and Michael Kranish and Tom Hamburger explain at the Washington Post how he has come to attention.
The importance of Josef Mifsud, the professor referred to in Trump campaign adviser George Papadopoulos’s guilty plea, and who offered to be a conduit between the Trump campaign and the Kremlin, is analyzed by Griff Witte and Karla Adam at the Washington Post.
YEMEN
A ballistic missile fired by Yemen’s Houthi rebels at the Saudi capital of Riyadh on Saturday was “a blatant act of military aggression by the Iranian regime” and “could rise to be considered as an act of war,” a statement by the Saudi-led military coalition said today, adding that debris from the missile, which was intercepted, showed that it was made in Iran, a claim that was denied by the head of Iran’s Islamic Revolutionary Guard Corps (I.R.G.C.) Maj. Gen. Mohammad Ali Jafari. Asa Fitch reports at the Wall Street Journal.
“Iran’s role and its direct command of its Houthi proxy in this matter constitutes a clear act of aggression,” the statement also said, adding that Iran’s supply of military weapons to Yemeni armed group was in violation of a U.N. Security Council resolution. Al Jazeera reports.
Trump also blamed Iran for the attack, a claim that was rejected by Jafari as another “one of those slanders” by the U.S. president, adding that “we do not have even the possibility to transfer missiles to Yemen.” Reuters reports.
All flights to Yemen’s airports have been canceled today following the Saudi-led coalition’s closure of all land, air and sea ports which was announced today in response to the Houthis firing a missile toward Riyadh. Ahmed Al-Haj reports at the AP.
The Saudi-led coalition carried out at least 29 airstrikes on Yemen’s Sana’a province in response to the ballistic missile, in what many residents described as the worst day of bombing since the war started. Al Jazeera reports.
Militants set off a car bomb outside a security headquarters in the Yemeni city of Aden yesterday, killing at least 17 people and conflicting accounts have emerged regarding the storming of the compound. Ahmed Al-Haj reports at the AP.
SAUDI ARABIA
The Saudi Crown Prince Mohammad bin Salman consolidated his power through the targeting of high-profile figures as part of purported efforts to tackle corruption. President Trump appeared to give a tacit endorsement of the arrests in a phone call with King Salman, the crown prince’s father, yesterday. David D. Kirkpatrick reports at the New York Times.
The extraordinary events in Saudi Arabia over the weekend have brought attention to Riyadh and the ruthless ambition of the crown prince. The weekend started with the interception of a Houthi ballistic missile, then the resignation of the Lebanese Prime Minister Saad Hariri while on a trip to Saudi Arabia, followed by a purge of Saudi figures – the incidents seemingly sending a message about Saudi’s power at home and abroad, Ishaan Tharoor writes at the Washington Post.
The crown prince’s action are part of a risky power play and he has been emboldened by support from Trump, his administration, and most probably, a visit by Trump’s son-in-law and senior adviser Jared Kushner to Riyadh earlier this month. David Ignatius writes at the Washington Post.
The impending defeat of the Islamic State group is reorienting the focus of the region to the cold war between Iran and Saudi Arabia, intensifying the Sunni-Shi’ite divide expressed through proxy warfare and opening the possibility of further escalation. Asa Fitch writes at the Wall Street Journal.
The events in Saudi Arabia at the weekend demonstrate the conflicts to come in the Middle East, the Crown Prince’s desire to reshape Saudi Arabia in the face of the threat posed by Iran, the resignation of the Lebanese Prime Minister who cited Iran’s responsibility for causing “devastation and chaos” in the region, and the firing of a missile by the Iran-backed Houthi rebels, show Iran’s ability to exploit vulnerability. The Wall Street Journal editorial board writes.
LEBANON
The Lebanese Prime Minister Saad Hariri resigned on Saturday in an announcement broadcast from the Saudi capital of Riyadh, criticizing Iran for its destructive role in Lebanon and across the Middle East, saying that he feared an assassination plot, and referring to the destabilizing role of the Iranian-backed Lebanese Hezbollah group. Nazih Osseiran and Margherita Stancati report at the Wall Street Journal.
Hariri’s resignation was a decision “imposed” on him by Saudi Arabia, the leader of Hezbollah Hassan Nasrallah said in response, saying that “it was not our wish for Hariri to resign,” and Hariri’s decision has prompted fears of a further escalation between Iran and Saudi Arabia, with Lebanon playing a key role. Al Jazeera reports.
Could recent events drag Lebanon into another conflict? Halim Shebaya provides an analysis at Al Jazeera.
SYRIA
The Syrian army declared victory in the eastern city of Deir al-Zour on Friday, marking what a military spokesperson termed the “last phase” in the Syrian army’s campaign against the Islamic State group. Louisa Loveluck and Tamer El-Ghobashy report at the Washington Post.
A truck bomb blast on Saturday killed refugees fleeing the Islamic State group in Deir al-Zour province, according to the U.S.-backed Syrian Democratic Forces (S.D.F.), the AP reports.
IRAQ
The Iraqi Prime Minister Haider al-Abadi raised the Iraqi flag at a border crossing with Syria yesterday, following the Iraqi forces’ successful campaign to liberate the western town of al-Qaim from the Islamic State group. Sinan Salaheddin reports at the AP.
At least five people were killed in two suicide bombings in the northern Iraqi city of Kirkuk on Saturday, following the first such attack since the Iraqi federal forces took the city from Kurdish Peshmerga last month. Mustafa Mahmoud reports at Reuters.
The Iraqi Kurds have lost vast swathes of territory since the controversial independence referendum held in September, Sergio Peçanha explains at the New York Times.
AFGHANISTAN
A ground and aerial offensive by Afghan and U.S. forces at the weekend in the Kunduz province led to civilian deaths, with lawmakers saying they have received conflicting reports about the number of people killed, with some putting the death toll at nearly 60. Sayed Salahuddin reports at the Washington Post.
The Afghan and U.S. military authorities are investigating the reports of civilian deaths, officials said today, Reuters reporting.
The chief prosecutor of the International Criminal Court (I.C.C.) has pushed to open an investigation into possible war crimes committed in Afghanistan, an investigation that could implicate U.S. forces. James McAuley and Pamela Constable report at the Washington Post.
NIGER
The four U.S. Special Forces members killed on Oct. 4 in an ambush in Niger were helping to track militants on the border with Mali, suggesting that the soldiers were carrying out operations in a complex battlefield rather than a low-risk reconnaissance mission, as the Pentagon has asserted. Sudarsan Raghavan reports at the Washington Post.
Islamic State militants may have kidnapped one of the four soldiers killed, Debora Patta reports at CBS News.
OTHER DEVELOPMENTS
A federal judge in Indiana imposed blocked the military judge hearing the U.S.S. Cole case at Guantánamo Bay from seizing the war court defense attorney Rick Kammen, who quit the case over a secret ethical conflict. Carol Rosenberg reports at the Miami Herald.
The Israeli military uncovered the bodies of five Palestinian militants who were members of the Iran-backed Islamic Jihad group in Gaza, the AP reports.
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