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U.S. Policy on the South China Sea

Thursday, March 26, 2015 at 5:00 PM

At the end of last week, Senators McCain and Reed of the Senate Armed Services Committee and Senators Corker and Menendez of the Senate Foreign Relations Committee sent a letter about the South and East China Sea to Secretaries Kerry and Carter. China’s recent and dramatic reclamation efforts in the South China Sea prompted the March 19, 2015 letter, which Jack Goldsmith characterized as “a strong signal to the Administration, and to China.”

The purpose of the letter was to urge the Administration to develop a comprehensive strategy to address China’s reclamation efforts in the area. Doing so, the letter argued, is necessary “for the international community to continue benefiting from the rules-based international order that has brought stability and prosperity to the Indo-Pacific region for the past seven decades.”

So, what is the Administration’s current policy with respect to the conflicting territorial and maritime claims in the South China Sea, and what does the letter suggest about how congressional leaders would like to see that policy change?

U.S. policy has had four key features during the last few decades as tensions have escalated in the region. First, the U.S. has avoided taking a position on conflicting claims to territorial sovereignty in the South China Sea, and does not itself claim any of the disputed territory in the Sea. Second, the U.S. has sought to protect freedom of navigation and commerce in the region, an interest it deems “fundamental.” Third, the U.S. has repeatedly emphasized the importance of peaceful dispute resolution without coercion. Fourth, the U.S. has sought to ensure respect for international law, including the U.N. Convention on the Law of the Sea (UNCLOS) (to which the U.S. is not a party).   See, for example, this 1995 Press Briefing following the occupation of Mischief Reef by China and these 2010 remarks by Secretary of State Clinton.

The March 19 letter appears to recognize and applaud these aspects of U.S policy, especially in the first sentence of the second paragraph.  What the Senators want in addition, however, is a strategic plan with respect to China’s activity in the South China Sea, including its construction of land features, which are very likely to give China greater military capacity in the region. To some extent, U.S. policy has already become increasingly confrontational with China. Since 2012, the U.S. has responded explicitly to China’s activities in the South China Sea, and especially to China’s ill-defined claims based on the “nine-dashed line.” The United States argues that maritime claims based on the nine-dashed line (rather than on specific land features that fall within that line) are inconsistent with international law; this argument was advanced in detail in December of 2014.

Developing a response to land reclamation may be more difficult, however. International law does not prohibit reclamation or the construction of artificial islands on the high seas, which are “open to all states.” UNCLOS art. 87 (d). At least one analysis concludes that Fiery Cross and Gaven Reefs — two installations specifically identified by the Senators’ letter – are beyond the Philippine Exclusive Economic Zone (EEZ) and are likely on the high seas.  If China’s reclamation efforts occur within the EEZ or territorial sea of another country, or if they enhance islands or rocks which are part of the territory of another country, then they would violate international law (absent permission from the coastal state). But determining the reach of EEZs and territorial seas usually depend on deciding which country has territorial sovereignty over particular land features – precisely the questions on which the U.S. has avoided taking a position, and which are not answered by the UNCLOS. And although the U.S. could condemn China’s construction activities even if they are generally consistent with international law, the U.S. has taken the position that states should be free to engage in conduct that is not prohibited by international law, an argument which can be used to protect freedom of navigation and commerce. Reclamation might violate international environmental law, notice requirements, or commitments not to change the status quo pending resolution of current disputes (as Secretary Kerry has already said) but these arguments are probably best advanced by the countries most impacted by them – the littoral states currently engaged in maritime disputes with China — in particular the Philippines and Vietnam.

Thus of the specific suggestions made in the penultimate paragraph of the letter, ramping up U.S. engagement with and support for allies in the region appears clearly warranted, as is the continuation of U.S. support for ASEAN. One policy measure not mentioned but which the administration and Congress ought to consider is supporting immediate technical efforts to document and map current physical features and recent changes to them, as suggested by Mira Rap-Hooper here. As time goes on, (perhaps very little time) it may become harder and harder to document which features were “rocks,” which were “islands” and which were neither prior to construction – and these determinations may be essential to resolving contested maritime claims in the region.

After Bibi’s Reelection: Why a Pivot to the UNSC is Still a Mistake (Part 1: Settlements)

Thursday, March 26, 2015 at 2:45 PM

As the White House continues to direct a cascade of criticism at Israeli Prime Minister Benjamin Netanyahu, some commenters are beginning to ask whether the ongoing verbal offensive serves any strategic purpose. More are already theorizing about what precisely the President and his staff mean when they announce they are “reassessing” or “reevaluating” their policies toward Israel and Mideast peace. At the top of the list of guesses is the potential for a change in the United States traditional stance at the United Nations, and particularly in the UN Security Council. Observers have noted two apparent paths for the United States to pivot in its approach to Israel at the UNSC: 1. The US might support a resolution condemning settlement building and/or 2. The US might support a resolution laying out the principles of a two-state solution.

Either way, taking the Security Council route would be a mistake. Any attempt by the United States to produce a balanced and nuanced resolution on either issue would likely be unacceptable not only to Israel – but also to the Palestinians and their supporters. So after pursuing such a resolution, the administration will thus be left with the unenviable choice of allowing a less balanced resolution or pulling back with egg on its face. What follows, then, is the first in a pair of posts that will analyze these two potential UNSCR routes.

The “condemn the settlements” path appears, at first glance, like the easier one. The US has long opposed Israeli settlement policy, and drafting a resolution condemning Jewish construction in the West Bank would seem a fairly simple proposition. In 2011, for instance, the United States barely vetoed a Security Resolution directed at settlement building that was specifically designed to gain US support. That resolution “reaffirm[ed] that all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of peace on the basis of the two-State solution” and “condemn[ed] the continuation of settlement activities by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem.” At the time, then US Ambassador the UN insisted that despite the veto, the US continued to “reject in the strongest terms the legitimacy of continued Israeli settlement activity.” Nevertheless, America would veto because the resolution because of practical concerns over the resolution’s effects: it “risks hardening the positions of both sides” and “could encourage the parties to stay out of negotiations.”

Proponents of US support for a similar resolution now point to this statement of Rice’s for support: US opposition to a resolution on settlements has always been practical rather than principled. But now that the need for American pressure on Israel has increased, those practical considerations have changed. American condemnation of Israeli settlement building will send a clear message that Israeli settlement needs to stop.

There are two problems with this argument: first, although the Obama administration would like to increase pressure on Israel—particularly with regard to settlements—the underlying practical reality that Rice pointed to three and a half years ago has not changed. The Palestinians continue to view international mechanisms as an alternative to—and a way of predetermining—direct negotiations with Israel. President Abbas rejected far-reaching offers (both secret and public) not only during the Prime Ministership of Ehud Olmert, but also in 2013, during Netanyahu’s last term. (This is leaving aside the more-than-enough-blame-to-go-around of the most recent round of talks.) So despite the President’s current frustrations with Netanyahu, the fundamental argument that Rice pointed to remains very much present. Palestinians will only make concessions when they internalize that the international card is completely off the table, and there is no alternative to direct negotiations. Today, that message only needs stronger reinforcement. Read more »

Today’s Headlines and Commentary

By and
Thursday, March 26, 2015 at 2:25 PM

Saudi Arabia launched a slew of airstrikes against Houthi rebels in Yemen late last night, targeting locations throughout the country, including Dailami air base and the capital’s international airport. The New York Times reports that 100 Saudi jets flew sorties, while the country has reportedly also deployed 150,000 soldiers and naval units. However, at the time of writing, the operation has only consisted of airstrikes. After the attacks, which hit targets in the Houthi-controlled capital of Yemen, Sana’a, Saudi media reported that the operation had neutralized the air force operating on behalf of the rebels.

Saudi Arabia was joined in the attacks by a coalition of regional Sunni allies. The Guardian reports that, according to Saudi-owned media, Egypt, Morocco, Jordan, Sudan, Kuwait, the United Arab Emirates, Qatar and Bahrain all contributed planes to the airstrikes. Egypt, Pakistan, Jordan and Sudan are reportedly also prepared to commit troops to a ground offensive in the country. Egyptian military officials told the Associated Press that the intervention will go further, noting their plans to commit troops once air superiority has been established. According to Reuters, four Egyptian naval vessels have crossed the Suez Canal on their way to secure the Gulf of Aden.

While the United States has not participated directly in the attacks on the Houthi rebels, Reuters notes that President Barack Obama approved “logistical and intelligence support” for the operation. The State Department has also made clear that the United States is providing “targeting assistance.” Secretary of State John Kerry commended the coalition’s actions in conversations with the foreign ministers of many of the participating Gulf nations, Reuters adds.

Iran quickly denounced the Saudi-led attacks. Iranian Foreign Minister Mohammad Javad Zarif was quoted as demanding an immediate end to the airstrikes and warned “We will make all efforts to control the crisis in Yemen,” according to Reuters. Iran’s nuclear chief Ali Akbar Salehi, in Switzerland as part of the Iranian nuclear negotiations, said “I am concerned by the impact of regional and international events on the nuclear talks.”

Trying to catch up on the chaos and figure out how we got here? Gregory Johnsen has a fantastic background on the Houthis, where they came from, and what they want. Elsewhere, Stratfor has a useful analysis of how competition between Saudi Arabia, which supports the government of President Abd Rabbuh Mansur Hadi, who was forced from power months ago, and Iran, which allegedly backs the Houthi rebels, has internationalized the conflict in Yemen. But, it would be incorrect to view this as purely a Sunni-Shia conflict. As Adam Baron explains in Politico, this is mainly a local fight, with problems “deeply rooted in Yemen,” and “primarily motivated by local issues.”

Aside from any threat Saudi involvement may pose to an Iranian nuclear deal, chaos in Yemen is already wreaking havoc on U.S. counterterrorism operations in the country, which plays host to al Qaeda in the Arabian Peninsula. U.S. personnel have already been forced to evacuate, leaving the Obama administration with few options to counter any move by terrorist groups to fill the country’s power vacuum. At the Daily Beast, Shane Harris and Tim Mak describe Yemen as the “New Terror Heartland” and wonder if the administration’s previous strategy in Yemen, centered largely around drone strikes, was too narrow.

Further threatening U.S. interests in the country is the spread of information on previous U.S. operations there. The Los Angeles Times reveals that Houthi rebels have looted documents describing U.S. intelligence operations in the country and, U.S. officials fear, may have handed these files to Iranian advisors in the country. The dissemination of the information would expose the identities of covert informants and plans for future counterterrorism operations.

While its allies bomb Iran-back militias in Yemen, the United States is actively providing air support to separate Iran-backed militias over the skies of Tikrit. According to Reuters, planes from the U.S.-led coalition against ISIS struck the presidential compound in Tikrit where ISIS militants have clustered for weeks. The AP adds that the airstrikes have allowed Iraqi forces to launch an assault to complete the liberation of Tikrit from ISIS militants, who have held the city since last summer.

The New York Times reports that Iraqi Prime Minister Haider al-Abadi requested U.S. air support after watching an offensive led largely by Iranian-backed Shiite militias stall. The Obama administration agreed on the condition that Iraqi government forces take a leading role in the offensive, so as to avoid being seen as working with Iranian proxy forces. These forces were vehemently opposed to asking for U.S. intervention but were overruled by Prime Minister Abadi. McClatchy notes that soon before the initiation of airstrikes, Qassem Suleimani, the leader of an elite corps of the Iranian Revolutionary Guard who had reportedly been directing parts of the assault, left Tikrit. U.S. officials have also suggested they hope the failure of Iran-backed militias will give the United States additional leverage in the fight and political arena, pushing Iraq closer to its American ally.

Some U.S. officials worry that such direct Iranian control of militias in the Middle East may pose a threat to U.S. personnel in the region aiding the fight against ISIS. According to Politico’s Michael Crowley, U.S. officials have expressed concern that the unraveling of Iranian nuclear negotiations or an increase of U.S. pressure on the Iranian-backed Assad regime in Syria may lead the Iranian government to push the Shiite militias it controls in the region to attack U.S. troops.

And while the Shiite militias ostensibly share the same immediate goal as the United States—the elimination of ISIS—their actions may be helping push Iraq toward disintegration. The Wall Street Journal notes that the current conflict, which cuts largely along sectarian lines, has convinced many Iraqis that a three-way division of the country is the only viable way forward. Yaroslav Trofimov writes that “With the front lines moving slowly since last summer’s Islamic State blitz, the country’s three-way division is becoming a fact of life.”

Regarding another war, one perhaps getting less of the public’s attention these days: The Times describes the careful choreography that went into Afghan President Ashraf Ghani’s visit to Washington, which culminated yesterday in a speech before a joint session of Congress. The Times notes that Ghani was successful in convincing President Obama to allow more troops to remain in Afghanistan through the end of this year than originally planned. But this decision may have been made more due to concerns over the coming fighting season in Afghanistan than any lobbying by or on behalf of the Afghan President. Yesterday, for the second time in a week, a suicide bomber struck Kabul. The Times reports that a car bomb detonated near a taxi stand, killing seven people and wounding 36.

In Pakistan, the military has mounted an offensive against militants in Tirah Valley, a remote region near the Afghan border controlled by the Lashkar-i-Islam group, which has aligned itself with the Taliban. The Times notes that dozens of fighters have died from both sides in the operation in Tirah, which hosts 2,500 fighters, according to Pakistani estimates. According to Pakistani officials, the offensive’s successes, including the killing of several senior militant commanders, are largely thanks to ‘Burraq,’ the new drone that Pakistan has developed. While the drone was only publicly showcased in mid-March, the Express Tribune reports that the remote-controlled aircraft was tested in combat much earlier. If true, this would make Pakistan the fourth country to use armed drones in combat.

According to a Nigerian official, Boko Haram fighters are using as many as 500 civilians as human shields as the militants retreat in the face of a multilateral offensive, the AP reports. The offensive comes as Nigerians prepare for elections on Saturday.

This morning, the final round of negotiations before a March 31st deadline for a political agreement between Iran and six world powers on Iran’s nuclear program began, the Washington Post notes. The Wall Street Journal writes that the talks have stalled because of Iran’s failure to comply with a U.N. probe into its past nuclear activities. However, one U.S. official maintained yesterday that “We very much believe we can get this done by the 31st … We see a path to do that.” The Times notes that the remarks were the most positive yet from the Obama administration.

In a move that may signal an expectation that a deal is inevitable, Israeli Prime Minister Benjamin Netanyahu appears to have backed down from his strong opposition to the deal currently being negotiated in favor of trying to affect the small print of that deal. Earlier this week, Israel’s Strategic Affairs Minister Yuval Steinitz said that Israel wants any deal to ensure a two- or three-year breakout time. Reuters explains that this condition indicates a willingness to back down from previous assertions that Iran be left with no centrifuges—Israel earlier said that if Iran’s nuclear capacity was completely removed, it would take a full five years for Iran to build a bomb.

However, Netanyahu indicated no such shift yesterday, when he was officially given the task of forming a new government by the Israeli President Reuven Rivlin. Speaking at a ceremony to mark the occasion, Netanyahu said “we will nonetheless continue to act to prevent the unfolding deal with Iran, an agreement which puts in danger us, our neighbors, the world.” The remarks may make fulfilling another task given to Netanyahu by President Rivlin: to improve U.S.-Israeli relations. The Times has more.

The U.S. government successfully won the dismissal of a defamation suit brought against an anti-Iran advocacy group on the grounds that the case could reveal state secrets and jeopardize national security. Reuters explains that the government’s use of the state secrets privilege was unusual because the government was not a party to the lawsuit. Rather, it was a private civil suit brought by Greek shipping tycoon Victor Restis against United Against Nuclear Iran, after UANI accused Restis’s company of violating Iran sanctions by exporting oil from the country.

In a new report on the 2014 war in Gaza, Amnesty International has accused Palestinian groups, including Hamas, of committing war crimes during last year’s 50-day war. The Times notes that the report, which follows a November 2014 Amnesty report accusing Israel of war crimes, says that armed Palestinians showed a “a flagrant disregard for the lives of civilians.” The report comes a week before Palestine accedes to the International Criminal Court, where it plans to file charges against Israel for alleged war crimes; the accession, the Times adds, also opens Palestinians to war crimes prosecutions.

Six years since the last six-party negotiations regarding North Korea’s nuclear program, Russia and China are discussing an attempt to revive the talks, according to a Chinese government website. Reuters reveals that this development comes two weeks after the South Korean ambassador to the talks said that five of the six parties had attained “a certain degree of consensus” on how to proceed with the negotiations; it remains to be seen how the sixth party, North Korea, responds to diplomatic overtures.

Sgt. Bowe Bergdahl, the U.S. soldier that was held by the Taliban for five years and was eventually returned to the United States in return for five Taliban detainees, will be charged with desertion and misbehaving before the enemy, the Post reports. The announcement comes amid allegations that President Obama violated U.S. law by authorizing the release of the five Taliban fighters. The Miami Herald adds that Bergdahl may face life in prison if he is convicted.

A new report released by the FBI finds that the bureau has improved its ability to fight terrorism since 9/11, but must confront still more challenges to improve its intelligence capabilities as it fights small, agile foes. The Post explains that the report was commissioned by Congress to determine the FBI’s success in implementing the 2004 recommendations of the 9/11 Commission. We shared the report’s main conclusions yesterday here.

Finally, the Post brings us news that the head of the CIA’s Counterterrorism Center will be removed from his post as part of a major reorganization of the Agency under Director John Brennan. The Post describes the shake-up as a “watershed moment.” The current head of the Center has held the position for nine years, turning it into a paramilitary force that employed armed drones around the world.

Parting shot: The U.S. is dropping a new kind of bomb on ISIS targets in Syria—propaganda bombs.

ICYMI: Yesterday, on Lawfare

Cody shared the news yesterday that Sgt. Bowe Bergdahl would be charged with desertion and misbehavior before the enemy. Jack also shared some analysis (by him and by various government bodies) on whether the Bergdahl swap was lawful.

Yishai Schwartz and Jenn Williams gave us the rundown on the latest Middle East news with the “Middle East Ticker.”

Jack looked a little closer at the Iran Nuclear Agreement Review Act and noted that doesn’t really make any unreasonable demands.

Jessica Stern and J.M. Berger posted the third of four excerpts from their new book ISIS: The State of Terror.

Cody linked us to the new FBI report looking into how successfully the bureau had implemented the reforms recommended by the 9/11 Commission.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.


For Your Listening Pleasure . . .

Thursday, March 26, 2015 at 8:44 AM

Here is the latest episode of Rational Security:

And here is the latest Chess Clock Debate, a discussion between Kori Schake of the Hoover Institution and Ryan Evans of the War on the Rocks site over whether or not the United States should arm the Ukrainians:

Private Defamation Action Dismissed on State Secrets Grounds

Thursday, March 26, 2015 at 8:35 AM

This is a very interesting case. The other day, federal district judge Edgardo Ramos in New York threw out a defamation lawsuit between two private parties on the government’s intervening motion asserting the state secrets privilege. The case is Restis v. American Coalition Against a Nuclear Iran (UANI). The 18-page opinion is worth reading.

Here are some highlights:

According to the [second amended complaint], UANI initiated a “name and shame” campaign against Plaintiffs on May 13, 2013, by sending a public letter to Mr. Restis regarding, inter alia, their purported involvement in the illegal exportation of Iranian oil in violation of international sanctions. Id. ¶ 40. Plaintiffs allege that UANI continued its “name and shame” campaign against them in May 2013, July 2013, and February 2014, through a series of press releases and postings on social media and on UANI’s website. Id. ¶¶ 44-54, 82-106. Plaintiffs seek compensatory and punitive damages, as well as an order requiring the removal of the allegedly defamatory postings from UANI’s website and Facebook page.

. . .

On September 12, 2014, the Government filed a motion, inter alia, to intervene in the instant action on the basis of the state secrets privilege. Doc. 257. At a conference held on October 8, 2014, counsel for Plaintiffs and Defendants indicated that they did not object to the Government’s motion to intervene. Accordingly, on October 9, 2014, the Court entered an order granting the Government’s motion. Doc. 272. The Government has asserted the state secrets privilege and contends that application of the privilege requires the dismissal of the instant action. The Government has submitted classified declarations and documents in support of its assertion of the privilege ex parte for the Court’s in camera review.

Read more »

ISIS as Cult

By and
Thursday, March 26, 2015 at 7:00 AM

Editor’s Note: This is the final of four excerpts from the new book, ISIS: The State of Terror, by Jessica Stern and J.M. Berger. In case you missed them, here are Part I, Part II, and Part III.

In a study that is widely seen as among the most important contributions to social psychology, a team of observers joined a prophetic, apocalyptic cult to determine what would happen to the group if the predicted events failed to materialize. Marian Keech (a pseudonym for Dorothy Martin), the leader of the cult, predicted the destruction of much of the United States in a great flood, scheduled for December 21, 1955. She told her followers that they would be rescued from the floodwaters by a team of outer-space men in flying saucers with whom she was able to communicate, she said, through telepathy. When the apocalyptic flood did not materialize, instead of walking away from the cult and its leader, most members continued as loyal followers, and commenced efforts to recruit new followers.

Out of this observation, the researchers, Leon Festinger, Henry Riecken, and Stanley Schachter, developed the theory of cognitive dissonance, which states that when individuals are confronted with empirical evidence that would seem to prove their beliefs wrong, instead of rejecting their beliefs, they will often hew to them more strongly still, rationalizing away the disconfirming evidence.

All of us have experiences with cognitive dissonance in our ordinary lives: When we hear or see something we don’t want to believe because it threatens our view of ourselves or our world, rather than changing our views, we may be tempted to persuade ourselves that there has been a mistake—the disconfirming evidence is wrong, we need new glasses, we misheard. When this happens in cults, members may try to recruit others to join them in their views.

Since then, a number of similar cults have been studied, many but not all of which followed this pattern. The vast majority survived the failed prophecy, but some employed other stratagems to cope with cognitive dissonance, such as “spiritualizing” the prophecy by claiming that life did not end, but changed significantly, on the day the world as we know it was predicted to end. Among Protestant apocalyptic cults, there is an important distinction between pre-tribulation and post-tribulation fundamentalists. Pre-tribulation believers expect that Jesus will save them from experiencing the apocalypse through a divine rapture, the simultaneous ascension to heaven of all good Christians. Post-tribulation believers expect to be present during the apocalypse. Christian militants who subscribe to post-tribulation beliefs consider it their duty to attack the forces of the Antichrist, who will become leader of the world during the end times. Read more »

Was the Bergdahl Swap Lawful?

Wednesday, March 25, 2015 at 9:19 PM

With Bowe Bergdahl back in the news, it is perhaps worth outlining the legally controversial circumstances of the Taliban swap.  I argued here and here that the transfer was inconsistent with three federal statutes: The thirty-day notice requirement before transfer of GTMO detainees in Section 1035 of the 2014 NDAA; the appropriation restrictions in Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act; and the Anti-Deficiency Act, which prohibits DOD from incurring obligations that exceed an amount available in an appropriation. I further argued that the USG probably relied on Article II to disregard these statutes, an argument that I maintained raises “quite a hard legal issue, with few real precedents.”

The GAO subsequently issued a memorandum that reached the same conclusions about these three statutes but did not address the Article II override argument.  DOD responded here in an unsigned, letterehead-less memorandum.  DOD relied on (what I view as) very strained statutory interpretation arguments.  It then argued that if the relevant statutes did in fact prevent the transfer of the five Taliban, “the statute would be unconstitutional as applied because requiring 30 days’ notice of the transfer would have violated the constitutionally-mandated separation of powers.”  Here is DOD’s constitutional analysis (first an avoidance argument and then an argument for disregarding the statute):

The transfer was necessary to secure the release of a captive U.S. soldier, and the Administration had determined that providing notice as specified in the statute could jeopardize negotiations to secure the soldier’s release and endanger the soldier’s life. In those circumstances, providing notice would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members. Such interference would “significantly alter the balance between Congress and the President,” and could even raise constitutional concerns; and courts have required a “clear statement” from Congress before they will interpret a statute to have such an effect. Armstrong v. Bush, 924 F.2d 282, 289 D.C. Cir. (1991). Congress may not have spoken with sufficient clarity in section 1035(d) because the notice requirement does not in its terms apply to a time-sensitive prisoner exchange designed to save the life of a U.S. soldier. Cf. Bond v. United States, 134 S. Ct. 2077, 2090-93 (2014). …

[I]f section 1035(d) were construed as applicable to the transfer, the statute would be unconstitutional as applied because requiring 30 days’ notice of the transfer would have violated the constitutionally-mandated separation of powers. Compliance with a 30 days’ notice requirement in these circumstances would have “prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,” Morrison v. Olson, 487 U.S. 654, 695 (1988), without being “justified by an overriding need” to promote legitimate objectives of Congress, Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977). As just discussed, the Administration had determined that providing notice as specified in the statute would undermine the Executive’s efforts to protect the life of a U.S. soldier. Congress’s desire to have 30 days to weigh in on the determination that the Secretary had already made, in accordance with criteria specified by Congress, that the transfer did not pose the risks that Congress was seeking to avoid, was not a sufficiently weighty interest to justify this frustration of the Executive’s ability to carry out these constitutionally assigned functions. Thus, even though, as a general matter, Congress had authority under its constitutional powers related to war and the military to enact section 1035(d), that provision would have been unconstitutional to the extent it applied to the unique circumstances of this transfer. And, just as section 1035(d) would be unconstitutional to the extent it was construed as applicable to the transfer, the broader reading of section 8111 would likewise be unconstitutional as applied to that transfer, because it would attempt to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose directly.

The Middle East Ticker

By and
Wednesday, March 25, 2015 at 3:30 PM

With support of 67 parliamentarians, Netanyahu set to begin forming a government: Benjamin Netanyahu’s big election victory just got more official, with the leadership of parties representing a majority of the Knesset formally recommending that Israel’s President Ruby Rivlin task Netanyahu with the formation of a government. Most analysts believe Netanyahu will form a narrow government composed of the right-of-center and religious parties which recommended him—but there are signs he may try to include some centrists as well. As he begins this coalition-forming process, Netanyahu is also struggling to contain the damage from incendiary campaign statements, apologizing directly to local Arab leadership and trying to reassure the United States and the broader international community that he remains committed to two states for two peoples.

UN Gaza investigative commission to examine Palestinian war crimes as well: Mary McGowan Davis, the lead commission member after the resignation of chairman William Schabas, announced this week that the commission would be investigating Palestinian as well as Israeli actions during the summer’s Gaza war. “The commission,” she told the UN Human Rights Council, “has interpreted its mandate as including investigation of the activities of Palestinian armed groups in Gaza; including attacks on Israel.” Despite Schabas’s resignation and Davis’s reassurances, Israel remains deeply skeptical, insisting that the commission’s mandate, its staff, and the UNHRC itself remain deeply biased against Israel.

Relatedly, both the US and Israel continued their general policy of boycotting UNHRC sessions related to Item 7—the UNHRC permanent agenda item devoted exclusively to discussing human rights violations by Israel (the only such item of its kind). Similarly, last week Israeli media was also in an uproar over a resolution passed by the UN Commission’s Status on Women condemning Israel for the effects of its policies on Palestinian women. Critics alleging UN bias pointed out that in nine documents released by the Commission, only one member state—Israel—was mentioned in regards to ongoing infringement of women’s rights.

Israel’s chief military prosecutor orders investigation into last summer’s strike at UN school: On July 30th, 20 Palestinians in and near a UN school in Gaza that was serving as a shelter were killed in what may be the most controversial Israeli strike of this past summer’s conflict between Hamas and Israel. After an initial inquiry by a special investigative branch led by Israeli General Noam Tibon, IDF chief prosecutor Dani Efroni concluded that there was strong basis to believe the strike was “not carried out according to the rules that bind the Israeli Defense Forces” and has ordered a formal investigation. Efroni has also concluded inquiries into the deaths of members of the Abu Aita and Abu Dahruj families, and found both strikes to have been lawful. So far, 120 claims have been filed regarding this summer’s Gaza war, and 65 have seen preliminary investigations. Of those, the chief military prosecutor has ordered criminal investigations into six (all of which are ongoing) and closed 17.

French authorities rule out foul play in death of Yasser Arafat: Since his death in 2004, suspicious activists have raised concerns that the former Palestinian leader died from something other than natural causes. The conclusion of French experts, coming as part of a judicial inquiry initiated at the request of Arafat’s widow, may finally help put to rest ongoing conspiracy theorizing and concerns over assassination.

Yemen’s beleaguered President Abed Rabbo Mansour Hadi, reportedly assisted by a convoy of diplomatic officials from Saudi Arabia, has fled his palace in Aden as Houthi rebels advance toward the city. This follows reports yesterday that Saudi Arabia has begun massing heavy military equipment including artillery along its border with Yemen, though sources in Saudi Arabia told Reuters that the move was defensive in nature. Yemen is a critical battleground in the US counterterrorism effort, as Yemen is home to Al Qaeda in the Arabian Peninsula (AQAP), one of the most active and dangerous Al Qaeda affiliates when it comes to attacks directly targeting the US homeland. Many analysts fear that outside military intervention in Yemen’s civil war will only serve to further destabilize the country and enable groups like AQAP and the Islamic State to proliferate. This afternoon, the White House issued a statement calling on the Houthi rebels to stop fomenting instability and violence and to cooperate with the UN-led process to resolve the difference among all the side.

The Egyptian Center for Economic and Social Rights on Tuesday issued a statement condemning torture in Egyptian prisons and calling on the Egyptian government to investigate incidents of torture and undertake inspections of prison facilities. The statement was signed by a number of human rights organizations including the National Community of Human Rights and Law, the Arabic Network for Human Rights Information, the Egyptian Initiative for Personal Rights, the Cairo Institute for Human Rights Studies, the Egyptian Center for Economic and Social Rights, the Nadim Center for the Management and Rehabilitation of Victims of Violence, the Hisham Mubarak Law Center, the Association for Freedom of Thought and Expression, and two other women’s rights organizations.

The son of former Iranian President Hashemi Rafsanjani has been convicted by Iran’s Revolutionary Court of security offenses and financial crimes. Because Mehdi Hashemi’s trial was held behind closed doors, the exact charges are unknown, but he was accused of inciting unrest after Iran’s disputed elections in 2009. According to the BBC, “Critics view Mehdi Hashemi’s sentence as an attempt by hardliners to damage his father’s reputation ahead of parliamentary elections next February.” As we reported previously, his father, former president Rafsanjani, was recently defeated by the ultraconservative Ayatollah Mohammad Yazdi in a vote to determine the next leader of Iran’s Assembly of Experts.

A new law to regulate public and private sector data sharing is currently being drafted in Dubai by the recently established Open Data Committee (ODC). The Khaleej Times reports, “With the exception of private, restricted and classified data and information that threatens national security, all data must be made available in public domains. The data will be made available in a centralised platform such as federal websites, or a decentralised manner like in the websites of various government entities, depending on the volume and size of data available.”

At a news conference today, a UN official called on the regional powers providing money and weapons to the rival factions in Libya to use their leverage to pressure the groups to come to a political agreement and end the fighting. Though he did not explicitly say which countries were supplying arms to the warring factions, Claudio Cordone, the head of the UN mission in Libya, told reporters, “Everybody knows that the key countries that have influence on Libya’s factions are on one side the (United Arab) Emirates and Egypt and on the other side Qatar and to some extent Turkey.”

Bowe Bergdahl Charged with Desertion

Wednesday, March 25, 2015 at 3:04 PM

That’s the news from the Washington Post this hour. Sgt. Bowe Bergdahl, the U.S. soldier who lived in Taliban captivity for five years and was ultimately released in exchange for five Taliban militants held in Guantanamo Bay, Cuba, has been charged with desertion (Art. 85, UCMJ) and misbehavior before the enemy (Art. 99, UCMJ).

Army officials will hold a press conference from Fort Bragg, North Carolina to provide an update on the case at 3:30 pm.

FBI 9/11 Commission Releases Report

Wednesday, March 25, 2015 at 2:38 PM

The FBI 9/11 Commission has released its congressionally mandated report on the “implementation of the recommendations related to the FBI that were proposed by the National Commission on Terrorist Attacks Upon the United States.” The report, principally authored by Edwin Meese, Tim Roemer, and Bruce Hoffman, issued three key findings:

  • The FBI has made measurable progress over the past decade in developing end-to-end intelligence capabilities and in significantly improving information sharing and collaboration with key partners at home and abroad. This has undoubtedly contributed to protecting the Homeland against another catastrophic terrorist attack. But progress in building key intelligence programs, analysis and Human Intelligence (HUMINT) collection in particular, lag behind marked advances in law enforcement capabilities. The imbalance needs urgently to be addressed to meet growing and increasingly complex national security threats, including from adaptive and increasnigly tech-savvy terrorists, more brazen computer hackers, and more technically capable, global cyber syndicates.
  • The FBI’s reform efforts have been impeded–but never halted–by early confusion with regard to the Department of Justice (DOJ) and Director of National Intelligence (DNI) guidance on intelligence activities, by the uneven commitment of mid-level leadership to intelligence-focused transformation, by a one-year budget process out of sync with the five-year cycle of the major intelligence agencies, by an initial cultural clash between seasoned special agents and a vastly expanded cadre of inexperienced analysts, by conflicting structural recommendation from the 9/11 and weapons of mass destruction (WMD) commissions, and by the negative impact of sequestration on multiple reform initiatives.
  • The FBI requires a five-year, top-down strategic plan to provide the resources needed to upgrade its support services–including information technology (IT), procurement, contracting, and security–and to achieve its growing mission as a global, intelligence-driven investigative service. The plan must enable the professionalization of FBI analysis, the improvement of HUMINT capabilities, a more focused and long-term attention to the Legal Attaches (LEGAT) program, the recognition of science and technology (S&T) as a core competency for future investment, and closer relations with Congressional committees of jurisdiction to ensure that the Bureau has both the state-of-the-art capabilities to counter increasingly dangerous threats and the effective internal safeguards to protect civil liberties.

Read the full report here. The New York Times also carries the story.

Today’s Headlines and Commentary

By and
Wednesday, March 25, 2015 at 1:29 PM

The forever war just got a little bit longer.

Yesterday, President Obama announced that he will slow the rate of withdrawal of U.S. troops from Afghanistan. The Wall Street Journal explains that, while President Obama had previously planned to have just 5,600 troops in the country by the end of 2015, his new plan will leave 9,800 U.S. troops there through the end of this year. However, the President maintained that this shift does not alter his plan to only have 1,000 troops in the country when he leaves office in 2017.

This follows a request from Afghan President Ashraf Ghani and reflects growing fears about stability in the country. In Afghanistan yesterday, gunmen killed at least 12 people on a highway west of Kabul, the Wall Street Journal reports. Although the attack took place in an area of Taliban influence, the Taliban denied involvement in the attack.

The fight also continues across the Durand Line: a day after a U.S. drone strike killed 13 militants affiliated with the Pakistani Taliban, a Pakistani missile strike killed 30 militants from Lashkar-e-Islam, a group that recently aligned itself with the Pakistani Taliban. Reuters has more.

In what has also been called a monumental counterterrorism setback, Houthi rebels in Yemen are now advancing toward Aden, the southern city where ousted President Abd-Rabbu Mansour Hadi had been organizing resistance to the rebels. The New York Times reports that the Houthi forces, who are bolstered not only by Iran but also by Yemeni government forces loyal to former ruler Ali Abdullah Saleh, mounted an assault on the Al Anad air force base north of Aden. Houthi rebels seized the base, the Wall Street Journal reports, and then demanded the surrender of President Hadi while issuing a bounty for his capture. The capture of the base puts the rebels just 25 miles from Aden.

Reuters notes that residents of Aden are preparing for battle, with public employees heading home and armed men patrolling the streets. But President Hadi’s whereabouts are unknown, the Associated Press adds. He fled the presidential palace in Aden soon after the Houthis announced the capture of the Al Anad base, and hours later airstrikes began targeting the forces still guarding the palace. Reuters reports that, according to local residents, the rebels are now poised to take over the southern port of Aden.

Dozens of Yemenis have already been killed in fighting, according to Agence France-Presse, as the latest advance appears to hasten the country’s descent into civil war. Saudi Arabia, which views the Houthi uprising as the latest in a series of encroachments by Shiite Iran, is reportedly amassing heavy weaponry near its border with Yemen in preparation for further fighting, Reuters notes.

From a brewing civil war to an unending one: after four days of fighting, Syrian rebels succeeded in expelling pro-government forces from Busra Sham, a historic city near the Jordanian border. The AP explains that the assault on the southern town, which had been in pro-government hands for the duration of the Syrian civil war, reportedly included 10,000 rebels from various groups. Syrian rebels are also moving on a government-held city in northern Syria. The AP reports that rebels began shelling the outskirts of Idlib last night., while, according to activists, Syrian government helicopters attacked a nearby village with chlorine gas. Last week, according to opposition activists, the government also used poison gas in an attack on a nearby settlement.

Now that the assault by Iraqi forces and Shiite militias on Tikrit has stalled, the United States has begun sharing aerial intelligence on Tikrit with Iraq. The Wall Street Journal notes that, while the United States is still officially not working with the Iranian-backed militias, the information provided to the Iraqi forces will certainly be shared with those militias. But officials hope that the failure of the militia-led offensive to fully liberate Tikrit will strengthen the U.S.’s hand by forcing Iraq to request U.S. assistance rather than depend on Iranian-backed militias.

That hope may soon be borne out in the form of U.S. airstrikes on Tikrit. Earlier today, Iraqi President Fouad Massoum said that the U.S.-led coalition is expected to start carrying out strikes on ISIS positions in Tikrit soon, according to Reuters. Yesterday, U.S. officials said that the Obama administration is considering beginning airstrikes possibly as early as in the next several days, AFP notes.

Al Jazeera reveals that, after years of helping sustain the Assad regime in Syria, Hezbollah is planning a major offensive against ISIS and the al Nusra Front along Lebanon’s eastern border with Syria. Hezbollah previously conducted a similar assault in the region that forced the Sunni militias to retreat. The goal this time, according to one Hezbollah militant, is elimination: “No one is leaving alive. There will be no deals. Our people have made the decision to wipe them out completely.”

Canada will continue its role in the U.S.-led coalition fighting the militant group. Earlier reports this week suggested that Canada was soon expected to announce an extension of its mission against ISIS. And yesterday, Canadian Prime Minister Stephen Harper did just that, saying the Canadian mission would continue for another year and include airstrikes in Syria. The Wall Street Journal has more.

Australia is also taking action against the militant group, but this time, they’re working to seal their own borders. The Wall Street Journal reports that Australian counterterrorism forces have prevented 200 people suspected of supporting militant groups from leaving the country to join the group.

And while ISIS has recently taken to doxxing U.S. military members, they are facing pressure in the cyber arena too. The Times details efforts by cyber-vigilantes to combat the dissemination of ISIS propaganda online. The vigilantes, including some members of hacking groups like Anonymous, attempt to spam Twitter accounts of suspected ISIS supporters and report them to Twitter, which can then ban the account. While it remains unclear how effective this vigilantism is, a collection of the hacking groups recently posted a list of 9,200 Twitter accounts that have been purportedly shut down due to vigilante efforts.

Despite the variety of forces targeting ISIS, the group continues its heinous tactics. The Daily Beast reveals that ISIS is threatening to burn 21 Kurdish men alive during the Kurdish holiday of Newroz in an attempt to sap support for the Kurdish campaign against the militant group. The article notes, however, that the ploy may have backfired.

In Sirte, Libya, ISIS-affiliated militants killed 5 members of a group that backs the government ruling Tripoli in what appears to have been a suicide bombing, Reuters reports. ISIS’s Libyan affiliate also claims to have played a role in a series of suicide bombings in the eastern city of Benghazi that killed 12 people. The AP has more.

As military forces mount pressure on the group, Boko Haram has responded with even more brutality. Reuters reports that the militant group has kidnapped more than 400 women and children fleeing from the border town of Damasak.

With the deadline for a preliminary agreement on the Iranian nuclear deal approaching, Iran appears to be backing away from any deal that contains a formal framework, and is instead pressing for a general political agreement. The Times describes how U.S. negotiators, pressured to nail down specifics by a hostile political environment at home, are struggling to reach a substantive agreement.

But Iran has offered one specific provision it demands be included in any nuclear deal: the complete lifting of all sanctions against the country. Reuters reveals that both Iranian Foreign Minister Mohammad Javad Zarif and Iranian Supreme Leader Ayatollah Ali Khamenei have recently insisted on such a provision, though western negotiators reject that demand.

In the face of revelations yesterday that Israel has spied on the nuclear negotiations and has even tried to use the information to turn U.S. politicians against an Iran deal, Israel maintained its innocence, the Times reports.

The disclosures came as the Obama administration continued its pointed criticism of newly re-elected Israeli Prime Minister Benjamin Netanyahu. President Obama said that, after Prime Minister Netanyahu’s last-ditch lurch to the right before last week’s election, the prospects of peace between Israel and Palestine appear “very dim,” the Washington Post reports. He added,”What we can’t do is pretend there’s a possibility of something that’s not there …For the sake of our own credibility, I guess we have to be honest about this.”

But the Times notes that the harsh criticism levied at Netanyahu risks increasing support for the prime minister, especially because some Israeli analysts have characterized the criticism as part of a secret, long-planned move away from protecting Israel in international fora. At the same time, the Israeli ambassador to the United States, Ron Dermer, is wining and dining Democratic politicians in Washington in an attempt to convince them that the recent blow-up in U.S.-Israeli relations will soon pass without serious damage. But, the Times adds, he is still pressing hard to turn members of Congress against any nuclear deal with Iran.

In the face of intense controversy in the United States, Prime Minister Netanyahu will reportedly receive permission from the Israeli President to form a new Israeli government. Reuters reports that the cabinet is likely to lean heavily to the right.

The complexities of the shadow conflict in Ukraine continue to vex policymakers. This time, Reuters brings news of a far-right pro-Ukrainian group, called the “Azov battalion,” that is preparing to defend against an attack from pro-Russian rebels in the city of Mariupol. The militia is known for its ultra-nationalist political agenda, which propagates slogans of white supremacy, racial purity, and the need for an authoritarian power, all under the banner of a black swastika on a yellow background. As the ceasefire tentatively holds, politicians have began to ask the uncomfortable question: what role with Azov play when the conflict ends?

Who knocked North Korea’s Internet offline following the Sony cyberattack? As the story unfolds, it is looking more and more likely that rogue vigilantes were behind the assault. While the United States was actively attacking the Hermit Kingdom’s servers just before the blackout, U.S. officials have said they were not responsible for the outage. And, Shane Harris notes that by bringing down the network, “there was no guarantee that the NSA would still be able to spy on all the same targets when it came back up,” making it unlikely the government knocked out the network.

The Pentagon will not have to divulge the intended method of execution for accused mastermind of the bombing of the USS Cole, Abd al Rahim al Nashiri. Prosecutors argued that such a request was premature because al Nashiri has not been convicted nor has he received a sentence. The Miami Herald notes that the military carried out its last execution in 1961 when it hanged an Army private for rape and attempted murder of a child.

In more Guantanamo news, the new Uruguayan government will no longer accept prisoners from the detention facility after opinion polls showed most Uruguayans were opposed to the transfers. BBC has more.

In Newsweek, Sami Yousafzai tells us how Taliban leaders are living a life of  luxury in Qatar.

Yesterday, the House Intelligence Committee introduced the Protecting Cyber Networks Act, a bipartisan bill that will grant legal immunity to firms who share cyberthreat data with the government. The Senate Intelligence Committee and the House Homeland Security Committee have both introduced their own versions of similar bills. The Post has a breakdown of the differences between the three.

Parting shot: The military’s new robotic “ghost ship”–an autonomous sub-hunting vessel–has moved one step closer to production, proving it can tail a sub without crashing into rocks, shoals, or other surface vessels.

ICYMI: Yesterday, on Lawfare

This week’s Steptoe Cyberlaw Podcast features an interview with Richard Bejtlich, the Chief Security Strategist at FireEye and a Fellow at Brookings.

Lawfare published its second of four excerpts from Jessica Stern and J.M. Berger’s new book, ISIS: The State of Terror.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.


Who’s Afraid of the Iran Nuclear Agreement Review Act of 2015?

Wednesday, March 25, 2015 at 11:47 AM

Last Friday The Hill reported that Senator Corker believes he “will have a veto-proof majority” to enact the “Iran Nuclear Agreement Review Act of 2015” (INARA).  Below is my analysis of the Bill.  Bottom line: The Bill is simply designed to permit Congress to look closely at the Iran deal before President Obama exercises any statutory authority to lift the sanctions that Congress put into place, and to keep Congress informed about Iran’s behavior related to congressional sanctions.  The President won’t like the close scrutiny that this Bill contemplates, and he certainly won’t like it if Congress acts pursuant to the Bill to limit his discretion to lift sanctions.  But I don’t think the Bill makes any unreasonable demand or possesses any constitutional infirmity.  Reading the Bill carefully has caused me to modify somewhat my earlier reactions to White House Chief of Staff Denis McDonough’s letter to Senator Corker.

Background. Read more »

ISIS and Sexual Slavery

By and
Wednesday, March 25, 2015 at 7:00 AM

Editor’s Note: This is the third of four excerpts from the new book, ISIS: The State of Terror, by Jessica Stern and J.M. Berger. In case you missed them, here are Part I, and Part II.

Slavery was abolished in most countries by the end of the nineteenth century, although it is still practiced in some countries, illegally. In a report issued in early October, the Office of the UN High Commissioner for Human Rights and the UN Assistance Mission for Iraq (UNAMI) reported that hundreds of women and girls were abducted from Yazidi and Christian villages in August 2014.

By the end of August, UN officials reported that some 2,500 civilians from these villages had been abducted and held in a prison. Teenage children, both males and females, were sexually assaulted, according to villagers who managed to speak with the UN officials. Groups of children were taken away. Women and children who refused to convert to Islam were sold as sex slaves or given to fighters. Married women who agreed to convert were told that Islamic law did not recognize their previous marriages. They were thus given to ISIS fighters to marry, as were the single women who agreed to convert.

The Yazidis are a mostly Kurdish speaking population whose syncretic religion pulls from both Islam and Christianity. ISIS views the Yazidis as devil worshippers. The Yazidis and other religious-minority groups are not “people of the book,” and are therefore required to convert or die, according to ISIS’s interpretation of Shariah law.

Matthew Barber, a scholar of Yazidi history at the University of Chicago estimates that as many as 7,000 women were taken captive in August 2014. According to ISIS, the practice of forcing the Yazidis and other religious minorities into sexual slavery is a way to prevent the sin of premarital sex or adultery, as well as a sign that the Final Battle will soon occur. In the fourth issue of Dabiq, an article entitled “The Revival of Slavery Before the Hour” explains that polytheist and pagan women can and should be enslaved. Indeed, their enslavement is one of the “signs of the hour as well as one of the causes of al Malhalah al Kubra,” the Final Battle that will take place in Dabiq. Further, the article says, “a number of contemporary scholars have mentioned that the desertion of slavery had led to an increase in fa¯hishah (sexual sins such as adultery or fornication), because the shar’ı¯a alternative to marriage is not available, so a man who cannot afford marriage to a free woman finds himself surrounded by temptation towards sin. . . . May Allah bless this Islamic State with the revival of further aspects of the religion occurring at its hands.”

Below are some of ISIS’s answers about its theological justifications for sexual slaves and how to keep them:

“There is no dispute among the scholars that it is permissible to capture unbelieving women [who are characterized by] original unbelief [kufr asli], such as the kitabiyat [women from among the People of the Book, i.e., Jews and Christians] and polytheists. However, [the scholars] are disputed over [the issue of] capturing apostate women. The consensus leans towards forbidding it, though some people of knowledge think it permissible. We [ISIS] lean towards accepting the consensus. . . .”

“It is permissible to have sexual intercourse with the female captive. Allah the almighty said: ‘[Successful are the believers] who guard their chastity, except from their wives or (the captives and slaves) that their right hands possess, for then they are free from blame [Koran 23:5–6].’ . . .”

“If she is a virgin, he [her master] can have intercourse with her immediately after taking possession of her. However, if she isn’t, her uterus must be purified [first]. . . .”

“It is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property, which can be disposed of as long as that doesn’t cause [the Muslim ummah] any harm or damage.”

“It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however if she is not fit for intercourse, then it is enough to enjoy her without intercourse.”

According to esteemed political psychologist Vamik Volkan, collective historical trauma can predispose a society toward violence, identity politics (in the form of hatred of an out-group), and the rise of paranoid leadership and ideologies. The memories of this collective trauma become part of a shared myth, and what Volkan calls a “chosen trauma.” Volkan also sees a role for societal humiliation and cultural group psychology in the Middle East as contributors to paths of mass radicalization.

Within Iraq and Syria, ISIS has a rich vein of collective historical traumas on which to draw in consolidating its position and certainly the outcomes Volkan describes (violence, paranoia, and identity politics) correspond closely to the reality of ISIS today. Such traumas can lead to the selection of values, sacred or otherwise, that justify “purification” of the world. Once such paranoid leaders arise, they can neutralize “individual moral constraints against personal perpetration of suffering, torturing and murder,” psychiatrist Otto Kernberg explains.

In addition to whatever benefits ISIS can extract from the traumas suffered by Iraqis and Syrians (some of which were instigated by ISIS and its predecessors), it is also inflicting an ongoing collective trauma of nearly apocalyptic proportions on those same populations. The longer that ISIS rules its domain, the deeper and more catastrophic those traumas will become. While ISIS may not articulate its reasons in this manner, we believe it is deliberately engaged in a process of blunting empathy, attracting individuals already inclined toward violence, frightening victims into compliance, and projecting this activity out to the wider world. The long-term effects of its calculated brutality are likely to be severe, with higher rates of various forms of PTSD, increased rates of secondary psychopathy, and, sadly, still more violence.

Jessica Stern is a lecturer on terrorism at Harvard University, and a member of Hoover Institution Task Force on National Security and law. J.M. Berger is a non-resident scholar at the Brookings Institution.

Steptoe Cyberlaw Podcast, Episode #59: An Interview with Richard Bejtlich

Tuesday, March 24, 2015 at 4:03 PM

Podcast 59 -1Richard Bejtlich is our guest for episode 59 of the Cyberlaw Podcast. Richard is the Chief Security Strategist at FireEye, an adviser to Threat Stack, Sqrrl, and Critical Stack, and a fellow at Brookings. We explore the significance of China’s recently publicized acknowledgment that it has a cyberwar strategy, FireEye’s disclosure of a gang using hacking to support insider trading, and NSA director Rogers’s recent statement that the US may need to use its offensive cyber capabilities in ways that will deter cyberattacks.

In the news roundup, class action defense litigator Jennifer Quinn-Barabanov explains why major automakers are facing cybersecurity lawsuits now, before car-hacking has caused any identifiable damage.  I explain how to keep your aging car and swap out its twelve-year-old car radio for a cool new Bluetooth enabled sound system.  Michael Vatis disassembles the “$10 million” Target settlement and casts doubt on how much victims will recover.

Michael also covers the Podcast 59 -2approval by a Judicial Conference advisory committee of a rule allowing warrants to extend past judicial district lines, explaining why it may not be such a big deal.  Maury Shenk, former head of Steptoe’s London office and now a lawyer and a private equity investor and adviser, jumps in to discuss the Chinese cyberwar strategy document as well as China’s effort to exclude US technology companies from its market.

As always, send your questions and suggestions for interview candidates to [email protected] or leave a message at +1 202 862 5785.

Today’s Headlines and Commentary

Tuesday, March 24, 2015 at 11:50 AM

Afghan President Ashraf Ghani is in Washington today to meet with President Obama and American military and diplomatic leaders. The New York Times examines the White House’s relationship with both the Afghan leader and his predecessor. According to War on the Rocks, “Ghani is in many ways the anti-Karzai. As someone who was educated in the West, worked on development issues at the World Bank, and served as the minister of finance in the Afghan transitional government from 2002-2004, he represents everything Karzai is not – a practical Western technocrat with deep ties to the United States and international institutions.”

Indeed, Ghani began his trip by thanking the U.S. for its support of his country. At the Pentagon, he paid “tribute” to the American military personnel, who served in Afghanistan, saying, “Each one of you has left a legacy, but I also understand that Afghanistan has marked you… thank you.” He noted, “You built schools, you built dams, you build roads, and while the physical infrastructure is great and it’s changed lives, it is the attitude that you brought with it. An attitude of caring, and attitude of discipline and sacrifice, and the Afghan people, but particularly the Afghan security forces honor that attitude.” Defense One shares more on the Ghani’s statements.

Ghani is using such praise and gratitude to push for increased American security and development support for his country. This plan appears to be working: Yesterday, U.S. officials vowed “to seek billions of dollars in new support for Afghan security forces.” Furthermore, President Obama is expected to announce a revised troop withdrawal plan today. Per the Wall Street Journal, the new proposal would leave American military forces in Afghanistan for longer than originally outlined.

Ghani and Afghan chief executive Abdullah Abdullah have an op-ed in the Washington Post, covering their country’s partnership with the U.S. and efforts toward “transformation.”

The Associated Press informs us that hundreds of protesters in Kabul yesterday sought justice “for a woman beaten to death … by a mob over false allegations she had burned a Quran. The mob of men beat the woman, a religious scholar named Farkhunda, 27, threw her body off a roof, ran over it with a car, set it on fire and threw it into the Kabul River.”

An American drone strike in Afghanistan today killed nine members of the Pakistani Taliban. Reuters reports the story.

Meanwhile, the Islamic State appears to be extending its reach to Afghanistan. CNN shares an exclusive report on the group’s recruitment efforts there.

The AP informs us that today, Canadian Prime Minister Stephen Harper is expected to announce a one-year extension of his country’s efforts to fight the Islamic State. Since September, Canadian troops have been training Kurdish forces in Iraq. During an announcement in Parliament, however, Prime Minister Harper will announce an extension of this mission “to include air strikes on targets in Syria.”

After battling for four weeks to take complete control of Tikrit, Iraqi military leaders have decided on a new course of action: They will seal off the part of the city still held by Islamic State militants and consolidate their forces in preparation for securing Anbar and Ninevah provinces. The Times details the plan.

The Wall Street Journal informs us that the Islamic State is “skimming tens of millions of dollars a month from salaries paid to Iraqi government employees in occupied areas such as Mosul.” The practice has put U.S. officials in an uncomfortable position: Should it encourage Baghdad to stop paying these employees, leaving them without any income or means of subsistence, or allow the Islamic State to continue funding operations using Iraqi government funds?

Over the weekend, the Islamic State Hacking Division shared a video on YouTube, which provided the names, pictures, and alleged addresses of over a hundred American military personnel. The group urged its followers to attack the individuals listed, saying “Now we have made it easy for you by giving you addresses, all you need to do is take the final step, so what are you waiting for?” Defense One describes the practice, known as doxxing, which involves “revealing personal, private, or identifying information about people online,” and notes that it has actually been around for a while.

The Times examines how Abdi Nur, a 20-year-old man from Minneapolis, became a radicalized foreign fighter for the Islamic State. According to the Times, Nur’s rather prolific Twitter feed evidences an obvious-in-hindsight progression from community college to the Syrian battlefield. Meanwhile, given the lack of “pattern among recruits,” American law enforcement personnel still struggle “to identify people attracted to the terror group in time to intervene.”

The Post highlights the Twitter campaign being waged by female Islamic State recruits, whose “propaganda messages… often have a positive theme, showing the benefits and normality of day-to-day life within the Islamic State’s self-proclaimed caliphate.”

The Wall Street Journal reports that Israel has been spying on “the closed-door” P5+1 nuclear negotiations with Iran. According to Obama administration officials, “The espionage didn’t upset the White House as much as Israel’s sharing of inside information with U.S. lawmakers and others to drain support from a high-stakes deal intended to limit Iran’s nuclear program.” The episode has allegedly further weakened already strained ties between President Obama and Israeli Prime MInister Benjamin Netanyahu.

Lee Kuan Yew, the “founder of modern Singapore,” died yesterday. The Post examines the legacy of the man, who served as the country’s first Prime Minister and held office for over thirty years.

Former U.S. Secretary of State Henry Kissinger shares an op-ed in the Post, honoring and eulogizing Lee.

Jeff Robbins, a former U.S. delegate to the U.N. Human Rights Council, has an op-ed in the Boston Herald, detailing the Kurdish people’s fight to establish an independent state.

Last week, the Defense Health Board released a report on ethical guidelines for American military medical personnel. The “new policy proposals [contained therein] advise the Pentagon against punishing doctors and nurses who choose to opt out of medical procedures if they believe the practices are unethical or immoral.” Vice News notes that, if enacted, this policy would allow U.S. military doctors and nurses to refuse to participate in Guantanamo Bay’s controversial force-feeding program without having to worry about being dishonorably discharged.

ICYMI: Yesterday, on Lawfare

Jack outlined U.S. engagement in economic espionage and shared two thoughts on it.

Jessica Stern and J.M. Berger shared the first of four excerpts from their recently released book, ISIS: The State of Terror. In this initial installation, they discussed some of the innovations that the Islamic State has brought to its administration of government.

Marko Milanovic analyzed recently published survey data from Amnesty International, focusing on how citizenship bias affects public perceptions of the acceptability of government surveillance of foreigners.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.

The Race to Caliphate

By and
Tuesday, March 24, 2015 at 7:00 AM

Editor’s Note: This is the second of four excerpts from the new book, ISIS: The State of Terror, by Jessica Stern and J.M. Berger. In case you missed it, here is Part I.

The quality of ISIS video releases fluctuated as the organization gained momentum, but overall, the group’s media team improved steadily over time, even as the quantity of its output increased. The growing focus on the packaging of the message corresponded to a new emphasis on its content. While ISIS made gains on the ground in Iraq, it was also expanding the definition of both the war and the organization itself. The media efforts fertilized the ground where ISIS would plant its next bold claim to religious authority: the declaration of the caliphate.

The precise composition of the ISIS media team was unknown (or more accurately, it was the subject of conflicting reports with uncertain sourcing), but some elements became clear over time. Many regional hubs where ISIS operated had their own media departments, including Raqqa and Deir Ez-zoor in Syria, and Diyala, Saladin, Mosul, and Kirkuk in Iraq. Their Twitter accounts routinely published photos, videos, and text updates about ISIS activities, creating a remarkably robust (if carefully manipulated) record of ISIS’s activities.

A number of Westerners were involved in the media project. In May 2014, ISIS debuted an outlet dedicated to disseminating material in English and European languages. The Al Hayat (Arabic for “Life”) Media Center ramped up at a critical time for ISIS, just weeks before the dramatic military offensive and caliphate proclamation that would put it on the front pages. Al Hayat translated ISIS’s Arabic propaganda into English, including The Clanging of the Swords Part 4, but it also produced original content that revealed the complexity of the organization’s media strategy.

In May and June, Al Hayat rolled out multiple English-language magazines, some of which recycled content from social media, and others that included original reporting from areas ISIS controlled. The stories included coverage of battles but also devoted many pages to ISIS’s efforts to govern, such as the execution of a “sorcerer” and religious training for imams. One issue spotlighted ISIS’s consumer protection bureau in Raqqa, which held merchants responsible for the quality of goods they sold. Read more »

The Power of Citizenship Bias

Monday, March 23, 2015 at 3:00 PM

Following up on my post from last week on the report of the Intelligence and Security Committee (ISC) of the UK Parliament, which inter alia recommended that British law for the first time introduce distinctions between citizens and non-citizens for the purpose of regulating electronic surveillance, I’d like to briefly comment on another relevant development. Amnesty International last week also published the results of a major public opinion poll conducted in 13 countries, in which 15,000 respondents were surveyed on a number of questions regarding surveillance. The upshot of the poll is that there is strong opposition to US mass surveillance programs in all of the countries surveyed, and this is also how Amnesty chose to present the results (Amnesty’s press release is available here; the full results are available here; an analytical piece by Chris Chambers, one of the researchers on the project, is available in The Guardian).

What I found most interesting about the poll are the responses regarding the question whether the permissibility of surveillance should depend on the citizenship of the target. As Chris Chambers explains:

Are people more tolerant of the government monitoring foreign nationals than its own citizens?

Yes. In all surveyed countries, more people were in favour of their government monitoring foreign nationals (45%) than citizens (26%). In some countries the rate of agreement for monitoring foreign nationals was more than double that of citizens. For instance, in Canada only 23% believed their government should monitor citizens compared with 48% for foreign nationals. In the US, 20% believed their government should monitor citizens compared with 50% for foreign nationals. These results suggest the presence of a social ingroup bias: surveillance is more acceptable when applied to “them” but not to “us”.graph 1

In every country, people were more tolerant of surveillance directed toward foreign nationals than toward citizens. Illustration: Chris Chambers


We can also look at this ingroup bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

graph 3

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers


We can also look at this in-group bias in a different way – by specifically counting the number of people who disagreed with government surveillance of citizens while at the same time agreeing with surveillance of foreign nationals. In most countries, fewer than 1 in 4 people showed such a bias, with Sweden showing the least favouritism toward citizens (approximately 1 in 9). However, the US stands apart as having the highest ingroup bias – nearly 1 in 3 US respondents believed their government should monitor foreign nationals while leaving citizens alone.

The US stood out as particularly prone to ingroup bias: favouring surveillance of foreign nationals over citizens. Illustration: Chris Chambers

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Today’s Headlines and Commentary

Monday, March 23, 2015 at 9:40 AM

American troops are evacuating Yemen. The AP reports that the evacuation came as Al Qaeda militants seized the southern city of al-Houta, near the American al-Annad air base, where around 100 American soldiers were stationed. The New York Times describes the evacuation as the “latest blow in the Obama administration’s counterterrorism campaign.” The Wall Street Journal also covers the developments in Yemen.

Meanwhile, the Washington Post reports, the winding down of American involvement in Afghanistan may move slower than originally anticipated by the Obama administration. The final end date—January 2017, President Obama’s last month in office—is not up for discussion, but the president is expected to announce that he plans to keep up to 5,000 more troops in Afghanistan for the next year than what he had previously planned.

A group associated with ISIS, the Islamic State Hacking Division, published a list that allegedly contains personal and contact information of American military members; the group also called for their beheadings. The group says it obtained the information by hacking U.S. military servers—a claim that the Pentagon has not yet confirmed. The Washington Times has the details.

CIA Director John Brennan has attributed some of the chaos and destabilization in Iraq to General Qassem Soleimani, the leader of Iran’s most elite military wing, the Quds Force. The AP explains that Brennan said on “Fox News Sunday” that the Iranian forces had interfered with the U.S. counterterrorism mission in Iraq, and that the U.S. did not build as close ties with the Shiite-led Iraqi government as a result.

Salon has an in-depth review of a book Jack featured least week, ISIS: The State of Terror. The article outlines the basic proposition of the book: that the U.S. offensive in Iraq directly led to the resurgence of extremism in the country and to the growth of ISIS.  Look for excerpts from the book—which was authored by Jessica Stern and J.M. Berger—this week on Lawfare. 

Though Prime Minister Benjamin Netanyahu has attempted to walk back his apparent denunciation of the idea of an independent Palestinian state, President Obama has publicly and strongly condemned Netanyahu’s campaign message. The Times explains that President Obama said in a statement that he had spoken with Netanyahu after the election and told him that his tactics would actively hurt the peace process between Israel and Palestine. The Times calls the public critique the beginning of a “public feud with the Israeli prime minister.”

Mohammed Umer Daudzai has penned an opinion piece for the Times, in which he argues that a true reconciliation between Afghanistan and Pakistan is unlikely, and that their “fundamental” difference will prove too much to overcome in any reconciliation process.

The Military Times reports that the U.S. Marines could lead the effort in defeating Boko Haram in Nigeria. According to a study commissioned by the U.S. military, the U.S. Marines are apparently well positioned to push back and potentially ultimately destroy Boko Haram, working alongside Nigeria’s neighboring countries. The fraught relationship between the U.S. and Nigerian governments, however, may present a roadblock to American involvement.

The Huffington Post features an edited excerpt Bruce’s new book, Data and Goliath, in which readers can learn how to protect themselves from digital surveillance.

Bruce’s tips are not an isolated phenomenon. According to a new Pew study, more than one third of Americans have changed their online habits in an attempt to protect themselves against government surveillance, and just under one fourth described those changes as significant. Digital Trends covers that story.

ICYMI: This Weekend, on Lawfare

Ingrid asked and answered an important question: does the Supreme Court follow the recommendation of the Solicitor General in foreign relations cases in which the Court has issued a call for the view of the Solicitor General (CVSG)?

In this week’s Foreign Policy Essay, Jennifer Williams and Daniel compare ISIS and Al Qaeda and ask which of the two groups is winning “the soul” of the jihadist movement.

Herb followed up on a post from earlier in the week, commenting on the “Nobody-But-Us” (NOBUS) view of the world.

In our most recent podcast episode, Cody interviews Major General Micahel Lehnert (Ret.), the first commander of the U.S. detention center at Guantanamo Bay, Cuba.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us onTwitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.


Smart Mobs, Ultraviolence, and Civil Society: ISIS Innovations

By and
Monday, March 23, 2015 at 8:49 AM

Editor’s Note: This is the first of four excerpts from the new book, ISIS: The State of Terror, by Jessica Stern and J.M. Berger.

Offline, ISIS has followed the model of a functional—if limited—government. Online, it has played a different game. It has amassed and empowered a “smart mob” of supporters—thousands of individuals who share its ideology and cheer its success, all the while organizing themselves into a powerful tool to deploy against the world, harassing ISIS’s enemies and enticing new recruits.The concept was defined by Howard Rheingold, a technologist who has written extensively about how virtual communities affect human behavior, in his 2002 book, Smart Mobs:

Smart mobs consist of people who are able to act in concert even if they don’t know each other. The people who make up smart mobs cooperate in ways never before possible because they carry devices that possess both communication and computing abilities. Their mobile devices connect them with other information devices in the environment as well as other people’s telephones.

The smart mob paradigm kicks in when a large group of people spontaneously begins to act in synchronized ways because of the density of connections in their technology-assisted social network, where it is possible to connect with more people at different levels of intimacy than allowed by simple physical proximity.

Although ISIS has methodically shaped and manipulated its social media networks, it has also benefited from this sort of self-organization. Small blended groups of ISIS members and supporters take jobs upon themselves, including translating communiqués and propaganda into multiple languages and crafting armies of Twitter “bots—scraps of code that mindlessly distribute the group’s content and amplify its reach. In some ways, it was the realization of the concept of leaderless jihad, except that activity that appeared spontaneous could often be traced back to the organization’s social media team, which in turn coordinated with its leadership.

At the same time as it was pioneering these approaches, back on the ground, ISIS was routing Iraqi government forces and seizing a significant swath of northern Iraq. It pushed its message out on social media with similar aggression.

By mid-2014, its messaging machine was well oiled and effective. The differentiation from Al Qaeda was sharp. Despite the occasional dud, the overall storytelling and production quality of ISIS video was often incredible, the likes of which had been rarely seen in propaganda of any kind, and certainly leaps and bounds ahead of its predecessor’s often-sophisticated attempts.

ISIS benefited from the constant, lethal pressure on Al Qaeda Central, which was forced to abandon its more ambitious media efforts in favor of sporadic talking-head releases. Ayman al Zawahiri was not a particularly strong orator to start with. His charms were not enhanced by a format that boiled down to him lecturing tediously while staring straight at a fixed camera for forty-five minutes.

But the change in content was even more striking. ISIS was offering something novel, dispensing with religious argumentation and generalized exhortation and emphasizing two seemingly disparate themes—ultraviolence and civil society. They were unexpectedly potent when combined and alternated. The ultraviolence served multiple purposes. In addition to intimidating its enemies on the ground (Iraqi troops who fled before the IS advance had reportedly been terrified by footage of mass execution of prisoners), ultraviolence sold well with the target demographic for foreign fighters—angry, maladjusted young men whose blood stirred at images of grisly beheadings and the crucifixion of so-called apostates.

But the emphasis on civil society, in videos and print productions, provided a valuable counterpoint and validation of the violence, offsetting its repulsion. ISIS would not shy away from whatever needed to be done, but its goal was to create a Muslim society with all the trappings—food aplenty, industry, banks, schools, health care, social services, pothole repair—even a nursing home with the insurgents’ unmistakable black flag draped over the walls.

The narrative tracks ultimately advanced the same message—come to the Islamic State and be part of something.

Throughout its long history, Al Qaeda had never put forward such an open invitation. Following the model of a secret society, Al Qaeda had created significant obstacles for would-be members, from the difficulty of even finding it to months of religious training that preceded battle. The ISIS message was exactly the opposite—you have a place here, if you want it, and we’ll put you to work on this exciting project just as soon as you show up (although in reality, some less radical recruits were quietly subjected to indoctrination anyway).

It was yet another lesson from Abu Bakr al Naji’s The Management of Savagery. The media campaign’s “specific target is to (motivate) crowds drawn from the masses to fly to the regions which we manage,” Al Naji wrote, as well as to demotivate or create apathy and inertia among who might oppose the establishment of the selfstyled Islamic State.

The vanguard was dead. The idea of a popular revolution had begun.

In the end, Al Qaeda’s failure was the ironic failure of all vanguard movements—an assumption that the masses, once awakened, will not require close supervision, specific guidance, and a vision that extends beyond fighting.

Al Qaeda’s vision is—often explicitly—nihilistic. ISIS, for all its barbarity, is both more pragmatic and more utopian. Hand in hand with its tremendous capacity for destruction, it also seeks to build.

Most vanguard extremist movements paradoxically believe that ordinary people are afflicted with deep ignorance, yet such movements also expect that once their eyes have been opened, the masses will instinctively know what to do next.

ISIS does not take the masses for granted; its chain of influence extends beyond the elite, beyond its strategists and loyal fighting force, out into the world. Its propaganda is not simply a call to arms, it is also a call for noncombatants, men and women alike, to build a nation-state alongside the warriors, with a role for engineers, doctors, filmmakers, sysadmins, and even traffic cops.

It’s the opening act on a brave new world. It’s too soon to know how the invitation to the masses will be received, or even if ISIS will last long enough to find out. But win or lose, extremism will likely never be the same again.

Jessica Stern is a lecturer on terrorism at Harvard University, and a member of Hoover Institution Task Force on National Security and law. J.M. Berger is a non-resident scholar at the Brookings Institution.



The Precise (and Narrow) Limits On U.S. Economic Espionage

Monday, March 23, 2015 at 7:09 AM

This Intercept story on New Zealand’s surveillance of candidates for director general of the World Trade Organization sparked a related conversation yesterday on twitter about the exact scope of U.S. economic espionage.  There is a lot of confusion about this, I think.  Here is the U.S. position as I understand it, followed by a few comments:

The United States engages in economic espionage and doesn’t deny it.  As former CIA Director Stansfield Turner stated in 1991, “as we increase emphasis on securing economic intelligence, . . . we will have to spy on the more developed countries—our allies and friends with whom we compete economically.”  Former CIA Director James Woolsey acknowledged in 2000 that the United States steals economic secrets from foreign firms and their governments “with espionage, with communications, with reconnaissance satellites.” Woolsey listed three “main areas” (sanctions, bribery, dual-use technologies) where the United States “target[s] foreign corporations and the government assistance to them.”  But is no reason to think these areas are exclusive.

The United States’ limits itself in one very narrow context.  After acknowledging that the United States engages in economic espionage, DNI Clapper said in 2013: “What we do not do . . . is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of – or give intelligence we collect to – US companies to enhance their international competitiveness or increase their bottom line.”  This very carefully worded statement is the only admitted  U.S. limit on economic espionage.  Note what it permits.  It permits economic espionage of foreign governments and institutions.  It even permits theft of trade secrets from foreign firms.   It just doesn’t allow such theft “on behalf of” U.S. firms, and it doesn’t permit the government to give the stolen information to U.S. firms.  Even this limitation is qualified yet further.  The USG says it does not steal trade secrets on behalf of U.S. firms (or give stolen trade secrets to U.S. firms) in order “to enhance their international competitiveness or increase their bottom line.”  But it would be consistent with this statement for the USG to steal trade secrets on behalf of U.S. firms, or to give the stolen trade secrets to U.S. firms, for some other purpose.

Even though the United States does not steal trade secrets to give to U.S. firms to enhance their competitiveness, its economic espionage benefits U.S. firms in the aggregate.  A 1996 NRC Report (p.99) says: “According to the National Security Agency (NSA), the economic benefits of SIGINT contributions to U.S. industry taken as a whole have totaled tens of billions of dollars over the last several years.”  And that was in 1996.         

Two comments:

First, it should not be surprising that the United States engages in economic espionage.  Nor should it be surprising that New Zealand, or the United States, would spy on candidates for Director General of the WTO.  I am confident that many nations tried to get intelligence about those candidates, for the Director General plays a consequential role in global trade and economic policy.  Gathering intelligence from public actors about global economic policy is a very old aim of national intelligence.

Second, Glenn Greenwald asks on Twitter: “why is giving to corps radically diff than advantage in econ negotiations?”  I interpret this question to mean: Why is it acceptable to steal economic secrets to gain advantage in trade negotiations or in global economic affairs more generally, but not acceptable to steal economic secrets from foreign firms to aid particular U.S. firms?  I don’t know the answer for sure.  But I think the answer is simply that the narrow carve-out best serves U.S. interests.

As Woolsey noted:

American industry is technologically the world leader.  It is not universally true.  There are some areas of technology where American industry is behind those companies in other countries, but by and large, American companies have no need nor interest in stealing foreign technology in order to stay ahead.

On the whole the United States doesn’t gain much from stealing trade secrets from foreign firms to give to U.S. firms.  But the United States and its firms have a lot to lose when other nations engage in this discrete form of economic espionage against U.S. firms.  Thus the best rule for the United States is one that tries to limit this form of economic espionage.  However, economic espionage outside this narrow context – not in order to benefit discrete U.S. firms, but rather to advantage the United States economy and U.S. firms generally on the global scale (in trade negotiations, e.g.) – serves U.S. interests, especially since the USG has the most powerful capabilities in this context.  And so the USG thinks this form of economic espionage is acceptable.

It is not surprising that the United States would seek to craft a nuanced rule about economic espionage that serves its interests.  This happens all the time in international affairs.  Nor is it surprising that so many nations are unimpressed with the United States’ attempt to limit the one form of economic espionage (theft of foreign corporate trade secrets to give to a local firm) that so obviously harms U.S. interests, especially since the United States engages in other forms of economic espionage.