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And Mattis Makes Four—Senior policymakers in a Trump administration who would take a hardline on Russia

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Trump’s selection for Defense Secretary, retired General James N. Mattis, is the fourth in the line of senior policymakers who would presumably take a very different approach to Russia than the one articulated by the President-elect and by retired Lt. Gen. Michael Flynn during the campaign season. Along with Mattis, two others are Vice President-elect Mike Pence and nominee for CIA Director, Mike Pompeo. The fourth is Trump’s pick for Deputy National Security Advisor, KT McFarland (see my earlier post, KT McFarland’s Hardline on Russia with Nuance). Mitt Romney or retired General David Petraeus as Secretary of State would make five.

The New York Times reports: “General Mattis believes, for instance, that Mr. Trump’s conciliatory statements toward Russia are ill informed. General Mattis views with alarm Moscow’s expansionist or bellicose policies in Syria, Ukraine and the Baltics.”

Yochi Dreazen at Vox writes:

Mattis is also a Russia hawk of sorts — a position that would potentially leave him at odds with the president-elect.

Mattis, echoing the assessments of most of the Pentagon’s top brass, has a sharply different assessment of Putin, whom he sees as a clear threat to both the US and many of Washington’s closest European allies.
According to an article by the US Naval Institute, Mattis used a speech to a conservative think tank last May to warn that Russia’s annexation of Crimea and continued meddling in eastern Ukraine was a “severe” and “serious” threat that was being underestimated by the Obama administration.
Putin, Mattis concluded, was trying to “break NATO apart.”

Former US Ambassador to Russia, Michael McFaul tweeted:

It is obviously unclear how Trump administration policies will play out as we turn from campaign rhetoric to governing. At least with the announcement of Gen. Mattis as our next likely SecDef, NATO allies can breathe a little easier this morning.

[Editor’s Note: To see more on this topic, read Rolf Mowatt-Larssen’s piece, The Strategic Balance: A New US-Russian Zero Sum Game.]

 

 

A Word to a Newfound Ally

As a longtime (and long-exasperated) reader of Lawfare, I’ve been heartened to see the site’s recent editorial turn, in response to current events, toward newly appreciating the dangers inherent in a too-powerful executive branch. In particular, the site’s chief, Benjamin Wittes, has been remarkably eloquent in calling out the coming risks of the Trump Administration. My protracted feud (in my own head) with Wittes has cooled of late, with columns like this one offering common ground for the hard years ahead. I may hold my grudges against a man who once blamed the rising tide of terrorism not on the “barbarities of any groups” but on the “indulgence of the self-appointed guardians of IHL, human rights law, and international law more generally,” a “soft-law world” that is “just not quite as horrified by Hamas as that group’s behavior and the relevant IHL conventions would lead one to expect.” But here’s to new friends in new foxholes.

Yesterday, Wittes was at his refreshing best again, aping Brendan Nyhan and defending “libertarian panic” (and its more robust cousin, “Trump Panic”) as a rational response to Trump’s election. Hear, hear. It’s frankly exciting to have a writer like Wittes marshaling these kinds of arguments, and it bodes well for the heightened state of vigilance that our common work will soon require. But in explaining his intense distrust of the erratic personality about to inherit the awesome power of the presidency, Wittes shows that his old animosities still run deep. To wit, this unwarranted low blow:   Continue Reading »

Five Recommendations to Pacify Relations Between the ICC and Africa

FILE - In this file photo dated Thursday, Jan. 28, 2016, a view of court room one where former Ivory Coast president Laurent Gbagbo wait the start of the trial at the new premises of the International Criminal Court in The Hague, Netherlands. The court has long has been accused by some African leaders of bias against their continent, and now three African member states; Burundi, South Africa and Gambia, have announced their departure from the court, although the court's chief prosecutor, Fatou Bensouda, herself a Gambian, was defiant this week and insisted — as do other observers — that the court will weather the crisis. (AP Photo/Peter Dejong, FILE)

Three African countries – South Africa, Burundi and Gambia — recently started the process to leave the Rome Statute, the treaty that established the International Criminal Court, and others could follow suite. This is unprecedented in the history of international criminal justice, but the risk of a domino effect is low, as withdrawing from the ICC is costly, and not only in terms of image as it potentially involves retaliatory measures (such as cutbacks in EU or US development aid). At the recent Assembly of States Parties, even critical states like Kenya and Uganda, which have been behind the African Union’s backlash against the court for years, were either silent or supportive. Even though the current hemorrhage does not threaten the Court, it does confirm it has a serious image problem at the least.

For more on this topic, Just Security already has an excellent series of contributions. In the last issue of International Affairs, Chatham House’s peer-reviewed academic journal, I also published an article on “The African Union and the International Criminal Court: counteracting the crisis.” I will summarize and build on that article here, focusing on the recommendations I propose to repair relations.  Continue Reading »

The Early Edition: December 2, 2016

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

DONALD TRUMP’S FOREIGN POLICY

Retired Marine Gen. James N. Mattis has been picked to be secretary of defense by President-elect Donald Trump, Dan Lamothe reports at the Washington Post.

Sen. Kirsten Gillibrand (D-N.Y.) was the first lawmaker to oppose waiving the prohibition on former military officers leading the Pentagon within seven years of retirement, a congressional waiver necessary to allow Mattis to take up the post. [The Hill’s Harper Neidig]

Congress will approve legislation that delays the relocation of a NATO intelligence center possibly providing Trump with the leverage to compel the alliance to expand its counterterrorism work, the President-elect having said he wants NATO to focus more on fighting terrorism, Julian E. Barnes reports at the Wall Street Journal.

Trump’s unfiltered exchanges with foreign leaders have prompted the White House to urge Donald Trump to seek the State Department’s expertise in dealing with foreign leaders, Mark Landler reports at the New York Times.

“You thought Trump’s conversation with the president of Pakistan was unbelievable?” Readouts of Trump’s conversations with Chinese Premier Xi Jinping, the Queen of England Elizabeth II and President Hery Rajaonarimampianina of Madagascar have been provided by Daniel W. Drezner at the Washington Post by way of illustration.

China is watching US politics “very closely” following the election of Donald Trump as President, Chinese President Xi Jinping told former US secretary of state Henry Kissinger today. [Reuters]

Plans for high-tech weapons systems aimed at offsetting Russian and Chinese military improvements are on hold until they are approved by the new Trump administration – but will Trump approve them? David Ignatius writes at the Washington Post.

Will Trump relocate the US Embassy in Israel from Tel Aviv to Jerusalem as he promised? Ponders William Booth at the Washington Post, after President Obama signed – as he does every six months, and as has every president since the Jerusalem Embassy Act of 1995 was passed – a waiver ordering the Embassy to remain in Tel Aviv, considered necessary to protect the national security interests of the US.

Trump will have to deal with North Korea in his first term in office, which will involve either a messy confrontation with an unpredictable and incendiary regime, or a rogue nation developing the power to destroy large areas of Los Angeles with nuclear weapons, or both, observes Michael Gerson at the Washington Post.

Trump will also have to contend with the Iran nuclear deal, but the nuclear deal is just the “top of the iceberg” when it comes to Iran, explains Gen. Michael Hayden writing at the Hill.

The era of Western dominance led by a preeminent America is over, leaving the field to rising authoritarians Russia, China and Iran, and Donald Trump will continue the pullback, writes Charles Krauthammer at the Washington Post.

No one can stop President Trump from using nuclear weapons, is the bleak message from Alex Wellerstein writing at the Washington Post, explaining that the entire system is set up so that the president, and only the president, can decide when to press the button.

SYRIA

A deal under negotiation between rebel leaders and Russian officials includes a ceasefire and an opening of corridors for delivering humanitarian aid in return for the departure from the city of extremists among the rebel groups, Julian Borger at the Guardian reporting that negotiations have been taking place in Turkey for the past week. Continue Reading »

Headlines Suggest Ban Ki-moon Apologized for UN Role in Causing Cholera Outbreak–But He Didn’t

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Speaking at the UN on Thursday, Secretary-General Ban Ki-moon apologized to the Haitian people for not doing more to halt the spread of cholera in the country, but stopped well short of saying the UN was responsible for–or that he was apologizing for–causing the cholera outbreak, which has killed more than 9,000 people.

Mr. Ban opened his speech by saying:

The United Nations deeply regrets the loss of life and suffering caused by the cholera outbreak in Haiti.
On behalf of the United Nations, I want to say very clearly: we apologise to the Haitian people.
We simply did not do enough with regard to the cholera outbreak and its spread in Haiti.
We are profoundly sorry for our role.
This has cast a shadow upon the relationship between the United Nations and the people of Haiti.  It is a blemish on the reputation of UN peacekeeping and the Organization worldwide.

Some kind of apology was highly anticipated, and it marks a change in the UN’s approach from the earliest days of this tragic saga. Haiti had been free of cholera until 2010, when Nepali UN peacekeepers imported the disease and spread it by allowing their waste to contaminate a river. In October, the two of us wrote in Just Security an almost line-by-line annotation of a New York Times story on the UN’s position. For example, the Times reported that the Secretary-General had “acknowledged a ‘moral responsibility’ for the epidemic.” Our  annotation offered a correction. We said:

This is factually inaccurate in a significant respect. The Secretary-General expressed “a moral responsibility to help the Haitian people stem the further spread of this cholera epidemic.” That is very different than acknowledging a moral responsibility for the epidemic.

Remarkably today, again, the NYT story of Dec. 1 repeats the same mistake as before. The Times refers to Mr. Ban “only recently accepting ‘moral responsibility’ for the disease and the suffering that it caused.” As we wrote before, Mr. Ban has not accepted moral responsiblity for the disease. He did not do so in his statement back in August. And he did not do so in his recent report (see para 18). Indeed, if he had done so, there would likely be some noticeably displeased UN Member States.

What about the fact that today Mr. Ban expressed “regret” for the deaths caused by the cholera outbreak? As we wrote in our earlier piece, those words fall short of an apology and acceptance of legal responsibility:

There may actually be no difference between saying “sorry” and expressing “regret.” Neither are key terms of art in international legal practice, and might even be interchangeable. Saying sorry is not necessarily  significant in legal terms. For example, an official can express “sorrow” (and words like, “I am sorry”) for harm caused by a third-party. The important question that close observers want to know is whether the Secretary-General will “apologize” for the UN actions. (emphasis added)

But today, Mr. Ban also said the magic word, “apologize.” So, why isn’t that the acknowledgement that Haitian victims have sought? Continue Reading »

New Counterterrorism Program in Los Angeles: Suspicious Thought Reporting?

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The FBI is teaming up with local police in Los Angeles to roll out a new approach to prevent domestic terrorism, called RENEW for “Recognizing Extremist Network Early Warnings.” But there’s at least one big problem: no one really knows what kind of “early warnings” to look for. There is no shortage of opinions, but they have been roundly debunked as unscientific and ineffective. Moreover, the program builds on another controversial initiative: so-called “Suspicious Activity Reporting,” which encourages police to report certain non-criminal behavior as terrorism-related. Now, with RENEW, it seems that Los Angeles is poised to go a step further by asking community members to report people who appear to have “suspicious” thoughts and beliefs.

To understand how the RENEW program would handle such reports, it is helpful to start with some background on the Suspicious Activity Reporting (SAR) effort. The SAR program began in 2007 with the Los Angeles Police Department (LAPD) but has since become a nationwide initiative, funded by the federal government and implemented by state and local police. But as the Brennan Center for Justice explained in a 2013 report, it has also been widely criticized for using a vague and expansive definition of “suspicious activity,” including innocuous activities like photography, looking through binoculars, and taking notes. Police departments retain these reports and funnel copies to regional intelligence “fusion centers,” which are also federally funded. Fusion centers then analyze and share the reports with the FBI, the Department of Homeland Security, and the National Counterterrorism Center through a network run by the Director of National Intelligence.   Continue Reading »

The DoD Law of War Manual and the False Appeal of Differentiating Types of Civilians

In a recent speech at NYU, Department of Defense General Counsel Jennifer O’Connor suggested that after an impending revision, the US Law of War Manual would reflect the position that the principle of proportionality applied to “civilians who are proximate to military operations, such as workers in a factory that produces military weapons”. This would correct one of the most glaring deviations of the Manual from established legal practice. Yet, O’Connor qualified this encouraging message with a crucial caveat for the protection of persons in a group reminiscent of the pre-Geneva Conventions category of “quasi-combatant”: “[T]heir choice to support military operations in or on a military objective may be weighed by commanders as a factor in the proportionality analysis.”

As Marty Lederman, Oona Hathaway, and Mike Schmitt noted in their recent Just Security post, neither customary law nor the relevant provisions in API support such a “sliding scale” of civilian protection. No appeal to moral principle, no plea to take account of the humanitarian purpose of Article 57 API is necessary to show that the Protocol has once and for all laid to rest the idea of the “quasi-combatant”. The dichotomy between civilians and combatants as exhaustive and mutually exclusive categories is the core structuring principle of contemporary IHL. If the location or “general use” of a person were legally relevant, the drafters might have chosen a formula for the definition of a combatant echoing that of a military objective. Instead, distinction among persons is based on a priori status. The text is as determinate as law gets when stipulating that a civilian is immune from attack for as long as she does not directly participate in hostilities. In turn, a civilian either counts as one civilian in a proportionality calculus or she is herself a legitimate target of intentional attack.

If IHL leaves no room for a “quasi-combatant” or a “lighter than usual civilian,” why do such eminent scholars as Bothe, Partsch and Solf defend the legal salience of a person, who is not a combatant for the purposes of distinction, but not a civilian for the purposes of proportionality? In their influential Commentary on API, Bothe, Partsch and Solf explain their startling endorsement of such civilians’ weighing “less heavily” in the application of the rule of proportionality with the observation that “being within, or in the vicinity of a military objective, these civilians assume the risk of collateral injury from the effects of attack.” The same reference to risk-taking is at the heart of the never adopted ICRC instrument the Manual currently quotes as authority to justify its exclusion of certain groups of civilians from the proportionality calculus. It observes that “should members of the civilian population … be within or in close proximity to a military objective, they must accept the risks resulting from an attack directed against that objective.” Continue Reading »

The Early Edition: December 1, 2016

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

DONALD TRUMP’S FOREIGN POLICY

President-elect Donald Trump heaped praise on Pakistan in a phonecall to Prime Minister Nawaz Sharif yesterday, Trump appearing unworried by the fact that relations between the US and Pakistan have been fraught for years, reports Jon Boone at the Guardian.

Lavishing praise on the Pakistanis is also a “major turnaround” for the President-elect, who has previously denounced Pakistan on Twitter, while speaking highly of rival India, observes Max Bearak at the Washington Post. What is said to be a transcript of the conversation between Trump and Sharif was released by Pakistan’s Press Information Bureau.

House Armed Services Committee Chairman Mac Thornberry (R-Texas) hopes that Trump will request a supplemental to the defense budget as soon as he takes office, approving of Trump’s focus on rebuilding the military, the Hill’s Rebecca Kheel reports.

Russian President Putin said he wanted to get on with the incoming US administration and was looking to make friends, not enemies, in an unusually conciliatory annual state of the nation address today, Reuters’ Katya Golubkova and Denis Pinchuk report.

President-elect Donald Trump’s difficulty in choosing a secretary of state underscores fears about his ability to manage the international challenges he will face in office, suggests the New York Times editorial board.

Trump could end up with generals filling the five most powerful national security offices in the country – an unprecedented concentration of military influence, observes Carol Giacomo at the New York Times, explaining why this fact deserves more public debate than it’s getting.

If Trump thinks he can use his iconoclastic business practices as a model for negotiations with foreign governments, he will be in for a rude awakening, particularly with Cuba, writes William M. Leogrande at the New York Times.

Could the Trump administration succeed on Israeli-Palestinian peacekmaking where others have failed? Dennis Ross at the Washington Post provides some advice to the President-elect, who recently said he “has reason to believe I can do it.”

SYRIA

Rebels fighting in Aleppo have agreed to form a military alliance to better defend parts of the city from the ferocious assault by Assad regime forces and their allies, Reuters reports.

Syrian rebel leaders are in secret talks with Moscow on ending the fighting in Aleppo, opposition figures have disclosed, Erika Solomon and Geoff Dyer at the Financial Times observing that this development shows how the US could become sidelined in some of the Middle East’s most crucial conflicts. Continue Reading »

Initial GTMO PRB decisions now completed, with 29 remaining uncharged and uncleared law-of-war detainees

Last week the Presidential Review Board issued the final two decisions from its initial hearings of remaining GTMO detainees who were not already charged or cleared for transfer:  the PRB cleared one detainee (Jabran al Qahtani, ISN # 696) for transfer to Saudi Arabia under certain conditions and determined that continued law-of-war detention is warranted for the other detainee, Said Salih Said Nashir (ISN # 841), because such detention remains (in the words of the President’s order) “necessary to protect against a significant threat to the security of the United States.”

So as things stand, just over seven weeks before the end of President Obama’s term, 60 detainees remain at GTMO:

— Three (3) detainees have been convicted, or pled guilty, in military commission proceedings: Ali Hamza al Bahlul is serving a life sentence, and he is likely to soon petition the Supreme Court to review his lone remaining conviction.  Ahmed Haza al Darbi is serving a 15-year sentence that began in 2014.  Majid Khan pled guilty but his sentencing hearing is postponed until at least February 29, 2018.

— Seven (7) more detainees await three trials before military commissions: (i) Abd al Rahim al Nashiri, (ii) Abd al Hadi al Iraqi, and (iii) the five defendants charged with involvement in the 9/11 attacks: Khalid Sheik Mohammed, Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi, and Ammar al Baluchi.

— Twenty-one (21) detainees have been cleared for transfer–twelve Yemenis, three Afghans, and one detainee from each of Algeria, Morocco, Russia, Saudi Arabia, Tunisia, and the UAE.

— The PRB has, for now, determined that continued law-of-war detention is warranted for the remaining twenty-nine (29) detainees, of whom 13 are Yemenis.

Thus, if the government is able to transfer the 21 already cleared detainees, there would be, at most, 29 detainees remaining at GTMO who have not been charged with offenses in the military commissions system.

Moreover, there remains at least some chance that some of those 29 might be transferred, too, by virtue of PRB proceedings subsequent to the initial reviews.  The results of follow-up “full reviews” of three detainees are pending (ISN Nos. 28, 508, 522), and three others will have “full review” hearings in the next 15 days or so.  (See generally this “Full Review” web page.)  Full reviews for at least two other detainees–Saifullah Abdullah Paracha (ISN # 1094) and Sharqawi Abdu Ali Al Hajj (ISN # 1457)–have been ordered after “file reviews,” but have not yet been scheduled.  As of today “file reviews” of four detainees will have been completed but not decided (ISN Nos. 242, 1017, 1453 and 10025); and seven other “file reviews” are scheduled (ISN Nos. 63, 682, 685, 708, 1460, 1463, and 3148).  (See generally this “File Review” web page.)  I believe that leaves about ten detainees who are still awaiting scheduling of their file reviews (ISN Nos. 569, 1456, 1461, 10016, 10017, 10019, 10021, 10022, 10023, and 10029).

For why the President lacks the authority to go further, and to “close GTMO” by transferring the final two or three dozen detainees to the U.S., see my three-part series beginning here.

[Thanks to Brian Foster of Covington & Burling for maintaining his constantly updated GTMO status charts.]

 

The Investigatory Powers Act: The Official Entrenchment of Far-Reaching Surveillance Powers

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What was formerly known as the Investigatory Powers Bill, referred to elsewhere as the “revised Snoopers’ Charter,” has received Royal Assent and, as of Nov. 29, is officially law in the UK. The Act does introduce additional safeguards, as well as a new body of oversight and the involvement of judges in the authorization of surveillance warrants. However, the broad range of surveillance powers available to the British Government, which were exposed by the Snowden leaks, have not been scaled back but further entrenched within British law. This is despite consistent pleas to reduce the powers by parliamentarians, legal practitioners and legal NGOs, and amendments having been made to the Act by both Houses of Parliament.

The Not So New Powers

The government’s powers exposed by the Snowden leaks were the subject of widespread fear and shock, and they will be further consolidated by this new legislation. The surveillance powers that the Act will now explicitly enshrine in law include: targeted and bulk hacking powers; bulk interception of communications (provided for under the previous UK surveillance regime); access to bulk personal datasets (BPDs); and the acquisition of communications data, both targeted and bulk, which involves the retention of web history logs (known as “Internet Connection Records”). The Act also provides for the use of thematic warrants in relation to targeted surveillance powers. These warrants, equated with general warrants in a previous Just Security post by Scarlet Kim, have the potential to be very broad in scope and may be used against “a group of persons who share a common purpose or who carry on, or may carry on a particular activity.”

All of these far-reaching surveillance powers existed in one form or other prior to the Act. However, many of them were only avowed by the UK Government in the aftermath of the Snowden leaks. For example, engagement in the bulk acquisition of communications data by the security services was first admitted in November 2015, when the then-Home Secretary, Theresa May, informed Parliament that communications data was being obtained in bulk from Communication Service Providers under the authority of the Telecommunications Act 1984. The use of hacking powers was acknowledged by the UK government through the publication of the Draft Equipment Interference Code of Practice published in February 2015 (containing, admittedly, unclear distinctions between bulk and targeted powers). The use of thematic warrants and BPDs were publicly avowed for the first time in March 2015 in a report by the Intelligence and Security Committee (the Parliamentary committee appointed to oversee the work of the UK’s security services).  Continue Reading »