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Widening the Gap: John Kelly and the Civil-Military Divide

 

When White House Chief of Staff and retired Marine Gen. John Kelly participated in a press conference on Thursday, he delivered an emotional, moving, and ultimately divisive message. He offered his explanation for President Donald Trump’s comments during a phone call with Myeshia Johnson, the widow of Army Sergeant La David Johnson, who was killed in Niger on Oct. 4 with three other U.S. Special Forces soldiers. Kelly also criticized Congresswoman Frederica Wilson (D-FL), reportedly a mentor of Sergeant Johnson and a friend of the family. Whether he appropriately addressed Trump’s comments and whether he was correct in his judgment about Wilson are debates for another forum. In making his case, though, Kelly brought to the forefront another issue that plagues American society—the civil-military divide. And while he bravely let the public into his own experience of being a Gold Star parent, a few of his comments will likely serve to widen the gulf that exists between civilians and those serving in the military.

With very few Americans serving in today’s all-volunteer military as well as “increased regional and familial concentration within the armed forces,” the civil-military divide has grown. This dynamic “not only isolates important segments of our population from a personal understanding of military service . . . [but] also could distort key variables that should govern decisions about the use of force,” wrote retired Navy Adm. James “Sandy” Winnefeld Jr., the former Vice Chairman of the Joint Chiefs of Staff, and Amy Schafer of the Center for a New American Security in a USA Today op-ed earlier this year. “When the lion’s share of the nation is isolated from the consequences of the use of force, the threshold for that judgment will naturally be lower, and that is problematic in a democratic system,” they continued.  Continue Reading »

The Arpaio Decision: When the World Is Extraordinary But the Law is Ordinary

Earlier this month, Judge Susan Bolton deemed President Trump’s pardon of former Sheriff Joe Arpaio to be lawful and therefore dismissed the pending case against him, which otherwise would have proceeded to sentencing.  But, yesterday, Judge Bolton refused to vacate all previous orders in the case, as Arpaio had requested.  That still leaves on the books her finding that Arpaio was guilty of criminal contempt, even if no punishment will flow from that finding thanks to Trump’s pardon.

Here’s what I find immediately interesting about Judge Bolton’s brief order setting out her reasoning: how ordinary that reasoning is.  That is, what interests me is how little her reasoning depends on the rather extraordinary background of this case—background so extraordinary that I, like some others, thought there was a conceivable argument for the invalidity of the pardon itself.  But the history of Arpaio’s case—the 2011 court order ordering him to cease his programmatic violation of constitutional rights, and the subsequent finding by Judge Bolton that he’d continued to do so and thus was guilty of criminal contempt—is simply recounted by Judge Bolton but does not serve as the basis for her decision.  And even the distinctive aspects of Trump’s pardon—including his apparent overruling of the federal judiciary’s view of the constitutional rights at issue in the case, as evidenced by Trump’s characterization of Arpaio as having been “doing his job” all along—are not what motivates Judge Bolton’s conclusions, at least as they are presented. Continue Reading »

Pluses and Minuses of the Imminence Standard in Counterterrorism Strikes

Last month, I wrote on the revisions that the Trump Administration reportedly plans to make to President Obama’s drone policy.  The piece set off a robust conversation with human rights and humanitarian law experts, primarily around U.S. obligations under international human rights law and the implications of the Trump Administration preparing to end the Obama-era requirement that strikes outside of hot warzones like Iraq and Syria be taken only against terrorists who pose a “continuing, imminent threat to U.S. persons.”  I will leave it to my colleague Ryan Goodman to debate with the human rights community the international legal framework that underpins our counterterrorism operations.  Obviously, U.S. counterterrorism operations should be conducted consistent with all applicable domestic and international law.  But assuming that our operations are lawful, as I previously argued, I am not convinced that doing away with the imminence standard is necessarily bad policy, though the pitched nature of the debate calls for further explaining my rationale and why a different governor on U.S. action might be more appropriate. Continue Reading »

The Early Edition: October 20, 2017

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.

SYRIA

The U.S.-backed Kurdish-led Syrian Democratic Forces (S.D.F.) declared “total liberation” of the city of Raqqa today, the spokesperson for the S.D.F. claiming that the defeat of the Islamic State militants in their de facto capital in Syria was a “historic victory” and that the future of the city would be “decided by its people.” Arwa Damon, Ghazi Balkiz and Laura Smith-Spark report at CNN.

Raqqa would form part of a decentralized federal Syria, the S.D.F. said today, however plans for autonomous zones in northern Syria have faced opposition from the U.S., Turkey and the Syrian government. Reuters reports.

The S.D.F. raised a banner bearing the image of Kurdish nationalist leader Abdullah Öcalan in the city of Raqqa yesterday, the controversial Turkish Marxist leader is detained in Turkey as a terrorist and the S.D.F.’s symbolic action has raised concerns among the majority Arab population that the Kurds would take control of Raqqa. Raja Abdulrahim reports at the Wall Street Journal.

A Syrian peoples’ congress bringing Syria’s ethnic groups together is being considered by Russia and others, Moscow said today, Reuters reporting.

The defeat of the terrorists in Syria is imminent, the Russian President Vladimir Putin said yesterday, noting the progress of Russia and Syrian government forces operations in the country and saying that the Syrian peace process was developing in a positive way. Reuters reports.

The recent territorial gains by the Russia and Iran-backed Syrian government forces in eastern Syria have changed the dynamics on the battlefield, giving Syrian President Bashar al-Assad’s regime greater leverage in any future political negotiations and forcing the U.S. military to reconsider its assumptions about the picture on the ground. Karen DeYoung and Liz Sly report at the Washington Post.

The Israeli military “targeted the source” of mortar fire from Syrian territory yesterday, according to the Israeli military. The AP reports.

Saudi Arabia’s Gulf Affairs Minister visited Raqqa yesterday to discuss reconstruction, meeting with the U.S. special envoy to the coalition against the Islamic State Brett McGurk and an adviser to the Raqqa civil council. Reuters reports.

The next phase of the Syrian war is set to include complex conflicts that redefine alliances on the ground as the common threat posed by the Islamic State group dwindles, the issue of control over the city of Raqqa leading to tension and the pro-Syrian government forces expected to turn their attention to the Syrian rebels. Anne Barnard and Hwaida Saad explain at the New York Times.

The defeat of Islamic State militants in key cities in Syria and Iraq has brought untold destruction. Megan Specia reveals the scale of the challenge to rebuild at the New York Times.

The power of the U.S. military was demonstrated in Raqqa and in the fight against the Islamic State in Syria and Iraq, however neither the Obama administration nor the Trump administration devised a clear political strategy for what should come next. David Ignatius writes at the Washington Post.

U.S.-led airstrikes continue. U.S. and coalition forces carried out five airstrikes against Islamic State targets in Syria on October 18. Separately, partner forces conducted seven strikes against targets in Iraq. [Central Command]

NORTH KOREA

“We ought to behave” as if the North Korea is on the “cusp” of being able to hit the U.S. with a nuclear missile, the C.I.A. Director Mike Pompeo said yesterday at an event organized by the Foundation for Defense of Democracies, emphasizing that the U.S. prefers diplomacy, but military options would remain a possibility. Nicole Gaouette reports at CNN. Continue Reading »

Military Planning for the Climate Century

 

Climate change has been described as the world’s greatest environmental threat. But it is also increasingly understood as a national security threat, that serves as both a “threat multiplier,” and “catalyst for conflict.” Plus, its national security effects are multidimensional, without geographic or spatial limitations. At the North Pole, it is rapidly melting ice sheets, opening shipping lanes, and renewing the potential for natural resource extraction. In sub-Saharan Africa and the Middle East, climate change is causing more intense droughts, impairing already unstable areas and forcing climate refugees to leave their homes. At the South Pole, an ice chunk the size of Delaware recently broke away from the continent of Antarctica, creating uncertainty about massive future environmental degradation.

In light of climate change’s sheer complexity, how should the world’s militaries begin to prepare for its national security threats? As I have previously argued, climate change will impact the security environment and the militaries of the world in three fundamental ways, which I frame as follows:

  1. Climate adaptation: As defined by the U.S. military, this is an “adjustment in natural or human systems in anticipation of or response to a changing environment in a way that effectively uses beneficial opportunities or reduces negative efforts.” This will require investment in climate resilient infrastructure at military bases vulnerable to climate change at home and abroad.
  2. Climate mitigation: As defined by the EPA, this is “human intervention to reduce the human impact on the climate system; it includes strategies to reduce greenhouse gas sources and emissions.” The militaries of the world are an enormous emitter of greenhouse gases—any climate mitigation plan must take their outsized contribution into account.
  3. Climate response: This encompasses responding to humanitarian assistance crises domestically as well as responding to humanitarian assistance and disaster response overseas, particularly in Southeast Asia and the Pacific theater.

Planning for Climate Change in the U.S. Military

These are unique times: While the head of the EPA is rapidly rolling back the Clean Power Plan and related climate change policies, the Defense Department (DoD) continues to plan for climate change. This is due, in part, to the leadership of Secretary of Defense Jim Mattis who reiterated the threats posed by climate change in his confirmation hearing and has consistently been firm in his belief that climate change is a national security issue. As a military officer, Mattis was intimately involved in earlier operational energy initiatives, remarking that the U.S. military must be unleashed from “the tether of fuel” on the battlefield.  Continue Reading »

The Rhetoric of “Responsible Encryption”

Last week, Deputy Attorney General Rod Rosenstein gave a speech about encryption that prompted a considerable amount of well-deserved blowback. His speech rehashed a number of long-discredited technical proposals for “solving” the “going dark” problem, and it also misstated the law. I won’t address those issues with the speech; they’ve been ably dissected elsewhere, for example by EFF, Techdirt, Robert Graham, and, on this site, Robyn Greene.

I want to focus on the rhetorical framing Rosenstein used. Much of it is transparently hyperbolic. Yet its confrontational tone also signals that the Justice Department believes it may yet be able to seize the upper hand in the current round of the crypto wars.

As in any war, propaganda is an indispensable component here. Branding is key. As cryptography professor Phil Rogaway pointed out in an award-winning paper, even the label “going dark” has a Lakoffian aspect to it, evoking our ancient fear of the dark. When we call this the “going dark” debate (or a “war”), we’re giving more power to that framing. Whoever dictates the labels we use has already begun to channel the discussion in their preferred direction, as Rogaway observed.

What I would brand “strong encryption,” the DOJ likes to call “warrant-proof” encryption. That’s the term Rosenstein uses in this speech. We’re both referring to the same thing: encryption that does not provide a mechanism for law enforcement, or the provider of the encryption, to gain access to plaintext (with or without a warrant). Yet Rosenstein and I use different rhetorical frames, because we have different answers to this question: Should there exist spaces in human society that cannot be policed?

It’s clear what the DOJ’s answer is. There “has never been a right to absolute privacy,” Rosenstein said in his speech. This is an attempt to normalize in Americans’ minds a cramped understanding of how much privacy we have, and a correspondingly expansive view of government power. But it does not reflect reality, even if the DOJ hopes that enough repetition will make us believe it. It intentionally obscures the limits on the government’s historical and legal powers to get evidence.  Continue Reading »

The Early Edition: October 19, 2017

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.

SYRIA

The U.S.-backed Kurdish-led Syrian Democratic Forces (S.D.F.) have cleared 98 percent of the Islamic State’s de facto capital of Raqqa, the spokesperson for the U.S.-led coalition Col. Ryan Dillon tweeted today.

The impending defeat of the Islamic State group in Raqqa will open a new phase in the Syrian conflict, White House press secretary Sarah Huckabee Sanders said yesterday, blaming Syrian President Bashar al-Assad’s regime for hindering previous efforts to liberate the city. Sarah El Deeb reports at the AP.

The U.N. seeks access to Raqqa and is ready to increase assistance following the defeat of Islamic State militants, a U.N. official in the Syrian capital of Damascus said yesterday, adding that aid groups were struggling to support the thousands of civilians in camps for the displaced near Raqqa. The BBC reports.

The S.D.F. will redeploy fighters to the frontlines of the eastern Deir al-Zour province, a spokesperson for the S.D.F. said yesterday, adding that victory in Raqqa would have a “positive impact” on the offensive against the Islamic State fighters. Tom Perry and Lisa Barrington report at Reuters.

A senior Syrian army commander has been killed in the near the eastern city of Deir al-Zour in an operation against Islamic State militants, Brig. Gen Issam Zahreddine led government offences in the Homs province and maintained a government presence in Deir al-Zour despite the almost three year long siege on his forces. The AP reports.

The U.N. must “ensure accountability” for the April 4 chemical weapons attack on the rebel-held town of Khan Sheikhoun, the U.S. ambassador to the U.N. Nikki Haley said yesterday, urging the Security Council to quickly vote on renewing the Joint Investigative Mechanism which is investigating the incident that killed more than 90 people. Edith M. Lederer reports at the AP.

The al-Qaeda-linked Tahrir al-Sham alliance released a video yesterday purporting to show its leader Abu Mohamad al-Golani, two weeks after the Russian military said it had critically injured Golani. Reuters reports.

The Islamic State group’s loss of territory has undermined its ability to raise revenue and collect money from civilians in its self-styled caliphate; it is likely that the group will now adopt insurgent tactics instead of pursuing state-building ambitions. Maria Abi-Habib explains at the Wall Street Journal.

The Islamic State group is set to establish itself as a guerilla force following the heavy territorial losses it has suffered in Syria and Iraq, many counterterrorism officials have said; the group still has many fighters, sympathizers and the ability to inspire attacks abroad. Margaret Coker, Eric Schmitt and Rukmini Callimachi explain that the terrorist group is far from defeated at the New York Times.

The defeat of the Islamic State group in Raqqa ushers in a period of uncertainty, the plethora of parties on the battlefield in Syria and Iraq trying to gain influence now that their common enemy faces impending downfall. Sarah El Deeb and Zeina Karam set out the various parties and alliances and their conflicting interests at the AP.

Tahrir al-Sham is set to benefit from the downfall of the Islamic State, the alliance, also known as the Levant Liberation Committee, dominates Syria’s northern Idlib province and has allowed some Islamic State fighters who have fled to the province to join their group. Bassem Mroue and Qassim Abdul-Zahra explain at the AP.

The U.S. lacks a strategy for the next phase of the war in Syria, the Financial Times editorial board sets out the potential future dangers.

U.S.-led airstrikes continue. U.S. and coalition forces carried out two airstrikes against Islamic State targets in Syria on October 17. Separately, partner forces conducted five strikes against targets in Iraq. [Central Command]

TRUMP-RUSSIA

Attorney General Jeff Sessions defended his role in the firing of former F.B.I. director James Comey in testimony to the Senate Judiciary Committee yesterday which focused on Russian interference in U.S. politics, saying that he did not think “the significance of the error the Mr. Comey made on the Clinton matter” had been “fully understood,” referring to Comey’s 2016 comments that the was not recommending charges against presidential candidate Hillary Clinton and her private email use. Aruna Viswanatha and Del Quentin Wilber report at the Wall Street Journal. Continue Reading »

Sessions Changes his Story on Russian Contacts in Senate Testimony

On Wednesday, Attorney General Jeff Sessions changed his story yet again about what he discussed with Russian officials during the 2016 election. While he initially denied having any communications with Russian officials during the campaign, after it was revealed in March that he twice met with Russian Amb. to the U.S. Sergey Kislyak, Sessions modified his account to that he did not discuss the Trump campaign with Russian officials. Then, the Washington Post reported in July that Sessions and Kislyak had discussed Trump campaign-related issues. In response, Sessions’ spokesperson said that he had not had conversations with Russian officials “concerning any type of interference with any campaign or election.” And, finally, in his appearance before the Congress on Wednesday, Sessions changed his story yet again, telling the Senate Judiciary Committee that he did not discuss “the details of the campaign” with Kislyak, though it was possible he did discuss “Trump’s positions.” Continue Reading »

Where is Congress? The Supreme Court’s Cert in Microsoft Ireland Case Should Spur Lawmakers to Act

On Monday, the Supreme Court decided to take cert in what’s known as the Microsoft Ireland case – raising the issue of law enforcement’s ability to reach data stored across national borders.   The case presents the court with one of two fairly stark options based on the intepretation of the three decade old (and highly outdated) Stored Communications Act:  Either US warrant authority is limited to data that is physically held within the United States.  Or US warrant authority reaches all data held by a U.S. company, regardless of location.

Neither is a satisfactory outcome (as I have argued numerous times before). A win for Microsort restricts law enforcement’s ability to investigate crimes based on where sought-after data happens to be at any given moment – an often highly fluid factor that may have nothing to do with the relevant equities in the case.  Such a rule is potentially crippling for law enforcement, which suddenly finds itself unable to access critical evidence based simply on the decision of a third-party provider of where to hold it.  Such a rule also incentivizes data localization mandates, pursuant to which data is required be held locally, as a means of ensuring access. This is hugely costly for any company that wants to compete internationally and deeply damaging to the future of the Internet and to US business interests, as was discussed in depth at this hearing before the House Energy and Commerce Subcommittee on Digital Commerce and Consumer Protection on Wednesday.

A win for the government, however, is also troubling. Continue Reading »

On the Ground with FRONTLINE in Mosul and Yemen

 

As I watched “The Vietnam War,” the extraordinary documentary by Ken Burns and Lynn Novick, over the last few weeks, I was struck by the level of access U.S. journalists had to cover that war. They lived and worked in Saigon, they were side-by-side with soldiers as they lost their friends in ultimately useless battles, and they were able to discern when the official line from Washington bore no resemblance to what they were seeing on the ground.

That kind of coverage is not extinct today, but it is endangered. Governments, including the U.S., restrict journalists’ access to the frontlines (or to countries altogether). Terrorist groups with no respect for the role of independent journalists are willing to take them hostage, and torture and kill them for spectacle and propaganda. And most newsrooms don’t have the budgets to maintain foreign bureaus around the world and pay for the security needed to protect journalists in conflict zones. Then there are the wars themselves. U.S. involvement in Iraq, Mali, Syria, Yemen, now Niger and elsewhere is far from transparent. Drone strikes, small teams of advisors and special forces, targeting and intelligence support, and weapons sales can be pivotal to a war effort, but they are difficult for a reporter to bring out of the shadows.

This is one reason why this week’s doubleheader from FRONTLINE is such important viewing. In both documentary films airing on Wednesday night, the viewer is given a rare glimpse at how two of today’s opaque wars are being fought, both with the help of the United States.

In May, FRONTLINE filmmaker Martin Smith and his team became the only foreign journalists given permission to enter Yemen, where a military coalition led by Saudi Arabia is fighting Yemen’s Houthi rebels. Their film, “Inside Yemen,” is brief, but it immediately brings to life what it looks like when, as Smith describes it, “You have the region’s wealthiest country bombing the region’s poorest.”  Continue Reading »