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Thanksgiving at Just Security

People walk through LaGuardia Airport (LGA) on the day before Thanksgiving, the nation’s busiest travel day on November 22, 2017 in New York, New York. 

In observance of the Thanksgiving holiday tomorrow, Just Security will be on an abbreviated schedule for Thursday and Friday of this week. If any major, time-sensitive developments occur, we will aim to address those issues. The Early Edition will resume on Monday (you can sign up here to receive it in your inbox each morning). In the meantime, you can follow us on Twitter (@just_security) and Facebook for the latest.

Image: Spencer Platt/Getty

The Long Arm of Justice: Ratko Mladić’s Conviction Should Keep Perpetrators of Atrocities Awake at Night

Former Bosnian military chief Ratko Mladic appears for judgement before the International Criminal Tribunal for the former Yugoslavia (ICTY) on November 22, 2017 in The Hague, The Netherlands. 

Today Ratko Mladić, the former Bosnian Serb General, was convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) for genocide, crimes against humanity and war crimes, and was sentenced to life imprisonment. The crimes that Mladić was found to have committed occurred more than twenty years ago, from 1992-1995, in Bosnia. Specifically, Mladić was found to bear criminal responsibility for the genocidal killing of more than 7000 Bosnian Muslim men and boys at Srebrenica in 1995, the siege of Sarajevo, and widespread attacks on the non-Serb population in numerous municipalities across Bosnia. This judgment marks the last judgment to be handed down by the ICTY, though there remains at least one re-trial to be handled by the successor institution to the ICTY, the Mechanism for the International Criminal Tribunals.

In many ways today’s judgment was not a surprise, as it was foreshadowed by the conviction last year of Mladić’s political partner in crime, Radovan Karadžić, for essentially the same crimes. No doubt the actual judgment, which should be released later today and will certainly run in the hundreds of pages, will contain nuggets to be analyzed by historians, lawyers, and concerned citizens.

However, the handing down of the judgment today contained some drama and symbolism that says something about the court and the project of international criminal justice. Continue Reading »

Giving Thanks While Safeguarding Our Country’s Most Important National Security Assets

 

What are our country’s most important national security assets? While new weapons and hardware (drones, the latest fighter jet or technological wonder) receive a significant amount of attention, the men and women operating the tools of warfare and diplomacy unquestionably remain the nation’s greatest national security assets. But their strength appears to be deteriorating. It doesn’t have to – we should take several steps now to safeguard their health and well-being.

At the State Department, senior officials and diplomats are leaving at unprecedented levels. And State is reportedly offering staff buyouts, while Foreign Service exam applicants have fallen to their lowest level in a decade since Donald Trump became president.

This post focuses on a recent, related trend: the alarming personnel developments that are beginning to emerge at the Department of Defense (DoD).

Military recruitment appears to be stagnating at levels not seen since the 1970s when the military draft ended and the All-Volunteer Force (AVF) was first introduced. And no military service appears immune from this stagnation and personnel shortage. The Air Force is facing such a severe pilot shortage that the White House authorized the Air Force to recall recently retired pilots. The Navy also appears to be suffering from manpower struggles and a high operational tempo, with reports of 100-hour workweeks on its warships—a contributing factor to recent ship collisions in the Seventh Fleet. The Army recently loosened restrictions to allow personnel with mental health issues to enlist, but this decision was later overturned following widespread media reports. Beyond the widely reported personnel difficulties at the State Department, keep a weather eye on military recruitment and retention.

While it is unclear what, precisely, has caused this personnel crunch – a potential “Trump effect,” an improving economy, general war fatigue, or a combination thereof, three problems persist: (1) the critical law governing officer personnel matters within the military dates from 1980 and is ill-suited for today’s dynamic and diverse workforce; (2) recent ill-advised initiatives to limit transgender and legal foreign-born military service undermines readiness; and (3) the underlying pool of eligible potential applicants to the military remains shockingly low: It is estimated that seven in 10 young people fail to meet the minimum requirements to join the military due to educational shortfalls, obesity, drug use, or prior criminal offenses.  To safeguard our nation’s greatest national security assets, we should begin to take action on the following four steps now.  Continue Reading »

The Early Edition: November 22, 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 Russian President Vladimir Putin held unannounced talks with Syrian President Bashar al-Assad earlier this week ahead of a summit being held today in the Russian city of Sochi with the Iranian President Hassan Rouhani and the Turkish President Reçep Tayyip Erdoğan to discuss the post-conflict scenario in Syria. Nathan Hodge reports at the Wall Street Journal.

Russian officials have stated that their aim is to ensure Assad’s support for a political process, however Assad has been resistant to granting any sort of concession to the Syrian opposition and it is unclear how far Russia would be willing to push Assad to compromise; according to a Trump administration official, the issue of a political transition was not raised during Putin’s call to Trump yesterday, which took place after Assad and Putin’s meeting. Anne Barnard reports at the New York Times.

Russia’s efforts comes as the U.S. effectively granted Russia a leading role in diplomatic initiatives this month in return for an acceptance of a continued U.S. role in Syria and, during Trump and Putin’s phone call yesterday, Putin explained that he had secured a commitment from Assad to cooperate with Russia’s initiatives, and Putin and Trump emphasized their commitment to a political settlement in Syria through the framework of the U.N.-backed peace process in Geneva. Liz Sly, Louisa Loveluck and David Filipov report at the Washington Post.

Putin also spoke with Saudi King Salman, Israeli Prime Minister Benjamin Netanyahu and Egyptian President Abdel Fattah al-Sissi in phone calls yesterday, according to a source in Netanyahu’s office, Putin and Netanyahu discussed Iran’s attempts to expand its influence in Syria and Israel’s opposition to this possibility. Katya Golubkova and Tom Perry report at Reuters.

The U.N. envoy for Syria Staffan de Mistura called on Syrian opposition groups to come as a united delegation for Geneva talks on Nov. 28, making the comments today at the opening of a three-day conference of Syrian opposition groups being held in the Saudi capital of Riyadh, the AP reports.

“There is no solution to the crisis without a Syrian consensus that would achieve the demands of the Syrian people” within the framework of the Geneva process and U.N. Security Council resolution 2254, the Saudi Foreign Minister Adel al-Jubeir said today at the conference in Riyadh. Reuters reports.

A series of Syrian government airstrikes on the rebel-held Eastern Ghouta area have killed dozens of people since the forces launched an offensive on the Damascus suburb – which is covered by a Russia, Turkey and Iran-brokered de-escalation agreement –last week, leaving residents fearing that they would be forced to surrender in a similar fashion to the surrender of the formerly rebel-held city of Aleppo last year. Raja Abdulrahim reports at the Wall Street Journal.

Sexual violence against men and boys has been widespread during the Syrian conflict, cuts proposed by the Trump administration to the 2018 international affair budget would worsen the situation, Sarah Chynoweth explains at the Guardian.

The Trump administration has ceded control of post-conflict planning in Syria to Russia and has not done enough to exact concessions from Putin on its core interests, in particular curbing Iran’s role in the region. Michael Crowley writes at POLITICO.

An analysis of the significance of Putin’s meeting with Assad and the dynamics of their relationship is provided by Nick Paton Walsh at CNN.

NORTH KOREA

The U.S. Treasury imposed further sanctions against North Korea yesterday and targeted Chinese individuals and entities doing business with Pyongyang, the Treasury Secretary Steven Mnuchin said that the U.S. is “steadfast” in its “determination to maximize economic pressure” to isolate the country. The sanctions were not directly connected to Monday’s decision to designate North Korea as a state sponsor of terrorism, Felicia Schwartz reports at the Wall Street Journal.

The U.S. decision to re-designate North Korea as a state sponsor of terrorism was a “serious provocation and violent infringement,” North Korea’s state K.C.N.A. news agency said today, Reuters reporting. Continue Reading »

What You Could Not Learn from NYT and WSJ on Kushner’s “Russian Backdoor” Email

If you read only the New York Times or Wall Street Journal stories on the latest Jared Kushner correspondence—email subject line: “Russian backdoor overture and dinner invite”—you’d be missing an important piece of the puzzle. Other outlets, like NBC News  which broke the story, did not miss the piece. They emphasized it.

The key question here is whether any senior-level Trump campaign aide met with Aleksander Torshin, deputy head of Russia’s central bank and close ally of Russian President Vladimir Putin, especially following the emails under scrutiny.

This question is even more important since it implicates the defense that Kushner’s lawyers have staked out for his failure to turn over the emails to Congress. “Kushner’s lawyers said the committee never asked their client for records of proposed meetings that never happened – but the episode gave the impression Kushner had something to hide,” according to the Washington Post.

According to all accounts, Torshin asked to meet a high-level Trump campaign official during the National Rifle Association annual convention in Louisville, Kentucky in May 2016. His purpose was apparently to pass on some information from Putin to Donald Trump and to see if the presidential candidate would meet with Putin at a later date. Kushner waived off top campaign aides like Rick Dearborn, saying “Pass on this,” and Kushner added, “Most likely these people then go back home and claim they have special access to gain importance for themselves.”

According to the New York Times, however, “Mr. Torshin’s outreach fizzled”—though it is ambiguous whether the Times is referring to a meeting with Putin or simply Torshin’s attempt to meet with a top campaign official during the NRA convention. (I read it to mean the latter.) Here’s how the paper described the result of Torshin’s efforts:

“Neither Mr. Trump nor his campaign officials attended the veterans’ dinner, Mr. Clay said. Donald Trump Jr. attended a separate dinner that night, hosted by the National Rifle Association, that Mr. Torshin also attended. Both dinners were in Louisville.”

Similarly, the Wall Street Journal wrote:

NBC News reported Friday that the Russia-linked individual in the email was Aleksander Torshin, an ally of Russian President Vladimir Putin, who wanted to meet with a top Trump campaign official during a National Rifle Association convention and suggested he had a message for Mr. Trump from Mr. Putin. Mr. Torshin didn’t meet with Mr. Trump at the NRA convention but went to a dinner there that was also attended by Donald Trump Jr., Bloomberg has reported.”

But NBC News and Bloomberg had reported one further step: Torshin said he met and had dinner with Don, Jr. that evening at an NRA side event.

NBC News reported:

“However, Torshin was seated with the candidate’s son, Donald Trump Jr., during a private dinner on the sidelines of a May 2016 NRA event during the convention in Louisville, according to an account Torshin gave to Bloomberg. Congressional investigators have no clear explanation for how that came to be, according to sources familiar with the matter. “

Torshin discussed the NRA dinner in an interview with Bloomberg in April 2017. Bloomberg wrote, “Torshin said in the interview he stayed clear of then-candidate Trump at last year’s N.R.A. event to avoid controversy, dining with Donald Trump Jr. instead.”

Admittedly, Torshin’s statement is uncorroborated, and some may think that’s a reason for the New York Times or the Wall Street Journal not to print it. But really? Don’t reporters routinely print the statement of one side of an interaction if the person is willing to go on record, especially if the individual is a principal participant and thus it’s not second-hand information? What’s uncorroborated is whether the two were seated together at dinner. A “fact” in the record is that Torshin said they were. Readers would want to know Torshin said this, and they deserved to know it.

The Bloomberg story in April also included a denial of Torshin’s statement, and that should be noted too. But even that denial acknowledged that the two men—Torshin and Don Jr.—did, in fact, meet at the NRA dinner, and not just by happenstance. They were introduced by a mutual contact.  According to Bloomberg’s April story: Continue Reading »

Trump’s Threat to Diversity Visas

 

Shortly after last month’s vehicle attack in Manhattan, President Donald Trump, in a tweet, called on Congress to eliminate the “Diversity Visa Lottery Program,” which has been around for almost 30 years. Trump’s response may not be surprising – it’s only the latest in a long line of nativist, anti-immigrant attacks from the president – but the proposal to terminate the program remains incredibly dangerous. Sadly, a series of White House statements last week, which tried to link these diversity visas to potential acts of terrorism, shows that the Trump administration is only going to continue to target this vital program.

The Diversity Immigrant Visa (DV) program, as it’s officially known, is an indispensable component of our immigration system, a symbol that the United States is, and will forever be, a nation of immigrants, and that those seeking a better life can strive and prosper on our shores. At a time when xenophobia is gaining frightening force, it becomes even more important to protect the DV program.

The DV program was established in 1990 to help predominantly Irish and Italian immigrants, and redress the legacy of our discriminatory immigration policies. Over time, applications from Africa and Asia increased, while applications from Europe dwindled. The program enabled citizens of countries with fewer American immigrants to come to the U.S., increasing the cultural, racial, and religious diversity of our immigrant pool.

In 2015, almost 9.4 million people applied for the 55,000 diversity visas. This process isn’t a simple one. After proving sufficient educational or work experience, and providing detailed background information, applicants are only at the beginning of the process. Next, they submit a dossier of supporting documents, including original birth and marriage certificates, criminal records, and military records. If their documents pass review, their reward is to undergo an invasive medical exam, before next being interviewed by a consular officer about nearly every detail of their life. Even after jumping through all of these hoops, U.S. Customs and Border Protection agents can still refuse entry to the diversity visa-holder, oftentimes for vague or unspecified reasons.  Continue Reading »

The Early Edition: November 21, 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 Iranian President Hassan Rouhani declared the end of the Islamic State today in a television broadcast, saying that “with God’s guidance and the resistance of people in the region we can say that this evil has either been lifted … or has been reduced,” making the announcement after pro-Syrian government forces captured the Syrian town of Albu Kamal at the weekend and the Iraqi army captured the border town of Rawa on Friday, signaling the collapse of the Islamic State’s so-called caliphate. Babak Dehghanpisheh reports at Reuters.

Russia is scheduled to host the leaders of Turkey and Iran tomorrow for a summit on the future of Syria, giving Russian President Vladimir Putin, President Rouhani and Turkish President Reçep Tayyip Erdoğan the opportunity to strategize for the post-conflict scenario, U.S. officials separately have urged Russia to consider ways to stabilize the country once the Islamic State group has been defeated. Nathan Hodge reports at the Wall Street Journal.

The Russian President Vladimir Putin held unannounced talks with Syrian President Bashar al-Assad in the Russian city of Sochi yesterday, ahead of the summit in Russia and a new round of Syria peace talks scheduled to be held in Geneva this month. Nataliya Vasilyeva and Bassem Mroue report at the AP.

The military operation “is indeed wrapping up,” Putin said in his meeting with Assad, adding that “we still have a long way to go before we achieve a complete victory over terrorists,” the BBC reports.

Putin said he would follow up his meeting with Assad with calls to Trump and Middle Eastern leaders, and Assad said in talks with Putin that “we count on the support of Russia to ensure the non-interference of outside players in the political process.” Patrick Wintour reports at the Guardian.

Putin discussed the situation in Syria with Qatar’s Emir Sheikh Tamim bin Hamad al-Thani in a phone call yesterday and raised the prospects of a political solution, according to the Kremlin, Reuters reports.

The head of the main armed and political opposition to the Assad regime resigned yesterday, the head of the High Negotiations Committee (H.N.C.) Riyad Hijab did not give reasons for his decision and resigned ahead of a conference of Syrian opposition groups scheduled to be held in Saudi Arabia tomorrow. Zena Tahhan reports at Al Jazeera.

The TRAVEL BAN

The Justice Department yesterday asked the Supreme Court to fully reinstate the latest travel ban which was issued in September and the Trump administration contends was formulated following careful deliberation, the Justice Department’s request comes after the Ninth U.S. Circuit Court of Appeals in San Francisco allowed part of the latest ban to go into effect earlier this month. Jess Bravin reports at the Wall Street Journal.

The latest travel ban placed a variety of restrictions on foreign nationals from eight countries and the Ninth Circuit Court of Appeals ruling allowed the ban to go into effect except for foreign nationals who have a “bona fide” relationship with people or entities in the U.S., Ariane de Vogue reports at CNN.  

An official watchdog of the Department of Homeland Security (D.H.S.) has accused the D.H.S. of delaying the release of a report on Trump’s first travel ban and the confusion among senior managers at Customs and Border Protection in implementing the executive order, with the D.H.S. Inspector General John Roth saying in a letter sent to Congress yesterday that he was “very troubled” by the fact that officials had declined to authorize the report’s release over the past six weeks. Josh Gerstein, Ted Hesson and Seung Min Kim report at POLITICO. Continue Reading »

Extreme Vetting by Algorithm

Last week, a group of machine learning and data mining experts wrote to the acting secretary of DHS urging her to reconsider an automated Extreme Vetting Initiative being proposed by Immigration and Customs Enforcement (ICE). Simultaneously, civil society groups (including the Brennan Center where I work) released a letter urging the department to abandon the initiative as discriminatory and a threat to freedom of speech and assembly.

There are fairly obvious fundamental flaws with the proposed program, which came to light when The Intercept reported that at a July 2017 “Industry Day” the agency sought input from the private sector about developing a automated process for the “current manual vetting process” that would evaluate whether a visa applicant: 1) would become “positively contributing member of society;” 2) had the ability to “contribute to the national interests;” and 3) “intends to commit criminal or terrorist acts after entering the United States.”

The evaluation would be based on information about potential visitors from publicly accessible platforms such as “media, blogs, public hearings, conferences, academic websites, social media websites…radio, television, press, geospatial sources, internet sites” as well as information held in government databases.

The inherent subjectivity of measuring whether someone will contribute positively to society or the national interest is obvious. As the tech experts pointed out:  Continue Reading »

The Trump-Russia-WikiLeaks Alliance and Campaign Finance Laws

The news cycles are busy with revelations about the Trump campaign-Russia-WikiLeaks connections, and they may be moving more quickly than the capacity to absorb their legal significance. With each revelation, there is a rush to ask whether the new piece of information is somehow the “smoking gun,” or not a major advance in the case, or–as the Trump campaign would have it– proof that this is much ado about nothing.

The WikiLeaks-Trump Jr. correspondence has passed through this round of commentary. I thought that these Twitter exchanges unquestionably deepened the campaign’s legal exposure to liability for aiding illicit foreign national activity in U.S. elections. It seemed to me, as I wrote, that “the facts and circumstances here are without precedent” and that “it is hard to imagine that any truly neutral analyst informed about the law would conclude otherwise.” And yet there are highly knowledgeable scholars and observers who do not apparently see things this way.

Skeptics included experts such as Paul Ryan and Rick Hasen. Ryan saw nothing especially powerful in the contacts: no evidence, as far as he was concerned of “anything of value” that the campaign solicited or received from the Russians via Wikileaks.  He believes that compared, say, to the revelation of the Trump Tower meeting,  the Trump Jr.-WikiLeaks exchanges to be “small potatoes.”Hasen has doubted that Wikileaks’ activity was even part of the legal story. He sees it as potentially a foreign media organization operating like any other news entity in receiving and distributing information from various sources, including the Russian government.

This is not to say that either Hasen or Ryan doubt that there is evidence of a campaign finance violation in the public reporting to date on the Trump campaign-Russia connection. Both have identified serious issues raised by the June 2016 Trump Tower meeting between senior campaign officials and Kremlin emissaries. , But they hesitate to assign much independent weight to the WikiLeaks correspondence. And on that we disagree,

So what are the reasons for the disagreement?   Of course, lawyers can dispute the law and its application to a particular set of facts, as we do–all the time. But the difference in outlook in this instance is worth exploring.  This difference turns on how any new evidence is evaluated–either more or less in isolation, or in relation to others within the emerging picture of the Russian-Trump campaign alliance.

It is crucial to keep this picture in view. This is a case in which, in the face of specific federal law prohibitions on foreign national contributions, a presidential campaign openly welcomed the intervention of a foreign power and communicated private encouragement and support of the specific steps Russia and its agents, including WikiLeaks, took to intervene. On further investigation into matters like the revisions in the GOP platform on Ukraine, it may turn out that the campaign rewarded its Russian ally with changes in policies for which the Putin regime was actively agitating. It seems that many of those unconvinced that there is a serious legal problem approach this case like a garden-variety campaign finance question, taking each disclosure in turn and trying to determine whether it somehow “makes the case.”  The law prohibits a foreign national from providing a campaign with any “thing of value,” but they are unsure that the materials the Russians stole and disseminated qualify as such.  The law prohibits coordination between a campaign and a foreign national, but they don’t see the public appeals for Russian support, reinforced with private messaging such as Don Jr’s emails with WikiLeaks, or meeting with Kremlin emissaries, as quite fitting within the statutory definition. Rather than judge Wikileaks as has the Director of the CIA–as a “hostile non-state intelligence service” –they picture it more as an informational site available for third-party posting.

But this is not a garden-variety campaign finance case. In such cases, the state’s regulatory interests are painstakingly balanced against citizens’ constitutional rights.  In the Trump-campaign Russia relationship, the balance is not the same, for the indisputable reason that Russia has no constitutional right to participate in a US election and the Trump campaign has no such right to solicit or receive the benefits of that participation.

Congress and the Foreign National Prohibition

The Trump campaign might try to plead vagueness in the law and in so doing salvage something of a constitutional claim. But Congress twice since 1974–in that year and again in 2002–established that (absent a specific exemption) it would brook no involvement by foreign nationals in federal elections. And by none, it meant “none.”  The sponsor of the original provision, Senator Lloyd Bentsen of Texas, declared that foreign nationals “had no business” in US elections. (120 Cong. Rec. 82083 (1974)). Continue Reading »

Hacking Back in Black: Legal and Policy Concerns with the Updated Active Cyber Defense Certainty Act

 

For years now, there has been a discussion surrounding the feasibility of active cyber defense, and allowing private entities or individuals to “hack back” against hostile cyber activity, but there has not been a major push in Congress to explicitly authorize such activity, or to propose changes or exceptions under the current legal and statutory framework that would enable it. But a proposal by Representatives Tom Graves (R-GA), Kyrsten Sinema (D-AZ), titled the Active Cyber Defense Certainty Act (ACDC) (H.R. 4036), is starting to change the conversation. The new draft legislation provides an exception to liability under the Computer Fraud and Abuse Act (CFAA) and, in essence, would authorize individuals or organizations to go into networks outside of their own to gather intelligence on hackers for attributional purposes. To date, the proposal has undergone at least three rounds of public scrutiny, after which, to the great credit of Graves’ office, the draft language has been updated, and it now takes into account some legitimate concerns and criticisms. Some of these critiques should be examined carefully, from both a policy and legal perspective, as the bill makes its way through committee.

Important Concerns Left Unresolved by the Updated Bill

The text provides at Sec. 4 (1) that “It is a defense to a criminal prosecution under this section that the conduct constituting the offense was an active cyber defense measure.” The term “active cyber defense measure” is defined as any measure

“(I) undertaken by, or at the direction of a defender; and (II) consisting of accessing without authorization the computer of the attacker to the defender’s own network to gather information in order to – (aa) establish attribution of criminal activity to share with law enforcement and other United States Government agencies responsible for cybersecurity; (bb) disrupt continued unauthorized activity against the defender’s own network; or (cc) monitor the behavior of an attacker to assist in developing future intrusion prevention or cyber defense techniques.”

The term “defender” is defined as “a person or an entity that is a victim of a persistent unauthorized intrusion of the individual entity’s computer”. (Emphasis added). As Robert Chesney at the University of Texas, Herb Lin over at Lawfare and others have noted, the word “persistent” is probably an effort to prevent invocation of ACDC by somebody who has experienced an intrusion that is only a nuisance on their computer network. However, the word “persistent” is not precise either. As Chesney noted, it could refer to the time on a network in relation to a particular intrusion, or to a series of intrusions, or both. How do we know what is enough to count as persistent? If an “attacker” bounces on and off a network over a period of time does this count as persistent? The term itself leaves room for interpretation.

The text defines the term “attacker” as “a person or an entity that is the source of the persistent unauthorized intrusion into the victim’s computer.” However, the draft legislation does not define what the “computer of the attacker” is. Chesney and Lin also had concerns with this language and previously noted that often times, there is more than one computer in an attack chain. How does one determine what the source of the intrusion is if there are multiple computers involved? The updated version of the draft proposal defines an “intermediary computer” as “a person or entity’s computer that is not under the ownership or primary control of the attacker but has been used to launch or obscure the origin of the persistent cyber-attack.” Nonetheless, it can still be difficult to decipher when such intermediary computers are under the control or ownership of the attacker, moreover, those types of “intrusions” on such intermediary computers can be brief as well.  Continue Reading »