Five (Overlooked) Decision Points for the Trump Administration in National Security

What are the decision points that the President-elect’s transition team and incoming administration will likely face over the horizon in the national security arena? News media and commentators have highlighted issues that now dominate headlines including: relations with Russia, Israeli settlements, the Iran nuclear deal, torture, Syria and ISIL strategy, North Korea’s nuclear program, and freedom of the press. What might be missing or overlooked?

The following are five “under-the-radar” topics or under-the-radar angles on topics that have not received the same attention.

1. In bed with Iran?

One of the most consistent policy views across Trump’s picks for senior administration positions is a hardline against Iran. An important issue for senior officials in the Trump administration will not just be the fate of the Iranian nuclear deal, but addressing Tehran’s influence and mischief in the region. This raises two decision points on the horizon.

First, how would the United States work with Russia in places like Syria without also getting into bed with the Iranians? Recall that Russia and Iran closely coordinate their military activities in Syria (and here), and that Russia and Iran have worked to create inroads in Iraq through combined intelligence sharing.

Second, how will a Trump administration address Iranian-backed militia in Iraq? The commander of US operations against ISIL, Lt. Gen. Stephen Townsend spoke highly favorably about these militia forces in an exclusive interview with the Daily Beast in December 2016:

A new Iraqi law that goes into force this week makes militia forces here legal. Such groups—especially Iranian backed Shiite armed forces—have been accused of war crimes against Iraq’s Sunni minority. The U.S. has ordinarily eyed these units warily.
But Townsend, in an unusual statement for an American commander, said these militias have been “remarkably disciplined” allies since he arrived.

That statement follows a December 2016 press briefing in which the US military spokesperson for counter-ISIL operations lauded the groups for having “been very successful” in closing off egress routes from Mosul. He also stated, “We conduct strikes in support of those forces” when they are partnered with the Iraqi government’s military, police, or counterterrorism service. (For more on potential connections between the U.S. military and members of these groups, see also this LA Times story from December about US military training and equip programs, and this story from Al-Monitor in March.)

The Iraqi Parliament’s recent law integrating these forces as state military corps will further complicate how the Trump administration can work with Iraq and keep a distance from Iran.

2. Russia hack: Eyes on Pompeo

This month the Intelligence Community will presumably submit a finalized report with their findings on Russian cyber activities during the presidential election. One focal point for this issue will surely be Rep. Mike Pompeo, including his confirmation hearings to head the CIA. What position will Pompeo take during the confirmation process? How will the Trump team advise him? What will and can Pompeo do to protect the interests of the CIA as its director and bridge the divide with his boss? How will Trump respond to the positions that Pompeo takes?

Left to his own devices, Pompeo would presumably side with the CIA’s work on the Russia hack. Like some of Trump’s other senior administration picks, Pompeo takes a relatively hardline on Russia and has a developed distrust of Putin. As an example, Pompeo called Secretary John Kerry’s proposal to share intelligence with Russia in Syria a “dumb idea” and “such an awful idea” that showed the “silliness” of the Secretary of State. Pompeo has also previously referred to Russia’s, China’s, and Iran’s “active cyber programs to steal emails” such that “[o]ne has to assume those bad actors are going to obtain access to those [the DNC and Hillary Clinton’s] servers.” It will be notable when Pompeo next takes questions from the press.

Along these same lines: who will Trump pick to replace James Clapper as Director of National Intelligence?

3. Immigration: Depends on what your definition of “criminal” is

In October, the New York Times reported that “Mr. Trump recently softened his position on immigration, forgoing his calls for mass deportation in favor of a focus on ‘criminal aliens.’” But how much daylight is there between mass deportation and Trump’s notion of “criminal aliens”? The Trump administration will have to decide how wide to cast the net. As president-elect Trump told 60 Minutes that he plans to focus on deporting up to 3 million “criminal” immigrants. Several commentators suggested that there are not as many immigrants in the United States with criminal convictions to match the President-elect’s numbers. But those commentators may frankly lack imagination. The Trump transition team’s conception of “criminal” apparently includes people with no criminal convictions like “a known gang member.”

Against this backdrop, the Trump team would be well advised to heed the information in the exit polls from election day. As I wrote before, according to the exit polls:

A supermajority (70%) supported offering legal status to “illegal immigrants working in the U.S.” (25% instead supported deporting them). Here’s an even more vivid way of breaking down the results: a majority of Trump’s own voters (53%) supported a path to legal status!

4. The Fate of Edward Snowden

Will Trump secure the extradition of Edward Snowden to face a federal trial? Will he feel pressure to take such action having boasted that he would easily achieve that goal? On account of his relationship with Putin, Trump told CNN in July 2015, “If I were a president, Putin would give him over. … He would never keep somebody like Snowden in Russia,” and Trump added, “I guarantee you this.” Trump’s stated views about Snowden’s actions have been consistent over time. From the start in June 2013, Trump called Snowden a “traitor;” he then first implied and later explicitly said that Snowden should be executed. As a presidential candidate in 2015 Trump continued, “I think he is a total traitor. And I would deal with him harshly.” Trump’s pick for running the CIA, Rep. Mike Pompeo has said “the traitor Edward Snowden … should be brought back from Russia and given due process, and I think the proper outcome would be that he would be given a death sentence.”

5. Aiding and Abetting War Crimes by Foreign Partners

If the United States might ever end up aiding or assisting another state in the commission of international legal violations, the US government runs legal risks and government lawyers will need to advise their policy clients accordingly. When the recipient state’s officials engage in war crimes, it is not just the United States as a government that may be on the hook. U.S. officials may be individually criminally liable for aiding and abetting a war crime. Trump officials may need to heed such warnings more than other administrations. The lack of public trust in Trump and the President-elect’s disinclination to respect the standard laws of war increase the likelihood of scrutiny by prosecutors, courts, foreign allies, and others.

There are multiple decision points in which the Trump administration will need to weigh these kinds of risks and consider the legal prohibitions. Here are two examples:

Example 1: Support for Saudi-led coalition operations in Yemen
Especially in light of the White House decision to limit military support to Saudi Arabia due to concerns about widespread civilian casualties, it is worth revisiting this post: “The Law of Aiding and Abetting (Alleged) War Crimes: How to Assess US and UK Support for Saudi Strikes in Yemen”

Example 2: Collaboration with Russia in Syria
National security lawyers across different agencies would have to consider legal prohibitions on aiding and assisting Russia in light of widely reported systematic war crimes by the Russian military, in which case it will be worth revisiting this post: “Is the US-Russia Pact in Syria Barred by International Law?”

 

Image: Vladimir Putin With President of the Islamic Republic of Iran Hassan Rouhani, May 21, 2014, Russian Presidential Press and Information Office, Wiki Commons

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.