As United States Attorney General Eric Holder said in a recent speech to Northwestern University law students, the US must always take care that its actions, even those in the name of national security, are “grounded on the bedrock of the Constitution”. In 2009, at a speech at the Nation Archives, President Obama claimed that “our values have been our best national security asset”. Despite this consensus on the benefits of recognizing the rule of law when ensuring security, many issues that involve these two interests inevitably invite a legal tug-of-war. The most consternating legal issue of our time has been digital privacy in an age of an increased need for surveillance. In 2015, an iPhone gathered as evidence from a San Bernardino scene of a domestic terror attack became the nexus of this debate. According to the 1789 All Writs Act, courts may issue any warrants needed in order to pursue justice. Federal investigators used this as the legal basis to push Apple, the manufacturer of the iPhone, to design a special operating system to break the encryption. Apple contended that the act did not cover the case and that the government could not force a private company to violate the integrity of their own product at their own expense.
Writing in the blog Lawfare in March 2016, Bobby Chesney and Steve Vladeck, a pair of legal experts at the University of Texas School of Law, tried to find a middle ground to this dispute. A 1977 Supreme Court case clarifying the usage of the All Writs Act stated that a third party, such as Apple, was required to help aid an investigation. This nullified Apple’s defense that the act did not apply. However, the case also laid out terms that governed when and how the government could ask a third party to aid an investigation. In order for a third party to be compelled to assist investigators, it had to be able to show that there was not an “undue burden” on the third party. In this case, the federal investigators would not win because Apple would have to design a completely new operating system just for this case, and then presumably bear the costs of keeping that operating system under digital lock and key or build another operating system the next time an investigation required it.
While it seems that Apple wins this legal battle, it may have lost the legal war. If the standard is now set at an “undue burden” for accessing this data, then any attempts for Apple to try and take data and monetize it also opens up the ability for the same data to be used in investigations. Federal investigators would therefore be pleased with Chesney and Vladeck’s solution. However, the biggest winners may be privacy activists, as freezing this conflict over data requires keeping it private. Ultimately, national security gains when the rule of law is respected and maintained when facing twenty-first century challenges.
Monday, November 28, 2016
Here in the aftermath of one of the most contentious and divisive elections in modern memory, we can reflect on several firsts for our country. Among those is the first hacking of a presidential candidate’s campaign and affiliated national committee by a potentially government sponsored foreign hacking group. There is little doubt that the targeted attacks of the Clinton campaign originated in Russia, and that they were government sponsored. There is also little doubt as to the reasoning behind the attacks. President Elect Trump made numerous comments along the campaign trail that appear to reflect a more amenable perspective on the Russians. It is pretty clear that Putin viewed Trump as the preferable choice in our election.
Fast forward to this month, and it would appear as though Russian hackers have moved on to the next target group: academics and think tanks. Given the important role that think tanks play in Washington policy making and geopolitical understanding, it stands to reason that our global rivals would want to now know what information their newly elected executive is being fed. It is no secret that think tanks like Rand and Brookings provide much of the background and analysis that our policy makers then use to make major decisions. Hacking these organizations give these foreign groups access to information, but also a means to distribute misinformation while posing as a substantiated source.
Think tanks have been used to influence policy on behalf of big business in the past, and will likely continue to do so. They represent excellent tools for decision makers who are pulled in numerous directions. When you can’t be an expert on everything, you rely on the perspectives of your trusted experts. In many cases, this is where the think tank fits in. In an administration which may, in large part, be more inexperienced in several arenas than its predecessors, these organizations may yet have a larger role to play. What better way to sway decisions in your favor? It’s worked before for others, why wouldn’t it work for a foreign government?
That is potentially the most important takeaway from the hacking story. Not only are they accessing data, they are infiltrating networks and gaining access to official emails, databases, and information portals. When everything is vulnerable, can anything be trusted? First, our election was influenced by foreign hacking. Now, it’s the very decisions made by our elected leaders. What’s next?
To go against the will of the masses is bold and foolhardy, and that could not be more the case than when the President-elect loses the popular vote by one of the largest margins in history. During his campaign, it seemed that Trump could only hear his own voice when he spoke, but now that he's beginning to grasp the gravity of the situation upon which he's been thrust, he seems to be opening his ears wider than ever. Whether he likes it or not (something we don't know from all his stinging criticisms of how our government operates), his decisions and actions are limited by the other two branches of government.
In reading Hersman's book on how American foreign policy is actually made, we can
see that Trump's presidency is not the end-all-be-all of foreign policy decision-making. For instance, the President may be the Commander in Chief of the Armed Forces, but the power to declare war still rests with Congress. Additionally, the State Department remains the de facto actor in foreign affairs for the United States. While it is historically unspoken code to operate within assigned directives, United States' Ambassadors have strayed from staying the course of established American foreign policy in the past (cue the Blood Telegram). Theoretically, the Secretary of State should be the President's right-hand man when developing foreign policy and making foreign policy decisions, so with all so much power in the foreign policy realm, fear of Trump's international endeavors is not unwarranted.
So. Wall? Almost certainly no. Some immigration task forces and executive orders? Probably. Trump's new-found power comes with great responsibility (=>), but a lot of that responsibility also lies with those around him (appointed though as they may be) and in the other branches of government. We will feel the effects of this Trump presidency in far more ways than just changing foreign policy, but for now, we can only speculate. With new cabinet rumors and appointments rolling in every day, the fate of American foreign policy rests on the will of the American people, their elected representatives, and everyone's willingness to play the cards we've been dealt.
Thursday, November 24, 2016
The idea of the DC swamp is an interesting and complicated one in the American perspective and in reality. A large portion of the public perceives the foreign policy decision-making process as controlled by a detached class of bourgeois, academic, elites that have little or no perspective on what the life of the average American is like. Within this perception, there doesn't appear to be much of an understanding among the public about how the process actually works: the input of think tanks, experienced professional diplomats, and national security experts, as well as a lot of insider baseball influence from the specialized media outlets that report on foreign policy.
Something really interesting happened with media coverage in the past few years. Polarization in the social sphere of American politics really became highlighted during this election season. It's certainly not a new trend, but it's definitely become more pronounced. This is well demonstrated in a Wall Street Journal project that illustrates how news events appear in the social media feeds of people who like conservative news publications versus people who like liberal news publications. The image that develops from this project is that Americans are not just choosing the news they want, they're choosing the facts they want and basing their ideas about what's happening in the world based on a set of facts that may or may not reflect reality, but do reflect what the want to see.
I understand this perspective. I come from the same socio-economic background where this idea tends to be the most prevalent. My family is low income, rural, and I am a first-generation college graduate. During holiday get-togethers such as this Thanksgiving, I frequently get ribbed in a half-joking manner about my aspiration to join the swamp in DC: “Why in the world would you wanna be an empty-shirt pencil pusher on the taxpayer dime when you can do real work with real people? Why join the liar’s club with the greasy-haired yuppies and the fat-cat doctors’ kids? You just wanna feel like a big shot in your suit and tie so you don’t feel like the white trash you came from.”
So I get it, OK? I do. There is a definite disconnect and cultural gap between those who contribute to the decision-making in DC and those who live outside that exclusive club. And it’s quite plausible that there’s an attitude of arrogance and self-righteousness among the policy elite that doesn't help ease these tensions. Author Jennifer Close recently wrote an excellent satirical novel about this culture called The Hopefuls. In the novel, Close highlights the cliquish social events attended by 20-something ladder climbers in the Beltway and the exclusive jargon they use to distinguish themselves from the plebeians below. The book captures the perception and some of the realities of the policy elite perfectly.
So obviously there’s a divide here. Whether this divide is in perception alone makes no difference. There is clearly a problem that has to be addressed. A bridge has to be built. The US has to create some structure, either cultural or formal in nature, that allows the American public to feel more connected to the decision making process. So here's my pitch of one facet of a potential solution, and forgive me if it's cringe-worthy or cheesy.
People from backgrounds like mine need to go into public service at higher rates. Public service jobs are largely filled with people who come from backgrounds with middle or higher income parents with some college education. That class of people reflects only a portion of American society, and it is the less-educated and lower-income portion of American society that has felt left out in recent years and that helped contribute to Trump's recent win. I also understand that this is no easy task. Problems of educational access, the importance education is given by lower-income families, and problems of practical costs are all barriers here. But the flat-out reality here is that if we're going to address the issue of such a large sector of the American public feeling left behind, we're gonna have to figure out a way to include them in the policy discussions. And including their kids among the ranks of the people we hire to research and advise policymakers is a good start. It'll contribute a diversity of backgrounds, ideas, and perspectives to policy, which is exactly what this sector of the American public seems to be clamoring for.
Posted by AtomicAnnoyance at 3:30 PM
Wednesday, November 23, 2016
There are two schools of thought on interpreting the Constitution. The first argues that the Constitution is aimed inwardly, that it is to be upheld in terms of the rights and security of citizens of the United States. The second school of thought perceives law as a global ideal instead of a national one. In this second view, a country’s respect for a person’s rights and security should not stop at its borders; it should extend to the country’s foreign relations.
Proponents of the second school of thought would likely argue that Osama Bin Laden should have been allowed a trial under due process. However, members of the first school of thought would claim that the surprise attack that ended his life was legal due to his acts of terrorism against the US. (For a deeper explanation of these two schools of thought and the Supreme Court’s independence, read chapter 12 of The National Security Enterprise by George and Rishikof.)
The unconventional War on Terror has put a strain on the ideology behind both schools of thought mentioned above. In practice, we have seen that the duty to eliminate a known terrorist outweighs the duty to respect an individual’s civil liberties. In some cases, this is also true when the terrorist in question is a US citizen.
President Obama believes it would be unconstitutional to kill an American citizen without due process. However, “when a US citizen goes abroad to wage war against America, and is actively plotting to kill US citizens, and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team … I would have detained and prosecuted Awlaki if we captured him before he carried out a plot, but we couldn’t. And as President I would have been derelict in my duty had I not authorized the strike that took him out” (from President Obama’s speech defending the targeted killing of Anwar al-Awlaki in 2011). Obama’s argument justifies ignoring US citizens’ Fourth Amendment constitutional right to due process if accused of a crime.
An important distinction Obama makes is that due process is to be followed unless it is impossible to capture the terrorist in question before he/she carries out a plot.
That was five years ago. Why does it matter now?
The War on Terror doesn’t seem to be slowing down, so President-elect Trump will likely have to face the issue of how to handle terrorists. His rhetoric leaves us with the feeling that he will not be soft on terrorists, presumably including ones that also happen to be US citizens.
Now the precedent has been set in this unconventional war for targeted drone strikes to be permissible, given that there is reasonable proof the intended target will instigate harm on civilians if he/she is not incapacitated. When capturing him is not possible, the current precedent is that a drone strike is an acceptable alternative. Obama was able to suspend the right to due process without consequence in al-Awlaki’s case.
We hope there won’t be another case in which a US citizen is designated as a terrorist waging war on the US from abroad. But with the spread of radical Islamic terror organizations (al Qaeda, ISIS, etc.), our legal experts need to be ready to examine such a case. It may turn out that a future case in which a drone is used to eliminate a US citizen for terrorism is deemed unconstitutional. However, I think this is unlikely due to the nature of our national security enterprise and the focus on keeping our homeland safe.
Monday, November 21, 2016
On February 12th, Supreme Court Justice Antonin Scalia passed away and left a seat open on the Supreme Court. President Obama nominated Merrick Garland to take his place. The Senate Republicans refused to confirm Garland. Senators argued the next President should nominate the open seat because they hoped for a republican president. The Senate majority received their wish, and Donald Trump will nominate the next Supreme Court justice. The question is why do we care? Why do we care what old judge gets nominated? Specifically, with regards to National Security policy, any laws or executive orders passed by the President such as building a Wall with Mexico, deporting mass amounts of illegal immigrants, ceasing Refugee resettlement, and limiting American values through limiting minority rights may one day be appealed to the Supreme Court, and enacting these laws will depend on how the Supreme Court rules. The listed below explains the role of the Supreme Court idea and how it will may play out in the next election.
1. The Supreme Court is the highest court in the land
|Justice Scalia is accounted for in this picture|
The Supreme Court stands as the highest court in the U.S., in other words, the buck stops there. Any legal case or law, including ones with National Security implications, can be appealed up to the Supreme Court. From there, the Supreme Court decides which cases they will take. This means the Supreme Court will set the agenda for which court rulings will come to them and more importantly the ones that will not, such as Trump's idea of building a Wall, which will create diplomatic and trade issues with Mexico.2. The Supreme Court is a check to the Presidency’s power
The founding fathers created the Supreme Court as a balance to the presidency’s power. The Supreme Court wields the power to rule any executive or legislative laws as unconstitutional. For example, the justices blocked President Obama’s executive order to regulate coal-power plants’ emissions. This means the court sits as a final indestructible roadblock to many of Trumps ideas that are on the precipice of unconstitutional.3. Their rulings impact our lives
The cases the court hears are usually of the upmost importance pertaining to critical constitutional matters such as inter-racial marriage and abortion laws. For example, by a 5-4 ruling in favor of same sex-marriage and against California’s state band on gay marriage, the Supreme Court disbanded not only California’s state law but also made same-sex marriage legal in all states. Under the new Presidency, the court takes responsibility of having the final say on any state or federal laws that may majorly impact our lives, such as the Muslim registration.4. Apolitical does not mean a-opinionated
The Supreme Court claims to be nonpartisan with no political alignment. However, these justices are people like you and I, which means they have their own opinions and beliefs that will impact their rulings. Trump has already said he will appoint a pro-second amendment and voting rights restrictions justice. The justice may rule in favor of such legislation as Ted Cruz’s bill to require birth of citizenship documents for voting that would put the poor at a disadvantage.5. This is a tie breaker appointment
|Scalia located third from the right|
Scalia’s death gridlocked the Supreme Court. Before Justice Scalia’s death, the Supreme Court slightly conservative with five, including Scalia, voting less liberal and four voting more liberal. Justice Scalia’s death opened an opportunity to tip the scales either further into the conservatives hands or into liberal hands. President Obama attempted to do the latter with his nomination with Garland. However, under Trump’s presidency it is highly likely the scales will tip deeply into conservatives’ hands. A hard conservative court may overturn key progressive accomplishments in the court such as LGTBQ, minority and women rights. Overturning some of these accomplishment will diminish America's national value of equality for all under the law.6. Trump plans a hardline conservative agenda with his appointment
Trump’s list is conglomerate of hard right conservatives many consistently pro-life, second amendment and voter restrictions as well as anti-women, minority and gay rights. Trump has already pledged to nominate a pro-life judge who will help over turn Rowe vs Wade. His list to achieve these goals include Iowan judge that ruled in favor of excluding contraceptives for women in Obamacare and a Colorado Supreme Court Judge who ruled University of Colorado’s ban on students carrying guns as unconstitutional. These judges have distinct hard right policies that could heavily sway the Supreme Court decisions.7. Potential for more appointments
Trump’s influence over the Supreme Court will amplify if he gains the opportunity to appoint more judges. Three other judges are 78 or over. Rush Ginsburg, the oldest member at 83, sits as one of the most liberal voices and Stehpen Breyer, 78, leans liberal as well. Additionally, Anthony Kennedy, at age 80, is known as the swing vote on the Supreme Court. If one of these justices dies, Trump can create a majority of hard conservatives that would stay in power for potentially decades to come.
Because he will be holding the highest office in the country in a matter of months, it is important to reflect on President Elect Trump’s potential view of executive power. But does it REALLY matter all that much? The past two presidential administrations have held vastly different views on the reach of executive power. The Bush administration was squarely in the “we can do pretty much whatever we want if we say national security” camp, while the Obama administration held the view of “we generally need to ask Congress if we want to do the big stuff”. While in theory, these views are highly divergent, in practice they have, essentially, been one and the same. While the Bush administration may not have believed it HAD to get Congressional permission to invade Afghanistan, it asked anyway. The same can be said of Iraq. When President Obama took office, it was easy for the administration to say they needed permission, because they already had it (the 2001 and 2003 Authorizations for the Use of Military Force (AUMFs) are still being applied to much of our international interventionism today). The change in stance was highly rhetorical, being used as a pseudo “get out of jail free” card when they wanted to punt a hard decision to the perpetually dysfunctional Congress (i.e. Syria).
Now that we have established that how Trump FEELS about executive power may not actually have much bearing on how he ACTS as the executive, let’s go ahead and explore that anyway. From early on in the campaign, it was pretty clear that Trump’s view of the presidency looked more autocratic than the system many of us are familiar with. He made statements about rewriting laws single-handedly, deporting 12 million illegal immigrants, banning all Muslims from entering the country, and even threatened political rivals. Vast over reaches threaten to further empower what lawmakers on both sides of the aisle have claimed has become a dangerously powerful presidency. Such a view of uninhibited executive authority working against the legislature contributed greatly to Trump’s strife, particularly with his own party leadership. I would say, without a doubt, that Trump’s view of executive power has consistently fallen more in line with that of the Bush administration.
So what does it mean? As far as domestic policy is concerned, there could be broad reaching implications for much of the American public. Or there could not be. How much was said that was simply campaign rhetoric? How much of what Trump said will he go through with? Domestically, he SEEMS to have softened up a bit, so who knows? In terms of foreign policy, Trump has appeared to espouse a very non-interventionist view. It takes decidedly less authority to do nothing than to do something, so I think the ramifications of a very broad interpretation of executive powers is less important. Less intervention, not more, could become the norm. Deference to Russia in crises throughout the Middle East and into Central Asia? Who knows? I’m not sure where we go from here, but if anything, Trump’s view of executive power and its resultant foreign policy will not be unlike the man himself, poorly informed and unpredictable.
Monday, November 14, 2016
The Office of Net Assessment was created with the intent of introducing long term strategic analysis and planning directly into the upper echelons of the Department of Defense’s leadership. However, the ONA is not the only think-tank styled organization known for this capability and a close relationship with the DoD. RAND Corp. and various private and semi-private think tanks offer similar capabilities and specialize more wholly in strategic analysis and planning. Many of these organizations, particularly RAND corp., is much better known for its role in the Defense Establishment and its importance to policy makers. The ONA has attracted significant criticism over its apparent lack of output in recent decades. Is the ONA being overshadowed by entities better equipped to address its own mission? What role has the DoD’s seemingly redundant arm maintained?
These questions seem more pertinent today than at any time since the fall of the USSR. If the actions of the new Secretary of Defense Ash Carter are anything to judge by then the DoD’s highest official is also questioning its purpose.
The ONA was formed in 1973 during by the Nixon administration. The ONA’s purpose was to act as a dedicated, compartmented long term planner for the Department of Defense. The ONA’s bureaucratic compartmentalization and close access to the Secretary of Defense was no accident of creation but purposeful. By removing the ONA from the direct scrutiny of Department Chiefs and other lesser, service specific officials the ONA’s ability to think, plan and chart the waters ahead for the DoD as a whole would be preserved. Andrew Marshall, the ONA’s long time and recently retired head, was known to guard his office’s access to the Secretary of Defense jealously, fighting any attempt to shift its centrality. Andrew Marshall, like the ONA he ran, kept his counsel to himself and the Secretary of Defense and was known by his associates as quiet, and unassuming.
Nonetheless, Marshall is often proclaimed to be the father of the Net Assessment framework and the man responsible for a revolution in military thought. Both critics and advocates describe him as the DoD’s very own Yoda – hearkening to the iconically wise, wizened character from the Star Trek films. Marshall may not have spoken publically about his work or his perception of what role the ONA played in the broader DoD but his silence, when considered with his actions, carries significance.
As Marshall fought to maintain the ONA’s close contact with the Secretary of Defense and its independence from the demands of the individual services he sought to keep his precious ONA above the bureaucratic horse trading of the DoD establishment. Marshall’s silence on the exact nature of the Net Assessment framework and the ONA’s role helps confirm this goal – Marshall understood that to give the ONA a public voice he would subject it to the scrutiny of the numerous interests which made up the DoD. If the ONA’s purpose is truly to be the think tank of the Secretary of Defense, an organization which produces analysis and assessment over the scale of decades specifically for the desk of the Secretary of Defense, then it would necessarily produce literature which would alienate it from the good graces of service chiefs. Recommendations on the future resource requirements of the DoD’s many missions, which the ONA produces, would undoubtedly threaten or privilege certain services over others. That this product is distributed directly to the Secretary of Defense would make the ONA even more suspect.
The ONA’s competitors in long term strategic assessment like RAND are already subject to the influence of the services. RAND’s many contributors and partners peddle their own perspectives independent of a single, guiding light of impartiality which Marshall supposedly held. Therein lies the ONA’s value.
The Secretary of Defense can commission studies and analysis of the strategic long-term to help inform policy decisions from many sources. None of these sources are simultaneously directly under the Secretary’s oversight and uniquely placed to remain impartial of the grand, byzantine labyrinth of the DoD’s bureaucracy. The ONA doesn’t need to compete by virtue of strategic assessment or by the application of Marshall’s net assessment framework. Rather, the ONA is valuable because of its isolation, mysterious operation and unpressured analysis.
Friday, November 11, 2016
This Veteran’s Day, America is a nation deeply divided. Thousands have taken to the streets to protest Donald Trump’s victory in the Presidential election. A petition on Change.org calling for the Electoral College to elect Hillary Clinton as President has earned nearly three million signatures. On social media, the hash tag #Calexit took off, echoing the British decision to leave the European Union.
While this civil unrest appears troubling, America may have dodged a bullet. Donald Trump has repeatedly called this year's presidential election rigged and has wavered on whether he would accept a Hillary Clinton victory. Half of Republicans would not accept Clinton, as their president. And if she would have won, nearly 70 percent said it would be because of illegal voting or vote rigging. Conversely, seven out of 10 Democrats said they would accept a Trump victory and less than 50 percent would attribute it to illegal voting or vote rigging, the poll showed. If Trump had lost, maybe the out lash might have been worse. In any case, neither side trusts the other.
Indeed, it appears trust in America is at an all time low. Americans' confidence in key U.S. institutions has remained very low since the financial crisis in 2007. Worryingly, the media and the judicial system continue to rank low, with Congress at rock bottom. The Military and the Police are the only institutions that still have high confidence by a majority of Americans. But this trust in the military leadership may not last.
The election of Republican Donald Trump as president could mean a breakdown in the relationship between civilian and military leaders. In an interview on ABC’s “This Week,” retired Marine Gen. John Allen criticized Trump for his rhetoric on the wider use of military force and torture. And if Trump followed through with those pledges, Allen said, it would create “a civil military crisis, the like of which we've not seen in this country before.” Gen. Allen warned that if Donald Trump were elected president, there would be mass unrest among the military rank and file over the policies that he would implement and pursue. The retired four-star general, who served as commander of the International Security Assistance Force in Afghanistan, was a featured speaker at the Democratic National Convention. Trump has derided the general as a failure.
A coup d’état, however, remains unlikely because service members would not execute it. In a Military Times’ survey of American military personnel, Donald Trump emerged as active-duty service members’ preference to become the next U.S. president, topping Hillary Clinton by more than a 2-to-1 margin, while more than one in five troops said they’d rather not vote if they have to choose between just those two candidates. Another poll gave Mr. Trump a nineteen point lead. Trump lead, 55 percent to 36 percent lead over Mrs. Clinton in an NBC News/ Survey Monkey online poll. Fifty three percent of military and veteran voters said they feel comfortable in Mr. Trump’s ability to be an effective commander-in-chief of the country’s military, compared to 35 percent for Mrs. Clinton. Mr. Trump also had a fifty three percent to twenty eight percent edge among military and veteran voters when it came to veterans’ issues.
|I could take over the country and I wouldn't lose voters!|
Donald Trump ventured into uncharted territory when he suggested that if elected he might remove some of the top generals now running the military. While the Republican presidential nominee slammed the foreign policy of President Barack Obama and former Secretary of State Hillary Clinton, he also targeted the top officers who have served under them, who are not political appointees and have defined terms of appointment. Individual generals and admirals have traditionally been removed from their posts for misconduct or a failure to perform their duties. Firing a group of them en mass would be unprecedented. Should the commanders refuse orders or resign, Trump could replace them with loyalists. Trump may not only drain the swamp in Washington, he may be America’s man on horseback.