Cuba Isn’t Worth the Headache. But See Colombia.

When ‘Cuba’ and ‘national security’ are mentioned in the same sentence, they tend to be followed by phrases like ‘refugee wave,’ ‘Marxist revolutionaries’ and ‘missile crisis.’ The steps towards normalization of relations with the old Communist foe have caused reactions as varied as the embargo is old, but the ship has set sail and Americans should start accepting that this country’s future with Cuba is going to look a lot different than it did to their parents. Or grandparents. Or great-grandparents. Continue reading “Cuba Isn’t Worth the Headache. But See Colombia.”

Loudspeakers: The Winning Strategy Against North Korea? Part II

Beginning of this year, South Korea and North Korea began shouting at each other again. It was just last August when the escalated tension between two divided nations came to a halt. Then on January 6, North Korea conducted an underground nuclear test at Punggye-ri Nuclear Test Site, causing tension between the two Koreas. The United States Geological Service reported a 5.1 magnitude earthquake from the location[1]; China Earthquake Networks Center described the seismic activity a “suspected explosion.”[2] As the investigation of the test began, South Korea began blasting loudspeakers over the border again.

What is Broadcasted Over the Loudspeakers?

Propaganda has been a useful weapon to South Korea since the Korean War. North Korea is a nation where its survival is based on isolation. Information is closely monitored, and its people live in complete isolation from the world. The Juche ideology, the cornerstone of party works and government operations, emphasizes a Korea-centered revolution. The three core tenets are political independence, economic self-sustenance, and self-reliance in defense. North Korean government controls almost every aspect of its people, and this control is use to perpetuate a cult of personality surrounding Kim Il-sung and Kim Jong-il. Since its people does not have any idea of the world outside of North Korea, much of the broadcast over the loudspeakers are world news, weather, and K-pop songs, mostly intended to demoralize North Korean soldiers along the border. World news and weather is broadcasted as a strategy to gain trust of the North Koreans at the border and foster mistrust in its own government. Weather, for example, is broadcasted giving warnings of rain or snow. North Koreans who hear this broadcast soon find out the weather broadcast to be true and respond accordingly, such as carrying umbrella when they go out or collecting and taking their laundry inside their home. South Korean pop and drama are broadcasted due to its popularity in North Korea, especially because North Korea pretty much has no pop culture and to show them that the world has modernized. Moreover, North Koreans are prohibited from listening to K-pop, and are allowed to listen only to government-controlled radio stations or TV channels. Despite the restriction by the government, South Korean pop culture has crossed into North Korea. Some defectors say that South Korean music is popular in their country. [3]

How long is the broadcast and how far does the sound travel? According to South Korean military spokesperson, there were two to six hours of broadcast daily, day and night, without any set schedule. The distance of the broadcasts varies depending on the time of the day and the weather. During the day, the broadcast carries for over six miles, and on maximum power at night, it can reach as far as 15 miles. This is far enough to reach Kaesong, one of the largest cities in North Korea,

Does it work?

While it is difficult to know how much influence the broadcast has in North Korea, it seems to be an effective propaganda tool. Even though the broadcast is heard up to 15 miles from the border, it is possible that the message could spread via cell phone.[4] Ju Seung-hyeon, who served in a North Korean propaganda broadcast station on the border before defecting in the early 2000s, told a South Korean newspaper that Seoul’s messages influenced his opinions over a prolonged period. He initially believed that the broadcasts were lies. However, in a span of two years, he believed most of it.[5] Jang Jin-sung, a former North Korean propaganda official and who defected North Korea in 2004, said that the broadcast are powerful because they undermine the North Korean government and “it’s akin to a peaceful version of the nuclear bomb.”[6]

The use of loudspeakers caused exchange of artilleries between the two countries last August, before South Korea agreed to halt them. Moreover, North Korean delegates repeatedly demanded the halt of the broadcast, citing concerns that it was agitating their solders on the border. North Korea’s violent retaliation and South Korea’s loudspeakers may be an indication that it is a powerful weapon against North Korea, or at least it is a powerful bargaining chip to use in negotiations.

[1] Greg Botelho, U.N. Poised to Act against North Korea After Latest Nuclear Test, CNN Jan. 7, 2016,  http://www.cnn.com/2016/01/06/asia/north-korea-hydrogen-bomb-test/index.html.

[2] North Korea Claims Successful Hydrogen Bomb Test After Quake, Channel NewsAsia Jan, 6, 2016, http://www.channelnewsasia.com/news/asiapacific/man-made-quake-detected/2402490.html.

[3] Ask a North Korean, Do You Love K-pop, Guardian Newspaper, June 18, 2015, http://www.theguardian.com/world/2015/jun/18/k-pop-south-korea-ask-a-north-korean.

[4] Alexandre Dor, North Korea’s Achilles Heel: Propaganda Broadcasts, The Diplomat, Sept. 12, 2015, http://thediplomat.com/2015/09/north-koreas-achilles-heel-propaganda-broadcasts/.

[5] Alastair Gale, High-Wattage Speakers Play Role In Korean Deal, Wall St. J., Aug. 28, 2016,  http://www.wsj.com/articles/high-wattage-speakers-play-role-in-korean-deal-1440758282.

[6] Id.

Donald Trump, Illegal Orders, and the Law of Armed Conflict

During the course of the current Republican Primary campaign, Donald Trump has made a number of jarring comments regarding American armed forces and the actions he would take as president. At a rally in Columbus, Ohio, Trump said that he approves not only of waterboarding, but also that he would bring back “a hell of a lot worse than waterboarding.” Trump elaborated on his belief that waterboarding is an effective means of extracting information from terrorists, saying, “only a stupid person would say it doesn’t work,” and that even if waterboarding were not effective, “[terrorists] deserve it anyway for what they’re doing.” Trump has also waxed nostalgic for the days “when we were strong” and Sergeant Bowe Bergdahl, who is being tried for desertion and misbehavior before the enemy, would have been summarily executed. Decrying the politically correct nature of the present conflict with ISIS on Fox News, Trump said, “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

In response to Trump’s comments about waterboarding and killing the families of terrorists, General Michael Hayden, former Director of both the NSA and CIA, said that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” Gen. Hayden, in an interview with Bill Maher, said that if members of the American armed forces were ordered to kill the families of terrorists, they would refuse to act. Gen. Hayden explained that members of the military are not required to obey an unlawful order and that Trump’s hypothetical order would be a violation of international laws of armed conflict. When asked about Gen. Hayden’s statement at a Republican Debate, Trump responded, “They’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.”

Under military law, a soldier is generally subject to criminal sanctions for failing to follow a superior’s lawful order. [1] The only defense available to members of the armed forces for failing to follow an order is that “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”[2] More specifically, the standard is that “manifestly illegal orders must not be obeyed.”[3] Determining whether an order is manifestly illegal or not can be difficult because “[m]embers of all armed services have a right to presume the lawfulness of orders they receive.”[4]

The presumption of legality “helps maintain and promote good order and discipline . . . . Since subordinates do not risk incurring liability in most situations, the presumption effectively compensates for the subordinate’s lack of information and eliminates the possibility of hesitation and delay in carrying out orders.”[5] Thus, a soldier’s duty to disobey applies only to “a positive act that constitutes a crime [that is] so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their lawfulness.”[6] Under this standard, “a person’s conscience, religious beliefs, moral judgment, or personal philosophy” do not constitute manifest illegality “to justify or excuse the disobedience of an otherwise lawful order.”[7]

The relevant standard in determining whether an order is manifestly illegal is “would a reasonable person recognize the wrongfulness of the act or order, even in light of a soldier’s duty to obey?”[8] Thus, in cases where the legality of an order is uncertain, “the order must be presumed lawful and it must be obeyed.”[9]

If a U.S. service member believes that an order is manifestly illegal or beyond the authority of the superior issuing the command, the order should not be obeyed.[10] The service member should then “ask for clarification of the order to ensure it was correctly understood, or correctly heard, or was not merely misspoken by the senior person.”[11] Should the superior issuing the order persist, a subordinate must then report the incident to a higher authority.[12]

Under this analysis, an order from President Trump to murder the civilian family members of a suspected terrorist would most certainly qualify as a manifestly illegal order. In his interview with Gen. Hayden, Bill Maher remarked that the military would commit a coup d’etat by refusing to follow an illegal order from Trump. However, “receipt of a manifestly illegal order is not justification for a subordinate to attempt to relieve the superior of duty or, even more unwise, to take physical action, such as resorting to armed force, to stop a superior’s unlawful plan.”[13]

In an interview on CBS, Trump said that, “We have an enemy that doesn’t play by the laws. You could say laws, and they’re laughing. They’re laughing at us right now. I would like to strengthen the laws so that we can better compete.” Trump went on to say, “I happen to think that when you’re fighting an enemy that chops off heads, I happen to think that we should use something that’s stronger than we have right now.”

Trump’s concerns with fighting an enemy that eschews the laws of armed conflict were presaged by former Secretary of Defense Donald Rumsfeld. “There’s something about the body politic in the United States that they can accept the enemy killing innocent men, women and children and cutting off people’s heads, but have zero tolerance for some soldier who does something he shouldn’t do.”[14] However, the laws of armed conflict (LOAC) serve a critical purpose. “We obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”[15] To view weakening the standards of professional conduct of the battlefield as “strengthening” the laws is Orwellian, at best. Engaging groups such as ISIS in a competition of cruelty is beneath the dignity of the United States. The duty of members of the armed forces to disobey manifestly illegal orders serves to protect the honor of the profession of arms as well as our republic.

 

 

 

 

 

 

 

[1] Captain Robert E. Murdough, I won’t participate in an illegal war: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law. Jul. 2010, at 4, 5.

[2] See id. (quoting Manual for Courts Martial, United States, R.C.M. 916(d) (2008)).

[3] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 359 (2010).

[4] Id.

[5] James B. Insco, Defense of Superior Orders Before Military Commissions, 13 Duke J. Comp. & Int’l L. 389, 393 (2003).

[6] Solis, supra note 3, at 359 n. 111 (citing United States v. Huet-Vaughn, 43 M.J. 105, 107 (1995)).

[7] Id. at 359.

[8] Id.

[9] Id. at 360.

[10] Id.

[11] Id. at 361

[12] Solis, supra note 3, at 361.

[13] Id.

[14] Id. at 11 n. 49 (citing Bob Woodward, State of Denial 486 (2006)).

[15] Id. at 9-10.

National Security v. International Law in the Wake of the Paris and Brussels Attacks

By Ayat Mujais

After the recent terror attacks on Brussels and Paris, there has been a push from numerous nations, such as the United States and France, to increase the use of force against the Islamic State of Iraq and the Levant (“ISIL”) in order to eradicate the dangers that it poses to national security. Both countries have already claimed that ISIL poses a major national security risk and have used force in Syria and Iraq to fight ISIL.[1] However, there has been backlash from various legal scholars who have determined that using force against ISIL to protect national security, particularly in Syria, is a violation of international law and the UN Charter.[2] This raises the important question of how to balance national security concerns against international law in the wake of extremists groups such as ISIL.

Article 2(4) of the U.N. Charter states that “All members shall refrain…from the threat or use of force against…any state”.[3] Although ISIL is not itself a “state”, ISIL resides within the territories of Syria and Iraq; therefore, any attacks on ISIL within either state essentially is an attack on the states’ territorial integrity. So how can one justify attacking ISIL? For countries such as France and Belgium, the answer is simple. The U.N. Charter provides in Chapter VII an exception, one that allows military intervention for the sake of self-defense if there is a threat of an imminent armed attack.[4] Because ISIL has succeeded in attacking cities in both France and Brussels, these states can justify using force without violating international law by claiming that they are acting in self-defense and protecting their national security.

The question is where does this leave states like the United States, who has claimed self-defense in order to use force against ISIL, but had not had an armed attack from ISIL within its borders. Many say the U.S. use of force against ISIL has been in violation of international law due to lack of justification under both traditional and customary international law – the United States lacks state consent from Syria[5] or from the Security Council[6] to use force on Syrian territory, and claims of humanitarian intervention[7] and anticipatory self-defense[8] are not viable. The only potential successful legal argument would be for the United States to claim self-defense of their national security.

To prove an armed attack is imminent for the sake of self-defense, the probability of an attack must be 100%.[9] However, the emergence of ISIL and its ability to carry out attacks on states at any time brings a new challenge to the concept of imminence. ISIL has proven that it will carry out its threats of attacks, as was seen with the incidents in Paris and Brussels.[10] Indeed, ISIL has threatened to attack the United States through proxies within the United States.[11] However, there is not 100% probability that ISIL will actually carry out these threats in the near future. It is possible that due to the fact that ISIL is by far the richest and most technologically advanced terrorist organization of its time, the concept of imminence under the right to self-defense is shifting to allow more leeway in states using force against ISIL in the name of national security, even without finding that there is 100% probability of an armed attack.[12]

This view is supported by the fact that the U.N. Security Council adopted Resolution 2249 this past November, which calls for “all necessary measures” to eradicate ISIL.[13] Although this Resolution does not provide a legal basis or authorization for the use of force, it does show that the use of force against ISIS may be permissible in self-defense of a state’s national security, especially in the wake of attacks such as those in Paris and Brussels.[14]

 

 

[1] Jethro Mullen and Margot Haddad, ‘France is at war,’ President Drancois Hollande says after ISIS attack, CNN (Nov. 16, 2015), http://www.cnn.com/2015/11/16/world/paris-attacks/; Letter from the President – Authorization for the Use of United States Armed Forces in Connection with the Islamic State of Iraq and the Levant, https://www.whitehouse.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection.

[2] Theo Farrell, Are the US-led air strikes in Syria Legal – and what does it mean if they are not?, Telegraph, Sept. 23, 2014, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11116792/Are-the-US-led-air-strikes-in-Syria-legal-and-what-does-it-mean-if-they-are-not.html.

[3] U.N. Charter art. 2(4).

[4] U.N. Charter art. 46-51, http://www.un.org/en/sections/un-charter/chapter-vii/

[5] Theo Farrell, Are the US-led air strikes in Syria Legal – and what does it mean if they are not?, Telegraph, Sept. 23, 2014, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11116792/Are-the-US-led-air-strikes-in-Syria-legal-and-what-does-it-mean-if-they-are-not.html

[6] U.N. Charter art. 46-51, http://www.un.org/en/sections/un-charter/chapter-vii/.

[7] David Kaye, The Legal Consequences of Illegal Wars, Foreign Affairs, August 29, 2013, https://www.foreignaffairs.com/articles/united-states/2013-08-29/legal-consequences-illegal-wars.

[8] Richard A. Falk, What Future for the UN Charter System of War Prevention?, 97 Am.  J. Int’l L. 590 (2003), http://www.tjsl.edu/slomansonb/9.1_FutureUNWarPrev.pdf.

[9] John C. Yoo, Using Force, 71 U. Chi. L.Rev. 1 (2004), https://www.law.berkeley.edu/files/yoo_using_force.pdf.

[10] Catherine E. Shoichet et al., New ISIS video threatens France, Italy, U.S., CNN (Nov. 19, 2015), http://www.cnn.com/2015/11/18/us/new-york-isis-video-threat/.

[11] Lee Ferran and Rym Momtaz, ISIS Trail of Terror, ABC News (Feb. 23, 2015), http://abcnews.go.com/WN/fullpage/isis-trail-terror-isis-threat-us-25053190

[12] Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case Western Reserve J. of Int’l L. 1 (2016), http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2741256.

[13] S.C. Res. 2249, U.N.Doc. S/RES/2249 (Nov. 20, 2015), http://www.un.org/en/sc/ctc/docs/2015/N1538413_EN.pdf.

[14] Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case Western Reserve J. of Int’l L. 1 (2016), http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2741256.

iConstitution: How Apple is using the Constitution as a basis for its argument against the FBI

It’s quite difficult to imagine exactly what the Framers of the Constitution would think of the construal of their document to protect the locked-away iMessages and data of the San Bernardino terrorists. Yet, the principles of the Constitution that Apple is using to rebut the arguments of the FBI protect the rights of the individual to privacy and due process in a succinct and powerful manner.[i]

Primarily at play are the First and Fifth Amendments, but Apple also relies upon an argument against the All Writs Act of 1789.[ii] The FBI is using the All Writs Act as its source of authority for the court order compelling Apple to create a new version of its operating system that would make it easier to access the iPhone’s password-protected data.[iii] Apple fears that the creation of such software would not only threaten the privacy of all Apple users, but would also place an undue burden on the company to either destroy the program after the FBI uses it or keep and protect it against the certain multitude of attempts by “criminals, terrorists, and hackers” to steal the software. [iv]

Apple’s First Amendment argument relies upon the established classification of computer code as speech.[v] The First Amendment, as it pertains to this issue, prohibits the making of any law abridging free speech.[vi] In this instance Apple argues that its interests are protected because the Supreme Court has clearly decided that First Amendment protections apply when the government attempts to compel speech.[vii] Apple cites Riley v. Nat’l Fed. of the Blind of N.C., Inc., which upholds the idea that the court must scrutinize attempts by the government to compel speech, and it will be allowed only when the request is of a scope narrow enough to obtain a compelling state interest.[viii] The FBI, Apple argues, does not meet this standard because it has produced nothing more than mere speculation of potentially relevant information on the phone.[ix] Further, any relevant information may be encrypted using non-Apple software in secure communication applications.[x]

The Fifth Amendment’s Due Process Clause is applied in an attempt to protect Apple from governmental conscription.[xi] The Fifth Amendment’s Due Process Clause states, “[n]o person shall … be deprived of life, liberty, or property without due process of the law…”[xii]Apple argues that a court order compelling the company to create a backdoor that unlocks the San Bernardino terrorists’ phone violates its Due Process because the government would be depriving Apple of its liberty.[xiii] The government cannot force a private company to perform actions that are excessively burdensome and “contrary to the company’s core principles,” and Apple contends that the FBI’s request that Apple creates software that allows access to this iPhone cannot succeed due to this protection.[xiv]

With respect to the FBI’s use of the All Writs Act, Apple maintains that the FBI’s order violates the two requirements developed through common law that are pursuant to all orders.[xv] The Act requires that orders “must not adversely affect the basic interests of the third party or impose an undue burden.”[xvi] Apple alleges that the FBI’s order fails the first requirement because it has a powerful interest in protecting its security systems and all Apple customers depend on the company for their privacy.[xvii] The FBI’s order fails the second requirement too, argues Apple, because Apple would be forced to create a program that undermines the security features the company spent years developing.[xviii] Further, if Apple is compelled to create such software, it would open the floodgates to a large number of parties seeking similar software.[xix] Apple would be forced to either build and destroy software for each phone they are compelled to break open or safeguard the software against certain numerous attacks by parties with dubious intentions, both of which are alleged to be an undue burden on the company.[xx]

Apple presents itself as the hero of the rights of private companies to protect personal privacy against valid governmental concerns. The company does not seek to negate the FBI’s need to access the San Bernardino terrorists’ iPhone data, but rather hopes to preserve and protect the rights of individuals at the cost of burdening the government. Apple’s reliance on integral amendments to the Constitution serve to bolster its stance and prove that though dated, the Constitution’s elasticity allows its application to the technological intricacies of the current times. The argument is powerful, but the FBI’s reliance upon the All Writs Act and public safety concerns may outweigh Apple’s protection of privacy.

 

[i] Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search, and Opposition to Govt.’s Mot. to Compel Assistance, 32:5.

[ii] Id.; Id. at 14:13,14.

[iii] Id. at 14:13,14.

[iv] Id. at 25:6-9.

[v] Id. at 32:15,16 (citing sources that treat computer code as speech under the First Amendment).

[vi] U.S. Const. amend. I.

[vii] Mot. to Vacate, 32:21,22.

[viii] Id. at 32:22-6 (citing Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988)).

[ix] Id. at 33:3-6.

[x] Id. at 33:8-10.

[xi] Id. at 34:10,11.

[xii] U.S. Const. amend. V.

[xiii] Mot. to Vacate, 34:14-17 (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010).

[xiv] Id.

[xv] Id. at 23:8,9 (citing United States v. Hall, 582 F. Supp. 717, 719 (E.D. Va. 1984).

[xvi] Id.

[xvii] Id. at 23:11-16.

[xviii] Id. at 23:20-22.

[xix] Id. at 24:6-8.

[xx] Id. at 24:17-19, 25:1,2.