Punitive Strikes, Keeping the Seas Safe

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Freedom of the seas and their safe navigation has been a fundamental principle of American international relations since the nation’s inception. It ensures the ability of American merchants to access markets overseas, thus helping secure our economy, and ultimately provide security and stability for the nation. The Quasi-War and the Barbary Wars were both fought to protect American shipping. One of the reasons the War of 1812 began was because of the impressment of American sailors by the British Navy. Moreover, the United States did not become involved in the First World War until after incidents at sea involving the sinking of American ships and those carrying American goods. Freedom of navigation is something that the United States has always taken seriously and continues to today, whether it is in the South China Sea or the Bab al’Mandeb.

More than 3 million barrels of oil transit the Bab al’Mandeb daily, as do millions of tons of cargo: making it one of the world’s busiest and most important shipping lanes. Bordering the straits to the north and east is Yemen: a country that has been torn apart by civil war and one that hosts a group of rebels who seem more than willing to fire off anti-ship cruise missiles (ASCMs) into a waterway with a high density of merchant ships. ASCMs like the C-801 Sardine and the C-802 Saccade used by the Houthi rebels (and likely supplied by Iran) are old technology without the most advanced targeting systems. Put simply; they are big dumb missiles that will go after whatever the closest and largest target happens to be: in the Bab al’Mandeb that is most often going to mean either a container ship or an oil tanker. Indiscriminate attacks on merchant traffic using ASCMs was exactly the tactic that Iran employed during the 1987-88 Tanker War in the Straits of Hormuz, and while it did not significantly affect the global economy or the prices of oil at the time, it certainly had the possibility that it could have wreaked havoc. The major consequence was that it led to significantly greater U.S. involvement in the region.

There was a time when navies and naval infantry forces conducted punitive raids to resolve situations like this; today, they launch cruise missile strikes instead, but the intent and purpose remain the same. These strikes are often limited in nature (in this case destroying three radar sites located along the Red Sea in Yemen) and designed to provide collective self-defense by removing offensive capabilities of a nation threatening peace in the region. Yet, whenever the question of punitive strikes comes up, so too does their legality under international law.  On April 18, 1988, in retaliation to Iran mining of waters of the Persian Gulf that resulted in the near-sinking of the USS Samuel B. Roberts, the United States Navy destroyed two Iranian oil platforms and in the resulting naval engagement with the Iranian navy, six Iranian boats were either crippled or sunk. The United States provided justification for these actions by invoking Article 51. However, because the oil platforms threat to United States ships and there being no conclusive proof that the mine that damaged the Samuel B. Roberts was Iranian, and the United States stating that it did not act in the interest of collective self-defense, the International Court of Justice held in 2003 that the actions were not justified under Article 51. In a different incident, a decade later in 1998, the United States carried out strikes in Iraq. These strikes were after Iraq had ceased cooperation with United Nations weapons inspectors and were against Iraqi military facilities capable of developing and delivering weapons of mass destruction against other countries in the region. This selective targeting of facilities of this type in a country that had previously made use of such weapons against its neighbors as well as its own civilians would qualify as collective self-defense⸺albeit their anticipatory nature⸺under Article 51.

Today, punitive strikes continue to take place somewhat regularly. We often hear about them in the form of drone strikes, but used properly, these too fall under pre-existing laws and can be used to carry out punitive strikes, as permitted under Article 51. Often such strikes are necessary to preempt attacks by rogue nations and terrorist groups on their neighbors and innocent third parties. In fact, would go one step further by saying that, navies⸺and militaries, in general⸺have a moral obligation to conduct limited and targeted strikes as part of keeping the sea lanes open, free, and navigable. Sometimes, the use of such strikes can be abused, but simply letting the Houthis continue to endanger an international waterway and potentially drag the American military into the Yemeni Civil War would likely escalate a regional conflict and therefore, would be a grave mistake and set a dangerous precedent going forward.

 


By Prescott Heighton


 

President-elect Trump’s Road to Reviving Enhanced Interrogation Techniques (EIT)

Over the course of Donald Trump’s campaign, the President-elect has made clear that he intends to revive Bush-era enhanced interrogation techniques (EIT), widely labeled as torture. Specifically, Mr. Trump has touted support for waterboarding, stated “torture works” (EIT advocates specifically avoid the term ‘torture’ as it is an unequivocal violation of domestic and international law), and that the US must “do things that are unthinkable” to elicit intelligence from detainees, despite the Senate Select Committee on Intelligence concluding the opposite.

With a Congress strongly positioned against EITs, how realistic is a revival of the program?

Since 2006, detainee interrogation techniques are outlined in Army Field Manual 2 22.3 (Manual) and provide methods for human intelligence collection that do not violate the US Constitution or any international treaties. After 9/11 and well before the Manual, President Bush approved EITs for al-Qaeda, Taliban, and associated forces captured in Afghanistan (later expanded to Iraq and other countries) after a memo from Jay Bybee, then an attorney in the Office of Legal Counsel, concluded that such detainees were not considered POWs and the Geneva Conventions protecting POWs (GPW) did not apply to them. With the GPW suspended in early 2002, the Bush administration approved EITs for use on detainees in US custody at Guantanamo Bay (GTMO), Cuba, and US military and intelligence locations around the world. The CIA and DOD conducted the program until 2009 when President Obama, on his second day in office, issued Executive Order (EO) 13491 and prohibited interrogation techniques not included in the Manual.

For Mr. Trump to revive the EIT program, he will need to take the following steps:

  1. Repeal President Obama’s EO 13491 – EO 13491 revoked President Bush’s EO 13440, which provided executive authorization for suspending the Geneva Conventions and broadly stated the responsibilities for the Director of the CIA in dealing with detainees. By revoking President Obama’s order, Mr. Trump may resuscitate the directives outlined in EO 13440 and again grant authority to the CIA and DOD to conduct the program. Mr. Trump has promised to “cancel every unconstitutional executive . . . order issued by President Obama.” Although the constitutionality of EITs argument has been largely settled, one should assume that, in this case, revocation would apply to EO 13491.
  1. Review and Revise the Manual – Per the Anti-Torture Amendment discussed below, interrogation techniques must adhere to Manual guidelines and the Manual must be reviewed every three years to ensure compliance with US legal obligations. The review includes a report by the “High-Value Interrogation Group” (Group), an interagency body comprised of the Secretary of Defense, Director of National Intelligence, Attorney General, and “other appropriate officials.” Group members are presidential appointees and may recommend amending the Manual to authorize the “best practices for interrogation that do not involve the use of force.”
  1. Access the Purse – For detainees in DOD custody, Senators and John McCain (R-AZ) and Dianne Feinstein (D-CA) introduced an amendment to the National Defense Authorization Act for FY 2016 and built a wall around the purse to prevent access for this specific purpose. The McCain-Feinstein Anti-Torture Amendment provides, inter alia, that the Manual be followed for interrogations. The Manual prohibits “cruel, inhuman and degrading treatment” of detainees, a phrase indicating interrogation practices that do not rise to the domestic or international definitions of torture and were the standard of EITs from 2002-09. If EIT’s are revived, the Anti-Torture Amendment places a clear prohibition of the practice on detainees in DOD custody, but Mr. Trump would be in compliance with the amendment if successfully able to introduce EITs to the Manual through the Group, as discussed above.

For detainees in CIA custody, Mr. Trump will need to find authorization for his budget proposal from both the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. In the Senate committee alone, seven of the 19 members co-sponsored the McCain-Feinstein Anti-Torture Amendment, including the amendment’s namesake Senators. Additionally, this committee released the so-called “Torture Report,” which found the CIA’s use of EITs “was not an effective means of acquiring intelligence or gaining cooperation from detainees.” While the committee membership that produced the report has shifted since the 112th Congress, Dianne Feinstein (D-CA) remains Vice Chair. In short, Mr. Trump will face an uphill battle in pursuit of budgetary approval for CIA activities that include EITs.

If Mr. Trump pursues an EIT program, he will not find the process so easy as simply deciding to revive the practice. First, waterboarding is considered a torture technique, as will be the case for whatever methods he considers to “much worse.” Second, GTMO no longer serves as the legal black hole for detainees it did prior to a series of landmark Supreme Court rulings; this may indicate utilization of extraordinary rendition by the CIA as an alternative to DOD detention. Third, there is now a robust civil society and NGO community pitted against torture and prepared to battle against a new EIT policy. This community was far smaller and in the dark when President Bush quietly approved EITs in 2002, but it is unlikely that an EIT policy will get by under their noses again.

 

By Ian Jones-Muniz

Fundamental National Security Flaw in U.S.-Cuba Relations

The U.S. and Cuba may have a lot in common, yet there is still a critical need to learn from their divergent legal and operational systems for security cooperation.

The U.S. and Cuba share a distinct commonality that cannot be denied – the pursuit to maintain their respective national sovereignty and security interests. Both countries recognize the value of normalized relations in light of ever-changing security issues, such as migration, trafficking, counter narcotics, and more. Moreover, both nations seek cooperation for enhanced military and security information sharing to tackle sensitive security risks.

Although each country interprets and accepts international law under varying circumstances, national sovereignty constantly trumps the conflict that inherently exists between international law and national sovereignty. Until the U.S. and Cuba have an appreciation of the nuances of their distinctive legal and operational systems, as well as their distinct viewpoints on international law versus national sovereignty, issues could arise in the efforts toward improved security cooperation.

Continue reading “Fundamental National Security Flaw in U.S.-Cuba Relations”

Danger to U.S. Defense Industry: China’s Monopoly Control of Rare Earths

“Rare earths” refer to seventeen metals found on the periodic table of elements that are important ingredients in some of the most advanced and desired consumer technologies, including cell phones, motors for hybrid vehicles, LED lights, and solar panels. Even more importantly, they are also crucial to national defense being necessary elements in advanced defense systems, weapons, and other technologies such as “smart bombs” that use magnets formulated with rare earth metals to control their direction and lasers with rare earth components that determine the distance of long-range enemy targets. China is the world’s largest producer of rare earth minerals producing 95 percent of the world’s supply. Over the past few years, China has been imposing strict export controls thereby reducing the amount of rare earths available around the world as well as keeping the price artificially high. On March 13, 2012, as a result of these practices, the United States, Japan, and the European Union filed a World Trade Organization complaint against China. Continue reading “Danger to U.S. Defense Industry: China’s Monopoly Control of Rare Earths”

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.