[Foreign Affairs] Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones

by Jessica Poarch Hernandez

On 16 August, Foreign Affairs posted an article by Martin Libicki entitled “Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones” which I think is an interesting counterpoint to some of the other articles considered on this blog. Essentially, the article argues that instead of spending time worrying about how to respond to Cyberattacks, we should spend time discouraging and finding ways to prevent them. The author points out that, “Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is. No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence officials fear has not taken place in the 21 years since the Internet became accessible to the public.” He then argues that the responding to cyberattacks, especially with conventional warfare, risks escalating the conflict to the point of a war which nobody wanted. He concludes that, “The United States can best mitigate the risks of cyberwar by adopting technical and political measures to discourage cyberattacks before they happen.”

The author’s  conclusion, in my mind, is logical and, should we take his approach,I believe it would be a good use of our time and resources but I question the wisdom of discounting the “cyberhype” altogether. Now is the time to prepare and determine the rules for responding to major cyberattacks, both by cyber-means and kinetic means. If the unlikely happens we should have a response on hand that has been reasoned out before hand and prevents an unnecessary waste of time or resources. 

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US v. Sterling – Testimonial Privilege

by Travis Normand

United States v. Jeffrey Sterling, . . . (4th Cir. 2013).

In its prosecution of Jeffrey Sterling, a former CIA employee accused of divulging classified information about the agency’s efforts to disrupt the Iranian nuclear program, the government subpoenaed James Risen.  Risen, a reporter for the New York Times, published stories that were apparently based on information fed to him by Mr. Sterling.  Risen essentially argued that he could refuse to testify and that he was protected by some form of reporter’s privilege.  However, in a 2-to-1 opinion released July 19, 2013, the  U.S. Court of Appeals for the Fourth Circuit held that Risen could not refuse to testify and that there is no First Amendment or federal common-law privilege protection available to him as a reporter.

The dissent listed many state law testimonial privileges that apply to reporters.

See the entire opinion HERE.

[NPR “The National Conversation”] AUMF: Reasserting the Role of Congress

by Jessica Poarch Hernandez 

Debate over the future of the AUMF is surfacing in both public and private arenas. Recently, NPR and The Wilson Center hosted a panel discussion entitled “AUMF: Reasserting the Role of Congress” which featured Senator Bob Corker, Sarah Chayes, and Neal Katyal. The discussion, as the name implies, focused not on the constitutionality of the AUMF but on the balance of power associated with it. In fact, in her opening remarks, Jane Harman, the CEO of The Wilson Center, reminded the crowd that war powers are divided. Questions such as, “Is the AUMF necessary for the President to act,” “Is the AUMF too broad,” and “If the AUMF needs to be revised what needs to be replaced” were taken up.

There was not much of a debate, however. Ms. Chayes described it best when she told the audience that they had come for a heated panel and instead got a chorus. All of the panelist seemed to agree that the war powers, post-AUMF, are not being appropriately balanced between the Executive and Legislative branches and together called for Congress to take more “ownership” of the conflicts we are in. Where there was some disagreement was in the question of whether or not to revise or just completely repeal the AUMF. One suggestion that I found interesting was Senator Corker’s suggestion that the next AUMF be structured on a tier system that would give the President authority to act alone in certain instances but require him to get Congressional approval in others. This seems to directly track Jackson’s conception of Presidential Power in Youngstown which assessed the President’s power based on the actions of Congress. This was not the only solution offered by the panel. In any event, regardless of the chosen solution, the panel’s conclusion remains paramount – Congress must act.

Overall I found this discussion to be a refreshing and practical discourse on a complicated issue.

Listen to the discussion here. 

OUPBlog: Drone Killings

by Jessica Poarch Hernandez

The OUPBlog recently posted a piece by Sascha-Dominik Bachmann entitled Drone Killings. Adapted from an article published in the Journal of Conflict and Security Law, this post argues that  the use of drone technology “has direct implications for the morality of armed conflict and combat” because it puts too much distance between the shooter and the target. He then goes on to argue that the U.S. Government should reevaluate its use of Drone Technology and concern itself more with the broad issue of collateral damage.

Read the post here.

Issue Guide: The Domestic Surveillance Debate

by Jessica Poarch

The Council on Foreign Relations recently published an Issue Guide for the on-going debate surrounding the NSA’s surveillance policies. It provides links to articles detailing the arguments on both sides of the issue along with back ground information and primary sources.

The Guide begins: “Media reports of the Obama administration’s domestic surveillance activities have provided new grist for the debate over privacy and national security. The White House and many lawmakers from both parties have defended the counterterrorism programs–many of which were greatly enhanced after the September 11, 2001 attacks–as effective, legal, and limited. Opponents have decried some of the activities, like the National Security Agency’s so-called PRISM program that mines troves of data related to U.S. citizens, as government overreach. The following materials provide background and analysis on the debate. …”

To continue reading click here.

[Article] The Case for Drones

by Travis Normand

Article:

The Case for Drones, by Kenneth Anderson – June 2013 – CommentaryMagazine.com

How, exactly, did drone warfare and targeted killing become key elements in America’s counterterrorism strategy? And why should we care about them as essential national-security tools for the future?

Read the rest HERE

Finding the LOAC in Syria: 2 reports from the IRIN on the Syrian Rebels and IHL (LOAC)

by Jessica Poarch

Last July the ICRC ruled that Syria was in a civil war bringing the conflict under the LOAC.* On 13 May, IRIN, a humanitarian news source sponsored by the UN, published two stories looking at how the Syrian rebels view the Laws of War. The first story, “Syrian rebels on IHL: In their own words,” is a collection of statements by different sections of the rebel fighters on their views on the rules applicable to the conflict. The statements are a telling collection of varying views that clearly exhibit the lack of uniformity in leadership and mission of the rebel fighters. The opinions range from that of a former Colonel of the Syrian Army now commanding a unit of the Free Syrian Army who has been educated on the principles of LOAC and feels that respecting the law is what separates the rebels from the Syrian government to a member of an Islamist group who only subscribes to the Shariah and fain no respect for international laws such as the LOAC.

The second story, “Sometimes you cannot apply the rules – Syrian rebels and IHL” is an analysis of the statements made by the rebels in the larger context of the rules governing the rebel fighters. This article uses the statements of the fighters regarding their views of the LOAC to show which sources of IHL rules they (the rebels) respect–International Law, in some cases, but mostly Islamic law. The article then goes on to explain the systemic issues faced by the rebel leaders in getting their troops to adhere to the rules.

The general conclusion that can be gleaned from these two articles is that there is no clear, agreed upon set of rules being followed by the rebel forces. Although there are groups who are attempting to educate fighters on the Laws of War, the lack of unified leadership is making the success of the process slow.

* For more detail see my July 18, 2012 post, HERE.

April 24, 1916: The Easter Rising begins!

by Travis Normand

Today is April 24, 2013 and it has been 97 years since the Easter Rising began in Dublin Ireland.

In a world where asymmetric warfare, insurgency, and terrorism dominate the headlines, the Easter Rising stands out as significant due to the fact that it is one of the last “rebellions” to employ conventional methods of warfare.

The Easter Rebellion was (generally) the product of Irish Republicans who aimed to establish an Independent Irish Republic.  These Irish Republicans carried out their plans of a Rising using conventional methods of warfare that are seldom seen in rebellions today.

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Tsarnaev as Enemy Combatant?

by Travis Normand

I heard a short audio clip on NPR yesterday concerning whether or not Dzhokhar Tsarnaev should be charged (or treated) as an “enemy combatant.”  You can listen to the audio of this discussion HERE (on NPR).

Notwithstanding the debate on whether or not Tsarnaev should be treated as an enemy combatant, White House press secretary Jay Carney says Tsarnaev will not be charged as an enemy combatant and instead will face trial in a federal court.

The reasoning Carney gives has nothing to do with whether or not Tsarnaev meets the criteria of being an enemy combatant but instead focuses on the fact that “when it comes to United States citizens, it is against the law to try them in military commissions.”  Carney’s answer is an interesting one considering that many are calling for Tsarnaev to be labeled as an enemy combatant for intelligence gathering purposes only and that he should still be tried in Federal Court (and not in a military commission).  In other words, if Tsarnaev can be designated as an enemy combatant, and still be tried in Federal Court, then Carney’s answer doesn’t make much sense.

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