Security and the Law: Where do they meet?

By Scott Cullinane, Center for Strategic Research

Earlier this month the judge in the Ahmed Ghailani trial disqualified the prosecution’s star witness, Hussein Abebe, from testifying. Ghailani is being tried for his links to the 1998 East Africa Bombings and the witness, Abebe, is the man who sold him the explosives used in the attacks. The judge ruled that Ghailani was “coerced” into giving up Abebe’s identity and consequently his testimony against Ghailani could not be used because of how Ghailani was interrogated years before Abebe was captured.

 Regardless of the judge’s intent, his actions raise a vital but deceivingly simple question: What is American’s national interest in this trial? Should the trial aim to uphold the rule of law, or should the goal be to imprison Ghailani in order to prevent further terrorist activities? When the judge threw out Abebe’s testimony he came down on the side up holding the law, and by doing so, he committed an act of legalism.

 Legalism is operating with the aim of upholding the law as the national interest in and of itself; in this case law is the ends, not a means to reach a national goal. This is not a new concept in American history. The United States has long seen itself as an exceptional country, recognizing a natural law that guides policy and constrains excess. The idealism of Woodrow Wilson led to legalism dominating American inter war foreign policy. It was thought that law could bring security regardless of competing international actors. Henry Kissinger has described this period as when “national interest [was] defined in legal rather than geostrategic terms.” The Briand-Kellogg Pact of 1928, which outlawed offensive war, was the high water mark of the legalist approach. The Briand-Kellogg Pact lacked any enforcement mechanism and was oblivious to long standing national rivalries; but it was thought that the law itself would be enough to prevent war. This was a flawed outlook and history shortly proved that.

 Echoes of the legalist logic from this time are evident in our recent discussions on how to deal with captured terrorists. The developments in the Ghailani case, and other recent examples such as the Mirandizing of Umar Farouk Abdulmutallab, the Christmas bomber, indicate that in some cases national security is still being approached from a legalistic perspective. America tried before to act as if our national interest and the law were one and the same but this did not produce the desired results. The good intentions of those who pursued legalism could not overcome the strategic realities of their time, and there is little reason to expect otherwise today. America would do well to learn from its past. How could the lessons on the inter-war period be applied today?

The Light at the End of the Tunnel. Literally.

By Olivia Jaras and Jacqueline Strzemp, Center for Strategic Research

Defying all odds, this past Wednesday was the culmination of a 70 day effort to extricate 33 Chilean miners who were trapped over half a mile under the earth. For the first seventeen days, they were sustained by spoonfuls of tuna, milk, crackers and small portions of peach toppings every other day. Their water supply was also very limited. For those first two weeks, their loved ones doubted the miners would survive, yet, on the seventeenth day, news arrived that all were alive, trapped in an emergency shelter within the mine.

In the following weeks, numerous ideas were posited on how to rescue these miners in an effective and expedient way; in the meantime, oxygen was being pumped into the mine to help the miners avoid asphyxiation until they could be rescued. There were three separate efforts to drill an escape tunnel for the miners, and, in the meantime, rescue holes were drilled to provide amenities such as bibles, empanadas, toothbrushes, and other miscellaneous requests to make the miners more comfortable in their predicament. The original projection was that they would not be rescued until Christmas, though Chilean President Sebastian Piñera was pulling out all the stops for the rescue to come to fruition.

The international community avidly supported the rescue effort to help the miners survive — even NASA donated gels, food, and equipment that are generally used in space expeditions. Technology and equipment were provided by Australia, the United States, Canada, and other countries, representing the high levels of coordination and cooperation that occurred in the international community.

On Wednesday night, October 13, the last of the miners was rescued via a specifically designed rescue capsule. It took approximately one hour to bring each person to the surface. Upon their return above ground, the miners were met by a team of health experts, their family and friends, President Piñera, and even Bolivian President Evo Morales. After emotional moments shared among the miners and their families, they were sent to the hospital for observation, since it is possible that they could have a variety of health problems (including muscle atrophy, pneumonia, and dental issues) after being trapped underground for so long.

The world was captivated by the rescue effort, which was broadcast live on various television networks, pushing these miners to a new level of international fame. While all of this was occurring, President Piñera, who was on site for the culmination of the rescue effort, constantly received calls of support from the Latin American and international community, demonstrating the full impact of the global community’s strong solidarity and what this solidarity and collaborative effort can achieve in a time of crisis.

What does the Chiliean miners rescue event mean for other global disasters, and how can this goodwill be replicated?

Whither Now for Russia’s Scant Resources?

By Rafael Broze, Center for Strategic Research
With the continued economic downturn affecting worldwide budgetary, military and strategic choices, the Russian Federation is facing a particularly bleak future. Beset on all sides by challenges great and small, burdened with the formidable task of reorganizing its Soviet-legacy armed forces and with no major financial turnaround on the horizon from an economy largely reliant on the world price of petroleum, Russia is going to have to cut deeper and make harder choices than many of its peers.

A laundry list of Russian ambitions and requirements might read, in no particular order of priority, like this:

– Continue the reorganization and upgrading of conventional land forces;
– Re-equip an aging air force;
– Reassert a credible nuclear deterrent by finishing the stuttering development of next-generation SLBMs and rebuilding an SSBN force that largely exists in blueprints or is shuttered in port;
– Re-establish a naval industrial base that is badly ailing (of which the announced purchase of several Mistral-class helicopter carriers is just the latest sign);
– Maintain a strong influence in Central Asia and the Russian Far East, despite US diplomatic efforts and stronger and stronger Chinese influence in the two regions;
– Maintain a careful watch (and a strong military force) in the greater Caucasus, where instability marks the Russian regions, relations with Georgia are fractious (to say the least), and the Nagorno-Karabakh conflict is simmering;
– Develop alternative (most likely Arctic) oil and gas fields to make up for rapidly declining production from Soviet-era wells;
– Asserting control over shipping routes opening up beyond the Arctic Circle and keep up in the mini-arms race in the far north that Russia itself started with a bellicose 2001 strategic document and subsequent aggressive behavior;
– Maintaining a strong share of the supply and direct transshipment of natural gas to Europe against a wider menu of alternative routes (developed after European societies and corporations tired of Russia’s capricious pipeline antics).

Obviously this list incorporates things great and small (strategic nuclear deterrence vs. Arctic shipping routes). Furthermore, while the Russian Federation has made some progress on one or two fronts recently (for example its reform of the size of the ground forces), the burden that these priorities represent is only going to grow heavier over time.

Given that now-Prime Minister Putin has largely forgone establishing a credible rule of law (especially in the corporate sector) in Russia, and striven long and hard to put most major national firms in the hands of a small syndicate, the Russian government itself may have to shoulder much of the burden of maintaining the goose that lays the golden (petro-) eggs. This at the same time as Russia attempts a wide-ranging military reform and strategic effort. Acquisition programs are already falling behind schedule or cancelled entirely, and the ends still massively outweigh Moscow’s financial means. As a result, Russia will have to cut drastically in some areas to salvage other objectives, or will find itself slipping farther and farther behind on all fronts.

Does General Jones Have a Future in National Security Reform?

By Dr. Christopher Jon Lamb, Director of Center for Strategic Research, and Dr. James Douglas Orton, Center for Strategic Research

The announcement on Friday, October 8, 2010, that General James L. Jones was stepping down from the position of national security advisor has triggered numerous discussions by journalists, bloggers, and experts about the characteristics of an effective national security advisor.

Now is a good time for the INSS to offer the blog entry below for a rereading.  “Does General Jones Have a Future in National Security?” was written collaboratively by INSS and Project on National Security Reform researchers in late June 2009.  Drs. Christopher Lamb and James Douglas Orton identified an early schism within the Obama National Security Staff between the reformers (represented by Jones) trying to create strategic management capabilities for the national security system as a whole, and the traditionalists (represented by Donilon) trying to maintain the White House’s crisis management culture.  With Donilon replacing Jones, the question of the national security advisor’s role is once again much in the news, a subject this blog entry from last year reviews in detail.

General James L. Jones, the Assistant to the President for National Security Affairs, is under attack, with serious implications for the likelihood of national security reform in the Obama administration.  For those who have not yet heard, General Jones is already a victim of the bane of Washington, D.C. political life—the dreaded whispering campaign from anonymous sources.  The early spring 2009 chatter about dumping General Jones picked up enough momentum that Secretary of Defense Robert Gates recently went public to counter the rumors in an interview with reporter David Ignatius (The Washington Post, 6/7/09).  A recent Newsweek article (Newsweek, 6/27/09) suggests the issue is not going away.

Several explanations have been offered for why Jones is being criticized.  Some cast the development as a policy fight (see Steve Clemons article in The Washington Note, 6/12/09). Others question his leadership style (see Secretary Gates interview in the Washington Post, 6/5/09).  We think Jones is sniped at because he envisions a role for the national security adviser that emphasizes the need to manage the entire national security system to a higher level of performance rather than just dominating the outcome of a small number of presidential priorities.  Consider the complaints offered up anonymously about General Jones.  They tend to fall into three categories that reflect conventional wisdom about what it takes to be an effective national security adviser:

• A close relationship with the president (Scowcroft, Rice);
• Bureaucratic and intellectual dominance on all issues (Kissinger, Brzezinski);
• And always work to exhaustion in crisis management mode (all Jones’ predecessors).

To indulge in a little hyperbole, conventional wisdom suggests that good national security advisers should be omnipotent, omniscient, and omnipresent.  These expectations are unrealistic, but not surprising given the way the national security system currently works.  Let’s consider each in turn.

Read more…

Common Sense and Rare Earth

By Jacob Tremblay, Center for Strategic Research

Although the diplomatic spat between Japan and China over the detention of a Chinese fishing boat captain near the disputed Senkaku/Diaoyutai Islands has simmered down, Japanese companies are still feeling the effects of an unofficial ban on rare-earth minerals.  Since September 22, Chinese customs agents have prevented shipments of materials vital to high tech gadgets in what is widely viewed as a means of protesting the detention begun when the captain allegedly rammed 2 Japanese Coast Guard vessels near the islands.  In utilizing customs agents, as opposed to announcing an export ban, China has skirted WTO rules designed to prevent such punitive anti-trade measures and avoid suit in a dispute resolutions court.  In doing so, China uses a crude club to browbeat Japan into accepting Chinese demands and make Japanese politicians in the future wary of confronting Chinese officials.

China currently supplies around 97% of the world’s rare-earth minerals which, despite their name, are actually quite common but expensive to mine and refine.  Japanese companies, including Sony and Toyota, rightfully fear that a prolonged de-facto export ban will make production extremely expensive if not impossible for several high tech goods. However, Japan has continued to aggressively pursue alternative sources of supply in a fashion that will thwart Beijing’s exertions aimed at limiting Tokyo’s maneuverability.  The Japanese controlled Sojitz trading company was already engaged in talks with Vietnam and Sumitomo was negotiating with Kazakhstan to begin rare-earth mining operations.  China’s ban will only increase the imperative for Japanese companies to diversify suppliers.

A large question of why China would institute a ban, when, in the short term, it appears that prices for rare-earth minerals will rise and reserves will run low, and Chinese suppliers are likely to be frozen out of the Japanese market as alternative sources come online.  Experience in other sectors shows that supply chain disruptions lead companies to consolidate their operations or search for more reliable suppliers; Boeing did precisely that in the instance of the Dreamliner, and, Gazprom has proposed building an alternative gas pipeline to supply Europe bypassing the oft-troublesome Ukraine.  Is Beijing’s course of action in the context of its dust up with Japan simply an instance of China flexing its muscles in unfamiliar realm, or is it a poor miscalculation that this move would advance Chinese interests?

A Weapon of Biblical Proportions?

By Micah J. Loudermilk, Center for Strategic Research

The past several weeks have witnessed an explosion of reports on the recently-discovered Stuxnet malware, referred to as the world’s first cyber super-weapon. Suspicions that the worm was custom-designed to target a nuclear facility in Iran – perhaps Bushehr or Natanz – have grown with the passage of time since Stuxnet infections appear heavily concentrated in Iran, perhaps reaching a breaking point since a text string was found deep inside Stuxnet’s code containing an allusion to the Biblical figure Esther, credited with saving the Jews from destruction by the Persians. As cyber experts worldwide race to decode and understand Stuxnet – numerous questions are arising regarding the incredible sophistication of the attacks, who is responsible for it, and what the end result will be when the worm finds its target. However, equally important and not yet analyzed are two important questions about the longer-term consequences of Stuxnet in the cyber sphere.

First, can cyber attacks be defended against? Troublingly, the short answer to that question appears to be “no” – at least not with any degree of consistency and reliability. Stuxnet opened the door on a whole new field of cyber warfare, previously considered impossible, and with it a slew of new possibilities for attacks. Operating without human guidance and capable of taking over industrial control systems, Stuxnet is a perfect example of how rapidly the cyber field is evolving, consistently leaving those seeking to defend against attacks playing catch-up.

On the surface, the superiority of offensive capabilities compared to their defensive counterparts is relatively simple: an offensive system is successful if it strikes once, but a defensive system has zero margin for error. This equation is magnified on the cyber front where new loopholes and critical vulnerabilities are found and exploited by attackers faster than they can be closed and protected. When coupled with the near-instantaneous speed at which networks operate, defense against attacks becomes infinitely more difficult.

Second, is the realm of cyber warfare officially open for business? Sure, for years the Chinese and other entities have been hacking DoD networks, the U.S. electrical grid, and other critical infrastructure, but the Stuxnet malware is potentially the first real-world case using a worm to destroy a physical target. While no mechanism exists by which to define at what point a cyber attack or infiltration becomes an act of war, it seems clear that there must be a line, but where should one draw it? Should Iran’s Bushehr or Natanz plant be destroyed by this cyber attack, is it necessarily any different from utilizing jet fighters or missiles to achieve the objective? These are all vital questions which must be addressed, not simply in the case of Stuxnet, but broadly speaking.

Notwithstanding of this episode’s outcome, the door into this terrifying world – where targets can be hit and critical infrastructure compromised without a nation or group taking any tangible action – is potentially open. The possibilities are immense, and the problems even greater – in large part due to the attribution problem. Regardless of whether or not the destruction of another nation’s nuclear plant crosses any arbitrary lines, absent knowledge of what country is responsible for unleashing it (without even addressing the possibility of rogue group actions), a concerted response is difficult. The danger here, and one already obvious from the cyber attacks directed daily at the U.S., is that countries can take actions against other states from the relative safety of anonymity, potentially giving rise to an increased use of cyber tactics as a means to asymmetrically attack one’s opponents.

Ultimately, it may never be known who perpetrated the Stuxnet worm or what, if any, the effects were on Iran’s nuclear program (assuming that is indeed the target). One can draw conclusions from delays to the launch of the Bushehr facility, but these delays have been persistent and Iran continues to deny that any of its nuclear facilities have been adversely affected (despite being infected). However, it is crucial to understand that cyber attacks of this type are now fully within the realm of possibility and, as ideas previously only imagined in science-fiction movies move ever closer to reality, the strategic calculus of U.S. policymakers must learn to adjust quickly and accordingly.