Opinio Juris (which is a big deal in international law circles), I am getting far more traffic than I had anticipated. I thought that it might be useful to explain what this blog is all about. This is not my first blog. For years I wrote on faith issues at my "Guy in the Pew" blog, and was also the "weekend corespondent at the Episcopal Cafe's "The Lead" news blog. I also had an Office blog when I was the Air Force General Counsel (which sadly folded after I left that office). While in private practice, however, I did not feel I had time to go back to blogging. After finding myself doing several long posts on Facebook that were very well received, I thought I should give this blogging thing another try.
My intended audience for this blog is not for other national security practitioners. There are plenty of existing blogs and websites that already do a good job of reaching that audience. Instead, this blog will be written for the same audience as my Facebook posts: people like my friends and family who have never had a national security job, but are curious about what is happening in the world. I certainly hope that true experts like Kevin Jon Heller come join the conversation (and correct my inevitable errors), but my blog will be successful if I help explain the often surreal world of national security and foreign policy to the curious folks like my Facebook friends.
I do allow comments, so please join the conversation.
(And by the way, that is me in the back seat of the F-15E you see above--one of the coolest experiences as Air Force General Counsel)
Wednesday, June 28, 2017
One of my frustrations has been the grossly distorted dialogue on the use of drones, or remotely piloted aircraft. Much of the public discussion is grossly misleading. I even wrote a chapter in a book making the point that remotely piloted aircraft are just a different platform for military action and that the ethical and legal issues are really no different than that of piloted aircraft.
I was therefore pleased to see an excellent description of the reasons for the public disconnect by U.S. Air Force Major Joe Chapa at the War on the Rocks blog. Chapa's main point is that those who write about drones really don't know what they are talking about, and that those who have actual experience with drones don't speak out. The article is rich with examples of how incorrect information about drones has perpetuated as a result. He gives many examples, but I especially appreciated that he addressed one of my pet peeves:
For instance, in her 2013 book, Drone Warfare, Code Pink founder Medea Benjamin claims:
Read the entire article here.In 2003, the Defense Department developed a new computer program… The dead show up as blob-like images resembling squashed insects, which is why the program was called “Bugsplat.” Bugsplat also became the “in-house” slang referring to drone deaths.. . .Only a few authors have gotten it right. Bugsplat was software that depicted the expected blast and fragmentation pattern of the various air-to-surface weapons in the U.S. inventory. But it wasn’t that “the dead” were depicted as squished bugs. People were not depicted at all. The software was developed to show how urban terrain would impact the blast and fragmentation pattern of a given weapon on a given target. The “splat” was about patterns, not people. To take one simple example, dropping a 500-lb, GPS-guided GBU-38 onto an open field would generate a significantly different blast and fragmentation pattern than dropping a GBU-38 onto a house with some windows and an open door. This software can incorporate diverse structural elements and produces a graphic image of the pattern in which some rays would protrude further from the center (e.g., where an open door stood) than others (e.g., where the windows were) and others would be even more stifled (e.g., by the concrete walls with no windows). The resulting image looks like a bug splat on a windshield. Benjamin’s interpretation is believable but not accurate. And each time her description is reflected and propagated in the literature, the accuracy and legitimacy of the ethics debate suffers another blow and the divide between military practitioners and the interested citizens for whom they fight gets a little wider.. . .A sociologist, anthropologist, or social psychologists might, even with this better understanding of the software’s purpose, contend that the insensitive name belies animosity toward the enemy, suggesting that one wants to crush one’s enemies like bugs. Whether, or the degree to which, military members (and their civilian counterparts) view enemy fighters and the foreign citizens among whom they hide in this way is a discussion worth having, but not under the dim light of an incorrect etymology. There are two facts that are almost never cited alongside the “bugsplat” references. First, the purpose of the software has always been to better understand the precise effects of the weapons in order to reduce collateral damage and civilian casualties. Second, this “Bugsplat” software was renamed “Fast Assessment Strike Tool-Collateral Damage (FAST-CD)” more than a dozen years ago (2003). Filtering one’s view of how military personnel approach war through the outdated naming conventions of software engineers sidesteps the important questions that ought to be the subject of serious investigation. And yet, the misconception persists and has become endemic in the public mind.
Monday, June 19, 2017
So what comes next for President Macron and his large Assembly majority? The first clear priority will be labor reform. France has a traditionally inflexible labor law in which large labor unions negotiate wages and conditions for an entire sector of the the economy. This means that a brand new start up is stuck with the deal negotiated with its dominant competitors. This is in contrast to the German and Scandinavian (and US model) where labor negotiations are done on a company-by-company model. Macron want to move to the German and Scandinavian model. He is already in negotiations with the major French labor unions, and the large majority will give him leverage to move in this direction--particularly since some French unions favor this new model. Nonetheless, expect a season of strikes on this issue. Macron's success in the elections, however, will help him weather the inevitable strikes and street demonstrations.
Other reforms include an attention to the French budget (some cuts and tax cuts are likely in the works), while some enhancements to some social services.
Longer on the horizon, Macron wants to reform the EU itself. This will include proposals that have met with significant German resistance in the past--such as a common budget and a common Finance Minister--and will require success on the domestic front first.
Probably the most interesting question is whether we could ever see such a political revolution in the United States. I think not. There are numerous features in the French political systems that helped pushed this result: a Parliamentary system that has long had more than two parties, and the use of a runoff system that allowed Macron to turn 40% support in the voting public into 60% share of the Assembly. Finally, this result would never have happened with the extraordinary (and surprising) political talent of Emmanuel Macron himself.
What do you think?
Thursday, June 15, 2017
Professor Francis Gavin of SAIS-John Hopkins University, has a wonderful essay about the transformation of U.S. foreign policy after World War II. His main theme is that the transformation occurred because of the need to defend Europe against the Soviet Union, while preventing the re-emergence of an aggressive Germany:
Read it all here.In the late 1940s and early 1950s, the United States faced a variety of interlocking challenges. First, it needed to help Western Europe recover, but to do so, it had to allow the traditional engine of Europe growth — Germany, or in this case, West Germany — to flourish. This was a hard pill for the rest of Europe, including the Soviet Union, to swallow, so soon after the horrors of World War II. European integration was one part of the answer, first through the Marshall plan and then support for the European Coal and Steel Community. This did not, however, take care of the security angle.. . .The real transformation, however, was seen in alliances and military arrangements, especially in Europe. The North Atlantic Treaty was signed in 1949, but there was little actual military planning or coordinated strategy. Nor had the thorny question of how to both include West Germany and its impressive military assets in this alliance without provoking World War III been figured out. For many, perhaps most in Europe — and not just the Soviets — a remilitarized Germany was perhaps the greatest threat to European peace and security. Yet Western Europe could not be defended without exploiting West German economic, and yes, military capabilities.. . .This was only possible with active American engagement — a commitment that went against every long-held tradition the United States had followed for a year and a half. Hammered out in political agreements in Paris in 1954 and military arrangements in NATO through the document MC-48, the United States committed to a large forward military presence in West Germany to back a pre-emptive nuclear strategy where decisions about war and peace for a whole alliance would have to be made quickly by a super-empowered president.
Sunday, June 11, 2017
One of my more thoughtful Facebook friends (who is far more conservative than me) asked some very interesting questions about the leak of former FBI Director James Comey's memos to the New York Times. In particular, he asked an interesting question: Are the memos federal records? Since others have gone even further to argue that the leak was a federal crime, I thought that it might be useful to discuss the issue here.
A key place to start is with guidance from the agency that is responsible for the laws governing federal records--the National Archives. They have a very interesting discussion of the issue here. As it discusses, writings about even work-related issues (such as diaries, memos etc.) that are intended for private use are not federal records:
Work-related materials, such as diaries, journals, notes, personal calendars, and appointment schedules, that are not prepared, received, or used in the process of transacting agency business. Although these materials contain work-related information, they are personal papers if they are claimed as such and serve only the individual's own purpose (e.g., as reminders and personal observations about work-related and other topics). This category is the most difficult to distinguish from agency records because of its work-related content.It is not uncommon for senior officials to record their work-related activities (either for use in a future book or simply to help them personally recall what was said during a meeting the previous weeks). It is also not uncommon for employees worried about a personnel action to do memos recording their meetings with their managers.. These are generally not federal records.
As the NARA document, discusses, however, these personal papers can be found to be federal records in certain circumstances. For example, if an official gave an employee a copy of a diary entry, and asked them to follow-up on the action items discussed in the diary, at least that part of the diary could become part of the public record. The NARA document does a good job laying out some of the factors. Some of the critical factors include purpose, distribution and use::
Purpose. Was the document created to facilitate agency business? If so, then it may be an agency record, depending on its distribution and use by other agency employees. Or was it created solely for the employee's personal convenience? If so, it is unlikely to be an agency record.
Distribution. Was the document distributed to other employees for an official purpose? If so, it may be an agency record.
Use. Did this employee or others actually use the document to conduct agency business? Materials brought into the agency for reference use do not become agency records merely because they relate to official matters or influence the employee's work. However, if the employee relies on such materials to conduct agency business or if other employees use them for agency purposes, then the materials are more likely to be agency records.I think we need to get more information before coming to a conclusion, but I suspect that the classic CYA nature of the memos put them in the personal papers category. Here the purpose is quite consistent with that of a subordinate concerned about a meeting with his boss. Moreover, while Comey may have distributed the memo to others in the FBI, it does not appear that they were used for FBI business.
The more interesting issue, is what are the consequences if they are federal records. Generally, the focus of federal records law is on the maintenance of records and their disclosure to the public (FOIA). There is no general prohibition against disclosure. There may be FBI policies that were violated, but as a former employee, they are of no consequence to Comey.
There is a potentially relevant criminal statute that has gotten some attention on conservative blogs (18 U.S.C 641), but it has proved to be a wholly inadequate tool for the prosecution of leakers. Indeed, the U.S. Attorney Manual pretty much dismisses the statute as useless against leakers (stating that the statue "Fails to protect the Government's interest" in protecting records) . The main problem is that a felony conviction requires that the intrinsic value of the purloined record (the cost of the paper and toner) be over $1000. This is hardly ever the case, and certainly not the case here. Other problems include that the document seems to requires stealing of the actual "record" and under the federal records law, copies are not records--only the official original.
In short, I doubt that the Comey memos qualify as federal records. As such, they really cannot be said to have been leaked at all. Any even if they do qualify as federal records, an argument that Comey violated federal law in providing the contents (indirectly) to the New York Times is dubious at best.
Tuesday, June 6, 2017
In my last post, I lamented that some important developments were getting lost because of our tendency to discuss the latest bright shiny object brought into the room by President Trump. My last post was on the French elections. I next planned to discuss the actions taken by Saudi Arabia, Bahrain, UAE, Egypt and other Middle East governments against Qatar. Little did I know that the next bright shiny object that Trump would tweet into the room would be Qatar.
By way of background, earlier this week, Saudi Arabia, Egypt, Bahrain and UAE (together with some others) all announced that they were ending diplomatic relations with Qatar, and they blocked all land and air access to Qatar. Given that Qatar's only land border is with Saudi Arabia, and it imports almost all of its food, this is a big deal. The reasons of the move are complicated. Qatar has been an irritant to the other Gulf monarchies because of its support of the Muslim Brotherhood and its hosting of Al Jazerra. The U.S. also has had its own issues with Qatar, but it is an important ally in the region. Perhaps most critically, it hosts Al Udeid Air Force Base, which is probably the most important U.S. Air Force base in the region.
Truth be told, none of the Middle East monarchies are perfect allies. Saudi Arabia adopts a very hardline conservative form of Islam that they have actively (and sadly effectively) promoted in many countries. All of these countries have serious human rights issues. .Yet, Qatar, Saudi Arabia and the other Gulf states are vital to the U.S. interests in the region. The only reason the U.S. is able to project power in the region at all is because of our numerous bases in these countries.
Given this background, an Administration looking out for U.S. interests would be taking steps to mediate the dispute, and taking steps to find a solution to the problems that have brought us to where we are today. Indeed, I strongly suspect that this is exactly what Secretary Mattis and Secretary Tillerson have been trying to do over the past few days. Our interests are assuredly not advanced by picking sides in a despite between important allies over largely regional issues. Throwing an ally under the bus for any reason rarely works out for the U.S.
Sadly, that is not what President Trump decided to do. In a series of tweets this morning, President Trump has taken sides in this dispute and has not merely supported the actions against Qatar, but has even taken credit for them. I would be shocked if Trump's senior national security advisers were consulted by the President. Indeed, I suspect that they are horrified.
During my recent trip to the Middle East I stated that there can no longer be funding of Radical Ideology. Leaders pointed to Qatar - look!— Donald J. Trump (@realDonaldTrump) June 6, 2017
So good to see the Saudi Arabia visit with the King and 50 countries already paying off. They said they would take a hard line on funding...— Donald J. Trump (@realDonaldTrump) June 6, 2017
In my experience, Qatar is rather sensitive (one would say prickly) about Al Udeid Air Force Base. I would not be surprised to see significant problems for the United States because of this morning's tweets....extremism, and all reference was pointing to Qatar. Perhaps this will be the beginning of the end to the horror of terrorism!— Donald J. Trump (@realDonaldTrump) June 6, 2017
UPDATE: Some other reactions
Just informed Senate Foreign Relations Chair Corker of what Trump tweeted about Qatar and was met with about 8 seconds of stunned silence— Matt Laslo (@MattLaslo) June 6, 2017
Trump tweet-slams Qatar, saying Saudi rift w/ that country is because of him. Does he not know Qatar is home of forward US Central Command?— Kurt Eichenwald (@kurteichenwald) June 6, 2017
.@realDonaldTrump just dragged us into Gulf dispute & trashed Qatar, which hosts 11,000 U.S. troops. He better have a plan for their safety.— Rep. Eric Swalwell (@RepSwalwell) June 6, 2017
The president has decided that Qatar, home of U.S. forces in the Middle East, is a U.S. enemy. https://t.co/kvlhMh6eTM— Jeffrey Goldberg (@JeffreyGoldberg) June 6, 2017
Trump Dumps Qatar Alliance Via Twitter, Takes Credit For Gulf States Cutting Ties https://t.co/nSQiafAsIx via @TPM— Josh Marshall (@joshtpm) June 6, 2017
Apparent ease with which Trump dropped Qatar, with no show of trying to solve problems with them directly, sends a scary message to allies— Max Fisher (@Max_Fisher) June 6, 2017
Apparent ease with which Trump dropped Qatar, with no show of trying to solve problems with them directly, sends a scary message to allies— Max Fisher (@Max_Fisher) June 6, 2017
With President Trump providing all of us a bright shiny object to focus on each day, some pretty profound developments in the world are not getting the attention they deserve. Probably the biggest story here is fact that French President Macron's centrist party is about to take the largest majority in the French Assembly since the days of Charles DeGaulle. To get a sense of the magnitude of what is occurring in France, imagine the shock if Tim Geithner had formed a brand new party that not only elected him to the Presidency, but elected massive super-majorities in the House and Senate. That is pretty much what is occurring in France today.
Here is some background. Politicians in France have been talking about major reform of France's rigid labor laws for years. In the past 12 years, France has seen both parties of the Right and Left fail to achieve any meaningful reform. The result has been rising unemployment (particularly among younger workers). Part of the problem in both cases is that because both parties largely ignored these reform ideas in their campaigns (fearing that they were unpopular), neither party had a mandate for change.
Macron is different. He has centered his movement on two main objectives: reform of France's labor laws, and a reform of how the European Union operates. When he announced his candidacy for President under a brand new party, conventional wisdom was that he would be lucky to get out of single digits. Of course, he won the Presidency in a landslide. Once he won the Presidency, the conventional wisdom was that Macron would not be able to achieve his goals because his new party could not possibly get a majority in the French Assembly.
Polling now show Macron's party, La République En Marche, achieving a huge majority in Sunday's elections. In the most recent Reuters poll, Macron's party (shown in yellow in the graphic below) is winning 395 to 425 seats in the 577 person Assembly. This would be the largest Parlimentary majority for any party since Charles DeGaulle's victory in 1968.
So what does this mean? It means that Macron has the majority he needs (and an electoral mandate) to make the changes to campaigned on. What explains this stunning result? In my view this is a combination of a surprising degree of political talent in this newcomers, and a French people ready for change.
Monday, June 5, 2017
Read it all here. The conventional wisdom was that the "grown-ups" (Secretaries Mattis and Tillerson, and National Security Adviser McMaster) would moderate President Trump more extrme challenges to American national security policy. After failing to prevail on the NATO speech, the Paris Treaty and President Trump's disgraceful tweet storm about the London terrorist attack, it is abundantly clear that the conventional wisdom was dangerously wrong.[T]he president also disappointed—and surprised—his own top national security officials by failing to include the language reaffirming the so-called Article 5 provision in his speech. National security adviser H.R. McMaster, Defense Secretary James Mattis and Secretary of State Rex Tillerson all supported Trump doing so and had worked in the weeks leading up to the trip to make sure it was included in the speech, according to five sources familiar with the episode. They thought it was, and a White House aide even told The New York Times the day before the line was definitely included.It was not until the next day, Thursday, May 25, when Trump started talking at an opening ceremony for NATO’s new Brussels headquarters, that the president’s national security team realized their boss had made a decision with major consequences—without consulting or even informing them in advance of the change.“They had the right speech and it was cleared through McMaster,” said a source briefed by National Security Council officials in the immediate aftermath of the NATO meeting. “As late as that same morning, it was the right one.”Added a senior White House official, “There was a fully coordinated other speech everybody else had worked on”—and it wasn’t the one Trump gave. “They didn’t know it had been removed,” said a third source of the Trump national security officials on hand for the ceremony. “It was only upon delivery.”
Friday, June 2, 2017
History is full of examples that prove the point that deterrence only works if a potential adversary is persuaded that the political will exists to take action in response to aggression. The years before the beginning of World War II show Hitler testing the will of the world to respond to his aggression, and he acted to invade Poland when he calculated that there was no will to come to Poland's defense. In January 1950, Secretary of State Dean Acheson gave a speech at the National Press Club in which he publicly declared a defensive containment line against the "Communist menace" in Asia. South Korea was outside that line. Soon thereafter, North Korea invaded South Korea. And more recently, it appears that Saddam Hussein invaded Kuwait when the U.S. sent signals that it would not come to Kuwait's defense. In each case, uncertainty resulted in miscalculation, and miscalculation leads to war.
This, to me, is the most disturbing part of Trump's trip to Europe: At an event remembering the fact that NATO invoked the Article 5 Collective Defense obligation to defend the United States after September 11, 2001 (the only time in NATO history), Trump declined to state, as every President beginning with Truman has stated, that the United States will meet its commitment under Article 5, to defend its NATO allies. Most troublingly, this refusal to commit to defend our NATO allies came after several campaign speeches in which Trump pooh pooed NATO.
Simply put, Trump has now created uncertainty about the U.S. commitment to our NATO allies. This is dangerous. In recent years, Russia has been quite aggressive in military force against neighbors such as Ukraine (where it seized Crimea and assisted separatists in Eastern Ukraine) and Georgia (where it assisted separatists there as well). And Putin has made troubling remarks about coming to the aid of Russian speakers in Estonia, Latvia and Lithuania. To date, however, Russia has been careful to take military action only against non-NATO members.
Sadly, Trump's refusal to commit to the common defense obligations to NATO allies, combined with his quite evident hostility to European leaders, has cast doubt on our willingness to come to the defense of the Baltic States (or other NATO nations for that matter). As history has shown, uncertain deterrence leads to miscalculation and war.
Trump does not really have an "America First" policy. His policy is "America Alone", which means a weaker and less influential America--and a policy that has lead to devastating wars in the past. NATO has been a remarkably successful alliance for over 70 years that has greatly served U.S. interests.
Thursday, June 1, 2017
To be clear, I differ greatly from Trump on trade. I supported TPP (but largely because of its immensely vital geopolitical benefits in Asia). I generally agree with economists that a trade imbalance is not a per se bad thing, and largely reflects underlying economics, rather than unfair trade policies. And I also think that our trade deals have largely been of greater benefit than harm (but we do a bad job of addressing those hurt by beneficial trade deals).
But there is some merit to Trump's concern about the German trade imbalance. So what does Trump get right? As Greg Ip explains today in the Wall Street Journal, Germany's trade imbalance as to the entire world is an artificial and harmful effect of the Euro:
So what did Trump get wrong? He seems to suggest that the problem arises from "bad trade deals" with Germany. German car makers actually manufacture cars in the United States, and the U.S. trade deal is with the EU, which includes many countries with whom we enjoy a trade surplus. As Greg Ip explains, the problem is not that Germany is exporting too much. Rather, the problem is that Germany is importing too much.[A] country with a weak economy and a trade deficit would expect its currency to fall to boost exports and restrain imports. That can’t happen if exchange rates can’t move, as is the case with China and Germany, though for different reasons.. . .Since adopting the euro in 1999, [Germany] hasn’t controlled its own currency. However, it did win competitive advantage over its neighbors in the currency union. Labor-market reforms restrained domestic wages. In 2007, a payroll tax cut, which made German labor more competitive, was financed with an increase in the value-added tax, which exempted exports.In previous eras, those reforms would have pushed the deutsche mark higher, squeezing Germany’s trade surplus. Inside the euro, though, the burden has fallen on Germany’s neighbors, including France, to compete by grinding down domestic wages and prices through high unemployment and fiscal austerity. That has kept the entire region’s economy weak, forcing the European Central Bank to hold down interest rates and thus the euro. That inflates the entire region’s trade surplus with the world.
So what is the solution to German Euro problem? Most economists think that Germany needs to be less austere and encourage more domestic spending. The new French President, Emmanuel Macron, wants to move to a "fiscal union" in which European budgets are financed at the European level.
Germany likely will not want to do either, but saving the Euro may require some movement on its part--which will help reduce the trade imbalance.
You can read the entire Greg Ip column here. Greg Ip, by the way, is always worth reading.