Why Secretary Matthis Should Insist On No State Department Cuts

My friend and law partner, John Bellinger, was the Legal Counsel to the NSC, and then Legal Adviser (General Counsel) of the State Department during the Bush Administration.  Today on Lawfare, he has a great column explaining why Defense Secretary Matthis should reject the Defense budget increases that come as a result of cuts in foreign aid and diplomacy:

In 2013, when he was CENTCOM Command,  Mattis said  “If you don’t fund the State Department fully, then I need to buy more ammunition ultimately. So I think it’s a cost benefit ratio. The more that we put into the State Department’s diplomacy, hopefully the less we have to put into a military budget as we deal with the outcome of an apparent American withdrawal from the international scene.” 

Mattis was following the lead of former Defense Secretary Robert Gates who repeatedly stated his support for increased funding for the State Department.   Gates famously said “Development is a lot cheaper than sending soldiers."  In his 2007 Landon Lecture at the University of Kansas, Gates called for significantly more resources for development and diplomacy, stating that “One of the most important lessons of the wars in Iraq and Afghanistan is that military success is not sufficient to win.”  Gates pointed out, correctly, that a large chunk of foreign aid is devoted to assisting foreign governments to fight terrorism:  “Arguably the most important military component in the War on Terror is not the fighting we do ourselves, but how well we enable and empower our partners to defend and govern themselves.”  He went on to say that “there is a need for a dramatic increase in spending on the civilian instruments of national security -- diplomacy, strategic communications, foreign assistance, civic action, and economic reconstruction and development….We must focus our energies beyond the guns and steel of the military, beyond just our brave soldiers, sailors, Marines, and airmen. We must also focus our energies on the other elements of national power that will be so crucial in the coming years.”

Read the entire post.  John Bellinger, General Matthis and Secretary Gates are all correct: State Department funding (including foreign aid) is a force multiplier that would be foolish to cut.  Surely, the President doesn't want to be foolish?

Do Wars Against Terrorist Groups Last Forever ? When Does War End?

When do we declare a war over?  For traditional state versus state armed conflicts, this is usually a simple question,  There is usually a cease fire or a peace treaty.  We watch the signing ceremony and declare the war over.

For the kinds of armed conflict we have engaged in more recently against non-state actors, the end of war is a more date to determine  We are unlikely to see a signing ceremony involving ISIS or al Quida.  Indeed, we may never even see a formal agreement with the Taliban.  Success in an armed conflict with non-State actors is more likely to be reflected in reducing that actor's ability to cause us harm, and not any formal agreement.

The issue of when war ends is an important one.  In wartime, we can target enemy combatants with lethal force. In peacetime that is murder.  In wartime, we can detain the enemy with no trial as prisoners of war.  In peacetime, they must be released.

The Harvard Law School Program on International Law and Armed Conflict has just issued a Report that attempts to address the question of when war ends.  As the authors of the Report explain in a Lawfare post international law as it now stands is inadequate:

[I]nternational law, as it now stands, provides insufficient guidance to ascertain the end of many armed conflicts as a factual matter (when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of international humanitarian law (IHL) provisions that instruct the end of application, and the inconsistency among such provisions (sometimes, even within a single legal instrument) thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end.

The Obama Administration took the position that armed conflict still existed when the capacity of a terrorist organization to launch a strategic strike against the U.S. was coupled by the will to do so, and assessed that under this standard, we are still engaged in war with al Quida.  The Harvard Report suggests four other approaches to the issue:

In light of the sparsity of legal doctrine in this particular area, we put forward, drawing from existing international law and scholarship, four theories on when a NIAC ends and when the international-legal framework of armed conflict ceases to apply in relation to it:

• The two-way-ratchet theory (as soon as one of the constituent elements of the NIAC—sufficiently intense hostilities or sufficient organization of the non-state armed group—ceases to exist);
• The no-more-combat-measures theory (upon the general close of military operations as characterized by the cessation of actions of the armed forces with a view to combat);
• The no-reasonable-risk-of-resumption theory (where there is no reasonable risk of hostilities resuming); and
• The state-of-war-throwback theory (upon the achievement of a peaceful settlement between the formerly-warring parties).

Under some of these theories, the Obama Administration’s position on the continuation of an armed conflict with terrorist organizations holds; on others, it fails. What approach the Trump Administration might take remains to be seen.

This is a report that should be taken seriously.  The lead author is Gabriella Blum, the Rita Hauser Professor of Human Rights and Humanitarian Law.  Unlike many academics in this field, she has actually given legal advice on Law of Armed Conflict issues to military leaders.  Before joining the Harvard Faculty, she served for seven years as a Senior Legal Advisor in the International Law Department of the Military Advocate General’s Corps in the Israel Defense Forces, and for another year, as a Strategy Advisor to the Israeli National Security Council.

The Obama Administrations' discussion of the problem can be found here.You can find the entire Harvard Report here.  A good summary on Lawfare is here.

Sesame Street and the Classification Problem: Terrorism: Is it War? Or Crime? Or Something else?

Harvard Law School Dean Martha Minow famously tells her first year students that law is simply a variation on the Sesame Street song "Which of These Things Is Not Like the Other."  Martha's insight is that much of law is about putting an issue in the right legal category, and many times legal disputes are centered on this classification problem.

Perhaps the best recent example of a legal classification problem has been how we address terrorism  after September 11, 2001.  Were these terrorism attacks an act of war to which the principles of the Law of Armed Conflict apply?   Or were these attacks criminal acts that merit a law enforcement response subject to International Human Rights Law?  As Ken Roth of Human Rights Watch explains in a must-read review of Rosa Brooks' How Everything Became War and the Military Became Everything: Tales From the Pentagon, this classification decision has serious life and death consequences:

In war, opposing combatants can be targeted and killed by virtue of their status as combatants, without regard to their conduct at that moment. Captured combatants in wars between countries can be detained without charge or trial until the end of the armed conflict. In peacetime, by contrast, law enforcement rules allow the use of lethal force only as a last resort to stop an imminent lethal threat, and detentions generally can be sustained only after charges have been filed and a trial has taken place.

As a result of these differences, the U.S. national security establishment (including yours truly) and human rights groups have been at loggerheads:  the U.S. in both the Bush and Obama Administration took the position that the Law of Armed Conflict (governing war) was the appropriate legal framework, while human rights group insisted otherwise.  Rosa Brooks suggests that it is time to recognize that the terrorism that we now face is neither war nor peace, and we ought to create a new framework.  Roth explains:

For much of the past fifteen years, the US officials favoring expansive powers to fight terrorism have been at loggerheads with human rights organizations that have been trying to limit those powers. In Brooks’s view, this debate is going nowhere because it is so difficult to demonstrate conclusively whether standards for war or for law enforcement should apply. As with the famous drawing, reproduced by Wittgenstein, that can be a rabbit or a duck depending on how you look at it, Brooks fears there is no right answer to this debate—or at least no answer that will convince someone already wedded to the opposing point of view. “Many U.S. counterterrorism practices simply defy straightforward legal categorization,” she concludes. The issue, she says, is not one of “lawbreaking, but of law’s brokenness.”

As Brooks notes, “there’s nothing natural or inevitable about any of our familiar categories or distinctions.” They reflect the concepts of a particular era. Rather than continue the effort to divide the world into two categories, she suggests “recognizing that war and peace are not binary opposites, but lie along a continuum.” The task then, she concludes, is to ask not what the law requires, since the law’s answer depends on the difficult-to-resolve dispute over the definition of war or peace. What matters instead is what is right, based on our values. Lawyers may feel less at home with this debate, she observes, but many others will feel that they can contribute to solutions.

Let me give one example that supports Brook's idea that we need to come up with a new framework: Under the Laws of Armed Conflict, when you capture the enemy, they are put in POW camps for the duration of the war.  This is not punishment.  Enemy soldiers are not criminals.  Instead we keep them captive so they can't rejoin the fight.  This works rather well when the war takes a few years, but becomes problematic when we are fighting a "war" that has already gone on for over 15 years, and will likely go on for decades later.  When GITMO effectively becomes a nursing home in 20 or so years, the logic of detention becomes untenable.

While I am not in full agreement with either Roth (who ultimately concludes that the human rights groups had it right all along) or Brooks (who argues for a new construct), the full review and book are well worth reading.

What do you think?

Does Donald Trump Really Want to Deport Family Members of Deployed Military Members?

In 2013, the Obama Administration adopted a policy that directed Immigration and Customs Enforcement to no longer deport undocumented aliens who are  spouses, children or parents of U.S. military personnel and veterans.  The policy stated that these family members would be allowed to "parole in place" while they applied for legal residency.  As Military Times reported at the time, the "White House took the action in response to Defense Department concerns over troops' families being ripped apart by the forced removal of a relative who is in the country illegally."

In either a stroke of object cruelty or fumbling incompetence (or both), the Trump Administration rescinded this policy last week.  As Marine Reservist Nathan Fletcher explained in the San Diego Union yesterday, this policy change is not only cruel, but also bad for national security:

This was as much about national security as it was about upholding our commitment to support our troops. The Department of Homeland Security wrote, at the time, that “military preparedness can potentially be adversely affected if active members of the U.S. armed forces … worry about the immigration status of their spouses, parents and children.” We need our service members focused on accomplishing their mission and the safety of each other.

When you deploy to war, your greatest worry is not yourself. You worry about your family left behind. The least we can promise those willing to give their life for our country is that their immediate family members can remain in that same country. By all accounts, the policy has worked well.

Yet the Trump administration’s new immigration enforcement policy eviscerated “Parole in Place” protections. It does not continue a policy that reflects a promise made to recruits who joined the United States military in the last four years.

The new enforcement directive could have easily maintained the protections of this unique program, as it did a few others. It could have made clear that agents of the U.S. government will not round up and deport the spouses and children of our active duty service members.

Instead, it casually dispenses with exercises of executive discretion based on a “specified class or category of aliens.” The administration either did not know or did not care that one of these specified classes included military families.

Read it all here, and then call your Congressman that the policy be reinstated..

Trump's Statements About Needing More Nukes Is Wrong and Dangerous

In an interview with Reuters yesterday, President Trump made some stunning comments about nuclear weapons.  He suggested (and not for the first time) that he wanted to increase the U.S. nuclear arsenal.  As Reuters reports, "he wants to ensure the U.S. nuclear arsenal is at the "top of the pack," saying the United States has fallen behind in its weapons capacity." In addition, he called the New Start Agreement with Russia "a one-sided deal," and elaborated that it was "[j]ust another bad deal that the country made, whether it's START, whether it's the Iran deal ... We're going to start making good deals."

This is so wrong, and misinformed, that I hardly know where to begin.  Perhaps I should start with this fact:  in my five years as Air Force General, I never once hear any military leader suggest that we needed more nuclear weapons.  Mind you, I heard Air Force Generals complain about other parts of our force structure:  I heard plenty about the need for more aircraft used in conventional warfare, but not even a hint that we needed more nukes.  Even more remarkably, I served on the Air Force Nuclear Enterprise Board, and was part of the discussions about how the Air Force would comply with the New Start Agreement (which required a reduction in our ICBMs), and did not hear even a hint that the New Start reductions were a problem.  To the contrary, the New Start Treaty was endorsed by the entire membership of the Joint Chiefs of Staff , the Commander of Strategic Command, which is the command that is responsible for the military arsenal, and seven former Strategic Command Commanders.  This should have been no surprise because the limits in the Treat were based on the rigorous analysis conducted by Department of Defense planners in support of the 2010 Nuclear Posture Review.

The New Start Treaty placed equal limits on Both Russia and the U.S., but gave each side a great deal of flexibility in how they used these limits.  The limits are:

• 700 deployed intercontinental ballistic missiles (ICBMs), deployed submarine-launched ballistic missiles (SLBMs), and deployed heavy bombers equipped for nuclear armaments;
• 1,550 nuclear warheads on deployed ICBMs, deployed SLBMs, and deployed heavy bombers equipped for nuclear armaments (each such heavy bomber is counted as one warhead toward this limit);
• 800 deployed and non-deployed ICBM launchers, SLBM launchers, and heavy bombers equipped for nuclear armaments.

Our nuclear forces have two main purposes--to deter a nuclear attack against the United States and to provide a deterrent "nuclear umbrella" for our allies as well.  Our military experts ar confident that the current nuclear forces are more than adequate to achieve these objectives.  The suggestion that we should jettison the New Start Treaty, which would allow Russia to increase its nuclear capabilities without limit, is just madness.

Right now the Russian and U.S. nuclear arsenals far exceed (by a factor of four) the number of nuclear weapons of the other countries.  There may well come a time when another country's arsenal (such as China) becomes significant enough that the U.S. arsenal does not provide a deterrent.  At that point, we will either need to include China in a three-way agreement, or once again add to our arsenal.  Until then, building more nuclear weapons (and thereby abrogate New START) is unnecessary and unwise.

Admiral James Winnefeld on the Defense Budget: Modernization and Readiness, not Force Structure

Retired Admiral James Winnefeld was the Vice Chairman of the Joint chiefs for much of the time I was General Counsel of the Air Force.  He recently spoke at the AFCEA-USNI conference, and had some pointed things to say about the defense budget.  He expressed great doubt that Congress will really substantially increase in budget, noting that there is  a “yawning gap between the expectations that are being raised regarding increases to our defense budget and the likely real outcomes.”

The most interesting part of his talk, however, was his concern that the military will focus on increased force structure rather than modernization or readiness:

We definitely need more ships,” Winnefeld said, “but we really need ready and modern ships that support a modern warfighting concept…. Yes, quantity has a quality all its own but not if it’s in the wrong place, not if it’s not ready, not if it’s not modern.”

In land warfare, likewise, the Russians are a major threat to Europe, and we need heavy Army forces to deter them, Winnefeld said, but “buying a lot more troops to handle that that are garrisoned in United States congressional districts is not the answer.” (Former European Command chief Philip Breedlove has even suggested the Russian fleet could block reinforcements moving across the Atlantic). Rather than ship units across the sea, Winnefeld said, the Army needs a large stockpile of advanced equipment ready to go in Europe.

“That is going to require a smaller Army because we’ve got to pay for it,” Winnefeld said. “I wouldn’t take a dime away from the Army, but I would change their operational concept in Europe.” Unfortunately, he said, both the Army and its supporters in Congress have a deep emotional commitment to keeping the largest possible force.

Instead of trying to grow larger, Winnefeld argued, the military would do better to try to grow more innovative.  

Read it all here.  When I was at the Air Force, this is exactly the approach we took--focusing our budget authority on readiness for the current fight and modernization of our weapon systems even at the price of a smaller force.  This approach was not well received in Congress.

Immigration, Demography and the Future of U.S. Economic Growth

While the current focus on immigration has been on illegal immigration (and national security limits on immigration from certain countries, there is also a larger debate now occurring on legal immigration.  Steve Bannon asserted last year that legal immigration was the "real problem." Senators Tom Cotton and David Perdue have introduced a bill to cut legal immigration in half.   As Seattle Times columnist Jon Talton has argued, Trump voters are less concerned with the economic effect of immigration than with the fear that American will no longer be a majority white country, and this concern has as much to do with legal immigration as illegal.

Missing in all of this debate, however, has been the very real demographic consequences of cutting immigration to this country.  Simply put, immigration has allowed us to avoid a demographic challenge facing other countries.  In countries in Europe and Asia, the share of those over 65 is growing rapidly.  This is resulting in both slower growth, and increased costs in carry for the elderly.  As the Pew Research Center explains:

The aging of populations does raise concerns at many levels for governments around the world. There is concern over the possibility that a shrinking proportion of working-age people (ages 15 to 64) in the population may lead to an economic slowdown. The smaller working-age populations must also support growing numbers of older dependents, possibly creating financial stress for social insurance systems and dimming the economic outlook for the elderly.

Graying populations will also fuel demands for changes in public investments, such as the reallocation of resources from the needs of children to the needs of seniors. At the more personal level, longer life spans may strain household finances, cause people to extend their working lives or rearrange family structures. Perhaps not surprisingly, an aging China announced a relaxation of its one-child policy in November 2013.

 As Greg Ip explains quite well in today's Wall Street Journal, Trump can only achieve his economic growth goals if immigration levels are increased, or at least kept at the same levels:

Immigration’s economic significance is greater than even these numbers indicate for two reasons. First, immigrants are usually younger than the native born population: about 65% are working age, between 25 and 64, compared with 52% of the native-born. Also, among immigrants just 5% are over 65, compared with 15% of the native born. Second, immigrants will have children who will bolster the labor force in later decades. The contribution from the children of native-born parents “will simply be outnumbered by the flood of departing baby Boomers,” the NASEM study says.

Consider this: The working-age population grew on average 1.4% per year from 1965 through 2015, when economic growth averaged 3%. The Pew Research Center estimates that at current immigration rates, the working-age population will grow just 0.3% per year in the coming two decades. With half a million fewer immigrants per year it grows just 0.1%, and with 1 million fewer, the working-age population shrink by 0.1% per year.

.  .  . 

Second, they tend to bring skills that are in great demand. A recent National Bureau of Economic Research study by John Bound, Gaurav Khanna, and Nicolas Morales found that the influx of tech workers using the H-1B visa, a permit for skilled workers, during the late 1990s depressed the wages of U.S. computer workers and scientists by 3% to 10% but made the overall country better off by boosting innovation and reducing prices for consumers.

Put simply, if we want to avoid the demographic crisis facing other countries, and we want to ensure an economy in the future for our children that will make social programs like Social  Security sustainable, we need to continue to be a nation of immigrants.

(Greg Ip, by the way has a very interesting report on how demographics drives economics here. And economist John Chilton pointed me to this interesting study that found that "locations with more historical immigration today have higher incomes, less poverty, less unemployment, higher rates of urbanization, and greater educational attainment.")

Are Rank and File Taliban Ready For Peace? Theo Farrell Thinks so.

Theo Farrell is a very serious guy.  I met him when he was the Head of the illustrious Department of War Studies at Kings's College London.  He is now Professor of International Security and Dean of Arts and Social Sciences at City, University of London.  He a deeply credible voice in national security issues, and his views should be given great credence.  As he explains in a new War on the Rock post (a great national security resource, by the way), after talking to members of the Taliban, he thinks that a serious, but different, peace initiative, rather than more troops is likely to lead to peace in Afghanistan.

First, he describes discussions with the Taliban that he and Michael Semple had:

Our talks were held over ten days at a location outside of Afghanistan. We engaged in lengthy iterative interviews with each person over many hours. Our interviewees represented all of the major networks in the Taliban except the Haqqanis and included two former Taliban deputy ministers, two former Taliban provincial governors, and a former front commander. We published our findings last month in a report for the Royal United Services Institute. Our headline is that the Taliban is in disarray. Far from emboldened by their battlefield successes of the past two years, a great many among the Taliban rank-and-file are disillusioned. They have lost faith in the war following the withdrawal of Western combat forces that, as one put it, “has nothing to offer but destruction and the slaughter of Afghans.” Ramping up the U.S. military effort in Afghanistan risks re-injecting a sense of purpose into the Taliban war effort. Semple and I conclude that the time is right to explore peace talks with the Taliban, but in a completely new and different way.
 .  .  .
Viewed from the perspective of the Taliban rank and file, things don’t look good. Battlefield successes have not come cheap: Our interviewees highlighted heavy Taliban losses, in particular in Farah, Faryab, Helmand, Uruzgan, and Kunduz provinces. The new leader is weak and many worry for the future of the movement. The war continues but with no end in sight. There is no plan for converting tactical victories into political success, and there is no confidence in Haibatullah’s ability to produce such a plan. Added to this is growing distaste among many Taliban for the un-Islamic behaviour of some commanders, who mercilessly target civilians. As one Taliban interviewee with close links to the Quetta Shura observed, “now the ranks of the movement are very vulnerable because they don’t know where they are going and what will happen tomorrow.”

He then concludes that the Taliban is ready to discuss peace now. Such peace discussions, however, will be effective only of a "bottom-up", rather than a top down  approach is taken:

Given the widespread disillusionment among Taliban with the conduct and direction of the war, Semple and I conclude that the time is right to make peace. However, a new approach is required. Previously, the United States has tried to deal directly with the Taliban senior leadership. Under Haibatullah, this is a non-starter. In our paper, Semple and I outline an approach, which we call “insurgent peace-making” that would out-maneuver a divided Taliban senior leadership. This would involve a peace process open to all Taliban with standing within their own network, and able to speak for a sizable group of fighters, and who are looking for a negotiated end to the conflict. The basic idea would be to assemble a broad Taliban pro-peace coalition.

Read it all here. You can find a more complete report discussing the interviews with the Taliban here.

As Theo Farrell himself points out, these views are contrary to the views of both "Commanders in Afghanistan and military pundits in Washington", who argue that we need to gain the upper hand militarily before the Taliban would take peace talks seriously.  What do you think?

Islamic Terrorists and American Mass Shooters Have Something in Common

In an earlier post, I discussed some social science research that supported the view that actions such as the Travel Ban that focus on Muslims is counter-productive because it adds to the very sense of alienation that leads to radicalization in the first place.  It turns out that this same dynamic of alienation is also behind  American mass shooters who have no connection to Islam.  Alana Connor, the Executive Director of the Stanford Center for Social Psychological Answers to Real-World Questions explains in a Defense One post:

We treat right-wing extremists and radical Islamic killers as if they are two separate issues. But in fact, research suggests that the same underlying factors cause homegrown Americans to break bad—whether they join a radical Islamic terrorism group or the Ku Klux Klan.

According to research conducted by my fellow cultural psychologists Sarah Lyons-Padilla and Michele Gelfand, Muslims in the US radicalize when they believe their lives do not matter—a belief that arises from the feeling that they don’t really belong anywhere. Discrimination, racist rhetoric, and xenophobic policies only exacerbate these feelings of “cultural homelessness.” Radical Islamic groups exploit these emotions by targeting young people who feel alone and adrift, and then restore their sense of belonging and meaning. Thus radical Islamic terrorism is not primarily a religious problem; it is a social problem.

Research from our Stanford University lab, led by Lyons-Padilla, suggests that a similar psychological process may drive white Americans to join white supremacist and other militant right-wing groups. The slow death of manufacturing, the isolation of smaller American towns and rural areas, and stagnating working- and middle-class wages have left a broad swath of Americans feeling unmoored and insignificant. The widespread acceptance of redneck jokes, white-trash impressions, and comments about “basket of deplorables” rub salt into these wounds.

Like radical Islamic groups, white supremacist and other right-wing terrorist groups offer people (especially men) who feel isolated and disempowered a chance to feel important and welcome. It’s the same psychological phenomenon, different culture war. And thus the KKK gains new recruits along with ISIL.

Read it all here.

Are Nuclear Weapons Useful for Coercive Diplomacy?

The conventional wisdom in national security circles has been that in addition to their use as a deterrent, nuclear weapons can also be used as a tool of coercive diplomacy.  In other words, nations with nuclear weapons are able to achieve land, concessions or power that they otherwise would not be able to obtain without nuclear weapons.  A new book by Todd S. Sechser and Matthew Fuhrmann, Nuclear Weapons and Coercive Diplomacy, uses a careful historical and statistical approach to cast serious doubt on this conventional wisdom.  

Andrew Bast of the Los Angeles Review of Books summarizes the conclusions of the book:

In Nuclear Weapons and Coercive Diplomacy, scholars Todd S. Sechser and Matthew Fuhrmann want to answer the question, “What has [the United States] been able to do with nuclear weapons that it could not have done without them?” Sechser and Fuhrmann challenge the notion that nuclear-armed countries are more threatening on the world stage, that nukes help win negotiations, take territory, and generally bend the will of other states to their own. “An emerging wisdom in international relations scholarship,” they write, “says that countries with large nuclear arsenals can bully other states into submission.” Then they slowly dismantle that notion with a deep academic dive into a range of international conflicts over the last seven decades and conclude that “nuclear weapons have far less utility for coercive diplomacy than many people believe.”

Why is that? Sechser and Fuhrmann make a point that Trump would be wise to review in light of his comments about possibly battling ISIS with nukes. “The military utility of nuclear weapons is limited,” they write, “and often redundant to the capabilities of conventional weapons.” In addition, the international norms that have emerged over the last seven decades of the nuclear age dictate that any use of nuclear weapons would spark a fierce international backlash, one so powerful from other states and the broader public, they suggest, that would threaten the “security, prosperity, and the political fortunes” of any country and its leaders who actually launched the nuclear attack.

As the CATO Institute suggests, these conclusions raise significant issues:

 This has significant implications for U.S. foreign policy. What do these findings suggest we should expect from our nuclear-armed rivals, like Russia and China? Does it make sense to undertake preventive military action against nascent nuclear weapons programs in countries like North Korea? If Iran were to get nuclear weapons once the time-limited restrictions in the JCPOA expire (as critics of the deal suggest), how would that influence its behavior in the region?

Of course, the issue is far more complex that CATO suggests.  Iranian nuclear weapons, for example, would likely lead to other nations in the region (such as Saudi Arabia seeking their own nuclear weapons), which would destabilize the region.  Moreover, a country with otherwise weaker conventional forces can deter threats if they have nuclear weapons.  This, in turn, can allow them to engage in aggressive activity without threat of retaliation.  For example, would the US and its allies have come to Kuwait's defense if Iraq had nuclear weapons and threatened to use them?

What do you think?

A Primer on the Intermediate-Range Nuclear Forces ("INF") Treaty

With the resignation of National Security Adviser Michael Flynn, and the reports of several FBI investigations of alleged Trump campaign contacts with Russian intelligence officers, there is heightened interest in all aspects of our relationship with Russia.  I previously discussed concerns about a Russian spy boat off the coast of the United States.  This post will focus on reports of Russian violation of the Intermediate-Range Nuclear Forces Treaty, also known to cool people in the know as the "INF" Treaty.

First some background on the treaty itself.  During the 1970's, the USSR began  to develop and deploy an intermediate  nuclear armed missile known as the SS-20, which improved the Soviet's ability to reach European targets.  In response, NATO began to deploy is own intermediate nuclear missiles (ground-based cruise missiles and the Pershing II missiles.  NATO also sought to reach an agreement with the Soviets, but the Soviets were not receptive until Mikhail Gorbachev became the Soviet General Secretary. The US and NATO had several non-negotiable demands: that the Treaty be global in scope (and not just apply to missiles in Europe) and that it not apply to British and French missiles.Ultimately, the USSR and the US agreed to a worldwide elimination of all ground-launched intermediate missiles (defined as missiles with a range of 300-3400 miles).  This resulted in the elimination of existing missiles on both the US and USSR sides, but did not effect the French or British arsenals.

Russia is not subject to the Treaty as a successor State to the USSR, and it has shown some signs of buyers remorse.  It has noted its concern that nations around it--such as France, the UK and China, are not subject to these restrictions.  It has also argued that the development of a missile defense system in Europe has changed the strategic balance, and this might make termination of the INF Treaty inevitable.  Nonetheless, Russia has not taken steps to terminate the Treaty.

The recent controversy about alleged Russian violations of the INF Treaty have been years in the making.  In July 2014, the United States first officially declared that Russia was in violation of the Treaty by testing a new cruise missile.  The Russians denied that this was the case, and alleged that the U.S. itself was in violation of the INF Treaty (by the missiles it uses as targets for the missile defense system, among others).  The US formally initiated the dispute mechanisms in the Treaty (the first time this was done), and the parties met to discuss the violations in November 2016.  The New York Times has now reported that officials believe that Russia has gone beyond mere development of the missile and has begun to produce enough cruise missiles to deploy them.

Almost all that is occurring is highly classified and is happening behind closed doors.  We don't even know the Russian explanation about why the new missile does not violate the Treaty.  Nonetheless, this issue is raising several sets of questions?

First, what is Russia attempting to accomplish by developing a cruise missile capable of hitting targets in Europe?  I can only offer speculation, but there are some obvious possibilities.  We know that Russia is very concerned about the development of even a modest missile defense system in Europe.  Russia is also concerned about the fighter-aircraft-based nuclear weapons in the NATO arsenal.  It may well be that Russia is developing the missile as a bargaining chip to be used in a negotiation to get rid of both the aircraft-based nuclear weapons and the missile defense system.  Alternatively, the missile system may be part of its strategic efforts to put a wedge between US and European countries on a security issues.

Second, what are the possible US responses?  One option, of course, would be to terminate the agreement, and build a new cruise missile system to counter the Russian systems.  The downside to this option is that it will require the costly development of a missile not even on the drawing board, with little apparent strategic advantage.  I can think of much ways to speed our defense dollars.  Because the treaty only applies to ground-launched systems, the US could also deploy air and ship based systems.  Finally, of course, the US could use this dispute to negotiate a broader agreement that could, for example, place limits on tactical nuclear weapons in Europe.

The real question on everyone's mind, of course, is what President Trump will do on this issue.  To be fair to President Trump, the Russia-U.S. meeting on this issue only took place in November, and both the department of Defense and the Department of State may still be developing recommendations for the President.  In light of the swirling taint of scandal regarding his campaigns relationship with Russia, however, it needs to develop a response soon.

It is in the interest of the United States to keep the INF Treaty in place.  The elimination of an entire type of weapon system was a huge accomplishment, and a new arms race concerning nuclear weapons in Europe would hardly be to our advantage.  Still, the Treaty violations, if verified, cannot go unanswered.

A good resource on this issue, by the way is an Issue Paper issued by the Arms Control Association.

Lt. Gen H.R. McMaster's Selection as National Security Adviser is a Surprisingly Good Choice

Since Trump was inaugurated, my twitter feed (which is largely made up of both Republican and Democratic national security types) has largely been filled with outraged commentary from all sides about the disastrous national security and foreign policy decision-making coming out of this Administration.  Until now.  To say that the selection of Lt. General H.R. McMaster as National Security Adviser has been applauded would be an understatement.  The reaction has been uniform: shock and surprise that Trump would make such a great choice, and genuine enthusiasm at the selection.

Andy Exum, a former Army officer and former U.S. deputy assistant secretary of defense for Middle East policy, offers this assessment:

Let me be as clear as I can be: The president’s selection of H.R. McMaster to be his new national security advisor is unambiguously good news. The United States, and the world, are safer for his decision.

.  .  .

[H] e earned his Ph.D. in history and wrote a best-selling book, Dereliction of Duty. With great foresight, I neglected to read it until three months ago, so the book remains fresh in my memory today. One thing that stands out in the book is the way in which McMaster criticized the poorly disciplined national security decision-making process in the Kennedy and Johnson administrations, and especially the way in which the Kennedy administration made national-security decisions by a small group of confidants without a robust process to serve the president.

Like Ben Bernanke, a student of the Great Depression brought in to lead the Federal Reserve immediately prior to the Great Recession, McMaster comes to his job having carefully studied and criticized the national-security decision-making process for which he will now be responsible.

I have known McMaster for over a decade and cannot imagine a more decent man in his position today. This job is going to drive him crazy, because he does not suffer fools gladly. Unless he has been given some assurances about both staffing and process, he will struggle in a competition to influence the president—to be the last man in the room when the president makes a key decision.

Read it all here.  General McMaster, by the way, is not just some pointy-headed intellectual General that policy wonks like because he wrote a great book.  His leadership of an armored calvary troop in the Gulf War at  the Battle of 73 Easting is still studied today.

Why Any Immigration Barrier Directed At Muslims Is Counterproductive

In a letter that I signed, together with about 100 other former national security officials, we argued that the Trump Refugee Ban Executive Order, in addition to being unnecessary and wrong,  “will harm our national security” because  “it has already sent exactly the wrong message to the Muslim community here at home and all over the world: that the U.S. government is at war with them based on their religion.”  In my posts on Facebook about the Order, I made a similar point—that such a ban makes us less safe, not safer.

As you might expect, we have received pushback for this point.  Isn’t it better to take no risks?  Given the terrorist attacks in Europe, isn’t there at least a small risk that one person from this country intends us harm?  If, so, why take even this small risk?

Even apart from the obvious point that we accept far greater risks in our everyday lives, this question also fails to consider the possibility that imposing such a ban itself increases the risk of radicalization.

As explained in an interesting article in yesterday’s New York Times, there is actually some research that supports our fear that anti-Muslim actions and rhetoric will contribute to the radicalization process, and thereby increase the risk of developing home grown terrorists.  The academics of conducted this study, Sarah Lyons-Padilla of Stanford and Michael Gelfand of the University of Maryland explain their study:

We conducted a survey with nearly 200 American Muslims, half of whom were immigrants, half of whom were born in the United States. We asked them about their experiences as religious and cultural minorities, including their feelings of being discriminated against on the basis of their religion. We also asked how they managed their dual identities as Americans and Muslims, and how they felt toward fundamentalist Islamic groups and extremist causes.

Our findings were clear: The more our participants reported feeling culturally homeless — that is, fully belonging neither to American culture nor to that of another nation — and discriminated against on the basis of their religion, the more they said they experienced a lack of meaning in their lives. In turn, this loss of meaning was associated with greater support for fundamentalist groups and extremist causes.

This finding was consistent with research by the social psychologist Arie Kruglanski that showed that the psychological need for significance, not religion or ideology, is what propels people toward extremism. Extremist groups offer a sense of purpose, certainty and belonging to those who work on their behalf.

These groups go after Muslims who feel culturally homeless, leaning heavily on the claim that the West is anti-Islam. In this context, Mr. Trump’s original ban, which sent a strong message that Muslims were not welcome in this country and could not be “real” Americans, amounted to free propaganda for extremists. As one poster argued on a pro-Islamic State web channel, Abu Bakr al-Baghdadi, the declared leader of the Islamic State, should consider Mr. Trump’s executive order a “blessed ban.”

You can find the article here.  The full study is also interesting and can be found here.  

While it appears the original Executive Order will be pulled back, it will replaced with an Executive Order that will still target immigrants from predominately Muslim countries.  It too will send a message that will hurt our efforts to prevent radicalization.

Immigrants and Crime

While the focus on attention lately has been on the link  (or the lack thereof) between terrorism and refugees, President Trump and other advocates of more restrictive immigration policies also contend that immigrants are responsible for an increase in crime.  I thought it would be interesting to take a look at the evidence.  Not surprisingly, the claim appears to be false.  Immigrants, actually, are less likely to commit crimes than native born Americans.

Scientific American offers a good summary of the evidence on this issue:

Immigration-crime research over the past 20 years has widely corroborated the conclusions of a number of early 20th-century presidential commissions that found no backing for the immigration-crime connection. Although there are always individual exceptions, the literature demonstrates that immigrants commit fewer crimes, on average, than native-born Americans.

Also, large cities with substantial immigrant populations have lower crime rates, on average, than those with minimal immigrant populations.
.  .  .
Across our studies, one finding remains clear: Cities and neighborhoods with greater concentrations of immigrants have lower rates of crime and violence, all else being equal.

Read the entire post  (which was written by the researchers themselves, and not filtered by journalists).

A Double Standard on Religious Violence?

I used to blog at the Episcopal Cafe, and I highly recommend it to anyone interested in how faith, politics and life intersect.  Follow them!  David Allen has a very interesting  post at the Episcopal Cafe discussing the double standard Americans have toward religious violence.  When Christians engage in religiously motivated violence, we reject them as legitimately Christian.  On the other hand, when Muslims commit such violence, not so much:

A recent poll by the folks at PRRI bears this out. 75% of the folks in the US believe that people who commit acts of violence in the name of Christianity are not Christian. But only 50% of the folks in the US believe that people who commit acts of violence in the name of Islam are not Muslim. That’s a double standard when it comes down to who folks in the US believe commit acts of violence.

It gets even more interesting when those who hold this double standard are broken into various groups, such as Republicans vs Democrats. 75% of Republicans don’t believe that Christians who commit violent acts are really Christians, while only 33% of Republicans don’t believe that Muslims who commit violent acts are really Muslims. The Democrats do a little better but still have a double standard. 79% of Democrats don’t believe that Christians who commit violent acts are really Christians, while 55% of Democrats don’t believe that Muslims who commit violent acts are really Muslims.

Read the full post here.  You can find the full survey results here.

Russia's Interference in Elections Is Not New

Andrew Weiss of the Carnegie Endowment has an interesting op-ed in the Wall Street Journal today that makes the point that Russian interference in the elections of other countries is nothing new.  For example the KGB used similar tactics in the 1980’s in an effort to defeat deployment of U.S. intermediate range nuclear missiles in Europe:

The Soviets did everything they could to encourage and manipulate the grass-roots European peace movement that had risen up in opposition to the new weapons.
According to declassified CIA reports, Moscow used a web of front groups, secret payments to activists and articles placed in the press. The Russians also carefully conveyed propaganda themes to sympathetic media outlets, peddled disinformation and produced damaging forgeries of official U.S. and NATO documents.
.  .  .
The KGB and its allied intelligence services also tried to tilt elections in the U.S., Western Europe and the Third World. At the height of the debate over the U.S. missile deployment in Europe, the Soviets organized what Chancellor Helmut Kohl’s government called a “massive propaganda campaign of interference in West German affairs” to force his ouster in the country’s March 1983 election. But the Soviet effort backfired. The crude Soviet “press commentaries” and staged “workers’ rallies” horrified Kohl’s party and even the opposition Social Democrats.

As Weiss notes, Russia is now likely to use similar tactics in several upcoming European elections:

With elections also coming up this year in Germany, the Netherlands and perhaps Italy, the Kremlin’s willingness to use its KGB-style tool kit has put intelligence services across the continent on alert. In Germany, for instance, a high-profile January 2016 fake-news story about an attempted sexual assault on a Russian-German teenager by Middle Eastern refugees, which was also spread by Russian Foreign Minister Sergei Lavrov, stoked popular anger toward Chancellor Angela Merkel—probably Mr. Putin’s most prominent foreign foe.

There is one remarkable difference, however, between Russia’s electoral interference in the past and what we are seeing today.  In the past, the efforts were largely designed to bolster the left in elections.  Today, the efforts instead are designed to bolster the far right.  This is a fascinating change, which reflects a return to Russia’s traditional, pre-Revolution strategy in the World, but that is a post for another day.

Read the full post here.

Could America Really Win a Limited Nuclear War?

Geoff Wilson and Will Saetren have an interesting  post at National Interest that asks several interesting questions:  could the U.S. win a limited nuclear war? Should we spending more energy planning for a scenario?  They offer an emphatic (and persuasive) NO.  The question is not an academic one:  the Defense Science Board has recommended that the Trump Administration make the U.S. nuclear arsenal more capable of fighting a limited nuclear war.  In addition, the U.S. still has tactical nuclear weapons in Europe.  Finally, Russia's apparent violation of the Intermediate Ballistic Missile Treaty could result in the U.S. itself adding new intermediate missiles in Europe.

 Against this backdrop, Wilson and Saetren argue that trying to win a limited nuclear war is misguided.  The whole piece is worth reading, but this example was particular chilling:

That belief is a fantasy. The real problem with this proposal is that any use of nuclear weapon, limited or not, could lead to escalation.

In fact, the Reagan administration launched a wargame in 1983 to test the Madman Theory and analyze the viability of U.S. nuclear warfighting plans. Codenamed Proud Prophet, the exercise had NATO launch limited nuclear strikes against Soviet targets in response to conventional provocation. But instead of backing down, the Soviet team doubled down, launching a massive nuclear counterattack at the United States, to which the U.S. responded in kind.

Wargame over.

When the dust settled half a billion people had been annihilated. NATO was gone. The results were reportedly such a shock to Reagan that his schedule had to be cleared for the rest of the day. The blowback was swift.

Read it all here.

Major Troy Gilbert Came Home

Several years ago when I was Air Force General Counsel, I received a call from retired General Walt Huffman, who I worked with when I was the Army General Counsel. He told me that a friend of his, Ginger Gilbert, was the widow of an Air Force pilot killed in Iraq. Major Gilbert's body had been taken by insurgents. Walt explained to me that the Air Force had told Ms. Gilbert that they would no longer be searching for his remains once we pulled out of Iraq because "he was accounted for" (we knew that he had died in the crash.) I agreed with Walt that this didn't seem the right decision and went to my boss, Secretary Donley, to get the decision reversed. Secretary Donley did so, and the search continued.

Last week, I received another call from Walt Huffman letting me know that Major Gilbert's remains had finally been recovered and placed at Arlington Cemetery. He also told me that Ginger Gilbert was doing well. She had remarried, and started a charity called "Folds of Honor" that focused on the children of fallen warriors like her husband.

It was nice to know that something I did while Air Force General Counsel had a nice ending.

More about Major Gilbert here.

A Primer on Emoluments And Its Possible Application to President Trump

I have had several friends ask me for thoughts on whether President Trump’s business dealings with foreign countries violates the Emoluments Clause of the U.S. Constitution.  Both as Air Force General Counsel and in private practice, I have actually had to give legal advice on the meaning and scope of this provision of the Constitution.  It most often comes up when retired military members (who are still considered officers of the United States) accept jobs with foreign governments.  As I detail below, the legal issue here--whether business transactions with foreign governments violates the Emoluments Clause--is unsettled  There are two competing theories, both of which focus on the meaning of the word “emolument.”

One beginning word of caution:  while those who oppose Donald Trump will find attractive any argument that can be used to defeat him, this issue will affect many others as well.   While the Emoluments Clause might seem obscure to many, this provision is not at all obscure to the over 2 million military retirees and 2.8 million federal employees.  They are subject to the Emoluments Clause, and the issue of the Emoluments Clause could have consequences for federal employees and retirees.  For example, if the Trump Organization’s sales to foreign governments gives rise to an Emolument, this would also be true of a small veteran owned business that makes sales to foreign governments--which is not that rare in the government contracting world.

The Emoluments Clause, U.S. Constitution, Art. I § 9, cl. 8 states: No Title of Nobility shall be granted by the United States:

And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

While there is actually some argument that the President is not a person holding an “Office”, that argument is rather esoteric, and is inconsistent with the views expressed by the Office of Legal Counsel over the years (including most recently, an opinion about whether President Obama’s acceptance of the Nobel Peace Prize would violate the Clause).  The real argument is whether the profit or revenue gained from a bone fide business transaction with a foreign government is an “Emolument.”

There are two views based on the definition of emolument.  The first, more narrow view, is that an emolument is something of value you gain from employment or personal service.  As the Office of Legal Counsel has explained, and as the Oxford English Dictionary teaches, the word “emolument” is primarily defined as “profit or gain arising from station, office, or employment: reward, remuneration, salary.”  Under this view, business transactions fall outside the definition because they do not result from employment or office.  Professor Andy S. Grewal of the University of Iowa has an excellent article outlining this view.

The second, broader view advanced by Larry Tribe, Norman Eisen and Richard Painter in a Brookings Institution paper is that given the history of this provision--which was intended to prevent foreign influence over federal officers, a broad definition is appropriate.  Thus, while they admit that the primary meaning of emolument is payment or reward you get from employment or office,  they argue that we should look to an older, secondary meaning of emolument:  “advantage, benefit, comfort.”  Under this definition, even legitimate business transactions are covered  because they provide a benefit to the officer.

While I think Tribe, Eisen and Painter make a compelling historical case for the broad view, their view is not consistent with how the Emoluments clause has actually been enforced in cases under the Emoluments Couse (largely involving military retirees and employees).  Indeed, when I worked on Emoluments issues before Trump was elected, I had always taken the employment-focused view.   This is because the two authorities that opine on the Emoluments Clause (Office of Legal Counsel and the Comptroller General) have consistently relied on the narrow, primary definition in their numerous opinions on this issue.  And more to the point, they have opined that it does not violate the Emoluments Clause if an officer works for a corporation that provides goods and services to a foreign government.  This is because the Emoluments Clause applies to natural “persons”, and if it is a corporation that receives revenue from a foreign government, its employees are not in violation of the Emoluments Clause.   The Office of Legal Counsel has opined that the Emoluments Clause comes into play in these circumstances only when the corporation is a “mere conduit” for the employment of the officer.  To be fair, however, I am not aware of any case brought to the Office of Legal Counsel that raised the extensive foreign business involvement of the Trump Organization.

What I find curious is that no one has focused on another key element of the Emoluments Clause.  It expressly allows Congress to consent to an emolument.  Congress has done so for most retirees and officers by enacting a statute that consents to all emoluments approved by agency heads.  Such approval is routinely granted in many circumstances.  I wonder if Congress would consent to President Trump’s emolument if a Court took the broader view?

Keep Your Eye on North Korea

While everyone is focused on the Flynn story, it might be time instead to think through the real crisis this week: North Korea's test of a ballistic missile. The press reported that President Obama warned Trump that North Korea would be the most dangerous and challenging national security issues. He was right.

In the next four years, North Korea will likely develop the capability to hit the United States with a nuclear-armed missile. In response, countries in the region such as South Korea and Japan might well stop believing that the United States would come to their defense against North Korea. They might well develop nuclear weapons of their own. To say that this will destabilize a region that has had a restless peace for the last 60 years would be an understatement. And given the often bizarre nature of the North Korean regime, the notion that they could have the power to destroy an American city is intolerable.

There are not many good options available to the United States to stop this from happening. We could continue to ratchet up our already severe sanctions, but that has not seemed to work in the last twenty years. The North Korean government will let its people starve if that is the price of nuclear weapons development. Some pundits insist that North Korea is on the verge of collapse, and that we just need to ratchet up the pressure. Given that they have been saying this for years, I am deeply skeptical. (In addition, a failed state with nuclear weapons is not exactly a great outcome, is it?)

One option that we have not used is military force to take out North Korea's nuclear capabilities or even its leadership. The problem with this option is that Seoul and much of the population of South Korea is just 35 miles from the North Korean borders. While I am convinced that South Korea and the U.S. could decisively defeat North Korea in any military conflict, the price would likely be the destruction of Seoul of the death of hundreds of thousands of South Koreans. And the conflict could quickly degenerate into a war involving Japan and China as well. Not surprisingly, the South Koreans are not huge fans of this option.

Like it or not, while we need to keep all of our options on the table (and perhaps ratchet up sanctions in the near term), the only viable solution may be a grand peace deal with North Korea (technically, we are still at War with North Korea--we only have an armistice, not a peace). This means direct talks with the North Koreans, and will inevitably require deep involvement by China. There is much to dislike about this option, and it may not work, but it seems like the least bad option we have right now.

The Council on Foreign Relations has published a very useful analysis of this issue here.  For a different point of view (suggesting that deterrence will make this less of an issue) read this National interest article.

Is the Ninth Circuit Reversed 80% of the Time?

The President just said at his press conference that the Ninth Circuit decision on his travel ban Executive Order can be discounted because Ninth Circuit decisions are reversed 80% of the time by the U.S. Supreme Court. This is a point I am starting to hear from conservative pundits and tweeters. Is this true? Yes. Does it mean that the Ninth Circuit is out of the legal mainstream? Not at all.

This number is meaningless and quite misleading. You need to remember that the Supreme Court refuses to even hear the vast majority of cases from the Ninth Circuit (and other circuits for that matter). They only accept about 1% of all cases brought to them. As the Supreme Court website explains, they receive

approximately 7000-8000 petitions for writ of certiorari (the fancy Latin term for "hear my case"), but the Court only hears about 80 cases each year. In fact, a major part of my job as a law clerk was helping the Justice review the thousands of petitions in order to select the very few that would be heard by the Court.

This is true of the Ninth Circuit as well. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the Ninth Circuit. Yet, the Supreme Court heard just 11 cases from the Ninth Circuit in 2015, reversing eight. Thus, given that so few Ninth Circuit cases are reversed by the Supreme Court, you could just as accurately say that the Supreme Court only reversed the Ninth Circuit less than 1% of the time.

And even looking purely at the reversal rate of the few cases accepted by the Supreme Court, the Ninth Circuit is not out of line with other courts. The Supreme Court rarely takes a case because it wants to affirm the lower court decision. What would be the point of that? Instead, the Court most often accepts cases if a majority of the Court has some doubts about the lower court decision. This results in the Supreme Court reversing far more often than affirming. In fact, the Supreme Court reversed about 70% of the cases it took between 2010 and 2105. Among the cases it reviewed from the Ninth Circuit, it reversed about 79%--just a bit higher than average. (The percentage was only 67% last year.) The 6th Circuit (hardly a liberal bastion) was the most reversed with an 87% average.

In sum, the 80% reversal statistic may give some comfort to Trump, but if I were him, I would be a bit concerned that the Supreme Court declines to reverse the Ninth Circuit more than 99 percent of the time.

Is the Russian Spy Ship A Problem?

One of the challenges in the current environment is that events that really are routine, and not a big deal, are getting a great of attention. Quite frankly, part of the problem is that there are only a few reporters who seem to understand the larger national security context, and they think that there is yet another outrage by the Trump Administration that is simply not there. This is especially the case when the story involves Russia.

The latest example is the mild hysteria about the Russian spy ship off the East Coast. Isn't this a threat? Should President Trump be doing something about this? Isn't this yet another example of Trump ignoring Russian outrages. In a word, no.

In fact, I suspect the officials in both the Navy and Air Force are quite happy with this development. Here is why.

Under the Law of the Sea, territorial waters are limited to 12 miles off the coastline. While countries have a 200 mile exclusive economic zone, warships of other countries are permitted to make travel in these waters for "peaceful purposes". While the US has not adopted the Law of the Sea, we recognize these rules as customary international law. Heck, we do more than pay lip service to these rules, we actively take advantage of them. U.S. Air Force surveillance planes known as RC-135 "Rivot Joints" routinely fly a bit more than 12 miles off the coast of China, Russia and other countries of interest. The Navy has ships that do similar missions. The Chines routinely complain that this is illegal. We just as routinely assert our freedom of navigation to continue these missions. This came to a head in 2009, when five Chinese warships surrounded the USNS Impeccable, a US Navy ocean surveillance vessel, and ordered it to leave the area. The Chinese continue to take the view that such military activities cannot be undertaken in the exclusive economic zone. The US position continues to be to the contrary.

So a Russia ship that comes to our coast one every few years is great because it reinforces a principle of international law that we take advantage of far more routinely. This is important because customary international law is developed by the actions of nations over time. By acting in a manner consistent with our view, they reinforce our rights to continue to do the same. So my former colleagues at the Pentagon are very happy right now, the outrage would be if the Trump Administration took action inconsistent with our longstanding view of the legality, under international law, of these kinds of operations.

And don't be concerned--i am confident that the Russians won't get much of interest from this mission. I am just as confident that we were learn far more about them by monitoring this ship.