Trump and His Critics' Security Clearances: A Primer

Say what you will about the Trump Presidency (and I have said quite a bit), he is certainly creating lots of opportunity for my friends to learn about national security topics.  Thanks to White House Press Secretary Sarah Huckabee Sander's announcement that President Trump is considering revoking the security clearances of former Intelligence Community leaders who have been sharply critical of him, I have an opportunity to focus on security clearances.

Given that they play such an important role in protecting our national security clearances, one odd fact is that our entire system of security clearances is largely the creation of Executive Orders, and not statutes.  The basic set-up of our systems is as follows:  in order to have access to protected information, you need to have both (1) the appropriate level of clearance (Confidential, Secret, Top Secret or Top Secret/Special Compartmentalized Information), and (2) a need to know the information (idle curiosity isn't enough).  For certain highly sensitive information, you must also be "read on" to a Special Access Program", which has a sharply limited set of people who can have access.  Getting a clearance is a ling and expensive process that usually involves an extensive field investigation where agents knock on the doors of your neighbors.

In the usual case, when you leave government service you lose the clearance.  I lost my clearance when I left my job as Air Force General Counsel,  and my current clearances are the result of my service on the Aerospace Corporation Board of Trustees and my representation of a Guantanamo detainee (ironically, only the most loyal Americans are allowed to represent detainees).  There is one exception to this rule--senior leaders in the Intelligence Community agencies are usually allowed to keep the clearance so that their successors can ask them questions about activities during their tenure.

Because the President created the entire system, his authority in this area is plenary, and the courts have largely held that they will not, and cannot, review substantive decisions about who has a clearance.  Instead, the only authority that courts have over security clearances is to review claims of procedural due process.  The key cases are Department of the Navy v. Egan (holding that courts do not have the authority to review the substance of security clearance decisions) and Webster v. Doe  (holding that courts do have authority to review procedural due process claims).  The Webster decision also seems to keep open the possibility that it would entertain other constitutional claims as well.

So what does this mean?  I think that if the President revokes the security clearances without due process, this would be subject to a procedural due process challenge.  Even if due process is provided, I also think that if the justification is that the IC leaders are saying bad things about Trump, there may also be a viable First Amendment challenge (but this is still a bit unclear).  If instead, Trump were simply to announce that former IC leaders would no longer be allowed to keep their security clearances, I think that this decision would stand given the President's plenary power over security clearances.  This, however, would be bad for national security--the current CIA Director would not be able to talk to her predecessors even in a crisis. My prediction is that Trump's pettiness will be more important than what is best for national security and this will be the option he will choose.

(A practice point here:  in predicting Trump's future behavior, focus on what best advances his pettiness)

If you want to learn more, check out this LawFare post.

Artificial Intelligence and the Survaillance State

Nicholas Wright has a very sobering article at Foreign Affairs (sadly behind a pay wall) about how developments in artificial intelligence will make authoritarian governments much more effective in controlling behavior.  Here is a sample:

As well as retroactively censoring speech, AI and big data will allow predictive control of potential dissenters. This will resemble Amazon or Google’s consumer targeting but will be much more effective, as authoritarian governments will be able to draw on data in ways that are not allowed in liberal democracies. Amazon and Google have access only to data from some accounts and devices; an AI designed for social control will draw data from the multiplicity of devices someone interacts with during their daily life. And even more important, authoritarian regimes will have no compunction about combining such data with information from tax returns, medical records, criminal records, sexual-health clinics, bank statements, genetic screenings, physical information (such as location, biometrics, and CCTV monitoring using facial recognition software), and information gleaned from family and friends. AI is as good as the data it has access to. Unfortunately, the quantity and quality of data available to governments on every citizen will prove excellent for training AI systems.

Even the mere existence of this kind of predictive control will help authoritarians. Self-censorship was perhaps the East German Stasi’s most important disciplinary mechanism. AI will make the tactic dramatically more effective. People will know that the omnipresent monitoring of their physical and digital activities will be used to predict undesired behavior, even actions they are merely contemplating. From a technical perspective, such predictions are no different from using AI health-care systems to predict diseases in seemingly healthy people before their symptoms show. 

Sadly,  China is already building such a digital authoritarian state, and countries such as Thailand, Vietnam, Sri Lanka, Ethiopia, Iran, Russia, Zambia and Zimbabwe are beginning to use chines surveillance technology. 

Read it all here.  What can be done?

Three Things You Should Know About NATO Before the NATO Summit

Later this week, NATO, our most important alliance, is having a summit.  In light of President Trump's disastrous behavior at the G-7 Summit--and the fact that Trump will be meeting with Putin right after the NATO Summit--there are growing concern in national security circles that Trump will use this as an opportunity to weaken the U.S. commitment to NATO.  The good news is that there are noises coming out of the White House and the department of Defense that all will be well.  We will see.

In the meantime, here are three things you should know before next week's summit.

1.  NATO Has Been a Tremendously Successful Alliance.  NATO is without doubt the most successful defense alliance in history.  It was created when a devastated and weak Western Europe was facing a strong Soviet Army.  The threat was real: the Soviet Union subverted a democratic government in Czechoslovakia, supported civil war in Greece, and supported emerging Communist political parties in France and Italy.  There was another problem as well--how to allow Germany reemerge as a normal nation without endangering the rest of Europe.

Looking back almost 70 years later, NATO can declare mission accomplished.  The Soviet Union collapsed of its own weight, and there has been no war among European nations in over 70 years.  This is the longest period of peace in European history.  This success resulted  virtually every former Warsaw Pact country now freed from tyranny seeking to join NATO.  They knew that collective security had worked for Western Europe, and they wanted assurance that their new independence would remain intact.

The people of Europe (both East and West) were obviously the beneficiaries of the peace and prosperity created the the stability created by this security alliance, but it also greatly benefited the United States.  The huge success of the U.S. economy after World War II is in large measure the result of increasing trade with the increasingly prosperous European economy.  In addition the peace meant that U.S. servicemembers did not need to fight and die in European conflicts. 

Moreover, our NATO allies came to our defense in the wake of September 11th attacks.  Indeed, the only time that NATO ever invoked the NATO Charter Article V collective defense agreement was to come to the aid of the United State after September 11th. The assistance was real--NATO AWACS aircraft with NATO crews helped secure U.S. airspace.  This assistance continued  NATO providing forces to the fight in Afghanistan.

2.  NATO Remains Vital to the U.S. National Security Interests Today.

NATO was created to deter a strong and assertive Soviet Union i the wake of World War II.  After the Cold War, many thought that NATO would become irrelevant, or at least would need to redefine its mission.  Indeed, in the early 1990's NATO began to change its focus from a deterrence mission to one focused on stability in Europe.  There was even talk of having Russia join NATO.

Alas, the old mission returns.  While Russia is not as powerful as the old Soviet Union, it remains a nuclear power with large military forces.  Moreover, in recent years it has been modernizing its military.  Even more disturbing, with Putin in power, it has become clear that Russia now has as a strategic aim the goal of "recapturing" the power in Europe that it lost when the Soviet Union collapsed.  So far, these efforts have been focused on the former Soviet states that are not in the European Union or NATO.  Russia has used military power in Georgia.  It used military power to seize Crimea from the Ukraine, and is providing military assistance to pro-Russian separatist in Eastern Ukraine.

While it has taken some hostile acts against NATO states--most notably an attack on Estonia's internet access-- so far it has declined to take aggressive action against NATO states.  But in light of its rhetoric about regaining what it lost, and its assertion of a right to protect Russian speaking peoples wherever they may live, many national security experts expect that Russia would take aggressive action (first against the Baltic States, but then elsewhere) should NATO be disbanded or the U.S. walk away from a firm commitment to collective defense.

Simply put, if we want a peaceful, stable, and democratic Europe, we need NATO.  As I argued in a previous post, any uncertainty about whether we will keep our commitment to defend NATO countries will increase the likelihood of war. 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.

One further point is also worth making about the value of NATO.  NATO is organized as a security alliance, but in effect it has resulted in much more.  The daily discussions about the military alliance and military cooperation have almost inevitably resulted in discussions about cooperation on other national security issues as well.  The result has been deep and lasting relationships of the member states on issues such as intelligence, terrorism, law enforcement and foreign affairs.  While we gripe whenever our European allies disagree with us on foreign policy issues, to a remarkable degree, these nations have acted with one voice on significant issues--sanctions on Iran and North Korea, support for Afghanistan, the fight against ISIS, transportation security, and protection of the Internet.  These countries share our values, and their cooperation has been vital

3.  Our NATO Allies Are Increasing Their Defense Spending.

As the Russian threat reemerged in recent years, both Republican and Democratic Administrations have told Europe that it was time for them to step up their own defense spending.  President Trump has rightly continued this insistence that our NATO allies step up their defense spending.  What needs to be recognized, however, is that most NATO countries are in fact stepping up their commitment and progress has been made.

In 2014, the NATO countries have pledged to work toward a goal of spending two percent of GDP on defense by 2024.  As you can imagine, a shift in national budgets from other priorities to defense is not something that nations can do overnight.  This is why the goal was stated as being met in a decade.  Instead, meeting this target will take several years if the defense spending is to really accomplish the goal of buying effective military capability.  The key factor therefore is to see if progress is being made.  It is.  After years of reductions in defense spending in Europe, defense spending is now increasing and at an accelerating rate.  this chart shows the annual real change in European and Canadian defense spending :

Second, while only three members of NATO spent 2% or more of GDP on defense in 2104, NATO now expects that eight nations will meet this target in 2018.  In 2014, only the U.S., U,K. and Greece met the 2% target.  In 2018, Estonia, Latvia, Lithuania, Poland and Romania will meet this target as well.  A majority of NATO members have firm plans in place to meet the 2% target by 2014.

Did you notice something about the list of countries meeting the target?  Almost all of countries with Russian borders are on the list of countries meeting the 2% goal.  These countries have the greatest need for NATO's collective defense.  The countries with the most at stake are the ones stepping up most quickly.  We ought not reward their efforts by reneging on our Treaty obligation for collective defense.

It is also worth pointing out  (as I did here) that these budget numbers don't really capture the value of our Allies' true contribution.  Some allies--such as Denmark--have low budget percentages, but quite effective and useful military capabilities that they have contributed to the fight. In addition, while we like to tout the fact that the U.S. spends 3.57% of its GDP on defense, not all of this defense spending is focused on Europe.  Indeed, only about a quarter of our defense spending is focused on European defense. 

At the end of the day, our NATO allies need to increase their own defense response to the new Russian threat.  But too much is at stake to risk weakening this vital and successful alliance.

Some Thoughts on the 4th of July

Independence Day, it seems to me, is a good day to step back from the controversies of the moment and reflect on the larger 242 year history of our nation.  There are some great op-eds that attempt to do so in today's newspapers,but I thought I would do my own bit as well.

What is perhaps most remarkable  about the United States is how short a time we have been in existence.  Two hundred forty two years may seem like a long time, but let's put this in perspective.  When my father died at 84, he had lived over one-third of the entire U.S. history.  One-third!  I am 59, which means that I have lived nearly one-forth of the entire history of the United States.  One-fourth!  What does this mean?  It means that each of us, over our lifetime, have an incredible opportunity to be a big part of our nation's history.

Of course, we celebrate the lives of Americans who made an unusually important impact on U.S. history.  While social, economic and technological trends help drive history, there can be little doubt that individuals make a difference as well--for good and for ill.  Think of how different American would have been had Lincoln not had the steely resolve to reunite the Union  Think as well how history might have been different if Lincoln's successor, President AndrewJohnson,  had not been a racist Southerner, but instead a leader who would have put his heart and soul into a true Reconstruction focused on equal rights for the newly freed slaves.

You don't need to one of the celebrated heroes (or villains!) to make a difference in our Nation's history.  I have a family tree that has its notables--Benjamin Franklin and Nathaniel Hawthorne among them--but they were only distant cousins.  My direct ancestors were quite ordinary people--farmers, seamen, laborers and oil workers--who over the course of several generations moved west to find opportunity.  But even these quite ordinary people made a difference.  My early Nantucket ancestors helped create the whaling industry (and one of the family names--Starbuck--even appears as a character in Moby Dick).  My Quaker ancestors left North Carolina because of slavery and were occasional helpers on the Underground Railroad in Indiana. 

My grandfather was a beloved high school coach.  Almost all of my ancestors lived in small towns and their mark can still be seen today in the civil institutions that they help create--churches, banks, libraries and schools.  And my family's story is likely that of yours as well.  Seemingly ordinary people, doing ordinary things, but nonetheless making a difference in the community--and country--in which they lived.

The fact is that the history of our nation is not just about its leaders, but many other Americans who played a vital role as well.  The success of the labor movement is as much the result of  the fortitude and determination of its ordinary workers than the wisdom of its leaders--perhaps more so.  And the Civil Rights Movement was only successful because of the steely resolve, courage and determination of tens of thousands of African-Americans who took on the blows, dogs and water cannons.  Indeed,  name any of today's great movements and the same is true as well--whether it be the current Resistance to Trump, the Tea Party, LGBT rights activists or  Pro-Life and Pro-Choice advocates.

There have been 56 Presidential elections in the United States.  My father voted in 17, and I have voted in 10 .  Even in this seemingly small way, we both helped determine the arc of our history.  We live in a nation that offers the ability to make a difference in even an ordinary life.  This can mean politics, but it can also mean much more--the arts, civic life and business.  We all have the opportunity to have a life with meaning and we ought to seize that opportunity.  That is what we ought  to remember on the 4th of July.

A Broader Look at Refugee and Asylum

In the late 1980's there was a flood of refugees from Central America--largely fleeing civil war in Nicaragua and El Salvador.  As is true today, there was lots of controversy about how to respond. As a border state, Arizona was at the center of this controversy, and it was the home of the Sanctuary Movement, a church-based effort to help these refugees.  I was a young lawyer in Arizona at the time, and my pastor asked me to take on two asylum cases for recent immigrants from El Salvador in deportation proceedings.

Thus began some of the most fulfilling legal cases in my career.  I represented a conservative Nicaraguan family fleeing persecution from the leftist government.  I represented an El Salvadoran family from a small rural community terrorized by right wing death squads.  I represented a Jehovah's Witness adherent  fleeing persecution in Cuba.

Perhaps my most memorable client was an El Salvadoran who was the leader of a "Base Community"--an intentional Christian community of peasants.  His work led to death threats from a local death squad.  What was most memorable about his case was not our efforts to get asylum--as these matters go, it was an easy case.  Instead, what was most memorable was a visit to my law firm six years later by his son, who came by the office to show me his brand-new degree in engineering from ASU.

In each of these cases, my clients came across the border illegally.  They really had no other option--you can only seek asylum in the United States, and at the time the Reagan Administration refused to allow Central Americans to come in the refuge program.  In each case, the trip to the U.S. was harrowing and dangerous.  My clients risked the dangers of travel to the US only because harm seemed certain if they stayed in El Salvador or Nicaragua.

I thought of these clients over the last few weeks as Central American asylum seekers are once again in the news.  Sadly, much of the rhetoric we are hearing from the Trump Administration and supporters of its harsh border policies displays either a fundamental misunderstanding of what asylum is all about--or a frontal attack on the very concept that we ought to take in refugees.  My aim here is to explain what asylum is all about, and also make the case that taking in refugees is very much in our national interest.

First, I have heard lots of rhetoric that these asylum seekers are to be blamed because they aren't "doing it the right way."  The simple answer is that there is no "other way."  You can't seek asylum in El Salvador, and if you have a death threat, waiting several months even for a tourist visa or entry as a refugee to the US is really not an option if the threat is imminent.  It is for this reason that both international law (in a Senate-ratified treaty known as the Convention and Protocol Relating to the Status of Refugees) and U.S. immigration law expressly state that asylum is available even if asylum seekers do not present themselves at a port of entry.  They can do so at ports of entry, but they need not do so.  U.S. law is very clear that even individuals who enter the U.S. without going through ports of entry are eligible to apply for asylum.  The Convention (which, as a Treaty, has the same legal effect as a statute) goes even further.  It provides that no nation can  impose any penalty on refugees "on account of their illegal entry or presence . . . without authorization" as long as the refugee present themselves without delay to the authorities.  It is for this reason that previous Administrations never criminally prosecuted asylum seekers.  It is inconsistent with our obligations under international law to punish refugees.

Second, in several tweets, President Trump has argued that we should get rid of immigration courts and judges and simply deport all who are caught at the border without any hearing or process.  He may not care that this would violate our international obligations, but since he took an oath to defend the Constitution, he ought to care that this violates the U.S. Constitution, which requires due process not merely to citizens, but all persons.

Make no mistake, an asylum  claim is hard to prove--particularly for a non-English speaking El Salvadoran without legal assistance.  Still, about 20% of Central Americans making asylum claims are able to meet this burden.  (And as the linked chart shows, the difference between the success rate of those without lawyers versus those with lawyers is stark).  If President Trump got his way (and the courts allowed him to violate the Constitution), this would mean that thousands of Central Americans who can prove that they face imprisonment or death will be deported without any right to prove their case.

Behind all of this, of course, is something deeper: an apparent belief by many that we should end our asylum policy.  For some, this may simply come from a lack of understanding of the conditions that cause so many to leave their homes to flee to the U.S.  For others, there seems to be a belief that the burden of accepting  Central American refugees is simply more than our country can bear.

I would suggest that the answer to those who think the burden is too high is best found in our history.  It is instructive to ask ourselves:  When we review our nation's history of treatment of refugees, what do we regret--when we shut the door to refugees or when we left them open?  Of course, the answer is obvious.  To our eternal shame, we had the chance to save thousands of Jews from the Nazis, but did not.

On the other hand, our openness to refugees after World War II is both a source of pride, and evidence that refugees can greatly benefit the United States.  The Cuban-American community that resulted from our acceptance of Cuban refugees after Castro took power in 1959 has been tremendously successful.  The same is true of the 1.6 million refugees from Vietnam that came to the United States after the fall of Saigon.   We forget that at the time polling showed very large majorities of Americans opposed the high number of Vietnamese refugees.  Yet, in a relatively short time, the Vietnamese community became quite successful.

The standard for asylum is not an easy one to meet.  It is only available if the person has a well-founded fear of persecution based on past persecution or risk of persecution in the future because of race, religion, nationality, membership in a particular social group or political opinion.  Economic hardship (unless directed as a form of persecution) is not enough.  The fact that you are fleeing violence in a war zone is not even enough unless you can show that the violence is likely to be directed at you.  There must instead be a reasonable fear of persecution linked to the list of specific causes.

Perhaps it should be no surprise that those who can meet this standard do well in America.  These are people who stand up for themselves and their families.  We ought to continue to welcome them to America.