Talking About Torture

By Isaac Kfir

Review of Talking About Torture: How Political Discourse Shapes the Debate by Jared Del Rosso (Columbia University Press, 2015).

(Re-published from Human Rights Law Review, 2016) September 11 initiated a distinct narrative: American exceptionalism is under threat, the world is inhabited by fanatics, who without any real justification have decided to launch a war to destroy Western civilization and the American way of life. Key to this narrative is the claim that the Western world, particularly the United States of America (US), is at enormous disadvantage as we live in a society of rules that mean that we fight wars with one hand tied behind our backs. Del Rosso’s book Talking about Torture engages with this narrative. The book is provocative, meticulous in its research and fascinating, underlining how Americans—or at least the political class—came to justify the use of torture, by adopting a menacing narrative of the ticking bomb, existential threats that rationalize the use of extreme, illegal measures in the name of ‘saving the nation’.

“What also appears in Del Rosso’s close study of the various Senate hearings is a willingness by senior military officials, such as General Keith Alexander, the Army’s Deputy Chief of Staff for intelligence, and General Ronald Burgess, the director of intelligence for the Joint Chiefs of Staff, to raise questions as to the validity of an International Committee of the Red Cross report on the abuses.”

The first chapter of Talking About Torture lays the framework for the book. It offers a socio-cultural discussion of the meaning of the word ‘torture’ underlining the illiberal associations that the word raises, which is why it ceased to be used. And yet, states continue with the practice, albeit in secret or by denying that they are using it. In Chapters 2 through to 6, Del Rosso presents analysis of congressional discourse on torture, which is done chronologically. In pursuing this, Del Rosso draws attention to the dynamic contextual factors that influenced the debate as to the use of torture.

In Chapter 2, Del Rosso engages in a fascinating deconstruction about the way Congress responded to abuses of detainees at the Metropolitan Detention Facility (MDF) in Brooklyn, New York, contrasting it with the release of the Abu Ghraib photos. The FBI, which was investigating the 9/11 attacks, arrested over 750 detainees on alleged violation of immigration laws. These individuals were placed at the MDF. In this chapter, Del Rosso shows that in the MDF case, members of Congress simply refused to accept the information, as initially it was verbally provided and verbally denied by the accused perpetrators. Notably, a hearing of the Senate Judiciary Committee on the alleged violations at the MDF, which were highlighted in an Inspector General Report, saw only seven of the 19 Committee members attending the hearing, with only Senators Hatch and Feingold in attendance to question both of the Committee’s two panels of witnesses. There was also a willingness by the Committee and other officials to portray the abuse, if there was any, as a reaction to the 9/11 attacks and the need to forestall another possible attack.

Sadly, Del Rosso does not really address how Congress responded to two Office of the Inspector General Reports that catalogued the abuses and the way detainees were treated at the MDF. This is mainly because Del Rosso is more interested in the Abu Ghraib case. In that case, the evidence was presented as photographic evidence, which arguably undermined the ability of some to challenge the veracity of the claims. In responding to the evidence, the narrative was shaped in such a way that the abuses were presented in the context of the Iraq War, with Congress calling for action so as not to undermine the war effort of winning the hearts and minds of Iraqis. The chapter highlights the importance of images when it comes to the discourse on torture. In the MDF case, there were no images, whereas the Abu Ghraib scandal began with a CBS News report ‘Exposing the Truth of Abu Ghraib’, which may explain why the Senate Judiciary Committee opened a hearing as to what had taken place, and the witnesses included Secretary of Defense Rumsfeld and Chairman of the Joint Chiefs of Staff, Richard Myers (at the MDF hearing there were no high-profile witnesses from the Justice Department or the FBI).

The two succeeding chapters review and assess how Congress and the US military approached the Abu Ghraib scandal. Interestingly, the chapters underline how the Abu Ghraib scandal led to the realization that abuses were pervasive in Iraq and not limited to one detention facility. Yet the answer to the widespread violations was not to see them as systemic, but rather as accidental or small mainly in reference to arrests, allowing for a dichotomous official line that Abu Ghraib was an anomaly, a product of local conditions (the war), confusion as to what was permissible and, most importantly, the pathological behaviour of a few soldiers (though not of senior commanders or policymakers). This narrative appears in Del Rosso’s account of General John Abizaid, commander of the US Central Command, as Abizaid rationalized the activities of the soldiers by saying that the soldiers are fighting for their lives and that war is brutal and bloody. In other words, even though abuses were pervasive, they were still anomalies. What also appears in Del Rosso’s close study of the various Senate hearings is a willingness by senior military officials, such as General Keith Alexander, the Army’s Deputy Chief of Staff for intelligence, and General Ronald Burgess, the director of intelligence for the Joint Chiefs of Staff, to raise questions as to the validity of an International Committee of the Red Cross report on the abuses. That is, not to dispute the abuses, but the extent of them …

To read the complete review, click here.

International law expert Isaac Kfir is an INSCT Research and Practice Associate.

Seek Justice for Us: An Interview with David Crane

By David Newstead

(Re-Published from The Philosophy of Shaving, July 11, 2016) David Crane is a law professor at Syracuse University and the former Chief Prosecutor of the Special Court for Sierra Leone. As Chief Prosecutor, he indicted then Liberian President Charles Taylor, leading to Taylor’s conviction for war crimes and crimes against humanity. Today, David Crane joins me to discuss impunity in Africa, his investigation into Syrian war crimes, and the need for expanded human rights laws in the United States.

“Impunity has raised its head in a very negative way. When we indicted Charles Taylor back in June of 2003, it was a beginning. I thought a very hopeful beginning against the good old boys club of Africa. We had broken down that barrier and heads of state in Africa would be held accountable.”

David Newstead: Considering that you helped to prosecute Liberian President Charles Taylor and that Chad’s former dictator Hissène Habré was recently convicted for human rights abuses, do you feel like particularly in Africa’s case that impunity has ended for heads of state and elected officials?

David Crane: Oh, not at all. Unfortunately, impunity has raised its head in a very negative way. When we indicted Charles Taylor back in June of 2003, it was a beginning. I thought a very hopeful beginning against the good old boys club of Africa. We had broken down that barrier and heads of state in Africa would be held accountable.

But because of some missteps by the International Criminal Court (ICC) and the withdrawal of the African Union as a participant largely in the ICC for a lot of reasons. And the recent declaration a year ago by African heads of state saying they will not be held accountable for whatever they do in office, I thought we took about a 30 year step backwards.

The Habré investigation and trial were on-going. So even though it appears that we have some positive steps, in reality I just have to tell you I’m not confident where this is going. And I’m a little bit disappointed in the attitudes politically of African leaders related to dealing with their own people. It’s not a good step forward frankly. Even though the Habré conviction is important, there are other political leaders in Africa that need to be held accountable. And I fear that they will not, particularly with the political climate against international justice at this point.

David Newstead: You’ve also been working on possible war crimes prosecutions related to the Syrian conflict, is that correct?

David Crane: Yes. I’ve been working on this from the very beginning since March 2011. Over five years.

David Newstead: Would that mainly focus on prosecuting Syrian President Bashar al-Assad? Or other actors in the conflict as well?

David Crane: The Syrian Accountability Project, which we put together to deal with this back in March of 2011, is looking at all parties neutrally. So, we’re looking at all sides, all players. Which has gone from just the Free Syrian Army versus Assad to about eleven significant players who are just chewing the people of Syria apart. So, we want to make sure this is considered and known as a neutral effort to seek justice for the people of Syria. It’s not about going after just Assad, but everyone. Because everyone is going after the people of Syria.

David Newstead: So, not only Assad, but also ISIS and Al-Nusra Front and other factions?

David Crane: Oh yeah. All of the factions. To include the Free Syrian Army. Everybody.

David Newstead: In 2014, you were involved in the release of some 55,000 photographs of human rights abuses in Syria.

David Crane: Yes, I was the co-author of the Caesar Report detailing those abuses.

David Newstead: Can you say more about the evidence that your group has been collecting since then and what that consists of?

David Crane: That’s a good question. A fair question. Again based on my long term experience in this business particularly taking down one of the few heads of state in history, I’ve basically built a practical legal way of doing that. Using the same techniques that we used in West Africa, we’re doing the same thing in Syria and in the Levant region. And that is developing a conflict map, a crime-based matrix, and associated documents, which we can then build into indictments.

We’re very careful in the data that we use in our crime-based matrix, which shows chronologically time, location, unit involved, and then the alleged crime itself. And then also what we do is we list the violation of the Rome Statute, the violation of international humanitarian law as well as the violation of the Syrian criminal code. So, this could be used by either a local prosecutor, a regional prosecutor, or an international prosecutor, referring to this package that we’ve been putting together over the past five and a half years. So, they could use this to start building their own case against those who they feel have committed either Syrian crimes or international crimes.

The data is carefully vetted. We have contacts throughout the world (to include the Middle East, to include in Syria) providing us real-time, real-world criminal information that we then take and verify. Our rule is that it has to be verified as has happened. We have a rumor of an incident and then we have to verify it by two other sources before we put it on the crime-based matrix. But the fascinating thing is that crime-based matrix is now over 7,000 pages. And it’s on an Excel spreadsheet.

David Newstead: You have a 7,000 page Excel spreadsheet?!

David Crane: Yeah, 25 incidents per page. Now again, this is just verifiable incidents of possible international crimes. You have to understand that when I was doing this just twelve years ago, we had to create our case the old-fashion way. You know, getting out there and finding the evidence. Now, it’s completely reversed. All of the data that’s coming out of Syria and it’s in terabytes almost daily, it’s a tsunami of information. And what ends up happening is that you’re looking for that needle in the haystack as opposed to no haystacks.

And I think this is important for you and your readers to understand that 99.99% of the information coming out of Syria in whatever capacity it is – through social media, internet, direct testimony, whatever – is not useful in court. We can’t turn it into evidence, because of the authenticity of it, the chain of custody, and all of that. So, we have a great database for the history of the events and that’s important. The data can be used for other things.

But as a former international chief prosecutor, I’ve got to prove a case beyond a reasonable doubt using rules of evidence before a court. And that data creates leads. But at the end of the day, if they called me right now and said “You’re now the Chief Prosecutor for Syria!” all of this would be useful to me. We’ve converted that into useful information. That’s how the Syrian Accountability Project takes it one step further. We’ve converted this information into criminal information, which then can be converted into evidence by a future prosecutor. So, we’ve kind of strained it a bit if you get my drift. You know, we’re moving it to where a future prosecutor be they local, regional, or international can go into court and prove the case beyond a reasonable doubt. So, that’s the data issue …

To read the complete blog article, click here.

The Military at Home

By Kevin Cieply

(Re-Published from Lawfare, July 20, 2016) 

A review of William C. Banks and Stephen Dycus’s Soldiers on the Home Front: The Domestic Role of the American Military (Harvard, 2016). 

Soldiers on the Home Front explores the potential threat the military poses to our civil liberties and rule of law when the military operates in our homeland. The authors expressly recognize and honor our military members for their service in securing and safeguarding our nation throughout its history and today.  With numerous historical examples, the authors readily acknowledge that throughout history the military has typically respected their proper role and stayed out of the country’s civil affairs.  And when the military has stepped in, it has almost always performed its unique role with distinction.  But occasionally the military has intruded when not needed, almost always at the behest of overeager, even reckless, civilian leaders.  When this has occurred it has invariably involved a significant loss of liberty for our society.  The authors quote Antonio in Shakespeare’s Merchant of Venice to capture the contemporary relevance of their book: “what’s past is prologue.”

“The authors efficiently demonstrate our country’s initial attempts to strike a proper balance of power that would enable the executive to effectively use the military, but with constraints.”

The book begins, after a brief introduction, with the Redcoats marching “bayonets fixed—into the City of Boston.” After setting the initial scene of the Boston Massacre, the book quickly turns even further back in time, to our English origins, to lay the foundations of our nation’s most treasured and basic concepts, such as the due process as opposed to martial law, the principal of necessity, the use and limitations of a militia, the necessity and yet wariness of establishing a standing army, the need to subordinate the military to civilian rule, as well as the struggle of power between the legislative and executive branches over control of and proper use of our military. 

The chapter covering our nation’s origins provides an effective primer on how the colonists settled America and the framers crafted our Constitution.  The authors efficiently demonstrate our country’s initial attempts to strike a proper balance of power that would enable the executive to effectively use the military, but with constraints.  The chapter takes the reader through the sequence of events that fueled the rebellion, gave birth to our nation, and framed our Constitution.  It ends by explaining the framers’ intent as to the role of the standing federal army, state militias, and the overall division of authority between the federal and state governments.  From the Magna Carta through the Boston Massacre to the Philadelphia Convention, the chapter is quick and engaging.  By the end, the reader has a refreshed and deepened sense of the core concepts of a representative democracy, security for our country, and individual liberty for our citizens, which form the analytical framework the authors use throughout the book. 

The book is then divided into chapters explaining how our nation, throughout its history, has used the military as peacekeepers, cops, jailors, judges, investigators—even as rulers.    The chapter titles alone, and certainly taken together, stir concern.  Inside each chapter lies historical accounts of the most significant and relevant instances of our military being used to control our civil affairs.  The chapters are packed with examples.  Some examples were clearly appropriate uses of military force, others obviously not.  But it is the concentration of the examples, coupled with an analysis as to how those examples fare under our laws, that makes the book so valuable. 

The most extensive and legitimate use of our military in civil affairs, as demonstrated in Chapter 3, has been as Peacekeepers and Cops, categories that include the provision of disaster relief.  Chapter 3 begins by fixing the general boundaries envisioned by the Framers—that the government would, at times, use the military to keep the peace and police civil society—but using the military in this fashion was to be reserved for extraordinary times, when the rule of law or the government as a whole was threatened.  Yet, whether for political compromise, or intentionally building in flexibility for an unpredictable future, or both, the Framers did not provide comprehensive and unambiguous language about the military’s proper role domestically in the Constitution.  Indeed, the authors describe the Framers language as “blurred” and “cryptic.” 

Chapter 3 explains how the Second Congress attempted to flesh-out some of that cryptic language.  Invoking its explicit power under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” Congress passed the Calling Forth Act of 1792.  It explicitly delegated to the President the power to actually call-up the Militia into federal service in times of Invasion, threat of Invasion, by foreign powers or Indian Tribes, and in times of Insurrection.  The Calling Forth Act, also known as the 1792 Militia Act, was a broad and relatively unrestrained delegation of power to the President to respond to invasions and insurrections.  On a much more limited basis, the Second Congress also delegated to the President the authority to call up the militia to “execute the Laws of the Union.” 

President Washington used this newly gained authority in response to the Whiskey Rebellion in 1794.  As required under the Calling Forth Act, Washington obtained certification from the judiciary that there was a rebellious force too powerful for ordinary judicial proceedings to handle and that those forces were obstructing federal laws.  He also, as required, issued an order for the insurgents to disperse and cease their unlawful acts of preventing the federal government from enforcing an excise tax on liquors and stills.  When his order was not heeded, Washington called up over 10,000 militiamen from four states, employing them to crush the movement in Western Pennsylvania. 

The authors point out that the unrest was “hardly” a rebellion or insurrection, and that the Pennsylvania Governor, at the time, described the law-breakers as no more than “rioters.”  They conclude that the Whiskey Rebellion was a “problematic precedent” …

To read the complete review, click here.

Deterring Financially Motivated Cybercrime

By Zachary K. Goldman & Damon McCoy

(Re-published from the Journal of National Security Law & Policy, 8:3) Deterrence is one of the most venerable concepts in the national security lexicon. It refers to the process of manipulating an adversary’s cost/benefit calculations to prevent him from doing something you do not want him to do. The concept is as old as warfare itself, reaching its apotheosis during the Cold War, when it was the central principle governing the security relationship between the United States and the Soviet Union.

But despite the pedigree of deterrence as a theory and a strategy, the community of scholars and practitioners focused on cybersecurity and cybercrime has struggled to adapt it to the burgeoning world of cyber threats. Admiral Michael Rogers, Director of the NSA, has said that the “fundamental concepts of deterrence” in cyberspace are “immature.”[i]

“Because deterrence of financially motivated cybercrime involves manipulating the financial costs and benefits of an attack, it will rely on different tools than the deterrence of attacks against military targets or critical infrastructure.”

Senator John McCain has decried the “failure to develop a meaningful cyber deterrence strategy.”[ii] And some of the most prominent cybersecurity practitioners have noted that “deterrence is an undeveloped theoretical space in cyber war today.”[iii]

The cyber deterrence discussion has foundered thus far in part because of challenges that are unique to cyber space. This includes problems publicly attributing cyberattacks with confidence, the difficulty that inheres in determining whether a technological system has failed because of attack or for other reasons,[iv] and the unwillingness of states to discuss publicly capabilities that they treat as highly classified.

But part of the problem is also conceptual, derived from the fact that cyberattacks are motivated by an array of factors—cyber espionage is motivated by different interests than attacks on critical infrastructure–and involve a range of actors with varying degrees of linkage to states. Deterrence strategies therefore must be tailored for each set of motivations and each set of actors, a task that has proven to be a significant challenge.

Within the spectrum of motivations for the infliction of cyber harms, this article addresses financially motivated cyberattacks because they constitute a substantial portion of cyberattacks,[v] and represent a significant drag on economic activity.[vi]  Deterring them will require different strategies than those used to deter other forms of cyber threat like attacks on critical infrastructure or cyberattacks in the context of armed conflicts.[vii]

We use the term “financially motivated cyberattacks” in this paper to refer to attacks that use malicious cyber capabilities to generate a profit; like other businesses, this activity is sensitive to costs. Financially motivated cyberattacks often seek data—credit card data, health records, or other personally identifiable information—that can be monetized quickly.

Financially motivated cyber criminals also seek valuable intellectual property, trade secrets, or material non-public information about companies that can provide strategic or competitive advantage.[viii]  Financially motivated cybercrime also includes the sale of counterfeit or fraudulent goods perpetrated through digital intrusions—the kinds of spam messages that clog our email inboxes each day. In targeting digital information, financially motivated cyber criminals are participants in a (black) marketplace for data or goods that is “growing in size and complexity” and which has “emerged as a playground of financially driven, highly organized, and sophisticated groups.”[ix]

Deterring financially motivated cybercrime requires a defender to raise the cost in time or resources of pursuing a particular target. Defenders can also deter attacks by lowering the anticipated benefits that an attacker will receive through a particular act of cyber theft. In the context of the strategies discussed in this paper, cyberattacks can be deterred by making it harder for criminals to monetize the goods they have counterfeited or data they have stolen.

Because deterrence of financially motivated cybercrime involves manipulating the financial costs and benefits of an attack, it will rely on different tools than the deterrence of attacks against military targets or critical infrastructure.[x] Instead of punishing retaliation against the means and instrumentalities of the attack, financial sanctions and other measures taken by the private sector can raise the cost of commercially motivated theft.

This article [presents] a strategy for deterring financially motivated cybercrime that leverages the US government’s financial sanctions program targeting “Significant Malicious Cyber-Enabled Activities,”[xi] as well as private sector efforts to mitigate cybercrime. Public/private collaborations … are an important part of a deterrence strategy designed to deprive cyber thieves of the expected value of criminal behavior. These partnerships have done important work to use intellectual property law and other legal regimes to play “offense against cybercriminals … taking legal action to clean up malware and help ensure customers stay safer online.”[xii] This article also discusses techniques that credit card companies are using to make it more difficult to profit from cybercrime.

While this article focuses on deterring financially motivated cybercrime, it also seeks to establish the larger point that one cannot speak generically about “cyber deterrence.” Rather, different kinds of malicious cyber activity demand different, tailored deterrence strategies. This is because each category of cyber threat has a different motivation, and therefore will be sensitive to a different type of cost. Broadly, one can distinguish between cyber war, cyber activism (“hacktivism”), cyber espionage, cyber terrorism, cyberattacks against critical infrastructure, and financially motivated cyber theft.[xiii]

Financially motivated cyber theft does not generally pose a risk of acute catastrophe—the “Cyber Pearl Harbor” that then-Defense Secretary Leon Panetta described in 2012.[xiv] Rather, senior government officials are beginning to describe the main cybercrime threat as an “ongoing series of low-to-moderate level cyberattacks from a variety of sources over time, which will impose cumulative costs on US economic competitiveness and national security.”[xv]

While these might prove catastrophic to a particular victim company at a particular moment, the strategy for deterring them similarly lies in a distributed approach to raising the costs of attack, and targeting what cyber thieves care about most: their wallets …

To read the complete article, click here.

[i] Admiral Michael S. Rogers (USN), Director, National Security Agency, and Commander, U.S. Cyber Command, Remarks at the New America Foundation Conference on Cybersecurity (Feb. 23, 2015).

[ii] Hearing to Receive Testimony on US Strategic Command, U.S. Transportation Command, and US Cyber Command In Review of the Defense Authorization Request for Fiscal Year 2016 and the Future Years Defense Program: Hearing Before the S. Armed Services Comm., 114th Cong. (2015) (Statement of Sen. John McCain, Chairman).

[iii] RICHARD A. CLARKE & ROBERT K. KNAKE, CYBER WAR:  THE NEXT THREAT TO NATIONAL SECURITY AND WHAT TO DO ABOUT IT 189 (2010)Transportation Command, and USS.elease  paper onial Courtroom in Dineen Hall, April 2016.


[v] VERIZON ENTERPRISE SOLUTIONS, 2014 DATA BREACH INVESTIGATIONS REPORT 9 (2014) [hereinafter 2014 VERIZON DATA BREACH REPORT] (noting that approximately 60% of data breaches are financially motivated).

[vi] Estimates about the cost of cybercrime to the economy vary widely and measuring the cost of breaches with any precision is difficult. Ellen Nakashima & Andrea Peterson, Report: Cybercrime and espionage costs $445 billion annually, WASH. POST (June 9, 2014),; Paul Taylor, Cybercrime costs US $100bn a year, report says, FIN. TIMES (July 23, 2013), See Ross Anderson et al., Measuring the Cost of Cybercrime (2012) (paper for the Workshop on the Economics of Information Security),

[vii] Indeed, some argue that cyber war has not—and will not—take place. See, e.g., THOMAS RID, CYBER WAR WILL NOT TAKE PLACE (2013).  Rid, a noted theorist of military strategy, argues instead that much of what we consider acts of cyber war are in fact better understood as one or a combination of espionage, sabotage, or subversion.  Rid argues that cyberattacks largely do not amount to acts of war “because the use of force in war is violent, instrumental, and political.”  Id. at 4. Cyberattacks have, however, been used in the context of armed hostilities. See CLARKE AND KNAKE, supra note 3, at 5-8 (describing reported Israeli cyber operations to blind Syria’s air defense systems before striking a nuclear facility there in September 2007).  Russia also accompanied its 2008 attack on Georgia with crippling cyberattacks against the country. Id. at 18-21.

[viii] Press Release, Federal Bureau of Investigation, Nine People Charged in Largest Known Computer Hacking and Securities Fraud Scheme: More than 150,000 Press Releases Stolen from Three Major Newswire Companies, Used to Generate Approximately $30 Million in Illegal Trading Profits (Aug. 11, 2015),


[x] LIBICKI, CYBERDETERRENCE AND CYBERWAR, supra note 4, at 91-116 (for a discussion of the importance of retaliation in the deterrence of cyber threats against military or infrastructure targets).

[xi] Exec. Order No. 13694, 31 C.F.R. 578 (Apr. 2Transportation Command, and USS.elease  paper onial Courtroom in Dineen Hall, April 2016.

[xii] Richard Domingues Boscovich, Microsoft Takes on Global Cybercrime Epidemic in Tenth Malware Disruption, THE OFFICIAL MICROSOFT BLOG (June 30, 2014), Command, and USS.elease  paper onial Courtroom in Dineen Hall, April 2016.

[xiii] Catherine A. Theohary & John W. Rollins, Cong. Research Serv., R43955, Cyberwarfare and Cyberterrorism:  In Brief, (2015).

[xiv] Leon Panetta, U.S. Secretary of Defense, Keynote Address to the Business Executives for National Security: “Defending the Nation from Cyber Attack” (Oct. 11, 2012). We leave aside questions about what might happen if a financially motivated cyberattack produces unintended consequences because of digital interdependencies that are poorly understood by attackers.

[xv] Susan Landau, What We Must Do About Cyber, LAWFARE BLOG (Mar. 10, 2015),

Are Hamas Rockets Terrorism? Hollywood Weighs in

By Lauren Mellinger (JD/MAIR ’10)

(Re-Published from Strife, June 30, 2016) On June 20, 2016, NBC Universal (Universal Cable Productions) filed a lawsuit in a California federal court against its insurer, Atlantic Specialty Insurance Company. At first glance the case appears to be a typical dispute over a contract—a Hollywood production company is suing its insurer for failure to pay the expenses incurred due to last minute decisions made by the production company in response to the last round of fighting between Hamas and Israel during the summer of 2014. Yet, at the centre of the case lies the question: Whether Hamas’s rocket attacks during that conflict should be classified as a war between sovereign nations, or as the militant acts of a terrorist group.

“The fact that Atlantic can even ask the court to entertain its argument is due to what has amounted over the past decade, if not longer, to an ‘accepted ambiguity’ in international law and policymaking regarding Hamas.”

Summer 2014: A Brief Overview of Operation Protective Edge

On June 12, 2014, three Israeli teenagers were kidnapped and murdered in the West Bank. Hamas would later claim responsibility for the attack but in the ensuing weeks, Israel cracked down on Hamas operatives in the West Bank, and Hamas in Gaza responded with a barrage of rocket fire. On July 7, over 85 Hamas rockets were fired from the Gaza Strip into Israel, for which Hamas claimed responsibility. The next day, the Israel Defense Forces launched Operation Protective Edge. Neither Israel nor Hamas wanted the conflict to escalate – becoming the third in a series of rounds in a war of attrition that has existed between the two sides since Hamas took control of Gaza in June 2007. The operation lasted seven weeks, ending in a cease-fire on August 26.

Now for the obvious question – Why is the operation suddenly being featured in The Hollywood Reporter?

Enter Hollywood

In the summer of 2015, USA network aired the miniseries Dig, the television show at the centre of this lawsuit. When production began the previous summer, the plan was for the mystery-conspiracy-thriller which is set in Jerusalem to film on location in Israel – the location shoot being integral to the creative process. Indeed at a panel at that summer’s annual Comic-Con, Dig’s creators boasted that “[s]hooting there [in Jerusalem] is paramount to the story in capturing the vividness and emphasizing the characters of the show.”

But when the violence broke out that June, only the pilot episode had been filmed. Following a week-long unplanned hiatus (an expensive undertaking for a production company, especially on an overseas location shoot), Universal opted to relocate filming to New Mexico and Croatia for the duration of production for that season. Due to the unanticipated relocation, Universal incurred $6.9 million in unforeseen costs. When Universal submitted a claim to its insurer, Atlantic, for reimbursement, the company denied the claim.

So far – a typical contractual dispute. But now for the added twist:

According to Universal Cable Productions, of which USA Network is a subsidiary, after the violence broke out, the U.S. State Department attributed the rocket attacks to Hamas. At that point, Universal argues, it submitted a claim to Atlantic, which then denied coverage.

In their complaint, Universal maintains that Atlantic’s rationale for failing to reimburse the production company contravenes the official policy of the U.S. government, which to date has not recognised Hamas as a sovereign government. Indeed according to the documents filed with the court, Universal argues that:

“[t]he United States government has officially designated Hamas as a terrorist organisation. Nevertheless, Atlantic has ignored the United States government position and applicable law. It claims Hamas is a sovereign or quasi-sovereign government over the Gaza Strip (even though Atlantic admits the Gaza Strip is not a recognized sovereign nation), in a self-serving attempt to invoke the war exclusion and avoid its coverage obligations.”

Atlantic maintains that the company denied Universal’s claim on the grounds that, per the terms of the contract, coverage is excluded for war or warlike actions. According to documents filed with the court, Atlantic stated that the company informed Universal in a letter dated July 28, 2014 that at the time “the terrorism coverage should not apply” to the events of July 2014, as Hamas’s actions did not target either the United States or its policies, and that “the U.S. Secretary of the Treasury has not certified the [Hamas/Israel] events as acts of terrorism.”

Barring any issue of justiciability per U.S. law, should the case proceed, the California federal court will be forced to confront an issue that has seemingly confounded policymakers and international jurists since January 2006: How to define Hamas.

The Challenge of Defining Hamas

While it is too early in the proceedings to state with certainty, the likelihood is that Atlantic is not taking a stand on political grounds. Rather, it is more likely that they saw the amount incurred by Universal when production was moved at the eleventh hour, and looked for a loophole that would allow them to avoid payment. The fact that Atlantic can even ask the court to entertain its argument is due to what has amounted over the past decade, if not longer, to an “accepted ambiguity” in international law and policymaking regarding Hamas …

To read the complete blog, click here.

INSCT alumna Lauren Mellinger (JD/MAIR ’10) is a doctoral candidate in War Studies at King’s College, London, and a senior editor of Strife’s blog and journal. Her research specializes in Israeli counterterrorism and foreign policy and the Israeli-Palestinian conflict. You can follow her on Twitter @Lauren_M04.

Future Missions Through the Lens of the US Army Operating Concept

By Octavian Manea

(Re-published from Small Wars Journal | May 29, 2016) A “future missions” discussion with Lieutenant General H. R. McMaster, Director, Army Capabilities Integration Center and Deputy Commanding General, Futures, US Army Training and Doctrine Command. McMaster served previously as Commanding General, Maneuver Center of Excellence and Fort Benning from June 2012 to July 2014. From 2010 to 2012, he commanded Combined Joint Inter-Agency Task Force Shafafiyat (Transparency) in Kabul, Afghanistan. He was commissioned as an officer in the United States Army upon graduation from the United States Military Academy in 1984. He holds a Ph.D. in military history from the University of North Carolina at Chapel Hill. He is the author of Dereliction of Duty: Johnson, McNamara, the Joint Chiefs of Staff, and the Lies that Led to Vietnam.

SWJ: We’ve seen recently the major strategic challenges (mainly high-end adversaries) driving the DoD 2017 budget. From the perspective of the US Army Operating Concept what are the most relevant trends we need to keep in mind that are most likely to contribute to shaping and changing the character of armed conflict?

HRM: As we try to understand the problem of future armed conflict, we consider four main areas that exhibit both continuities in the nature of war and changes in the character of warfare. We make grounded projections into the future by first considering potential threats, enemies, and adversaries in future operating environments. We consider threats emerging from nation-states as well as non-state actors and so-called hybrid enemies that are non-state actors that enjoy state support.

These threats include Russia and its aggressive actions such as the invasion of Ukraine and their actions in the Middle East where they’ve allied themselves with a murderous regime and with the Iranians in pursuit of a strategy that is perpetuating the humanitarian catastrophe in Syria. Russia is waging limited war for limited objectives and conducting sophisticated campaigns that include the use of unconventional forces operating under the cover of very significant conventional force capability. Russia’s aim is not defensive; its actions since 2007 are part of a broader effort to collapse the post-World War II and post-Cold War security order in Europe. Russia has combined military force with other activities to change the geopolitical landscape on the Eurasian landmass. In Crimea and Ukraine Russia was able to accomplish goals at little to no cost, consolidate gains and portray the response of US and NATO allies and those supporting Ukraine as escalatory. What Russia has done highlights the need to revisit deterrence theory and make it relevant to the geostrategic problem set on the Eurasian landmass.

What we see with China is similar. China is also using conventional and unconventional capabilities to change realities in the South China Sea. China is building islands and positioning military capabilities there in an effort to intimidate the countries in the region and establish a degree of hegemony. China’s actions in the South China Sea lead to questions about its intentions and its commitment to uphold a rules based international system. In both China and Russia what you see is a renewed need for deterrence, especially a focus on deterrence by denial -the ability for nations to convince a potential adversary that he can’t accomplish his objectives. The military has a very important role along with diplomacy, economic policy, and informational efforts because an integrated campaign is necessary to counter those who are employing a sophisticated strategy. Countering propaganda, and disinformation, for example, is important. Russia has been particularly adept at sowing conspiracy theories in Europe and doing its best to undermine the NATO Alliance in particular.

And we should not forget about Iran which has been supporting proxies across the Arab world but especially in the Middle East in a way that I think, along with the rise of ISIS, set the conditions for this disastrous sectarian civil war and humanitarian crisis. They’ve done this by essentially applying the Hezbollah model to the Greater Middle East where they have weak governments in power that are dependent upon Iran for support while Iran grows militias and other illegal armed groups and supports them because they can be turned against those governments if those governments act against Iranian interests.

Potential threats, enemies, and adversaries are important for us to consider but we also need to consider the missions we need to conduct in the future. Army forces are essential to deterring conflict. As part of the Joint Force, they’ve prevented great power conflict for over 70 years now. Forces positioned forward are particularly important to deterrence. When facing countries that wage limited war for limited objectives it is important to ratchet up the cost at the frontier and also to let the enemy know they cannot accomplish their objectives. And the Army has an important role because, as Thomas Schelling wrote in the 1960s- the army gives you a brute force option which is the ability to compel outcomes without the cooperation of the enemy. Our stand-off capabilities will remain very important for our joint force and for multinational forces such as NATO. The role of land forces is becoming even more important, I think, to the deterrence mission.

Another mission that we need to conduct is what we call expeditionary maneuver: the ability to deploy rapidly into unexpected locations and transition quickly into operations and to do so with forces that have the mobility, protection and lethality to overmatch the enemy and operate in sufficient scale and ample duration to accomplish the mission. If you look how these forces will be employed it will be in the context of coping with a hostile nation-state’s capabilities, especially long range ballistic missile capabilities which today are analogous to the V1 and V2 threat to London in World War II. They are also important against groups like Daesh who has established a terrorist proto-state in Syria and Iraq. Army forces are critical in denying enemy safe havens and support bases, in defeating enemy organizations, in establishing control of territory to deny its use to the enemy, in protecting populations and in projecting power outward from land into the maritime, aero-space and cyber-space domains. For example, what we see today is that Russia has established air supremacy over Ukraine from the ground so Army forces have to be able to conduct joint multinational combined arms maneuver. And Army forces have always had the mission to integrate efforts of multiple partners to consolidate gains to translate military success into sustainable political outcomes.

The third thing we consider is technology that can improve our capabilities. We are very interested in demand reduction of logistics so we can maintain freedom of movement in action at the end of extended and contested lines of communications in austere environments. We are very interested in robotic and autonomy enable systems, both air and ground, to help us see and fight across wider areas, to help us make contact with the enemy under favorable conditions, and to help maintain freedom of movement and action along contested routes and in contested areas. We are looking to improve lethality, especially through a range of technologies like directed energy capabilities that can allow our forces to pack a greater punch and be more effective against a broad range of enemy threats. We are also looking at advanced protective systems for both air and ground forces that can protect forces from what we see in Eastern Ukraine such as the long-range ballistic missile threat capability, massed fires and maybe swarm UAS capabilities. And we’re focused on the cyber and electromagnetic capabilities to ensure our ability to communicate freely and restrict the ability of the enemy to communicate freely and also to assure some of our advanced capabilities. Finally, we should also consider the enemy’s technological counter-measures to whatever we develop and we have to be able to counter what we see as emerging threat capabilities.

And finally we look at history and lessons learned. For example, we can learn quite a bit from Russian operations during the annexation of Crimea and the invasion of Ukraine and from the ongoing fights in Syria and Iraq. Recent Israeli operations in Gaza can give important lessons on dense urban terrain. And French operations in Mali are also instructive.

So to understand what is changing in the character of warfare we look at threats, enemies, adversaries; missions; technology; and the lessons learned …

To read the full blog, click here.

Octavian Manea (MAIR ’13) was a Fulbright Junior Scholar at SU Maxwell School and a 2013 recipient of a Certificate of Advanced Studies in Security Studies through INSCT.

State Responsibility to Respect, Protect, & Fulfill Human Rights Obligations in Cyberspace

By Gabor Rona & Lauren Aarons

(Re-published from Journal of National Security Law & Policy 8:3) Debate over whether or not international human rights law applies to cyberspace and cyberrelated activities has more or less been settled. It does apply, as it would to any other context. Yet, debate continues about the content and scope of application of international human rights law to cyberspace. It is one thing to say that cyber communications, for example, hold the same civil and political protection as their offline predecessors, but it’s entirely another thing to say exactly what these protections are, where their limits may lie and the exact nature of the State’s obligations to protect human rights vis-a-vis cyberspace.

“There are a number of areas of controversy or confusion in the application of human rights law to cyberspace.”

Indeed, there are a number of areas of controversy or confusion in the application of human rights law to cyberspace. Some reflect ongoing debates within the human rights legal field that pre-exist the emergence of cyber. These include questions concerning the relationship between human rights law and other international legal constructs such as the law of armed conflict, the territorial scope of application of human rights law obligations, and how to balance competing rights. But crucially, there are also a number of unique features of cyberspace that exacerbate these persistent tensions, or that call for the specific engagement/adaptation of human rights law to address new circumstances. Aspects of cyberspace that to some extent present new challenges include the mobility of data online, the amount of personal detail individuals render vulnerable through cyberspace, and the potential of acts emanating from or involving cyberspace to cause grave disruption and harm to others. Indeed, some legal scholars argue that there comes a point in which analogies and adaptations from the offline world are no longer feasible or helpful, and that international human rights law is not equipped to regulate cyber.

This article considers the content and scope of application of international human rights law applicable to cyberspace. Instead of addressing head-on whether international human rights law is well-equipped to regulate the online world, it identifies how human rights law does apply to cyber, and where the application of human rights law remains unclear or, in some cases, ill-suited.

Following this introduction, Section one affirms the application of human rights law to cyberspace, and also considers its scope of application, including with regard to mobile data. Section two reflects on the content of a State’s obligation to respect human rights law in cyberspace. Section three addresses a State’s obligation to ensure respect for human rights (protect and fulfill rights) in cyberspace by protecting against third party abuse and by providing a remedy for violations. It also addresses State obligations to promote human rights in cyberspace and whether there is a right to access the Internet, or certain online content. Section four considers the limitations of human rights obligations and permissible restrictions in cyberspace …

To read the full article, click here.

State Responsibility to Respect, Protect, & Fulfill Human Rights Obligations in Cyberspace

An Essay on Domestic Surveillance

By Philip B. Heymann

(Re-published from Journal of National Security Law & Policy, 8:3 (June 2016)) Whoever becomes president in the decades ahead may inherit extensive institutional knowledge (or the capacity to create such knowledge) about almost every citizen’s beliefs, concerns, ambitions, interests, fears, actions, intentions, and associates. These multiple funds of information will also be readily subject to electronic search, storage, and combination and will generate increasingly reliable conclusions about our past as well as predictions about our future activities.

“Government surveillance has far greater reach. The FBI and other law enforcement agencies can – without any showing of a compelling social need (a predicate) or of a judicial warrant – do whatever private individuals are allowed to do to discover information.”

Should this scenario concern a far-sighted citizen? The possible ramifications for democracy and for civil society are dangerous. For instance, consider the importance of privacy of association. For an individual challenging a political or organizational leader, privacy of association is essential in the earliest stages of the challenge when that leader enjoys discretionary powers to help or harm the individual engaged in the challenge. Privacy of association was the issue in NAACP v. Alabama.

In this case, the State of Alabama demanded and sought to make public the membership lists of the local NAACP. Releasing these membership lists would have allowed private groups that were hostile to the political rights of black Americans to use that information as they chose On a more intimate basis, privacy is also necessary to shape one’s behavior and self image, free from social pressures. It limits how one’s choices, including associations, affect others’ attitudes about us—often a necessary safeguard in developing and projecting a chosen “self.” The capacity of a government to use its surveillance systems to reveal what an individual is not yet willing to reveal denies our ability to choose our paths slowly and deliberately.

There is a second question, closely related to the first. Why, in an age of rapidly expanding use of the Internet and surveillance of that use by Internet service providers of various sorts, should we worry about the government? After all, the government probably gathers only a fraction of what private organizations do to learn about our interests, concerns, etc. for their commercial purposes, knowledge they use to create and sell new products and services.

The reasons are near at hand. Government surveillance has far greater reach. The FBI and other law enforcement agencies can – without any showing of a compelling social need (a predicate) or of a judicial warrant – do whatever private individuals are allowed to do to discover information. But they can do much more. They can demand, with the assistance of a federal prosecutor, any records that “might” be useful to a grand jury. The government can be and is empowered to demand access to any records kept by third parties, including the vast array of electronic records now kept by businesses about their customers.

What private businesses can obtain by requiring a waiver of privacy rights as a condition of access to their services, the government can obtain without even that strained form of consent and without the alerting knowledge that consent gives to the individual being monitored. Indeed, notice can be forbidden with judicial approval. The government is allowed to use informants and undercover agents in a way that is rarely available to businesses. The government can and does develop technology, such as drones, which can greatly increase its powers to observe the activities of individuals from public spaces. The use of drones for surveillance is legal without any special showing of need and without getting a judge’s certificate showing that a required predicate such as “probable cause” of a crime or a foreign danger has been met. With a predicate and a judicial warrant, the government can search places or activities, such as homes and electronic communications that no private individual can search without consent.

The government also has capacities to use information it acquires in ways far more frightening and more likely to be hostile than those of a company, like Google or Facebook, that seek to make you a loyal customer. It can turn suspicions into investigations, and investigations into an arrest and search with probable cause; it can deny discretionary benefits, insist on cumbersome formalities when you cross U.S. borders, and encourage the actions of others by making obvious its suspicion of, or attention to, particular individuals. It can acquire and store vast troves of data to be used for any of these purposes or for noncriminal forms of regulation …

To read the complete essay, click here.

An Essay on Domestic Surveillance

Soldiers on the Home Front

By Martin Walls

soldiers on the home front(Re-published from SU Magazine, May 2016) In 1807, former Vice President Aaron Burr was arrested in Mississippi Territory by troops mobilized by President Thomas Jefferson. Burr was accused of leading a conspiracy to annex part of Louisiana Territory, attack Spanish-held land, and create his own fiefdom. Burr was acquitted of treason, and his conspiracy would have been just another strange episode in the life of this outlaw statesman, had it not led to 1807 legislation that expanded the president’s ability to “call forth…such part of the land or naval forces of the United States, as shall be judged necessary” to suppress insurrection or enforce the laws. That act has proven durable. Along with the 1878 Posse Comitatus Act—which restricts a president’s ability to use the military to enforce laws—the early 19th-century legislation continues to define how and when federal troops can be deployed on home soil.

“The types of military over-reach we fear today aren’t the same as those in the 19th century, but the degree of caution is.”

“The Insurrection Act has survived because it’s both an authorization for the president to use the military at home and a set of conditions under which they can be used. It’s a core protection against military over-reach,” says College of Law Interim Dean William C. Banks, co-author with Vermont Law School professor Stephen Dycus of Soldiers on the Home Front: The Domestic Role of the American Military (Harvard University Press, 2016). “The types of military over-reach we fear today aren’t the same as those in the 19th century, but the degree of caution is. We no longer worry that the military will willy-nilly enter a city and start enforcing federal laws. Today, we fear intelligence-gathering and other technological powers that might intrude into our lives.”

Although the republic’s founders were concerned a strong army could undermine democracy, Banks describes citizens’ subsequent attitude toward the domestic use of troops as one of “cautious embrace.” After all, America’s powerful military is uniquely able to save lives and restore order in situations that overwhelm civilian institutions. Yet the military also has been used to break strikes, quell riots, and spy on and imprison American citizens during wartime. “There’s appreciation for what the military can do,” Banks explains, “as well as an equal amount of anxiety that excesses are possible, most likely at the direction of civilian leaders.”

The book’s fascinating anecdotes illustrate many military successes, failures, and near disasters on the home front. One notable success was during the Arkansas and Mississippi school desegregation crises. “Those situations were incredibly tense, but the troops handled them with great professionalism and skill,” Banks says. However, Banks explains that during the 1992 Los Angeles Riots—when President George H.W. Bush sent in federal troops—military involvement only confused matters. In this case, the Army general in charge refused to let his soldiers assist in enforcing the law, believing incorrectly that he would be violating legislative restrictions on military involvement in law enforcement.

Nevertheless, Banks and Dycus contemplate that the U.S. military’s domestic functions will expand in the 21st century, especially if large-scale catastrophes stretch disaster planning, federal agencies, and state personnel to their limits. Since 9/11—an unpredictable “black swan” event that required military assistance—laws and directives have changed rapidly as domestic threats from terror attacks, extreme weather, and pandemics mount.

It’s time, say the authors, to clarify the military’s homeland security role, in order to establish clear lines of authority, safeguard civil liberties, and protect democratic institutions and traditions. “We’d like to see more detail about what the military should do under varying circumstances,” Banks says. “That doesn’t mean we need new laws so much as we need military orders that are transparent and widely understood. The challenge for the military, after all, is to coordinate well with others inside and outside government, whether it’s commanders working with civilian agencies or active duty soldiers working with state members of the National Guard.”  

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

By Daphné Richemond-Barak & Victoria Barber

(Re-published from Opinio Juris, May 5, 2016) The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

“The discrepancy between the treatment of the ‘good’ auxiliaries combating ISIS and that of the ‘bad’ ones ISIS recruits sets a dangerous precedent.”

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable …

To read the whole article, click here.

Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy, and Strategy at IDC Herzliya, and a Senior Researcher at INSCT partner organization the International Institute for Counter-Terrorism (ICT). Victoria Barber is a master’s candidate at the Fletcher School of Law and Diplomacy.