First It’s the Muslims: An Evolution to Dictatorship

By David M. Crane

(Re-published from Jurist | Feb. 3, 2017) How did a great country with a strong and respected place in the world, a center for culture and tolerance, elect a man who would plunge the world into what a commentator called “a place of anguish and fear”? This is a question many historians and policy makers asked themselves about Germany in the 1930’s.

“I have faced down dictators most of my professional life. To understand my adversary I have studied the twentieth century’s dictators, how they came to power, their psyche, and their methods of destroying their own citizens. There are patterns, similarities, regarding despots, dictators, and thugs who rise to and hold power in their countries.”

The manner in which Adolf Hitler came to power initially was legitimate and within the constitutional bounds of German law. An obscure former corporal in the German army, he ran for the highest political office in his country on a platform of nationalism, essentially declaring it time to make “Germany great again.” Stung by the humiliating terms of the Versailles Treaty, Germany retreated inward burdened by reparations and eventual economic depression; this liberal democracy struggled to redefine itself in a post-WWI world. Hitler’s speeches declared that Germany could be a great country again, with a strong people, who could move forward to reclaim their historic place in Europe. All this rang true to a defeated people.

Hitler’s rhetoric in those days formed the murky beginnings of a far darker political dynamic, but the German people — Dem Deuctshevolk — shop workers, shopkeepers and farmers, looked beyond this darker theme and focused on a more promising future in a proud and assertive Germany. As he ran for Chancellor, Hitler focused on the economic issues of the time, promising to restore the German economy and bring back jobs. “German business first” was what a German citizen liked to hear.

Adolf Hitler became Chancellor of Germany in 1933, barely more than eight years after he was released from a Bavarian prison for the Beer Hall Putsch. The first year of his rise to power was a heady time where money poured into infrastructure and rebuilding the German army, in blatant violation of the Versailles Treaty. The concept of a people’s car, a Volkswagen, became a reality to be driven on the world’s first interstate road system, called the autobahn. German citizens saw jobs, better pay, and a brighter future.

Then the nibbling at Germany’s democratic principles began, subtle at first, but picked up over the next few years, and by the time of the 1936 Olympics in Berlin, led to a state policy to shift power from the people to one person, a Fuehrer. Backed by the Reichstag, new laws were passed shifting the power to a single executive. Additionally, as this happened, Adolf Hitler began to raise the stakes against perceived enemies of the state by using fear to cause the German people to give away their freedoms one at a time to fight the threat — Bolsheviks, Slavs, and Jews. Claiming a conspiracy to keep Germany weak, various minorities were singled out as a threat to the country and its people. It was this existential threat from within and outside the country that Hitler built upon a fear so much so that the citizens of Germany turned to their leader, their Fuehrer, to protect them.

The intellectual elite of Germany and much of the middle class at first stood back, amused, embarrassed, disbelieving that this proud nation of culture, of tolerance, of openness would elect this small little man who ranted and raved about a great German nation, a Reich that would last a thousand years. They could not believe that he would last long politically and stood aside in the early years thinking that the political system in place would cause his demise. By the time they realized the shift of almost complete power to one man had actually happened, it was too late. They had only one choice: swear allegiance or leave. Some left when they still could, but most stayed and accepted their national fate.

I have faced down dictators most of my professional life. To understand my adversary I have studied the twentieth century’s dictators, how they came to power, their psyche, and their methods of destroying their own citizens. There are patterns, similarities, regarding despots, dictators, and thugs who rise to and hold power in their countries. Their track record is horrific with the destruction of over 95 million human beings at the hands of these dictators in the last century.

Understanding the similar conduct of largely ordinary men rising to absolute power can help us in many ways: from investigating and prosecuting them for violations of domestic and international crimes, identifying those politicians or political movements trending toward despotism, to prevention and counter measures to blunt their move to power. Liberal democracies today need to understand the past, the present trends, to protect our futures. The consideration of these traits are instructive today in the United States and elsewhere.

So what are those similarities among despots and dictators? First in a country where a dictator comes to power, there is an anger towards the establishment, a long term disappointment and lack of trust in their government.They use this loss of faith in the centralized government to start building a political base to gain power. Dictators want to “drain the swamp,” to clean house, to start over.

Second, the rising dictator uses fear to shift that frustration away from their policies to what is called “a boogey man.” Dictators for a century all used a “boogey man” to focus their citizenry away from their absolute power to a threat outside the country. The Three Pashas in Turkey blamed the Christian Armenians for the loss of the Ottoman Empire; Adolf Hitler blamed the Jews for weakening Germany; Joseph Stalin and Mao Tse-tung focused on Western capitalism; and the Ayatollah of Iran blamed the Great Satan of America for their economic problems. Outsiders who were different, who had a different religion became an internal and external threat and were either accounted for and interned or deported. Those who sought admission to their country were banned for who or what they were.

Third, dictators view the press as their enemy and initially seek to limit press access to their regimes, then ban or control the press entirely. They consider the press an enemy of the state and take appropriate action. The liberal press is blamed for factual distortions. The dictator declares they are not using real facts and fashion their own truths, what you would call today “alternative facts.” Joseph Goebbels stated that “if you lie to the people long enough, they will believe it as the truth.” In a dictatorship the truth is the first casualty …

To read the whole blog, click here.

Will Israel Bar Entry of Foreign BDS Activists?

By Miriam Elman 

(Re-published from Legal Insurrection | Feb. 1, 2017) On Monday Jan. 30, Israel’s parliament (the Knesset) was set to pass into law a bill that bars BDS (boycotts, divestments and sanctions) advocates from the country.

“Opponents are right that if the new law is executed poorly, it could defeat its purpose by increasing support for BDS.”

The bill would extend the ban to those who back the anti-Israel BDS movement as well as those who support the boycott of settlement goods in Judea and Samaria/the West Bank.

The bill has been in the works for over a year, passing its first Knesset reading back in November. Two weeks ago, the Knesset Internal Affairs and Environment Committee reportedly approved the final wording of the bill, sending it to the plenary for its second and third/final reading. That was supposed to happen on Monday evening (Israel time), when the bill was anticipated to garner a sufficient number of votes in favor to pass. On Monday afternoon (EST) I learned from several colleagues that the vote was postponed. They tell me that there’s no indication when the bill will be back on the Knesset agenda.

The delay is a shame. That’s because this is a bill that needs to become law—the sooner the better.

Below I summarize it, discuss the criticisms that have been raised, and highlight the type of virulently anti-Israel “tourist activism” that’s likely to be impacted if the bill becomes law (and the kind that won’t).

Not surprisingly, the anti-boycott bill has generated “outrage and dismay” from left-of-center legislators and NGOs in both Israel and the U.S. As I suggest below though, most of the criticisms are overblown. The law would be an important corrective to an absurd situation that’s developed in Israel where foreign activists routinely take advantage of the country’s democracy in order to work against it. Still, opponents are right that if the new law is executed poorly, it could defeat its purpose by increasing support for BDS.

Also included below is a short statement exclusive for Legal Insurrection from Lahav Harkov, the Knesset reporter for The Jerusalem Post.

Israel’s Latest Anti-Boycott Bill

The proposed legislation, which has been advanced by both right-wing and centrist Israeli lawmakers, seeks to prevent foreign nationals who have publicly called for a boycott of the Jewish state, or who work on behalf of a pro-BDS organization, from entering Israel.

Jonathan Lis reports for Haaretz.com:

The Knesset is likely to give final approval Monday evening to a bill that would forbid granting entry visas or residency rights to foreign nationals who call for economic, cultural or academic boycotts of either Israel or the settlementsHowever, the interior minister would be able to make exceptions to this rule if he deems it warranted in a particular case.”

The language of the bill rests on a legal definition of anti-Israel boycotts from a 2011 law, which allows citizens to bring civil suits against Israeli persons and organizations that call for the boycott of Israel and settlements.

So a key aspect of the bill is that it extends to cover settlement-boycott supporters who would also be barred from entering the country under the law (the ban wouldn’t apply to foreign nationals who already have residency permits).

The bill has been in the works for some months, gaining traction following the formation of a joint taskforce this past August. Convened by Public Security and Strategic Affairs Minister Gilad Erdan and Interior Minister Arye Deri, the taskforce was mandated to work on ways to prevent entry and to deport BDS activists who are illegally exploiting their tourist visas by engaging in political activities.

Note that representatives of international organizations are able to apply for humanitarian aid visas in order to work in the West Bank legally. But the terms of these visas prohibit recipients from engaging in political or legal activities. So the taskforce was asked to consider how Israel could rectify the situation in which BDS activists are routinely receiving 3-month tourist visas in lieu of the specific humanitarian aid visas, and are thus operating in the country illegally. The bill is a result of the taskforce’s effort.

It was approved for a first reading in the Knesset back in November, with 42 lawmakers in favor, 18 opposed and 7 abstentions. The bill had been on last week’s plenary agenda for a final reading and vote, but was postponed at that time too …

To read the whole post, click here.

2009 vs. 2017: Comparing CSIS’s Cybersecurity Recommendations for Obama, Trump Presidencies

By Christopher Folk

(Re-published from Crossroads: Cybersecurity Law & Policy | Jan. 26, 2017) The Center for Strategic and International Studies (CSIS) produced cybersecurity recommendations in December 2008 for the 44th presidency (CSIS-44) and built on that to produce a report in January of 2017 for the 45th Presidency (CSIS-45).  What follows is a short comparison of the two reports …

Taken together these recommendations could serve to bolster US cybersecurity.

On Policy

CSIS-44 touted increase use of private-public partnership and the various benefits that could be derived therefrom.  CSIS-45 recognizes the cold hard reality that those partnerships simply failed to materialize and that delivered very little (if any) value to our cybersecurity posture.  CSIS-45 goes so far as to say that this type of approach that “encourages” cooperation is doomed to fail since it neither mirrors market realities nor is there any “stick” (i.e., the private sector will only act if market forces dictate action or if action is mandated via regulations, etc.)

Another lesson learned from CSIS-44 was the attempt to focus on authentication and digital identities. CSIS-45 acknowledges that programs such as the National Strategy for Trusted Identities in Cyberspace (NSTIC) were grandiose in vision and lackluster in practice.

One other area covered here is the need for a national data breach policy.  CSIS-45 postulates that a federal data breach policy will enhance security since entities will understand their requirements and the policies and procedures they must implement.

Take-away: Ideas and vision are wonderful; however, if there is no mechanism for regulation or enforcement, they are unlikely to come to fruition. Thus, the Trump Administration needs to recognize the bounds and limits of its influence and work with (rather than against) the legislative branch to effect the best possible outcomes.[1] 

With respect to the national data breach legislation, I agree that is important; however, I don’t think it is as significant a cybersecurity issue as CSIS-45 postulates.  Not everything that moves from the state level to the federal is wiser or more efficient.  In some respects, states and localities may have more flexible and tailored data breach notification rules than trying to create a one-size-fits-all.  A single standard would certainly be easier, but it is not clear how data breach notification rules applied federally will in and of itself create a higher level of cybersecurity.  For instance, what if a locale currently has a very strident data breach policy and the federal policy is less stringent. In such a case, wouldn’t the result be decreased cybersecurity?

On Encryption

CSIS-45 includes several paragraphs on encryption and discusses the need to balance the national security implications of privacy, security, and innovation. One would have thought that the various issues surrounding the infamous “clipper chip,” coupled with the FBI/iPhone “All Writs Act” court case, would have made encryption a more prominent topic in CSIS-45 and would have warranted at least a mention in CSIS-44.  With respect to breaches and exfiltration of PII, one could argue that encryption is at the very heart of any discussion; however, interestingly enough while some specific vulnerabilities are raised, scant attention is paid to this.

What CSIS-45 does say is that private-sector encryption should be encouraged but should also include private-sector cooperation to ensure that lawful access to encrypted data can be achieved. Hopefully, efforts in this area also will include an independent party that is able to make a neutral and detached decision regarding whether or not data can be unencrypted in a lawful manner.  Furthermore, it will be essential to ensure that the tools to effect this do not use the proverbial back-door approach, since the government does not seem to be particularly adept at preventing the exfiltration of tools and software that it utilizes (for instance, consider recent tools that made their way into the public market, as well as the Snowden revelations).

Take-away: Merely saying that you need to balance privacy, liberty, and security does nothing to ease the misgivings of privacy crusaders, tech companies, and First Amendment supporters.  Stating that encryption should include a mechanism by which a lawful process can decrypt data strikes fear in the hearts of many.  For one, there has been no proposal as to “who” can make such a determination—would it be the judiciary?  Additionally, who would retain the technological capability of decryption?  If the private companies or the industry has this, then who will safeguard it?  How will the use of decryption be monitored, logged, and accounted for?  What happens when a new authoritarian figure takes office with the support of a willing and able legislature and is able to define “what” they can access and decrypt?  How much liberty and privacy should we sacrifice for our security?

The Cloud & the Internet of Things

While CSIS-45 specifically discusses both increased use of cloud devices as well as the proliferation of Internet of Things (IoT) devices and then goes on to say that any strategy must be fluid in order to accommodate the rapid pace of technological change, this approach seems rather narrowly focused.  While it is easy to view the movement to the cloud and the advent of IoT as disruptive technologies that require a revised strategy, that isn’t the case.  Networked storage is not a new phenomenon, nor is software-as-a-service (SAAS); taken together and coupled with centralized provider services, this is more evolutionary than revolutionary.  The underlying strategy, if purpose-built to discuss data and Personally Identifiable Information (PII), should be largely unchanged irrespective of the underlying technology or architecture.  Similarly, with respect to IoT, this is more so an issue of scale versus some revolutionary new technology.  Neither the intended uses nor the ubiquity of IoT devices should impact a comprehensive cybersecurity strategy.

Take-away: CSIS-45 states that the growing number of IoT devices will result in an immense number of connected devices and then proposes implementing a rating system similar to the NHTSA crash test system.  With the exponential growth in IoT devices, how would such a system be managed? The overhead and administrative burden of operating a program to rate IoT devices would be mind-boggling. Further, with the rate of technological change and both software and hardware updates, this system would be impossible at the very least and unwieldy and unworkable at the very best.  Once again, the problem is one of focus—looking at the device and the perimeter vs. what really matters: PII.

Offensive Cyber Operations

CSIS-44 devotes a fairly large section to a discussion of the use of the military and developing appropriate response thresholds, whereas CSIS-45 merely talks about identifying the split of responsibility along the military and civilian spectrum to ensure that no issues arise with respect to use of forces barred from domestic response during a cyber event.  CSIS-45 thus recommends strengthening the US Department of Homeland Security (DHS) and simultaneously building capabilities within the National Guard and Reserves, either of which could be rapidly deployed to the states until Title 32 or Title 10/50 (this would have the added benefit of creating citizen-soldiers with expertise in cyber operations).

Take-away: CSIS-45 should likely be viewed in the context of CSIS-44, which provides a wealth of additional background and delves deeper into the concepts of necessity and proportionality (without ever spelling them out).  Ultimately, however, the issue will continue to arise where one force is deployed and tasked with monitoring and defensive operations and a separate force conducts offensive cyber or kinetic operations (especially in the case of cyber events initiated by nation states).  What this issue really comes down to, and what really needs to be extrapolated, is the attribution element.  The ability to confuse, inveigle, and obfuscate renders the question of cyber or kinetic offensive operations somewhat moot, which also raises the issue of asymmetry (a topic best left for a separate post).

On Organization

CSIS-44 and CSIS-45 both allude to the fact that an effective cybersecurity strategy is going to require clear leadership with well-defined authority, preferably flowing directly from POTUS to a highly-placed official with operational control over the moving pieces.  Here, CSIS-45 builds on CSIS-44 and states that DHS could continue to be the lead on this if the (1) the DHS Cyber Mission is fully defined; (2) Cybersecurity is put into an independent operational component of DHS; and (3) supporting agencies are strengthened and given key roles (e.g. State, FBI, Commerce, national intelligence agencies).

Take-away: the recommendations from CSIS-44 were never followed, so we do not have a single lead-agency with the requisite power to manage cyber operations across the landscape.  The report doesn’t specifically call this out, but the OPM data breach, the Sony hack, and the IRS hacks all point to a rather poor cybersecurity posture using the weak-DHS model.  In CSIS-45 it almost seems as though the authors have accepted the way things are and are pushing for modest, incremental change.  However, if creating a standalone cybersecurity model (such as other nations are doing) is the best, most efficient approach, shouldn’t CSIS-45 continue to advocate for that? A kind of “shoot for the stars and reach the moon” approach vs. CSIS-45’s poor me approach.

On Resources

In this area CSIS-44 and CSIS-45 both advocate for training and education to develop a cybersecurity workforce.  CSIS-44 may not have been dire enough in its prediction of the number of skilled cybersecurity professionals that were going to be needed.  CSIS-45 pays a little more heed to this but still discusses it at a very high level.  With all of the rhetoric over the past several months about college tuition and the need for a skilled workforce and the need to build and re-build private-public partnerships, it seems as though a key opportunity has been missed by CSIS-45.  The obvious truth is that the supply of cybersecurity professionals has been outstripped by demand by a very large factor. Thus, this problem impacts the private and public sector alike.[2]

Take-away: it might be best to use a workforce shortage to create a long-term supply reaching all the way down to the elementary level, targeting persons whose inherent skills and aptitude make them ideal candidates for a cyber career path.  Private industry could help defray the costs of training and education, with the benefit of a skilled worker at a reduced rate of pay for a specified duration.  Credits could also be given for the training expense incurred by persons that enter the public vs. the private sector—thereby strengthening the public/private relationship and creating a long-term solution to a specific need.  This effort would also create the infrastructure needed to develop similar pipelines for other skills, thus allowing some level of career pre-determination (several eerie science fiction movies have been based on similar premises!)

Conclusion

In many respects, CSIS-45 builds upon what was crafted and delivered in CSIS-44.  Little of what is in it is revolutionary, and it is largely just an extension of the CSIS-44 principles.  However, taken together these recommendations could serve to bolster US cybersecurity. The key will be to get the White House and Congress to acknowledge the scope of these issues and to devote the necessary time and resources to both short and long-term solutions.  The development of a workforce that targets elementary age children puts the horizon out several presidential terms, which dictates that action should be taken in conjunction with congress rather than simply via presidential fiat.

Christopher Folk is a candidate (2017) for both a master’s in Forensic Science and Technology (Syracuse University) and a Juris Doctor degree (SU Law). Also a software engineer, Folk’s legal externship is with Chertoff Group company Delta Risk, where he focuses on legal and policy analysis pertaining to US and International cyber law.


[1] It is interesting to note that the CSIS-45 report has an entire section on previous attempts to model government after the private sector and building in the typical C-Suite executives (CTO/CISO/CIO) and how this has been ineffective since C-Suite positions lack real authority and thus pushing a private sector organizational model into the public sector falls short.  Since this dialogue was lacking in the CSIS-44 report, one can only wonder that if a non-business person was assuming the helm, then language dictating the pitfalls of trying to apply a private-sector business organization to the government model would have been included?

[2] With obvious trade-offs and incentives within each.  For instance, the lure of an NSA job may be using and developing cutting-edge tools and access to some fascinating technology contrasted with the public sector, which can offer more financial incentives than the public sector.

Can Donald Trump Avoid a Dangerous South China Sea Showdown?

By James Steinberg & Michael O’Hanlon

(Re-published from The National Interest | Jan. 18, 2017) Donald Trump’s election has raised questions about the future of U.S. foreign policy—and perhaps nowhere more consequentially than for Sino-U.S. relations. During the presidential campaign, Trump focused most of his fire on China’s economic policies, but during the transition he has broadened his critique to include China’s military buildup and activities in the South China Sea, and he has called into question America’s long-standing One China policy. In light of these comments, it’s particularly timely to assess the state of the bilateral security relationship, and whether new developments warrant a fundamental rethink of our security policy toward China.

“In response to those developments, President Barack Obama elaborated an approach to China that responded to China’s actions while preserving the basic framework of the One China policy—an approach which has been called the Asia-Pacific rebalance or pivot. The rebalance focused not only on security, but also broader economic and political issues as well.”

Many scholars and policymakers would agree. But while there is ample reason to be concerned about trends, we would contend that the state of U.S.-China security relations is a glass half full. It is important that both sides make maximum efforts to stabilize the security relationship, lest tensions in both the economic and security dimensions feed on each other, and the risks of rivalry and conflict deepen.

Until recently, there was considerable bipartisan continuity in U.S. policy towards the PRC. The pillars of this policy have included support for economic engagement and diplomatic partnership with China, combined with ongoing security commitments to regional allies, a capable U.S. military presence to back up those commitments, robust trade and investment relations, and involvement in range of multilateral institutions. This strategy served U.S. interests well for decades—helping pull the PRC away from the Soviet Union and thus accelerating the end of the Cold War. It also preserved security for Taiwan, Japan, South Korea and East Asia. The peaceful regional environment provided a context for China’s leaders to launch a strategy of “reform and opening up,” which lifted hundreds of millions of Chinese out of poverty and contributed to regional and global economic growth as transnational supply chains offered consumers lower prices for tradeable goods.

As the decades went by, however, this strategy produced other, more worrying consequences. China became the world’s top manufacturing nation and boasted the world’s second-largest economy. That status came with dramatic implications for jobs and investment, especially in the manufacturing sectors of developed countries—particularly the United States and Europe. Those developments gave China the wherewithal to field the world’s second most expensive military force, featuring a growing range of high-technology weapons, which now challenge America’s military supremacy in the Western Pacific. That burgeoning capability has been accompanied by an increasingly assertive foreign policy, particularly with respect to China’s territorial and maritime claims in the East and South China Seas. Taken together, the developments have led growing numbers of Americans to question whether China’s rise was of mutual benefit both on security and economic fronts. The tension in U.S.-China relations was exacerbated because the hoped-for political reforms, which were expected to follow the economic opening, failed to materialize. On the contrary, under President Xi Jinping, the movement toward a more open and rights-respecting China seems to have reversed course in favor of more central control and an assertive nationalism, which rejects what most people in the United States and countries around the world consider to be universal principles of human rights.

In response to those developments, President Barack Obama elaborated an approach to China that responded to China’s actions while preserving the basic framework of the One China policy—an approach which has been called the Asia-Pacific rebalance or pivot. The rebalance focused not only on security, but also broader economic and political issues as well. It has been generally well received among American strategists and leaders of both parties, and among American allies in Asia as well. Yet the new approach has not, by itself, stabilized the Sino-U.S. relationship. Many in China see the rebalance as thinly disguised containment, while critics in the United States fault the Obama administration for an inadequate response to China’s assertiveness—a critique reflected in the president-elect’s rather cryptic comments to date.

As we see it, the reality of Sino-U.S. relations since the launch of the rebalance is more complex.

If one dates the formal inauguration of the rebalance policy to former secretary of state Hillary Clinton’s Foreign Policy article on the subject in October 2011, followed by President Obama’s visit to Australia and the broader region in November of 2011, then the regional security situation involving China deteriorated in many ways in the following months and years. In April 2012, China moved military forces into position to establish control of the Scarborough Shoal. (In July 2016, the Permanent Court of Arbitration for the UN Convention on the Law of the Sea in The Hague ruled this action to be an infringement of the Philippines’ exclusive economic zone.) China also established a new administrative unit to oversee the Paracel and Spratly Islands of the South China Sea. China asserted an air-defense identification zone—without consulting other countries—in the East China Sea region in 2013. It moved oil rigs into Vietnam’s exclusive economic zone in 2014 and 2016 …

To read the complete article, click here.

INSCT Affiliated Faculty Member Jim Steinberg is University Professor of Social Science, International Affairs, and Law, and Former Dean, Maxwell School of Syracuse University. He is also Former Deputy US Secretary of State. Michael O’Hanlon is a senior fellow at the Brookings Institution.

Our Work Never Ends: An Interview with David Crane

By David M. Newstead

(Re-published from The Philosophy of Shaving | Jan. 15, 2017) War crimes investigator David Crane returns to discuss the conflict in Syria, proposed human rights laws in the United States, and the impact of populist elections around the world.

“This is the first time in a long, long time when everything is new and everything is on the table.”

David Newstead: How do you think this wave of populist elections around the world will impact international law and human rights?

David Crane: The honest answer is, I don’t know. One could certainly seem to think that it is not going to augur well for the future. However, that just remains to be seen. I would hope that we could at least keep where we are as opposed to taking steps back. But frankly, I am not confident. This is a clarion call for all of us to work harder, particularly in the public relations realm, to keep the concept of seeking justice for people who are oppressed in some kind of light so that it just doesn’t disappear back into the shadows as it was before the early 1990s.

David Newstead: Human rights laws like the original Magnitsky Act were bipartisan pieces of legislation and had strong Republican support. Do you see any hope for the expanded version of the Magnitsky Act or the Caesar Act in either the Republican controlled Congress or the Trump administration?

David Crane: I helped draft the Magnitsky Act and had testified on the Caesar Act before the House Foreign Affairs Committee earlier in the summer. You know, it’s interesting. It’s kind of a bellwether as to what the sense of Congress is at least right now. The other week, the Caesar Act passed on a voice vote in the House, which was a positive sign.

I’m not so sure about the Senate. I don’t have as good a read on it as I do in the House. I’m very good friends with Congressmen Ed Royce and Chris Smith, two champions of human rights who have worked with me since 2002 when I was doing my work in West Africa. I just don’t think it has the sense of urgency in the Senate that it does in the House. I’m not confident, though I could be surprised, that this is going to move forward. It has to move forward now obviously or it will not see the light of day. And I can’t see within the next year anything like a Caesar Act working its way through a Trump Administration.

I could be wrong, but I’m just not sure. I don’t think the new President-elect has any interest in this area at this point. Sees no need in it. Sees no political benefit in spending his time and energy on these types of issues. I’m not even sure who his main contact is in this area. If it’s Michael Flynn, then that doesn’t augur well.

To answer your question, it’s really up to the likes of Senators Bob Corker and Mitch McConnell. I’m just not getting a sense that they’re going to spend a lot of time of this. I could be wrong, but we just don’t have that momentum in the Senate that we used to have even when it was bipartisan. People like Senators Pat Leahy and Judd Gregg worked the hallways for these laws and worked together for decades. I’ve worked with them myself on getting international criminal law and human rights legislation through and they’ve been pretty good on it. But you know, I’m just not seeing a lot of momentum in the Senate on this.

David Newstead: If Trump’s recent endorsement of Filipino President Rodrigo Duterte’s drug war is any indication, what kind of human rights policies do you think we can expect?

David Crane: I’ve thought this through a lot. We either have a great moment or a moment of tragedy. For some bizarre reason, we have this moment with Russia that is something that is not comfortable for those of us who are old Cold Warriors, but also just individuals who look at Russia very skeptically for a lot of reasons. What an interesting thing if Trump and Putin actually formed a kind of grand alliance to handle some of the challenges internationally. The method may not be palatable, but the end product may be a solution for Syria, for example.

But I don’t know. This is the first time in a long, long time when everything is new and everything is on the table. No one really has a sense, because it’s a complete paradigm shift. Even all the key players in that crazy town that I lived in and worked in for so many years, all the key contacts and the people that make things happen … They’re no longer in power or even in anybody’s inner circle. We can’t shape, mold, or effect current and future policy, because they’re just not listening. Either the new administration is eventually going to come around, because they’re going to have to or they’re not going to get anything done. Or we’re going to see an amazing series of policy shifts internationally the likes of which we haven’t seen since Harry Truman and the Truman Doctrine …

To read the full blog entry, click below …

Our Work Never Ends: An Interview with David Crane

Obama, Kerry, & Israeli-Palestinian Realities

By Louis Kriesberg

(Re-published from Foreign Policy in Focus | Jan. 10, 2017) President Barack Obama’s decision that the US abstain on the vote at the UN Security Council regarding the Israeli-Palestinian conflict and Secretary of State John Kerry’s talk on the Israeli Palestinian conflict have been attacked too often with willful mischaracterizations. Such attacks demonstrate again how Americans are suffering from uncivil, nasty discourse, which is harmful to all parties.

“With Donald Trump’s electoral victory, another opportunity arose for Obama and Kerry to take some actions relating to the Israeli-Palestinian conflict.”

Obama and then Kerry worked very hard to bring about serious negotiations to reach a two-state solution for Israelis and Palestinians that would benefit both sides. Most people in Israel and most Jews in the US believe that would be desirable. Obama and Kerry failed due to conditions they could not control. Those many conditions are well known, and Kerry listed many of them in his speech.

Even before the US election, there was serious discussion in the Administration about publicly setting forth the parameters for a two-state solution, which had emerged from prior negotiations and mediation. That statement could have served as a platform for possible renewed negotiations early in President Hillary Clinton’s administration. With Donald Trump’s electoral victory, another opportunity arose for Obama and Kerry to take some actions relating to the Israeli-Palestinian conflict.

Obama and Kerry carefully explained their actions. The US UNSCR vote was an abstention, not an affirmative vote. The vote on the resolution had no negative votes, with Russia, China, England, France and all other members voting yes. By abstaining, the US revealed the isolation that the Israeli government had created for itself with its policies regarding the Palestinians. It made clear too, that the US has other concerns and interests in the Middle East and elsewhere in the world, in addition to those of the Israeli government.

Furthermore, Benjamin Netanyahu warranted no personal favors from Obama and Kerry following his extraordinary partisan actions to fight against and subvert the work of the US and the other permanent members of the Security Council to negotiate the ending of the Iranian nuclear weapons program. Netanyahu’s acceptance of the Republican invitation to address the US Congress and deliver a fear-mongering, partisan speech was shocking.

Kerry, in his comprehensive talk at the Department of State, analyzed the obstacles to successful negotiations arising from both the Israeli and Palestinian sides, indicating what changes were needed …

Read the full article below:

Obama, Kerry, and Israeli-Palestinian Realities

INSCT Affiliated Faculty Member Louis Kriesberg is Maxwell Professor Emeritus of Social Conflict Studies at Syracuse University and the author of Realizing Peace (Oxford University Press, 2015); Louis Kriesberg: Pioneer in Peace and Constructive Conflict Resolution Studies (Springer, 2016); and co-author with Bruce Dayton of the fifth edition of Constructive Conflicts (Rowman & Littlefield, 2017).

Boko Haram: Nigeria’s Islamist Insurgency

A Review of Boko Haram: Nigeria’s Islamist Insurgency by Virginia Comolli (Hurst & Company, 2015)

By Isaac Kfir

(Re-published from Journal of Islamic Studies, 28:1) The emergence in Northern Nigeria of Boko Haram—Jamāʿat ahl al-Sunna li-l-daʿwa wa-l-jihād (“The Group Committed to the Propagation of the Prophet’s Teachings and Jihad”)—has spawned a number of studies offering to explain its origins, rise, and rationale. In Boko Haram: Nigeria’s Islamist Insurgency, Virginia Comolli, a research fellow for security and development at the International Institute for Strategic Studies, offers her interpretation for the rise of the group and the continued threat that it poses to Nigeria, the region and possibly the international system. The threat stems from Boko Haram nurturing and building relations with various al-Qaeda affiliates in Africa and beyond. An additional objective of the book is to highlight how counterinsurgency operations can feed an insurgency.

“Yusuf managed to appeal to these individuals because he was charismatic and also wealthy, able to provide micro-loans.”

Comolli’s study frankly admits to the inherent difficulties of gathering primary information about the group and Northern Nigeria in general. This is because the group generally does not engage with Westerners (senior members of the group do not give interviews for example), its public statements are limited (some are available on YouTube, but Comolli does not seem to use them). Rather, Boko Haram opts for action, and access to its area of operation is restricted mainly by the Nigerian security services. Thus, Comolli bases her research on interviews with Nigerian security services, ordinary Nigerians (including some survivors of Boko Haram attacks), open-source information, and historical materials. This approach allows her to put together a compendium about the group. In some respects, the book’s goal, as Comolli recognizes, is to develop a more comprehensive approach to the dynamics of religious extremism in Nigeria and the region. To achieve such a goal Comolli’s takes a historical, societal approach to what prompted the emergence of the group. The book’s chapters, though meant to be thematically organized, read more chronologically, which makes sense as Comolli traces the evolution of Boko Haram to its current manifestation as a regional entity committed to violence across the Sahel and West Africa.

Comolli opens with an account of religious extremism in Nigeria, focused mainly on Usman Dan Fodio’s Jihad and the Sokoto Caliphate. Included in this account is Britain’s preference for indirect rule in Nigeria, which allowed, if not encouraged, the adoption of Shariʿa in Northern Nigeria. The chapter underlies the North-South division that has plagued Nigeria from the moment of independence. The next chapter describes the origins of many contemporary Islamist groups, noting how they formed, splintered, transformed and reformed, as seen for example with Ansaru (in full, Jamāʿat anṣār al-Muslimīn fī bilād al-Sudān). This provides the foundation for Comolli to deconstruct and explain Boko Haram, which she does in ch. 4. She describes its social make-up, funding and support networks.

In reviewing the evolution of the group, Comolli explores its first leader, Yusuf’s role and how he sought ties with the people, particularly the children who become almajirai—a complex term that has elicited different descriptions from different scholars, some seeing them as unemployed vagabonds, others as those who come to study the Qurʾān, or who migrate to avoid the hardship of the dry season, to those who are essentially street hustlers. Yusuf managed to appeal to these individuals because he was charismatic and also wealthy, able to provide micro-loans. What Yusuf did was to give many of the young men an identity and a sense of belonging …

To read the full article, click here.

Isaac Kfir, Associate Professor of International Relations and the Middle East at Tokyo International University, is an INSCT Research and Practice Associate.

A Step Forward: The UN & Justice for Syria

By David M. Crane

(Re-published from Jurist.org | Jan. 1, 2017) On 21 Dec., 2016, 105 member states of the United Nations General Assembly took an important step forward in seeking justice for the people of Syria. The action-taking was a resolution that paves the way for an independent organization to begin collecting, cataloging, and analyzing data and other criminal information coming out of Syria into proper evidence to be used someday by a local, regional, or international prosecutor someday in order to hold accountable all parties committing international crimes in Syria from March 2011 to the present.

“As we began to consider various mechanisms to cure this problem, an accountability center became apparent.”

Since the beginning of the civil war in 2011, there have been dozens of efforts by various nongovernmental organizations to collect data on the crimes being committed in Syria. Though laudable in their efforts, this massive amount of data is useless in a court of law. It is unreliable and not authenticated, with no chains of custody or other safeguards. Essentially almost all of the data being collected regarding crimes in Syria is tainted and inadmissible.

Three organizations did begin to emerge that were working in tangent to correct this problem. One of these is the Syrian Accountability Center, which I founded in March of 2011 to create a trial package for a future local, regional, or international prosecutor. It is designed along the same methods I used to investigate and indict President Charles Taylor for war crimes and crimes against humanity in West Africa. Additionally, two other organizations are doing important work, the Coalition for International Justice and Accountability and the Syrian Justice and Accountability Center. The heads of these three organizations met and briefed various UN ambassadors on the evidence challenges in November. It was there I urged the creation of the accountability center concept.

As we began to consider various mechanisms to cure this problem, an accountability center became apparent, a center run by experienced international criminal law professionals who could take this mass of data already collected, and still coming out of Syria, and turn it into that evidence necessary to hold accountable those parties committing crimes in violation of Syrian and international law.

The international community has spent millions of dollars supporting efforts to build data bases by organizations who in large measure do not have the experience to build a criminal case. The accountability center concept was designed to fix this problem. Throughout Fall 2016, we carefully planned a campaign to garner the support necessary to succeed in creating the accountability center. Under the leadership of ambassadors Christian Weneweser of Lichtenstein and Alya Althani of Qatar various paths were considered from the Security Council, the General Assembly, and possibly a regional organization such as the European Union or the Arab League. The General Assembly was the most realistic pathway to success …

To read the complete article, click here.

 

Trump’s Plan to Move US Embassy to Jerusalem Could Help the Peace Process

By Miriam F. Elman

(Re-published from The Washington Post Monkey Cage | Dec. 29, 2016) President-elect Donald Trump’s pledge to move the US Embassy from Tel Aviv to Jerusalem and his selection of an ambassador to Israel who heartily supports the relocation have produced a deluge of dire warnings. Critics claim the move would unleash a wave of extremism, making past clashes pale by comparison. But these warnings may be exaggerated. A careful look at conflict-resolution theory suggests that moving the embassy could be a constructive move, pushing Israelis and Palestinians back to negotiations.

“The costs of a move may be high, but the literature on conflict resolution suggests this could prove a strength, not a weakness.”

Many assumed Trump would renege on his campaign pledge once in office, as presidents Bill Clinton and George W. Bush did. But relocating the embassy allows the Trump Administration to reinforce that, unlike the Obama administration, it doesn’t consider settlements the key obstacle to peace. Trump will be particularly keen to make this distinction after the US abstention Friday on U.N. Security Council Resolution 2334, which effectively declares illegal all Israeli presence beyond the 1949 armistice lines, including in East Jerusalem. Trump’s transition team has publicly called moving the embassy a “very big priority” and is reportedly exploring the logistics for its new location.

Conflict resolution experts call this tactic a “burning bridges” move, which sends a clear, credible commitment to act. The costs of a move may be high, but the literature on conflict resolution suggests this could prove a strength, not a weakness. As has long been noted by scholars, the perception of a party’s will and commitment is essential to peacemaking. Demands and offers need to be believable, and concrete actions can display a readiness to react.

Though some Arab states may protest, official relations between Israel and its neighbors have never been better as they face down common threats, from Islamist extremism to an expanding Iranian influence. Additionally, the argument that moving the embassy would drive a wedge between the United States and Arab states or Europe is less tenable following the passage of the UN resolution.

As highlighted by a former member of the Knesset, not only does the resolution delegitimize Israeli communities set up on land captured in the 1967 war, but it also designates pre-1967 territory as “Israel proper.” So while the international community hadn’t previously recognized Israeli sovereignty over any part of Jerusalem, the resolution actually commits the world to recognizing the western half of the city as part of the state of Israel, making Trump’s campaign promise more feasible than before.

Critics are right that an embassy move could spark demonstrations and perhaps even other forms of retribution, undermining the shaky Palestinian Authority. But Jerusalem has already faced a wave of violence in recent months, and the potential for future clashes isn’t sufficient cause for delay. For the moment, Palestinian Authority President Mahmoud Abbas would probably be able to control any fallout after emerging considerably stronger since last week’s Security Council vote and the Fatah central party elections earlier this month.

Negative reactions may be dampened if the move recognizes Muslim and Palestinian connections to the city. One small site shows how this might work. On the outskirts of Jerusalem, perched on a hilltop with magnificent views, the Tomb of Samuel is a model of interfaith harmony. Jews and Muslims conduct prayers there simultaneously. Scholars who study sacred sites note that it’s the only place on the planet where a functioning synagogue operates underneath a working mosque. The tomb’s low-density population area and relatively minor religious importance for Muslims have helped to preserve the peace. But strong coordination and dialogue between the local Muslim clerics who administer the mosque and Israeli civil authorities who control the Jewish prayer room there as a national park have also been essential to stability …

To read the full post, click here.

 

Dear Congress: You Will Not Solve the Attribution Problem by Creating a Temporary Committee to Investigate the DNC Hack

By Christopher Folk

(Re-published from Crossroads: Cybersecurity Law & Policy | Dec. 19, 2016) According to CNBC, the latest news from Washington indicates that long-time senators John McCain (R-AZ) and Charles Schumer (D-NY) are pushing for the creation of a select committee to ensure that congressional focus is directed at investigating the hacking of Democratic Party emails during the Presidential campaign.

“How about this senators: form a committee to determine why cybersecurity hygiene continues to receive short-shrift.”

This is fascinating. Two years ago we witnessed the Office of Personnel Management (“OPM”) as it tried to perform damage control in the aftermath of a large-scale exfiltration that affected upwards of 22M records.  Then, as now, the problem is exacerbated by attribution or rather the lack thereof.  For the non-technical types, attribution is “figuring out who the bad guys were (or are).”  In the case of high-profile incidents such as the Sony Hack or the OPM data breach, we may hear rumors here and there, some coming from unnamed sources, providing cryptic comments such as “most likely the hacking originated from a nation-state” or other such similar verbiage.  What that really means is that either the methods employed or the ability to operated undetected for a given period of time indicates that the level of sophistication required could only have been performed by a large state-based actor with significant resources and expertise (and patience).

So, going back to the OPM data breach, do we know who did it?  There have been the usual suspects but nothing definitive stating where the attacks originated from and who carried them out.  We are talking about sensitive information related to background investigations, very detailed and potentially damaging intelligence that was exfiltrated from within the government itself.  So, we still have not ascertained who was responsible and certainly have not launched public counter-strikes. Even after a lengthy investigation and committee hearings and testimony from OPM personnel, yet we should somehow infer that the DNC investigation will bear more fruit?

When you look at the OPM hearings and see the level of subterfuge employed by OPM to attempt to diminish the magnitude of the breach you begin to realize that these committee hearings become a lengthy and arduous process. In the end these hearings produced reports such as the “OPM Data Breach: How the Government Jeopardized our National Security for More than a Generation” which took only a year to compile and which comes in at just over 240 pages.  In the final analysis after all the hearings, the testimony, and this voluminous report, it still seems that we cannot definitively say exactly “who” did this.  However, we are supposed to believe that if we put together a special “single-purpose cyber committee” whose sole mandate is to investigate the DNC hack and “put focus on it” we will somehow get answers to our questions?

How about this senators: form a committee to determine why cybersecurity hygiene continues to receive short-shrift.  To determine why sensitive data continues to remain unencrypted and transmitted over insecure mediums.  To determine why the human element continues to be the weakest link in the cybersecurity chain and yet we continue to put time and effort into forming committees instead of allocating money to training and educational efforts.  If I thought this “committee” was going to get to the bottom of the DNC hack and tell us once and for all exactly “who” was behind this and develop meaningful recommendations to prevent future breaches then it would seem worthwhile; however that is highly unlikely …

To read the whole article, click here.

Christopher Folk is a candidate (2017) for both a master’s in Forensic Science and Technology (Syracuse University) and a Juris Doctor degree (SU Law). Also a software engineer, Folk’s legal externship is with Chertoff Group company Delta Risk, where he focuses on legal and policy analysis pertaining to US and International cyber law.