Corri Zoli to Attend UNSC Counterterrorism Special Meeting on the “Madrid Principles”

Zoli_UN_MeetingINSCT Director of Research Corri Zoli has been invited to attend a special meeting of the United Nations Security Council Counter-Terrorism Committee on Dec. 13, 2018, in the Economic and Social Council Chamber, UN Headquarters, New York City. The meeting will discuss “Security Council Resolution 2396 (2017): A Review of the Madrid Principles,” a document that provides guidance to member states on stemming the flow of Foreign Terrorist Fighters (FTFs) across national borders, while staying compliant with human rights laws and norms.  

In particular, explains UN Security Council Counter-Terrorism Committee Chair Gustavo Meza-Cuadra in his letter of invitation, the special meeting will tackle the issue of FTFs “in light of the evolving threat posed by foreign terrorist fighters, particularly FTF returnees and relocators and their family members.” The review of the Madrid Principles also will examine gaps that may hinder states’ abilities to detect, interdict, prosecute, rehabilitate, and reintegrate FTF returnees and their families, as well as identify good practices.

Among the working sessions will be those on “border security and information-sharing”; “global research perspectives on cross-cutting trends”; “countering incitement, recruitment, and violent extremism”; and “judicial measures, international cooperation, and prosecution, rehabilitation, and reintegration strategies.” Invited discussants include Edmund Fitton-Brown of the Analytical and Sanctions Monitoring Team of the ISIL and Al-Qaida Sanctions Committee; Elisabeth Neugebauer, Deputy Special Representative, International Criminal Police Organization; and Tanya Mehra, International Centre for Counterterrorism, The Hague.

The Madrid Principles were developed from a July 2015 special meeting hosted by the Government of Spain and co-organized by the UN Counter-Terrorism Committee Executive Directorate (CTED), with which INSCT collaborates on counterterrorism prevention. This Madrid meeting was attended by member states from every region of the world, as well as representatives of international and regional organizations, universities, and civil society groups. Discussions and technical sessions identified 35 guiding principles that were subsequently adopted by the Security Council and offered as a practical tool for use by member states in their efforts to combat terrorism.

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Three Men and a Body: Media in the Age of the Strongman

By David M. Crane 

(Jurist | Oct. 31, 2018)  The blaming of attempted bombings of prominent democratic leaders and opponents of President Trump on a vindictive press by him at a public rally casts a dark shadow over a bleak landscape where once the freedom of the press was a corner stone of our democracy.  Declaring the press in the United States an “enemy of the people” rings reminiscent of attacks on the press in Germany of the 1930’s.

“Though dictators throughout history attack and then silence a critical press, the 21st century has seen the rise of the strongman, particularly in the past few years and with it more direct and violent attempts to muzzle the media.”

Around the world, strongmen have been attacking the concept of freedom of the press, as well as members of the press themselves. Putin has blatantly singled out members of the Russian press critical of his policies and shot them, poisoned them, run them over, and even thrown them off buildings.

Recently the direction by the Crown Prince of Saudi Arabia, Mohammed bin Salman (MBS), to kill Washington Post reporter and commentator Jamal Khashoggi is a further attack on members of the media who criticize a strongman. The crisis that followed quickly drew in three men, all arrogant and disdainful of the law, hypocritically mouthing words they did not believe in order to quell the outrage, to support each other, or to gain political advantage. Those men are MBS, Erdogan, and Trump.

Though dictators throughout history attack and then silence a critical press, the 21st century has seen the rise of the strongman, particularly in the past few years and with it more direct and violent attempts to muzzle the media. With a surprising rapidity, the stepping forward of nationalistic politicians onto the world stage where they used to dwell on the fringes of society, mainly in the political shadows, has caught liberal democracies off guard. Such thinking seemed to be behind us, not any longer.

The brutal murder of Jamal Khashoggi is indicative of this new inward thinking nationalism and it’s hatred of the press not seen since the late 1920’s and early 1930’s. Using terms such as fake news as a shield; the likes of Trump, Putin, Li, Erdogan, Duterte, MBS, among other strongmen, have begun to move societies against the media. With chants led by the President of the United States, “CNN Sucks!” augers poorly for American society and the world as a whole.

The loss of moral leadership by the United States under Donald Trump has enabled the increased pressure and attacks on a critical press. These various strongmen feel that being held accountable is no longer a viable threat to their political position at home or abroad. Essentially the rule of law, so essential to the maintenance of international peace and security, is no longer a deterrent.

The American President is pushing away legal, diplomatic, and political norms that have been cornerstones to that peace and security since 1945. The threat of pulling out of key geopolitical organizations and treaties such as the World BankWorld Trade Organization, the INF treaty, even NATO, have turned the early 21st century into a kaleidoscopic world where nothing matters and old friendships and allies are declared threats. We tend to forget Trump calling Canada, Canada, a national security threat.

Declaring oneself a nationalist in a global economy and international community sounds like a certain German chancellor in the 1930’s who founded and came to power with a nationalist political party. That chancellor did two things very quickly on seizing power, go after a vulnerable minority blaming them for the nation’s problems and attacking and muzzling the German press. Dictators do this as a matter of course. Stalin, Mussolini and Mao Tse Tung used the same tactics …

Read the complete article.

Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

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Corri Zoli Discusses Mail Bomb Attacks & Domestic Terrorism on Spectrum News

Are Recent Suspicious Packages an Act of Political Terrorism?

(Spectrum News | Oct. 25, 2018) One after the other, suspicious packages were delivered to the media and liberal leaders, many in New York City.

“This is a very painful time in our nation. It’s a time when people are feeling a lot of hate in the air,” said Bill de Blasio, (D) New York City Mayor.

Some are calling it domestic terrorism and others call it political terrorism.

“Someone one who might be trying to use scare tactics or trying to enhance political passions, make partisan divisions worse,” said Corri Zoli, Institute for National Security and Counterterrorism Research Director.

It is a scary thought for a country largely functioning on a two-party system.

Zoli said, “It’s not accurate to characterize opposition groups as enemies in a two-party system that structures the United States.”

But, is that what we’re seeing?

In 2017, the target appeared to be on the other side of the aisle, members of Republican Congressional baseball team.

“Is this a retaliatory attack for those attacks? This is the problem with polarization. You get these kind of escalating dynamics…clearly this is an expression of partisanship gone awry,” said Zoli …

Watch the whole segment.

 

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The House We Built: How the US Walked Away from Decades of Accountability

By David M. Crane

(Jurist | Sept. 22, 2018) JURIST Guest Columnist David M. Crane, the founding chief prosecutor of the international war crime tribunal called the Special Court for Sierra Leone, discusses America’s decreasing role in maintaining the international order and the Trump Administration’s recent attacks on the International Criminal Court…

As the world turns inward, nationalistic perspectives are on the rise. It feels like 1930, where the international order laid out in the Versailles Treaty, was about to be turned upside down. Today, something terrible is lurking around the corner, sitting in the shadows of anarchy and fascism. The rule of law tentatively steps forward afraid of what comes next. In this kaleidoscopic age, we do not know. All the international institutions laid out after World War II are being threatened by strongmen who seek their own personal power over the backs of citizens who seem too addled by consumerism or in the depths of social media. It has become a dog eat dog world and the dogs are the new nationalistic strongmen who have risen to power in an astonishingly short period.

The cornerstones to our system of international peace and security, the United Nations, the North Atlantic Treaty Organization, the World Trade Organization, and the European Union among others, are faced with the reality of a diminished role by the United States in ensuring that the rule of law remains the fundamental currency of this international order. Since 9/11, the United States’ role in international peace and security has been more of a threat to peace than as a leader and champion of the rule of law. No more so than today.

By way of example related to this diminished role, the North Carolina Commission of Inquiry on Torture is about to release its report on 27 September regarding the depths of the horror that was the Retention, Detention, and Interrogation Program led by the current director of the Central intelligence Agency. After the planes crashed into the buildings on that fateful September day, the United States began to slip down a slope that had no bottom. The world recoiled in horror at subsequent American policy and actions related to its misguided “war on terror.” A blind and bleeding giant, the Americans swung the club of illegality about the world trying to kill the fly that was international terrorism. The United States has never really recovered from this mindset and has lost all credibility as a nation of law.

The 21st Century has not been good to the United States and its Presidents have stumbled along trying to adjust to a new world order that they were not prepared for. They have shown the world, particularly its possible adversaries, that today it would have to move on without American leadership in maintaining the delicate balance of peace and security. American strength and resolve to uphold the rule of law was once the fulcrum that balanced the forces of good and evil that the international community struggled with during the Cold War and the kaleidoscopic age we now live in.

With the election of Donald Trump as President of the United States, this slide into oblivion has accelerated. Unstable and petulant with no respect for law, he has thrown gasoline on the fire started by George W. Bush and the war on terror. Barack Obama, aware of this slide, drank the cool aid of the war on terror and did little to halt the movement away from global leadership on the rule of law. The arbitrary use of drones throughout the world and extrajudicial killings of human beings deemed “terrorist” is a good example of how much he embraced his predecessor’s policy. The fact that Guantanamo remained open under his watch moved the United States further down the dark and slippery slope of lawlessness.

Throughout this period, the rest of the world (minus China and Russia) focused on accountability and creating a system of international criminal law that was largely built by the United States. Initially begun at Nuremberg, the Americans were the leading advocates of fair and open tribunals to try those who committed war crimes, crimes against humanity, and eventually genocide. In the 1990’s, but for American leadership, the likes of the courts set up for Yugoslavia, Rwanda, Sierra Leone, and Cambodia, even the International Criminal Court, would not have happened. We were the master carpenters that built the house that is modern international criminal law, and yet we have just given away the keys to that house!

Recently, the United States once again has decided to drive a stake into the heart of international criminal law and accountability by attacking the International Criminal Court (ICC). Led by the National Security Advisor John Bolton, the Americans laid out a breath taking policy that would have shocked the original architect of the house the United States built at Nuremberg, Justice Robert H. Jackson.

Bolton has always wanted to destroy the ICC, beginning with the famous “Bolton Letter”, which practically speaking pulled the United States out of any meaningful relationship with the ICC. Though modified over time, the US has never been a leader in ensuring that the ICC succeeds. That house we build was left to others to maintain and protect, but we always kept the key, the key of United States’ adherence to the rule of law …

Read the whole article.

Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

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The High North at the 2018 NATO Summit: A Missing Puzzle Piece?

By Kamil Szubart

On July 11-12, 2018, NATO’s head of states and governments met in Brussels to discuss the current security threats to NATO member states. The Brussels Summit was the third meeting, after NATO summits in Newport and Warsaw, leading to a security adaptation of the NATO Alliance to new strategic challenges in the Euro-Atlantic area after the 2014 Russian aggression against Ukraine.

“Despite that China has systematically increased its attention to the High North, Russia will remain the main military competitor for the Nordic states and entire NATO in the region in the nearly future.”

At the 2018 NATO Summit, politicians discussed fair burden-sharing demanded by US President Donald J. Trump, and they have agreed to reshape the NATO command structure by establishing two new operational commands—in the United States at Norfolk, VA, and in Germany at Ulm—to secure military movements across the Atlantic and within Europe. They also boosted cooperation between the European Union and NATO, confirmed NATO’s engagement in Afghanistan, launched a new training mission in Iraq, and balanced the Alliance present on both NATO’s eastern and south flanks.

All of these points were placed in the Brussels Summit Declaration, a 79-point document highlighting all decisions approved at the Summit. Unfortunately, not too much attention was given to NATO’s northern flank. NATO leaders kept up its 360° approach that applies to all geographical directions, including NATO’s northern flank. They also confirmed fruitful cooperation with Finland and Sweden. Both countries were invited for the Summit by NATO Secretary General Jens Stoltenberg and looked forward to strengthening this cooperation (Article 52 of the Declaration).

But nothing was mentioned of the Arctic region, commonly known as the High North, which is a vital area for three European NATO members—Norway, Denmark, and Iceland—as well as for Canada and the United States, which are members of the Arctic Council. (The Arctic Council is composed of eight members: Canada, Denmark (representing Greenland and Faroe Islands), Finland, Iceland, Sweden, Norway, Russia, and the US.)

Despite the fact that the High North is seeing currently peaceful cooperation, the growth of importance of the region and military capabilities of Russia could change this harmony. Therefore, Russian military presence in the High North demands a coherent response from the entire Alliance. Touching on this issue would help the Nordic partners, Canada, and the US strengthen security and prevent a prospective conflict in the region.

Russia’s Increased Presence in the High North

Europeans—ever since the Russian annexation of Crimea and the outbreak of violence in Donbas—have observed the rise of Russian assertiveness and hostile activities against NATO alongside its eastern and northern flanks (including the High North). Russia has systematically increased its presence in the High North, focusing on the dispute on the Arctic continental shelf about natural resources and securing maritime routes and arming the region.

Russia’s militarization of the High North had accelerated dramatically since 2014 when the Russian Ministry of Defense established the Northern Fleet Joint Strategic Command based near Murmansk in the Kola Bay, which plans and commands military operations in the Arctic. On Nov. 30, 2016, the Russian Ministry of Foreign Affairs released the Foreign Policy Concept (FPC), replacing a 2013 document. Authors of the FPC have highlighted the strategic importance of the Arctic to Russia and its foreign and security policy and indicated that the area could witness the increase of international competition shortly. The FPC also completes the Russian military and naval doctrines emphasizing the necessity to increase Russia’s military presence in the High North.

Russia has systematically increased military expenditures to strengthen both conventional and nuclear forces, which could be used in a prospective conflict along its northern coast and on Arctic islands. The Russian Ministry of Defense has particularly developed strategic submarines with Bulava missiles (putting into service Yasen-class submarines); strategic bombers (the TU-160); and Anti-Access/Area Denial (A2AD) measures compose of S-300 and S-400 missile systems to secure Russian military facilities in the region.

Alongside strengthening both conventional and nuclear capabilities in the region, Russia has regularly conducted military exercises of its Arctic troops, subordinating to both Murmansk and Arkhangelsk Military Oblasts. Morever, Russia has built and equipped four Arctic brigade combat teams (BCT), roughly 16,000 troops combined.

What Next for NATO, Scandanavia, and the High North? Some Recommendations

Despite that China has systematically increased its attention to the High North, Russia will remain the main military competitor for the Nordic states and entire NATO in the region in the nearly future.

On the eve of potential conflict in the Arctic, Russia will not respect the neutrality of Sweden and Finland due to their strong ties with the West and its politico-military institutions. It is highly possible that potential conflict on the Arctic would happen in northern Norway, Sweden, and Finland. Therefore, it is necessary that NATO influence Sweden and Finland to join the Alliance in the nearly future. Denmark and Norway should also support the narrowing of ties between NATO and NORDEFCO and cooperation between NATO and the EU.

Conversely, NATO should remain a cornerstone of Denmark’s and Norway’s security and defense policy regarding the High North. Both countries need to strengthen the capacity of the Danish and Norwegian armed forces and their contribution into NATO’s collective defense, such as the enhanced Forward Presence in the Baltic States and Poland (eFP) or the tailored Forward Presence in Romania (tFP). Moreover, both countries need to invest more in their military expenditures (Norway currently spends 1.61% of its GDP on defense; Denmark only 1.21%.)

By involving in the enhanced Forward presence (eFP) in the Baltic States and Poland, Norway and Denmark will become credible allies to other NATO member states, and this strategy will help both countries pursue their national interests regarding the High North.

Neither Denmark nor Norway unilaterally should pursue a response to growing Russian assertiveness in the High North; instead, they should fully implement the deterrence and defense strategy (2D) and the NATO’s 360° approach. Therefore, the Alliance must keep its strategic engagement in all NATO’s flanks, including the High North. However, at the same time there is a need to continue dialogue with Russia in the framework of the NATO-Russia Council (NRC) and the Organization for Security and Cooperation in Europe (OSCE). Leadership from the United States is essential for Denmark and Norway to implement NATO’s enhanced northern presence, and both countries should keep and develop strategic ties with the United States.

Furthermore, to conduct effective operations in the High North, the Alliance urgently needs to adopt an Arctic strategy and ensure a common approach to the region’s security challenges. Although NATO decided to deploy four battle groups to NATO’s eastern flank and increase its military presence in Romania and Bulgaria, NATO’s potential to deter Russia remains insufficient. Regarding that, the Alliance must rapidly boost its military presence on its northern flank and have troops ready to be deployed to the High North, such as the Very High Readiness Joint Task Force (VJTF) and the NATO Response Force (NRF).

Maintaining the ability to a swiftly deploy the VJTF and the NRF troops to the region is crucial to improving NATO’s capacity to deter Russia effectively. Therefore, both the VJTF and the NRF troops must practice conducting operations in adverse weather conditions and severe environments, something that is part of the upcoming military exercises called Trident Juncture 2018 in Norway (October and November 2018).

Finally, all NATO decisions strengthening the NATO’s military presence in the High North must ensure military transparency throughout the 2011 Vienna Document and the Open Skies Treaty.

INSCT Research and Practice Associate Kamil Szubart was a 2017 visiting fellow at INSCT, via the Kosciuszko Foundation. He works as an analyst for the Institute for Western Affairs in Poznan, Poland, where he is responsible for German foreign and security policy, transatlantic relations, Islamic threats in German-native-speaking countries and topics related to NATO, CSDP, OSCE, and the UN. Currently, he is working on a doctoral dissertation examining US-German relations in the field of international security since 9/11.

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Yemen: A Crime Against Us All

By David M. Crane 

In a bombing, the dust settles slowly over the strike zone. What emerges are grey images, living beings neutralized to monochrome. Bleeding from the ears, deaf, and dumb from the concussions the survivors walk about in a haze. These zombies are the first things you see staggering down the street away from the rubble behind them, rubble that is the tomb of loved ones, neighbors, and friends.

“For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning.”

There is no militarily necessary reason for the destruction, the strike carried out by one of the combatants who knew or should have known about the laws of armed conflict. The rules do not matter in most conflicts of the 21st century. Welcome to the dirty little wars that nip at the heels of civilization, a civilization grown weary of it all and who look the other way. It is just too hard to marshal enough political will to do something.

A powerless United Nations can do nothing other than to help ease the pain of air strikes by caring for the wounded and the terrified refugees. The once proud mandate of restoring international peace and security has changed to maintaining at best that peace and security.

The three nations that could restore that prominence, the United States, China, and Russia are its biggest challenges and all three could certainly live without the paradigm of peace set forth in 1945. All three of those nations over the past years are also the biggest human rights abusers led by strong men.

International Law has evolved over centuries through customary practice and the consent of nations to bind themselves to certain norms. Indeed the day-to-day actions in commerce, trade, and finance all hinge upon these norms. Over time, other norms that declare that human beings have rights to be free from want, fear, and to speak their minds and worship freely are now enforceable and carry an accounting if violated.

From all this just twenty-five years ago, modern international criminal law began. For a decade or so, the rule of law prevailed regarding holding those who commit war crimes and crimes against humanity accountable. Yet we have slipped down a slippery slope. That political will is waning and the use of the law to govern international relations regarding humanity challenged.

In this kaleidoscopic void, dirty little wars flourish like weeds in an abandoned lot. Yemen is one of those weeds thriving in the dusty haze of airstrikes.

The likes of the Yemeni conflict exists but for this condition and circumstance. A surrogate conflict backed by cynical nations vying for power and influence in the greater region that is the Middle East, the possibility of a peaceful resolution hinges on the rule of law. It is not going to happen …

Read the whole article.

 

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Brian Taylor Shows How Putin’s Mentality Shapes Russian Politics

(Re-published from SU News | July 5, 2018) The running joke among foreign analysts is that, despite Russia’s dismal FIFA ranking, it may emerge as the real winner of the World Cup.

Between now and July 15, 2018, millions of fans will flock to various Russian cities, including Moscow, St. Petersburg and Sochi, to watch their national teams compete for soccer’s Holy Grail. Billions more will watch the action on television.

“Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making.”

Although Team Russia has dialed up some surprise victories, President Vladimir Putin, who has invested more than $13 billion on stadia and infrastructure, seems to have more than soccer on his mind. Those close to him insist he is using the World Cup to foment feelings of national pride, while enhancing his popular standing.

“The World Cup is more important to Putin than you think,” says Brian D. Taylor, professor and chair of political science in the Maxwell School and the College of Arts and Sciences (A&S). “A lot has happened to Russia since 2010, when Putin won the bid to host the tournament—his re-election, the annexation of Crimea, Russian’s intervention in the Syrian war. The games come at a time when Russia’s standing in the world is precariously low.”

Taylor speaks with authority. A scholar of Russian and comparative politics, he is the author of “The Code of Putinism” (Oxford University Press, 2018), a new book about how Putin’s mentality shapes his country’s politics. As Russia teeters on the brink of economic stagnation and international ostracism, Taylor argues that mega events, such as the World Cup and the Winter Olympics in Sochi, four years earlier, have strong political ramifications. “Merely hosting the World Cup is a major coup. It shows Russia still matters,” he says.

Most of Taylor’s career has been a warm-up for “The Code of Putinism,” which he began researching five years ago. Drawing on hundreds of interviews and speeches, Taylor thinks Putin’s messianic vision could be Russia’s undoing.

Speaking by phone from his office in Eggers Hall, the bespectacled, clean-cut author riffs on how the code motivates Putin’s decisions and influences the way he and his allies view the world. “The code of Putinism has molded Russia’s political system, along with its economy and foreign policy, since Putin’s election as president in 2000,” says Taylor, who also authored State Building in Putin’s Russia: Policing and Coercion After Communism (2011) and Politics and the Russian Army: Civil-Military Relations, 1689-2000 (2003), both from Cambridge University Press. “Key factors of Russian politics—authoritarianism, Putin’s reliance on a small group of friends and associates, state domination of the economy, an assertive foreign policy—owe their existence to the code.”

Golfo Alexopoulos, director of the University of South Florida (USF) Institute on Russia, praises “The Code of Putinism” for exposing Putin’s worldview, leadership style and method of governing. “It is critical for Americans to understand Russian thinking and motives, so we can formulate an intelligent Russia policy that advances democracy and global security,” says Alexopoulos, also a history professor at USF. “Dr. Taylor has a deep understanding of contemporary Russia and its historical and cultural legacies.”The basic notion of the code was inspired by Max Weber, an early 20th-century German sociologist. He believed that people are motivated by not only rational self-interest, but also ideas, habits and emotions. Taylor builds on this insight to analyze Putin’s mentality.

In Putin’s case, ideas include statism, anti-Westernism, conservatism and anti-liberalism. “Putin is a great power statist who believes in a strong Russia at home and abroad. He also is a conservative, prioritizing the group over the individual, as well as tradition over change and reform,” says Taylor, who earned a Ph.D. in political science from MIT. “Putin’s Russia is a ‘service state’—not one that provides services to its citizens, but one that expects citizens to serve it.”

Habits are unconscious reactions to stimuli, rather than deeply considered ideas. Putin’s key impulses involve control, order and loyalty. “Many of his habits were cemented by the time he joined the KGB in the ’70s,” Taylor says. “He and his aides made their careers as bureaucrats, not politicians, so they are used to hierarchical organizational structures. Witness Putin’s early presidential slogan: the ‘vertical of power.’”

Emotions often get short shrift from social scientists trying to decipher political behavior, but Taylor insists they are integral to Russian decision-making. “Emotions relate to how Putin sees Russia,” he says. “They include feelings of resentment, vulnerability and loss of status, stemming from Russia’s perceived humiliation after the Cold War. Putin believes it is time to redress these feelings and gain back the respect of the world.”

That the Putinist code is making inroads into classrooms is proof Taylor is onto something. Lauren McCarthy, associate professor of legal studies at the University of Massachusetts Amherst, says “The Code of Putinism” is a must-read for anyone wanting to understand how Russia operates. “Once you immerse yourself in the habits, emotions and ideas that make up Putinism, everything that happens in Russia makes more sense,” says McCarthy, who teaches a course on Russian politics, law and society. “My students [who study the code] walk away feeling like they know how to interpret Russian politics and Putin, himself.”

Thomas Keck thinks Taylor is uniquely qualified to assess the return of Global Russia. “He is a leading expert on Russian politics, particularly the state’s military and law enforcement apparatus,” says Keck, professor of political science and the Michael O. Sawyer Chair of Constitutional Law and Politics in the Maxwell School and A&S. “Brian is a popular but demanding teacher, as evidenced by his courses on Russian politics and civil-military relations. His book could not be more relevant.”

Not since the Cold War has interest in Russia bordered on obsession, if not paranoia. Doubtless that the World Cup will help burnish the country’s newfound swagger … MORE

Teacher-scholar Brian Taylor Shows How Putin’s Mentality Shapes Russian Politics

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The Future of the US Military Commissions: Legal and Policy Issues

By the Hon. James E. Baker & Professor Laura A. Dickinson

The ongoing operation of the US military commissions at Guantanamo Bay has posed significant challenges for multiple US administrations. Originally established by President George W. Bush in the aftermath of 9/11 to try noncitizen terrorism suspects, the commissions have been plagued with a variety of problems. Cases have languished, and no contested commission trials have become final, including the 9/11 case itself—for which a trial has not yet begun. (Military commission proceedings have resulted in 8 convictions pursuant to pleas, however). Much of the law related to commissions remains unsettled and in dispute. For example, it is unsettled precisely which crimes can be tried before the commissions.

“The Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions.”

Meanwhile, the commissions are operating against a backdrop of changing policies regarding the detention facility at Guantanamo Bay. President Trump recently reversed the Obama Administration’s stated policy of closing the facility, where participants in the military commissions system are housed along with other terrorism detainees. As of May 3, there are 40 detainees held at Guantanamo, 4 of whom have been deemed eligible for transfer to other countries. (They cannot be moved to the United States, due a legislative ban). Of the remainder, 10 have been charged within the commissions and are in proceedings at various stages, and 26 have neither been charged nor have been deemed eligible for transfer. Although President Obama did not bring new detainees to Guantanamo, and President Trump has not done so to date, President Trump has stated in a recent Executive Order that “the United States may transport additional detainees to US Naval Station Guantanamo Bay when lawful and necessary to protect the Nation.”

To grapple with some of the tough legal and policy issues facing the military commissions moving forward, the American Bar Association Standing Committee on Law and National Security and the George Washington University Law School convened a diverse group of 24 national security law experts at a Workshop on Dec. 7, 2017. The Workshop was not-for-attribution, but a Report summarizing the discussion at the event has now been made public. As one would expect (and hope) from such a meeting, participants expressed a wide range of views, but there were also some key areas of consensus. Here is a brief overview of the Report’s conclusions.

Overall Approach to Commissions Moving Forward: Reform or Repeal?

Workshop participants were divided on the wisdom of establishing the commissions in the first place–with some supportive of the goals underlying the military commissions and others critical of the entire endeavor as an unnecessary diversion from time-tested Article III courts and the regular military justice system. Yet all agreed that

  • The commissions are not working as intended; and
  • The commissions should either be reformed or terminated.

Options for improving US military commissions

The Workshop considered a variety of reforms to the commissions. Although many participants did not think that the commissions should continue, participants identified a series of reforms that merit consideration and review, in particular

  • Expand and/or clarify the role of the commissions’ Convening Authority using the authority and role of convening authorities within the US military justice system as a model.
  • Change and expand the eligibility rules for trial judges and change the current judicial pay and tenure structure to allow both civilian and military judges to hear commission cases (as opposed to the current rules, which permit only military judges to serve).
  • Mitigate or minimize procedural and appellate delay by removing the death penalty as a sentencing option.
  • Enhance or eliminate the role of the Court of Military Commissions Review. This is a part-time court, with judges paid by the hour, that hears cases of first impression, interlocutory appeals, and emergency writs without settled law. A standing court could more expeditiously process these appeals. Alternatively, disbanding the Court of Military Commissions Review in favor of direct appeal to the D.C. Circuit would more rapidly result in settled law and precedent.
  • Review the classification and declassification procedures (which are necessary, but slow) for efficacy.
  • Provide improved “clean” facilities for secure attorney-client communications.
  • Establish a central and timely website and clearinghouse for commission filings and information to enhance transparency, public knowledge, and confidence in the commission’s proceedings.

Alternatives to Commissions

Participants also considered alternatives to commissions, including prosecution

  • In-theater before commissions or courts-martial;
  • By host-government courts;
  • By third-country courts;
  • Before hybrid domestic-international courts;
  • Within the US military justice system; and
  • Before Article III federal courts. 

In addition, there was a notable degree of support for the following conclusions:

  • Most participants expressed the view that US national security and justice would be better served by trying terrorism cases in Article III courts, instead of before commissions as they are currently constituted.
  • Many participants recommended that remote plea-bargaining before Article III judges via videoconference is an option that should be considered for Guantanamo detainees.
  • There was consensus that the prohibition on transferring Guantanamo detainees to the United States should be repealed to afford the Executive Branch flexibility in addressing terrorism cases.

New Entrants

As indicated by the recent Executive Order, the possibility of bringing new detainees to Guantanamo, and potentially charging them in the military commissions system, is now an option. Yet most participants agreed that bringing new entrants into the current military commissions system would be problematic. Specifically,

  • Most participants—indeed, all but one—agreed that bringing new entrants not currently detained at Guantanamo, such as ISIS members, into the existing commissions system at Guantanamo Bay would compound existing challenges, such as those involving prosecutorial and appellate delay, cost, and both public and international credibility.
  • Most participants also agreed that new entrants would also bring potential additional challenges, such as litigation addressed to detention authority under the existing 2001 Authorization for the Use of Military Force, the scope of the 2009 Military Commissions Act (MCA), the co-mingling of detainees, and/or the exact crimes with which the detainees are charged.

The “End of Conflict” and a New AUMF

Finally, participants identified a series of issues related to defining the “end of conflict” with respect to some or all of the conflicts during which detainees have been transferred and held at Guantanamo, as well as issues that could arise if there is a new authorization to use military force to provide clearer and more specific authority for the use of force against ISIS and other terrorist groups. Specifically,

  • Many participants expressed the view that the US should better define what counts as the end of conflict and how the operations of jus post bellum should be carried out. Such definition could also encourage and facilitate the plea process, enhance the commissions’ credibility, and minimize the risk of inconsistent or adverse judicial or congressional definitions.
  • There was consensus that, until and unless there is a declared “end of conflict,” the current Periodic Review Board process for detainees should continue. This process assesses whether continued law-of-war detention is necessary to protect against a significant threat to the security of the United States.
  • Most participants agreed that a new AUMF would reduce the legal grounds for litigation challenging the President’s authority to detain new persons. However, participants could not agree on whether a new AUMF should include express detention authority and/or a sunset clause.

In sum, the Workshop Report offers a detailed, non-partisan, legal and policy analysis and recommendations with respect to the wide range of issues that currently face the Military Commissions and that will remain salient if the Trump Administration ultimately decides to expand the Commissions’ use.

The Hon. James E. Baker is INSCT Director and Chair of the ABA Standing Committee on Law and National Security. Laura A. Dickinson is Oswald Symister Colclough Research Professor of Law at George Washington Law.

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Carpenter v. US: Gorsuch’s Dissent Re-Ignites Criticism of the Third-Party Doctrine

By Lauryn Gouldin

One interesting aspect of the Court’s decision in Carpenter v. United States is Justice Neil Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly applied and long-criticized third-party doctrine, attentive readers will see that the result is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision, with Justice Gorsuch standing alone. 

“Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a ‘reasonable expectation of privacy.’”

Chief Justice John Robert’s majority opinion, joined by the Court’s four liberal justices (justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), marks a significant narrowing of the third-party doctrine—significant, in part, because it is the first case where a majority of the Court acknowledges that the doctrine has meaningful limitations. But it is also a measured decision. Many encouraged the Court to use Carpenter to eliminate the third-party doctrine altogether. The majority, however, clearly declined to go that far and claimed that its decision was “a narrow one.” 

Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito writing together (and separately) are clearly persuaded that the government conduct in this case—the order to a cell phone company to search company records for data collected about a subscriber’s past locations—was not a “search” under the meaning of the Fourth Amendment. 

Justice Gorsuch’s take on that basic question is different. Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a “reasonable expectation of privacy.” Justice Gorsuch clearly disagrees with the other dissenters about the possibility of a Fourth Amendment violation on the facts presented. In his dissenting opinion, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that “[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.” Further, he agrees with the majority that “the rationale of Smith and Miller is wrong.”

Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments. Justice Gorsuch even suggests these arguments might have persuaded him to rule in Carpenter’s favor (“In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.”) Justice Gorsuch says, explicitly, that it is “entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

Lauryn Gouldin is Associate Professor of Law at Syracuse University College of Law.

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The Stain of Torture

By David M. Crane

(Re-published from The Jurist | June 26, 2018) June 26th is the United Nations’ International Day in Support of Victims of Torture. Its purpose — to denounce the crime of torture and proclaim solidarity with its survivors — is in stark opposition to the policy of my government.

As a former Chief Prosecutor of an international war crimes tribunal in West Africa, I walked the countryside, interviewing hundreds of victims — often people who had been tortured by their own government. The atrocities scarred them physically, emotionally, and psychologically for life.

But they shared their stories enthusiastically with our team, willing to relay the horror in order to receive human empathy, long after giving up hope of finding anything resembling justice.

Having prosecuted the officials of other governments for torture, I now find myself in a United States increasingly identified with torture and cruelty. Intensifying torture was presidential campaign rhetoric. A person who oversaw waterboarding in black site prisons is promoted to lead the CIA. Children are removed from their families as they flee gang violence. The U.S. reportedly now plans to leave the UN Human Rights Council, although a member has never before departed that body voluntarily.

How Did We Get Here?

A leader in building the post-World War II consensus against torture and for the rule of law, the United States chose a path of lawless brutality after the horrendous crime of 9/11. Lashing out broadly at Muslims, it threw aside its own rules and embarked on the rendition, detention and interrogation program (RDI).

Our government embraced torture, long known by interrogation professionals to be counter-productive. It did so as an attempt at payback, out of anger. Weak justifications defied logic, morality, and international legal norms that had stood for decades.

Two Libyan victims of the RDI program, Abdul-Hakim Belhaj and his wife Fatima Boudchar, exemplify how far the U.S. moved to the dark side. They were on their way to the U.K. to seek asylum as opponents of the Gaddafi regime. With intelligence from the U.K., the CIA detained them in Thailand and tortured them: painful stress positions, drugs, and vicious beatings. Boudchar was several months pregnant.

From Thailand they were rendered to Libya, to the hands of their enemies, where they suffered further torture. Ms. Boudchar was released from prison just three weeks before she gave birth.

Fourteen years later, the British Prime Minister finally issued an apology for the U.K.’s role in the couple’s rendition and torture, a crime led by the United States. Stating that her country had contributed to the couple’s capture, Teresa May admitted “neither of you should have been treated this way,” and apologized unreservedly.

Less than a month later, the European Court of Human Rights also repudiated torture. It delivered judgments against Romania and Lithuania, which both hosted secret CIA torture prisons, finding this supporting role a violation of the European Convention on Human Rights.

In stark contrast, at the same time such moral progress was occurring across the Atlantic, the U.S. confirmed a key figure in the RDI program to lead the CIA. Gina Haspel oversaw detention and torture at a black site occupied by Abd al-Rahim Al-Nashiri, the detainee whom the European Court said was subject to “an extremely harsh interrogation regime.”

What Are Citizens to Do When Their Government Doubles Down on its Torture Record?

I am part of one attempt to answer that question and give the survivors a safe space to tell their stories. I am a Commissioner of the North Carolina Commission of Inquiry on Torture (NCCIT). As part of the RDI program, the CIA used contractors and public facilities in North Carolina to move victims around the world to be tortured. Now local citizens are demanding to know how and why this was allowed to occur …

Read the whole article.

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