Gorsuch: A Justice Concerned with the Separation of Powers is the Right Man at the Right Time

By Tara Helfman

On the evening of January 31, 2017, the steps of the Supreme Court resembled a frantic game of Mad Libs. Clusters of protestors had gathered in front of the high court to await President Trump’s nomination of a successor to the vacancy left by the passing of Justice Antonin Scalia almost one year earlier. Bundled against the cold, they held fill-in-the-blank signs that spoke more eloquently to the politicization of the nomination process than any stem-winder ever could:

“OPPOSE ________”
“Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers.”

But that night, a president who had won office in part by promising Americans the best of everything, from the “best wall” on the border with Mexico to the “best deals” with our trading partners, delivered on one of his campaign promises. “When Justice Scalia passed away suddenly last February,” President Trump announced, “I made a promise to the American people: If I were elected president, I would find the very best judge in the country for the Supreme Court.” The hyperbole is excusable: Neil Gorsuch is certainly one of the best jurists.

His educational background is impeccable: a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford, where he was a British Marshall Scholar. His professional background is unimpeachable: clerkships on the D.C. Circuit and the United States Supreme Court, years in private practice, and a stint at the Department of Justice as deputy associate attorney general. And for the last 10 years, Gorsuch has served on the Tenth Circuit Court of Appeals, where he has earned a reputation for uncompromising textualism, rigorous originalism, and lucid, engaging judicial opinions.

None of this mattered to the Sharpie-wielding protestors on the steps of the Supreme Court, who finally had the proper noun they needed to finish their posters. Nor does it seem to matter to the Democratic leadership in the Senate. The fact is that, whoever the nominee and whatever his credentials, the battle lines in the struggle over Scalia’s successor had been drawn long before the nation ever heard the name Neil Gorsuch. They had been drawn almost a year ago, when Senate Republicans refused to give Judge Merrick Garland, President Obama’s nominee to the vacancy, a hearing.

Article II of the Constitution vests in the president the sole power to nominate justices of the Supreme Court, but it vests in the Senate the power to confirm those nominees. When President Obama put Garland’s name forward in a tumultuous election year, Senate Republicans argued that the nomination was more properly left to the next president, whoever that might be. It was a gamble: Denying Judge Garland a hearing might have meant trading a moderate Obama nominee for an activist Clinton nominee. Candidate Trump upped the ante by releasing a list of 21 names from which he pledged to select a Supreme Court nominee.

Indeed, until the late hours of November 8, it seemed that the Republican Senate had overplayed its hand. But when Trump swept the Rust Belt table, Democrats branded the gambit nothing short of grand larceny, the “theft” of a Supreme Court seat that rightly belonged to President Obama’s nominee. To be sure, the Constitution does not require the Senate to give a hearing to every Supreme Court nominee, but why let reality stand in the way of rhetoric? Enter Judge Gorsuch, who is supremely qualified for the job, but whom Senate Democrats are effectively accusing of fencing stolen goods.

That opponents of the Gorsuch nomination have adopted #rememberMerrickGarland as their battle cry has less to do with the comparative merits of the nominees than it does with the procedural corner into which Senate Democrats have painted themselves. In 2013, under the leadership of Harry Reid, Senate Democrats changed the procedure for ending the filibuster of presidential nominees for executive and judicial positions from a super-majority of 60 votes to a simple majority of 51. At the time, some Democrats, including now–Senate Minority Leader Chuck Schumer, resisted the rule change on the ground that it would annihilate any remaining incentives for bipartisan compromise on nominees. They were right: The “nuclear option,” as the rule change was called, has all but pitted the parties against each other in a zero-sum competition over presidential nominations.

Supreme Court nominees were exempted from the 2013 rule so, for the time being, Gorsuch will still need a 60-vote majority to agree to end debate on his nomination (the filibuster prevents the cloture of such debate). At that point, assuming the point is reached, he can be confirmed by what is likely to be a simple majority somewhere in the 50s. Now Senator Schumer is leading the charge in the Senate to resist confirming Gorsuch, citing the “unprecedented strain on the Constitution” unleashed by the Trump administration. In an op-ed in Politico, Schumer explained his party’s position: “[The President’s] actions show a lack of respect for the separation of powers—and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.” For his part, Trump has urged Senate Republicans to push the button and extend the nuclear option to high-court nominees.

Lost in this political arms race is the judicial record of a man whose entire judicial philosophy is predicated on a profound commitment to the separation of powers. Gorsuch’s understanding of this doctrine is not, as Senate Democrats are deploying the phrase, tantamount to wholesale judicial opposition to the Trump agenda. Rather, to Judge Gorsuch, the separation of powers is the very bedrock of political and individual liberty in the United States, the very genius of the American Constitution …

To read the full article, click below …

Patriotic Gorsuch

INSCT Affiliated Faculty Member Tara Helfman is an Associate Professor at Syracuse Law and an expert in international law, constitutional law, and the law of the sea.

SU Panel of Experts to Discuss President Trump’s Immigration Executive Order, Feb. 24, 2017

Action by President Donald J. Trump on immigration policy has been swift. Just a week after his inauguration, Trump issued an executive order (EO) temporarily halting travel from seven Muslim-majority countries. It was immediately met with popular protests, scholarly analysis, and eventually judicial review in the forming of a temporary restraining order (TRO) upheld by the US Court of Appeals for the Ninth Circuit.

“I worry the damage is already done,” says Ken Harper. “I know that some SU departments are seeing a decrease in student and faculty interest.”

Critics contend the Jan. 27 EO wrongly suspended travel for all immigrant and non-immigrant visa holders from the seven countries, including those holding resident alien, student, and business travel visas. The TRO lifted some of these restrictions, but a chilling effect on business and educational travel—including to and from Syracuse University—has been reported.

Trump’s immigration policy continues to evolve rapidly. The president, after resolving to push the original EO through the courts, now appears to be preparing a new executive order; the Department of Homeland Security has issued “guidance memos” that outline plans for “aggressive enforcement of immigration laws”; and confusion about how to implement the original EO continues.

For those confused by Trump’s immigration EO; interested in the legal, social, and political ramifications of Trump’s immigration policies; or even affected by the original “travel ban,” the International Law Society will host an interdisciplinary roundtable on Friday, Feb. 24, 2017, from noon to 2 p.m. in the Empire Lecture Hall, 440 Dineen Hall, SU College of Law.

Speaking at “President Donald J. Trump’s Immigration Order & Travel Ban” will be SU experts from the fields of political science, Middle East studies, immigration law, international law, human rights, and public affairs: Mehrzad Boroujerdi, Chair, Department of Political Science, Maxwell School; Ken Harper, Director, Newhouse Center for Global Engagement; Gary Kelder, Professor, SU Law; Andrew Kim, Associate Professor, SU Law; Stephen Pike, Assistant Professor, Newhouse School; and Corri Zoli, Director of Research, Institute for National Security and Counterterrorism.

SU Law LL.M. students Kseniia Guliaeva and Amanda Freire de Almeida developed the idea for the panel after hearing from friends and colleagues in the wake of the Jan. 27 EO. “Many of us know people personally affected by the EO,” says Guliaeva, a Fulbright scholar from Krasnoyarsk in central Russia. “They have a lot of questions about what is happening, and they pushed us to organize this event.”

Freire de Almeida, from Belém, Brasil, says she has friends from Iran and other countries listed in the EO, some of whom are now reluctant to leave the US to visit family. “I believe that the travel ban has been very chaotic, but I believe that justice will prevail,” she says. When setting up the panel, she and Guliaeva wanted to ensure that many viewpoints would be heard, not just legal. “I hope the discussion will help the audience respect a diversity of views. When critiquing the EO, we can’t just rely on one perspective, we must open our minds in order to reach a common sense opinion.”

Panelist Mehrzad Boroujerdi says he also knows of SU students who aren’t travelling abroad and others reconsidering their decisions to attend the University. The panel, he hopes, will give students and others a more “holistic” view of issues surrounding immigration and Trump’s “travel ban,” although he is skeptical that even a revised order will calm the waters. “The EO was an ill-advised and draconian measure,” he says. “Re-writes will be tried, but if Trump insists on some of the more radical aspects, then protracted legal battles will ensue. Even if it is presented in a revised manner, it will have a chilling effect on research and studies at SU.”

I worry the damage is already done,” says Ken Harper, another panelist. “I know that some SU departments are seeing a decrease in student and faculty interest.” Harper, who works on international student projects, says he is concerned about how new immigration policies will affect SU’s international partnerships. “What better way to cut higher education institutions off at the knees than push international students away. We are in uncharted territory with this administration’s immigration actions.”

“The Jan. 27 EO came at a time of crisis in international affairs over immigration and refugees, a crisis that is testing whether norms and assumptions are sustainable,” say panelist Corri Zoli, putting the US immigration debate into its geopolitical context. “The Office of the United Nations High Commissioner for Refugees estimates that there’s an unprecedented 65 million forcibly displaced people on the move today, including more than 21 million refugees, more than half of whom are children. Many are fleeing conflict zones and rising ethnic and religious persecution in the Middle East and North Africa, while others are escaping from unsustainable economic and political conditions.”

As a young lawyer interested in a career in international law and human rights, Freire de Almeida believes that the strengths of American jurisprudence and separation of powers will balance the president’s executive powers in this case. “The US has a strong judicial system,” she says, “and you just can’t rely on presidential orders to create law.” Guliaeva, however, declined to predict what path Trump’s immigration policies will follow. “I will be able to answer that question with more authority after attending the panel discussion on Friday!” she says.

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.

A Need to Be Responsive: Corri Zoli Speaks to Syracuse.com About the Trump Immigration EO

Trump immigration order: Is it a Muslim ban? What’s the case for it?

(Syracuse Post-Standard | Feb. 2, 2016) The partisan furor over President Donald Trump’s executive order on immigration, the problems caused by its rushed implementation and the campaign rhetoric that preceded it are drowning out discussion of the policy itself.

“Trump has an uncanny ability, in part through his ‘brute force’ use of language, to force difficult conversations.”

The executive order halts for 90 days the entry of immigrants and non-immigrants from seven nations – Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen. The countries are not named in the order. They were identified as “countries of concern” by the Department of Homeland Security pursuant to a 2015 law that tightened visa requirements for travelers after the Paris terror attacks.   

Trump’s executive order also shuts down admission of refugees from any country for 120 days, caps refugee admissions at 50,000 and indefinitely suspends admission of Syrian refugees.

During these pauses, the Secretary of Homeland Security is required to review security procedures and develop new screening procedures with the goal of, as the title of the order says, “protecting the nation from foreign terrorist entry into the United States.”

Corri Zoli, director of research and assistant research professor at the Institute for National Security and Counterterrorism at Syracuse University, said the negative reaction to Trump’s order may have more to do with the political polarization around the new president than its content. The executive order is not all that different in its assumptions from the Obama-era law that drew little attention or protest, she said. 

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 passed Congress with broad bipartisan support. The law closed security gaps that could have allowed terrorists to get to the United States through countries whose residents don’t need a visa to travel here. The law requires such “visa waiver countries” to strengthen their own security measures and to share information with the United States. It requires travelers or nationals from the “countries of concern” to obtain a visa, subjecting them to greater scrutiny.

Zoli said rationale for the 2015 law was the 6,000-plus Europeans who have traveled to Syria or Iraq to fight with ISIS or other terror groups. Their European passports could have allowed them entry into the United States without a visa. The countries of concern also lack basic security protocols, do not cooperate with international police to identify fraudulent passports, or simply may be hostile to the United States. Meanwhile, refugees fleeing from war may have little or no documentation of their identities. All of these factors heighten the risk of a terrorist slipping through.

“The sheer size of the immigrant population the U.S. deals with — not to mention all the categories of visa holders and travelers — makes these security policies need to be responsive to changing global conflict dynamics and terrorist changing strategies,” Zoli said.

Her reading of the executive order is that it is not a religious/Muslim ban, a nation of origin ban or a travel ban, “but it does aim to make for a better security screening system from countries of concern, even if one is just traveling through these repeatedly” …

… In a BBC interview, Jacobson responded to critics who pointed out that none of the terrorists who have attacked the United States came from the seven countries referred to in Trump’s order:

“… in terms of whether people from those countries have conducted past attacks, that’s not the point of the security measures that are taken in immigration, it’s meant to prevent foreign fighters in a new environment, one that didn’t exist 10 years ago, being infiltrated into the U.S. much as they’ve been infiltrated into Europe, and ISIS stated goal is to infiltrate people. That’s not something that existed several years ago. So I think it’s apples and oranges to say that just because no one from these countries has previously attacked that there isn’t a real threat.”

Zoli, of Syracuse University, said the president’s brash approach is forcing us to have discussions we’ve largely sidestepped in this country as millions of refugees streamed out of conflict zones and into Jordan, Lebanon, Turkey and the European continent.

“Trump has an uncanny ability, in part through his ‘brute force’ use of language, to force difficult conversations and get us to break through on the sensitivities and political correctness barriers that had held the public back from dealing with some basic obligations of governance,” she said.

To read the full opinion piece, 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.

Retrenchment of Nationalism: Corri Zoli Speaks to The Daily Orange About the “Mexican Wall”

President Donald Trump builds more than one wall with his latest executive orders

(The Daily Orange | Jan. 31, 2016) United States President Donald Trump recently issued an executive order calling for the construction of a controversial wall along the entirety of the U.S.-Mexico border.

Trump needs congressional approval to authorize the building of the wall, and experts agree that because Congress currently has a Republican majority, the president will have little problem getting support for his plans.

“We already have a significant investment in border fencing.”

The length of the border between the U.S. and Mexico is approximately 2,000 miles long. Almost 700 miles of fencing already exists along the border. There are several remote areas along the border that don’t have border fencing.

Since 2000 there have been more than 65 border walls built around the world, said Corri Zoli, a research assistant professor of political science in the Maxwell School of Citizenship and Public Affairs.

“We’re entering a new period of retrenchment of nationalism,” she said.

The construction of Trump’s wall is estimated to cost around $12-$15 billion, according to Senate Majority Leader Mitch McConnell. Trump has said he expects Mexico to pay for the wall. However, Mexico President Enrique Peña Nieto has frequently said his country will not pay for the border wall.

“The Trump administration is not initiating this on its own, even though it’s been a part of campaign rhetoric,” said Zoli, “We already have a significant investment in border fencing” …

To read the full story, 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

A Return to Deterrence? Corri Zoli Discusses Trump’s Counterterrorism Policy with Newsday

Donald Trump signals shift in foreign policy, counterterrorism

(Newsday | Jan. 16, 2016) President-elect Donald Trump has vowed to employ a national security strategy of “peace through strength” as the nation’s next commander-in-chief — proposing to boost military spending while re-evaluating the country’s longstanding international alliances.

“I think we’re going to see a significant return to that default mode of deterrence under Trump.”

Foreign policy and counterterrorism experts say the real estate mogul, who during the campaign proclaimed he knew more about the Islamic State terrorist group than “the generals do,” will soon be confronted with the reality that change is deliberately slow-moving in the deeply methodical worlds of military planning, intelligence gathering and diplomacy …

… Corri Zoli, director of research for the Institute for National Security and Counterterrorism at Syracuse University, said Trump’s tweets and public comments signal at the United States returning to the military posture of “deterrence.”

“Our traditional posture has been one of deterrence making sure that our military and our institutions and all of our instruments of national power were so strong … ,” Zoli said. “This last administration has really backed off deterrence. Some people describe that strategy, that the Obama administration has used, and to certain degrees the Clinton administration as well, as leading from behind. This idea that you can sort of step back a little bit, promote engagement with the world, instead of showing people a hard face … this is shifting now, I think we’re going to see a significant return to that default mode of deterrence under Trump” …

… Zoli, of Syracuse University, said she believes Trump’s choice of Kelly and retired Marine Gen. James Mattis for Secretary of Defense, two battle-tested generals who are willing to oppose his controversial positions, indicates some level of willingness to seek guidance from two figures widely respected in national security circles. Mattis is often referred as the “Warrior Monk,” because he is a well-read scholar and someone who prefers diplomacy over combat to resolve major conflicts.

During his Senate confirmation hearing last week, Mattis told the panel, “We have to deliver a very hard blow against ISIS in the Middle East so there is no sense of invulnerability or invincibility there” …

To read the whole article, click here.