Cyber Attribution & War: William C. Banks Presents at West Point Emerging Technology Conference

From October 25 to 27, 2017, INSCT Director William C. Banks took part in the “Impact of Emerging Technology on the Law of Armed Conflict” conference at the US Military Academy at West Point. Hosted by the Leiber Institute for Law and Land Warfare at the West Point Center for the Rule of Law, the hosts described the topic of emerging technologies on the battlefield as a “complex and dynamic field” within the law of armed conflict (LOAC).

Professor Banks discussed “Cyber Attribution and In Bello Compliance During an Armed Conflict.” He spoke on the “Distinction, Marking, and Attribution” panel with COL Mike Meier, of the Judge Advocate General’s Corps, and LTC Mark Visger, of USMA-West Point (moderator).

Also speaking at the event were Professor Laurie Blank of the Emory University International Humanitarian Law Clinic; COL Geoffrey Corn, Staff Judge Advocate, US Cyber Command; Professor Peter Margulies, Yale Law; and Professor Michael N. Schmitt, USMA-West Point.

Other topics discussed at the conference included “not-yet-emerged” weapons technologies; how technology “distorts” the nature of conflict; distinction, emerging technologies, and civilians/combatants on the battlefield; concealed cyber operations; perfidy and invisible technologies; and artificial intelligence at war.

 

WaPo Interviews William C. Banks About Alleged US ISIS Fighter

Case of Suspected American ISIS Fighter Captured in Syria Vexes US

(The Washington Post | Oct. 29, 2017) Justice Department officials don’t believe they have enough evidence to charge an American citizen and suspected member of the Islamic State who was captured in Syria last month, but the United States will face immediate legal challenges if he is not released and is detained without trial.

“It’s time now to wonder whether the Trump administration is thinking of doing something different.”

The issue threatens to reignite court battles fought during the George W. Bush administration when the Supreme Court ruled that U.S. citizens cannot be held indefinitely as members of al-Qaeda or other terrorist groups under war legislation Congress passed after the Sept. 11, 2001, attacks. The court ruled that they are entitled to counsel and the right to challenge the evidence against them before a neutral arbitrator.

Nearly seven weeks ago, on Sept. 12, the man apparently surrendered to a rebel group in Syria, which handed him over to U.S. forces, according to officials familiar with his case. Since then, his name, age and other personal details, including a second country of citizenship, have been withheld, even from U.S. lawyers seeking to represent him. He is being held in a Defense Department “short-term facility” in Iraq, according to the Pentagon …

Removing the likelihood of a trial in the United States leaves the government with few options, said William Banks, a professor of public administration and international affairs at Syracuse University. “It’s time now to wonder whether the Trump administration is thinking of doing something different,” he said.

Banks and other national security analysts said the United States could negotiate with the man’s family and country of second citizenship to accept his return under conditions that he be monitored and not be allowed to travel.

Such deals have been struck in the past when, for instance, prisoners at Guantanamo Bay have been transferred home …

Read the complete article here.

 

INSCT Co-Sponsors 27th ABA SCOLANS National Security Law Conference

27th ANNUAL REVIEW OF THE FIELD OF NATIONAL SECURITY LAW

NOV. 16-17, 2017 | Capital Hilton | 1001 16th St. NW, Washington, DC

Presented by the American Bar Association Standing Committee on Law and National Security

This premier conference focuses on vital national security law topics including the Law of Armed Conflict, The Foreign Intelligence Surveillance Act, National Security Challenges on the World’s Oceans, Artificial Intelligence, Future Issues in National Security Law, Cybersecurity, National Security in Private Practice, Ethics for National Security Lawyers, and other current issues.

View the Schedule Register
Speakers include Hon. James E. Baker; Raj De; Maj. Gen. Charles Dunlap Jr. (Ret.); ABA President Hilarie Bass; Robert Litt; Susan Hennessey; Harvey Rishikof; and many more.

CO-SPONSORED BY: 

  • Center for National Security Law, University of Virginia School of Law
  • The Center on Law, Ethics and National Security, Duke University School of Law
  • Center on National Security and the Law, Georgetown Law
  • George Washington Law School
  • American University Washington College of Law
  • National Security Law Institute, Antonin Scalia Law School, George Mason University
  • The Center on Law and Security, Just Security, Center for Human Rights and Global Justice, NYU School of Law
  • Institute for National Security and Counterterrorism, Syracuse University 

“Research Handbook on Remote Warfare” Features William C. Banks on Cyber Conflict

Featuring an essay on “Developing Norms for Cyber Conflict” by INSCT Director William C. Banks, the Research Handbook on Remote Warfare, edited by Cornell Law School Vice Dean Jens David Ohlin, has been published by Edward Elgar Publishing. 

“Professor Ohlin has brought together a diverse group of talented scholars and practitioners to assess drones, cyber operations, and autonomous systems from a completely novel perspective—remoteness.”

The handbook (also offered as an e-book) is described as an essential read for academics and students of jus ad bellum, national security law, international humanitarian law, human rights, and modern warfare techniques and the complex legal issues they create.

Essays examine how the practice of armed conflict has changed radically in the last decade and addresses in particular the legal implications of remote warfare and its significance for combatants, civilians, policymakers, and international lawyers.

http://www.e-elgar.com/shop/research-handbook-on-remote-warfarePrimarily focused on the legality of targeted killings by drones, cyber attacks, and autonomous weapons, chapters offer compelling insights, challenge assumptions, and give a variety of international perspectives on the use of force, humanitarian law, criminal law, and human rights law. Suggestions are made for the future development of law to control the limits of modern remote warfare, with a particular focus on the possibility of autonomous weapons.

In his essay, Banks reviews the state of the law when it comes to disruptive intrusions—cyber attacks on critical infrastructure, for instance—by state and non-state actors and the complexity of creating a “more fully-formed international law” of cyber conflict and even cyber warfare.

Writes Banks, “Developing an international consensus on the norms for cyber conflict will not be easy. The state of doctrinal international law is only partly to blame. At least as important as constraints are the political differences among states and non-state actors in shaping cyber norms. In addition, the facts needed to make the normative judgments in this fast-paced
realm of changing technologies are now and will be for the foreseeable future hard to come by and even more difficult to verify. Law will play catch up, as it should, but the lag between evolving technologies and normative stability in cyber operations may be a long one.”

In his review of the handbook, the University of Exeter’s Michael Schmitt observes that, “Professor Ohlin has brought together a diverse group of talented scholars and practitioners to assess drones, cyber operations, and autonomous systems from a completely novel perspective—remoteness. In doing so, he and his team shed new and important light on topics that lie at the heart of future conflict. Additionally, by focusing on remoteness, this handbook breaks loose from the intellectual stove-piping that characterizes our often-predictable assessments of emergent methods and means of warfare. It yields valuable insights into a characteristic of weaponry and tactics that will increasingly define warfare in the decades to come. It is a must-read for anyone concerned with international law in the battlespace.”

Contents

Part I The Concept of Remoteness in Warfare
1. Remoteness and Reciprocal Risk
Jens David Ohlin
2. The Principle of Distinction and Remote Warfare
Emily Crawford
3. Modern Drone Warfare and the Geographical Scope of Application of IHL: Pushing the Limits of Territorial Boundaries
Robert Heinsch
4. The Characterisation of Remote Warfare under International Humanitarian Law
Anthony Cullen
5. Remoteness and Human Rights Law
Gloria Gaggioli
6. Exploiting Legal Thresholds, Fault-Lines and Gaps in the Context of Remote Warfare
Mark Klamberg
Part II Remotely Piloted Vehicles and Cyber Weapons
7. Drone Strikes: A Remote Form of Self-Defence?
Nigel D. White and Lydia Davies-Bright
8. Drone Warfare and the Erosion of Traditional Limits on War Powers
Geoffrey Corn
9. Developing Norms for Cyber Conflict
William C. Banks
10. Some Legal and Operational Considerations Regarding Remote Warfare: Drones and Cyber Warfare Revisited
Terry D. Gill, Jelle van Haaster, and Mark Roorda
Part III Remoteness Through Autonomous Weapons
11. Remote and Autonomous Warfare Systems: Precautions in Attack and Individual Accountability
Ian S. Henderson, Patrick Keane and Josh Liddy
12. Autonomous Weapons Systems: A Paradigm Shift for the Law of Armed Conflict
Robin Geiß and Henning Lahmann
13. Making Autonomous Targeting Accountable: Command Responsibility for Computer-Guided Lethal Force in Armed Conflicts
Peter Margulies
14. The Strategic Implications of Lethal Autonomous Weapons
Michael W. Meier

How Pan Am Flight 103 Shook Up Some Professional Fields

(Re-published from The Daily Orange | Oct. 24, 2017) As the deadliest terrorist attack on United States citizens before 9/11, the bombing of Pan Am Flight 103 shook up practices in professional fields including the airline security and public relations industries.

“Not every nation has uniform or excellent security,” William C. Banks said. “With global travel, your airline security is only as strong as your weakest link.”

The flight was carrying 259 people — including 35 Syracuse University students — from London before a bomb in the cargo hold exploded on Dec. 21, 1988. The terrorist attack killed all on board and 11 people on the ground.

Activism by the parents and families of the victims was instrumental in influencing national security practices. In 1990, Congress passed the Aviation Security Improvement Act lobbied for by some of the victims’ families to strengthen airport security measures.

William Banks, founding director of the Institute for National Security and Counterterrorism, said there was little security specifically devoted to airlines before the passage of the act. Air marshals would ride on flights with a suspected security risk, airline personnel would be screened, and cargo would occasionally be inspected. These personnel and cargo security measures were increased as a result of the Pan Am Flight 103 bombing, with special attention from the U.S. aviation industry.

However, Banks said, making these practices effective required international cooperation. “Not every nation has uniform or excellent security,” he said. “With global travel, your airline security is only as strong as your weakest link.” Banks said there was international cooperation between countries to implement screening procedures similar to ones in the US. He added many of the current practices were created in response to the Pan Am Flight 103 and 9/11 attacks.

The incident also showed how the public relations field was underprepared in crisis management.

Maria Russell, a public relations professor in the S.I. Newhouse School of Public Communications, said spokespeople from Pan American World Airways and the U.S. State Department lacked the training needed the handle the attack.

In the wake of the bombing, Pan Am implemented a “buddy system” where each family was assigned a liaison for communication with the airline. The liaisons were unprepared and untrained for interaction with families who had lost loved ones, she said. “That ended up infuriating the families more than making the families appreciate the effort,” Russell said.

Russell co-authored a book with three SU journalism professors on the news coverage of Pan Am Flight 103. In the book, she examined how organizations responded to the bombing. Of the public relations strategies Russell examined, she said the spokespeople in Lockerbie were most prepared and professional. Briefings were held every morning and afternoon to disseminate information and keep the public up to date.

It’s been said that one positive point of Pan Am Flight 103 was the involvement of Superintendent Angus Kennedy, a policeman from the Scottish city of Glasgow who acted as a police spokesperson and guided families through media interaction. “They were incredible in how they responded to the families, the media, with so much common sense,” Russell said. “Basically: How would you like to be treated if this were you?”

http://dailyorange.com/2017/10/pan-flight-103-shook-professional-fields/

Haley Calls Russian Election Interference “Warfare,” But Is It an Armed Attack?

By Ryan White

(Re-published from Crossroads: Cybersecurity Law & Policy | Oct. 20, 2017) On Oct. 19, 2017, Reuters reported that US Ambassador to the United Nations Nikki Haley called last year’s Russian meddling in the Presidential election “warfare.”  The comments came during a panel discussion alongside two former Secretaries of State, Madeleine Albright and Condoleezza Rice.

“Syracuse University College of Law Professor William C. Snyder, the editor of Crossroads, says he prefers to define “armed attack” as something that ‘tears at the fabric of society.'”

Haley explained, “When a country can come interfere in another country’s elections that is warfare. It really is, because you’re making sure that the democracy shifts from what the people want,” she said. “This is their new weapon of choice and we have to get in front of it.”

Haley’s comments touch on one of the most important questions when it comes to cyber space and cyber war.  In 2011, the then legal adviser of the US state department Harold Koh clearly stated that International Law applies in cyber space. That much has broad support.  The challenge comes when you try to apply it.

What qualifies as an “armed attack” in cyber space?  There is no clear answer. While Haley didn’t use those exact words, the term “warfare” seems to be very close in nature to “armed attack.”  If the US were to officially adopt this stance, it would have major implications.  Why?  Because nations that are signatories of the UN Charter have agreed to not use military force in international affairs unless authorized by the Security Council or in self-defense after an armed attack.  Thus, activities like Russian interference in an election would open the door to a response from the United States.

But what type of response? Is it limited to a cyber response? Could it take kinetic action in the traditional military sense?  Again, these are the ambiguities that exist when trying to apply even the most established principles of international law to cyberspace.

Many experts restrict an “armed attack” in cyberspace to actions whose effects include immediate death or serious bodily injury. Syracuse University College of Law Professor William C. Snyder, the editor of Crossroads, says he prefers to define “armed attack” as something that “tears at the fabric of society.” Perhaps the interference in last year’s election didn’t quite rise to this level. But it’s certainly plausible to see scenarios where, had the Russian attempts been more successful, the United States would have been in chaos.  The election results sparked significant divisiveness as it is. 

Imagine if the results were contested and we truly didn’t know the result of an election.

In context, Haley’s comments do not amount to an official position and aren’t changing the cyber landscape quite yet. But this type of thinking from our nation’s leaders could alter the way cyber activities occur between international actors.

Ryan White is a third-year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. 

William Snyder Explores the “Internet of Things” at Albany Conference

Professor William C. Snyder addressed the “Internet of Things” on a panel at Albany Law School’s “Cybersecurity and the Law” conference, which took place Oct. 19 and 20, 2017. Snyder, who teaches Cybersecurity Law and Policy and Computer Crimes, was joined on the panel by Andrea Matwyshyn of Northeastern University School of Law, Scott J. Shackelford of Indiana University School of Law, and David Thaw of the University of Pittsburgh School of Law.

Presented by the Albany Law Journal of Science and Technology, Center for Internet Security, Cybersecurity and Privacy Law Center at Albany Law School, and the Sobota Lecture Series, the keynote speaker for “Cybersecurity and the Law” was Mark S. Zaid, Esq., a Washington, DC, attorney who specializes in crisis management, diplomatic immunity, Freedom of Information Act, whistleblowers, privacy, and other areas of national security and international law.

Research materials and reading for the conference can be found here.

 

Qatar & the “Quartet”: International Blackmail

By David M. Crane

(Re-published from The Jurist | Oct. 11, 2017) Within the United Nations paradigm, state-parties settle their disputes peacefully and only resort to the use of force as a last measure. Several weeks ago four state-parties skipped the first step and used force against a fellow member state. That aggressive act consisted of embargoes, cyber-attacks, and trade and flight disruption, culminating in a list of demands by those states to lift those sanctions.

“The use of force by Saudi Arabia, Bahrain, the UAE, and Egypt (the Quartet) against Qatar would not have happened but for a new and unstable president in the White House.”

In 2017, it is hard to imagine that a member state would use force without a legal sanction by the Security Council or an appropriate regional body. The unilateral decision to do harm to a member state of the United Nations by other member states is an action that should be condemned and corrected. Most remarkably is how little has been done by the international community to correct the situation and restore international peace and security within the region. The silence is deafening.

The use of force by Saudi Arabia, Bahrain, the UAE, and Egypt (the Quartet) against Qatar would not have happened but for a new and unstable president in the White House. Past presidents, regardless of party, would not have allowed this to happen; and one would surmise that this Saudi led attack would not have even been contemplated by this Quartet of member states due to that leverage by the West. This quartet saw a political weakness and an opening and took it almost assured of the reaction by the West.

This action by the Quartet could most likely be the beginning of a series of “events” brought upon by a weakened and confused American foreign policy. The lack of leadership coming out of Washington is starting to weaken that international peace and security upon which the United Nations is grounded. Though international blackmail cannot be allowed to stand, the lack of discourse between the feuding parties will only exacerbate the situation. The recent demand by the UAE for Qatar to withdraw as a host of the 2022 World Cup is an example of the blackmail and the lack of interest in settling a dispute peacefully.

The violations of international law and norms committed by the Quartet against Qatar are almost too numerous to mention. Among the treaties violated are the Universal Declaration of Human rightsthe International Covenant on Civil and Political Rightsthe Arab Charter on Human Rights, as well as the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United States, among several others. These violations could arguably amount to an act of aggression. The battlefield and the weapons used are not conventional, but an embargo and the use of cyber space as a weapon to do harm could be construed as an aggressive act.

Hence the dilemma the international community now faces, technology has shifted the concept of conflict to another dimension, cyberspace. Its use to do harm continues to manifest itself and the lack of regulation of this new battlespace causes muddled or ineffectual response …

To read the full article, click here.

 

National Security Policy & Law: Panel Discussion

Date: Wednesday, Nov. 8, 2017
Time: Noon
Location: Feinberg Lecture Hall (Dineen 360)

WITH

  • William C. Banks, Director, INSCT
  • W. George Jameson, Former Director, Office of Policy & Corporate Coordination, CIA*
  • Robert B. Murrett, Deputy Director, INSCT
  • Laurie Brown Hobart, Former Assistant General Counsel, US Intelligence Community, and Assistant Teaching Professor, SU College of Law

W. George Jameson is a consultant, attorney, lecturer, and author on matters relating to intelligence and national security operations, policy, and law. He founded Jameson Consulting to provide independent counsel and advice to corporate and government clients and others on matters relating to national and international security, operations and business development, risk management, mediation, and governance. Jameson also serves as an Adjunct Staff member at the RAND Corporation.

Jameson also is Chairman and President, Council on Intelligence Issues, a non-profit organization he co-founded to educate the public on intelligence and other national security issues and to provide information about legal resources to CIA and other intelligence officers who need assistance.

Jameson retired from the Central Intelligence Agency in 2009 after 33 years of Government service.  Awards include the CIA Director’s Award and Distinguished Career Intelligence Medal. As the CIA’s first Director of the Office of Policy and Corporate Coordination, Office of the CIA Director (2006-2009), Jameson established an integrated capability to address interagency national security policy matters, and he led CIA efforts on revision of Executive Order 12333 governing intelligence. 

He previously served as the Senior Counsel for Intelligence Community Affairs in the CIA’s Office of General Counsel (2005-2006), advising on intelligence reform and implementation. 

Geospatial Intelligence Hall of Fame Inducts Robert B. Murrett

Robert B. Murrett

The National Geospatial-Intelligence Agency (NGA) inducted the Geospatial Intelligence Hall of Fame Class of 2017 during a ceremony at the agency’s headquarters in Springfield, VA, Oct. 3, 2017.

Among the inductees was INSCT Deputy Director Vice Adm. Robert Murrett (Ret.), Professor of Practice, Public Administration and International Affairs, SU Maxwell School of Citizenship and Public Affairs. A former NGA director, Murrett was cited for having pushed to get more analysts and support staff into theater during the wars in Iraq and Afghanistan, which deployed highly-trained geospatial intelligence analysts to combat zones to support war fighters.

“Murrett also ensured NGA provided a common operating picture in Haiti following the earthquake and tracked the Deepwater Horizon oil spill in the Gulf of Mexico. He oversaw the construction of NGA Campus East, which consolidated the agency’s East Coast operations into a central location,” according to the NGA press release. 

Murrett’s tenure as Director of NGA was the culmination of a distinguished career as a US Navy intelligence officer. Among his other appointments, Murrett was Commander of Atlantic Intelligence Command; Director for Intelligence, US Joint Forces Command; Vice Chair Director for Intelligence, Joint Staff; and Director of Naval Intelligence. 

“[The] induction into our Hall of Fame is the absolute pinnacle of achievement and recognition for anyone who has ever served in a part of the geospatial intelligence enterprise,” says NGA Director Robert Cardillo. “The 65 phenomenal names inscribed in our Hall of Fame before today each represented pioneering spirits and hard work. They persisted and reached the pinnacle of our profession, not for themselves, but for the United States and our allies.”

https://www.nga.mil/MediaRoom/PressReleases/Pages/2017-Geospatial-Intelligence-Hall-of-Fame-inducts-six-former-leaders,-geospatial-pioneers.aspx