Two Flavors of International Law

February 12, 2014–Director James Clapper is at it again, this time declaiming his gospel of hysteria to the Senate Armed Services Committee. But that’s for another time. Today I want to focus on law, a little bit domestic, mostly international. In the United States the Founders–those who hammered out the Constitution, most of whom had participated in the American Revolution–and their successors–giants of political philosophy, politics, and law–were fond of saying that America would be a land of individuals under law. There have been various elaborations on this theme–that no one is exempt from the law, that everyone is equal under the law, that the rights of minorities are protected by the law, that laws restrain both the actions of a despotic majority or of an overweening executive power, etc. Officials, from the president to the very spooks who have been of such concern recently, to the soldiers, to the lowest of federal magistrates, swear an oath to uphold the Constitution–the law–not the powers of their agencies, their bosses, or any other leader, including the president.

United States law acts in tandem with international law, and has done so from the very early days of this republic. The U.S. fought a quasi-war with France in the 1790s, and a real one with Britain from 1812 to 1814–which bicentenary the country is fitfully observing right now–to establish norms of international law. At the end of World War II the international trials of defeated enemy leaders and military commanders at Nuremberg, Tokyo and elsewhere were explicitly intended to enforce international norms against the conduct of aggressive war, conspiracy against peace, crimes against humanity, and war crimes, including the use of certain weapons.

International strictures include customary law and treaty law. Around that same time the International Court of Justice, created by Article 93 of the United Nations Charter, was established to enforce the law. Under the United States Constitution treaty law forms part of the law of the land and American officials have a legal obligation to enforce it. The ICJ has since been supplemented by juridical panels specifically intended to prosecute offenses in Bosnia and Rwanda in the 1990s, and a globe-ranging International Criminal Court for Nuremberg-type offenses. One of the most creative legal initiatives of recent years has been the increasing willingness of national courts, for example Chilean courts (against Augusto Pinochet, then in the United Kingdom) or Spanish courts (against a variety of human rights abusers) to move toward enforcement measures that may require action across borders.

At the same time it appears that the Great Powers have increasingly been moving in the opposite direction. The United States denied the jurisdiction of the ICJ in 1984, when Nicaragua sued the U.S. over the CIA-directed mining of its harbors. This was despite the fact the United States numbered among the original founders and supporters of the ICJ and the international law movement. The U.S. has since then resisted ratification of the treaty creating the International Criminal Court, which would have jurisdiction over such things as American unleashing of an aggressive war against Iraq or–dare we say it–conducting a drone war that kills numbers of individuals in countries with which no state of belligerency exists. When Italian and German courts indict CIA officers for criminal acts, Washington also acts as if it has no legal obligations. When the president of Ecuador was returning to his country following a state visit to Russia, the U.S. violated international conventions on diplomacy and air transit to make sure the Ecuadoran leader was not secretly harboring whistleblower Edward Snowden on his aircraft.

Meanwhile the United States relies on international law when it files suits, for example, with the World Trade Organization, over tariff discrimination, perceived unfair preference on exports or imports; the extradition of individuals for trail. Washington has denied foreign efforts to evade legal judgments, notably in the Pan Am 107 case, where an indemnity was levied against Libya. And the U.S. has passed laws that permit American authorities to pursue wanted suspects into foreign lands–in much the same fashion as Chilean or Spanish courts extending their tentacles across borders, except that in the U.S. case the federal government actually has capabilities to act. “Renditions” as we know them today began with actions to apprehend suspects abroad back in the 1990s.

To reframe the picture, the net result is that a Great Power insists on international law when this seems to its advantage and denies its application when this might work against it. This is not just the case with the United States. The latest example is the People’s Republic of China, which is demanding that Spain nullify the judgments of Spanish courts that have voted arrest warrants against former Chinese leaders for China’s actions in Tibet. If nations can be considered people–as we deem corporations to be people–then all people are not equal under the law.

This double standard ought not to be tolerated. Not only does it disadvantage lesser nations, it poses a threat to the progress of international norms in general. The most significant development in international law in the past three decades is the progressive enactment of laws securing human rights and their expansion in terms of coverage. Solidification of an international double standard on the application of norms can potentially halt or even reverse that evolution. The interests of peoples–and nations–everywhere (including the Great Powers themselves) lies in making sure that does not happen. Powers rise and decline. Today’s Great Power may tomorrow be just one of the pack. They will then wish there was a single standard for international law.

 

Panzerkrieg Rules Arrive!

February 8, 2014– Masahiro Yamazaki has just sent his translation of the rules and scenario sheets for Panzerkrieg. I’ll be checking them against the originals for any discrepancies, but if there are any you’ll easily be able to download updated versions later. In the meantime you can play the game in its new edition.

At this point English versions of the charts and tables are still outstanding but they’ll be coming along soon. Those of you with earlier editions can simply use the currently existing versions during this interval.

The new material looks very nice and has already given me an idea for a game variant rule that will put some strategic intelligence flavor into the game.

Enjoy!

The Working Class General

 

February 7, 2014– In connection with publication of my new book on the battle of Dien Bien Phu I’m adding a new article to the “Downloadable” list on the website. This piece focuses on one character in that story, the French officer Marcel Bigeard, who led a parachute battalion in Indochina. Of working class origins, he was colorful enough to feature in the movie The Lost Command, played by actor Anthony Quinn and modeled on the character “Pierre Raspeguy” in the Jean Larteguy novels The Centurions and The Praetorians. In the Algerian war Bigeard’s role became controversial in the Battle of Algiers and afterwards, with charges that he had had prisoners tortured, a subject that reverberates in America today as a result of CIA actions during the 9/11 era. Bigeard also fought in World War II, ending his military career as chief of staff of the French army, after which he entered politics and became a deputy in the French National Assembly. Marcel Bigeard is a fascinating character, worth more attention than I could afford to give him in Operation Vulture.

U.S. Intelligence Turned Inside Out

 

February 5, 2014– Is all this really happening? Maybe I should pinch my arm and try to wake up. But it’s not a dream–it’s a nightmare. United States foreign intelligence turning on Americans. This NSA eavesdropping scandal has created such distortions that, at some point, you begin to wonder whether the entire system is compromised. Government responses to the scandal have gone so over the top that one suspects the foundations of the intelligence community may be cracking.

Let’s begin with the fundamental mission. As officials have reiterated ad infinitum since the Snowden revelations began, the purpose of U.S. intelligence is to discover and track foreign enemies. All the powers the NSA, CIA, and other agencies exercise are supposed to be aimed at that goal. The agencies operate in secrecy, on the dark side. But there moments when, for a brief time, they come into focus. The most important of these is the annual “threat assessment” hearings. Every year around this time the Director of National Intelligence (DNI) and the agency chiefs appear before the congressional intelligence committees to give the public a glimpse of their world view. The spy chiefs talk to the legislators but at the same time speak to the American people. The Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI) are fora in which our agency bosses expounded on the Soviet threat, in the day; efforts to develop ballistic missiles around the world, nuclear proliferation, including the misguided and mistaken claims for Iraqi weapons of mass destruction; drug cartels and international crime syndicates, whatever the issues that have their hair on fire. Since 9/11 our intelligence chiefs have consistently represented the top threat as terrorism. Only last year did it drop to second place, with the threat of cyberwar given the pride of place. Now, suddenly, the NSA eavesdropping scandal has changed that.

Last week the DNI, General James R. Clapper, and his assembled brass, presented their annual threat assessment to the Senate committee. They did the same at the HPSCI yesterday. The two appearances cast a pall on the American intelligence enterprise. Our so-called experts now believe the leading threat is not foreign at all.

General Clapper told the Senate intelligence committee that a leading threat to the United States comes from whistleblowers. (Cue Edward Snowden.) Let’s parse that for a moment: Whistleblowers are employees of U.S. intelligence who become so concerned about the U.S. intelligence programs they see around them that they decide to destroy their careers by leaking to the public the abuses which exercise them. How to cope with that threat? You clamp down on U.S. intelligence. The snake eats its own tail. This is more than a security measure. The NSA, CIA and other agencies depend on smart analysts and operators, willing to go out on a limb to make sense of the welter of obscure and often contradictory information out there, and argue theses which bosses might think fanciful. Nothing could be better calculated to destroy the morale of the intelligence community than to represent its own officers, individually and collectively, as the main enemy.

I’ve written here repeatedly, as have others, on the chilling effect of eavesdropping on the public. Consider how chilling it must be for intelligence officers to be told they are a threat too.

There it is. Just to keep the ball in view, Clapper’s biggest threat this year remains cyberwar. But terrorism–the stated rationale for all that intrusive NSA eavesdropping–has fallen to fourth. Whistleblowers are a bigger threat to American security than terrorists. Of course, the reason whistleblowers pose a threat is the impact their disclosures may have on the powers of the intelligence community. Director Clapper and his minions are substituting the private, parochial interests of their agencies for the national security of the United States.

On the theme of flimsy congressional oversight, featured here several times, we can add that Senator Dianne Feinstein sat still for all this in her Senate committee. At HPSCI yesterday, Representative Mike Rogers did Feinstein one better. Clapper hardly needed to advance his dubious threat analysis. Rogers reached past him, trying to lead FBI director James B. Comey into an assertion that journalists who report the abuses revealed by whistleblowers are “fencing” stolen goods. What congressional oversight is even possible in this climate?

Rogers has, without evidence, accused Snowden repeatedly of being a Russian or Chinese spy, and last fall at a media gabfest with former spook Michael V. Hayden the two bantered about their desire to throttle the leaker. Edward Snowden got the message. Recently he told a German interviewer, in all seriousness, that he could not return to the United States because people want to kill him.

All this gives new meaning to aphorisms–always presented as an error–about shooting the messenger. Do not lose sight of the fact–and it is a fact–that the problem resides in the substance of U.S. intelligence programs, not in what Edward Snowden or anyone else says about them. That intrusive eavesdropping is revealed in the NSA’s own documents. Not only can the evidence not be disputed, it has been further confirmed in the additional documentation the U.S. government has declassified in the course of this controversy.

Overheard on Amtrak: A Gaming Story

February 4, 2014– If you’re a boardgamer who looks askance at the first-person-shooter variety of videogames, here’s some grist for your mill. Of course lots of folks love videogames, and the first-person-shooter variety is a strong category in that field, so if that’s your passion please excuse this. My take is that of a longtime boardgame designer who was there when computer games first got started, solicited our help, then left us in the dust.

Anyway the story is this: a few years ago I was on my way to take care of chores in New York. I prefer Amtrak for these periodic business trips. The train is more comfortable, you can walk around, and it leaves you in the heart of The City, ready to go wherever you need to. So I’m on a Northeast Regional bound for a city I love, where I lived a long time. I read a book as the train barreled along. Sitting there I became conscious of the conversation from the twin-seat ahead of me. Two men were engaged in avid debate. I heard the words “axe” and “sword.” That got my attention pretty well.

Some nefarious plot? I worried briefly but it quickly became clear the two men were game designers, and their purpose was to figure out what weapons to put into the first-person-shooter they were crafting. The conversation was quite interesting. Heft of the axe and sword, length and edge-type of the latter, single- or double-bit for the axe, type of metal, weight–all were things they considered. What struck me in particular was their focus on the visual impact of the various weapons configurations. They were clearly concentrating on a game design issue.

The purloined conversation got me to thinking. Plenty of gamers have asked me over the years why I did not move into computer games. Actually a few of my designs–Third Reich and Kanev are two–have appeared in computerized versions, though the games (and even the computer platforms which ran them) no longer exist. But I never made the crossover myself. At first I thought I would, but that I needed to wait–the early platforms were very restricted in terms of core memory. For a long time the memory requirements for representing a mapboard effectively consumed the machine’s capacity leaving little for the game itself. As a designer my preference has always been to innovate systems that mimic large-scale processes in the real world, requiring pretty sophisticated code. But I anticipated that CPU memory capacities would someday reach the level required for both board and design, plus, of course, pieces. In any case, focusing my design efforts on image (as my Amtrak friends were doing) rather than content, as in the modeling of processes, was not something I wanted to do.

That evolution of computers happened–but so did something else. The early electronic games were very much like the boardgames. But as computers improved, the action game, granddaddy of the first-person-shooter, eclipsed the old-style game. The charm of putting the person into the game–as character (in role-playing), as ball player, as shooter, as action figure–was irresistible. The personal element made computer games the behemoth they are today. Even large-scale games today, as in the massive online game, are permutations of single person action. My two friends on Amtrak were onto something.

But I did–and still do–prefer to model processes, not individual action, whether cumulative or not. I’ve been pleased that old-style electronic games have survived, even as a niche in the computerized milieu, and also that computers have come around far enough to develop game-assist programs (like VASSAL) that improve the practicality of boardgames. And developing trends may be moving in the direction of  a more central role for boardgame-like computer games. Sales of first-person-shooter designs peaked in 2011 and have diminished since. Though these games still account for nearly a fourth of all electronic game sales, their dollar volume has decreased by more than a third. This suggests there is space developing for electronic wargames of the traditional kind, now in an environment when the platforms are fully capable of handling a sophisticated boardgame. Some of my old designer colleagues–Eric Lee Smith is an example–have chosen to go straight to electronics with new game companies. And games are being formatted to work on I-pads and I-phones. We may be witnessing the dawn of a new age. Let a hundred flowers bloom!

Should We Depend on Intelligence Oversight?

February 1, 2014– President Barack Obama and his intelligence chieftains, from Director James Clapper on down, tirelessly repeat that citizens should trust their claims that NSA eavesdropping and other controversial spy programs are perfectly acceptable because these are monitored by oversight committees of the Congress. I’ve commented in several places about the inadequacy of the congressional oversight–and the misleading administration claims regarding it. Today I extend my previous comments with a more extensive analysis, ranging back over the history of intelligence oversight, which is posted in the “Downloadable” section of this website. Take a look!

Obama : Syria/NSA = Eisenhower : Dien Bien Phu

January 29, 2014– This is about history, or more precisely what  presidents learn, or think they learn, from history to apply to their current headaches. Many of you will be familiar with the kinds of word associations that college entrance exams delight in confronting us with. Here I want to make an analogy between President Barack Obama’s present approach and one attributed to President Dwight D. Eisenhower, to argue that it is indeed possible to learn wrong things from history.

The episode from the Eisenhower years occurred in 1954. It was a Far Eastern crisis, one in Vietnam. In the last year of the French war there, our ally’s Expeditionary Corps trapped itself into a hopeless battle against a Vietnamese revolutionary army. Paris, aghast at the specter of defeat, appealed to President Eisenhower to save them. “Ike,” as he was familiarly known, was sorely tempted to intervene with air strikes in support of the French. If those did not work, he recognized that he would have to commit American ground troops.

Ultimately President Eisenhower did not intervene at Dien Bien Phu. I mention the crisis because of the similarity between actions Mr. Obama has taken recently to one explanation for Ike’s course in 1954. The conventional wisdom on Dien Bien Phu is that Ike worked with a “hidden hand” deliberately to avoid intervention by insisting that Congress approve the proposed action, safe in the knowledge that it would not do so. I happen to think that explanation is false. As I argue at length in my new e-book, Operation Vulture: America’s Dien Bien Phu, the president worked to further the intervention project far more assiduously than can be accounted for by an explanation which posits that he opposed this course. We shall see how that historical debate fares, but for our purposes in today’s posting it is the supposed historical lesson of the consensus–the desirability of “hidden hand” action–which frames the point.

Last summer and fall an extended debate raged in the United States over whether the U.S. should intervene militarily in Syria to support a popular uprising against the ruler of that land. Much as Mr. Eisenhower, at Dien Bien Phu, had been trapped by policies he had set and promises made to France; President Obama had been caught in his threats to retaliate against the Syrian government if it were found to be using chemical or biological weapons against its people. When evidence emerged the Syrian regime had done exactly that, Mr. Obama was on the hook. His response? Obama insisted that Congress approve the proposed intervention.

Much the same thing happened with regard to the Snowden revelations and the National Security Agency (NSA) scandal. That issue also emerged last summer. Mr. Obama’s first response was to solicit a national debate on the legal, constitutional, and privacy issues involved in the NSA’s eavesdropping. Privately he ordered intelligence agency chiefs to offer options that might make the dragnet more palatable, and appoint a blue ribbon commission to review the practice. Another review was carried out by an independent agency, the Privacy and Civil Liberties Oversight Board (see “Funny Name, Serious Business,” January 23, 2014).

We now know that President Obama approved of this domestic spying all along. As reported by journalist David Remnick in The New Yorker of January 27, Mr. Obama felt no ambivalence about this: “I actually feel confident that the way the NSA operates does not threaten the privacy and constitutional rights of Americans and that the laws that are in place are sound, and, because we’ve got three branches of government involved . . . it actually works pretty well.” Despite Obama’s feelings, last month his blue ribbon commission reported out a study starkly critical of the domestic spying and a federal judge ruled it probably unconstitutional. Three weeks ago the oversight board emerged with an even darker view (see “Independent Agency Study Trashes NSA Claims,” January 24, 2014). Obama’s response? On January 17 he gave a speech accepting the criticisms of the NSA spying, and proposing a number of reforms that he says should be enacted by Congress.

Last night President Obama presented his 2014 State of the Union address. Among its more important features was Mr. Obama’s lambasting of Congress for its inability to act on anything. The president promised to move forward on social issues by means of executive action if Congress will not cooperate. Of course the political gridlock on Capitol Hill has been evident for a long time, since before Mor. Obama took office, and Republican obstructionism became even more strident with him in the White House. Obama’s speech makes perfectly clear his awareness of this factor–and his willingness to proceed unilaterally. Why, then, on two critical issues–Syria intervention and NSA reform–insist that Congress move the ball forward?

One explanation, cynical but not unlikely, is that the president did not want anything to be done on these matters. This certainly concords with Mr. Obama’s expressed view on the NSA spying, and it is a good fit with his need to escape entrapment on his own laying down of “red lines” with the Syrians. Obama has been playing with Dwight Eisenhower’s “hidden hand” deck.

If Barack Obama drew these lessons from history, they are the wrong ones. Let’s go back to Dien Bien Phu, and Vietnam. The hidden hand approach neglects consequences. After Dien Bien Phu these tactics left Eisenhower with no alternative but to support a South Vietnamese government that progressively embroiled the United States in a war. By not addressing policies the tactics put the U.S. on a track from which there was no escape, except by doing the very thing Ike’s supposed course sought to avoid. At the same time, because the hand is hidden a president builds little constituency for his actions. The effect is thus inherently limited. It is distressing that history can offer the wrong lessons and be invoked in support of dubious courses of action.

Korea 1968 Hot Document

January 27, 2014– The Electronic Briefing Book that we posted on the National Security Archive website a few days ago (EBB-453), which dealt with North Korea’s seizure of the U.S. spy ship Pueblo in January 1968 attracted a great deal of attention from South Korean media, fascinated that nuclear weapons might have featured in an American response to the crisis. The actual story is not quite what media mavens have seemed to appreciate: Nuclear weapons were mentioned as part of a planning paper prepared for the Joint Chiefs of Staff in May 1968–some months after the crisis–as part of a contingency plan for what to do if hostilities broke out on the Korean peninsula. So that readers can judge for themselves I am posting the paper here as a “hot document.”

We Miss His Integrity Already

January 22, 2014– It was sad to wake up yesterday to the news of the passing of former New York democratic congressman Otis G. Pike. During the fierce debates of 1975, known as the “Year of Intelligence” because the controversies of the day led to the first significant investigations of the actions of U.S. intelligence agencies, Representative Pike held to a steady course in the face of a concerted effort by the Ford administration–and the CIA, NSA, and FBI of that day–to head off any public inquiry. Like the current controversy ignited by leaks from NSA contract employee Edward Snowden, the Year of Intelligence began with revelations of U.S. intelligence spying on American citizens (see my book The Family Jewels). In contrast to the deferential chiefs of the congressional intelligence committees today–Senator Dianne Feinstein and Representative Mike Rogers–Congressman Pike was in nobody’s pocket and he persevered to the end.

The House of Representatives intelligence investigation of 1975 began under another congressman, Lucien N. Nedzi, who left under fire when it came out that he had collaborated with the CIA–much as current committee chairpersons have with the NSA–in concealing the record of agency abuses embodied in a document that CIA wags of the day had dubbed the “Family Jewels.” The House selected Representative Pike to lead a fresh inquiry. Pike had to start over from square one.

The Pike committee investigation is far less known than the one the Senate conducted under Frank Church. In part that is because his report was suppressed–President Ford lobbied Congress hard to avoid its disclosure, including sending a letter to House members and personally telephoning key figures to nail down votes against releasing the document. But Pike also faced major obstacles. Where the CIA, however reluctantly, permitted Church committee investigators to view some of its materials–ones the Ford White House vetted–its approach with the Pike committee was different. Representative Pike refused to accept the procedures the White House and CIA had designed to limit access for the investigators. The agency countered by refusing to supply Pike with any materials at all, on the excuse his committee could not protect classified information. There was more. Secretary of State Henry Kissinger refused to appear when called to testify, and resisted a subpoena once the House voted that. Some accommodations were made, but executive-legislative cooperation in the case of the Pike investigation would be minimal. And then President Ford intervened to suppress the Pike report. Portions of it promptly leaked. Although the public has never seen the complete report, it is clear from the leaked material that Congressman Pike, despite having half the time the Church committee enjoyed (insufficient in their case too, by the way), and in the face of executive branch obstruction of its inquiry, succeeded in getting to the bottom of several key intelligence questions. Otis Pike’s leadership–and his integrity in resisting White House and CIA maneuvers to affect information–were keys to this achievement.

Congress today would benefit from integrity like Otis Pike’s. The present  intelligence committees seem intent on avoiding issues, not engaging them. Not only is this apparent in their diffident approach to the NSA scandal, it is visible in the Senate committee’s failure to call out the CIA on its effort to stonewall the deep inquiry which the committee majority spent several years assembling on the CIA rendition and torture programs. Otis Pike (1921-2014) would not have let the spooks get away with such shenanigans.

Boardgaming in the News

January 11, 2014–There’s a lot on my plate today, so just a short note.  Very occasionally the mainstream media features coverage of boardgames. This weekend is one such instance. Just so you’re aware, tomorrow’s Washington Post Magazine contains the article “War in A Box” by Jason Albert. The piece is a nice profile of Volko Ruhnke, an analyst at the Central Intelligence Agency by trade, but a budding game designer with five titles under his belt. Ruhnke’s work puts a sophisticated simulation model around such subjects as the war in Afghanistan. He’s currently working on a Vietnam war game with co-designer Mark Herman, who some years ago brought us the very intricate Vietnam 1965-1975. The article also contains a bit on the World Boardgame Championships show. If you’re a gamer you’ll be interested to see this essay.