Category Archives: defense policy

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…but no cigar.  Senator Mike Lee (R, UT) has some thoughts on fixing the  Foreign Intelligence Surveillance Act and its secret FISA Court.  He’s on the right track, but his ideas fall short.

Lee wants to fix the FISA Court and tighten the parameters under which it operates. This Star Chamber cannot be fixed; it must be disbanded and the sections creating and empowering it must be rescinded from the FISA altogether.

There remains a need to guard against and to respond to espionage and interference efforts, and there remains a need for that response to involve investigations of American citizens who might be involved in those foreign assaults.  There remains a need to keep many of our responses and investigations secret—for a time—so as not to tip off the targets of our investigations, whether they’re foreign or American.

Counterbalancing that is the even more crucial need to protect Americans’ individual liberties, including those being investigated.  Especially the latter need protection; they’ve not been shown to have done anything wrong, but public suspicions would ruin the reputations of those actually innocent.

Our present Article III courts already are well-versed in handling secret warrants where necessary for domestic criminal investigations and for sealing records until it’s useful to release them or after sufficient time has passed that their release will not harm an ongoing investigation.  FISA warrants can be handled here.

Many of Lee’s other ideas, with some adjustments, will work just fine in a sealed Article III court.

He wants to expand the role of an amicus in FISA warrant applications beyond warrants involving a novel or significant interpretation of law.

amicus should advocate for the privacy and civil liberties of the person targeted.

The role needs to be expanded further. This new amicus should overtly act as Devil’s advocate and seek to expose weaknesses in the warrant application with a view to getting the application denied. The target legitimately cannot be present, yet in most domestic criminal cases, the target has opportunities to contest the warrant, even if only after the fact.  Such a contest needs to be present with FISA warrants, as well.

Lee wants relevant agencies to be required to provide all information in their possession as part of the application, including any exculpatory evidence. The FBI Director and the Attorney General should be required to certify that this has been done, and there needs to be heavy sanctions applied to the agents, the Director and the AG if this requirement has been found, after the warrant’s submittal, to have gone unsatisfied. It’s almost never enough merely to punish the workers directly responsible; too often they acted improperly because they were actively allowed to or because they were permitted to by too lax supervision.

It’s critical that we take these kinds of measures in response to the failures of and abuses from the present FISA setup so that this sort of violation of United States citizens never happen again.

Maybe It’s Time

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The just-concluded Munich Security Conference has illustrated the growing disconnect between the US and central and western Europe regarding European security.

German President Frank-Walter Steinmeier opened the conference—one of the largest annual gatherings of political leaders, military chiefs and top diplomats from around the world—by accusing the Trump administration of “rejecting the idea of the international community.”
“Every country should fend for itself and put its own interests over all others … ‘Great again’—even at the expense of neighbors and partners,” Steinmeier said….

That’s a cynical distortion of our position, coming as it does on the strenuous efforts the Trump administration has made to get these nations to increase their commitment to NATO, and coming as it does on the heels of Germany’s naked duplicity in promising—on its own initiative, mind you—to increase its spending on NATO to 2% of its GDP, and then welching on that commitment.

And this:

French President Emmanuel Macron, speaking at the forum for the first time, echoed Steinmeier the next day, noting that “what Europe wants is not quite the same as the US.”

That’s certainly true, with France—and Germany—toadying up to Russia as enthusiastically as they are. But Macron, at bottom, is as duplicitous as Steinmeier. Poland, Lithuania, Latvia, Estonia, all NATO members, and Ukraine, are much more closely aligned with the US on matters of their (and our) national security. Macron, for all his ego, does not speak for “what Europe wants,” only for what Germany and France want. To claim they are Europe is not hubris, it’s just dishonest.

Maybe it’s time to move decisively toward a mutual defense treaty among the US, the eastern European nations fronting Russia, and the UK, and let central and western Europe do what they’re so evidently desperate to do: to go their own way.

After all, at least the former, in evident contrast with the latter, care about their security.

Telecommunications and Backdoors

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It turns out that Huawei has been able to use legislatively mandated backdoors into telecommunications software—backdoors ostensibly for the sole benefit of law enforcement, and then only usable within judicially allowed limits, search warrants duly sworn, in the US, for instance—for years.

But we would never do that, says Huawei in its wide-eyed innocence.

“The use of the lawful interception interface is strictly regulated and can only be accessed by certified personnel of the network operators. No Huawei employee is allowed to access the network without an explicit approval from the network operator,” the [senior Huawei] official said.

The existence of the interface is the access pathway. The bar to its use is wholly a matter of the integrity of the humans involved. This is not a hard concept to understand; Huawei’s management is being disingenuous to pretend otherwise.

Further, PRC law requires PRC companies to cooperate with the government on the government’s demand.

Huawei “has never and will never do anything that would compromise or endanger the security of networks and data of its clients,” the company said.

Huawei’s CEO Ren has also made that preposterous claim. He and his management team insult our intelligence, assuming as they do that we would believe that Huawei would actually defy the PRC government.

A Good Start

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But it’s only a start. The Trump administration is working with companies including Microsoft, Dell, and AT&T to develop 5G software in an attempt to break Huawei’s current dominance of the 5G market and to supplant it.

The plan would build on efforts by some US telecom and technology companies to agree on common engineering standards that would allow 5G software developers to run code atop machines that come from nearly any hardware manufacturer.

Software isn’t the only source or solution, though; we need to push hardware development, too. It’s too easy to bury malware in hardware’s ROM/PROM/EPROM chips; Huawei’s hardware will need to be excised as well.

Overcomplexifying

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European pundits are doing that vis-à-vis US-Ukraine relations, if Deutsche Welle is any example.  SecState Mike Pompeo is headed to Ukraine to discuss a number of items centered on how we can extend our support for and of Ukrainian sovereignty and territorial integrity, and this is supposed to be an especially complicated visit.

Analysts say Ukraine has become “toxic” for the US [based on the current impeachment/trial process of President Donald Trump], and that contacts at various levels have become more difficult and more restrained.

Leave aside the question of what analysts—these are carefully unnamed—and the question of who in either administration are saying contacts are more difficult and restrained, and there’s nothing left in this claim. There’s only the fact that our head diplomat after the President is headed there, just a few short months after the last contact between Trump and Ukrainian President Volodymyr Zelenskiy.

The situation is further complicated by the fact that it extends beyond just government officials. Two former prosecutor generals in Ukraine, Viktor Shokin and Yuri Lutsenko, both discussed the Biden case with Trump’s personal lawyer, Rudy Giuliani….

Not further complicated at all by this. This bit is wholly irrelevant to Pompeo’s trip; the complication exists only in the minds of those anonymous analysts.

The posts of Special Envoy to Ukraine and Ambassador to Ukraine remaining vacant is hardly a complication, either. The Special Envoy isn’t required (and never was), and the embassy is ably handled by the deputy ambassador and the ambassadorial staff in Kyev. Sure, it would be useful to fill the Ambassador slot, but nothing is held up by its being empty.

Even the disagreement between Pompeo and a newsperson is being held up by these pundits as a complicating factor. Never mind that that is a purely domestic matter or that members of this administration—and prior ones—are involved in disagreements with our press as a matter of routine.

There’s this, too:

The Minsk peace accords are bound to be one of the central issues during Pompeo’s visit to Kyiv. At a summit in Paris in December 2019, Washington praised Zelenskiy’s efforts to restart the faltering peace process. In the coming weeks, Ukraine will implement political agreements concerning the special status of the separatist areas around the cities of Donetsk and Luhansk, and prepare for local elections scheduled for the fall. In the past, people took to the streets to protest the agreements, calling the accord a “surrender” to Russia.

Minsk is, indeed, Merkel’s betrayal of Ukraine and at best a partial surrender by Ukraine to Russia.  What should govern the situation is the prior Budapest Memorandum, a collection of three agreements in which the US, Russia, and the UK guaranteed Ukraine’s territorial integrity if the latter gave up the nuclear weapons the Soviet Union had stationed there prior to its collapse and disappearance. Ukraine did, bringing the guarantee into effect. That Germany was not a signatory does not make Merkel’s betrayal any less; that only made it easier.

Russia subsequently welched and invaded Ukraine, partitioning and occupying Crimea and two eastern oblasts.  The Obama administration then betrayed Ukraine by refusing to answer Russia’s invasion and further by refusing to give/lease/sell/transfer in any way the weaponry Ukraine needed to resist the Russian invasion and defeat it.

This is the situation Trump and Pompeo are trying to repair.  None of those pseudo-complications have anything to do with any of this.