Law – Page 36 – a sibilant intake of breath

The ICRC and neutrality

I am still in the process of reading Michael Ignatieff’s The Warrior’s Honour, written when he still had the kind of freedom of speech that puts academics at an advantage relative to politicians. One situation described therein does a good job of encapsulating the complexities involved in trying to mitigate the savagery of contemporary war.

It concerns the choices made the the International Committee of the Red Cross (ICRC) during and after the wars that accompanied the breakup of Yugoslavia. The ICRC is a unique institution, legally mandated to implement the Geneva Conventions. A key element of that arrangement is neutrality; the ICRC does not distinguish between good wars and bad wars, nor between aggressors and victims. By not doing so, it maintains the kind of access that other organizations are denied.

In the wake of the Yugoslav wars, the ICRC had the best records on who was massacred, where, when, and by who. Such records would have aided the work of the International Criminal Tribunal for the former Yugoslavia (ICTY), in seeking to prosecute those responsible. The ICRC refused to provide the records, arguing that if the combatants had thought that ICRC records might eventually be used in war crimes trials, they would not have permitted the ICRC to provide the kind of aid it was able to.

The neutrality of the ICRC was subsequently rewarded, when they ended up being the only aid organization not expelled from Bosnia during the Croat-Muslim offensive against Serbs. Ironically, this included the single greatest instance of ethnic cleansing: a term generally associated with actions Serbian forces had undertaken previously, including by using released and trained prisoners as unofficial proxies for acts that violated the Geneva Conventions.

As this example illustrates, contemporary conflicts are often deeply morally ambiguous, on everything from the role of child soldiers to whether it is truly possible for aid organizations to be impartial. To me, there seems to be considerable importance to maintaining an organization like the ICRC, simply because it can get the kind of access that others cannot. When it comes to more judgmental organizations, there are plenty to choose from, including Médecins Sans Frontières, which also has a headquarters in Geneva.

Open thread: torture prosecutions

As many articles have described, the appropriate response to allegations of torture by Americans is controversial. Some argue that prosecutions are the only moral course, that they will restore US standing and draw a sharp line under the past. Others argue that, while justified, prosecutions would be a major distraction for the Obama administration, and will undermine progress on other fronts. Of course, domestic political necessities cannot provide excuses for ignoring war crimes.

That said, there is certainly a practical case to be made on both sides. While the general public hasn’t realized it yet, today’s leaders will be judged retrospectively on whether they set us on a path to avoid dangerous climate change. Prosecutions could kick off a new phase of partisan warfare that makes such progress impossible, given the need for support in the senate.

What do readers think? Are prosecutions warranted? Are they absolutely necessary? What costs would be associated with carrying them out, and with ignoring them?

An apology for Alan Turing

In addition to being one of the most notable mathematicians and computer scientists in British history, Alan Turing played a key role in cracking German codes during the Second World War. Despite the importance of his contribution, and the role intelligence from the Government Communications Headquarters (GCHQ) played in helping the allies in the Battle of the Atlantic, Turing was subsequently persecuted by the British authorities for being homosexual.

Turing was stripped of security clearance, criminally prosecuted for consensual sex with another man, chemically castrated with estrogen injections, and eventually driven to depression and suicide.

Recently, a petition was launched insisting that the “British Government should apologize to Alan Turing for his treatment and recognize that his work created much of the world we live in and saved us from Nazi Germany. And an apology would recognize the tragic consequences of prejudice that ended this man’s life and career.” An apology for both his specific treatment and the general persecution of homosexuals seems entirely in order. Hopefully, the government will bow to the petitioner’s request, despite Turing not having any surviving family to apologize to.

While writing a historical wrong is a valid reason for issuing an apology, the incident is also not without contemporary relevance. Just look at the continued policy within the US armed forces to dismiss gay linguists from the military. Once again, people making a significant contribution to national security are being discriminated against on the basis of characteristics that are none of their government’s business.

[Update: 10 September 2009] Admirably, British Prime Minister Gordon Brown issued an apology to Alan Turing: “While Turing was dealt with under the law of the time and we can’t put the clock back, his treatment was of course utterly unfair and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted as he was convicted under homophobic laws were treated terribly. Over the years millions more lived in fear of conviction.” The full statement is on the Prime Ministerial website.

Securing the City

Christopher Dickey’s Securing the City: Inside America’s Best Counterterror Force – the NYPD describes the evolution of New York’s counterterrorism capabilities following the 2001 attacks against the World Trade Centre. Much of the responsibility is attributed to Raymond Kelly, who still serves as Police Commissioner, and David Cohen, his intelligence chief. Key among the changes was the development of much greater intelligence capabilities: everything from officers posted with federal agencies and overseas to developing a broad array of linguists, radiation detection systems, and advanced helicopter optics. All in all, the NYPD developed capabilities to become a mini-CIA, while also strengthening their policing and tactical capacity. All this was done in the face of considerable bureaucratic resistance, particularly from the federal agencies who felt their role was being subverted by the new developments.

Much more than Fred Burton’s book, Securing the City considers the checks and balances associated with greater police power. For instance, Dickey discusses the intelligence operations against people protesting the Republican National Convention in New York in 2004. Dickey also makes passing reference to torture and rendition (without considering the ethics of either at length), as well as surveillance and entrapment-type operations where intelligence officers pretend to help advance terrorist plots, so as to incriminate the others involved. Dickey comes to the general conclusion that the new NYPD capabilities are justified, given the situation in which the city finds itself. He does, however, worry if those capabilities will be properly maintained as budgetary pressures tighten, or when Kelly and the other key architects leave.

Some of the book’s chapters break out from the broad narrative to discuss specific topics, such as weapons of mass destruction or the dangerousness of ‘lone wolf’ operatives who operate independently and without the links to others that make most attackers detectable. While such treatment does make sense, the placement of the chapters can make the book feel a bit randomly assembled at times. Similarly, long italic passages (several pages long) are annoying to read. One other complaint is that the book includes a massive number of names, which can be difficult to keep track of. A listing of ‘characters’ with a brief description of the importance of each would be a nice addition to the front materials.

Dickey is harshly critical of the Iraq war, arguing that is was a distraction that undermined American security. He also argues that the ‘Global War on Terror’ was deeply misguided: “dangerously ill-conceived, mismanaged, and highly militarised.” He is also critical of Rudolf Guliani, who he accuses of taking credit for the successes of others, as well as making poor decisions of his own. His general position on the risk of terrorism is an interesting one. Basically, he thinks the capabilities of Al Qaeda and their sympathizers to carry out attacks in the U.S. has been exaggerated, as demonstrated by just how inept most of the post-9/11 plots were. Nevertheless, he sees the consequences of a terrorist attack as being so severe that even dubious plans being made by incompetent terrorists need to be tracked down and broken up. He repeatedly cites the example of the first World Trade centre bombing, where an inept group failed to advance their aims until Ramzi Yousef joined them and carried their operation to completion. Because of this, he agrees with Burton in thinking that terrorism cannot be treated primarily as a criminal matter. The standard of collecting courtroom-usable evidence is too high to disrupt plots early and effectively, while maintaining the covert capacity to do so again.

Overall, Securing the City is a worthwhile read for those with an interest in security, intelligence, or policing. It’s a nice demonstration of the global importance of some cities in the present age, and the special characteristics of New York. In particular, he praises the role of immigration in the city, citing it as one of the reasons why the NYPD was able to assemble such a diverse and effective capability. Those wanting more context in which to think about the strategic, tactical, and ethical issues surrounding modern terrorism would be well served by giving this book a read.

100 days to Copenhagen

We are now 100 days away from the climate change conference in Copenhagen. Between 12,000 and 15,000 people are expected to attend and, at best, the conference will produce a treaty to succeed the Kyoto Protocol.

Canada is basically going to the conference with no intention of negotiating. The government has been clear that their climate plan is both the least and the most they are willing to do. As such, we won’t be making offers of the sort: “if other countries do X, we will do Y.” Hopefully, the critical players (the US, EU, China, and Japan) will be able to hammer together an agreement that everyone else will then latch onto. When it comes to getting started with a serious program of global climate change mitigation, we are way behind schedule.

Ghost: Confessions of a Counterterrorism Agent

I became aware of Fred Burton through the free weekly defence briefings put out by STRATFOR, his current employer. They stand out from other media reports, both as the result of the details they focus on and the thrust of their overall analysis. While I wouldn’t bet heavily on them being entirely correct, they do play a useful counterbalancing role when read alongside media stories that are generally rather similar.

Ghost describes Burton’s history with the Diplomatic Security Service (DSS) between 1986 and 1993, with an epilogue in 2004. Burton’s work involved collecting intelligence, investigating plots and attacks, protecting diplomats, and so forth. He goes into detail on several of the investigations he was involved in, including the assassination of Pakistani President Muhammad Zia-ul-Haq and the capture of Ramzi Yousef. He also describes some of the tactics and strategies employed by the DSS, as well as by other law enforcement and intelligence agencies. These include the operation of motorcades, cover techniques, and countersurveillance: a tactic he claims special credit for deploying in the protective services.

The book’s greatest strength lies in the details it includes, on everything from the character of different intelligence agencies to equipment used to various sorts of tradecraft. While the breathless descriptions can sometimes feel like the content of a mediocre spy novel, the detailed technical discussions offer insight into how clandestine services actually operate. Of course, it is virtually certain that security and secrecy led to parts of the book being incomplete or distorted. Still, it has a candid quality that makes it an engrossing read. One interesting perspective offered is on the connections between different states and terrorist groups: particularly the relationship between Iran and Hezbollah; between the Palestinian Liberation Organization (PLO), Yasser Arafat, and various terrorist groups; as well as the ways in which modern terrorist tactics evolved from those developed by Black September, the group that carried out the massacre at the 1972 Munich Olympics.

At times, the book’s language is overwrought, especially when Burton is discussing the innocence of the victims of terrorism and the ‘evil’ nature of those who commit it. His reflections on his own ethical thinking may be genuine, but seem somewhat hackneyed and unoriginal at the same time. He never portrays American intelligence or police services as having any flaws, with the exception of when bureaucrats get overly involved and stop brave and effective agents from doing their work well. No consideration is given to the abuses that can occur when effective oversight is not present. Burton is also unrelentingly hostile towards the media: accusing them of offering superficial analysis and being eager to divulge information that undermines the clandestine efforts of intelligence organizations. The book is also a bit too well sprinkled with cliches, such as decisions being made and information being assessed ‘above Burton’s pay grade.’ In general, Burton seems a bit too willing to assume that all US intelligence agents are working on the side of the angels and that oversight and accountability can only hamper their efforts.

One interesting passage mentions how little time was required to circumvent the encryption on Yousef’s laptop. This makes me wonder what sort of algorithm had been employed and how it was implemented, as well as the techniques used by those breaking the encryption. I suspect that the actual encryption algorithm is not what was overcome, at least not through some brute force means. It is far more likely that they were able to compromise the password by comprehensively searching through the data on hand, including temporary files and perhaps contents of RAM. It does you little good to have a hard drive encrypted with AES-256 if it is possible to recover or guess the key in a short span of time.

In general, the book is one I recommend. It has a good authentic feel to it and includes some unusual perspectives and operational details. Burton’s personal dedication, as well as that of the agents he serves with and admires, is both convincing and commendable.

Language changes in Canada’s foreign policy

Apparently, the Conservative government has ordered Canada’s diplomats to stop using the terms ‘child soldier’ and ‘international humanitarian law.’ I heard about it on CBC’s The Current before leaving for work today, and it doesn’t seem to have been picked up much by the mainstream press. Apparently, “gender equality” is also on the chopping block. The changes may have been partly motivated by the continuing saga of Omar Khadr.

The basic points made by those interviewed on The Current are sound ones: that this is an underhanded way to effect foreign policy changes, especially given how the Conservative platform in the last election basically ignored that area of policy-making. Also, the changes run against Canada’s tradition of advocating the humanitarian side of international law, including through the efforts of the Mulroney government to address some of the issues involving children in war situations.

If this government wants to take a public position to back away from international humanitarian law and the protection of children exploited in wartime, they are within their rights to do so. Trying to do it by stealth, however, is a disservice to Canada’s internationalist traditions, its civil servants in the foreign service, and the Canadian public. Developments in areas like the prosecution of war criminals are among the most significant and positive in the recent history of international relations. It would be a shame if Canada took up an obstructionist position (either openly or covertly), especially at a time when the new American administration might be able to soften the rejectionist American stance on institutions like the International Criminal Court.

Ethics and autonomous robots in war

The increasing use of autonomous robots in warfare raises questions about how they can be used ethically and in concordance with international law on armed conflict. While unarmed robots like those used by bomb squads are ethically unproblematic, those with both weapons and an independent capability to make decisions about their use are quite different. This is especially true if they will be used in environments where civilians could be injured or killed.

The BBC has an article about some of the concerns that have been raised and issues that have been considered. In some ways, the trade-offs are similar to those with existing technologies. For instance, there is often a trade-off between how much risk an army exposes its own personnel to, and how effectively it can avoid causing civilian casualties.

Consequences of fear and unchecked state power

A recent editorial on America’s sex crime laws is a nice demonstration of how the protection of the individual from the unjust application of power by the state is one of the most important kinds of human security. Pursuing criminal charges against teenagers who have sex with other teenagers – and even those who send explicit images of themselves to one another – is a lunatic way for the state to apply the law. Rather than protecting anyone, such a petty act of over-enforcement can seriously wreck the lives of those the law was intended to protect: especially when they end up on life-long public sex offender registries that do not specify what led to their initial arrest. All this becomes even more dangerous as the state gets more and more power to observe the lives of its citizens, shrinking the extent of formally private spheres (such as correspondence) where it would not previously have been watching.

It certainly bears remembering that the state is a beast that walks with a heavy, and sometimes clumsy, step. That’s something that must be borne in mind especially when the population is especially afraid of a nebulous threat, such as sex criminals or terrorists. Failing to appreciate that the application of state power can cause profound harm, as well as protection, to human security is what produces injustices like torture, Guantanamo Bay, the internment of those of Japanese descent during the Second World War, and so forth. When people are afraid, they care little about the rights of those they fear; equally damagingly, they show little appreciation for how harsh new approaches undermine the very systems they are established with the intention of protecting. Set upon the wrong course, the state is a far more dangerous entity than any terrorist organization.

Finally, there is the well-reasoned furour about the RCMP performing its own criminal investigations on officers. In any large organization, most people will act to preserve the interests of the group – even at the expense of committing injustices against outsiders. They will naturally give the benefit of the doubt to their colleagues, and they will also share loyalty with those risking their lives for the same purposes. To have any credibility, investigations into such organizations must be conducted by outsiders with independence and a strong mandate to investigate and expose wrongdoing.

Funds for nuclear plant decommissioning depleted

Apparently, the variability of the stock market is having an impact on the dismantling of American nuclear power plants, by driving down the value of the investments set aside to pay for it:

During the past two years, estimates of dismantling costs have soared by more than $4.6 billion because rising energy and labor costs, while the investment funds that are supposed to pay for shutting plants down have lost $4.4 billion in the battered stock market.

The process of decommissioning involves moving millions of pounds of radioactive waste, much of it concrete. Maine Yankee, a plant that is currently being decommissioned, has over 100,000 tonnes of material being carted off one trainload at a time. The American Nuclear Regulatory Commission has polled 18 nuclear power plants on how the downturn is affecting their decommissioning plans. In some cases, plans for decommissioning are being delayed for as long as sixty years: during which time, the plants are simply expected to sit idle.

Having inadequate private funds for decommissioning is a major cause of environmental problems, for instance with facilities like mines. They also cause situations in which profits accrue to investors and costs are shunted off onto future taxpayers. The possibility is one that deserves to be borne in mind when developing national energy policies.