Philip Bobbitt

Philip Bobbitt

Bobbitt is a Fellow of the American Academy of Arts and Sciences. He is also a Fellow of the Club of Madrid. He is a Life Member of the American Law Institute, and a member of the Council on Foreign Relations, the Pacific Council on International Policy, the International Institute for Strategic Studies and the Executive Council of the American Society of International Law. He is a member of the Commission on the Continuity of Government. He has served as Law Clerk to the Hon. Henry J. Friendly (2 Cir.), Associate Counsel to the President, the Counselor on International Law at the State Department, Legal Counsel to the Senate Iran-Contra Committee, and Director for Intelligence, Senior Director for Critical Infrastructure and Senior Director for Strategic Planning at the National Security Council. Before coming to Columbia he was A.W. Walker Centennial Chair in Law at the University of Texas Law School. He is a former trustee of Princeton University; and a former member of the Oxford University Modern History Faculty and the War Studies Department of Kings College, London. He serves on the Editorial Board of Biosecurity and Bioterrorism.

The Need for a Press Shield Law

 

A.

The emergence of market states will have a profound effect on the conduct of warfare and the maintenance of defense establishments.  The general trend away from conscription and toward all-volunteer forces, the priority given to force protection that has accelerated the deployment of armed drones and impeded successful humanitarian interventions, the outsourcing to private firms of diplomatic security, logistics and many other traditional military functions, all reflect this development.  But so too does a much less noticed consequence of the move to market states, the vast increase in the power of private actors — corporations, profit and non-profit, NGOs and even individuals.  “They are becoming,” Gregory Treverton wrote, “in ways hardly realized let alone charted, not the objects of the international order but its subjects, its architects.  They are becoming the setters of international norms, not free riders on rules set by states.”[1]

In such a situation, it would hardly be surprising that intelligence operations will also be profoundly affected.  We should expect greater outsourcing of intelligence collection and analysis — NSA’s reliance on private sector servers is one example on the collection account — and we might also expect private corporations to increasingly undertake intelligence operations — spying — on their own behalf or that of their clients, just as FedEx and UPS have steadily bankrupted the less nimble and less efficient US Postal Service.

When the media or its allies in the legal community undertake to collect against the US government, for profit and for ideological reasons, is this espionage?

Let’s begin with the closest case, not with The News of the World hacking into police cell phones, but with the government person who claims to be a whistleblower.  If he steals government property or secret information when there are other statutory and regulatory channels available to him that will expose government wrongdoing, does he forfeit the mantle of the whistleblower?  It’s no good to say that his motives may be pure; the Cambridge Five had the purest of motives.  Nor does it exculpate the illicit collector that he is not working for an enemy government, or even that his actions will not benefit the foreign adversaries of the US government; it is enough to qualify him as a spy that his activities are not restricted by service to US interests as these are defined by our democratic methods.  That he is collecting for an American ally, for example, is sufficient to make him a spy.

Despite the general outrage at the Department of Justice’s suggestion that a Fox News reporter had conspired with a State Department employee to violate 18 US Code § 793 (which makes the unauthorized disclosure of national defense information a crime), it is not hard to see how Justice came to this conclusion (a conclusion endorsed by the federal judge who signed off on the search warrant of the reporter’s logs precisely on the finding of probable cause that the reporter had indeed committed a crime.)   Emails from the reporter set up a system of aliases for himself and the employee; devised a system of coded communications to arrange clandestine meetings; specifically solicited US intelligence on North Korea that the reporter specified was highly classified; and the reporter published the results.  His goal, he said in one email to the employee — who later claimed he had been suborned by appeals to his vanity and the hope of a position at a think tank — was to push American policy in the direction the reporter thought advisable.

The firestorm of reaction to these disclosures did not come from an inflamed public, whose interest in the US’s preserving secret sources of information inside the North Korean government about its nuclear plans is hardly negligible, but from the news media.  The president publicly apologized for the government’s temerity in seeking the warrant, though with the number of persons privy to the secret information it is hard to see how DOJ could have gotten an indictment otherwise.

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A Beautiful & Tragic Speech

 

On May 23, President Obama offered this assessment of the changed strategic environment.

From Benghazi to Boston…. we recognize that the threat has shifted and evolved from the one that came to our shores on 9/11. … Lethal yet less capable al Qaeda affiliates. Threats to diplomatic facilities and businesses abroad. Homegrown extremists. This is the future of terrorism. …[W]e have to recognize that the scale of this threat closely resembles the types of attacks we faced before 9/11. …[I]f dealt with smartly and proportionally, these threats need not rise to the level that we saw on the eve of 9/11.

This conclusion is open to the charge of wishful thinking, and in the days following the president’s speech that charge was often made.  It is notable that after the London bombings of 2005, after the Fort Hood killings, after the Woolwich murder and the Boston atrocities, there were always persons who wished to believe that the terrorists responsible were really no more than deranged or alienated individuals with no operational connection to al Qaeda.  More than one newspaper has been embarrassed by jumping to this conclusion and the president is giving a hostage to fortune by doing the same thing.

But wishful thinking is not the problem; sometimes our hopes are fulfilled and our fears unwarranted.  The real flaw in the president’s speech lies in its strategic assessment.  The strategic reason we must align our efforts with law is not that now we can afford to do so, but rather that establishing the rule of law is our war aim.  And the reason this is so has to do with the underlying and evolving nature of our vulnerability, which is changing the nature of war.

This is a point that is so continually missed that it may make sense to review it, once again.

Commenting on the president’s speech in The New Yorker, John Cassidy recalled something British comedian Terry Jones had written more than a decade earlier:

With most wars, you can say you’ve won when the other side is either all dead or surrenders. But how is terrorism going to surrender? It’s hard for abstract nouns to surrender.

Like most people, I imagine, Cassidy thinks that victory is the defeat of the enemy.  If terror is a state of mind — an “abstract noun” — it cannot be defeated.  But victory in warfare, unlike in football or chess, is not the defeat of the enemy.  It is the achievement of the war aim.  Certainly we should have learned by now, after Vietnam and Iraq and Afghanistan, that you can kill a lot of the enemy and still not achieve the war aim.

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In four important areas, the White House set new foreign policy priorities: nuclear non-proliferation with the objective of ridding the world of nuclear weapons; a shift in emphasis from the traditional, Atlanticist orientation of the United States to a recognition of the growing importance of China as a potential collaborator; a reversal of the hostility felt by Muslims in the Middle East toward the United States; and progress in the wars on terror by quitting Iraq and surging in Afghanistan.  In each of these areas, the president made important addresses and initiated policy approaches; and in each area, he was disappointed while the diplomatic overtures of the last four years have been generally quite positive, indeed more positive than at any time in the last decade.

Non-proliferation.  This subject played out in two principal arenas, US-Russian relations and the effort to stem the development of an Iranian nuclear weapons capability.  With respect to Russia, the White House inaugurated a “re-set” in the hope of overcoming Russian hostility in the aftermath of NATO enlargement in central and eastern Europe and the promise of defensive ballistic missile technology to former Soviet clients.  The result has been disappointing as the Russian regime has moved studiedly in the direction of anti-US propaganda (anyone watched the RT channel lately?), attempting to lead a motley coalition of anti-American states, ratcheting up anti-Washington rhetoric and defining its own claim to leadership in Moscow by its resurrection of a distinctly Russian, vaguely paranoid  anti-Western profile.  We are, I am not sorry to say, quite a ways from worldwide nuclear disarmament.  At the same time, however, the New START Treaty was smoothly negotiated and skillfully shepherded through Senate consent.  Although it eventually led to resentment, US diplomacy did win Russian approval for the Security Council resolution that served as the basis for intervention in Libya.

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