By Paula J. Dobriansky and David B. Rivkin Jr.

Nov. 11, 2020, in the Wall Street Journal

As an insular nation with a population smaller than Ohio’s, Cuba plays an outsize role in both world affairs and U.S. domestic policy. Either President Trump, who won Florida, or Joe Biden, who’d have liked to, should take stock of the Cuban regime’s actions—among them gross violations of human rights, efforts to destabilize the Western Hemisphere, and broad collaboration with China, Iran, North Korea and Russia. The U.S. needs a bold new approach, using corruption-focused sanctions against Cuban officials and their accomplices.

One of the most reprehensible aspects of Cuban statecraft has been its trafficking every year of some 50,000 medical doctors, who are effectively enslaved and forced to work in other countries. “The Cuban regime takes up to 90% of what they charge . . . other countries for each doctor, pocketing considerable revenues and exploiting the doctors, who receive but a pittance,” Michael Kozak, the acting assistant secretary of state for Western Hemisphere affairs, said in an April briefing. Cuban government 2018 figures indicate slave labor brings in $7 billion a year and that it is the regime’s single largest source of revenue, accounting for 60% of its total foreign income.

Past U.S. administrations have pursued various policies toward Cuba, ranging from the decades-long economic embargo and restrictions on travel to a “normalization” policy under President Obama. Mr. Trump rolled back the Obama administration’s policy and reimposed comprehensive sanctions—but more needs to be done.

The U.S. should target Havana’s most heinous policies and do so in a way that would be difficult for its allies and supporters to counteract. The key to the new strategy is the Global Magnitsky Act of 2016, known informally as GloMag. It authorizes sanctions to cut off Cuban officials and their accomplices from global financial services, augmenting traditional sanctions that have cut them off from the U.S. financial industry.

The 2012 Magnitsky Act targeted individual Russian officials involved in the killing of lawyer Sergei Magnitsky in prison in 2009. The GloMag expanded that regime to cover foreign government officials implicated in human-rights abuses and corruption anywhere in the world.

President Trump further expanded the GloMag program in 2017, through Executive Order 13818, which broadens the scope of conduct that can trigger sanctions from “gross violations of internationally recognized human rights” to “serious human rights abuse,” and replaces “significant acts of corruption” with the broader term “corruption.” Since the law’s passage, the U.S. has imposed GloMag sanctions on individuals and entities from more than 20 countries, most recently designating for corruption Gibran Bassil, a senior Lebanese official. Still, these designations came in a trickle, rather than a wave.

Sanctions—including asset freezes, travel bans and exclusion from financial services—should be imposed on Cuban government officials involved in a variety of acts, all of which inevitably involve corruption, such as human trafficking, violating sanctions against Iran and North Korea, and drug trafficking. Sanctions should also target their agents or associates, whether or not they work for the government. There is sufficient available evidence that the Treasury’s Office of Foreign Assets Control could quickly make GloMag designations and rapidly adjust them as the targets attempt to circumvent sanctions. These designations could also be made even more expeditiously by a presidential executive order.

If adroitly deployed on a large scale, GloMag sanctions would cut deeply into Havana’s revenues and impair the ability of virtually all Cuban officials and their allies to do business or even travel. GloMag and other legal tools also allow the U.S. to reach third parties, who have financial or other dealings with targeted Cuban officials. Those parties could be subjected either to sanctions or criminal prosecution. The availability of these legal tools would reduce support for the Cuban regime world-wide.

Because European Union governments and other U.S. allies have vigorously embraced anticorruption policies, they would find it difficult to oppose this strategy. Canada, Britain and several other Western countries have GloMag-like sanction statutes of their own.

Domestically, a strong stand against the modern slave trade that underpins Havana’s statecraft should draw bipartisan support. Internationally, given Britain’s indispensable role in eradicating the trans-Atlantic slave trade in the 19th Century, London should be a U.S. partner in cracking down on Cuba-driven slave trade and corruption. By strategically employing GloMag, the U.S. can curtail Cuba’s malign activities and push the Cuban regime toward major reforms.

Ms. Dobriansky is a senior fellow at Harvard’s Belfer Center. She served as undersecretary of state for global affairs, 2001-09. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/how-trump-or-biden-can-get-serious-about-human-rights-in-cuba-11605134209

By David B. Rivkin Jr. and Lee A. Casey

Oct. 19, 2020, in the Wall Street Journal

As Donald Trump and Joe Biden debate how to deal with malign Chinese behavior, Beijing’s National Bureau of Statistics reports its economy has largely recovered from the Covid-19 pandemic, growing 4.9% year-on-year in the third quarter. Meanwhile American class-action lawyers and the attorneys general of Mississippi and Missouri are suing the Chinese government over the novel coronavirus. Plaintiffs accuse Beijing of various forms of misconduct, ranging from negligence in handling the original infections in Wuhan to the reckless operation of biolabs and even perpetrating bioterrorism against the U.S.

Some of these claims are more plausible than others, but all face an insurmountable obstacle in court: the Foreign Sovereign Immunities Act of 1976, which prevents most lawsuits against foreign countries in U.S. courts. Litigation could be a way of holding China accountable, but only if Congress changes the law.

FSIA makes a few limited exceptions to immunity. Although lawyers in these cases have cited them, all seem clearly inapplicable. One permits suits against foreign governments based on their commercial activities in the U.S., or elsewhere if there is a direct effect in America. But these complaints allege governmental, not commercial, negligence or duplicity in handling the epidemic.

The tort exception allows foreign governments to be sued for wrongful actions, whether negligent or intentional. But Supreme Court precedent limits the exception to torts that take place entirely within the U.S. It would cover, for instance, an auto accident in Washington but not in Beijing.

There’s also an exception for terrorism, but that requires either that the defendant be designated a “state sponsor of terrorism” by the U.S.—currently only Iran, North Korea, Sudan and Syria are—or a specific act of international terrorism within the U.S. A biological attack would surely qualify, but there’s no evidence of that here.

FSIA gives federal courts jurisdiction over all lawsuits against foreign governments, and it’s almost certain judges will dismiss these actions even if Beijing refuses to participate in the proceedings. Reinterpreting any of the FSIA exceptions to cover suits involving the pandemic would open the door to further attacks on sovereign immunity. The U.S., a sovereign state itself, should be careful about creating broad new exceptions, and judges should be especially cautious, since they have neither the authority nor the expertise to conduct foreign policy.

That said, Congress has the power to limit or withdraw a foreign state’s sovereign immunity, and it should consider doing so in response to Covid-19. Such changes to deal with novel problems are legitimate and well-recognized. In May the Supreme Court held unanimously in Optai v. Republic of Sudan that plaintiffs in a lawsuit over al Qaeda’s 1998 attacks on U.S. embassies in Africa could recover punitive damages under an amendment to FSIA enacted in 2008.

Congress could enact a new exception to FSIA for cases in which a foreign state has failed to inform, or deliberately misinformed, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December to comply with the 24-hour notification requirement of the 2005 International Health Regulations would be an important factor to consider.

Such a statute could either create a new federal tort or give federal courts jurisdiction over suits alleging injuries under state law. As with the Justice Against Sponsors of Terrorism Act of 2016, Congress should authorize the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harms.

The U.S. judiciary is respected around the world and would be a better venue than any governmental or international investigation for getting at the truth of Covid-19. Beijing has accused the U.S. military of creating the virus and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. Chinese nationals have filed several lawsuits in China against the U.S. military, the Centers for Disease Control and Prevention and other American government entities. In these pages in May, a senior Chinese official, Xie Feng, suggested that the virus might have originated outside China. If Chinese officials have evidence to support any of these assertions, they could introduce them in court. In any case, their claims underscore the need for an impartial inquiry.

Congress could also withdraw immunity from international organizations that allegedly aided and abetted China’s efforts to play down the virus’s transmission and the health risks. Western intelligence services have suggested that Beijing gave detailed instructions to World Health Organization on what it should say. Plaintiffs could use the discovery process to identify other governmental and private-sector collaborators and hold them accountable for their Covid-related activities and other likely offenses, such as garden-variety corruption, committed while collaborating with Beijing.

They could also explore evidence that Covid-19 stemmed from an accidental release from a Wuhan biolab.

Beijing wouldn’t be able to ignore U.S. lawsuits. If it refused to participate, U.S. courts would enter enforceable default judgments. If it did participate, it would have to submit to discovery. It may be tempted to cheat in this process, but modern discovery techniques make that exceedingly difficult, and cheating would entail further liability and judicial punishments.

The Chinese government could try to avoid complying with any court-ordered damages and injunctions. But that wouldn’t be easy. Successful plaintiffs could collect judgments against Beijing by seizing Chinese government-owned commercial property around the world and the proceeds of sales of government goods and services. Ignoring injunctions would lead to monetary fines and other punishments.

Several bills featuring some of these provisions have been introduced by Sens. Tom Cotton, Josh Hawley, Martha McSally and Marsha Blackburn. Congress should proceed with caution. The law is usually a blunt and inflexible policy tool, wielded by an unelected judiciary rather than the president and Congress, where the Constitution vests the power to run foreign affairs. The political branches are accountable for their decisions in a way that the judiciary is not.

Yet Covid-19 has taken a tremendous human and economic toll world-wide. Lawsuits may become a powerful instrument for changing China’s behavior and can aid U.S. diplomatic and economic efforts to accomplish the same goal. Deterring China from future aberrant behavior requires holding it accountable for its Covid-19-related misconduct.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/china-deserves-a-day-in-court-11603148463

By David B. Rivkin Jr. and Andrew M. Grossman

Sept. 26, 2020, in the Wall Street Journal

It speaks volumes that the early opponents of Judge Amy Coney Barrett’s confirmation have almost nothing to say about the work that has defined her career. Her scholarly and judicial writings place her at the center of the mainstream consensus on the judge’s role as an arbiter, not a lawmaker, who abides by the duty to enforce the law as written.

“A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference,” she wrote in a 2017 article, shortly before she took the bench. That requires “fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking.” Judging also requires humility, to guard against “the feeling of infallibility” that often tempts judges to stray from the law. After all, “courts are not always heroes and legislatures are not always villains. They are both capable of doing good, and they are both capable of doing harm.” Ultimately, “the measure of a court is its fair-minded application of the rule of law.”

Her opinions for the Seventh U.S. Circuit Court of Appeals show skilled legal craftsmanship and sensitivity for the people whose rights are at stake. Among her most influential decisions is Doe v. Purdue University(2019), on the rights of college students accused of sexual assault. The case involved a male student who was suspended from school and expelled from ROTC based on his girlfriend’s accusation that he had groped her while she slept. He disputed the charge, but the university refused to disclose the evidence against him, to consider exculpatory evidence, and to interview witnesses—even the accuser, whose account it deemed more “credible” than his. All this was “fundamentally unfair,” Judge Barrett concluded, falling “short of what even a high school must provide to a student facing a days-long suspension.”

The male student alleges that the university “tilted the process against men accused of sexual assault” to comply with since-rescinded U.S. Education Department guidance, and thereby discriminated against him on the basis of sex in violation of Title IX. Judge Barrett’s decision, joined by two other female judges, allows that claim to go foward.

What’s notable about the opinion is Judge Barrett’s skill in working through the complexities of the parties’ arguments—which involved disputes over technical legal matters such as standing and remedies, among many others—without losing sight of the bigger picture. Her decision was not an unalloyed win for the male student, who lost on his claim for money damages. But the persuasive force of its reasoning made it an instant landmark in the wave of litigation sparked by the 2011 Education Department guidance. More than half the courts of appeals and dozens of district-court cases have already cited it.

Judge Barrett brought the same analytical acumen to bear in Kanter v. Barr (2019). Her dissenting opinion is an originalist tour de force on the Second Amendment’s application to “felon dispossession” laws, which restrict gun ownership by convicted criminals. The majority held that the government may categorically strip even nonviolent felons of Second Amendment rights. Judge Barrett took a narrower view based on the amendment’s text and history.

Surveying laws and practice around the time of the amendment’s framing in the late 18th century, she found support only for keeping weapons from those deemed dangerous and likely to misuse them. That category, she concluded, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness”—like the plaintiff, who had been convicted of mail fraud, or hypothetical felons convicted for “selling pigs without a license in Massachusetts” or “redeeming large quantities of out-of-state bottle deposits in Michigan.”

In U.S. v. Watson (2018), a Fourth Amendment case, the court considered whether police had reasonable suspicion to block a parked car based on an anonymous report that “boys” were “playing with guns” nearby. Judge Barrett, writing for a unanimous panel, concluded they didn’t. Because Indiana law permits carrying a firearm in public without a license, that tip didn’t create a reasonable suspicion of a crime, even if it might have been prudent for police to visit the scene and speak with those involved voluntarily. Judge Barrett rejected out of hand the government’s argument that a more forceful response could be justified based on the locale: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.”

Judge Barrett has also been sensitive to the needs of law enforcement. In Sanzone v. Gray (2018), she joined two other judges in an unsigned opinion holding that officers were entitled to qualified immunity from money damages when a suspect pointed a gun at officers immediately before he was shot. But she has also denied immunity in a series of cases in which officers allegedly lied or fabricated evidence in warrant affidavits. Her decisions hew close to the facts and the law, neither deferring to law enforcement nor accepting unfounded claims of abuse.

Judge Barrett has been especially attuned to overreaching by administrative agencies. She joined several opinions declining to defer to government agencies’ interpretations of their own regulations—a controversial doctrine known as Auer deference, which four Supreme Court justices said last year they were prepared to overturn.

She has also been aggressive in scrutinizing agencies’ factual determinations, particularly in Social Security cases. If C.S. Lewis was right that “integrity is doing the right thing even when no one is watching,” then these decisions deserve special appreciation, because they hold the government to its burden when the outcome matters to no one but the litigants.

A final illustration of Judge Barrett’s temperament and discernment can be found in two decisions on immigration law. In Cook County v. Wolf (2020), she dissented from a panel opinion blocking the Trump administration’s “public charge” rule, which restricts admission of aliens likely to depend on public benefits. Her dissent was vindicated when the Supreme Court stayed the injunction. In Morales v. Barr (2020), however, she wrote a ruling against an administration policy preventing immigration judges from “administratively closing,” and thereby delaying, deportation cases. While the two opinions differ in their bottom-line results, what they share in common is diligent and faithful statutory analysis following the example of Justice Antonin Scalia, for whom Judge Barrett clerked.

Judge Barrett’s body of work shows her to be independent, discerning, diligent and fair. That’s why her opponents are likely to resort to personal attacks.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/what-kind-of-judge-is-amy-coney-barrett-11601154273

By David B. Rivkin, Jr., and George Beebe

31 March 2020 in The Hill

Few people regard the novel coronavirus pandemic as an intelligence failure. And, judging by conventional standards, it is not one. The U.S. Intelligence Community (IC) was created to collect and analyze secret information about our adversaries’ capabilities and intentions that pose strategic threats to American national security. Despite allegations by some foreign propagandists and domestic conspiracy-mongers, COVID-19 was not dreamed up in some biological weapons laboratory and unleashed diabolically on the world. Its origins in Chinese “wet markets” were far more prosaic. Today’s rapidly emerging global dangers could not have been uncovered by intercepting secret Chinese communications or capturing their plans for biological warfare.

In such situations, traditional approaches to gathering and analyzing intelligence can only make limited contributions. They can help to determine what secretive governments, such as those in China and Iran, actually know about the spread of COVID-19 and its lethality, and to what degree they may be hiding the truth. And some spinmeisters, evidently intent on both polishing the IC’s image and tarnishing that of President Trump, already have been portraying classified briefings in January and February as an intelligence success because they did just that.

But the notion that Trump is guilty of failing to heed these briefings — or that Sens. Richard Burr (R-N.C.), Diane Feinstein (D-Calif.), and other U.S. senators are legally and ethically culpable for allegedly dumping stocks in response to them — overstates how actionable they were. Anyone who doubts this should ask whether the CIA itself took early action to protect its own personnel and facilities from the coming wave of danger that it supposedly forecast.

Rendering the entirely unsurprising judgment that Beijing was failing to level with its people or the world is not the same as sounding urgent alarms about a global health crisis that could lead to world economic depression. And making a marginal contribution to scaling a deadly threat after it has emerged is not why American taxpayers devote tens of billions of dollars annually to our intelligence cadre. The fundamental purpose of intelligence is to warn effectively about incipient dangers before they become urgent realities, not to help measure their dimensions — or advance partisan political agendas — afterward.

In the context of this larger purpose, the emergence of the novel coronavirus crisis highlights some unacceptable weaknesses in American intelligence. Since its inception in 1947, the IC’s primary mission has been to warn of deliberate, secretly planned attacks by our adversaries, whether they are powerful state actors or non-state terrorists. This challenge endures, as great power competition intensifies, and terrorism persists. While the IC’s record on this is mixed, it is at least a task well-suited to high-technology intelligence collection and to analysis, breaking down a problem and studying its component parts individually.

Unfortunately, our globalized 21st century-world also produces national security threats of a different kind, those that arise when small, non-secret factors combine to produce a devastating cascade of knock-on effects that no one has planned or anticipated. Novel coronavirus turned into a crisis not because it is deadlier than the SARS virus that emerged in China in 2002 (its fatality rate is lower, though it has claimed more lives), but because it debuted in a more entangled but less trusting world, whose weaker physical and psychological antibodies were not up to the challenge. This is the type of a problem that requires synthetic rather than analytic thinking: examining interconnections and feedback loops that can cause small developments to mutate into big dangers.

As it stands today, the IC is ill-staffed and poorly organized for warning about such emerging “complex systems” threats, unfolding in a chaotic world, before they become unmanageable crises. The IC’s enormous cadre of narrowly focused analysts and collectors is ideal for handling traditional intelligence tasks, where uncovering hidden technical details can spell the difference between success and failure in dealing with foreign adversaries.

But large organizational size and narrow specializations can be real handicaps when the task is to bring together a wide range of disciplines and understand the interconnections among factors that could produce “perfect storms” of danger. And old cultural and regulatory barriers between foreign intelligence and domestic American affairs impede understanding the feedback effects between factors internal to the United States and those beyond our borders.

To meet this type of challenge, intelligence must operate on a smaller and smarter scale. It must rely less on secret information, and more on interdisciplinary teams of experts tasked with understanding the larger context of events. In cases such as the novel coronavirus crisis, it must assemble diverse groups of doctors, epidemiologists, economists, business leaders, data scientists, psychologists and other experts who are not typically central players in intelligence assessments.

And it needs to be much better informed about what American entities are doing at home and abroad, because these entities are often important parts of complex international systems. Intelligence experts cannot understand how perfect storms of danger develop beyond our borders — nor can American policymakers know how to deal with them effectively — unless they also understand the ways U.S. factors and capabilities affect them.

Rising to this challenge also requires a much more cooperative and trusting relationship among the IC, White House and Congress. To provide meaningful assessments, intelligence organizations must engage policymakers in their discussion of systemic variables and feedback loops early in the process. They must view their role as helping policymakers to identify variables they can influence, directly and indirectly, and to anticipate the possible impacts on the system of various policy options. They must help U.S. leaders strike an effective balance between punishing Beijing for hiding the true extent of COVID-19’s early spread — a necessary deterrent to future misconduct — and pushing it too far, particularly in an environment where the Communist Party’s reputation and Chinese President Xi Jinping’s own sagacity have taken a beating, and adopting measures that might boomerang against our own national security.

None of that can happen when the IC is an active player in domestic political warfare. In this regard, press leaks about the IC’s supposedly perspicacious warnings about the novel coronavirus threat are actually indications of collective failure. Such internecine strife destroys the trust necessary for frank dialogue among those attempting to understand the dynamics of problems such as the novel coronavirus crisis, and those attempting to manage them.

Reckoning with these problems should be an urgent matter for the acting Director of National Intelligence, a position created to bring together diverse entities and foster collaboration across the IC. The cascade of developments flowing from the outbreak of COVID-19 is far from over. To one degree or another, the United States, Europe, Russia and China all will be wounded — physically, economically and psychologically. These wounds could very well contribute to a dangerous new phase of great power competition. Understanding the dynamics that could send it spiraling beyond manageable bounds into deadly warfare is a vital task for American intelligence.

David B. Rivkin, Jr., is a constitutional lawyer who has served in the Justice and Energy departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He also worked for a number of years for the Defense Department as a defense and foreign policy analyst.

George S. Beebe is vice president and director of studies at the Center for the National Interest, former head of Russia analysis at the CIA, and author of “The Russia Trap: How Our Shadow War with Russia Could Spiral into Nuclear Catastrophe.”

Source: https://thehill.com/opinion/national-security/490160-before-this-pandemic-ends-intel-agencies-should-prepare-for-a-world-of-threats

Federal leadership is crucial, but there are measures only states have the authority to take.

By David B. Rivkin Jr. and Charles Stimson

March 19, 2020, in the Wall Street Journal

The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.

All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.

Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.

The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.

The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.

To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.

Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domesti law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.

Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.

Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.

Source: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429

The winner in this deepening struggle between the White House and the intelligence world is not yet clear. But the loser is already evident: American national security.

By David B. Rivkin, Jr., and George Beebe

28 February 2020 in The National Interest

What does one do when the country’s intelligence leadership is acting, well, not very intelligently? That is the inescapable question prompted by last week’s reports that a senior representative of the Office of the Director of National Intelligence (ODNI) told members of the House Permanent Select Committee on Intelligence (HPSCI) in an official briefing that Russia is interfering in the 2020 U.S. presidential election and hopes to see President Donald Trump re-elected.

According to the New York Times account, Trump learned of this briefing only after the fact. And if press reports are accurate, the briefer cited no direct evidence of meddling on Trump’s behalf or of Russia’s broader intentions regarding U.S. presidential elections. Rather, the case was apparently based on inferences from such inherently ambiguous evidence as Russian hacking of the Ukrainian energy firm Burisma, supposedly done to help Trump dig up dirt on Hunter Biden. Such inferences were evidently reinforced by an assessment, lacking in analytical merit but redolent with politics, that the Kremlin would somehow naturally favor Trump over other 2020 presidential candidates.

Republican HPSCI members reportedly erupted in response. They disputed the plausibility of an assessment that Russia would prefer a president who has built up the U.S. military, proved willing to use force in the Middle East, greatly stiffened sanctions on Moscow, fought Russia’s Nord Stream 2 gas pipeline project, and toughened other policies affecting Russia. Why would Russians not favor Democrats who would cut the U.S. defense budget, balk at using military force, and impose a ban on fracking that would drive up global oil and gas prices and benefit Russia’s energy export earnings? Trump, in turn, called the allegation of Russian support a “hoax.”

Should Intelligence Assessments Be Taken with a Grain of Salt?

Should intelligence overseers in Congress, the White House, and media subject the judgments of professional analysts to tough scrutiny? History says yes. Formulating intelligence assessments is an inherently uncertain and difficult business. Even establishing basic facts is a challenge when dealing with adversaries, who attempt to shroud their capabilities in secrecy. Intelligence assessments of the Soviet nuclear forces buildup, for example, were plagued by both over- and under-estimations, leading first to erroneous American concerns about a “missile gap” under Khrushchev, and later to surprise when the Soviets tried to put missiles in Cuba and then pushed well past nuclear parity in the 1970s.

In fact, one of the key reasons for the consistent underestimations of the Soviet nuclear force posture circa 1970s–1980s, was not a failure of the U.S. technical collection capabilities, but the CIA’s failure to accept that Moscow’s key strategic goal was to be able to fight and win a nuclear war. Ironically, Moscow was not trying to hide its thinking on this issue, as numerous Soviet military officials laid out their nuclear war-fighting ethos in published books and articles. However, U.S. intelligence analysts discounted this evidence, believing that Moscow, whatever it might have been publicly saying and doing, somehow subscribed to a mutually assured destruction theory as the best way to both maximize deterrence and minimize the risks of nuclear war.

By contrast, in earlier years, the CIA greatly overestimated the then-existing Soviet nuclear capabilities. By the late 1950s, the Soviet Union was locked in a strategic arms competition with the United States, and it was losing badly. America enjoyed a considerable and growing advantage in both long- and intermediate-range nuclear forces. Yet, having embarked on an ambitious foreign policy designed to test American resolve, and possibly drive U.S. forces out of Berlin, Khrushchev was not prepared to curtail his aspirations.

To enhance his military capabilities vis-à-vis the United States, he could have deployed a number of costly, inaccurate and vulnerable first-generation ICBMs. Alternatively, he could have chosen to invest the USSR’s large, but not unlimited, resources in the development of more advanced land-based missiles (with deployment many years in the future) and other, more reliable, strategic delivery systems that might tip the nuclear balance in his favor.

Sensibly enough, he chose the latter course. However, to maintain the highest quality deterrence against the West and, even more to the point, to support the enhanced Soviet prestige necessary for an ambitious foreign policy, Khrushchev also engaged in an elaborate deception designed to make the West believe that Moscow had already fielded strategically meaningful numbers of advanced ICBMs. The Soviet leader’s public statements were supported by a carefully tailored intelligence disinformation campaign that not only tried to hide Moscow’s actual capabilities but also masked Soviet insecurities by suggesting Khrushchev wanted to challenge directly the United States in building up nuclear forces.

From Khrushchev’s perspective, the plan worked like a charm, at least temporarily. The alleged “missile gap” between the United States and the USSR was seized upon by a young Democratic Senator from Massachusetts, John F. Kennedy, to discredit the Eisenhower Administration and to defeat then-Vice President Richard M. Nixon in the 1960 presidential election. Not only did the Soviet Union avoid wasting billions of rubles, but Khrushchev concluded that he could outmaneuver the inexperienced Kennedy.

To be sure, Moscow’s gambit ultimately failed, as the U.S. eventually discovered that Moscow was not “cranking out missiles like sausages,” in Khrushchev’s oft-used expression, and blocked the Soviets from installing medium and intermediate-range missiles in Cuba. This did not, however, negate the fact that for a considerable period of time U.S. intelligence estimates about Soviet capabilities were profoundly wrong.

Divining Intentions Is Extra Hard

Discerning adversary capabilities is difficult enough, particularly when dealing with closed societies with strict government controls on information. But divining an adversary’s intentions is an even more challenging task. In part, this is because capabilities, even when ascertained with the utmost precision, often lend themselves to multiple explanations of intent. Americans accurately recognized that Japan would have enormous disadvantages in an extended war with the United States, but they did not imagine that Tokyo might nonetheless attempt a knock-out blow of the Pacific Fleet at Pearl Harbor. Israelis correctly understood that Egypt could not hope to defeat their forces on the battlefield, but they failed to consider that Sadat might still see some advantage in launching a surprise offensive in the 1973 Yom Kippur War.

Moreover, decisions made by heads of state can often surprise even their closest aides. Intelligence reporting can accurately convey information from highly-placed foreign officials, yet still miss the mark when it comes to portraying foreign intentions. This problem can arise either because the officials just do not know enough about the intentions of their superiors, or because their superiors changed their minds, or simply because their superiors chose to lie to them. Saddam Hussein, for example, deceived his own generals in leading them to believe that, despite the international sanctions imposed in the aftermath of the first Gulf War, Iraq retained operational weapons of mass destruction

The difficulty in grasping intentions is particularly acute when it comes to foreign influence operations. Often, media operations are aimed at little more than reinforcing a state’s diplomatic messaging. The BBC and Voice of America have long broadcast content into countries dominated by state-controlled media, hoping to provide audiences with alternative perspectives on events. But sometimes media campaigns are not intended to persuade, but to deceive and even subvert—to tear the social and political fabric of their target audiences and undermine government authority.

The objectives of such subversion, however, can be agonizingly difficult to ascertain with much confidence. Sometimes the goal of subversion can be to topple a foreign authority—to so damage the operations of a regime so that it can no longer function effectively and crumbles from within. In other instances, the aim is less ambitious and more pragmatic—to force the target leadership to do things it would rather not do, such as refrain from behavior perceived as threatening. And when creating controversial online content also happens to be the most effective way to attract views, generate clicks, and bolster advertising revenues, separating subversive intent from other more mundane motivations in digital media campaigns becomes even more challenging.

More generally, given the past record of intelligence failures—particularly when it came to the analysis of intentions of various hostile powers, and the fact that there are still ongoing debates about such key Cold War episodes as the real Soviet motivations that drove a series of Berlin crises, and the Cuban Missile Crisis—the notion that the judgments of the Intelligence Community about Russian intentions virtually delivered in real-time today should be accepted without skepticism is nothing short of risible.

What Does Moscow Want?

In view of such inherent challenges, what can we say about the renewed controversy over Russian electoral meddling? There is no doubt that Russians are continuing to post digital news and social media content aimed at American audiences. It is also clear that Russian hackers have targeted American electoral databases and vote-counting systems in the past. What is less clear are the motivations that lie behind this activity.

That it is aimed at securing the victory or defeat of any particular candidate or party is an unproven hypothesis at best. The Kremlin cannot fail to realize that any significant pro-Trump meddling would be exposed and would hurt rather than help his electoral prospects. This being the case, one might plausibly argue that the real reason Moscow might unveil some footprint of a pro-Trump campaign is because it would expect this to be discovered and actually harm Trump. In fact, such a scenario illustrates perfectly how difficult it is to ascertain Putin’s intentions, even if one had perfect evidence of what Moscow was actually doing in U.S. elections.

Source: https://nationalinterest.org/feature/election-mirage-why-claims-russian-meddling-should-be-questioned-127992