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

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

15 January 2020 in the Wall Street Journal

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

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/congress-declares-war-but-only-the-president-can-make-it-11579133486

Obama let Tehran get into the medical-isotope business, contrary to the intent of Congress.

By David B. Rivkin Jr. and James L. Connaughton

Oct. 12, 2017, in the Wall Street Journal

As President Trump decides whether to certify his predecessor’s nuclear deal with Iran, here’s another wrinkle he should keep in mind: The deal’s implementation violates federal law, namely the American Medical Isotopes Production Act of 2012.

That statute seeks to end the nuclear-proliferation risk associated with foreign production of radioactive substances for medical use using weapons-grade highly enriched uranium. U.S. doctors use a molybdenum isotope, moly-99, in 20 million procedures annually to detect early cancer, heart disease and other lethal illnesses. But the U.S. has no domestic production capability, relying instead on foreign suppliers who obtain the necessary highly enriched uranium from the U.S. government.

In enacting the 2012 law, Congress sought to end exports of highly enriched uranium while ramping up sufficient domestic production of moly-99 to satisfy U.S. needs. Since America uses roughly half of the world’s moly-99, robust U.S. production would cramp the ability of foreign isotope suppliers to control the market and sell their wares globally.

Under the 2012 law, the National Nuclear Security Administration is supposed to implement programs to encourage U.S. entrepreneurs to develop ways of making moly-99 without using highly enriched uranium, with the goal of making enough of it to justify permanently ending U.S. exports of highly enriched uranium. The Obama administration conspicuously failed to fulfill the law’s requirements. Moly-99 is not being produced in the U.S. and the U.S. government continues to export weapons-grade uranium overseas.

The Iran deal makes matters worse. It specifically permits Tehran an unlimited right to generate highly enriched uranium for use in medical isotope production. Iran is free to join with other producers to control supply and price. Earlier this year Ali Akbar Salehi, Iran’s former lead nuclear negotiator and now head of the Atomic Energy Organization of Iran, declared Iran’s intention to become a major supplier of medical isotopes. Most significantly, the Iran deal’s Joint Comprehensive Plan of Action commits the U.S. and other parties to assist Iranian medical isotope development with technology transfer, project finance, export credits and other forms of investment. The European Union has established a joint nuclear cooperation working group with Iran.

The U.S. cannot in good faith implement these obligations without evading its obligation under the American Medical Isotopes Production Act to curtail such foreign medical isotope production. Under U.S. law, there is no question which obligation prevails. The Obama administration, knowing the Senate would never ratify the JCPOA as a treaty, made it an “executive agreement” instead. Such agreements can have the force of law, but under our Constitution the president cannot unilaterally repeal a statute. It’s another reason the administration should declare the Iran deal null and void.

Mr. Rivkin, a Washington-based constitutional lawyer, served at the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Connaughton served as chairman of the White House Council on Environmental Quality, 2001-09.

Source: https://www.wsj.com/articles/the-iran-deal-violates-u-s-law-1507847288

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