• Looking Ahead: Clinton’s Plans for Syria

    October 25, 2016 // 23 Comments »

    Hillary Clinton has a plan for defeating Islamic State in Syria. Donald Trump has one, too. With the conflict in Syria spreading beyond its borders, it’s essential to understand the new president’s strategies and how they may need to be adjusted over the next four years.


    Trump: Safe Zones

    Trump has advocated for a “safe zone” for Syrians to ride out the conflict. Such a zone would be a swath of territory inside the country, where today’s refugees would reside instead of fleeing to Europe and elsewhere. Trump has offered no details on how such a zone would be created, or by whom. American support for this initiative, Trump has made clear, would be limited to some economic assistance, with the bulk of the costs borne by the Gulf States. Though Trump does not support a no-fly zone per se, it seems difficult anyone could create and protect a safe zone without a no-fly-zone.


    Clinton: No Fly Zones

    Clinton has also made the case for safe zones, as well as consistently proposing a no-fly zone. America, under Clinton’s plan, would make a portion of Syrian national airspace inaccessible to any but potentially its own planes. Russian strike aircraft and Syrian government helicopters would risk being shot down.

    Clinton has said the no-fly zone would “create those safe refuges within Syria, to try to protect people on the ground both from Assad’s forces, who continue to drop barrel bombs, and from ISIS. And of course, it has to be de-conflicted with the Russians, who are also flying in that space.” She has also stated that “A no-fly zone would prevent the outflow of refugees and give us a chance to have some safe spaces.”

    Clinton’s no-fly zone, and in practical terms, Trump’s safe zone, both open the same door to a greatly enlarged conflict.

    General Martin Dempsey, the then-chairman of the Joint Chiefs of Staff, explained in 2012 imposing a no-fly zone would require as many as 70,000 American servicepeople to dismantle Syria’s air defense system, as a no-fly zone could not coexist alongside the possibility Assad might shoot down American aircraft. An attack on Assad of that magnitude would almost certainly demand a response; how would Russia come to the defense of its ally?

    In addition, any no-fly zone (or safe zone for that matter) must address the near-certainty it will be challenged by the Russians; it almost has to be, given the struggle for dominance in the region. Shooting down a Russian plane would enlarge the conflict in Syria while at the same time risking a retaliatory move that could take place anywhere in the world, perhaps even in cyberspace.

    The possible juice from a no-fly or safe zone just isn’t worth the squeeze of an enlarged conflict with nation-state level, global implications. President Barack Obama has rejected the idea of a no-fly/safe zone in Syria for years. Would President Clinton, or Trump, really roll the dice on possible direct military conflict with Russia when their predecessor did not?


    Boots on the Ground

    Another Syrian strategy option, sending in American ground forces, will also be on the table for the next president to weigh.

    Trump appears to have split with running mate Mike Pence over Syria; Pence says the United States should meet Russian “provocations” with strength, backing the use of military force to do so. Trump, when asked about that statement, claimed “He and I disagree.” Though the notion of a disagreement has been walked back, the nature of a Trump administration policy towards American forces deployed in Syria remains unclear.

    Despite Clinton’s assertions that her plan for Syria does not include boots on the ground, and Trump’s apparent interest in not introducing troops, the new president will inherit an evolving situation: the boots are not only already firmly on the ground, their numbers are growing. Since April President Barack Obama has overseen the largest expansion of ground forces in Syria since its civil war began, bringing the number of Special Forces deployed to about 1,500. A year ago the United States had only 50 soldiers in Syria.

    Experience suggests mission creep in both scale and headcount is likely. The current fight against Islamic State in Iraq has seen American ground forces grow to some 6,000 on regular deployment, with an additional, unknown, number of Marines on “temporary duty” and not counted against the total. The mission has also expanded, from advising to direct action, including artillery and helicopter gunship ground attacks.

    In Syria, the tactical picture is even tougher than in Iraq. The United States faces not only Islamic State, but also potentially troops from Russia and Syria, Iranian special forces, and/or militias professionally armed and trained by Russia, Syria, and Iran. The American side of the equation sweeps in an ad hoc collection of Syrian groups of questionable loyalty and radical ideology, Kurds who oppose Turks, Turks who oppose Kurds, and perhaps third party Arab fighters.


    Post Assad?

    Any new strategy for Syria will unfold on a complex game board.

    As long as Assad stays in power, even without Islamic State, the bloody civil war will continue. If Assad goes, who could replace him and not trigger a new round of civil war? Who will pay for Syria to rebuild at some point?

    Enlarging the picture, how will the Kurd-Turk struggle be managed now that the genie of Kurdish independence is out of the lamp? How will the next phase of the Sunni-Shi’ite relationship in Iraq affect Syria? How will growing Iranian influence in Iraq, a likely consequence of any defeat of Islamic State there, factor in? The Russians are now on the ground again in the Middle East. What effect will that have on the broader regional and global strategic balance?

    The task facing the next president is not just defeating Islamic State inside Syria, but doing so even as the local problems there have metastasized into broad issues with global consequences. President Clinton or President Trump may find their current proposed plans will run into the same vexing realities the Obama administration has struggled with for years. The candidates’ current proposed plans do not seem up to the task. The new administration will have to quickly devise strategies that have otherwise eluded America’s best strategic thinkers since the earliest days of the Syrian civil war.




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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Love, Visas and Marriage in Post-Constitutional America

    May 12, 2015 // 4 Comments »

    visa

    The government can block your foreign husband or wife from living with you in America, based on secret information you can’t see or contest. Like with the No-Fly list, in post-Constitutional America the walls are built of secret databases.

    Taking Visas to the Supreme Court

    On February 23, the Supreme Court heard oral arguments in Kerry v. Din. The U.S. government is seeking a writ of certiorari agreement by the Justices to review a lower court decision granting Ms. Din and her Afghan husband judicial review of his immigrant visa—green card—application. The state department permanently denied permission for the husband to live in the U.S. because he is supposedly a “terrorist,” based on secret information that will not be shared with Ms. Din or her spouse to allow rebuttal. Under present law, the state department’s decision to refuse the green card is subject to no outside review.

    Consular officers working overseas for the department of state process visas. In nearly every non-drug-related denial, the foreign spouse can get a waiver and go on to live in the U.S. Throughout the process, the American and her spouse speak directly with the primary decision-maker and be able to rebut the information used against them.

    Things change significantly in security cases. The information used to refuse a visa to a “terrorist” comes from the CIA, FBI, or NSA (information is also provided by intelligence agencies in Canada and Australia) and is highly classified.

    Secret Lists and Secret Decisions

    How all this works is almost a mini-history of post-Constitutional America.

    The State Department’s consular officers issued legal visas to all of the 9/11 terrorists, in part because the CIA failed to pass information on via the computerized Consular Lookout and Support System (CLASS). The number of records have grown 400 percent since 2001 in response, and CLASS is now one of the largest known databases in the world.

    A problem with all those records is that many contain only a subject’s name, nationality, and limited identifying information. State department officers regularly wallow through screen after screen of “Muhammad, No Last Name, No Date of Birth, Born in Egypt.” The potential for misidentifying a subject is significant, but the post-9/11 mantra of better safe than sorry leans heavily toward refusal.



    Mistakes Were Made

    Mistakes entering people in secret databases, and mistakes of identity, are so common that online forms for making airline reservations all include a field for a redress number, a link to a Department of Homeland Security (DHS) file that shows a subject has proven he is not the targeted person. One infamous case involving a database mistake is that of Malaysian doctoral candidate Rahinah Ibrahim, who was placed on the secret No-Fly list and denied the chance to finish her degree at Stanford University. The reason? An FBI agent accidentally checked the wrong box on a paper form.

    As in the Ibrahim case, the actual consular officer/decision-maker overseas in the embassy never sees the underlying reporting that led to the data entry. She simply gets an electronic indication that the info exists, and then denies the visa. State Department policies state that she should not “look behind” the computer notice. The denial is based on the assumption that someone at CIA validated the information, that the person applying for the visa is indeed the person in the secret record, and that the information represents a violation of visa law. Once fiercely independent consular officers have become deferential subordinates to anonymous intelligence agency officials.

    Such blind use of secret databases is at the heart of Kerry v. Din. Ms. Din seeks judicial review of her husband’s visa denial because, without explanation, he was deemed a “terrorist.” The U.S. Court of Appeals for the Ninth Circuit said she should be entitled to that review; the government’s admonition that everyone should simply trust them to have done the right thing was rejected.



    Non-Reviewability of Government Decisions

    The government now wants that court decision squashed. It steadfastly defends what is known as the doctrine of consular nonreviewability. This early-20th century doctrine maintains no one has a right to a visa, and that Americans do not enjoy a right to live with their spouses. It maintains that any review necessary of a decision should be done internally by the state department itself, under criteria it establishes for itself, becoming a government decision not subject to judicial oversight.

    The issue of consular nonreviewability acquired new meaning after 9/11. Key in Kerry v. Din is that the consular officer herself is not actually making any decision per se. She cannot see any of the underlying information on the watch list, and simply defers to the CIA and refuses the visa. CIA claims it did not deny any visa, and points to state.

    The Questions

    At issue in Kerry v. Din is the narrow question of whether or not an American citizen can know, and contest, the reason why her spouse cannot live in the United States.

    The broader question is more significant: in post-Constitutional America, when more and more of our lives are controlled by secret lists built of secret information of often suspect quality, such as with No-Fly, is the courtroom door open to citizens to challenge our government?


    Disclosure: I am a retired consular officer, with 24 years of visa experience, and an amici to the above case.




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    What to Do if You Think You’re on the No-Fly List

    April 25, 2015 // 10 Comments »

    It has come to this. There is a self-help guides from the ACLU on what to do if you think you are on the U.S. government’s no-fly list. Oh, and the TSA says 99 percent of the people who contact them about no-fly have been denied boarding only because their names are similar to a real bad guy. In most applications, a 99 percent failure rate is cause for alarm for an organization. In America, it is cause for alarm for us.

    Background

    On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.

    The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.

    Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.

    A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.

    What Do You Do?

    For the most part, once denied boarding, you are on your own to get home. It is a long walk home from L.A. if you live in New York. But, in the topsy-turvy post-9/11 world, though the U.S. will not let you on an airplane (Twin Towers!) you can, for now, as a suspected terrorist, travel by ship, train, bus, rental car, horseback, donkey cart, unicycle or other means. Of course none of those conveyances have even rudimentary screening or security.

    One option if you find yourself denied boarding is to contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you simply use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.

    If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.

    What If You Stranded Overseas?

    One popular trick the government likes to occasionally use is to wait for someone to depart the U.S., then slap him/her on the no-fly. The traveler, stuck abroad, clearly has fewer resources to challenge anything or file internet forms and wait by the post box.

    A nice scheme, but since U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad, and lawful permanent residents (“green-card holders”) have a similar right to return under the Immigration and Nationality Act, in fact such a move by DHS is essentially unconstitutional and/or illegal.

    So, as one part of the government says you are a terrorist and cannot fly to America, another part of the government is constitutionally obligated to get you back to America. Denied boarding overseas due to the no-fly? Someone in the U.S. (can be a lawyer) must call the State Department and ask that they help you. The ACLU has a handy cheat-sheet with all the details. At some point you will visit the American Embassy in your country of no-fly exile, and, after an average two week delay, re-book your ticket to return to the United States. The cost of all this is on you, and you can expect a detailed welcome from the FBI and others when you touch down in the Homeland. Coming “home” may then mean your mom’s place in Cleveland, or it can mean a jail cell near the airport in Cleveland.

    Bad Guys?

    We’ll admit that there probably are some really bad people out there who’d we would just prefer not sitting next to us on a flight. But who ends up on the no-fly instead?

    The Associated Press reported in 2012 that the federal no-fly list had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans. CBS’ news show, 60 Minutes, states the no-fly list actually has 44,000 names on it. A CBS reporter claims to have seen a portion of the names on no-fly in 2007, and noted Saddam Hussein was on the list, as well as 14 of the 19 September 11th hijackers, all of whom were very dead at the time. Osama bin Laden was also on the list on the off-chance he would have decided to fly to the U.S. under his real name for some reason.

    Represented by the American Civil Liberties Union, a group of thirteen Americans who were barred from boarding domestic flights or planes leaving or bound for the U.S. between June 2009 and November 2012 is suing. One of the plaintiffs in that case is Army veteran Raymond Earl Knaeble, who found himself unable to fly coincidentally after converting to Islam. Four others in the no-fly lawsuit are also military veterans. One was forced to return to the U.S. from Columbia by bus, a long and dangerous trip. Another plaintiff was placed on the list only after he flew from California to the U.S. Virgin Islands. He was forced to take a five-day boat trip and a four-day train ride home.

    How Can This Be Legal?

    Like much of the (known) legislation passed after 9/11, it has been very hard to challenge the no-fly in courts. One significant issue is standing, the right to sue. Persons typically never know for certain they are on the no-fly list, the government will never confirm or deny someone is on the list, and so, absent proof, one may not be able to sue the government. The government has and likely will also continue to cite national security and classified information to block cases from even entering the court system.

    In the lawsuit noted above, the ACLU is arguing that the no-fly list is a violation of the due process clause of the Fifth Amendment. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The meaning is that all levels of American government must operate within the law and provide fair procedures. For example, you cannot be arrested and tried without having legal counsel, being informed of the charges, having the chance to review the evidence against you and so forth. Creating a secret list without any clear means of challenging placement on that list, is, the ACLU contends, unconstitutional.

    The government argues in return that national security prevents a more open system– we can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.

    The ACLU’s case against the no-fly list is currently being heard in U.S. District Court, in front of a judge who at least appears to be asking serious questions of the government, and who has stated she holds not being able to fly is indeed a case of the government depriving someone of their “liberty,” as stated in the Fifth Amendment. The outcome of the case is of course uncertain, and will no doubt be appealed as far as it can go.

    Until then Americans, happy travels!



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