Liveblogging Session 1 – Opening Remarks and Panel 1: “What Can and Cannot Be Learned From the 'War on Terrorism' For Other Threats?"

With a few moments to go before the HLS-Brookings Program on Law & Security’s inaugural event begins, I wanted to briefly introduce myself to the Lawfare community.  As Ben mentioned in an earlier post, I’m Keith Gerver, a recent graduate of Harvard Law School and former co-editor-in-chief of Lawfare’s sister publication, the Harvard National Security Journal.  I also would like to thank Ben, Bobby, and Jack for giving me the honor of live-blogging what looks to be an amazing two-day conference. Harvard Law School Dean Martha Minow kicks off the event with a brief introduction to the event, as well as to the HLS-Brookings Program on Law & Security.  Minow thanks Ben and Prof. Gabriella Blum,  the co-directors of the Program,  and notes the significant efforts they have taken to make this weekend’s event a strong one.  She further thanks the many scholars, officials, and public intellectuals who have assembled to take part in the conference. Minow hands over the podium to Ben, who like Minow, marvels at the building in which the conference is being held, the Wasserstein Hall, Caspersen Student Center.  Ben focuses on what he and Blum would like to see for the new HLS-Brookings Program.  He wants the Program to look at the “hard issues” of national security and generate products and discussion that “address decision points of real-world discussions.”   In addition, he emphasizes that the problems that the Program will tackle are multi-disciplinary in nature.  Lastly,  he would like the program to adopt a broad view of “national security” and not limit itself to the threat of terrorism. Ben concludes by thanking Dean Minow, in particular, and others at both HLS and Brookings for their efforts at bringing this project together.  He notes his excitement at working with Blum in making the Program a success and then hands over the podium to her. Blum begins her remarks by describing the world in which we find ourselves post-9/11.  Threats are traditional and non-traditional; enemies are traditional militants and common criminals.  War transcends national boundaries; the enemy sometimes include our own citizens. Civilians and combatants are rarely distinct groups. National security,  in short,  can no longer be merely “national.”  It must include human security, including persons beyond our own borders. The United States faces many challenges over the course of the next decade.  It must face traditional threats, the continued threat posed by violent extremists,  and even by emerging technology.  With respect to law, what kinds of adaptations are necessary to meet the changing nature of the threat?  As Blum notes, though, the most difficult challenge is a social one–what degree of risk are we willing to accept? Blum concludes by thanking the many individuals who have made the HLS-Brookings Program possible, in particular Ben Wittes, her co-director, Minow,  and Brookings President Strobe Talbott,  as well as the many others who will make this conference a success.  She then hands over the podium to Bobby Chesney,  who will serve as moderator for the conference’s first panel. Bobby begins by thanking the various parties involved in putting together this weekend’s conference.  He introduces the panel, noting that it will focus on how lessons learned from the war on terrorism can be applied to other threats,  such as that posed by drugs, piracy, and transnational crime.  He notes how during the 1990′s, many of these threats were lumped together with terrorism by the National Security Council, colloquially known as “Drugs & Thugs.”  Though terrorism became a much more pressing threat on 9/11, these other challenges are increasingly grabbing the attention of the U.S. government.  Bobby concludes his introductory remarks by introducing his panelists. The first panelist, Lisa Monaco, is the current Assistant Attorney General in charge of the DOJ’s National Security Division.  She says we have learned a lot in the 10 years since 9/11, not the least of which is that the terror threat is constantly evolving.  She intends to offer an overview of the current terrorist threat, and then the other threats that are emerging.  Monaco will then identify the common themes among these different threats. She begins by describing the current threat landscape.  Monaco states that we continue to face a threat from al-Qaida and its senior leadership, ever after the demise of bin Laden.  The threat is increasingly decentralized,  noting AQAP and Shabab.  Perhaps even more dangerous are the “lone actors,” those inspired by, but not necessarily linked to al-Qaida and its core.  The United States must remain very vigilant with respect to these threats, in particular. Monaco sees the increasingly globalized nature of the world, especially because of technology, as making these challenges more difficult to defeat.  She sees a convergence of terrorism She asks what have we learned from 9/11.  First, we cannot stand still.  Second, we must be intel-led and driven.  We must use intelligence to develop the threat picture and then to prioritize the threats.  This lesson has been learned across the government, be it in facing transnational organized crime, or white collar criminals. She says that we must adapt old tools to the fight as we use new tools.  This includes using undercover operations in terrorism cases and international sanctions.  There is no one tool that meets every threat; instead, we must find the best tool to manage each particular threat. Monaco says that the cyber threat is foremost in the security community, whether posed by state or non-state actors or used for espionage or criminal purposes.  Drug cartels and transnational criminal organizations are both current threats, as well ones that we will increasingly face.  Piracy is a phenomenon that is cross jurisdictional and perhaps in some sense, “non-jurisdictional.” Monaco concludes by discussing intelligence fusion: the imperative of “connecting the dots” has exploded across the government.  This applies to “all sorts of threats,” not just terrorism.  This includes the creation of fusion centers and task forces that cross the federal,  state, local, and tribal levels.  Task Forces are not limited to the Joint Terrorism Task Forces, but even to white collar crime.  There is desire to use intelligence to face the “threat” rather than just individual cases. Monaco says that international cooperation is now essential to fighting threats beyond terrorism.  Quick,  speedy bi-lateral relationships are crucial, rather than relying on traditional mutual legal assistance treaties.  Indeed, real-time trading and sharing of information is critical,  noting in particular the “planes plot” and the “printer plot” from last year.  These relationships are paying dividends with other threats,  such as that posed by cyber and intellectual property piracy. Monaco concludes by noting how the dismantling of walls between intelligence lawyers and criminal prosecutors has been a “tremendous leap forward” in dealing with national security threat.  She again emphasizes how the government, and the DOJ in general, is intelligence-driven.  Discussions focus on terrorism,  cyber, and even white collar.  She believes that as we go forward, we must discuss the different tools that we can apply to the emerging threats. Next, Prof. Eugene Kontorovich begins with a few words on what we cannot learn from terrorism to deal with the current threat posed by piracy. Pirates are in it just for the money; they’ll attack  anyone and everyone.  They are not state sponsored or state harbored.  They have no secret backers.  This, Kontorovich says, takes politics off the table and thus pirates should be easier to deal with than terrorists. But pirates are like terrorists in some ways.  One, they operate in the legal gray zone and can cause great international disruptions.  Lessons learned from terrorism and piracy are mutually reinforcing. Konotorovich provides an update on the current state of piracy.  He explains that it exploded in 2008, mainly in and around Somalia.  Today, it has expanded farther into the Indian Ocean.  The business model seems to remain viable, as ransom payments are up. Kontorovich notes that no one thought of pirates when the United Nations began negotiating the Convention on the Law of the Sea.  This instrument, therefore, creates serious problems when we get to the question of pirates.  Now, pirates are purely civilians; they are not combatants.  When getting into the weeds, UNCLOS Article 105 specifically requires capturing states to try pirates; but state practice has emerged whereby capturing states outsource prosecutions to states, such as Kenya and the Seychelles. The second point: it is very easy to capture pirates by navies. However, they’re normally put back to sea. In short,  no one wants to prosecute them. There are problems with evidence preservation, witnesses, and even identifying pirates.  This is very similar to the problems posed by prosecuting terrorists. In addition, no one wants to prosecute the pirates; the pirates are young, they’ll be in your jails forever, there are many of them, and it’s expensive to house them.  How this differs from terrorism, however, is that it’s de-politicized.  It’s just that no one wants to do it. Kontorovich believes that the possibility of pirate retaliation is quite real.  This differs from the traditional way in which we have deal with war criminals–we’re now trying to fight pirates in real-time, rather than after the fact. Kontorovich concludes by quoting the Somali pirates: “They cannot stop us; we know international law.” Next, Juliette Kayyem, current national security reporter for the Boston Globe and former high-ranking Department of Homeland Security official, says that the last ten years have not been “consistent years.” We have learned and unlearned lessons along the way.  She points to Hurricane Katrina as a pivot-point that we cannot forget and states that she will slightly change the question: what lessons can we learn from non-terrorist threats for the next ten years? Kayyem states the focus on the short-term, immediate threat, is different from the focus on the long-term threat.  The way in which we have structured government has been shaped mainly by the immediate threats.  She discusses the way in which the United States managed the Haitian earthquake, noting how the Coast Guard was particularly concerned about mass migration.  The immediate threat of a hundreds of thousands of Haitians getting into boats was the focus.  If we can contain that immediate threat, then the bigger issues can become more manageable. Kayyem says that a second lesson is that a public that feels lied to or misinformed will become disengaged.  She explains that the public is much more civic minded that is often given credit for.  This was seen in the way in which the Department faced the H1N1 threat; DHS was very honest in stating what it knew and did not know. Third, Kayyem says that we must figure out first how we are going to “ratchet up” and “ratchet down,” explaining that once we ratchet up, it is very difficult to ratchet down.  When we put security measures in place, we ought to think about how we are going to remove them when they’re no longer needed, rather than leaving that discussion for the future. Finally, Kayyem, echoing Monaco, states that international cooperation is essential not only when  dealing with terrorism, but with other threats, such as environmental disasters.  Getting the international legal model “right” is key.  Issues around global  warming similarly pose both domestic and international challenges.  These problems are ones that we cannot control on our own, making international relationships key. Next, Juan Zarate begins by thanking those who have put the conference together and commends Ben and Blum for their efforts at creating the Program.  Zarate states that he will talk about three lessons from terrorism for transnational threats and then three adaptations that we should be cautious about drawing lessons from. Zarate says that 9/11 was the first moment of the modern era in which we saw individual, non-state actors striking at the heart of the United States.  This was more than just the threat of terrorism, but rather that we had to begin worrying about transnational organizations operating out of the gray zones in the world.  Second,  national security matured in an aggressive way post-9/11. We’ve gone through chapters and learned many lessons.  Zarate explains that the key lesson is the “all of government approach.” Zarate does not limit this to intelligence fusion, but the practice of using multiple tools of national power to deal with threats. He notes in particular his experience at the Treasury Department working to shut down terrorist financing.  Zarate says that COIN doctrine is a field level concept of using not just military means, but economic and informational power to influence the operational environment. Third, Zarate believes that the war on terror has created many new platforms of international cooperation to deal  with transnational threats. This has spilled over to dealing with non-terror threats.  One problem that Zarate believes we must underline is the question of whether we have international norms to guide our actions. Zarate leaves us with noting the success story of Southeast Asia, which was once thought to be the next area of the world in which terrorism and insurgency could emerge.  There, the countries of the region banded together using hard and soft power to work to solve the power.  Zarate notes that a key U.S. ally, Australia,  had the will and power to provide support to its neighbors.  The United States, Zarate says, stood behind this local and regional model.  This model should guide us in dealing with emerging transnational threats. Zarate states that there are some areas in which the United States and the international community must exercise some caution. First, the use of kinetic force.  When dealing with non-traditional threats, should kinetic force be allowed?  This would raise many human rights, civil liberties, and similar concerns. Second, there have been norms and tools for dealing with various threats.  After 9/11, the terrorism threat seemed very different.  In a way that piracy and drug cartels do not, terrorism had purchase around the world.  In some ways, the global dimensions of terrorism–religion and geopolitical concerns–do not have to infect these other challenge areas. Lastly, Zarate notes the “blending and fracturing” of these threats.  For example,  al-Shabab is taking some cut from Somali pirates. We’ve seen this with the drug trade in North Africa blending with the terror threat.  In the past, we cannot deal with these threats in an isolated manner. As a final though, Zarate believes that the “converse can be true.” He explains that there are lessons that we must re-learn from transnational crime when dealing with the terror threat as it changes over time.  Zarate says that the use of the DEA in going after other transnational threats other than drugs is a good example of this. For example,  the DEA tracked down and brought to justice arms trafficker Victor Bout. Bobby takes the podium and poses a question to the panel. He notes that it’s wonderful that we’ve paid so much attention to prevention, but what are the costs? By focusing on everything through a security lens, do we risk becoming the “fragile society”? Zarate believe this is an apt and important question.  We must focus on the risk calculus.  He explains that post-9/11, the risk tolerance was very low and there was a “never again” mentality.  He believes that over time, there has been a willingness to take some risk, such as in releasing over 500 detainees from Guantanamo, but this has been pared back in recent years.  The calibration and discussion must be part of the national dialogue.  He applauds the Obama administration for its discussion of risk management, acknowledging that we cannot eliminate the threat. Kayyem agrees that we must discuss risk management.  The conscious decision to talk about risks in this manner is a positive develepment,  but we must recongize that is a very unforgiving environment for government officials.  On resiliency, Kayyem states that the capacity of government to “rub its belly and chew gum at the same time” has improved, but we still are not where we’d like to be in a world of multiple threats. Kontorovich echoes Kayyem, but notes in piracy, the costs of interdicting and facing pirates greatly outweighs that posed by the pirates. Different methods have been applied over time: we have used force at some times, but at others, we’ve cut deals.  Indeed, eliminating the last unit of harm might be more harmful than eliminating the harm. Monaco latches onto the theme of resilience, noting how Mike Leiter, former head of the NCTC, and John Pistole, have been very thoughtful in their efforts to promote this idea in the public. Next, a question from the audience to the panel: are we doing enough quickly enough? Monaco responds by saying that there is a focus across the government to create pathways for individuals to find other outlets than terrorism.  Zarate has two points.  First, al-Qaida has done more to harm itself than anything we’ve done by being the slaughterer of Muslims.  He notes that the support for suicide bombings has dropped.  He points to Robin Wright’s book “Rock the Casbah” as identifying those efforts in the Muslim world to come together to fight the extremist threat. Next, a question from Sam Rascoff. He notes the discussion on the “whole of government approach” and the need for a wide range of tools to deal with threats. He says that he believes there might be some “role confusion” in Treasury and Justice; has everyone become a “national security operator”?  Should Homeland Security deal with all these problems? Kayyem says there is no question there are interagency struggles. One struggle with Homeland Security has been in sharing information with state and local authorities.  She believes that all these agencies need a seat at the table.  People’s expectations of the government are so different now; we have to “come back to whole.” A challenge isn’t that so many people are playing, but rather that they’re following the command structure put into place.  She says that the “random injects” were more challenging than just having so many people at the table. Before further responses, two more questions. First, a question regarding street crime.  The questioner’s impression was that the designation of criminal operator is similar to the designation of FTOs; is this an example of this national practice moving down to the local level?  Second, Jennifer Rizzo from CNN asks if defense budget cuts are a sign of ratcheting down. Monaco responds to Rascoff’s question.  She says she wants multiple views and expertise at the table when trying to determine how best to deal with these various threats. Zarate believes that the question of “distortion of policy” is important.  If the policy focus is through a particular lens,  does this distort other national security policies?  There are only so many hours in the day.  Elements of distortion happen when government becomes too focused. On the street crime issue,  Zarate believes it’s a fascinating observation.  Predictive analysis is now impacting street crime; this should make allocation of resources more rational and effective.  However,  this could lead to categorizing people in negative ways.  Zarate notes that the gang problem is already international, noting various Central American gangs that have set up shop in Virginia. Kayyem responds to Rizzo’s question, saying that it’s not so much “ratcheting down,”  but rather “ratcheting different.” She believes that changes will emerge not just because of budget cuts,  but because the threat has changed.  Just because the budget is cut does not mean that we no longer care about certain threats, but rather that there is greater prioritization.  Kayyem says that the government is getting better at developing standards to prioritize.  In addition, there are very rich companies that must step up and put in more efforts at prevention, whether it’s dealing with cybersecurity or environmental disasters. We must be more creative so that the costs do not fall just on the taxpayers. And with that, Bobby thanks the audience and we’re taking a short break before Deputy National Security Adviser John Brennan delivers his keynote address.