Category Archives: Online Supplement

Online Supplement, Refugees and Immigration, Terrorism and Counterterrorism

Turning US Vetting Capabilities and International Information-Sharing to Counter Foreign White Supremacist Terror Threats

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By Terence Check

In June 2021, the Biden Administration released the United States’ first ever National Strategy for Countering Domestic Terrorism. While nominally directed at all domestic terror threats, which include anarchist attacks and acts of violence against Asian-Americans regardless of the race of the perpetrator, the Strategy makes clear that the greatest domestic violent extremist (DVE) threat comes from White racially motivated violent extremists (RMVEs) who believe in the superiority of the White race. The emphasis on White RMVEs permeates the Strategy, and rightly so. The Intelligence Community’s (IC) 2021 assessment of the threat of domestic violent extremism made clear that—while domestic terrorism runs across the political spectrum and can be found in any demographic group—White militia extremists and RMVEs pose the most serious threat.

White RMVEs in the United States have an attribute that makes this threat different: they share ideological links to other like-minded White RMVEs in other countries. In the words of the IC, “US RMVEs who promote the superiority of the white race are the DVE actors with the most persistent and concerning transnational connections.” After all, many White supremacist and White nationalist ideologies leverage and use iconography from foreign past and present White nationalist groups. The IC assessed that US-based White RMVEs influence (and are in turn influenced by) other foreign extremists motivated by their belief in the superiority of the White race. The IC Assessment made an even more concerning observation: not only do foreign and domestic White extremists collaborate on the internet and social media, but “a small number of US RMVEs have traveled abroad to network with like-minded individuals.”

It is possible that foreign RMVEs may also travel to the US and to other foreign countries for similar purposes. With the growing rise of violent White nationalist movements and the propensity of lone actors affiliated with such ideologies to commit attacks in other Western democracies abroad, the federal government should consider how existing traveler screening tools can address the transnational movements of foreign White RMVE actors as an important part of the new Strategy. This article examines how these existing tools can address this resurgent threat.

The current Strategy rightly focuses on the need to share information and to focus on transnational dimensions of white RMVE terrorism movements. Strategic Goal 1.2 calls for broader and enhanced information-sharing within the federal government and with other “external partners.” The text of this Strategic Goal, however, focuses primarily on other governments within the United States, wisely looking to facilitate information-sharing and the distribution of intelligence products with state, local, tribal, and territorial governments. This Strategic Goal, however, remains silent on the question of international information-sharing with allied foreign governments to address the international movement of foreign RMVE terrorists. Strategic Goal 1.3 does focus on the international dimensions of the domestic terror threat, but limits said focus to countering malign influence and dissemination, designating foreign terrorist organizations, and constraining the financial activities of terrorist groups.

There is no mention of the traveling foreign terrorist fighter phenomenon, as hinted at in the IC Assessment, and thus no description of the importance that curtailing such travel would have to furthering the goals of the Strategy. This is an oversight. Luckily, however, the US can call upon a robust travel and border security screening framework that already exists.

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Foreign Policy, International Law, International Security, Laws of War, Online Supplement

War, What is it Good For? Almost Everything: Chinese Strategic Thought and a New U.S. Approach to Gray Zone Competition

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THE OPINIONS AND CONCLUSIONS EXPRESSED HEREIN ARE THOSE OF THE INDIVIDUAL AUTHOR AND DO NOT NECESSARILY REPRESENT THE VIEWS OF EITHER THE DEPARTMENT OF DEFENSE, THE UNITED STATES MARINE CORPS, MARINE CORPS COMMAND AND STAFF COLLEGE OR ANY OTHER GOVERNMENTAL AGENCY.

By Lt. Col. Peter C. Combe II

It has become a recurring theme: in the aftermath of various Chinese or Russian gray zone operations, Congress calls military and government leadership to testify as to whether the subject action was “an act of war.”  From a purely legal perspective, this is the wrong question; rather, the questioner should ask if a particular gray zone action rises to the level of a use of force or armed attack as contemplated in the U.N. Charter, such that the U.S. would be legally justified in using force as a response.  Elizabeth K. Kiessling, Gray Zone Tactics and the Principle of Non-Intervention: Can “One of the Vaguest Branches of International Law” Solve the Gray Zone Problem? (2020).  The reason these tactics are in the “gray zone” is that the answer is frankly uncertain, an ambiguity China seeks to exploit.  In general, some countries posit that physical damage or injury is required before an action rises to that level; others do not.  Bret A. White, Reordering the Law for a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace (2021).  This is further complicated in cyberspace, as China in particular argues that the traditional Law of Armed Conflict is always inapplicable in cyberspace.  That is not the end of the inquiry, however, as the legal construct is a binary distinction between the presence or absence of armed conflict.  See Geneva Conventions of August 12, 1949, Common Arts. 2, 3.  The question of whether a gray zone action amounts to an “act of war,” is (at least domestically) a political rather than legal determination, to be made by Congress and the President.

The weakness in the Constitutional framework used to determine whether the United States is “at war” is the binary nature of the question.  This is inconsistent with the Chinese conception of the nature of war.  Furthermore, this binary approach is inconsistent with nearly two centuries of theory on the practice and application of war.  Carl von Clausewitz conceptualized an “ideal” war, in which maximum force was used to achieve maximum political ends.  However, this “ideal war” was merely a theoretical construct, never approached in practice, as a host of real-world factors played a moderating influence on war.  Carl von Clausewitz, On War (1832).  In this construct, war exists as a spectrum between “ideal war” and absolute peace.  Christopher Bassford,Clausewitz’s Categories of War (2020).  Finally, the binary nature of war is also undermined by U.S. legislative practice, in which Congress has repeatedly authorized the use of force absent a declaration of war.  Against this backdrop, the U.S. must revisit the binary construct of war, revising it to reflect a spectrum from armed conflict to peace, leveraging all elements of national power.

  1. China at War

China does not view war as limited to armed conflict.  Chinese strategic thought is heavily influenced by ancient military theorists.  Sun Tzu for instance articulated the value of winning a war without engaging in armed combat.  Sun Tzu, The Art of War (Oxford Univ. Press. Ed.), (1963). Sun Tzu also advocated the importance of undermining or disrupting an opponent’s strategy or alliances as preferable to fighting an army in the field. Ancient Chinese military theorist Zhuge Liang discussed the importance of opportunity, and how by recognizing trends the prudent strategist may plan for and exploit opportunities when they present.  Zhuge Liang, Mastering the Art of War (Thomas Cleary Ed.), (1989).  In this way, the general “conquers an enemy already defeated.”  The Art of War.

This predilection to view war as extending below the threshold of armed conflict is also reflected in modern Chinese thinking.  This is perhaps best represented by China’s current Three Warfares construct, comprised of: (1) Psychological Warfare; (2) Media Warfare; and (3) Legal Warfare.  Psychological Warfare seeks to impede the enemy’s decision-making through deception, propaganda, and coercion.  Media Warfare seeks to influence public opinion, both domestically and abroad, through widespread information operations campaigns.  Finally, Legal Warfare seeks to advance China’s interests through both domestic and international law as a means to deflect or frustrate negative reactions to China’s gray zone activities.  Orde F. Kittrie, Lawfare: Law as a Weapon of War (2016).  Examples of these can be seen in China’s practice of establishing Confucius Institutes—public education and cultural outreach programs affiliated with the Chinese Government—to advance its ideological views overseas, or China’s advocacy of controversial legal interpretations with respect to maritime rights, or outer space.  Through tactics like these, China seeks to influence and take advantage of the natural propensity of events in order to achieve its goals as a sort of fait accompli or foregone conclusion.

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Big Data, Intelligence, Online Supplement, Surveillance

Is the Fourth Amendment Really for Sale? The Defense Intelligence Agency’s Purchase of Commercially Available Data

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By US Army Maj. Steven Szymanski

Introduction

The commercial data market has exploded.  Data has even been dubbed “the oil of the 21st century.”[1]  Aiming to capitalize on this blossoming industry, data brokerage companies have emerged to collect, collate, and sell personal data from nearly everyone who uses the Internet.[2]  New online data auctions occur thousands of times per day, selling everything from users’ shopping preferences to their actual location.[3] 

Many Americans have experienced the eerie phenomenon of receiving advertisements for regional businesses during cross-country travel.  The realization that our smart phones and applications are tracking our movements is becoming common knowledge.  While discount offers for local steakhouses may be welcomed during road trips, serious questions have emerged about the lack of regulation in this new market and the potentially ominous uses of commercial cellular location data.  This piece focuses on a slice of this larger discussion by examining whether intelligence agencies should be permitted to purchase the commercial data without a court order.[4]   It concludes that policy makers should preserve the U.S. intelligence community’s (IC) ability to purchase this information, while imposing substantial oversight to ensure that American privacy interests are preserved.

In early 2021, Senator Ron Wyden queried the Defense Intelligence Agency (DIA) to confirm: (1) whether DIA purchases commercial location data from apps installed on consumers’ smart phones; and (2) whether the agency construes the landmark Carpenter v. U.S. decision as “only applying to location data obtained through compulsory legal process” and not to “data purchased by the government?”[5]  In January, the DIA affirmatively answered both questions, reasoning that Carpenter’s scope was limited to law enforcement and did not prohibit the IC’s authority to collect commercially available information to support intelligence requirements.[6] 

Likely and predictably dissatisfied with the DIA’s response, Senator Wyden introduced the “Fourth Amendment is Not for Sale Act” (hereinafter, the Act) on April 21, 2021.[7]  If passed, the Act would prohibit law enforcement and intelligence agencies from purchasing commercially available data without a court order or warrant.[8]  Though the bill has been met with bipartisan endorsement and heralded by privacy advocates, the DIA should petition Congress to preserve its nearly four-decade authorization to collect publicly available information (PAI) for intelligence purposes to support national security objectives. 

Part I of this article will briefly summarize the landmark Carpenter v. U.S. ruling.  Part II will analyze the DIA’s position that its purchase of commercial data is lawful.  Part III will describe the Department of Defense’s (DoD) current procedures to safeguard U.S. person information (USPI).  Part IV will examine the Act.  Finally, Part V will argue that prohibiting the DIA from purchasing commercially available data is imprudent and unnecessary.  Instead, Congress should direct that DoD’s existing privacy oversight mechanisms be supplemented by routine audits from the Privacy and Civil Liberties Oversight Board (PCLOB). 

I.  Carpenter v. United States

In 2018, Chief Justice John Roberts authored a 5-4 majority opinion in Carpenter v. U.S.[9]  According to the facts in the case, following the arrest of four suspects for a series of robberies, one suspect confessed and provided the FBI with his co-conspirators’ cell phone numbers.[10] The FBI then applied for three magistrate court orders to obtain “transactional records” which included their historic cellular cite location data (CSLI).[11]  The judges granted the orders, citing authority under the Stored Communications Act, finding that the government met its burden of providing “specific and articulable facts showing reasonable grounds to believe that the records sought were relevant and material to an ongoing criminal investigation.”[12]  On these grounds, the CSLI was admitted as evidence that Mr. Carpenter’s cell phone was in the vicinity of the crime scene during the date and time of the robberies.[13]

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