With Great State Power Comes Greater Need for Oversight Responsibility

Please recognize this post as an informal, free form flow of incomplete thoughts as a I step through several ideas that have been swirling in my brain lately. I am very much interested in your thoughts, opinions, criticisms, and resources of note that can help me mentally step through some of the issues raised for discussion below.

I recently read an article written by former Secretary of the Navy, former Senator from Virginia Jim Webb titled Congressional Abdication published this month in the National Interest. It is the best published article I have read this year, because I frequently find myself pondering much of what it says. I have no intention on quoting from the article, because I believe that if you click the link and begin reading the article - you will find yourself compelled to read it all. It is an article I believe everyone should read, and give serious consideration to the content.

We are in a very strange place in America today, particularly politically. In my opinion the establishment of the Republican party is frequently not very conservative, and the establishment of the Democratic party is frequently not very liberal. Partisan loyalty to the establishments is still very high, but the loyalty of partisans has become emotional, not intellectual, as the problems continue to mount with neither side willing to compromise - largely for political purposes - towards any actual solutions to any of the current challenges that all need legitimate solutions. My sense is the President is poised to step up to the very real challenges facing America, and as he does so he will become much less popular in the eyes of everyone for doing the things that must be done.

Sequestration happened. I told you - 22 months ago - it would. Very few people believed it would. The DoD is still operating under the rules of the Continuing Resolution, although hopefully that will change very soon. The result of sequestration + the CR means operations and maintenance will be sacrificed to the sacred cow of the defense infrastructure - the defense industry. It is how the two laws work together. For the Navy that means they must park ships at the pier to pay contracts that cannot be canceled. It is very easy to get all /Facepalm about how horribly managed all of this has been for the DoD, but I find myself in agreement with the argument that three and four star Generals and Flag Officers are basically political appointments to the executive branch these days, so why should we expect them to act any different than exactly that? In the end I believe sequestration and the continuing resolution are applying legitimate and correct intentions in the worst possible way. The US is in trouble, but only because all strategies in the Department of Defense today are for purposes of domestic politics, not international politics. The history of the world tells us that our nation will take a hit for taking our eyes off the ball in the hubris that we are a superpower and too big to fail, and fixing what amounts to small (in context) budget problems doesn't solve this problem.

Among our political leaders and political appointees, very few men and women stand out as unique voices with a core set of beliefs and a willingness to stand up for them. When they do - we know who they are, and even when we disagree with them we love them for being genuine. This is exactly why so many in this community and the US Navy have so much admiration and respect for men like Admiral John Harvey and Undersecretary Bob Work, and why Bob Work in particular has stood out as one of the singularly most unique government officials in the Navy community in many decades. Undersecretary Work advocated the same positions he had before his appointment, and I assure you his positions will remain consistent when he moves into his new position over at CNAS. My observation is very few people agree with him on everything, particularly his positions on the Littoral Combat Ship, but disagreement with his positions does not diminish how he earns respect among his critics for engaging them in respectful public debate on the merits of any specific issue, and most critically - the debate is always a discussion of substance.

The ability to sustain a focused debate on the substance of an issue was probably why I was easily distracted by Rand Paul's activity on the Senate floor last night. I know nothing about Rand Paul except that I know of his father, and I never agreed with his father much on political issues. It is easy to dismiss the absurdity of drawing a line in the sand on the issue of drones killing American citizens on American soil, because that would never happen, right? Common sense screams - "of course not!"

And yet Eric Holder would not commit the Obama administration to that position, the implication of his intentional omission being that "yes, drones may indeed one day kill American citizens on US soil." You may not think this is even possible, but this is a legitimate civil liberties issue and as many smart people have pointed out (example here), the administration cannot easily stand with Rand Paul on this issue, because there are legal issues regarding the use of drones in targeted strikes around the world that extend well beyond American soil that have not been sorted out legally, and there are lawsuits already out there regarding American citizens killed by drones in other countries that the Administration must tread very cautiously because of.

For me, that is really where this issue Rand Paul raises comes into play, and impacts many of the issues we discuss here on Information Dissemination. Rand Paul vs Eric Holder on drones isn't something any of us can simply dismiss as a silly political trick or an argument over a hypothetical issue, because the issue is very much legitimate. A few things to think about...

The rise of prominence in using drones to execute US Foreign Policy and US National Security Policy is a bigger issue than the limited but important aspect of drones Rand Paul championed yesterday on the Senate floor. The single biggest drone issue, in my opinion, is that drones have lowered the threshold for use of force. It is why the CIA is now operating drones for targeted killing, and why the USAF has basically restructured itself over the last decade to support this activity as needed globally. It is why the US does not fly manned military aircraft into Pakistan to kill Al Qaeda - the people in Pakistan would be outraged if we did - but those same Pakistani citizens don't seem to care when we send an armed unmanned flying computer into Pakistan and kill a bad guy. This oddly acceptable condition has allowed the Obama administration to fly drones and kill people in Pakistan, Iraq, Somalia, Yemen, Libya, and Afghanistan over the last four years, with an unknown level of approval or consent. AFRICOM is setting up a drone base as we speak, and it is a safe bet we will be killing people with drones in Africa in the near future. South America - you are almost certainly next.

Drones have lowered the political risk and raised the political reward of using lethal force and done so at a lower cost to the US taxpayer. In my opinion, the use of armed drones globally represents a natural and expected 21st century asymmetrical evolution of military power in our dealing with non-state actors that distributed towards smaller footprints after we engaged with overwhelming conventional military force. I see the US use of drones as a completely understandable military capability evolution. Like any new adaptation of State power that changes the rules of any battlefield in our favor, there are new considerations for using this new State power that must be addressed to insure rules of the road for others who also develop the same State power capability.

The Obama administration is reshaping the United States National Security Strategy around remotely piloted drone strike capabilities, offensive cyber capabilities, and special operations capabilities. This basically shifts the liberal use of US military power (that is very common in American history) towards three precision strike capabilities on a global scale that - legitimately - can create unforeseen collateral damage. To take it a step further, none of these capabilities have easily recognized legal frameworks because they operate outside the normal rulesets that would otherwise govern the use of lethal military power.

For example, armed drones have killed Americans - now under two consecutive Presidents. There are lawsuits in the name of dead Americans that cite the US Constitution regarding judicial process, because in the end the precision strike capability - in this case drones - ultimately killed American citizens without due process under the law. It is not even clear if the Americans were the target or not - but in the case of Anwar al-Aulaqi all indications are he was the target. Like the vast majority of Americans (according to the polls anyway) the inner Patton in me thinks the guy deserved his fate, but as an American wanting to protect my own civil liberties I certainly would appreciate if our political leaders would step out and clearly define the rule set for use of force with this global precision strike capability so that I know the law protects me and my family from the use of such State power. It is hard for me to imagine any American likewise wouldn't appreciate similar such protections under the law - particularly on US soil as Rand Paul articulates.

Another example - Cyber. The collateral damage from STUXNET has been enormous. With a weaponized cyber capability that probably was developed by the government of the United States, if we examine purely from a monetary standpoint this cyber smart bomb called STUXNET did more collateral damage than any single military strike since we dropped an atomic bomb on Hiroshima. The lack of lethality for using such a weapon makes the use of these cyber smart weapons highly attractive to political leaders, but what protections do American businesses have against these kind of State power precision payload military grade capabilities that also have huge collateral damage implications? Even more to the point, what happens when military grade smart worm does actually kill people? There is no legal framework in this country, much less on an international scale, to govern use of such weapons, and yet when examined on a financial scale this military grade weaponized cyber capability is only comparable to the use of a nuclear weapon. The political leadership of this country is waiting for people to die before they take this very serious issue specific to emerging National Security Policy seriously.

Finally, have you seen Zero Dark Thirty? It's a fictional movie, but it's a good frame of reference. Have you read about the Osama bin Laden raid, the various books and articles of substance? Lets just review what happened generically. The United States sent a military unit into a foreign country for purposes of a precision strike on a facility right next to a major military installation. What would have happened if the Pakistani Army rolled up during that action with the tactical approach of shooting first and asking questions later? The other guy gets a vote, so what if our special forces folks were immediately attacked by the Pakistan Army and never given an option to surrender? Would the folks in the White House listened intently as all members of the special operations unit were killed, or would they have allowed the unit to call in air support and defend themselves? A special forces unit has the capability, and in most situations has the higher level military support, to rain hell and fire on anyone within their sights. A very legitimate different outcome that night could have been the US military killing a thousand soldiers of the Pakistani Army in what was supposed to be a clandestine precision strike inside another country.

Under any legal apparatus governed by the US Constitution, if the US would have started a war with Pakistan because of that action, it would have been a violation of every intent outlined in the US Constitution regarding the use of military force in starting a war, and under the law would have been legitimate basis for articles of impeachment for the President who - in this American citizens opinion - was doing the right thing by going after Osama bin Laden. But that's the key issue - our small special forces teams are supported by a US conventional military infrastructure of precision strike capabilities that outmatches everything else in the world. Some of our smallest special operations forces have the firepower and capability equivalent to the entire military of some nations at their fingertip. There is nothing new about special forces, but there is a lot of new about featuring special forces operations as a primary instrument of State power. Do the old rules that govern use of military force apply sufficiently to global precision strike capabilities of platoon sized forces with brigade level firepower at their fingertips? Do we need new rule sets for the emerging predominance of special forces operations in our global military taskings? Will America have to wait for Murphy's Law to kick us between the legs before Congress decides to rethink how the emerging predominance of special forces operations influences existing laws regarding the use of military force globally? When these guys come home from Afghanistan, they are not going to be sent home to sit on the couch - they will be used, everywhere else.

Has Congress sufficiently thought through this? With the nations mature long range strike network from air and sea, a special forces unit today can leverage the firepower of at least a battalion sized unit 20 years ago, but we never sent units with battalion levels of firepower around the world on quick strike missions 20 years ago. Emerging policy is to send special forces around the world on quick strike missions for the next 20 years, and my gut tells me our political leaders haven't stepped through this mentally yet.

The House and the Senate need to wake up and step up, because the growth of executive power since 9/11 has gone unchecked and is in dire need of a balance. Rand Paul may be focused on the details of civil liberties, and it is as good a place to start as any in my opinion, but the framework for 21st century National Security Policy is being established by the Obama administration - built on top of the Bush administrations eight years of very interventionist policies - that predominately feature means of very new, very capable State powers that lack rule sets, and drones is only one small piece of it.

I am generally supportive of the direction the Obama administration is taking with drones, cyber, and special forces instead of leveraging the large US Army approach of the Bush administration, but I see some serious issues with the policy that I believe needs a much healthier dose of oversight than what I - as an American citizen - has seen to date. I also believe the critical foundation of naval power - offshore, near but not intrusive State power, is being undervalued as a non-intrusive and diplomatically capable element of State power in emerging policy, and I believe it is with credible, present naval power the United States needs not always lead with the precision strike while still being able to leverage the potential use of it as a form of deterrence.

Without some serious oversight and consideration that includes alternatives to precision strike, this National Security Policy framework being developed by the Obama administration - that I generally agree with btw - is ripe for exploitation by future administrations if Congress doesn't get in there soon to address many of the very legitimate issues and shortcomings in each approach.

The Founding Fathers had it right all along. The nation maintains a Navy and the ability to raise an Army when needed. That framework works well within the construct of President Obama's National Security Policy that leverages drones, cyber, and special forces, and within that construct the Navy adds a very legitimate, very important, very enormous diplomatic wrapper of sea based military power around America's very lethal and capable precision strike capabilities. I see it as Sea Power in support of State Power, and not just State power in the context of precision strike, but State power in the context of the State Department and other elements of State power throughout the US government. In the abstract; drones, cyber, and special forces can be used in almost exactly the same way, but as asymmetrical alternatives to, a large Army invasion by the United States of another country - with the outcome of a state level war possible, after all we are - either figuratively or literally - bombing another country from the air with drones, destroying the economy of another nation with cyber, or putting boots on the ground for military operations with special operations forces. While I acknowledge it is legitimately my bias, I see sea power as a historical military framework that helps buffer an alternative to check and balance the emerging 21st century models for the liberal use of politically convenient, emerging State power military force options.

Lawfare and NGO Maritime Actors

In this undated photo released by Sea Shepherd Conservation Society, its new Antarctic patrol ship SSS Sam Simon steams on the sea. (AP Photo/Sea Shepherd Conservation Society, Carolina A. Castro)

On the One Year Anniversary Special of Midrats 2 years ago, CDR Salamander opened his discussion with a question submitted by Admiral James Stavridis that asked what the panel believed would be the next big thing after next (over the horizon) for naval operations. In his answer, Claude Berube discussed the concept of emerging Maritime Shadow Zones which he defined as geographical maritime security gaps where naval power lacks the strength, authority, or interest to enforce maritime security in maritime regions globally. In his description of this potential emerging future, Claude mentioned that it is possible that both legitimate an non-legitimate non-governmental actors would be emerge to fill those voids.

While it wasn't the first time I had been exposed to that concept, his presentation of what a potential future role of the maritime NGO might look like inspired several ideas in my mind, and I admit I have thought about the topic in the way he presented it many times since. Due almost entirely to the his answer that night, I began paying closer attention to the activities of the Sea Sheperd Conservation Society, perhaps the most renowned of the modern legitimate NGOs currently filling the maritime shadow zone in the Southern Ocean.

Did that word bother you? The word I refer to is legitimate, which does require some definition and I am open to adopting a different word for the lexicon if you have any suggestions. Maritime piracy, maritime banditry, smuggling and trafficking, oil theft, and a host of other criminal activities at sea are conducted by non-legitimate non-governmental actors in various places in the world. While causes may be increased population density of coastlines, poor regional governance and failed states, or the absence of an effective regional maritime security enforcement agency, criminal activity on the seas - particularly in the littorals - is not going away anytime soon. As more commercial interests emerge offshore and as the commercial population on the seas increase in the maritime domain, it should be expected that criminal activity on the seas will increase, and as the recent history of Somalia shows us; well financed enterprises will emerge as well.

But it is the trend of legitimate NGOs that interests me most, and regardless of what you think about the organization or their politics, the Sea Sheperd Conservation Society is a legitimate non-profit non-governmental organization. Legitimacy means a lot of things, but first and foremost being a legitimate NGO means the organization can be held to the rule of law, when applicable.

To celebrate the upcoming sixth season of Whale Wars, the political struggle between the Sea Sheperd Conservation Society and Japan's Institute of Cetacean Research has moved beyond clashes at sea that somewhat resemble non-lethal irregular maritime warfare activities towards another type of political combat often found in war zones: Lawfare.

A U.S. appeals court ordered American anti-whaling activists to keep 500 yards away from Japanese whaling ships off Antarctica.

The 9th U.S. Circuit Court of Appeals issued an injunction against the Sea Shepherd Conservation Society, which sends vessels every December to disrupt whale killings by Japan's Institute of Cetacean Research.

The whalers sued Sea Shepherd last year to prevent the protesters from interfering, but the judge refused to grant the request.

The 9th Circuit ordered Sea Shepherd not to approach any of the Japanese vessels until it can rule on the merits of the whalers' appeal.

Japan's whaling fleet kills up to 1,000 whales a year for research. Whale meat not used for study is sold as food in Japan, which critics say is the real reason for the hunts.

In response to this injunction, and just days into the Sea Sheperd Conservation Society's latest anti-whaling campaign Operation Zero Tolerance, Paul Watson has relieved himself from duty.

For the 35 years since I founded the Sea Shepherd Conservation Society I have strived to act non-violently and within the boundaries of the law.

Sea Shepherd has never been a protest organization nor have we engaged in civil disobedience. We are an anti-poaching organization established to uphold international conservation law. We operate within the guidelines of the United Nations World Charter for Nature that allows for intervention by non-profit non-governmental organizations and individuals to uphold international conservation law.

During Sea Shepherd’s long history we have never caused a single injury to any person. Although we have broken some bureaucratic regulations like Canada’s so called Seal Protection Act, we did so to challenge the validity of these regulations, which were in contradiction to the Canadian Charter of Rights and Freedoms. In all other respects we have always operated within the boundaries of the law, both international and national.

In 1998 Sea Shepherd USA complied with the order by the United States Coast Guard to not approach within a thousand yards of the Makah whaling operation in Washington State.

I myself have never been convicted of a felony crime.

And for this reason, the Sea Shepherd Conservation Society in the United States and myself as a U.S. citizen must comply with the order by the 9th Circuit court of the United States.

Because I have been personally named in the injunction I have resigned as the President of the Sea Shepherd Conservation Society in the United States and as President of the Sea Shepherd Conservation Society Australia. I have also resigned my position of Executive Director of Sea Shepherd Conservation Society USA and I will hold no paid position with Sea Shepherd anywhere Sea Shepherd is registered and operates as a non-profit organization in any nation.

I have also stepped down as campaign leader for Operation Zero Tolerance. Former Greens Party leader and former Australian Senator, Bob Brown of Tasmania will now hold this position.

I have also stepped down as Captain of the Steve Irwin. Captain Siddharth Chakravarty of India is now in command of the Steve Irwin. The other three Captains are citizens of Sweden, France and Australia.

As a United States citizen, I will respect and comply with the ruling of the United States 9th District Court and will not violate the temporary injunction granted to the Institute for Cetacean Research.  I will participate as an observer within the boundaries established by the 9th Circuit Court of the United States.

Some people pick sides in the struggle between Japan's Institute of Cetacean Research and the Sea Sheperd Conservation Society. Don't be that guy, because the actual politics of either side of their issues have absolutely nothing to do with our interest in their disputes here at ID.

I have no idea how much money Japan's Institute of Cetacean Research is spending on their legal battle against the Sea Sheperd organization in the 9th Circuit court, but it is probably a lot. What have they accomplished? They basically turned Paul Watson into a living martyr, able to freely roam around the planet fundraising for more activities against Japanese whalers, but they haven't accomplished anything else.

And that is the key point here - Lawfare is going to be a fact of life for legitimate maritime NGOs that conduct any engaging activity at sea. However, I also expect that legitimate non-governmental organizations are going to be able shuffle resources around multiple countries under any number of Flags until they find a legal system supportive of their organizational goals - and by doing so avoid legal consequences solely by avoiding legal jurisdictions.

Until now Sea Sheperd has been the largest legitimate maritime NGO operating in the maritime shadow zones, but an even larger organization is about to step up and unlike the Sea Shepherd Conservation Society, these guys will be packing heat!

A private navy founded by businessmen, former marines, retired captains and soldiers will protect its first group of oil tankers and bulk carriers from pirates in the Indian Ocean in late March or April, according to Bloomberg Businessweek.

Typhon, a venture formed by a group of U.K. businessmen led by Glencore International’s Chairman Simon Murray, will recruit 240 former marines and sailors for its navy...

Typhon, the company behind the venture, is chaired by Simon Murray, a millionaire businessman who joined the French Foreign Legion as a teenager and walked unsupported to the South Pole aged 63.

Typhon has been set up because the Royal Navy, NATO and the European Union Naval Force lack the vessels to patrol an area of ocean that is as large as North America, said Anthony Sharp, chief executive. "They can't do the job because they haven't got the budget and deploying a billion-pound warship against six guys (pirates) with $500 of kit is not a very good use of the asset," he said.

Typhon said its aim is to deter pirates from attacking its convoys, rather than engaging in firefights.

The pirates will face former marines in armoured patrol boats capable of 40 knots and able to withstand incoming Kalashnikov fire. They will be armed with close-quarter battle weapons, such as the M4 carbine, and sniper rifles with a range of 2km.

Also worth noting this particular NGO is bringing it's own brand of political celebrity.

Other Typhon directors include Admiral Henry Ulrich, former commander of US Naval Forces Europe, General Sir Jack Deverell, former commander in chief Allied Forces Northern Europe, and Lord Dannatt, former chief of the general staff.

The last major commercial vessel hijacked off Somalia was MT Royal Grace, a Panama-flagged oil tanker owned by a UAE-based company that was hijacked on March 2, 2012.... 10 months ago! The last pirate attack on a commercial vessel came Saturday when a merchant vessel was able to repel an attack when USS Halyburton (FFG 40) responded and all pirates were rounded up by the French Frigate FS Surcouf (F 711).

Some are calling this a private Navy, but there is very little difference in modern international law between Typhon's private Navy and the Sea Shepherd Conservation Society. One organization is arming themselves with weapons like rancid butter and the other is using bullet proof fast boats armed with ex-Marines fielding M4s and sniper rifles.

But there is a big difference between Somali pirates and Japanese whalers, right? A more legitimate question is how different are Somali pirates and Somali fisherman?

There are a lot of people making a lot of money on the Japanese whaling industry. There are also a lot of people making a lot of money on the Somali piracy industry.

The Typhon private Navy is not something radical, although it also doesn't really have a lot in common with the 19th century articles of marque either, despite the appearance of similarities. Typhon represents the next evolution of a maritime NGO setting up shop in the worlds most popular ungoverned maritime shadow zone. Over the next few years and in response to increased resource competitions offshore in greater frequency and intensity, organizations like the Sea Shepherd Conservation Society that are engaged in political activism and organizations like Typhon that are engaged in armed maritime security are going to become more common as global naval power trends towards more expensive, less numerous high end capability combat platforms that will almost certainly leave huge gaps in global maritime naval coverage necessary for good governance at sea.

With no unified ruleset governing the laws of the maritime domain, we should only expect these early examples to be carried forward as precedents. What does an armed fishery protection NGO in the South China Sea look like five years from now, and could such an entity be the catalyst for a proxy war in the South China Sea? If I am the Japanese government and I'm looking for a way of disrupting Chinese fishing vessels operating in my EEZ, I'm not sure why I wouldn't be looking at exactly this type of low cost, unofficial solution. When naval power lacks the strength, authority, or interest to enforce maritime security, alternatives will and are emerging, and I do wonder if the ruleset we are allowing to be set forth by others is actually in our long term national interest. The maritime NGO was an issue easy to ignore when it was the Sea Sheperd hippies, but now we are seeing a well funded, armed maritime NGO with significant political ties to major maritime nations.

I have no idea how maritime NGOs will continue to evolve, but one thing I am sure of... I won't be surprised the day Henry Ulrich is specifically named in some lawsuit in a US court in the future related to the murder of an AK-47 wielding Somali fisherman off the coast of Somalia, because when it comes to legitimate maritime NGOs, Lawfare is one of many expected consequences.


Additional Notes:

Midrats will be having a three year anniversary special this Sunday. I look forward to it.
The legal troubles for Paul Watson are bigger than simply the 9th circuit ruling. If that topic interests you, this link probably will too (PDF).
More on the Sea Sheperd here and here.

Armed Maritime Lawfare with Chinese Characteristics

Photo from a Kyodo News aircraft shows the Chinese marine surveillance ship Haijian 51 (front) in Japanese territorial waters near the Japan-controlled Senkaku Islands in the East China Sea on Sept. 14, 2012. China also claims the islets and calls them the Diaoyu Islands. At back is a patrol ship of the Japan Coast Guard. (Kyodo)

China's policy of armed lawfare for control of island territories continues, this time with Japan.

Japan says six Chinese patrol ships have entered its territorial waters near disputed islands in the East China Sea, further heightening the tensions over the uninhabited archipelago claimed both by Tokyo and Beijing.

Japan's Coast Guard said two Chinese vessels entered Japanese waters early Friday, and four more vessels arrived soon after.  The Coast Guard says it has issued a warning for them to leave.

China's official news agency, Xinhua, Thursday quoted the Ministry of Agriculture as saying the vessels would be dispatched on routine patrol near the islands to assert China's sovereignty and protect fishermen.

The rocky islets, known as Senkaku in Japan and Diaoyu in China, have been the focus of recurring flare-ups between the two sides.

Additional reading material...

Down South at Scarborough Islands near the Philippines

3 Chinese ships seen in Scarborough - PCG
Philippines ready to redeploy ships to Scarborough Shoal—PCG

A few important opinions from China

Unity brings power: this concept holds good today
Diaoyu Islands baseline announcement significant: Chinese diplomat

This map in Google Earth may help with geography to understand which islands Japan is claiming.

There is a Typhoon expected in Okinawa by Sunday night, so that may impact the ability of Japan to sustain vessels in the area. The use of civilian maritime security agency vessels has consistently been a successful tactic by China in staking claims to maritime territories, and no one appears to have a credible idea how to standing up to China's provocations. This is the new normal, and apparently a very successful way China continues to discredit the US Pivot to Asia policy rhetoric as it relates to disputed territories.

Everyone needs new ideas towards managing China's aggressive presence with government maritime agency vessels, because all indications are China has stumped the diplomats with this tactic. Secretary Panetta will be in China and Japan this weekend. He should have plenty to discuss.

US Launches a WTO Nuke Towards China's Great Firewall

While foreign policy experts in the United States are busy proclaiming the death of the Gaddafi family lineage as some big foreign policy moment, Wired News was quietly reporting what is - in my humble opinion - the single biggest foreign policy uppercut in quite some time by the US Government. With all do respect to the Arab world, the death of another jackass dictator ranks slightly higher than a can of beans in the big picture of United States foreign policy compared to this Texas sized sirloin.

In the emerging 21st century competition between China and the US, this political move represents President Obama ordering the Great Firewall of China nuked from orbit with a brilliant free speech, free economy WTO lawfare chess move. A MUST READ.

The Obama administration publicly admonished China Wednesday for its vast online censorship policies, for the first time officially complaining that blocking U.S.-based internet sites creates “barriers” to free trade.

The administration, citing World Trade Organization rules, is demanding that China explain its censorship policies. U.S. Trade Representative Ron Kirk’s office made the demands after a three-year lobbying campaign by the First Amendment Coalition.

“This development is important because it signals the U.S. government’s implicit acceptance of FAC’s position that censorship of the internet can breach the international trade rules enforced by the WTO,” said Peter Scheer, the group’s executive director.

U.S.-based websites blocked in whole or in part by the so-called “Great Firewall of China” include YouTube, Facebook, Twitter, Vimeo and even the Huffington Post.

In response, China on Thursday blasted the administration.

“We oppose using internet freedom as an excuse to interfere in other countries’ internal affairs,” Foreign Ministry spokeswoman Jiang Yu said.

This is a very big deal and the Obama administration is exactly right - this is a big boy money move to open up the Chinese market - and I can tell about ten great personal small business stories on how it will impact the US economy, but I'll focus in on one simple, specific example readers of this blog should be able to easily understand.

For as long as I have written on Information Dissemination, most pol-mil Blogger blogs have been blocked by China. For me - this was never good, because we talk a lot about China. I have many hundreds of Asian readers these days (India 800+ daily, Japan 500+ daily), far more than Europe actually, because believe it or not; it would appear rising maritime powers like to read and comment on websites that discuss maritime issues every day.

In June of 2009, I purchased the Domain Name for informationdissemination.net transitioning from the core Blogger server farm to a private host. The day the transition was made was the day before I attended the Current Strategy Forum in Newport, RH, and while I was getting some email from folks saying they were having website problems (caused by DNS host propagation among US ISPs), I was also seeing booming web traffic on this blog.

From my old Blackberry I was unable to really tell during that first day of the conference where all this web traffic was coming from. I figured maybe it was me passing out cards and mingling with a bunch of smart sailors and civilians at Newport. The real story was not as I thought.

That evening after the first day of the conference, I had accumulated over 2,000 unique visits from China, because for the first time ever - Information Dissemination was not being blocked and I was being ranked in Baidu. That lasted nearly a month until July 13, 2024 when Feng posted this article and ruined the party. Apparently, whether Feng knows it or not, he is blacklisted by the Chinese censors, because as of at least 3 months ago both his blog and mine apparently had a content block (vs the normal procedure of a total Chinese DNS block).

Oh well.

Some time passed and I didn't really think about it much, until last year when I got an email from a maritime attorney based in Hong Kong who works with the shipping industry there. He sent me a link, which was blocked by every US and European ISP I tried, that was basically a Hong Kong web host with an RSS feed of Information Dissemination republishing this blogs content using language translation software. Using a little network voodoo, I was eventually able to see the page - and I was pissed! One of the recent posts had 40+ comments - this Hong Kong thief had ads all over his site and was stealing my content!

After developing plans over a few days, what I ended up doing was purchasing one of the Flash advertisement spaces through the web ad company the Hong Kong site was using, and wrote my own Flash ad which passed their testing and was allowed In the advertisement, because it was Flash - I was able to embed a bit of code that basically tracked visit and hit counter information to another offshore server (accessible to all of China) from all (and only) IP addresses inside China so I could track how many Chinese users this Hong Kong thief was getting per day. To my surprise, and honestly to my frustration, the guy was getting an average of 6,000 Chinese viewers per day for my content.

Now for those who don't know, at bare minimum, 6,000 viewers per day would amount to well over $100 a month on the highly unoptimized ad service ID is using - Google AdWords (I'll start caring about my ads one day, just don't hold your breath). At the very minimum, this Hong Kong thief was basically stealing $1200 a year from me using his little RSS trick to supply my content to Chinese readers that I don't have access to. Earlier this year, my ad expired on that host - and after calling in a few favors, I used the data I had collected and forced that host to no longer host my content. To the best of my knowledge, today only a tiny handful of Chinese read my blog, and I can only presume those specific folks are somehow immune to the content rules of the Great Firewall.

For Information Dissemination alone, access to a public Chinese reader market is (potentially) worth, at minimum, $1200 a month - and potentially much more. That $1200 could potentially represent gross taxable income, and ID is but a rain drop in the cyber ocean in the context of the entire US internet - most of which makes far more money in far more productive ways than my horribly optimized use of Google AdWords.

So while this WTO move by the Obama administration may politically represent a nuclear attack against China's Great Firewall censorship of free speech, the economics of this move is not trivial at all in the internet driven economy of the US today. For years China has systematically attacked the United States with lawfare, including attacking the US Navy indirectly through maritime environment related lawsuits. It is really nice to see the US government turning the tables and now doing the same to China for a change. I want to send a heart felt well done to someone in the State Department!

Remember, the largest English reading nation in the world is China. While unlikely, an additional 5,000+ new Chinese readers interested in maritime affairs on this blog - particularly if they actively engaged in the comments - would be one very interesting open source experiment, and that experiment would likely be repeated throughout the US pol-mil web. If given that opportunity, ID will definitely attempt to support such an experiment in the global naval discussion. I don't know if the Obama administration can effectively get rid of the Great Chinese Firewall, but I do know that if they indeed do get rid of the firewall - we can expect an unpredictable, legitimate impact in the US-Chinese relationship. Social connectivity has proven again and again to be a very powerful cultural influence in 2011 - both here in the US and everywhere else in the world. There is no legitimate reason to expect social connectivity wouldn't also have a cultural influence on the Chinese people.

Lowering the Domestic Costs

Last month, Curtis Bradley of Lawfare had some observations regarding the implications of drones and stand off weapons for reducing the legal and political barriers to US intervention:

In the past, one of the central obstacles to greater U.S. participation in humanitarian intervention has been the domestic political cost. The American public appears to have little enthusiasm for suffering casualties in support of operations that have no direct connection to U.S. security, something illustrated by the U.S. withdrawal from Somalia following the Black Hawk Down episode in 1993.

Bypassing Congress, and using technology that substantially lowers the risk of U.S. casualties, may make it substantially easier for the United States to use force abroad for humanitarian purposes. It is not surprising, therefore, that supporters of this type of intervention have shifted their positions somewhat, now that they have a presidential administration that shares their view of the proper use of military force...

Nevertheless, I want to suggest that, even for proponents of humanitarian intervention, there are reasons to question whether lowering the domestic political cost of the use of force for humanitarian purposes is an unequivocally good development. Most significantly, a shift in this direction requires a substantial faith in the wisdom and motivations of the Executive Branch.

See also Jack Goldsmith on the argument that the intervention in Libya is insufficiently aggressive to trigger the War Powers Resolution. Two observations:

1. I'm not actually convinced that technology has substantially reduced the political and legal bar for intervention; an argument could be made that technological advances have substantially increased casualty aversion, leaving the political situation effectively a wash. I don't know either way; we'd need more research.
2. As for whether we should welcome such a development, my answer is "no." The argument for seems to be that by limiting casualties, technological essentially makes the public indifferent to decisions about intervention. This allows policy elites to determine when and where to intervene based on both robust understanding of US interests, and a sophisticated appreciation of America's place in the world. This seems to me to be mildly insane; it's fair to say that the number of people who would substantially agree with all of the intervention decisions of the last three Presidential administrations is quite low. Even if the cost is limited, the public ought to be consulted (if only in informal terms) regarding the wisdom of international military intervention.

Pirates Charged for Piracy

There are a few things strange here.

A federal grand jury in the United States has indicted 14 suspected pirates over a boat hijacking last month that ended with the four American hostages being shot dead, officials said Thursday.

"Fourteen individuals -- 13 Somalis and one from Yemen -- have been indicted in relation to the pirate attack and murder of four Americans on the Quest sailing vessel," Peter Carr, a spokesman for the US attorney's office in Virginia, told AFP.

At least three of the defendants are accused of killing the Americans, the first to die in a spate of kidnappings in recent years that has focused world attention on the pirate-infested waters off Somalia.

The Americans were killed "without provocation before the hostages could be rescued by members of the military, who had been attempting to secure the release of the hostages through negotiations with the defendants," said the indictment, dated Tuesday.

The suspects face charges of piracy, kidnapping and firearms offenses, "but not murder at this time," Carr said.

Didn't we capture 15 of 19 pirates? 2 were already dead and 2 were killed in the boarding? So why were only 14 charged?

Also, why are we having trouble charging these pirates with murder when we had a Navy ship 600 yards away that heard the shots, responded, and performed CPR on some of the Americans?

Clearly there is more to this story.

Lawfare Revisited

Eric Posner has an interesting essay at National Interest on "Lawfare." Posner is unconvinced of the utility of the term, arguing that theorists of lawfare tend to dramatically understate the role of power and interest in the execution of international law. However much US officials might be threatened in the abstract by claims of universal jurisdiction, few governments are willing to run the risk of actually arresting prominent Americans.

MODERNITY HAS made lawfare appear to be an all-encompassing, ever-present and alarmingly new phenomenon. Thousands of WikiLeaks cables flood our inboxes while Al Jazeera plays Afghans fleeing American bombs on a loop. Technology is a double-edged sword. The same technological advances that made precision-guided weapons and improved battlefield communications possible have also made the U.S. military vulnerable to the dissemination of graphic pictures and confidential information. U.S. strategy and operations will have to adjust to these threats. But they are not legal menaces, and they can’t be addressed by hiring JAGs. WikiLeaks poses a distinctive challenge, but the problem is political, despite all the talk of the First Amendment. The courts have never explicitly barred the U.S. government from criminalizing dissemination of classified information. The real problem is that if the U.S. government goes after WikiLeaks, the precedent it sets will threaten the press. There is no obvious way to distinguish the actions of Julian Assange from those of the editor of the New York Times: both of them publish leaks. But that means a prosecution would be politically explosive; the U.S. government risks making an enemy of all the media, which it cannot afford to do. None of this is “lawfare”—certainly no more than were the first printed leaflets distributed among enemy populations in the fifteenth century.

Putting aside the constraints of politics and technology, all that is left of lawfare is the trivial threat of foreign and international law. Internationalists of various stripes believe that law stands above and beyond politics. In fact, the use of law depends on power, and is enforced by those who have it against those who do not. Failure to understand this fact will lead the United States down a foolhardy path, wasting resources on unneeded JAGs and tying the military’s hands. The irony is that the hardheaded officials who run the national-security apparatus fear chimeras conjured up by the dreamiest internationalists.

I think that Posner is mostly right, but he probably understates the degree to which insurgents, terrorists, and pirates have become adept at navigating the lacunae of both international law and American domestic law in pursuit of their ends. International law only has the power we give it, but of course we do give it some power, and this has consequences. Similarly, one can wage "lawfare" using only the protections guaranteed under US domestic law; organized crime conducts this kind of "lawfare" all the time (just watch a few episodes of The Sopranos or The Wire). Posner is correct to suggest that claims that "lawfare" represents a concerted effort to shackle US power are alarmist. However, he doesn't sufficiently deal with the argument that international and domestic law represent a field of contention in modern warfare.