Syria under Bashir Assad (closed end 2014)

[jmm99]

Turning now to Jack's most recent article, What is the Domestic Legal Basis for Planned Cyberattacks in Syria? (by Jack Goldsmith, February 25, 2014):

David Sanger reports [NYT: Syria War Stirs New U.S. Debate on Cyberattack] that the Pentagon and the NSA planned a sophisticated cyberattack aimed at “the Syrian military and President Bashar al-Assad’s command structure” that “would essentially turn the lights out for Assad.”

He also reports that President Obama declined to go forward with the attacks then or since because of uncertainty about the proper role of offensive cyber weapons and worries about retaliation. Sanger suggests that the use of these weapons in Syria is now back on the table.
...
A final note. Sanger says: “Because he has put the use of such weapons largely into the hands of the N.S.A., which operates under the laws guiding covert action, there is little of the public discussion that accompanied the arguments over nuclear weapons in the 1950s and ′60s, or the kind of roiling argument over the wisdom of using drones, another classified program that Mr. Obama has begun to discuss publicly only in the past 18 months.”

I am not sure what this means. The NSA does not always operate under the covert action statute, but assuming it is here, that statute is no bar to public discussion. Rather, that statute says that if the President intends an action abroad to remain unacknowledged, he has to follow certain procedures (like making a finding, reporting, and the like).

The covert action statute is not why programs like the one Sanger discusses cannot be talked about publicly. What prevents public discussion of such programs is classified information rules backed by criminal and administrative sanctions—rules and sanctions, one should note, that were ignored by the people who spoke to Sanger for this story.

The rest of Jack's article takes up each of the possible bases for Presidential cyberaction and shoots all of them down, except one (of which, I was not aware). Here are his points, base by base.

Article II Authority

[If] the attacks lack congressional authorization ..., the case for the President’s inherent Article II authority to order such attacks in this context is weak, even under Executive branch precedents. The argument is weak for many of the same reasons the planned missile attacks in Syria last summer were weak. I laid out my views on that issue here and here. I will not repeat those points in detail, except to say that even under the Executive branch’s view of Article II, the President must articulate a strong national interest before using force.

And as I said in another post last summer, it is a stretch to say that the United States has an adequate national interest justification under prior executive branch opinions because

“(1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears . . . to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO).”

I would add that the Stuxnet cyberattack in Iran is not much of a precedent for a cyberattack on Assad’s forces because the President’s Article II powers are robust when it comes to self-defense, and the self-defense argument in Iran is colorable but against Assad is not. For this reason, I think the cyberattack in Syria that Sanger describes could not be justified under Article II without exceeding the scope of presidential war power beyond past Executive branch precedents – at least the precedents we know about.

AUMF and Title 50 Statutes

But need the President rely on Article II? Might there be statutory authority? The AUMF cannot help in this context.

Nor, I think, can the President rely on the covert action statute, 50 U.S. Code § 413b for authority to conduct these attacks. There is a rarefied debate about whether and under what circumstances Section 413b provides independent authority for the use of force abroad. It certainly says nothing on its face about independent authority to use force, and my own view is that it could not independently support the significant use of force that Sanger describes.

(If it does provide such support, then Congress has given the President super-broad authority to start wars covertly against nations that do not directly threaten us.) There is also the tricky issue whether the covert action statute would even apply in this context , since the operation might be a “traditional military activity” excluded from the definition of covert action by Section 413b(e) of Title 50.

One might also think that the President could glean the authority for the Syrian cyberattacks from 50 U.S.C. § 403-4a [JMM: Section 403–4a, comprising section 104A of the National Security Act of 1947, act July 26, 1947, ch. 343, was editorially reclassified as Section 3036 of Title 50], which includes the CIA’s famous “fifth function.”

(d) Responsibilities
The Director of the Central Intelligence Agency shall—
...
(4) perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct.

I doubt that provision would suffice here on its own terms, but in any event it is at best an authorization to the CIA and Sanger says this operation is [was to be] done by DOD and NSA.

NDAA 2012

But the President need not rely on these statutes. Instead, in planning this attack, his lawyers probably relied heavily on § 954 of the National Defense Authorization Act for Fiscal Year 2012, which provides:

Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, Allies and interests, subject to—

(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and

(2) the War Powers Resolution (50 U.S.C. 1541 et seq.).

This seems to me the best statutory hook for the planned Syrian cyberattacks, especially since it “affirms” that the President may conduct “offensive operations in cyberspace to defend our Nation, Allies and Interests.” That is a broad authorization indeed.

A "broad authorization" indeed; and one of which I was blissfully ignorant.

Not to claim complete Pollyannahood, I've always believed that, if the situation required it, the Presidents during my lifetime have acted (or in hypothetical situations would have acted) as though Congress had actually given them this "make believe" authority:

Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations throughout the World to defend our Nation, Allies and interests, subject to—

(1) the policy principles and legal regimes that the Department follows for kinetic capabilities, including the law of armed conflict; and

(2) the War Powers Resolution (50 U.S.C. 1541 et seq.).

Of course to me (as I said repeatedly last summer), Syria is not such a situation - as to which, others differ (and we can fight politically on that point).

Regards

Mike

[SWJ Blog]

Intervention in Syria and the Myth of the “Exit Strategy”

Entry Excerpt:



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Read the full post and make any comments at the SWJ Blog.
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[CrowBat]

To be frank, I'm getting sick and tired of all the talk about the ISIS, JAN and their connection to the AQ, and what and whether the USA should or should not. It's beyond retarded... simply utter stupidity to babble about the JAN as 'enemy there', and about removal of the ISIS from AUMF. Even the JAN is such a tiny group, with no intentions on waging a global war of terror, nor killing anybody who is an 'infidel' in their definition. Contrary to the ISIS, they are fighting on their own turf, and have never attacked any Americans.

So all this babbling about legal positions of one or the other is so insane, and such an offense for the predominant majority of Syrians that are fighting a murderous regime (and every sane person supporting them), I'm simply lacking words.

That's on the same level (i.e. below any level) like half the California going ape about two stupids mentioned here:
Los Angeles ‘gangsters’ claim to be fighting rebels.

Hand at heart: except for 'discussing sensations' and all the empty babbling of this kind, or selling the country to Iran, the USA are doing nothing for Syrians (except for getting hysterical about irrelevant topics of this kind and preventing insurgents from getting aid they urgently need), and plenty of people - like certain characters on this forum - are doing their best to keep it that way, no matter the cost (not only for Syrians, but far beyond that too).

So, beg your pardon, but: really, who to hell cares?

But 'OK'... and since there was talk about 'Raqqa': the SOHR reported today that regime forces are pushing out of the 'Base 93' (main camp of the former 93rd Brigade) and out of 'Base 17' (main camp of the former 17th Division), and fighting the ISIS in surrounding areas. The NDF reported to have secured Ayn Isa (a town outside Raqqa) and to be advancing in direction of the other base.

Furthermore, the regime forces should have captured the village of al-Huyajah al-Mai'ya, next to the Dayr az-Zawr AB. Here a photo of Maj Gen (advance in rank recently) Essam Zahr ad-Deen (or Zahreddine), putting up a flag there:
https://twitter.com/TahrirSy/status/...049216/photo/1

So, with ISIS - which has had one and a half year to completely destroy all the activist- and insurgent networks in areas under its control - in tatters, the Iran-sponsored regime is arriving to take over control of these places.

To 'protect Christians', eh...?

[jmm99]

Regards

Mike

[carl]

Mike:

Crowbat has a good point, a very good point. When you strip the matter down to the essence, we can't get anything done. We can talk on forever about many things but we can't seem to actually do anything. This is bad because there are some things that really need doing.

[CrowBat]

Damn me and my ranting if you have to, and as much as you like. But, with 8 million of Syrians uprooted and forced to flee their homes (surely, all but 2 million that managed to reach Turkey and Jordan are extremely successful at evading attention of international community and media), with most of Homs and Aleppo in ruins and large parts of Idlib and Dera'a ethnically cleansed (do I need say more?), with Americans blissfully ignorant of Syria's importance for the entire Arab world, and with that regime continuing to insist on destroying the slightest trace of resistance, any discussions about 'Jihadists in Syria' are as pointless as if Obama would make a press conference about Superbowl 10 minutes after DC was vapourised by somebody's nukes..

When one takes a look at publications by various US think-tanks and various 'military' forums around the USA, people are cheering - CHEERING - Hezbollah for 'killing Jihadists' in the Qalamoun range and building airports in eastern central Lebanon. And everybody who only can is insisting on ignoring the fact that it's the IRGC's al-Qods - yes, the same al-Qods that turned the (already failed) US efforts in Iraq into a total failure, and which killed thousands of US troops - that's running the show there.

Can that get any more insane?

You know what? Like in Afghanistan of 1990s, the USA and the West are so much excelling at setting all our hair on fire in Syria, I'm almost looking forward for the moment they come to the idea to call for help in extinguishing it.

[jmm99]

You and Crowbat believe that the US should be doing something about Syria. I believe that the US should not be. I also believe that, if the US is not going to do something, it should keep its big mouth shut. Lofty USG rhetoric without action, whether re: Ukraine or Syria, does more harm than good - IMO.

Crowbat:

Damn me and my ranting if you have to, and as much as you like.

I don't damn you (the messenger); nor, for that matter, your ranting (your message). In that particular case, I thought your ranting (the message) was largely incoherent.

The following is not incoherent:

But, with 8 million of Syrians uprooted and forced to flee their homes (surely, all but 2 million that managed to reach Turkey and Jordan are extremely successful at evading attention of international community and media), with most of Homs and Aleppo in ruins and large parts of Idlib and Dera'a ethnically cleansed (do I need say more?), with Americans blissfully ignorant of Syria's importance for the entire Arab world, and with that regime continuing to insist on destroying the slightest trace of resistance, any discussions about 'Jihadists in Syria' are as pointless as if Obama would make a press conference about Superbowl 10 minutes after DC was vapourised by somebody's nukes.

but it does miss the point of what I presented.

Starting in the Bush administration and continuing into the Obama administration with more sharpness, a high-level debate has been going on as to what policies should be followed by the USG in the so-called "GWOT". Part of that debate has involved the legal parameters, which of course are set by policy.

One aspect of that debate (running through drones, JSOC direct actions and USG interventions in a number of countries) has been whether the claimed threat is global (where it probably could impact the US) or local (where it probably would not) - In broad terms, a Globally Jihadist AQ vs. "local jihadists"; but also whether the USG should apply 99% "solutions" to what are in fact 1% problems.

You and Carl are humanitarian interventionists. I'm not. Now, I'll just leave so that you can emote or not without outside intervention.

Regards

Mike

[carl]

Mike:

I can't say I'm not a humanitarian intervenntionist, but only to a certain extent in that I realize that depending upon the time and place, there is only so much you can do. And in some places at some times it is more than that, such as in this case.

If Syria now were just Syrians killing each other, I'd regret it but not do much about it. But I isn't. The way things are shaping up could have very profound effects upon the middle-east, the Arab world and the world. The Iranians and the ISIS have made this about much more than just Syria. For that reason I think we must act. That doesn't mean American regular forces on the ground. There are plenty of Syrians who want to fight. But it does mean money, weapons and training. Those things we can provide. I think the situation warrants a try anyway.

There is a larger point though. We can't seem to get anything done, anywhere. The best illustration of this is our record in Afghanistan. We have known for years that the key to resolving that conflict is the actions of th Pak army/ISI, but we can't seem to bring ourselves to actuaaly do anything about it. We have talk about it a lot, but not done anything. This does not bode well for the future.

[CrowBat]

Mike,
I do not 'believe', I'm convinced that not only the USA, but the entire West should - urgently - 'do something' about Syria. Even more so, meanwhile I'm convinced that - sooner or later - they'll be FORCED to 'do something' about Syria. For plethora of reasons (let me know if you want to hear at least a few of them).

The situation in Syria is meanwhile the same like that in former Yugoslavia as of, say, 1993-1994. Difference back then was that the Europeans said to the USA, 'let us do it, we can', then they were proven wrong, and the US intervened. In the case of Syria, nobody (except Gulf Arabs) did anything, and we can see where is that leading: Bashar is meanwhile little else but an Iranian marionette, but still more than good in terrorizing and oppressing his population.

Frankly, I'm not the least curious to see anybody getting involved 'in another military intervention'. But, there is 'that situation' in Syria, and you - and whoever else with similar POV - can tell me whatever you like, but surely not that it's in anybody's interest (not even in that of Iranians, and not the least that of Syrians) to see Syria being turned into another (Shi'a style) 'Islamic Republic' of the Iranian kind.

But, that's what's presently going on.

Under the pretext of 'fighting CIA-supported al-Qaida insurgency', the IRGC/Failaq al-Quds-commanded and -controlled forces - colloquially declared for 'SAA', or 'regime forces' - are exercising immense pressure upon insurgents of the IF, SRF and other alliances in Aleppo area. If they get through the Sheik Najjar IC - and they are just a small step away from that - they'll surround the insurgent-held parts of eastern and southern Aleppo, and put them under a siege. How such sieges are usually ending, is - I hope so - well-known to everybody, and what a blow for insurgency this would be needs not be explained.

A similar mix of forces is assaulting the town of Yabroud in the northern part of Qalamoun range too. After suffering heavy losses in fighting for Rima Farms (which are stretching into Yabroud), one of Hezbollah brigades has been withdrawn and replaced by mechanized elements of the Republican Guards Division consisting of IRGC and Iraqi Shi'a (at least 'IRGC/al-Quds commanded Iraqi Shi'a militia). Yabroud is meanwhile surrounded from three sides. If the regime gets through there (not easy, but perfectly within abilities of forces under the command of IRGC/al-Quds Maj Gen Suleimani), the entire Qalamoun pocket is likely to collapse, with tragic results not only for insurgents, but also much of the population in that area.

The cumulative result of two such defeats cannot be properly put into words. Should this happen, the insurgency might collapse all together, being left in control of hard-to-defend parts of Dera'a and Aleppo provinces, and in control of the Idlib province though without the provincial capital.

That's the 'most important news' from the battlefields of Syria, Mike. And NOTHING AT ALL of all of this has anything to do with the ISIS, AQ, or whatever other sorts of nonsense.

Bottom line: the West is blissfully ignorant of the IRGC insistence on ascertaining survival of the Assadist regime, and massively underestimating the Iranian preparedness to invest as much as needed to ascertain that survival. Because of this - and because of all of this empty and out-of-place babbling about AQ, ISIS, and JAN - no comparable aid is provided to insurgents.

Example: I've posted a series (or two) of videos showing the effectiveness of ATGMs recently provided by Saudis to insurgents of the IF, SF and SRF. They have caused heavy losses to the regime. They didn't use them to attack Americans, Israel or whoever else. Period.

Frankly, I doubt the insurgents would have put any type of MANPADS to as effective use. But, their availability would have lessened the tremendous pressure the SyAAF is exercising upon insurgents in Aleppo and Qalamoun. Foremost it would prevent the Syrian fighter-bombers and helicopters from flying low to hit targets with unguided weapons: it would force them to fly high, and deploy PGMs. Means, it would make this war even more expensive for IRGC clique in Tehran.

Correspondingly, denying MANPADS to insurgents (not to talk about denying them so much of other kind of help they could need) is an obvious mistake. It's as simple as that.

And I could extend this list much, much further...

[jmm99]

No, I don't want to hear your reasons why the Entire West (to include the US) "should - urgently - 'do something' about Syria." If you are convinced that the boys and girls of "Haxbach, Schnurliland" should march off to Syria - and if you have the votes - so be it; off to Syria, you can send them and they will march.

From your statement in your post, you were similarly convinced that the boys and girls of "Haxbach, Schnurliland" should march off to the "former Yugoslavia as of, say, 1993-1994" - and you had the vote of Bill Clinton and his NSC to join your march. At that time, I was (and am still) convinced that the boys and girls of Hancock, Michigan should not march off to the "former Yugoslavia"; but I and every other citizen of the US sent them there once the WH decision was made.

At the present time, I'm convinced that the boys and girls of Hancock, Michigan should not march off to Syria; and it seems for now that enough votes exist to prevent that - although the lessons of unilateral presidential action, taught us by Bill Clinton, should loom large in the eyes of every American citizen. The switch can be flipped by any American president, without him or her being "forced" - and without seeking a vote in Congress (much less from the US people - the political elite rule, we drool - at least in their eyes).

I'm not telling the people of "Haxbach, Schnurliland" what they should or should not do with respect to the "Former Yugosalvia", Syria, Iran, ad infinitum. Hell, I'm just a little retired guy who lives in Hancock, Michigan. Nuff said; and much more than I intended - I probably should have signed off after the first sentence.

Regards

Mike

[carl]

Mike:

There are few if any advocating US troops in Syria. least of all me. Having a try though can encompass rather a lot more things than that.

[jmm99]

Not even one JSOC operator - that's both a statement and a question.

Regards

Mike

[CrowBat]

Mike,
I've got no problem your POV.

It's just so that boys (and girls) from 'Hancock, Michigan', are far more likely (actually: 'between very likely and almost sure') to find themselves on the receiving end of boys from 'Tehran, Iran' - than anybody from 'Haxbach, Schnurliland' (and thanks: the boys from Haxbach marched off to Yugoslavia, and are still there).

If in no other fashion, then one reminiscent of this case:


But never mind. Please feel free - 'and every other citizen of the US' too - to spend few additional light years with highly scientific and deeply eloquent discussions about iuridical consquences of the ISIS being kicked out from al-Qaida.

The last time I recall similar discussions, it was 'not our business' too.

Such discussions ended on 9/11.

[jmm99]

Of course, you have a problem with my POV - just as I have a problem with yours - otherwise, you wouldn't have said so in four posts, including the last. In sending messages to me, disingenuity is not needed and simply cheapens the message.

Regards

Mike

[carl]

Not even one JSOC operator - that's both a statement and a question.

Regards

Mike

Lot of ways I could go with that one. First would be, do you have a need to know? Second would be, smart aleck version, those guys live for things like that, I wouldn't want to frustrate them needlessly. Third, the American Volunteer Group were not members of the US military when they went to China to fight the Japanese, and it was only an accident that we were at war with Japan when they went into action. Fourth, CIA people, who could be anybody, even specops types temporarily detached/attached. Fifth, contractors. Lots of different ways.

But regardless of the way, if you needed any of those you would need many, especially if they were good. But failing all that a lot can be done with money, weapons and training outside the border.

[jmm99]

Yes, there are lots of subterfuges (deceits used in order to achieve one's goal) - both of us know the ways. We also know that proxies exist, etc.; and that we have ops covert and clandestine, etc. All are covered by Title 10 and/or Title 50 in one way or another; and all are one form of intervention or another - including money, weapons and training outside the borders. We did all of that with El Salvador (with minimal numbers, etc.); and have been doing it in any number of places since 9/11 via direct actions, drone strikes and targeted FID projects.

Anyway, I've spent more time on this collateral Syrian side alley tour than I spent on the Jack Goldsmith and Ashley Deeks IL articles, and checking their sources . So, if you two will excuse me, I'm going to get on to other things that I owe other people in other places.

Regards

Mike

[jcustis]

Bottom line: the West is blissfully ignorant of the IRGC insistence on ascertaining survival of the Assadist regime, and massively underestimating the Iranian preparedness to invest as much as needed to ascertain that survival. Because of this - and because of all of this empty and out-of-place babbling about AQ, ISIS, and JAN - no comparable aid is provided to insurgents.

The folks who need to know- and make policy from what they know--in the UK, US, and other parts of NATO are fully aware of what is going on with Iran's aspirations in the green crescent. What they choose to do about it may be a different story, but we are informed enough.

[CrowBat]

Must be some interesting folks, then the ones from whom I get to hear are clueless.

Well, then I'll satisfy myself with hope that this time the info is better than at the times everybody was 'sure', that 'Iranian F-14s are non-operational'...

************

For the others, here an interesting review, The new face of the Syrian rebellion.

[CrowBat]

Well no, I can't feel 'safe' after all.

Just back from quite an interesting meeting... Don't ask me about the 'source' of the following: you can be 1000% sure I'll never talk about it.

The point is this... By side the fact that Putin's reaction to events in the Ukraine resulted in another 'Pearl Harbour' for the US intel community, but sorry, NO: the people J seems to be talking about have got no clue at all about what's going on in Syria. Like Mike above, they're rather preoccuppied with iuridical issues of the ISIS being kicked out of AQ. (and, knowing about 'quality', 'awareness' and POVs of their advisers, I'm not the least surprised).

Actually, except for bitterly complaining about the NATO being a 'powerless joke', the last few days they were preoccuppied with outright science fiction. Between others, 'somebody there' came up with the idea of hoping that the Israelis would 'solve' the situation in Crimea - with help of their air force, of course, and in cooperation with Turkey, Saudi Arabia, Jordan....

I am - and this is dead serious - expecting one of them as next to suggest deployment of the United Stars Ship Enterprise (whether NX-1 or whichever of subsequent variants) to Syria or Ukraine. Hollywood would surely be delighted to provide help.

So, to paraphrase J: 'the folks who need to know - and make policy from what they know...' etc. etc., etc., should actually read 'the folks who need but do not know - and make policy from what they think to know but have no clue about...'

[jcustis]

That all pretty much speaks to the tail end of my post above.