Topic: Foreign Policy and National Security

Should NSA Be Immune from Constitutional Scrutiny?

Today the Court of Appeals for the DC Circuit issued a ruling in NSA v. Klayman that has almost no practical effect, but is a potent illustration of how excessive secrecy and stringent standing requirements effectively immunize intelligence programs from meaningful, adversarial constitutional review.

Contrary to some breathless headlines, today’s opinion does not “uphold” the NSA’s illicit bulk collection of telephone records—which, thanks to the recent passage of the USA Freedom Act, must end by November in any event. Rather, the court overturned an injunction that only ever applied specifically to the phone records of the plaintiffs. And they did so, not because the judges found the program substantially lawful, but because the plaintiff could not specifically prove that his telephone records had been swept into the database, even though the ultimate aim of the program was to collect nearly all such records.

Together with other similar thwarted challenges to mass government surveillance—most notably the Supreme Court case Clapper v. Amnesty International—the decision sends the disturbing signal that mass scale surveillance of millions of innocent people by our intelligence agencies is, for all practical purposes, immune from meaningful constitutional scrutiny. Even when we know about a mass surveillance program, as in the case of NSA’s bulk telephony program, stringent standing rules raise an impossibly high barrier to legal challenges. Perversely, the only people with a realistic chance of challenging such programs in court are actual terrorists who the government chooses to prosecute. The vast, innocent majority of people affected by bulk surveillance—those with the strongest claim that their rights have been violated—are effectively barred from ever having those rights vindicated in court.

Given the routine refusal of courts to step in to protect our Fourth Amendment rights, it is fortunate that Congress has already acted to bring this intrusive and ineffective program to a halt.

With “Friends” Like Saudi Arabia, the United States Doesn’t Need Enemies

One striking feature of the first debate featuring the top tier GOP presidential candidates was how many of them described Saudi Arabia and its allies in the Persian Gulf as “friends” of the United States.  And clearly that is a bipartisan attitude.  Obama administration officials routinely refer to Saudi Arabia as a friend and ally, and one need only recall the infamous photo of President Obama bowing to Saudi King Abdullah to confirm Washington’s devotion to the relationship with Riyadh.

It is a spectacularly unwise attitude.  As Cato adjunct scholar Malou Innocent and I document in our new book, Perilous Partners: The Benefits and Pitfalls of America’s Alliances with Authoritarian Regimes, Saudi Arabia is not only an odious, totalitarian power, it has repeatedly undermined America’s security interests.

Saudi Arabia’s domestic behavior alone should probably disqualify the country as a friend of the United States.  Riyadh’s reputation as a chronic abuser of human rights is well deserved. Indeed, even as Americans and other civilized populations justifiably condemned ISIS for its barbaric practice of beheadings, America’s Saudi ally executed 83 people in 2014 by decapitation.

In addition to its awful domestic conduct, Riyadh has consistently worked to undermine America’s security.  As far back as the 1980s, when the United States and Saudi Arabia were supposedly on the same side, helping the Afghan mujahedeen resist the Soviet army of occupation, Saudi officials worked closely with Pakistan’s intelligence agency to direct the bulk of the aid to the most extreme Islamist forces.  Many of them became cadres in a variety of terrorist organizations around the world once the war in Afghanistan ended.

Saudi Arabia’s support for extremists in Afghanistan was consistent with its overall policy.  For decades, the Saudi government has funded the outreach program of the Wahhabi clergy and its fanatical message of hostility to secularism and Western values generally.  Training centers (madrassas) have sprouted like poisonous ideological mushrooms throughout much of the Muslim world, thanks to Saudi largesse.  That campaign of indoctrination has had an enormous impact on at least the last two generations of Muslim youth.  Given the pervasive program of Saudi-sponsored radicalism, it is no coincidence that 16 of the 19 hijackers on 9-11 were Saudi nationals.

Riyadh also has shown itself to be a disruptive, rather than a stabilizing, force in the Middle East.  Not only has Saudi Arabia conducted military interventions in Bahrain and Yemen, thereby eliminating the possibility of peaceful solutions to the bitter domestic divisions in those countries, the Saudi government helped fund and equip the factions in Syria and Iraq that eventually coalesced to form ISIS.  Although Saudi officials may now realize that they created an out-of-control Frankenstein monster, that realization does not diminish their responsibility for the tragedy.

In light of such a lengthy, dismal track record, one wonders why any sensible American would regard Saudi Arabia as a friend of the United States.  We do not need and should not want such repressive and untrustworthy “friends.”

Time To Remove U.S. Sanctions On Sudan

KHARTOUM, SUDAN—Like the dog that didn’t bark in Sir Arthur Conan Doyle’s tale, little advertising promotes American goods in Khartoum. Washington has banned most business with Sudan.

As I point out on Forbes: “Sanctions have become a tool of choice for Washington, yet severing commercial relations rarely has promoted America’s ends. Nothing obvious has been achieved in Sudan, where the U.S. stands alone. It is time for Washington to drop its embargo.

The Clinton administration first imposed restrictions in 1993, citing Khartoum as an official state sponsor of terrorism. The Bush administration imposed additional restrictions in response to continuing ethnic conflict.”

U.S. sanctions are not watertight, but America matters, especially to an underdeveloped nation like Sudan. At the Khartoum airport I spoke with an Egyptian businessman who said “sanctions have sucked the life out of the economy.” A Sudanese economics ministry official complained that “Sanctions create many obstacles to the development process.” In some areas the poverty rate runs 50 percent.

Ironically, among the strongest supporters of economic coercion have been American Christians, yet Sudanese Christians say they suffer from Washington’s restrictions. Explained Rev. Filotheos Farag of Khartoum’s El Shahidein Coptic Church, “we want to cancel all the sanctions.”

Washington obviously intends to cause economic hardship, but for what purpose? In the early 1990s Khartoum dallied with Islamic radicalism. However, that practice ended after 9/11. The administration’s latest terrorism report stated: “During the past year, the government of Sudan continued to support counterterrorism operations to counter threats to U.S. interests and personnel in Sudan.”

Today Washington’s main complaint is that Khartoum, like many other nations, has a relationship with Iran and Hamas. Yet Sudan has been moving closer to America’s alliance partners in the Middle East—Egypt, Saudi Arabia, and the other Gulf States. In Libya Khartoum has shifted its support from Islamist to Western-backed forces.

Economic penalties also were used to punish the government for its brutal conduct in the country’s long-standing ethnic wars. However, a peace agreement ultimately was reached, leading to the formation of the Republic of South Sudan (recently in the news for its own civil war).

A separate insurgency arose in Sudan’s west around Darfur starting in 2003. Also complex, this fighting led to the indictment of Sudanese President Omar al-Bashir by the International Criminal Court. But the Darfur conflict has subsided.

Some fighting persists along Sudan’s southern border, particularly in the provinces of Blue Nile and South Kordofan (containing the NubaMountains). Although still awful, this combat is far more limited, indeed, hardly unusual for many Third World nations.

There’s no obvious reason to punish Khartoum and not many other conflict-ridden states. Nor have sanctions moderated Sudan’s policies.

Why do sanctions remain? A Sudanese businessman complained: “You said to release south of Sudan. We did so. What else is necessary to end sanctions?”

Is there any other reason to maintain sanctions? Politics today in Sudan is authoritarian, but that has never bothered Washington. After all, the U.S. is paying and arming Egypt, more repressive now than under the Mubarak dictatorship.

Khartoum also has been labeled a “Country of Particular Concern” by the U.S. Commission on International Religious Freedom. Yet persecution problems are worse in such U.S. allies as Pakistan and Saudi Arabia.

The only other CPCs under sanctions are Iran and North Korea—for their nuclear activities. Ironically, by making the penalties essentially permanent the U.S. has made dialogue over political and religious liberty more difficult.

Among the more perverse impact of sanctions has been to encourage Khartoum to look for friends elsewhere. State Minister Yahia Hussein Babiker said that we are “starting to get most of our heavy equipment through China.” Chinese were a common sight and my hotel’s restaurant offered Chinese dishes. Across the street was the “Panda Restaurant.”

Khartoum deserves continued criticism, but sanctions no longer serve American interests.  Washington should lift economic penalties against Sudan.

TSA’s Classified “Risk-Reduction Analysis”

Last month, our friends at the Competitive Enterprise Institute filed suit against the TSA because the agency failed to follow basic administrative procedures when it deployed its notorious “strip-search machines” for use in primary screening at our nation’s airports. Four years after being ordered to do so by the U.S. Court of Appeals for the D.C. Circuit, TSA still hasn’t completed the process of taking comments from the public and finalizing a regulation setting this policy. Here’s hoping CEI’s effort helps make TSA obey the law.

The reason why federal law requires agencies to hear from the public is so that they can craft the best possible rules. Nobody believes in agency omniscience. Public input is essential to gathering the information for setting good policies.

But an agency can’t get good information if it doesn’t share the evidence, facts, and inferences that underlie its proposals and rules. That’s why this week I’ve sent TSA a request for mandatory declassification review relating to a study that it says supports its strip-search machine policy. The TSA is keeping its study secret.

In its woefully inadequate (and still unfinished) policy proposal on strip-search machines, TSA summarily asserted: “[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.”

Is the Bombastic Donald the Best of a Bad GOP Lot on Foreign Policy?

Donald Trump has wrecked the best plans of nearly a score of “serious” Republican presidential candidates. Yet, what may be most extraordinary about his campaign is that, on foreign policy at least, he may be the most sensible Republican in the race. It is the “mainstream” and “acceptable” Republicans who are most extreme, dangerous, and unrealistic.

First, the Republicans scream that the world has never been so dangerous. Yet when in history has a country been as secure as America from existential and even substantial threats?

Hyperbole is Trump’s stock in trade, but he has used it only sparingly on foreign policy. Referring to North Korea, for instance, he claimed: “this world is just blowing up around us.” But he used that as a justification for talking to North Korea, not going to war.

American Christians Should Stop Hurting Sudanese Christians With Sanctions

KHARTOUM, SUDAN—Ubiquitous American advertising is absent in Sudan. Washington bans most imports and exports to the country. Among the strongest supporters of economic coercion have been American Christians, seeking to punish the Muslim-dominated central government for its brutal conduct in past ethnic conflicts.

While the combat has largely ceased, the embargo remains. And Sudanese Christians with whom I recently spoke said that they suffer when Washington penalizes the Sudanese people for Khartoum’s sins. Rev. Filotheos Farag of Khartoum’s El Shahidein Coptic Church, explained “we want to cancel all the sanctions.”

The Clinton administration first imposed restrictions two decades ago for Sudan’s alleged sponsorship of terrorism. But the Obama administration admits that Khartoum cooperates with the United States today.

Rising Chinese Frustration with North Korea

SHENYANG, CHINA—Public space is shrinking in China for discussion of “Western” views. But “contrary to the general crackdown, North Korea policy seems to be an exception,” a U.S. diplomat told me on my recent trip to China. One hears plenty of criticism of Pyongyang.

Even official Beijing’s unhappiness with the Democratic People’s Republic of Korea is evident, though China continues to bankroll the Kim Jong-un regime. It’s a position some Chinese would like to change, including a scholar in Shenyang, a couple hours away from the Yalu by car. My colleague was careful not to directly criticize Beijing policy but advocated a much different approach. He noted that the two nations “still care about each other,” but now there are a “lot of problems between the countries.”

The most important issue, no surprise, is nuclear weapons. China supports denuclearization of the Korean peninsula. This is the “worst disagreement between them.”
Second is economic development. “China insists on reform of the whole economic and political system,” explained my friend. Beijing’s objective is to “transform North Korea.” The DPRK government fears such change.

Issue number three involves bilateral commerce. “China wants to have normal trade with North Korea,” but the DPRK expects to receive goods even if it does not pay. This has “caused great loss for China and for companies in China.”

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