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Challenges to the Rule of Law in Times of Crisis Series: America strikes again - Thoughts on Biden’s first military airstrike in Syria

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A U.S. Air Force B-1B Lancer flies over northern Iraq after conducting air strikes in Syria against ISIL targets. Photo Credit: US Department of Defense, Public Domain.

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

America is back in business, and a significant part of its stock in trade is the use of military force. Syria knows as much after being hit by two consecutive administrations in the past four years. Whatever differences Donald Trump and Joe Biden may have in style, demeanour, rhetoric, and politics, when it comes to the use of force their international record so far looks very similar.

Although the US is not formally engaged in an international armed conflict with the state of Syria, over the last years it has deployed military personnel on Syrian territory to stave off the threat of ISIS, and reportedly also to provide a geopolitical counterweight against Russian presence in the region. Moreover, the US has carried out military airstrikes on Syrian territory, most notably in 2017, again in 2018 alongside European allies, and recently on 25 February 2021. Ironically, Trump’s strikes against the Syrian government in 2017 and 2018 were prompted by an ostensible humanitarian rhetoric that is absent in Biden’s justification for his recent decision to strike Iran-backed non-governmental militias operating in Syria.

Indeed, among other grounds such as self-defence and an alleged mandate by the international community, four years ago Trump famously invoked humanitarian concerns in light of the shock produced by the Syrian government’s use of chemical weapons against its own population. Conversely, no chemical weapons were involved this time, and Biden steered clear of such humanitarian rhetoric and stuck to the traditional right of self-defence under the UN Charter to address attacks against US and its allies in Iraq.

This recent strike has been met with immediate condemnation by international law experts, mainly on the grounds that the right of self-defence must be exercised – always in a necessary and proportionate manner – against an armed attack that has occurred, or that is imminent. Since Biden’s strike was carried out ten days after the events motivating it, this US extraterritorial response seems to be too late to qualify as self-defence against an ongoing or imminent threat. Rather, it has been decried as an act of armed reprisal, which is illegal under international law.

Many questions remain to be answered or at least discussed from an international law perspective, bearing on the proverbial who, when and what. These include the legality of the use of force by one single state with no mandate in lieu of the collective security system represented by the UN Security Council; the deterrence of future threats instead of responding to current or past attacks; and the possibility of considering a series of discrete but coherent actions, in this case by non-governmental actors, as a single armed attack under the ‘accumulation of events’ doctrine.

Alongside international law, legal experts have also reflected on the justification for this recent attack under US domestic law, especially considering that this time the battered Authorization for the Use of Military Force or ‘AUMF’ – passed by the US Congress in 2002, its use spanning over two decades of strikes against Iraq, ISIS, and Iranian official Qasem Soleimani – was left on the shelf. Instead, Biden claimed to have direct authority under the US Constitution to conduct the attack.

Thus, the picture legal experts have painted when analysing Biden’s debutant strike is one of plausible justification under domestic law, and of highly dubious lawfulness under international law.

But even if all lawyers agreed that the attack was illegal under both domestic and international law, is the legal rationale the only one we need to take into account to assess Biden’s first use of military force? Is there something else we might say from a moral perspective? Even notorious legal positivists admit there is always room for moral scrutiny beyond the law. This becomes particularly relevant when legal discourse is quickly exhausted, as it is often the case with the scant provisions of international law bearing on the use of force. What will we do when we label an act as illegal, and yet global powers continue to commit it? Will we surrender to the cynicism of realpolitik, or will we fall back to a broader normative language to keep our moral judgments on the ball?

In the case of the use of force between nations, the articulation of such moral enquiries has taken over the centuries the form of the ‘Just War’ tradition, which unfolds into two separate lines of inquiry: when is it justified to resort to armed force (jus ad bellum)? And, what is permitted and prohibited in the conduction of hostilities once the war has begun (jus in bello)? In recent years the discussion has branched out into new avenues, including jus post bellum and jus ad vim (from the Latin vim or ‘force’). The latter was first suggested by Michael Walzer in the preface to the 2006 fourth edition of his canonical Just and Unjust Wars. Reflecting on the controversial invasion of Iraq a few years before, Walzer wrote:

“the Iraqi case invites us to think about the use of force-short-of-war; the containment regime of 1991-2003 that the UN endorsed and the United States enforced is only one possible example of this use. (…) force-short-of-war obviously comes before war itself. The argument about jus ad bellum needs to be extended, therefore, to jus ad vim. We urgently need a theory of just and unjust uses of force. This shouldn’t be an overly tolerant or permissive theory, but it will certainly be more permissive than the theory of just and unjust war.” (p. xv)

And we may add, certainly more permissive than international law, which clearly prohibits any ‘use of force’ by states under article 2(4) of the UN Charter, with very few exceptions (i.e. self-defence and Security Council authorization). But as we saw, the law is not the only framework to analyse instances of the use of force, and some scholars have taken up Walzer’s challenge, laying the groundwork for a new theory of jus ad vim. Among such theorists we find Daniel Brunstetter and Megan Braun, who in 2013 published their influential article titled “From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force.”

According to these authors under jus ad vim a just cause for using force is aggression, whether by states or non-state actors, warranting recourse to the right of self-defence. The use of force must be also proportional, a last resort, authorized by a legitimate authority, and carried out with the right intent (all traditional jus ad bellum criteria). The thrust of their argument is that the use of force must always reduce the probability of escalation. In other words, vim resulting in bellum evidences a failure in the application of the characteristically de-escalatory rationale underlying jus ad vim. As to international law, Brunstetter and Braun argue that jus ad vim should ideally be anchored in that normative regime, but if international law proves to be too narrow to respond to the needs of states, then it will have to evolve through customary law to mirror the evolution of our shared ethical judgments.

Based on the foregoing, can we say that the recent US airstrike in Syria satisfies jus ad vim? There might be some room to argue that US forces and allies were attacked in Iraq and, therefore, that the use of force-short-of-war in self-defence was warranted. And even if we were extremely generous as to concede that the other criteria of last resort, legitimate authority, and right intent were met, a considerable problem from the perspective of jus ad vim remains: however localized and discriminate, such attacks risked escalating hostilities in an already hot and unstable environment. And considering the heavy involvement of Russia in the Syrian quandary, the risk of escalation of the armed conflict to turn into a Cold War-style proxy war between the US (and its allies) and Russia (and its allies) must be an ever-present consideration in every policy decision made by the US, regardless of who sits in the Oval Office.

America is back in business, but for many it just feels like business as usual. Yet, this does not mean that the use of force can continue simply unchecked or that we should surrender to pure realism, for there is a full normative framework in place to assess the legality and morality of such acts under the principles of international law, jus ad bellum and jus ad vim. By using the legal view as a departure point for further moral discussion, the interplay between all these standards offers the potential to strengthen our convictions and hone our judgments about the use of force and war.

Cybersecurity from Trump to Biden: a triumph for cybersecurity?

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USAF, 2017 - A cyber operator.

After what felt like a lengthy and tortuous transition period, Joe Biden became the United States’ 46th president on the 20th January 2021. Whilst some feel relieved and others disgruntled by the result, one thing is abundantly clear: the renewed and elevated focus on cybersecurity under a Biden administration is certainly promising.

It is not news that the United States is becoming increasingly vulnerable to cyber threats; the recent SolarWinds and Microsoft attacks so aptly epitomises the extent of the vulnerability of, not only the US, but the entire world. Our ever-increasing dependency on technology also suggests that the impact of the threat will grow accordingly, which can be demonstrated by our reliance on technology during the COVID-19 pandemic. Indeed, the survival and maintenance of our livelihoods, relationships and education, to name a few, currently depend on our access to technology. As both Artificial Intelligence (AI) and the Internet of Things (IoT) come to greater fruition and almost every part of our lives are inextricably connected to technology – from the appliances in our homes to our modes of transport – US citizens will also no doubt become dangerously susceptible to disruptive hacks. Looking forward, an elevated cybersecurity focus is absolutely necessary to appropriately protect US intellectual property, prevent psychological and physical damage to its people and their property and to preserve the US’ status as a major player on the world stage.

Four Years of Cybersecurity Under Trump

As one of the most serious threats facing the US, cybersecurity should be dealt with earnestly and should never have taken the backseat that it has in recent years. Despite this, skepticism surrounding cybersecurity in the US since the beginning of Donald Trump’s presidency was rife, and rightly so. Trump consistently failed to acknowledge or confront the Kremlin interference in the 2016 election – to the extent that it was considered a hallmark of his presidency – posing an enormous threat to the fabric of US democracy. The Mueller report conclusively found that Russia executed ‘a social media campaign that favoured presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton’ and attempted to sow mass discord across the US.

To put it into perspective, when two Russian hacking groups, Cozy Bear and Fancy Bear, hacked the Democratic National Committee (DNC), Trump was quick to state that ‘’it was the DNC that did the ‘hacking’ as a way to distract from the many issues facing their deeply flawed candidate and failed party leader’’ prior to any real investigation or analysis. This was soon found to be untrue. Worse yet, Trump had actively urged Russia to leak Hilary Clinton’s ‘missing emails’. Seemingly, Trump was more concerned with his relationship with Vladimir Putin than the security of the country he was presiding over. Or was he concerned that confronting and acknowledging this interference would highlight that his electoral victory was not so victorious after all?

More recently, Trump flippantly blamed China for the SolarWinds attack, in light of evidence that pointed to Russia, and tweeted ‘’Russia, Russia, Russia is the priority chant for when anything happens because Lamesteam is, for mostly financial reasons, petrified of discussing the possibility that it may be China (it may!).’’ Again, this is completely misaligned with what his own Secretary of State and intelligence community had said which demonstrates a complete lack of coherence in the administration where cybersecurity is concerned. Sadly, in many ways, cybersecurity clearly suffered grave negligence under the Trump administration.

The evolution of ‘’defend forward’’ under Biden?

Nonetheless, Trump’s cybersecurity strategy is likely to leave somewhat of a legacy and its more active and bold tone is likely to evolve under the Biden administration. This can be inferred from the Biden-Harris statement that was released in the wake of the SolarWinds attack whereby they echoed much of defend forward and stated that “a good defense isn’t enough’’. Specifically, one concept from the Trump administration’s cyber vision that is likely to mature is persistent engagement - that is, the idea that by continuously contesting an adversary and ‘forcing them to expend more resources on defence and rebuild capabilities’, the adversary becomes less effective and the offender achieves superiority. Persistent engagement could help in the construction of norms of acceptable and non-acceptable behaviour in cyberspace through a process of tacit bargaining because states can gauge an understanding of adversaries’ so-called red lines. Therefore, it could prove to be a useful method for creating deterrence structures within cyberspace going forward. Although, as the Biden administration seeks to strengthen its offensive capabilities, it should consider that prepositioning and reconnoitring in an adversary’s network could also have undesirable escalatory effects. This raises the important question of how the US would de-escalate if escalation occurred?

Biden Takes the Baton: A Hopeful Future for Cybersecurity?

Even in the early stages of Biden’s presidency, Biden has demonstrated a much more earnest attitude towards cybersecurity. This is clear in Biden’s orchestration of a strong cybersecurity team which has been endorsed by many public and private sector individuals and was referred to by Tom Burt, the vice president of Microsoft, as ‘’world-class’’. Biden has also demonstrated a willingness to confront adversaries rather than ‘’sit idly by in the face of cyber assaults’’ which, as we have discovered, stands in direct contrast to Trump’s approach to confrontation (or lack thereof). Promisingly, Biden’s National Security Advisor, Jake Sullivan, has also made it clear that the administration is willing to use a combination of seen and unseen tools and ‘’ensure that Russia understands where the United States draws the line on this kind of activity.’’

Another reassuring factor is Biden’s desire to work with other countries and nurture stronger bilateral and multilateral partnerships after a period of neglect to help mitigate the threat. Due to the permeable nature of cybersecurity which ultimately knows no borders and is therefore an inherently team sport, this is a promising prospect. As Charlie Croom once said, “we all have knowledge and experiences that when shared make us better than we individually could be’’ and this is especially applicable where states and cybersecurity are concerned. In particular, the emergence of cyber diplomacy will be a crucial part of fostering a sense of team spirit among states by guaranteeing constant dialogue and in turn, preventing unnecessary escalation or wrongful attribution. However, under Trump, the US’ cyber diplomacy efforts were negatively impacted by Rex Tillerson’s decision to abolish the Office of the Coordinator for Cyber Issues. Fortunately, it is likely that Biden will enlist Jen Easterly as National Cyber Director, as a part of the Executive Office of the President, raising the profile of cybersecurity as a clear priority. The hope is that Easterly will then be able to coordinate the government’s cyber capabilities and bolster the US’ cyber diplomacy through her efforts.

One aspect that could have made Biden’s cybersecurity approach more encouraging is the appointment of more private sector experts. Those set to be in leadership positions are largely from the public sector which is wildly disproportionate to how much of the US’ internet infrastructure is owned by the private sector, which is the vast majority of it. Therefore, a fusion of public and private sector expertise would be more representative of this dynamic and provide a richer pool of knowledge. It would also help to create a more effective channel of communication between the two whereby threat information can be shared more easily and effectively. Importantly, appointing more individuals from the private sector would likely provide an opportunity to bring greater clarity to the public-private partnership in the US, as ‘there are no clear statements outlining legal authority, responsibility and rights across the diverse set of relationships that the government maintain with the private sector’. Ultimately, this would provide direction and confidence to the public and private sector to make definitive decisions within their remits of responsibility.

Conclusion

Overall, if there is anything that we can conclude from this, it is that losing Trump will hopefully be a triumph for cybersecurity in the US. A revived focus on cybersecurity and the employment of offensive and defensive measures from a world-class team of experts means that projections for the future of cybersecurity in the US are largely optimistic. However, in the absence of private sector appointees, it is hoped that the Biden administration will make serious efforts to nurture a stronger public-private sector partnership in other ways going forward. Ultimately, the Biden administration’s responses to the SolarWinds and Microsoft attacks should paint a much clearer picture of what cybersecurity will look like for the US in successive years.

 

Harriet is an MA National Security Studies student at King’s College London and a recent Politics and International Relations graduate. Her final year dissertation explored the UK’s decision to renew Trident and was titled ‘Chasing Status: was status the dominant driver of the UK’s decision to renew its Trident nuclear deterrent in 2016?’ Her broader writing interests include cybersecurity strategy and policy, radicalisation, counter-terrorism, status and emotions in an International Relations context and non-proliferation.

The United States, Saudi Arabia and Yemen: Same Crisis, Different Administrations

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By Philip Mayne

 

US DOD, 2019.

The outcome of the civil war in Yemen matters to the United States. Geographically, the country sits on the Maghreb Straits, a major trade route. Instability within the region has economic implications for the United States. The outcome of the conflict affects other key interests of the US, such as influence within the region and the containment of Iran.

The United States has been, and continues to be, concerned with an increase in Iranian influence and power within the region. The US and Iran have had a tense relationship for decades. In 2015, tensions were lifted slightly following a nuclear deal between the US and Iran, however President Trump abandoned this deal in 2018 and reinstated sanctions. Relations worsened following the assassination of General Soleimi in 2020 and Iran has vowed that it will seek revenge. The US sees Iran as potentially destabilising the region, which could affect US trade. US policy in Yemen has been guided by its wider interest of containing Iran.

In 2015, Saudi Arabia launched an intervention into Yemen to restore the Government. Since then, Saudi Arabia has been at the heart of US policy towards Yemen. Saudi Arabia provides an important Middle Eastern ally to the United States, as both seek to contain the influence of Iran within the region. Saudi Arabia and Iran have been in competition for dominance within the region for decades. Aggravated by religious tensions, the Saudi Arabia and Iran relationship can be perceived as a regional Cold War. The Yemen crisis can be perceived as part of the wider Iran-Saudi Proxy war. Saudi Arabia has backed the Yemeni government and Iran has supported the Houthi rebels, also known as Ansar Allah. Therefore, US-Yemen policy has revolved around one of its key Middle Eastern allies, Saudi Arabia.

What has US-Yemen Policy Looked like?

In 2015 the Obama administration, which had a tense and difficult relationship with Saudi Arabia, supported its intervention in Yemen. At the heart of this support has been trade. In 2010, Obama authorised a significant trade deal with the country. By the time he left office $115 billion worth of arms had been sold to Saudi Arabia.

The trade with Saudi Arabia increased under the Trump Administration. A major arms trade deal was secured with the Saudis in 2018, worth up to $380 billion across 10 years. By 2019, guided missiles and bombs made up the majority of the Saudi purchases. US officials have insisted that selling American weapons, such as precision air-to-ground Paveway Missiles, to the Saudis would help to avoid civilian casualties. However, the World Peace Foundation reported that Saudi Arabia has been deliberately targeting civilians with these ‘smart’ weapons. According to Security Assistance Monitor, continued weapons sales from the US has “enabled the Saudi regime to wage a brutal and indiscriminate bombing campaign in Yemen”. Infrastructure, such as fishing and farming, has also been targeted by the Saudis in an effort to starve the population into compliance.

Following reports of war crimes early in the war, the decision to continue to trade with Saudi Arabia, essentially enabling the Saudis to fight in Yemen, has become a controversial issue. The United Nations, in September 2019, urged all states to refrain from “providing arms that could be used in the conflict”. Despite this, Trump continued to sell arms to Saudi Arabia.

In 2019, Trump vetoed a resolution, which would have forced an end to US support of the War, on the grounds that the US must show commitment to its allies. He continued to make the weapons trade deals and integral part of US foreign policy, to counter Iran, boost US jobs and the US economy. Trump’s foreign policy ultimately elevated economics over other concerns. Trump’s reluctance to cut ties, or halt the arms trade with Saudi Arabia, has been perceived as giving the country the ‘green light’ for more atrocities, and the US has been criticised for looking the other way as one of its staunch allies has committed war crimes; such as the deliberate bombing of civilians. According to Human Rights Watch, the Saudi-led coalition have bombed hospitals, markets, mosques, detention centres, school buses and fishermen.

Biden’s Policy

The Biden administration has set out to transform US foreign policy. Biden has set out to rebuild US relations and rebuild “moral leadership”. Last week, the new administration has announced changes to its policy on the war in Yemen, and its relationship with Saudi Arabia. On 4 February 2021, Biden made his first speech on US foreign policy. Within the statement he said that he will be stepping up diplomacy efforts, to bring a ceasefire, open humanitarian channels and begin peace talks. Biden reiterated that the US would continue to support Saudi Arabia to defend its territory and sovereignty. But, importantly he said “to underscore our commitment, we are ending all American support for offensive operations in the war in Yemen, including relevant arms sales”.

The following day, Biden announced that his administration would revoke the terrorist designation of the Houthis. During his last few weeks in office, Trump designated the Houthis a terrorist organisation, in a move to “further malign activity by the Iranian regime”. However, the move was met with widespread condemnation. The move was opposed because designating the group as a terrorist organisation makes it harder to broker a resolution. The Financial Times expected that the designation would likely push the Houthi movement closer to Tehran, hardening the stances of both sides. Trump’s decision was met with condemnation by the UN, who argued that this would worsen the already dire humanitarian crisis. Since the start of the War, it is expected that more than 230,000 Yemenis have died due to war, mostly due to a lack of food, health services and infrastructure. The UN shared its concerns that the situation would worsen, as links to food and medical supplies could be interrupted. David Beasley, the Executive Director of the World Food Programme, warned that the designation could “be a death sentence to hundreds and thousands if not millions”.

The state department has said that Biden’s announcement does not mean that the US supports the Houthis, and nor does it support the conduct of the Houthis; who have used child soldiers and committed war crimes as well. Instead, it has been decided based on the humanitarian affects that the designation may have had. The UN has welcomed the change in policy calling it a “positive development” towards negotiations.

How important is this transition in policy?

Biden’s policy is a significant change from the last two administrations. He is reversing the policies of the Obama administration and he is trying to distance Washington from Riyadh, overturning the direction of Trump’s foreign policy. No longer will the US position be solely on supporting Saudi Arabia to keep Iran in check, instead it is to focus on human rights abuses on both sides of the war.

However, this policy change has come early in his administration and the effects are not yet clear. The freezing of the flow of US arms to Saudi will put the country under pressure. However, there are no immediate details on what the freeze means. It is not clear what “relevant” arms sales are. William Hartung, the director of the arms and security programme at the Centre for International Policy, said “To be effective, the new policy should stop all arms sales to Saudi Arabia and the UAE, both proposed and in the pipeline, including maintenance and logistical support”. Therefore, if Biden does want to put pressure on Saudis to come to the negotiating table, the “relevant” arms sales freezes must be significant and wide ranging.

However, the US decision to freeze arms not only puts Saudi Arabia under pressure, but it also ramps up the pressure for other countries, such as Canada, France, Italy, Spain and the UK, selling arms and providing technical support to Saudi Arabia. The UK may be reluctant to do this, as the UK has a trade deal, which includes Typhoons and missiles, worth up to £5.4 billion.

However, if the UK and other allies continue to supply the Saudis, they appear to be out of line with the US. Even more so, due to Biden’s emphasis on the humanitarian issues of the war. Time will tell the impact of Biden’s change in policy.

However, early into his administration Biden has not hesitated to show his commitment to ending the war. In early February, he announced Timothy Lenderking as the US special envoy to Yemen, to open up diplomatic channels. On 7 February, Lenderking was sent to Iran to try to broker a cease-fire between then Yemeni government and the Houthi rebels. On 22 February, Lenderking began another humanitarian trip to several countries in the Gulf with the intention of bringing about a lasting political solution, and humanitarian relief to the people of Yemen.

The Biden Administration has taken a different approach to the Yemen crisis. The President appears to be committed to bringing peace to the country. Although the change in policy is welcome, it is premature to celebrate. It will take a continued commitment to stopping the war and applying pressure to its allies. There is still a long and uncertain road ahead for the people of Yemen, who have already suffered years of war, crisis, and hunger.

Philip Mayne is a final year PhD candidate at the University of Hull. He has a special interest in strategy, counterinsurgency, military ethics, military history, international security and relations. His thesis examines the relationship between military ethics and military effectiveness. Specifically, his work focuses on adherence to the Just War Tradition, and success in counterinsurgencies; through analysing the case studies of the Malayan Emergency, the Kenyan Emergency, the Algerian War and the Vietnam War. Philip has contributed to the Huffington Post and is an active member of the Hull University War Studies Research Group. Find him on Twitter @phil_mayne.

Trump’s Pentagon: An Opaque Legacy

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By Hannah Papachristidis

(Georgia Tech, 2020)

In August 2020, a letter was sent to Senator Christopher Murphy (D-CT) blocking a declassification appeal. The appeal in question referred to the classification of the War Powers Act notification following the drone strike which killed Iranian commander Qasem Soleimani in January 2020. Until January 2020, all known previous War Powers Act notifications were unclassified (accompanied on occasion by a classified annex), making Trump’s act of war not only highly belligerent, but also a threat to the principles of transparency and public accountability in times of war and crisis.

The Constitution gives Congress the power to ‘declare war’, meaning that presidents cannot independently declare war. It is generally agreed, however, that the Commander-in-Chief role allows the President to initiate military action to repel attacks against the country. The distinction between low-level hostilities or other situations which may not count as war and war itself is blurry, and is the source of much controversy. The War Powers Resolution, therefore, was Congress’s move to stake their claim on the power to declare war in the face of presidents who waded into the grey areas. It requires that, if a president takes unilateral action, they must inform Congress within 48 hours and that such military operation can only continue for up to 90 days without congressional approval. These requirements, however, have been deemed an unconstitutional infringement of Congress on presidential powers by every President since 1973.

Trump justified the strike on Soliemani as an attack of ‘self-defence’, the first time a nation has invoked self-defence as justification for carrying out an attack against a state actor in a third country. Invoking self-defence requires evidence, in this case of the ‘imminent attack’ referenced by Trump. Trump’s failure to produce such evidence meant the attack was an unlawful, arbitrary killing by the US.

Much has been written debating the event, the legality of Trump’s actions, the effectiveness of the 1973 War Powers Resolution, and the validity of using the ‘2002 Authorisation for Use of Military Force’ to justify the drone strike. What receives less coverage, however, is the way in which the classification of the War Powers notification fits within a wider pattern of opacity and secrecy by the Trump administration, particularly with regards to issues of defence and security. Whilst it is not unusual for a sitting president to challenge the War Powers Resolution, the desire of the Trump administration to shroud such an outrageous act of war in secrecy and over-classification makes Trump’s actions more disingenuous than his successors.

Senator Murphy’s challenge of the classification of the notification outlined the irregularity of such an approach, and he wrote; “I suspect the Notification was classified to restrict debate, rather than for national security purposes”. Murphy reviewed the notification as an authorised clearance holder and, with this in mind, he outlined in his challenge that the information included in the notification was already public record, providing no grounds for classification. Classifying the notification, therefore, was not a matter of national security but a direct attack on transparency, a key principle of good governance.

The Project on Government Oversight (POGO), an independent watchdog organisation that focuses on waste, corruption and abuses of power by the US government, put together a timeline documenting the changes to the Department of Defense (DoD) and national security policy that limited and undermined public access to information under Trump. The timeline starts with memos sent in 2017 from then Defense Secretary Mattis, the Chief of Naval Operations, and a Pentagon spokesman all warning staff against ‘over-sharing’. From there, a downward spiral into secrecy unravels, marked with long periods without televised press briefings, and the classification of data previously publicly available. The US Air Force, for example, ordered a freeze on media access and public outreach in 2018. In January 2019, the DoD stopped issuing ‘strike releases’, reports providing information on bombings targeting ISIS in Iraq and Syria. The strike releases were previously highly detailed, and useful for cross-referencing claims of civilian harm by monitoring groups.

An important milestone was the decision to no longer publish the number of troops in Iraq, Syria and Afghanistan announced by Trump in August 2017. These numbers were previously published every quarter. There is little evidence, therefore, that publishing these numbers would suddenly constitute an operational risk. Transparency around troop levels guides public understandings of ongoing conflicts and levels of troops at risk. Hiding the scale of the US military presence in war zones from the public, therefore, is a huge step towards undemocratic war waging. These policy changes illustrate how the Pentagon, led by Trump appointees, disengaged from the public and broke with previous information sharing practices. In doing so the DoD normalised secrecy without due justification, promoting a culture of over-classification in favour of transparency and accountability.

Much of this secrecy can be attributed to Secretary Mattis’ leadership; his successor, Mark Esper, reintroduced televised press briefings and was purported to favour greater transparency. Full transparency did not resume however, as the classified 2020 War Powers notification illustrated. Furthermore, in March 2020, the Department of Defense asked Congress to rescind the request for the Pentagon to provide an unclassified copy of the Future years Defense Program database, data which provides spending projections for five years in the future, key details which provide the public with outlines of DoD future investments. Although this hasn’t taken place yet, that the DoD would consider denying the public, civil society organisations, and independent watchdogs the opportunity to review and scrutinise projected expenditure, future acquisition plans, and personnel management plans, is a critical warning sign of continued desires to shut down important civil society oversight and dialogue on the use of taxpayer funds.

Transparency in the national security space is a constant push and pull, with those within defence and security institutions claiming defence exceptionalism and those outside pushing for greater accessibility. A balance is possible, in which classification is used as a tool for national security not a coverup for abuses of power, conflicts of interest, and corruption. Overclassification, as seen with the 2020 War Powers notification, is a pernicious issue, which not only threatens public understanding but ultimately undermines classification standards and information regulation.

With the start of Joe Biden’s presidency, there is hope that greater transparency and accountability will return to the US defence institutions. Biden has made some commitments to transparency but nothing specific regarding national security. He has the opportunity to reverse the policies and practices that emerged under Trump and to encourage a more transparent and accountable defence sector, and civil society should hold him to this.

 

Hannah Papachristidis is a project officer at Transparency International Defence & Security, where she manages research outputs for the 2020 Government Defence Integrity Index. She holds an MA in International Affairs from Columbia University and is an Emerging Expert at Forum on the Arms Trade.

Why Biden Will Not Get Soft with China

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by Martina Bernardini

President-Elect Joe Biden, then in his capacity of Vice President, walks with Chinese President Xi Jinping, shortly after his arrival at Andrews Air Force Base during a 2015 visit to the United States (Image credit: AP Photo/Carolyn Kaster)

The election of Joe Biden as President of the United States is meaningful for several reasons, but foreign policy stands out as one of the most important. While the wars in Iraq and Afghanistan and the subsequent crisis in Transatlantic relations challenged the resilience of U.S. hegemony, the widespread enthusiasm to Biden’s election demonstrates that the U.S. historic allies still want – and require – an engaged United States on their side. Taking the reins of U.S. foreign policy in this particular moment in the history of the international system, however, is not an easy task. The biggest challenge lies in re-affirming the U.S. position in world affairs, a grand strategy that will contribute to building a strict balance between Washington and Beijing, to show that the absolute decline of U.S. power has not occurred.

During his presidential campaign, outgoing U.S. President Donald J. Trump argued that Biden allowed China to become a threat to the United States by supporting China’s entrance into the World Trade Organization in 2001. Such assumption indicated that for Trump, if Biden became President of the United States, he would get soft with China. The recent history of U.S. foreign policy, however, dismisses this thesis. In 2000, in fact, together with eighty-two U.S. Senators and 237 members of the House of Representatives, Joe Biden did vote in favour of the China Trade Bill, which authorised ‘the extension of nondiscriminatory treatment (normal trade relations treatment) to the People’s Republic of China, and to establish a framework for relations between the United States and the People’s Republic of China.’

The approval of such a bill by the U.S. Congress accompanied U.S. support for China’s accession to the WTO. At the dawn of the 21st century, this move represented - at least to U.S. policymakers - China’s official embrace of a world order based on the American-led ideals of free trade and democracy, a trend that was set in motion by President Richard Nixon and George H.W. Bush. China’s entry into the WTO was indeed positively welcomed both by Democrats and Republicans - by Presidents Clinton as well as George W. Bush - because it was seen as the coronation of a grand strategy aimed at bringing China into a pan-American trade regime. Consequently, Biden’s vote in favour of the China Trade Bill does not mean that, as President of the United States, he will adopt a concessionary China policy. Incidentally, the exact reasons for his support of China’s integration into the global trade system increase the probability that Biden’s foreign policy towards China will not be accommodating.

Biden’s vision of the United States in the world reflects the American exceptionalism that drove the United States towards superpower status by spreading the American soft power and democratic ideals abroad from the Spanish-American war (1898) to Obama’s presidency (2008-2016). For Biden, this means that the U.S. has the duty to lead and inspire the other powers of the international system. In this framework, his administration’s foreign policy plan is to lead the United States to re-establish such a relationship with the international community after four years of isolationism under Trump.

This foreign policy approach will consequently bring Sino-American relations back to the Obama years, when Washington recognised that China represented a challenge for U.S. power that had to be addressed firmly, without undermining the bilateral relationship nor the stability of the international system, of which the United States intends to be the guarantor. In the last phase of his presidential campaign, Biden anticipated how he is likely to approach Beijing. For example, he criticized Trump for not having acted on the issue of human rights in the Xinjiang region, but at the same time, he talked about working with China on climate-related matters and the COVID-19 pandemic. That is to say, that open hostilities are unlikely to break out, but Biden will want the U.S. to take a firm stance against China in the key fields where the U.S. leadership among its allies and its great power status are at stake.

The most delicate grounds for Sino-American relations in the near future are two: trade and technology. Biden will inherit the trade war that Trump launched during his years in office as an attempt to reverse the course of the growing U.S. trade deficit with China. When he was Vice President from 2009 to 2017 under Obama, the United States pursued a multilateral economic strategy to reach the goal of re-balancing the U.S. balance of payments with China. Today, this approach is no longer an option, mainly because Biden will face a bipartisan consensus for toughening the U.S. China policy.

As David Shambaugh explained, the Democrats might not have fully agreed on the utility of tariffs for U.S. national security, but they were not against Trump’s tough China policy overall. A cross-party general indisposition and the willingness to take effective action towards China have risen in U.S. Congress because China challenges the U.S. power on many fronts, and exactly because Biden recognised the need of rebalancing the economic relations with China already during his Vice-Presidency, he is expected to be determined to reach such goal. For now, Phase One of the Economic and Trade Agreement between the U.S. and China that was signed this year remains in place, and Biden declared that he is not intentioned to cancel such agreement, at least not immediately. The first step for the Biden administration’s China policy will thus be to get a sense of where the historical U.S. foreign policy partners stand vis-à-vis their commercial relations with China.

Alliances are likely to be the starting point for a firm stance on the technology front as well. ‘The United States does need to get tough with China. If China has its way, it will keep robbing the United States and American companies of their technology and intellectual property,’ Biden wrote in Foreign Affairs last spring, adding that the best way to confront the Chinese technological challenge is to build a ‘united front’ with allies. Much has been said about the U.S. semiconductor sector as at risk of being exploited by China, which led the U.S. Department of Defense to finally add Semiconductor Manufacturing International Corporation (SMIC) - the largest chipmaker in China - to the U.S. Entity List on December 18, 2020.

The list in question, which is run by the U.S. Bureau of Industry and Security, contains the names of foreign persons, governmental organisations, and companies that are subject to specific license requirements for the import of items from American suppliers. Consequently, any operation held with one of the subjects present in the Entity List is considered at risk by the U.S. government, and will therefore be closely monitored. The move comes as the final act of the most vigorous measures that the outgoing Trump administration implemented towards Beijing before Biden takes office on January 20, 2021, fearful that the incoming administration would soften the line.

This, however, is not likely to happen, because Biden’s vision of the U.S. in the world will merge with the clear bipartisan support of a hard line with China coming from Congress. The incoming Biden administration will thus aim to bring the tensions on the commercial and technological fronts to a higher strategic level especially by working on reinvigorating Transatlantic relations. Biden’s overall approach to foreign policy will be guided by his vision of the U.S. in the world, which, on the one hand, is strictly related to the historical conception of American exceptionalism, but, on the other hand, must resiliently adapt to the shape of the 21st Century’s international system, which demands a cooperative approach on climate change, migration, and global health. This means that the world will not enter a ‘new Cold War’ – a misleading term that is very often overused to describe Sino-American relations – but that Biden’s foreign policy towards Beijing will contribute to a redefinition of the terms of great power competition in a globalised world, which is not necessarily an easier scenario.

Martina is a PhD Candidate at the Department of War Studies at King’s College London. She has been awarded the Leverhulme Scholarship ‘Interrogating Visions of a Post-Western World: Interdisciplinary and Interregional Perspectives on the Future in a Changing International Order.’ Her research focuses on the history of U.S. foreign policy towards China, particularly on the role of China in U.S. President George H.W. Bush’s Grand Strategy for a post-Cold War World Order. She is an alumna of the School of Politics founded by former Italian Prime Minister Enrico Letta, and she holds a first-class honors Master’s degree in International Studies from Roma Tre University, where she also completed her BA in Political Science and International Relations.