Cybersecurity & Tech Surveillance & Privacy Terrorism & Extremism

The President's ISIL Speech: Calling (Obliquely) for a Going Dark Dialog, and Other Highlights

Robert Chesney
Sunday, December 6, 2015, 11:37 PM

The President addressed the nation tonight in an effort to explain our strategy against ISIL, to specify some steps he would like Congress to take, and to underscore some things he thinks we should not do. The transcript is here.

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The President addressed the nation tonight in an effort to explain our strategy against ISIL, to specify some steps he would like Congress to take, and to underscore some things he thinks we should not do. The transcript is here.

Below, I have excerpted the points that struck me as most interesting, and have added a bit of commentary after most of those quotes. If you don’t have time to read the whole thing, though, let me flag one thing that surprised me: The President obliquely referenced the “going dark” debate, suggesting there may be newfound White House interest in insisting upon government-industry dialogue on the point. That is not the same thing as deciding to seek a legislative solution after all, of course. At any rate, herewith some key quotes with commentary:

Our nation has been at war with terrorists since...9/11…

Interesting choice of label for the enemy, consistent with desire not to say we are at war with Islam as such, not to say the enemy is just al Qaeda, and not to try to explain the complexities of associated forces, the Taliban, ISIS, and so forth in just this one sentence.

Over the last few years…the terrorist threat has evolved into a new phase. As we’ve become better at preventing complex, multifaceted attacks like 9/11, terrorists turned to less complicated acts of violence like the mass shootings that are all too common in our society.

Yes and no. This makes it sound like the terrorists are monolithic, a single group pursuing a single strategy. I think it would be more accurate to say that: (i) al Qaeda senior leadership had indeed tended to focus on the sometimes-elusive “spectacular” attack; (ii) AQAP for its part has long employed not just centrally-plotted out-of-area operations such as the underwear bomb plot but also a crowdsourcing model in which it sought to inspire whatever attacks others in America and Europe might be willing to attempt on their own (inspired, specifically, by AQAP’s various media (including of course its English-language magazine called, well, “Inspire,” and also the popular lectures al-Awlaki produced; don’t forget that Major Hassan’s al-Awlaki-inspired attack at Ft. Hood was more than six years ago); and (iii) ISIS has followed in AQAP’s footsteps in this respect but with far greater success thanks to a combination of factors including the narratives made possible by the conflict in Syria, plus the social media element that the President also mentions in this speech.

First, our military will continue to hunt down terrorist plotters in any country where it is necessary.

This reflects a commitment to continuing what has been U.S. policy since September 2001. Note that it does not mean that the U.S. government thinks that the U.N. Charter is irrelevant. The right way to understand the U.S. position is with reference to the much-discussed (and debated) unwilling-or-unable test, in which the U.S. will use force in the territory of another state either with that state’s permission or else only upon a determination that the state is unwilling or unable to take effective action to address the threat.

Second, we will continue to provide training and equipment to tens of thousands of Iraqi and Syrian forces fighting ISIL on the ground so that we take away their safe havens. In both countries, we’re deploying Special Operations Forces who can accelerate that offensive. We’ve stepped up this effort since the attacks in Paris, and we’ll continue to invest more in approaches that are working on the ground.

I think this should be understood to mean that we are in the midst of an ongoing and constant process of evaluating which local forces (Iraqi Kurds, Syrian Kurds, other Syrian rebel groups, etc.) in very specific areas are capable of benefitting from U.S. SOF involvement, how to sequence and prioritize that involvement, where and to what extent it can be scaled up usefully, etc. It does not constitute a promise to put in U.S. ground forces intended to hold territory and conduct ground operations on their own. What is less clear is the extent to which this might involve an (increased?) commitment to putting in forward air controllers capable of tightly integrating local force ground ops with U.S. and other allied air power. That’s an important question, though also one where the administration is rightly reluctant to talk in great detail about just which U.S. personnel might be doing what, and where, on the ground, lest it provide operationally useful information to the enemy.

Third, we’re working with friends and allies to stop ISIL’s operations -- to disrupt plots, cut off their financing, and prevent them from recruiting more fighters. Since the attacks in Paris, we’ve surged intelligence-sharing with our European allies. We’re working with Turkey to seal its border with Syria. And we are cooperating with Muslim-majority countries -- and with our Muslim communities here at home -- to counter the vicious ideology that ISIL promotes online.

It’s remarkable, to say the least, that the capacity to share ISIS-related intel was not pushed out to the maximum long before the Paris attacks. But don’t assume that is the fault of the U.S. government, or at least our fault alone. It is not hard to imagine that ongoing fallout from the Snowden fiasco had in various ways crimped US-European intel cooperation from the European side, and in particular that some European allies have been less cooperative in sharing intelligence on their own population than they might otherwise have been.

Fourth, with American leadership, the international community has begun to establish a process -- and timeline -- to pursue ceasefires and a political resolution to the Syrian war. Doing so will allow the Syrian people and every country, including our allies, but also countries like Russia, to focus on the common goal of destroying ISIL -- a group that threatens us all.

Such a solution almost certainly will require compromise among Syrian, Russian, Iranian, and Western interests. No one is going to get as much as they wanted at the outset.

I’ve ordered the Departments of State and Homeland Security to review the visa waiver program under which the female terrorist in San Bernardino originally came to this country.

A sound decision, though whether this means anything in practice remains to be seen.

And that’s why I will urge high-tech and law enforcement leaders to make it harder for terrorists to use technology to escape from justice.

Some people will read this as a throw-away line, but those of us who have been following the “going dark” debate are left to wonder what this portends for the controversy surrounding the interest of law enforcement and the intelligence community (both here and in other countries) in finding a way to prevent the tech sector from making encrypted communications platforms that the companies themselves cannot decrypt even if presented with a warrant properly issued by a judge. The Obama administration recently had signaled that it would not ask Congress to legislate a solution to this problem, but the presence of this line in tonight’s speech suggests it may at least convene some kind of ongoing dialogue process between Washington and Silicon Valley, in hopes of a negotiated solution. It seems to me that is unlikely to yield much practical fruit, so long as the companies perceive strong market advantage in being (and being seen to be) committed to customer privacy to this degree. Paris and San Bernadino may impact that calculus to some degree, but I doubt it is enough to move the needle over to the point that Apple and other major participants on the private sector side of this debate abandon their current positions.

...Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?

I’ll say this: The no-fly list is very large, and critics on the left and the libertarian right have long contested the adequacy of its procedural safeguards. Those complains have never had much traction before, but that could change quickly if this proposal proves to have legs, for it will bring the interests of the gun-rights movement to bear in casting doubt on those procedural safeguards.

An alternative that deserves some consideration: If not a ban on gun purchases by no-fly list members, how about a system of real-time notification to FBI counterterrorism investigators (and perhaps NCTC as well) when such a person makes such a purchase, perhaps even with a statutory obligation to then take further investigative steps?

We also need to make it harder for people to buy powerful assault weapons like the ones that were used in San Bernardino. …Next, we should put in place stronger screening for those who come to America without a visa so that we can take a hard look at whether they’ve traveled to warzones. … Finally, if Congress believes, as I do, that we are at war with ISIL, it should go ahead and vote to authorize the continued use of military force against these terrorists. For over a year, I have ordered our military to take thousands of airstrikes against ISIL targets. I think it’s time for Congress to vote to demonstrate that the American people are united, and committed, to this fight.

Ah, the ISIL AUMF. Worthy of its own post, and I believe in the morning we’ll have one or more from my colleagues, so I’ll leave this one alone for now.

We should not be drawn once more into a long and costly ground war in Iraq or Syria. That’s what groups like ISIL want. They know … that if we occupy foreign lands, they can maintain insurgencies for years, killing thousands of our troops, draining our resources, and using our presence to draw new recruits. The strategy that we are using now -- airstrikes, Special Forces, and working with local forces who are fighting to regain control of their own country -- that is how we’ll achieve a more sustainable victory. And it won’t require us sending a new generation of Americans overseas to fight and die for another decade on foreign soil.

Here’s the catch: our choices are not limited to the status quo versus a massive ground invasion force. We already have some 3500 servicemembers in the combat zone, on the ground. The interesting and important question is whether to expand their roles, numbers, and capacities in ways that would still fall well-short of OIF levels and the occupation scenario the president cautions against.

We cannot turn against one another by letting this fight be defined as a war between America and Islam. That, too, is what groups like ISIL want. If we’re to succeed in defeating terrorism we must enlist Muslim communities as some of our strongest allies, rather than push them away through suspicion and hate.

Right on.

Stay tuned for more commentary from my colleagues on Monday morning.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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