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The Great Transformation Part 2: More on Markets

Published October 14, 2015 | By Ed Walker

The first two posts in this series are:

The Great Transformation: Mainstream Economics and an Introduction to a New Series

The Great Transformation Part 1: The Market

In Part 1 I discussed the definition of markets in The Great Transformation, and noted that Karl Polanyi gives a definition, while mainstream neoliberal economic theory doesn’t. The absence of a definition in neoliberal theory is crucial to its success. Neoliberal economists do not have to account for the vast differences among markets: they can treat all markets as identical for purposes of their mathematical edifices.

Polanyi’s simple definition enables him to discuss the differences among markets and the different purposes they serve in different societies. In the Mercantilist era, say up to about the early 1800s, Polanyi identifies three different kinds of markets: external, internal and local. Local markets serve the local community as in the case of householding societies. Polanyi says they are not intrinsically competitive, nor are they focused on gain. P. 61

External markets are for long-distance trade, what Polanyi identifies as the carrying trade. They form at natural stops along the trails of transport, at river crossings and ports. They do involve gain, and the propensity of some people for truck and barter, but they are limited to specific sites and specific goods. They are not essentially competitive, Polanyi says. Over time, long-distant market sites turn into towns, and their principle purpose is to manage external trade. They are not a function of the nation state, but of those towns, which work to keep their long-distance markets apart from the lives of those in the countryside.

The [Hanseatic League] were not German merchants; they were a corporation of trading oligarchs, hailing from a number of North Sea and Baltic towns. Far from “nationalizing” German economic life, the [Hanseatic League] deliberately cut off the hinterland from trade. The trade of Antwerp or Hamburg, Venice or Lyons, was in no way Dutch or German, Italian or French. London was no exception: it was as little “English” as Luebeck was “German.” The trade map of Europe in this period should rightly show only towns, and leave blank the countryside—it might as well have not existed as far as organized trade was concerned. P. 66.

The third kind of market, the internal market, is a deliberate creation of the nation-state. As Polanyi explains it, the towns worked to maintain the separation between long distance and local markets, as a matter of self-protection of the town and of the town officials and elites. They feared the destructive impact of mobile capital on their existing institutions, and on their prerogatives and status.

Deliberate action of the state in the fifteenth and sixteenth centuries foisted the mercantile system on the fiercely protectionist towns and principalities. Mercantilism destroyed the outworn particularism of local and intermunicipal trading by breaking down the barriers separating these two types of noncompetitive commerce and thus clearing the way for a national market which increasingly ignored the distinction between town and countryside as well as that between the various towns and provinces. P. 68-9.

This classification of markets by their reach is convenient for the story Polanyi is telling, but there are modern counterparts. In many cities around the country, but especially in Europe, say Paris, there are local market streets, where you can find your daily food and your minor needs, like a plate to replace the one that mysteriously broke. There are weekly or bi-weekly markets where you can find all sorts of things, from a sweater to a giant vat of choucroute garnie, with nearly black juniper berries punctuating the Toulouse sausages and the hunks of pork. These are just like the local markets Polany describes, and just as important to daily life in these otherwise impersonal cities.

Scattered throughout the city, there are stores focused on specific area of France, Auvergne butchers, stores selling Charolais beef, Perigord stores, with their jars and cans of confit du canard, and many others, wine shops specializing in Champagnes or wines from Burgundy. These stores connect people to their roots in the country, and might be regarded as internal markets.

In the wealthier parts of the city there are other kinds of markets. You can find African, Indian and Near Eastern textiles and jewelry, and lots of similar things. There are shops selling Italian shoes and clothes, branded and unbranded. There is fantastic jewelry and jeweled pieces from world makers, and at prices that bug out the eyes. Each of these kinds of stores are grouped together, so that a person searching for antique French furniture only has to visit a few streets to get a good sense of what is available. This view of consumer culture reinforces Polanyi’s view that a market is a place.

Of course, standard economics rejects this simple definition. Here’s a typical reaction, from Santhi Hejeebu & Deirdre McCloskey (H/T commenter Alan)

…Polanyi never got over the noneconomist’s inclination to think of markets as literal marketplaces, rather than relationships among people in many different places…

The authors are both economists, so this is not a mistake. Their definition of a market is “relationships among people in many different places. Let’s try an example. In BKB Properties, LLC v. SunTrust Bank, (MD Tenn. 2011) the owners of the plaintiff wanted a fixed rate loan from SunTrust Bank to build a new building for their car dealership. SunTrust would only agree to a floating rate loan, and offered to sell plaintiff an interest rate swap to create a synthetic fixed rate. Plaintiff agreed. Several years later, when interest rates fell in the wake of the Great Crash, BKB’s owners wanted to refinance the note, and when SunTrust refused, plaintiff exercised its right of prepayment. SunTrust refused to accept the prepayment and release the mortgage on the land unless the plaintiff paid a stiff penalty to cancel the interest rate swap, which had a 10 year term, while the note was prepayable. The Court ruled for SunTrust, saying that this is just a routine contract case, and that the parties are assumed to understand the terms of the documents they signed.

Note that SunTrust could have purchased a swap to protect its interests more intelligently than BKB Properties, Ltd., a shell corporation set up by a car dealer. SunTrust could have canvassed offers from several banks and hedge funds, which at least sounds like a market.

But on the given facts, was this a market transaction? In the world of Hejeebu and McCloskey it certainly is. After all, these are two parties with some kind of relationship who are in different places. Swap creators don’t post prices, don’t disclose transactions in any usable way, and according to the Court don’t have any duties to their customers. The relationships that Hejeebu and McCloskey talk about are limited to Buyer Beware, and that’s good enough for them.

In Polanyi’s world, maybe not. At that time, there was no physical place one could go to buy and sell swaps, at least if you were a car dealer in a suburb of Nashville, TN. Specifically, there was no analogue to the stock market, or an electronic exchange. There was no place to find data, no place to find alternative bids, no quote sheets, and there was often negotiation over the terms of a swap which affected its value to both parties, again with no transparency to outsiders who might have learned of its existence. In sum, there was no place for any activity that sounds market-like.

Definitions matter. Polanyi’s definition gives us a good idea of what he is talking about, and his three kinds of markets are useful and convenient in his analysis. How do we talk sensibly about the “swaps market”? In what way is it like the market for choucroute garnie?

Posted in Economics, Uncategorized | Tagged economics, Karl Polany, markets, The Great Transformation | 8 Comments

Time to Get VERY Concerned about CISA Gutting Governmental Leverage on Corporations over Cyber

Published October 14, 2015 | By emptywheel

Back in August, I wrote a post wondering whether the following clause in the Cyber Intelligence Sharing Act would provide a way for corporations to avoid any government action punishing them for their negligence on cybersecurity.

(D) FEDERAL REGULATORY AUTHORITY.—

(i) IN GENERAL.—Except as provided in clause (ii), cyber threat indicators and defensive measures provided to the Federal Government under this Act shall not be directly used by any Federal, State, tribal, or local government to regulate, including an enforcement action, the lawful activities of any entity, including activities relating to monitoring, operating defensive measures, or sharing cyber threat indicators.

(ii) EXCEPTIONS.—

(I) REGULATORY AUTHORITY SPECIFICALLY RELATING TO PREVENTION OR MITIGATION OF CYBERSECURITY THREATS.—Cyber threat indicators and defensive measures provided to the Federal Government under this Act may, consistent with Federal or State regulatory authority specifically relating to the prevention or mitigation of cybersecurity threats to information systems, inform the development or implementation of regulations relating to such information systems.

(II) PROCEDURES DEVELOPED AND IMPLEMENTED UNDER THIS ACT.—Clause (i) shall not apply to procedures developed and implemented under this Act.

My worry was that a serial hacking target like Wyndam — or even just a company with sloppy security like GM — could immediately share information on a hack (or even a vulnerability identified by security researcher that technically violated a company’s DMCA rights) with the government, and in doing so avoid any further action from the government on that point.

Something similar appears to happen with the Bank Secrecy Act: banks share information and therefore limit their liability for money laundering or supporting terrorists or what have you.

If my concern is correct, it would provide companies that chose not to fix vulnerabilities a way to avoid NHTSA required recalls or FTC lawsuits.

At Computers Freedom and Privacy, I asked the author of CISA, Senate Intelligence staffer Josh Alexander, about the clause.

His only response was to point to this language permitting disclosure of information.

(a) Otherwise Lawful Disclosures.—Nothing in this Act shall be construed—

(1) to limit or prohibit otherwise lawful disclosures of communications, records, or other information, including reporting of known or suspected criminal activity, by an entity to any other entity or the Federal Government under this Act; or

(2) to limit or prohibit otherwise lawful use of such disclosures by any Federal entity, even when such otherwise lawful disclosures duplicate or replicate disclosures made under this Act.

He emphasized that the government could still respond to unlawful activity. But bad security is not unlawful.

In other words, he had no response to my concerns. Which leads me to believe CISA guts the government’s ability to punish companies that don’t fix their security issues.

I guess that explains why the Chamber of Commerce is so excited about the bill.

Posted in Cybersecurity | Tagged Chamber of Commerce, GM, Wyndham | 10 Comments

James Orenstein Calls Out Jim Comey on His Prevarications about Democracy

Published October 13, 2015 | By emptywheel

At a 10 AM Senate Homeland Security hearing on October 8, Jim Comey read prepared testimony that reiterated his claim that encrypted devices are causing FBI problems, but stated that the Administration is not seeking legislation to do anything about it.

Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions.. This real and growing gap, to which the FBI refers as “Going Dark,” is an area of continuing focus for the FBI; we believe it must be addressed given the resulting risks are grave both in both traditional criminal matters as well as in national security matters. The United States Government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the Administration is not seeking legislation at this time.

That statement got the Administration a lot of good press, with the WaPo declaring “Obama administration opts not to force firms to decrypt data — for now” and the NYT, even after this ruling had been unsealed, reporting, “Obama Won’t Seek Access to Encrypted User Data.” In the actual hearing, Comey was more clear that he did intend to keep asking providers for data and that the government was having “increasingly productive conversations with industry” to get them to do so, inspired in part by government claims about the ISIS threat. Part of that cooperation, per Comey, was “how can we get you to comply with a court order.”

Sometime that same day, on October 8, government lawyers submitted a request to a federal magistrate in Brooklyn to obligate Apple to help unlock a device law enforcement had been unable to unlock on their own.

In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.

The next day the judge, James Orenstein, deferred ruling on whether the All Writs Act is applicable in this case (though he did suggest it probably wasn’t) pending briefing from Apple on how burdensome it would find the request. Orenstein released his memo after giving the government opportunity to review his order.

This is not the first time the government has tried to use the All Writs Act to force providers (Apple, in at least one of the known cases) to help unlock a phone. EFF described two instances from last year in a December post. It also reviewed a 2005 ruling where Orenstein refused to allow the government to use All Writs Act to force telecoms to provide cell site location in real time.

Of course, as Lawfare seems to suggest, it has taken a decade for the decision Orenstein made in that earlier ruling — that the government needs a warrant to get cell tracking from a phone — to finally get fully developed into a debate and some Supreme Court (US v. Jones) and circuit rulings. That’s because in the interim, plenty of magistrates continued to compel providers to give such information to the government.

It’s quite possible the same is true here: that this is not just the third attempt to get a court to issue an All Writs Act to get Apple to provide data, but that instead, a number of magistrates who are more compliant with government wishes have agreed to do so as well. Indeed, as Orenstein noted, that’s a suggestion the government made in its application when it claimed “in other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple has complied with such orders.”

What Orenstein did, then, was to make it clear this continues to go on, that even as Jim Comey and others were making public claims (and getting public acclaim) for not seeking legislation that would compel production of encrypted data the government — including, presumably, the FBI — was seeking court orders that would compel production secretly. The key rhetorical move in Orenstein’s order came when Orenstein compared Comey’s public statements claiming to support debate on this issue to the attempt to claim the government had to rely on the All Writs Act because no law existed. In a long footnote, Orenstein quoted from Comey’s Lawfare post,

Democracies resolve such tensions through robust debate …. It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.

Then Orenstein pointed out that relying on the All Writs Act would undercut precisely the democratic debate Comey claimed to want to have.

Director Comey’s view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate “back door” access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute’s scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate – as opposed to having them decided by the judiciary in sealed, ex parte proceedings.

To be fair, even as the government was submitting its secret request to Orenstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.

But, given Orenstein’s invitation for Apple to lay out how onerous this is on it, Comey might get the democratic debate he once embraced.

Update: When I wrote this in the middle of the night I misspelled Judge Orenstein’s name. My apologies!

Posted in Intelligence, Law | Tagged James Orenstein, Jim Comey, US v. Jones | 7 Comments

America’s Failed Quagmire

Published October 12, 2015 | By emptywheel

The WaPo has a report providing new (actually conflicting, especially as to start date) details on America’s “covert” efforts in Syria.

In all seriousness, Administration officials (some anonymous) and a former Syrian opposition figure told WaPo that the whole point of this was quagmire: weakening Bashar al-Assad, but not too much.

Supplied mostly from stocks owned by Saudi Arabia, delivered across the Turkish border and stamped with CIA approval, the [TOW] missiles were intended to fulfill another of the Obama administration’s goals in Syria — Assad’s negotiated exit from power. The plan, as described by administration officials, was to exert sufficient military pressure on Assad’s forces to persuade him to compromise — but not so much that his government would precipitously collapse and leave a dangerous power vacuum in Damascus.

Consider what this strategy means for civilians on the ground, especially refugees that the international community is already underfunding.

Even crazier, though, is that the US believed we could prevent our Saudi allies from pressing their advantage.

“A primary driving factor in Russia’s calculus was the realization that the Assad regime was militarily weakening and in danger of losing territory in northwestern Syria. The TOWs played an outsize role in that,” said Oubai Shahbandar, a Dubai-based consultant who used to work with the Syrian opposition.

“I think even the Americans were surprised at how successful they’ve been,” he added.

[snip]

But the TOW missile program is already in progress, and all the indications are that it will continue. Saudi Arabia, the chief supplier, has pledged a “military” response to the Russian incursion, and rebel commanders say they have been assured more will arrive imminently.

In any case, our “strategy” in Syria seemed to misunderstand both our Saudi allies and Assad, not to mention Russia’s, intent (unless they intent was to expand the proxy war beyond Ukraine). As well as the consequences.

Posted in War | 19 Comments

Pure Michigan Trash Talk

Published October 10, 2015 | By bmaz

Michigan’s official tourism and advertising campaign has been called “Pure Michigan” for a while now. They do some beautiful advertising that has commercials reaching nationwide, if not world wide. And so it is we go to Pure Michigan for this week’s trash talk. Because all the good ball is in Michigan this weekend.

First up in Pure Michigan is The Mighty Fighting Journalists of Northwestern at the Big House in Ann Arbor to take on obnoxious Coach Baggy Chinos and the Wolverweenies. Obviously, most Americans are properly rooting for the Journalists. Michigan got beat in week one when they went west to Rice-Eccles Stadium to visit Utah. Things did not turn out well for the Weens, but in hindsight it turns out that Utah is really good. Michigan has won all their games since then. Northwestern is undefeated and has been surprisingly good in getting there. The line favors Michigan by 10, and all the experts are picking them. I think 10 points is way too much with these two defensive minded teams (they rank one and two in defensive points allowed nationally), but no question Michigan is favored in the Big House. I think the game will come down to whether the Journalists can get Justin Jackson going on the ground. If they do, this could be an upset special. Frankly, the only other NCAA game of note is Cal at Utah. The last two undefeated teams in the Pac-12, and only one will leave still in that status. QB edge goes to Cal’s Jared Goff, but the Utes are awfully well coached and are at home. I’ll take the Utes.

The other Pure Michigan special this week is Cardinals at the Lions. The Battle of the Emptywheel Blog. The Kittehs are down on their luck, and got hosed at Seattle last week. The Cards got beat at home by the newly Todd Gurley invigorated Rams. The Cards were terribly off offensively. Much of that can obviously be attributed to St. Louis’ terrific defense, but it was more than that. Carson Palmer and the boys just never seemed in synch. I actually thought Detroit played a good game in Seattle and looked solid. It is still not clear they can keep Stafford from getting killed though, and that is not going to get any easier against the Cards defense. But the Lions have too much talent to lose every game, and they may well get off the snide this week in an upset.

Other games of interest in the NFL include Squawks at Bengals. This really could be a great game, and we are going to get a good glimpse as to whether Andy Dalton and the Bengals have really turned the corner this time. I think they have and beat the Squawks. Also the Rams visit the Tundra at Lambeau. The Rams are way better than you think, especially with Gurley untracked. But Lambeau, Rodgers and the Pack are a load I’m not sure St. Louis can overcome. Still, look for a great game. All the ESPN loud mouthed yokels are yammering about the Patriots at the Cowboys. This would have been worth the talk if Romo, Dez Bryant and a handful of others were not out for Dallas. But with a still pissed off Tom Brady, and Bill Bell coming off of an extra bye week to scheme? Yeah, good luck with that ‘Boys. Believe it or not, the Broncos at Raiders might also be pretty interesting.

The F1 Circus is in Sochi this weekend. There are still some rough edges on the young Sochi circuit. They barely got it ready for last year’s inaugural Russian Grand Prix. Far better this year, but still having growing pains. In spite of that, I really kind of Sochi. Toro Rosso’s Carlos Sainz had a nasty crash at Practice Three this morning, but has been pronounced okay at the hospital. Still, he will be held for observation, and will not join the grid tomorrow. Qualifying is going on as I write, with Rosberg and Hamilton fast, and Valterri Bottas and Vettel just behind as we reach the Q2 cutoff. Massa didn’t make Q3, but there is Bottas currently in P3. Bottas really clicks at Sochi, having made the podium last year. Massa, his Williams teammate, however, seems not to like Sochi. Was off the pace last year too. Weird.

Anyway, in other news Jeb! Bush did NOT, I repeat NOT, smoke weed with Bill Belichick in high school. Well, you know, of course not. Everybody knows Bill Bel smoked hash, not weed!

Posted in Football, Trash Talk | Tagged Pure Michigan

Michael Mosman’s Deadlines Raise (More) Questions about the FISC Advocate

Published October 9, 2015 | By emptywheel

In the series of letters purporting to speak for “the judiciary,” Director of the Administrative Office of US Courts John Bates and (after Duff replaced him) James Duff expressed concern about how a FISC amicus would affect the timeliness of proceedings before the court. Bates worried that any involvement of an amicus would require even more lead time than the current one week requirement in FISC applications. He also worried that the presumption an amicus (and potentially tech experts) would have access to information might set off disputes with the Executive over whether they could really have it. Duff apparently worried that the perception that an amicus would oppose the government would lead the government to delay in handing over materials to the FISC.

Which is why I’m interesting in the briefing order Chief FISC Judge Thomas Hogan, signing for Michael Mosman, issued on Wednesday (see below for a timeline).

Back on September 17, Mosman appointed spook lawyer Preston Burton amicus. As part of that order, he gave the government 4 days to refuse to share information with Burton, but otherwise required Burton receive the application and primary order in this docket.

(Pursuant to 50 U.S.C. § 1803(i)(6)(A)(i), the Court has determined that the government’s application (including exhibits and attachments) and the full, unredacted Primary Order in this docket are relevant to the duties of the amicus. By September 22, 2015, or after receiving confirmation from SEPS that the amicus has received the appropriate clearances and access approvals for such materials, whichever is later, the Clerk of the Court shall make these materials available to the amicus.

Yet even after the almost month long delay in deciding to appoint someone and deciding that someone would be Burton, it still took Mosman two weeks after the date when Burton was supposed to have received the relevant information on this issue before setting deadlines. And in setting his deadlines, Mosman has basically left himself only 2 weeks during which time he will have to to decide the issue and the government will have to prepare to keep or destroy the data in question (in past data destruction efforts it has taken a fairly long time). That could be particularly problematic if Mosman ends up requiring the government to pull the data from EFF’s clients from the data retained under their protection order.

On November 28, the order authorizing the retention of this data expires.

To be fair, Mosman is definitely making a more concerted effort to comply with the appearance if not the intent of USA F-ReDux’s amicus provision than, say, Dennis Saylor (who blew if off entirely). And there may be aspects of this process — and FISC’s presumed effort to start coming up with a panel of amici by November 29 — that will take more time than future instances down the road.

Still, it’s hard to understand the almost 3 week delay in setting a briefing schedule.

Unless the government slow-walked giving even a spook lawyer not explicitly ordered to represent the interests of privacy approval to receive and then a packet of documents to review.

I suspect this represents a stall by the government, not FISC (though again, the month long delay in deciding to appoint an amicus didn’t help things, and FISC’s thus far 4 month delay in picking amici likely doesn’t help either). But whatever the cause of the delay, it may indicate a reluctance on someone’s part to use the amicus as intended.

Timeline

July 27: ODNI declares that “NSA has determined” that “NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months”

By August 20: Government asks for permission to retain data past November 28 (the government must submit major FISA orders at least a week in advance)

August 27: Mosman approves dragnet order, defers decision on data retention

September 17: Mosman appoints Burton and orders the government to cough up its application and the full order

September 21: Last date by which government can complain about sharing information with Burton

September 22: Date by which Burton must receive application and order

October 7: Mosman sets deadlines

October 29: Deadline for Burton’s first brief

November 6: Deadline for Government response

November 10: Deadline for Burton reply, if any

November 28: Expiration of authorization to retain data

Posted in FISA | Tagged Bob Litt, Dennis Saylor, James Duff, John Bates, Michael Mosman, Preston Burton, Thomas Hogan

If Ending DOD’s Train and Assist Program Is about Returning to Covert Status, Will Congress Get Details?

Published October 9, 2015 | By emptywheel

When Mike Lee, Joe Manchin, Chris Murphy, and Tom Udall wrote the Administration calling for an end to the Syria Train and Equip Program last week, they addressed it to CIA Director John Brennan, along with Defense Secretary Ash Carter (its primary addressee, given the clear reference to details about DOD’s T&E mission) and Secretary of State John Kerry.

It appears the Senators got the result they desired. As a number of outlets are reporting, Carter has decided to end DOD’s T&E program, which has done little except arm al Qaeda affiliates in Syria. But it’s not that we’re going to end our involvement in Syria. The stories provide different descriptions of what we intend to continue doing. The NYT, which pretended not to know about the CIA covert program, described a shift of training to Turkey, while discussing armed Sunnis in eastern Syria.

A senior Defense Department official, who was not authorized to speak publicly and who spoke on the condition of anonymity, said that there would no longer be any more recruiting of so-called moderate Syrian rebels to go through training programs in Jordan, Qatar, Saudi Arabia or the United Arab Emirates. Instead, a much smaller training center would be set up in Turkey, where a small group of “enablers” — mostly leaders of opposition groups — would be taught operational maneuvers like how to call in airstrikes.

[snip]

The official said the training was “to be suspended, with the option to restart if conditions dictate, opportunities arise.” The official also said that support to Sunni Arab fighters in eastern Syria was an example of focusing on groups already fighting the Islamic State, also known as ISIS or ISIL, “rather than using training to try to manufacture new brigades.”

The LAT to its credit did acknowledge the parallel CIA program in a piece vaguely describing our “new” approach of working with a wide range of groups on the Turkish border.

Under the new approach, the administration will continue to work with a range of groups to capitalize on the successes that Kurdish, Arab and Turkmen groups have had over the last several months driving the Islamic State forces out of much of the Turkey-Syria border region.‎

[snip]

The decision to end the Pentagon training program does not appear to immediately affect a separate program run by the CIA.

While Ash Carter’s public remarks associated with this discussion make it clear Russia’s actions in the same region remain a concern, the reporting I’ve seen thus far hasn’t tied the decision to end the DOD program to the need to respond to Russia in any way.

Which raises the question: is this just an attempt to shift our existing T&E efforts entirely under a covert structure again? There are many reasons why you’d want to do that, not least because it would make it a lot easier to hide that not only aren’t your “rebels” “moderate,” but they’re al Qaeda affiliates (as David Petraeus and others were floating we should do). Given Qatari and Saudi efforts to flood more weapons into Syria in response to Russia’s involvement, you’d think the US would want to play along too.

But especially since Tom Udall is the guy who — a year ago — raised the crazy notion that Congress should know some details about the (at that point) two year long effort by CIA to support “moderate” forces …

Everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years. And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?

… I wonder whether Congress has ever gotten fully briefed on that program — and whether they would going forward.

After all, none of the men who signed this letter would be privy to how a covert effort to train rebels was going under normal guidelines unless Udall or Murphy were getting details on the Appropriations Committee.

So while it may be — and I think it likely this is — just an effort to make it easier to partner with al Qaeda to defeat Bashar al-Assad and Putin (teaming with al Qaeda to fight Russia! just like old times!) — I also wonder whether this is an effort to avoid telling most of Congress just how problematic (even if effective from an anti-Assad perspective) both the DOD and CIA effort are.

Posted in War | Tagged Ash Carter, Chris Murphy, Joe Manchin, John Brennan, John Kerry, Mike Lee, Tom Udall

On Same Day Cabinet Decided to Punt on Back Doors, Tim Cook Said NSA Would Stop Asking for Them

Published October 8, 2015 | By emptywheel

The WaPo has an update on the Administration’s debate about whether to push for legislation for back doors. It reports that the Obama Administration decided to punt — and not ask for legislation right now while continuing efforts to cajole companies to back door their own products. WaPo even provided the date that decision was made: October 1.

“The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry,” FBI Director James Comey said at a Senate hearing Thursday of the Homeland Security and Governmental Affairs Committee.

The decision, which essentially maintains the status quo, underscores the bind the administration is in — between resolving competing pressures to help law enforcement and protecting consumer privacy.

[snip]

The decision was made at a Cabinet meeting Oct. 1.

“As the president has said, the United States will work to ensure that malicious actors can be held to account – without weakening our commitment to strong encryption,” National Security Council spokesman Mark Stroh said. “As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services.”

I’m particularly interested in the date given that’s when Tim Cook gave an interview (see NPR’s excerpts) where he stated fairly clearly the NSA would not ask for back doors, but FBI might.

Apple CEO Tim Cook said he doesn’t think we will hear the U.S. National Security Agency asking for a back door into our iPhones, at least not any more. In an interview on NPR’s All Things Consideredon Thursday, Mr. Cook implied that even the FBI is coming around on the need for end-user encryption.

The intelligence community has asked for a back door. They want access into the communications that are going through Apple’s devices. No?

Tim Cook: I don’t think you will hear the [National Security Agency] asking for a back door.

Robert Siegel: The FBI?

Tim Cook: There have been different conversations with the FBI, I think, over time. And I’ve read in the newspapers myself. But my own view is everyone’s coming around to some core tenets. And those core tenets are that encryption is a must in today’s world. And I think everyone is coming around also to recognizing that any back door means a back door for bad guys as well as good guys. And so a back door is a nonstarter. It means we’re all not safe.

When I first read this interview, I was struck by Cook’s certainty about the NSA, compared to his uncertainty about FBI. I wondered at the time whether that certainty meant that the rumored FISC request for a back door was ultimately rejected, which would close off the possibility for NSA for the moment(that would affect FBI, too, but only part of FBI’s requests).

Given the coincidence of these two events — Cook’s stated certainty and the cabinet decision not to pursue back doors right now — I’m all the more curious.

Has FISC secretly told the government it can’t force Apple to back door its products?

Posted in FISA | Tagged Jim Comey, Tim Cook

Obama’s Apology Fails to Convince Médecins Sans Frontières DOD’s Investigation Is Adequate

Published October 7, 2015 | By emptywheel

The MSF hospital in Kunduz after a US plane bombed it.

I noted yesterday how General John Campbell and Senator Dan Sullivan responded when Jeanne Shaheen raised the possibility of an independent investigation into the attack on the Médecins Sans Frontières hospital in Kunduz.

Since that time, MSF had a press conference reiterating its call for an independent investigation and released before and after video from the hospital, with lots of pictures of children receiving medical care.

Yesterday, when a journalist asked if President Obama planned to apologize to MSF, Press Secretary Josh Earnest said “we would want the investigations to be completed, to have a full accounting of what transpired, and some discussion about what next steps will be necessary,” suggesting the President would wait for the conclusions of the investigation.

Nevertheless, just a day later, Obama called MSF president Joanne Liu today and did just that, apologized.

While apology has been widely reported, what I have not seen reported is that Obama offered the same spiel that General Campbell offered yesterday, about how independent and swell DOD’s investigation would be.

President Obama spoke today by phone with Doctors Without Borders (MSF) International President Dr. Joanne Liu to apologize and express his condolences for the MSF staff and patients who were killed and injured when a U.S. military airstrike mistakenly struck an MSF field hospital in Kunduz, Afghanistan. During the call, President Obama expressed regret over the tragic incident and offered his thoughts and prayers on behalf of the American people to the victims, their families, and loved ones. Acknowledging the great respect he has for the important and lifesaving work that MSF does for vulnerable communities in Afghanistan and around the world, the President assured Dr. Liu of his expectation that the Department of Defense investigation currently underway would provide a transparent, thorough, and objective accounting of the facts and circumstances of the incident and pledged full cooperation with the joint investigations being conducted with NATO and the Afghan Government.

Shortly thereafter, Obama called Afghan President Ashraf Ghani, offered an apology to him too, then reiterated their ongoing cooperation.

I’m glad Obama apologized to MSF for DOD killing 22 people at their hospital, most of them MSF workers.

But given the effort to convince everyone that this investigation — which contrary to promises has already proven to be less transparent than leaks to the NYT — will be adequate, I can’t help but conclude that a similar effort at persuasion was as much the purpose of Obama’s call as any expression of remorse.

The US sure seems to want to avoid an independent investigation into this bombing. Why?

Update: And MSF isn’t buying it. Liu came reiterated her call for an independent investigation after the call.

We received President Obama’s apology today for the attack against our trauma hospital in Afghanistan. However, we reiterate our ask that the U.S. government consent to an independent investigation led by the International Humanitarian Fact-Finding Commission to establish what happened in Kunduz, how it happened, and why it happened.

Posted in War | Tagged Dan Sullivan, General John Campbell, Kunduz bombing, Médecins Sans Frontières

The Two Strands of (Non) Accountability on Kunduz

Published October 7, 2015 | By emptywheel

Contrary to much sloppy reporting, General Campbell did not change his story about the Kunduz strike in his testimony Tuesday. As I noted Monday, towards the end of his press conference that day, Campbell admitted, “Afghans asked for air support from a Special Forces team that we have on the ground to train, advise, and assist, in Kunduz,” which is precisely what some people claim was “new” yesterday.

The question, then, should turn to what the relationship between the US Special Forces who called in the strike and the Afghans who asked for it was — and what the thinking of both was. On that point, Campbell dodged, claiming that (and any details about Rules of Engagement) would come out in the investigation. Campbell was very insistent that SOF was only on the ground for a train, advise, and assist mission. But that clearly addressed their general status, not what they were doing at the moment the strikes were called in. And DOD-sourced reporting from last week made it clear US forces were doing more than training, advising, and assisting just days before the attack on Médecins Sans Frontières.

U.S. Special Forces traded fire with Taliban insurgents in the northern city of Kunduz, the U.S. military said Friday, a rare direct ground engagement for American troops stationed in the country.

The clash on Thursday marked the first time U.S. ground forces are known to have directly fought the Taliban since the militants stormed Kunduz on Monday. It came as the U.S. stepped up airstrikes this week against Taliban targets in Kunduz province and elsewhere in the country’s north.

U.S. Special Forces advisers “encountered an insurgent threat in Kunduz city” and “returned fire in self-defense to eliminate the threat,” said U.S. Army Col. Brian Tribus, spokesman for American and allied troops in Afghanistan.

About 100 U.S. and coalition special-operations forces advisers were deployed to Kunduz earlier this week to provide tactical guidance to their Afghan counterparts as they fought to reclaim the provincial capital from the Taliban.

So on Friday, DOD was willing to admit our TAA mission actually involved direct fire. The first reports from the field said that in response to direct fire, SOF called in air strikes. But as MSF called for investigations into a war crime, DOD switched that part of the story to a strict TAA role, without telling us where the forces who called in the strike were, or what they were doing.

Without answering that question, two stories have made it clear that whoever called in the strikes didn’t do what they should have with regards to vetting the strikes. There’s this WaPo story that notes AC-130 strikes, like that used in this attack, rely on visual targeting assist from the ground.

Unlike other military fixed-wing aircraft, an AC-130 is requested differently. While a jet requires a map coordinate to engage its target, the AC-130 relies on direction (a compass heading) and a distance to the enemy target from the friendly forces engaged on the ground. In short, it relies on visual targeting.

This difference might explain why the hospital was targeted even though Doctors Without Borders said it had given U.S. and Afghan forces its map coordinates before.

“It’s a visual acuity aircraft,” said a U.S. close-air support pilot who spoke on the condition of anonymity because of his active-duty status. “An AC-130 finds the friendly force, then fires over their left or right shoulder.”

The pilot went on to add that an AC-130 does not enter enemy airspace and look for targets. It specifically has to be guided onto the target by a force on the ground and will fire only after identifying friendly and enemy forces, he said.

It also notes that normally (Thursday’s events notwithstanding) when SOF comes under fire they (among other things) call in air strikes.

These “train, advise and assist” missions are a staple of U.S. Special Forces capabilities and have been conducted extensively in recent years. In combat situations, rather than return fire, U.S. troops on these missions are more likely to help direct communication, casualty evacuation and direct air support from an AC-130, for instance, if it is available.

As a result, there has been little direct contact between U.S. troops and the Taliban since most U.S. forces were relegated to the sidelines when official combat operations ended last year.

Last night, another passive voice-ridden NYT story reports that General Campbell, after promising full transparency, went around DC saying something rather different than what he was saying publicly: that what the WaPo says should have happened probably didn’t.

The American commander in Afghanistan now believes that United States troops who called in an airstrike that decimated a Doctors Without Borders hospital probably did not follow rules that allow for the use of air power only in dire situations, according to American officials familiar with the general’s thinking.

Under those rules, airstrikes can be authorized to kill terrorist suspects, to protect American troops, and in response to requests for help from the Afghan Army in battles that could significantly alter the military landscape in Afghanistan — such as the recent Taliban takeover of Kunduz — but not necessarily smaller firefights. The idea behind the rules of engagement was to give American troops leeway but not see them dragged back into daily, open-ended combat.

In private discussions with officials in Washington, Gen. John F. Campbell, the commander, has expressed his belief that the decision by Special Operations forces operating “in the vicinity” of the Afghan troops in Kunduz likely did not meet any of those criteria, according to the officials, who spoke on condition of anonymity because they were not authorized to discuss the incident.

The Special Operations forces also apparently did not have “eyes on” — that is, were not able to positively identify — the area to be attacked to confirm it was a legitimate target, before calling in the strike, the officials said.

If the NYT reporters who wrote this are aware that the MSF strike was the 12th in Kunduz province last week (to say nothing of the direct engagement by US forces), they failed to hint at that fact — perhaps because it would undermine much of this story.

In any case, even if Campbell’s non-transparent judgements are honest — that what caused the attack from the US stand point was a violation of procedures and/or rules of engagement — that shouldn’t end the story (but it appears to be doing so).

The one part of the story that has changed since Saturday was that the Afghans, and not the Americans, determined a strike was necessary (though that strike had to go through normal channels). Which ought to lead some focus back to what the Afghans were initially saying, which is that Taliban fighters were at the MSF compound (something MSF has vigorously refuted).

“When insurgents try to use civilians and public places to hide, it makes it very, very difficult, and we understand how this can happen,” Koofi said. “You have two choices: either continue operations to clean up, and that might involve attacks in public places, or you just let the Taliban control. In this case, the public understands we went with the first choice, along with our international allies.”

In Kunduz, the acting governor, Hamdullah Danishi, also suggested that the airstrike was warranted.

He said Taliban fighters had been using the Doctors Without Borders compound to plot and carry out attacks across the city, including firing rocket-propelled grenades from the property.

“The hospital campus was 100 percent used by the Taliban,” Danishi said. “The hospital has a vast garden, and the Taliban were there. We tolerated their firing for some time” before responding.

And some focus on the raid Afghan Special Forces launched on the hospital in July is also in order.

Afghan special forces raided a hospital run by medical aid group Médecins Sans Frontières in northern Afghanistan, in search of a suspected Al Qaeda operative being treated there, a commander of the elite force said on Thursday.

Raids on hospitals are rare because they are protected by international law and those run by foreign aid agencies in Afghanistan provide crucial support to war victims, who may travel for days to get assistance.

It was unclear if Wednesday’s raid by a contingent of special forces from the capital, Kabul, had succeeded in capturing its target, Kunduz special forces commander Abdullah told Reuters.

“I was told he was an al Qaeda member being treated at the MSF hospital,” Abdullah said.

Even if Afghan forces genuinely believed the Taliban was operating from within the hospital, there would be a lot of hoops they’d have to jump through before treating it as a legitimate target. If Afghan forces had SOF strike the hospital because they didn’t like that it accepted all people, then it’d be a clear war crime.

The point is, assuming US forces weren’t directly engaged in the fighting and didn’t themselves call in the strike, there are two levels of accountability here: on the Afghans who asked for the strike, and on SOF, which vetted it and carried it out.

If the Afghans deliberately targeted a hospital on unsound grounds, then the strike is in no way an accident — and may have been enabled when Americans failed to follow procedure.

There seems to be a strong desire to ignore the Afghan side of the equation (in part because the Afghans and the US military both want Obama to approve continued troops in Afghanistan). But no one should be declaring this an “accident” or “mistake” without fully accounting for the Afghan decision to call in the strikes. And that hasn’t happened yet.

Posted in War | Tagged General John Campbell, Kunduz bombing, Médecins Sans Frontières