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Between Hacks and Hostilities: Are the US Government and Private Sector Ready for Persistent Engagement?

By the Hon. James E. Baker

(Re-published from ABA Journal | May 9, 2019) Cybersecurity is necessarily an issue that crosses international boundaries, raising complex questions of sovereignty, jurisdiction, law and policy. In response, lawyers have struggled to find the right legal metaphor or framework to apply to cyberspace. Each of these issues concerns the American Bar Association Rule of Law Initiative because the way we as a society choose to address these challenges implicates what it means to live and operate under the rule of law.

“What would be even more remarkable would be if the U.S. government did in fact use all the instruments of national power to enforce cyber norms, as it once used all the instruments of national power to contain the Soviet Union.”

The United States government produces almost as many reports and strategies as the ABA. One recent document warrants the attention of the bar, and not just security practitioners. The Department of Defense Cyber Strategy released in September—or more precisely, the unclassified part of the Strategy available to the public—breaks new and important ground, potentially marking a significant shift in the federal government’s strategic posture. How important the Strategy is will depend in large part on whether it is tied to an effective policy and decision-making process.

If I were briefing a senior policymaker on the substance and import of this new Strategy, I would highlight the following key statement:

“We are engaged in a long-term strategic competition with China and Russia. … The United States seeks to use all instruments of national power to deter adversaries from conducting malicious cyberspace activity that would threaten U.S. national interests, our allies, or our partners. … [The United States will] persistently contest malicious cyber activity in day-to-day competition.”

What is remarkable here is not the content of the statement, but the willingness to say it publicly. What would be even more remarkable would be if the U.S. government did in fact use all the instruments of national power to enforce cyber norms, as it once used all the instruments of national power to contain the Soviet Union. Gen. Paul Nakasone, in his capacity as the commander of U.S. Cyber Command, has advocated this approach encapsulated in the concept of “persistent engagement” …

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US Once Led International Justice But, Today, We’re on Wrong Side of the Law

By David M. Crane, Ben Ferencz, & Hans Corell

(Re-published from The Hill | April 14, 2019) With this month’s 25th anniversary of the Rwandan genocide it is important that mankind continue to maintain a system of international accountability to help prevent future atrocities. The Rwandan atrocity was one of the catalysts that created the modern international criminal law system. Coupled with the horrors in the Balkans, the United Nations, under the leadership of the United States, created the first international war crimes tribunals since Nuremberg in 1945.

The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

The International Military Tribunal at Nuremberg was mankind’s first attempt to hold those who committed atrocities accountable under the rule of law. That seminal effort to try the leaders of Nazi Germany was led by an American, Robert H. Jackson, who was the chief U.S. prosecutor at the tribunal. The jurisprudence coming from the International Military Tribunal at Nuremberg in 1945-49 was the cornerstone by which the modern system of accountability was established in the mid 1990s.

All this was historically significant because the international community for centuries looked the other way when heads of state, dictators and monarchs turned against their own citizens and others for their sordid political, religious or ethnic advantage. Military historian John Keegan has said the history of war is the history of mankind, and the history of mankind is the history of war.

At the end of the 20th century, and the end of the decades long Cold War, the events in the Balkans, Rwanda and West Africa, particularly Sierra Leone, called for a different — even bold — approach to help seek justice for the millions of victims. The ad hoc and hybrid tribunals created for Yugoslavia, Rwanda and Sierra Leone were successful examples of what could be done when righteous fury is channelled into using the rule of law to hold accountable those who commit international crimes. These courts and tribunals were created with the focused effort and assistance of the United States.

As these efforts worked to seek justice for the crimes committed in Europe, as well as East and West Africa, the international community was working together at the Rome Conference in 1998 in making those experiments in international justice permanent. The United States was a key player in developing what became the International Criminal Court, created to deal with the most egregious international crimes, complemented by the efforts of the various state parties.

As world power shifted, with a diminished United States, in the 21st century, the very country that “built the house” called modern international criminal law stepped away from that house and handed back the keys, perhaps permanently. Since 2002, the United States has had a cynical and skeptical relationship with the International Criminal Court and, ironically, never became a state party …

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David M. Crane is a Syracuse University College of Law Distinguished Scholar in Residence.

Ben Ferencz was a leading force in the establishment of the International Criminal Court and is the last living prosecutor from the Nuremberg Trials.

Hans Corell, a former judge, was the legal counsel of the United Nations from 1994-2004. He was involved in the establishment of the tribunals and courts mentioned in the article.

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Cora True-Frost Pens OpEd on the Rwandan Genocide Anniversary

What Have We Learned From the Rwandan Genocide?

By Cora True-Frost

(Re-published from U.S. News & World Report | April 4, 2019) This first week of April marks the 25th anniversary of the Rwandan genocide, a three-month long massacre during which Hutu militants killed an estimated 800,000 Tutsis and moderate Hutus after the Hutu president was killed. The international community responded to the atrocities late, and then sought accountability after the genocide by establishing the International Criminal Tribunal of Rwanda (ICTR) to try those most responsible.

The law, and particularly international criminal trials, should teach us about past mistakes.

It is important that we remember the horror of the genocide and reflect on the mistakes made, in order to work toward a more peaceful future. One of the main takeaways from the ICTR’s atrocity trials is that words matter.

The world of the Rwandan genocide may to most people seem far removed from the United States. It does not to me. I am a law professor who grew up an Army brat, often abroad. I graduated high school in Nuremberg in the former West Germany – the site of the famous Nuremberg Tribunal held in the wake of the Holocaust. I know that words matter. Always mindful of the horrors of the Holocaust and the ways that democratic majorities can scapegoat and dehumanize minorities, my professional focus has been in constitutional and international law.

The law, and particularly international criminal trials, should teach us about past mistakes. The legacy of Rwanda’s genocide has some compelling messages for American people about the power of our words, and the danger of hate speech. Few of us are immune to the polarizing media coverage. Our leaders and media pundits use generalizations about cultures and fear-mongering to drive home support for policy in a very profound and impactful way. Creating hate as opposed to understanding will lead to repeat mistakes. This week in particular, we should heed the legacy of Rwanda’s genocide, reminding our nation of what can happen when we don’t identify and speak about the impact that fear has on our united psyche.

We Americans know words matter. We famously have strong free-speech protections. We are outliers in the international community for refusing to penalize hate speech. However, even those of us with the strongest commitments to free speech understand that speech can be dangerous and even constitute incitement …

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Syracuse University Professor Cora True-Frost is an INSCT Affiliated Faculty Member.

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After 70 Years, NATO Is Still an Important Alliance

By Robert B. Murrett

(Re-pubished from U.S. News & World Report | April 4, 2019) AS NATO MARKS ITS 70th anniversary this week, we have a good opportunity to take stock of past accomplishments, and at the same time, to look toward the future prospects for this remarkable alliance.

Constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

Strong Civilian Leadership

First, it is worth noting on this 70th anniversary that the progress made by NATO is a product of its standing as both a political and military alliance.

On the civilian side, the diplomatic work of the NATO secretary general and the senior representatives from the member nations that comprise the North Atlantic Council is every bit as important as the military dimensions of the alliance.

The civilian leadership of NATO and their policy accomplishments have been a lynchpin of global diplomatic progress, before and after resolution of the Cold War. As examples, the solid, steady diplomatic efforts of the current secretary general, Jens Stoltenberg, the remarkable record of his predecessor, Anders Fogh Rasmussen, and the recent passing of the sixth secretary general, Lord Peter Carrington, are reminders of the exceptional, long-term civilian leadership and political impact of the Alliance.

Political and Military Impact

Second, constructive political and military impact beyond the borders of member states has been a hallmark of NATO since its inception in 1949, and a key factor in its success.

The alliance has continued to reach out and provide a basis for interaction with nations around the world in ways that have consistently advanced dialogue and reduced tensions, through exercises, diplomacy and constructive talks, particularly since the end of the Cold War. One only has to look at the NATO structure of Partnership for Peace, Istanbul Cooperation, and Mediterranean Dialogue countries, as well as other key global partners such as Australia and Japan, to fully understand the NATO’s irreplaceable diplomatic and military impact in advancing security.

For those of us with military careers spanning much of NATO’s history, the alliance has provided the basis for coalition tactics and procedures around the globe, and has been part and parcel of our contributions to peace and security for decades …

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Corri Zoli Presents Terrorism, Security Papers at ISA 2019

Corri Zoli, Director of Research at the Institute for National Security and Counterterrorism, presented two papers and was a panel discussant at the 2019 International Studies Association Annual Convention in Toronto, Canada, on March 27 and 28, 2019.

At the Wednesday session of “Revisioning International Studies: Innovation and Progress,” Zoli presented on the “Challenges for Contemporary Special Operations Forces” panel. Her paper—”Terrorist Critical Infrastructures, Organizational Capacity and Security Risk”—joined others on topics such as computer-mediated threat assessment, weak states, ethic conflict, and terrorists’ use of emerging technologies.

On Thursday, Zoli joined the “Shaping the National Security State” panel and read “Leviathan Revisited: Assessing National Security Institutions for Abuse of Power and Overreach.” Other papers on this panel addressed civil‐military relations, the defense industry, and Cold War Military Balance.

Later in the same day, Zoli was the Discussant on the panel “New Directions in Qualitative International Studies” chaired by Eric Stollenwerk of Freie Universität Berlin. This wide-ranging discussion looked at modern qualitative international studies through the lenses of multi-method research, philosophy, autoethnography, and public diplomacy.

 

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Corri Zoli Interviewed by CNY Central About the New Zealand Mosque Shootings

(CNY Central | March 15, 2019) “We bring in a new perspective on an awful topic a woman we turn to often in times like this. Corri Zoli is an assistant professor at the Maxwell school at Syracuse University … why the recordings? why record what you’ve done?”

“I think this is a kind of classic terrorist tactic that we’ve been seeing since you know 2010 at the least where ISIS and al-Qaeda. I remember in the Toulouse attacks in France, for instance, where they recorded the attacks against a Jewish school with a GoPro video” …

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A Brief Look at European Security & Defense: Franco-German Steps to Renew the EU?

By Kamil Szubart

On March 4, 2019, French president Emmanuel Macron published an opinion piece titled “For European Renewal” in the biggest newspapers across Europe. The article is, according to the French president, a roadmap for reviving an idea of the European integration that is threatened by the growth of nationalism and populist movements across Europe, the forthcoming “Brexit,” and the crisis of the European Union as a political project most of all.

A short passage of Macron’s article focuses on the future of European security and defense ahead of the UK’s exit from the EU. Brexit has been a hot topic, which European leaders have touched upon for two and a half years. In his piece, Macron explains that the EU, in the past two years, has reached substantial progress about European security and defense matters. He also encourages Europe to continue these successful efforts by setting “a clear course”, namely “a treaty on defense and security” that “should define our fundamental obligations in association with NATO and our European allies: increased defense spending, a truly operational defense clause, and the European Security Council with the United Kingdom on board to prepare our collective decisions”.

The Aachen Treaty as the First Footstep

Macron’s remarks are not something new. These ideas saw progress a couple of weeks ago (Jan. 22, 2019) when the French president and his German counterpart Chancellor Angela Merkel signed the Franco-German Treaty on Cooperation and Integration in a western German city of Aachen, commonly known as the Aachen Treaty. The declaration alludes to the Élysée Treaty signed by both countries 56 years ago (Jan. 22, 1963). The treaty’s preamble emphasizes the need to continue intensive bilateral cooperation between both countries as well as on forum of international organizations such as the EU and the United Nations. Much attention in the document has been devoted to the issue of security and defense, including Chapter II on “Peace, Security, and Development.” The Aachen Treaty confirms an absolute need for close cooperation between Berlin and Paris in the area of security and defense policies, internal affairs (e.g., combating terrorism and organized crime), and further integration of arms industries of both countries.

Germany and France declared mutual military assistance in case of aggression, resulting from Article 5 of the NATO Treaty and article 42.7 of the EU Treaty. Berlin and Paris also committed themselves to work toward the cohesion and the credibility of European defense and the development of defense programs, as well as the reconstruction of cooperation within the framework of the German-French Defense and Security Council and—if possible—the presentation of a joint position at the EU and the UN.

Ambitions Versus Harsh Reality

Both Macron’s article and the Aachen Treaty embody a couple of somewhat strategic or operational limitations. Let us look closer at some of them.

First of all, the Aachen Treaty likely will not lead to the creation of a new paradigm in the field of European security and defense based on cooperation between France and Germany. Thus, there is no serious threat to NATO and its strategic planning process (NDPP) nor to initiatives developed under the EU’s Common Security and Defense Policy (CSDP).

Secondly, the document is only a political declaration that refers to those already being developed jointly through Berlin and Paris programs currently on various levels. It should be noted that both countries differ in the assessment of many of these projects. One of the best examples is Germany’s and France’s approaches to crisis management operations in the EU’s southern neighborhood, specifically North Africa. France permits itself to conduct combat operations against extremist groups in the Sahel region, while the Germans focus on advisory and training activities towards local security forces and providing humanitarian aid. For years, Germany and France have participated in two missions under the auspices of the UN (MINUSMA) and the EU’s training mission (EUTM Mali) in the Sahel region. The French Armed Forces, next to MINUSMA, also carry out a counterterrorism operation called Opération Barkhane.

Thirdly, The Aachen Treaty references the need to establish the “common strategic culture” of both countries despite Germany and France representing different strategic cultures regarding the use of military power and overseas deployments. Therefore, this demand should be interpreted only in terms of a political declaration.

For instance, the process of deploying the Armed Forces in France is much quicker than in Germany. This depends on the positions of the armed forces and political command and control over them in the constitutional systems of France and Germany. But differences between Paris and Berlin also occur at the operational level. France can deploy abroad in approximately 20,000 troops; Germany up to 5,000. Moreover, the German Bundeswehr faces a significant deficit in strategic airlift capabilities, depending on the assistance provided by the US or commercial transportation enterprises. On the other hand, France has at its disposal a well-developed chain of military bases worldwide, in South America, the Middle East, and Africa. France also remains a permanent member of the UN Security Council and a nuclear power.

Fourthly, the Aachen Treaty calls for establishing common standards and rules for arms exports. However, it will be likely problematic to develop and set up a common position on arms goods. Despite the cooperation on the EU arms industry market, German and French arms companies compete for each other on non-European markets, above all in the Middle East and in southeastern Asia.

Fifthly, Despite the appeal in the Aachen Treaty to the need to continue efforts to strengthen the strategic autonomy of the EU, its operationalization will not be possible in the short term. In the first place, there is a difference in its definition by both partners. For France, the EU strategic autonomy in the field of security and defense are mainly actions for strategic emancipation from the US, and its military presence in Europe, which is negatively received by some EU countries, especially NATO’s eastern flank. For the Germans, however, EU strategic autonomy is first and foremost an option for the EU in respect to its southern neighborhood. According to Germany, the EU’s southern neighborhood remains outside the primary interest of NATO and the US, while France treats that region as its sphere of influence.

Moreover, Berlin remains strongly skeptical about plans to give the EU the central role as a security provider for the EU countries in the face of threats posed by Russia. Despite disputes between Germany and the Trump Administration on burden-sharing, the US and NATO remain vital pillars of Germany’s security policy and guarantors of peace in the Euro-Atlantic area. In Germany’s view, security and defense policy activities taken by the EU will strengthen the European pillar of NATO.

Sixthly, Berlin and Paris realize what London’s security and defense capabilities mean for their security, especially counterterrorism. France has payed particular attention to its European Intervention Initiative (EII/EI2) launched in June 2018 and composed currently of 10 European countries (Belgium, Denmark, Estonia, Finland, France, Germany, the Netherlands, Portugal, Spain, and the UK). Paris needs both Berlin’s and London’s buy-in for the development of EII/EI2. In the case of Germany, France expects political support; in the case of the British, their military capabilities.

The Aachen Treaty’s declarations on strengthening cooperation between Germany and France concerning counterterrorism and combating organized crime should be considered appropriate. Although there are EU mechanisms in this realm—including the Schengen Information System or Europol—there is still less effectiveness than there should be. For instance, EU member countries still selectively provide intelligence data for their everyday use. Cooperation in this field should not, however, have an exclusive character, limiting itself to German-French cooperation. It should be extended to other EU member countries.

INSCT Research and Practice Associate Kamil Szubart was a 2017 visiting fellow at INSCT, via the Kosciuszko Foundation. He works as an analyst for the Institute for Western Affairs in Poznan, Poland, where he is responsible for German foreign and security policy, transatlantic relations, Islamic threats in German-native-speaking countries and topics related to NATO, CSDP, OSCE, and the UN. Currently, he is working on a doctoral dissertation examining US-German relations in the field of international security since 9/11.

 

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Brown Shirts, White Sheets, Red Hats: Beware Politicized Colors

By David M. Crane 

(Re-published from The Hill | March 3, 2019) Symbolism is critical to the political process, perhaps essential. At the ballot box, voters take these symbols in with them to identify a candidate who aligns that symbol with their political beliefs.

Politicians who have motives other than good governance can hide behind the shield of these freedoms.

Catchphrases, articles of clothing, and color are all part of our political paradigm. It allows supporters of a candidate to identify with others of like mind. Collective identity builds a base upon which a candidate wins an election and to govern.

There is nothing sinister about any of this in a larger sense. However, it can be sinister, divisive, and calculating, with an ultimate goal of control and governance by fear and hate.

It is this sinister calculus that citizens should be wary of, particularly citizens of liberal democracies where freedom of speech and expression are hallmarks to that democracy.

Politicians who have motives other than good governance can hide behind the shield of these freedoms, emerging to use their symbols to assist them in taking political control for more sinister reasons.

Modern history is replete with symbols, particularly clothing and colors, where politicians legitimately gain power, pivot, and seize ultimate control. Adolf Hitler and his henchmen were masters of using symbols and colors to create a national socialist agenda. The “Brownshirts,” party enthusiasts who believed in a greater Aryan nation, come quickly to mind.

In America, symbolism and colors also play an important part in our political and social discourse. Red and blue seem to be popular colors, also white. Suffragists wore a yellow sash, and the color white has symbolized the emancipation of women unifying for a proper cause. However, the white robe of the Ku Klux Klan captures how symbols and color can be used to promote division, hate, and fear for the sordid purpose of promoting a white America.

Over the past two years, another colored article of clothing has entered the political arena: a red hat. The “MAGA hat,” for President Trump’s “Make America Great Again” slogan, has come to identify not just the president’s political agenda but those who have bought into his philosophy …

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Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

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Space Force is a Bureaucratic Mess in Search of a Problem

By Sean O’Keefe

(Re-published from The Hill | Feb. 22, 2019) Earlier this week, Space Policy Directive – 4 was announced to start the process to create a new uniformed service of the armed forces to be designated as the U.S. Space Force. This will surely focus a lot of debate on space but doesn’t address the problem it’s designed to correct.

Beneath the Air Force secretary will be a new military four star general as chief of staff for Space Force, who will be a member of the Joint Chiefs of Staff.

After considerable debate in Washington, the directive emerged as an organizational compromise to create Space Force as a subcomponent of the Department of the Air Force akin to the Marine Corps within the Department of the Navy. The effect of this bureaucratic victory avoids establishing a new civilian leadership chain to the secretary of Defense. The secretary of the Air Force is a direct report to DOD supported by the offices of an under secretary, assistant secretaries and general counsel, like the Army and Navy Departments. Enactment of the Space Force directive would also add another civilian under secretary for Space.

But there’s more — potentially much more. Beneath the Air Force secretary will be a new military four star general as chief of staff for Space Force, who will be a member of the Joint Chiefs of Staff, and all the associated military support structure that will mirror the Department of Defense structure today for each military service — the Army, Navy, Air Force, Marine Corps, the National Guard Bureau and now Space Force.

The modest upside is that the civilian chain of the command doesn’t get too much more complicated than it already is other than accommodating a new under secretary. But 95 percent of the indirect cost is wrapped up in all the functional process units to be built around the typical overhead structures to administer budgets, programs, personnel, contracts, logistics and the very complex acquisition support for this new military service.

The Marine Corps is comparatively lean and much smaller than the Army, Navy or Air Force. But each of these functional organizations dedicated to Marine Corps matters are within the Department of the Navy which has a parallel collection of units that support Navy matters. The secretary of the Navy presides over this dual set of stove pipe organizations, the same way the secretary of the Air Force will have two different military services reporting to “organize, train and equip” the armed services. This is the standard responsibility of all of the military departments today …

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INSCT Faculty Member and Maxwell School Professor Sean O’Keefe served as secretary of the Navy and NASA administrator in the George H.W. Bush and George W. Bush administrations.

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The Kaleidoscopic Conflict That Is Syria

By David M. Crane

(Re-published from The Hill | Feb. 24, 2019) “It is not clear whether our culture can ever develop sufficient knowledge, rigor, imagination and humility to grasp the phenomenon of [ISIS]. But for now, we should admit that we are not only horrified but baffled.” — Anonymous, the New York Review of Books, Aug. 13, 2015.

These dirty little wars have become “kaleidoscopic” in nature, and the winding-down conflict in Syria is a prime example of how bizarre conflict has become.

In the information age, the concept of warfare and conflict are changing and shifting. Industrial-age warfare lingers, but fades as a possibility. Twentieth-century wars most likely are not the future of conflict. The new high ground is cyberspace. The battles of the 21st century largely will be fought on the World Wide Web.

Yet human conflict will continue. It is in our nature. Military historian John Keegan stated simply that the history of war is the history of mankind, and the history of mankind is war. We never will “buy the world a home and furnish it with love,” as the creators of the 1971 Coca-Cola commercial imagined. As comedian and social critic George Carlin said: “Life is tough, then you die.”

Conflict has evolved from the agricultural age, when armies stood in a field, toe to toe, beating and striking one another until one army yielded and left the field. In the industrial age, conflict became more deadly, the weapons systems more anonymous and destructive. Civilian populations were at risk and destroyed wholesale. In the information age, conflict became more precise, though civilians still pay the ultimate price.

Throughout the 20th century, mankind tried to control the horror of war through law and, towards the end of that bloody century, to hold accountable heads of state who caused conflict, particularly when they targeted their own citizens. The age of accountability, which started at Nuremberg and rose to prominence over the past 25 years, also has begun to lose its effectiveness in securing international peace and security. The dirty little wars in this age will be fought in dark corners of the world, where the parties will not follow the laws of armed conflict.

Nearly two decades into this century, conflict has almost reverted to the agricultural age — bloody, toe to toe, lawless.

Modern armies are not trained for this type of warfare. These dirty little wars have become “kaleidoscopic” in nature, and the winding-down conflict in Syria is a prime example of how bizarre conflict has become. At one point in Syria, the United States was fighting one side, working with that same side to defeat a common enemy (ISIS), and providing military support to many of the various groups found in that conflict. We were shooting in every direction, being shot at by the very weapons we were supplying to the parties to the conflict. How crazy is that!

To add to the confusion, the military situation completely changed on a daily — and surely a weekly — basis. Where one thing changed, everything changed; hence, the description that warfare had become kaleidoscopic.

None of the doctrinal norms in planning for future conflicts applies. We cannot anticipate what the next dirty little war will look like, which causes strain to the deliberate planning process within the Department of Defense. Syria stressed our systems. Very little that our various services were capable of bringing to the battlefield applied or were effective. On any given day at the height of the Syrian conflict, no one could predict what would happen next. Commanders and their planners were not just shooting in every direction, we also did not know what our objectives were or what the end-state would be. It remains so even today …

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Now retired from teaching at Syracuse University College of Law, David M. Crane is an INSCT Research & Practice Associate.

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