The Re-Imagined National Counterterrorism Center

By Eric Robinson on August 16, 2019 Posted in Defense Issues, Uncategorized

President Trump’s nomination of Vice Admiral (Ret.) Joe Maguire to become the country’s next Director of National Intelligence both elevated the profile of the decorated Navy SEAL and the organization he currently leads, the National Counterterrorism Center (NCTC). The nomination comes in the wake of the El Paso Attack that claimed 22 lives and the acknowledgement that NCTC had started analyzing domestic terrorism, a departure from the first fifteen years of the organization’s history.

Established in 2004, and in response to a recommendation from the 9-11 Commission, NCTC is designed to assemble analytic and policy expertise in one organization and build a comprehensive, national-level approach to counterterrorism. The model has not always worked, and there are intentional limits to NCTC’s mission, but NCTC’s intelligence analysis is likely as strong as any other segment of the Intelligence Community (IC), NCTC is an integral part of the President’s Daily Brief process, and NCTC’s Directors have exerted real influence over national-level decision making.

Despite these successes, analyzing domestic terrorism is not a perfect fit for NCTC. First, the IC orients its intelligence collection activities towards international threats. This means that the reporting NCTC professionals use to shape their understanding of the world is going to be less robust for domestic terrorism analysis than for Lebanese Hizballah or al-Qa‘ida, for example. Next, the IC is insular by nature, by Executive Order, and by statute. Sharing information within the IC is dramatically better now than in 2001, but the requirements of security clearances and secure facilities and computing keeps IC reporting and IC analysis primarily within the federal government, and information shared with state, local, and tribal authorities is often so sanitized that it is not operationally useful. NCTC has structures in place, like Domestic Representatives, to help address this challenge, but classification remains a serious structural issue that will prevent local law enforcement from taking day-to-day advantage of NCTC’s new domestic terrorism analysis.

These obstacles acknowledged, no new domestic terrorism laws, updated classification guidelines, or other wide-ranging reforms are necessary to provide NCTC’s domestic terrorism analysis to a willing and interested audience, however. NCTC, like other elements of the IC, can use the so called “Five Eyes” agreement among the United States, Canada, the United Kingdom, Australia, and New Zealand to share certain forms of intelligence reporting with key allies with much greater ease than sharing the same reporting with state or municipal police. Additionally, NCTC has a pre-existing network of international partners it can rely upon, like the Joint Terrorism Analysis Centre in the UK or the Integrated Terrorism Assessment Centre in Canada, to employ NCTC’s new domestic terrorism-oriented analytic products.

Dylann Roof, while clearly a domestic terrorist, was not purely American in his ideological origins. He mixed nostalgia for the Confederacy with images of the Rhodesian and apartheid-era South African flags, indicating an interest in committing violence on behalf of white nationalism internationally, not just in Charleston, SC. More recently, the attacker in Christchurch, NZ specifically cited Roof in his written manifesto prior to mass murdering civilians at worship. Another white nationalist, the Norwegian Anders Breivik, appeared both in the Christchurch attacker’s writings as well as the research of Christopher Hasson, a Coast Guard Officer accused of massing weapons in advance of a possible attack against prominent Americans. A full list of the international ties among violent white nationalists is beyond the scope of this assessment, but it is clear that domestic terrorism, as considered in the United States, is part of an world-wide ideological network in the same way as international terrorism is understood to be. Therein lies an opportunity for the National Counterterrorism Center.

Through using existing means of intelligence collection, the written product of experts already assigned to the organization, and employing decades-old information sharing protocols with allies facing similar threats, NCTC is well-positioned to lead the government response to a major domestic threat with significant international ties. No act of Congress is necessary to give NCTC this authority, either, all that is required is the will of its current – and outgoing – Director, which has already been demonstrated, as well as the next Director’s commitment to re-imagining NCTC’s role and pushing the organization to take on an additional pressing threat to the country.

Bipartisan, Bicameral IDEA Act Seeks to Improve Diversity of Patent Applicants

By Holly Fechner, Jason G. Everett and Matthew Shapanka on August 13, 2019 Posted in Congressional Action, Intellectual Property Protection

A bipartisan, bicameral group of members of Congress introduced the Inventor Diversity for Economic Advancement (IDEA) Act to ensure that policy makers and researchers have the tools they need to study diversity among inventors holding U.S. patents. Representative Nydia Velázquez (D-NY), Representative Steve Stivers (R-OH), Senator Thom Tillis (R-NC) and Senator Mazie Hirono (D-HI) introduced the IDEA Act on the heels of a U.S. Patent and Trademark Office (USPTO) report released earlier this year finding that as of 2016 only 20 percent of U.S. patents list a woman as an inventor, and that only 12 percent of inventors seeking a patent were women. A 2016 study by the Institute for Women’s policy research reached similar conclusions, finding that only 18 percent of U.S. patents list a woman inventor.

In addition to the USPTO and IWPR studies on gender disparities in patenting, other scholars have studied race and income gaps in patent rates. For example, Professor Lisa Cook at Michigan State University has found that African Americans and Hispanic Americans hold roughly half the number of patents that white Americans do, and that African Americans and Hispanic Americans also apply for patents at significantly lower levels than white men. Separately, Alex Bell and his colleagues at Harvard, found that a person born into a family in the top one percent of income is ten times more likely to receive a patent than someone born into a family in the lower fifty percent of income. Even at the very top income levels, children born into the top one percent are 22 percent more likely to patent an invention in their lifetime than those born into the top five percent.

Because the USPTO does not collect data on the gender, race, income, and other characteristics of inventors, all research today relies on software algorithms or other survey data to estimate the demographics of inventors. The IDEA Act would change this. The bill would require the USPTO, for the first time, to collect demographic data—gender, race, ethnicity, national origin, sexual orientation, age, military or veterans status, disability, education level, and income level—from patent applicants on a voluntary basis. The USPTO would be required to keep this information separate from the patent application itself, and to make the data available publicly. According to the sponsors, the bill will help close the patent gaps by helping the USPTO and the public to monitor diversity among inventors on an ongoing basis.

The IDEA Act is the latest in a series of congressional action to promote diversity in the patent system. The Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act (Pub. L. No. 115-273) became law in October 2018. That legislation requires the USPTO to work with the Small Business Administration to study the gender, race, and income gaps in patenting and report to Congress on its findings by October 31^st of this year. In furtherance of that report, the USPTO has held a series of hearings to take public testimony on this topic.

In addition, both the House and Senate Judiciary Committees held hearings this past spring on diversity in patenting, taking testimony from inventors, academics, and industry representatives on the extent of the disparities and best practices for closing the gaps. The IDEA Act follows from these hearings, where witnesses testified that the difficulty of studying the diversity gaps in patent gaps makes it difficult to track progress.

Montana Federal Court Halts IRS Policy that Eliminated Reporting of Donor Information

By Matthew Shapanka and Susan Leahy on August 2, 2019 Posted in Tax Reform

The Internal Revenue Service (IRS) must adhere to public notice-and-comment procedures before it can relieve certain tax-exempt organizations of the burden of reporting the names and addresses of their donors to the IRS, a Montana federal court ruled this week. Last year’s Revenue Procedure 2018-38 provided that tax-exempt organizations, other than 501(c)(3) charities, were no longer required to report donor information to the IRS on the annual information return, Form 990. The U.S. District Court for the District of Montana held that the revenue procedure violated the Administrative Procedure Act (APA) because the IRS promulgated the new rule without adhering to the notice-and-comment procedures required for “legislative rules.”

As we reported last summer the IRS policy change was a significant shift in donor disclosure rules for 501(c)(4) social welfare organizations, trade associations, and other tax-exempts. For over 50 years, the IRS had required that these tax-exempt organizations report the names and addresses of certain donors on Form 990, Schedule B, but the change in policy eliminated that requirement, even though the information was previously redacted by the IRS and tax-exempt organizations before making a Form 990 public. In announcing Revenue Procedure 2018-38, the IRS stated that the new policy did not prevent it from demanding donor information from tax-exempt organizations, which was still required to be collected and maintained by the organizations.

The federal court ruling invalidated Revenue Procedure 2018-38, effectively reinstating the requirement that tax-exempt organizations report their donors’ names and addresses to the IRS on Form 990, Schedule B. After finding that the plaintiffs—Montana Governor Steve Bullock, the Montana Department of Revenue, and the state of New Jersey—had standing to challenge the policy change, the judge held that the policy was invalid. Current Treasury regulations require tax-exempt organizations to “file an annual information return” that includes “[t]he total of the contributions, gifts, grants, and similar amounts received . . . and the names and addresses of all persons who contributed, bequeathed, or devised $5,000 or more . . .” 26 C.F.R. § 1.6033-2(a)(ii)(f). The court concluded that the IRS abolished the requirement to report donor names and addresses, which “effectively amended” the regulation, without adhering to notice-and-comment procedures.

The IRS had argued in the case that Revenue Procedure 2018-38 merely concerned a matter of agency practice or procedure and was therefore an “interpretive rule” that does not require notice and comment. However, the court rejected this contention, on the basis that an interpretive rule must be “consistent with the regulation that it seeks to interpret.” Here, the court found, the new policy conflicted with the existing regulation, which affirmatively requires tax-exempts to report donor information. Accordingly, the court found that the new procedure was a “legislative rule” that would have the force of law, not an interpretive rule, and must therefore undergo the public notice-and-comment procedure.

The court made clear that the plaintiffs did not challenge “the substance of the IRS’s decision or whether substantial-contributor information must be disclosed,” but rather that the IRS failed to follow the required notice-and-comment procedure. Nothing in the court’s order would prevent the IRS from eliminating the requirement that tax-exempts report their donors. If the ruling stands, then, per the court’s order, the “IRS must follow the proper notice and comment procedures pursuant to the APA if it seeks to adopt a similar rule,” and may not, as the court put it, “attempt to evade the time-consuming procedures of the APA.”

We will monitor closely whether the IRS will attempt to repeal the donor reporting requirement for certain tax-exempts through a public notice-and-comment procedure, or whether the agency will appeal.

A Director’s New Threat Assessment

By Eric Robinson on August 1, 2019 Posted in Uncategorized

On Capitol Hill last week, an FBI Director provided a troubling update regarding America’s national security. Robert Muller’s appearance before the House Judiciary Committee and the House Permanent Select Committee on Intelligence regarding his tenure as Special Counsel was not the source of this update, however. It was Christopher Wray, the current Director, who provided a stark warning about the state of terrorism in the United States and who, unfortunately, found his vital message largely eclipsed by his predecessor’s appearance.

Appearing before the Senate Judiciary Committee, Director Wray stated that the FBI had recorded nearly 100 arrests of domestic terrorists (individuals motivated by predominantly domestic ideological convictions, like the neo-Confederate views motivating the 2015 Charleston, SC attack) in the past nine months. Adding valuable context, a FBI spokeswoman later indicated that the FBI is aware of 90 domestic terrorism arrests and 100 arrests linked to international terrorism (individuals whose ideological allegiances are predominantly foreign in nature, like the Islamic State or al-Qa‘ida) over the same time frame. Capping this segment of his testimony, Director Wray stated: “Needless to say, we take domestic terrorism or hate crimes, regardless of ideology, extremely seriously.”

Current trends – like the FBI’s monitoring of arrests – indicate that domestic terrorism is nearly as dangerous, and potentially more dangerous to Americans, as international terrorism. However, the Executive Branch is simply not organized to challenge domestic terrorism in the way that post-9/11 reforms harmonized the government’s approach to international terrorism. In short, Director Wray’s claim is partly rhetorical, since the tools to be any more organized or aggressive against domestic terrorism at the federal level do not yet exist.

The past three administrations have varied greatly in their approach to international terrorism, and some of these efforts have been misguided, others were abject failures, and even certain programs were likely unlawful. This mixed record acknowledged, the re-organization of the intelligence community that led to innovations like the National Counterterrorism Center (NCTC), the employment of State Department and Department of the Treasury authorities against terrorist groups and individuals overseas, and consistent efforts within the intelligence community, law enforcement, and the military to prioritize pressing terrorist threats have achieved real successes. While the world remains violent, a 9/11-style attack against the United States is dramatically more difficult to initiate now that the federal government operates differently.

No such architecture exists for domestic terrorism. NCTC, despite its name, is organized to monitor international terrorism. The Department of Homeland Security is oriented towards the country’s borders and points of entry. Perhaps wisely, the United States does not have a domestic intelligence service to monitor domestic terrorists, rather a patchwork of law enforcement agencies at the federal, state, and local level are collectively responsible. Continuing, there is no “Domestic Terrorist Organization” designation available to policymakers to enhance efforts against the Atomwaffen Division or violent adherents of QAnon, for example.

Despite domestic terrorism – especially white nationalist motivated terrorism – being an active and serious threat to the country, it is unlikely that Congress will seek to re-organize the federal government in response or encourage large scale re-prioritization across law enforcement. Legislative will, fair concerns over civil liberties, and base domestic political realities will leave men like Director Wray attempting to prevent serious violence perpetrated against the American public with a limited toolkit. To again reference his testimony, “extremely seriously” must be qualified with an expectation that Congress will provide little additional support to aid his efforts. Unlike what Robert Mueller witnessed in the days following 9/11, the current Director’s threat assessment will not be matched with an equivalent policy response.

Senate Commerce Committee Unanimously Passes Two Bipartisan 5G Bills

By Holly Fechner and Matthew Shapanka on July 29, 2019 Posted in Congressional Action

Last week, the Senate Commerce Committee held a markup where it unanimously passed two pieces of legislation aimed at improving U.S. fifth-generation wireless network (5G) security measures out of committee: the Secure 5G and Beyond Act (S. 893) and the United States 5G Leadership Act (S. 1625). These bills—passed as Congress, the Administration, and the private sector are engaged in a public debate over how to best secure U.S. wireless networks and other technologies from foreign adversaries—are among the first pieces of legislation on 5G and national security to emerge from committee since the deployment of 5G began this year.

The advancement of these bills reflects the growing concern in Congress that the U.S. government must prioritize 5G security. During the last Congress, the House and Senate both passed resolutions emphasizing the critical need for continued U.S. leadership in the development of next-generation wireless technology and in the establishment of global 5G standards. This Congress, members continue to focus heavily on 5G leadership and national security: at least twenty bills introduced this year explicitly aim to bolster U.S. leadership in 5G or protect 5G networks and infrastructure from foreign influence.

The two bills passed at last week’s markup are part of this trend. The Secure 5G and Beyond Act, first introduced in March 2019 by Senators John Cornyn (R-TX), Richard Burr (R-NC), and Mark Warner (D-VA), requires the Administration to develop a detailed domestic security strategy to ensure the safety of 5G wireless systems and infrastructure and to develop a broader strategy for U.S. R&D leadership in 5G. The bill also calls for further research and development in critical technologies and workforce development that will lead to secure, effective, and reliable deployment of 5G and other next generation wireless systems. The bill was ordered out of committee as amended, including an amendment from Senator Ted Cruz (R-TX) calling for the security strategy to include an assessment of the global competitiveness and vulnerabilities of U.S. 5G and future-generation manufacturers and suppliers and a substitute bill from Senator Roger Wicker (R-MS) that added to the list of required strategy elements mandatory private sector and international engagement on 5G standards-setting bodies. A companion House bill, H.R. 2881, was introduced by Rep. Abigail Spanberger (D-VA-7) in May, but has not received a hearing.

The Committee also unanimously reported the United States 5G Leadership Act. First introduced by Senators Roger Wicker (R-MS), Tom Cotton (R-AR), Warner, Ed Markey (D-MA), and Dan Sullivan (R-AK), this legislation would prohibit any federal funds from being used to “purchase communications equipment or services” from Huawei, ZTE, or other entities deemed by the national security agencies or the Federal Communications Commission (FCC) to pose a potential national security risk. The bill would require the FCC to complete its ongoing rulemaking—first launched in 2017—to make exemptions from the funding ban. The bill would also create a Supply Chain Security Trust Fund grant program to help U.S. communications providers replace equipment supplied by covered companies.

In addition to these two bills, the Senate has also called attention to the issue of 5G development and security during hearings in the 116th Congress. In February 2019, the Senate Commerce Committee held a hearing on “Winning the Race to 5G and the Next Era of Technology Innovation in the United States.” At that hearing, witnesses testified to the importance of innovating not just in regards to the transformational effects of 5G deployments in new fields like connected cars and virtual reality, but also in regards to the equipment that makes such deployments possible: secure networks and mobile device chipsets. In April 2019, the Senate Commerce Committee also held a hearing on the topic of “Strengthening the Cybersecurity of the Internet of Things,” during which senators and industry representatives agreed that 5G network security would be crucial to the maintenance of IoT device security.

In May 2019, the Senate Judiciary Committee held a hearing on “5G: National Security Concerns, Intellectual Property Issues, and the Impact on Competition and Innovation.” At that hearing, senators and witnesses raised concerns about supply chain security vulnerabilities of using foreign 5G equipment to build out national networks. Other hearings, bills, and resolutions have discussed the importance of 5G innovation to maintaining secure defense systems and developing new sectors of the American economy. For example, Senator Ron Johnson (R-WI) introduced a resolution deeming it a “national priority for the U.S. to lead the world in the development and deployment” of 5G technology and strongly urging federal agencies to work with the FCC to advance the goal of U.S. 5G leadership, and Rep. Raja Krishnamoorthi (D-IL-8) introduced a bill that would require the Director of National Intelligence to submit a report on the national security threat posed by 5G technology and the effect of possible efforts to mitigate the threat.

As the year continues, we expect to see sustained attention paid to 5G innovation, and will continue to monitor executive and legislative action, including hearings, future bills, and movement on existing bills, in this space.

New York DFS Announces New Division Overseeing Fintech

By Sam Adriance on July 29, 2019 Posted in Blockchain, Fintech

On July 23, the New York State Department of Financial Services (“DFS”) announced a new Research and Innovation Division. The Division will assume responsibility for licensing and supervising virtual currencies. It will also “assess efforts to use technology to address financial exclusion; identify and protect consumer data rights; and encourage innovations in the financial services marketplace.”

According to New York Superintendent of Financial Services Linda Lacewell, the Division will “position DFS as the regulator of the future, allowing the Department to better protect consumers, develop best practices, and analyze market data to strengthen New York’s standing as the center of financial innovation.”

The new Division follows previous efforts by DFS to regulate innovation and technology in financial services. For example, DFS has been licensing and supervising virtual currency companies since 2015 under its BitLicense regime. Companies with BitLicenses are subject to consumer protection and capital requirements, and must maintain anti-money laundering compliance programs. DFS also signed a memorandum of understanding with Israeli regulators regarding fintech regulation. DFS has also sued the Office of the Comptroller of the Currency over the OCC’s proposal to grant special purpose national bank charters to fintech companies.

The Research and Innovation Division is the second new division at DFS since Superintendent Lacewell assumed the role in February 2019; in May, DFS created the Consumer Protection and Financial Enforcement Division.

DFS also announced leadership appointments for the new Research and Innovation Division. Matthew Homer, who was recently head of policy and research at a New York fintech company, will serve as Executive Deputy Superintendent; Matthew Siegel and Olivia Bumgardner will serve as Deputy Superintendents; and Andrew Lucas will be Counsel.

A Potentially New Tanker War

By Eric Robinson on July 23, 2019 Posted in Defense Issues

It was not exactly a scene out of “Captain Phillips,” but it was still dramatic. Aired on Iranian state TV on July 20th, the UK-flagged oil tanker Stena Impero is seen in the background, flanked by a flotilla of fast-moving Iranian Islamic Revolutionary Guards Corps (IRGC) boats. Simultaneously, an Iranian Mi-17 helicopter variant hovers over the slow-moving tanker, the camera cuts to an assault team inside the aircraft, and soon individuals fast-rope onto the Stena Impero’s desk. In dramatic fashion, Iranian leadership demonstrated that the IRGC had the ability to seize a vessel in international waters and that Tehran had the political will to escalate an already tense crisis in the Persian Gulf.

While the video was entertaining, it did not demonstrate a paradigm-shifting capability on the part of the Iranians. An operation to seize a tanker in fair seas, in daylight, and without resistance is risky, but such a scenario hardly conjures the form of danger that American Navy SEALs, the UK’s Special Boat Service, or French Navy Commandos would face should their countries need to seize a ship at sea. In short, the capabilities of the IRGC are the least interesting component of the display. That the Iranian Government would commit such a brazen act in international waters, however, is of great interest to policymakers and – of course – observers of energy markets worldwide.

The Iranian operation to seize the Stena Impero cannot be assessed in isolation. This operation follows the Trump Administration’s “maximum pressure” campaign and Secretary of State Mike Pompeo’s 12-point policy program towards Iran. More recently, the loss of both American and Iranian unmanned aerial vehicles in the Persian Gulf, and a UK-led seizure of a vessel apparently involved in the smuggling of oil into Syria, shows that Iran and the United States and its allies are expanding the thematic possibilities of provocation and response. Thus far, the only related action that could cause immediate physical harm to people on any side of the dispute has taken place inside Iraq, but the violence was limited to rocket or mortar fire, it was sporadic, and almost indiscriminate.

While the next Iranian form of provocation is unknown, Europe has taken a clear step towards protecting their maritime interests in the Gulf. The United States acknowledged it cannot provide escort to commercial vessels of other nations under international law (despite re-flagging Kuwaiti vessels to do just this in the Tanker War of the 1980s), so France, the UK, and perhaps other European states are forming an ad-hoc naval task force to deter and, if necessary, prevent further Iranian seizures in the Gulf.

The situation in the region is tense, and the carnage of the anti-Islamic State campaign and the Iraq War before it is fresh in the minds of all stakeholders, but with these escalatory steps acknowledged, it is difficult to see a relaxation of tension in the region in the short run. Hopefully, the most dramatic activity to come will be more staged events for TV audiences, and not military action with a deliberately violent, and status-quo altering, intent.

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Eric Robinson is an associate with Covington. Prior to that, a career national security professional, Mr. Robinson was most recently the Chief of Staff of a Washington, DC-based special operations unit. In that role he helped connect the Joint Special Operations Command to the American interagency, the intelligence community, think tanks, the private sector, and foreign military and intelligence partners. He has also worked at the National Counterterrorism Center where he helped draft the Obama Administration’s 2014 strategy to defeat the Islamic State. Prior to his time in Washington, DC, Mr. Robinson led soldiers in Iraq and Afghanistan with the United States Army’s 101st Airborne Division.

The Week Ahead in the European Parliament – July 19, 2019

By Sebastian Vos on July 22, 2019 Posted in EU Law and Regulatory

Summary

Next week, the Members of the European Parliament (“MEPs”) will gather in Brussels for the final week of committee meetings before the summer recess. A number of hearings and debates are scheduled to take place.

On Tuesday, the Committee on International Trade (“INTA”) will have an exchange of views with Trade Commissioner Cecilia Malmström on recent developments in EU Trade Policy. It is expected this hearing will touch on topics such as the EU challenge under the EU-Korea Free Trade Agreement to labor rights practices, and the EU-Vietnam and EU-Mercosur Free Trade Agreements, which are yet to be approved by the European Parliament.

On Tuesday and Wednesday, several committees will hold hearings with Finnish ministers on the priorities of the Finnish Presidency of the Council of the EU. Finland has taken up the rotating Presidency as of July 1 and will remain President until the end of 2019. The Committee on Industry, Research and Energy (“ITRE”), the Committee on Regional Development (“REGI”), the Committee on Development (“DEVE”), and the Committee on Transport and Tourism (“TRANS”) will all question the respective Finnish ministers on their policies and positions. The Finnish government has distributed its programme, titled “Sustainable Europe – Sustainable Future”, that sets out Finland’s four priorities: the strengthening of common values and the rule of law; of the EU’s competitiveness and social inclusivity; of the EU’s position as global leader in climate action; and of the comprehensive security of its citizens. See the Finnish Presidency’s program here.

On Wednesday, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) will have an exchange of views with the Commissioner for the Security Union, Julian King. The hearing comes at a time when the European Commission has received the national risk assessments of the Member States with regard to the presence of foreign telecom companies in Member States’ 5G networks. The Commission will complete its own risk assessment by October 1. It can be anticipated that the MEPs of LIBE will question the Commissioner on the implications of these security concerns on civil rights and data protection. Continue Reading

Malaysia Airlines Flight 17 – New Developments

By Eric Robinson on July 18, 2019 Posted in Russia, Uncategorized

A court in the Netherlands, an international research collective, and a daring Ukrainian operation have brought an international tragedy back to the headlines while providing a case study on new legal and political realities of the 21st century.

On July 17, 2014, a Malaysia Airlines Boeing 777 exploded in the skies of eastern Ukraine, killing 298 passengers and crew. From the moment the aircraft was reported missing, it was apparent that it was an exceptionally unusual incident. The aircraft was well-maintained and it was safely at cruising altitude at the time of the incident. Investigators’ attention was soon directed at the conditions on the ground. Moscow-backed separatists had initiated a revolt in Ukraine beginning in March 2014, an insurrection that was coupled with Russia’s occupation of Crimea. These separatists eschewed association with Russia officially, yet they had advanced military capacity, including the ability to shoot down aircraft.

Images of the weapon used in the attack were soon identified via social media, the government of Ukraine released recordings of intercepted communications in an attempt to influence the public perception and findings, and in time a chain of events emerged that placed the blame for the attacks squarely on the Russian Armed Forces. Most notably, the open source research collective, Bellingcat, continually developed its understanding of the incident, providing research and analysis similar to that of a state intelligence agency.

Last month, a Joint Investigative Team in the Netherlands charged three Russians and one Ukrainian with facilitating the transfer of the weapon employed against the airliner. Acknowledging that those charged are likely beyond the reach of the court’s jurisdiction, the prosecutors assessed that naming the individual suspects would aid in further developing the network that conducted the attack while imposing a political cost on the perpetrators.

A week following these indictments, Kyiv announced that it had captured a separatist linked to the network that shot down the airliner. In doing so, Ukraine demonstrated an ability to enter hostile territory, seize a subject of interest, and repatriate him to face investigators. While details of the operation remain murky at best, Ukraine demonstrated a capacity previously only known to exist within the most elite international special operations forces units.

Taken together, the Joint Investigative Team demonstrated a means of holding state-aligned actors accountable when exerting personal jurisdiction is difficult. Next, Ukraine proved to potential criminal defendants – like Adolf Eichmann or Abu Ahmed Khattalah discovered in their own time – that individuals involved can be captured from locales they assumed were safe. Finally, Bellingcat’s performance demonstrates that networks of individuals, linked only by interest and high speed internet connections, can create intelligence analysis once only thought to exist within state-level intelligence agencies.

While none of these developments can repair the damage or erase the tragedy of July 2014, they all represent incremental changes in global and legal affairs. In certain cases, state power is being eroded through crowdsourced intelligence, in other cases, states are finding new means of addressing international grievances. The tragedy of MH17 remains unresolved, however. All that is certain is that its continuing aftermath will reveal new truths about governance and law in the 21st century.

House and Senate Will Debate Bid Protest Policy

By Jeff Bozman and Jay Carey on July 18, 2019 Posted in Congressional Action, Defense Issues

The House of Representatives passed its version of the FY2020 National Defense Authorization Act (“NDAA”) last week. The headline story was the remarkably close, party-line vote: in contrast to past years, the bill received no Republican votes, and eight Democratic Members voted against it.

Those partisan dynamics obscured the inclusion of two important amendments – one Republican and one Democratic – regarding bid protest policy that the House quietly adopted in its bill. The provisions are not yet law, since the House and Senate must still resolve differences in their respective NDAAs through the conference process. In this post, we summarize these provisions and encourage government contractors to watch them closely in the coming months. Continue Reading