U.S., Russia lose illusions, recognize limits in Syria fight

By Gevorg Mirzayan, Special to Russia Beyond the Headlines   |   Sept. 23, 2016 at 8:54 AM
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A package of five documents on Syria agreed by the United States and Russia was presented by the parties as a real breakthrough. According to U.S. Secretary of State John Kerry, the cease-fire plan was a "turning point" for the conflict. But the cease-fire lasted only a week in which there was no real cessation of hostilities. One of its major objectives was not achieved: The opening of the road for the passage of humanitarian convoys to the besieged city of Aleppo, whose hundreds of thousands of residents are in urgent need of aid.

Parties to the conflict have accused each other of violating the agreements. Russia said members of the U.S.-led Western coalition had carried out a deliberate strike on the Syrian army positions near Deir ez-Zor, which killed 62 Syrian soldiers, and the U.N. Security Council met Sunday in an emergency session at the request of Moscow.

But the following day, the United States blamed Bashar al-Assad's troops and Russia for a strike on a U.N. humanitarian convoy that killed around 20 people. The Russian Defense Ministry denied that its aircraft were involved. According to Russian aerial reconnaissance, Jabhat al-Nusra militants launched a massive offensive on Aleppo on Monday, in the area where the U.N. convoy was traveling.

Lost illusions

The latest developments confirm the fears of experts who are skeptical about the prospects of the U.S.-Russian agreements because of the involvement in the conflict of too many players with very different interests. However, the agreements between Moscow and Washington are indeed a "turning point" for the conflict and really do bring it closer to an end.

The interrupted cease-fire is the tip of the iceberg; the parties did not disclose all the provisions of the agreement for a reason. The key factor was that the parties had lost their illusions, recognizing their limitations in Syria and the danger of the Islamic State.

"To achieve greater arrangements, it is necessary to sacrifice small things," says Vladimir Avatkov, director of the Center for Middle East Studies, International Relations and Public Diplomacy. "Taking into consideration the existing situation in the north of Syria, all of the parties are gradually coming to the conclusion that it is necessary to end what was unleashed there."

Moscow began the air operation in Syria last September. During this time, it has been able to achieve a great deal – to stop the Islamic State's triumphant advance and also to prevent the collapse of the Syrian state. While it was not the instigator of the Syrian civil war, Moscow turned out to be one of its main beneficiaries. Russia has proved its willingness to defend its allies and international law; has returned to the Middle East region; and has managed to acquire new customers in the arms market.

The problem for Moscow is that in order to further advance on IS, the air operation is not sufficient. "The Russian air forces and the American-led coalition bomb terrorists from the air, but this is not enough," Leonid Isayev, a senior professor of political science at the Higher School of Economics, says. He adds: "A ground operation is needed, but neither Moscow nor Washington can coerce their allies to carry out this operation."

Assad's troops are now exhausted – several years of war have battered the Syrian army. Iran is theoretically capable of a ground operation, but is stopped by the prospect of a transformation of the Syrian war into a Shia-Sunni slaughter (Syria is a Sunni country, Iran is Shia).

Moscow also cannot consider Turkey to be the main driver for ground action, as it has different interests from those of Moscow and is not an ally of the Syrian government troops. Russia's further involvement in the campaign is fraught with the risk of being drawn deeply into the conflict, which it seeks to avoid. Moscow can take quite a flexible position, for example, at the talks on the federalization of Syria or the fate of Assad's regime. But it will lose its flexibility in the event of becoming more deeply involved and bogged down in the region.

The Syrian agreement has become for Washington a kind of documentation of losses, because its entrance into the campaign was initially associated exclusively with the intention to topple Assad's regime and transfer the country's governance to the hands of the opposition.

"The United States has long regarded Syria as a strategic enemy in the Middle East. This is the only state that remains on the list of state sponsors of terrorism since the establishment of the list in 1979," says Steven Heydemann, senior fellow at the Brookings Institution and a Valdai Club expert. The fall of the Assad regime would enable the Americans, in particular, to oust Iran from the entire Levant and to strengthen Israel's security.

However, these objectives have not been achieved – the Americans were not able to ensure victory for the opposition. The secular Syrian opposition is also dissatisfied with the reluctance of the United States to give it real support against the Russian air forces, but the U.S. Congress will not agree to supply advanced weapons to militants, fearing that they may later fall into the hands of IS.

Washington's choice

"The U.S. attempt to work with the opposition did not bear fruit, so it is forced to contend with the existing alignment of forces," Avatkov says. New threats have arisen, including IS, against the background of these failures.

Finally, the U.S. position in the region has greatly weakened in recent years. According to Richard Weitz, a senior fellow and director of the Center for Political-Military Analysis at Hudson Institute, relations with U.S. allies – Saudi Arabia, Israel, Turkey and Egypt – have deteriorated, while wars are continuing in Iraq, Syria and Yemen.

If the Americans are not able to stop their losses at their current level and do not achieve at least the departure of Assad (which they can describe as a victory), their position could further weaken. Washington will have to choose – whether to finally give Syria to Moscow and Tehran, or to start its own ground operation. The other parties to the Syrian conflict have been ambivalent about the agreement. They will have to adapt their goals and objectives in the conflict to the conditions of the Russian-American compromise, and some of them are not enthusiastic about this prospect.

Dashed hopes

The Syrian authorities represented by Assad's regime are unhappy that they are forced to cease operations in parts of the country. Damascus hoped to regain control over the whole of Syria, with the support of Moscow and Tehran. Without the Iranian and Russian backing, Syria's battered army is able at best only to defend the territory it now controls.

The Iranians also have an ambiguous attitude to the deal. On the one hand, the last thing they need is any American involvement in Syria, but at the same time the deal helps end the very costly war, on which Tehran is spending millions of dollars and losing hundreds of its soldiers.

Iran became involved in Syria not out of choice but because it believed it had to prevent Syria's transfer to the management of its strategic enemies, Saudi Arabia and the United States. Tehran believes that this would have been inevitable if the opposition forces had been victorious in Syria. Now the Iranians have achieved their immediate goal, getting the basic consent of the Russian Federation and the United States to preserve the regime of Bashar al-Assad (even if without Assad himself).

For Turkey, a major American ally, the compromise represented an opportunity to rectify the mistakes that it had made. But the Syrian civil war became a strategic loss for Ankara. Its initial objectives have not been achieved, and new threats have emerged as a result of its attempts. By supporting the militants, Erdogan hoped to overthrow the regime of Assad and bring a pro-Turkish government to power in Damascus. However, the bottom line is that it had an influx of millions of refugees, economic losses, a hostile Syria, problems in its relations with Russia and Iran, as well as the prospects for the emergence of the next – this time Turkish – Kurdistan.

In an attempt to repair the damage, Turkey has chosen to normalize relations with Russia, and also changed its approach to the regime of Assad, expressing its willingness to negotiate with it and recognize its legitimacy.

Avatkov says: "After the attempted military coup, Erdogan is interested that the only legitimate way to change power must be a democratic one." And this normalization, coupled with the U.S.-Russian agreements has allowed the Turks – with the consent of Moscow, Tehran and Damascus – to send troops to northern Syria to fight against the Kurds.

The party most dissatisfied with the agreement is Saudi Arabia. Riyadh sees the Syrian conflict as a peripheral war to deter Iran, so the Saudis are not interested in ending the bloodshed.

And now, after the Russian-Turkish and Russian-U.S. compromises, as well as the expected normalization of relations between Damascus and Ankara, Saudi Arabia finds itself in diplomatic isolation. Riyadh will not be able to sabotage the U.S.-Russian agreements: That would be likely to affect its already difficult relationship with the United States.

The article originally appeared at Russia Beyond the Headlines.

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Feds: We can read all your email and you'll never know

By Clark D. Cunningham, Georgia State University   |   Sept. 22, 2016 at 11:41 AM

Fear of hackers reading private emails in cloud-based systems like Microsoft Outlook, Gmail or Yahoo has recently sent regular people and public officials scrambling to delete entire accounts full of messages dating back years. What we don't expect is our own government to hack our email – but it's happening. Federal court cases going on right now are revealing that federal officials can read all your email without your knowledge.

As a scholar and lawyer who started researching and writing about the history and meaning of the Fourth Amendment to the Constitution more than 30 years ago, I immediately saw how the FBI versus Apple controversy earlier this year was bringing the founders' fight for liberty into the 21st century. My study of that legal battle caused me to dig into the federal government's actual practices for getting email from cloud accounts and cellphones, causing me to worry that our basic liberties are threatened.

A new type of government search

The federal government is getting access to the contents of entire email accounts by using an ancient procedure – the search warrant – with a new, sinister twist: secret court proceedings.

The earliest search warrants had a very limited purpose – authorizing entry to private premises to find and recover stolen goods. During the era of the American Revolution, British authorities abused this power to conduct dragnet searches of colonial homes and to seize people's private papers looking for evidence of political resistance.

To prevent the new federal government from engaging in that sort of tyranny, special controls over search warrants were written into the Fourth Amendment to the Constitution. But these constitutional provisions are failing to protect our personal documents if they are stored in the cloud or on our smartphones.

Fortunately, the government's efforts are finally being made public, thanks to legal battles taken up by Apple, Microsoft and other major companies. But the feds are fighting back, using even more subversive legal tactics.

Searching in secret

To get these warrants in the first place, the feds are using the Electronic Communications Privacy Act, passed in 1986 – long before widespread use of cloud-based email and smartphones. That law allows the government to use a warrant to get electronic communications from the company providing the service – rather than the true owner of the email account, the person who uses it.

And the government then usually asks that the warrant be "sealed," which means it won't appear in public court records and will be hidden from you. Even worse, the law lets the government get what is called a "gag order," a court ruling preventing the company from telling you it got a warrant for your email.

You might never know that the government has been reading all of your email – or you might find out when you get charged with a crime based on your messages.

Microsoft steps up

Much was written about Apple's successful fight earlier this year to prevent the FBI from forcing the company to break the iPhone's security system.

But relatively little notice has come to a similar Microsoft effort on behalf of customers that began in April 2016. The company's suit argued that search warrants delivered to Microsoft for customers' emails are violating regular people's constitutional rights. (It also argued that being gagged violates Microsoft's own First Amendment rights.)

Microsoft's suit, filed in Seattle, says that over the course of 20 months in 2015 and 2016, it received more than 3,000 gag orders – and that more than two-thirds of the gag orders were effectively permanent, because they did not include end dates. Court documents supporting Microsoft describe thousands more gag orders issued against Google, Yahoo, Twitter and other companies. Remarkably, three former chief federal prosecutors, who collectively had authority for the Seattle region for every year from 1989 to 2009, and the retired head of the FBI's Seattle office have also joined forces to support Microsoft's position.

The feds get everything

This search warrant clearly spells out who the government thinks controls email accounts – the provider, not the user. U.S. District Court for the Southern District of New York

It's very difficult to get a copy of one of these search warrants, thanks to orders sealing files and gagging companies. But in another Microsoft lawsuit against the government a redacted warrant was made part of the court record. It shows how the government asks for – and receives – the power to look at all of a person's email.

On the first page of the warrant, the cloud-based email account is clearly treated as "premises" controlled by Microsoft, not by the email account's owner:

"An application by a federal law enforcement officer or an attorney for the government requests the search of the following ... property located in the Western District of Washington, the premises known and described as the email account [REDACTED]@MSN.COM, which is controlled by Microsoft Corporation."

The Fourth Amendment requires that a search warrant must "particularly describe the things to be seized" and there must be "probable cause" based on sworn testimony that those particular things are evidence of a crime. But this warrant orders Microsoft to turn over "the contents of all emails stored in the account, including copies of emails sent from the account." From the day the account was opened to the date of the warrant, everything must be handed over to the feds.

The warrant orders Microsoft to turn over every email in an account – including every sent message. U.S. District Court for the Southern District of New York

Reading all of it

In warrants like this, the government is deliberately not limiting itself to the constitutionally required "particular description" of the messages it's looking for. To get away with this, it tells judges that incriminating emails can be hard to find – maybe even hidden with misleading names, dates and file attachments – so their computer forensic experts need access to the whole data base to work their magic.

If the government were serious about obeying the Constitution, when it asks for an entire email account, at least it would write into the warrant limits on its forensic analysis so only emails that are evidence of a crime could be viewed. But this Microsoft warrant says an unspecified "variety of techniques may be employed to search the seized emails," including "email by email review."

The right to read every email. U.S. District Court for the Southern District of New York

As I explain in a forthcoming paper, there is good reason to suspect this type of warrant is the government's usual approach, not an exception.

Former federal computer-crimes prosecutor Paul Ohm says almost every federal computer search warrant lacks the required particularity. Another former prosecutor, Orin Kerr, who wrote the first edition of the federal manual on searching computers, agrees: "Everything can be seized. Everything can be searched." Even some federal judges are calling attention to the problem, putting into print their objections to signing such warrants – but unfortunately most judges seem all too willing to go along.

What happens next

If Microsoft wins, then citizens will have the chance to see these search warrants and challenge the ways they violate the Constitution. But the government has come up with a clever – and sinister – argument for throwing the case out of court before it even gets started.

The government has asked the judge in the case to rule that Microsoft has no legal right to raise the constitutional rights of its customers. Anticipating this move, the American Civil Liberties Union asked to join the lawsuit, saying it uses Outlook and wants notice if Microsoft were served with a warrant for its email.

The government's response? The ACLU has no right to sue because it can't prove that there has been or will be a search warrant for its email. Of course the point of the lawsuit is to protect citizens who can't prove they are subject to a search warrant because of the secrecy of the whole process. The government's position is that no one in America has the legal right to challenge the way prosecutors are using this law.

Far from the only risk

The government is taking a similar approach to smartphone data.

For example, in the case of U.S. v. Ravelo, pending in Newark, N.J., the government used a search warrant to download the entire contents of a lawyer's personal cellphone – more than 90,000 items including text messages, emails, contact lists and photos. When the phone's owner complained to a judge, the government argued it could look at everything (except for privileged lawyer-client communications) before the court even issued a ruling.

The federal prosecutor for New Jersey, Paul Fishman, has gone even farther, telling the judge that once the government has cloned the cellphone it gets to keep the copies it has of all 90,000 items even if the judge rules that the cellphone search violated the Constitution.

Where does this all leave us now? The judge in Ravelo is expected to issue a preliminary ruling on the feds' arguments sometime in October. The government will be filing a final brief on its motion to dismiss the Microsoft case Friday. All Americans should be watching carefully to what happens next in these cases – the government may be watching you without your knowledge.

The Conversation

Clark D. Cunningham is the W. Lee Burge Chair in Law & Ethics and director of the National Institute for Teaching Ethics & Professionalism at Georgia State University.

This article was originally published on The Conversation. Read the original article.

© 2016 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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