a16z Podcast - a16z Podcast: The Law (and Tech) of Warfare

Episode Date: June 4, 2017

Rules, guidelines, regulations, and “laws” are all sometimes used interchangeably — but what’s legal and what isn’t is far more complex when it comes to policy, especially when politics (and technology) enters the picture. Take encryption for instance: The debate has gone beyond the “Crypto Wars” of yore to a war of attrition playing out today as companies (like Apple) go head-to-head against law enforcement (FBI); but who wins and who loses if the battles play out differently in litigation vs. legislation? And what of cybersecurity more broadly, Russia and hacking, and other top-of-mind policy and politics topics, such as immigration? What are the legal and technical (not to mention moral) nuances of military drones … including the possibility of automating even government decision making in the future? All of these issues share in common the power of technology to both “discriminate” — such as between military targets and civilians — as well as scale beyond borders. Technology doesn’t just level asymmetries; “It levels all asymmetries,” observes Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution, and editor-in-chief of the (now) popular Lawfare blog that focuses on “hard national security issues”. In this episode of the a16z Podcast recorded while on the road in D.C., we (with Sonal Chokshi and Hanne Tidnam) take a quick tour through those issues — as well as the meta story of Lawfare as a story about the evolution of media and expert blogging on the internet.

Hi, everyone. Welcome to the A6 and Z podcast. I'm Sonal. For this episode, Hannah and I spoke to Benjamin Wittes, senior fellow in governance studies at the Brookings Institution and editor-in-chief of the now popular Lawfare blog, which covers issues of national security. Our conversation covers the law and technology of warfare, from military drones, cybersecurity, and encryption, to geopolitics and the future of violence, which is the title of a book he co-authored with Gabriela Bloom. We also discuss the evolution of media, including expert an academic blogging in the age of the internet. This episode was recorded as part of our DC

on the road podcast series last month. For those that are new to these, we also did this last year when we interviewed Ezra Klein of Box, if you want to check those out as well. We're live, no, not really live. I can't make in that same joke over and over again. Can't stop using it. We're doing the podcast from D.C. on the ground.

And we have as our special guest today, Benjamin Wittis. Welcome, everyone. Thanks for having me. Now, I've been reading Lawfare for a long time. But I have to confess, however, Unlike your audience, which has grown post-Trump, I'm one of those people who reads less about politics now than before.

It's fascinating because there was actually New York Times profile about you earlier this year that shared your readership as of early February. It was more than all of 2016. Yeah, so we have had, I mean, quite literally exponential growth between last year and this year. And it's a really interesting effect of the Trump first candidacy and then election, that he generated enormous interest in the issues that we cover, what we call hard national security choices.

The executive order, yeah. You know, that post is actually interesting because it's, among other things, it has some high altitude comments on the executive order, but it is also a technical dissection of why I thought this executive order was going to give rise to a lot of litigation opportunity. It broke down a lot of very kind of piquayune aspects of that. It's not just what you're covering. It's also the way you're covering it.

And I think there's a thirst for the technical also as a part of a kind of relief from the partisan, from the opinions, from the distrust of what we're getting along with it. And there's this kind of grounded, factual technicalness to it. Right. So I think that's exactly right. My colleague Ken Anderson, who is a law professor at American University, very early in the history of the site, he said to me that the reason lawfare was so effective was that it never made an apology for speaking as a voice of authority. In this environment in which there is this real interest in voices of authority as well. When you say you have that authority,

that's not an accident. You've been at this for years. You've been building this expertise. And is that grounded in law? Why is it called lawfare? So the name lawfare is a bit of a historical accident. We were originally going to call the site Fog of Law. I'm glad you chose law fair. And just as we were about to launch it, we found out that the great scholar Michael Glennon had a book coming out called Fog of Law. And so we had to switch gears and we used lawfare instead. Lawfare is a word with a bit of a weird history. We use it as a kind of a sort of pun on war over law and law about war, right? It's sort of the dual meaning. That's really interesting. Warfare, lawfare, yeah. Right, exactly. So it was designed to capture

sort of conflict law as a subject, but also, you know, conflict over the law, right? The thing is that in certain other contexts, particularly on the hard right in the American political context and in the Israeli national security vocabulary, the word has rather a different meaning, which is as a kind of dismissive term for generally human rights advocates who use the courts as a way of disabling national security functions. Oh, interesting. So a lot of people will refer to lawfare as a kind of use of law as a weapon of war. And that's not the framework in which we've ever used it.

Just to pause on that for a moment. So you're not a lawyer and it's a lawfare block. Right. I am not a lawyer. I have never been a lawyer. And I occasionally think about taking the California bar, which you can do without going to law school. Because every now and then somebody writes, when they want to sort of dismiss something that I've written without, you know, actually engaging the argument, they'll say, Benjamin Wittis, who isn't even a lawyer, argues that blind. I just want to get rid of that. I just wanted to say it would take a lot of work. So I am by background, a legal journalist. I am. I am. By background, a legal journalist. I actually got interested in national security law as a result of this institution that nobody at the time had ever heard of, called the FISA court. The FISA court is a court constituted by Congress in the Foreign Intelligence Surveillance Act of 1978, and it does basically two things. It considers applications for wiretaps in the national security context. And it also supervises certain programmatic surveillance activity, particularly related to domestic,

captures of foreign-to-foreign communications that are passing through servers in the United States. So it's an area of law that is both highly technical and institutionally very peculiar because it is its own court that is set up purely for this purpose. And I got interested in it in the mid-1990s after the Aldra James case. Alder James was a spy at CIA for the Russians. the Ames case, the Justice Department quietly went to the Congress and asked the Congress to expand the jurisdiction of the FISA court to include certain physical searches that is actually breaking into somebody's apartment and searching their stuff. Which, by the way, just for a point of contrast, is pretty normal and typical in law enforcement

in like domestic matters. Yeah, sure. There's nothing abnormal about going to a court for a physical search. There's something peculiar about a court that has electronic surveillance. authority and no physical search authority. So they tried to regularize that and successfully did in 1994. And when I left the post, which was at the end of 2006, I left to write a book and I came to Brookings.

Lawfare was kind of an outgrowth of that work combined with work that my colleagues, Jack Goldsmith and Bobby Chesney, were doing. The part that's fascinating me about this narrative more broadly is it ties into this larger theme of the evolution of media and blogging in general and self-publishing. And that time, that period, there was this complete explosion. Blogging became a thing. Bloggers started their own media outlets. But it's also tied to the phenomenon of the long tail where people are craving niche expertise.

And you can self-select and find these people on the Internet where you have this infinite shelf space to find them. But the second half of this, the fact that it went beyond a niche to a little bit more mainstream interests, is I think really interesting. And besides 9-11, like what are some of the other epics in policy and political history that have kind of led us there? Like would Snowden be added to that list? So Snowden, Snowden is actually the second to last of these. So first, a huge percentage of the site was about the law of detention. The issue at hand was Guantanamo and the sort of developing law of detention. And should you close Guantanamo, under what law should you hold people there? Under what law should you hold people somewhere else? Over time, that set of issues faded, the salience of the issue diminished.

the parameters of the dispute narrowed, and the capacity to get the final thing done was reduced and reduced to the point that it wasn't even clear how meaningful it would be if you got it done. You close Guantanamo, you move 40 detainees to the United States, you're still holding the same 40 detainees under the same legal authority. So just as that set of issues sort of started to fade away, was replaced in the public's, in the debate with issues around drones.

And by the way, there were multiple aspects of that debate. There was a targeting debate, right? You know, when is it legal to kill somebody like a different continent? When that person is in a war zone fighting you, but also when that person is not in a war zone, maybe not fighting you, but you think he's a terrorist who's going to. That's a very complicated set of legal targeting questions. But then there's also the, you know, the flounder.

scary robot question, right? Which is, you know, does it make a difference if you are targeting somebody using a weapon that is to one degree or another autonomous? And that question itself has a set of, you know, valances as you get more and more and more autonomy, including, you know, some very futuristic questions like what if the targeting authority itself is autonomous, right? And this should be obvious, but we're really talking here about drones and the military strikes context, like not commercial drones. On the one hand, you're talking about battlefield drones, right, weaponized battlefield drones, but you're also talking about the CIA's use of drones in non-battlefield settings.

Such as... Such as, for example, you know, we did a whole bunch of drone strikes in Yemen, was not considered an active theater of conflict at the time, right? And then there's also the question, as the technology proliferates, including proliferates to the level that, you know, you can. go to Best Buy and have your choice. And once you do that, you know, the only difference between you and the CIA is carrying capacity.

You know, your drone doesn't carry as much payload. And they have much better targeting capability than you do and more sophisticated weapons that they can attach to the thing. Yeah, I mean, there's a complicated history in general with anything that talks about when you talk about off-the-shelf components being used in military settings, when you talk about military technology trickling down to consumer use. There's a whole tension throughout the entire history of tech where I think this stuff plays out. But the salient point here is that among the epics, we had 9-11, then you did the coverage around drones and drone strikes,

and the wrestling questions around that. So arguably, those questions have not yet faded, although the number of drone strikes have certainly faded. But then just as that debate was kind of cresting, you had the Snowden revel. And that was an enormous set of discussions of surveillance authorities, surveillance tech, how those interact with one another. And then just as that was starting to fade, you had the Apple FBI set of disputes around encryption. Now, along the way, there are all these other issues that arise. For example, people get charged with material support for terrorism. the government asserts a national security FOIA exemption to protect a program. And then there are wonky things like the alien tort statute,

which is an area that, you know, human rights groups and U.S. corporations care a great deal about and most other people have never heard of. And so that's the kind of bread and butter stuff of the site. Over the years, in the course of covering that, we assembled a remarkable collection of people with, a lot of enormously precise technical expertise. So that includes people like Susan, who came to us from NSA

and is one of the genuine government-side surveillance law expert. It also includes, you know, major academics who we try to give a platform to write in a more applied setting. You actually have some of my people. My folks, I used to edit at Wired Nicholas Weaver. I think I was the first person who ever published him. He was a student at Berkeley then.

Yes, well, he's done, he's done, you know, amazing work. And then a huge percentage of lawfare every day is written by this army of amazing law students. I have to say on the meta front, again, talking about the media trend underlying this, both Hannah and I are editors of expert voices. And essentially, one of my theses around this is that it's actually really depressing to me that media dilutes expertise with third-party, third-person voice. There should always be first-person voice for experts. And the only block between first-person experts and mainstream is this is,

ability to translate a little bit more broadly so people who aren't just so inside their field can hear it directly from that expert. Exactly, to where editors come in and a lot of what expert opinion editors do. But to your point, on the mainstream media landscape, there's actually not a lot of places where those people have a platform to speak. So I actually think your model of having law students is exactly the right replicable thing that a lot of media people should be doing at some level. I think it's a really interesting thing that even as some of these students have become real voices in the conversation that people have not tried to replicate it. But it is, I mean, not just students, but even serious academics are an untapped resource.

Part of the problem is that the blogs, generally speaking, that try to give voice to academics are generally not run by journalists. And so they don't have a journalistic sensibility in terms of what they're pushing people to do. Well, and I also think part of the problem is the insularity of academia. You know that there isn't an obligation for many of these fields or a sense of obligation to speak to somebody who is less initiated reader. And also a willingness to be edited in some cases to reach a broader audience. Right. So I think one of the things that really disciplines lawfare is that it is written for the practicing national security lawyer. Right. But the practicing aspect, I think,

does turn it outward more than, do you know what I mean? Well, so I think the way we see our job is our job is to be a resource that gives a politically diverse. range of genuine expertise on questions that they're thinking about. And I think that process is disciplining as to the academics who write for us because, you know, you're not talking to your class. You're not talking to a captive audience. You're talking to somebody who might have to be making a decision. The other thing is that the authorities grounded, you know, you are bipartisan, nonpartisan, and that you cover all this range of perspectives, so-called left, right. In fact, the funniest line from your New York Times article is that for a while you were disreputable to the left.

So what's up with that? Look, we started as three people, and now we're many more than three, but we were thought of as the conservative flank of the conversation. That's how I read it actually, frankly, until a year ago. And so I always thought that was wrong. You know, I mean, it was right in one sense in that we were who we were and we'd argued the things that we'd argued. and some of them were politically, you know, not where the center of gravity of liberal opinion was. And look, I think of myself as a centrist, but a lot of people don't think of me as a centrist. And so, you know, there was an element of truth to that.

In the last year, that perception has flipped. Somebody tweeted the other day, lawfare isn't left just professional. And I burst out laughing because a year ago we might have hoped to get the lawfare isn't right just professional. But we never would have gotten the law. You're doing something right if you're constantly being confused for being partisan in another direction. Our job is actually not to have political opinions. I mean, we do, and that's fine. But our fundamental job is to analyze difficult legal problems.

I have a very big problem with people who neither know nor care about what the law requires of them in their positions and present them in a way that people can find useful. So let's just start off with a hit list of topics, like cybersecurity. What's one thing you want to say right now about that topic? We have, over the last year, accidentally created a partisan issue out of cybersecurity. We need to undo that. How did that happen? What do you mean by now?

It happened because of the Russian hacking. It used to be that everybody agreed that cybersecurity was a real problem overseas and domestically, and we need to figure out how to, A, secure our systems, and, B, change our incentives to better protect against those bad actors. and now we have an environment in which the president of the United States denies the fact of certain important significant cyber activity. And before you can argue about what to do about it, which is about, you know, cyber vulnerabilities, you have to have this pre-argument argument that has to do with what political side you're on,

what you think about, how you feel about Vladimir Putin, And what you think about WikiLeaks, and I worry that that is going to make a lot of cybersecurity questions much, much more difficult as a policy matter to address, at least at the federal level. I'd like to hear your view on just like a statement on an encryption. Okay. Well, I would say don't rest easy on this. The issue will come back. Oh, it was even gone? What I feel strongly about is not any particular outcome of the conversation, but that we,

actually have the conversation in a serious way. The problem with what we do is that something awful happens and then we have it for a period of time until we let it go away. So what's happening now in this period in which we're not having the conversation is that more and more and more phones are showing up in law enforcement unopinable. And this is affecting more and more law enforcement agencies more and more often and we're having no debate about it. And the problem with that is then one big thing will happen and will have a giant spasmodic debate about that particular phone. Sounds like a dam being waiting to burst. Exactly. And dam's bursting is a really bad way to make policy. Do I think it's necessarily the case that Apple loses? No, I don't. I actually think

they might win. If they lose, I think they'll lose in litigation, not in legislation. The scenario in which Apple loses, or some other provider loses, is that they lose in litigation, and then they have to go to Congress in order to change the legislative landscape to undo what they've lost in litigation. And at that point, you'll see a compromise of some sort. It's fascinating because you made that entire response all about policy and policy. politics and there's an incredibly technical aspect to it. I'm remembering the history of the

Crypto Wars. Crypto War Phase 1, Crypto War Phase 2. This is arguably Crypto Wars phase 3. And it's actually more, to your point, a war of attrition because it's like these little battles being played out versus like one big, deep discussion an ongoing way. But where's a technical part of the debate where we talk about whether backdoors are even possible? It's a violation of map. I mean, I understand the concerns about law enforcement devices going dark, so-called. But it's just frightening to me that tech isn't at the same. center of that conversation. Right. So look, one of the very frustrating things about this debate is that everybody feels that way about the other side. I agree with you. In the tech world, there's a sense

that you're arguing against math. And if you talk to people on the other side who are living with this problem every day, what they will say is Apple and, you know, these companies do a terrific job building in all sorts of recovery, backdoors for purposes of service delivery. And the reason this is impossible, is that they want it to be impossible. And, you know, there's lots and lots of argument on all sides that the other side just doesn't get it. And I actually think everybody should pause before saying the other side just doesn't get it.

People should spend some time to try to look at it from the point of view of their interlocutors in the conversation because these are all functions in society that we want performed well. Yeah. I think our position is pro-national security, pro-tech. and finding sort of the ground that reaches that point of view. Okay, immigration. That's the next one on the list.

So I am not an immigration expert. I do feel very, very strongly that it is important not to confuse the victims of terrorism with terrorists. Yeah. Generally speaking, the victims of terrorists have the same ethnicities and religious backgrounds as the terrorists who kill them. And so when you look at people either in the immigration context or other contexts and you make, rash judgments about who should be admissible, who should be excludable, who should be deportable. You are, to the extent that you don't do a very good job of what the military calls distinction and actually discrimination, which is interesting word, it has a negative valence in all contexts

except military targeting, where it's a positive command to do it, right? You want to discriminate between your targets and the people around them. If you don't do a good job of being discriminating, you're very, very likely to be re-injuring victims of terrorism. So I just think there's a moral call as well as legal call to be right. Okay, since you covered it quite a bit, drone strikes and drones. The entire history of the last hundred years of warfare is a history of being better at discrimination, right? And we are more militarily effective and more protective of civilians as a result of technology and warfare. Just think about two sets of military actions against al-Qaeda-related targets in Pakistan.

One when, you know, the 3,000 people that we killed with drones and one when the Pakistani army went into the SWAT Valley and displaced 100,000 people, right? the civilian disruption, death, injury is different by orders of magnitude. The military effectiveness is also different by orders of magnitude. And these are classic hard national security choices. Are there other kinds of tech helping that discrimination? Oh, there's lots and lots. I mean, that's the whole story of modern armaments is, you know, precision munitions. And we've looked at this and developed anxiety about it because the moment

you are closest to perfect discrimination, it starts to look like assassination instead of what it really is, which is conventional military targeting. With less collateral damage. A book I wrote with Gabby Bloom, the basic thesis of it is that not merely can the U.S. government using a drone strike you from 5,000 miles away and kill you, but every individual in the world can strike each other from the same distance, cyber attacks, We spend a lot of time in the book, and I've actually done a lot of work subsequently on a form of sexual violence that we call sextortion that, you know, takes place transnationally and involves one perp, victimizing very large numbers of often underage or, you know, there's really an appalling. Is this tied to sex trafficking?

No, actually. Separate? It's a form of, I think of it as sort of remote sexual assault in which people, either steal or coax somebody into giving them a nude or sexually explicit picture. It's like revenge porn. Well, it's like revenge porn, except the stuff doesn't get released. And then you use the picture that you've obtained. Revenge black, I mean, porn, blackmail. In order to sort of extort the production of pornography.

And so this is in a Silicon Valley sense the first time sexual violence has ever been scalable. We have perps that are doing, you know, thousands of victims all over the world. world. But how do they get these? Do they hack? They do, they hack. Sometimes they hack. Sometimes they catfish. Sometimes they trick people. They pose as a boyfriend or a, if you get into one of their friends' accounts. So we actually did, I about a year ago, published a study, a Brooking study of 80s extortion cases. And they accounted for a minimum of, of 1300 victims. And I think more, probably more like 6,000 victims. Growing exponentially.

It's a huge growing problem. But for present purposes, the relevant fact is that it's remote, like a drone strike, right? It's a remote form of violence. Scalable, as you said. It's scalable. And the power to do it is in the hands of the individual, right? And so the question that we took on in the book is a sort of governance question is, how do you govern a world in which anyone can attack anyone from anywhere?

And the idea is that the technologies give people both heightened capacity to participate in defense, but also heightened vulnerability to attack. Yeah, that's a really interesting way of framing it because we tend to talk about the asymmetries and how technology levels asymmetries, but you're talking about it from like 360 angles. Right. It's technology levels all the asymmetry. Exactly, exactly. And so you end up with a world of many to many threats and defenses.

Right. And the question is, if you think about that from a liberal, political theory tradition in which, you know, the government, your government is responsible for protecting you. Well, if you're being extorted from, you know, Botswana and your government has no functional capacity to do anything about that, in what sense is, you know, in what sense is that your government owe you in that situation? What is the government of Botswana owe you in that That's fascinating because it's essentially displacing the location of government from a physical, it's not physically co-located anymore.

Correct. Governance is in the cloud in some aspect. Exactly. And so, you know, the question that we dealt with in the book is how do you imagine governing such a world in which governments, corporations, individuals all have both vulnerability to remote transnational attack, but also capacity to engage in it? Well, and also like what good is perfecting discrimination, right? if everybody, if it's proliferated everywhere,

if everyone is waging war on everyone and there's no governing. So just to give you like a very tangible example of this that you've like all experienced on an email from somebody in Nigeria who is just itching to give you $10 billion in gold bullion. And if you think about that, which is such a routine part of our existence, these scams, those, that was unthinkable 20 years ago, right? That somebody could attack you from Nigeria,

much less that you would be attacked every day from Nigeria. And that's a sort of kind of harmless, in most cases, example of the world of many to many threats and defenses. But who do you look to for defense against that? You don't look to the government. You look to the provider of your spam filter. You're vulnerable to individuals that you never imagined yourself to be vulnerable.

And you look to a very different model of defense than we all grow up in sort of civics, thinking of, you know, what the function of government is. And who's responsible for it? Exactly. The whole axes of how we used to define things has just been turned upside down, inside out. If you're not left, right, we don't have Democrat, Republican. Like, do you have, like, any working mind frameworks for what labels we could apply?

Yes, I want to answer this in my non-lawfare capacity. Yes. But, look, I don't care if somebody's a liberal or conservative. That's not predictive to me anymore of how they're going to be interacting with our current political reality. The relevant question to me is when you look at this populist wave that we're experiencing, do you look at it, on the other hand, as areas where there are some points of commonality and some points of difference? Do you look at it as, you know, with a large reservoir of sympathy but reservations? The answers to those questions will not break down

according to left-right lines. Yeah, agreed. And I think the broad question is really how do you feel about elites versus mass movements? Interesting. That's a framing you would apply. That's the spectrum you think about. It's the spectrum I think about. It's an imperfect understanding of it to be sure, but I think it works much better than a left-right axis. The other axis that's useful is how do you feel about foreigners? And so then the question becomes along what axes do you share that sense that foreigners are fleecing the United States? Do you share it in the immigration space? Do you share it in the trade space?

Do you share it in the financial sector space? Do you share it with respect to our allies and our overseas military commitments? One of the things that most alarms me is us versus them conception of the world. And I think one way to understand the divisions in our politics right now is across how many sectors, does that seem like a congenial way to you, observer to understand our place in the world. Okay, Russia. Adversary foreign power, don't confuse it with anything else.

It is led by a person who does not have the United States' best interests at heart and who wants to reestablish hegemony over a region that involves a lot of countries that don't want to be subject to Russian hegemony and also has interests in protecting certain regimes, particularly in Syria, that we really. really don't have an interest in protecting. And so the authorities to exercise U.S. government power in the confrontation with Russia is going to be a predominant theme over the next few years. You described somewhat your colleagues having a plaque made, the handmaid and of power. What's the story behind that?

So back when the world thought of lawfare as a group of right-wing apologists for government power, Glenn Greenwald wrote a piece about me, I guess, back in one of his... Benjamin Wittes, not even a lawyer. Yeah, no, his major criticism of me was not that I wasn't even a lawyer. It was, I forget the exact words that he used, but my distillation of it was that he called me a handmaiden of power. And so we used to joke around that I was a handmaiden of power.

And I actually just taught a class on national security law at Georgetown, which we called handmaidens of power. You did it. I did. Even on the syllabus. And so, you know, when my managing. editor, Wells Bennett, left a year and a half ago, left the site. He presented me with a plaque, which was a, you know, fake, of course, handmaiden of power award from the intelligence

community. Thanks for towing the company line. And you've been a handmaiden of power ever since. Well, no, and I think I even tweeted an image of it, which people immediately took seriously and believed that something called the... You're not allowed to joke on the internet. Exactly. We have a little joke around now. That's not the way people see us anymore, but it is still what we call ourselves. That's great. Well, Ben, thank you for joining the A6NZ podcast. Thanks for having me. This was fun. By the way, I noticed you have like a helmet. Did you bike over here? No, I segued. I'm like, wait, you segued over here? Yeah, it's my principal mode of transportation. I mean, just like, why not a bike? You know, it's Washington. It's some of the year here. It's unbelievably

hot and humid. And I just don't really want to show up for work, drenched in sweat. And I get exercise lots of other ways. And besides, I like being outside on the Segway, you know, adults, yeah, adults always think you're a dork, but children think you're a God. And that's a trade I'm totally comfortable with. That's great. Well, you've got to go segue right on out of here.