The Program on Human Rights welcomed Pamela Merchant and Kristen Myles to Stanford on March 4 as final speakers in the winter course U.S. Human Rights NGOs and International Human Rights. Ms. Merchant has served for the past nine years as executive director of the Center for Justice & Accountability, the leading U.S.-based organization that pursues international human rights abusers through litigation in U.S. courts. Formerly a federal prosecutor, Ms. Merchant has frequently testified on human rights issues before the U.S. Congress; currently serves on the Advisory Council for the ABA Center on Human Rights; and is a director of the Foundation for Sustainable Rule of Law Initiatives. Ms. Myles is a litigation partner in the San Francisco office of Munger, Tolles & Olson and is repeatedly named among California's “top women lawyers” by the Daily Journal. In her practice of complex business litigation, Ms. Myles filed a “friend of the court” brief in the 2014 case of Shell Oil vs. Kiobel which in the U.S. Supreme Court decided that U.S. corporations could not be sued in U.S. courts under the Alien Torts Statute for alleged human rights abuses abroad.

Ms. Merchant’s strongly held view is that some human rights violations are so egregious that they should be litigated in any court system, even if they occurred outside the country in which the case is argued. Ms. Merchant argued that courts create a record of truth about human rights violations, and that shedding the light of truth on these terrible events will make the world a less violent place. The Center for Justice and Accountability has provided legal advice for human rights victims to pursue their claims of human rights abuses in U.S. courts when abuses occurred in countries such at El Salvador, Nigeria, South Africa, and Myanmar, using U.S. federal legislation of the Alien Torts Statute and the Torture Victims Prevention Act. The CJA’s position is that the Nuremberg Trials of the World War II genocide atrocities created an obligation for all nation states to pursue justice in their courts under the international law principle of universal jurisdiction that holds that egregious human rights abuses are the concern of all humanity, wherever they have taken place.

Ms. Myles has represented U.S. corporations against whom human rights victims allege were directly or indirectly the instigators of their violations by virtue of pursuing corporate economic interests abroad in collusion with corrupt officials who resort to violence, such as by pushing people off their land or working in industrial settings in sub-standard conditions. Ms. Myles pointed that U.S. corporate executives do not instruct their overseas operators to be violent; instead, they are working through long chains of delegated authority in their off-shore operations, and these off-shore people act beyond their corporate mandate. Most importantly, the international legal principle of universal jurisdiction is the “law of nations” so it is directed to national governments and not to private corporations.

After Ms. Merchant and Ms. Myles summarized their individual positions, they engaged in dialogue with Professor Helen Stacy, director of the Program on Human Rights. Discussion covered the pros and cons of using the U.S. court system for transnational issues, given that such cases are lengthy and expensive; whether the high visibility of such cases had a deterrent effect on violators abroad, or may lead to the deportation of a violator who had subsequently settled in the U.S., or would prevent an alleged perpetrator’s application to emigrate to the U.S.; the success of victims being paid money from their perpetrator under a civil damages award ordered by a U.S. court; whether this U.S. litigation poses a diplomatic problem for the U.S. in its international operations; how standards on corporate social responsibility can be raised beyond litigating past practices in lengthy and expensive civil court proceedings; and the ethics of imposing higher standards of U.S. corporate standards in countries with lower standards and very high needs to improve economic conditions for their population.

Helen Stacy, Executive Director, Program on Human Rights

Former U.S. Sen. Mark Udall remembers how members of Congress gathered on the steps of the Capitol Building on the day of the 9/11 terrorist attacks. They clasped one another’s hands and spontaneously broke out singing, “God Bless America.”

It was a moving moment of patriotic bipartisanship. “It was our generation’s Pearl Harbor,” he recalled, and politics were momentarily subsumed by love of nation.

Then it was time to investigate and bring those responsible to justice.

“For many of us who were policymakers, it was time to take a crash course in understanding the tools of terrorism, trying to penetrate who al-Qaida was, who was this figure, Osama bin Laden – and then how do we respond?”

But the government went into overdrive, the Colorado Democrat believed, and put civil liberties at risk. He recalled other decisions in American history – such as the internment of Japanese-Americans during World War II – that were made in panic and secrecy.  

“It became clear to me that bin Laden’s motive was to create greater suspicion in the world, to incent us to build higher and higher walls,” he told a sold-out crowd at CEMEX Auditorium on Thursday night. His talk was part of Stanford “Security Conundrum” lecture series co-sponsored by CISAC, the Hoover Institution, the Law School, Stanford in Government and Continuing Studies.

“And in an interesting way, it led me to look at civil liberties and civil rights, which are the biggest, baddest weapons that we have,” he said in conversation with Philip Taubman, a CISAC consulting professor and a former reporter at The New York Times.

Taubman is one of the organizers of the special series has brought together nationally prominent experts this academic year to explore the critical issues raised by the National Security Agency's activities, including their impact on security, privacy and civil liberties.

On April 10, the speaker will be Judge Reggie Barnett Walton, former presiding judge of the Foreign Intelligence Surveillance Court, known as the FISA court. California Sen. Dianne Feinstein, vice chair of the Senate Intelligence Committee, will close the series before the end of the academic year.

Udall told the audience that in the powerful wake of fear that swept the nation following the 9/11 attacks, the House was presented with the Patriot Act “to strengthen and broaden our capacity to surveil those who might do us harm.”

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Udall was a congressman from 1999 to 2009 and then senator from 2009 until losing his seat in the mid-term elections last year. He had been a one-term congressman when the Bush administration put the Patriot Act to a vote on Oct. 24, 2001.

He was one of only 66 House members to vote against the act. It would then also pass through the Senate the following day.

Udall called his no-vote an unpopular one and a lonely period of his political life. But he believed the Act had been hastily drafted without due process and that some of the law’s provisions could lead to violations of privacy and freedoms.

“I was very conscious of what Ben Franklin famously said. He said that a society that trades essential liberties for short-term security deserves neither,” Udall said. “And I believed that we were strong enough to stand behind the civil liberties included in the First Amendment, the Fourth Amendment and the Fifth Amendment – including the explicit right to privacy – and that we would outlast these adversaries that were in front of us by hewing to those principles, not abandoning those principles.”

Udall also voted against the Obama administration’s four-year extension of three key provision of the act in 2011, which included roving wiretaps, searches of business records and conducting surveillance of those suspected of terrorist-related activities.

He would then gain notoriety for his vocal opposition to NSA surveillance programs in the wake of the Edward Snowden disclosures of June 2013. He became one of the staunchest critics of the U.S. spy agency for conducting massive, warrantless data grabs on millions of Americans without their knowledge.

Udall said the NSA gathers more than 700 million data sets from phone calls each day.

“I was told, don’t worry Mark, this is metadata. We just collect it; we don’t do anything with it,” Udall said. “But I realized that it wasn’t just metadata, that it was how that metadata was being used and the fact that it was a secret program and under a secret interpretation of the law.”

Udall said the metadata can be manipulated for form a pattern of an individual’s behavior, of his religious and political beliefs, his medical issues, his likes and dislikes.

“We haven’t done anything with this data and that’s all well and good,” he said. “But history shows us that the government will overreach, particularly when it operates in secret. The Fourth Amendment was put in place for a reason.”

He also worries the metadata program has undercut the trust in the intelligence community.

“I want to be clear: We need to gather intelligence,” he said. “There are forces at play in the world that would do us great harm. But again, we ought to gather that intelligence in ways that fit with what the public understands.”

Udall called on the audience to push for transparency reforms to the FISA court – which oversees requests by the NSA and FBI to issue surveillance warrants against suspected foreign intelligence agents. From 1999 to 2012, the court has granted nearly 34,000 warrants; only 12 have been denied.

Udall believes that privacy, which is implicit in the Bill of Rights, is essential to all other American freedoms that are protected by law.

“This has long-term and important ramifications about how we look at ourselves as Americans,” he said. “We all need to be in the mix; we all need to be having these discussions to be ever-vigilant and protect these fundamental freedoms.”

U.S. Navy Adm. Cecil D. Haney, the U.S. Strategic Command commander, hosted CISAC Co-Directors David Relman and Amy Zegart as well as CISAC faculty and fellows at Offutt Air Force Base in Nebraska on March 30-31, 2015, to promote military-to-university cooperation and innovation, and provide a better understanding of USSTRATCOM’s global missions.

The visit follows Haney’s trip to Stanford last year, during which he held seminars and private meetings with faculty, scholars and students to discuss strategic deterrence in the 21st century. Those discussions focused on reducing the U.S. nuclear weapons stockpile while maintaining an effective deterrent, the integration of space and cyberspace in nuclear platforms and the congested, contested and competitive operating environment in space.

“Developing and maintaining partnerships with security experts from the private sector and academic institutions like CISAC enables USSTRATCOM to view the strategic environment from a different perspective and adjust our decision calculous accordingly,” Haney said. “We are excited about this unique opportunity to exchange ideas and share information with this prestigious organization.” 

Haney opened the discussions by presenting a command mission brief, in which he described USSTRATCOM’s nine Unified Command Plan-assigned missions, his priorities as commander and his ongoing effort to build enduring relationships with partner organizations to exchange ideas and confront the broad range of global strategic challenges.

Zegart, who is also a senior fellow at Stanford’s Hoover Institution, said getting to see and experience how USSTRATCOM operates first-hand was “an eye opener.”

“It’s one thing to think about deterrence, it’s another to live it,” she said. “When you go to each other’s neighborhoods, you gain a better understanding of where each side is coming from … and that’s enormously important to us in how we think about deterrence and what we can do to help USSTRATCOM and its mission.”

“These kinds of exchanges have cascade effects on young people; how they think about civil-military relations [and] how they understand what our military is doing,” she added.

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The delegation also received a tour of USSTRATCOM’s global operations center and held discussions with subject matter experts on strategic deterrence, cyber responsibility and nuclear modernization.

“As a cybersecurity fellow, it was fascinating to visit the global operations center and the battle deck to see the role that cybersecurity and information technology plays in the strategic deterrence mission,” said Andreas Kuehn, a CISAC pre-doctoral cybersecurity fellow from Switzerland. “At CISAC, we often discuss deterrence from a theoretical perspective, so it was very insightful to hear from people who work in [this field] and see how they deal with deterrence in an operational manner.”

The two-day visit concluded with an open discussion, during which CISAC and USSTRATCOM members discussed the most effective means to share information, plan future engagements and continue working to build on the mutually beneficial relationship between the two organizations.

“Sometimes people talk [about strategic issues] in the abstract and it becomes difficult to understand what is happening on the ground and in the real world,” Kuehn said. “I think [USSTRATCOM] took extra steps to keep the conversations open and concrete.”

USSTRATCOM is one of nine Department of Defense unified combatant commands charged with strategic deterrence, space operations, cyberspace operations, joint electronic warfare, global strike, missile defense, intelligence, surveillance and reconnaissance, combating weapons of mass destruction, and analysis and targeting.

Retired Army Lt. Gen. Karl Eikenberry stood before a team of soldiers preparing to deploy to Afghanistan. Their mission would be quite different from the ones he led in the South Asian country during the height of the war.

The officers of the U.S. Army’s 3rd Bridge Combat Team, 101st Airborne Division, in Fort Campbell, Ky., would soon be leading a team of about 2,000 soldiers to provide operational support and advise Afghan national forces as the U.S.-led Coalition forces withdraw and the country takes over the battle against the Taliban.

“I spoke to them about the history of the U.S. diplomatic, development and military activities in Afghanistan since 9/11,” said Eikenberry, now the William J. Perry Fellow in International Security at the Center for International Security and Cooperation.

Eikenberry was a military commander in Afghanistan from 2002-2003 and then again from 2005-2009. He would later serve as U.S. ambassador to Kabul from 2009 to 2011.

Col. J.B. Vowell, a former CISAC Senior Military Fellow (2012-2013), was leading the brigade, which deployed in late January for a nine-month tour. He had invited Eikenberry to speak to his troops, having met him while he was at Stanford.

The mission of his tour is to advise and protect advisors and, if necessary, support Afghan forces in extreme combat situations. Though a brigade typically has 5,000 soldiers, Vowell’s smaller, tailored team is a sharp departure from previous missions.

Former CISAC military fellow and U.S. Army Col. J.B. Vowell, left, and Ret. U.S. Army Lt. Gen. Karl Eikenberry, at Fort Campbell, Ky., on Jan. 13, 2015.

“So they’ve had to think hard about not only their advisory role, but also who they will protect their own forces with, and what to do if they are called upon to support Afghan forces in an exceptionally dire situation,” said Eikenberry.

These types of operations are part of the central challenges facing the U.S. military today, Eikenberry said, adding that Vowell’s time as a senior military fellow at CISAC helped prepare him for his mission.

“The resources available at FSI help prepare officers for these challenges,” said Eikenberry, who is also an affiliate of FSI's Center on Democracy Development and the Rule of Law. “CISAC does very sophisticated studies in contemporary security problems; CDDRL does very interesting work in the development of political institutions in difficult environments. These are resources military fellows can draw upon.”

Military Fellow Program launched in 2009

When former Secretary of Defense William J. Perry returned to Stanford after his service in Washington, he and current Secretary of Defense Ashton Carter started the Preventative Defense Project at Harvard and Stanford. The project focuses on forging nongovernmental, Track II security partnerships with Russia and its neighbors, engaging China and addressing the lethal legacy of Cold War weapons of mass destruction.

Deborah Gordon, executive director of the project and manager of the military fellows program, said Perry believed that bringing in acting military officers to learn more about strategic defense policy would aid the mission to prevent future threats to global security. 

“Perry started asking the various heads of the military services to allow a fellow to come to CISAC and be more broadly engaged in the university,” she said.

The Freeman-Spogli Institute for International Studies (FSI), the umbrella organization for CISAC and other research centers, hosted its first senior military fellow in 2009.  FSI now hosts five, three from the Air Force and two from the Army. Fellows go through a rigorous selection process and attend Stanford for one year to conduct research.

CISAC Senior Research Scholar and retired U.S. Army Col. Joseph Felter helped secure the Army officers for the first fellowships. He had attended Stanford as an active duty officer from 2002-2005 and has a Ph.D. in political science from the university. 

“When I came back to do a War College fellowship from 08-09, the only sponsored spots were at Hoover,” he said, referring to the Hoover Institution at Stanford. “It’s a great institution but it struck me as a bit insulated from the rest of the campus. With the support of the Army War College I volunteered to take the lead on putting together a proposal.”

He persuaded the War College that there was demand for fellows and they approved the establishment of two new fellowships at CISAC. Felter, Gordon and others at CISAC knew that civilian scholars and students at the university would in turn benefit from interacting with active-duty officers for their perspective on the U.S. military around the world.

Among the first fellows were Viet Luong, who is now a one-star general and deputy commander of the 1st Cavalry Division, and Charlie Miller, who is working directly for Chairman of the Joint Chiefs of Staff General Martin Dempsey as his senior advisor.

Former CISAC Military Fellow Viet Luong, now a one-star general, teaches a simulation class during his 2011-2012 fellowship.

In addition to meeting current and former government and military leaders and conducting research, fellows participate in Stanford classrooms and seminars.

Army Lt. Col. Dennis Heaney is a senior military fellow at CISAC this academic year. His research focuses on the strategic policy of the Regionally Aligned Forces (RAF), soldiers from all units of the U.S. Armed Forces that support combatant commands.

Heaney is working to delineate out the costs of altering the role of conventional forces - traditionally trained to fight against other national militaries - to fight unconventional wars that are not restricted to any particular geographic zone.

“The real dilemma is conventional Army forces are made for land warfare against other forces. They are not really cut out for irregular warfare,” Heaney said of the RAF. “When you try to do regional engagement it takes you away from your main mission. I may help you, but there is an opportunity cost. Trying to prepare for both regular and irregular warfare takes away from each one. It’s kind of a zero-sum game. So I’m trying to critique that and make recommendations.”

Heaney has been in the Army for 24 years. He started out in the infantry as an officer and then entered the Special Forces in 1997. He is likely to deploy to Afghanistan with the Special Operations Joint Task Force after he completes his fellowship.

“The biggest benefit of being a fellow at Stanford is exposure to high-level folks like Karl Eikenberry, Gen. James Mattis at Hoover, Adm. James Ellis, and former Defense Secretaries William Perry and George Schultz, as well as current Secretary of Defense Ash Carter when he was here for a short time,” Heaney said.

Carter was a visiting scholar at FSI last year, until he became the nation’s 25th secretary of defense in February.

Heaney participated in CISAC’s signature class, “International Security in a Changing World,” playing the role of military commander during simulations that are the hallmark of the class.

“One simulation was about deciding between ground or air options for a high-value target in Afghanistan,” Heaney said. “Last week we did a simulation about the Islamic State and what options exist.”

Even after they leave, military fellows maintain close ties to Stanford.

Eikenberry is slated to teach a course next term about America’s post-9/11 intervention in Afghanistan.

“I’m hopeful that we’ll be able to Skype-in to Col. Vowell’s headquarters,” he said. “I think it would be powerful for the students, after reading essay after essay about the Afghanistan intervention, to actually talk to one of our military leaders currently operating there on the ground.”

There is an effort underway to expand the military fellows program beyond FSI.

“We envision a future where military fellows can embed in the professional schools, like law and business, or in departments like engineering and political science – and even private tech companies like Google and Palantir,” Gordon said. “We want to engage Stanford and Silicon Valley in helping solve our national security problems.”

Joshua Alvarez was a CISAC Honors Student in the 2011-2012 academic year.

Former U.S. Sen. Mark Udall gained notoriety for his vocal opposition to National Security Agency surveillance programs in the wake of the Edward Snowden disclosures of June 2013.

Before losing his seat in the mid-term elections last year, the senior senator from Colorado had become one of the staunchest critics of the U.S. spy agency for conducting massive, warrantless data grabs on millions of Americans without their knowledge.

Even before the Snowden leaks, Udall had warned on the Senate floor in 2011 that the Patriot Act was being interpreted in a way to allow domestic surveillance activities that many members of Congress and the American public do not understand.

"Americans would be alarmed if they knew how this law is being carried out," he told fellow senators before he introduced amendments to the Patriot Act that would have secured tougher privacy mechanisms. The act was renewed without the amendments.

Udall – who served on the Senate's Intelligence and Armed Services committees – will be in conversation with Center for International Security and Cooperation Co-Director Amy Zegart Thursday, April 2, at 7:30 p.m. in CEMEX Auditorium as part of Stanford's Security Conundrum lecture series. The event is open to the public but an RSVP is required by 5 p.m. April 1.

The special series has brought together nationally prominent experts this academic year to explore the critical issues raised by the NSA's activities, including their impact on security, privacy and civil liberties. The series ends April 10 with a public conversation with Judge Reggie Barnett Walton, former presiding judge of the Foreign Intelligence Surveillance Court, known as the FISA court.

The Foreign Intelligence Surveillance Act of 1978 empowered the FISA court to oversee government requests for surveillance of foreign intelligence agencies. During its existence, the court has granted more than 30,000 warrants; it has denied only 11.

Walton, in conversation with Stanford Law School Professor Jenny Martinez, will explain the role that the secretive institution attempts to play in maintaining the balance between civil liberties and national security.

"We're delighted to end the Security Conundrum series with a view from Congress and the courts," said Zegart, who is also a senior fellow at the Hoover Institution. "Holding serious campus-wide conversations about issues of national importance is an essential part of the Stanford experience."

Zegart said CISAC and Hoover would conduct a similar series on international cybersecurity challenges in the coming academic year.

Udall, the third speaker in the series, also advocated for the declassification of the Senate Intelligence Committee's study on the CIA's enhanced interrogation program. The post-9/11 program allowed the government to ship suspected terrorists to secret overseas prisons and subject them to waterboarding and other torture techniques.

Gen. Michael Hayden, the former director of the NSA and CIA who has defended the government surveillance programs, kicked off the Security Conundrum series in October. In that talk, he said the metadata collection "is something we would never have done on Sept. 9 or Sept. 10. But it seemed reasonable after Sept. 11. No one is doing this out of prurient interests. No – it as a logical response to the needs of the moment."

The second speaker in the series, journalist Barton Gellman, gave a detailed account of his relationship with former NSA contractor Snowden and how he worked with him to reveal the details of the NSA's global and domestic surveillance programs.

One of the first Snowden revelations, Gellman said, was the top-secret PRISM surveillance program, in which the NSA tapped into the servers of nine large U.S. Internet companies, including Google, Microsoft, Yahoo and Facebook. Snowden said he believed the extent of mass data collection on American citizens was far greater than what the public knew.

The PRISM program allows the U.S. intelligence community to gain access from the tech companies to a wide range of digital information, including audio, video chats, photographs, emails and stored data, that enables analysts to track foreign targets. The program does not require individual warrants, but instead operates under the broad authorization of the FISA court.

"I asked him very bluntly, 'Why are you doing this?'" Gellman said of Snowden.

"He gave me very persuasive and consistent answers about his motives. Whatever you think of what he did or whether or not I should have published these stories, I would claim to you that all the evidence supports his claim that he had come across a dangerous accumulation of state power that the people needed to know about."