Reisman’s Rules: Placing Intelligence and Collective Security in Context Two Years After Russia’s Full-Scale Invasion of Ukraine
By James E. Baker[1]
Introduction
Russia’s war of aggression against Ukraine is a war against international law and the international system of order since the adoption of the UN Charter. Many debates about instances of the U.S. use of force are debates about the meaning of “self-defense” or the facts behind such assertions. Russia’s invasion is different. Putin does not seek to interpret or reinterpret international law; he seeks to eradicate the concept of international law. As such, this war presents an existential threat to world public order, to use Michael Reisman’s vernacular. The outcome will determine the shape of the twenty-first century and the role of international law, if any, in regulating international relations in the national security space. The outcome will likely also determine if NATO survives, and perhaps, if Taiwan survives. In both cases, survival may depend on what lessons are drawn from events in Ukraine and who will correctly identify and apply those lessons first.
The first part of this Essay derives five principles from Professor Reisman’s scholarship. Let’s call them “Reisman’s Rules.” These principles emerged from the collective scholarship of Harold Lasswell, Myres McDougal, and Michael Reisman. They matured and were honed by the experience of the Cold War and the post-Cold War interregnum that followed. The purpose of this Essay is to consider how Reisman’s Rules might enhance our understanding of the lessons to derive from Russia’s war of aggression against Ukraine with respect to the use of intelligence and collective security. Professor Reisman would call this the process of appraisal. Emphasis is placed on intelligence because, as Reisman identifies, intelligence is the first function of national security decision-making. Collective security, in turn, is vital to Ukraine’s understanding of “victory” and its future security and NATO’s future security.
Russia’s full-scale invasion commenced on February 24, 2022. However, Russia has been at war with Ukraine at least since 2014 when it seized Crimea and its proxies commenced the Donbas War. Ukrainians might argue that Russia has been at war with Ukraine in a clandestine manner since Ukrainian independence in 1991. As is known, this is Europe’s largest war since World War II. What may be less known in the United States is the scope of the destruction. Two years after the full-scale invasion, Ukraine is thought to have suffered at least 190,000 casualties and Russia at least 315,000and likely many more; nearly 1.5 million homes have been destroyed. The Prosecutor General of Ukraine has opened over 100,000 war crimes investigations. A March 2023 World Bank study placed the cost of rebuilding Ukraine at $411 billion. For comparison, the Marshall Plan cost $150 billion in today’s dollars. Also not fully understood in the United States is why Ukraine matters to U.S. security.
Whether Russia’s aggression will stop in Ukraine depends on how one interprets the meaning of deterrence and the lessons of Munich and the Balkans. Recall that Russia, or its proxies, already occupy 20% of Moldova and Georgia. If Russia is not stopped in Ukraine, will one or more of the frontline states be next—the Baltic states, Finland, Slovakia, or Poland, for example? And if they are, it is the United States and its armed forces that may find itself at war, at a cost in life and resources that dwarfs our current commitments to Ukraine.
The goal of this Essay is to introduce the next generation of national security practitioners and readers of the Yale Journal of International Law (YJIL) to Michael’s scholarship so that they too, as the Cold War generation did before, and as I learned to do, might better inform their responses as national security practitioners and thought leaders. That is not to suggest that one might, could, or should seek to capture the essence of 335 articles in five short rules. The rules are a loss leader, an indication of the benefits to come from the examination of Michael’s scholarship.
The thesis of this Essay is that applied scholarship matters to world public order and that Reisman’s Rules are abiding principles that, if applied wisely and well, will help address the challenges ahead.
I. Five Rules for National Security Practitioners
Professor Reisman has published an astounding and outstanding number of books and articles. As I described during Michael’s Festschrift in 2009 and in the YJIL volume that followed, Michael speaks in publishable prose. Indeed, I was so curious about Michael’s capacity to do so that, having established that Michael once was a child and not immediately a professor, I asked a high school classmate of his whether Michael wrote book reports or just books? “Just books” was the answer. So far, thirty and counting. Many of Michael’s publications are addressed to international law. Therefore, I suspect that many readers of the YJIL consider Michael an international lawyer. After all, he teaches international law, he writes about international law, and he has served on the boards or as a commissioner on numerous international law advisory committees, commissions, and journals.
Let me set the record straight: Michael is a polymath. Michael is a student of government. I say student because of the emphasis Michael places on life-long learning. I say government because Michael approaches his work as a social scientist as well as a lawyer, always in interdisciplinary fashion, assessing the policy, law, and process behind national security decision-making. Law, Michael writes, is about making decisions. His scholarship recognizes, as experience shows, that culture, personality, and process impact national security decision-making more than any other factors. He is an intelligence analyst, objectively assessing and describing trends in international practice. And yes, Michael is an international lawyer, but he is also a national security lawyer because he is equally conversant and informed on all of the national security law disciplines, including constitutional law, international law, intelligence law, and military law.[2]
National security law serves three purposes. It provides the authority to act and the boundaries of lawful action, it provides essential process, and it expresses essential values. I learned that from Professor Reisman, although he never quite put it that way. Rather, Michael writes about the distinctions between operational and aspirational law, the seven functions of decision-making, world public order, and human dignity. Let’s consider each.
A. Operational and Aspirational Law.
Law school courses, like policymakers, tend to focus on the first purpose of law, the authority to act and the boundaries of action. Students are taught to identify the law and apply it to facts. Michael starts with a more fundamental jurisprudential question: What is law? He then identifies law and distinguishes between what is operational law (binding and effective) and aspirational law (what we might wish the law to be). Distinguishing between operational and aspirational law is the essence of what is described as the New Haven School of legal realism. Legal realism is not cynical; it is descriptive and useful.
Policymakers need to be told the bottom line: What is the law? Do they have the authority to act or not? And they need to know who may exercise this authority, what constraints apply to that authority, and where the authority ends. Because the constitutional law of national security is not always clear or settled, lawyers not only need to objectively identify “the law,” but indicate the strength of the law, along with the arguments for and against the authority to act. They also should distinguish between text, derived authority, theory, and practice. In other words, policymakers and lawyers should not pretend theory has the strength of text. Because international law is not always clear, settled, or self-executing, and because it cannot derogate from inherent constitutional authority, policymakers also need to know what constraints, if any, international law places on the conduct of other states and whether those constraints are binding and effective. Without such objective assessment, policymakers may assume a measure of security or collective security that is not well founded. An operational assessment of international law will also allow policymakers to assess the likely international reaction to their potential action, including whether the United States will be acting alone, in a coalition of the willing, or perhaps pursuant to United Nations Security Council (UNSC) authorization. Distinguishing between operational law and aspirational law is not cynical; it is good lawyering.
B. Essential Process.
Good lawyering requires good process and the courage to create and uphold good process. Lawyers are said to love process; policymakers are said to hate it, equating process to bureaucracy. “Legal process” is worst of all. (If you want to clear a room of national security officials, walk into it and announce that you are a lawyer and you are “here to bring them process.”) However, effective national security decision-making requires good process. Good process is not necessarily more process. Good process is timely, contextual, and meaningful. It provides for unity of command and message, the fusion of intelligence, and dissent, among other virtues. Good process also addresses the “pathologies” of national security decision-making (Michael’s phrase) like secrecy, speed, cognitive bias, and what I call the national security imperative, the tendency of security specialists to overreach. The security specialist, for example, trying to catch a spy or prevent a terrorist attack will invariably err on the side of investigating twenty innocent people too many rather than risk falling one spy or terrorist short. The lawyer understanding this dynamic will know to meet the specialist before the edge of the law and guide them away from the precipice, preserving finite resources and protecting essential values.
Most challenges in government are driven by leadership or personality. I learned this from Michael and observed it in practice. If you want better results, look to good process. You cannot be an effective national security lawyer without understanding the culture of agencies and the processes of decision. That is why Michael approaches law as a social scientist and historian, and not just as a lawyer.
For Michael, good legal process includes seven decision-making functions: Intelligence, Promotion, Prescription, Invocation, Application, Termination, and Appraisal. The vocabulary is not important. The descriptive and proscriptive process is. National security practitioners need to make purposeful decisions about process and ensure that it includes the functions stated above, in context, or their corollary functions. Intelligence and appraisal are especially crucial to include for good national security process.
C. The Importance of Intelligence.
For Michael, good process starts with intelligence, the first function of decision-making. No wonder, then, that Michael was studying and writing about intelligence early in his career and has ever since. This was long before intelligence was (sometimes) included in courses about international law or foreign relations, and long before the advent of national security law as a core legal discipline. The intelligence instrument, of course, informs the use of all the instruments of power. Intelligence constitutes the senses of national security decision-making and warning—the eyes, the ears, the touch, and smell of national security. As a result, Michael has always integrated an understanding of intelligence into his study of law and government.
Here is how Michael defines intelligence: “The intelligence function comprises the gathering, evaluation and dissemination of information relevant to decision-making, and may include prediction based on such information, as well as planning for future contingencies.” Note how this definition and Michael’s emphasis on the identification of trends aligns with CIA Director Bill Burns’s test for intelligence: “The defining test for intelligence has always been to anticipate and help policymakers navigate profound shifts in the international landscape—the plastic moments that come along only a few times each century.” Of course, one way to inform decision-making is to prevent surprises and warn of attacks, two key additional components of the intelligence function.
A valid definition of intelligence leads to at least five takeaways. First, intelligence does not just derive from the intelligence community or agencies. As we will see with Ukraine, intelligence emerges from multiple open and private sources. Second, intelligence does not describe the quality of the information. It describes its purpose and often its derivation from sources and methods. Third, a definition of intelligence should prompt policymakers to ask the question of why we are expending resources or placing lives at risk. If the function or activity does not meet the definition of intelligence as information that informs policy or prevents surprise or attack, one might ask whether the risks are worth the gain and whether the resources might be better used elsewhere. Fourth, lawyers need to understand the difference between intelligence and evidence: what it is, where it comes from, and whether it is reliable. Consider that most debates about anticipatory self-defense and sometimes self-defense are at heart debates about facts, the intelligence predicate for acting. Finally, as Michael ably describes, intelligence can be (but isn’t always) a source of stability. Accurate knowledge about an opponent’s capabilities and intent can mitigate the risk of escalation (or prompt its urgent necessity). It can also inform diplomacy in a manner that deters conflict. If one believes in world public order and international law, as Michael does, one should eschew blanket statements about the legality or illegality of intelligence practice, but rather, as Michael does, engage in contextual analysis, considering all three purposes of national security law.
D. Context Matters and the “All Tools” Rule.
Policymakers should consider using all the tools available to solve national security challenges. For sure, not all the tools are apt in every context. The art of national security decision-making is to determine which tools to use in context and how to do so wisely and well. Therefore, policymakers should eschew paradigm traps, like treating a challenge solely as a military matter or a law enforcement matter. They should also avoid blanket disavowals regarding the use of lawful national security tools, like covert action. Context matters. I learned this from Michael before observing it in practice. ( have not conducted a study and do not have the data to prove it, but I would venture a guess that “context” is used more often in Michael’s writing than “and” and “the.” No wonder. Facts matter and Michael has a lawyer’s eye and intelligence analyst’s eye for the circumstantial nuance that should affect policy choices and legal judgments.) Policymakers should also understand that law is itself a national security tool and value as we will see below.
E. Preferred Outcomes.
The most effective national security lawyers I have observed do not just tell their clients what the law is, they tell them “why the law is,” and why and how the law can lead to preferred outcomes. This seems especially important to do with the international law relevant to the resort to force (for Latin speakers, jus ad bellum) and the law relevant to the means and methods of warfare (for Latin speakers, jus in bello). Put a different way, where law is seen by decision-makers as a constraint, (i.e., limiting options), lawyers should articulate why following the law might or will lead to better security results. For example, on the eve of the full-scale Russian invasion of Ukraine, I was asked by an audience of Ukrainian government officials and professors why a nation facing existential risk should follow the law. Here was my answer:
As George Washington was the first to state in U.S. practice: discipline and obedience to law are the difference between an armed mob and a professional military. Professional militaries win wars; armed mobs commit war crimes.
Adherence to law is often consistent with the “Principles of War.” The legal principle of proportionality in targeting, for example, equates with the military principle of economy of force. Resources are finite, and one should only use those resources needed to accomplish the mission. Likewise, the humane treatment of detainees is a legal requirement, but it also can yield security results in the form of intelligence and a willingness of the opponent to surrender.
The military will to fight, and civilian will to resist, is based in part, on adherence to law and a belief in the moral virtue of one’s war effort. Mothers and fathers do not want to send their children to serve in militaries that commit war crimes. Public support will also wane for conflicts perceived as unjust and/or in which the military uses unlawful means.
International support, especially from the United States and NATO depends on adherence to law, whether that support comes in the form of weapons, information, or a willingness to absorb the indirect costs of conflict.
Although absent in the case of Russia, adherence to law on the battlefield may lead to reciprocal adherence, including in the treatment of detainees. Even where it does not, it avoids “What Aboutism” propaganda and the equating of serial war crimes with singular war crimes, a Russian propaganda specialty.
Adherence to law also reflects the values of the nation a society.
Law and a culture of law are also a bulwark against corruption, in times of conflict, peace, and during post-conflict reconstruction when substantial sums of money will be needed to rebuild Ukraine.
Finally, the first “modern” military code of conduct was adopted during the American Civil War, the 1863 Lieber Code, a period of existential risk to the United States. Existential risk is not a reason or excuse to avoid the law, it is an argument to harness its virtue as a security as well as a moral tool.
Policymakers sometimes complain that intelligence analysts offer up risk assessments but rarely articulate opportunities.[3] The same is sometimes said of lawyers; they identify problems with greater alacrity than solutions. Effective national security lawyers never lose sight of the mission: to support and defend the Constitution or, as National Security Advisor to Vice President Gore Leon Fuerth has said, “to get to yes with honor, with the Constitution intact and the Nation well taken care of.”
Michael may be realistic in his assessment of the law, but he has never lost sight of his preferred outcomes: world public order and human dignity. Law can, but does not always, address both. Russia’s invasion of Ukraine threatens both. Lawyers who not only advise decision-makers on what the law is (the authority to act and constraints) but also identify preferred outcomes (how the law can be used to accomplish the mission) will find it easier to get into the decision-making room and to stay there. Policymakers will seek this kind of lawyer out. But it requires a lawyer who is proactive in his or her role and in his or her advice while always being clear about what is law and what is legal policy, the identification of a preferred methodology or outcome.
The identification of preferred outcomes also addresses the critics who decry legal realism as a bit too realistic, too tolerant of the powerful states who have too much of a say in how customary law is defined and practiced. My response, informed by Michael, is that if you do not like it, change it. This is true of process as well as law. It may not be easy to do, but it is a whole lot harder if you have not identified the preferred outcome you seek to achieve.
II. Ukraine Lessons Learned First Draft: Reisman’s Rules Applied
Two plus years following Russia’s full-scale invasion of Ukraine, the war continues. Both sides are seeking to identify, learn, and apply the lessons learned on the battlefield, engaging in Michael’s process of “appraisal.” It is an urgent national security task. The side that derives and applies the right lessons and does so first may achieve tactical or strategic advantage on the battlefield. We have seen this play out with drones and air defense, as each side develops new capabilities and methods with the other side seeking to counter with electronic countermeasures and other methods Appraisal, including immediate appraisal, may determine Ukraine’s survival.
What are some of the emerging lessons and how, if at all, do they relate to the five Reisman Rules? This Section will briefly look at two core Reisman subjects the intelligence instrument and collective security. It is offered in brief sketch and as a first draft, for much is still unseen, unknown, and unfolding.
Intelligence. The war against Ukraine started with intelligence operations seen and unseen, including cyberattacks and disinformation. The war has continued with intelligence. All the tools are in use. One writer has called the war “an intelligence revolution.” Revolution or not, trends regarding the use of the intelligence instrument are emerging. Some of these trends are new. Some are not new, but the war represents a dramatic increase in the volume of their use and value. And some trends are “old and true, like the need to protect sources and methods, the risk that politicians will selectively use intelligence for political aims, and the importance of tailoring messages to competing and differing audiences.” Let’s consider a few and do so cognizant of the Reisman Rules.
The use of strategic intelligence. No trend has received as much initial commentary than the strategic use of intelligence by the United States in the months leading up to Russia’s full-scale invasion to warn Ukraine, rally NATO support for Ukraine, and deter Russia’s pre- and post-invasion narratives. The use of intelligence to warn and to shape diplomacy is, of course, not new. One immediately thinks of Secretary Powell presenting the U.S. intelligence position on Iraqi weapons of mass destruction (WMD) to the UNSC in February 2003 prior to the U.S invasion of Iraq. One also thinks of President Reagan declassifying signals intelligence linking Libya to the April 1986 La Belle Disco bombing in Berlin, which killed three persons and wounded 279, including two U.S. servicemembers killed and seventy-nine wounded, to explain the U.S. military strikes against Libya ten days later.
What stands out in the context of Ukraine? First, in contrast to Iraq, the intelligence about Russia proved accurate, sadly and demonstratively so. Second, while hard to discern externally, the breadth of U.S. disclosure and delivery was unprecedented. Third and related, the Intelligence Community was willing to risk sources and methods to declassify or use tear-line reporting, a process CIA Director Burns has referred to as “strategic declassification.” Fourth, the disclosures were partly effective in meeting their policy objectives. I say partly because the disclosures did not deter Russia, but they did help prompt a timely NATO response and perhaps most importantly, and largely unseen, allowed Ukraine to prepare militarily, repositioning assets and defending critical infrastructures in cyberspace. Finally, the quality and prodigious use and sharing of intel in Ukraine has restored some or most of the credibility of U.S. intelligence with allies. Although there remains the risk that when intelligence sharing becomes closely aligned with policy, or becomes the policy itself, “intelligence” may lose some of its aura of objectivity and, therefore, influence.
All the tools of intelligence are in use. We also know that all the tools of intelligence are in use, including collection, analysis and dissemination, counterintelligence, and covert action. Perhaps the most important tool has been liaison. The war in Ukraine has been described as “a war between a large Soviet Army against a small Soviet army with western weapons.” Add to this intelligence. As retired U.S. Navy Admiral Robert Murrett has noted, “another lesson from the Ukraine war is that intelligence relationships matter.”
Recalling Michael’s definition of intelligence as well as his emphasis on proactive process, Ukraine highlights the benefits of sharing intelligence proactively rather than reactively and creating a process to do so before a dire need. This will not come as a novel thought or engaging insight to intelligence practitioners. The challenge is not the idea, but creating a culture and process that will drive to purposeful decisions about whether, what, and when to share and do so in a timely manner, aware of the risks to sources and methods and informed by the President’s ultimate constitutional authority over intelligence. (Recall: Good process leads to better security results.)
New platforms, emerging technologies, and old platforms with new uses. The war in Ukraine is a war of contradictions. It is a war fought in World War I-style trenches with World War II-style artillery barrages. However, it is also a war highlighting the advent, or prominence, of at least three “new” intelligence platforms. The first is the unmanned vehicle—aerial, maritime, and submarine—enabled by twenty-first century AI algorithms and twenty-first century data collection from, among other sources, social media platforms and drone footage. Prominent here are aerial drones equipped with munitions, but also sensors collecting visual and electronic data on the enemy and serving as persistent, and sometimes omnipresent, forward observers. As is widely reported, many of these platforms are inexpensive and many are “home-made,” which is to say privately designed and constructed. They are transforming the way military personnel and vehicles move and maneuver as well as cover and conceal, providing tactical limitations on all. A combination of surveillance methodology and unmanned attack vehicles and missiles have also driven the Russian Black Sea fleet off the coast of Ukraine.
A second emerging trend is the emergence of space as a critical intelligence domain and commercial satellites as an intelligence and military resource. All the tools of intelligence are in play, including counterintelligence as each side seeks to jam, spoof, and otherwise counter the other’s intelligence capabilities. For sure, satellites have long been an integral part of the U.S. intelligence enterprise and an enabler of U.S. military operations since the First Gulf War. What stands out here, is the emergence of commercial space assets as an intelligence resource and in some instances, in a DIY fashion. According to one source, fifty-percent of the intelligence provided to Ukraine has come from commercial satellites. The public is itself daily exposed to satellite images of Russian and Ukrainian trench lines. Starlink, the Elon Musk owned satellite constellation has also proven critical in maintaining military and civilian communications, including links to surveillance platforms and weapons guidance systems. However, according to Musk biographer Walter Issacson, when the Ukrainians “asked Musk to enable [Starlink coverage] for their drone sub attack on the Russian [Black Sea] fleet. Musk did not enable it, because he thought, probably correctly, that would cause a major war.” Media reports followed by testimony from the Assistant Secretary of Defense for Space Policy indicate that “Russia is . . . developing a concerning anti-satellite capability related to a new satellite carrying a nuclear device that Russia is developing.”[4] The testimony did not indicate whether Russia’s actions were in response to Ukrainian use of the Starlink constellation or the war in Ukraine. However, the disclosures parallel events in Ukraine.
A third emerging trend is the continued and likely elevated use of Russian disinformation and destabilization operations. Such operations are nothing new in concept harkening back to traditional KGB and GRU Cold War covert action, or in Soviet parlance active measures; however, what is new is the breadth and perhaps effect of such operations using AI enabled algorithms to target select audiences with specific messaging, for example, pro-Russian parties in Central European elections, or as it turns out, Members of the U.S. Congress. Advantage goes to the side that can make the most effective intelligence, analytic, and targeting use of AI and data, to include the use of data to rally domestic and international support.
There is urgency in applying the Reisman Rules to each of these trends, not only to observe, but to identify preferred outcomes. When it comes to the use of space as an intelligence domain, for example, we need to consider, as Michael would, three questions, each with profound implications for international law and world public order:
(1) When should a commercial asset providing commercially available resources to warfighters be viewed as directly participating in hostilities and thus potentially subject to attack?
(2) Is the law of outer space as founded on the Outer Space Treaty aspirational or operational? If it is operational, how will Article IV be enforced stating, “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.” If it is not operational, what is the preferred outcome? How might the space states, and other states, uphold world public order, including the safety and viability of the space assets “we all depend upon?”
(3) What are the policy risks of having a commercial entity, and in this case one private person, control access to a critical intelligence warning, communications, and command and control tool, and what, if anything should be done in response?
Private and open-source intelligence. Some of the data comes from private sources, including commercial satellites, but also private persons acting wittingly or unwittingly as collectors with cell phones. Cell phone apps provide a critical link in Ukraine’s air alert system, providing warning of Russian aircraft and missile threats throughout Ukraine. Just as this is the first major algorithmic conflict, it might also be called the first open-source conflict. Private and open-source information has increased, perhaps dramatically, the volume of data to analyze, a challenge Sherman Kent identified in the 1950s and Michael analyzed in 1973. But this challenge comes in analog form. Advantage goes to the side that can gather, analyze, and derive meaning from data and act upon that meaning faster than the other side can respond. Commercial satellites have been used to investigate war crimes and supplement critical infrastructure. Private companies have assisted Ukraine in defending its cyberspace with real-time information and expertise. The use of private and open-source intelligence is perhaps the defining intelligence trend of this war.
These trends arrive with complex implications. Here there is an urgent need to appraise, consider preferred outcomes, prescribe, and perhaps proscribe. Witting and unwitting sources of data may be subject to repercussions, raising unresolved questions about what it means to directly participate in hostilities, which the legal community should address. Private and open-source information require new methodologies to verify information, such as watermarking. As Joshua Huminski has noted, not every private source of information is Bellingcat. Private access to commercial assets may also have a leveling effect on access to real-time intelligence and capabilities previously monopolized by states. This is hinted at, but not yet confirmed by the suspected use of satellite imagery by Iranian proxies to use a drone to target U.S. soldiers in Jordan.
Intelligence indicators. The volume of intelligence also warrants fresh analysis about intelligence indicators. The strength of armies has usually been assessed and calibrated with order of battle statistics. How many tanks can an adversary deploy? How many divisions are massed along the border? But “order of battle” does not win wars. War is not the game of risk. Wars are fought with tanks, artillery, and drones, but they are often won (or lost) by effective or ineffective leadership and the will or lack of will to fight. Artillery can be measured by order of battle statistics. But we know now how important other intelligence indicators are, like logistical capability, supply chains, satellite links, and perhaps most importantly the will to fight. How does one measure the will to fight?
In Afghanistan, the United States understood the will to fight was low, but surely did not appreciate just how low and how quickly the Ashraf Ghani regime would collapse in August 2021. The opposite is true of Ukraine. There could be no doubt Ukraine possessed the will to fight; it had been demonstrated since 2014 in the Donbas. The question was would it scale up on a national basis in the face of Russian air attacks and the Russian advance on Kyiv. Clearly the United States did not anticipate that Ukraine would survive Russia’s initial onslaught: President Zelensky was offered transportation out of the country, he wanted arms; Ukraine was initially provided weapons of internal resistance, not the type and volume of weapons that would indicate confidence in sustained battlefield resistance.
Ukraine has identified new intelligence sources and indicators or changed the weight to which analysts should apply to intelligence indicators in their assessments. U.S. (and Chinese) analysts are no doubt considering how these indicators might apply to Taiwan’s population. The U.S. intelligence community might also consider whether resources are aligned to collect against and understand any newly identified indicators. As CIA Director Burns has stated, “priorities aren’t real unless budgets reflect them.”
Collective Security. International law does not operate in a vacuum, and it is not always self-executing; neither are political commitments. Witness the Budapest Memorandum of 1994. In exchange for foregoing its nuclear weapons and capability, an inheritance of the Soviet Union, the Government of Ukraine received written security guarantees from Russia, the United States, and the United Kingdom. The Memorandum states, among other things: “The Russian Federation . . . reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.” Then came the seizure of Crimea and the little green men to the Donbas in 2014. The full-scale invasion followed on February 24, 2022. The UN Charter and the UNSC were no more availing than the Budapest Memorandum in deterring Russian aggression, with Russia vetoing the Security Council’s efforts to address the situation in 2014 and 2022, negating any need to determine whether, and in what manner, the resolutions might have been enforced. No wonder President Zelensky declared in April 2022, “[W]e must do everything in our power to pass on to the next generations an effective UN with the ability to respond preventively to security challenges.”
What does collective security look like after the full-scale invasion of Ukraine? It looks a lot like NATO intelligence and weapons in support of Ukrainian courage and grit. And what might collective security look like if the United States, or other members of NATO stop supplying information and munitions to Ukraine? That is the question on many minds in the frontline states. Are there lessons to apply? One might ask the question in a different way: What makes NATO Article 5 operational rather than aspirational law as a collective security standard? I believe there are six lessons here.
Collective security cannot and does not rely on diplomacy or law alone. This is one of the lessons of Munich. It is one of the lessons of the Budapest Memorandum. It is not the words found in Article 5 that make the North Atlantic Treaty the gold standard in collective security. Neither is it the legally binding nature of the treaty. The text of Article 5 makes that clear.
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual and collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Note that each state is only required to take “such action as it deems necessary.” Moreover, Article 11, inserted at the insistence of the Senate Foreign Relations Committee, further qualifies the commitment, stating that “This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes,” preserving for another day, and a particular context, determination as to whether the President would have inherent constitutional authority to act pursuant to Article 5 absent congressional authorization.
Five elements make the North Atlantic Treaty operational law. These elements are obvious, but if they are obvious, they are often overlooked.
- Commitment: Commitment comes in the form of the political will to act. This is an obvious point. The question is how is the will to act manifest, and is that will perceived as credible by one’s opponents and allies. Political will is demonstrated by the forward deployment of equipment and troops and the sharing of intelligence.
- Capacity: One way to demonstrate commitment is with capacity. Capacity is measured in GDP contributed to national defense, NATO interoperability and training, and energy supply chains that are active and redundant.
- Process: NATO is credible in part because it exists. The North Atlantic Treaty may not, in fact, require parties to act, but it creates a standing process to do so, the Atlantic Council and Article 4, which is practiced and constant, which is to say it meets regularly and operates within understood procedures. Much like intelligence liaison, if you do not know in advance with whom to communicate and whether you can trust them, you are not likely to act or act in a timely manner, or at all.
- Intelligence. As Michael teaches, national security decision-making starts with intelligence, including warning, which necessities a standing and trusted process of liaison. Warning comes in a different form as well, if the U.S. is not prepared on some level to share strategic intelligence with “an ally,” perhaps the commitment to collective security is not as it seems.
- Law. Law cannot guarantee the political will to act. You cannot legislate commitment or trust. But what law can do is bind nations through values that are reflected in law and, more importantly, adherence to law. One sure way to end NATO support to Ukraine would be through the emergence of endemic corruption surrounding U.S. and NATO assistance or the serial violation of the law of armed conflict. Law can also create essential process, such as Status of Forces Agreements that facilitate collective security and do so in advance of crisis and need.
These observations will not come as a surprise to Michael. They are rooted in his realism and his ability to objectively identify and describe trends. They also find root in Michael’s commitment not just to observe, but to apply scholarship to achieve preferred outcomes. When it comes to collective security the distinction between what is aspirational and what is operational is everything. Those who are committed to international law and public order and who might be prone to the aspirational, would be well advised to focus on achieving the operational factors above.
Conclusion
Every generation of policymakers thinks that it faces the most daunting array of national security challenges any generation has ever faced. The Revolutionary War generation, the Civil War generation, and the World War II generation might take issue with that statement. George Marshall might do so as well. He served on the Western Front during World War I, led the U.S. military during World War II, and served as Secretary of State and Defense at the outset of the Cold War. When confronted with a new crisis, Marshall is purported to have responded with the refrain, “I’ve seen worse.”[5]However, in my forty years in government I have not observed a more daunting array of national security challenges than those upon us today. I have not seen worse.
In less than five years we have dealt with COVID-19, the January 6 U.S. Capitol attack, Russia’s aggression against Ukraine, and the war against Hamas. We face ongoing and serial challenges presented by nuclear proliferation, regional conflicts, and terrorism perpetrated by state and non-state actors, and often a mix of both. And we are contending with the benefits and risks of emerging technologies, which hold great promise but also the potentially existential risks that might arise from the use and misuse of artificial intelligence, synthetic biology and genetic engineering, and quantum information systems. All of this comes with the backdrop of climate change. Former Acting Director of Central Intelligence and analyst John McLaughlin has noted that in the post-Soviet, post-9/11 world, the range, scope, and complexity of issues policymakers and analysts (and national security lawyers) must address has grown.[6] No issue, however, will have more impact on international law and world public order than Russia’s war of aggression against Ukraine. That is why it is imperative that we apply the Reisman rules and do so now.
Faced with Russian aggression and the threat(s) to democracy, there are hard questions ahead. Ukraine must decide for itself what “victory” looks like and the cost it is willing to bear to achieve it. In doing so, it will need to address the Peace-Justice dilemma.[7] How should a nation balance the desire for justice and accountability against the desire for peace. For absolute justice and absolute peace only come with absolute victory. Ukraine will also need to chart its road to recovery in a context of finite and limited resources. And it will need to do so confident in its security going forward. The United States must decide for itself whether to choose a path of isolation or a continued credible commitment to the collective security of NATO and a “rules-based order.” Michael Reisman’s scholarship, with its focus on world public order, human dignity, and preferred outcomes, seems written for this moment. I hope that policymakers and politicians are reading. Professor Reisman’s principles and insights remain as relevant and timely today as they were in 1965, 1973, 1981, and 1992.[8]
[1] Director of the Syracuse University Institute for Security Policy and Law; Professor, Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs; former Judge and Chief Judge, U.S. Court of Appeals for the Armed Forces, and Legal Adviser to the National Security Council; author of The Centaur’s Dilemma: National Security Law for the Coming AI Revolution (Brookings 2021), In the Common Defense: National Security Law for Perilous Times (Cambridge 2007), and, with Michael Reisman, Regulating Covert Action (Yale 1992). The author thanks Henry DuBeau and Aaron Ernst for their assistance and friendship.
[2] Michael is also a novelist, but that is a story for a different day.
[3] James B. Steinberg, The Policymaker’s Perspective: Transparency and Partnership, in Analyzing Intelligence: National Security Practitioners’ Perspectives 93, 95 (Roger Z. George & James B. Bruce eds., 2d ed. 2014).
[4] The testimony continues, “This capability could pose a threat to all satellites operated by countries and companies around the globe, as well as to the vital communications, scientific, meteorological, agricultural, commercial, and national security services we all depend upon.”
[5] Arthur M. Schlesinger, Jr., The Cycles of American History, at xii (1986).
[6] John McLaughlin, Serving the National Policymaker, in Analyzing Intelligence: National Security Practitioners’ Perspectives 81, 86 (Roger Z. George & James B. Bruce eds., 2d ed. 2014).
[7] Paul Meerts, Diplomatic Negotiation: Essence and Evolution 26 (2d ed. 2015).
[8] These are the years (1) that Michael started teaching, (2) that The Intelligence Function and World Public Order was published, (3) that International Law in Contemporary Perspective: The Public Order of the World Community was published, and (4) that Regulating Covert Action was published, respectively.