NSA Reform or Foreign Policy Signaling? Maritime Provisions in Title VIII of the USA Freedom Act

3 June 2015, 1332 EDT

With much attention being given to the passage of the 2015 USA Freedom Act, there is some odd silence about what the bill actually contains. Pundits from every corner identify the demise of section 215 of the Patriot Act (the section that permits the government to acquire and obtain bulk telephony meta data). While the bill does in fact do this, now requiring a “specific selection term” to be utilized instead of bulk general trolling, and it hands over the holding of such data to the agents who hold it anyway (the private companies).   Indeed, the new Freedom Act even “permits” amicus curiae for the Foreign Surveillance and Intelligence Court, though the judges of the court are not required to have the curiae present and can block their participation if they deem it reasonable.   In any event, while some ring in the “win” for Edward Snowden and privacy rights, another interesting piece of this bill has passed virtually unnoticed: extending “maritime safety” rights and enacting specific provisions against nuclear terrorism.

Title VIII of the 2015 Freedom Act is an odd addition to the bill. In short, Title VIII amends the existing US criminal code (U.S.C. 18 § 2280) to include broader protections of ships, particularly US vessels or vessels subject to US jurisdiction and fixed maritime platforms, against violence and interference with maritime navigation. The jurisdiction issue is, of course, one of the most interesting pieces here, but so is the extension of these protections against explosive, biological, chemical and nuclear weapons and nuclear terrorism.

For jurisdiction purposes, the Bill states that the US has jurisdiction when actions are committed against vessels operated and owned by a US corporation or legal entity, vessels within the US territorial seas, vessels sailing under a US flag, or if any of the prohibited activities (more below) are committed: by a US national, US corporation or legal entity, “or by a stateless person whose habitual residence is in the United States;” or if “during the commission of such activity, a national of the United States is seized, threatened, injured, or killed;” or if at some later stage US authorities are lucky enough to locate the offender inside US territory. Military activities such as “exercises” are excluded, and any military activities taken by the armed forces of a state during an armed conflict are likewise excluded.

What are the offenses then? Broadly, they are acts that:

  •  Are designed to intimidate a population or compel a government (not merely the US) or international organization, “to do or to abstain from doing any act” that uses against a ship or fixed platform, or discharges from any ship or fixed platform, “any explosive, radioactive material, biological, chemical or nuclear weapon or other nuclear explosive devise” or discharges any oil, natural gas or other “hazardous or noxious substance” that is likely to cause death, serious injury or damage.”
  • Transport on board a ship any of the explosive, radioactive, biological, chemical or nuclear weapons, as well as fissionable material or equipment designed to create nuclear weapons (unless it is subject to the Non-Proliferation Treaty and its obligations and the transport is through one of the 190 state parties to that treaty). Note, the material or equipment also explicitly identifies software or any “related technology that significantly contributes” to the creation or design of a nuclear, biological or chemical weapon.
  • Transport on board a ship of any person who has committed any of the offenses and is intending to evade prosecution.
  • Injures or kills any person in connection with the commission of any of the offenses, or
  • Attempt any of the acts listed here or if one conspires to commit any of the acts.
  • Threatens any of the acts listed here.
  • Or if any of these listed acts are carried out against any vessel and the intent is to compel the US to do or to abstain from doing any act.

Additionally, the act explicitly provides for additional protections under the US Code against nuclear terrorism. This entails that any person that possesses and intends to use radioactive material anywhere or damages or interferes with a nuclear facility with the intent to cause death, serious injury, substantial damage to property or the environment, or who threatens any of these offenses or tries to compel “a person, an international organization or a country” to do or refrain from any act.

What, then, is Title VIII doing in the USA Freedom Act? Well, there are three potential reasons, all of which may be at play simultaneously. First is that Title VIII is a version of another bill that passed the House earlier this year (H.R. 1056). Thus in a typical tit-for-tat, H.R. 1056 was tacked onto the Freedom Act to ensure its passing as some sort of horse-trading strategy. Second, the US believes that it needs to update its federal laws against piracy (U.S.C. 18), and include a more nuanced text that includes more probable actions against US commerce, trade and potential targets, particularly text regarding fixed platforms or ships containing fuels or “noxious” substances. Given that intent of a terrorist attack may be difficult to prove if the act is not publicly claimed, making explicit protections for these types of vessels seems rather straightforward. Finally, and most interesting for the observer of international affairs, there seems to be at work a “kill three birds with one stone” strategy.

One is to strengthen laws and protections for US vessels worldwide. Given that the US’ present military strategy is a “Joint Concept for Access and Maneuver in the Global Commons” (a revised AirSea Battle doctrine), expanding the protections and provisions for US ships and US jurisdiction is in lock-step with this expanding maritime posture. China’s increasing provocative moves in the South China Sea, its build up of islands in the region, and it political rhetoric have not helped the situation. Indeed, it is not merely China, as the Philippine president recently likened China’s land reclamation activities to those of the Nazis. Tensions are clearly mounting.

Two is to expand laws about illegal weapons transports. The inclusion of software and other “related technology” is key. For example, with the rapid diffusion of 3-D printers, particularly bioprinters, means that with relatively little cost and the right knowledge, actors can print such weapons for use without having to go through the normal channels of acquisition.   Thus, as the technology grows and the various ways in which dual use technologies grow, the rationale for interdiction or protection does as well.

Finally, the nuclear terrorism addition is not merely to deter nonstate actors from using or transporting nuclear weapons, as there is I think sufficient deterrence in existing structures. Rather it is the expansion of the notion of nuclear terrorism to include states that use or threaten the use of “radioactive material” to compel the US to act or refrain from acting in any particular instance. In short, we can read the foreign policy tea leaves here and claim that if a state attacks, attacks and conspires or threatens to attack an ally (or even an individual person or international organization) of the US in the manner outlined above, and that threat would guarantee that the US would be compelled to come to the aid of the ally, then by simple deductive logic the US would have jurisdiction in this case even though the direct threat was against another state but the intent was to indirectly compel the US.   This seems to make blanket provisions for allies in the South China Sea, but also for Israel. It is a tricky little move that appears to be a safety net for all kinds of actors and all kinds of bad acts.

*Note bene:  Of course the issue of trying states in US courts is beyond the scope of this blog.  However, if this new act is taken to mean that heads of state, non state actors, or otherwise make or issue threats then this appears to be covered under the new law.  The US may not wish to try heads of state for diplomatic reasons, but as we have seen with the indictment of several of China’s PLA members, the US will indict non-nationals in absentia even if it runs against diplomatic favor.