Report

Kerry’s Return to Vietnam Is All About Blocking China

...and dealing with Beijing's thirst for energy.

John Kerry is back in Vietnam -- his first time as Secretary of State -- with a mission different from the dozen he's taken before. This latest round of U.S. support for Vietnam is largely about energy: who can develop it, how they can develop it, and what the consequences will be.

That is especially important for countries bordering the South China Sea, theoretically a potential motherlode of oil and gas in the future, but a source of constant low-level conflict today.

Beijing estimates that there are more than 100 billion barrels of oil under the South China Sea, about ten times more than U.S. officials see there. And the Chinese are doing their best to keep that oil to themselves. Chinese vessels have interfered with Vietnamese and other foreign ships looking for oil in recent years. Just one year ago, a Chinese ship apparently deliberately interfered with Vietnamese oil-survey efforts by cutting the survey ship's cable. In November, Vietnam and India reached a deal for additional oil exploration in the South China Sea, which drew an immediate rebuke from China.

The United States announced Monday a new maritime partnership with Vietnam that on paper will help Hanoi police its waters. In reality, it's a way to give Vietnam a bit more muscle to defend its territorial interests in the potentially oil- and gas-rich but contested waters of the South China Sea.

At the same time, Kerry breathed new life into the so-called "Lower Mekong Initiative" that's meant to help Vietnam and its southeast Asian neighbors develop in a sustainable way, deal with the ravages of climate change -- and keep China's seemingly bottomless appetite for energy from wrecking Southeast Asia's agrarian economy.

The maritime partnership with Vietnam is particularly intriguing, because it gives the United States a way to strengthen a country that isn't an ally and to whom sales of military hardware are limited by law.

As part of a regional maritime partnership, the United States will provide Vietnam with $18 million "to enhance the capacity of coastal patrol units," including the provision of five fast patrol boats for the Vietnamese coast guard. Nominally, the State Department said, that's part of an aid package to help Vietnam and its neighbors deal with traditional constabulary duties such as anti-piracy, drug trafficking, and the like.

But Secretary Kerry made clear in Hanoi that the patrol boats will have a more important mission: "Peace and stability in the South China Sea is a top priority for us and for countries in the region. We are very concerned by and strongly opposed to coercive and aggressive tactics to advance territorial claims," he said, in a clear reference to China, which has used strong-arm tactics to lay claim to nearly the entire sea, most notably through the notorious nine-dash line. That's China's not-so-subtle way of trying to grab entire swathes of the South China Sea that are claimed by five other countries (six, if you include Taiwan).

Vietnam, like other countries surrounding the South China Sea, has long had confrontations with an increasingly aggressive China. The whole region has plenty of interests at stake in the South China Sea. It's one of the busiest waterways in world trade, and one of the most important fisheries in Asia. And then there's the potential for oil, which makes the South China Sea conflict fundamentally different than the territorial disputes and grandstanding that characterize tensions in the East China Sea.

Granted, a handful of patrol boats won't make Vietnam the maritime peer of China. But symbolically, at least, the deal shows how "the U.S. will help claimants strengthen their ability to resist coercion," said M. Taylor Fravel, a professor and expert on Chinese maritime issues at the Massachusetts Institute of Technology.

Significantly, U.S. aid comes in the form of a stronger Vietnamese coast guard. On the one hand, that's because U.S. military aid to its former enemy is constrained. But in the maritime games of chicken in the South China Sea, civil defense and fisheries-enforcement ships -- rather than fully-armed naval vessels -- are the currency of power. China, in particular, has beefed up its civilian maritime presence to press its claims, rather than its newly invigorated navy.

"Civil maritime capabilities are key to the territorial and maritime disputes in the South China Sea. China is effectively using its predominance in this area to bully and coerce its neighbors, without resorting to direct military action," said Ely Ratner, Deputy Director of the Asia-Pacific Security Program at the Center for a New American Security.

"It's therefore critical that other countries, while unable to match China pound for pound, at least have the ability to police their own shores and maintain a degree of maritime domain awareness about what's happening in their territorial waters," he said.

Onshore, Kerry also brought a little cash and a lot of encouraging words for the Lower Mekong Initiative, a plan launched by his predecessor Hillary Clinton that is meant to spur unity and sustainable development among countries in southeast Asia.

Like the maritime partnership, greater support for the Lower Mekong Initiative is one way the United States can help bolster countries that are wrestling with an aggressive China. Chinese hydroelectric development in its southern provinces threatens the flow of a river that's crucial for about 60 million people downstream.

"From Hanoi's perspective, Beijing's ability to regulate the river, the ecological and environmental impact of China's dams, and those planned by its upstream Southeast Asian neighbors hangs like a sword of Damocles over the Mekong Delta," concluded a 2012 report from the Mekong Policy Project at the Stimson Center.

So far, much as China has sought to deal with southeast Asian countries bilaterally when it comes to maritime disputes, Chinese hydropower development has played up divisions between downstream neighbors. That reduces their ability to push back in unison against development practices that could imperil the livelihoods of millions in the region.

That's one big reason the United States is trying to get downstream countries, including Vietnam, to work more closely together on hydroelectric development and policies for watershed management.

"No one country has a right to deprive another country of the livelihood and the ecosystem and its capacity for life itself that comes with that river," Kerry said Sunday, after a peaceful ride on the river he used to patrol on a swift-boat.

Richard Cronin, Southeast Asia program director at the Stimson Center, said that Kerry's reference to upstream countries and the threat they pose to Lower Mekong countries echo historic comments made by Hillary Clinton in 2011 in Hanoi. She made headlines, and raised hackles in Beijing, by wading into the territorial dispute in the South China Sea.

"We don't have the money to offer, and we can't compete on aid, but we can remind countries that they need to hang together, or they'll hang separately," Cronin said.

Of course, Kerry being Kerry, climate change also came to the forefront on his stop in Vietnam. (He called it the biggest global challenge in a speech in Washington on December 11.) He announced $17 million in aid to help Vietnam adapt to climate change. And he called the lower Mekong the "rice basket of Asia," warning how climate change could lead to sea level rise, threaten millions in the region, and lead to widespread displacements.

Don't expect that focus on the climate threat to dissipate during the rest of Kerry's trip, either. Next stop: The Philippines, including typhoon-ravaged Tacloban.

HOANG DINH NAM/AFP/Getty Images

Report

This Court Case Could Kneecap the NSA

Why a judge's assault on 'Orwellian' surveillance could cripple the spy agency's legal and political support.

On Monday, a Federal District Court judge ruled that the National Security Agency's collection and storage of all Americans' phone records probably violates the Constitution and is an "almost Orwellian" system that "surely...infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment." It's the first successful legal challenge to NSA surveillance since June, when Edward Snowden began a cascade of NSA disclosures. It might just set up the most important legal debate about surveillance and personal privacy in decades. And it threatens to undermine one of the major legal foundations of the NSA's vast surveillance network.

Judge Richard Leon of the District of Columbia, a George W. Bush appointee, ordered the government to stop collecting the phone records of two plaintiffs who brought suit against the NSA's so-called metadata program and to destroy the information it has on them now. He stayed his injunction, pending an almost certain appeal by the Obama administration. But if the case is eventually heard by an appeals court -- and there are reasons to think it will be -- it would be the highest-stakes and highest-profile battle to date over the NSA's program, and a proxy argument for the broader ethical dimensions about massive government surveillance. Think of it as the NSA's answer to the Scopes Monkey Trial -- a public, and undoubtedly passionate debate about whether massive, technologically-enabled surveillance that would have been impossible a few decades ago is still compatible with core constitutional principles of privacy and freedom from unreasonable searches.

The judge ruled that the government's collection of phone records relied on an outdated Supreme Court ruling, from 1979, that metadata isn't protected by the Fourth Amendment -- an analysis that, on its own, is likely to ignite considerable debate. "The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives," Leon wrote. "I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."

But that case, Smith v. Maryland, is part of the foundation of NSA's global surveillance system, which relies on the collection of all kinds of metadata -- from phone records, to email header information, to Internet addresses. In a more recent ruling about whether the government needs a warrant to install a GPS tracking device on someone's car, the Supreme Court narrowly opened the door to a future ruling on whether metadata should now be protected under the Constitution, in light of the dramatic changes in technology over the past few decades. Leon's ruling may be the first step towards bringing that issue before the nation's highest court, and potentially altering the way the global surveillance system is run.

In some respects, momentum has been building towards this moment. The metadata program was nearly defanged over the summer, in a rare show of bipartisan support in the House of Representatives. Since then, there have been further revelations of government spying, including on U.S. allies, and a presidential review panel has reportedly recommended a sweeping set of reforms at the NSA, including prohibiting the agency from storing Americans' phone records. Lawmakers are expected to take up legislation limiting the NSA's powers next year, and the Senate Intelligence Committee has launched an investigation into intelligence collection programs.

Since June, the Obama administration has mounted a public relations offensive in support of the NSA program and has told lawmakers that it is legal and necessary to protect Americans from terrorist attacks -- an argument that Judge Leon found unpersuasive. But officials have rarely had to publicly argue the legality and constitutionality of the program in court. The only judges to review the program have done so in secret over the past six years, and no lawyer has been present to argue that the program should be changed or discontinued.

In finding that the metadata program probably violates the Fourth Amendment, Leon ruled on broad grounds, leaving the D.C. Court of Appeals a number of potential options. They could dismiss the case -- ruling, as previous courts have, that the plaintiffs lack standing to bring the suit because they can't prove that they were individually subjected to secret surveillance.

But that was before Snowden's leak, which provided documented evidence that the government was collecting phone records. Administration officials subsequently confirmed the program exists, and that it continues to collect information about hundreds of millions of Americans. The plaintiffs in the case, led by conservative public-interest attorney Larry Klayman, arguably have the proof of standing that has eluded prior challengers to government surveillance.

The administration would also have a hard time arguing that the need to preserve national security secrets is reason not to hear the case. Since the Snowden leak, myriad officials, including the top lawyer for the intelligence agencies, the director of the National Security Agency, and the president himself have publicly defended the program as legal and necessary for stopping terrorist attacks.

"Thanks to Snowden, the government is not really in a position to tell the D.C. Circuit, ‘You can't reach the merits [of this case] because of state secrets," said Stephen Vladeck, a professor at American University's College of Law who focuses on national security. Vladeck said the appeals court could also send the case back to Leon, who did not reach a ruling on the legality of the program under the Patriot Act, and basically tell him to start over. But Vladeck predicted that the court would hear the case, and that it will be a momentous event. "I think the government would push back and you'll have a full-throated argument," for and against, Vladeck said.

It's unclear how Leon's ruling would affect other challenges pending in at least three other federal courts. But news of his decision seemed to renew the hopes of others who've brought challenges to the metadata program and have tried, unsuccessfully, to fight other aspects of NSA surveillance over the years. Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, which brought a challenge to the metadata program in New York, called Leon's ruling "a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution. ...We hope that Judge Leon's thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA's surveillance activities back in line with the Constitution."

Of course, the ruling could end up being short-lived. Paul Rosenzweig, a homeland security official in the Bush administration, called Leon's ruling "remarkable," but also "unpersuasive," and predicted that it wouldn't stand.

The judge's ruling also had a particular irony for critics of the NSA program and supporters of Snowden's disclosures. "As far as I know, Snowden is the first person charged under the Espionage Act for revealing something a court later ruled unconstitutional," tweeted Trevor Timm, an activist with the Electronic Frontier Foundation.

PAUL J. RICHARDS/AFP/Getty Images