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The ABA Senior Lawyers Division (SLD) and the National Security Committee of the ABA International Law Section (ILS) recently hosted Mark Zaid and Rob "Butch" Bracknell for Part 2 of what is a fascinating discussion of the history of, legal status of, and issues surrounding what has come to be called "Havana Syndrome" but perhaps more accurately known as Anomalous Health Incidents. Great thanks to the remarkable Jonathan Meyer for chairing and organizing the event. For this second part Mark Zaid and Rob "Butch" Bracknell go into a deeper dive of the injuries suffered, the technologies deployed, and applicable international law.
If you missed the first part, discussion and links to the video of the event may be accessed here.
The event video was posted 6 August 2024. The VIDEO RECORDING of the presentation was just posted and may be accessed here. The TRANSCRIPT may be accessed with the Video and follows below.
Speakers: Robert “Butch” Bracknell is a retired Marine officer who worked for 9 years as a NATO civilian at Allied Command Transformation before transitioning to private practice and consultancy. He has a JD from Maryland Law, an LLM from Harvard Law, and an MSc from the University of Oxford. He resides in Norfolk, Virginia.
Mark S. Zaid is a Washington, D.C. national security attorney who has spent three decades handling cases involving classified information, security clearances, war crimes, terrorism and the Freedom of Information Act. He recently appeared as a witness before a Subcommittee of the House Homeland Security Committee on “Silent Weapons: Examining Foreign Anomalous Health Incidents Targeting Americans In The Homeland And Abroad”. He has a JD from Albany Law School and a BA from the University of Rochester. Moderator: Jonathan M. Meyer, Attorney at Law, ABA SLD International Committee Co-Chair, ABA International Law Section National Security Committee Co-Chair
The transcript follows below. My own earlier essays may be accessed here: Cuba Sonic Weapons Affair (43)
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a retired marine officer who work for nine years as a NATO civilian that Allied command transformation before transitioning to private practice and
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consultancy he has a JD from Maryland law an llm from Harvard Law and an MSS
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MSC from the University of Oxford he resides in nor North for Virginia
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hey I also have have a new I have a new job I started two weeks ago as a deputy
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council at the Jefferson lab which is a it's a particle accelerator that works
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for Department of energy congratulations you're breaking up
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Robert I don't know what's going on with the connection someone just said congratulations I think they heard
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me okay congratulations I apologize this like I can't hear I don't know what's going on with the connection and it's
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not Wi-Fi and I don't know I both on Wi-Fi and sell congratulations the new job
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Robert mark is a Washington DC National Security attorney who has spent three decades handling cases involing
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classified information security clearances war crimes terrorism and the Freedom of Information it recently
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appeared as a witness before a subcommittee of the House of Homeland Security committee on silent weapons examining foreign anomalous Health
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incidents targeting Americans in the Homeland and abroad he has a JD for ory law school on a ba from the University
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of Rochester give you a short overview if you can hear me will be discussing the
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hi recent attacks that have been taken against us Personnel here and overseas
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and one who recently passed away m w Zoey which hopefully will be commenting on any that if you can hear me um would
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you like to go first Mark or Robert mark would you like to go first or Robert which Mark go ahead you're you've got
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more depth on the facts to sort of set the scene let's do it like we did last time sure that sounds good well I
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welcome everyone on to part two of this and I think sort of what I'll I'll start
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is uh kind of give an update from I'll give a very quick summary and then sort
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of an update from the the part one uh which we can also repeat for those who
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might have a question so Ahi or anomalous Health incidents I do not call
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them Havana syndrome uh I I find that to be a real misn Noma uh it it's sort of
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like I'm fighting against the the Spanish Flu uh you know moniker uh from
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a century ago which many of you may know was not Spanish at all uh it was from
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Kansas apparently uh that our troops brought over to Europe and so Spain gets
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a bad rep uh as does Cuba in in this case uh there were dozens of us and
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Canadian diplomats and some Military Officers who were injured in Havana uh
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this Ahi predates Havana by many many years Havana was just the first of
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several posts where numerous individuals were impacted if not injured uh and it
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got the most publicity uh you might as well call it Vienna syndrome you can call it Tyson's Corner syndrome uh Etc
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and frankly I don't think the Cubans were responsible though there could be a Cuban component in this the reality is
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the vast majority of us I think believe that the Russians are primarily responsible this is a technology that
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could that does exist among many uh Nations uh that have the technological
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capabilities so there's any number of countries that could be responsible but predominantly we believe it to be Russia
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I represent a couple of dozen or so more than that uh of federal employ es uh
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across the board these are predominantly within the intelligence Community but
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there are also defense department and state department usaid Commerce
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Department individuals diplomats who have been impacted at different posts
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uh what this is somewhat anybody's guests there's
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educated guests of course uh as being some sort of microwave radio frequency
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other type of Technology uh my own lay person's view on that is that it has
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evolved over years uh from most likely a
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surveillance data extraction listening technology to something that has been
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weaponized uh whether it is weaponized intentionally or as a side effect we
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don't know until we capture someone who's actually doing this or a device that is actually perpetrating this I
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know the community is searching for it uh or both I will say I have had
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classified access to information about this which obviously I cannot discuss
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and the reality is I liken ahis to the iceberg that sank the Titanic right a
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third of it is above the water the bulk of it is beneath the water that is where
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evidence of ahis exists within predominantly the classified sphere but
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there is a wealth of information that is in the public especially about the
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technology because again it's been around for so long and has evolved uh as
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well as even government US government solicitations for detection devices for
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uh devices to actually uh Levy the energy on to others it is in use by many
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countries as crowd control uh the Israelis uh routinely use it uh the
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Trump Administration wanted to use it don't know if they did but even law enforcement just regular law enforcement
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has Sonic devices for actual crowd dispersion control uh and you know like
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anything if you raise it up to enough of a level it it's going to make a a big
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difference and and could actually harm someone the the latest news in this uh
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was actually just the other day and I'll put this into the chat the uh GAO
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government accountability office the investigative arm of Congress uh issued
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a report uh tied to DOD specifically although quite frankly they went beyond
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DOD because I cooperated with them and brought many of my clients uh to them
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but they specifically investigated the Health Care component of it those who
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have been injured how are they being treated how are they being tracked tracked in a good way uh monitored from
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a health perspective I'm sure it's not going to be any shock to the majority of you that DOD did not get very high marks
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I I I'll speak I don't want to hit them too hard though they haven't done a very
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good job uh quite frankly but the reality is is this is an intelligence
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problem DOD has inherited it uh in some ways uh to its Credit in many ways to
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its credit it just hasn't done a very good job of how to handle these victims
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who are somewhat unique uh while the Walter Reed National military Medical
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Center at Walter Reed Bethesda uh near me is very experienced with traumatic
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brain injury IES TBI from IEDs you know improvised explosive devices they're not
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used to dealing with what this is uh there are no physical injuries that
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people show from the IED or equivalent with whatever this is uh and the
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bureaucracy more than anything else is just a freaking nightmare uh especially
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because you have many nond dood people who have been designated by DOD to
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receive medical care for ahis and DOD doesn't really know how to deal with
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them very well H and there is a tremendous amount of frustration on both
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sides from the victims my clients as well as I can see it from the medical
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staff as well and some of it quite frankly is deserved on both sides uh the
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victims are getting incredibly frustrated and losing their patients uh understand understandably but you know
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they're lashing out at at the medical personnel when they're not getting what they want and they're not used to
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dealing with DOD uh at all so you know if you're used to just dealing with your
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primary care physician uh while maybe getting an appointment is complicated
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for all of us at times uh you know for the most part our physicians and their staff will be you know very promptly
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responding to us and if we need another prescription sent over to CVS you know we can get it pretty pretty quickly well
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that that's not happening with uh with a lot of the Ahi victims unfortunately um
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we're kind of at a lull in many things uh like with so much uh everybody's
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caught up in the November forthcoming elections uh and that includes Congress
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so many of these issues while still being addressed particularly by the
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oversight intelligence committee in both the house and the Senate but particularly the house uh have kind of
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quieted down a little bit and it is the summer uh and for those who are in the DC area you know you know what Summer's
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like here uh it really quiets down uh I think I'll just kind of stop there and
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kick it over to to to Butch uh and then I can follow up with any specific
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questions Jonathan I'll go um so hi everyone my name is Butch bnell um so
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Mark is Mark represents Mark is in the thick of this fight here I'm going to
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step back and and look at this from a little bit more of a pure international law perspective um and my comments are
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premised on the supposition that a foreign actor whether it's a state actor or a non non-state actor but at least
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state-based so let's even if it's not a state actor let's say it's a non-state actor it's almost certainly a
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state-based non-state actor or maybe a non-state actor that is acting with the
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acquiescence uh knowledge or maybe even sponsorship of a state uh is causing
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these metal medical effects through some to the use of some new malign and disruptive
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technology I think it's a fair assumption uh from what Mark the factual
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lay down that Mark just gave us I don't really take a position on that because I don't have enough evidence to do so but
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I take Market as word when he says he's seen the evidence and I've seen the open Source reporting it's pretty even the
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open source reporting is pretty compelling and I think from what I understand from talking to Mark that
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Mark would say that the the the classified reporting is far beyond that
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description of just compelling you know I'm pretty convinced right now just from the open source reporting but Mark takes
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Mark has no doubt in his mind I think it's uh pretty much a summary of his
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position uh the second point I want to make is if this is happening is a perfect example of hybrid and Gray Zone
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conflict or competition between states and international law has a lot to say about it I think that um
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sometimes um strategists and Military theorists and National Security theorists talk a lot about hybrid and gr
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Zone conflict and they very often leave out the international law Dimensions um
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that govern it and what states can do and what states can't do uh and what states can do in reply and why the
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theory behind uh some of the actions that constitute hybrid and gry Zone Conflict for those of you who aren't
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familiar with the the concept of hybrid and gry Zone conflict a vast over
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oversimplification is it's sort of the um if you look at the Spectrum of conflict as a Continuum and on the far
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left side is complete and utter peace which has never really existed but if it's theoretical piece in the far right
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side is is basically a a hot encompassing State on state
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conflict that hybrid and gry zone is somewhere in the middle that does not reach quite to the level of an armed
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attack but it certainly constitutes something Beyond uh peaceful coexistence
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between states so it's that place in the Middle where you don't have an active armed conflict where states are
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nevertheless affecting each other's Securities security through a variety of techniques and international law has a
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lot to say about that the first thing I want to focus on is the concept of international internationally wrongful
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acts that's a term of art this isn't just something that I made up uh to describe this internationally wrongful
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act has a a definition set in international law the UN international
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law commission defines an internationally wrongful act as one that is one attributable to a state which two
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constitutes a breach of an international obligation of the state so you have two elements attributable to a state and
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breach of an international obligation um Mark Al tell you and I think he'll probably come back to this
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and before we're done here you will leave here with the impression uh one of the thing one of the things that Mark
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would say and that I agree attribution is hard attribution is hard in a lot of contexts attribution is hard in cyber
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attribution is hard in uh lots of places where States it attribution is hard in
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covert activity sometimes um so in this case attribution is hard as well by by
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attribution is hard I don't mean that it's necessarily hard to know which states or non-state actors acting with
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the acence or sponsorship of a state is doing it you might be to do that but you can't publicly attribute it because a
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lot of the evidence uh against them is so highly classified you can you can just never really attribute it at a way
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that unclassified um international law communities can talk about it you're not
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going to get all this evidence in front of any Forum like the icj or the ICC or anything like that it's just not GNA
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happen it's too highly classified and too sensitive uh because of sources and methods uh because of a lot of things
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probably with because of the positions that it puts people in overseas not just Americans but maybe allies and so forth
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so I don't think that a lot of this stuff is going to see the light of day anytime soon is that fair is that a fair
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summary Mark yeah uh and the second element as I
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said is a breach of an international obligation so in this case it's really hard unlike Downing an airplane so Mark
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has some experience with the case regarding the Downing of an airplane or the sinking of a ship the evidence is
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really discreet and publicly unavail ailable um so the three elements that uh that constitute um attribution also it
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can be Aid and assistance and commissioning that is where a non maybe a non-state actor um acts and the state
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AIDS and assists them the second flavor of uh of of uh of internationally
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wrongful act attributable to state is when the actor acts of the direction and control of the state so there's Aid and
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assistance where the state is assisting an actor there's directing control where the state is actually directing and
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controlling the acts of the actor and then third is coercion of another state maybe when a powerful State like say a
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Russia uh coerces another state maybe a a client State like say Serbia and I'm
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not making accusations I'm just saying a Serbia or a bellarus or some state that is a less powerful state is coerced by
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the larger State the uh the uh responsibility can flow back it it
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certainly lies with the state that's actually doing the ACT but it can also flow back to the state that coer the act
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so just because um just because a big powerful state is acting through a proxy State doesn't allow them to evade
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responsibility under the doctrine of attribution uh for for uh
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internationally wrongful acts so then the second part is what oblig a breach of an international obligation what
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obligations are being breached the vi convention on diplomatic relations article 22 says that foreign Prem
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foreign Mission premises are in violent and agents of the receiving State cannot enter uh and more importantly the
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receiving state is under an obligation an affirmative obligation not just to do nothing but to actually act to take
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appropriate steps to protect the premises of the Mission Against any intrusion or damage and to quote prevent
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any disturbance of the Peace of the mission or impair its dignity well where these acts are occurring within
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diplomatic premises overseas that's certainly occurring but obligations also attached to people not just places
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wherever they are the persons who are accredited to diplomatic uh um to
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diplomatic uh missions are also inviable the they're no matter where they are including their private res residences
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so not everybody lives in the US Mission not everybody lives on the grounds of the embassy uh some diplomats and
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foreign posts live off uh the grounds of the embassy and their private residences are um Carry with them this attachment
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of invi invi ability and it also extends to family members and another category
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of people called administrative and Technical staff which are non- diplomats which are also accorded um lots of
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protection under the Vienna convention um finally where these folks moved through third States so let's say
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that this is occurring to some diplomats that are in Vienna but it's not
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happening when they're in Vienna it's happening when they're in Amsterdam um the third state actually
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has an up similar obligations towards diplomatic agents in order to protect them while
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they're on the territory of the third state so what can the injured state do well they can take countermeasures a
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countermeasure is a is an act which is otherwise unlawful but it can be justified in response to an
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internationally wrongful act um how do how can the state react how must the
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state react that is breaching the obligation what affirmative obligations does a state have assuming this is a
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state actor um doing it through Direction and control or a Assistance or through corrsion they can't just keep
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doing it in other words the rule isn't well we've started doing this bad thing you know the tooth the toothpaste is out
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of the tube we can just keep doing it because we've we've broken the seal that's not how it works um even where an
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internationally wrongful act has been committed states have an obligation under international law to discontinue
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the the unlawful act there's an actually affirmative duty to discontinue there's a duty to to not
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keep doing it there's a duty to Cease the ACT while it's occurring there's a dut and it sounds simple right but these
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things have to be written down in order to provide norms for states to be able to react um the third is a duty to offer
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assurances and guarantees when State a the injured State um raises the issue to
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State B through a Demar or or maybe in a less formal way they have a duty to offer assurances and guarantees which
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again sounds like nothing but it is an internationally sign ific event for a state to ask another state to go on the
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record with assurances and guarantees that these harmful acts won't occur again and the fourth is the duty to make
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reparations typically money not always money it can be other things it could be
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a trade-off in some other obligation um so those are the four you can't duty to discontinue a duty to Cease the ACT a
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duty to offer assurances and guarantees and a duty to make reparations again these sound silly they sound simple but
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they have to be written down and this is the Norm for the way that states interact with each other in a case like
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this where there is ostensibly an internationally wrongful act but again so much of this is happening underground
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and in black circles it almost makes the discussion theoretical almost because
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what it does for us is it offers us a framework to think about it in terms of the way States react and their duties to
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each other the last point I'm going to make is okay fine so so we've
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established that there's an international wrongful Act we' established that stat have a duty uh not to do it through sponsorship not to do
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it through dire Direction and control and not to do it through coercion and the states have an obligation to
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discontinue an obligation to Cease the ACT an obligation to make insurances and guarantees and an obligation to make
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reparations uh what else can a state do at what point do these attacks rise to
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the level of an armed attack triggering a national to self-defensive right under article 51 of the UN Charter I've heard
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some less informed commentators saying do they believe that this constitutes an armed attack I I don't think so I don't
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think it rises to that level when you measure it against any objective test um it just doesn't rise to the level the
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best analogy I can think of is is uh cyber attacks so States interact with
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each other in wrongful ways in the cyber world all the time they're doing it every day they're doing it right now as
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we speak I don't know if you guys heard about the North Korea South Korea thing that popped up this morning about the um
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the hacks that uh that came through a human actor a South Korean human actor where the North Koreans were able to get
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into some Key Systems it's happening every day it's in the news every day a foreign States uh Cyber attack on one or
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more diplomats wouldn't constitute an armed attack except in maybe the most extreme and unusual circumstance and it'
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have to be something like it would it would have to be something extreme like an attack on a on it would an attack on
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a diplomat that caused a false message to be passed through diplomatic channels that touched all off an actual conflict
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or something it would have to be something really really high-end uh it's just vanishingly small um likelihood uh
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but what the Talon manual does is lays out a series of factors that we can use here um one two three it's eight factors
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yeah the first is severity so in this case Mark Mark's got clients who are severely affected by this so the
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severity to the individual yeah it's high the severity to the United States
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less High not so high um right it doesn't injure the state in
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a way in the same way it has enormous consequences for Mark's individual clients it has less individual
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consequences for I mean less consequences for the aggregate of the state the second factor is immediacy
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it's again it's hard to measure to the individual the individuals know immediately when they're being attacked
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uh to the state is it immediate no it's really frankly it's attenuated right um the state isn't injured it isn't
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immediately harmful to the state uh the third is directness and directness is
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probably tied to tied up with attribution the fourth is invasiveness
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attacks on individuals just don't add up to being very invasive to the state dozens of people probably not but there
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may be a threshold where it does right if hundreds of people are attacked thousands of people are attacked tens of
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thousands of people are attacked when is it sufficiently invasive to Warrant checking this box it's the same kind of
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analysis that we go through through with cyber when is it so invasive that it actually checks the box and trips that
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uh that characteristic that criteria for um to justify an armed attack and armed
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attack is a really important um Touchstone under article 51 because that's what justifies self-defense
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rights the fifth factor is measurability again it's really really tricky to
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measure if you can't attribute it and it's really that measurability is tied in with directness for the same reason
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attribution is really key to figuring out how direct an attack is and how severe it is how much you can measure it
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the seventh is presumptive legitimacy states are presumed to be acting believe it or not under international law states
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are presumed to be act interacting with each other lawfully um and if an act is not
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explicitly forbidden then it's presumptively permitted so to get over this you'd have
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to show attribution you'd have to show all these other factors and you'd have to also show specifically that the that
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the act that the state is undertaken reaches some some uh some obligation
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under international law you could probably do that by leveraging the Vienna conventions where the um the
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victim of the attack of the Diplomat and the eight is responsibility and this goes right back to what I started with is the state responsibility for
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international wrongful acts and again it's closely tied to attribution so you've heard me say closely tied to
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attribution several times attribution really is the long pole in the T when it comes to applying international
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law to this uh anomaly of of these adverse health events that are that are
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occurring for whatever reason they're occurring so I'll stop there that's kind of a wave toop view on international law
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and the obligations the states have to each other and which may be being breached and what actions a state can
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take as a remedy in response to these breaches of international law Jonathan
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Mark I add the response to Mark Mark please go back and I'll time in after Mark's done and your comments afterwards
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Robert thank you so much that was extraordinary Robert yeah I um I'll supplement a little bit of of what uh
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Butch is saying from the individual level response uh obviously state to state is
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one thing and my work career-wise has been for individuals to pursue State
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actors that have wronged them whether it's terrorism war crimes other human rights issues uh we have an issue with
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the foreign Sovereign immunities act so for any attacks incidents whatever one
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wants to call them that happen overseas there would be sovereign immunity issues for any of the individuals to sue here
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inside the United States unless that country is designated as a
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state sponsor of Terror potentially uh under an amendment that I actually helped write 30 years ago uh
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the problem is the way when we wrote that we were focusing on very specific cases and the
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exceptions we created in 16005 I think it's still
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A7 uh I could be wrong about that now they might have moved it around uh I I don't think would probably fit in
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so Sovereign Community is not a Factor if it were uh occurring here inside the United
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States there are incidents that have occurred inside the
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US uh to FBI agents some State Department Personnel some CIA Personnel
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Dia I'm trying to think of folks who I know of uh those could uh allow for
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civil actions against the state perpetrator if we knew who the perpetrator was uh and we don't uh quite
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frankly uh if if I did uh I would I would bring the case against them the
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compensation that has taken place so far has been pursuant to us legislation
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enacted back in 2021 uh that has a a a set
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criteria uh that's been implemented by most of the agencies the defense department actually just issued its
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internal regulations this week uh for hopefully implementation later on this
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summer uh and folks are uh allowed it's it's based on other comp compensatory
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packages uh if someone who's fully disabled can get around uh
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$200,000 and someone who is uh less than fully disabled there's only two
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categories uh last I checked I think they were getting something like 147,000 or something like
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that um it it's been a fairly simple process though lengthy at times uh I do
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know of I have had clients who have received compensation uh you have to meet that
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criteria it's been mostly so far CIA and some State depart CIA and state
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department or state related because we had some foreign commercial service officers who were injured in China uh as
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well in the aftermath of Havana uh I think I'll stop
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there may um Robert would you like to respond to that now I have some
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parentheticals just if I may about the technology um you're 100% correct Mark
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and Robert about the of no touch technology attribution is most most difficult um I don't know what euristic
29:57
or suggestions we can make to US servicemen whether it's Intelligence Officers both domestically and overseas
30:04
but perhaps a deeper dive into the type of technology and that's not your expertise and I'm just a lay person but
30:10
I did some research on it I mean a good example is um when I had helped with the ABA and Export controls and economic
30:17
sanctions we talked about article 18 of previously the United States finitions list which was later migrated over to
30:23
the export Administration regulations there's a whole section on directed energy weapons and it's not
30:28
simplistically geew it's the marriage of Elrod type devices to Optical surveillance in entire security system
30:36
which were restricted in our export because it was high I'm I'm aware that the Soviets did
30:43
experimentation in the 60s as well as the US on on Airbase sonar right so it
30:49
was joint R&D but my question is and I just wonder about this the CTIC nature
30:55
of the technology and its deployment overseas us Personnel perhaps increased export
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control restrictions least becoming aware of the type of technology that may have been deployed domestically they
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give us the heads up I mean technology is
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kind and it's hard to control and exporting that type of Technology lrod type devices married to tracking and
31:20
Optical surveillance I it might be technology that turn around a bit us
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from behind excuse my expression I'd like to both to address it and one additional comment is from my limited
31:33
research as a late person the use of ultra in no touch technology even in a
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distance a mile a mile and a half away locally you can synchronize that through a command and control structure and when
31:46
alound would pass through the back of the human brain the head it would cause the brain cells in the back of the brain
31:51
to heat up causing the heart to I.E you're not just frying us diplomats
31:56
braids but your ially you could induce a hard attack at a distance I I shut that there and I like for you Mark and Robert
32:03
to to to to to discuss it because if you turn those systems up as Mark said they can be highly costly if you keep them a
32:10
low level the deployment especially is part of security systems whether it's in schools elections anywhere that can have
32:17
a highly D various effect not just on the Personnel but the state of our democracy sorry that's I think a
32:22
national security concern and this is a national security call so forgive me there has to be some sort of regul Rel
32:28
this can't be the wild west of Highly qual technology that may have internal deployment I'm sorry go ahead Robert and
32:35
Mark I mean export controls an imperfect system right that that's a concern it's not just this technology whatever this
32:42
technology is you know um we have if you're going when you're going
32:49
to export things you're going to take risk with regard to retransfer with regard to loss of control our system
32:57
operates with some risk management of opportunities for retransfer you know
33:03
the idea that you can't directly export these things to certain parties certainly to sanction Nations and so
33:08
forth but the idea that this thing could pass through three or four hands whatever it is and not just this
33:14
technology but other sensitive Technologies as well it's an imperfect system I mean we are probably letting a
33:20
lot of Technology get away because the volume and fails failures in track ing
33:28
end users and and being able to do anything about it you know it's like a horse that got out of the barn you might
33:33
be able to Levy you all you can do to is deter it to a certain extent um but um
33:39
it is a massive undertaking to try to track everything that's that's being that is subject e and itar and any other
33:47
export control regimes there just it's an inherent risk it's an inherent risk in doing business in international
33:53
marketplace that you're going to lose control of Technologies and that they might wind up being used back against you that's the the other the other the
34:02
alternative is we never asport anything including defense Munitions and that's big business so that's just it's not
34:09
pragmatic but it's unfortunate yeah I think that's true other thing I was I was notied by also
34:15
by people in law enforcement at the local level and some people that may them with our agencies try to help
34:20
contractors were used for internal deployment that's between the parties you know I mean I I the heads up from
34:26
people locally
34:35
whates what brings go ahead I'm sorry Mark I didn't needan to interrupt no no no no I you're
34:40
cutting out a little bit Jonathan I I think it's it's hard to for some to
34:45
hear look can can you hear me now I apologize can you hear me now yeah that's okay yeah yeah yeah yeah yeah uh
34:52
look technology of people in law enforcement and some of our agencies mentioned that
34:58
internally contractors may have been used to deploy that technology that's all that was my time I'm sorry go
35:04
ahead the US invented or at least initially developed
35:10
a lot of the technology old schoolwise 60 70 years
35:16
ago I'm not sure I'm sure that we have and I'm not a techn expert on the
35:22
technology I I have no doubt we continue to develop it for lot of different
35:28
reasons in the commercial and government sector the reality is I'm not quite sure how much export issues might be
35:35
impacting it because the other countries are doing the same thing uh you know I I don't know if China needs to get our
35:42
technology on this they probably exceeded what we're doing now same thing with the Russians uh you can find online
35:51
articles in Chinese and Russian about this technology and just have Google you know translate it so so you can get a
35:58
sense of what they're talking about they've all continued to develop this for military reasons law enforcement
36:05
reasons commercial reasons uh I mean look we all have microwaves right in in our home at at the heart that's that's
36:13
you know what this is uh for purposes of what we're talking about with ahis from
36:19
a technological standpoint the naysayers will say no uh you know to power this
36:27
type of weapon as I use air quotes requires something you know large you
36:32
know you'd have to have a truck uh not if you read through the technology articles and you talk to people who work
36:39
in the field not at all do they need to have that type of large device or power
36:46
uh generator to be able to do uh what we're talking about intent is is really
36:54
the real missing factor for us to be able to figure out a lot of these issues
37:00
whether it's international law or domestic because we don't as I alluded
37:05
to we don't know whether or not this is
37:11
a surveillance type device where the target is the electronics our cell phone
37:18
on our person our computer in our home and the impact on the human is secondary
37:26
as a collateral impact or uh is the human the intended
37:33
target and until again we capture either a weapon or device or person who's who's
37:40
using this we we probably won't know or we do know when it's in the classified sector that can't be discussed
37:48
uh what we what from my standpoint at least post Havana it is such a prominent
37:56
conversation now that if this is a surveillance or data extraction device
38:03
whoever the adversary or perpetrator is knows it's having a negative harmful
38:10
impact on the people so to me that raises it up to uh you know some sort of
38:17
weaponized technology but you know we'll have to wait and obviously see but there
38:23
there is just so much information out there in the public sector
38:28
uh it it it just stuns me when when folks are trying to say for example this
38:33
is a uh this is a psychosomatic situation which which
38:39
there are people who are saying that uh some of whom have ties to the Cuban government uh understandably the Cuban
38:47
government has been trying to distance itself from being accused to be the
38:52
perpetrator so actually I don't I don't blame the Cuban government for wanting to do that but it is clouding uh the the
38:59
issue I I dealt with this issue back in the first Gulf War with Gulf War
39:04
syndrome issues and then the anthrax vaccine uh where oftentimes you can't
39:10
explain what the medical impact is on people from some source that all of a
39:17
sudden you start saying n it's just might might be psychosomatic and and I'm not going to rule out that psychosomatic
39:23
has an impact on some people uh without a doubt uh but the reality is the vast
39:28
majority of people they had no idea of one victim versus another um this wasn't
39:35
even though it might have been in the newspaper in 2016 or 2017 from Havana
39:40
the the folks that were based in Africa and on the European continent uh with
39:45
the US government they they had no idea uh what was going on with this and again
39:51
uh I can tell you which doesn't get reported as much there there are children who have been impacted there
39:57
are infants who have been impacted there are pets that have been impacted I I'm
40:02
pretty confident that that they are not subject to psychosomatic uh you know impacts from
40:11
from their parents you know when you got a seven-year-old who's describing the
40:16
the same Sy symptoms where they have no clue what their parents went through
40:21
because as I think Butch mentioned quite a number of these incidents are actually
40:26
occurring in in their residence not at their embassies or work locations there
40:32
are work location incidents especially in the United States and at some of our
40:38
embassies uh that have impacted our Personnel but at least anecdotally uh
40:44
most of the incidents have occurred at people's homes and uh I will
40:51
say you know the Spy versus Spy game which most of us only know from
40:56
television or movies uh Beyond those that of us that actually work in the arena uh you know many many of our our
41:04
spies are declared so the other governments know who they are and they
41:10
know where they live in fact in the most hostile of the countries It's usually the other government that's providing
41:17
the housing for our people so they totally know where where they reside uh
41:25
and you know you talk to any of our of our Intel officers who have worked in the Hostile Arenas like uh any Soviet
41:33
error occupied country or Russia uh or even Russia allies now you know they
41:40
they are followed everywhere they go I mean it's a game uh in that industry so
41:47
it it's not that difficult to figure these things out I I put in the chat a link to the 60 Minutes episode uh one of
41:55
the things that blew my mind in the 60 Minutes episode that was done by
42:00
civilians by journalists investigators uh to tie the Russians to some of these
42:09
incidents uh was a particular incident in Frankfurt of Germany I believe it was
42:15
where I I don't even know how they got this but they the the private sector folks were able to obtain a a voice
42:22
recording a telephone recording in Russian uh I'm sure there are people in Germany
42:29
who speak Russian but still in Russian recorded at the time there was an
42:35
incident occurring and the Russians were talking about should something to the
42:40
effect I'll paraphrase should we leave the device there uh I I mean the
42:47
circumstantial evidence is overwhelming and again in The Clash fight Arena it
42:52
goes beyond that but publicly the US government says there's nothing to see here
42:57
there is no foreign government uh adversary that is impacting attacking
43:03
anyone that's what the US government says publicly I I I will tell you I I I
43:10
don't buy it I don't accept it not from what I've seen
43:15
internally Mark I also add a parenthetical and support of what you're saying the changes to the white matter
43:21
of the brain there was a lot of experimentation and research that was done on the utilization of all
43:27
ultrasound on internal organs and mammals including mice the use of ultrasound and it caused the thickening
43:33
of the outer layers of internal mammal organs which was consistent with a
43:38
traumatic brain injury that was reported changes in the white M the brain totally
43:44
consistent there was no consistency so spin away from it that's
43:51
Su supportive sometimes right answers the experimentation and research that was done on mice internal mammal organs
43:56
with ultra came up with the exact same sorry that's parenthetical and support so it's not psychosomatic don't
44:04
have internal stages the white matter of the brain and thickening of the outer
44:11
skins of organs as well ASAS from
44:19
imagination yeah does anybody have either Butch if you want to add or
44:24
if anybody has any questions uh besides that that I'm responding to in the chat
44:30
yeah no I just going to look in and see if anybody had any other questions that they wanted to surface
44:36
here Mark did you answer that one that guy died in Ukraine oh yeah yeah so that
44:41
that was phenomenal so that was one of my clients um in Florida with the FBI
44:47
that interacted with this guy uh and you know there's 60 minutes which did
44:55
two you know 60 minutes is is um it's a three usually three different segments
45:00
in the in the hour or the 48 minutes they did two on ahis in the most recent
45:06
episode so that's pretty significant and of course they can only scratch the surface I mean we know a lot more about
45:12
this guy than was uh ever made public and uh the story was is just phenomenal
45:19
as to what this guy was doing uh it was it happened down in the Florida Keys and
45:25
and uh for those who ever gone down to the keys if you go down to you know mile marker one uh you know 90 miles from
45:33
Cuba and you can see there's there's tons of of uh activity U you know
45:39
electronic devices everywhere because the our government has lots of things going on down there and the keys are a
45:46
hotbed of intelligence activity here in the United States for foreign governments uh particularly Chinese and
45:53
Russian and I'm talking about publicly uh information public information about that um and so this guy uh you know was
46:02
was caught by local law enforcement for the county in the keys for for speeding
46:08
uh like really speeding 100 plus miles an hour for like two hours uh as they
46:14
were tra chasing him uh and he had all sorts of devices that were strange uh
46:20
especially the local sheriffs uh on his person uh and there there is video of
46:27
him they only show a tiny tiny bit but there is there's a there's a camera in the police vehicle right you know so
46:34
he's sitting in the car talking to himself for for a significant amount of
46:40
time and he's saying lot of wacky things but he's also saying some things that if
46:45
if you're an Intel officer it makes you really scratch your head as to what he's talking about and and why is is it that
46:54
he he let himself stay in jail for a period of time and and not get bailed
46:59
out by his wife who was here in the United States as I recall at at the time
47:04
and then as soon as we we found him again he he left the United States and
47:12
we found him and literally as soon as we found him and we were making plans of what to do we found proof that he had
47:19
just died in Ukraine apparently he got shipped off to Ukraine to fight um which
47:27
is also a little bit strange quite frankly given what his training back background was uh he he was a chef here
47:35
in the United States he was on a Fox News or Fox channel Chef program at one
47:41
point but the guy was trained in uh I
47:47
I'm forgetting which but like biochemical Weaponry or something like that back in Russia uh so something you
47:55
know way way above my head uh of anything and of a level from what
48:01
I'm told that if you're trained in that and if you know about the Russians how
48:07
they you know they choose who's going to go train in something because they have a purpose for that person uh so the fact
48:15
that they was they were trained in something that has military application
48:20
Military Intelligence application you don't just let that guy immigrate to the United States to become a chef that's
48:27
just highly unusual so like you know think the the Americans television program uh or um or uh what's her what's
48:36
her name uh the the illegals actually more of the illegals than the Americans
48:42
um that were captured uh back in 2010 uh or so um of which there's quite a number
48:48
here in the United States it's a lot easier to operate here in the United States than it is for us to operate overseas I I'll add one final point on
48:55
that to kind of supp some of the stuff that that Butch was saying too um one of
49:01
our concerns is you ask like why hasn't the US government responded to whomever the
49:08
adversary or actor might be uh one I I
49:14
think there have been responses behind the scenes from what I'm told uh
49:19
basically you know you better cut it out type admonitions uh but two uh I still have
49:27
concerns and and I have no proof of this I just raise it as sort of Common
49:33
Sense especially when you see the public literature from within the defense department of uh developing the this
49:41
technology both from an offensive and a defensive standpoint uh my question is have we
49:48
been doing this to them at of some level again especially if it's a data
49:53
extraction technology versus a a harmful technology uh and you know if if we are
50:01
and I can't fathom we're not quite frankly um but if we are if we've harmed
50:07
any of their people unintentionally or intentionally that obviously would
50:13
impact our ability to say something publicly or react to the other adversary
50:22
just like what but is saying about cyber warfare uh you know there's there's a
50:27
reason why no one's gone to War real War uh from a cyber in the in the aftermath
50:35
of a cyber standpoint because they do it to us and we do it to them uh and it
50:41
goes back and forth uh you know all day long and uh that would be a bad thing if
50:46
we went to war uh my final comment I said this in I think in the last one I think the way that this is going to be
50:52
addressed if ever and practically maybe never uh it it's I I think it needs to
50:58
be the subject of a of an International Convention treaty uh at the un uh in the
51:04
same way we dealt with aircraft sabotage can't you can't destroy civilian
51:10
aircrafts uh from one country to the next uh in the same way we dealt with war crimes genocide torture
51:16
extrajudicial killing uh do we need to set a framework of of what can and
51:21
cannot be done to uh not only civilian Personnel of course but
51:27
uh civil servants uh military there's got to be some uh line of uh legal
51:35
framework uh and it just doesn't exist because the nobody apparently had ever really thought about it before from a
51:41
technological standpoint uh in this way uh now you know I don't know if the UN
51:47
has the capability to do anything like that obviously right now that's that's a separate debate but I think that's where
51:54
frankly we're going to have to go because if if we are using it and the Chinese are using it and the Russians
52:00
are using it then none of them have any inclination or incentive to do anything
52:07
internally domestically legislative wise to stop that or
52:13
or uh what word I want not not monitor to to uh set up a framework as to its
52:21
use or non-use uh it's it's probably going to have to come from a lot of the other countries who don't use the
52:36
technology yeah so I say Glenn and Johnson wrote about the we did this to them the Cold War so the best thing if
52:42
you want to read some historical stuff just Google Moscow signal uh which was
52:48
the Russians the Soviets bombarding our Embassy for decades in Moscow with
52:54
low-level microwaves uh and there's a ton there's thousands and
52:59
thousands of pages of documents that have been Declassified that are particularly up on the National Security
53:06
archives out of George Washington University's website uh where you can go
53:12
and and read about this uh it's and there was Congressional hearings that
53:17
occurred in the Senate Commerce Committee back in the late 70s about this uh to to monitor we we knew they
53:24
were doing it for years every single day we took readings of what the level of
53:31
radiation was Upon Our Embassy before it was publicly revealed that we knew the
53:38
Soviets were doing this and still to this day as far as I'm aware and this
53:43
has been a pet peeve of mine uh on the inside of telling Congress to do something about this uh we we don't know
53:51
what impact that had on our Personnel you know we had staff that would serve for years in our embassies uh over there
53:59
who were being bombarded with low-level microwaves um did that have any impact
54:05
on them you know there's a reason why when we go all of us go to take you know get our our X-rays and the technician
54:11
steps out of the room uh because they would otherwise be exposed to it every single day well these people were so
54:20
what happened to them you know did did anything happen did they develop cancers years or decades later uh and and I know
54:27
of cases where many
54:36
of you broke up a little Jonathan try again bra and cancer yeah nope there
54:41
have there have been some I mean even in recent years uh we know of quite a number of CIA from s our research also
54:49
from the microwave brain cancer it was brain cancer yeah uh I mean there there is
54:55
also a theory
55:00
that our own technology that is in use by uh military
55:07
personnel may be impacting
55:13
them sorry my cat's howling over here uh that I mean just think of and and I I'm
55:19
just generically saying this um think of the electronic devices that
55:26
many of our military wear uh and you know we all know that you know there was
55:33
all sorts of concerns you know is our cell phone giving us brain cancer Etc you know and and and I'm not going to go
55:39
down that route or if you live next to a a a electric power plant you know is
55:44
that impacting you or the wires up above you know lots and lots and lots and lots of theories and science about uh is that
55:51
good is it bad whatever it might be but but there are uh some concerns
55:57
that some of the technology that we have been using against our adversaries uh
56:02
may be impacting our own people uh in in a negative way in an unexpected and
56:09
unanticipated
56:15
way thank you Markt would you like to
56:21
respond I don't I don't know what to say that that hasn't already been said
56:27
I know we're getting close to the end here right well then I can open up I can open up the floor to questions and
56:33
parenthetically Mark correct from the research that I
56:39
did leem and us us Personnel uh in the in the US Embassy the former Soviet
56:46
Union so it's interesting that you noted that um also I'd like to mention if I can the recent passing of of of Zoe
56:54
malun which is theoretically also from her exposure not theoretically from her exposure to director
57:02
sot that's another person that just paid the ultimate price for
57:07
Service so Mark any comments about Zoe or Robert before we
57:13
close no there's a question in the there's a question in the chat here it's from Larry backer um to what extent are
57:21
non-state actors deployed with these instruments as unofficial agents of a state
57:27
um or given access to the tech right
57:32
um so I don't know the wait where'd it go oh it's slid down uh
57:39
sorry where oh there it is um somebody else's uh questions popped in and so it
57:44
keeps pushing it down to the where I can't read it uh yeah so to what extent are non-state
57:51
actors deployed with these instruments as unofficial agents of a state or given access to the T say the Russian proxy in
57:57
the Sahara is that happening I don't know if it is happening um the international law of
58:04
State responsibility says the state it's as though the state is doing it itself remember there were three uh three
58:10
categories there Direction and control or uh assistance and encouragement or by
58:15
proxy uh coercion of another state so if any of those three and they're fact dependent right um whether it rises to
58:22
the level of Direction and control or whether it's e but either way the state
58:28
is on the hook for that even if it's a non-state actor acting at the state's behest or being enabled by the state
58:35
that may be enough to make the state responsible in other words they can't just pass this off and say well that's
58:41
the Wagner group um yeah but okay but it's the Wagner group but they're acting on behalf of who under the direction in
58:47
control the Russian government or you know with the assistance even if they're on contract with a different government
58:54
if they're being assisted in this in utilizing this technology in a wrongful way to commit an internationally
58:59
wrongful act that is still attributable to the Russian
59:04
government for example I'm not accusing Russia of anything but I'm not not
59:11
either we reserve judgment yes
59:21
indeed Mark and Robert par out a question you mentioned the
59:26
of un now the same concept with cyber and viruses to try to create some sort of international invention to regulate
59:34
some of those quote gray area unquote operations that's a great idea Mar especially as it relates to you know no
59:41
no touch technology and the kind of can be
59:46
deployed and this way we can also raise a awareness I think the is a great vehicle viruses cyber viruses another
59:54
great opportunity in the same area as Robert mentioned those great area that
59:59
are below the threshold an actual quote active War yeah I I don't think we'll ever see
1:00:06
so will there be a convention to regulate this um you know possibly I don't think you'll ever see a cyber
1:00:12
convention for the same reason that what you're seeing in in you're not seeing any of the nuclear States uh jumping on
1:00:19
the bandwagon to for the for the nonproliferation treaty you're just if you've got that kind of capability
1:00:26
really really critical to your National Security you're not going to voluntarily sign up to we're just past the days
1:00:31
where that's going to happen you 194 1949 was a very unique juncture in
1:00:38
history that enabled the Geneva conventions uh to go go through um we could never replicate that now uh 19 uh
1:00:47
51 what or 49 and 51 were really really unique junctures in history that made
1:00:53
the North Atlantic Treaty possible we could never replicate that now because
1:00:58
uh the Delta between states and their capabilities has grown so there's there's there's states that are just run
1:01:04
away with the Technologies and then there's everybody else and the states that are way out in front on these things are just on Cyber in particular
1:01:10
the United States in particular it's just not going to give up that Advantage by self-c constraining itself because
1:01:16
it's such a crucial tool is this as crucial a tool as cyber I don't know I
1:01:21
mean if it's if it's if it's if instead of being targeting the people people is targeting uh you know Communications
1:01:28
nodes for example and the as Mark was saying if the effects are just uh secondary to this primary intelligence
1:01:35
gathering activity then we're probably not really excited about tying our tying our hands there either so I I think that
1:01:42
the idea the days of these kinds of wide- ranging tradies where great Powers
1:01:47
self constrain themselves are pretty much over interesting Robert I don't know if
1:01:55
I can up I don't know if you're sto with me but very interesting you noted that because also we talk about the domains
1:02:01
of the turns the Cyber is a new domain ofs against the Russian Federation or
1:02:09
the Chinese equivalent want to restrict or limit that capability if it's a fouring of actual deterrence the way we
1:02:17
had Triad previously but I I Mark Mark's comments I think are worthy of
1:02:23
consideration and maybe on the Lesser level cyber not completely a cyber but at
1:02:30
least as relates to certain types of viruses maybe some sort of a convention or Mutual you know even Mutual
1:02:35
understanding bu between states would help to regulate especially on those great areas I don't know but that was my
1:02:42
my short Point 100% Robert correct Rob states are not limit the capacities especially cids and other demanding TS
1:02:49
Mark any last um comments it was extraordinary presentation both of you
1:02:55
and I didn't have the opportunity at the beginning because we jumped right right in but this is the monthly meeting a joint meeting of the senior lawyers
1:03:02
division I'm sorry go ahead now go ahead go
1:03:08
go of the senior lawyer division of the American Bar Association the international committee and the National Security Committee of the section of
1:03:15
international law please go ahead Mark when you finish you and Robert I'll some
1:03:20
now just my final comment is this is just the beginning we're we're not at the end of this conversation this is
1:03:26
this is literally just the
1:03:31
beginning some don't want to have that conversation because it's kind of those gray area types of technology that
1:03:37
people don't want brought above the surface we can do some bad of our president bad sh get away with
1:03:46
it and we didn't want to do any more of that bad sh but unfortunately that's quite part of that badass
1:03:52
age anyway Jens thank you so much to both you Mark and you Robert and I
1:03:57
didn't explicitly use the word s I just said thank you so much for an extraordinary presentation um next month
1:04:03
hopefully same B Time same B Channel and hopefully we'll have a discussion about Ai and Predictive Analytics and that
1:04:10
that can be married to op surveillance and the pros and the cons and the mistakes that that have been made thank
1:04:16
you so much awesome Yep thanks everyone take care see you mark thank you
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