All posts by Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

forthcoming scholarship

“The Evolution of Wiretapping”

Engage: The Journal of the Federalist Society, Vol. 12, No. 2, Fall 2011
Paul Rosenzweig,CYBERWARFARE: HOW CONFLICTS IN CYBERSPACE ARE CHALLENGING AMERICA AND CHANGING THE WORLD, Praeger, 2012

PAUL ROSENZWEIG, George Washington University School of Law, The Heritage Foundation

The technology for communications through cyberspace have begun to outstrip the capabilities of governments to intercept those communications. This is a circumstance that has occurred in the past and likely will recur in the future. This paper traces some of that history and concludes that the questions involved are more ones of policy than of law.

“Can Counter-Terrorist Internment Ever Be Legitimate?”

Human Rights Quarterly, Vol. 33, No. 1, pp. 593-619, 2011

FIONA DE LONDRAS, University College Dublin-School of Law

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs.

“Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield”

JOHN CHARLES RICHARDSON, JMR Portfolio Intelligence

In the field of international humanitarian law, there are a number of questions about the conduct of warfare in the cyber domain. In some cases, answers can be gleaned from treaties and customary international law but in other instances, solutions are seemingly intractable, begging for solutions that may only be answered by technology itself. From a legal perspective, such oversimplifications trivialize humanitarian law as well as other legal constructs already struggling to address complex issues in the cyber realm.

It is within this context that this paper focuses on a recent event known as Stuxnet, a computer virus that infected and damaged a nuclear research facility in Natanz, Iran. Reflecting on this particular cyber attack, this paper addresses two IHL issues: Does the Stuxnet attack rise to the level of an armed attack within the meaning of international humanitarian law? If so, did it adhere to the two core principles of IHL, namely distinction and proportionality? This paper finds that the Stuxnet attack does in fact rise to the level of an armed attack within the meaning of IHL and adheres to the principles of distinction and proportionality.

Electronic Surveillance of Terrorism in the United States

William Funk

Lewis & Clark Law School
Mississippi Law Journal, Vol. 80, No. 4, 2011
This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.

The latest volume of the Yearbook of International Humanitarian Law (Vol. 13, 2010) is out. Contents [behind a pay wall, alas] include:

  • Articles
    • Robert Chesney, Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
    • Galit Raguan, Adjudicating Armed Conflict in Domestic Courts: The Experience of Israel’s Supreme Court
    • Chris De Cock, Counter-Insurgency Operations in Afghanistan. What about the ‘Jus ad Bellum’ and the ‘Jus in Bello’: Is the Law Still Accurate?
    • Ian Henderson, Civilian Intelligence Agencies and the Use of Armed Drones
    • Christine Byron, International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage
    • Rob McLaughlin, The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications
    • Alon Margalit & Sarah Hibbin, Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel’s Permit Regime and Expulsions from the West Bank under the Law of Occupation
  • Current Developments
    • Louise Arimatsu & Mohbuba Choudhury, Year in Review
    • Michael N. Schmitt, Drone Attacks under the Jus ad Bellum And Jus in Bello: Clearing the ‘Fog of Law’
    • Ivana Vuco, Domestic, Legal or Other Proceedings Undertaken by Both the Government of Israel and the Palestinian Side
    • Robin Gei?, Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala
    • Stephanie Carvin, The US Department of Defense Law of War Manual: An Update
  • Focus Topic: The Gaza Blockade
    • James Kraska, Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?
    • Andrew Sanger, The Contemporary Law of Blockade and the Gaza Freedom Flotilla

 

forthcoming scholarship

Leveling the Deference Playing Field

Kathryn E. Kovacs (Rutgers)

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different agencies, and specifically a “super-deference” standard to the military. This article demonstrates that the APA’s exception for “military authority exercised in the field in time of war,” interpreted correctly, insulates core military functions from judicial review, thus removing any basis for giving the military heightened deference as a matter of course. That exception accommodates separation of powers concerns raised by judicial interference with the President’s authority as Commander in Chief, and it removes concern about courts second-guessing military expertise in particular by making actions that directly implicate that expertise unreviewable.

 

“Regulating the Irregular – International Humanitarian Law and the Question of Civilian Participation in Armed Conflicts” Description: Free Download

EMILY CRAWFORD, University of Sydney – Faculty of Law

In the more than thirty years that have passed since the adoption of the Additional Protocols to the Geneva Conventions of 1949, there has been no revisiting of the Geneva laws, to see whether they still effectively regulate their subject-matter. Indeed, even if the Geneva Conventions were debated for revision, it seems highly unlikely that such revision would go ahead. There are so many parties that have a stake in the conduct of armed conflict that it seems doubtful that any kind of consensus could be reached. A graphic example of the difficulties of achieving consensus was seen during the Expert Process convened to discuss the concept of Direct Participation in Hostilities. Disagreements over the final text, known as the Interpretive Guidance on Direct Participation in Hostilities, resulted in almost a third of the fifty experts involving withdrawing their names from the document. Given this background, this paper will look at the history of international humanitarian law relating to regulating irregular participation in armed conflict, as a case study to demonstrate the increasingly difficult task of achieving consensus on the international plane. From the first provisions in the Hague Regulations regarding levee en masse, to the Geneva Conventions and the Additional Protocols, this paper will look at how non-conventional combatancy has been regulated, and examine the debates surrounding the expansion of the category of combatant. This paper will culminate in an analysis of the ICRC Expert Process on Direct Participation in Hostilities; and argue that both the final Interpretive Guidance, and the controversy leading up to and surrounding its publication, is demonstrative of the obvious stumbling blocks facing any new treaties regarding participation in armed conflict.

Homeland Security: What Is It and Where Are We Going?”

 

Amos N. Guiora (Utah)

CRC Press (2011)

 

As the ten-year anniversary of 9/11 approaches, one critical question persists. Have policies enacted to protect us from terrorist attacks actually made us safer, or have they merely mollified the concerned public with a false sense of security? Homeland Security: What Is It and Where We Are Going combines professional experiences, personal reflections, and academic  scholarship to provide a realistic assessment of current policy effectiveness.

Determining a Legitimate Target: The Dilemma of the Decision Maker

Amos N. Guiora  (Utah)

Texas International Law Journal, Forthcoming
Nation states are under attack by non-state actors; whether non-state actors present an existential threat to nation states is debatable, probably unlikely. Nevertheless, the threat to innocent human life that terrorism poses must not be underestimated. Because terrorist organizations have defined the innocent civilian population as legitimate targets, the state must develop and implement aggressive counter terrorism measures. That, in a nutshell, is the state of the world post 9-11. While reasonable minds may disagree as to the degree of threat that terrorism poses, there is little (never say never) disagreement that terrorism poses a (not necessarily the) threat to the nation state.

This reality has forced decision makers to address terrorism and terrorists literally ‘on the fly’. In retrospect, Tuesday morning September 11, 2001 not only caught world leaders by surprise, most were unprepared and untrained to respond in a sophisticated and strategic manner. In the US, as thoroughly documented elsewhere, the lack of preparation directly contributed to significant violations of human rights including torture, rendition, indefinite detention and unauthorized wiretapping. The executive branch in the US chose a path of granting itself unprecedented powers, with Congress and the Supreme Court largely acquiescing.

While historians will judge whether this combination made America safer, the wise words of Benjamin Franklin – “those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” – were largely ignored in the aftermath of 9/11. The ten year anniversary of 9/11 serves as a useful benchmark for looking back to gauge what measures have been implemented, to what degrees of effectiveness, and at what cost. The anniversary additionally serves as a useful benchmark for looking forward and addressing how to develop, articulate and implement changes to existing counterterrorism strategy. This article will not offer a broad retrospective of post 9/11 decisions; rather, the article will focus on the definition of legitimate target.

Discussion regarding the AMW manual is particularly relevant to the question of legitimate target. After all, air and missile warfare is directly related to the legitimate target dilemma. Any analysis of air and missile warfare must include discussion regarding defining a legitimate target and then, subsequently, determining when the individual defined as legitimate is, indeed, legitimate. In that context, the link between legitimate target and AMW is inexorable.

Two central questions with respect to operational counterterrorism are who can be targeted and for when is the identified legitimate target a legitimate target. Those two questions go to the heart both of self defense and the use of power. In a counterterrorism regime subject to the rule of law, use of power is neither unlimited nor unrestrained. Regimes subject neither to external or internal restraints may engage in maximum use of force; needless to say, operational results will be uncertain.

A comparative survey of operational counter terrorism is telling for it highlights how distinct approaches color the legitimate target discussion: The Russian experience in Chechnya presents a particularly stark example of maximum force with questionable results. Conversely, Spain’s experience in the aftermath of the Madrid train bombing reflects a different paradigm, one implementing minimum force and maximum restraint. Seven years after 204 Spaniards found their deaths at the hands of Islamic extremists, Spain – as these lines are written – has not experienced a second attack. China’s policy regarding Uyghur’s in Xinxiang Province is best captured in its name: “Strike Hard” campaigns; India, largely in the face of Pakistani supported and facilitated terrorism, has adopted a policy of restraint predicated, largely, on mutual assured deterrence. Colombia’s policy, in the face of twin threats posed by drug cartels and terrorists is aggressive, not dissimilar from China’s. Israel and the US have largely, but certainly not consistently, sought to implement person-specific counterterrorism policies. Policies implemented by the US and Israel include targeted killing/drone attacks, Operation Cast Lead, and detainment of thousands of individuals in Afghanistan and Iraq, often for what can best be described as little, if any, cause.

With the primary focus on who is a legitimate target and when is the target legitimate, the article will be organized as follows: Section I offers a ‘word of caution’ in an age of uncertainty; Section II discusses operational counter terrorism; Section III offers a survey of how the term legitimate target has historically been defined and applied in the battlefield; Section IV focuses on the non-state actor and international law; Section V discusses defining the legitimate target; Section VI focuses on the practical application of the legitimate target discussion from the commander’s perspective; the conclusion proposes a road map moving forward regarding both definition and application of legitimate target.

 

Seductive Drones: Learning from a Decade of Lethal Operations

Mary Ellen O’Connell (Notre Dame)

JOURNAL OF LAW, INFORMATION & SCIENCE AND FACULTY OF LAW, UNIVERSITY OF TASMANIA

The world’s fleets of unmanned combat vehicles (UCVs) are growing exponentially. This contribution aims to raise awareness that the very existence of UCV technology may well be lowering the inhibitions to kill. At least two sets of data indicate a problem: First, we have evidence from psychological studies that killing at a distance using unmanned launch vehicles may lower the inhibition to kill on the part of operators. Second, we have a decade of evidence of US presidents deploying military force where such force was unlikely to be used prior to the development of UCVs. This evidence indicates that the availability of UCVs lowers political and psychological barriers to killing. At the same time, an increasing number of international law specialists are arguing that it is lawful to kill terrorism suspects wherever they are found or to kill them if they are found in ‘weak states.’ These arguments seem intended to support policy decisions already taken, rather than providing rigorous analysis of the relevant international law.

International law establishes a high bar to lawful resort to lethal force. That high bar is derived from the Just War Doctrine and so reflects not just a legal norm, but a moral norm as well. Much policy on resort to lethal force, by contrast, appears to be related to Realist power politics ideology rather than international legal authority. Within Realism, resort to lethal force, killing, is acceptable to send a message of strength or to promote the perception of power in the form of military power. Even among policy makers not committed to Realist power projection there may be a belief in the utility of lethal military force to suppress terrorism that is not warranted by the record.

[nationalsecuritylaw] United States v. Younis (S.D.N.Y. Aug. 18, 2011)

A guilty plea today in a case involving a man who unknowingly provided financial support (via an illegal hawala arrangement) to Faisal Shahzad, the would-be Times Square bomber.  Details from the press release appear below, and the plea agreement is attached.

NEW YORK – Mohammad Younis pleaded guilty today in Manhattan federal court to operating an unlicensed money transfer business between the United States and Pakistan.  One of the money transfers was used to fund the May 1, 2010, attempted car bombing in New York City’s Times Square by Faisal Shahzad who is serving a life sentence in federal prison, announced Preet Bharara, U.S. Attorney for the Southern District of New York.  Younis pleaded guilty before U.S. District Judge John F. Keenan.

U.S. Attorney Bharara stated: “This case should send a clear message that we will not leave a stone unturned in our investigations of terrorists and how they get the money to finance their plots.  Mohammed Younis engaged in illegal activity that, although unbeknownst to him, facilitated the funding of a potentially lethal attack in New York City.  He was apprehended by law enforcement and as a result, a possible funding stream for terror attacks is now a dry well.”

According to the indictment previously filed in this case, other court filings and statements made during today’s guilty plea proceeding:

From January to May 2010, Younis provided money transmitting services to individuals in the New York City area by assisting in the operation of a “hawala,” a type of informal value transfer system in which money does not physically cross international boundaries through the banking system.  In the hawala system, funds are transferred by customers to a hawala operator, or “hawaladar,” in one country, and corresponding funds, less any fees, are disbursed to recipients in another country by hawaladar associates on that end.

On April 10, 2010, Younis engaged in two separate hawala transactions with customers who traveled from Connecticut and New Jersey to meet with him in Long Island.  In each of the transactions, Younis provided thousands of dollars in cash to the individuals at the direction of a co-conspirator in Pakistan, but without knowledge of how the customers were planning to use the funds.  At no time did Younis have the license to operate a money transmitting business from either state or federal authorities.

One of the individuals to whom Younis provided money was Shahzad, who, on June 21, 2010, pleaded guilty to a 10-count indictment charging him with crimes relating to his attempt to detonate a car bomb in Times Square.  During the course of his plea allocution, Shahzad acknowledged receiving a cash payment in April 2010 in the United States to fund his preparations for the attempted bombing.  According to Shahzad, the April cash payment was arranged in Pakistan by associates of the Tehrik-e-Taliban, the militant extremist group based in Pakistan that trained him to make and use explosive devices.

On Sept. 15, 2010, Younis was arrested at his Long Island, N.Y., residence by agents of the New York Joint Terrorism Task Force (JTTF).

Younis, 45, pleaded guilty to one count of conducting an unlicensed money transmitting business.  He faces a maximum term of five years in prison and a maximum fine of $250,000 or double the gain or loss arising from his conduct.  In addition, he agreed to forfeit $12,000 to the United States.  He is scheduled to be sentenced by Judge Keenan on Nov. 30, 2011, at 3:15 p.m.