Journal of National Security Law & Policy

Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information

Heidi Kitrosser — Thu, 11 Apr 2013 17:42:27 +0000

The stakes are higher now than ever before in determining the First Amendment protections due government insiders who leak classified information to the press. Prior to the George W. Bush administration, only one person in American history had been successfully prosecuted for such a leak, and only two prosecutions had been brought. The Bush administration placed greater heat on
leakers. It successfully prosecuted one leaker and opened investigations against others. The Obama administration turned the heat to levels that are stifling. By the end of its third year, the Administration had initiated six prosecutions, doubling the number previously brought by all past administrations combined.

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Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classi?ed Information

Even If It Ain’t Broke, Why Not Fix It? Three Proposed Improvements to the Uniform Code of Military Justice

Geoffrey S. Corn — Thu, 11 Apr 2013 17:42:13 +0000

In the spirit of responsiveness and resilience, this article proposes what the authors believe are three important changes to the Uniform Code of Military Justice: (1) incorporating a “no-adverse-inference” warning into Article 31(b) (the military version of Miranda warnings), (2) transforming the Article 32 pretrial investigation into a preliminary hearing process, and (3) expressly enumerating a limited category of offenses for which civilians accompanying the force in the held can be held responsible. While each proposal focuses on a different aspect of military justice – criminal investigations, pretrial hearings, and trial procedures for civilians accompanying the force – each proposal is connected to a broader theme of ensuring fairness in the system while preserving military readiness.

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Even If It Ain’t Broke, Why Not Fix It? Three Proposed Improvements to the Uniform Code of Military Justice

Chutzpah

Derek Bambauer — Thu, 11 Apr 2013 17:41:59 +0000

This article analyzes two examples of the gap between rhetoric and practice in transparent governance, Internet freedom and intellectual property negotiations, and argues that the Obama administration’s lack of transparency results from structural features of the modern executive branch.

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Chutzpah

Train Wreck: The U.S. Violation of the Chemical Weapons Convention

David Koplow — Thu, 11 Apr 2013 17:41:49 +0000

This article parses the problem of noncompliance with the Chemical Weapons Convention’s (CWC) dismantling obligations as a case study in the operation (or non-operation) of international law. How did the United States, the leading exponent of the rule of law and a prime mover in negotiating and implementing the CWC, fall into such conspicuous violation? What can be done at this point to extricate ourselves and the Russians from this grisly political and legal predicament? And what can we do in the future to avoid other similar international law train wrecks?

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Train Wreck: The U.S. Violation of the Chemical Weapons Convention

Educating National Security Lawyers for the Twenty-first Century: The Intersection of National Security Law and International Affairs

William C. Banks — Thu, 11 Apr 2013 17:41:36 +0000

Throughout its fifty-year history, the American Bar Association (ABA) Standing Committee on Law and National Security (SCOLANS) has strived to address the most important national security law issues and advance understanding among members of the bar and the public. In recent years, SCOLANS has recognized the importance of educating the next generation of lawyers to advise clients concerning national security law, including tensions between security and liberty, and anticipate problems on the horizon. The Journal of National Security Law & Policy (founded with support from SCOLANS) aims to advance the conversation on national security law and policy education and is launching a series that will focus on national security teaching and curricula.

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Educating National Security Lawyers for the Twenty-first Century

National Security Law Pedagogy and the Role of Simulations

Laura Donohue — Thu, 11 Apr 2013 17:41:23 +0000

This article challenges the dominant pedagogical assumptions in the legal academy. It begins by briefly considering the state of the field of national security law, noting the rapid expansion in employment and the breadth of related positions that have been created post-9/11. It considers, in the process, how the legal academy has, as an institutional matter, responded to the demand. The article then proposes a new model for national security legal education, based on innovations currently underway at Georgetown Law. It points to a new model of legal education that advances students in their pedagogical goals, while complementing, rather than supplanting, the critical intellectual discourse that underlies the value of higher legal education.

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National Security Law Pedagogy and the Role of Simulations

The Dark Future of International Cybersecurity Regulation

Michael J. Glennon — Thu, 11 Apr 2013 17:41:02 +0000

States are not likely to consent to new international rules that restrict the use of cyber weapons. For better or worse the conditions necessary to promote the emergence and development of legalist constraints are not present in sufficient degree to support further international rules governing cyber conflict – any more than those conditions have been present in the past to support the emergence of rules governing clandestine or covert intelligence operations of which cyber activity normally is a part.

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The Dark Future of International Cybersecurity Regulation

Unknotting the Tangled Threads of Watergate Lore

M. E. (Spike) Bowman — Thu, 11 Apr 2013 17:40:48 +0000

Reviewing Leak: Why Mark Felt Became Deep Throat by Max Holland

“Holland does more than present what is certainly a more nuanced explanation for the leaks by the whistleblower “Deep Throat.” The research that goes into this relatively short book (200 pages of text, plus exhaustive footnotes) not only collects in one place the facts surrounding the investigation of Watergate, but also assesses many of the myths that have developed around that rather remarkable period of history.”

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Unknotting the Tangled Threads of Watergate Lore

Swimming in the Ocean of Big Data: National Security in an Age of Unlimited Information

Administrator — Sat, 02 Feb 2013 14:10:38 +0000

GEORGETOWN LAW

The Journal of National Security Law & Policy and

The Georgetown Center on National Security and the Law

cordially invite you to

Swimming in the Ocean of Big Data:

National Security in an Age of Unlimited Information

Keynote Speaker

The Honorable Rajesh De, General Counsel, National Security Agency

Georgetown University Law Center

Gewirz Student Center, 12th Floor

120 F Street, NW

Washington, DC 20001

Wednesday, February 27, 2013

8:30 a.m. – 5:30 p.m.

Big Data is transforming national security capabilities. Despite massive data-storage capacity and sophisticated analytical tools for processing data from myriad sensors, the rate of data collection is outstripping our ability to analyze it. Compounding this challenge is an outdated and piecemeal legal and policy framework governing how data is collected, stored, shared, and used. “Swimming in the Ocean of Big Data” will demystify Big Data, address its challenges and potential, and chart a legal and policy framework for an evolving technology.

Twitter hashtag: #bigdata

RSVP: Big Data Symposium at Georgetown Law

* * * * *

Welcome

Denise Bell, Journal of National Security Law & Policy, Senior Symposium Editor

Dean William Treanor, Georgetown University Law Center

William Banks, Journal of National Security Law & Policy Editor-in-Chief & Professor of Law, Syracuse University

Panel 1: Mapping the Ocean: The Fundamentals, Challenges, and Applications of Big Data

The sheer amount and ever-increasing sophistication of information have overwhelmed systems to store, share, and analyze data. How can the ocean of data be turned into actionable intelligence? How can we harness transformational technology for national security while protecting privacy in a society where people both willingly and unknowingly build large individual databases about themselves?

Professor Julie Cohen, Moderator, Georgetown University Law Center

Ari Gesher, Senior Software Engineer, Palantir Technologies

Professor Sean Fahey, DHS Programs Manager, Johns Hopkins Applied Physics Lab

Professor Daniel Weitzner, Director, MIT CSAIL Decentralized Information Group & Policy Director for Technology and Society, World Wide Web Consortium

Panel 2: Building Sturdy Harbors: A Forward-Looking Law and Policy Framework for Big Data

What legal and policy framework should be applied to the privacy, civil liberties, and national security issues raised by Big Data collection, storage, sharing, and analysis? Does current law and policy adequately address these concerns? Moving forward, how will and how should law and policy catch up to govern emerging technologies?

Professor Laura Donohue, Moderator, Georgetown University Law Center

Professor Jennifer Granick, Stanford Law School, Center for Internet and Society

Alex Joel, Civil Liberties Protection Officer, Office of the Director of National Intelligence

Paul Ohm, Senior Policy Advisor, Federal Trade Commission & Professor of Law, University of Colorado

Keynote Address

The Honorable Rajesh De, General Counsel, National Security Agency

Panel 3: Charting the Future: What to Expect from Big Data

A solution-oriented roundtable discussion, this panel will feature a case study of a Big Data application under development, followed by a discussion on the legal and policy protections that should be in place to extract value from that application while mitigating the risks associated with its research, national security, and commercial use.

Professor Stephen Vladeck, Moderator, American University, Washington College of Law

Mary Ellen Callahan, Partner, Jenner & Block

Elisebeth Cook, Privacy & Civil Liberties Oversight Board and Counsel at WilmerHale

John Grant, Civil Liberties Engineer, Palantir Technologies

Greg Nojeim, Senior Counsel, Center for Democracy & Technology

Robert O’Harrow, Investigative Reporter, The Washington Post

Registration & Continental Breakfast begin at 8:30 a.m.

Keynote Luncheon begins at 12:45 p.m.

* * * * *

Twitter hashtag: #bigdata

RSVP: Big Data Symposium at Georgetown Law

This information is also available at the center’s website here.

Please contact the Journal of National Security Law & Policy at info@jnslp.com with questions.

Preventive Detention in the Law of Armed Conflict: Throwing Away the Key?

Diane Webber — Wed, 29 Aug 2012 21:39:51 +0000

Since 9/11 the U.S. government has been wrestling with the problem of how to deal with the terrorist threat on U.S. soil from al Qaeda and its affiliates. Many aspects of this problem, such as means of capture or targeted killing of suspected terrorists, interrogation techniques, and surveillance methods have been widely debated elsewhere. Here the focus is on the issue of preventive detention, which for the purposes of this article means detention of individuals suspected of being terrorists in order to forestall attacks in the post-9/11 era. This article focuses on the LOAC model of preventive detention and analyzes the legal framework, duration of LOAC detention, procedures for challenging that detention, and evolution of those procedures in the last ten years.

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Preventive Detention in the Law of Armed Conflict: Throwing Away the Key?

Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies

Linda Carter — Wed, 29 Aug 2012 21:39:15 +0000

Neither the war on terror nor torture respects borders. A multinational effort is essential to achieve accountability. This article addresses two questions related to definitions and accountability. First, why is there a need for a consistent definition? One lesson from the Bush administration torture memos is the danger of differing definitions. This question is explored by comparing the U.S. approach with that of the International Criminal Tribunal for the former Yugoslavia (ICTY), and by examining other national laws and international bodies monitoring torture issues. The second question is: What are the current limitations on available remedies that impede consistent accountability for torture? The article examines criminal and civil options in the United States and in the international criminal tribunals as examples of what we have and what we lack.

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Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies

Self-Restraint and National Security

Nathan Sales — Wed, 29 Aug 2012 21:38:37 +0000

Why does the government sometimes tie its own hands in national security operations? Much of the caselaw and scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach – that, left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes enthusiastically leap across it. This article argues that the government sometimes adopts self-restraints that limit its ability to conduct operations it regards as legally justified. The article tries to explain these restraints by consulting public choice theory – in particular, the notion that government officials are rationally self interested actors who seek to maximize their respective welfare.

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Self-Restraint and National Security

The U.S.-China Incidents at Sea Agreement: A Recipe for Disaster

Pete Pedrozo — Wed, 29 Aug 2012 21:37:29 +0000

Nearly a decade of dangerous incidents between U.S. and Soviet naval forces laid the groundwork for the negotiation and signing of the Incidents at Sea (INCSEA) Agreement in 1972. Citing the successes and benefits of INCSEA and the growing number of dangerous encounters between U.S. and Chinese forces in the Western Pacific over the past decade, experts in Beijing and Washington have increasingly argued that the time has come for the United States and the People’s Republic of China (PRC) to enter into a similar agreement. Although an INCSEA agreement could, in theory, reduce the possibility of miscalculation during un-alerted sea encounters between U.S. and Chinese naval and air forces, there are many reasons that the United States should not pursue such an arrangement.

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The U.S.-China Incidents at Sea Agreement: A Recipe for Disaster

Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?

Charles Tiefer — Wed, 29 Aug 2012 12:40:24 +0000

To find a joint way to draw down the American troops in the war zone, Congress and the President may seek congressional mechanisms to resolve their differences with interactive processes. Then, constitutional issues arise as to whether a congressional mechanism may use a legislative veto – authorization for a drawdown with a reservation of power for a vote by the two Houses of Congress – so as to let the President draw down troop levels while reserving congressional power to stop that draw down. These issues illuminate war powers in the abstract; the issues also apply concretely to the main war of the 2010s, namely, the long war in Afghanistan.

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Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?

From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism Investigations

Jonathan Gannon — Wed, 29 Aug 2012 01:09:55 +0000

After lengthy negotiations, numerous competing legislative proposals, and the expiration of its predecessor legislation, Congress passed the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) in July 2008, amending the FISA in several significant ways. To date, scholarship addressing the FAA has generally focused on aspects of the legislation other than the surveillance of U.S. persons overseas. This article examines the history of surveillance of U.S. persons overseas and the new provisions affecting such surveillance in light of several recent national security investigations indicating that an increasing number of U.S. persons are involved in terrorist activities.

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From Executive Order to Judicial Approval

CIA and the Rule of Law

Stephen W. Preston — Mon, 13 Aug 2012 17:23:14 +0000

For those working at the confluence of law and national security, the President has made clear that ours is a nation of laws, and that an abiding respect for the rule of law is one of our country’s greatest strengths, even against an enemy with only contempt for the law. This is so for the Central Intelligence Agency no less than any other instrument of national power engaged in the fight against al Qaeda and its militant allies or otherwise seeking to protect the United States from foreign adversaries. And that is the central point of this piece: Just as ours is a nation of laws, the CIA is an institution of laws, and the rule of law is integral to Agency operations.

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CIA and the Rule of Law

Dead Contractors: The Un-Examined Effect of Surrogates on the Public’s Casualty Sensitivity

Steven L. Schooner — Mon, 16 Apr 2012 13:21:32 +0000

When a nation deploys ground forces, an inverse relationship exists between the number of military deaths and public support. This stark and monolithic metric, which economists call the “casualty sensitivity” effect, requires close examination today. On the modern battlefield, contractor personnel die at rates similar to — or indeed often in excess of — soldiers, yet the U.S. public and Congress remain largely unaware of this “substitution.” This article explains the phenomenon, identifies some of the challenges and complexities associated with quantifying and qualifying the real price of combat in a modern outsourced military, and encourages greater transparency.

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The Un-Examined Effect of Surrogates on the Public’s Casualty Sensitivity

Virtual Checkpoints and Cyber-Terry Stops: Digital Scans To Protect the Nation’s Critical Infrastructure and Key Resources

Scott J. Glick — Mon, 16 Apr 2012 13:10:43 +0000

The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources, primarily owned by the private sector, are governed by a different set of constitutional principles and laws. This article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment. The article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, and ”cyber-Terry stops,” are a constitutional and effective way to minimize the cybersecurity risks to the nation. The article proposes that Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.

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Virtual Checkpoints and Cyber-Terry Stops

Outsourcing Covert Activities

Laura A. Dickinson — Tue, 24 Jan 2012 18:23:31 +0000

Over the past decade, the United States has radically shifted the way it projects its power overseas. Instead of using full-time employees of foreign affairs agencies to implement its policies, the government now deploys a wide range of contractors and grantees, hired by both for-profit and nonprofit entities. Thus, while traditionally we relied on diplomats, spies, and soldiers to protect and promote our interests abroad, increasingly we have turned to hired guns. Contrast the first Gulf War to later conflicts in Iraq and Afghanistan. During the Gulf War the ratio of contractors to troops was 1 to 100; now, with approximately 260,000 contractors working for the State Department, Department of Defense (DoD), and the U.S. Agency for International Development (USAID) in Iraq and Afghanistan, that ratio has
often exceeded 1 to 1. To be sure, U.S. history is rich with examples of contractors; the privateers of the Revolutionary period are a case in point. But our current turn to privatized labor does reflect a new trend, spurred by the post-Cold War decline of the standing military and the elimination of the draft, supported by the public’s faith (not always backed up by data) that the private sector can perform work more efficiently than government employees, and fueled by the exigencies of the war on terror in the aftermath of the attacks of September 11, 2001. Many of these modern contractors perform logistics functions, such as delivering meals to troops or cleaning latrines on the battlefield. Others guard diplomats, convoys, and military bases. But contractors have also gathered intelligence,
interrogated detainees, and engaged in tactical maneuvers, sometimes under circumstances involving hostile fire.

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Outsourcing Covert Activities

Shadow Wars

William C. Banks — Tue, 24 Jan 2012 18:22:18 +0000

Those of us who remember the 1980s lived through the Iran-Contra Affair and its labyrinth of arms-for-hostages deals, secret transfers of U.S. government funds, backdoor support for the Nicaraguan Contras after Congress cut off funding, and the duplicity of Reagan administration officials who tried to hide and then cover up what they were doing. Some of us even recall the covert war in Laos and Cambodia in the 1960s and 1970s where the U.S. military, the CIA, and various paramilitaries pursued Communist forces in campaigns that were common knowledge in the region but kept secret from Congress and the American people. A few seasoned chroniclers of our national security are even able to remember earlier secret support for paramilitary forces, coup attempts, and a plethora of covert operations that were undertaken by the United States as an adjunct to its Cold War with the Soviet Union.

In the post-9/11 environment, the United States confronted the Taliban, al Qaeda, and associated terrorist and insurgent groups, where the conventional military force that quickly forced Iraq’s retreat from Kuwait and subdued the Milosevic regime in Kosovo in the 1990s was far less effective. Paramilitary campaigns waged by the CIA and contractors became an integral part of the counterterrorism response to these new enemies, and our military greatly expanded its own capabilities to collect intelligence and carry out clandestine operations. Over time, first in the Bush administration and now in an expanded and more aggressive strategy by the Obama administration, the United States has been conducting what The New York Times described as a “shadow war against Al Qaeda and its allies”:

In roughly a dozen countries – from the deserts of North Africa, to
the mountains of Pakistan, to former Soviet republics crippled by
ethnic and religious strife – the United States has significantly
increased military and intelligence operations, pursuing the enemy
using robotic drones and commando teams, paying contractors to
spy and training local operatives to chase terrorists.

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Introduction