Tag Archives: War Powers Resolution

The Laws of War as a Constitutional Limit on Military Jurisdiction

It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of their cases have managed to produce a decision on the merits from any court higher than the Court of Military Commission Review (CMCR). Instead, the federal courts have generally relied on ‘abstention’ doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.

Offensive Cyber Operations and the Use of Force

Hostile actions against a computer system or network can take two forms.1 One form – a cyber attack – is destructive in nature. An example of such a hostile action is erasure by a computer virus resident on the hard disk of any infected computer. In this article, “cyber attack” refers to the use of deliberate actions and operations – perhaps over an extended period of time – to alter, disrupt, deceive, degrade, or destroy adversary computer systems or networks or the information and (or) programs resident in or transiting these systems or networks.2 Such effects on adversary systems and networks may also have indirect effects on entities coupled to or reliant on them. A cyber attack seeks to cause the adversary’s computer systems and networks to be unavailable or untrustworthy and therefore less useful to the adversary.

The second form – cyberexploitation – is nondestructive. An example is a computer virus that searches the hard disk of any infected computer and emails to the hostile party all files containing a credit card number. “Cyberexploitation” refers to the use of actions and operations – perhaps over an extended period of time – to obtain information that would otherwise be kept confidential and is resident on or transiting through an adversary’s computer systems or networks. Cyberexploitations are usually clandestine and conducted with the smallest possible intervention that still allows extraction of the information sought.3 They do not seek to disturb…

National Security Law Advice to the New Administration

By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …