Journal of National Security Law & Policy

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 [...]

The Journal of National Security Law and Policy’s Inaugural Symposium will be focusing on the problems and opportunities inherent in the relationship between Big Data and National Security as well as how that relationship can be changed and used in the future. This symposium will take place on February 27th, 2013 at Georgetown University Law Center.

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 [...]

In one of her speeches on Internet freedom, Secretary of State Hillary Rodham Clinton said that “[t]he fact that WikiLeaks used the internet is not the reason we criticized its actions.” Although Clinton is correct that it is essential to separate the technology WikiLeaks uses from its actions, the digital age has raised new concerns about the unauthorized dissemination of sensitive national security information.

The release of formerly classified documents and government cables by the whistle-blower website WikiLeaks in 2010 poses a dilemma. The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate…

* Forthcoming Scholarship With apologies for the shameless self-promotion. Note that this is a draft, and comments/criticisms are welcome. “Who May Be Held? Military Detention Through the Habeas Lens” Robert Chesney (University of Texas School of Law) 52 Boston College Law Review (forthcoming 2011) We lack consensus regarding who lawfully may be held in military [...]

During the last two years of the Bush administration, the senior leadership at the U.S. Department of Homeland Security (DHS) spent substantial time and effort in first helping to craft, and then attempting to implement, Homeland Security Presidential Directive 23/National Security Presidential Directive 54 (HSPD 23/NSPD 54), Cyber Security and Monitoring.

This article describes the information security policies and institutions of the Japanese government and draws attention to comparable policies and institutions of the U.S. government.

On May 29, 2009, President Obama released his Cyberspace Policy Review (the Review). The Review, conducted by the National Security Council and the Homeland Security Council, examined existing government initiatives addressing cyberspace security in order to develop a strategic framework to coordinate government action.

On June 23, 2009, Secretary of Defense Robert Gates established the U.S. Cyber Command as a sub-unified command under the U.S. Strategic Command in order to defend military information networks against cyber attacks.1 This organization is the most recent Department of Defense (DoD) response to the increasing threats to U.S. military, government, and commercial information systems and rapidly developing adversarial network capabilities.

In his celebrated concurring opinion in The Steel Seizure Case, Justice Jackson cautioned that “only Congress itself can prevent power from slipping through its fingers.” Jackson’s warning seems especially pertinent today, as we prepare urgently for cyber warfare – facing potentially enormous threats from yet unknown enemies, and finding ourselves dependent on staggeringly complex, unproven technology. The executive branch, which has special expertise and agility in national security matters generally, as well as substantial constitutional authority, has taken the initiative in these preparations. Yet if Congress is to be faithful to the Framers’ vision of its role in the nation’s defense, it must tighten its grip and play a significant part in the development of policies for war on a digital battlefield. It also must enact rules to help ensure that these policies are carried out.

One of the major themes of the Cyberspace Policy Review (the Review) is that a national strategy on cybersecurity must be consistent with the protection of privacy rights and civil liberties guaranteed by the Constitution and the law.

I am proud to be asked by the Journal of National Security Law & Policy to introduce this important and impressive issue. The timing could not be more critical.

For many of us, the cyber threat to U. S. national security is amorphous and not easy to comprehend. At the same time, in the last two years of the Bush administration and through the first year of the Obama presidency, cybersecurity has been characterized as “one of the most urgent national security problems facing the new administration.”

The cyber threat is the most pervasive and pernicious threat facing the United States today. Its mention does not immediately conjure visions of the catastrophic horrors that would result from an attack using a weapon of mass destruction, but today’s cyber threat is a very real and present danger.

The Internet seems to offer the promise of everything to everyone. For global and local business, it lowers costs while increasing innovation, invention, effectiveness, and efficiencies.

On February 9, 2009, President Obama gave his National Security and Homeland Security Advisors 60 days to conduct a Cyberspace Policy Review.

Hostile actions against a computer system or network can take two forms. 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.

When I was invited to participate in a forum dealing with “National Security Threats in Cyberspace,” sponsored by the American Bar Association Standing Committee on Law and National Security and the National Strategy Forum, my assigned role was to provide a “succinct and brief” explanation of how the existing Law of War (LOW) might be applied to cyber threats.

In the course of just a few decades, information technology has become an essential component of American life, playing a critical role in nearly every sector of the economy.