Journal of National Security Law & Policy

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 [...]

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 [...]

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 [...]

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.

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.

Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan. The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.” The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.” When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.

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…

The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions.

The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure.

China’s legal approach to national security threats, and emergency situations in general, is more complex and subtle and thus richer in implications for comparative law and for understanding transnational legal influence.