The goal of this article is to join the current public debate about a “national security court” for the prior approval of lethal counterterrorism operations, or, as some have put it, a “drone court.” Many have come down forcefully on one side or the other on the idea. This article explores the pros and cons of […]
Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information
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 […]
Even If It Ain’t Broke, Why Not Fix It? Three Proposed Improvements to the Uniform Code of Military Justice
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 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.
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 […]
Educating National Security Lawyers for the Twenty-first Century: The Intersection of National Security Law and International Affairs
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 […]
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 […]
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 […]
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 […]
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.
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.
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.
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.
Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?
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.
From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism Investigations
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.
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. All intelligence activities of the Agency must be properly authorized pursuant to, and must be conducted in accordance with, the full body of national security law that has been put in place over the six-plus decades since the creation of the CIA.
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, […]
Virtual Checkpoints and Cyber-Terry Stops: Digital Scans To Protect the Nation’s Critical Infrastructure and Key Resources
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 […]
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.
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.