Category Archives: Vol. 6 No 1.

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.

CIA and the Rule of Law

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.

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

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.

 

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 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.