nationalsecuritylaw forthcoming scholarship

July 20, 2014


The Cyber-Law of Nations

Kristen Eichensehr (UCLA)

Georgetown Law Journal, Vol. 103, No. 2 (2014)

Concerns about cyberwar, cyberespionage, and cybercrime have burst into focus in recent years. The United States and China have traded accusations about cyber intrusions, and a December 2012 U.N. conference broke down over disagreements about cyberspace governance. These events show the increased risk of cyber conflict and the corresponding need for basic agreement between states about governing cyberspace.

States agree that something must be done, but they disagree about almost everything else. Two competing visions of cyberspace have emerged so far: Russia and China advocate a sovereignty-based model of cyber governance that prioritizes state control, while the United States, United Kingdom, and their allies argue that cyberspace should not be governed by states alone.

Prior academic writing has focused on cyber issues related to states’ regulation of their citizens, but this Article addresses the now-pressing state-to-state issues. A limited analogy to existing legal regimes for the high seas, outer space, and Antarctica shows that global governance of cyberspace is possible. Moreover, these existing regimes provide a menu of options for governance and establish a baseline against which cyber governance can be assessed.

The Article examines three fundamental questions that states have answered for the other domains and must now answer for cyber: (1) what role, if any, private parties should play in governance; (2) how the domain should be governed (no governance system, treaty, or norms); and (3) whether and how to regulate military activities in the domain. The answers for the old domains were similar — multilateral governance, governance by treaty, and some level of demilitarization. But cyber differs from the old domains in important ways that suggest the answers for cyber should be different. This Article argues for multistakeholder governance, governance through norms, and regulated militarization.

Drones/Targeting/Autonomous Weapons

Autonomous Weapons and Human Responsibilities

Jack M. Beard (Nebraska)

45 Georgetown Journal of International Law, 617 (2014)

Although remote-controlled robots flying over the Middle East and Central Asia now dominate reports on new military technologies, robots that are capable of detecting, identifying, and killing enemies on their own are quietly but steadily moving from the theoretical to the practical. The enormous difficulty in assigning responsibilities to humans and states for the actions of these machines grows with their increasing autonomy. These developments implicate serious legal, ethical, and societal concerns. This Article focuses on the accountability of states and underlying human responsibilities for autonomous weapons under International Humanitarian Law or the Law of Armed Conflict. After reviewing the evolution of autonomous weapon systems and diminishing human involvement in these systems along a continuum of autonomy, this Article argues that the elusive search for individual culpability for the actions of autonomous weapons foreshadows fundamental problems in assigning responsibility to states for the actions of these machines. It further argues that the central legal requirement relevant to determining accountability (especially for violation of the most important international legal obligations protecting the civilian population in armed conflicts) is human judgment. Access to effective human judgment already appears to be emerging as the deciding factor in establishing practical restrictions and framing legal concerns with respect to the deployment of the most advanced autonomous weapons.

Disposition of Suspected Terrorists

Sentencing Terrorist Crimes

Wadie E. Said (South Carolina)

Ohio State Law Journal, Vol. 75, No. 3 (2014)

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

Special Edition: Harvard National Law Journal Vol. 5, No. 2

The International Law of Unconventional Statecraft

Michael N. Schmitt (US Naval War College), Andru E. Wall (US Naval War College)

This Article examines the international law issues raised by“unconventional statecraft,” a term the Article adopts, as explained infra, inlieu of “unconventional warfare.” It questions whether, and if so when,foreign support to insurgents runs afoul of international legal normsdesigned to safeguard the sovereign prerogatives of other states. In this regard, it must be cautioned that the article assesses unconventionalstatecraft solely from the perspective of international law. Other normativerestrictions on unconventional statecraft reside in the domestic legal regime,but are not addressed. It must also be cautioned that the authors recognizethat because international law norms are usually backward-looking in thesense of responding to past events, there may be circumstances in which thelaw proves ill-suited in the face of contemporary threats. In such cases,national decision-makers may be compelled to authorize covert support torebel forces because doing so is in the national or international interest andtherefore legitimate, albeit unlawful. Of course, decisions to venture beyondthe limits of international law described in this Article should be extremely rare.

Jus Extra Bellum: Reconstructing the Ordinary, Realistic Conditions of Peace

Michael Jefferson Adams (Deputy Legal Counsel to Chairman of the Joint Chiefs of Staff)

This Article explains the international legal basis for national security activities outside of armed conflict through a legal architecture that I refer to as “jus extra bellum”-“the state’s right outside of war.” Jus extra bellum does not imagine that the end of war results in an entirely peaceful, safe planet. It does not feign ignorance of threats to national security nor erase states’ obligations to protect their citizens. It recognizes that a peaceful world is one in which states continue to conduct national security activities outside of armed conflict. Jus extra bellum accepts that such activities occur within a generally permissive international legal regime and are shaped by domestic legal authorities and obligations. It presents a legal archetype that would permit, for example: diplomacy; intelligence collection and sharing; influence operations that do not intrude on sovereignty, territory, or political independence as a matter of law, but inform and shape the perspectives of foreign populations; cyber defense and other cyber activities not rising to the level of a use of force; criminal law enforcement action undertaken with the consent and/or assistance of the government of the state in which the activities occur; security assistance and related activities to improve partner security capacity; advice and assistance against other states’ internal security challenges; economic measures like sanctions and seizures of assets; counter-proliferation efforts targeting weapons of mass destruction and improvised explosive devices; protection of natural resources; pandemic disease prevention and response; freedom of navigation and overflight assertions; peacekeeping operations; other national security actions undertaken pursuant to a UN Security Council resolution or other international legal authorization (e.g., counter-piracy operations); and certain discrete capture or lethal operations when required as a matter of national self-defense. For the purposes of this Article, the concept of jus extra bellum also provides an analytical framework for addressing hard questions about how the United States and its international partners will seek refuge from war while addressing the significant national security threats that persist in the future.

Controlling the Use of Power in the Shadows: Challenges in the Application of Jus in Bello to Clandestine and Unconventional Warfare Activities

Todd C. Huntley (Judge Advocate General’s Corps), Andrew D. Levitz (Judge Advocate General’s Corps)

The challenges of applying jus in bello to the use, and sponsorship, by states of non-state actors for clandestine and UW activities continues to remain largely in the shadows. Are non-state surrogates conducting clandestine and UW activities combatants or civilians under the law of armed conflict? What clandestine and UW activities may be conducted by non-state surrogates and which are prohibited by the law of armed conflict? What are the possible consequences for surrogates conducting prohibited activities? What activities might render an otherwise civilian surrogate a lawful military target? These questions are just a few that have remained largely unexamined.

This Article will discuss these questions and attempt to provide greater understanding of the challenges in applying jus in bello to clandestine and UW activities. This Article will begin with a brief overview of relevant terminology and definitions. Using historical examples and modern U.S. UW doctrine, it will then describe clandestine and UW activities and actors, as well as the international political environment in which those activities take place, so as to give context for later analysis. Before beginning the substantive analysis, the Article will briefly discuss the applicable legal regimes and provide a framework for the analysis that follows.

The substantive analysis will begin with an examination of the status of surrogates under the law of armed conflict. This will include an analysis of whether surrogates are combatants entitled to the combatant’s privilege or if, and under what circumstances, they lose that protection. This Section will also examine when surrogates who are members of an organized armed group could be targeted with armed force. Lastly, the Article will move on to examine the jus in bello principle that presents the greatest challenges of application to clandestine and UW activities: distinction

Special Operations Forces and Responsibility for Surrogates’ War Crimes

Gregory Raymond Bart (Deputy Legal Counsel to the Chairman of the Joint Chiefs of Staff)

This Article considers this specific issue: whether SOF teams have duties under the law of war—as interpreted by war crimes jurisprudence— to investigate and to attempt to prevent war crimes by surrogate forces. It does not address duties imposed by domestic statutes or regulations. Also, given the breadth of this topic, the Article focuses on the duties of SOF teams in the field—their tactical actions—and not those of higher, strategic, or policy-level decisionmakers. For example, consider the following scenario that might arise during an Unconventional Warfare mission. A SOF team deploys into a foreign country in either a permissive or nonpermissive environment with the mission to accomplish U.S. military objectives through, with, or by surrogates—to train, equip, advise and assist, and even lead, in varying degrees, surrogate forces in combat. Before deploying, the team knows of general rumors that some of the surrogate groups may have committed acts that would constitute serious violations of the law of war. While deployed and providing military assistance, the team hears specific rumors that the surrogates with whom they are working might be committing war crimes. No SOF members directly participate in any war crimes. Within the context of law of war jurisprudence, what are SOF’s responsibilities with respect to suspected or confirmed war crimes being committed by surrogate forces?

This Article first analyzes SOF’s criminal liability and duties under command responsibility theory—specifically, whether a SOF team’s ability to influence surrogates would amount to “effective control” so as to renderthe team responsible for the surrogates’ criminal acts. Then, the Article considers SOF’s potential criminal liability under theories that do not require effective control. Finally, the Article discusses the implications of these theories on a SOF’s duties to investigate, report, intervene, or detach from surrogates who are suspected or confirmed of committing war crimes. Recognizing the developmental link between international and domestic cases concerning war crimes, it draws examples and theories from recent decisions of U.S. courts, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), and the International Criminal Court (“ICC”). An analysis of these sources confirms that SOF generally have no legal duty under the law of war to investigate rumors of past war crimes committed by surrogates or to intervene to stop future ones. The Article concludes, however, that SOF have strong moral, ethical, and even practical motives to take some action, including to maintain the legitimacy of the U.S. military operation to the rest of the U.S. Government and the American population. Accordingly, the Article provides limited practical advice for SOF to consider when confronting a situation where surrogates may have or did commit war crimes.

The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States

Michael Bahar (Deputy Legal Advisor to the National Security Council Staff)

There is no more irregular use of force than the use of force domestically. There are rare times, however, when the Commander-in-Chief can, and must, order federal troops to respond to internal crises—whether catastrophic natural disasters, devastating nuclear accidents, or terrorist attacks. At times, the President may even have to direct federal forces to ensure the equitable enforcement of federal law, including civil rights laws, against armed opposition. It is therefore critical to understand presidential emergency and war powers relative to the powers wielded by those who could most readily enhance or undermine these presidential efforts: the power of the state governors. This Article looks at this greatly under-analyzed aspect of national security federalism and derives a guiding constitutional, statutory, and historical principle. The presidential intervention principle holds that the President can and sometimes must intervene when state and ordinary judicial proceedings cannot or will not maintain order, public safety, or the equitable enforcement of the law against armed opposition. The President may also intervene when federal personnel or facilities are in grave danger. Short of—and at times even during—these emergency situations, however, states and their governors provide a critical and often underappreciated structural check on presidential power. Finally, while irregular warfare discussions tend to focus on the Title 10/Title 50 debate, the domestic use of force implicates those titles plus Titles 18, 32, and a host of constitutional and statutory thickets, as well as opportunities, best thought of before the crisis hits.

nationalsecuritylaw Supplement for National Security Law and Counterterrorism Law

July 19, 2014

On behalf of Steve Dycus, Bill Banks, Peter Raven-Hansen, and Steve Vladeck, I forward the following announcement regarding the soon-to-be-published supplement for their wonderful casebooks:

To adopters of National Security Law and Counterterrorism Law:

This past year has yielded many developments in our very dynamic field — rich fodder for teachers and students alike. The most important are reflected in a new Supplement, available in mid-August. Among the highlights:

OLC memo on the drone killing of Anwar al-Aulaqi (released June 23, 2014)

Remarks by the President on Syria and Iraq

Presidential Policy Directive/PPD-28, Signals Intelligence Activities, Jan. 17, 2014

NSA report on privacy and FISA §702, April 16, 2014

FISA Court decisions on §702 programmatic surveillance and §215 metadata collection

Ibrahim v. Department of Homeland Security (N.D. Cal. Jan. 14, 2014) (airport screening)

Aamer v. Obama (D.C. Cir. Feb. 11, 2014) (conditions at Guantánamo, scope of habeas)

United States v. Ghailani (2nd Cir. Oct. 24, 2013) (speedy trial in civilian court)

Al Bahlul v. United States (D.C. Cir. July 14, 2014) (ex post facto, military commissions)

United States v. Sterling (4th Cir. July 19, 2013) (media shield)

These are combined with earlier materials that deal with standing to test FISA §702, the scope of the Alien Tort Statute, cyber warfare, Guantánamo detainee access to counsel, and a public safety exception to Miranda, among other matters.
Documents tracing even more recent developments will be posted throughout the coming year on the websites maintained by Aspen for the casebooks.
To ensure delivery of the new 2014-2015 Supplement to National Security Law (5th ed.) and Counterterrorism Law (2d ed.) before fall term classes begin, call your bookstore now. The ISBN number is 978-1-4548-4050-3.
Please feel free to contact us directly if you have questions or if we may be helpful in any way. Enjoy the rest of your summer.

Stephen Dycus
William C. Banks
Peter Raven-Hansen
Stephen I. Vladeck

July 18, 2014

nationalsecuritylaw PCLOB Report on Section 702

July 2, 2014

From the Privacy and Civil Liberties Oversight Board:

The Privacy and Civil Liberties Oversight Board’s Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act is now available. Although the report will not become official and the final version will not be posted until after the Board votes on July 2nd, this pre-release copy is now available for members of the press (with no embargo) and the public to preview the Board’s findings and recommendations.

nationalsecuritylaw Call for Papers: New Technology and Old Law – Rethinking National Security (TAMU Law)

July 1, 2014

From our friends at Texas A&M Law:

New Technology and Old Law: Rethinking National Security

Texas A&M University School of Law

Call for Papers

The staff of the Texas A&M Law Review invites you to participate in its Fall 2014 symposium entitled New Technology and Old Law: Rethinking National Security, to be held October 17, 2014. The Law Review’s goal for the Symposium is to facilitate scholarly discussion regarding the current national security legal framework, including whether that framework is equipped to handle technological innovations that threaten national security and to illicit proposals that would ensure the legal framework is in conformity with technology-based threats.

To accompany the Symposium, the Law Review will publish a dedicated issue covering the intersection between emerging technologies and national security law, including, but not limited to, cybersecurity and counter-intelligence, mass-surveillance and Big Data, internet freedom, asymmetric warfare, and biotechnology.

The Law Review is excited to announce the Symposium’s Keynote Speaker: William C. Banks, Board of Advisors Distinguished Professor, and Director of the Institute for National Security and Counterterrorism at Syracuse University College of Law.

The Law Review seeks submissions of articles or essays for presentation at the Symposium as well as publication in the Spring 2014 symposium issue. Please submit all materials to Dwayne Lewis, Symposia Editor, at symposia.editor by no later than July 28, 2014. To be considered for publication, please submit: (1) an abstract of no more than 750 words, (2) a curriculum vitae (CV), and (3) an indication of your willingness/availability to travel to Fort Worth, Texas to participate in the Symposium.

The Law Review staff will notify authors of their selection for publication on or before August 4, 2014. Authors selected for publication will be required to submit final drafts for editing and staff review no later than January 1, 2015.

Questions should be directed to Dwayne Lewis, Symposia Editor, at symposia.editor or you may reach our Faculty Advisor, Mary M. Penrose at megpenrose.

About the Law Review: The Law Review is a student-run, faculty-regulated law journal published five times annually by the students of Texas A&M University School of Law.

nationalsecuritylaw forthcoming/recent scholarship (privacy & surveillance)

June 27, 2014

Privacy and Surveillance

Section 702 and the Collection of International Telephone and Internet Content

Laura Donohue (Georgetown)

Harvard Journal of Law and Public Policy, Vol. 38, No. 1(2015)

Programs initiated just after 9/11 involving the interception of communications to and from the United States shifted to the 2007 Protect America Act and, subsequently, the 2008 FISA Amendments Act. It was not until 2013 that the public became fully aware that the NSA interprets its authority under FISA §702 to intercept international, and at times, wholly domestic, communications. This Article is the first to question whether the NSA’s interpretations are statutorily consistent and constitutionally sound.

The Article begins with a statutory analysis, considering targeting, post-targeting analysis, and the retention and dissemination of data. In the first category, targeting, the Article argues that the NSA has sidestepped legislative restrictions in three critical ways: by adopting procedures that allow analysts to acquire information to, from, or “about” targets; by creating an assumption of non-U.S. person status; and by failing to construct adequate procedures to ascertain whether the target is located within domestic bounds. These interpretations undermine Congress’s inclusion of §§703 and 704 and open the door to the collection of U.S. persons’ communications. In the second category, post-targeting analysis, the Article draws attention to the aim of the analysis, the failure of prior minimization procedures to account for multi-communication transactions, the use of U.S. person information to query data, and the impact of recombinant information on §702 collection. In the third category, the retention and dissemination of data, the Article notes that increasing public reliance on cryptography raises questions about the automatic retention of encrypted data, even as the breadth of “foreign intelligence” underscores the danger of looking to retention policies to delimit information retained. The use of the data obtained under §702 for criminal prosecution, while consistent with traditional FISA, fails to reflect the equivalent procedural protections at the collection stage. This discussion leads naturally to Fourth Amendment considerations.

As a constitutional matter, outside of narrowly circumscribed exceptions, a search in criminal law is presumptively unreasonable under the Fourth Amendment unless the government first obtains a warrant from a neutral, disinterested magistrate, based on a finding of probable cause of involvement in criminal activity. This applies to all searches within the United States. It does not apply to non-U.S. persons without a significant attachment to the country who are outside domestic bounds. Between these book-ends are numerous, slimmer volumes that take account of questions such as whether the search centers on intelligence gathering or criminal prosecution, whether the target is a U.S. person or a non-U.S. person, where the search takes place, and the extent to which U.S. persons’ privacy is implicated.

The Article briefly lays out this broader Fourth Amendment territory before turning to the government’s argument that §702 collection takes place subject to a foreign intelligence exception to the warrant requirement. In the nearly four decades that have elapsed since the Court raised the possibility of such an exception — and in relation to which Congress responded by enacting FISA — not a single case has found a domestic foreign intelligence exception. Pari passu, as a matter of the international intercept of U.S. persons’ communications, practice and precedent prior to the FAA turned on a foreign intelligence exception to the warrant requirement derived from the President’s foreign affairs powers. Through §§703 and 704, Congress has since introduced stronger safeguards for U.S. persons targeted for foreign intelligence purposes. By defaulting to §702, however, and “incidentally” collecting U.S. persons’ international communications, the NSA is bypassing Congressional requirements. Acknowledging that the President and Congress share foreign affairs powers, the persistent use of §702 in this manner may be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer.

Even if one takes the position that the Warrant Clause is inapposite to collection of U.S. persons’ information under §702, the FAA and NSA practice must still comport with the reasonableness requirements of the Fourth Amendment. To the extent that the target is a non-U.S. person based outside of domestic bounds, and the communications are to or from the target, the programs appear to be consistent with the constitutional mandate. But to the extent that the NSA interprets the statute to include information about such targets, in the process collecting the communications of wholly domestic communications, as well as conversations between U.S. persons, the practice fails to meet the totality of the circumstances test articulated by the Court with regard to reasonableness.

Human rights Treaties and Foreign Surveillance: Privacy in the Digital Age

Marko Milanovic (University of Nottingham)

Harvard International Law Journal (Forthcoming)

The 2013 revelations by Edward Snowden of the scope and magnitude of electronic surveillance programs run by the US National Security Agency (NSA) and some of its partners, chief among them the UK Government Communications Headquarters (GCHQ), have provoked intense and ongoing public debate regarding the proper limits of such intelligence activities. Privacy activists decry such programs, especially those involving the mass collection of the data or communications of ordinary individuals across the globe, arguing that they create an inhibiting surveillance climate that diminishes basic freedoms, while government officials justify them as being necessary for the prevention of terrorism.

The purpose of this article, however, is not to assess the general propriety or usefulness of surveillance programs or their compliance with relevant domestic law. I do not want to argue that electronic surveillance programs, whether targeted or done on a mass scale, are per se illegal, ineffective or unjustifiable. Rather, what I want to look at is how the legality of such programs would be debated and assessed within the framework of international human rights law, and specifically under the major human rights treaties to which the ‘Five Eyes’ and other states with sophisticated technological capabilities are parties.

In the wake of the UN General Assembly’s 2013 resolution on the right to privacy in the digital age, it can be expected that electronic surveillance and related activities will remain on the agenda of UN bodies for years to come, especially since the political relevance of the topic shows no signs of abating. Similarly, cases challenging surveillance on human rights grounds are already pending before domestic and international courts. The discussion has just started, and it will continue at least partly in human rights terms, focusing on the rights and interests of the affected individuals, rather than solely on the interests and sovereignty of states.

The primary purpose of this article is to advance this conversation by looking at one specific, threshold issue: whether human rights treaties such as the ICCPR and the ECHR even apply to foreign surveillance. The article will show that while there is much uncertainty in how the existing case law on the jurisdictional threshold issues might apply to foreign surveillance, this uncertainty should not be overestimated – even if it can and is being exploited. The only truly coherent approach to the threshold question of applicability, I will argue, is that human rights treaties should apply to virtually all foreign surveillance activities. That the treaties apply to such activities, however, does not mean that they are necessarily unlawful. Rather, the lawfulness of a given foreign surveillance program is subject to a fact-specific examination on the merits of its compliance with the right to privacy, and in that, I submit, foreign surveillance activities are no different from purely domestic ones.

A Rule of Lenity for National Security Surveillance Law

Orin S. Kerr (George Washington University)
Virginia Law Review (Forthcoming)

This essay argues that Congress should adopt a rule of lenity for the interpretation of national security surveillance statutes. Under the rule of lenity, ambiguity in the powers granted to the Executive Branch in the sections of the United States Code on national security surveillance should be trigger a narrow judicial interpretation in favor of the individual and against the state. A rule of lenity would push Congress to be the primary decisionmaker to balance privacy and security when technology changes, limiting the rule-making power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.

Borrowing Balance, How to Keep the Special Needs Exception Truly Special: Why a Comprehensive Approach to Evidence Admissibility is needed in Response to the Expansion of Suspicionless Intrusions

Dru Brenner-Beck (Independent)

South Texas Law Review, Vol. 56, No. 1 (2014)

Recognizing the inevitable expansion of the government’s use of the Fourth Amendment’s special needs exception to support suspicionless searches in counter-terrorism operations, this article argues that adoption of an evidentiary rule based on Military Rule of Evidence 313 is the best method to enforce the proper balance between necessary national security and individual liberties. After an extensive normative analysis of the foundations of the Supreme Court’s special needs jurisprudence, which includes not only “special needs” cases, but also traffic checkpoint and administrative search cases, I examine post 9-11 cases in both the US and Britain under section 44 of its Anti-Terrorism Act. The three lines of cases that support searches in the absence of particularlzed suspicion, as well as the British experience with section 44 searches, show that a core concern is unbridled discretion of the government agents performing the search.

While subjective intent on the part of these agents is irrelevant when probable cause is required to justify a search, a key concern in the special needs, vehicle checkpoint, and administrative inspections cases is the concern that these searches, because of the very lack of any particularized suspicion, are particularly susceptible to misuse, subterfuge, or pretext by the government. This weakness potentially eviscerates the protections of the Fourth Amendment. Because of this, Courts should be particularly concerned at ferreting out instances or programs designed to achieve illegitimate ends or which involve means prohibited by the Constitution such as profiling based on race, ethnicity, or religion. Under the current ad hoc approach, identification of programmatic purpose at the appropriate level can prove as difficult as the evaluation of an individual police officer’s subjective intent. Both remain core judicial tasks under the Fourth Amendment’s special needs exception.

A federal rule akin to Military Rule of Evidence 313, which uses the mechanism of shifting presumptions that shift the burden of persuasion to the government to disprove subterfuge at a high evidentiary level — that of clear and convincing evidence — can prove a valuable tool in the evaluation of special needs searches. Even under the special needs exception in the US, unbridled discretion is constitutionally suspect. By restoring the principled cabining of police discretion by courts through use of objective evidentiary tests, the evils of unchecked police discretion can be curtailed. I argue that the creation of an analogue Federal Rule of Evidence would serve multiple purposes. First, it provides a means for defense counsel to attack suspected subterfuge searches, legitimizing the inquiry and providing a rule under which a motion to exclude can be made, and discovery sought. Secondly, its high evidentiary burden provides incentives to the police to ensure that “special needs” searches can be justified both at their inception, and in implementation when challenged in court. Enactment of a federal rule of evidence akin to Military Rule of Evidence 313, restricting police discretion, thus contributes to the achievement of a long-term constitutionally supportable balance between national security and liberty, and recognizes that the personal autonomy and liberty protected by the Fourth Amendment is both an individual and societal good.

Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly Over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy

Stephanie K. Pell (Stanford), Christopher Soghoian (Yale)
Harvard Journal of Law and Technology (Forthcoming)

In the early 1990s, off-the-shelf radio scanners allowed any snoop or criminal to eavesdrop on the calls of nearby cell phone users. These radio scanners could intercept calls due to a significant security vulnerability inherent in then widely used analog cellular phone networks: calls were not encrypted as they traveled over the air. In response to this problem, Congress, rather than exploring options for improving the security of cellular networks, merely outlawed the sale of new radio scanners capable of intercepting cellular signals, which did nothing to prevent the potential use of millions of existing interception-capable radio scanners. Now, nearly two decades after Congress passed legislation intended to protect analog phones from interception by radio scanners, we are rapidly approaching a future with a widespread interception threat to cellular communications very reminiscent of the one scanner posed in the 1990s, but with a much larger range of public and private actors with access to a much more powerful cellular interception technology that exploits security vulnerabilities in our digital cellular networks.

This Article illustrates how cellular interception capabilities and technology have become, for better or worse, globalized and democratized, placing Americans’ cellular communications at risk of interception from foreign governments, criminals, the tabloid press and virtually anyone else with sufficient motive to capture cellular content in transmission. Notwithstanding this risk, US government agencies continue to treat practically everything about this cellular interception technology, as a closely guarded, necessarily secret “source and method,” shrouding the technical capabilities and limitations of the equipment from public discussion, even keeping its very name from public disclosure. This “source and method” argument, although questionable in its efficacy, is invoked to protect law enforcement agencies’ own use of this technology while allegedly preventing criminal suspects from learning how to evade surveillance.

This Article argues that current policy makers should not follow the worn path of attempting to outlaw technology while ignoring, and thus perpetuating, the significant vulnerabilities in cellular communications networks on which it depends. Moreover, lawmakers must resist the reflexive temptation to elevate the sustainability of a particular surveillance technology over the need to curtail the general threat that technology poses to the security of cellular networks. Instead, with regard to this destabilizing, unmediated technology and its increasing general availability at decreasing prices, Congress and appropriate regulators should address these network vulnerabilities directly and thoroughly as part of the larger cyber security policy debates and solutions now under consideration. This Article concludes by offering the beginnings of a way forward for legislators to address digital cellular network vulnerabilities with a new sense of urgency appropriate to the current communications security environment.

Law, Logarathims and Liberties: Legal Issues Arising from CSEC’s Metadata Program

Craig Forcese (University of Ottawa)

University of Ottawa Press (2014)

Two thousand and thirteen was the year of the spy. Edward Snowden – “leaker” or “whistleblower” depending on one’s perspective – ignited a mainstream (and social) media frenzy in mid-2013 by sharing details of classified US National Security Agency (NSA) surveillance programs with the U.K. Guardian and Washington Post newspapers. For related reasons, 2013 was also the year in which the expression “metadata” migrated from the lexicon of the technologically literate to the parlance of everyday commentary. The NSA revelations fuelled media, academic and other speculation about whether similar surveillance programs exist in Canada. That attention focused on Canada’s NSA equivalent (and close alliance partner), the Communications Security Establishment Canada (CSEC). CSEC does have a metadata collection program, prompting questions about its legal basis, and the extent to which CSEC is governed by robust accountability mechanisms.

This article focuses on a single aspect of this debate: By reason of technological change and capacity, have the state’s surveillance activities now escaped governance by law? A broad question with a number of facets, this article examines the specific sub-issue of metadata and its relationship with conventional rules on searches and seizures. The article concludes that the privacy standards that CSEC must meet in relation to metadata are much more robust than the government seems to have accepted to date.

Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era

Ira Rubenstein (NYU), Joris Van Hoboken (NYU)

66 Maine Law Review 488 (2014)

This Article considers the organizational and technical responses of cloud computing companies in response to the Snowden leaks, which revealed the extent of NSA surveillance of foreign citizens whose data was held by U.S. based cloud services. The industry has sought to restore trust in their services by stepping up their efforts to protect the privacy and confidentiality interests of their customers against what we call “transnational surveillance.” While the legal debate about the proper legal standards for such surveillance is ongoing, the article focuses on two broad classes of technical and organizational responses and their interaction with the law. First, leading cloud firms like Google and Microsoft have implemented long-established cryptographic protocols that secure both communications with their customers and information flows among their own company data centers. In particular, these solutions help ensure that access takes place only through the “front door” of a valid legal process involving the service providers. Second, the article explores the availability of more far-reaching security innovations based on Privacy Enhancing Technologies (PETs). These increasingly popular solutions would limit the ability of service providers to comply with government orders, notwithstanding the technical assistance provisions in existing domestic and foreign surveillance laws.

The solutions discussed raise a number of legal issues. For example, do investigative agencies have sufficient legal authority to seek court orders compelling U.S. firms to modify their services in order to facilitate surveillance? More broadly, do U.S. firms (other than telephone carriers subject to a 1994 law requiring them to design wiretap-ready equipment) have a free hand in modifying existing services, or designing new services, to make them more resistant to transnational surveillance? Or may the U.S. government rely on existing surveillance laws to oversee the design of cloud services to ensure that court-ordered access remains achievable when duly authorized by judges or magistrates?

In analyzing these issues, the article draws upon an earlier debate about encryption export controls in the 1990s (the so-called “crypto wars”). It concludes that new laws may be necessary for the U.S. government to maintain its current levels of access and that Congress may be reluctant to enact such laws in the current climate. More generally, it concludes that many of the technical and organizational measures under discussion are likely to fall short of providing the kind of absolute protection sought by certain cloud customers, especially those located abroad. At the same time, under the right conditions, these measures can help to lower some of the risks of transnational surveillance and work to restore the balance in favor of privacy, information security, and confidentiality interests in the context of cloud data

nationalsecuritylaw forthcoming/recent scholarship (capture/detention etc., separation of powers)

June 27, 2014


Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention

Jennifer C. Daskal (American University)

99 Cornell Law Review 327 (2014)

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to their appropriate limits.

The Article examines this category of noncustodial pre-crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect.

A Tale of Two Citizenships: Citizenship Revocation for "Traitors and Terrorists"

Craig Forcese (University of Ottawa)
Queen’s Law Journal, Vol. 39, No. 2 (2014)

Amending Canada’s citizenship laws to provide for denaturalization of “traitors and terrorists”, as proposed by the current federal government, is an idea consumed with legal flaws. To comply with international law on the prohibition of citizenship deprivation that would result in statelessness, any such amendments would have to apply only to individuals with dual citizenship. However, targeting those individuals would be very hard to defend against equality-based challenges under the Canadian Charter of Rights and Freedoms. In addition, denaturalization of “traitors and terrorists” might well be perceived as a punitive measure, whose impact and stigma would call for constitutional procedural protections far stronger than those set out in the current Citizenship Act and the proposed revisions to it. Such denaturalization also seems unlikely to advance any clear Canadian national security interest, and would accomplish less than can be done through other laws, including the Criminal Code.

Expatriating Terrorists

Peter J. Spiro (James E. Beasley School of Law)

82 Fordham Law Review, 2169 (2014)

There have been few episodes in which Congress has resisted counter-terror initiatives. Notable among exceptions are proposals to strip terrorists of their U.S. citizenship. The bipartisan rejection of such proposals presents a puzzle. Insofar as citizenship has historically been associated with loyalty, it would seem a costless, expressive remedy to terminate the citizenship of those who lend support to hostile entities. And yet high-profile efforts to legislate the termination of citizenship in the context of terrorist activities have fallen flat in the United States.

This essay seeks to explain the rejection of a terrorism ground for terminating U.S. citizenship. The essay first establishes the constitutionality of proposals, focusing on Joe Lieberman’s 2010 Terrorist Expatriation Act, which would have used association with foreign terrorist groups to evidence an individual’s intent to relinquish citizenship. Conforming such measures to the Supreme Court’s citizenship jurisprudence limits their utility. The Lieberman proposal could have been put to work in a very small number of cases. Expatriation would be clear-cut only where terrorist activity were coupled with unambiguous expressions of individual intent. Expatriation would do little to advance the counter-terror agenda. Few counter-terror tactics account for citizenship. Citizenship no longer buys individuals much protection.

Where the expatriation proposal lacked instrumental advantage, it might have had expressive value. The essay concludes that rejection of the expatriation measure was overdetermined, and that various contingencies and legacy understandings of U.S. citizenship undermine the expressive value of terrorist expatriation. Even as other states (including the United Kingdom) broaden terrorist expatriation practices, it is unlikely to become a dimension of the U.S. counter-terror response.

Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment

Norman Abrams (UCLA)
Journal of National Security Law (Forthcoming)

The U.S. government claims authority under the law of war to detain enemy belligerents captured in the war against the Taliban and al Qaeda for the duration of the conflict. Enemy belligerents in this war are generally regarded by U.S. authorities as unprivileged under the Geneva Conventions, and acts they commit in furtherance of the war are therefore likely to be crimes under the law of war and/or under U.S. domestic law. Regarding those belligerents who, because they are considered dangerous, have not qualified for release and transfer to another country, the government has had two choices — to detain them in military custody on a prolonged basis (for the duration of the conflict), or to prosecute them for crimes they are alleged to have committed.

President Obama has stated a strong preference for the criminal prosecution option. But for many of the detainees, prosecution is not feasible — for a variety of reasons. These detainees are likely to remain in prolonged detention. The President has described the continuing detention of these individuals as the "legacy problem," i.e. prolonged detention cases left over from the post-9/11 period.

The purpose of this paper is to address the legacy problem, in part by taking into account the fact that all of the long term detainees, both those whom it is infeasible to prosecute as well as those who can be prosecuted, can be said to have engaged in culpable criminal activity. A primary goal is to reduce the inequality between the two paths — criminal prosecution or prolonged military detention — by bringing law of war detention and criminal prosecution into closer alignment. Under the present system, choice between the paths appears to result in unequal treatment, i.e., in many cases, criminal prosecution and the imposition of a fixed term sentence for those who are convicted versus what looks like an indefinite period of detention in military custody for the other cohort (subject to the possibility of release through a periodic review process) — even though both cohorts are alleged to have engaged in culpable criminal conduct. A revised approach should, while paying heed to national security interests, not only decrease this apparent difference in treatment but also increase the chances that most of the detainees in indefinite detention might be released short of a lifetime in custody and thus give them some reasonable hope that their detention may end at some point.

Progress toward these several goals, which are closely related, can be achieved by tinkering with, and adding to the existing approach, taking into account the special features of a war against a terrorist organization — by introducing into the indefinite detention track some fixed-term criminality attributes plus a standard to be applied for continued indefinite detention, while adding to the criminal prosecution/fixed term imprisonment track a similar standard governing the possibility of a return to military custody.

US Constitutional Law & Separated Powers

International Law and Institutions and the American Constitution in War and Peace

Thomas Lee (Fordham)

Berkeley Journal of International Law, Vol. 31, No.291 (2013)

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al-Qaeda

David A. Simon (Independent)

Pepperdine law Review, Vol. 41, No. 685 (Forthcoming, 2014)

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process.

This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.

When May the President Break the Law? A Theory of Republican Prerogative

Julian Davis Mortenson (Michigan)
S. Cal. L. Rev. 87 (Forthcoming, 2014)

The events of September 11 prompted renewed debate about the three main approaches to emergency power: statutory, constitutional, and extralegal. But the central substantive problem of the extralegal approach has yet to be carefully addressed: When may the executive violate the law without a statutory or constitutional basis for doing so?

This paper identifies two principles — the privilege of republican prerogative and the obligation of a republican ethic — that combine to offer a coherent answer for certain kinds of executive lawbreaking. As its various strands have emerged from Anglo-American tradition, what I call the republican prerogative becomes available when (i) the republic faces a sudden, irregular, and existentially severe threat; (ii) the executive’s response is strictly necessary and does not exceed the scope of the exigent threat; and (iii) the executive discloses and takes responsibility for the violation. Republican prerogative may not be the only type of justifiable extralegal privilege, but it has a long (though theoretically underdeveloped) historical pedigree and a striking (though latent) coherence.

One problem remains. If the republican prerogative is extralegal in character, how can we speak intelligibly of limits on its exercise? The answer identified here emerges from what I call the republican ethic: a normative claim that our constitutional republic is an intrinsically value-bearing entity, worthy of moral consideration and creating moral obligations in its own right. On this view, the moral requirements of a republican ethic — itself grounded in a possessive embrace of our legal system — trump the legal requirements of our Constitution and laws.

nationalsecuritylaw forthcoming/recent scholarship (targeting; sovereignty)

June 27, 2014

Targeting/Drones/Use of Force at the Individual Level

Autonomous Weapons: Are You Sure These are Killer Robots? Can We Talk About It?

Shane Reeves (US Military Academy), William J. Johnson (JAG Legal Center)
The Army Lawyer, 1 (2014)

The rise of autonomous weapons is creating understandable concern for the international community as it is impossible to predict exactly what will happen with the technology. This uncertainty has led some to advocate for a preemptive ban on the technology. Yet the emergence of a new means of warfare is not a unique phenomenon and is assumed within the Law of Armed Conflict. Past attempts at prohibiting emerging technologies use as weapons — such as aerial balloons in Declaration IV of the 1899 Hague Convention — have failed as a prohibitive regime denies the realities of warfare. Further, those exploring the idea of autonomous weapons are sensitive not only to their legal obligations, but also to the various ethical and moral questions surrounding the technology. Rather than attempting to preemptively ban autonomous weapons before understanding the technology’s potential, efforts should be made to pool the collective intellectual resources of scholars and practitioners to develop a road forward. Perhaps this would be the first step to a more comprehensive and assertive approach to addressing the other pressing issues of modern warfare

"On Target": Precision and Balance in the Contemporary Law of Targeting

Eric Widmar (Naval War College), Michael Schmitt (Exeter)
Journal of National Security Law and Policy, Vol. 7 No. 2 (2014)

The law of targeting lies at the heart of international humanitarian law (IHL). As such it is the fulcrum around which discussion of combat operations revolves. The efficacy of this body of law depends on maintenance of the delicate balance between military necessity and humanitarian concerns. Mischaracterization or misapplication of IHL norms risks imbalance, thereby jeopardizing the innocent and potentially eroding State support for IHL’s application. Regrettably, while some of the current debate and commentary surrounding, inter alia, drone operations, autonomous weapons systems, cyber operations, and the current conflicts in Afghanistan, Syria, Yemen, Somalia, and Ukraine, to name just a few, is highly sophisticated, much of it has been characterized by imprecise, skewed, or wrong assertions regarding the law of targeting. It is therefore a propitious moment to revisit the structure and content of targeting law. After briefly placing the law of targeting in the broader context of IHL, this article examines the five constituent elements of a targeting operation: (1) target; (2) weapon; (3) execution of the attack; (4) collateral damage and incidental injury; and (5) location. The legality of an engagement depends on full compliance with the rules falling into each category.

The Problem of Imminence in an Uncertain World

Noam Lubell (University of Essex)

The Oxford Handbook of the Use of Force in International Law (Forthcoming, 2014)

This paper sets out to analyse the meaning of imminence in the context of self-defence, how it is to be interpreted, what it might justify and what it might exclude, and whether it is in fact a criterion that can be upheld in light of modern challenges. In particular, it covers:

• The development of the imminence requirement as a criteria for anticipatory self-defence.
• The meaning of ‘imminence’, the links to immediacy and specificity.
• Why do terrorism and WMD cause a challenge with regard to imminence, and what are the particular concerns with each of these?
• What would a new notion of imminence actually mean?
• Does imminence require certainty and can we ever be ‘certain’?
• Does the nature of the threat affect the risk analysis and approach to imminence?

International Law & Sovereignty

To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the Door for an Invasion of the Ukraine

Shane R. Reeves (U.S. Military Academy)

Michigan State International Law Review Volume 22, Issue 1 (Forthcoming, 2014)

The United Nations has been incapable of authorizing an international response to stop the mass atrocities taking place in the Syrian Civil War. This has led some concerned nations to argue for a unilateral military operation based upon the controversial international legal concept titled humanitarian intervention. Humanitarian intervention provides a distinct legal basis for the use of force when there is a moral obligation to protect victims of war crimes, genocide, or other crimes against humanity. This is in contrast to the more conservative approach known as the Responsibility to Protect. Despite the obvious appeal of invoking a progressive use of force doctrine in Syria, relying on moral authority to authorize military action raises a particularly troubling international law question: What keeps an aggressive state from invading another nation under the pretext of stopping a "humanitarian crisis"?

The legal justifications for the recent military acts by the Russian Federation in the Ukraine’s Crimean Peninsula starkly illustrate the impossibility of objectively answering this question. The Ukrainian crisis has instead demonstrated that determining when a humanitarian intervention is necessitated is a subjective and political decision. It is this subjectivity which underscores the logic of the post-World War II jus contra bellum prohibition on acts of aggression and is why using a moral argument to legally justify the use of military force dramatically increases the potential for a new age of nation-state warfare.


Get every new post delivered to your Inbox.

Join 184 other followers