nationalsecuritylaw forthcoming scholarship

"The Evolution of Wiretapping"

Engage: The Journal of the Federalist Society, Vol. 12, No. 2, Fall 2011
Paul Rosenzweig,CYBERWARFARE: HOW CONFLICTS IN CYBERSPACE ARE CHALLENGING AMERICA AND CHANGING THE WORLD, Praeger, 2012

PAUL ROSENZWEIG, George Washington University School of Law, The Heritage Foundation

The technology for communications through cyberspace have begun to outstrip the capabilities of governments to intercept those communications. This is a circumstance that has occurred in the past and likely will recur in the future. This paper traces some of that history and concludes that the questions involved are more ones of policy than of law.

"Can Counter-Terrorist Internment Ever Be Legitimate?"

Human Rights Quarterly, Vol. 33, No. 1, pp. 593-619, 2011

FIONA DE LONDRAS, University College Dublin-School of Law

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs.

"Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield"

JOHN CHARLES RICHARDSON, JMR Portfolio Intelligence

In the field of international humanitarian law, there are a number of questions about the conduct of warfare in the cyber domain. In some cases, answers can be gleaned from treaties and customary international law but in other instances, solutions are seemingly intractable, begging for solutions that may only be answered by technology itself. From a legal perspective, such oversimplifications trivialize humanitarian law as well as other legal constructs already struggling to address complex issues in the cyber realm.

It is within this context that this paper focuses on a recent event known as Stuxnet, a computer virus that infected and damaged a nuclear research facility in Natanz, Iran. Reflecting on this particular cyber attack, this paper addresses two IHL issues: Does the Stuxnet attack rise to the level of an armed attack within the meaning of international humanitarian law? If so, did it adhere to the two core principles of IHL, namely distinction and proportionality? This paper finds that the Stuxnet attack does in fact rise to the level of an armed attack within the meaning of IHL and adheres to the principles of distinction and proportionality.

Electronic Surveillance of Terrorism in the United States

William Funk

Lewis & Clark Law School
Mississippi Law Journal, Vol. 80, No. 4, 2011

This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.

The latest volume of the Yearbook of International Humanitarian Law (Vol. 13, 2010) is out. Contents [behind a pay wall, alas] include:

  • Articles
  • Robert Chesney, Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
  • Galit Raguan, Adjudicating Armed Conflict in Domestic Courts: The Experience of Israel’s Supreme Court
  • Chris De Cock, Counter-Insurgency Operations in Afghanistan. What about the ‘Jus ad Bellum’ and the ‘Jus in Bello’: Is the Law Still Accurate?
  • Ian Henderson, Civilian Intelligence Agencies and the Use of Armed Drones
  • Christine Byron, International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage
  • Rob McLaughlin, The Law of Armed Conflict and International Human Rights Law: Some Paradigmatic Differences and Operational Implications
  • Alon Margalit & Sarah Hibbin, Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel’s Permit Regime and Expulsions from the West Bank under the Law of Occupation

Current Developments

  • Louise Arimatsu & Mohbuba Choudhury, Year in Review
  • Michael N. Schmitt, Drone Attacks under the Jus ad Bellum And Jus in Bello: Clearing the ‘Fog of Law’
  • Ivana Vuco, Domestic, Legal or Other Proceedings Undertaken by Both the Government of Israel and the Palestinian Side
  • Robin Geiβ, Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala
  • Stephanie Carvin, The US Department of Defense Law of War Manual: An Update

Focus Topic: The Gaza Blockade

  • James Kraska, Rule Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of the Sea?
  • Andrew Sanger, The Contemporary Law of Blockade and the Gaza Freedom Flotilla
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