nationalsecuritylaw forthcoming scholarship: Chesney on the Title 10/Title 50 Debate

October 17, 2011

With apologies for the shameless self-promotion…. As many of you know, I’ve been at work for some time on a paper exploring the legal issues generated by the convergence of military and intelligence activities and institutions—a convergence symbolized by the CIA drone program and certain computer network operations, but also expressed in many other ways. I’ve just posted the draft to SSRN. Comments/criticisms are welcome, as always.

Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate

Robert Chesney (University of Texas School of Law)
Journal of National Security Law and Policy (forthcoming 2011)

One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.

I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).

My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.

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nationalsecuritylaw forthcoming scholarship

October 17, 2011

Reconceiving the War Powers Debate

Stephen M. Griffin

Tulane University Law School

Since the Vietnam War congressionalists and presidentialists have been locked into an unceasing controversy on presidential war powers. It has been increasingly difficult for each side to offer fresh evidence or new arguments. The purpose of this article and the larger project from which it is drawn is not so much to contribute to the existing scholarly debate as it is to reconceive it.

The war powers debate itself has lacked a historical context. Scholars have tended to assume that the debate is an age-old controversy from the early republic. I argue that it is fundamentally a product of the Cold War. Once we situate the war powers debate in a Cold War context, this naturally suggests that we focus on the distinctive assertions of power presidents made in this period. Over time, the academic debate has focused more on the claims of scholars than of presidents. While this is not entirely surprising, what is startling is how badly many prominent scholars have misunderstood the nature of these presidential claims. In turn, because of this misunderstanding the clarity with which the evidence from the founding period speaks to the contemporary war powers debate has not been appreciated fully. Beginning with Truman, all postwar presidents claimed that they had the unilateral power under Article II to initiate war, “real” war, full-scale war. The underappreciated crux of the war powers debate is what while this bold presidential claim was inconsistent with the historical meaning of the Constitution, it had an eminently defensible policy rationale that was widely supported, at least in the circumstances prevailing after World War II.

While I am not sympathetic to this unilateral presidential claim, the standard congressionalist critique is simply too limited. From the perspective of the executive branch, this claim did not appear extraordinary because it was encapsulated in a larger perspective, which many found persuasive, in which military force was one tool among others in advancing the foreign policy and preserving the national security of the United States. I contend that presidential war powers claims should be understood within the framework of American diplomacy generally and, more specifically, within the context of U.S. objectives and strategy in the Cold War period. The presidentialist position in the war powers debate cannot be understood and evaluated unless we have a firm grasp on the situation the executive branch faced in the early Cold War. We must expand the frame of the debate considerably in order to do this. This article and the project from which it is drawn are based on extensive research into primary and secondary sources in diplomatic history that have generally been bypassed in the traditional war powers debate.

In Part I, I describe briefly what postwar presidents have claimed with respect to their power to go to war. Like many scholars, I argue that Truman’s 1950 decision to intervene in Korea without congressional authorization marked a signal change. But while this argument is not new, scholars have been unable to offer a satisfactory explanation of why it occurred and how subsequent presidents were able to claim the Korea decision as a “precedent.” To establish the significance of Truman’s decision, in Part II I compare the power Truman and his successors claimed to the original constitutional plan for war. The specific nature of Truman’s claim allows us to establish with reasonable precision that it was inconsistent with the historical meaning of the Constitution. Along the way, I critique John Yoo’s argument that evidence from the eighteenth century supports the presidentialist position. Part III begins explaining how this constitutional change occurred by elaborating the concept of a constitutional order and describing the prewar constitutional order in which President Roosevelt made decisions prior to Pearl Harbor. Part IV completes the explanation by setting out in detail how Truman’s Korea decision grew out of the circumstances of the early Cold War.

"The PII Problem: Privacy and a New Concept of Personally Identifiable Information"

New York University Law Review, Vol. 86, 2011
PAUL M. SCHWARTZ, University of California, Berkeley – School of Law
DANIEL J. SOLOVE, George Washington University Law School

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can, in many circumstances, be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one point in time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the means to define the boundaries of privacy law.

In this Article, Professors Paul Schwartz and Daniel Solove argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. They develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 is based upon a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate their theory, Schwartz and Solove use the example of regulating behavioral marketing to adults and children. They show how existing approaches to PII impede the effective regulation of behavioral marketing and how PII 2.0 would resolve these problems.

Mopping Up the Last War or Stumbling Into the Next?”

Daniel Bethlehem

Harvard National Security Journal

The killing of Anwar Al-Awlaki last week has given sharper focus to a debate that was already raging about the use of drones, the scope of the September 18, 2001 Congressional Authorization for Use of Military Force, and the wider issues raised by John Brennan’s Harvard speech of September 16, 2011 on security and values. These are important questions that admit of reasonable argument on either side of the point. It is a mark of democracy that this debate is taking place and that its touchstones are law and values rather than simply the effectiveness of the means used to secure the policy goals.

They are not, however, the right questions for the moment. Focused on operational issues – choice of weapons, targeting, issues of co-belligerency – they obscure the broader strategic questions. Is the policy wise? Will its strategic trajectory, led by operational imperatives, leave us where we want to be? As we look to Yemen and Somalia, are we simply mopping up the last war or are we stumbling into the next? The policy in question is out-of-theater targeting, carrying the conflict into new and vulnerable geographic spaces, and who may be properly in the frame.

It is no part of this comment to suggest that the strategic policy is wrong. That is a matter to be informed by the intelligence and threat assessments and the evaluation of risk, both immediate and longer-term. Rather, the purpose is to enquire whether, under the pressures of operational decision-making, we are asking ourselves the strategic questions and whether the framework of our policy is conducive to our doing so.

Disaggregating Legal Strategies in the War on Terror

Yale Law Journal

Michael Ellis

Since the September 11th attacks, Al Qaeda has pursued a global insurgency campaign against the United States and its allies by exploiting the grievances of local guerilla groups against their home countries. In response to this global insurgency, many commentators have argued that a “disaggregation” strategy is necessary to break the ties between local insurgent groups and the globalized ideology of Al Qaeda. American counterterrorism policies have been shifting to a disaggregation approach against this global insurgency, but our legal strategies remain focused on tying local and regional extremist organizations to high-level Al Qaeda leadership.

This Comment argues that current legal strategies will prove counterproductive if they aggregate terrorist threats. The prosecution of terrorist suspects based on the material support statute and the legal basis for the use of military force against groups “associated” with Al Qaeda are two such aggregating strategies. Instead, this Comment recommends adopting disaggregation as a framework for the U.S. legal strategy against the Al Qaeda global insurgency. A disaggregated strategy could take many forms, but this Comment recommends that the U.S. government (1) seek to detain suspected terrorists in the country where they are captured rather than in centralized facilities; (2) decouple criminal terrorism prosecutions from the State Department’s Foreign Terrorist Organization list; and (3) adopt a new “use of force” statute to supplement the 2001 Authorization for Use of Military Force (AUMF).

Holder v. Humanitarian Law Project and the Potential to Cripple Humanitarian Assistance in Armed Conflict

Elizabeth Holland

Program on Humanitarian Policy and Conflict Research, Harvard University

Contemporary events are replete with examples where security concerns – whether national or human – require immediate action. Legal and policy developments in the areas of counterterrorism and humanitarianism suggest a growing incompatibility, particularly in regards to humanitarian operations during armed conflict. The rules formulated to regulate armed conflict, including the delivery of humanitarian assistance, are predicated on a balancing of military necessity and humanitarian considerations. Likewise, counterterrorism regulations evidence a weighing of national security interests and individual rights and freedoms. The delivery of humanitarian assistance during armed conflict plays a crucial role in alleviating human suffering during armed conflict. Current counterterrorism policies, however, threaten to restrict or severely hinder the ability of U.N. agencies, the International Committee of the Red Cross (ICRC) and international and local NGOs to provide such assistance. Though certainly not the only state with such regulations, the United States’ materials support statute risks severely impeding the ability of humanitarian actors to operate during armed conflict, resulting in serious deleterious effects on the civilian population in conflict.

"Constitutional Custom Reconsidered"

Harvard Foreign Relations Law Workshop: Historical Practice and the President’s War Powers, October 2011

MICHAEL J. GLENNON, Tufts University – The Fletcher School

This paper, prepared for a Harvard Law School workshop on the effect of historical practice on the President’s war powers, outlines some of the difficulties in looking to custom as a constitutional source of authority and suggests that differences between the international and constitutional legal systems argue against weighting custom as heavily domestically as it is weighted internationally.