nationalsecuritylaw forthcoming scholarship

Countermeasures in the Cyber Context: One More Thing to Worry About

Yale Journal of International Law (Fall 2011)

Katharine C. Hinkle

As cyber-warfare rapidly evolves from a theoretical possibility into an imminent threat, scholars have rightly focused on how international law should apply to this new security concern. Of particular debate is how to define which cyber-acts would constitute an "armed attack" implicating a state’s right to forcible self-defense under Article 51 of the U.N. Charter. The leading proposal for answering this question is an effects-based inquiry that asks whether the impacts of a cyber-attack resemble those caused by military force. But this approach is as notable for what it leaves out of the "armed attacks" category as what it brings into it. Under an effects-based analysis, a broad range of damaging and disruptive cyber-actions would remain outside the scope of "armed attacks" under international law. Jus ad bellum only gets you so far on the cyber frontier.

Cyber hostilities falling below the "armed attack" threshold are increasingly prevalent on the international stage. Because these lesser uses of cyber-force can still have disruptive and threatening effects, states will want to react to them quickly and effectively. Countermeasures—temporarily lawful actions undertaken by an injured state in response to another state’s internationally wrongful conduct—offer one acceptable response under international law. As such, they have the potential to play a central role in governing the responses of states faced with cyber-incursions.

Apart from the bare suggestion that countermeasures might have some bearing on the cyber context, little has been written on how exactly that legal framework would apply. This Essay seeks to fill that gap by using the 2007 cyber-attacks on Estonian networks as a vehicle for assessing how states might use countermeasures to respond to cyber-assaults that fall short of an "armed attack." In light of this analysis, I argue that cyber-tactics unsettle the necessity and proportionality inquiries designed to restrain how injured states can respond under the international law of countermeasures. In particular, I contend that "reciprocal countermeasures"—which have been cited by the U.S. Department of Defense and several scholars as being an effective and even preferable mode of self-help in the cyber context —are deeply problematic for an international legal regime that seeks to appropriately constrain state responses to cyber-conflict.

"Killing Al-Awlaki: The Domestic Legal Issues"

Idaho Journal of Law & Public Policy, 2012
U of St. Thomas Legal Studies Research Paper No. 11-38

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
CHRISTOPHER J. MOTZ, affiliation not provided to SSRN
Email: motz1190

The killing of Anwar al-Awlaki, an American citizen, by a US drone strike in Yemen last September, caused considerable controversy. Some critics of the Obama Administration’s decision to target and kill al-Awlaki objected that the President lacked statutory authority to conduct military operations against al Qaeda in the Arabian Peninsula (AQAP). Other critics argued that al-Awlaki may have been an effective publicist and recruiter, but had not been shown to be engaged in AQAP’s operational activities against U.S. targets. Still others claimed that as a U.S. citizen, al-Awlaki had a constitutional right to more due process than he had been given by a so-called "death panel." This essay examines the domestic legal arguments on both the "powers" side (i.e., whether the President had sufficient legal authorization) and the "rights" side (i.e., that al Awlaki was entitled to greater process). It focuses on open source material relating both to al Awlaki and AQAP. It concludes that under domestic law, the killing was lawful.

"Leashing the Surveillance State: How to Reform Patriot Act Surveillance Authorities"

Cato Institute Policy Analysis, No. 675

JULIAN SANCHEZ, affiliation not provided to SSRN
Email: julian

Congress recently approved a temporary extension of three controversial surveillance provisions of the USA Patriot Act and successor legislation, which had previously been set to expire at the end of February. In the coming weeks, lawmakers have an opportunity to review the sweeping expansion of domestic counter-terror powers since 9/11 and, with the benefit of a decade’s perspective, strengthen crucial civil-liberties safeguards without unduly burdening legitimate intelligence gathering. Two of the provisions slated for sunset — roving wiretap authority and the socalled "Section 215" orders for the production of records — should be narrowed to mitigate the risk of overcollection of sensitive information about innocent Americans. A third — authority to employ the broad investigative powers of the Foreign Intelligence Surveillance Act against "lone wolf" suspects who lack ties to any foreign terror group — does not appear to be necessary at all.

More urgent than any of these, however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. Congress should resist recent Justice Department pressure to further broaden the scope of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.

"Security vs. Liberty: On Emotions and Cognition"

THE LONG DECADE: HOW 9/11 HAS CHANGED THE LAW, Oxford University Press, 2012
Minnesota Legal Studies Research Paper No. 11-45

OREN GROSS, University of Minnesota Law School
Email: gross084

The metaphor of balancing and the use of balancing tests have been invoked so regularly since the terrorist attacks of September 11, 2001, to explain the need for a trade-off between liberty and security that they have become “ambient feature[s] of our political environment.” In their book, Terror in the Balance, Eric Posner and Adrian Vermeule argue similarly that there exists a security-liberty frontier along which tradeoffs between security and liberty take place.

This paper examines critically the tradeoff thesis and challenges its basic assumptions through the prism of cognitive theory of decision-making. It argues that the assumption of interpersonal comparability between security and liberty cannot be maintained as the two are neither comparable, in general, nor are they interpersonally comparable in the sense that Posner and Vermeule suggest. Furthermore, I argue that in circumstances of extreme violent crises acts of balancing between security and liberty – of optimizing the tradeoff between the two – are, in fact, likely to be biased in ways that ought, at the very least, to be recognized and accounted for. Significantly, the pressures exerted by acute exigencies on decision-makers, coupled with certain unique features of crisis mentality and thinking, are likely to result in a systematic undervaluation of one interest (liberty) and overvaluation of another (security) so that the ensuing balance would be tilted in favor of security concerns at the expense of individual rights and liberties. The systematic nature of those biases suggests that failure to address them may turn such mistakes and errors into cognitive pathologies, i.e., decision methods that are not only mistaken but, indeed, irrational.

"From Antiwar Politics to Antitorture Politics"

SAMUEL MOYN, Columbia University
Email: s.moyn

This paper examines the political status and cultural salience in the United States of the law of war during the era of the Vietnam conflict, for the sake of comparison with the post-9/11 centrality of concerns about detention and torture. The main question is why, when the violations of the laws of war were so much worse in the earlier period, they were not the fulcrum of public debate around war. The answer proposed is that the presence of a powerful social movement agitating against the war itself — which meant concern about aggressive warfare to the extent international law figured in public debate at all — marginalized concerns about the conduct of war. Even once My Lai came to light, atrocity consciousness fed an antiwar movement. The main groups and figures covered are the Lawyers Committee Concerning American Policy in Vietnam, Richard Falk of Princeton University, and Telford Taylor of Columbia University.

"The Use of Force Against a Non-State Actor in the Territory of Another State: Applying the Self-Defence Framework to Al-Qaeda"

IONA EBBEN, affiliation not provided to SSRN
Email: iona_ebben

The question when the use of force in self-defence against a non-state actor within the territory of another state is lawful, can be separated in two parts, namely the application of the self-defence framework against the non-state actor, which allows the defending state to assess whether force can be used against the non-state actor as an entity, and the ‘second layer’ of the principles of necessity and proportionality, which allows the defending state to assess whether force can be used within the territory of another state. The case-study of Al-Qaeda shows that the requirements of Article 51 can be applied to non-state actors, and in the case of Al-Qaeda the use of force in self-defence could be seen as lawful because the events of 9/11 qualified as an armed attack, the US reported the use of force to the Security Council, and the measures the Security Council had undertaken against international terrorism did not curtail the right to self-defence. This paper examines the cases of Afghanistan and Pakistan in order to extrapolate guidelines concerning the ‘second layer’ of the principles of necessity and proportionality, in particular the ‘unable or unwilling’ principle. It follows that this principle can be applied through a 5-step test, which include an assessment of the territorial state’s obligations under international law, the duty to request the territorial state to take measures to prevent the terrorist activities in its territory, to give the territorial state time to comply with these demands, and if the territorial state continues to fail, the defending state should assess the territorial state’s control and capacity in the region from which the threat is emanating as well as the relations between (elements of) the territorial state’s government and/or military and the non-state actor.

"Restoring the Congressional Duty to Declare War"

Rutgers Law Review, Vol. 63, No. 2, 2011
Rutgers School of Law-Newark Research Paper No. 96

AL BLUMROSEN, Rutgers, The State University of New Jersey – School of Law-Newark
Email: ablumrosen
STEVEN BLUMROSEN, Rutgers, The State University of New Jersey – School of Law-Newark
Email: steven_blumrosen

For more than a century and a half, Congress declared war as the framers of the Constitutional Convention of 1787 directed when they wrote that Congress had the “power to declare war.” But starting in the 1950’s, Congress began authorizing the President to make the determination for war and voters were deprived of the power to influence their Congressional representatives. The result has been labeled an AUMF (Authorization for Use of Military Force). It was used in the Vietnam War of 1965-73 and the 2003 war against Iraq, 2003 to the present.

The Delegates to the Convention of 1787 were determined to create a stronger executive than under the Articles of Confederation, while not copying the European idea that kings had the prerogative to take their nation to war. This tension surfaced on June 1, when the Virginia Delegation recommended that the new president have the “executive powers” of the old Articles of Confederation. Delegate Charles Pinckney of South Carolina protested that such powers might include the power to take the nation to war, which would make the Presidency “a Monarchy of the worst kind.” His objection was supported by all who spoke; the Convention voted to put the war power in Congress. Virginian James Madison then moved to give Congress the power to authorize the new President to make the decision to commence war. The Convention rejected this proposal by a vote of 7 states to 3 states, assuring that the Congress would make the decision to “make war.” Several times during the Convention, the delegates re-affirmed that the war power would be in Congress, including the House of Representatives which, at that time, was to be the only body elected directly by the voters. In August, 1787, when the Convention was working on the final text of the proposed Constitution, Charles Pinckney pointed out that Congress might not be in session when the nation was attacked. The term “make war” was changed to “declare war” to allow the President to repel sudden attacks, and Congress was allowed to permit the President to call out the Militia to execute federal laws and suppress insurrections.

In using the power to declare war during the “quasi war” with France of 1798-1800, Congress defined in detail the hostile actions that the President could take in seizing French ships and limited the time in which the President could take action. The Supreme Court, in detailed opinions, upheld the Congressional power to determine what Presidential actions could be taken. These cases, Bas v. Tingy (1800) and Talbot v. Seeman (1801), settled the power of Congress to determine the scope of hostilities.

For over a hundred and sixty years Congress declared war, from the statutory limitations of the quasi-war against France, through the War of 1812 against the British, Algeria in 1815, the Mexican War (1846), the Spanish War (1898), World War I, to the several formal declarations of all-out war in World War II. Since the beginning of the “Cold War,” however, in stark contrast with the votes of June 1, 1787 Congress has authorized Presidents to decide whether to use military force against a foreign nation. Presidential decision-making has been disastrous for our nation. Particularly in the Vietnam War of 1965-1973 and the War against Iraq, started in 2003 and continuing today, we have squandered blood and treasure – and interrupted the tranquility of domestic life – in proceeding where we had no Constitutional basis for massive intervention.

The Federal Courts have ignored the history of both the language that was included in the Constitution and the decisions that were made during the first 160 years under the Constitution. Those were years when the nation was fraught with dangers, close to home and on its borders and overseas, that were similar to the present terrors we now face. In addition, the electorate – who was supposed to be able to vote for representatives in Congress who, in turn, were given the veto power over war – is deprived of influence over their representatives.

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