nationalsecuritylaw forthcoming scholarship

April 9, 2013

Meaningful Membership: Making War a Bit More Criminal

Rachel Elizabeth VanLandingham

Stetson University College of Law

Cardozo Law Review (forthcoming)

Should membership in a particular group, by itself, be enough for the government to kill you? This Article starts with the classic lawyer answer of “it depends” but goes beyond it to answer yes, explain why, and recommend limits. The heart of the matter is found in how the law of armed conflict treats transnational, non-state armed groups such as al-Qaeda. When such groups are viewed analogously to state militaries, their members are lawfully subject to lethal attack based on their membership status, distinct from actual hostile conduct. By comparing this focus on status to federal criminal law’s treatment of membership, this Article exposes the current targeting paradigm’s dangerous lack of membership criteria. This legal insufficiency exposes the United States to legitimate charges of arbitrary killing.

Yet far from calling for the demise of membership-based targeting in warfare, this article defends the practice while outlining a vital need for clear legal limits. Its primary contribution is its suggestion that guidelines should be drawn from criminal law’s more developed treatment of membership and associational ties as grounds for government action. Specifically, it proposes formally incorporating 18 U.S.C. § 2339B’s conduct plus coordination model, used to prosecute material support to terrorist organizations, into the wartime membership assessment process. This Article reveals that while the wartime methodology roughly approximates the federal statute’s approach, it is legally insufficient due to its ad hoc nature, unbounded scope and lack of rigor. To fix these deficiencies in wartime identification, this Article’s normative analysis highlights both the utility of adopting the statutory model’s categorical method, and the criticality of adding a tailored scienter requirement. Without such limitations, enemy group membership is legally meaningless, and its service as grounds to kill questionable at best.

The Social Production of National Security

Aziz Huq

Cornell Law Review, Vol. 98, 2013

This Article analyzes a recent policy innovation offered by governments on both sides of the Atlantic as a means of mitigating one form of national security risk: the idea that private individuals and voluntary associations have an untapped capacity for combating terrorism and in particular al Qaeda. Bold assertions in recent strategy statements mooting this possibility have wanted for any supporting account of how private behavior conduces to security. Even if the claimed social production of security against terrorism is causally well founded, it is unclear how the state can elicit desirable private conduct. Consequently, the proposal’s legal and policy ramifications remain elusive. To begin to address these gaps, this Article develops a comprehensive analysis of three plausible causal mechanisms that might yield the putative security-related benefits of social action. I label these ideological competition, ethical anchoring and cooperative coproduction. Drawing on legal, economic, and social psychology scholarship to illuminate these three mechanisms, this Article further investigates the state’s role in eliciting potentially desirable private action against terrorism risk. The Article concludes by highlighting threshold legal, strategic, and ethical puzzles in designing policies to elicit counterterrorism’s social production — puzzles that to date have received short shrift in American counterterrorism debates.

The Geography of Cyber Conflict: Through a Glass Darkly

Ashley Deeks

University of Virginia – School of Law
International Law Studies, Vol. 89, p. 1, 2013

The unbounded geography of cyber-conflict poses particular challenges to state sovereignty. Like certain other states, the United States has asserted that it is lawful to use force in self-defense against non-state actors in countries that either give the United States consent to do so or are “unwilling or unable” to suppress the threat themselves. This article explores how the “unwilling or unable” limitation should apply when a state seeks to respond to a cyber attack. Although the limitation remains relevant when a victim state suffers a cyber armed attack that is launched from the territory of a non-hostile state, the test’s application is complicated by problems of attribution, proliferation, and secrecy about cyber-capacities. Yet the “unwilling or unable” inquiry stands between the victim state and geographically-unbounded cyber-war, and must be taken seriously.

Consent to the Use of Force and International Law Supremacy

Ashley Deeks

University of Virginia – School of Law
Harvard International Law Journal, Vol. 54, No. 1, 2013

Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.

This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.

To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.