nationalsecuritylaw forthcoming scholarship: Does It Really Matter, Legally, Whether We Persist with the Armed Conflict Model of Counterterrorism?

September 27, 2013

Forthcoming Scholarship (shameless self-promotion edition)


Harvard National Security Journal (forthcoming 2014)

Robert Chesney (University of Texas School of Law)

Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? Critics of the status quo regarding the use of lethal force and military detention tend to assume that it matters a great deal, and that shifting to a postwar framework will result in significant practical change. Supporters of the status quo tend to share that assumption, and oppose abandoning the armed-conflict model for that reason. But both camps are mistaken about this common premise. For better or worse, shifting from the armed-conflict model to a postwar framework would have far less of a practical impact than both assume.

Consider lethal force first. The Obama administration has made clear that lethal force would remain on the table even under a postwar model, and more specifically that it would remain an option against “continuous” terrorist threats. This in itself is not surprising; the U.S. government took a similar position for decades preceding 9/11. What is surprising is the capaciousness of the continuous-threat framework, and the extent to which it turns out to be consistent with the government’s existing approach to targeting even while we remain within the armed-conflict model. The capaciousness is not new. It was built into the continuous-threat model all along, in fact, as a review of key events in the 1980s and 1990s reveals. But the flexibility of the continuous-threat model was thoroughly obscured in the pre-9/11 period thanks to certain non-legal constraints, including especially the limited technology then available to carry out airstrikes in denied areas and the paucity of actionable intelligence. A variety of technological and institutional changes over the past dozen years—particularly the emergence of armed drones and the expansion of CIA and JSOC capabilities—have sharply eroded those constraints, altering what it would mean in practice to operate under the continuous-threat model once more. This helps explain why the government, though still maintaining the relevance of the armed-conflict model as a formal matter, has in fact already returned to the continuous-threat model as a matter of policy for operations outside of Afghanistan. There was relatively little cost to doing so in terms of operational flexibility, and by the same token there would be surprisingly little loss of operational flexibility should the underlying armed-conflict framework be abandoned.

The situation with respect to military detention is different, but only marginally so. The demise of the armed-conflict model will certainly matter for the dwindling legacy population at Guantanamo (and, perhaps, for a handful of legacy detainees in Afghanistan). It will not matter nearly so much for potential future detainees, however, for the simple reason that the United States long-ago got out of the business of taking on new detainees outside of Afghanistan. There are several reasons for the demise of long-term military detention as a policy option, including the fact that it has become unattractive compared to alternatives such as prosecution, the use of lethal force, and encouraging detention in the hands of other countries. The theoretical loss of legal authority to detain in the postwar period will have comparatively little real consequence in light of this larger dynamic.

None of this is an argument for or against declaring an end to the conflict with al Qaeda. The debate over that issue is badly distorted, however, by the shared and mistaken assumption that status quo targeting and detention policies depend on the armed-conflict model. Moving to postwar would not generate the sea change that advocates seek and opponents fear.

nationalsecuritylaw upcoming event

September 26, 2013

A great opportunity for students from our friends at Berkeley and at the ICRC. Details below, and in the attached documents:

Berkeley Law and the International Committee of the Red Cross will be sponsoring a Student IHL Workshop from 17-20 Jan 2014 (MLK, Jr. weekend). Applications are open today until 31 October, but it is competitive and spaces are limited, so students should not delay.

The link, with poster and application form, is found here:

Thank you for spreading the word to any interested law students.

Kate Jastram, MA, JD

Faculty Director and Lecturer in Residence The Honorable G. William & Ariadna Miller Institute for Global Challenges and the Law

432 Boalt Hall (North Addition)

University of California, Berkeley, School of Law Berkeley, CA 94720-7200




nationalsecuritylaw upcoming event: PCLOB Announcement: 4 October Hearing Agenda and Speakers

September 25, 2013



Consideration of Recommendations for Change:

The Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act

October 4, 2013

Renaissance Mayflower Hotel – State Room

1127 Connecticut Ave NW, Washington DC


08:45 Doors Open

09:15 – 09:30 Introductory Remarks (David Medine, PCLOB Chairman, with Board Members Rachel Brand, Elisebeth Collins Cook, James Dempsey,

and Patricia Wald)

09:30 – 11:45 Panel I: Section 215 USA PATRIOT Act and Section 702 Foreign Intelligence Surveillance Act

§ John Carlin (Acting Assistant Attorney General for National Security, Department of Justice)

§ Rajesh De (General Counsel, National Security Agency)

§ Robert Litt (General Counsel, Office of the Director of National Intelligence)

§ Andrew Weissmann (General Counsel, Federal Bureau of Investigation)

11:45 – 1:15 Lunch Break (on your own)

1:15 – 2:30 Panel II: Foreign Intelligence Surveillance Court

§ James A. Baker (formerly DOJ Office of Intelligence and Policy Review)

§ Judge James Carr (Senior Federal Judge, U.S. District Court, Northern District of Ohio and former FISA Court Judge 2002-2008)

§ Marc Zwillinger (Founder, ZwillGen PLLC and former Department of Justice Attorney, Computer Crime & Intellectual Property Section)

2:30 – 2:45 Break

2:45 – 4:15 Panel III: Academics and Outside Experts

§ Jane Harman (Director, President and CEO, The Woodrow Wilson Center and former Member of Congress)

§ Orin Kerr (Fred C. Stevenson Research Professor, George Washington University Law School)

§ Eugene Spafford (Professor of Computer Science and Executive Director, Center for Education and Research in Information Assurance and Security, Perdue University)

§ Stephen Vladeck (Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law)

4:15 Closing Comments (David Medine, PLCOB Chairman)

All Affiliations are listed for identification purposes only.

Please Note: This event will be rescheduled if there is a lapse in federal government appropriations that extends through October 4, 2013. Updates will be posted at

PCLOB 4 Oct Hearing Agenda.pdf

nationalsecuritylaw Job description for NSA Civil Liberties and Privacy Officer position

September 25, 2013

From ODNI:


For those of you who haven’t seen this, NSA has posted a job description for its newly-created position of NSA Civil Liberties and Privacy Officer. See:

I have excerpted a couple of paragraphs below, for ease of reference:

nationalsecuritylaw upcoming event: Seminar on Teaching National Security Law

September 24, 2013

From our friends at the ABA Standing Committee on Law and National Security (alas, the hotel discount deadline has passed, but don’t let that stop you!):

The hotel deadline has been extended to September 11 and we will have complimentary ABA Standing Committee books onsite for all registrants — please join us in Charlottesville for this very informative seminar. Links to program and registration form below.


1050 Connecticut Avenue, N.W., Suite 400, Washington, DC 20036


Sponsored by the ABA Standing Committee on Law and National Security and the Center for National Security Law, University of Virginia School of Law

Additional sponsors include:

The Center on Law and Security (NYU School of Law), The Center on Law, Ethics and National Security (Duke University School of Law), The Center on National Security and the Law (Georgetown Law), National Security and U.S. Foreign Relations Law Program (George Washington University Law School), The Institute for National Security and Counterterrorism (Syracuse University College of Law)

The Center for Terrorism Law (St. Mary’s University School of Law)

Hotel Information (DEADLINE Wednesday, September 11):

Lodging for the 2013 ABA Annual Seminar has been arranged at the Inn at Darden (, next to the UVa Law School.

Please contact the Inn at Darden (434 243-5000), and make your reservation under the Center for National Security Law group special rate of $145.00 per night.

Special Offer:

2Registrants will receive a complimentary copy of
National Security Law Fifty Years of Transformation: An Anthology

(Regularly $39.95)

Please refer to the program for additional information.

To register, complete the jg4e).

nationalsecuritylaw upcoming event THIS TUESDAY Surveillance and Foreign Intelligence Gathering in the United States

September 24, 2013

Georgetown Law’s

Center on National Security and the Law

and National Security Law Society

proudly present a three-part discussion series this autumn:

Surveillance and Foreign Intelligence Gathering in the United States:

Past, Present, and Future

This is a crucially important time in the United States’ history. A number of foreign intelligence gathering programs using new technologies recently have been unveiled, and the public, the media, and scholars are just beginning to address what these programs mean for the future of the country.

Please join us on September 24, 2013 for the first event in the series, focused on the past.

Senator Patrick Leahy (D-VT), will be giving the keynote address, followed by a panel discussion by former members and key staff of the 1975-76 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (“Church Committee”).

The Church Committee exposed government surveillance abuses and played a key role in the creation of the Foreign Intelligence Surveillance Act, which, as subsequently amended, provides the framework for current foreign intelligence gathering programs.

Introductory Remarks

Dean William Treanor, Georgetown Law

Keynote Address

Senator Patrick Leahy (D-VT)


Former Vice President Walter Mondale, Church Committee Member

Senator Gary Hart, Church Committee Member

Mr. Frederick Schwarz, Church Committee Chief Counsel

Ambassador William Miller, Church Committee Staff Director

Dr. Loch Johnson, Special Assistant to Senator Frank Church

Professor Laura K. Donohue, Georgetown Law (moderator)

September 24, 2013 – 9:45 am to noon

Hart Auditorium

Georgetown Law

600 New Jersey Avenue, NW; Washington, DC 20001

Reception to follow

Please RSVP to rsvp2

Please direct questions to nationalsecurity

September 24 Church Committee.docx

nationalsecuritylaw John Carlin nominated as Assistant Attorney General – National Security Division

September 11, 2013


Office of the Press Secretary


September 10, 2013

President Obama Announces More Key Administration Posts

WASHINGTON, DC – Today, President Obama announced his intent to nominate the following individuals to key Administration posts:

John P. Carlin, Nominee for Assistant Attorney General for National Security, Department of Justice

John P. Carlin is the Acting Assistant Attorney General for National Security at the Department of Justice (DOJ), a position he has held since March 2013. In addition, he has been the Principal Deputy Assistant Attorney General and Chief of Staff for the National Security Division since 2011. From 2007 to 2011, he served in leadership roles at the Federal Bureau of Investigation (FBI), ultimately serving as Chief of Staff to FBI Director Robert S. Mueller, III. A career federal prosecutor, he served in 2007 as National Coordinator of the Computer Hacking and Intellectual Property program within the DOJ Criminal Division. From 2001 to 2006, he served as an Assistant United States Attorney for the District of Columbia. Mr. Carlin first joined DOJ through the Attorney General’s Honors Program in 1999. He is a five-time recipient of the Department of Justice Award for Special Achievement. He received a B.A. from Williams College and a J.D. from Harvard Law School.