nationalsecuritylaw forthcoming/recent scholarship (privacy & surveillance)

June 27, 2014

Privacy and Surveillance

Section 702 and the Collection of International Telephone and Internet Content

Laura Donohue (Georgetown)

Harvard Journal of Law and Public Policy, Vol. 38, No. 1(2015)

Programs initiated just after 9/11 involving the interception of communications to and from the United States shifted to the 2007 Protect America Act and, subsequently, the 2008 FISA Amendments Act. It was not until 2013 that the public became fully aware that the NSA interprets its authority under FISA §702 to intercept international, and at times, wholly domestic, communications. This Article is the first to question whether the NSA’s interpretations are statutorily consistent and constitutionally sound.

The Article begins with a statutory analysis, considering targeting, post-targeting analysis, and the retention and dissemination of data. In the first category, targeting, the Article argues that the NSA has sidestepped legislative restrictions in three critical ways: by adopting procedures that allow analysts to acquire information to, from, or “about” targets; by creating an assumption of non-U.S. person status; and by failing to construct adequate procedures to ascertain whether the target is located within domestic bounds. These interpretations undermine Congress’s inclusion of §§703 and 704 and open the door to the collection of U.S. persons’ communications. In the second category, post-targeting analysis, the Article draws attention to the aim of the analysis, the failure of prior minimization procedures to account for multi-communication transactions, the use of U.S. person information to query data, and the impact of recombinant information on §702 collection. In the third category, the retention and dissemination of data, the Article notes that increasing public reliance on cryptography raises questions about the automatic retention of encrypted data, even as the breadth of “foreign intelligence” underscores the danger of looking to retention policies to delimit information retained. The use of the data obtained under §702 for criminal prosecution, while consistent with traditional FISA, fails to reflect the equivalent procedural protections at the collection stage. This discussion leads naturally to Fourth Amendment considerations.

As a constitutional matter, outside of narrowly circumscribed exceptions, a search in criminal law is presumptively unreasonable under the Fourth Amendment unless the government first obtains a warrant from a neutral, disinterested magistrate, based on a finding of probable cause of involvement in criminal activity. This applies to all searches within the United States. It does not apply to non-U.S. persons without a significant attachment to the country who are outside domestic bounds. Between these book-ends are numerous, slimmer volumes that take account of questions such as whether the search centers on intelligence gathering or criminal prosecution, whether the target is a U.S. person or a non-U.S. person, where the search takes place, and the extent to which U.S. persons’ privacy is implicated.

The Article briefly lays out this broader Fourth Amendment territory before turning to the government’s argument that §702 collection takes place subject to a foreign intelligence exception to the warrant requirement. In the nearly four decades that have elapsed since the Court raised the possibility of such an exception — and in relation to which Congress responded by enacting FISA — not a single case has found a domestic foreign intelligence exception. Pari passu, as a matter of the international intercept of U.S. persons’ communications, practice and precedent prior to the FAA turned on a foreign intelligence exception to the warrant requirement derived from the President’s foreign affairs powers. Through §§703 and 704, Congress has since introduced stronger safeguards for U.S. persons targeted for foreign intelligence purposes. By defaulting to §702, however, and “incidentally” collecting U.S. persons’ international communications, the NSA is bypassing Congressional requirements. Acknowledging that the President and Congress share foreign affairs powers, the persistent use of §702 in this manner may be regarded in Justice Jackson’s third category under Youngstown Sheet & Tube Co. v. Sawyer.

Even if one takes the position that the Warrant Clause is inapposite to collection of U.S. persons’ information under §702, the FAA and NSA practice must still comport with the reasonableness requirements of the Fourth Amendment. To the extent that the target is a non-U.S. person based outside of domestic bounds, and the communications are to or from the target, the programs appear to be consistent with the constitutional mandate. But to the extent that the NSA interprets the statute to include information about such targets, in the process collecting the communications of wholly domestic communications, as well as conversations between U.S. persons, the practice fails to meet the totality of the circumstances test articulated by the Court with regard to reasonableness.

Human rights Treaties and Foreign Surveillance: Privacy in the Digital Age

Marko Milanovic (University of Nottingham)

Harvard International Law Journal (Forthcoming)

The 2013 revelations by Edward Snowden of the scope and magnitude of electronic surveillance programs run by the US National Security Agency (NSA) and some of its partners, chief among them the UK Government Communications Headquarters (GCHQ), have provoked intense and ongoing public debate regarding the proper limits of such intelligence activities. Privacy activists decry such programs, especially those involving the mass collection of the data or communications of ordinary individuals across the globe, arguing that they create an inhibiting surveillance climate that diminishes basic freedoms, while government officials justify them as being necessary for the prevention of terrorism.

The purpose of this article, however, is not to assess the general propriety or usefulness of surveillance programs or their compliance with relevant domestic law. I do not want to argue that electronic surveillance programs, whether targeted or done on a mass scale, are per se illegal, ineffective or unjustifiable. Rather, what I want to look at is how the legality of such programs would be debated and assessed within the framework of international human rights law, and specifically under the major human rights treaties to which the ‘Five Eyes’ and other states with sophisticated technological capabilities are parties.

In the wake of the UN General Assembly’s 2013 resolution on the right to privacy in the digital age, it can be expected that electronic surveillance and related activities will remain on the agenda of UN bodies for years to come, especially since the political relevance of the topic shows no signs of abating. Similarly, cases challenging surveillance on human rights grounds are already pending before domestic and international courts. The discussion has just started, and it will continue at least partly in human rights terms, focusing on the rights and interests of the affected individuals, rather than solely on the interests and sovereignty of states.

The primary purpose of this article is to advance this conversation by looking at one specific, threshold issue: whether human rights treaties such as the ICCPR and the ECHR even apply to foreign surveillance. The article will show that while there is much uncertainty in how the existing case law on the jurisdictional threshold issues might apply to foreign surveillance, this uncertainty should not be overestimated – even if it can and is being exploited. The only truly coherent approach to the threshold question of applicability, I will argue, is that human rights treaties should apply to virtually all foreign surveillance activities. That the treaties apply to such activities, however, does not mean that they are necessarily unlawful. Rather, the lawfulness of a given foreign surveillance program is subject to a fact-specific examination on the merits of its compliance with the right to privacy, and in that, I submit, foreign surveillance activities are no different from purely domestic ones.

A Rule of Lenity for National Security Surveillance Law

Orin S. Kerr (George Washington University)
Virginia Law Review (Forthcoming)

This essay argues that Congress should adopt a rule of lenity for the interpretation of national security surveillance statutes. Under the rule of lenity, ambiguity in the powers granted to the Executive Branch in the sections of the United States Code on national security surveillance should be trigger a narrow judicial interpretation in favor of the individual and against the state. A rule of lenity would push Congress to be the primary decisionmaker to balance privacy and security when technology changes, limiting the rule-making power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.

Borrowing Balance, How to Keep the Special Needs Exception Truly Special: Why a Comprehensive Approach to Evidence Admissibility is needed in Response to the Expansion of Suspicionless Intrusions

Dru Brenner-Beck (Independent)

South Texas Law Review, Vol. 56, No. 1 (2014)

Recognizing the inevitable expansion of the government’s use of the Fourth Amendment’s special needs exception to support suspicionless searches in counter-terrorism operations, this article argues that adoption of an evidentiary rule based on Military Rule of Evidence 313 is the best method to enforce the proper balance between necessary national security and individual liberties. After an extensive normative analysis of the foundations of the Supreme Court’s special needs jurisprudence, which includes not only “special needs” cases, but also traffic checkpoint and administrative search cases, I examine post 9-11 cases in both the US and Britain under section 44 of its Anti-Terrorism Act. The three lines of cases that support searches in the absence of particularlzed suspicion, as well as the British experience with section 44 searches, show that a core concern is unbridled discretion of the government agents performing the search.

While subjective intent on the part of these agents is irrelevant when probable cause is required to justify a search, a key concern in the special needs, vehicle checkpoint, and administrative inspections cases is the concern that these searches, because of the very lack of any particularized suspicion, are particularly susceptible to misuse, subterfuge, or pretext by the government. This weakness potentially eviscerates the protections of the Fourth Amendment. Because of this, Courts should be particularly concerned at ferreting out instances or programs designed to achieve illegitimate ends or which involve means prohibited by the Constitution such as profiling based on race, ethnicity, or religion. Under the current ad hoc approach, identification of programmatic purpose at the appropriate level can prove as difficult as the evaluation of an individual police officer’s subjective intent. Both remain core judicial tasks under the Fourth Amendment’s special needs exception.

A federal rule akin to Military Rule of Evidence 313, which uses the mechanism of shifting presumptions that shift the burden of persuasion to the government to disprove subterfuge at a high evidentiary level — that of clear and convincing evidence — can prove a valuable tool in the evaluation of special needs searches. Even under the special needs exception in the US, unbridled discretion is constitutionally suspect. By restoring the principled cabining of police discretion by courts through use of objective evidentiary tests, the evils of unchecked police discretion can be curtailed. I argue that the creation of an analogue Federal Rule of Evidence would serve multiple purposes. First, it provides a means for defense counsel to attack suspected subterfuge searches, legitimizing the inquiry and providing a rule under which a motion to exclude can be made, and discovery sought. Secondly, its high evidentiary burden provides incentives to the police to ensure that “special needs” searches can be justified both at their inception, and in implementation when challenged in court. Enactment of a federal rule of evidence akin to Military Rule of Evidence 313, restricting police discretion, thus contributes to the achievement of a long-term constitutionally supportable balance between national security and liberty, and recognizes that the personal autonomy and liberty protected by the Fourth Amendment is both an individual and societal good.

Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly Over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy

Stephanie K. Pell (Stanford), Christopher Soghoian (Yale)
Harvard Journal of Law and Technology (Forthcoming)

In the early 1990s, off-the-shelf radio scanners allowed any snoop or criminal to eavesdrop on the calls of nearby cell phone users. These radio scanners could intercept calls due to a significant security vulnerability inherent in then widely used analog cellular phone networks: calls were not encrypted as they traveled over the air. In response to this problem, Congress, rather than exploring options for improving the security of cellular networks, merely outlawed the sale of new radio scanners capable of intercepting cellular signals, which did nothing to prevent the potential use of millions of existing interception-capable radio scanners. Now, nearly two decades after Congress passed legislation intended to protect analog phones from interception by radio scanners, we are rapidly approaching a future with a widespread interception threat to cellular communications very reminiscent of the one scanner posed in the 1990s, but with a much larger range of public and private actors with access to a much more powerful cellular interception technology that exploits security vulnerabilities in our digital cellular networks.

This Article illustrates how cellular interception capabilities and technology have become, for better or worse, globalized and democratized, placing Americans’ cellular communications at risk of interception from foreign governments, criminals, the tabloid press and virtually anyone else with sufficient motive to capture cellular content in transmission. Notwithstanding this risk, US government agencies continue to treat practically everything about this cellular interception technology, as a closely guarded, necessarily secret “source and method,” shrouding the technical capabilities and limitations of the equipment from public discussion, even keeping its very name from public disclosure. This “source and method” argument, although questionable in its efficacy, is invoked to protect law enforcement agencies’ own use of this technology while allegedly preventing criminal suspects from learning how to evade surveillance.

This Article argues that current policy makers should not follow the worn path of attempting to outlaw technology while ignoring, and thus perpetuating, the significant vulnerabilities in cellular communications networks on which it depends. Moreover, lawmakers must resist the reflexive temptation to elevate the sustainability of a particular surveillance technology over the need to curtail the general threat that technology poses to the security of cellular networks. Instead, with regard to this destabilizing, unmediated technology and its increasing general availability at decreasing prices, Congress and appropriate regulators should address these network vulnerabilities directly and thoroughly as part of the larger cyber security policy debates and solutions now under consideration. This Article concludes by offering the beginnings of a way forward for legislators to address digital cellular network vulnerabilities with a new sense of urgency appropriate to the current communications security environment.

Law, Logarathims and Liberties: Legal Issues Arising from CSEC’s Metadata Program

Craig Forcese (University of Ottawa)

University of Ottawa Press (2014)

Two thousand and thirteen was the year of the spy. Edward Snowden – “leaker” or “whistleblower” depending on one’s perspective – ignited a mainstream (and social) media frenzy in mid-2013 by sharing details of classified US National Security Agency (NSA) surveillance programs with the U.K. Guardian and Washington Post newspapers. For related reasons, 2013 was also the year in which the expression “metadata” migrated from the lexicon of the technologically literate to the parlance of everyday commentary. The NSA revelations fuelled media, academic and other speculation about whether similar surveillance programs exist in Canada. That attention focused on Canada’s NSA equivalent (and close alliance partner), the Communications Security Establishment Canada (CSEC). CSEC does have a metadata collection program, prompting questions about its legal basis, and the extent to which CSEC is governed by robust accountability mechanisms.

This article focuses on a single aspect of this debate: By reason of technological change and capacity, have the state’s surveillance activities now escaped governance by law? A broad question with a number of facets, this article examines the specific sub-issue of metadata and its relationship with conventional rules on searches and seizures. The article concludes that the privacy standards that CSEC must meet in relation to metadata are much more robust than the government seems to have accepted to date.

Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era

Ira Rubenstein (NYU), Joris Van Hoboken (NYU)

66 Maine Law Review 488 (2014)

This Article considers the organizational and technical responses of cloud computing companies in response to the Snowden leaks, which revealed the extent of NSA surveillance of foreign citizens whose data was held by U.S. based cloud services. The industry has sought to restore trust in their services by stepping up their efforts to protect the privacy and confidentiality interests of their customers against what we call “transnational surveillance.” While the legal debate about the proper legal standards for such surveillance is ongoing, the article focuses on two broad classes of technical and organizational responses and their interaction with the law. First, leading cloud firms like Google and Microsoft have implemented long-established cryptographic protocols that secure both communications with their customers and information flows among their own company data centers. In particular, these solutions help ensure that access takes place only through the “front door” of a valid legal process involving the service providers. Second, the article explores the availability of more far-reaching security innovations based on Privacy Enhancing Technologies (PETs). These increasingly popular solutions would limit the ability of service providers to comply with government orders, notwithstanding the technical assistance provisions in existing domestic and foreign surveillance laws.

The solutions discussed raise a number of legal issues. For example, do investigative agencies have sufficient legal authority to seek court orders compelling U.S. firms to modify their services in order to facilitate surveillance? More broadly, do U.S. firms (other than telephone carriers subject to a 1994 law requiring them to design wiretap-ready equipment) have a free hand in modifying existing services, or designing new services, to make them more resistant to transnational surveillance? Or may the U.S. government rely on existing surveillance laws to oversee the design of cloud services to ensure that court-ordered access remains achievable when duly authorized by judges or magistrates?

In analyzing these issues, the article draws upon an earlier debate about encryption export controls in the 1990s (the so-called “crypto wars”). It concludes that new laws may be necessary for the U.S. government to maintain its current levels of access and that Congress may be reluctant to enact such laws in the current climate. More generally, it concludes that many of the technical and organizational measures under discussion are likely to fall short of providing the kind of absolute protection sought by certain cloud customers, especially those located abroad. At the same time, under the right conditions, these measures can help to lower some of the risks of transnational surveillance and work to restore the balance in favor of privacy, information security, and confidentiality interests in the context of cloud data

nationalsecuritylaw forthcoming/recent scholarship (capture/detention etc., separation of powers)

June 27, 2014


Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention

Jennifer C. Daskal (American University)

99 Cornell Law Review 327 (2014)

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to their appropriate limits.

The Article examines this category of noncustodial pre-crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect.

A Tale of Two Citizenships: Citizenship Revocation for "Traitors and Terrorists"

Craig Forcese (University of Ottawa)
Queen’s Law Journal, Vol. 39, No. 2 (2014)

Amending Canada’s citizenship laws to provide for denaturalization of “traitors and terrorists”, as proposed by the current federal government, is an idea consumed with legal flaws. To comply with international law on the prohibition of citizenship deprivation that would result in statelessness, any such amendments would have to apply only to individuals with dual citizenship. However, targeting those individuals would be very hard to defend against equality-based challenges under the Canadian Charter of Rights and Freedoms. In addition, denaturalization of “traitors and terrorists” might well be perceived as a punitive measure, whose impact and stigma would call for constitutional procedural protections far stronger than those set out in the current Citizenship Act and the proposed revisions to it. Such denaturalization also seems unlikely to advance any clear Canadian national security interest, and would accomplish less than can be done through other laws, including the Criminal Code.

Expatriating Terrorists

Peter J. Spiro (James E. Beasley School of Law)

82 Fordham Law Review, 2169 (2014)

There have been few episodes in which Congress has resisted counter-terror initiatives. Notable among exceptions are proposals to strip terrorists of their U.S. citizenship. The bipartisan rejection of such proposals presents a puzzle. Insofar as citizenship has historically been associated with loyalty, it would seem a costless, expressive remedy to terminate the citizenship of those who lend support to hostile entities. And yet high-profile efforts to legislate the termination of citizenship in the context of terrorist activities have fallen flat in the United States.

This essay seeks to explain the rejection of a terrorism ground for terminating U.S. citizenship. The essay first establishes the constitutionality of proposals, focusing on Joe Lieberman’s 2010 Terrorist Expatriation Act, which would have used association with foreign terrorist groups to evidence an individual’s intent to relinquish citizenship. Conforming such measures to the Supreme Court’s citizenship jurisprudence limits their utility. The Lieberman proposal could have been put to work in a very small number of cases. Expatriation would be clear-cut only where terrorist activity were coupled with unambiguous expressions of individual intent. Expatriation would do little to advance the counter-terror agenda. Few counter-terror tactics account for citizenship. Citizenship no longer buys individuals much protection.

Where the expatriation proposal lacked instrumental advantage, it might have had expressive value. The essay concludes that rejection of the expatriation measure was overdetermined, and that various contingencies and legacy understandings of U.S. citizenship undermine the expressive value of terrorist expatriation. Even as other states (including the United Kingdom) broaden terrorist expatriation practices, it is unlikely to become a dimension of the U.S. counter-terror response.

Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment

Norman Abrams (UCLA)
Journal of National Security Law (Forthcoming)

The U.S. government claims authority under the law of war to detain enemy belligerents captured in the war against the Taliban and al Qaeda for the duration of the conflict. Enemy belligerents in this war are generally regarded by U.S. authorities as unprivileged under the Geneva Conventions, and acts they commit in furtherance of the war are therefore likely to be crimes under the law of war and/or under U.S. domestic law. Regarding those belligerents who, because they are considered dangerous, have not qualified for release and transfer to another country, the government has had two choices — to detain them in military custody on a prolonged basis (for the duration of the conflict), or to prosecute them for crimes they are alleged to have committed.

President Obama has stated a strong preference for the criminal prosecution option. But for many of the detainees, prosecution is not feasible — for a variety of reasons. These detainees are likely to remain in prolonged detention. The President has described the continuing detention of these individuals as the "legacy problem," i.e. prolonged detention cases left over from the post-9/11 period.

The purpose of this paper is to address the legacy problem, in part by taking into account the fact that all of the long term detainees, both those whom it is infeasible to prosecute as well as those who can be prosecuted, can be said to have engaged in culpable criminal activity. A primary goal is to reduce the inequality between the two paths — criminal prosecution or prolonged military detention — by bringing law of war detention and criminal prosecution into closer alignment. Under the present system, choice between the paths appears to result in unequal treatment, i.e., in many cases, criminal prosecution and the imposition of a fixed term sentence for those who are convicted versus what looks like an indefinite period of detention in military custody for the other cohort (subject to the possibility of release through a periodic review process) — even though both cohorts are alleged to have engaged in culpable criminal conduct. A revised approach should, while paying heed to national security interests, not only decrease this apparent difference in treatment but also increase the chances that most of the detainees in indefinite detention might be released short of a lifetime in custody and thus give them some reasonable hope that their detention may end at some point.

Progress toward these several goals, which are closely related, can be achieved by tinkering with, and adding to the existing approach, taking into account the special features of a war against a terrorist organization — by introducing into the indefinite detention track some fixed-term criminality attributes plus a standard to be applied for continued indefinite detention, while adding to the criminal prosecution/fixed term imprisonment track a similar standard governing the possibility of a return to military custody.

US Constitutional Law & Separated Powers

International Law and Institutions and the American Constitution in War and Peace

Thomas Lee (Fordham)

Berkeley Journal of International Law, Vol. 31, No.291 (2013)

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al-Qaeda

David A. Simon (Independent)

Pepperdine law Review, Vol. 41, No. 685 (Forthcoming, 2014)

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process.

This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.

When May the President Break the Law? A Theory of Republican Prerogative

Julian Davis Mortenson (Michigan)
S. Cal. L. Rev. 87 (Forthcoming, 2014)

The events of September 11 prompted renewed debate about the three main approaches to emergency power: statutory, constitutional, and extralegal. But the central substantive problem of the extralegal approach has yet to be carefully addressed: When may the executive violate the law without a statutory or constitutional basis for doing so?

This paper identifies two principles — the privilege of republican prerogative and the obligation of a republican ethic — that combine to offer a coherent answer for certain kinds of executive lawbreaking. As its various strands have emerged from Anglo-American tradition, what I call the republican prerogative becomes available when (i) the republic faces a sudden, irregular, and existentially severe threat; (ii) the executive’s response is strictly necessary and does not exceed the scope of the exigent threat; and (iii) the executive discloses and takes responsibility for the violation. Republican prerogative may not be the only type of justifiable extralegal privilege, but it has a long (though theoretically underdeveloped) historical pedigree and a striking (though latent) coherence.

One problem remains. If the republican prerogative is extralegal in character, how can we speak intelligibly of limits on its exercise? The answer identified here emerges from what I call the republican ethic: a normative claim that our constitutional republic is an intrinsically value-bearing entity, worthy of moral consideration and creating moral obligations in its own right. On this view, the moral requirements of a republican ethic — itself grounded in a possessive embrace of our legal system — trump the legal requirements of our Constitution and laws.

nationalsecuritylaw forthcoming/recent scholarship (targeting; sovereignty)

June 27, 2014

Targeting/Drones/Use of Force at the Individual Level

Autonomous Weapons: Are You Sure These are Killer Robots? Can We Talk About It?

Shane Reeves (US Military Academy), William J. Johnson (JAG Legal Center)
The Army Lawyer, 1 (2014)

The rise of autonomous weapons is creating understandable concern for the international community as it is impossible to predict exactly what will happen with the technology. This uncertainty has led some to advocate for a preemptive ban on the technology. Yet the emergence of a new means of warfare is not a unique phenomenon and is assumed within the Law of Armed Conflict. Past attempts at prohibiting emerging technologies use as weapons — such as aerial balloons in Declaration IV of the 1899 Hague Convention — have failed as a prohibitive regime denies the realities of warfare. Further, those exploring the idea of autonomous weapons are sensitive not only to their legal obligations, but also to the various ethical and moral questions surrounding the technology. Rather than attempting to preemptively ban autonomous weapons before understanding the technology’s potential, efforts should be made to pool the collective intellectual resources of scholars and practitioners to develop a road forward. Perhaps this would be the first step to a more comprehensive and assertive approach to addressing the other pressing issues of modern warfare

"On Target": Precision and Balance in the Contemporary Law of Targeting

Eric Widmar (Naval War College), Michael Schmitt (Exeter)
Journal of National Security Law and Policy, Vol. 7 No. 2 (2014)

The law of targeting lies at the heart of international humanitarian law (IHL). As such it is the fulcrum around which discussion of combat operations revolves. The efficacy of this body of law depends on maintenance of the delicate balance between military necessity and humanitarian concerns. Mischaracterization or misapplication of IHL norms risks imbalance, thereby jeopardizing the innocent and potentially eroding State support for IHL’s application. Regrettably, while some of the current debate and commentary surrounding, inter alia, drone operations, autonomous weapons systems, cyber operations, and the current conflicts in Afghanistan, Syria, Yemen, Somalia, and Ukraine, to name just a few, is highly sophisticated, much of it has been characterized by imprecise, skewed, or wrong assertions regarding the law of targeting. It is therefore a propitious moment to revisit the structure and content of targeting law. After briefly placing the law of targeting in the broader context of IHL, this article examines the five constituent elements of a targeting operation: (1) target; (2) weapon; (3) execution of the attack; (4) collateral damage and incidental injury; and (5) location. The legality of an engagement depends on full compliance with the rules falling into each category.

The Problem of Imminence in an Uncertain World

Noam Lubell (University of Essex)

The Oxford Handbook of the Use of Force in International Law (Forthcoming, 2014)

This paper sets out to analyse the meaning of imminence in the context of self-defence, how it is to be interpreted, what it might justify and what it might exclude, and whether it is in fact a criterion that can be upheld in light of modern challenges. In particular, it covers:

• The development of the imminence requirement as a criteria for anticipatory self-defence.
• The meaning of ‘imminence’, the links to immediacy and specificity.
• Why do terrorism and WMD cause a challenge with regard to imminence, and what are the particular concerns with each of these?
• What would a new notion of imminence actually mean?
• Does imminence require certainty and can we ever be ‘certain’?
• Does the nature of the threat affect the risk analysis and approach to imminence?

International Law & Sovereignty

To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the Door for an Invasion of the Ukraine

Shane R. Reeves (U.S. Military Academy)

Michigan State International Law Review Volume 22, Issue 1 (Forthcoming, 2014)

The United Nations has been incapable of authorizing an international response to stop the mass atrocities taking place in the Syrian Civil War. This has led some concerned nations to argue for a unilateral military operation based upon the controversial international legal concept titled humanitarian intervention. Humanitarian intervention provides a distinct legal basis for the use of force when there is a moral obligation to protect victims of war crimes, genocide, or other crimes against humanity. This is in contrast to the more conservative approach known as the Responsibility to Protect. Despite the obvious appeal of invoking a progressive use of force doctrine in Syria, relying on moral authority to authorize military action raises a particularly troubling international law question: What keeps an aggressive state from invading another nation under the pretext of stopping a "humanitarian crisis"?

The legal justifications for the recent military acts by the Russian Federation in the Ukraine’s Crimean Peninsula starkly illustrate the impossibility of objectively answering this question. The Ukrainian crisis has instead demonstrated that determining when a humanitarian intervention is necessitated is a subjective and political decision. It is this subjectivity which underscores the logic of the post-World War II jus contra bellum prohibition on acts of aggression and is why using a moral argument to legally justify the use of military force dramatically increases the potential for a new age of nation-state warfare.

nationalsecuritylaw DNI/DOJ statement explaining decision to seek renewal of Section 215 telephony metadata collection authority, and FISC approval of that request

June 20, 2014

From ODNI & DOJ:



WASHINGTON – The Justice Department and the Office of the Director of National Intelligence released the following joint statement Friday:

Earlier this year in a speech at the Department of Justice, President Obama announced a transition that would end the Section 215 bulk telephony metadata program as it previously existed, and that the government would establish a mechanism that preserves the capabilities we need without the government holding this bulk data. As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court (FISC) to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three. These two changes were put into effect in February 2014. In addition to directing those immediate changes to the program, the President also directed the Intelligence Community and the Attorney General to develop options for a new approach to match the capabilities and fill gaps that the Section 215 program was designed to address without the government holding this metadata. After carefully considering the available options, the President announced in March that the best path forward is that the government should not collect or hold this data in bulk, and that it remain at the telephone companies with a legal mechanism in place which would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries. The President also noted that legislation would be required to implement this option and called on Congress to enact this important change to the Foreign Intelligence Surveillance Act (FISA).

Consistent with the President’s March proposal, in May, the House of Representatives passed H.R. 3361, the USA FREEDOM Act, which would, if enacted, create a new mechanism for the government to obtain this telephony metadata pursuant to individual orders from the FISC, rather than in bulk. The bill also prohibits bulk collection through the use of Section 215, FISA pen registers and trap and trace devices, and National Security Letters. Overall, the bill’s significant reforms would provide the public greater confidence in our programs and the checks and balances in the system, while ensuring our intelligence and law enforcement professionals have the authorities they need to protect the Nation. The Administration strongly supports the USA FREEDOM Act. We urge the Senate to swiftly consider it, and remain ready to work with Congress to clarify that the bill prohibits bulk collection as noted above, as necessary.

Given that legislation has not yet been enacted, and given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program, as modified by the changes the President announced earlier this year. Consistent with prior declassification decisions, in light of the significant and continuing public interest in the telephony metadata collection program, the Director of National Intelligence, James Clapper, has declassified the fact that the government’s application to renew the program was approved yesterday by the FISC. The order issued yesterday expires on Sept. 12, 2014. The Administration is undertaking a declassification review of this most recent court order and an accompanying memorandum opinion for publication.

nationalsecuritylaw DOD Announces Charges Referred Against Detainee Abd al Hadi al Iraqi

June 3, 2014

DOD has announced the referral of military commission charges against Abd al Hadi al Iraqi. Details from the press release appear below:

DOD Announces Charges Referred Against Detainee Abd al Hadi al Iraqi

06/03/2014 10:01 AM CDT