nationalsecuritylaw forthcoming scholarship

Cyber

The Cyber-Law of Nations

Kristen Eichensehr (UCLA)

Georgetown Law Journal, Vol. 103, No. 2 (2014)

Concerns about cyberwar, cyberespionage, and cybercrime have burst into focus in recent years. The United States and China have traded accusations about cyber intrusions, and a December 2012 U.N. conference broke down over disagreements about cyberspace governance. These events show the increased risk of cyber conflict and the corresponding need for basic agreement between states about governing cyberspace.

States agree that something must be done, but they disagree about almost everything else. Two competing visions of cyberspace have emerged so far: Russia and China advocate a sovereignty-based model of cyber governance that prioritizes state control, while the United States, United Kingdom, and their allies argue that cyberspace should not be governed by states alone.

Prior academic writing has focused on cyber issues related to states’ regulation of their citizens, but this Article addresses the now-pressing state-to-state issues. A limited analogy to existing legal regimes for the high seas, outer space, and Antarctica shows that global governance of cyberspace is possible. Moreover, these existing regimes provide a menu of options for governance and establish a baseline against which cyber governance can be assessed.

The Article examines three fundamental questions that states have answered for the other domains and must now answer for cyber: (1) what role, if any, private parties should play in governance; (2) how the domain should be governed (no governance system, treaty, or norms); and (3) whether and how to regulate military activities in the domain. The answers for the old domains were similar — multilateral governance, governance by treaty, and some level of demilitarization. But cyber differs from the old domains in important ways that suggest the answers for cyber should be different. This Article argues for multistakeholder governance, governance through norms, and regulated militarization.

Drones/Targeting/Autonomous Weapons

Autonomous Weapons and Human Responsibilities

Jack M. Beard (Nebraska)

45 Georgetown Journal of International Law, 617 (2014)

Although remote-controlled robots flying over the Middle East and Central Asia now dominate reports on new military technologies, robots that are capable of detecting, identifying, and killing enemies on their own are quietly but steadily moving from the theoretical to the practical. The enormous difficulty in assigning responsibilities to humans and states for the actions of these machines grows with their increasing autonomy. These developments implicate serious legal, ethical, and societal concerns. This Article focuses on the accountability of states and underlying human responsibilities for autonomous weapons under International Humanitarian Law or the Law of Armed Conflict. After reviewing the evolution of autonomous weapon systems and diminishing human involvement in these systems along a continuum of autonomy, this Article argues that the elusive search for individual culpability for the actions of autonomous weapons foreshadows fundamental problems in assigning responsibility to states for the actions of these machines. It further argues that the central legal requirement relevant to determining accountability (especially for violation of the most important international legal obligations protecting the civilian population in armed conflicts) is human judgment. Access to effective human judgment already appears to be emerging as the deciding factor in establishing practical restrictions and framing legal concerns with respect to the deployment of the most advanced autonomous weapons.

Disposition of Suspected Terrorists

Sentencing Terrorist Crimes

Wadie E. Said (South Carolina)

Ohio State Law Journal, Vol. 75, No. 3 (2014)

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

Special Edition: Harvard National Law Journal Vol. 5, No. 2

The International Law of Unconventional Statecraft

Michael N. Schmitt (US Naval War College), Andru E. Wall (US Naval War College)

This Article examines the international law issues raised by“unconventional statecraft,” a term the Article adopts, as explained infra, inlieu of “unconventional warfare.” It questions whether, and if so when,foreign support to insurgents runs afoul of international legal normsdesigned to safeguard the sovereign prerogatives of other states. In this regard, it must be cautioned that the article assesses unconventionalstatecraft solely from the perspective of international law. Other normativerestrictions on unconventional statecraft reside in the domestic legal regime,but are not addressed. It must also be cautioned that the authors recognizethat because international law norms are usually backward-looking in thesense of responding to past events, there may be circumstances in which thelaw proves ill-suited in the face of contemporary threats. In such cases,national decision-makers may be compelled to authorize covert support torebel forces because doing so is in the national or international interest andtherefore legitimate, albeit unlawful. Of course, decisions to venture beyondthe limits of international law described in this Article should be extremely rare.

Jus Extra Bellum: Reconstructing the Ordinary, Realistic Conditions of Peace

Michael Jefferson Adams (Deputy Legal Counsel to Chairman of the Joint Chiefs of Staff)

This Article explains the international legal basis for national security activities outside of armed conflict through a legal architecture that I refer to as “jus extra bellum”-“the state’s right outside of war.” Jus extra bellum does not imagine that the end of war results in an entirely peaceful, safe planet. It does not feign ignorance of threats to national security nor erase states’ obligations to protect their citizens. It recognizes that a peaceful world is one in which states continue to conduct national security activities outside of armed conflict. Jus extra bellum accepts that such activities occur within a generally permissive international legal regime and are shaped by domestic legal authorities and obligations. It presents a legal archetype that would permit, for example: diplomacy; intelligence collection and sharing; influence operations that do not intrude on sovereignty, territory, or political independence as a matter of law, but inform and shape the perspectives of foreign populations; cyber defense and other cyber activities not rising to the level of a use of force; criminal law enforcement action undertaken with the consent and/or assistance of the government of the state in which the activities occur; security assistance and related activities to improve partner security capacity; advice and assistance against other states’ internal security challenges; economic measures like sanctions and seizures of assets; counter-proliferation efforts targeting weapons of mass destruction and improvised explosive devices; protection of natural resources; pandemic disease prevention and response; freedom of navigation and overflight assertions; peacekeeping operations; other national security actions undertaken pursuant to a UN Security Council resolution or other international legal authorization (e.g., counter-piracy operations); and certain discrete capture or lethal operations when required as a matter of national self-defense. For the purposes of this Article, the concept of jus extra bellum also provides an analytical framework for addressing hard questions about how the United States and its international partners will seek refuge from war while addressing the significant national security threats that persist in the future.

Controlling the Use of Power in the Shadows: Challenges in the Application of Jus in Bello to Clandestine and Unconventional Warfare Activities

Todd C. Huntley (Judge Advocate General’s Corps), Andrew D. Levitz (Judge Advocate General’s Corps)

The challenges of applying jus in bello to the use, and sponsorship, by states of non-state actors for clandestine and UW activities continues to remain largely in the shadows. Are non-state surrogates conducting clandestine and UW activities combatants or civilians under the law of armed conflict? What clandestine and UW activities may be conducted by non-state surrogates and which are prohibited by the law of armed conflict? What are the possible consequences for surrogates conducting prohibited activities? What activities might render an otherwise civilian surrogate a lawful military target? These questions are just a few that have remained largely unexamined.

This Article will discuss these questions and attempt to provide greater understanding of the challenges in applying jus in bello to clandestine and UW activities. This Article will begin with a brief overview of relevant terminology and definitions. Using historical examples and modern U.S. UW doctrine, it will then describe clandestine and UW activities and actors, as well as the international political environment in which those activities take place, so as to give context for later analysis. Before beginning the substantive analysis, the Article will briefly discuss the applicable legal regimes and provide a framework for the analysis that follows.

The substantive analysis will begin with an examination of the status of surrogates under the law of armed conflict. This will include an analysis of whether surrogates are combatants entitled to the combatant’s privilege or if, and under what circumstances, they lose that protection. This Section will also examine when surrogates who are members of an organized armed group could be targeted with armed force. Lastly, the Article will move on to examine the jus in bello principle that presents the greatest challenges of application to clandestine and UW activities: distinction

Special Operations Forces and Responsibility for Surrogates’ War Crimes

Gregory Raymond Bart (Deputy Legal Counsel to the Chairman of the Joint Chiefs of Staff)

This Article considers this specific issue: whether SOF teams have duties under the law of war—as interpreted by war crimes jurisprudence— to investigate and to attempt to prevent war crimes by surrogate forces. It does not address duties imposed by domestic statutes or regulations. Also, given the breadth of this topic, the Article focuses on the duties of SOF teams in the field—their tactical actions—and not those of higher, strategic, or policy-level decisionmakers. For example, consider the following scenario that might arise during an Unconventional Warfare mission. A SOF team deploys into a foreign country in either a permissive or nonpermissive environment with the mission to accomplish U.S. military objectives through, with, or by surrogates—to train, equip, advise and assist, and even lead, in varying degrees, surrogate forces in combat. Before deploying, the team knows of general rumors that some of the surrogate groups may have committed acts that would constitute serious violations of the law of war. While deployed and providing military assistance, the team hears specific rumors that the surrogates with whom they are working might be committing war crimes. No SOF members directly participate in any war crimes. Within the context of law of war jurisprudence, what are SOF’s responsibilities with respect to suspected or confirmed war crimes being committed by surrogate forces?

This Article first analyzes SOF’s criminal liability and duties under command responsibility theory—specifically, whether a SOF team’s ability to influence surrogates would amount to “effective control” so as to renderthe team responsible for the surrogates’ criminal acts. Then, the Article considers SOF’s potential criminal liability under theories that do not require effective control. Finally, the Article discusses the implications of these theories on a SOF’s duties to investigate, report, intervene, or detach from surrogates who are suspected or confirmed of committing war crimes. Recognizing the developmental link between international and domestic cases concerning war crimes, it draws examples and theories from recent decisions of U.S. courts, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), and the International Criminal Court (“ICC”). An analysis of these sources confirms that SOF generally have no legal duty under the law of war to investigate rumors of past war crimes committed by surrogates or to intervene to stop future ones. The Article concludes, however, that SOF have strong moral, ethical, and even practical motives to take some action, including to maintain the legitimacy of the U.S. military operation to the rest of the U.S. Government and the American population. Accordingly, the Article provides limited practical advice for SOF to consider when confronting a situation where surrogates may have or did commit war crimes.

The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States

Michael Bahar (Deputy Legal Advisor to the National Security Council Staff)

There is no more irregular use of force than the use of force domestically. There are rare times, however, when the Commander-in-Chief can, and must, order federal troops to respond to internal crises—whether catastrophic natural disasters, devastating nuclear accidents, or terrorist attacks. At times, the President may even have to direct federal forces to ensure the equitable enforcement of federal law, including civil rights laws, against armed opposition. It is therefore critical to understand presidential emergency and war powers relative to the powers wielded by those who could most readily enhance or undermine these presidential efforts: the power of the state governors. This Article looks at this greatly under-analyzed aspect of national security federalism and derives a guiding constitutional, statutory, and historical principle. The presidential intervention principle holds that the President can and sometimes must intervene when state and ordinary judicial proceedings cannot or will not maintain order, public safety, or the equitable enforcement of the law against armed opposition. The President may also intervene when federal personnel or facilities are in grave danger. Short of—and at times even during—these emergency situations, however, states and their governors provide a critical and often underappreciated structural check on presidential power. Finally, while irregular warfare discussions tend to focus on the Title 10/Title 50 debate, the domestic use of force implicates those titles plus Titles 18, 32, and a host of constitutional and statutory thickets, as well as opportunities, best thought of before the crisis hits.

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