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Articles 1 - 10 of 10
Full-Text Articles in Law
Cyber Deterrence, Eric Talbot Jensen
Cyber Deterrence, Eric Talbot Jensen
Faculty Scholarship
Cyber operations by both state actors and non-state actors are increasing in frequency and severity. As nations struggle to defend their networks and infrastructure, their ability to apply the principles of deterrence to cyber activities correspondingly increases in importance. Cyber deterrence offers much more flexibility and increased options from traditional deterrence methodologies developed in the Cold War’s nuclear age. In addition to traditional retaliation, cyber deterrence includes options such as taking legal action; and making networks invisible, resilient, and interdependent. It also presents new ways to view and apply accepted methodologies such as invulnerability. As the U.S. continues to develop …
Judicial Formalism And The State Secrets Privilege, Sudha Setty
Judicial Formalism And The State Secrets Privilege, Sudha Setty
Faculty Scholarship
Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …
The Rise Of National Security Secrets, Sudha Setty
The Rise Of National Security Secrets, Sudha Setty
Faculty Scholarship
Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking of national security secrecy as well. The centralization of security decision-making power in the early Cold War era fostered a culture of government secrecy, with Congress and the judiciary enabling the rise of national security secrecy out of fear that they were ill-equipped to make security-related decisions, and public fear of internal and international security threats trumping concerns about legitimacy or democratic accountability. This culture of secrecy …
National Security Interest Convergence, Sudha Setty
National Security Interest Convergence, Sudha Setty
Faculty Scholarship
Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.
Legislators act in their political self-interest — both in terms of responding to party forces and constituents — in casting votes …
Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap
Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap
Faculty Scholarship
No abstract provided.
Responses To The Five Questions, Charles J. Dunlap Jr.
Responses To The Five Questions, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent
Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent
Faculty Scholarship
This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.
Do Boumediene Rights Expire?, Andrew Kent
Do Boumediene Rights Expire?, Andrew Kent
Faculty Scholarship
In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the …
National Security Federalism In The Age Of Terror, Matthew C. Waxman
National Security Federalism In The Age Of Terror, Matthew C. Waxman
Faculty Scholarship
National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …
A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.
A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.