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Columbia Law School

National Security Law

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Full-Text Articles in Law

What's So Great About The Declare War Clause?, Matthew C. Waxman Jan 2018

What's So Great About The Declare War Clause?, Matthew C. Waxman

Faculty Scholarship

I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today ...


Presidents And War Powers, Matthew C. Waxman Jan 2018

Presidents And War Powers, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given rise to two major questions about presidential war powers: first, what should be the president’s role in taking the country to war, and, second, what are the president’s powers to direct its conduct. Historian Michael Beschloss’s new book, “Presidents of War,” examines how presidents have responded to each of these questions across two hundred years of U.S ...


Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative (Psi), Duncan B. Hollis, Matthew C. Waxman Jan 2017

Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative (Psi), Duncan B. Hollis, Matthew C. Waxman

Faculty Scholarship

Global efforts by states to cooperate through international rules in combating cyber threats have generated mixed results, at best. In this paper, we examine the architecture of the Proliferation Security Initiative (PSI) as a possible model for future cybersecurity cooperation among interested states. We identify several features of PSI's architecture (rather than its substantive focus on non-proliferation) for further analysis, including PSI's low entry costs, tiered structure, and flexibility, as well as its leveraging of both territorial jurisdiction and state consent. We conclude that, despite several hurdles visible in the scope of its membership and its legal framework ...


Freedom Of Information Beyond The Freedom Of Information Act, David Pozen Jan 2017

Freedom Of Information Beyond The Freedom Of Information Act, David Pozen

Faculty Scholarship

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and ...


Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman Jan 2017

Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of ...


Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman Jan 2017

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come ...


The Power To Wage War Successfully, Matthew C. Waxman Jan 2016

The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. It was in that address that he uttered his famous axiom that “the power to wage war is the power to wage war successfully.” That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes’s own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to ...


Privacy-Privacy Tradeoffs, David Pozen Jan 2016

Privacy-Privacy Tradeoffs, David Pozen

Faculty Scholarship

Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a "privacy-privacy tradeoff" arises.

This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in National Security Agency (NSA) surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national security need but also to a privacy-privacy tradeoff. An appreciation of ...


When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss Jan 2015

When The Curtain Must Be Drawn: American Experience With Proceedings Involving Information That, For Reasons Of National Security, Cannot Be Disclosed, Peter L. Strauss

Faculty Scholarship

In numerous contexts today, ranging from no-fly lists, to the designation of foreign terrorist organizations, to controls over foreign investments in the United States, federal authorities reach decisions having dramatic consequences for individuals’ liberty and property on the basis of information that those individuals cannot obtain, even in summary form. Recent and pending litigation has challenged these deprivations on due process grounds, with only moderate success. Perhaps unclassified information on which the government has acted must be revealed, with an opportunity given to challenge it and to submit contrary evidence; but in the words of the DC Circuit writing last ...


Energy Subsidies: Worthy Goals, Competing Priorities, And Flawed Institutional Design, David M. Schizer Jan 2015

Energy Subsidies: Worthy Goals, Competing Priorities, And Flawed Institutional Design, David M. Schizer

Faculty Scholarship

The government often relies on targeted subsidies for both “green” energy and hydrocarbons. These subsidies pursue worthwhile goals. But unfortunately, many have design flaws that make them less effective or even counterproductive. The goal of this Article is to show how we can do better.

This Article focuses on three sets of issues. First, there often is tension between our environmental and national security goals. Unfortunately, the economics literature on energy largely ignores these tradeoffs by omitting national security from the analysis. This Article takes issue with this approach and suggests ways to manage these tradeoffs. Second, as a strategy ...


Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman Jan 2014

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman

Faculty Scholarship

As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing ...


The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen Jan 2013

The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David Pozen

Faculty Scholarship

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances ...


Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman Jan 2013

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber-attack (or threat of cyber-attack) give rise to a right of self-defense – including armed self-defense – and when should it? This essay examines these questions through three lenses: (1) a legal perspective, to examine the range of reasonable interpretations of self-defense rights as applied to cyber-attacks, and the relative merits of interpretations within that range; (2) a strategic perspective, to link a purported right of armed self-defense to long-term policy interests including security and stability; and (3) a political perspective, to consider the situational context in which government decision-makers will face these issues and predictive judgments about the ...


The Power To Threaten War, Matthew C. Waxman Jan 2013

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing legal scholarship about constitutional war powers focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – is one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's ...


Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman Jan 2012

Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman

Faculty Scholarship

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and ...


National Security Federalism In The Age Of Terror, Matthew C. Waxman Jan 2011

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 Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman Jan 2010

The Structure Of Terrorism Threats And The Laws Of War, Matthew C. Waxman

Faculty Scholarship

This article considers a major debate in the American and European counterterrorism analytic community – whether the primary terrorist threat to the West is posed by hierarchical, centralized terrorist organizations operating from geographic safe havens, or by radicalized individuals conducting a loosely organized, ideologically common but operationally independent fight against western societies – and this debate’s implications for both jus ad bellum and jus in bello. Analysis of how the law of armed conflict might be evolving to deal with terrorism should engage in more nuanced and sophisticated examination of how terrorism threats are themselves evolving. Moreover, the merits of legal ...


Cyber-Attacks And The Use Of Force: Back To The Future Of Article 2(4), Matthew C. Waxman Jan 2010

Cyber-Attacks And The Use Of Force: Back To The Future Of Article 2(4), Matthew C. Waxman

Faculty Scholarship

Cyber-attacks – efforts to alter, disrupt, or destroy computer systems, networks, or the information or programs on them – pose difficult interpretive issues with respect to the U.N. Charter, including when, if ever, such activities constitute prohibited “force” or an “armed attack” justifying military force in self-defense. In exploring these issues, and by drawing on lessons from Cold War legal debates about the U.N. Charter, this Article makes two overarching arguments. First, strategy is a major driver of legal evolution. Whereas most scholarship and commentary on cyber-attacks has focused on how international law might be interpreted or amended to take ...


The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman Jan 2009

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Faculty Scholarship

The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Colliding with this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such ...


Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman Jan 2009

Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman

Faculty Scholarship

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom concerned ...


Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman Jan 2009

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process ...


Deep Secrecy, David Pozen Jan 2009

Deep Secrecy, David Pozen

Faculty Scholarship

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being ...


Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman Jan 2008

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left ...


Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman Jan 2008

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court." This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what ...


Police And National Security: American Local Law Enforcement And Counter-Terrorism After 9/11, Matthew C. Waxman Jan 2008

Police And National Security: American Local Law Enforcement And Counter-Terrorism After 9/11, Matthew C. Waxman

Faculty Scholarship

What makes the issue of American policing and national security so interesting and complex is the decentralized and localized nature of most law enforcement in the United States. These attributes give rise to three challenges for policing and national security. First, the decentralized and localized nature of American policing creates enormous organizational problems in coordinating national security activities, and combating terrorism in particular. Second, the counter-terrorism agenda may influence or disrupt systems and patterns of political accountability of local police agencies. Third, some of the same attributes of local policing that makes it a useful counter-terrorism tool also create difficulties ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2006

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt Jan 2006

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist ...


Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley Jan 2005

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient ...


The Mosaic Theory, National Security, And The Freedom Of Information Act, David Pozen Jan 2005

The Mosaic Theory, National Security, And The Freedom Of Information Act, David Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of ...


From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman Jan 2003

From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman

Faculty Scholarship

Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of ...