National Security Law Commons^™

Global Test Threatens Security, Alan J. Meese

Alan J. Meese

No abstract provided.

Annan Leaves Door Open For U.S. Action, Alan J. Meese

Alan J. Meese

No abstract provided.

Interest-Balancing Vs. Fiduciary Duty: Two Models For National Security Law, Evan Fox-Decent, Evan J. Criddle

Evan J. Criddle

No abstract provided.

When Can Nations Go To War? Politics And Change In The Un Securtiy System, Charlotte Ku

Charlotte Ku

In an appreciation of Harold Jacobson written for the American Journal of International Law, the author concluded that following the events of September 11, 2001, we would need the kind of gentle wisdom Harold Jacobson brought to his tasks more than ever. The author also recalled Harold Jacobson's own observation in Networks of Interdependence that his assessment of the global political system was an optimistic, but not a naive one. These qualities of quiet determination to get to the bottom of an issue and of optimism stemmed from a fundamental belief that individuals, armed with information and the opportunity …

Cyber!, Andrea M. Matwyshyn

Andrea Matwyshyn

This Article challenges the basic assumptions of the emerging legal area of “cyber” or “cybersecurity.” It argues that the two dominant “cybersecurity” paradigms—information sharing and deterrence—fail to recognize that corporate information security and national “cybersecurity” concerns are inextricable. This problem of “reciprocal security vulnerability” means that in practice our current legal paradigms channel us in suboptimal directions. Drawing insights from the work of philosopher of science Michael Polanyi, this Article identifies three flaws that pervade the academic and policy analysis of security, exacerbating the problem of reciprocal security vulnerability—privacy conflation, incommensurability, and internet exceptionalism. It then offers a new paradigm—reciprocal …

National Security, Immigration And The Muslim Bans, Shoba Wadhia

Shoba Sivaprasad Wadhia

National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim …

National Security Letters And Intelligence Oversight, Michael J. Greenlee

Michael Greenlee

The history of NSL [national security letter] powers can serve as an illuminating example of the post­-Church Committee development of intelligence investigations. Many of the Church Committee findings and recommendations concerning the need for expanded oversight to prevent the executive branch from violating or ignoring the law, excessively using intrusive investigation techniques, and conducting overbroad investigations with inadequate controls on the retention and dissemi­nation of the information gathered are all reflected in the development of NSL powers and authorities from their creation in 1978 through passage of the PlRA [USA PATRIOT Improvement and Reauthorization Act] in 2006. At each stage …

Special International Zones In Practice And Theory, Tom W. Bell

Tom W. Bell

Insuring Against Cyber Risk: The Evolution Of An Industry (Introduction), Christopher French

Christopher C. French

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Russell A. Miller

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a …

Testimony @ House Energy And Commerce Subcommittee On Digital Commerce And Consumer Protection Hearing; "21st Century Trade Barriers: Protectionist Cross Border Data Flow Policies Impact On U.S. Jobs.", Jennifer Daskal

Jennifer Daskal

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Digital Forensics: Everything Leaves A Trace In Cyberspace, Gary C. Kessler

Gary C. Kessler

"What is cyberforensics • Legal issues • The computer/network forensics process • Where does the data go ‐- Some examples • Locard's Principle"--Overview

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

Leslie Gielow Jacobs

No abstract provided.

The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule

Jimmy Gurule

The Islamic State of Iraq and Syria ("ISIS") is the most deadly and well-funded foreign terrorist organization in the world. There are estimates that ISIS has an annual budget of over $2 billion to finance its goal of establishing a caliphate, or Islamic state, governed by its twisted version of Islamic law.1 Flush with funds, the terror group has acquired and controls large swaths of territory in Syria and Iraq, and the threat it poses extends to Jordan, Saudi Arabia, Egypt, Libya, Yemen, Lebanon, and beyond. 2 While depriving ISIS of funding is a central component of the United States …

The Icc And The Security Council: How Much Support Is There For Ending Impunity?, 26 Ind. Int'l & Comp. L. Rev. 33 (2016), Stuart Ford

Stuart Ford

No abstract provided.

Is Immigration Law National Security Law?, Shoba S. Wadhia

Shoba Sivaprasad Wadhia

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War. This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …

The Advanced Persistent Threat And The Role Of Cybersecurity Education, Gary C. Kessler

Gary C. Kessler

"The changing face of infowar • The Advanced Persistent Threat • Examples of recent cyber attacks • Mitigation and preparation • Formalizing the response • The role(s) of education"--Overview

Digital Forensics: Everything Leaves A Trace In Cyberspace, Gary C. Kessler

Gary C. Kessler

"What is cyberforensics • Legal issues • The computer/network forensics process • Where does the data go ‐- Some examples • Locard's Principle"--Overview

The Command And Control Of United Nations Forces In The Era Of "Peace Enforcement", James W. Houck

James Houck

This Article explores how concerns regarding the United Nations' authority to make political, strategic, and operational decisions that comprise the right to command and control UN forces might be reconciled within the framework of the United Nations Charter to create a contemporary and more enduring regime for the command and control of United Nations forces. As Part II demonstrates, command and control issues are not new to the United Nations; indeed, in 1945 the signatories to the United Nations Charter created a model for the command and control of United Nations forces. While the cold war ensured that this model …

Politically Motivated Bar Discipline, James E. Moliterno

James E. Moliterno

Bar discipline and admission denial have a century-long history of misuse in times of national crisis and upheaval. The terror war is such a time, and the threat of bar discipline has once again become an overreaction to justifiable fear and turmoil. Political misuse of bar machinery is characterized by its setting in the midst of turmoil, by its target, and by its lack of merit. The current instance of politically motivated bar discipline bears the marks of its historical antecedents.

Small Data Surveillance V. Big Data Cybersurveillance, Margaret Hu

Margaret Hu

This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals' digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the …

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

Iran Sanctions Relief: Status & Prospects, Perry S. Bechky

Perry S. Bechky

This talk, given to a European trade association, describes the sanctions relief given by the US Government to Iran as part of the nuclear deal known as the Joint Comprehensive Plan of Action (JCPOA). It places this sanctions relief in historical context and flags the significance of ongoing sanctions for both US and non-US businesses. Finally, it urges businesses doing or contemplating business with Iran to anticipate, manage, and allocate risks. (Powerpoint slides)

Tradition, Judges, And Civil Liberties In Canada, Douglas Hay

Douglas C. Hay

Comments on the role of the first chief justice of Upper Canada, William Osgoode (1754-1824), on shaping the law during a period of "counter-revolutionary and anti-democratic repression throughout the British Empire." Concludes that laws were often presented as emergency legislation that nevertheless effectively became permanent, challenging civil liberties in times of political or social conflict

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

François Tanguay-Renaud

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Restricted Access To Justice For Canadians Mistreated Abroad: Abdelrazik V. Canada (Re: Interim Costs), Sean Rehaag

Sean Rehaag

Abousfian Abdelrazik is a Canadian citizen who, after having his name added to various anti-terrorism lists, and after being tortured by Sudanese officials, found himself unable to return home from Sudan largely because of Canadian government actions. Abdelrazik sought to challenge the constitutionality of these restrictions on his ability to return to Canada. However, he had no money and no means of support, as he was unable to leave a Canadian embassy in Sudan where he had sought refuge to avoid further torture by Sudanese officials. He therefore brought a motion for interim costs in Canada’s Federal Court. If granted, …

National Security Policy And Ratification Of The Comprehensive Test Ban Treaty, Winston P. Nagan, Erin K. Slemmens

Winston P Nagan

While no legal obstacles prevent the U.S. Senate's reconsideration of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), lingering doubts (about the effectiveness of the international treaty) and partisan politics (founded upon outdated ideologies of national sovereignty) may again foreclose the opportunity for the United States to lead a just and thorough regime of international arms control. By closely examining the U.S. Senate's previous rejection (and, by implication, the nation's non-ratification) of the CTBT, we assess the political process that failed to realize the security values now imperative to U.S. national defense. To this appraisal, we join analysis of the contemporary law, policy, …

Patriotism, Nationalism, And The War On Terror: A Mild Plea In Avoidance, Winston P. Nagan, Craig Hammer

Winston P Nagan

Professor Viet Dinh, a major drafter of and architectural influence upon the USA PATRIOT Act, provides an indirect scholarly justification for the far-reaching powers of the act in his article, Nationalism in the Age of Terror. Part II of this Commentary begins by exploring the ostensible underpinnings of Dinh's article by examining his understanding of nationalism. Part III explains why crony nationalism is not the best defense against global terrorism. Part IV then analyzes some significant United States foreign policy undertakings that have arguably negatively affected United States national security. Finally, in Part V we conclude by gleaning lessons from …