Law Commons^™

Updating The Caroline Doctrine: A Relic In An Age Of Hypersonic Weapons, David S. Jonas, Tyler Breeden

American University International Law Review

The United States dropped “Little Boy” and “Fat Man” on the cities of Hiroshima and Nagasaki in 1945, bringing an end to World War II and killing between 110,000 and 210,000 people. Japan surely needed much more than rock and roll to help them—especially since Japan had no nuclear weapons of their own to deter the United States from attacking with nuclear weapons. Nuclear weapons technology has evolved considerably in the years since 1945, when only the United States possessed nuclear weapons. Nine states now have or are suspected of having them, and at least one other state appears to …

Into The Valley Of The Shadow Of Death: War Crimes Committed In Service Of Russia's Crusade To Destroy Ukraine, Chris Galarza

American University National Security Law Brief

When Russian tanks rolled across the border into Ukraine during the early morning of February 24, 2022, most in the American defense and diplomatic establishment were shocked and sure the war would be over in a few days. Credible open-source tactical and strategic analysis predicted that Ukraine’s regular military forces would be defeated in “days or weeks” as long as Russian military forces were determined to pursue their objectives. The United States Government was so sure that Kyiv was under imminent threat of capture that they offered to evacuate President Volodymyr Zelenskyy so that he could rule from exile, rather …

Revisiting Goldwater-Nichols: Why Making The Joint Staff A General Staff Will Improve Civilian Control Of The Military And Refine The Constitutional Balance Of War Powers, Michael D. Minerva

American University National Security Law Brief

As the United States has progressively become more involved globally since World War II, the U.S. military is being stretched beyond the professional military competency straining civilian control of the military. To remedy this, it is again time to revisit our national security structure, and adopt a General Staff in place of the Joint Staff. Following World War II and the destruction of the German General Staff by the Nazi Party, the General Staff as an institution has been emotionally rejected in the United States without a careful historical and legal examination of how that institution operates under varying forms …

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.

Innovative Thinking: Modernizing Outer Space Governance, Diane M. Janosek

Catholic University Journal of Law and Technology

Space security is essential to global safety and prosperity. International treaties should modernize and reflect the world’s innovation in space and governance needs. One must look back to 1967 for the inaugural “Outer Space Treaty,” the first and only binding multilateral agreement for peaceful space use and exploration. In 50 years, technologies and space capabilities have evolved; an updated global treaty and agreement should be developed and evaluated. Both China and Russia have demonstrated their capability to degrade and/or destroy adversaries’ satellites in space. Space wars are no longer a hypothetical. The future once discussed and anxiously anticipated after Sputnik …

The Effects Of National Security On Supreme Court Case Decisions Involving Civil Liberties, Callie Gerzanics

Williams Honors College, Honors Research Projects

This research project will analyze the effects that national security laws and tensions have on civil liberties and Supreme Court case decisions. National security has been a primary objective for the United States of America for as long as wars have been fought and enemies have been made. National security continues to be a concern for the U.S. government, especially with the prominence of technology that has made the U.S. more vulnerable to breaches in security, such as cybernetic attacks. The motivations behind this project stem from a concern of how national security can influence Supreme Court decisions, police arrests, …

Citizenship Denied: Implications Of The Naturalization Backlog For Noncitizens In The Military, Ming H. Chen

Publications

The immigration system is in crisis. Long lines of asylum seekers at the border and immigrants in the interior spend years waiting for their day in immigration court. This is true in the agencies that process applications for immigration benefits from legal immigrants as well. Since 2016, delays in naturalization have increased to historic proportions. The problem is even worse for military naturalizations, where delays are accompanied by denials and overall declines in military naturalizations. It is the latest front in the battle on legal migration and citizenship.

These impediments to citizenship demonstrate an extreme form of policies collectively dubbed …

The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco

St. John's Law Review

(Excerpt)

Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, …

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

All Faculty Scholarship

What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the …

Contrasting Perspectives And Preemptive Strike: The United States, France, And The War On Terror, Sophie Clavier

Maine Law Review

A few years ago, Samuel P. Huntington's article in Foreign Affairs, "The Clash of Civilizations?" described a "West vs. the Rest" conflict leading to the assumption of an essentially unified Western civilization settling "[g]lobal political and security issues ... effectively ... by a directorate of the United States, Britain and France" and centered around common core values "using international institutions, military power and economic resources to run the world in ways that will . . . protect Western interests . . . .” Against the West, the specter of disorder and fundamentalism was looming and would precipitate conflicts. This widely …

Unilateral And Multilateral Preventive Self-Defense, Stéphanie Bellier

Maine Law Review

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people …

Geopolitics Of Rare Earth Elements, Bert Chapman

Libraries Faculty and Staff Presentations

Rare earth elements (REE) contain unique chemical physical properties such as lanthamum, are found in small concentrations, need extensive precise properties to separate, and are critical components of modern technologies such as laser guidance systems, personal electronics such as IPhones, satellites, and military weapons systems as varied as Virginia-class fast attack submarines, DDG-51 Aegis destroyers, the F-35 Joint Strike Fighter, and precision guided munitions. The U.S. has some rare earth resources, but is heavily dependent on access to them from countries as varied as Afghanistan, Bolivia, and China. Losing access to these resources would have significant adverse economic, military, and …

Warfare As Regulation, Robert Knowles

Washington and Lee Law Review

The United States government’s national security activities, including the use of force, consume more than half of all federal discretionary spending and are carried out by the world’s largest bureaucracy. Yet existing scholarship treats these activities as conduct to be regulated, rather than as forms of regulatory action.

This Article introduces a new paradigm for depicting what agencies involved in national security do. It posits that, like other agencies, the national security bureaucracy is best understood to be engaging in regulatory activity—by targeting, detaining, interrogating, and prosecuting enemies; patrolling the border; and conducting surveillance and covert actions. Also, like other …

Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan

Penn State Journal of Law & International Affairs

No abstract provided.

A Research Agenda To Improve Decision Making In Cyber Security Policy, Benjamin Dean, Rose Mcdermott

Penn State Journal of Law & International Affairs

No abstract provided.

The Cyber Longbow & Other Information Strategies: U.S. National Security And Cyberspace, Gary D. Brown

Penn State Journal of Law & International Affairs

No abstract provided.

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Recent Decision: Constitutional Law - Restriction Of American Citizens’ Right Of Access To Information And Ideas In The Court Of Government Control Of Immigration Is Not Unconstitutional When Supported By A Facially Legitimate Reason, W. P. Bishop, Joseph C. Vanzant

Georgia Journal of International & Comparative Law

No abstract provided.

Should The Best Offenses Ever Be A Good Defense: The Public Authority To Use Force In Millitary Operations: Recalibrating The Use Of Force Rules In The Standing Rules Of Engagement, Gary Corn

Articles in Law Reviews & Other Academic Journals

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/StandingRules for the Use of Force (SROE/SRUF)for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to a conflation …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

American Military Culture And Civil-Military Relations Today, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Eliminating The No Number, No List Response; Keeping The Cia Within The Scope Of The Law Amidst America's Global War On Terror, Joseph Meissner

Nevada Law Journal

No abstract provided.

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, …

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Prof.

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori, an indigenous …

The Future As A Concept In National Security Law, Mary L. Dudziak

Pepperdine Law Review

With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social …

Standing And Covert Surveillance, Christopher Slobogin

Pepperdine Law Review

This Article describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the …

Law Of War Developments Issue Introduction, David Glazier

Loyola of Los Angeles Law Review

No abstract provided.

Introduction: Cyber And The Changing Face Of War, Claire Oakes Finkelstein, Kevin H. Govern

All Faculty Scholarship

Cyberweapons and cyberwarfare are one of the most dangerous innovations of recent years, and a significant threat to national security. Cyberweapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide-ranging potential consequences. Cyberwarfare occupies an ambiguous status in the conventions of the laws of war. This book addresses Ethical and legal issues surrounding cyberwarfare by considering whether the Laws of Armed Conflict apply to cyberspace and the ethical position of cyberwarfare against the background of our generally recognized moral traditions in armed conflict. The book explores these moral and legal …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Indiana Law Journal

No abstract provided.