Law Commons^™

President Obama And The Changing Cyber Paradigm, Eric Talbot Jensen

Faculty Scholarship

Among the most important issues for American National Security is the national response to the growing threat from cyber activities. This threat is both ubiquitous and potentially catastrophic as recently demonstrated by both the recent decision by the UK to prioritize cyber capabilities over putting in service an air-capable aircraft carrier and the targeted effectiveness of the STUXNET worm. The evolving cyber paradigm will force the United States to reevaluate the way in which it thinks of both national security and the concept of armed conflict. To combat this threat, President Obama must refocus America’s attention, by both reallocating the …

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

Making Fiction Of Facts In The Israeli Spy Case, Kenneth Lasson, Angelo Codevilla, Lawrence J. Korb, John Loftus

All Faculty Scholarship

The authors make the case that Jonathan Pollard, the man convicted of spying for Israel, is again being condemned by new allegations by Martin Peretz in a New Republic article, and by retired Navy Capt. M. E. Bowman. The authors of these new assertions may not know more of the particulars than others in high places who have already publicly supported commuting Pollard's sentence to time served.

No More 'Sha Still', Kenneth Lasson

All Faculty Scholarship

This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.

A Guide For Homeland Security Instructors Preparing Physical Critical Infrastructure Protection Courses, Steven Hart, James D. Ramsay

Security Studies & International Affairs - Daytona Beach

Over 350 academic programs in the United States currently offer instruction in the field of homeland defense and security. In spite of this growth at the program level over the past ten years, there still exists a shortage of instructors and coursework in critical infrastructure protection (CIP). Traditional instructor preparation (which is accomplished through the attainment of an advanced degree coupled with research and professional experience) does not currently produce enough instructors qualified in CIP because of the extremely limited number of CIP-related educational opportunities. Therefore, an alternate venue for instructor preparation must be provided. This article addresses that need …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

All Faculty Scholarship

Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

Law Faculty Scholarship

No abstract provided.

Let My People Go!, Kenneth Lasson

All Faculty Scholarship

This short article discusses the continued imprisonment of Jonathan Pollard for spying for Israel, as well as that of Israeli soldier Gilad Shalit, imprisoned by Hamas. Also discussed are the inequalities of the negotiations for their release, leaving Israel and the U.S. in a bad light.

Network Accountability For The Domestic Intelligence Apparatus, Frank Pasquale, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Responses To The Ten Questions, John Cary Sims

McGeorge School of Law Scholarly Articles

No abstract provided.

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.

A Hypothetical Postulate For The Polemic Of Extraordinary Rendition Vis-A-Vis The Paradigm Of Asymmetric Warfare, John C. Duncan, Jr.

Journal Publications

This article presents a controversial hypothetical approach to a side of the polemic regarding extraordinary rendition. War is not always controlled by rules, fairness, or ethics. The United States would prefer the foregoing if forced to go to war, but the enemy may not follow the same approach. As a result, the United States becomes hampered by unilaterally self-imposed rules and standards. Conceivably, we could fail to achieve our military objective because of the enemy's adherence to a very different approach and beliefs regarding warfare. Were we to have the privilege of fighting under relatively similar rules with the other …

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

All Papers

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, …

The Theoretical Constitutional Shape (And Shaping) Of American National Security Law, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

U.S. Business: Tort Liability For The Transnational Republisher Of Leaked Corporate Secrets, Richard J. Peltz-Steele

Faculty Publications

Wikileaks, the web enterprise responsible for the unprecedented publication of hundreds of thousands of classified government records, is reshaping fundamental notions of the freedom of information. Meanwhile more than half of records held by Wikileaks are from the private sector, and the organization has promised blockbuster revelations about major commercial players such as big banks and oil companies. This paper examines the potential liability under U.S. business-tort law for Wikileaks as a transnational republisher of leaked corporate secrets. The paper examines the paradigm for criminal liability under the Espionage Act to imagine a construct of civil liability for tortious interference …

Under Attack: Terrorism Risk Insurance Regulation, Alexia Brunet Marks

Publications

Scholarly debates over the September 11th attacks focus predominantly on high-profile issues, such as torture, preventive detention, interrogation, privacy, and surveillance. These debates have overshadowed the equally important and far-reaching issue of terrorism risk insurance, which not only involves billions of dollars, but provides powerful incentives to keep us safe. Developing a sound understanding of the market for terrorism risk insurance is essential to guiding the difficult determination of the appropriate balance between private and public responsibility for preventing and (when necessary) compensating for terrorism.

The attacks of September 11th represented one of the costliest insurance events in American history. …

Responses To The Ten Questions, Aziz Rana

Cornell Law Faculty Publications

This essay responds to a question posed by the William Mitchell Law Review for its annual national security issue: Has Obama Improved Bush's National Security Policies? I maintain that Obama Administration practices have been marked by striking continuities with those of the previous Administration. I then attempt to explain these continuities by discussing how American policymakers across the political spectrum share basic assumptions about the concept of national security and the need for an aggressive and interventionist foreign policy.

Measure Twice, Shoot Once: Higher Care For Cia-Targeted Killing, Afsheen John Radsan, Richard Murphy

Faculty Scholarship

For almost a decade, the United States has deployed unmanned aerial vehicles, or "drones," to kill targeted members of Al Qaeda and the Taliban. Central Intelligence Agency (CIA) drone strikes in Pakistan have, in particular, stirred strong debates over the legality of such actions. Some commentators insist that these strikes are legal under international humanitarian law (IHL) or as a matter of self-defense. Others insist that the United States' targeted killing amounts to murder.

It is critical for the law to determine how to control killer drones and the future of warfare. As technology evolves, drones will develop sharper senses …

The Military-Industrial Complex, Charles J. Dunlap Jr.

Faculty Scholarship

In his 1961 farewell address, President Eisenhower cautioned against a future in which a powerful military-industrial complex manipulated policy to the detriment of American interests. Dunlap argues that, fifty years later, Eisenhower’s fears have not been realized; in fact, the military-industrial enterprise is in decline. Certainly, the U.S. military owes its continued preeminence to both the quality of its combatants and the superiority of its weaponry. Yet as the manpower-centric strategies in Afghanistan and Iraq replaced technology-centric operations; as complicated defense acquisitions laws deterred companies from obtaining contracts; and as the economic downturn and rising national deficit have strained budgets, …

The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs. Ruth B. Shipley, the Chief of the State Department’s Passport Division from 1928 to 1955. Mrs. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.

This article examines how Mrs. Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then …

On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris

Articles

In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …

Protecting Information Privacy, Charles D. Raab, Benjamin J. Goold

All Faculty Publications

This report for the Equality and Human Rights Commission (the Commission) examines the threats to information privacy that have emerged in recent years, focusing on the activities of the state. It argues that current privacy laws and regulation do not adequately uphold human rights, and that fundamental reform is required. It identifies two principal areas of concern: the state’s handling of personal data, and the use of surveillance by public bodies. The central finding of this report is that the existing approach to the protection of information privacy in the UK is fundamentally flawed, and that there is a pressing …

9/11 And The Transformation Of U.S. Immigration Law And Policy, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Preface To The Paperback Edition Of United States, International Law, And The Struggle Against Terrorism, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

It is remarkable that in less than two years so many significant developments have taken place that concern the United States and the struggle against transnational terrorism. Perhaps the three most significant are as follows: (1) the Obama administration’s failure to reject wholesale the Bush-Cheney administration’s counterterrorism policies and practices; (2) the popular revolts sweeping the Arab world, often referred to as the “Arab spring”; and (3) the US Navy Seals killing Osama bin Laden in Abbottabad, Pakistan.

An Unintended Casualty Of The War On Terror, Aya Gruber

Publications

As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …

Disappearing Government Information And The Internet's Public Domain, Susan Nevelow Mart

Publications

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

The Self-Judging Wto Security Exception, Roger P. Alford

Journal Articles

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address …

Responses To The Ten Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Mottled Legacy Of 9/11: A Few Reflections On The Evolution Of The International Law Of Armed Conflict, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Immigration And National Security: The Illusion Of Safety Through Local Law Enforcement Action, David A. Harris

Articles

Despite efforts to reform immigration law in the 1980s and the 1990s, the new laws passed in those decades by the Congress did not solve the long-term problems raised by undocumented people entering the United States. The issue arose anew after the terrorist attacks of September, 2001. While the advocates for immigration crackdowns in the 1980s and 1990s had cast the issue as one of economics and cultural transformation, immigration opponents after 9/11 painted a different picture: illegal immigration, they said, was a national security issue. If poor farmers from Mexico and Central America could sneak into the U.S. across …