Law Commons^™

How U.S. Government Policy Documents Are Addressing The Increasing National Security Implications Of Artificial Intelligence, Bert Chapman

Libraries Faculty and Staff Presentations

Artificial intelligence is affecting many areas of our lives and governmental policy. National security is one arena in which artificial intelligence is playing an increasingly important and controversial role. U.S. Government and military agencies are producing a steadily expanding corpus of publicly available literature on this topic. This literature documents how these agencies have this topic's national security implications historically and currently while also addressing potentially emerging national security issues where artificial intelligence will intersect with national security. This presentation demonstrates examples of the growing variety of publicly available national security artificial intelligence literature while also addressing the implications of …

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

Faculty Publications & Other Works

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Faculty Scholarship

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …

Wrestling Tyrants: Do We Need An International Criminal Justice System?, Christopher L. Blakesley

Scholarly Works

Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016.

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …

The President's Wartime Detention Authority : What History Teaches Us, Anirudh Sivaram

Harvey M. Applebaum ’59 Award

This thesis examines the extent of the President’s wartime detention authority over citizens (in particular, detention authority pursuant to Article II of the U.S. Constitution) through a legal-historical lens. Some Presidents (Abraham Lincoln, Franklin Roosevelt, George W. Bush) have historically relied on Article II authority for detention, while others (Ulysses Grant, Barack Obama) have disclaimed the notion that such authority exists. Clarifying the scope and source of the Presidential detention authority over citizens bears both theoretical and real-world relevance. Theoretically, it lies at the confluence of two central American constitutional traditions – the separation of powers, and the protection of …

A Military Justice Solution In Search Of A Problem: A Response To Vladeck, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

In “Military Courts and Article III,” law professor Steve Vladeck proposes a wholesale replacement of the foundation upon which court-martial jurisdiction has stood since the inception of the United States. In an effort to provide a unifying theory grounded in international law, Professor Vladeck fails to properly distinguish the jurisdiction established by Congress to regulate the armed forces from the jurisdiction established to punish violations of the laws of war. This conflation yields confusion about military jurisdiction which ripples throughout the theory. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a …

Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo

All Faculty Scholarship

Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by …

Non-State Armed Groups And The Role Of Transnational Criminal Law During Armed Conflict, Christopher L. Blakesley, Dan E. Stigall

Scholarly Works

With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative …

Dawn Of The Intercontinental Sniper: The Drone's Cascading Contribution To The Modern Battlefield's Complexity: A Re-View Essay Of Predator: The Secret Origins Of The Drone Revolution, By Richard Whittle, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review essay discusses a unique book that chronicles the UAV (unmanned aerial vehicle) or "drone" revolution with a focus on the Predator weapon system. Although brought to market by a mainstream publisher, the book offers a thought-provoking, heavily researched, non-fiction case study involving national security, defense acquisition, and international law. We congratulate author Richard Whittle for crafting a thrilling and highly informative history of technological innovation, government contracting, and weapons system development and deployment, while introducing complex issues of national security and international law, that nonetheless left us eagerly anticipating a forthcoming action movie.

This review essay introduces prospective …

'Lone Wolf' Terrorism And The Classical Jihad: On The Contingencies Of Violent Islamic Extremism, Haider Ala Hamoudi

Articles

It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad - broadly undertaken in service of the Islamic doctrine of jihad - as being somehow compatible with modern norms of international relations, including self-determination and noninterference in the affairs of other states. To detractors, this seems to suggest a certain tension in modern Muslim thought that jihadist movements have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only tolerated by early jurists interpreting Islam’s sacred texts but indeed exhorted by …

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

Book Review Of The Verdict Of Battle: The Law Of Victory And The Making Of Modern War, Robert D. Sloane

Faculty Scholarship

This is a brief review of The Verdict of Battle: The Law of Victory and the Making of Modern War (2012), by James Q. Whitman, a remarkably erudite and original contribution to scholarship on military history and the law of war. It sketches the work’s compelling historical arguments and then critiques its (comparatively modest) polemical dimensions and normative conclusions.

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew Waxman

Articles in Law Reviews & Other Academic Journals

Stanford University, The Hoover Institution (Jean Perkins Task Force on National Security and Law Essay Series) American University Washington College of Law Research Paper No. 2013-11 Columbia Public Law Research Paper 13-351 Abstract: Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks …

Targeted Killing - Death By Drone, Jeffrey F. Addicott

Faculty Articles

Following the targeted killing of American born al-Qa’eda leader, Anwar al -Awlaki, targeted killings of American citizens has been a hotly contested issue. A targeted killing is defined as the “intentional, premeditated and deliberate use of lethal force, by states or their agents acting . . . against a specific individual who is not in the physical custody of the perpetrator.” The rule of law that justifies a state killing another human rests in either the law of war or the legal right of self-defense.

The term targeted killing is most often associated with the use of Unmanned Aerial Vehicles …

Correspondents' Reports United States Of America, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how in 2013 the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in military courts-martial and captured enemy belligerents in military commissions and by US federal courts hearing detainee habeas challenges.

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful …

The Geography Of The Battlefield: A Framework For Detention And Targeting Outside The 'Hot' Conflict Zone, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict — and broad detention and targeting authorities — extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, …

Belligerent Targeting And The Invalidity Of A Least Harmful Means Rule, Geoffrey S. Corn, Laurie R. Blank, Chris Jenks, Eric Talbot Jensen

Faculty Journal Articles and Book Chapters

The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this …

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory, Jeffrey F. Addicott

Faculty Articles

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment.

While …

Labeling Mexican Cartels As Terrorist Organizations, Jeffrey F. Addicott

Faculty Articles

Given the increased danger to persons, property, and civil order posed by Mexican drug cartels, some have asked whether these cartels can be categorized as terrorist organizations. While a legal argument might be crafted for designating the drug cartels as such, the failure of the international community to provide a universal definition of the term coupled with the negative connotations associated with America’s war on the terrorist network al-Qa’eda discourages such a move.

If Mexican drug cartels are labeled by American officials as “terrorists,” many would immediately assume that the correct rule of law that the United States might employ …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Antonio F. Perez, Robert J. Delahunty

Scholarly Articles

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in International Law that began with NATO's 1999 intervention in Kosovo against Serbia. NATO's intervention called into question the authority and viability of U.N. Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt a further blow to the central post-War legal rules and institutions for controlling and mitigating Great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for …

The Cost Of Conflation: Preserving The Dualism Of Jus Ad Bellum And Jus In Bello In The Contemporary Law Of War, Robert D. Sloane

Faculty Scholarship

Much post-9/11 scholarship asks whether modern transnational terrorist networks, the increasing availability of catastrophic weapons to nonstate actors, and other novel threats require changes to either or both of the two traditional branches of the law of war: (i) the jus ad bellum, which governs resort to war, and (ii) the jus in bello, which governs the conduct of hostilities. Scant recent work focuses on the equally vital question whether the relationship between those branches-and, in particular, the traditional axiom that insists on their analytic independence-can and should be preserved in contemporary international law. The issue has been largely neglected …

Protean Jus Ad Bellum, Sean D. Murphy

GW Law Faculty Publications & Other Works

The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.

Protean jus ad bellum …

The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott

Faculty Articles

While the use of civilian contractors to support military operations is not a new phenomenon, their use in the War on Terror is unprecedented. The numbers of civilian contractors in active combat zones and the specific activities they perform have significant legal and policy ramifications.

Recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments has given rise to a “political question” doctrine. This doctrine excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution.

Due to …

Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell

Journal Articles

The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.

The article also tells how in each …

Bribes V. Bombs: A Study In Coasean Warfare, Gideon Parchomovsky, Peter Siegelman

All Faculty Scholarship

The use of bribes to co-opt an enemy’s forces can be a more effective way to wage war than the conventional use of force: Relative to bombs, bribes can save lives and resources, and preserve civic institutions. This essay evaluates the efficacy and normative desirability of selectively substituting bribes for bombs as a means of warfare. We show how inter-country disparities in wealth, differences in military strength, the organization of the bribing and recipient forces, uncertainty about the outcome of the conflict, and communications technology can contribute to the efficacy of bribes. We discuss methods for enforcing bargains struck between …

Punish Or Surveil, Diane Marie Amann

Scholarly Works

This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …