National Security Law Commons^™

El Salvador At The Crossroads: Crimes Against Humanity Under The Public Security Policy, Susana L. Sacouto, Claudia Martin, Gino Costa, Santiago Canton, Jose Antonio Guevara

Research Reports & White Papers

The International Group of Experts for the Investigation of Human Rights Violations under the State of Emergency in El Salvador (GIPES) presents its final report entitled: “El Salvador at the Crossroads: Crimes against Humanity under the Public Security Policy.”

GIPES was formed with the aim of investigating the alleged serious human rights violations taking place in the context of the State of Exception public security policy that has been in place of El Salvador since March 2022 and determining whether they might constitute crimes against humanity. The group is made up of five internationally recognized jurists: Susana SáCouto, …

Adversarial Comparativism: The Role Of Emotion In United States–China Comparative Law Projects, Matthew S. Erie

Scholarly Articles in Law Reviews & Journals

Contemporary comparative law operates across a landscape riven by protectionism, nationalism, and securitization, all of which complicate comparative law projects. Nowhere is this more evident than in the U.S-China relationship, the most important bilateral relationship in the world. Despite economic “delinking,” the U.S. and Chinese legal systems are interacting more than ever; however, how this interaction works is poorly understood. This Article proposes “adversarial comparativism” to explain this dynamic. It is an approach to comparative law and politics that includes different modalities: competition, aggressiveness, transactionalism, misunderstanding, opportunism, and gaslighting. Many of these are underpinned by emotion. As such, while this …

Rights On Paper, Violations In Practice: Israel, The U.S., And The Failure To Enforce Judicial Pro¬Tections And International Obligations In Cases Of Arbitrary Detentions, Anjali Narayanan

Human Rights Brief

Muhammad Srur, a 34-year-old father, en­dured small cells, restricted movement, minimal family visits, and limited access to legal counsel when detained by Israel. He was beaten during arrest and interrogation, and the food, medical care, and living conditions fell below international standards. Half a world away, Abu Zubaydah remains in extreme isolation at Guantánamo Bay, following secret CIA detention where he faced prolonged confinement, sleep deprivation, stress positions, and other forms of torture. These men will never meet. Yet, their situations reflect the same legal reality: both have been placed into categories designed to fall outside the full protections of …

Second Report On Immunity Of State Officials From Foreign Criminal Jurisdiction By Claudio Grossman Guiloff, Special Rapporteur, Claudio Grossman

Research Reports & White Papers

In keeping with the approach adopted by the Special Rapporteur in his first report, the purpose of the present report is to make proposals for the modification of the draft articles and commentaries, where necessary, on the basis of the comments made by States. It is also intended to complement the draft articles and commentaries with references to new developments in international law that have taken place since the draft articles were adopted on first reading. The scope of the present report will be limited to the text of draft articles 7 to 18 and the draft annex, as well …

The Danger In Designations: U.S. Terrorism Designation Lists In Gaza And Beyond, Elizabeth Beavers

American University National Security Law Brief

What is “terrorism”? The term has surged in U.S. political discourse following Hamas’s attack on Israel on October 7, 2023, Israel’s subsequent onslaught of Gaza, and escalating violence in the region involving Iran and similarly aligned groups like Hezbollah and the Houthis. U.S. politicians and thought leaders have characterized U.S. support for Israel’s bombardment as a fight against “terror,” described the violence conducted by Palestinians and their backers as “terrorism,” and accused pro-Palestinian U.S. protestors of “supporting terrorism.”

More than mere political rhetoric, “terrorism” is a term that carries big legal consequences. This is in large part because the U.S. …

National Security Issues Arising In Anticorruption Enforcement, Anthony J. Lewis, Aisling O'Shea

American University National Security Law Brief

The overlap between national security and corruption has long been recognized; however, the government’s views on the nature of the overlap have shifted over time. For instance, in June 2021, the Biden administration announced an initiative to combat corruption as a core national security interest. The administration ordered a review by fifteen government agencies and offices, including the Central Intelligence Agency and the Office of the Director of National Intelligence. Then, in February 2025, the Trump administration declared that “overexpansive and unpredictable” enforcement of the Foreign Corrupt Practices Act of 1977 (“FCPA”) “actively harms American competitiveness and, therefore, national security.” …

The Best Disinfectant: The Value Of Transparency In Information Operations, Major Ian W. Stamme

American University National Security Law Brief

America is in a state of persistent competition with nation-state adversaries, including Russia and China, which seek to subvert the post-WWII rules-based international order and undermine American legitimacy abroad. Some of this competition takes place through traditional statecraft and across each of the instruments of national power: diplomatic, informational, military, and economic. However, much of this competition also takes place in the gray zone, defined as a spectrum between the higher threshold of armed conflict and the lower threshold of ordinary statecraft. In other words, while all relations between nations involve degrees of leverage and relative advantage, gray zone conflict …

Public International Air Lawfare: China’S Use And Abuse Of The Skies., Major Emily K. Johnson

American University National Security Law Brief

Following World War II, China entered a years-long period of civil war between the Kuomintang government, which was then in power as the government of the Republic of China, and the Chinese Communist Party. After years of conflict, the Kuomintang was forced to retreat to the island of Taiwan in 1949, effectively and reluctantly ceding the Chinese mainland to the Chinese Communist Party. Despite its best efforts, the Kuomintang never regained control of mainland China in the ensuing years; however, it never dissolved and instead remained in place on Taiwan.

As a result, Taiwan, which lies a mere 80-100 miles …

The United States’ Strengthened National Security Review Of Chinese Investment: Implications From The Tech War, Charles C. Wang, Ulia Liu, Holden H. Dong

American University International Law Review

In recent years, the national security review system of United States (U.S.) foreign investment has entered into a period of intensified scrutiny of Chinese investment. This article analyzes the latest development of the U.S. foreign investment national security review system after the enactment of the 2018 Foreign Investment Risk Review and Modernization Act (FIRRMA) and relevant Executive Orders. The U.S. review of Chinese investment has been greatly strengthened in terms of the expanded scope of review in high-tech areas and prolonged and unpredictable review time. China has become the primary target of the U.S. national security review, especially in the …

Protection Of Nuclear Facilities In Warfare Under International Law, Gary Corn, Sean Watts

Joint PIJIP/TLS Research Paper Series

No abstract provided.

The Ghost In The Machine: The Threat Screening Center And The Mootness Tool, Jeffrey Kahn

Scholarly Articles in Law Reviews & Journals

In FBI v. Fikre, the Supreme Court resolved a circuit split about the voluntary cessation exception to the mootness doctrine in what initially appears to be a plaintiff-friendly way. The Court unanimously held that the government’s “sparse declaration” was insufficient to moot lawsuits challenging the No Fly List (a list of people banned from aircraft). The declaration failed to show that the government “cannot reasonably be expected to do again in the future what it is alleged to have done in the past.” It stated only that Fikre “will not be placed on the No Fly List in the …

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 …

U.S. Strikes Against The Houthis: A "Splendid Little War" Of Self-Defense, Benjamin W. Haight

American University National Security Law Brief

No abstract provided.

Sticker Shock: The Icj, Russia, And A $300 Billion Price Tag For War, Caitlyn Quinn

American University National Security Law Brief

Ukraine has experienced unprecedented devastation since Russia launched a full scale invasion into its Eastern territory in February 2022. Thousands have been killed, and billions of dollars of infrastructure has been damaged. As a result, over the past three years, the international community has been evaluating ways to hold Russia accountable and to help rebuild Ukraine upon the cessation of the war. Billions of dollars in Russian Central Bank assets have been frozen, and multiple states have proposed seizing Russia’s frozen assets to meet these objectives. However, outright asset seizure presents genuine legal concerns about foreign sovereign immunity and may …

Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …

Letter Form The Editor, Wayne Rash, Iii

American University National Security Law Brief

In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law.

The Need For An Australian Regulatory Code For The Use Of Artificial Intelligence (Ai) In Military Application, Sascha-Dominik Dov Bachmann, Richard V. Grant

American University National Security Law Brief

Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of …

Hostility Is In The Eye Of The Beholder: Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment In The Military, Adam J. Crane

Criminal Law Practitioner

In 2022, for the first time in American history, Congress enacted legislation criminalizing hostile work environment sexual harassment. More serious types of sexual harassment have long been criminal under the Uniform Code of Military Justice, but hostile work environment harassment is a civil wrong, not a crime, and should not have been made into one. Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (now listed under Article 134, UCMJ (Sexual Harassment), is both unconstitutional and counterproductive. It violates the Fifth Amendment for vagueness by failing to provide fair notice of what is prohibited, and the First …

Stars, Stripes, And Surveillance: The United States' Failure To Regulate Data Privacy, Sam Begland

American University Law Review

In the wake of the United States Supreme Court’s devastating decision to strip Americans of their constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, data privacy is more salient than ever. Without adequate data regulations, state governments and anti-abortion activists alike can harass and prosecute pregnant people attempting to exercise their bodily autonomy. This comment argues that the United States has violated its obligations under the International Covenant on Civil and Political Rights (ICCPR) Article 17 by failing to protect against interference with the use and collection of reproductive health data. Further, this comment analyzes interpretations of …

Hanging In The Balance: An Assessment Of European Versus American Data Privacy Laws And Threats To U.S. National Security, Dara Paleski

American University National Security Law Brief

Social media has quickly become an integral part of modern-day life, keeping the world connected to friends, family and current events. Social media, and the data collected from it, also play a crucial role in intelligence gathering and the safeguarding of national security. It is estimated that about 80-95% of information that is collected for intelligence missions is found freely throughout the internet or other publicly available sources. This type of information has been dubbed SOCMINT (Social Media Intelligence) and it has become a crucial tool within the intelligence community. After the Edward Snowden leaks in 2013 revealed a global …

Combating Ransomware: One Year On, V. Gerard Comizio, Gary Corn, William Deckelman, Karl Hopkins, Mark Hughes, Patrick Mccarty, Sujit Raman, Kurt Sanger, Ari Schwartz, Melanie Teplinsky, Jackson Colling

Joint PIJIP/TLS Research Paper Series

No abstract provided.

The Tallinn Manual 2.0 On Nation-State Cyber Operations Affecting Critical Infrastructure, Terence Check

American University National Security Law Brief

Protecting critical infrastructure from cyber threats is difficult and complex. News headlines abound with reports that show how critical infrastructure—ranging from voting machines to steel mills—have become increasingly vulnerable to cyber operations from state and sophisticated nonstate actors. As critical infrastructure becomes increasingly entangled with the Internet and as new tactics, techniques, and procedures rapidly proliferate and evolve, governments and businesses alike must contend with a mutating threat environment that may put sensitive and highly important critical infrastructure assets in serious jeopardy. The vulnerabilities of critical infrastructure, which provide vital services and functions to societies, may pose a particularly tempting …

Regulating The Use Of Military Human Enhancements That Can Cause Side Effects Under The Law Of Armed Conflict: Towards A Method-Based Approach, Yang Liu

American University National Security Law Brief

The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues.

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 …

Securing Patent Law, Charles Duan

Scholarly Articles in Law Reviews & Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

Sunshine Laws Behind The Clouds: Limited Transparency In A Time Of National Emergency, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

The COVID-19 pandemic dramatically changed the way citizens lived their lives, businesses operated, and governments functioned. With most people forced to stay home, the pandemic also disrupted how people received their news and other essential information. Public records and public meetings had to adapt to face the growing challenges in a locked-down world. While some governmental bodies were able to keep up with the threat that COVID-19 posed against transparency, others either failed to acclimate to the new normal or actively took advantage of the circumstances to limit how much the public knew not only about the crisis, but about …

The New Great Wall Against China, Paul Rose

American University National Security Law Brief

This essay documents some of the recent changes in foreign investment law as a manifestation of increasing concerns with Chinese investment specifically and globalization more generally. The essay first shows how foreign investment laws in major economies have become increasingly illiberal since the Financial Crisis. Next, the essay considers the justification and impact of recent United States rules designed to reduce Chinese investment. Comparing data on merger and acquisition activity in the United States with the number of filings made to the Committee on Foreign Investment in the United States (CFIUS), the essay documents that although merger and acquisition activity …

President Of The United States, Destroyer Of Worlds: Considering Congress's Authority To Enact A Nuclear No-First-Use Law, John Ramming Chappell

American University National Security Law Brief

This article argues that Congress can exercise its constitutional war powers to enact a law restricting the President from using nuclear weapons first. The article contends that using a nuclear weapon is qualitatively different from conventional warfare and that the first use of nuclear weapons marks a decision to enter into war. Therefore, nuclear first use is not a battlefield decision within the President’s commander in chief power but rather a choice to enter the United States into a new type of conflict that could pose a direct, immediate, and existential threat to the U.S. homeland. Regulating that decision falls …

The American Security Drone Act: America's Paper Tiger Vs. China's Trojan Horse, Susan E. Upward

American University National Security Law Brief

The skies above America have been increasingly inundated with small unmanned aircraft systems (sUAS) operated by both government agencies and civilians alike. The majority of these drones are manufactured by Da-Jiang Innovations (DJI), a Chinese company that continues to emerge as a national security threat. The risk posed by these drones stems not only from physical access to American airspace, but also from the surreptitious transmittal of information back behind the “Great Firewall of China” via DJI mobile device applications. However, current pending legislation is inadequate to effectively counter this threat. Instead, the United States should take a more comprehensive …