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Articles 1 - 30 of 35
Full-Text Articles in National Security Law
Weaponization Of Taxation: Sovereign Tax Immunity As A National Security Tool, Vinita R. Singh
Weaponization Of Taxation: Sovereign Tax Immunity As A National Security Tool, Vinita R. Singh
BYU Law Review
Amidst calls to reconceptualize taxation as a national security tool, legislators are reexamining how the United States taxes foreign governments. Federal income taxation of foreign governments—what this Article terms “the law of immunity from taxation” or “sovereign tax immunity”—strongly influences whether and how foreign governments pursue investment in the United States. This impact on international business transactions indicates sovereign tax immunity has the potential to be a powerful national security tool. Yet, despite its import, the law of immunity from taxation has been underexplored and undertheorized. This Article steps into this gap in discourse by challenging the way recent legislative …
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
BYU Law Review
No abstract provided.
Death Star Drones: How Missile Defense Drone Technology Marks The Advent Of Contingent Sovereignty, Ben Forsgren
Death Star Drones: How Missile Defense Drone Technology Marks The Advent Of Contingent Sovereignty, Ben Forsgren
BYU Law Review
Are advances in national security worth pursuing at the expense of sovereign equality? A new U.S. drone program may soon force the world to decide. Thanks to recent technological advances in unmanned aerial vehicles (UAV) and directed energy weapons, the United States will soon have a fleet of missile defense UAVs outfitted with advanced laser weapons designed to destroy intercontinental ballistic missiles before the missiles complete their launch phase. While these drones would significantly decrease the threat of a nuclear attack against the United States, they can only function if they are preemptively stationed in the sovereign airspace of other …
Cyber!, Andrea M. Matwyshyn
Cyber!, Andrea M. Matwyshyn
BYU Law Review
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 …
A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz
A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz
BYU Law Review
Being political scapegoats in the indefinite “war on terror” is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures—extreme vetting, categorical bans, and mass deportations—to regulate and exclude Muslim bodies from U.S. soil. The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim ban” issued by …
Quasi-Constitutional Protections And Government Surveillance, Emily Berman
Quasi-Constitutional Protections And Government Surveillance, Emily Berman
BYU Law Review
The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by …
Balancing Domestic Nuclear Industry Viability With International Security: Imminent Changes To Nuclear Export Control Regulations, H. Brendan Burke
Balancing Domestic Nuclear Industry Viability With International Security: Imminent Changes To Nuclear Export Control Regulations, H. Brendan Burke
Brigham Young University International Law & Management Review
No abstract provided.
Cyber Sovereignty: The Way Ahead, Eric Talbot Jensen
Cyber Sovereignty: The Way Ahead, Eric Talbot Jensen
Faculty Scholarship
The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so. This article argues that States …
Requiring A Nexus To National Security: Immigration, “Terrorist Activities,” And Statutory Reform, Jared Hatch
Requiring A Nexus To National Security: Immigration, “Terrorist Activities,” And Statutory Reform, Jared Hatch
BYU Law Review
No abstract provided.
Disaggregating Disasters, Lisa Grow Sun, Ronnell Andersen Jones
Disaggregating Disasters, Lisa Grow Sun, Ronnell Andersen Jones
Faculty Scholarship
In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of nonwar emergencies. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying exceptions …
Cyber Deterrence, Eric Talbot Jensen
Cyber Deterrence, Eric Talbot Jensen
Faculty Scholarship
Cyber operations by both state actors and non-state actors are increasing in frequency and severity. As nations struggle to defend their networks and infrastructure, their ability to apply the principles of deterrence to cyber activities correspondingly increases in importance. Cyber deterrence offers much more flexibility and increased options from traditional deterrence methodologies developed in the Cold War’s nuclear age. In addition to traditional retaliation, cyber deterrence includes options such as taking legal action; and making networks invisible, resilient, and interdependent. It also presents new ways to view and apply accepted methodologies such as invulnerability. As the U.S. continues to develop …
Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends The Totten Bar Flying Away On The Jeppesen Airplane, Michael Q. Cannon
Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends The Totten Bar Flying Away On The Jeppesen Airplane, Michael Q. Cannon
BYU Law Review
No abstract provided.
Mill, Holmes, Brandeis And A True Threat To Brandenburg, Mark Strasser
Mill, Holmes, Brandeis And A True Threat To Brandenburg, Mark Strasser
Brigham Young University Journal of Public Law
No abstract provided.
President Obama And The Changing Cyber Paradigm, Eric Talbot Jensen
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 …
Humanitarian Law Project And The Supreme Court's Construction Of Terrorism, Wadie E. Said
Humanitarian Law Project And The Supreme Court's Construction Of Terrorism, Wadie E. Said
BYU Law Review
No abstract provided.
Unfounded Allegations That John Yoo Violated His Ethical Obligations As A Lawyer: A Critical Analysis Of The Torture Memo, Carrie L. Flores
Unfounded Allegations That John Yoo Violated His Ethical Obligations As A Lawyer: A Critical Analysis Of The Torture Memo, Carrie L. Flores
Brigham Young University Journal of Public Law
No abstract provided.
Why Aren't We Using That Intel Stuff? Using Reconnaissance Satellite Imagery In Domestic Disaster Prevention And Response, Carla Crandall
Why Aren't We Using That Intel Stuff? Using Reconnaissance Satellite Imagery In Domestic Disaster Prevention And Response, Carla Crandall
BYU Law Review
No abstract provided.
Comparative Institutional Analysis And Detainee Legal Policies: Democracy As A Friction, Not A Fiction, Carla Crandall
Comparative Institutional Analysis And Detainee Legal Policies: Democracy As A Friction, Not A Fiction, Carla Crandall
BYU Law Review
No abstract provided.
The Architecture Of Accountability: A Case Study Of The Warrantless Surveillance Program, Kathleen Clark
The Architecture Of Accountability: A Case Study Of The Warrantless Surveillance Program, Kathleen Clark
BYU Law Review
No abstract provided.
Torture And Public Policy: Mohamed V. Jeppesen Dataplan, Inc., Allows “Extraordinary Rendition” Victims To Litigate Around State Secrets Doctrine , Michael P. Jensen
Torture And Public Policy: Mohamed V. Jeppesen Dataplan, Inc., Allows “Extraordinary Rendition” Victims To Litigate Around State Secrets Doctrine , Michael P. Jensen
BYU Law Review
No abstract provided.
Cyber Warfare And Precautions Against The Effects Of Attacks, Eric Talbot Jensen
Cyber Warfare And Precautions Against The Effects Of Attacks, Eric Talbot Jensen
Faculty Scholarship
Ninety-eight percent of all U.S. government communications travel over civilian-owned-and-operated networks. Additionally, the government relies almost completely on civilian providers for computer software and hardware products, services, and maintenance. This near-complete intermixing of civilian and military computer infrastructure makes many of those civilian objects and providers legitimate targets under the law of armed conflict. Other civilian networks, services, and communications may suffer collateral damage from legitimate attacks on government targets. To protect those civilian objects and providers from the effects of attacks, the law of armed conflict requires a state to segregate its military assets from the civilian population and …
Boumediene V. Bush: Habeas Corpus, Exhaustion, And The Special Circumstances Exception, Brandon C. Pond
Boumediene V. Bush: Habeas Corpus, Exhaustion, And The Special Circumstances Exception, Brandon C. Pond
BYU Law Review
No abstract provided.
The World Trade Center Disaster: How Terrorist Airline Attacks Can Affect The Legal, Economic, And Financial Conditions Of Airlines Under The Montreal Liability Agreement, Larry Moore, Rose M. Rubin, Justin N. Joy
The World Trade Center Disaster: How Terrorist Airline Attacks Can Affect The Legal, Economic, And Financial Conditions Of Airlines Under The Montreal Liability Agreement, Larry Moore, Rose M. Rubin, Justin N. Joy
Brigham Young University International Law & Management Review
No abstract provided.
Risky Business: Corruption, Fraud, Terrorism, & Other Threats To Global Business, Stuart Poole-Robb, Alan Bailey
Risky Business: Corruption, Fraud, Terrorism, & Other Threats To Global Business, Stuart Poole-Robb, Alan Bailey
Brigham Young University International Law & Management Review
No abstract provided.
The State Secrets Privilege And The Abdication Of Oversight, Jared Perkins
The State Secrets Privilege And The Abdication Of Oversight, Jared Perkins
Brigham Young University Journal of Public Law
No abstract provided.
Implementing The Usa Patriot Act: A Case Study Of The Student And Exchange Visitor Information System (Sevis), Kam C. Wong
Implementing The Usa Patriot Act: A Case Study Of The Student And Exchange Visitor Information System (Sevis), Kam C. Wong
Brigham Young University Education and Law Journal
No abstract provided.
The Case For Closing The School Of The Americas, Bill Quigley
The Case For Closing The School Of The Americas, Bill Quigley
Brigham Young University Journal of Public Law
No abstract provided.
Habeas Corpus In The War Against Terrorism: Hamdi V. Rumsfeld And Citizen Enemy Combatabts , Jared Perkin
Habeas Corpus In The War Against Terrorism: Hamdi V. Rumsfeld And Citizen Enemy Combatabts , Jared Perkin
Brigham Young University Journal of Public Law
No abstract provided.
Individual Religious Freedom And National Security In Europe After September 11, Silvio Ferrari
Individual Religious Freedom And National Security In Europe After September 11, Silvio Ferrari
BYU Law Review
No abstract provided.
Computer Attacks On Critical National Infrastructure: A Use Of Force Invoking The Right Of Self-Defense, Eric Talbot Jensen
Computer Attacks On Critical National Infrastructure: A Use Of Force Invoking The Right Of Self-Defense, Eric Talbot Jensen
Faculty Scholarship
Computer networks create tremendously increased capabilities but also represent equally increased vulnerabilities. These vulnerabilites are especially acute in relation to potential attacks on critical national infrasturucture. This Article proposes that international law must evolve to recognize that attacks against a nation's critical national infrastructure from any source constitute a use of force. Such attacks, therefore, give the victim state the right to proportional self-defense - including anticipatory self-defense - even if the computer network attack is not an armed attack under Article 51 of the United Nations Charter. Due to the instantaneous nature of computer network attacks, the right to …