National Security Law Commons^™

The National Security Internet, Anupam Chander

Georgetown Law Faculty Publications and Other Works

In response to widespread foreign surveillance and growing geopolitical distrust, governments are erecting a national security internet. Pioneered by China, national firewalls have gone global. But where firewalls sought to keep information out, they now seek to keep data in. Governments keen to avoid their citizens’ data from falling into foreign hands demand not only that personal data be stored on local servers, but also require that it be stored on local servers by local companies—what this Article calls “data localization squared.” Enforcing this demand requires a new mechanism of transnational control: immunity from foreign jurisdiction. Artificial Intelligence (AI) systems, …

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

Distillation Laundering: Regulatory Arbitrage And A Potential Beijing Effect In Ai, Laura Edelson, Filippo Lancieri

Georgetown Law Faculty Publications and Other Works

This essay introduces distillation laundering, a new form of regulatory arbitrage. Distillation, a technique for training large language models based on the outputs of other models instead of from scratch, is generally prohibited by the terms of service of closed-weight frontier models. However, it is economically efficient and has been key to the success of the cheap, distilled (largely Chinese) open-weight models, which have reshaped the global political economy of AI regulation. US companies have now begun to re-import the effects of distillation through various means—a process we call distillation laundering. We also discuss how attempts to lobby these models …

Bonehead Non-Proliferation Redux, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Since the publication of my 1993 Fletcher Forum article “Bonehead Non-Proliferation,” three vitally important international developments regarding nuclear weapons have materialized. First, the 1968 Nuclear Non-Proliferation Treaty, an essential linchpin for global security, was extended by its parties in 1995 into a permanent agreement—a tremendous outcome that was not certain when my original article was published. Second, the Comprehensive Test Ban Treaty, globally prohibiting all nuclear explosions, was concluded in 1996—my article focused on the imperative for crafting such an instrument. Third, a group of distinguished senior U.S. government security officials succeeded in reviving the concept of the complete abolition …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Georgetown Law Faculty Publications and Other Works

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Violence In The Administrative State, Emily R. Chertoff

Georgetown Law Faculty Publications and Other Works

Drawing on an original, interview-based case study of Immigration and Customs Enforcement (ICE) and a synthesis of six decades of social science literature, this Article offers a theory of physical violence in the administrative state that challenges foundational assumptions about administrative law. Approximately one-fifth of federal employees work for administrative agencies that police, fight wars, enforce immigration law, or incarcerate people—in other words, agencies that use force to execute the laws. These agencies are saturated with administrative law that obligates front-line administrators to confer due process, give notice, behave non-arbitrarily, and comply with law. Yet this law often fails to …

American Law In The New Global Conflict, Mark Jia

Georgetown Law Faculty Publications and Other Works

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times …

Authoritarian Privacy, Mark Jia

Georgetown Law Faculty Publications and Other Works

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its …

Updating Senator Borah: A Nuclear Kellogg-Briand Pact, David A. Koplow

Georgetown Law Faculty Publications and Other Works

In recognizing the legacy of Senator William E. Borah, the author shares his remarks from the Borah Symposium at the University of Idaho, about the Senator's personality and character, his contribution and later characterization to international law and national security, specifically the 1928 Kellogg-Briand Pact, and finally, a proposal to a modern reincarnation to the Kellogg-Briand Pact and the newer threats of this era.

Blinded By The Light: Resolving The Conflict Between Satellite Megaconstellations And Astronomy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to …

Large Constellations Of Small Satellites: The Good, The Bad, The Ugly, And The Illegal, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites--devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)--already number in the thousands and will soon reach the tens of thousands.

But in addition to generating billions of …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Twenty Years After The Anthrax Terrorist Attacks Of 2001: Lessons Learned And Unlearned For The Covid-19 Response, Lawrence O. Gostin, Jennifer B. Nuzzo

Georgetown Law Faculty Publications and Other Works

The 20th anniversary of the terrorist attacks on September 11, 2001, resulted in deep national reflection. Less remembered are the events that began to unfold 7 days later as anonymous letters laced with deadly anthrax (Bacillus anthracis) spores began arriving at postal facilities, media companies, and congressional offices. The first death from inhaled anthrax exposure occurred on October 5, with an additional 4 deaths and 17 infections over the ensuing months.

The anthrax attacks exposed a health system ill-equipped to respond to acute emergencies. This article explores the lessons learned, and unlearned, from the anthrax attacks, through to …

Brief Of Professor Laura K. Donohue As Amicus Curiae In Support Of Neither Party, Fbi V. Fazaga, No. 20-828 (U.S. Aug. 6, 2021), Laura K. Donohue

U.S. Supreme Court Briefs

Amicus submits this brief in support of neither party to provide the Court with background on the origins and evolution of the state-secrets privilege. The English and American cases decided before United States v. Reynolds, 345 U.S. 1 (1953), as well as the decisions before and after the enactment of the Foreign Intelligence Surveillance Act of 1978 (FISA), produce several observations that may help the Court to resolve this case.

First, both Reynolds and earlier English and American case law treat state secrets as an evidentiary privilege rather than a substantive rule of decision. As with other privileges, …

Who Owns The Skies? Ad Coelum, Property Rights, And State Sovereignty, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

In light of the history of the doctrine of ad coelum, as well as the states’ preeminent role (secured by the Tenth Amendment) in regulating property and airspace up to the 500-foot level, it is remarkable that the federal government has begun to claim that it controls everything above the blades of grass. This chapter challenges those statements, demonstrating that history and law establish that property owners, and the states, control the airspace adjacent to the land.

Citizens, Suspects, And Enemies: Examining Police Militarization, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to …

Congressional Oversight Of Us Intelligence Activities, Mary B. Derosa

Georgetown Law Faculty Publications and Other Works

This chapter examines the challenges, how they affect congressional oversight of intelligence, and Congress’s efforts to ensure accountability for United States (US) intelligence activities. The United States Government has engaged in intelligence collection and covert action since its earliest days. Congressional oversight of intelligence activities, however, has a relatively short history. It was not until the late 1940s, with the creation of the Central Intelligence Agency (CIA), that the US House of Representatives and Senate created entities – subcommittees of their Armed Services committees – with responsibility for intelligence oversight. The Church Committee revelations and other concerns that surfaced during …

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

Trademarks As Surveillance Transparency, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

We know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

The Law Against Family Separation, Carrie F. Cordero, Heidi Li Feldman, Chimène Keitner

Georgetown Law Faculty Publications and Other Works

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, then-Secretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border . Kelly did not say upon what …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …

Personality Disruption As Mental Torture: The Cia, Interrogational Abuse, And The U.S. Torture Act, David Luban, Katherine S. Newell

Georgetown Law Faculty Publications and Other Works

This Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis …

The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas

Georgetown Law Faculty Publications and Other Works

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them.

Functional Secrecy, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Many theorists consider secrecy inimical to liberal democracy. Precise examination of the role that it plays in contemporary government, however, including its strengths and weaknesses, has been limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in the three branches of government in four contexts: deliberation, information security, law, and adjudicatory processes. Whether and to what extent cloaking information advances the interests of the state and society varies according to how it operates in each category. First, deliberative secrecy carries significant advantages: it can facilitate informed debate and honest exchange, allowing individuals to alter their …

Lessons From The Mueller Report, Part Ii: Bipartisan Perspectives: Hearing Before The H. Comm. On The Judiciary, 116th Cong., June 20, 2019 (Statement Of Carrie Cordero), Carrie F. Cordero

Testimony Before Congress

No abstract provided.

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …

Exoatmospheric Plowshares: Using A Nuclear Explosive Device For Planetary Defense Against An Incoming Asteroid, David A. Koplow

Georgetown Law Faculty Publications and Other Works

What should be done if we suddenly discover a large asteroid on a collision course with Earth? The consequences of an impact could be enormous—scientists believe that such a strike 60 million years ago led to the extinction of the dinosaurs, and something of similar magnitude could happen again. Although no such extraterrestrial threat now looms on the horizon, astronomers concede that they cannot detect all the potentially hazardous “near-Earth objects,” and even more striking, they acknowledge that if such a danger were discerned, there is currently no proven capability for diverting or destroying it.

One possible response to this …