National Security Law Commons^™

The Compromised Cargo Container: Terror In A Box, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Notice And An Opportunity To Be Heard Before The President Kills You, Richard Murphy, Afsheen John Radsan

Faculty Scholarship

The United States identifies particular people as especially dangerous members of al Qaeda, the Taliban, or associated forces, and then kills them. Critics insist that this targeted killing is illegal; some go so far as to call it assassination. The drone strike that killed Anwar al-Awlaki, an American citizen, generated furious criticism for purportedly violating his due process rights.

In spring 2013, President Obama responded in a wide-ranging speech on national security policy. On the topic of drones, he stated that terrorists are targeted only if they constitute “a continuing and imminent threat to the American people.” He announced that …

Formalism And State Secrets, Sudha Setty

Faculty Scholarship

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses. This chapter of the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini …

The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David E. Pozen

Faculty Scholarship

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an …

Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau

Faculty Scholarship

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

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 …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Scholarship

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

Global Governance In The Information Age: The Terrorist Finance Tracking Program, Hannah Bloch-Wehba

Faculty Scholarship

Europe has long been deemed "more protective" of privacy than the United States. In the context of transatlantic cooperation in the war on terrorism, divergences in privacy law and policy have become ever more apparent. As has always been the case, the same technologies that pose new and vital privacy issues with regard to personal information and private data are those that are important sources for government actors, including law enforcement and intelligence agencies. Despite the increasing reliance by national agencies on information flowing from other nations, regulation of information transfer, processing and sharing has been achieved largely outside of …

Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman

Faculty Scholarship

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and …

Self-Defensive Force Against Cyber Attacks: Legal, Strategic And Political Dimensions, Matthew C. Waxman

Faculty Scholarship

When does a cyber attack (or threat of cyber attack) give rise to a right of self-defense – including armed self-defense – and when should it? By "cyber attack" I mean the use of malicious computer code or electronic signals to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them. It is widely believed that sophisticated cyber attacks could cause massive harm – whether to military capabilities, economic and financial systems, or social functioning – because of modern reliance on system interconnectivity, though it is highly contested how vulnerable the United States and …

On “The Lure Of Strike”, Charles J. Dunlap Jr.

Faculty Scholarship

This commentary is in response to the special commentary, “The Lure of Strike” by Conrad Crane published in the Summer 2013 issue of Parameters (vol. 43, no. 2).

The Moral Responsibility Of Volunteer Soldiers, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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 …

Do Boumediene Rights Expire?, Andrew Kent

Faculty Scholarship

In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the …

Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent

Faculty Scholarship

This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

The Rise Of National Security Secrets, Sudha Setty

Faculty Scholarship

Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking of national security secrecy as well. The centralization of security decision-making power in the early Cold War era fostered a culture of government secrecy, with Congress and the judiciary enabling the rise of national security secrecy out of fear that they were ill-equipped to make security-related decisions, and public fear of internal and international security threats trumping concerns about legitimacy or democratic accountability. This culture of secrecy …

National Security Interest Convergence, Sudha Setty

Faculty Scholarship

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Legislators act in their political self-interest — both in terms of responding to party forces and constituents — in casting votes …

National Security Federalism In The Age Of Terror, Matthew C. Waxman

Faculty Scholarship

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …

A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

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 …

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 …

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

Faculty Scholarship

No abstract provided.

Open Service And Our Allies: A Report On The Inclusion Of Openly Gay And Lesbian Servicemembers In U. S. Allies' Armed Forces, Suzanne B. Goldberg

Faculty Scholarship

In the wake of the Obama Administration's pledge to repeal "Don't Ask, Don't Tell" in the United States, the Columbia Law School Sexuality & Gender Law Clinic undertook a review of how allies of the United States moved from a policy of banning gay and lesbian servicemembers from serving in the armed forces to a policy of allowing these servicemembers to serve openly ("open service"). In documenting this review, this report aims to provide information about the decision to implement open service and the mechanics of the transition to open service in Australia, Canada, Israel, and the United Kingdom. In …

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

Faculty Scholarship

No abstract provided.