National Security Law Commons^™

Does Russia Have A Gerasimov Doctrine?, Roger N. Mcdermott

The US Army War College Quarterly: Parameters

No abstract provided.

From The Editor, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

No abstract provided.

Making Sense Of "Long Wars" — Advice To The Us Army, Tami Davis Biddle

The US Army War College Quarterly: Parameters

No abstract provided.

Revisiting The Principles Of Nato Burden-Sharing, Alexander Mattelaer

The US Army War College Quarterly: Parameters

No abstract provided.

State-Building: America's Foreign Policy Challenge, Charles J. Sullivan

The US Army War College Quarterly: Parameters

No abstract provided.

Balancing Priorities In America's European Strategy, Luis Simón

The US Army War College Quarterly: Parameters

No abstract provided.

Commentary And Repy, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Terrorist Sanctions: The Clash In Us And Eu Approaches, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Doing Our Part: Acknowledging And Addressing Women’S Contributions To Isis, Elizabeth Buner

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Event Program, Emory Law Journal

Randolph W. Thrower Symposium

No abstract provided.

Extraterritorial Criminal Jurisdiction, Michael Farbiarz

Michigan Law Review

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional …

Obama's National Security Exceptionalism, Sudha Setty

Chicago-Kent Law Review

The label of national security exceptionalism fits the Obama administration in two ways: first, although the administration has actively sought to address and improve the protection of human rights and civil rights of racial minorities suffering disparate negative treatment in a variety of contexts, those moves toward rights protection generally do not extend to the realm of counterterrorism abuses, although almost all of those who have suffered from violations of human and civil rights in the post-9/11 counterterrorism context are racial and/or religious minorities. One of the justifications for this exceptionalism is based on the widespread view that national security …

U.S. Biological Quarantine: A Look At The Legal Framework, Katherine T. Rooney

Journal of Legislation

Biological terrorism is a growing problem. Search and seizure protections have an on-going balancing relationship with national security that is balanced by a least restrictive means test. The Kaci Hickox case exposed the difficulty of maintaining the civil rights protections of search and seizure while combating a potentially catastrophic danger.

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

Spying, Ronald Griffin

Faculty Books and Book Contributions

Ronald C. Griffin’s paper Spying, which is the third paper in the book Selected Issues in Modern Jurisprudence, edited by David A. Frenkel, begins with the finding in the Church Committee Report in the USA. It spotlights Edward Snowden’s disclosure about the NSA, reviews pertinent laws about spying and parades some suggestions and recommendation to curb government excesses.

What Judges Say And Do In Deciding National Security Cases: The Example Of The State Secrets Privilege, Anthony John Trenga

Duke Law Master of Judicial Studies Theses

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

Secret Jurisdiction, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on …

Liability For Damage Caused By Small Satellites—A Non-Issue?, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Small satellites have become a welcome addition to the existing tools to benefit from space applications—they are relatively simple and cheap to construct, and being small, relatively cheap to launch as well, as secondary payloads on launch vehicles where the primary payload may not take up all of the (often standardized) payload bay capacity. As they, moreover, usually orbit for relatively short times in low trajectories before burning up in the atmosphere, they might not seem to pose major or even merely realistic liability risks.

As a consequence, sometimes the issue of liability for damage caused by small satellites has …

The Icc And The Security Council: How Much Support Is There For Ending Impunity?, 26 Ind. Int'l & Comp. L. Rev. 33 (2016), Stuart Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Terrorists On Appeal: An Exploratory Analysis Of Terrorism Appeals Since 1988, Wesley Mccann

Criminal Law Practitioner

No abstract provided.

American Military Culture And Civil-Military Relations Today, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Applying The Law Of Neutrality While Transitioning The Seas Of Cyberspace, Danielle Higson

American University National Security Law Brief

No abstract provided.

During War, The Law Is Silent, Or Is It: Examining The Legal Status Of Guantanomo Bay, Kate Frisch

Richmond Journal of Global Law & Business

Instead, I argue that international human rights law precludes the existence of any "legal black hole." Human rights law protects the rights and liberties of individuals purely based on their status as human beings, regardless of their location. Therefore, an individual's rights cannot be suspended. As a result, it must be the responsibility of the entity that holds custody and control over the individual to protect those rights. In order to enforce the protection of human rights, international responsibilities stemming from treaties that have solidified the individual nature of the rights must be used as an instrument for enforcement to …

Privacy-Privacy Tradeoffs, David E. Pozen

Faculty Scholarship

Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a privacy-privacy tradeoff arises.

This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in NSA surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national-security need but also to a privacy-privacy tradeoff. An appreciation of these tradeoffs, the Essay contends, …

Gags As Guidance: Expanding Notice Of National Security Letter Investigations To Targets And The Public, Rebecca Wexler

Faculty Scholarship

National Security Letters (NSLs) are administrative subpoenas that the FBI uses to demand information from Internet service providers without prior judicial approval. They almost always include nondisclosure orders, commonly called “gags,” which prohibit the recipient from discussing the letter’s contents or even its mere existence. Courts and commentators have expressed concern that these gags may be overbroad prior restraints that violate the First Amendment and shroud government surveillance in undue secrecy. On November 30, 2015, an NSL gag order was lifted in full for the first time after a federal district judge found no “good reason” to retain it.

This …

Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy

Michigan Journal of International Law

Part I of this Note will analyze the current framework governing hostage situations to determine the permissibility of ransom payments under international law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their respective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations.

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Electronic Devices At The Border: The Next Frontier Of Canadian Search And Seizure Law?, Robert Currie

Articles, Book Chapters, & Popular Press

Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying section 8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada’s borders, however, do not reflect this case law. This is a situation made all the more complex by the generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case …

Is Immigration Law National Security Law?, Shoba S. Wadhia

Faculty Scholarship

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.

This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …