National Security Law Commons^™

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Contemporary Practice Of The United States Relating To International Law, July 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

Contemporary Practice Of The United States Relating To International Law, October 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …

The Egyptian Coup, The United States, And A Call To Strengthen The Rule Of Law And Diplomacy Rather Than Military Counter-Terrorism, Thomas Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article examines from a legal and historical perspective (a) the United States’ implicit ratification of the Egyptian military’s overthrow of the first fairly and freely elected Egyptian president and (b) how the perceived U.S. support for the coup contributes to Islamic terrorism.

To guarantee that oil has been readily available (and during the Cold War to prevent the spread of communism), the U.S. has supported secular, authoritarian regimes in the Islamic world, including the House of Saud in Saudi Arabia, the Shah of Iran, Hosni Mubarak in Egypt, and, initially, Saddam Hussein in Iraq, not to mention autocratic leaders …

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

Law Student Publications

The use of Guantanamo Bay as an extraterritorial detention center intended to house what the United States deems as "unlawful enemy combatants" has been problematic for several reasons. First, the United States government has argued that Guantanamo exists outside of its immediate territorial sovereignty, and therefore the detainees do not have to be afforded any significant procedural and substantive legal protections under the Constitution. Second, it is unclear how and to what extent United States activities in Guantanamo Bay conform to international human rights standards. Significantly, it has been questioned whether or to what extent public international and human rights …

You're Gonna Need A Bigger Boat: Alternatives To The Un Security Council For Enforcing Nuclear Disarmament And Human Rights, David A. Koplow

Georgetown Law Faculty Publications and Other Works

There is a serious problem with the Security Council. That institution endowed by the United Nations Charter with "primary responsibility for the maintenance of international peace and security" -- has stood at the apex of the global political, diplomatic, and legal structure for seventy years, responding (more or less) to the full panoply of incessant dangers and provocations. The Charter could not have been crafted or sustained without it, and the Security Council has, at least, assisted in preserving a measure of fundamental world order-in particular, it has helped avoid the cataclysm of a World War III.

But a central …

After Snowden: Regulating Technology-Aided Surveillance In The Digital Age, David Cole

Georgetown Law Faculty Publications and Other Works

Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state's citizens for their inability to enjoy the rights and privileges we know to be essential …

Cook V. Nara Versus The Public’S Right To Know, Sarah Lamdan

Indiana Law Journal

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

In 2013, a Gawker reporter named John Cook made a FOIA request to the National Archives and Records Administration (NARA) to get more information on “who’s digging through what in former …

The Real Homeland Security Gaps, Areto A. Imoukuede

Journal Publications

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS's vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. …

President Obama's Legacy: The Iran Nuclear Agreement?, Milena Sterio

Law Faculty Articles and Essays

Iran, the United States, and several world super-powers signed a historic nuclear agreement over the summer of 2015. The Agreement is a comprehensive plan of action, with an unprecedented level of minutia and detail regarding Iran’s commitment to curb its nuclear program in exchange for the lifting of United Nations-imposed sanctions against Iran. This Agreement, if it is successfully implemented, may represent President Obama’s most significant foreign policy achievement and may become the most important element of President Obama's legacy.

This article examines the Iran Nuclear Agreement by focusing on the events that led to the imposition of sanctions against …

The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurulé

Journal Articles

The Islamic State of Iraq and Syria ("ISIS") is the most deadly and well-funded foreign terrorist organization in the world. There are estimates that ISIS has an annual budget of over $2 billion to finance its goal of establishing a caliphate, or Islamic state, governed by its twisted version of Islamic law.1 Flush with funds, the terror group has acquired and controls large swaths of territory in Syria and Iraq, and the threat it poses extends to Jordan, Saudi Arabia, Egypt, Libya, Yemen, Lebanon, and beyond. 2 While depriving ISIS of funding is a central component of the United States …

Should The Best Offenses Ever Be A Good Defense: The Public Authority To Use Force In Millitary Operations: Recalibrating The Use Of Force Rules In The Standing Rules Of Engagement, Gary Corn

Scholarly Articles in Law Reviews & Journals

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/StandingRules for the Use of Force (SROE/SRUF)for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to a conflation …

Space Traffic Management: A Challenge Of Cosmic Proportions, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space traffic management has often, for example in the IAA Cosmic Study of 2006, been rather broadly defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from space to Earth free of physical or radio-frequency interference.” Oftentimes, especially in space law literature, references or even comparisons have been made to traffic management as it has developed in aviation and (to a lesser extent) in maritime transport.

However, it should be realized that space traffic management, especially under the definition quoted, comprises a considerably larger range of activities …

Shifting From 'Consent' To Advice: Reimagining The Role Of The Senate In Foreign Affairs, Benjamin Dynkin

Cardozo Journal of Conflict Resolution

This Note will begin by discussing the JCPOA, its history and enactment, as well as some of the hostile responses to its procedural posture. The procedural posture in this case is that of a Congressional-Executive Agreement, and this Note will examine what that means, as well as other methods that our Nation has for implementing foreign policy, and the issues that those options present. It will then examine Article II, section 2 of the United States Constitution and the JCPOA, and the weaknesses in the procedure of its enactment, as well as identifying where progress can be made in the …

The Art Of Nailing Jell-O To The Wall: Reassessing The Political Power Of The Internet, Bryan Druzin, Jessica Li

Journal of Law and Policy

Political observers commonly argue that, given the unique characteristics of the Internet, democratization is an inevitability of its widespread use. The critical role that social media played in the wave of demonstrations, protests, and revolutions that swept across the Arab world in 2011 cemented this perception in the minds of many. Yet China defies this simplistic paradigm—China has been stunningly successful at constraining the political power of its Internet. We argue that the political importance of Internet technology has been overstated, particularly with respect to China. As support for this thesis, we cite recent political events in Hong Kong known …

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata

Pomona Senior Theses

This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …

Reauthorizing The Fisa Amendments Act: A Blueprint For Enhancing Privacy Protections And Preserving Foreign Intelligence Capabilities, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Applying The Ucmj To Contractors In Contingency Operations, Adam R. Pearlman

American University National Security Law Brief

No abstract provided.

Ex Parte Quirin: The Nazi Saboteur Case And The Tribunal Precedent, Andrew Buttaro

American University National Security Law Brief

No abstract provided.

The Intersection Of "Internet Terrorism" And "Individual Privacy" In The Context Of The First Amendment, Amanda Leonard

American University National Security Law Brief

No abstract provided.

The Implications Of Creating An Iphone Backdoor, Gregory Coutros

American University National Security Law Brief

No abstract provided.

Known Unknowns: State Cyber Operations, Cyber Warfare, And The Jus Ad Bellum, Peter Z. Stockburger

American University International Law Review

No abstract provided.

Until We Achieve Universal Peace: Implications Of The International Law Commission’S Draft Articles On The “Effects Of Armed Conflict On Treaties”, Lauren Dudley

American University National Security Law Brief

No abstract provided.

"Black" Hawala: Confronting Isil On The Financial Front, Kelsey Mowatt-Larssen

American University National Security Law Brief

No abstract provided.

The Law Of Armed Conflict, Unconventional Warfare, And Cyber Attacks, Thomas P. Jordan

American University National Security Law Brief

No abstract provided.

National Security Law, James D. Carlson, Geoffrey Goodale, Guy C. Quinlan, Sergio L. Suarez

The International Lawyer

No abstract provided.

Beyond The Paris Attacks: Unveiling The War Within French Counterterror Policy, Khaled A. Beydoun

American University Law Review

No abstract provided.

Unraveling The Law Of War, Stephen J. Ellmann

Articles & Chapters

No abstract provided.