National Security Law Commons^™

Congressional Oversight Of Modern Warfare: History, Pathologies, And Proposals For Reform, Oona A. Hathaway, Tobias Kuehne, Randi Michel, Nicole Ng

William & Mary Law Review

Despite significant developments in the nature of twenty-first century warfare, Congress continues to employ a twentieth century oversight structure. Modern warfare tactics, including cyber operations, drone strikes, and special operations, do not neatly fall into congressional committee jurisdictions. Counterterrorism and cyber operations, which are inherently multi-jurisdictional and highly classified, illustrate the problem. In both contexts, over the past several years Congress has addressed oversight shortcomings by strengthening its reporting requirements, developing relatively robust oversight regimes. But in solving one problem, Congress has created another: deeply entrenched information silos that inhibit the sharing of information about modern warfare across committees. This …

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

Reassessing The Ahistorical Judicial Use Of William Winthrop And Frederick Bernays Wiener, Joshua E. Kastenberg

Faculty Scholarship

Government lawyers, like the courts continue to cite to Winthrop. Most recently, in the pending appeal titled Larabee v. Harker, the government ‘s counsel quoted Winthrop for the proposition that “retired officers are a part of the army and so triable by court-martial—a fact indeed never admitting of question.” It is unlikely that the government’s counsel considered the matters presented in this brief article, or that Winthrop rested his statement on dicta rather than any constitutional statement on jurisdiction. Likewise, whatever criticism may be given to Justice Alito’s Ortiz dissent, I am not suggesting that either he, or Justice Neil …

Deep Fakes: The Algorithms That Create And Detect Them And The National Security Risks They Pose, Nick Dunard

James Madison Undergraduate Research Journal (JMURJ)

The dissemination of deep fakes for nefarious purposes poses significant national security risks to the United States, requiring an urgent development of technologies to detect their use and strategies to mitigate their effects. Deep fakes are images and videos created by or with the assistance of AI algorithms in which a person’s likeness, actions, or words have been replaced by someone else’s to deceive an audience. Often created with the help of generative adversarial networks, deep fakes can be used to blackmail, harass, exploit, and intimidate individuals and businesses; in large-scale disinformation campaigns, they can incite political tensions around the …

Biden Administration U.S. Space Force Policy Literature, Bert Chapman

Libraries Faculty and Staff Presentations

Provides details on U.S. Space Force policy literature produced by the Biden Administration during its first eight months. Includes announcements that the Biden Administration will continue this new armed services branch begun during the Trump Administration. Features congressional testimony of Biden Administration officials such as Secretary of Defense Lloyd Wilson and Air Force Space Command leader General James Dickinson, the text of Space Force's 2021 Digital Force Vision document, congressionally approved FY 2022 space force budget figures, congressional committee comments and report requirements contained in emerging defense spending legislation, the emergence of collaboration between Space Force and universities such as …

Intelligence Sharing In Multinational Military Operations And Complicity Under International Law, Marko Milanovic

International Law Studies

This article examines the international legal framework applicable to intelligence sharing in multinational military operations, with a particular focus on complicity scenarios. It first provides a theoretical overview of the role of fault in complicity, of how intent and knowledge can be conceptualized, and of the attribution of fault to States. It then looks in detail at the rule codified in Article 16 of the International Law Commission’s Articles on State Responsibility, and argues that this rule is best understood as employing multiple modes of fault (direct and indirect intent and wilful blindness). The article also argues that international humanitarian …

New York State Rifle & Pistol Association, Inc. V. Bruen: Brief Of Amici Curiae Former National Security Officials In Support Of Respondents, Barbara L. Mcquade

Appellate Briefs

Amici are former federal national security and law enforcement officials who have significant experience protecting our communities from acts of terror and domestic extremist violence. Amici represent a broad cross section of the national security community, including former career and politically appointed officials from the National Security Council staff, Office of the Director of National Intelligence, National Counterterrorism Center, Central Intelligence Agency, Department of Defense, Department of Homeland Security, Department of Justice, Federal Bureau of Investigation, and Department of State.<\p>

As experienced counterterrorism officials, prosecutors, and law enforcement officers, Amici understand that unfettered access to firearms poses a grave national …

It's Time To Reform The U.S. Vulnerabilities Equities Process, Amy Gaudion

Faculty Scholarly Works

No abstract provided.

Innovation Meets Regulation: Firrma’S Significance, The Treasury’S Dilemma, And The New Normal For Foreign Investment In The U.S. Venture Capital Ecosystem, Jonathan Aaron Horn

Pepperdine Law Review

One of the most powerful entities in the federal government is the little-known Committee on Foreign Investment in the United States (CFIUS), which is responsible for reviewing foreign investment transactions with U.S. businesses for potential national security threats. Originally, CFIUS was only able to review foreign investments that resulted in control of the U.S. company at issue, but the Foreign Investment Risk Review Modernization Act (FIRRMA) has significantly enhanced CFIUS’s scope to include review of minority investments. This Comment explores FIRRMA’s impact on foreign investment into the U.S. venture capital (VC) ecosystem and evaluates the uncertainty created for startups and …

Parameters Autumn 2021, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Crisis Management Lessons From The Clinton Administration's Implementation Of Presidential Decision Directive 56, Leonard R. Hawley

The US Army War College Quarterly: Parameters

Drawing on personal experience, the author asks what the current administration can learn from the Clinton administration’s implementation of Presidential Decision Directive 56, examines the real-world application of the directive during the Clinton administration and the pitfalls of its agency-centric successor during the Bush administration, and identifies recurring problems and best practices for successfully responding to current global crises.

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Assessing Risk At The National Strategic Level: Visualization Tools For Military Planners, Wade A. Germann, Heather S. Gregg

The US Army War College Quarterly: Parameters

The reemergence of great power competition, conflict with near-peer competitor states below the level of armed conflict, and persisting threats from nonstate actors with transnational ambitions and global reach pose challenges for strategists planning, executing, and assessing military operations and strategy. Building on current visualization tools, two proposed models—the National Strategic Risk Abacus and the National Strategic Risk Radar Chart—address these challenges and better depict how the US military may inadvertently contribute to risk at the national strategic level.

The Evolution Of Hybrid Warfare: Implications For Strategy And The Military Profession, Ilmari Käihkö

The US Army War College Quarterly: Parameters

The concept of hybrid war has evolved from operational-level use of military means and methods in war toward strategic-level use of nonmilitary means in a gray zone below the threshold of war. This article considers this evolution and its implications for strategy and the military profession by contrasting past and current use of the hybrid war concept and raising critical questions for policy and military practitioners.

The Battalion Commander Effect, Everett Spain, Gautam Mukunda, Archie Bates

The US Army War College Quarterly: Parameters

Statistical evidence suggests Army battalion commanders are significant determinants of the retention of their lieutenants—especially high-potential lieutenants. Further, this so-called Battalion Commander Effect should be included in brigadier general promotion board assessments and used to inform officer professional military education curricula.

Hope Versus Reality: The Efficacy Of Using Us Military Aid To Improve Human Rights In Egypt, Gregory L. Aftandilian

The US Army War College Quarterly: Parameters

Using US military aid as a lever to achieve human rights reforms has proven only marginally effective. This article examines the approaches employed by the Obama and Trump administrations to US military aid to Egypt and proposes practical steps that can be taken by policymakers and the military personnel on the ground to advance US human rights values.

Great (Soft) Power Competition: Us And Chinese Efforts In Global Health Engagement, Michael W. Wissemann

The US Army War College Quarterly: Parameters

Global health engagement, an underutilized strategy rooted in the strengths of soft power persuasion, can lead to more military-to-military cooperation training, help establish relationships that can be relied on when crises develop, stabilize fragile states, and deny violent extremist organizations space for recruiting and operations. Examining Chinese efforts worldwide to curry favor and influence and the challenges posed by the COVID-19 pandemic, this article shows health as a medium is a very compelling and advantageous whole-of-government approach to national security policy concerns.

Reversing The Readiness Assumption: A Proposal For Fiscal And Military Effectiveness, Jason W. Warren, John A. Bonin

The US Army War College Quarterly: Parameters

Looming budget cuts will necessitate adept management to retain a military capable of competing and winning by avoiding the mistakes made in prior drawdowns. This article presents a framework for government and defense leaders to prepare for the coming drawdown and plan for the necessary capacity of tomorrow across the diplomatic, information, military, and economic framework.

From The Editor In Chief, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

No abstract provided.

Samuel Huntington, Professionalism, And Self-Policing In The Us Army Officer Corps, Brian Mcallister Linn

The US Army War College Quarterly: Parameters

Drawing on Samuel P. Huntington’s three phases of self-regulation used to determine if an occupation qualifies as a profession, this article focuses on the third phase of policing and removing those who fail to uphold the standards set forth in the first two phases. It reviews how the US Army implemented this phase following the Civil War through the post–Vietnam War years and the implications for the officer corps.

The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt

International Law Studies

States are increasingly focused on the measures—cyber or otherwise—that they can take in response to hostile cyber operations. Although cyber operations are usually responded to with acts of “retorsion” (acts that are lawful, although unfriendly), international law recognizes other self-help mechanisms that allow for more robust responses. In the cyber context, most attention has focused on countermeasures and self-defense. Yet, both are subject to various limitations that constrain their availability.

This article examines a further option, the so-called “plea of necessity.” It allows States to respond to a hostile cyber operation when the action taken would otherwise be unlawful but …

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, …

National Security Rules: America's Constitution Of Law And War, Kyle L. Greene

Maine Law Review

Contemporary debates over the appropriate allocation of war powers between the political branches overemphasize the rigidity of the Constitution’s framework. This style of academic discussion sacrifices the lessons of practice in search of steadfast, yet empty, principles. Even beyond the practical failings of this approach, there is no constitutional basis for the notion that either Congress or the President has a singular, fixed role when dealing with national security issues. In fact, the Founders developed a constitutional structure capable of continually reshaping—within parameters—the government’s division of national security power to match the nation’s security challenges. Rather than scouring the constitutional …

Cyber Attribution And State Responsibility, William Banks

International Law Studies

We might expect international law to specifically address cyber attribution requirements due to the significance of attribution in framing the legal responsibility of States and the boundaries of responsive actions by victim States. However, there is little international law of cyber attribution, and what law there is exists largely by implication. Likewise, there is only a murky and highly contested law of State responsibility that theoretically constrains the vast majority of State-sponsored cyberattacks. Because victim States cannot engage in countermeasures unless they attribute a cyberattack to a State, attribution can serve simultaneously to constrain and empower victim States. However, the …

Application Of The Due Diligence Principle To Cyber Operations, Tomohiro Mikanagi

International Law Studies

The discreet use of proxies by States renders it difficult to prove attribution to States under the existing rules of attribution. On the other hand, the due diligence principle, if applicable, does not require attribution but can lead to the invocation of State responsibility for cyber operations emanating from the territory of other States. In the Corfu Channel judgment the ICJ recognized “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States,” and UN Member States agreed that existing international law applies to cyber operations. However, the UN Members …

Newsletter, Summer 2021

Newsletter

No abstract provided.

Widening The Lens On Content Moderation, Jenna Ruddock, Justin Sherman

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Searching For Accountability Under Fisa: Internal Separation Of Powers And Surveillance Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The United Nations And Human Rights Non-Governmental Organizations (Ngos) - Seventy-Five Years Of Consultations, Collaboration, And Contributions (1945-2000), George E. Edwards

Pace International Law Review

At the San Francisco Conference where the United Nations Charter was negotiated, participants and observers included representatives of “societies and organizations”—non-governmental organizations (NGOs). The precise number and identities of those NGOs is unclear, but 42 of the participants were consultants to the U.S. delegation that successfully lobbied for the Charter to include an official relationship between the U.N. and NGOs, and the promotion and protection of human rights. NGOs thus had a profoundly positive impact on the creation of the United Nations. For the first 75 years of the U.N.’s existence, NGOs have played an invaluable role in supporting the …

Academic Espionage: How International Trade Law Can Protect Higher Education, Cameron Keen

Georgia Journal of International & Comparative Law

No abstract provided.