National Security Law Commons^™

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, …

Quieting The Court: Lessons From The Muslim-Ban Case, Avidan Cover

Faculty Publications

The Supreme Court’s Muslim-ban decision in Trump v. Hawaii and the confirmation of Brett Kavanaugh to the Supreme Court call into question the civil rights litigation enterprise insofar as it challenges U.S. government’s national security and immigration policies. Litigants and advocacy organizations should employ an array of strategies and tactics to avoid the Court’s rulings that almost uniformly defer to, and thus validate, the government’s national security and immigration practices.

This article maintains that The Muslim-Ban Case was a predictable outgrowth of the Supreme Court’s national security-immigration jurisprudence that champions executive power at the expense of marginalized groups, in particular …

Beyond The Counterinsurgency Paradigm Of Governing: Letting Go Of Prediction And The Illusion Of An Internal Enemy, Bernard E. Harcourt

Faculty Scholarship

Bernard E. Harcourt expands the thesis about the illusion of insurgency in the United States to the current day. What, he asks, could alter fraudulent and overblown perceptions about the sanctity and importance of the national security state? He suggests that the way forward might begin with relinquishing the institutionalized practice of predicting danger. How to do this and what the consequences might be for his three-pronged analysis of state counterinsurgency strategy provides fresh thinking for future analysis and policymaking.

Why Should Law And Policy Makers Understand Extremist Beliefs? The Islamic State (Isis) As A Case Study: Past, Present, And Future, Ali Rod Khadem

Lewis & Clark Law Review

The overarching argument in this Article is that inadequate comprehension of extremist doctrines undermines efforts in law and policy. Selecting the Islamic State (ISIS) as a case study, this Article attempts to resolve three legal and policy dilemmas by exposing internal ISIS doctrine (i.e. by considering the perspectives of the movement itself). This focus on ISIS is justified, for despite the movement’s recent territorial decline, it is precisely its doctrine and ideology that will persist and enable the rise of 2.0 and 3.0 movements modeled after the prototype. In considering ISIS, the aim here is to demonstrate the general need …

International Investment And National Security Review, Ji Ma

Vanderbilt Journal of Transnational Law

National security is a pillar of international law. As long as sovereign states exert power within the international legal regime, national security will be an exception to international law. These security concerns also come to light in the international investment legal regime. The international investment legal regime provides for essential security exceptions, aiming at protecting host states' interests. This practice has been honored by international investment treaties and international investment tribunals. Although such exemption provisions can balance the interests between international investors and host states, they might be abused by host states in virtue of rising protectionism.

Today, with respect …

Bureaucratic Resistance And The National Security State, Rebecca Ingber

Faculty Scholarship

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …

The Significance Of Mongolia's Foreign Policy And Security Apparatus On A Global And Regional Scale, Bolor Lkhaajav

Master's Projects and Capstones

Mongolia, land-locked between two politically, economically, and militarily powerful nations — Russia and China — often must balance its foreign and security policies with its two neighbors and countries beyond. When discussing Mongolia’s foreign policy and security apparatus, historians and scholars look at the international relations of East Asia as a whole. This is the case not because Mongolia’s foreign policy is insignificant but because greater powers impose greater influence on smaller states. Mongolia’s partial involvement in World War II (WWII), and the Cold War introduced new challenges as well as opportunities for Mongolia to modernize its foreign policy principles …

The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco

St. John's Law Review

(Excerpt)

Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, …

Terrorism Risk Insurance: Is It Really Working?, Rebecca Demarest

Honors Projects in Mathematics

This paper investigates terrorism risk insurance in the United States as well as those programs offered in other countries throughout the world. In the United States, particular attention is devoted to the interaction of government with private insurers to maintain an effective insurance program. An analysis is performed comparing terrorism insurance before and after the attacks on the World Trade Center on September 11, 2001. The paper looks into actual terrorist events that have occurred focusing on 56 world-wide events that are associated with property losses greater than $10 million. This paper not only investigates the losses that were incurred …

The Fight Over Encryption: Reasons Why Congress Must Block The Government From Compelling Technology Companies To Create Backdoors Into Their Devices, Shannon Lear

Cleveland State Law Review

Advances in technology in the past decade have blurred the line between individuals’ privacy rights and the government’s ability to access information. How should this issue be handled in a manner that balances the privacy rights of individuals and the government’s access to information in the interest of national security?

This Note proposes a bright-line rule that would continue to allow the government to obtain specific information from a data service provider without forcing the company to circumvent its own security features. Under this rule, a company shall relinquish specific information in its control or possession only by court order …

National Security Lawyering: The Best View Of The Law As A Regulative Ideal, Mary B. Derosa

Georgetown Law Faculty Publications and Other Works

In The National Security Lawyer in Crisis: When the “Best View” of the Law May Not Be the Best View, Robert Bauer describes the challenges for executive branch lawyers providing advice during a national security crisis. Bauer focuses on two especially perilous episodes in United States history—the Cuban Missile Crisis and the run-up to U.S. involvement in World War II—and analyzes the legal advice Presidents Kennedy and Roosevelt, respectively, received. In both cases, widely respected lawyers gave legal advice that supported the President’s preferred outcome, but almost certainly did not represent what the lawyers considered the best view of …

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

An Unstoppable Force And An Immoveable Object? Eu Data Protection Law And National Security, Fred H. Cate, Christopher Kuner, Orla Lynskey, Christopher Millard, Nora Ni Loideain, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Under The Radar: The Cost And Benefits Of Wind Energy Through The Lens Of National Security, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

This Article examines wind energy through the lens of national security. The benefit resides with helping the United States become energy independent. National-security concerns also present a cost because wind energy interferes with military radar, posing a potential threat to the systems that monitor possible attacks. This Article attempts to analyze the overall impact of wind energy while noting the inherent difficulties when so much uncertainty is involved in the process.

Part I of this Article discusses the benefits of wind energy. Part II examines its costs, specifically its interference with radar, and what that means for national security. This …

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi

UF Law Faculty Publications

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 U.S.C. § …

Concluding Observations On Sovereignty In Cyberspace, Gary Corn, Robert Taylor

Scholarly Articles in Law Reviews & Journals

In Sorerejgntyin Cyberspace: Lex Lata Vel Non?, Michael Schmitt and Liis Vihul argue that territorial sovereignty is a primary rule of international law that limits cyber activities. They recognize, however, that not all cyber effects constitute violations of territorial sovereignty, and like Rule 4 in the Tallinn Manual 2.0 and its commentary, they acknowledge a distinct lack of consensus among the Tallinn participants on the critical question of applicable thresholds. Problematically, they do not identify the necessary state practice and opinio juris that would be required to establish either the primary rule that they proffer or the existence and contours …

R2h And The Prospects For Peace: An Essay On Sovereign Responsibilities, David Luban

Georgetown Law Faculty Publications and Other Works

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in …

Deliberative Constitutionalism In The National Security Setting, Mary B. Derosa, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Deliberative democracy theory maintains that authentic deliberation about matters of public concern is an essential condition for the legitimacy of political decisions. Such deliberation has two features. The first is deliberative rigor. This is deliberation guided by public-regarding reasons in a process in which persons are genuinely open to the force of the better argument. The second is transparency. This requires that requires that officials publicly explain the reasons for their decisions in terms that citizens can endorse as acceptable grounds for acting in the name of the political community.

Such requirements would seem to be especially important in the …

Contrasting Perspectives And Preemptive Strike: The United States, France, And The War On Terror, Sophie Clavier

Maine Law Review

A few years ago, Samuel P. Huntington's article in Foreign Affairs, "The Clash of Civilizations?" described a "West vs. the Rest" conflict leading to the assumption of an essentially unified Western civilization settling "[g]lobal political and security issues ... effectively ... by a directorate of the United States, Britain and France" and centered around common core values "using international institutions, military power and economic resources to run the world in ways that will . . . protect Western interests . . . .” Against the West, the specter of disorder and fundamentalism was looming and would precipitate conflicts. This widely …

Unilateral And Multilateral Preventive Self-Defense, Stéphanie Bellier

Maine Law Review

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people …

Warfare As Regulation, Robert Knowles

Washington and Lee Law Review

The United States government’s national security activities, including the use of force, consume more than half of all federal discretionary spending and are carried out by the world’s largest bureaucracy. Yet existing scholarship treats these activities as conduct to be regulated, rather than as forms of regulatory action.

This Article introduces a new paradigm for depicting what agencies involved in national security do. It posits that, like other agencies, the national security bureaucracy is best understood to be engaging in regulatory activity—by targeting, detaining, interrogating, and prosecuting enemies; patrolling the border; and conducting surveillance and covert actions. Also, like other …

A Never Ending State Of Emergency: The Danger Of National Security In Emboldening The Color Line In America, Celeste Mccaw

University of Miami Race & Social Justice Law Review

No abstract provided.

Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

A Research Agenda To Improve Decision Making In Cyber Security Policy, Benjamin Dean, Rose Mcdermott

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

The Cyber Longbow & Other Information Strategies: U.S. National Security And Cyberspace, Gary D. Brown

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

From The National Surveillance State To The Cybersurveillance State, Margaret Hu

Scholarly Articles

This article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, …

Energy Subsidies: Worthy Goals, Competing Priorities, And Flawed Institutional Design, David M. Schizer

Faculty Scholarship

The United States uses on targeted subsidies for both "green" energy and hydrocarbons. These subsidies pursue worthwhile goals. But unfortunately, many have design flaws that make them less effective or even counterproductive. The goal of this Article is to show how to do better.

Specifically, this Article focuses on three sets of issues. First, there often is tension between our environmental and national security goals. Unfortunately, the economics literature on energy largely ignores these trade-offs by omitting national security from the analysis. This Article takes issue with this approach and suggests ways to manage these trade-offs. Second, this Article argues …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Restoring The Balance Between Secrecy And Transparency: The Prosecution Of Nationai Security Leaks Under The Espionage Act, Christina E. Wells

Faculty Publications

This Issue Brief reviews the relationship between secrecy, transparency and accountability in the United States, including the role of anonymous leaks. It also examines the threat that increased Espionage Act prosecutions pose to government accountability and discusses why changes to the Espionage Act are necessary to preserve an appropriate balance between government secrecy and transparency.

Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski

Publications

Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …