National Security Law Commons^™

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 …

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond …

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 …

Clearing The Air: Does Choosing Agency Deference In Security Clearance Rulings Dilute Constitutional Challenges?, Frank Russo

Catholic University Law Review

The ability to obtain a security clearance has a wide-ranging impact from job placement to questions of fitness in a presidential election. Sustaining a functional career in intelligence, national security, and many other federal fields within the United States is nearly impossible without proper security clearance. In 2016, the importance of proper clearance evolved into a national debate as each presidential candidate staked claims that their opposition should be excluded from receiving sensitive material.

This Comment begins with a detailed history of modern security clearance procedures and MSPB reviews of clearance revocations. Part I focuses on those who need security …

Right Vs. Right: Personal Beliefs Vs. Professional Obligations, Linell A. Letendre, Martin L. Cook

The US Army War College Quarterly: Parameters

No abstract provided.

Commentary And Reply, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

The "Double Standard" Of Nonproliferation: Regime Type And The U.S. Response To Nuclear Weapons Program, Alina Shymanska

International Journal of Nuclear Security

There is no doubt that the NPT regime is far from being equal for all states involved. As the predominant hegemonic power since WWII, the United States plays a major role in deciding the fates of non-great power proliferators. This article tries to find the logical explanation of the phenomenon whereby some nuclear proliferators are absolved regardless of their active accumulation of nuclear arsenals while others are labeled as “rogue states” and ordered to disarm. The article suggests that a particular proliferator’s political regime could affect the way in which its state is approached by the U.S., known for its …

Us Landpower And An Indo-American Alliance, Samir Tata

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.

Emory Upton And The Us Army, Paul C. Jussel

The US Army War College Quarterly: Parameters

No abstract provided.

Ltg Mafarland: Insights On Illusions Of Victory And Iraq, Russell W. Glenn

The US Army War College Quarterly: Parameters

No abstract provided.

Avoiding Nation-Building: From Nixon To Trump, Dominic Tierney

The US Army War College Quarterly: Parameters

No abstract provided.

Countering Russian Meddling In Us Political Processes, James P. Farwell

The US Army War College Quarterly: Parameters

No abstract provided.

Countering Russian Disinformation, Timothy P. Mcgeehan

The US Army War College Quarterly: Parameters

No abstract provided.

Victory Without Casualties: Russia's Information Operations, T. S. Allen, A. J. Moore

The US Army War College Quarterly: Parameters

No abstract provided.

Brexit And The Anglo-American Security And Defense Partnership, James K. Wither

The US Army War College Quarterly: Parameters

No abstract provided.

Brexit And Transatlantic Security, Arthur I. Cyr

The US Army War College Quarterly: Parameters

No abstract provided.

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Back Matter, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.

Front Matter, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.

Contents, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.

United To Deter: Dealing With New Means Of Supporting Terror, Frank A. Florio

University of Miami International and Comparative Law Review

No abstract provided.

The Politics Of Legal Arrangements: The "Duty Of Care," Justifying, Extending, And Perpetuating The Public-In-The-Private Forms Of Protection, Anna Leander

Indiana Journal of Global Legal Studies

This article explores the place of formal legal arrangements in the politics surrounding the hybrid, enmeshed public-in-the-private forms of authority this special issue focuses on. It does so by analyzing the significance of one specific legal arrangement, the Duty of Care, for the politics surrounding public-in-the-private forms of protection. I show that the Duty of Care does considerable political work. It contributes to decentering, commercializing, and depoliticizing protection. In so doing, the Duty of Care is justifying this specific form of protection, defining and extending its scope, and perpetuating it. The article makes this argument by drawing both on the …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

“Frankly Unthinkable”: The Constitutional Failings Of President Trump’S Proposed Muslim Registry, A. Reid Monroe-Sheridan

Maine Law Review

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States— not just visitors from abroad, but American citizens as well. This astonishing proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency. In this Article, I attempt to address President Trump’ s proposal in several ways. First, I aim to provide a thorough analysis demonstrating unequivocally that such a “ Muslim registry,” with the characteristics President Trump has endorsed, would violate …

Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

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 …

Disciplining Deference: Strengthening The Role Of The Federal Courts In The National Security Realm, Dominic X. Barceleau

Notre Dame Law Review

This Note will argue that federal courts need to be more “disciplined” in their deference determinations in order to effectively check the Executive’s power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh …

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

Unmanned Aerial Vehicles: Their Use Of Satellite Services And (Space) Law, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

This chapter represents an effort to identify the components of international space law that apply to the use of unmanned aerial vehicles (UAVs). It argues that, while other national and international regimes of law apply to UAV activities, international space law is implicated only to the extent that UAV technology relies on satellite services for control and guidance purposes.