National Security Law Commons^™

Critical Infrastructure, Cybersecurity, And Market Failure, John J. Chung

Law Faculty Scholarship

No abstract provided.

Treason And Terror: A Toxic Brew, B. Mitchell Simpson Iii

Law Faculty Scholarship

No abstract provided.

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

The Posse Comitatus Act And The Fourth Amendment's Exclusionary Rule, Patrick Walsh, Paul Sullivan

American University National Security Law Brief

No abstract provided.

Preparing To Commit Domestic Terrorist Activity: Does The United States Have Adequate Tools To Stop This?, Diane Webber

American University International Law Review

No abstract provided.

Your Bank May Be An International Terrorist: The Inconsistent Application Of Tort Law Principles To Financial Services Under The Anti-Terrorism Act, Elizabeth Walsh Pittman

The International Lawyer

No abstract provided.

National Security, Immigration And The Muslim Bans, Shoba Wadhia

Faculty Scholarship

National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim …

Presidents And War Powers, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given rise to two major questions about presidential war powers: first, what should be the president’s role in taking the country to war, and, second, what are the president’s powers to direct its conduct. Historian Michael Beschloss’s new book, “Presidents of War,” examines how presidents have responded to each of these questions across two hundred years of U.S. history.

The major argument of …

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 …

Sovereignty In The Age Of Cyber, Gary Corn

Scholarly Articles in Law Reviews & Journals

International law is a foundational pillar of the modern international order, and its applicability to both state and nonstate cyber activities is, by now, beyond question. However, owing to the unique and rapidly evolving nature of cyberspace, its ubiquitous interconnectivity, its lack of segregation between the private and public sectors, and its incompatibility with traditional concepts of geography, there are difficult and unresolved questions about exactly how international law applies to this domain. Chief among these is the question of the exact role that the principle of sovereignty plays in regulating states' cyber activities.

Cybersecurity And The New Era Of Space Activities, David P. Fidler

Articles by Maurer Faculty

No abstract provided.

Some Remarks Further To "Outer Space And International Geography: Article Ii And The Shape Of Global Order" By P. J. Blount, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Introduction ... The Key Role of Article II of the Outer Space Treaty ... Article II of the Outer Space Treaty and the Commercialization of Outer Space ... Space Mining: The Need for an Update of the Legal Framework ... Updating the Existing Legal Framework: Some Further Thoughts ... Concluding Remarks

The European Union And Space—Space For Competition?, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

From the inception of European integration, a regime trying to regulate and arrange competition as much as considered necessary for the benefit of society at large has been one of the core elements of the European Union’s legal order. While the European Union has over the past few decades become more and more involved in the European space effort, this has so far hardly given rise to fundamental application of this competition regime to space activities, even if space also in Europe increasingly has become commercialized and privatized. The current paper investigates the reasons and rationale for this special situation, …

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 …

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

Limitless Discretion In The Wars On Drugs And Terror, Wadie E. Said

University of Colorado Law Review

The wars on terror and drugs have been defined, largely, by what they lack: a readily identifiable opponent, a clear end goal, a timeline, and geographical boundaries. Based on that understanding, this Article discusses the increasingly expansive discretion of American authorities to prosecute individuals where the wars on terror and drugs intersect. Through laws such as the Maritime Drug Law Enforcement Act, the ban on providing material support to foreign terrorist organizations, and the narco-terrorism statute, the United States exercises a kind of universal jurisdiction to pursue anyone, anywhere it believes its laws are being violated. Wielding the power of …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Neutrality And Outer Space, Wolff Heintschel Von Heinegg

International Law Studies

This article discusses the law of neutrality as it pertains to belligerent operations in and through outer space as well as belligerent outer space operations involving the territory and national airspace of neutral States. As far as the latter is concerned, the traditional law of neutrality is fully applicable. Accordingly, international law prohibits belligerents from launching space objects from neutral territory or through neutral national airspace. While neutral States may not provide belligerents with outer space assets or the use of communications infrastructure located in their territories, they are not obliged to prevent their nationals from providing any of the …

The Future Of Nuclear Security: A Medical Physicist’S Perspective, Katharine E. Thomson

International Journal of Nuclear Security

Planning for the future of nuclear security is a vital and complex task, requiring cooperation and contribution from many disciplines and industries. This diversity of expertise should include the medical sector, which faces many of the same challenges as the nuclear industry: controlling access to dangerous material, creating a strong security culture, cooperating with the wider world and engaging the public.

Medical physicists, of which the author is one, oversee all aspects of small-scale radiation use. This paper discusses three key areas increasingly important to both medical and nuclear uses of radioactive materials: public engagement, prevention of nuclear and radiological …

The Future Of Nuclear Security In Moroccan Territory After The Creation Of The New Moroccan Agency Of Nuclear And Radiological Safety And Security: Opportunities And Challenges, Amal Touarsi, Amina Kharchaf

International Journal of Nuclear Security

Nowadays, a security regime for protecting nuclear and radiological material—providing an intelligent national regulatory institution and establishing national security laws—is necessary in order for a state to ensure security of nuclear and radiological materials used within its borders.

This paper focuses on discussing the opportunities and challenges facing the future of nuclear security after the creation of the new Moroccan Agency of Nuclear and Radiological Safety and Security.

Private Actors, Corporate Data And National Security: What Assistance Do Tech Companies Owe Law Enforcement?, Caren Morrison

William & Mary Bill of Rights Journal

When the government investigates a crime, do citizens have a duty to assist? This question was raised in the struggle between Apple and the FBI over whether the agency could compel Apple to defeat its own password protections on the iPhone of one of the San Bernardino shooters. That case was voluntarily dismissed as moot when the government found a way of accessing the data on the phone, but the issue remains unresolved.

Because of advances in technology, software providers and device makers have been able to develop almost impenetrable protection for their customers’ information, effectively locking law enforcement out …

Encryption, Asymmetric Warfare, And The Need For Lawful Access, Geoffrey S. Corn

William & Mary Bill of Rights Journal

No abstract provided.

The Unreasonable Rise Of Reasonable Suspicion: Terrorist Watchlists And Terry V. Ohio, Jeffrey Kahn

William & Mary Bill of Rights Journal

Terry v. Ohio’s “reasonable suspicion” test was created in the context of domestic law enforcement, but it did not remain there. This Essay examines the effect of transplanting this test into a new context: the world of terrorist watchlists. In this new context, reasonable suspicion is the standard used to authorize the infringement on liberty that often results from being watchlisted. But nothing else from the case that created that standard remains the same. The government official changes from a local police officer to an anonymous member of the intelligence community. The purpose changes from crime prevention to counterterrorism. …

Assessing And Enhancing Nuclear Safety And Security Culture For Small Facilities That Handle Radioactive Material, Solymosi Máté

International Journal of Nuclear Security

The use of radioactive sources is expanding all over the world and abreast the necessity of the enhancement of its safe and secure application is increasing too. In the nuclear industry, the safety and security are top priorities since decades. They share the same goal, to protect humans from the negative affect of the ionizing radiation. The human component of them is a significant factor and technical solutions can protect us so far and thus the culture for safety and security become a major focus. On the other hand, there are still some contradiction between recommendations and international guidance of …

Horizontal Cybersurveillance Through Sentiment Analysis, Margaret Hu

William & Mary Bill of Rights Journal

This Essay describes emerging big data technologies that facilitate horizontal cybersurveillance. Horizontal cybersurveillance makes possible what has been termed as “sentiment analysis.” Sentiment analysis can be described as opinion mining and social movement forecasting. Through sentiment analysis, mass cybersurveillance technologies can be deployed to detect potential terrorism and state conflict, predict protest and civil unrest, and gauge the mood of populations and subpopulations. Horizontal cybersurveillance through sentiment analysis has the likely result of chilling expressive and associational freedoms, while at the same time risking mass data seizures and searches. These programs, therefore, must be assessed as adversely impacting a combination …

What About Small Businesses? The Gdpr And Its Consequences For Small U.S.-Based Companies, Craig Mcallister

Brooklyn Journal of Corporate, Financial & Commercial Law

Fast-approaching changes to European data privacy law will have consequences around the globe. Historically, despite having dramatically different approaches to data privacy and data protection, the European Union and the United States developed a framework to ensure that the highspeed freeway that is transatlantic data transfer moved uninterrupted. That framework was overturned in the wake of revelations regarding U.S. surveillance practices, and amidst skepticism that the United States did not adequately protect personal data. Further, the European Union enacted the General Data Protection Regulation (GDPR), a sweeping overhaul of the legal data protection landscape that will take effect in May …

The Scrivener’S Secrets Seen Through The Spyglass: Gchq And The International Right To Journalistic Expression, Matthew B. Hurowitz

Brooklyn Journal of International Law

As part of the U.K.’s electronic surveillance program, the Government Communications Headquarters (GCHQ), started in 1909 to combat German Spies, now collects metadata from both foreigners and its own citizens. Through the express statutory authority of the Regulation of Investigatory Powers Act of 2000 (RIPA), and a loophole in section 94 of the Telecommunications Act of 1984, the GCHQ collects metadata, which is all of the information that is extrinsic to the actual contents of a communication. The GCHQ can request an authorization from a public authority—a member of its own staff—to collect traffic data, service use information, or subscriber …

Indeterminacy In The Law Of War: The Need For An International Advisory Regime, Ariel Zemach

Brooklyn Journal of International Law

Indeterminacy in the law of war exacts a severe humanitarian toll, and it is not likely to be reduced by the conclusion of additional treaties. The present article argues that the adverse consequences of this indeterminacy may be mitigated through a U.N. Security Council (SC) action establishing an international advisory regime and using the broad powers of the SC to provide incentives for states to subscribe to this regime voluntarily. States subscribing to the advisory regime (“operating states”) would undertake to follow the interpretation of the law of war laid out by international legal advisors. The advisory regime would represent …

Individual, Not Collective: Justifying The Resort To Force Against Members Of Non-State Armed Groups, Anthony Dworkin

International Law Studies

This article proposes an alternative to the conventional way of deciding when a State may target or detain members of an armed group. Instead of asking whether there is an armed conflict between the State and the group, this article argues that we should look at the State’s justification for the use of force against the group or its members. In a non-international context, this justification is rooted in human rights law. For this reason, the authorization for the resort to force operates on an individual basis, and the State is only justified in using force against individual members of …