National Security Law Commons^™

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Privilege In Peril: U.S. V. Zubaydah And The State Secrets Privilege, Alana Mattei

Duke Journal of Constitutional Law & Public Policy Sidebar

U.S. v. Zubaydah presents an opportunity for the Court to settle the scope of the state secrets privilege and the role of the judiciary when the government invokes a claim of privilege. The state secrets privilege, invoked by the executive, gives courts the power to prevent the disclosure of information that could pose a threat to national security by excluding the particular evidence or dismissing the case. The Court will decide whether the Ninth Circuit erred by rejecting the Government’s assertion of the state secrets privilege over the depositions of former CIA contractors requested by Abu Zubaydah. The Ninth Circuit …

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

France's Membership In Financial Action Task Force (Fatf) And Financing Of The Paris Terror Attacks In 2015, Sasyabella Febriani

Journal of Strategic and Global Studies

France is one of founding members FATF with other G-7 countries and FATF’s headquarters location. According to FATF and Europol, France is not only known as one of low level risk countries in financing terrorism but also as EU member state with the most terror acts in 2015. This research is attempt to explain why the French counter terrorism financing policy based on FATF standards is not able to prevent the financing terrorism practices of Paris terror attacks in 2015. This research method used qualitative approach and used historical institutionalism approach to see how institutional evolution of FATF, France involvement …

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …

Newsletter, Winter 2022

Newsletter

No abstract provided.

The New Great Wall Against China, Paul Rose

American University National Security Law Brief

This essay documents some of the recent changes in foreign investment law as a manifestation of increasing concerns with Chinese investment specifically and globalization more generally. The essay first shows how foreign investment laws in major economies have become increasingly illiberal since the Financial Crisis. Next, the essay considers the justification and impact of recent United States rules designed to reduce Chinese investment. Comparing data on merger and acquisition activity in the United States with the number of filings made to the Committee on Foreign Investment in the United States (CFIUS), the essay documents that although merger and acquisition activity …

President Of The United States, Destroyer Of Worlds: Considering Congress's Authority To Enact A Nuclear No-First-Use Law, John Ramming Chappell

American University National Security Law Brief

This article argues that Congress can exercise its constitutional war powers to enact a law restricting the President from using nuclear weapons first. The article contends that using a nuclear weapon is qualitatively different from conventional warfare and that the first use of nuclear weapons marks a decision to enter into war. Therefore, nuclear first use is not a battlefield decision within the President’s commander in chief power but rather a choice to enter the United States into a new type of conflict that could pose a direct, immediate, and existential threat to the U.S. homeland. Regulating that decision falls …

Italy And The Implementation Of International Space Law, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

1. Introduction
2. Italy in Space
3. International Space Law and the Main Parameters for Private Space Activities
4. National Space Law in Italy as Addressing Private Space Activities
5. Concluding Remarks

Writing a contribution to the Liber Amicorum for someone who counts among the greatest space lawyers of Italy and indeed of the world, as well as being a long-time friend, is obviously a pleasure and an honour—and what other subject would be more suitable than the particular country that has been his birth ground, home, and point of departure for traveling the world to help the cause of …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy Gaudion

Faculty Scholarly Works

In the book, Perlroth traces the development and use of cyber capabilities, focusing on the U.S. government’s unintended role in creating a market for these cyber goods. Her purpose is a straightforward one: to illuminate. Perlroth explains that her goal is to “help shine even a glimmer of light on the highly secretive and largely invisible cyberweapons industry so that we, a society on the cusp of this digital tsunami called the Internet of Things, may have some of the necessary conversations now, before it is too late.”7 She seeks to accomplish this purpose by offering a treatise-like treatment of …

The “Law Of The Horse” For Outer Space? What “Space Law” Is, And Why It Is Important To Educate Space Lawyers, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

When I tell someone that I make a professional living with teaching, researching, and advising on space law, the first reaction all too often is laughter, followed by an only half-joking “So tell me, who owns the Moon then?” Which, by the way, nowadays is an important legal issue indeed. Such a lack of automatic recognition that something like “space law” makes sense ever since humankind entered outer space, however, usually is part of a more fundamental lack of understanding of the importance of space activities for our daily lives, which does not stop growing day by day.

It is …

Putting Cano On Ice – A Path Forward For Border Searches Of Electronic Devices, Davis Price Shugrue

Vanderbilt Journal of Entertainment & Technology Law

Across the country, circuit courts disagree over what level of suspicion, if any, is required for border officials to search electronic devices. This leaves law enforcement agencies in the lurch because they must craft nationwide policies that cover jurisdictions with differing rules. The Supreme Court should bring this quandary to an end by holding that no reasonable suspicion or warrant is required for border searches of electronic devices. Many scholars and litigants have called for a reasonable suspicion or warrant requirement in light of Supreme Court decisions like Riley and Carpenter that recognize the privacy concerns raised by searches of …

The American Security Drone Act: America's Paper Tiger Vs. China's Trojan Horse, Susan E. Upward

American University National Security Law Brief

The skies above America have been increasingly inundated with small unmanned aircraft systems (sUAS) operated by both government agencies and civilians alike. The majority of these drones are manufactured by Da-Jiang Innovations (DJI), a Chinese company that continues to emerge as a national security threat. The risk posed by these drones stems not only from physical access to American airspace, but also from the surreptitious transmittal of information back behind the “Great Firewall of China” via DJI mobile device applications. However, current pending legislation is inadequate to effectively counter this threat. Instead, the United States should take a more comprehensive …

Ganging Up On Terrorism: Transnational Gangs And Tier Iii Terrorist Organizations, Adam S. Domitz

American University Law Review

The Immigration and Nationality Act sets forth three distinct tiers of terrorist organizations. Unlike Tiers I and II, Tier III does not require official designation in the Federal Register by cabinet level officials. Instead, the tier calls for case-by-case adjudication by executive branch employees such as asylum officers and immigration judges. Noncitizens who engage in certain activities with or who have certain ties to any of the three tiers of organizations are inadmissible to the United States and barred from most forms of immigration relief, subject to limited exceptions. Nevertheless, in recent years, a variety of entities—including the Trump administration—have …

Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman

Seattle University Law Review

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this …

Letter From The Editor, Ryan Nelson

American University National Security Law Brief

No abstract provided.

Huawei Strikes Back: Challenging National Security Decisions Before Investment Arbitral Tribunals, Ming Du

Emory International Law Review

No abstract provided.

Table Of Contents

Seattle University Law Review

Table of Contents

Domsetic Terrorism: Not Actually A Crime, But Desperately In Need Of A Federal Response, Rebecca K. Tucker

Lewis & Clark Law Review

Since the founding of the United States, the U.S. Government has dealt with national security threats, both external and internal. While there are federal laws in place to protect the nation against external actors, these instruments cannot be turned directly inward to address the rising threat of domestic terrorism. This Comment explains the issues with that approach and concludes by proposing specific solutions, focusing on the need for a coordinated response from the agencies and departments tasked with the investigation, intelligence, and prevention of domestic violent extremism and terrorism.

Timestamp Estimation From Outdoor Scenes, Tawfiq Salem, Jisoo Hwang, Rafael Padilha

Annual ADFSL Conference on Digital Forensics, Security and Law

The increasing availability of smartphones allowed people to easily capture and share images on the internet. These images are often associated with metadata, including the image capture time (timestamp) and the location where the image was captured (geolocation). The metadata associated with images provides valuable information to better understand scenes and events presented in these images. The timestamp can be manipulated intentionally to provide false information to convey a twisted version of reality. Images with manipulated timestamps are often used as a cover-up for wrongdoing or broadcasting false claims and competing views on the internet. Estimating the time of capture …

Un-Repeal: Reviving The Arms Control Impact Statements, David A. Koplow

Michigan Journal of Environmental & Administrative Law

From the late 1970s into the early 1990s, U.S. federal law mandated the executive branch to prepare annual analytical documents known as Arms Control Impact Statements (ACIS). These instruments – obviously patterned after the Environmental Impact Statements (EIS), which had been inaugurated only a few years previously – were intended to prod the national security community to undertake more rigorous, multi-dimensional study of major weapons programs, and to provide Congress and the American public with enhanced, timely information about key arms procurement decisions.

However, unlike the EIS process – which rapidly became institutionalized, and which has proliferated to multiple tiers …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

The World Of Private Terrorism Litigation, Maryam Jamshidi

UF Law Faculty Publications

Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism- related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while …

The Use And Abuse Of Domestic National Security Detention, Nicole Hallett

Seattle University Law Review

Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes—by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it? The case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s, and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to …

Law And Liberty On The Moon, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

As on Earth, so in outer space . .

Most of those participating in humankind’s venturing into outer space, in particular to the extent of establishing settlements there and thereby providing for a second home for humanity, would hope or even assume that humankind in so doing might be able to avoid the sometimes rather bloody developments that accompanied settlement in far-away territories on Earth. However, at least in the legal area, with a view to its role as providing not only justice and fairness but also predictability and foreseeability, logic dictates that terrestrial laws and experiences of these laws …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.

Human-Controlled Fuzzing With Afl, Maxim Grishin, Igor Korkin, Phd

Annual ADFSL Conference on Digital Forensics, Security and Law

Fuzzing techniques are applied to reveal different types of bugs and vulnerabilities. American Fuzzy Lop (AFL) is a free most popular software fuzzer used by many other fuzzing frameworks. AFL supports autonomous mode of operation that uses the previous step output into the next step, as a result fuzzer spends a lot of time analyzing minor code sections. By making fuzzing process more focused and human controlled security expert can save time and find more bugs in less time. We designed a new module that can fuzz only the specified functions. As a result, the chosen ones will be inspected …

A Low-Cost Machine Learning Based Network Intrusion Detection System With Data Privacy Preservation, Jyoti Fakirah, Lauhim Mahfuz Zishan, Roshni Mooruth, Michael L. Johnstone, Wencheng Yang

Annual ADFSL Conference on Digital Forensics, Security and Law

Network intrusion is a well-studied area of cyber security. Current machine learning-based network intrusion detection systems (NIDSs) monitor network data and the patterns within those data but at the cost of presenting significant issues in terms of privacy violations which may threaten end-user privacy. Therefore, to mitigate risk and preserve a balance between security and privacy, it is imperative to protect user privacy with respect to intrusion data. Moreover, cost is a driver of a machine learning-based NIDS because such systems are increasingly being deployed on resource-limited edge devices. To solve these issues, in this paper we propose a NIDS …

Fifth-Dimensional Warfare And National Security In Canada: Situating Microdeviation Theory Within C-59: An Act Respecting National Security Matters, Hayden Slight

Theses and Dissertations (Comprehensive)

In an era of rapid technological change, the growing threat environment in the cyber dimension will continue to influence how a sovereign nation contends with attacks that can occur from any corner of the world. The growing adaptation and expansion of technology belonging to the Internet of Things (IoT) and the increasing prevalence of social media (Facebook, Twitter) has also influenced the spreading of attack surfaces that can become victim to exploitation by motivated parties including foreign states and terrorist groups. Against this backdrop, Canada’s own efforts to modernize and reinforce its own national security agencies resulted in the developing …