National Security Law Commons^™

Imitating Us Doctrine Cost Europe Its Heavy Combat Power, Bence Nemeth

The US Army War College Quarterly: Parameters

This article argues that Europe’s loss of heavy combat power is primarily the result of doctrinal shifts influenced by the United States, rather than underfunding alone. Unlike existing research that focuses on defense budgets or burden-sharing, this study isolates the opportunity costs of adopting US-based expeditionary and counterinsurgency doctrines. Using force structure data for Canada, Germany, and the United Kingdom (1990–2022), it conducts a counterfactual analysis of lost tanks, infantry fighting vehicles, and heavy artillery pieces. The article shows that Europe’s shortfalls are doctrinal as much as fiscal and highlights the relevance of maintaining balance in future doctrinal choices.

Approaching The Military As A Profession Through The Clausewitzian Trinity, Adam T. Biggs

The US Army War College Quarterly: Parameters

The Clausewitzian trinity (people, government, and military—or passion, reason, and chance) can enhance existing scholarship and discussions about military professionalism by emphasizing the fundamental purpose of military forces. Specifically, managing chance incorporates elements of reducing uncertainty and applying creativity as individuals develop coup d’oeil. Junior personnel manage chance by reducing cognitive load while enhancing cognitive skills needed to quickly assess battlefield conditions as they progress to becoming senior leaders. This article contrasts these ideas against the various roles assigned to civil-military forces in the Clausewitzian trinity to emphasize professionalism in developing military leaders.

Strategic Theory And Clausewitz’S Trinitarian Test, Lukas Milevski

The US Army War College Quarterly: Parameters

Carl von Clausewitz’s trinity represents a qualitative test for strategy in both theory and practice. With the trinity, Clausewitz transforms competing influences into a mark of theoretical quality. Synthesizing several translations of Clausewitz’s On War and interpretations by experts such as Hew Strachan, Antulio J. Echevarria II, and Frank G. Hoffman, this article suggests that Clausewitz believed that good theory encompasses and accounts for all fundamental forces of war, whereas bad theory emphasizes the extremes of one force. The trinity compels mandatory considerations for students of theory, war planners, and practitioners.

Spezialpropaganda: The East German Military’S Covert Information-Warfare Program, Joe Cheravitch

The US Army War College Quarterly: Parameters

This article details the East German military’s extensive, innovative covert-propaganda program, which was designed to influence West German attitudes for almost two decades during the Cold War. Unlike existing scholarship that primarily addresses intelligence-led disinformation, this study exclusively analyzes military-led information warfare. The article uses previously classified East German military records to examine capabilities and tactics ranging from fake conscription notices to radio broadcasts. The findings offer contemporary US military planners and practitioners insight into the complexities of integrating information-warfare capabilities, measuring the effectiveness of propaganda, and understanding adversarial influence campaigns, with direct implications for current Joint Force planning and …

The Trump Administration’S Theory Of Constitutional War Powers: “The President Could Decide”, Rebecca Ingber

Online Publications

President Donald Trump has launched another unlawful war, this time in the service of regime change in Iran. The administration has been threatening the use of force for weeks, but provided very little public justification, description of what the president hoped to accomplish, or explanation for how the use of force would effectuate such goals. It has also to date presented no legal justification whatsoever. Much of what we know at this moment about how the administration views, and how it lawyers, questions of war powers can be derived from the one legal memorandum the administration has released on the …

The Power To Declare Peace, Michael Stokes Paulsen

Pepperdine Law Review

The Constitution gives Congress the power “to declare War.” The meaning of that grant of power is much debated, but its converse is much neglected: To whom does the Constitution assign the power to declare peace? This Article comprehensively examines the Constitution’s various assignments of the power(s) to make peace—constitutional powers to end, as a practical matter and as a binding legal matter, a prior legal condition of war. Both the President and Congress possess several such powers. The President has the power, with the advice and consent of two-thirds of the Senate, to make treaties, including peace treaties that …

Outbound Investment Restrictions And International Law’S Challenge, Harlan Grant Cohen

Seattle University Law Review

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Navigating Compliance In A Geopolitical Era: The Case Of Chinese Multinationals In The United States, Ji Li

Seattle University Law Review

This Article examines how Chinese multinational companies (MNCs) approach compliance in the United States amid deepening geo-political rivalry and intensified regulatory scrutiny. Drawing on original survey data, this Article maps variations in compliance structures, staffing, and governance mechanisms across Chinese firms and identifies key determinants such as industry-specific regulatory intensity, listing status, and organizational imprinting from headquarters. The analysis employs a dual institutional framework to explain how compliance systems emerge from the interplay between host-state regulatory demands and home-state institutional legacies, producing hybrid structures that blend local adaptation with headquarters-driven replication. Findings reveal that while certain compliance features—such as committee …

The Field Of International Business Transactions Law, Kathleen Claussen

Seattle University Law Review

This Article studies the evolution of the scholarly subfield referred to as the law of “international business transactions” (IBT). It reviews data on academic articles, courses, textbooks and other signifiers of the growth of this research area. Beginning around 1960, scholars began to use the term “international business transactions” and by the 1980s, several law schools were offering a course by that title. A handful of dedicated textbooks soon followed. These data reflect a gradual increase in research on the topic of IBT, particularly in the United States, but also considerable diversity of subject matters covered by those works. The …

Global Supply Chain Resilience In Emerging Technologies: A Case Study Of Bitcoin Mining, Kishanthi Parella, Carla L. Reyes

Seattle University Law Review

The United States has put into motion bold plans in critical and emerging technologies to bolster its national and economic security.  For example, the federal government created a national bitcoin strategic reserve and a stockpile of other cryptocurrency; while several states have committed to or are considering similar goals.  However, the security of these reserves is dependent on two types of supply chains within the Bitcoin mining industry: analogue supply chains, relating to the physical components needed for Bitcoin mining, and data supply chains, relating to the complex and layered logistical network of actors that create input into the software …

Volume 49 Masthead

Seattle University Law Review

Volume 49 Masthead

Restricting Data Flows Is A Sign Of Weakness, Nikolas Guggenberger

Seattle University Law Review

There has been a seismic shift in American attitudes toward the free flow of data across borders.  In less than a decade, the United States has transitioned from condemning barriers to digital trade to constructing a digital fortress of its own. It passed legislation requiring TikTok’s parent company to divest its U.S. operations or face a nationwide ban affecting 170 million U.S. users, citing national security concerns about its ties to China and the potential for data surveillance and content manipulation. Upon legal challenge by TikTok on First Amendment grounds, the Supreme Court affirmed the ban’s constitutionality. Recent federal legislation …

A Comparative Study Of Chinese And American Approaches To Shaping International Outer Space Law And Norms, Ariel G. Silverman

Seattle University Law Review

This article explores convergences and divergencies in the United States and PRC’s responses to the stalemate in the United Nations over the future of outer space resource governance. I do so by systematically analyzing these leading space-faring nations’ policy-positions and tactics deployed to shape norms around three substantive areas of outer space resource governance: rights of ownership and scope of utilization of space resources, mechanization of the “benefits sharing” principle, and the rights and responsibilities of the private sector. I theorize that these leading space-faring nations have adopted divergent approaches due to their differing historical relationships with international law and …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Seattle University Law Review

For the past three decades, a transnational reparations movement has unfolded across Northeast Asia. Hundreds of victims—assisted by attorneys, academics, and activists—seek remedies from Japan for various atrocities committed during World War II, colonialism, and other historical injustices.  They press their claims in street protests, legislative hearings, dramatic performances, and other fora.  The “comfort women” are the best known of these claimants; their global redress campaign ex-tends from noisy protests outside of Japan’s embassy in Seoul, to mute statues in raucous boroughs of Berlin.  More obscure, though larger in number, were the roughly one million Koreans who performed forced labor …

Table Of Contents

Seattle University Law Review

Table of Contents

Third-Party Funding: Balancing Transparency, National Security, And Access To Justice, Victoria Shannon Sahani

Seattle University Law Review

Many lawmakers who have recently become aware of the multi-billion-dollar global third-party funding industry are raising new national security concerns that further complicate preexisting, longstanding debates about transparency, disclosure, access to justice, and the best way to regulate third-party funding. In response, this Article briefly asserts three main points relating to the question of how best to regulate third-party funding. First, this Article explains the third-party funding industry, including its global regulatory landscape and how it serves three distinct populations: consumers, businesses, and law firms. Second, this Article explains that third-party funding is one tool that can help expand access …

Resilient Dispute Resolution Systems For International Energy Conflicts, Guillermo J. Garcia Sanchez

Seattle University Law Review

Energy-related conflicts are on the rise, spanning diverse issues such as the impacts of rare mineral mining on local communities, the impacts of sanctions on energy investments due to the Russia-Ukraine war, and the impacts of expanded subsidies on the electric vehicle and solar panel industries. Increasingly, companies, communities, and governments are clashing over the challenges of pursuing disparate and sometimes competing energy policies. This Article argues that dispute resolution mechanisms in the energy investment sector must be fundamentally rethought. Traditional semi-adjudicatory models, which focus on winners and losers, fail to accommodate the complex and multifaceted nature of contemporary energy …

Product Nationality And Corporate Identity, Trang (Mae) Nguyen

Seattle University Law Review

Global supply chains have long depended on a deceptively technical device: the attribution of a “nationality” to goods. A trade law principle, rules of origin assign products an “economic passport” that governs how they are treated at the border, including what markets they may enter and which tariff rates apply. In recent years, however, product nationality has taken on a new and far more ambitious role. As U.S. trade policy increasingly intersects with national security and human rights policy, policymakers rely on nationality-based measures to police supply chain linkages, curb geopolitical issues, and discipline firms for their links to forced …

How The Rhetoric Of Borders Justifies The Erosion Of Rights, Richard Sherwin

Other Publications

No abstract provided.

Trade, Tariffs, Sanctions, And Security: A Framework For Judicial Review, Cory Alexander Evans

UF Law Faculty Publications

National security and international trade, and their intersections, have become critical focuses for recent administrative action. It was once rare to invoke national security as a justification for tariffs and restriction on foreign investment, but it has now become increasingly common. Courts reviewing these measures have largely defaulted to deferential approaches developed in an earlier era—one in which such actions were infrequent and rarely litigated. But in an era where assertions of national security are more common, this dogmatic jurisprudential approach lacks coherence. A new framework is needed to better guide judicial review.

This Article proposes that new framework. It …

The National Security Internet, Anupam Chander

Georgetown Law Faculty Publications and Other Works

In response to widespread foreign surveillance and growing geopolitical distrust, governments are erecting a national security internet. Pioneered by China, national firewalls have gone global. But where firewalls sought to keep information out, they now seek to keep data in. Governments keen to avoid their citizens’ data from falling into foreign hands demand not only that personal data be stored on local servers, but also require that it be stored on local servers by local companies—what this Article calls “data localization squared.” Enforcing this demand requires a new mechanism of transnational control: immunity from foreign jurisdiction. Artificial Intelligence (AI) systems, …

The Role Of The U.S. State Department As An Amicus In Foreign Policy Abstention Analysis, Sarah Kurpius

Northwestern University Law Review

Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.

This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the …

The Question Of “Territory” In The Wto Jurisprudence: A Critique Of Panel's Decision On Us-Origin Marking Requirement Dispute, Yuanyuan Ren

Notre Dame Journal of International & Comparative Law

This article draws on the US—Origin Marking Requirement case study to critically examine the concept of “territory” under the World Trade Organization (WTO) law, particularly in relation to trade with contested territories among WTO members. It argues that while trade with contentious territories is not explicitly covered in current WTO rules, WTO law does provide a regulatory framework for tackling such issues. Nevertheless, resolving trade disputes involving contested territories at the WTO remains challenging, particularly due to the limited discussion on the notion of “territory” and the national security exceptions in WTO jurisprudence. The US—Origin Marking Requirement case marks the …

Adversarial Comparativism: The Role Of Emotion In United States–China Comparative Law Projects, Matthew S. Erie

Scholarly Articles in Law Reviews & Journals

Contemporary comparative law operates across a landscape riven by protectionism, nationalism, and securitization, all of which complicate comparative law projects. Nowhere is this more evident than in the U.S-China relationship, the most important bilateral relationship in the world. Despite economic “delinking,” the U.S. and Chinese legal systems are interacting more than ever; however, how this interaction works is poorly understood. This Article proposes “adversarial comparativism” to explain this dynamic. It is an approach to comparative law and politics that includes different modalities: competition, aggressiveness, transactionalism, misunderstanding, opportunism, and gaslighting. Many of these are underpinned by emotion. As such, while this …

Rights On Paper, Violations In Practice: Israel, The U.S., And The Failure To Enforce Judicial Pro¬Tections And International Obligations In Cases Of Arbitrary Detentions, Anjali Narayanan

Human Rights Brief

Muhammad Srur, a 34-year-old father, en­dured small cells, restricted movement, minimal family visits, and limited access to legal counsel when detained by Israel. He was beaten during arrest and interrogation, and the food, medical care, and living conditions fell below international standards. Half a world away, Abu Zubaydah remains in extreme isolation at Guantánamo Bay, following secret CIA detention where he faced prolonged confinement, sleep deprivation, stress positions, and other forms of torture. These men will never meet. Yet, their situations reflect the same legal reality: both have been placed into categories designed to fall outside the full protections of …

Bridging The Digital Divide: The Role Of Evolving Space Law In Ensuring Equitable Access And Ethical Use Of Climate Data, Caitlin B. Riordan

Indiana Journal of Law and Social Equality

No abstract provided.

Tiktok, The First Amendment, And Regulating Speech On The Internet, Marriah Binek

Roger Williams University Law Review

No abstract provided.

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

Hacking With Uncle Sam: Imagining A Public-Private Partnership For Active Cyber Defense, Jonathan Coleman

Catholic University Journal of Law and Technology

Federal law makes no distinction between "good" and "bad" hackers—the Computer Fraud and Abuse Act criminalizes hacking by a private citizen in any form. While an anti-hacking statute is necessary to deter and punish cybercrime, the current law prohibits private entities from "hacking back" or, more precisely, from engaging in active defensive measures in response to a cyberattack. If these measures were legalized, they could allow private entities to assist law enforcement and reduce the financial and reputational costs of a cyber incident. Absent a change in the law, private entities are dependent on law enforcement to provide active cyber …

The Prohibition Of Force Is The First Principle Of International Humanitarian Law, Mary Ellen O'Connell

Journal Articles

This article tracks the decline of respect for the prohibition of force, IHL, and human rights law. At the same time, it will clarify the inter-relationship of the three bodies of international law relevant to armed conflict. The article also considers why presidents first began to “abandon peace.” The evidence indicates that a major reason involves the influence of realist political theory. Realism asserts that national security is attained by amassing and demonstrating superior military capability. A president who follows the theory will defy the law against the use of force. Following realism is also at odds with the empirical …