National Security Law Commons^™

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

What Would Zero Look Like? A Treaty For The Abolition Of Nuclear Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Nuclear disarmament-the comprehensive, universal, and permanent abolition of all nuclear weapons, pursuant to a verifiable, legally binding international agreement-has long been one of the most ambitious, controversial, and urgent items on the agenda for arms control. To date, however, most of the discussion of "getting to zero" has highlighted the political, military, technical and diplomatic dimensions of this complex problem, and there has been relatively little attention to the legal requirements for drafting such a novel treaty.

This Article fills that gap by offering two proposed agreements. The first, a non-legally-bindingfr amework accord, would be designedf or signature relatively soon …

Nuclear Kellogg-Briand Pact: Proposing A Treaty For The Renunciation Of Nuclear Wars As An Instrument Of National Policy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes …

[Dis-]Informing The People's Discretion: Judicial Deference Under The National Security Exemption Of The Freedom Of Information Act, Susan Nevelow Mart, Tom Ginsburg

Publications

As noted by President Obama's recent Review Group on Intelligence and Communications Technologies, pervasive state surveillance has never been more feasible. There has been an inexorable rise in the size and reach of the national security bureaucracy since it was created after World War II, as we have gone through the Cold War and the War on Terror. No one doubts that our national security bureaucracies need to gain intelligence and keep some of it secret. But the consensus of decades of experts, both insiders and outsiders, is that there is rampant overclassfication by government agencies. From its inception in …

United States Assistant Attorney General For National Security John P. Carlin Delivers Remarks At The American University Business Law Review 2014 Symposium, John P. Carlin

American University Business Law Review

No abstract provided.

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Articles

The state secrets privilege, originally established in United States v. Reynolds, has evolved into a powerful tool for the Executive to shield actions from judicial scrutiny, undermining the rule of law and constitutional checks and balances. This expansion, driven by judicial deference and circuit court interpretations, now prioritizes national security over accountability, threatening core legal principles. The article argues for reform to balance national security concerns with judicial oversight and individual rights.

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman

Faculty Scholarship

Weapon systems are becoming increasingly automated and arguably some autonomous military systems have been deployed for years. Recent advances in automated systems and the possibilities they portend have generated interest and anxiety within some militaries and defense ministries, and a movement of non-governmental activists seeking to ban fully autonomous weapons. In May 2014, the High Contracting Parties of the UN Convention on Certain Conventional Weapons (CCW) convened an extensive discussion of the legal and ethical issues that autonomous weapons raise, while recognizing that many of these problems lie at an uncertain point in the future.

It is important that normative …

The Power To Threaten War, Matthew C. Waxman

Faculty Scholarship

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape …

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Clapper V. Amnesty International Usa: Allowing The Fisa Amendments Act Of 2008 To Turn "Incidentally" Into "Certainly", Liz Clark Rinehart

Maryland Law Review

No abstract provided.

A Matter Of National Security: Whistleblowing In The Military As A Mechanism For International Law Enforcement, Roslyn Fuller

San Diego International Law Journal

[T]his article examines the impact that external whistleblowing can have on a state’s compliance with international law. Part III looks at some of the complications that disclosing international law violations raises for the broader legal system, in particular, the expertise that a whistleblower of this type should be expected to have in the area of international law, and judicial reactions to defences related to the exposure of international law violations. Part IV identifies some trends based on this analysis and what they might mean for external whistleblowing on international law violations in the future.

Book Reviews: War & Technology, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Warrant Canaries And Disclosure By Design: The Real Threat To National Security Letter Gag Orders, Rebecca Wexler

Faculty Scholarship

Since the 1980s, the FBI has issued documents referred to as National Se­curity Letters (NSLs), which demand data from companies — including finan­cial institution records and the customer records of telephone companies and communications service providers—for foreign intelligence investigations. The use of the letters increased dramatically after the attacks of September 11, 2001 and the USA PATRIOT Act’s expansion of the FBI’s statutory NSL authority. But these letters were rarely publicized or publicly challenged, as they often included gag orders that required recipients not to reveal the contents of the letter, or even its existence. After the leak of classified …

Judge Pauley’S Opinion In Clapper: Reset Button For Bulk Collection Debate?, Peter Margulies

Law Faculty Scholarship

This article was originally found in Lawfare, available here: https://www.lawfareblog.com/judge-pauleys-opinion-clapper-reset-button-bulk-collection-debate

Computer Network Operations And U.S. Domestic Law: An Overview, Robert N. Chesney

International Law Studies

No abstract provided.

Desperately Seeking Substance (Not Slogans) In Review Group Report On Nsa Surveillance, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.

Continued Oversight Of U.S. Government Surveillance Authorities : Hearing Before The S. Committee On The Judiciary, 113th Cong., December 11, 2013 (Statement By Professor Carrie F. Cordero, Geo. U. L. Center), Carrie F. Cordero

Testimony Before Congress

My views are informed by this up-front perspective regarding how the USA PATRIOT Act of 2001, the Intelligence Reform and Terrorism Prevention Act of 2004, and later the FISA Amendments Act of 2008, vastly improved the Intelligence Community’s ability to protect the nation from another attack on the scale of September 11th. More recently, I have had the added benefit of having spent the past three years outside of government to reflect, and to engage with the academic community, and to some extent the public, regarding some of the issues this Committee is considering today.

The True Tragedy Of American Power, Isaiah Wilson Iii

The US Army War College Quarterly: Parameters

No abstract provided.