National Security Law Commons^™

Square Pegs And Round Holes: Moving Beyond Bivens In National Security Cases, Alexander Steven Zbrozek

National Security Law Program

Since its inception, the Supreme Court has largely orphaned the Bivens doctrine, a child of its own jurisprudence. In doing so, the Court has repeatedly invoked dicta from the Bivens case warning that unspecified “special factors counseling hesitation” could preclude judicial recognition of future constitutional remedies. Picking up on this thread, lower courts have notably limited the justiciability of Bivens claims in cases challenging counterterrorism-related government conduct. This so-called “national security exception” to the Bivens doctrine has created a substantial hurdle to individual justice and government transparency.

This Note therefore proposes the creation of an Article I administrative court with …

Cipa Creep: The Classified Information Procedures Act And Its Drift Into Civil National Security Litigation, Ian Macdougall

National Security Law Program

This Note documents an incipient trend in the courts and Congress, which I call "CIPA creep," and investigates its implications for civil national security litigation. CIPA – the Classified Information Procedures Act – governs the use of classified information in federal criminal cases. No comparable statute exists in the civil context, where the judge-made state secrets privilege determines whether litigants may use sensitive government information. The prevailing scholarly and popular accounts hold that this privilege, in the tense post-9/11 security environment, transformed from a narrow evidentiary rule into a non-justiciability doctrine that cedes to executive branch officials the power to …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

Unintended Consequences: The Posse Comitatus Act In The Modern Era, Mark P. Nevitt

Faculty Articles

America was born in revolution. Outraged at numerous abuses by the British crown—to include the conduct of British soldiers in the colonists’ daily lives—Americans declared their independence, creating a new republic with deep suspicions of a standing army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. This did not occur until after the Civil War when Southern congressmen successfully co-opted the framers’ earlier concerns of a standing army and passed a criminal statute—the 1878 Posse …

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

Process, Practice, And Principle: Teaching National Security Law And The Knowledge That Matters Most, James E. Baker

Georgetown Law Faculty Publications and Other Works

The meaningful application of national security law requires a commitment to substantive knowledge, good process, and a capacity to cope (and indeed thrive) under the prevailing conditions of practice. This paper describes how and why to teach these three essential elements of national security law from an academic and practitioner perspective.

The paper starts with substantive law, placing emphasis not just on the breadth of knowledge and interpretive skills required, but also on the importance of depth, perspective, theory, purpose, history, and legal values in teaching the law. Next, the paper describes the importance of timely, meaningful, and contextual process, …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

Civilians And Armed Conflict, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

We tend to view concern with the protection of civilians as a relatively recent development within the Security Council: a product of the late 20th century genocides and ethnic cleansing campaigns in Rwanda and the Balkans. But while it is indeed true that the Council’s first thematic resolution directly addressing “protection of civilians” was not passed until 1999—and also true, unfortunately, that Security Council civilian protection efforts have yet to move beyond the sporadic and inconsistent—the Council has always concerned itself with civilian protection. Indeed, the history of the Security Council itself (as well as the history of the United …

Cross-Border Targeted Killings: "Lawful But Awful"?, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Since September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 American troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded. But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war.

This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special operations raids. The author calls this third …

Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks), Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Traditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

U.S. Judicial Independence: Victim In The “War On Terror” , Wayne Mccormack

Washington and Lee Law Review

No abstract provided.

Pandemic Disease, Biological Weapons, And War, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Over the past two decades, concern about the threat posed by biological weapons has grown. Biowarfare is not new. But prior to the recent trend, the threat largely centered on state use of such weapons. What changed with the end of the Cold War was the growing apprehension that materials and knowledge would proliferate beyond industrialized states’ control, and that “rogue states” or nonstate actors would acquire and use biological weapons. Accordingly, in 1993 senators Samuel Nunn, Richard Lugar, and Pete Dominici expanded the Cooperative Threat Reduction Program to assist the former Soviet republics in securing biological agents and weapons …

Fisa Reform, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the …

Cybersecurity And The Administrative National Security State: Framing The Issues For Federal Legislation, David G. Delaney

Articles by Maurer Faculty

In the digital age, every part of federal government has critical cybersecurity interests. Many of those issues are brought into sharp focus by Edward Snowden's disclosure of sensitive government cyber intelligence programs conducted by the National Security Agency, the Federal Bureau of Investigation, and the Central Intelligence Agency. Courts are reviewing various constitutional and statutory challenges to those programs, two government review groups have reported on related legal and policy issues, and Congress is considering cyber intelligence reform proposals. All of this action comes on the heels of significant efforts by successive administrations to restructure government and pass comprehensive cybersecurity …

Duck-Rabbits And Drones: Legal Indeterminacy In The War On Terror, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple …

Panel Ii: Balancing National Security And Transparency In Government Data Collection, Nate Cardozo, Mariko Hirose, Jonathan Manes, Ira Rubinstein, Christopher Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Are Damages Different? Bivens And National Security, Andrew Kent

Faculty Scholarship

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Bombing For Justice: Urban Terrorism In New York City From The 1960s Through The 1980s, Jeffrey A. Kroessler

Publications and Research

From the mid-1960s into the 1980s New York City experienced a wave of political violence and urban terrorism. Groups planted bombs, hijacked airliners, and engaged in assassination and attempted assassination to advance political, racial, or nationalist agendas. They included the Jewish Defense League, the Weathermen, the Black Panthers and the Black Liberation Army, FALN and other advocates of Puerto Rican independence, the United Freedom Front, Omega 7 and other anti-Castro Cubans, and Croatian nationalists. Juries often failed to convict these individuals, and others received light sentences. Judges scrutinized police actions for abuses of constitutional rights, and attorneys like William Kunstler …