Journal of National Security Law & Policy

Articles

Vol. 9, No. 3, 2017

Jcp-No-Way: A Critique of the Iran Nuclear Deal as a Non-Legally Binding Political Commitment
"Since it costs a lot to win, and even more to lose, you and me bound to spend some time wonderin' what to choose... Wait until that deal come 'round. Don't you let that deal go down. "1IntroductionThe 2015 Joint Comprehensive Plan of Action - commonly...
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Military Justice: A Very Short Introduction (Book Review)
As Eugene Fidell points out in his recently published book, Military Justice: A Very Short Introduction1 there is just something about military justice that makes it a fascinating subject for almost everyone.2 Both military and non-military members can...
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Preventive Detention for National Security Purposes in Israel
INTRODUCTIONThe beginning of the 21st century has seen a marked increase in democratic states confronting terrorism at home, on their borders and overseas. In doing so, they have employed different security measures, one of them being preventive detention...
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2017 Symposium Keynote Address PROTECTING REFUGEES: A NATIONAL SECURITY IMPERATIVE
The title of this Symposium is The Border and Beyond. And when we're talking about the national security implications of refugees and migration, that's exactly the right way to think about it. So much of the discussion in our country about immigration...
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Rock or Island? It Was an Unclos Call: The Legal Consequence of Geospatial Intelligence to the 2016 South China Sea Arbitration and the Law of the Sea
"Life is an island... an island whose rocks are hopes. " - Kahlil GibranI. Introduction: A Littoral Game of StonesOn July 12, 2016, the International Arbitral Tribunal (Tribunal), duly convened under Annex VII of the 1982 United Nations Convention on...
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A Review of "The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age" by Laura K. Donohue
Professor Donohue has given us a full-throated denunciation of the entire legal framework regulating the government's collection of data about American citizens and permanent residents, whom we call "United States Persons."1 She contends that in the...
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Replacing the "Sword of War" with the "Scales of Justice": Henfield's Case and the Origins of Lawfare in the United States
United States District Attorney William Rawle rose from his seat in the hot, stuffy Philadelphia City Hall, on July 26, 1793, to give the most important speech of his legal career. As the United States Government's lawyer in Pennsylvania, Rawle was responsible...
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Equi-Failure: The National Security Implications of the Equifax Hack and a Critical Proposal for Reform
"It's like the guards at Fort Knox forgot to lock the doors and failed to notice the thieves were emptying the vaults.... How does this happen when so much is at stake? I don't think we can pass a law that, excuse me for saying this, fixes stupid. I...
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Outsourcing Intelligence Analysis: Legal and Policy Risks
IntroductionIntelligence reduces uncertainty in conflict, whether in trade negotiations between allies with similar, but individual interests, or in combat operations against a foreign state or terrorist group.1 Providing this intelligence involves collecting,...
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Vol. 9, No. 1, 2017

Global Health Security in an Era of Explosive Pandemic Potential
IntroductionThe world is becoming increasingly vulnerable to infectious diseases,1 creating a serious threat to global health security that we must address before it becomes unmanageable. In the past two decades alone, a series of global health crises...
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International Law and Military Strategy: Changes in the Strategic Operating Environment
Introduction"The power of law is that it legitimizes power."- Ganesh Sitaraman, "The Counterinsurgent 's Constitution: Law in the Age of Small Wars," 17.Strategy, the British military historian Hew Strachan reminds us, "is a profoundly pragmatic business:...
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Public Health Emergencies as Threats to National Security
IntroductionProtecting the nation from a diverse array of public health threats remains a consummate objective of federal, state, and local governments. Achieving it is no simple task. Threats to the public's health are multifarious, unpredictable, and...
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Terrorism, the Internet, and Propaganda: A Deadly Combination
INTRODUCTIONThe Internet provides a relatively unregulated and unrestricted place where terrorists can craft and disseminate propaganda through seemingly limitless numbers of websites and social media platforms, tailoring their pitch so as to target...
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The Covert Action Statute: The CIA's Blank Check?
INTRODUCTIONIn October 2015, a New York Times article described how U.S. government attorneys had crafted a legal justification for the raid to kill or capture Osama bin Laden.2 In the article, journalist Charlie Savage made the assertion that the administration's...
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Vol. 8, No. 3, 2016

Deterring Financially Motivated Cybercrime
IntroductionDeterrence is one of the most venerable concepts in the national security lexicon. It refers to the process of manipulating an adversary's cost/benefit calculations to prevent him from doing something you do not want him to do. The concept...
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An Essay on Domestic Surveillance
IntroductionWhoever becomes president in the decades ahead may inherit extensive institutional knowledge (or the capacity to create such knowledge) about almost every citizen's beliefs, concerns, ambitions, interests, fears, actions, intentions, and...
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How Technology Enhances the Right to Privacy - A Case Study on the Right to Hide Project of the Hungarian Civil Liberties Union
IntroductionThe Right to Hide project of the Hungarian Civil Liberties Union (HCLU) is a website dedicated to the promotion of privacy-enhancing technologies. The HCLU developed the www.righttohide.com (and in Hungarian the www.nopara.org) websites to...
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Law Enforcement Access to Data across Borders: The Evolving Security and Rights Issues
IntroductionA revolution is underway with respect to law enforcement access to data across borders. Frustrated by delays in accessing data located across territorial borders, several nations are taking action, often unilaterally, and often in concerning...
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Spying and Fighting in Cyberspace: What Is Which?
IntroductionTraditionally, espionage has inhabited a niche between order and chaos. States have recognized the existence of espionage and enacted domestic legislation to prohibit it, but international law is silent on the subject.1 On the other hand,...
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State Responsibility to Respect, Protect and Fulfill Human Rights Obligations in Cyberspace
(ProQuest: ... denotes non-US-ASCII text omitted.)Introduction: Translating RightsDebate over whether or not international human rights law applies to cyberspace and cyberrelated activities1 has more or less been settled. It does apply, as it would to...
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The 2014 Sony Hack and the Role of International Law
Introduction2014 has been dubbed "the year of the hack" because of the number of hacks reported by the U.S. federal government and major U.S. corporations in businesses ranging from retail to banking and communications. According to one report there...
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Trends and Predictions in Foreign Intelligence Surveillance: The FAA and Beyond
IntroductionTechnological and political developments in the next few years will have a major impact on U.S. national security and the law that governs it, including surveillance law. Part I of this paper provides historical background for the discussion...
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10 Standards for Oversight and Transparency of National Intelligence Services
Executive SummaryThis report aims to enhance the policy debate on surveillance by intelligence services by focusing on two key components: oversight and transparency. Both oversight and transparency are essential to devising checks and balances in a...
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Vol. 8, No. 2, 2016

Rethinking Privacy: Fourth Amendment "Papers" and the Third-Party Doctrine
INTRODUCTIONMost Americans now live in a world where nearly every call or click online leaves a digital trail that can be stored, searched, and stitched together to reveal an intimate portrait of private life. But current law affords little privacy protection...
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Cyber Weapons and Export Control: Incorporating Dual Use with the PrEP Model
INTRODUCTIONHow do existing export control laws treat malware and cyber weapons, and what complications arise with their use? This paper presents a technically grounded framework to examine under what conditions malicious software components might be...
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Dawn of the Intercontinental Sniper: The Drone's Cascading Contribution to the Modern Battlefield's Complexity
Dawn of the Intercontinental Sniper: The Drone's Cascading Contribution to the Modern Battlefield's Complexity PREDATOR:THE SECRET ORIGINS OF THE DRONE REVOLUTION. By Richard Whittle. Henry Holt & Co., New York, 2014, pp 353. $30.00.This is the story...
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The Implications of Trying National Security Cases in Article III Courts
It has been about six years since President Obama promised to close Guantánamo and ignited or, perhaps, reignited the controversy about military tribunals versus Article III courts. That debate has created a certain amount of heat and perhaps not enough...
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Convicted Terrorists: Sentencing Considerations and Their Policy Implications
Stephen Vladeck: When this symposium was organized, there was a lot of consensus about the subject of the first two panels: there should be a discussion of pretrial issues, and there should be a discussion of trial issues. But sentencing was, in many...
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Vol. 8, No. 1, 2015

A New Paradigm of Classified Disclosures
In the aftermath of Edward Snowden's unauthorized release of classified information, the Director of National Intelligence, the Director of the National Security Agency, and other officials in the Intelligence Community described Mr. Snowden's actions...
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Can Technology Prevent Leaks?
The past decade has witnessed an unprecedented explosion in leak prosecutions. Since 2005, the government has charged leakers with violating the Espionage Act of 1917-which makes it a crime for government employees to reveal national defense information...
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"Friend of Humans": An Argument for Developing Autonomous Weapons Systems
"New eras don't come about because of swords; they're created by the people who wield them."- Nobuhiro WatsukiIntroduction1With the introduction of robots2 to the battlefield, critics and activists have raised doubts that echo a long history of opposition...
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No Place in the Military: The Judiciary's Failure to Compensate Victims of Military Sexual Assault and a Suggested Path Forward Using Lessons from the Prison Context
IntroductionKori Cioca was serving the nation in the U.S. Coast Guard when she was raped by her military superior. The incident did not come out of the blue. Her commander began by sexually harassing and verbally abusing her. Cioca complained about her...
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The Wasp's Nest: Intelligence Community Whistleblowing & Source Protection
"Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest formation to or other proper authority of any misconduct, frauds or misdemeanors committed by any officers...
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Vol. 7, No. 3, 2014

A Proposal to Reduce Government Overclassification of Information Related to National Security
INTRODUCTION: THE PROBLEMToday, many reports have concluded that there is too much classification of information, and many former government officials appear to concur.1 For example, the 9/11 Commission found that overclassification is a threat to national...
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Setting the Record Straight: An In-Depth Review of Duty by Robert Gates
Even before former Secretary of Defense Bob Gates's book Duty: Memoirs of a Secretary at War1 hit the shelves, pundits were publishing reviews of the book. Most were unflattering, but few, if any, were fair representations of the entire memoir. Of course,...
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Under the Radar: NSA's Efforts to Secure Private-Sector Telecommunications Infrastructure
When Google discovered that intruders were accessing certain Gmail accounts and stealing intellectual property,1 the company turned to the National Security Agency (NSA) for help in securing its systems. For a company that had faced accusations of violating...
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"On Target": Precision and Balance in the Contemporary Law of Targeting
INTRODUCTIONThe law of targeting lies at the heart of international humanitarian law (IHL). As such it is the fulcrum around which discussion of combat operations revolves. This was the case during the recent war in Iraq,1 and remains so with respect...
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Of Guns and Grotius
INTRODUCTION What is law's responsibility when a new technology transforms the conduct and consequences of war? Does law have responsibility for war at all? If so, then it would seem important to understand the wellsprings of the law that asserts responsibility...
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Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment
INTRODUCTIONIt is commonplace that a war against a terrorist organization, such as al Qaeda, has the following three characteristics. First, it has certain elements of a traditional war: there is a defined enemy; attacks are made by the enemy against...
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Vol. 7, No. 2, 2014

Symposium Introduction: Swimming in the Ocean of Big Data
Little could we at the Journal of National Security Law & Policy have anticipated in February 2013 how prescient our inaugural symposium would be. Just months after the National Security Agency (NSA) General Counsel, Raj De, presented the keynote...
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The NSA and Accountability in an Era of Big Data
Thank you for the introduction and the opportunity to speak today at this distinguished event.1I'd also like to extend my appreciation to the Georgetown Center on National Security and the Law, as well as to the Journal of National Security Law &...
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Big Data: It's Not the Size That Matters
INTRODUCTION"Big Data" has become a ubiquitous phrase in technology circles. The internet and media landscape is littered with superlatives, describing data as a "flood," "deluge," as "astronomical," and "exploding." Gorillas, elephants, and skyscrapers...
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The Democratization of Big Data
In recent years, it has become common for discussions about managing and analyzing information to reference "data scientists" using "the cloud" to analyze "big data." Indeed these terms have become so ubiquitous in discussions of data processing that...
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Big Data before and after Snowden
"[M]y problem with paper is that all communication dies with it. It holds no possibility of continuity."1What a difference a year makes.On February 27, 2013, I had the privilege of moderating the closing panel at the Journal of National Security Law...
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Charting the Future: What to Expect from Big Data
Stephen I. Vladeck (SIV): Marc, I'm going to turn it over to you to introduce the audience to the first case study.Marc Rotenberg (MR): Thank you. With our first case study,1 we're trying to pull in the various elements of detection technologies and...
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Vol. 7, No. 1, 2014

Developing Client-Ready Practitioners: Learning How to Practice National Security Law at Military Law Schools
I. INTRODUCTIONTo lead an untrained people to war is to throw them away.-Confucius"[W]ar is not an independent phenomenon, but the continuation of politics by a different means."1 Likewise, the body politic shapes law.2 Reflecting the political realities...
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Discovering the Artichoke: How Mistakes and Omissions Have Blurred the Enabling Intent of the Classified Information Procedures Act
INTRODUCTIONThe Classified Information Procedures Act (CIPA)1 is not well understood and has become confused with the state secrets privilege almost since its enactment in 1980. These misunderstandings about CIPA have resulted in a split in the federal...
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Legitimacy versus Legality Redux: Arming the Syrian Rebels
On June 13, 2013, Deputy National Security Adviser Ben Rhodes announced that the United States had determined that Syrian forces used chemical weap- ons, including the nerve agent sarin, "on a small scale against the opposition multiple times in the...
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Harmonizing Policy and Principle: A Hybrid Model for Counterterrorism
INTRODUCTIONIn the ongoing and evolving response to terrorism, the United States has had to confront a threat that straddles the line between armed conflict and criminal enterprise. Like traditional warfare, the United States confronts adversaries with...
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Easier Said Than Done: Legal Reviews of Cyber Weapons
IntroductionOn June 1, 2012, author and New York Times reporter David Sanger created a sensation within the cyber-law community. Just over a year previously, Vanity Fair, among other media outlets, reported that a malware package of unprecedented complexity...
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Vol. 6, No. 2, 2013

Train Wreck: The U.S. Violation of the Chemical Weapons Convention
The United States is violating a multilateral arms control treaty. Russia is, too. It's not just some minor accord at stake; it's the 1993 Chemical Weapons Convention (CWC),1 the critical, near-universal undertaking to banish the centuries-old scourge...
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Free Speech aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information
IntroductionThe stakes are higher now than ever before in determining the First Amend- ment protections due government insiders who leak classified information to the press. Prior to the George W. Bush administration, only one person in American history...
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Even If It Ain't Broke, Why Not Fix It? Three Proposed Improvements to the Uniform Code of Military Justice
Some might wonder what military justice has to do with national security It is a fair question. While there is little doubt that the debate over the use of military commissions to try terrorist suspects involves important national secu- rity matters,...
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Educating National Security Lawyers for the Twenty-First Century: The Intersection of National Security Law and International Affairs
The field of national security law has grown enormously over the last decade. U.S. activities devoted to countering terrorism, particularly after 9/11, the wars in Iraq and Afghanistan, the continuing shadow wars against al Qaeda and its affiliates,...
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National Security Law Pedagogy and the Role of Simulations
INTRODUCTIONMuch has been made as of late about the impact of the retracting economy on law students.1 The loss of big firm jobs and the breakdown of the traditional apprenticeship structure have reverberated in law schools, as they struggle to address...
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Chutzpah
INTRODUCTIONTransparency, like sobriety and chastity, is a virtue easy to aspire to but difficult to practice.1 The Administration of President Barack Obama has demonstrated this hard lesson repeatedlyThis article analyzes two examples of the gap between...
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The Dark Future of International Cybersecurity Regulation
States are not likely to consent to new international rules that restrict the use of cyber weapons.Law is a form of cooperation. Certain conditions normally exist when cooperative mechanisms like law emerge and function properly.1 Actors within the system,...
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Unknotting the Tangled Threads of Watergate Lore
Unknotting the Tangled Threads of Watergate Lore LEAK: WHY MARK FELT BECAME DEEP THROAT. By Max Holland. Lawrence, Kan.: University Press of Kansas, 2012. Pp. xiii, 285. $29.95.In the opening sentence of Leak: Why Mark Felt Became Deep Throat, Max Holland...
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Vol. 6, No. 1, 2012

Dead Contractors: The Un-Examined Effect of Surrogates on the Public's Casualty Sensitivity
Casualty sensitivity may be thought of as price sensitivity to the human cost of war.1We're simply not going to go to war without contractors. We have to build that into what we call readiness, what we call training, what we call leadership and what...
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Virtual Checkpoints and Cyber-Terry Stops: Digital Scans to Protect the Nation's Critical Infrastructure and Key Resources
INTRODUCTIONIn the twenty-first century, the Internet has revolutionized our ability to communicate, socialize and engage in commerce, and has become an "essential part of daily life of millions of Americans."1 While it may have begun as a Department...
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CIA and the Rule of Law*
For those working at the confluence of law and national security, the President has made clear that ours is a nation of laws, and that an abiding respect for the rule of law is one of our country's greatest strengths, even against an enemy with only...
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From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism Investigations
INTRODUCTION"[W]e are seeing an increasing number of individuals - including U.S. citizens - who have become captivated by extremist ideology and have taken steps to carry out terrorist objectives, either at home or abroad. It's a disturbing trend that...
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Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?
INTRODUCTIONIn the simplest case: Congress declares war, and does not intrude on the President's solo decision about when the troops come home.1 However, in our time, long wars, such as in Afghanistan and Iraq, occur with great tension between the two...
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Preventive Detention in the Law of Armed Conflict: Throwing Away the Key?
INTRODUCTIONSince 9/11 the U.S. government has been wrestling with the problem of how to deal with the terrorist threat on U.S. soil from al Qaeda and its affiliates. Many aspects of this problem, such as means of capture or targeted killing of suspected...
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The U.S.-China Incidents at Sea Agreement: A Recipe for Disaster
INTRODUCTIONOn May 25, 1968, after making several close passes of the USS Essex, a Soviet Tu-16 Badger bomber crashed into the Norwegian Sea as it was attempting another pass, killing the entire crew.1 Two weeks earlier, Soviet warships had collided...
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Self-Restraint and National Security
INTRODUCTIONThe lawyers didn't think much of the plan to kill Osama bin Laden. It was 1998, and the United States gradually was awakening to the grave threat posed by the Saudi billionaire's al Qaeda terrorist network. Bin Laden's operatives had spent...
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Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies
The last few years have brought forth images that will, unfortunately, stay with us for a long time - Abu Ghraib, waterboarding, extraordinary renditions, and torture memos from the Bush administration. The harm from these actions to individuals, to...
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Vol. 5, No. 2, 2012

Shadow Wars
Those of us who remember the 1980s lived through the Iran-Contra Affair and its labyrinth of arms-for-hostages deals, secret transfers of U.S. government funds, backdoor support for the Nicaraguan Contras after Congress cut off funding, and the duplicity...
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The Great War Powers Misconstruction
INTRODUCTIONThe term "war" is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does...
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Basic Principles of the War Power
INTRODUCTIONThe Framers of the U.S. Constitution assigned to Congress many of the powers of external affairs previously vested in the English king. That allocation of authority is central to America's democratic and constitutional system. When decisions...
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The Continuing Quandary of Covert Operations
In May 2011, shortly after a special operations team of Navy SEALs killed al Qaeda leader Osama bin Laden, there was a fresh surge of enthusiasm for covert operations. That is unfortunate because, behind the scenes, secret warfare is actually in crisis....
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Conducting Shadow Wars
INTRODUCTIONWhen al Qaeda launched the 9/11 attacks, it also thrust the United States on a decade-long (and counting) search for the best way to combat the unconventional threat posed by terrorism. That search evolved into a competition of sorts between...
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Covert War and the Constitution/Covert War and the Constitution: A Response
Editors' Note: The Journal of National Security Law & Policy invited Jules Lobel and Robert F. Turner to debate the constitutionality of covert war for this special issue. Professor Lobel wrote his essay first, and it follows below. Professor Turner...
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The Constitutionality of Covert War: Rebuttals
Editors' Note: The Journal of National Security Law & Policy invited Jules Lobel and Robert F. Turner to write brief rebuttals to each other's essays included in this issue, and these follow below.I. PROFESSOR LOBELProfessor Turner argues that Congress's...
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The Evolution of Law and Policy for CIA Targeted Killing
INTRODUCTIONJust suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. "Mr. President,"...
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White House Decisionmaking Involving Paramilitary Forces
The standard framework for understanding presidential decisionmaking in projecting American power and influence into other countries is to assume that the Administration develops diplomatic, military or covert options which the President then assigns...
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Intelligence Analysis and Planning for Paramilitary Operations
Paramilitary operations - "PM ops" in American spytalk - may be defined as secret war-like activities.1 They are a part of a broader set of endeavors undertaken by intelligence agencies to manipulate events abroad, when so ordered by authorities in the...
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Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis
Presidential advisers, both Democratic and Republican, long ago discovered ways to magnify presidential power at the cost of legal principles and the system of checks and balances. This essay briefly considers the limits to executive branch capacity...
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Outsourcing Covert Activities
Over the past decade, the United States has radically shifted the way it projects its power overseas. Instead of using full-time employees of foreign affairs agencies to implement its policies, the government now deploys a wide range of contractors and...
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Military-Intelligence Convergence and the Law of the Title 10/title 50 Debate
Leon Panetta appeared on PBS Newshour not long after the raid that killed Osama bin Laden.1 He was the Director of the Central Intelligence Agency at that time, and during the course of the interview he took up the question of the CIA's role in the attack....
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