Volume 3

Issue 1

Can It Really Work? Problems with Extending EINSTEIN 3 to Critical Infrastructure
By Steven M. Bellovin, Scott O. Bradner, Whitfield Diffie, Susan Landau, and Jennifer Rexford

In an effort to protect its computer systems from malevolent actors, the U.S. government has developed a series of intrusion-detection and intrusion- prevention systems aimed at monitoring and screening traffic between the internet and government systems. With EINSTEIN 3, the government now may seek to do the same for private critical infrastructure networks. This article considers the practical considerations associated with EINSTEIN 3 that indicate the program is not likely to be effective. Considering differences in scale, the inability to dictate hardware and software choices to private parties, and the different regulatory framework for government action in the private sector, this Article discusses why the government may be unable to effectively implement EINSTEIN 3 across the private networks serving critical infrastructure. Looking at what EINSTEIN aims to protect, what it is capable of protecting, and how privacy considerations affect possible solutions, this Article provides suggestions as to how to amend the EINSTEIN program to better protect critical infrastructure.

Loving the Cyber Bomb? The Dangers of Threat Inflation in Cybersecurity Policy
By Jerry Brito & Tate Watkins

There has been no shortage of attention devoted to cybersecurity, with a wide range of experts warning of potential doomsday scenarios should the government not act to better secure the Internet. But this is not the first time we have been warned of impending dangers; indeed, there are many parallels between present portrayals of cyberthreats and the portrayal of Iraq prior to 2003, or the perceived bomber gap in the late 1950s. This Article asks for a better justification for the increased resources devoted to cyber threats. It examines the claims made by those calling for increased attention to cybersecurity, and notes the interests of a military-industrial complex in playing up fears of a “cyber Katrina.” Cybersecurity is undoubtedly an important policy issue. But with a dearth of information regarding the true nature of the threat, it is quite difficult to determine whether certain government policies are warranted—or if this merely represents the latest iteration of threat inflation benefitting private and parochial political interests.

Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action
By Andru E. Wall

Modern warfare requires close integration of military and intelligence forces. The Secretary of Defense possesses authorities under Title 10 and Title 50 and is best suited to lead US government operations against external unconventional and cyber threats. Titles 10 and 50 create mutually supporting, not mutually exclusive, authorities. Operations conducted under military command and control pursuant to a Secretary of Defense-issued execute order are military operations and not intelligence activities. Attempts by congressional overseers to redefine military preparatory operations as intelligence activities are legally and historically unsupportable. Congress should revise its antiquated oversight structure to reflect our integrated and interconnected world.

Advantaging Aggressors: Justice & Deterrence in International Law
By Paul H. Robinson & Adil Ahmad Haque

Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use. There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its rules are perceived as obviously unjust. This common sense perspective is supported by social science research showing the importance of law’s moral credibility in gaining assistance and compliance, in reducing resistance and subversion, and in helping to shape shared norms. The current practice of victim states ignoring legal limitations, with studied indifference to such “violations” by the international community, only legitimizes and habituates law-breaking, further undermining international law’s moral credibility. One important opportunity for reforming international law is currently being squandered. The Assembly of State Parties to the International Criminal Court has recently approved a resolution defining the international crime of aggression. However, rather than confront international law’s existing problems, the drafters compounded them by imposing individual criminal liability on leaders of victim states who authorize defensive force in violation of flawed current law. Fortunately, the resolution will not go into effect until 2017 at the earliest. There is still time to change course.

Issue 2

History, Hamdan, and Happenstance: “Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy”
By Haridimos V. Thravalos

The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.

This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.

The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.

Distributive Justice in National Security Law
By Daphne Barak-Erez

When collecting information about possible terrorist attacks, national security agencies may have to choose between competing systems of implementation, all infringing individual rights. Should they collect information by indiscriminately wiretapping communications in the population at large or by implementing harsher means, such as investigations under arrest, against individuals known to be involved in terrorist activities? Assuming that both policy options, at least in certain cases, are equally effective, this question highlights the fact that many national security decisions entail distributive implications. This Article analyzes the centrality of distributive justice considerations for the understanding of national security law at a time that policy decisions on anti-terrorism measures can either take the form of indiscriminate large- scale infringements of individual rights, such as body-scans, or much more targeted forms, which place additional burdens on suspects. This choice, which had so far been overlooked, becomes more and more relevant as new technologies make it easier to apply methods of surveillance indiscriminately.

The focus on the choice between policies with different distributive implications cuts against the traditional understanding of national security law as based on two choices: allowing national security threats to continue unabated, which may result in a catastrophe ensuing from a terrorist attack, or violating rights through the government’s use of preventive measures designed to confront the threat. This pattern of analysis has obscured a fundamental question to the implementation of measures for preventing anti-terrorism: what is a just distribution of the resulting burdens?

This Article examines the hidden side of national security law by focusing on the choice between using harsh anti-terrorism measures on a selective basis, or using anti-terrorism measures that entail less harmful infringements of individual rights but affect much larger segments of the general population.

The Green Arms Race: Reorienting the Discussions on Climate Change, Energy Policy, and National Security
By Siddhartha M. Velandy

In the midst of a shifting international order, the U.S. Department of Defense stands uniquely positioned to intensify global innovation in the energy arena. This Article describes the mechanics by which DoD can ignite a mutually-beneficial green energy “arms race.” In this role, the military reprises a historical function of driving technological advancement, combining its operational requirements and legislative prerogatives to grow investment and create consistent demand. The Article also discusses the legal and regulatory regimes that may be enlisted and exported through transgovernmental networks to spread the benefits of the use of alternative fuels and increased energy efficiency, the potential impact of the Green Arms Race on global climate change efforts, and the limits on the impact of greening the force in bringing about positive change. The Green Arms Race has the potential to succeed where existing international and unilateral efforts to encourage efficient energy innovation and address climate change have failed.

National Security Crime
By Erin Creegan

Although there is no shortage of attention to each of the varied threats to national security, each of these threats (and the available government responses to them) are most often treated as independent subject matters. Yet there are significant connections between these apparently distinct criminal offenses, although little work has been done to draw such connections and develop a framework for studying national security criminal law as a unified discipline. This Article takes the first step towards building such a curriculum by integrating the criminological and legal aspects of crime in the national security realm. It examines four categories of crimes—treason, espionage, sabotage, and terrorism—and the applicable federal statutes available to prosecutors to combat these threats to national security. The Article then proceeds to draw upon interdisciplinary connections across these disparate crimes to examine why individuals engage in both violent and “white-collar” national security crime. Looking at tools ranging from wiretap authorizations to classification systems, the Article addresses what the Government can do to detect, prevent, prosecute and punish national security crimes.

Pray Fire First Gentlemen of France: Has 21st Century Chivalry Been Subsumed by Humanitarian Law?
By Judge Evan J. Wallach

International humanitarian law is, or should be, applicable both by and to all battlefield participants, civilian and military alike. The positive norms of chivalry, as part of law of war, are uniquely applicable to combatants, both legal and illegal. There is often a clear distinction between the two although lines may blur in situations other than war (e.g., peacekeeping operations). When, however, non-military noncombatant personnel interact with protected persons, IHL does not require conduct unique to chivalry: courage (including moral courage), courtesy, or loyalty. Thus, unless all law of war and the national military codes are subsumed in IHL, and if the positive elements of chivalry are essential to control of combat improprieties, then they continue to be needed and the British Manual is incorrect. The thesis of this Article is that chivalric elements are essential, and that the new British Manual erred in its elimination of chivalry as a positive required principle of the law of war.