Intelligence Communities, Peer Constraints and the Law
by Ashley Deeks
Widespread disclosures about Western intelligence activities have drawn public attention to intelligence oversight, and caused some critics to doubt whether legislatures and courts can effectively oversee intelligence collection and covert action. This article identifies and analyzes another important source of constraint on intelligence services: their peers. The article posits that the actions of one intelligence service can affect how other services conduct their work and even view their own legal obligations. Specifically, it posits that constraints from peer agencies can complement traditional public oversight, and, in some circumstances, create benefits such as increased rights protections. The paper argues that peer constraints produce real effects that are likely to increase in the coming years, and therefore this underexplored area of agency interactions should be given greater consideration in the ongoing debate on effective oversight.
Russia and Canada have successfully leveraged international legal regimes to strengthen their ability to assert a sovereign presence in their respective Arctic regions. However, despite increasing American activity in the Arctic, the United States government has failed to develop any substantive strategy for sustaining its sovereignty in the region. Specifically, other nations have historically relied on Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS), which allows coastal states to adopt non-discriminatory laws/regulations for prevention of pollution in ice-covered areas, as the basis for their unilateral implementation of environmental safety regulations. However, the United States has historically been opposed to Article 234 reliance due to fears on its possible impacts on freedom of navigation. This article argues that changing the U.S. approach to Article 234 interpretation would allow implementation of a regulatory framework, similar to that of Russia and Canada, to enhance environmental protection, safety of life at sea, security, and maritime domain awareness in the U.S. Arctic.
In 2013, China unilaterally established an Air Defense Identification Zone (ADIZ) over the East China Sea. China has defended the measure as consistent with international norms, while other states challenge this claim. Since the establishment of ADIZ has no express legal basis, but rather is rooted in customary international law, ADIZ are subject to variances and countervailing state action. To provide greater legal clarity on ADIZ and mitigate the risk of miscommunication or conflict in East Asia, this article defines the primary elements of ADIZ, as derived from state practice and principles of international law, and applies them to the present situation in the East China Sea. The article identifies six primary elements of ADIZ and examines China’s actions under each, finding some consistent and some inconsistent with international norms. The article stresses that such a combination increases the risk of conflict in the region, and concludes by recommending the standardization of ADIZ in international airspace through a clear articulation of their primary elements in an appropriate international legal forum.
Terrorism 2.0: the Rise of the Civilitary Battlefield
by Gil Avriel
The rise of territorial terrorist groups – from Boko Haram to Hezbollah to ISIL – has spurred the need for new frameworks for investigating and analyzing the nature of terrorist threats. Terrorist groups around the world have changed the modern battlefield, and have drastically altered the goals of warfighting. Yet, such groups are often described by policymakers, scholars, and international media using traditional, militarily focused terminology that does not adequately capture the civilian-facing nature of modern terrorist threats. This inadequacy leads to a gap between old words and new realities, which leads in turn to erroneous perceptions and inefficient decision-making. Since the fight against terrorism inherently involves both civilian and military spaces, this article proposes a new paradigm for evaluating terrorist groups under “Civilitary Theory.” The article lays out three different civilitary models that can be used for describing the activities and evolution of different terrorist groups.
Coming to Terms with Secret Law
by Dakota S. Rudesill
The allegation that the U.S. government is producing secret law has become increasingly common. This article evaluates this claim, examining the available evidence in all three federal branches. In particular, Congress’s governance of national security programs via classified addenda to legislative reports is here given the first focused scholarly treatment, including empirical analysis that shows references in Public Law to these classified documents spiking in recent years. Having determined that the secret law allegation is well founded in all three branches, the article argues that secret law is importantly different from secrecy generally: the constitutional norm against secret law is stronger than the constitutional norm against secret fact. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing principles for governing secret law, starting with the cardinal rule of public law’s supremacy over secret law.
With increasing network intrusions affecting the U.S. government and American companies, and unsecured connectivity creating new vulnerabilities to cyber attacks, the United States is implementing a whole-of-government, all-tools approach to countering cyber threats. This article discusses the role played by the Department of Justice within this government-wide effort, including its progress in attributing cyber activities to their source, and how attribution can be used to deter, disrupt, and defend against cyber threats. In doing so, the article demonstrates the need for a continued commitment to and discussion around effective cyber security tools.
As private military and security companies (PMSCs) are increasingly hired to perform a variety of tasks in armed conflicts, determining their status under international humanitarian law (IHL) is crucial. Given that most PMSC employees are civilians, a particularly pressing question is whether they are directly participating in hostilities, and are therefore legitimate targets. This article examines contractor activities for the U.S., analyzing them against the narrow interpretation of direct participation in hostilities developed by the International Committee of the Red Cross. The article argues that applying this narrow interpretation would provide U.S. civilian contractors with greater protection on the battlefield than current U.S. law and policy provides.
The Irony of the Iron Dome: Intelligent Defense Systems, Law, and Security
by Daphné Richemond-Barak & Ayal Feinberg
International humanitarian law (IHL) does not directly address intelligent defense systems (IDSs), such as Israel’s Iron Dome. This Article argues that IHL should encourage the development of systems like Iron Dome by conceptualizing IDSs as civil defense. The authors contend that amidst the rise of contemporary conflicts, IDSs provide heightened protection against indiscriminate attacks, consequently affording greater military flexibility without sacrificing civilian safety. Although IDSs challenge the prevailing logic of IHL, which typically focuses on minimizing damage to the opposing side, the Authors argue that failing to incentivize IDSs is contrary to IHL’s overarching humanitarian goals, specifically that of protecting civilians. Conceptualizing IDSs as civil defense better addresses the legal and security dilemmas arising out of their use.
While the United States possesses a powerful cyber arsenal, an array of vague and conflicting legal and policy requirements impede its effective use. One of the most contentious areas of confusion involves unacknowledged, or covert, U.S. activities in cyberspace. While covert activities are traditionally subject to formalistic decision-making and oversight rules, “traditional military activities” (TMA) are generally excepted from these regulations. This Article argues that the current TMA framework does not adequately address military information support operations (MISO) in cyberspace. Because the conduct of covert military activities in cyberspace requires a clear analytical framework to properly identify which activities in cyberspace are TMA, the Author examines the operation of current statutes and lays out a novel TMA framework to assist policymakers.
Proportionality Decision Making in Targeting: Heuristics, Cognitive Biases, and the Law
by Luke A. Whittemore
Proportionality is a core principle of international humanitarian law (IHL), but remains plagued with questions surrounding its application. The principle is susceptible to broad ranges of judgment, and commanders who make proportionality decisions do so under significant uncertainty, subject to a variety of pressures, as well as their own cognitive biases. Such a decision-making environment may result in decisions that deviate from what is expected by rational choice theory. Yet few writers have examined how commanders engage in proportionality analysis as human beings limited by their cognitive capacities, in suboptimal decision-making environments; there are almost no public studies of heuristics, cognitive biases, and IHL principles in targeting decisions. This Article explores how heuristics and cognitive biases might affect proportionality analysis, provides an interdisciplinary approach to IHL targeting principles and heuristics programs, and discusses how future research in this area might develop.