Volume 9

Issue 1

What Judges Say and Do in Deciding National Security Cases: The Example of the State Secrets Privilege
by Judge Anthony John Trenga

From the criminal trial of Aaron Burr on charges of treason to modern-day litigation involving the CIA, the state secrets privilege presents a thorny issue for federal judges. Judge Trenga examines the legal issues at the heart of this privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests, and military secrets—and the two primary doctrinal tracks judges invoke. Then, based on interviews with thirty-one federal judges, Judge Trenga offers insights into how judges think about applying the state secrets privilege to sensitive material.

Invisible Injuries: Concussive Effects and International Humanitarian Law
by Professor Michael N. Schmitt and Major Chad E. Highfill

How can we protect civilians in combat areas from subtle brain injuries as well as more visible physical injuries? Modern weapons of war, as used in Iraq and Afghanistan, have been found to cause traumatic brain injury outside their immediate blast radius through concussive effects. In this article, Professor Schmitt and Major Highfill discuss the potential implications of such injuries for international humanitarian law, and consider concussive effects through the established principles of the laws of war with respect to civilians: proportionality and precaution.

When Terrorists Govern: Protecting Civilians in Conflicts with State-Building Armed Groups
by Mara R. Revkin

The emergence of terrorist groups engaging in the dual functions of warfare and governance necessitates the implementation of a new targeting doctrine. Existing counter-terror targeting doctrine has resulted in the death of civilians and destruction of objects, which ultimately implicates important international humanitarian law considerations. Revkin explores the consequences of the use of the current targeting doctrine and provides recommendations that promote greater adherence to international humanitarian law.

Doxfare: Politically Motivated Leaks and the Future of the Norm on Non-Intervention in the Era of Weaponized Information
by Ido Kilovaty

In Doxfare, Kilovaty uses the consequences of the Russian hacking of the Democratic National Committee’s email servers during the 2016 Presidential election as an impetus to analyze how international law norms against non-intervention are challenged by recent cyber exploitations.  Kilovaty argues that the standards of “coercion” and “intervention,” long staples of the international law lexicon, are ill-fitted to the debate over strategic cyber infiltration and leaks by hostile nation states. In their place, he proposes the new norm against non-intervention of “doxfare” which could more fully deter the weaponization of information by geopolitical rivals.

A State of Complicity: How Russia’s Persistent and Public Denial of Syrian Battlefield Atrocities Violates International Law
by Captain Robert Lawless

Despite overwhelming evidence offered by States and other members of the international community, Russia has continued to deny the Syrian government’s responsibility for numerous attacks on civilians. Lawless asserts that Russia is in violation of international law under the theory of State complicity, based on its repeated denial of the Syrian government’s wrongdoing and its implicit encouragement of the regime’s human rights atrocities. He then considers the legal consequences of finding Russia responsible under international law, as well as the prospects for holding Russia accountable.