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.

Issue 2

Managing National Security Risk in an Open Economy: Reforming the Committee on Foreign Investment in the United States                                                  by Jonathan Wakely & Andrew Indorf

Congress has recently dedicated itself to reforming the Committee on Foreign Investment in the United States (CFIUS) to better address emerging threats to national security. Wakely and Indorf offer a comprehensive background and practical guidance, built on fundamental principles, for that reform.

Autonomous Weapon Systems and the Limits of Analogy

By Rebecca Crootof

Rebecca Crootof argues that analogies often used to describe autonomous weapon systems (AWS) misrepresent their legally salient traits and limit our conception of how AWS might develop. She suggests that because analogical reasoning fails in this realm, new supplemental law is needed to appropriately and effectively regulate AWS.

The Duty to Disobey Illegal Nuclear Strike Orders
by Anthony J. Colangelo

Professor Colangelo asserts that an order to strike with nuclear weapons to achieve a military objective would likely be manifestly illegal, if the strike were near civilians and conventional weapons could achieve a similar result. Failure to disobey such an order would be a war crime, he suggests, no matter whether the order were given and carried out by state or non-state actors.

Do NATO Obligations Trump European Budgetary Constraints?
by Federico Fabbrini

Professor Fabbrini examines the relationship between EU budgetary constraints and NATO defense-spending obligations. He argues that EU budget rules do not legally prevent EU member states from fulfilling their NATO obligations, but make it politically difficult to do so. The article also considers whether a broader European defense union could overcome the problem of European defense underspending and revive the transatlantic alliance, which President Trump has questioned.

Access Control: Freedom of the Seas in the Arctic and the Russian Northern Sea Route Regime                                                 
by Sean Fahey

Commander Fahey analyzes Russia’s regulation of the Northern Sea Route (NSR), which may unlawfully limit navigational rights and freedoms at a time when diminishing Arctic sea ice is increasing international shipping activity in the region. Fahey asks whether state practice could further undermine the freedom of navigation in the Arctic: few flag states are protesting Russia’s NSR regime, and Canada is following Russia’s expansive regulatory lead in the waters off its own Arctic coast.