The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’ roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III court; the effort to understand the existing statutory language in light of new and emerging technologies; the tension among constitutional rights, the need for information, and the implications of increasingly broad surveillance programs; and the court’s growing role in conducting oversight and having to respond to Executive Branch errors, noncompliance, and misrepresentations. This Article details these tensions in light of the courts’ jurisprudence, noting the areas where we are likely to continue to see concerns in the implementation of the Foreign Intelligence Surveillance Act going forward.
Contemptuous Speech: Rethinking the Balance Between Good Order and Discipline and the Free Speech Rights of Retired Military Officers
by Pavan S. Krishnamurthy & Javier Perez
The first of its kind to analyze free speech limitations of retired military members, this Article analyzes Article 88 of the Uniform Code of Military Justice, which prohibits officers from speaking contemptuously against the sitting President of the United States. Following the United States Supreme Court’s decision to deny certiorari in Larrabee v. United States, the Court ensured that retired service members could still be court-martialed for crimes they commit during their retirement. Consequently, the Supreme Court has in effect extended military justice principles, including those limiting free speech, to retired military officers. In light of recent decisions by retired Generals and Admirals to issue particularly scathing criticisms of a sitting President, this paper questions whether the current legal regime balances good order and discipline against retired military officers’ free speech rights in a manner that is legally or practically sound. After presenting theories of free speech, analyzing Article 88 of the Uniform Code of Military Justice, and reviewing particular statements in light of Larrabee and its predecessors, this Article presents legislative and judicial reforms which can, in the authors’ opinions, better balance the freedom of retired military officers against the security interests of the United States Armed Forces.
This Article upsets current understandings of the Espionage Act of 1917 by challenging a key, long-engrained assumption about the statute itself. The Espionage Act is not the highly punitive behemoth that shrouds enormous swathes of the government in secrecy, as is presently imagined. The term “national defense” does not capaciously expand to cover any government secret a prosecutor might deem worth protecting; rather, “national defense” actually has a highly specific and coherent meaning—one that is dramatically narrower than anyone has realized.
Collective Cyber Countermeasures?
by Michael N. Schmitt and Sean Watts
Countermeasures are an established and instrumental aspect of the international legal system of self-help. Although countermeasures are of long lineage, it was only with the advent of cyber operations that they took center stage in international law discourse among states, as they appeared to offer injured states a legal basis for “hack backs.” This article examines the evolution of approaches to collective countermeasures initiated between states and reflected in the work of the International Court of Justice and the International Law Commission. Upon this groundwork, we survey and assess the international security conditions relevant to the issue of collective countermeasures, with particular emphasis on their use in cyberspace. We conclude that, though the issue remains unsettled as a matter of law, collective cyber countermeasures on behalf of injured states, and support for the countermeasures of the injured state, are lawful.
(Photo: Wikimedia Commons)