Masthead
CFIUS Preemption
by Kristen E. Eichensehr
Spurred by concerns about a Chinese-owned wind farm, Texas recently enacted the Lone Star Infrastructure Protection Act to prohibit companies and Texas governmental entities from entering into agreements relating to critical infrastructure with companies that have certain ties to China, Iran, North Korea, or Russia. The Texas statute presents an opportunity to consider the preemptive scope of the federal Committee on Foreign Investment in the United States (CFIUS) process, which reviews inbound foreign investments for national security concerns, takes steps to mitigate risks, and occasionally blocks transactions through presidential action. This Essay argues that when state laws, like the Texas statute, purport to apply to areas within CFIUS’s jurisdiction, they pose an obstacle to the federal process and are subject to preemption. However, the Essay also proposes ways to channel state concerns and local knowledge into the CFIUS process and render it more like “cooperative federalism.”
Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space
by David A. Koplow
The “democratization of space”—referring to the vastly increased private sector engagement in satellite functions—has been one of the most conspicuous and successful recent developments in the field, exploiting the dramatically reduced costs of developing, launching, and operating spacecraft for applications such as reconnaissance and telecommunications. The U.S. government has vigorously endorsed this opportunity and is determined to rely upon commercial sources to provide essential support even for crucial national security space operations. Sequential declarations of official governmental space policy—adopted through Republican and Democratic administrations—have embraced this “outsourcing,” intertwining military and intelligence community programs and functions into private sector and third state spacecraft. This integration of governmental and commercial space assets promises significant cost savings as well as offering more rapid uptake of new space technologies.
However, this intermingling runs afoul of one of the most central requirements of the traditional law of armed conflict: the principle of distinction (or discrimination), which mandates that in combat, states may lawfully direct their attacks only against military objectives, not against civilians or their property. An important corollary of this principle—referred to in this Article as “reverse distinction”—requires a state to separate its military assets from civilian objects. This precaution is necessary in order to spare civilians and their property from the worst ravages of warfare and also to enable the adversary to carry out its primary obligations under the distinction principle: to aim its attacks only against military targets.
This Article examines the growing, persistent U.S. violation of the principle of reverse distinction. As the U.S. national security space assets and functions become increasingly insinuated into private commercial and neutral spacecraft, the separation required by the law of armed conflict is ignored. This U.S. practice is both illegal and unwise, as it threatens to make future conflict in space even wider and more devastating than it would inherently have to be.
Iron Dome and Jus Ad Bellum Proportionality
by Shelly Aviv Yeini
As Israel’s most significant air defense system that can almost hermetically protect Israel’s home front from rockets and missiles, Iron Dome has increased the degree of asymmetry in modern warfare. Unilateral deployment of an advanced air defense system during armed conflict may minimize casualties on the defending side but create blunt contrast in casualty balance. The deployment of Iron Dome during the 2014 Gaza War contributed to the overwhelming asymmetry in civilian casualties—only six in Israel compared with around 1,462 civilians in Gaza—leading to claims of Israel’s lack of compliance with the jus ad bellum principle of proportionality. Iron Dome revolutionized the Israeli-Palestinian conflict and shaped the latest escalation of violence between Israel and Hamas in May 2021.
This Article examines the existing theories of jus ad bellum proportionality and considers whether the extreme casualty asymmetry exacerbated by Iron Dome’s use should influence its application. While contemporary theory stresses the importance of qualitative proportionality, the acute casualty asymmetry resulting from Iron Dome’s use in the 2014 Gaza War and the 2021 Israel-Palestinian crisis has resulted in a paradigm shift toward quantitative proportionality. This Article argues that, while the shift toward quantitative proportionality has a natural “eye-for-an-eye” appeal, it contradicts modern understanding of proportionality in international law. Specifically, the shift impairs the distinction between jus ad bellum and jus in bello and undermines efforts to ensure that technologically sophisticated nations comply with international law. The Article further assesses whether the paradigm shift is desirable and whether the use of advanced air defense systems should influence assessments of proportionality from a qualitative perspective.
401–Forbidden: An Empirical Study of Foreign Intelligence Surveillance Act Notices, 1990–2020
by Sarah Beller
The Foreign Intelligence Surveillance Act (“FISA”) is one of the government’s most powerful spying tools, but the public knows little about how the law is used and cannot hold the government accountable for privacy violations and overreach. FISA requires the government to give official notice to people it spied on before it uses surveillance evidence against them in court. Despite notice being a key oversight mechanism, there has never been a comprehensive investigation of FISA notices or the people who receive them. This Article fills that gap by compiling and publishing the first exhaustive collection of all 401 notices given between 1990 and 2020. Examining the notice recipients leads to two main insights.
First, advocates have hypothesized for years that the government disproportionately uses its surveillance and law enforcement powers against Muslim-Americans, and increasingly against Chinese-Americans. The notice recipients show dramatic demographic and ideological disparities that align with those theories. Although the recipients are a small subset of all FISA targets, they represent a rare empirical look at surveillance in practice, and the trends support calls for increased transparency about and scrutiny of FISA usage to ensure that the same troubling patterns are not present in the larger set of targets.
Second, this group is the entire population of instances where the government has publicly used FISA evidence in court. After the Supreme Court’s 2013 opinion in Clapper v. Amnesty International USA, they are the only people with standing to challenge FISA’s constitutionality. Their cases reveal insurmountable procedural hurdles in litigating against FISA evidence, obstacles that threaten to undermine the adversary system and erase constitutional protections for criminal defendants.