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401–Forbidden: An Empirical Study of Foreign Intelligence Surveillance Act Notices, 1990–2020
Sarah Beller [*] [Full text of this Article in PDF is available at this link] I. Introduction As Professor Xi Xiaoxing and his family slept, a dozen armed Federal Bureau of Investigation (“FBI”) agents broke into their house and arrested him.[1] The government charged Xi with selling trade secrets to China[2] and Temple University subsequently stripped him of his position as Chair of the Physics Department.[3] Professor Xi then received a one-sentence letter: The United States of America . . . provides notice to defendant...
Collective Cyber Countermeasures?
Michael N. Schmitt & Sean Watts[*] [Full text of this Article in PDF is available at this link] I. Introduction In May 2019, during remarks at the annual International Conference on Cyber Conflict, Estonian President Kersti Kaljulaid offered her government’s views on a number of key international legal questions relating to cyberspace.[1] Expressing concern at the growing frequency of malicious cyber operations, she announced the following: Estonia is furthering the position that states which are not directly injured may apply...
Before “National Security”: The Espionage Act of 1917 and the Concept of “National Defense”
Daniel Larsen[*] [Full text of this Article in PDF is available at this link] I. Introduction The Trump Administration’s 2019 indictment of Julian Assange[1] under the Espionage Act of 1917[2] set off a wave of alarm across the press.[3] A decade earlier, the Obama Administration had launched what was called a “war on leakers”[4] as it became the first administration in history to regularly deploy the Espionage Act against sources who passed classified information to journalists.[5] The Trump Administration became the second.[6]...
Contemptuous Speech: Rethinking the Balance Between Good Order and Discipline and the Free Speech Rights of Retired Military Officers
Pavan S. Krishnamurthy & Javier Perez[*] [Full text of this Article in PDF is available at this link] I. Introduction On June 3, 2020, General (ret.) James Mattis addressed protesters who were physically dispersed from Lafayette Square to facilitate what he considered to be a photo opportunity by President Trump at St. John’s Church in The Atlantic: I have watched this week’s unfolding events, angry and appalled . . . . The protests are defined by tens of thousands of people of conscience who are insisting that we live up to...
The Evolution and Jurisprudence of the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review
Laura K. Donohue[*] [Full text of this Article in PDF is available at this link] I. Introduction In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to govern domestic electronic intercepts undertaken for foreign intelligence purposes.[1] The statute represented the culmination of years of hearings directed to understanding the scope of surveillance programs conducted with little to no oversight that had resulted in the collection of significant amounts of information on U.S. citizens.[2] It also reflected...
Direct Participation in Hostilities in the Age of Cyber: Exploring the Fault Lines
Brig. Gen. (ret.) David Wallace, Col. Shane Reeves, and Maj. Trent Powell [*] [Full text of this Article in PDF is available at this link] I. Introduction Civilians contribute to nearly every war effort, and always have. Throughout history, non-military personnel have supplied logistic, economic, administrative, and political support to parties in armed conflicts. When civilian contributions are indirect and away from battlefields, there has historically been little concern about those participants jeopardizing their protected...
Online Edition
U.S. v. Al Bahlul: Where It’s Been and Where It’s Going
On November 13, 2001 then-President George W. Bush issued a military order that would forever be remembered. His military order “called for the [S]ecretary of [D]efense to detain non-citizens accused of international terrorism.” Specially, the order applied to members of al Qaeda, and “all those who have engaged in, aided, or conspired to commit international terrorist acts against the United States or its citizens.” The Secretary of Defense “[was] charged with establishing military tribunals (also called military commissions) to conduct trials of non-citizens accused of terrorism either in the United States or in other parts of the world.” Then-President Bush’s military order created the United States (U.S.) Military Commissions that have been the center of continued national and international criticism.
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So You’re Telling Me There’s A Chance: How the Articles on State Responsibility Could Empower Corporate Responses to State-Sponsored Cyber Attacks
Assistant Attorney General for National Security John P. Carlin Delivers Remarks on the National Security Cyber Threat at Harvard Law School
Assistant Attorney General for National Security John P. Carlin delivered remarks at Harvard Law School on Thursday, December 3rd at an event hosted by the Harvard National Security Journal.
John Bellinger Visits Harvard Law School
In wide-ranging remarks at Harvard Law School on Friday October 16 2015 John Bellinger, now a partner Arnold & Porter LLP, reflected on his 29-year legal career in both the public and the private sectors, discussed international law, and encouraged students to pursue careers in national security.
The Mediterranean Migrant Crisis: Key Considerations for the UN Security Council
The recent tragedies involving migrants in the Mediterranean have stoked urgent calls for UN action.
The Historic Opening to China: What Hath Nixon Wrought?
When President Obama hosts Chinese leader Xi Jinping at the White House this week, he will do so as the eighth US president, starting with Richard Nixon, to engage with China based on a failed strategy. This article revisits a Foreign Affairs article—”Asia After Vietnam”—authored by Richard Nixon in October 1967.
Cross-eyed: Planning When Host-Nation and Intervener Rule of Law Strategies are Unaligned
Core Synergies in Israel’s Strategic Planning: When the Adversarial Whole Is Greater Than the Sum of Its Parts
To best serve Israel, the country’s strategic studies community should favor more conceptual or “molecular” assessments of expected security perils.
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The Hidden Cost of Drone Combat: Soldiers’ Mental Health
While policymakers may argue that military drone combat presents no risk to American forces, the battle scars for drone operators are more psychological than physical. We should support the mental health of those soldiers we task with operating drones.
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