The U.S. private sector is vulnerable in cyberspace. In response, an increasingly mainstream national security argument calls for amending U.S. law to permit private sector actors to employ so-called “active defense” measures—a group of loosely-defined technical measures that fall on a spectrum between passive firewalls (clearly legal) and offensive counterattacks (clearly illegal). Proponents argue that such measures could slow, identify, or even deter offenders in cyberspace; provide unclassified evidence for use in civil cases; or support a government response. Critics warn of careless or incompetent actors and second-order effects—of companies starting a war. Strikingly, the U.S. debate over active defense measures is missing a comparative view of the rest of the world. There are no answers to straightforward descriptive questions, such as, “are active defense measures illegal (or otherwise constrained) in other countries?”This Article is the first sizable study to answer some of those basic comparative questions. It surveys the laws of twenty countries, (1) finding a remarkable uniformity of approaches that, while not yet rising to the standard of an international norm or custom, is closer than most assume and (2) concluding that even if Congress relaxes U.S. law to permit certain private sector active defense measures, laws around the world will continue to constrain private sector activity.
The phenomenon of battlefield detention by non-state groups is increasingly common and has been recently brought into focus by events in Syria where, as part of the international effort to counter the Islamic State of Iraq and Syria (“ISIS”), the United States and coalition partners have worked “by, with, and through” a non-state armed group called the Syrian Democratic Forces (“SDF”). That successful partnership has resulted in significant battlefield victories—and the resultant detention by SDF of more than 2,000 ISIS foreign fighters. A detention conundrum has, however, been created by the modern reliance by states on non-state actors for counterterrorism operations, and their simultaneous reluctance to accept the return of terrorists captured and detained by non-state actors in the course of those operations. Specifically, SDF partners have signaled that they do not have the capacity or authority for the continued detention of the foreign terrorist fighters captured in the course of the successful counter-ISIS effort. Moreover, the countries of origin of these captured terrorists are reluctant to accept their return, citing to legal obstacles to repatriation. The inability of non-state partners to detain foreign fighters indefinitely, coupled with the refusal of countries to repatriate their nationals, risks the release of dangerous terrorists. To assist in navigating this complex situation, this Article illuminates the international and comparative legal issues associated with the detention of terrorists by non-state armed groups and clarifies the legal issues relating to the repatriation of detained foreign terrorist fighters by the SDF in Syria. Through this analysis, the Article ultimately demonstrates that international law and the domestic law of many international partners generally permits the lawful transfer of foreign fighters from the custody of a non-state entity to government authorities for prosecution, rehabilitation, or other appropriate means of preventing their return to terrorism.
On June 1, 2018, Razan Al-Najjar, a twenty-one-year-old Palestinian paramedic, was killed by Israeli fire during demonstrations along the Israel-Gaza border. Her death triggered intense debates about whether Israeli soldiers intentionally targeted her, in violation of international law. Despite the many fact-finding efforts, the facts are not settled, the legal debates linger, and meaningful accountability seems further away than ever. This episode highlights the growing focus of wartime investigations on legal truth. Furthermore, it suggests that, in the context of the Israeli-Palestinian conflict, framing facts in legal terms triggers backlash, anger, and denial. In other words, using legal terminology to frame public perception of wartime events is ineffective for dispute resolution. This Article explores this general claim employing interdisciplinary theories and methods using the 2018 Gaza border demonstrations as an illustrative example. It then tests these hypotheses with a 2017 survey experiment fielded in Israel with a representative sample of 2,000 Jewish-Israeli citizens. This experimental data provides systematic evidence of the effect legal labels have on people’s beliefs about contested wartime actions committed by their fellow nationals. The findings demonstrate that discussing events using common legal labels, such as “war crimes,” significantly decreases Jewish-Israelis’ willingness to believe information about Palestinian casualties and fails to stimulate feelings of empathy toward the victims. Jewish-Israelis tend to reject facts described using war crimes terminology and are more likely to feel anger and resentment than guilt or shame. These findings contribute to the broader debate about the role played by international law during armed conflicts, suggesting that, rather than serving as an educational and informative tool, it is cynically perceived as a political tool.
This Article explores the intersection of International Criminal Law and domestic legal systems in the counterterrorism arena, with a particular focus on the United Nations Security Council’s promulgation of relevant legal obligations. This account critically examines the ways in which ICL, and international law more broadly, can address terrorism, and then investigates the viability of expanding the International Criminal Court’s jurisdiction to encompass crimes of terrorism. In analyzing ground-breaking UNSC resolutions imposing wide-ranging counterterrorism duties on states, I shed light on that organ’s “quasi-legislative” exercise of its powers and the implications for the implementation of those obligations in domestic law. Ultimately, I argue that the global counterterrorism campaign can only be pursued meaningfully through what I term a “transnational network of criminal and civil law.” This system is based on giving states the power to write and enforce their own counterterrorism laws under a UNSC mandate.
Issue 2: Student Articles Edition
Public accountability defenses for whistleblowers who reveal national security information to the media or the public have largely failed. Courts have rejected such arguments and Congress has not provided a statutory defense. This Article argues that the appropriate place to consider public accountability factors in whistleblower cases is at sentencing. Courts can take, and have taken, substantive First Amendment rights into consideration at sentencing as mitigating factors. Courts do so rarely and cautiously, usually in moments of perceived breakdown in the political processes that facilitate the more typical role of individual rights as limits on government action. Examining historical sentencing practices in fugitive slave rescue and conscientious objector cases, this Article demonstrates the historical validity of taking substantive constitutional interests into account at sentencing—and that the constitution does not evaporate with a verdict. This Article also argues that a moment of breakdown is occurring with regards to the Espionage Act and use of rights as limitations on government action. Because of this failure, courts should implement sentence mitigation on the basis of First Amendment interests in whistleblower cases, providing an immediate pragmatic solution and potentially prompting a more sustainable long-term approach to government whistleblowers.
Described by some scholars as the “crown jewel of transparency,” the Freedom of Information Act (“FOIA”) allows the public to request records from executive agencies in order to provide insight into government activities and their legal justifications. To balance competing interests in public disclosure and government secrecy, FOIA also contains nine exemptions under which agencies may withhold requested information. However, FOIA’s first exemption, which allows the government to withhold information properly classified by executive order in the interest of national defense or foreign policy, has proven nearly impenetrable. Despite congressional efforts to establish de novo review of withholdings under FOIA, many commentators suspect that courts rubberstamp the government’s Exemption 1 arguments. This Article is the first to test that claim empirically. It systematically classifies agencies’ court submissions by quality and analyzes that quality’s effects on case disposition. In this study, courts upheld the government’s Exemption 1 claims despite substandard submissions 76.2% of the time, and submission quality did not impact case outcome in any statistically significant way. This finding implicates not only the effectiveness of FOIA, but also key pillars of the American legal tradition, such as the presumption of transparency, democratic principles, the legitimacy of the judicial process, and inter-branch checks on executive authority. The Article finally presents a probability reporting requirement as a novel and practically implementable solution that would not only encourage more meaningful judicial review, but would also incentivize the government to consider more carefully what information merits continued classification.
Examining the Anomalies, Explaining the Value: Should the USA FREEDOM Act’s Metadata Program be Extended?
by Susan Landau & Asaf Lubin
Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially seemed to be working well, although the fact that from 40 court orders in both 2016 and 2017, the NSA collected hundreds of millions of CDRs created public concern. Then in June 2018 the NSA announced it had purged three years’ worth of CDRs due to “technical irregularities”; later the agency made clear that it would not seek the program’s renewal.
This Article demystifies these situations, analyzing how forty orders might lead to the collection of several million CDRs and providing the first explanation that fits the facts of what might have caused the “technical irregularities” leading to the purge of records. This Article also exposes a rather remarkable lacuna in Congressional oversight: even at the time of the passage of the USA FREEDOM Act a changing terrorist threat environment and changing communications technologies had effectively eliminated value of the CDR collection. We conclude with recommendations on conducting intelligence oversight.
Defending Against the Military: The Posse Comitatus Act’s Exclusionary Rule
by Anthony J. Ghiotto
On any given day, American military members engage in domestic law enforcement activities. Whether it’s patrolling the border, interdicting the flow of illegal drugs, monitoring internet file-sharing sites looking for potential child sex offenders, or representing the United States in federal court to enforce federal immigration laws, there has been a gradual encroachment by the military into civilian law enforcement matters. While these activities are often met with a presidential endorsement or a shrug of the shoulders by the American people, many of them are in fact a violation of federal law. The Posse Comitatus Act, passed by Congress at the end of Reconstruction, expressly prohibits the military from enforcing civilian laws. In practice, though, the Posse Comitatus Act is rarely, if ever, enforced. The judiciary is complicit in the weakening of the Posse Comitatus Act by both limiting what constitutes a violation of the Act and then refusing to apply the exclusionary rule to exclude any unlawfully obtained evidence when a violation does occur.
Nonetheless, as the military increasingly encroaches into American society, the purpose and enforcement of the Posse Comitatus Act via the exclusionary rule needs to be reexamined; otherwise, there may be little legal protection against a gradual erosion into military control. This Article makes a relatively straightforward argument: the Constitution affords each American a right to be free from military control and that the Posse Comitatus Act is an effort by Congress to protect that constitutional right. As a statute designed to safeguard a constitutional right, there must be an effective enforcement mechanism. The most appropriate enforcement mechanism available for violations of the Posse Comitatus Act is the exclusionary rule, which would allow courts to suppress evidence obtained in violation of the Posse Comitatus Act in order to deter similar encroachment in the future.
While seemingly straightforward, this argument is in fact novel. Courts and scholars have long struggled with the applicability of the exclusionary rule to the Posse Comitatus Act. Courts have been hesitant to place the Posse Comitatus Act in its true constitutional context and the growing trend is to apply the exclusionary rule only to the most egregious intentional Fourth and Fifth Amendment violations. This Article contributes to the discussion by grounding the Posse Comitatus Act in its constitutional context. By doing so, it supports the establishment of a Posse Comitatus Act exclusionary rule, built upon procedural due process, which serves to preserve the Posse Comitatus Act as an effective subconstitutional check protecting the right to be free from military control.
Unnamed & Uncharged: Next Friend Standing and the Anonymous Detainee
by Scott Harman-Heath
Since before the founding of the United States, the writ of habeas corpus has been an important tool for challenging executive detention. The Supreme Court has carefully limited who may petition for a writ of habeas corpus. Pursuant to a doctrine called “next friend standing,” third parties are sometimes allowed to petition for the release of detainees who are unable to litigate on their own behalf. In Whitmore v. Arkansas, the Supreme Court held that in order for a federal court to exercise jurisdiction over a next friend petition, the third party must demonstrate a significant connection with the detainee. But it is, of course, impossible to establish a significant connection to a detainee without knowing his identity. Thus, by withholding a detainee’s identity and precluding that detainee from accessing judicial process, the government can constructively suspend access to habeas corpus. In one recent case, the U.S. government attempted to exploit this doctrinal shortcoming: In late 2017, the government detained a U.S. citizen for three months without access to judicial process—a constructive suspension of the detainee’s right to access habeas corpus. Protracted litigation was ongoing when the government announced and executed an agreement to release the detainee to a third country, without judicial resolution of the lawfulness of his detention. This Article examines how courts can respond to similar situations when they arise in the future. It argues that courts can address this problem by exercising the power to ascertain their own jurisdiction. This power, the Article contends, can be used to require the government to answer series of simple questions. These questions will facilitate expedient determinations by federal courts on the question of whether a next friend exists and will protracted jurisdictional disputes between a putative next friend and the government. Ultimately, the Article contends that it is possible for federal courts to remain faithful to both the Constitution’s promise of access to habeas corpus and the Supreme Court’s opinion in Whitmore.
To effectively counter current and emerging threats to U.S. and global security, the United States needs to rely on defense cooperation from allies and partners. That defense cooperation is frequently reflected in bilateral defense-related treaties. The United States has many such treaties and it continues to negotiate more. Using a selection of U.S. defense-related treaties as exemplars, this Article explores how states and their lawyers should prioritize the international legal obligations of defense-related treaty partners, when the partners’ treaty obligations to one belligerent and their customary law neutrality obligations to the opposing belligerent in an international armed conflict are incompatible. The Article proffers that an analogous application of the treaty conflict framework from Article 30 of the Vienna Convention on the Law of Treaties is the appropriate methodology to use. Further, this Article examines the potential consequences, under the law of state responsibility, when a partner nation chooses to uphold its treaty obligations to one belligerent and necessarily breaches its neutrality obligations to the opposing belligerent.