This paper examines the role of legislatures and how judicial review can prompt legislative activity. In the national security arena, more emphasis tends to be placed on the dangers of judicial activity—understood as judicial activism—without adequate acknowledgement of the fact that judicial avoidance can be equally “activist” and can have an impact on the political process.
Post 9/11, facing a similar challenge, and relying on similar constitutional, institutional, and normative principles, the courts in the United States and United Kingdom made different choices, in large part due to distinct conclusions about appropriate institutional roles. Where the courts remained inactive, the U.S., the legislature made no changes to the legal framework authorizing executive power. Where the courts exercised some scrutiny and pointed out constitutional flaws, the U.K., the legislature made some attempts to remedy those faults and make more constitutionally conscious choices. Judicial timidity can encourage legislative disengagement, especially when the challenged action arises in a constitutionally fraught area where the impacted population has no political voice.
Ultimately, such judicial and legislative disengagement significantly compromises the proper functioning of the separation of powers. On June 10, 2019, the U.S. Supreme Court denied cert in the case of Moath al-Alwi, a man detained at Guantanamo since 2002, continuing a decade-long trend of disengagement. As we near the twenty-year anniversary of 9/11, it may be time to consider what form of judicial engagement may prompt better legislative engagement, thereby revitalizing the proper functioning of the separation of powers, in the service of constitutional governance.
Executive Order 12,333 (“EO 12333”) is a 1980s Executive Order signed by President Ronald Reagan that, among other things, establishes an overarching policy framework for the Executive Branch’s spying powers. Although electronic surveillance programs authorized by EO 12333 generally target foreign intelligence from foreign targets, its permissive targeting standards allow for the substantial collection of Americans’ communications containing little to no foreign intelligence value. This fact alone necessitates closer inspection.
This Article conducts such an inspection by collecting and coalescing the various declassifications, disclosures, legislative investigations, and news reports concerning EO 12333 electronic surveillance programs in order to provide a better understanding of how the Executive Branch implements the order and the surveillance programs it authorizes. The Article pays particular attention to EO 12333’s designation of the National Security Agency as primarily responsible for conducting signals intelligence, which includes the installation of malware, the analysis of internet traffic traversing the telecommunications backbone, the hacking of U.S.-based companies like Yahoo and Google, and the analysis of Americans’ communications, contact lists, text messages, geolocation data, and other information.
After exploring the electronic surveillance programs authorized by EO 12333, this Article proposes reforms to the existing policy framework, including narrowing the aperture of authorized surveillance, increasing privacy standards for the retention of data, and requiring greater transparency and accountability.
States have increasingly turned to “gray zone tactics,” or actions that exceed accepted peacetime competition but do not rise to a level likely to trigger a military response, in recent years in order to pursue strategic objectives. Such tactics are often difficult to conclusively orient on the use of force spectrum, which makes determining legally available response options similarly difficult.
Because a use of force framework may not always satisfactorily encompass gray zone tactics, another approach appears necessary. This Article explores the feasibility of analyzing gray zone tactics under an unlawful intervention framework. Though the principle of non-intervention has the potential to more adequately encompass such tactics and expand victim state response options, successful application is likely to meet with several hurdles, illustrating the frustrating nature of gray zone tactics.
Direct Participation in Hostilities in the Age of Cyber: Exploring the Fault Lines
by Brig. Gen. (ret.) David Wallace, Col. Shane Reeves, and Maj. Trent Powell
Throughout history, civilians have contributed to nearly every armed conflict in a variety of roles that confer different protection under international law. They have supplied logistic, economic, administrative, and political support to belligerent parties. When such civilian contributions are indirect and away from battlefields, there is rarely much concern about those participating civilians jeopardizing their protected status under the Law of Armed Conflict (LOAC), which is one of the LOAC’s central aims.
The civilian population and individual civilians enjoy general protections against dangers arising from military operations. Civilians are protected unless and for such a time as they take a direct part in hostilities. An act of direct participation in hostilities by civilians renders them liable to be attacked, and it subjects the participating civilians to prosecution and punishment to the extent that their activity, their membership, or the harm they caused is criminal under domestic law.
The notion of “taking a direct part in hostilities” is one of the most fundamental yet vexing concepts under the LOAC. Its application raises many challenging issues. For example, who precisely is considered a civilian under the LOAC? What conduct amounts to taking a direct part in hostilities? And, at what point does taking a direct part in hostilities begin and end? Understanding and applying the concept of direct participation in hostilities can be challenging. Belligerents increasingly use civilians in capacities that involve greater or more direct participation in hostilities. As complicated as these and related questions may seem, the concept of taking a direct part in hostilities presents even greater difficulties when applied in the context of cyber operations.
This Article provides a background and context on the dangerous trend towards increased civilian participation on modern battlefields and an overview of the legal concept direct participation in hostilities. It next considers Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Tallinn Manual 2.0) rules and commentary as this resource pointedly addresses the notion of taking a direct part in hostilities in cyber operations. Finally, the Article concludes by outlining several important fault lines highlighted by the group of experts behind Tallinn Manual 2.0 in hopes of strengthening “the implementation of the principle of distinction” and, consequently, ensuring greater accountability in warfare.