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.
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.