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.”
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.
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.
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.
By Nadiya Kostyuk and Susan Landau
In recent decades, the U.S. National Institute of Standards and Technology (NIST), which develops cryptographic standards for non-national security agencies of the U.S. government, has emerged as the de facto international source for cryptographic standards. But in 2013, Edward Snowden disclosed that the National Security Agency had subverted the integrity of a NIST cryptographic standard—the Dual_EC_DRBG—enabling easy decryption of supposedly secured communications. This discovery reinforced the desire of some public and private entities to develop their own cryptographic standards instead of relying on a U.S. government process. Yet, a decade later, no credible alternative to NIST has emerged. NIST remains the only viable candidate for effectively developing internationally trusted cryptography standards.
Cryptographic algorithms are essential to security yet are hard to understand and evaluate. These technologies provide crucial security for communications protocols. Yet the protocols transit international borders; they are used by countries that do not necessarily trust each other. In particular, these nations do not necessarily trust the developer of the cryptographic standard.
Seeking to understand how NIST, a U.S. government agency, was able to remain a purveyor of cryptographic algorithms despite the Dual_EC_DRBG problem, we examine the Dual_EC_DRBG situation, NIST’s response, and why a non-regulatory, non-national security U.S. agency remains a successful international supplier of strong cryptographic solutions.
By David Glazier
The United States has held 779 men and boys in Guantánamo during the two decades since the 9/11 attacks, justified by loose reliance on international law rules addressing prisoners of war; thirty-seven remained as of May 2022. The Supreme Court upheld the practice in its 2004 Hamdi v. Rumsfeld decision, holding that the congressional Authorization for the Use of Military Force against al-Qaeda and the Taliban included implied authorization of the “fundamental incidents” of war, including preventive detention and military trials. But it also explicitly noted that this authority ends at the close of “active hostilities.” The war ended in August, 2021, yet detention continues to this day.
Post-conflict use of military commission trials falling short of international and U.S. constitutional criminal procedure standards is also highly problematic. The Court’s 2006 Hamdan v. Rumsfeld decision recognized that military commissions depend on federal war powers for their existence. So these trials, too, cannot legitimately continue post-conflict.
While the Biden administration continues to pursue winding down Guantánamo via detainee transfers with “security assurances,” the law of war mandates prompt post-hostilities repatriation. There is no “bad dude” exception based on general threat perceptions—only an actual criminal sentence or pending charges can justify delay. The detainees must now be charged in federal courts, extradited to another country for prosecution, or promptly repatriated.
After demonstrating why the legal authority for Guantánamo detention and military commissions has expired, this Article provides recommended dispositions for each of the detainees remaining at Guantánamo consistent with residual law of war mandates. It concludes by arguing that this outcome actually serves larger overall U.S. national interests; Guantánamo’s fiscal, legal, moral, and political costs have long outweighed its benefits.
By Juan Zarate and Sarah Watson
There is a widespread belief within both the scholarly and policymaking community that there is no broadly accepted international definition of terrorism. It is indeed the case that the United Nations has not succeeded in finalizing a counterterrorism treaty, and that acts of violence are often followed by a debate over whether they constitute acts of terrorism. This Article argues, however, that the vast majority of nations have in fact committed to adopting a substantive definition of terrorism and are steadily incorporating that definition into their domestic law through their adherence to the standards promulgated by the Financial Action Task Force. The widespread commitment to this definition offers scholars and policymakers the opportunity to move beyond fundamental, longstanding debates over the nature of terrorism and focus on applying this definition on the global stage. With a definition of terrorism in effect, terrorist actors and their supporters can be identified and isolated more effectively, with more innocent lives protected, and terrorism itself met clearly with the international opprobrium of banned international practices like piracy and slavery.
By John Cook
In both the national security field and the legal profession, members are required to undergo significant background checks and appraisals before beginning work. While both lines of work involve significant amounts of trust, competence, and integrity, there is often far greater risk to the public at large from the unauthorized release of highly classified national security information than from a poorly performing, or even dishonest, attorney. Despite the heightened risk in the national security field, the information requirements for bar admission go beyond those of national security clearances. Given the higher stakes of national security clearances compared to attorney licensure, and that both processes currently seem to accomplish their respective goals effectively, there is no reason that the bar admission process should be more rigorous and extensive in scope than the national security clearance process.
This Article compares the two processes with this thesis in mind, examining the provisions of the National Conference of Bar Examiners Character and Fitness Application in comparison with the U.S. government’s Standard Form 86 (Application for National Security Positions of the United States Government) as well as other aspects of the two processes. Overall, this comparison leads to the conclusion that the bar admissions process should more closely parallel the procedures used for national security clearance decisions.