Today’s surveillance crisis exposes a fundamental weakness in the state of America’s 21st century democracy: the unrestrained use of power by the Executive Branch in the name of national security and the total absence of any semblance of the separation of powers and checks and balances that the Framers of the Constitution deemed critical to the survival of the Republic. Eavesdropping on Our Founding Fathers explores that proposition through the lens of the legislative history of the Foreign Intelligence Surveillance Act of 1978 (FISA)—the legislation that lies at the heart of today’s debates about the proper balance between legitimate national security interests and the values that buttress America’s democratic institutions. The Article details five critical lessons to be learned from FISA that, viewed through the remarkable history of the past thirty-six years, can help us find that elusive balance to make possible the separation of powers that is the linchpin of our democracy.
On the morning of August 20, 2014, residents of the West Point slum in Monrovia, Liberia awoke to find that the government had placed a quarantine around their neighborhood in response to an outbreak of Ebola. Military enforcement of a federal quarantine is also possible in the United States. As recently as 2005, a sitting president has suggested that military action would be necessary in the event of a pandemic and two executive orders enumerate diseases for which officials may authorize “the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases.” If the U.S. military were used to enforce mass quarantines, those forces would follow the Standing Rules for the Use of Force (SRUF). However, because the current SRUF fails to deal with the unique dynamics of quarantine enforcement operations, it must be replaced by a specialized set of standing rules, with associated escalation of force procedures, which guard against inappropriate uses of force and ensure respect for the due process rights of quarantined persons.
Intelligence Legalism and the National Security Agency’s Civil Liberties Gap
by Margo Schlanger
Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. In fact, the picture that emerges from both the Snowden and official disclosures is of an agency committed to legal compliance, although both minor and major noncompliance is nonetheless frequent. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. The National Security Agency and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel of a phenomenon this Article labels “intelligence legalism.” More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.
During World War II, the Allied militaries intuitively understood the significance of historic buildings, monuments, and works of art scattered across the battlefields of Europe. Although it took years of planning and preparation, the formation of a special branch of the military dedicated to the protection, preservation, and restitution of cultural property reflected the importance the Allies placed on preserving Europe’s cultural heritage for subsequent generations. Unfortunately, after dedicating the resources to create the Monuments, Fine Arts, and Archives Branch and to establish a corps of specialists trained to advise commanders on the protection of cultural property, the U.S. military allowed the capability to dissipate in the years after the war. Events in Iraq dramatically highlighted the enduring need to protect and preserve cultural property in armed conflict. The military’s lamentable record of protection in Iraq, however, never precipitated the institutional changes needed to prevent the same issues from arising again. Ultimately, adequately safeguarding and protecting cultural property in future conflicts will require the military’s recommitment to the ideals it embraced when it fielded and supported the “Monuments Men” of World War II.
This Article examines the failure of the Executive Branch to defend successfully its position of holding Guantanamo Bay (GTMO) detainees indefinitely without hearings in civilian courts, and the resulting operational and policy consequences. After exploring why the United States applied the legal paradigms associated with armed conflict, rather than criminal law, after the September 11, 2001 terrorist attacks, the Article traces the precedents of military detention law and habeas corpus jurisprudence upon which President Bush relied when deciding to hold the terror suspects without habeas review. It then summarizes how the legal landscape changed after 9/11, eventually allowing GTMO detainees to challenge the bases of their detention in federal court, and assesses how their habeas litigation has had consequences on military tactics and resource allocation on the battlefield. It also analyzes some of the efforts of the international legal community, arguably motivated by U.S. detention policies and practices, to amend some principles of international humanitarian law related to detention operations.
This article offers modest reflections on in bello proportionality. It suggests that the law of armed conflict (LOAC) build on the only consensus standard that exists: that of the good-faith reasonable military commander. The difficulty with any reasonableness standard is to identify factors that realistically can, and legally should, guide adherence to it and to consider its objective and subjective dimensions. Part II scrutinizes Additional Protocol I’s (API) canonical definition of proportionality. It analyzes its text and context to show that API compels more, and more diverse, subjectivities and indeterminacies than commonly recognized. This is not a problem to be solved; it is an inexorable feature of the principle. Part III therefore critiques perhaps the most popular effort to invest proportionality with more precise content: that it requires elites to conduct hostilities “as if” their nationals were those at risk. Part IV considers the prospects for promoting proportionality within the current spectrum of lawfulness. Those prospects depend on dynamics exogenous to positive international law but not, for that reason, beyond the influence of international lawyers. LOAC must identify new dynamics that have (sometimes) supplanted reciprocity. Today’s conflicts have characteristic dynamics; the comparative demise of reciprocity did not leave a vacuum. These dynamics might be impressed into LOAC’s objective of aligning strategic and humanitarian objectives to further the continuing viability and value of proportionality.
The fight against Mexican drug cartels has claimed thousands of lives in Mexico over the past several years and brought growing instability to that country and to the southwestern border of the United States. While the national security threat to the United States posed by Mexican drug cartels has evolved dramatically in recent years, the United States’ legal approach to countering this threat has not. This Article first examines the nature of Mexican drug cartels and of the conflict that continues across Mexico and along the U.S. southwestern border, focusing on debates among experts from various fields of security studies on how best to characterize the threat. It then argues that existing counterterrorism legal authorities can, and should, be more frequently utilized to better address the complex threats posed by today’s drug cartels. It specifically considers the prosecution of cartel members for terrorism, designating the most violent Mexican cartels as Foreign Terrorist Organizations, and using military counterterrorism forces to counter the most serious national security threats presented by the cartels. The Article concludes that the use of counterterrorism authorities is not only consistent with current U.S. law and policy, but would also provide greater flexibility to those responsible for developing effective responses to the risk posed by Mexican cartels and other transnational criminal organizations.
For some, the UN Security Council is a collective security regime that guarantees protection against aggression. For others, globalization and the rise of human rights are engendering a process of humanizing international law, placing the rights and dignity of individuals ahead of the interests of states. For proponents of this latter conception, the protection of human security is becoming established as the primary purpose of the Security Council. This Article challenges these claims about the Security Council. It examines the drafting history of the UN Charter and finds that the Security Council was designed as a great power concert, not as a collective security organization. The primary purpose of this concert was to promote great power peace, and not to protect states against aggression. This Article also argues that, despite the heralding of an “age of human rights,” the Security Council remains—and will remain—a power concert committed to maintaining peace between the great powers, rather than preventing mass atrocities. Finally, this Article concludes that managing political pluralism and maintaining minimum order, as opposed to upholding justice and universal values, is the dominant ethic of the legal and institutional architecture of international security.
Rethinking Warfare: The Ambiguity of Cyber Attacks
by Antonia Chayes
Estonia is a highly-wired society, but its ability to function as such was nearly brought to a halt in less than one month because of three cyber attack waves between April 26 and May 18, 2007, most likely perpetrated by Russian agents. This attack, together with subsequent attacks in other countries, represents a grey area between war and peace, raising novel issues about civil-military roles and the inadequacy of current domestic and international legal frameworks. Cyber attacks, based on revolutionary technological innovations, challenge traditional concepts about war perhaps more than any other type of hostile action. Cyber attacks and cyber warfare raise issues of self-protection; the ability to fend off (or deny) an attack; attribution about the source of attack; and effectiveness of response. Factual uncertainty about the origins and nature of a cyber attack almost guarantees legal uncertainty under both international and domestic law. Legal indeterminacy in turn spawns confusion or competition among civilian and military actors to distribute roles and relationships. This Article explores these issues in depth, concluding that international confidence-building measures should be developed and expanded, facilitating dialogue about restraint and reduction, and laying a foundation for ultimately reaching binding agreements.