In association with the International Commission of Jurists

National Security Law

30 Apr

Of course, that means it's been a much better week for anyone who isn't so keen on the prospect of attacking Iran.  I'm not sure the nails are in Netanyahu's political coffin quite yet, but the carpenters are certainly gathering their supplies.  First up, Lt. Gen. Benny Gantz, Chief of Staff of the IDF, rejecting the notion that Iran is...

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28 Apr

I'm just back from the U.S. Naval Academy and a great conference put on by the Stockdale Center for Ethical Leadership:  Warfare in a New Domain: The Ethics of Military Cyber Operations. Ed Barrett pulled together a truly impressive group of technologists, international lawyers, philosophers, ethicists, active duty military personnel and US Government officials to weigh in on existing cyberthreats and...

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15 Apr

Those of you who, like me, missed this year's Federalist Society Symposium on National Security can now watch all of the events on-line here.  The event was held April 5 in DC and included a morning panel on terrorist-related detentions, interrogations and trials, a lunchtime address by former Homeland Security Secretary Michael Chertoff, and an afternoon panel on potential cybersecurity...

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11 Apr

The bankruptcy of the U.S. military-commissions system is currently on full display in the trial of Abd al-Rahim Al-Nashiri.  Readers who can stomach the spectacle of a tortured detainee being prosecuted for imaginary war crimes committed at a time when there was no armed conflict between the U.S. and al-Qaeda anywhere in the world can find excellent coverage of the...

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10 Apr

I will post analytically about this when I get a moment, but the General Counsel to the CIA, Stephen Preston, delivered an address today at Harvard Law School on the CIA and the Rule of Law.  Lawfare has posted up the full text, but here is a bit of the introduction.  I'll come back to comment for real later, but I want to commend Mr. Preston for having looking for ways in which the senior lawyer(s) of the Agency can say something publicly about their work and the legal framework in which they approach things that are sometimes genuinely secret, sometimes plausibly, implausibly or, as I mischievously remarked in a panel last week, "preposterously plausible." There are reasons for these gradations - particularly, consent for US operations in a country might well be secret and subject to some level of deniability.  But they make it difficult for CIA officials and lawyers even to acknowledge the topics in the abstract.  There will be lots of disagreement, no doubt, about what can or should be made public by executive branch lawyers, whether through DOJ, CIA, DOD, DOS, or other agencies - but I would like to commend Mr. Preston for seeking to find ways to address these issues, to the extent that he and others in the executive believe they can or should do so publicly.
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09 Apr

The Texas International Law Journal has published its mini-symposium on Karl Chang's article that argues the law of neutrality provides the applicable legal framework for the United States' conflict with al-Qaeda.  There are two responses to the article: one by Rebecca Ingber, who is currently a fellow at Columbia Law School; and one by me.  Here is the abstract of...

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29 Mar

Dawood Ismail Ahmed, a Pakistani lawyer and JSD candidate at the University of Chicago, has a very interesting article today at Foreign Policy on Pakistan's opposition to drone strikes.  He argues that if Pakistan really wants to put an end to the strikes, which have killed hundreds of innocent Pakistani civilians, it needs to start taking advantage of its options...

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26 Mar

Lawfare has published a very interesting guest post by Haridimos Thravalos on whether conspiracy is a war crime.  The whole thing is worth a read; here is the intro: In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557...

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25 Mar

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.)
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