September 26

Breaking News

Secrets in the Sky – ignoring the lessons of 9/11

Just Security – put this in your  RSS feed to keep up with national security news

Assignment

Finish reading Chapter 7.

September 21

Breaking News

Stanislav Petrov, Man Who Saved World From Nuclear Annihilation, Has Died – important bit of history

Manafort and FISA

Slate Money podcast discussing the Equifax hack with a leading data scientist, along with a discussion of a new cyberattack fear – warning, this podcast contains mature language and adult themes.

Assignment

Look over slides on administrative search – Administrative Searches – from the founding to Snowden

Read Chapter 7 to C. A FOREIGN INTELLIGENCE EXCEPTION?, p. 235

We might not get to most of this, but it is useful to have it in mind as we think about administrative searches.

Podcast discussing the difference between FISA and criminal warrants in the Manafort investigation

September 19

Breaking News

A good Internet security blog

After London explosion, Trump criticizes Britain’s counterterrorism approach — for all the wrong reasons

CIA wants expanded authority to conduct drone strikes

Google and Facebook Face Criticism for Ads Targeting Racist Sentiments

Was there a FISA (national security) warrant for electronic surveillance on Trump campaign official?

Assignment

We are going to read some additional background on cybersecurity. The additional text is free, you just have to download your own copy. Go this page and in the upper right hand corner, there is a link to download a free PDF. You can create your own free account for downloading books in the future, or you can check out as a guest:

At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues (2014)

Read the first three chapters. This is not as dense reading as the case book, and we have covered some of it. You do not have to memorize this, it is get you up to speed on the basic topics.

Resources

Administrative Searches – from the founding to Snowden

 

September 14

Breaking News

Updated Criminal Procedure Rule Allows Government to Remote-Hack Computers

Senate Rejects Bipartisan Effort to End 9/11 Military Force Declaration

South Korea Plans ‘Decapitation Unit’ to Try to Scare North’s Leaders

RT, Sputnik and Russia’s New Theory of War – Fake News as War

Assignment

History of the Internet – “DARPA and the Internet Revolution.” DARPA: 50 years of bridging the gap (2008): 78-85.

Personal privacy protection (on the Internet)

I will continue our discussion of the Internet and will introduce our next discussion of the 4th Amendment, time permitting.

Resources

VPN versus TOR

September 12

Breaking News

Apple’S Ios 11 Will Make It Even Harder For Cops To Extract Your Data

4 Maps That Show the Gigantic Hurricane Irma Evacuation

They are now asking people to evacuate South Florida. Follow the process of evacuation and let’s hope it all works out. The key difference from Houston is storm surge. You cannot shelter in place if you are facing surge.

Equifax hack hits credit histories of up to 143 million Americans

These are private surveillance agencies that collect  very detailed information about you. This includes all of your identify info, including SS#s, driving license numbers, addresses, and personal family information. Depending on the level of the hack, this is everything a criminal needs to hijack your identity. Equifax’s stock is taking a hit.

Excellent article on game theory analysis of nuclear standoffs.

This is a good guide to the thinking behind MAD (mutually assured destruction) and the dance with North Korea.

Humorous introduction to game theory

Assignment

Finish Chapter 6

Resources

Organization of Intelligence Agencies

Executive Order 12333 United States Intelligence Activities

The National Counterterrorism Center

Presidential Memorandum — Establishment of the Cyber Threat Intelligence Integration Center

Mathews v. Eldridge

History of the Internet – “DARPA and the Internet Revolution.” DARPA: 50 years of bridging the gap (2008): 78-85.

Structure of IPv4 versus IPv6 packets

Maps of the Internet

 

September 7

Breaking News

Florida flood risk

Google street view just got a lot more intrusive

Syrian regime dropped sarin on rebel-held town in April, UN confirms

Assignment

Chapter 6 to E. INTELLIGENCE REORGANIZATION AFTER 9/11, p 207

This is mostly structural – how the agencies are set up. Read the case and the Notes and questions carefully. They are what we will discuss.

 

 

 

September 5

Breaking News

The Secret History of FEMA

Can we use targeted killing against the North Korea?

North Korea / Trump condemns ‘very hostile’ nuclear test

Iran is adhering to nuclear deal limits, UN says, despite Donald Trump claim

Assignment

Why Pakistanis are terrified Trump will bring back drone strikes

Map of the strikes

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Philip Alston), Addendum: Study on Targeted Killings, at 17-18, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010). p.17-8

An international armed conflict is a conflict between two or more states, even if a state of war is not recognized by one of them. Common art. 2 of the 1949 Geneva Convention, Aug. 12, 1949, 75 U.N.T.S. Was the Second Intifada an international armed conflict?

Finish Chapter 5.

Resources

Executive Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981)

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

2.12 Indirect Participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.…

U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

Mathews v. Eldridge

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force

Read the highlighted and bookmarked text.

Targeting Terrorists: Summary of Basic Principles

Outside of armed conflict or a judicial process, human rights law (HRL), in relevant part, forbids a governmental killing unless the government uses no more force than absolutely necessary as a last resort to defend a person from imminent unlawful violence. The right to use lethal force thus turns on the conduct, not the status, of the target.

An international armed conflict is a conflict between states, whether or not one of them recognizes a state of war, and a non-international armed conflict is a conflict between a state and an identifiable group, or between identifiable groups, exceeding a minimal level of intensity and duration, with a territorial nexus to a state or across borders.

The United States takes the view that in armed conflicts international humanitarian law (IHL) (also called the law of armed conflict or LOAC) supplants HRL.
In an armed conflict lethal force may be used against combatants, civilians for as long as they take a direct part in hostilities, and other civilians incidental to a lawful military attack (collateral damage). The use of force must be necessary to achieve legitimate military objectives and proportionate (e.g., the incidental loss of civilian lives must be justified by the legitimate military benefit of the attack), but it is not restricted to defense against imminent attack.

The United States takes the view that national self-defense also justifies the use of lethal force even outside an area of active hostilities (or armed conflict), but it has declared that it will use such force only when (1) a terrorist target poses a continuing, imminent threat to U.S. persons, (2) capture and other non-lethal alternatives are not feasible, (3) the state where the target is located is unwilling or unable to address the threat, and (4) there is near certainty that the target is present and that noncombatants (other than those taking a direct part in hostilities) will not be injured or killed.

Executive Order No. 12,333’s ban on assassination does not apply to the targeted killing of combatants or civilians taking a direct part in hostilities in armed conflict or to targeted killing in self-defense.

The Fifth Amendment affords a U.S. citizen due process before the government deprives him of life both at home and abroad, but the United States takes the view that these standards, as implemented by a reportedly deliberate inter-agency executive process in which the President personally approves additions to a “kill list,” with periodic notice to congressional committees, is all the process that U.S. citizens are due. No U.S. court has yet ruled on what process is due a targeted U.S. citizen, although the Supreme Court has ruled on the process due a U.S. citizen who is detained by the military.

 

August 31

Breaking News

Why Pakistanis are terrified Trump will bring back drone strikes

This was just posted last night or I would have assigned it as a reading for class. It questions the notion of targeted killing as being targeted at all, and reminds us that this was an Obama policy.

U.N. Condemns North Korea’s Latest Missile Tests, but Takes No Action

A uranium bank just opened in Kazakhstan to stop the spread of nukes

The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble

Just a reminder that Trump is not the first president to make a controversial pardon that is a slap in the face to the courts. Note the irony of one of the Reagan pardons.

Assignment

Read to C. TARGETED KILLING AND INTERNATIONAL HUMANITARIAN LAW, p. 146

Resources

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Philip Alston), Addendum: Study on Targeted Killings, at 17-18, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010).

An international armed conflict is a conflict between two or more states, even if a state of war is not recognized by one of them. Common art. 2 of the 1949 Geneva Convention, Aug. 12, 1949, 75 U.N.T.S. Was the Second Intifada an international armed conflict?

INTERNATIONAL HUMANITARIAN LAW: SUMMARY OF BASIC PRINCIPLES

International humanitarian law (IHL) has evolved alongside domestic and other international law to govern the conduct of states and individuals during armed conflicts and to limit the suffering caused by war.

The threshold question of when IHL applies is complicated when states carry out military operations against non-state terrorist and insurgent groups. The difficulty lies chiefly in determining whether an “armed conflict” is underway, and in distinguishing combatants from noncombatants.

Different IHL rules apply to international and non-international conflicts. The distinction is important in determining the level and detail of protections afforded civilians and limits on military operations.

The United States is committed to following IHL, including many of the provisions of the Geneva Protocols.

The core principles of distinction, military necessity, proportionality, and unnecessary suffering are reflected in the Geneva Conventions and Protocols, and in customary law. Their application in individual cases, such as the Palestinian intifada, requires careful analysis of the particular facts.

Drone Strikes in Pakistan

 

 

August 29

Breaking News

Why the Arpaio Pardon Matters

‘Missile passing’: Japan wakes to ominous warning about North Korean launch

Bubba gets an RPG

A Win for Privacy Is a Win for the Web

Is this really a win?

Violent Alt-Right Chats Could Be Key To Charlottesville Lawsuits

Assignment

Read to Chapter 4, B. APPLYING IHL—TARGETING IN ARMED CONFLICT, p. 124. This is dense, read carefully and think about how the codes fit together. Make sure you appreciate the different treatment for combatants and non-combatants.

Resources

Chapter 3

Map of Afghanistan

Authorization for Use of Military Force Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001)

WAGING WAR ON TERRORISTS: SUMMARY OF BASIC PRINCIPLES

It is generally agreed that under Article 51 of the U.N. Charter a state may use force in individual or collective self-defense, not only once an armed attack is underway but before it is completed. But a state exercising the inherent right of self-defense must not only report its use of force to the Security Council, as required by Article 51, but also describe the circumstances that justified that use.

It is generally agreed that a state attacked by international non-state terrorists, like Al Qaeda, may exercise its inherent right of self-defense under Article 51 by using force against the terrorists residing in another state, if the host state is “unable or unwilling” to abate the continuing terrorist threat.

The U.N. Security Council may authorize member states to use force to “maintain and restore international peace and security.” Such force may be used against terrorists or terrorist organizations.

The framing of the Declare War Clause (“leaving to the Executive the power to repel sudden attacks,” according to Madison’s notes), the practical necessity to defend against attacks, and the Commander in Chief Clause all suggest that the President has an inherent power to fight what we have called defensive war. But the defensive war power may be subject to legal limits drawn from international law, as well as temporal limits that depend on the duration of a threat or attack and practical funding limits. These limits are disputed, mainly unaddressed by case law, and subject to inter-branch negotiation.

Because terrorists attack soft civilian targets without warning, some have argued that the only effective defense against a terrorist attack is to attack the terrorists even before they can begin to implement their plan of attack. But there is no consensus about the factual predicates for such anticipatory self-defense in advance of an actual armed attack.

Congress may authorize the use of armed force by declaring war or by enacting an authorization for the use of military force (AUMF). Because the Constitution does not prescribe the form of AUMFs, some courts have inferred congressional authorization for the use of force from defense appropriation acts and related legislation that does not expressly authorize force.

The War Powers Resolution (WPR) imposes consultation and reporting requirements on the President for deployments of armed forces into hostilities, and it requires the President to obtain specific statutory authorization for such deployments within a fixed time period or terminate the deployment. No President has acknowledged the constitutionality of the WPR. The meaning of “hostilities” under the WPR, and the WPR’s legal effect on statutorily unauthorized deployments or claims of implied statutory authorization, among other questions, remain disputed.

The Commander in Chief Clause at a minimum vests the President with the unitary civilian command of the armed forces, and gives him control of day-to-day tactical military operations in authorized conflicts or defensive war, subject to the terms of any authorization from Congress. But precisely which operations fall within the Commander in Chief’s command authority, and whether command authority is beyond the reach of statute, are questions that are disputed and mainly unaddressed by case law.

Chapter 4

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8) – The Cardinal Principles

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Rome Statute of the International Criminal Court 2187 U.N.T.S. 90, July 17, 1998.

August 24

Breaking News

Indian Supreme Court in landmark ruling on privacy

National Infrastructure Advisory Council Report on Cybersecurity

Should the government prevent Google from shutting down the Daily Stormer?

Assignment

Read from B. THE PRESIDENT’S DEFENSIVE WAR POWER – p.74 to D. DEFENDING AGAINST AL QAEDA AND THE ISLAMIC STATE.p. 91. This is not many pages, but most of the content is buried in the dense notes. Read them carefully.

Read: Prize Money, from: A Naval Encyclopædia: Comprising a Dictionary of Nautical Words and Phrases: Biographical Notices, and Records of Naval Officers; Special Articles of Naval Art and Science. LR Hamersly & Company, 1884.

Resources

Torreon, Barbara S. “Instances of use of United States armed forces abroad, 1798-2015.” LIBRARY OF CONGRESS WASHINGTON DC WASHINGTON DC, 2015.