Category: Military Law


Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:


The text of Chief Judge Alex Kozinski’s keynote is forthcoming.


Cybersecurity Puzzles

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.


Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

A Chauffeur’s Dilemma for Wisconsin’s Police

Kevin Drum has explained events in Wisconsin well. Whatever you think of public sector unions, Gov. Walker’s proposals ring alarm bells because they are so high-handed. They are also embedded in a larger package of crony capitalism, authority for infrastructure giveaways, and Medicaid-mongering.

What’s particularly striking about Walker’s proposal is that it carves out favors for certain public sector unions which supported his election, including the police. These same unions may need to decide whether, in the event of continuing protests, to forcibly remove “agitators” and round up Democratic state senators. At that point, they might face what Arlie Hochschild has memorably styled “the Chauffeur’s Dilemma:”

Let’s consider our political moment through a story. Suppose a chauffeur drives a sleek limousine through the streets of New York, a millionaire in the backseat. Through the window, the millionaire spots a homeless woman and her two children huddling in the cold, sharing a loaf of bread. He orders the chauffeur to stop the car. The chauffeur opens the passenger door for the millionaire, who walks over to the mother and snatches the loaf. He slips back into the car and they drive on, leaving behind an even poorer family and a baffled crowd of sidewalk witnesses. For his part, the chauffeur feels real qualms about what his master has done, because unlike his employer, he has recently known hard times himself. But he drives on nonetheless. Let’s call this the Chauffeur’s Dilemma.

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Wikileaks, Neoliberalism, and American Decline

The flood of revelations from Wikileaks raises some difficult questions about data security and government secrecy. Some privacy activists might enjoy seeing technology “turn the tables” on a national surveillance state, exposing its secrets as indiscriminately as programs like warrantless wiretapping gathered up citizens’ data. But retaliation is inevitable: just as the shoe-bomber provoked new TSA rituals, those who want more surveillance of the internet will point to the leaked cables. As Ross Douthat argues, “WikiLeaks is at best a temporary victory for transparency, and it’s likely to spur the further insulation of the permanent state from scrutiny, accountability or even self-knowledge.” We can expect more security initiatives, more indiscriminate classification of documents, and perhaps even more undocumented communications about critical issues.

The discussion of Wikileaks tends to focus on either process (can government officials still communicate securely?) or substance (what do particular cables reveal about American policy?). Those two conversations ought to converge. As Felix Stalder notes, policy promoting an “Information Sharing Environment” may well have created the conditions for this breach:

There is an inherent paradox. Vast streams of classified records need to flow freely in order to sustain complex, distributed and time-sensitive operations. Yet, since the information is classified, it needs to flow within strict boundaries which cannot be clearly defined on a general level (after all, you never know what needs to get connected with what in advance), and it needs to flow through many, many hands. This creates the techno-organisational preconditions for massive amounts of information to leak out.

Stalder also reveals how a larger neoliberal policy framework saps the trust structures that are necessary to build solidarity and order in institutions:
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Surveillance State Accelerates: Fusion Centers and Beyond

My co-blogger Danielle Keats Citron and I have recently posted our draft article on “fusion centers” (forthcoming in the Hastings Law Journal). As we state in the abstract:

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

We began our work by holding (along with Priscilla Regan of GMU) a roundtable on fusion centers in April, 2009. Citron convened a panel on fusion centers at AALS in New Orleans. Since then, we’ve repeatedly found ourselves astonished by the pace of advances in domestic intelligence operations. In roughly reverse chronological order:

1) The Obama administration is now pushing for “Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order.” The insistence on a “backdoor” here recalls the UAE/Saudi ban on Blackberrys—not exactly regimes the US should be emulating. Julian Sanchez and the ACLU provide more background.
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War-Gaming CyberStruggle, Circa 1999

Given recent debates over the size of the threat posed by cyberwar, I thought I’d mention the following simulation that was done by the RAND Corporation in 1999. The excerpt is from Brian Persico’s article Under Siege: The Jurisdictional And Interagency Problems Of Protecting The National Information Infrastructure, in the CommLaw Conspectus:

The object of the study was to assess the decision making process during a major hypothetical “information warfare” attack launched against the United States during a crisis in the Persian Gulf region. Based upon the RAND Corporation’s projected trends in the world’s geopolitical balance of power, the exercise’s scenario was based upon a fictitious split between members of the Organization of Petroleum Exporting Countries (“OPEC”) over levels of oil production. Simultaneous with the study’s fictitious disruption in relations, simulated infrastructure break-downs occurred in Saudi Arabia, Egypt, and the United States.

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Civilian Control and the Unitary Executive

Who sets military policy under our constitutional system? The answer is one that is (largely) free from any ambiguities of constitutional interpretation: the President is Commander in Chief. Beginning with the President, our constitutional tradition has firmly entrenched the idea of military policy chosen by politically accountable civilian actors. Although controversial expansive domestic law enforcement powers have been asserted by the past Administration under the Commander in Chief power to conduct activities such as electronic surveillance of Americans outside of statutory authorization, there has never been any doubt about the President’s authority over military policy. In this, the executive is truly unitary. This unity is why General McChrystal’s comments, and those of his staff, are so abrasive. They suggest a lack of respect for this fundamental feature of our system and a division within the executive branch that should not exist. Add to that, the increased politicization of military officers, and we get a glimmer of shifting attitudes and priorities within our constitutional system that we would do well to confront.

Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough.  I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing  attitudes and  tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.

Update after the break.

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