Journal of National Security Law & Policy

Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan. The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.” The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.” When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.

On December 6, 2007, the Central Intelligence Agency publiclydisclosed that in 2005 it had destroyed videotapes of CIA interrogations of alleged terrorist Abu Zubaydah conducted in 2002 and asserted that the destruction was “in line with the law.”

The release of formerly classified documents and government cables by the whistle-blower website WikiLeaks in 2010 poses a dilemma. The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate…

The filling of a judicial vacancy provides a unique opportunity to examine not only the appointment or election process, but also the court itself and its work. For obvious reasons, this has been recognized in connection with the Supreme Court of the United States,1 where vacancies are often the subject of much conjecture but, because of life tenure, remain essentially unpredictable. On a less lofty plane, the opportunity to take stock also occurs in other courts, and the timing, at least, is less a matter of speculation in non-Article III courts, where judges serve for fixed terms.

Summing up their history of the statutory Inspector General at the CIA, the authors conclude that “The ‘independent watchdog’ of a statutory IG did not expose major shortcomings that otherwise would have gone unnoticed.

It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders.

The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions.

The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure.

China’s legal approach to national security threats, and emergency situations in general, is more complex and subtle and thus richer in implications for comparative law and for understanding transnational legal influence.

Seen from the great height of global comparison, the number of new anti-terrorism laws that criminalize terrorism, block terrorism financing, develop new international monitoring mechanisms to spot terrorists, and increase vigilance about the international movements of persons is extraordinary. Up close, however, widespread compliance [with the Security Council Resolution 1373 framework] looks less like a tightly coordinated strategy than diverse variations on a theme.

The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture.

“Stewart Baker has written an enthralling, yet alarming, account of the difficult road we as country have traveled since 9/11.1 Part memoir of a veteran senior government official, part lesson in interdepartmental infighting and bureaucratic power games, part philosophical musing on technology’s benefits and potential costs, and part vigorous advocacy enlivened by saucy humor and snappy prose, Baker’s book summons us to think hard about how new technologies – air travel, computer functionality, biotechnology – jeopardize our lives and our way of life even as they also promise to brighten our futures.”

During the last two years of the Bush administration, the senior leadership at the U.S. Department of Homeland Security (DHS) spent substantial time and effort in first helping to craft, and then attempting to implement, Homeland Security Presidential Directive 23/National Security Presidential Directive 54 (HSPD 23/NSPD 54), Cyber Security and Monitoring.

This article describes the information security policies and institutions of the Japanese government and draws attention to comparable policies and institutions of the U.S. government.

On May 29, 2009, President Obama released his Cyberspace Policy Review (the Review). The Review, conducted by the National Security Council and the Homeland Security Council, examined existing government initiatives addressing cyberspace security in order to develop a strategic framework to coordinate government action.

On June 23, 2009, Secretary of Defense Robert Gates established the U.S. Cyber Command as a sub-unified command under the U.S. Strategic Command in order to defend military information networks against cyber attacks.1 This organization is the most recent Department of Defense (DoD) response to the increasing threats to U.S. military, government, and commercial information systems and rapidly developing adversarial network capabilities.

In his celebrated concurring opinion in The Steel Seizure Case, Justice Jackson cautioned that “only Congress itself can prevent power from slipping through its fingers.” Jackson’s warning seems especially pertinent today, as we prepare urgently for cyber warfare – facing potentially enormous threats from yet unknown enemies, and finding ourselves dependent on staggeringly complex, unproven technology. The executive branch, which has special expertise and agility in national security matters generally, as well as substantial constitutional authority, has taken the initiative in these preparations. Yet if Congress is to be faithful to the Framers’ vision of its role in the nation’s defense, it must tighten its grip and play a significant part in the development of policies for war on a digital battlefield. It also must enact rules to help ensure that these policies are carried out.

One of the major themes of the Cyberspace Policy Review (the Review) is that a national strategy on cybersecurity must be consistent with the protection of privacy rights and civil liberties guaranteed by the Constitution and the law.

I am proud to be asked by the Journal of National Security Law & Policy to introduce this important and impressive issue. The timing could not be more critical.

For many of us, the cyber threat to U. S. national security is amorphous and not easy to comprehend. At the same time, in the last two years of the Bush administration and through the first year of the Obama presidency, cybersecurity has been characterized as “one of the most urgent national security problems facing the new administration.”