National Security
Security-Clearance Decisions and Constitutional Rights
In several recent cases involving claims that security-clearance decisions violated plaintiffs’ constitutional rights, courts have seemed more willing to scrutinize these decisions, which are usually seen as unreviewable. This Essay analyzes these cases and argues that federal courts are competent to review substantiated claims of constitutional-rights violations in security-clearance decisions.
Introducing Independence to the Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court’s ex parte, in camera proceedings are in tension with the Article III values of transparency and adversarialism. This Note assesses the limited participation of outside amici curiae at the court and proposes a special advocate to serve as a permanent, independent adversary to the government.
Torture and Institutional Design
This Essay discusses the creation, rise, and decline of the High-Value Detainee Interrogation Group (HIG) as a case study for how institutional design affects the implementation of international commitments. The HIG’s placement within the FBI rendered it unable to effectively promote policy change without direct support from the President.
State of the Art: How Cultural Property Became a National-Security Priority
Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an important national-security issue.
The New National Security Challenge to the Economic Order
Changes in national security policy pose a fundamental challenge to international economic law. Security policies worldwide encompass many emerging threats, from cyber vulnerabilities to climate change. This expansion potentially undermines the ability of investment and trade treaties to discipline economic regulation and requires rethinking international economic institutions.
Ending Bogus Immigration Emergencies
Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would unload it.
Manufactured Emergencies
As America goes through a democratic decline, a new problem rears its head: the manufactured crisis. To stem further degradation of democratic norms, this Essay calls for judges to reject unjustified assertions of unilateral power by carefully reviewing facts and refusing to tolerate lies.
The Separation of National Security Powers: Lessons from the Second Congress
Can Congress reclaim a meaningful institutional role in supervising some of the broad national security powers it has delegated to the executive branch? This Essay argues that Congress can do so and explains how an obscure statute—the Calling Forth Act of 1792—provides a roadmap for how it should.
Secret Reason-Giving
The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and policy decision-making in the national security space.
Prove It! Judging the Hostile-or-Warlike-Action Exclusion in Cyber-Insurance Policies
Cyber-insurance policies often include a hostile-or-warlike action exclusion. The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-coverage disputes. It concludes with four proposals to improve attribution and adjudication.
Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu
This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the doctrine under a new name.
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity with Korematsu.
Masquerading Behind a Facade of National Security
What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundamental democratic liberties.
Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law
The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’s unilateral national security actions.
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreign relations scholars since the Case Act, is dying or dead. In 2013, as State Department Legal Adviser, I argued that: In the twenty-first century . . . we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes . . . . [O]ur international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the nuanced texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality. This Essay seeks to offer that better conceptual framework to evaluate the legality of modern international lawmaking. It illustrates that framework through two recent case studies of modern U.S. diplomacy: the Paris Climate Change Agreement and the Iran Nuclear Deal.
Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt
Robert Litt, General Counsel of the Office of the Director of National Intelligence, has offered a new analysis for the Fourth Amendment in the Information Age, grounded in two cases arising from the NSA’s domestic surveillance programs.1 As opposing counsel or amicus in the cases he cites in his argument, I thought it would be useful to respond.