Authors:Dara Paleski Abstract: Social media has quickly become an integral part of modern-day life, keeping the world connected to friends, family and current events. Social media, and the data collected from it, also play a crucial role in intelligence gathering and the safeguarding of national security. It is estimated that about 80-95% of information that is collected for intelligence missions is found freely throughout the internet or other publicly available sources. This type of information has been dubbed SOCMINT (Social Media Intelligence) and it has become a crucial tool within the intelligence community. After the Edward Snowden leaks in 2013 revealed a global scale surveillance program on U.S. and international citizens, tensions surrounding data privacy ignited. The European Union (EU) responded to privacy concerns by enacting the General Data Privacy Regulation (GDPR). The GDPR has been hailed as one of the “most comprehensive attempts to globally regulate the collection and use of personal data by both governments and the private sector.” The GDPR shows that the European Union has taken strides to protect both the privacy of their citizens and their transnational security. The U.S., however, has not been as zealous in their response to citizens’ data privacy concerns. Currently, the U.S. still has no comprehensive federal legislation to protect personal data. This has proven to become a national security risk and will continue to threaten the national security landscape until the federal government addresses America’s lack of data privacy protections. PubDate: Thu, 31 Aug 2023 17:22:13 PDT
Authors:Chris Galarza Abstract: When Russian tanks rolled across the border into Ukraine during the early morning of February 24, 2022, most in the American defense and diplomatic establishment were shocked and sure the war would be over in a few days. Credible open-source tactical and strategic analysis predicted that Ukraine’s regular military forces would be defeated in “days or weeks” as long as Russian military forces were determined to pursue their objectives. The United States Government was so sure that Kyiv was under imminent threat of capture that they offered to evacuate President Volodymyr Zelenskyy so that he could rule from exile, rather than being captured by the Russians. Zelenskyy reportedly declined the offer with a sharp quip that quickly became famous and an apt metaphor for the war to come; “The fight is here; I need ammunition, not a ride.” Now, over a year later, we know how wrong many of us were about what course the war would take and its possibilities for resolution. Russia’s armed forces have suffered immense losses, potentially topping between 189,500–223,000 total casualties (between 35,500–43,000 dead, and 154,000– 180,000 wounded), over 17,114 vehicles, over 2,849 artillery pieces, over 600 military aircraft, and a Slava-Class Cruiser, RTS MOSKVA (121), Russia’s Black Sea Fleet flagship (cruisers are the largest, best armed, ships serving in modern navies). The Russian military is not the fearsome fighting machine most military analysts in the West thought it was. But unfortunately, even if most of us were wrong about how capable the Russians were, the character and disdainful manner in which the Russian military carries out the war bears many of the hallmarks of the shameless brutality of the Soviet Army. Today, we face very different questions than were asked in the early morning hours on February 24; how long will it take for the war to end' And how will the world hold Russia accountable for its military’s countless war crimes'This discussion will consist of three parts. First, it will examine what constitutes a war crime under international law and the jurisdictional requirements. Second, it will examine the evidence of Russian war crimes in Ukraine. And finally, it provides a recommendation for the appropriate venue to try Russian war crimes on the international stage. Trying the many systemic crimes committed by the Russian military will require immense international political support from every corner of the world, not just from the West alone. Failure to hold Russia accountable for what has happened in Ukraine will further cripple the rules-based international order that has endured since the end of World War II. That rules-based order was developed after World War II and put in place to prevent the types of atrocities we see unfolding in Ukraine in the twenty-first century. It was the collective trauma of two world wars that led the powerful nations of the world to act to preserve our future. Russia’s invasion of Ukraine represents the single greatest threat to that system of safeguards. PubDate: Thu, 31 Aug 2023 17:22:06 PDT
Authors:Sascha-Dominik Dov Bachmann et al. Abstract: Artificial Intelligence (AI) is enabling rapid technological innovation and is ever more pervasive, in a global technological eco-system lacking suitable governance and absence of regulation over AI-enabled technologies. Australia is committed to being a global leader in trusted secure and responsible AI and has escalated the development of its own sovereign AI capabilities. Military and Defence organisations have similarly embraced AI, harnessing advantages for applications supporting battlefield autonomy, intelligence analysis, capability planning, operations, training, and autonomous weapons systems. While no regulation exists covering AI-enabled military systems and autonomous weapons, these platforms must comply with International Humanitarian Law, the Law of Armed Conflict, and the Use of Force. This paper examines comparative international regulatory approaches across major allied nations in the US, UK, and Europe and suggests future direction for Australian regulation of AI in lethal application. PubDate: Thu, 31 Aug 2023 17:22:00 PDT
Authors:Wayne Rash; III Abstract: In our last issue of The National Security Law Brief, Vol. 13, No. 1, we highlighted the dynamism that makes National Security Law such an exciting field. In this issue, No. 2, we continue with the dynamism theme. National security law is a field in constant change that often leaves us questioning how these changes will shape the law. PubDate: Thu, 31 Aug 2023 17:21:53 PDT
Authors:Michael D. Minerva Abstract: As the United States has progressively become more involved globally since World War II, the U.S. military is being stretched beyond the professional military competency straining civilian control of the military. To remedy this, it is again time to revisit our national security structure, and adopt a General Staff in place of the Joint Staff. Following World War II and the destruction of the German General Staff by the Nazi Party, the General Staff as an institution has been emotionally rejected in the United States without a careful historical and legal examination of how that institution operates under varying forms of government and without an understanding of how it would operate under the United States’ peculiar constitutional form of government. Exploring the historical and legal roots of the General Staff demonstrates that replacing the Joint Staff with a General Staff subordinated into the chain of command will act as a check on the ever-expanding influence of the military, while at the same time strengthening the military’s ability to decisively defend U.S. national interests. Further, a General Staff will clarify the constitutional separation of military powers in a way that mitigates the politicizing effects of the separation of powers doctrine restoring balance to the constitutional division of military powers. PubDate: Tue, 07 Feb 2023 18:55:19 PST
Authors:Yang Liu Abstract: The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues. PubDate: Tue, 07 Feb 2023 18:55:12 PST
Authors:Terence Check Abstract: Protecting critical infrastructure from cyber threats is difficult and complex. News headlines abound with reports that show how critical infrastructure—ranging from voting machines to steel mills—have become increasingly vulnerable to cyber operations from state and sophisticated nonstate actors. As critical infrastructure becomes increasingly entangled with the Internet and as new tactics, techniques, and procedures rapidly proliferate and evolve, governments and businesses alike must contend with a mutating threat environment that may put sensitive and highly important critical infrastructure assets in serious jeopardy. The vulnerabilities of critical infrastructure, which provide vital services and functions to societies, may pose a particularly tempting way for states to asymmetrically project power during an armed conflict or other crisis. Recent tensions between Russia and Ukraine have provided a useful test bed to consider how cyber-threat actors could couple cyber-based operations with movements of traditional military forces. PubDate: Tue, 07 Feb 2023 18:55:05 PST
Authors:John Ramming Chappell Abstract: This article argues that Congress can exercise its constitutional war powers to enact a law restricting the President from using nuclear weapons first. The article contends that using a nuclear weapon is qualitatively different from conventional warfare and that the first use of nuclear weapons marks a decision to enter into war. Therefore, nuclear first use is not a battlefield decision within the President’s commander in chief power but rather a choice to enter the United States into a new type of conflict that could pose a direct, immediate, and existential threat to the U.S. homeland. Regulating that decision falls under Congress’s exclusive war powers. Congress can limit its authorizations of war and prohibit military actions beyond its authorization. Therefore, Congress could stipulate that its war authorizations extend only to conventional hostilities unless Congress expressly authorizes the first use of nuclear weapons. Using its authority to limit authorizations of for the use of military force, Congress can enact a no-first-use law. PubDate: Tue, 05 Jul 2022 09:50:26 PDT
Authors:Susan E. Upward Abstract: The skies above America have been increasingly inundated with small unmanned aircraft systems (sUAS) operated by both government agencies and civilians alike. The majority of these drones are manufactured by Da-Jiang Innovations (DJI), a Chinese company that continues to emerge as a national security threat. The risk posed by these drones stems not only from physical access to American airspace, but also from the surreptitious transmittal of information back behind the “Great Firewall of China” via DJI mobile device applications. However, current pending legislation is inadequate to effectively counter this threat. Instead, the United States should take a more comprehensive approach – use existing laws to deny DJI access to U.S. airspace, develop new legislation to curtail access to sensitive information in cyberspace, and take measures to counter consumer reliance on foreign sUAS by investing in the American drone manufacturing industry. PubDate: Tue, 05 Jul 2022 09:50:20 PDT
Authors:Paul Rose Abstract: This essay documents some of the recent changes in foreign investment law as a manifestation of increasing concerns with Chinese investment specifically and globalization more generally. The essay first shows how foreign investment laws in major economies have become increasingly illiberal since the Financial Crisis. Next, the essay considers the justification and impact of recent United States rules designed to reduce Chinese investment. Comparing data on merger and acquisition activity in the United States with the number of filings made to the Committee on Foreign Investment in the United States (CFIUS), the essay documents that although merger and acquisition activity is very highly correlated with CFIUS notice filing activity over the past decade, the data suggest that enhanced regulation has had its intended effect in reducing the amount of foreign investment in regulated industries and firms. In particular, the regulation—and more importantly, the way that regulation has been enforced—has served its seemingly intended purpose as a new “great wall” against Chinese investment. PubDate: Tue, 05 Jul 2022 09:50:13 PDT
Authors:Gabrielle Leeman Abstract: After a white supremacist used his vehicle as a weapon to purposefully attack anti-racism protestors in Charlottesville, Virginia in 2017, federal officials called the incident domestic terrorism. The incident, in fact, met the definition of domestic terrorism. But the perpetrator was not prosecuted under any of the available terrorism statutes. The defendant was instead charged with, and later pled guilty to, committing hate crimes. It is imperative that we recognize all forms of terrorism as terrorism and use the legal system fairly to prosecute all terrorist attacks as terrorism. But the current terrorism statutory framework hinders the ability to prosecute incidents of extreme-right violence as terrorism. This Article argues that many incidents of extreme-right violence are terrorism and should be prosecuted as terrorism. This Article also proposes Congress update the definition of “weapon of mass destruction” to include (1) the use of a vehicle as a weapon and (2) mass shootings. These definitional updates provide a viable path forward for prosecution of violent extreme-right perpetrators as terrorists because it would make available 18 U.S.C. § 2332a, 18 U.S.C. § 2339A, and the terrorism sentencing enhancement. The United States owes it to the victims of such horrific incidents of extreme-right violence to finally prosecute these perpetrators for what they are—terrorists. PubDate: Tue, 01 Mar 2022 13:35:22 PST
Authors:McKinney Voss Wheeler Abstract: Private military contractors (PMCs) are increasingly ubiquitous in international conflicts, providing security, transport services, and even fighting alongside commissioned troops in battle. Yet for the United States, the ambiguity surrounding PMCs’ role in war presents a serious threat to the constitutional balance of war powers. The Founding Fathers deliberately divided those powers between the executive and legislative branches, aware of the dangers of concentrating them too heavily; and Congress further clarified protocol with the War Powers Resolution in 1973. But the War Powers Resolution, which requires the President to notify Congress when engaging "U.S. Armed Forces" in battle, omits any reference to PMCs—a loophole the executive could exploit to take action abroad without Congressional knowledge or approval. Congress must either revise the War Powers Resolution to include PMCs or else pass new legislation regulating their use if it hopes to prevent executive overreach and an increasing reliance on hired guns to fight America's battles. PubDate: Tue, 01 Mar 2022 13:35:15 PST