Do we care so much about whether and how the government accesses our data perhaps because the line between ourselves and the machines that generate the data is getting fuzzier? Perhaps the NSA disclosures have struck such a chord with so many people because on a visceral level we know what our law has not yet begun to recognize: that we are already juvenile cyborgs, and fast becoming adolescent cyborgs; we fear that as adult cyborgs, we will get from the state nothing more than the rights of the machine with respect to those areas of our lives that are bound up with the capabilities of the machine.
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Databuse and a Trusteeship Model of Consumer Protection in the Big Data Era
Coauthored with Wells C. Bennett How much does the relationship between individuals and the companies in which they entrust their data depend on the concept of “privacy?” And how much does the idea of privacy really tell us about what the government does, or ought to do, in seeking to shield consumers from Big Data […]
Reforming the NSA: How to Spy After Snowden
Coauthored with Daniel Byman, Foreign Affairs, May-June 2014 The long-running debate over the tradeoffs the United States should make between national security and civil liberties flared up spectacularly last summer, when Edward Snowden, a National Security Agency contractor, handed journalists a huge trove of heavily classified documents that exposed, in excruciating detail, electronic surveillance programs […]
Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad
Coauthored with Daniel Byman By its very name, the Hellfire missile promises to visit Biblical wrath upon those on its receiving end. On September 30, 2011, it delivered just that to Anwar Awlaki, the U.S.-born preacher and an operational leader of Al Qaeda in the Arabian Peninsula (AQAP), who had plotted repeated attacks from his […]
A Statutory Framework for Next Generation Threats
Coauthored with Robert Chesney, Jack Goldsmith, and Matthew Waxman Since September 18, 2001, a joint resolution of Congress known as the Authorization for Use of Military Force (AUMF) has served as the primary legal foundation for the “war on terror.” In this essay we explain why the AUMF is increasingly obsolete, why the nation will […]
Global Security in the 21st Century
Published in Megatrends in Global Interaction, Bertelsmann Foundation, October 2012. In 1914, in the wake of the assassination of Archduke Franz Ferdinand, a foreign affairs writer named F. Cunliffe-Owen looked for the bright side. “While it is only natural that one should be stricken with horror at the brutal and shocking assassination,” he wrote in […]
James Madison, Presidential Power, and Civil Liberties in the War of 1812
Coauthored with Ritika Singh, Published in What So Proudly We Hailed: Essays on the Contemporary Meaning of the War of 1812, October 31, 2012. In November of 1814, the White House lay in ashes, burned to the ground by British troops. President James Madison was living in temporary quarters at the so-called Octagon House, having […]
Against a Crude Balance: Platform Security and the Hostile Symbiosis Between Liberty and Security
The Brookings and Harvard Law School Project on Law and Security, September 21, 2011 “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A […]
The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking
Coauthored with Robert M. Chesney, Larkin Reynolds and The Harvard Law School National Security Research Committee. Brookings Institution, May 12, 2011. In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” In that paper, two of the present authors sought to describe […]
Databuse: Digital Privacy and the Mosaic
Brookings Institution, April 1, 2011, “The question of privacy lies at, or just beneath, the surface of a huge range of contemporary policy disputes. It binds together the American debates over such disparate issues as counter-terrorism and surveillance, online pornography, abortion, and targeted advertising. It captures something deep that a free society necessarily values in […]
Imperiled By Innovation
Hoover Institution, February 16, 2011 Imagine that the Gulf oil spill had taken place as a consequence of a premeditated attack, rather than an accident. The damage is the same as it was; the oil flowed in the same volume. The only difference is volition: In this dark fantasy, someone meant to do it. In […]
Preventive Detention in American Theory and Practice
Coauthored with Adam Klein. Harvard National Security Journal, January 18, 2011 It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups1 and in a great deal of legal scholarship.2 It treats the […]
Rationalizing Government Collection Authorities: A Proposal for Radical Simplification
Coauthored with Rabea Benhalim and Wells C. Bennett. Brookings Institution, January 7, 2011 The life of every person in an advanced industrialized country is a mosaic of digital information stored on public and private computer servers around the world. Most of the tiles of your own personal mosaic do not reside in your hands. They […]
Innovation’s Darker Future: Biosecurity, Technologies of Mass Empowerment, and the Constitution
Brookings Institution, December 8, 2010 “Using gene-splicing equipment available online and other common laboratory equipment and materials, a molecular biology graduate student undertakes a secret project to recreate the smallpox virus. Not content merely to bring back an extinct virus to which the general population is now largely naïve, he uses public source material to […]
Designing Detention: A Model Law for Terrorist Incapacitation
Coauthored with Colleen A. Peppard, Brookings Institution, June 26, 2009 A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change […]
The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking
Brookings Institution, January 22, 2010 President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. As the United States reaches the president’s self-imposed January 22, […]
Looking Forward, Not Backward: Refining American Interrogation Law
Coauthored with Stuart S. Taylor, Jr. Part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, May 10, 2009 The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the […]
The Current Detainee Population of Guantánamo: An Empirical Study
Coauthored with Zaahira Wyne. Brookings Institution, December 16, 2008 The following report represents an effort both to document and to describe in as much detail as the public record will permit the current detainee population in American military custody at the Guantánamo Bay Naval Station in Cuba. Since the military brought the first detainees to […]
A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights
Coauthored with Mark Gitenstein, Brookings Institution, November 15, 2007 Six years after the September 11 attacks, the United States still lacks a stable, legislatively established policy for detaining suspected foreign fighters captured in the war on terrorism. American detention policy has eroded this country’s international prestige and public image, embroiled its military in continuous litigation, […]
Terrorism, the Military, and the Courts
Policy Review – Hoover Institution, June 1, 2007 The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they […]
What Is “Cruel and Unusual”?
Policy Review – Hoover Institution, December 1, 2005 The eighth amendment is a jurisprudential train wreck. Its proudly humane language banning “cruel and unusual punishments” may remain among the Bill of Rights’ most famous sound bites, but nobody today has the faintest clue what it means. The reason is as simple as it is sad: […]
Checks, Balances, and Wartime Detainees
Policy Review – Hoover Institution, April 1, 2005 The day the Supreme Court handed down what have collectively become known as the enemy combatant cases — June 28, 2004 — was both widely anticipated and widely received as a legal moment of truth for the Bush administration’s war on terrorism. The stakes could not have […]
Enemy Americans
The Atlantic Magazine, July / August 2004 June 10, 2002, the day John Ashcroft announced the arrest of Jose Padilla, marked a low point in Ashcroft’s career as Attorney General. The FBI had nabbed Padilla, a.k.a. Abdullah al-Muhajir, a full month earlier, at Chicago’s O’Hare International Airport, and Ashcroft happened to be in Moscow when […]
Benjamin Wittes 