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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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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
Benjamin Wittes 