William C. Banks

Customary Constraints on the Use of Force: Article 51 with an American Accent

This Article, prepared for a symposium on ‘The Future of Restrictivist Theories on the Use of Force,’ examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of the UN Charter. Instead, they generally focus on legal constraints outside the Charter’s text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The Article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the tradition’s influence on debates over anticipatory self-defense and the use of force against non-state actors abroad. The Article concludes by examining how the American restrictivist tradition is beginning to shape the United States’ approach to the use of force in response to cyber attacks.

An emerging international legal architecture for cyber conflict

Assume that senior government ministers meeting to discuss economic policies at the capital in a major industrial State are interrupted by an assistant who reports that large scale malware programs have infected the critical infrastructure of the State and its private sector. In the security sector, large-scale routers throughout the network are failing, and classified systems have been penetrated. As the ministerial meeting suddenly shifts its attention to the fast-spreading cyber-intrusion, the malware continues to spread, causing Internet-based systems to fail throughout the country. Government and financial institutions continue to be besieged by a distributed denial-of-service attack from tens of thousands of computers organized into botnets – a slang term for the tool that enslaves the computers of unknowing victims. Banks were forced to shut down, incoming payments due from abroad could not arrive, and government ministries closed up shop. Credit card companies shut down their networks worldwide, fearing the spread of the attacks. Meanwhile, the national government closed all its electronic borders. There was as yet no physical damage and no deaths or injuries attributable to the cyberattacks, but the economic and social costs were high and mounting. As the government’s security, intelligence and law enforcement resources scrambled to identify the source of the attacks and implement defensive measures, legal advisors faced their own challenges. The first intelligence reports showed the sources of the attack coming from computers all over the world, but with no clear indications of any State sponsorship or involvement. Meanwhile, terrorist groups opposed to certain of the victim State government’s policies have threatened attacks, but as yet the attacks cannot be clearly attributed. What body of law applies in responding to the attacks? Is the nation at war? If so, who is the enemy? Has there been a ‘use of force’ or ‘armed attack’ sufficient to trigger self-defense prerogatives under the UN Charter? Do the attacks create an ‘armed conflict’ between the State and the as yet unidentified

Law and Terrorism in the US and Beyond

Development of a legal regime to counterterrorism is a modern phenomenon that is maturing in the twenty-first century. Prior to the 9/11 attacks, in most states terrorism was treated as criminal behavior, and the methods of deterring and sanctioning terrorism were drawn from the law enforcement experience. Counterterrorism law today includes distinct prevention elements, including investigations and detention authorities, discrete interrogation rules and practices, and the use of military force, among other elements. Counterterrorism law blends international and domestic laws, and includes human rights protections, special laws to govern armed conflicts, and several specific international treaties that respond to unique attributes of international terrorism.

Exceptional Courts in Counterterrorism: Lessons from the Foreign Intelligence Surveillance Act (Fisa)

The Military Commissions scheme established by President George W. Bush in November 2001 has garnered considerable national and international controversy. In parallel with the detention facilities at Guantanamo Bay, Cuba, the creation of military courts has focused significant global attention on the use of such courts as a mechanism to process and try persons suspected of committing terrorist acts or offenses during armed conflict. This book brings together the viewpoints of leading scholars and policy makers on the topic of exceptional courts and military commissions with a series of unique contributions setting out the current “state of the field.” The book assesses the relationship between such courts and other intersecting and overlapping legal arenas including constitutional law, international law, international human rights law, and international humanitarian law.

Exceptional Courts in Counterterrorism

The Military Commissions scheme established by President George W. Bush in November 2001 has garnered considerable national and international controversy. In parallel with the detention facilities at Guantanamo Bay, Cuba, the creation of military courts has focused significant global attention on the use of such courts as a mechanism to process and try persons suspected of committing terrorist acts or offenses during armed conflict. This book brings together the viewpoints of leading scholars and policy makers on the topic of exceptional courts and military commissions with a series of unique contributions setting out the current “state of the field.” The book assesses the relationship between such courts and other intersecting and overlapping legal arenas including constitutional law, international law, international human rights law, and international humanitarian law.