New Issue of Harvard National Security Journal

By Jack Goldsmith
Tuesday, January 30, 2018, 11:00 AM

The Harvard National Security Journal’s fall issue, published earlier this week, has five articles that may be of interest to Lawfare readers.

Judge Anthony Trenga examines the legal issues at the heart of the state secrets privilege—separation of powers, non-justiciability, evidentiary privilege, national security interests and military secrets—and the two primary doctrinal tracks that judges invoke. Then, based on interviews with 31 federal judges, Trenga offers insights into how judges consider applying the state secrets privilege to sensitive material.

Professor Michael N. Schmitt and Major Chad Highfill discuss the potential implications under international law of modern weapons of war that cause traumatic brain injury outside their immediate blast radius through concussive effects. The authors consider concussive effects through the established principles of the laws of war with respect to civilians: proportionality and precaution.

Mara Revkin argues for a new targeting doctrine in the age of terrorist groups that engage in the dual functions of warfare and governance. She explains how existing counterterror targeting doctrine has resulted in the unnecessary death of civilians and destruction of objects and provides recommendations that promote greater adherence to international humanitarian law.

Ido Kilovaty considers the consequences of the Russian hacking of the Democratic National Committee’s email servers during the 2016 presidential election on the international law order and American sovereignty. He argues that the legal standards of “coercion” and “intervention” are ill-fitted to the debate over strategic cyber infiltration and leaks by hostile nation-states. Kilovaty proposes a new standard of cyber “sabotage” that will more fully deter the weaponization of information by geopolitical rivals.

Captain Robert Lawless asserts that Russia is in violation of international law under the theory of state complicity, based on its repeated denial of the Syrian government’s wrongdoing and its implicit encouragement of the regime’s human rights atrocities. He then considers the legal consequences of finding Russia responsible under international law, as well as the prospects for holding Russia accountable.