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Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702

Peter G. Machtiger[*] [Full text of this Article in PDF is available at this link] Introduction Following the terrorist attacks of September 11, 2001, the United States government rallied around its national security apparatus to improve its ability to detect and prevent future acts of terrorism. As part of this mission, the Intelligence Community was asked to “identify and target plotters in some of the most remote parts of the world and to anticipate the actions of networks that, by their very nature, cannot be easily penetrated with spies or informants.”[1] Improvements in surveillance technology meant that there were “fewer and […]

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Legal Dialogue on Human Rights Obligations: NATO’s Aegean Sea Activity as a Case Study

Steven Hill[*] & Benjamin Bastomski[†] [This essay is available in PDF at this link] Introduction This Article examines the background, design, and early execution of NATO’s naval deployment in the Aegean Sea in support of broader international efforts to address the 2016 crisis involving persons crossing or attempting to cross waters in that area.[1] That crisis was often popularly referred to interchangeably as a “refugee crisis” or “migrant crisis.”[2] For the purposes of this Article, we distinguish between “refugee” and “migrant,” as these are different legal terms.[3] In the midst of intensive focus on this growing crisis in early 2016, ministers

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A New AI Strategy to Combat Domestic Terrorism and Violent Extremism

Jonathan Fischbach[*] [This essay is available in PDF at this link] Introduction: A Revealing Inversion Data scientists utilize artificial intelligence (AI) in thousands of different contexts, ranging from analytics that design culinary masterpieces and identify illegal fishing, to algorithms that diagnose cancerous tumors, virtually compose symphonies, and predict vehicle failures.[1] Two communities within this expansive field, acting independently and without coordination, are currently experimenting with AI for the same narrow purpose—to determine whether machine-learning algorithms can discover patterns in demographic and behavioral data that identify actors likely to endanger innocent people. One group—the national security community—is tightly organized and well financed,

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Why Strict Cabinet Succession Is Always Bad Policy: A Response to Professor Jack Goldsmith and Ben Miller-Gootnick

Seth Barrett Tillman[*] [This essay is available in PDF at this link] In their Lawfare post,[1] Professor Jack Goldsmith and Ben Miller-Gootnick put forward the traditional argument that legislative-officer succession, as permitted by the Presidential Succession Act of 1947 (1947 Act),[2] leads to undesirable and destabilizing changes in party control. Quoting a report of the Continuity in Government Commission, Goldsmith and Miller-Gootnick write: [A] “political zealot might seek to change the party in the executive branch with a single attack,” or a “freak accident might lead to a sudden change in party” that controlled the presidency. [The report] added that

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Yes, Trump’s Shakedown of Ukraine Was Impeachable “Bribery”

A Government Lawyer[*] [This essay is available in PDF at this link] Introduction About two weeks before the U.S. House of Representatives impeached President Trump, Professor Josh Blackman and Seth Barrett Tillman published an article on Lawfare. In it, they argue that Trump’s withholding from Ukraine of military aid and a White House meeting, meant to pressure it to announce an investigation of Joe and Hunter Biden, did not amount to bribery for impeachment purposes.[1] Trump was ultimately impeached, and subsequently acquitted, for “abuse of power” rather than bribery,[2] but because their argument may be invoked during future impeachments, it

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Complex Determinations: Deciphering Enemy Nuclear Intentions

Louis René Beres[*] [This essay is available in PDF at this link] Introduction In early May 2019, U.S. President Donald Trump—responding to Kim Jung-un’s latest round of missile tests—sought to reassure the American public. His seat-of-the-pants comments, however, were based entirely upon the presumed importance of his personal relationship with Kim Jung-un and had nothing to do with any measurably refined strategic assessments or “preparation.” In these public comments, Trump has stressed that “attitude,” not “preparation” matters. This philosophy undermines U.S. deterrence and fails to account for strategic assessments that should influence the President’s understanding of the unprecedented threats posed

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