Michael N. Schmitt & Sean Watts[*] [Full text of this Article in PDF is available at this link] I.   Introduction In May 2019, during remarks at the annual International Conference on Cyber Conflict, Estonian President Kersti Kaljulaid offered her government’s views on a number of key international legal questions relating to cyberspace.[1] Expressing concern at the growing frequency of malicious cyber operations, she announced the following: Estonia is furthering the position that states which are not directly injured may apply countermeasures to support the state directly affected by the malicious cyber operation. The countermeasures applied should follow the principle of […]

Daniel Larsen[*] [Full text of this Article in PDF is available at this link] I.   Introduction The Trump Administration’s 2019 indictment of Julian Assange[1] under the Espionage Act of 1917[2] set off a wave of alarm across the press.[3] A decade earlier, the Obama Administration had launched what was called a “war on leakers”[4] as it became the first administration in history to regularly deploy the Espionage Act against sources who passed classified information to journalists.[5] The Trump Administration became the second.[6] These leak prosecutions have intensified longstanding scholarly fears that the eventual targets of Espionage Act prosecutions could be

Pavan S. Krishnamurthy & Javier Perez[*] [Full text of this Article in PDF is available at this link] I.   Introduction On June 3, 2020, General (ret.) James Mattis addressed protesters who were physically dispersed from Lafayette Square to facilitate what he considered to be a photo opportunity by President Trump at St. John’s Church in The Atlantic: I have watched this week’s unfolding events, angry and appalled . . . . The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values—our values as people and our values as

Laura K. Donohue[*] [Full text of this Article in PDF is available at this link] I.   Introduction In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA) to govern domestic electronic intercepts undertaken for foreign intelligence purposes.[1] The statute represented the culmination of years of hearings directed to understanding the scope of surveillance programs conducted with little to no oversight that had resulted in the collection of significant amounts of information on U.S. citizens.[2] It also reflected the U.S. Supreme Court’s determination that the Fourth Amendment prohibited the government from undertaking surveillance for domestic security purposes absent independent judicial oversight.[3] The

Brig. Gen. (ret.) David Wallace, Col. Shane Reeves, and Maj. Trent Powell [*] [Full text of this Article in PDF is available at this link] I.   Introduction Civilians contribute to nearly every war effort, and always have. Throughout history, non-military personnel have supplied logistic, economic, administrative, and political support to parties in armed conflicts. When civilian contributions are indirect and away from battlefields, there has historically been little concern about those participants jeopardizing their protected status under the Law of Armed Conflict (LOAC). More recently, however, belligerents have begun using civilians in capacities that involve greater or more direct participation in

Elizabeth K. Kiessling[*] [Full text of this Article in PDF is available at this link] I.   Introduction States increasingly use their military forces to execute “gray zone tactics” in pursuit of strategic objectives.[1] These tactics exceed the limits of accepted peacetime competition between states but avoid rising to a level that would warrant a conventional military response.[2] Whether by design, necessity, or chance, these tactics fall somewhere between war and peace on the use-of-force spectrum, though exactly where they fall is difficult to say with any certainty. Do military-on-military gray zone tactics violate the prohibition on the threat of or use