TM VOLUME 4 ISSUE 1 FALL/WINTER 2015 National Security Law Journal George Mason University School of Law 3301 Fairfax Drive Arlington, VA 22201 www.nslj.org © 2015 National Security Law Journal. All rights reserved. Library of Congress Publication Data (Serial) National Security Law Journal. Arlington, Va. : National Security Law Journal, 2013- K14 .N18 ISSN: 2373-8464 Variant title: NSLJ National security—Law and legislation—Periodicals LC control no. 2014202997 (http://lccn.loc.gov/2014202997) Past issues available in print at the Law Library Reading Room of the Library of Congress (Madison, LM201). VOLUME 4, ISSUE 1 (FALL/WINTER 2015) ISBN-13: 978-1523203987 ISBN-10: 1523203986 ARTICLES PLANNING FOR CHANGE: BUILDING A FRAMEWORK TO PREDICT FUTURE CHANGES TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Patrick Walsh QUANTUM LAWMAKING: HOW NATIONAL SECURITY LAW HAPPENS WHEN WE’RE NOT LOOKING Jesse Medlong COMMENTS TERROR IN MEXICO: WHY DESIGNATING MEXICAN CARTELS AS TERRORIST ORGANIZATIONS EASES PROSECUTION OF DRUG TRAFFICKERS UNDER THE NARCOTERRORISM STATUTE Stephen R. Jackson CYBERSPACE: THE 21ST-CENTURY BATTLEFIELD EXPOSING SOLDIERS, SAILORS, AIRMEN, AND MARINES TO POTENTIAL CIVIL LIABILITIES Molly Picard VOLUME 4 FALL/WINTER 2015 ISSUE 1 PUBLISHED BY GEORGE MASON UNIVERSITY SCHOOL OF LAW Cite as 4 NAT’L SEC. L.J. ___ (2015). The National Security Law Journal (“NSLJ”) is a student-edited legal periodical published twice annually at George Mason University School of Law in Arlington, Virginia. We print timely, insightful scholarship on pressing matters that further the dynamic field of national security law, including topics relating to foreign affairs, homeland security, intelligence, and national defense. Visit our website at www.nslj.org to read our issues online, purchase the print edition, submit an article, learn about our upcoming events, or sign up for our e-mail newsletter. The Editors of NSLJ can be contacted at: National Security Law Journal George Mason University School of Law 3301 Fairfax Drive Arlington, VA 22201 Publications: Our print edition is available from retail bookstores, including Amazon and Barnes & Noble. Digital versions of our full issues are available on our website, www.nslj.org. Submissions: We welcome submissions from all points of view written by practitioners in the legal community and those in academia. We publish articles, essays, and book reviews that represent diverse ideas and make significant, original contributions to the evolving field of national security law. For more information, please visit www.nslj.org/submissions/. Articles, manuscripts, and other editorial correspondence should be addressed to the NSLJ Articles Selection Editor at the mailing address above or by e-mail to [email protected]. VOLUME 4 FALL/WINTER 2015 ISSUE 1 2015-2016 EDITORIAL BOARD Editor-in-Chief Rick Myers Executive Editor Managing Editor Sean Murphy Lynzi Maas Articles Selection Editor Symposium Editor Molly Picard Kirstin Riesbeck Senior Articles Editor Senior Notes Editor Senior Research Editor Kevin Misener Molly Picard Stephen Jackson Articles Editors Notes Editor Research Editor Dillon Emmanuel Kirstin Riesbeck Zachary Deubler Sarish Khan Associate Notes Editors Sid Das Abhi Mehta Kelly Snyder Jennifer Zielonis Candidate Members Tony Batt Jameson Goodell Chelsea Smith Alexandra Diaz Bryan Grulkowski Christian Smith Steven DiBeneditto Rachel Komito Jaren Stanton Benjamin Ford Rebecca Lilly Richard Sterns Ligia Franco Peter Macchiaroli Alex Summerton Sarah Gilson Anna Miller Regan Whitehair Stephanie Goldberg Scott Schenking Alexis Wilhelmi Faculty Advisor Jamil Jaffer PUBLISHED BY GEORGE MASON UNIVERSITY SCHOOL OF LAW FOREWORD This issue marks the beginning of our fourth volume. The journal continues to grow at a rapid pace as evidenced by our largest Candidate Member class to date. Our success is possible because of our many dedicated readers and supporters. In this issue, Major Patrick Walsh, Associate Law Professor at the Army’s Judge Advocate General’s School, analyzes a framework where national security professionals can predict changes to the Foreign Intelligence Surveillance Act to determine which programs are at risk of removal by future executive, legislative or judicial action; and Jesse Medlong, an Associate at DLA Piper LLP (US), uses quantum theory to examine the unique legal role of delegated authority and standard operating procedures in the military. This issue also contains two comments by Mason students: Stephen Jackson proposes designating Mexican drug cartels as foreign terrorist organizations to facilitate prosecution, and Molly Picard examines potential civil liabilities for U.S. military personnel engaged in the cyberspace battlefield. I invite you to connect with us on social media via Facebook (facebook.com/NatlSecLJ), on Twitter (@NatlSecLJ), and on our YouTube channel (youtube.com/NatlSecLJ). I hope you enjoy this issue and that you will join the conversation so that we can continue our exploration in the dynamic field of national security law. Rick Myers Editor-in-Chief VOLUME 4 FALL/WINTER 2015 ISSUE 1 CONTENTS ARTICLES 1 PLANNING FOR CHANGE: BUILDING A FRAMEWORK TO PREDICT FUTURE CHANGES TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Patrick Walsh 25 QUANTUM LAWMAKING: HOW NATIONAL SECURITY LAW HAPPENS WHEN WE’RE NOT LOOKING Jesse Medlong COMMENTS 83 TERROR IN MEXICO: WHY DESIGNATING MEXICAN CARTELS AS TERRORIST ORGANIZATIONS EASES PROSECUTION OF DRUG TRAFFICKERS UNDER THE NARCOTERRORISM STATUTE Stephen R. Jackson 125 CYBERSPACE: THE 21ST-CENTURY BATTLEFIELD EXPOSING SOLDIERS, SAILORS, AIRMEN, AND MARINES TO POTENTIAL CIVIL LIABILITIES Molly Picard 1 PLANNING FOR CHANGE: BUILDING A FRAMEWORK TO PREDICT FUTURE CHANGES TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Patrick Walsh* In the last several years, the United States has begun to scrutinize the expansive surveillance powers that were enacted after September 11, 2001. Intelligence surveillance programs previously considered lawful and reliable ways to gather information are being rescinded by Congress, declared unlawful by the courts and restricted by the executive branch. In an era of increasing scrutiny on the intelligence community, national security professionals must look beyond the statutory authorization for intelligence gathering, and evaluate each intelligence program to determine if it will endure past current efforts to restrict government surveillance powers. This article will develop a framework to analyze our current intelligence gathering programs and determine which programs are at risk of removal by future executive, legislative or judicial action. By examining the historical struggle between the intelligence community’s need for broad powers to protect the nation from foreign enemies and our nation’s strong commitment to protecting the civil liberties of citizens from government intrusion, a national security lawyer can determine how our nation has expanded, modified, restricted, and rescinded other intelligence gathering programs to meet the nation’s national security goals. Comparing * Associate Professor, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia. J.D., 1998, University of California at Berkeley; L.L.M., 2009, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia; L.L.M. (candidate) 2016, University of Virginia Law School. The author is a military reservist currently serving on active duty. In his civilian life, he is an Assistant United States Attorney who handles national security cases for the U.S. Attorney’s Office in the District of Nevada. National Security 2 Law Journal [Vol. 4:1 the history and development with a modern look at how the public and the government have responded to current surveillance powers will illustrate the factors that create an increased risk for an intelligence program to be weakened or eliminated by judicial, legislative, or executive action. Using this framework, a cautious national security professional can carefully decide which of the currently available intelligence collection options are likely to both meet the current collection requirements and also endure the current increased scrutiny on surveillance. The Foreign Intelligence Surveillance Act (“FISA”) will change again, and national security professionals must be prepared for these changes. INTRODUCTION ................................................................................................ 2 I. THE BEGINNING OF THE INTELLIGENCE DEBATE—LIFE BEFORE FISA ............................................................................................. 4 A. Pre-Katz Intelligence Gathering ...................................................... 5 B. Katz and Search Warrants for Wiretaps ........................................ 6 C. Legislative Response to Katz, and Lead Up to FISA ...................... 8 II. FISA—THE BUILDING OF A WALL ........................................................ 10 A. How FISA Worked and How it Restricted Sharing ..................... 11 B. The Department of Justice and Its Restrictions on Access to Foreign Intelligence Information .................................................. 14 III. THE COUNTRY’S ABOUT-FACE: EMPOWERING LAW ENFORCEMENT TO USE FISA ................................................................. 15 A. Removing Restrictions and Adding New Authorities to FISA .... 15 B. Rising Concerns of Misuse of the New FISA Programs ............... 16