Almost 50 years after Congress voted on limiting the President’s power to initiate nuclear war, 45 years after an intoxicated Commander in Chief reportedly called for nuclear strikes, and 30 years after the Cold War and its conversation about nuclear command and control ended, today the nation is again discussing nuclear launch authority.
Dakota Rudesill’s article emphasizes that this interdisciplinary conversation is importantly legal, due in part to claims and assumptions that nuclear weapons are constitutionally special – unconstitutional, reserved only to the President, or usable only if Congress has formally declared war. This article recommends instead that Congress make nuclear weapons statutorily special.
That is, Congress should recognize the nightmarish risks associated with unfettered Executive power over nuclear launch, acknowledge the importance of good process in decision-making, and write specially tailored rules informed by the covert action statute and other national security frameworks.
This article moves the nuclear command and control conversation forward, analyzing developments over the past 30 years in military planning, international security, Supreme Court doctrine, and the national security statutory regime that have strengthened the case for Congress to craft guardrails to prevent abuse of the Commander in Chief power and foster careful inter-agency deliberation. To catalyze further discussion, this article includes the text of a model statute: a Nuclear Forces Control Act.
As the United States and China hurl toward a potential Thucydides Trap, the Chinese government has steadily laid groundwork as a global leader in emerging technologies. Maj. Bret White’s article examines Chinese thought as to that country’s place in the world: a leader in some respects; an outcast in others – but always an innovator.
Next, the article applies this thinking to the interests of China in two critical domains, outer space and cyberspace. By probing China’s vision to reshape the international legal landscape as the world becomes increasingly bipolar, space becomes fuller, and cyberwarfare expands, the article serves as a roadmap for national security practitioners and attorneys working with China.
The rise of ISIS was characterized by unprecedented numbers of Western citizens traveling across the globe to fight for the “caliphate.” Their capture created a humanitarian crisis in the region: what to do with those citizens who were captured by the Iraqi and Syrian governments? European governments, the UK and France in particular, have been less than enthusiastic about repatriating their citizens to face trial at home.
Nicole Molinaro examines the situation of British and French nationals who are currently facing trial or have already been convicted as ISIS foreign fighters in Iraqi courts. She discusses domestic legal and policy regimes established by the UK and France to deal with nationals accused of engaging in terrorism, the ECHR’s substantive protections and whether they are violated, the extraterritorial scope of the ECHR, and proposes an additional basis for European countries expanding extraterritorial jurisdiction: Citizenship.
Molinaro ultimately concludes that the ECHR has jurisdiction over the individuals and that the UK and France violate articles 2 and 3 by refusing to take custody of their citizen foreign fighters.
In the relatively near future, the United States and other countries are likely to develop varying levels of artificial intelligence (AI) and integrate it into autonomous weapons. There are significant voices, spearheaded by The Campaign to Ban Killer Robots, advocating for a preemptive ban on these weapons.
The opponents of lethal autonomous weapon systems (LAWS) argue that it is unethical to allow a machine to decide when to kill and that AI will never be able to adhere to International Humanitarian Law (IHL) obligations. These opposition campaigns have led to discussions in the international community about developing a legal framework for LAWS. While a requirement for meaningful human control (MHC) has gained traction within certain UN bodies, the United States has objected to the use of the standard, arguing that such an ambiguous standard would further obscure the challenges posed by LAWS.
Maj. Matthew Miller’s article seeks to provide a solution to the ambiguity of MHC and provide a workable definition of the standard. Miller reviews the ways humans can interact with autonomous systems, examining the ways humans are placed in a system’s decision loop, and relevant provisions of IHL to LAWS. Miller ultimately uses the lens of command responsibility to demonstrate how MHC can be applied to the design and use of LAWS, ultimately concluding that this method can address concerns that the use of LAWS will prevent accountability for IHL violations.
Although acts of cybercrime and cyberwar are different, the lines between the two have been become blurred over time. The nature of cyberspace has complicated the pre-existing doctrine for armed attacks, yet they are still being applied. Furthermore, the United States historically has responded to malicious cyber activity through a militarized lens.
This tendency to lean towards and emphasize a militarized approach has displaced the domestic law enforcement approach and left it inadequately trained, inadequately resourced, and inadequately supported to identify, deter, and punish offenders. Discussions currently neglect other existing frameworks and the development of new ones to address malicious cyber activity
Without a comprehensive international legal framework governing malicious cyber activity, Mieke Eoyang and Chimène Keitner seek to encourage greater awareness of the consequences of viewing malicious cyber activity through only an armed conflict lens.