Category Archives: Issue Archive

Nuclear Command and Statutory Control

Almost 50 years after Congress voted on limiting the President’s power to initiate nuclear war, a half century 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.

In this article, Dakota Rudesill 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, the national security statutory regime, and originalist scholarship. These developments have strengthened the constitutional case for Congress to craft guardrails to prevent abuse of the Commander-in-Chief power and foster careful inter-agency deliberation regarding any contemplated use of nuclear weapons. To catalyze further discussion and inform legislative action, this article includes the text of a model statute: a Nuclear Forces Control Act.

Reordering the Law for a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace

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 Citizenship Hook: Obligations to British and French Foreign Fighters Under the European Convention on Human Rights

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.