Category Archives: Vol. 13 No.1

Migrants as a Weapons System

While the international community generally considers mass migrant population flows across nation-states a primarily humanitarian crisis, Aaron Petty argues that it is often an intentional tool of aggression used by nation-states. The weaponization of migrants is the instrumentalization of population flows through both the threat and the actual migration of people into the territory of a target state. Use of migrants as a weapons system has a long history of being employed by nation-states as an act of aggression to obtain strategic foreign policy objectives.

In this article, Petty suggests that the weaponization of migrants is likely to increase against the United States and its allies, particularly where the current geopolitical environment of strategic competition between large powers is playing out below the level of armed conflict. Petty argues that weaponization of migrants could be deemed a violation of international law relating to armed conflict, and the United States should advocate that such tactics are not legally permissible and may justify legitimate retaliation to deter such weaponization.  

TikTok v. Trump and the Uncertain Future of National Security-based Restrictions on Data Trade

In recent years, foreign bulk data collection of US citizens’ personal data has emerged as a new and increasing national security threat. The ability of foreign adversaries to collect—and in some cases, buy outright—US person data is officially governed by IEEPA and CFIUS. Bernard Horowitz and Terence Check argue that these regulatory frameworks are ill-suited for the particular issues raised by present-day data processing technology.

The authors examine both IEEPA and CFIUS in turn—how these regulations function in practice, and how they apply to bulk adversarial data collection. The authors focus particularly on the recent decision in TikTok v. Trump and how it may undermine the ability of the United States to restrict data trade on national security grounds.

Bernard Horowitz is Law Clerk for Senior Judge Mary Ellen Coster Williams of the United States Court of Federal Claims. This article does not reflect the views of the Court of Federal Claims or Judge Williams, and was written solely in the author’s personal capacity and not as part of his court-related duties.

Terence Check is Senior Counsel, Cybersecurity and Infrastructure Security Agency, Department of Homeland Security; LL.M in Law & Government, specializing in National Security Law & Policy, American University Washington College of Law (2015); J.D., magna cum laude, Cleveland State University, Cleveland-Marshall College of Law (2014); Editor-in-Chief, Cleveland State Law Review (2013-2014). This article does not reflect the official position of the US government, DHS, or CISA and all opinions expressed are solely those of the authors. He is the author of “Turning US Vetting Capabilities and International Information-sharing to Counter Foreign White Supremacist Terror Threats” in the JNSLP Online Supplement.

 

The First Calling Forth Clause: The Constitution’s Non-Emergency Power to Call Forth the Militia to Execute the Laws

Alden Fletcher analyzes the historical origins and intent behind the Constitution’s “Calling Forth Clause” that has served as a foundation for confiding vast military authority in the president and potentially allowing the use of military force against civilians. While scholars have interpreted the Clause’s original meaning as requiring violent resistance to the laws before military force may be brought to bear, Fletcher shows that evidence from English, colonial, and founding-era history reveals the Clause was designed without such narrow constraints.

But historical evidence also suggests Congress and the judiciary could be intimately involved in the decision of deploying military forces domestically. Fletcher thus concludes that the founding era history both supports broad permission of the federal government to use troops domestically, as well as a significant ability of Congress and the courts to check the executive’s use of military force, even in a crisis.