JournalTOCs

American University National Security Law Brief
Number of Followers: 7

This is an Open Access Journal

Open Access journal
ISSN (Print) 2160-102X
Published by WCL

[11 journals]

Revisiting Goldwater-Nichols: Why Making the Joint Staff A General Staff
will Improve Civilian Control of the Military and Refine the
Constitutional Balance of War Powers
- Authors: Michael D. Minerva
  Abstract: As the United States has progressively become more involved globally since World War II, the U.S. military is being stretched beyond the professional military competency straining civilian control of the military. To remedy this, it is again time to revisit our national security structure, and adopt a General Staff in place of the Joint Staff. Following World War II and the destruction of the German General Staff by the Nazi Party, the General Staff as an institution has been emotionally rejected in the United States without a careful historical and legal examination of how that institution operates under varying forms of government and without an understanding of how it would operate under the United States’ peculiar constitutional form of government. Exploring the historical and legal roots of the General Staff demonstrates that replacing the Joint Staff with a General Staff subordinated into the chain of command will act as a check on the ever-expanding influence of the military, while at the same time strengthening the military’s ability to decisively defend U.S. national interests. Further, a General Staff will clarify the constitutional separation of military powers in a way that mitigates the politicizing effects of the separation of powers doctrine restoring balance to the constitutional division of military powers.
  PubDate: Tue, 07 Feb 2023 18:55:19 PST
Regulating the Use of Military Human Enhancements that Can Cause Side
Effects Under the Law of Armed Conflict: Towards a Method-Based Approach
- Authors: Yang Liu
  Abstract: The development of human enhancement (HE) technology has rendered its military potential increasingly noticed by major military powers. It can be expected that “enhanced warfighters” or “super soldiers” will be used on the battleground in the foreseeable future, which can give rise to many legal issues.
  PubDate: Tue, 07 Feb 2023 18:55:12 PST
The Tallinn Manual 2.0 on Nation-State Cyber Operations Affecting Critical
Infrastructure
- Authors: Terence Check
  Abstract: Protecting critical infrastructure from cyber threats is difficult and complex. News headlines abound with reports that show how critical infrastructure—ranging from voting machines to steel mills—have become increasingly vulnerable to cyber operations from state and sophisticated nonstate actors. As critical infrastructure becomes increasingly entangled with the Internet and as new tactics, techniques, and procedures rapidly proliferate and evolve, governments and businesses alike must contend with a mutating threat environment that may put sensitive and highly important critical infrastructure assets in serious jeopardy. The vulnerabilities of critical infrastructure, which provide vital services and functions to societies, may pose a particularly tempting way for states to asymmetrically project power during an armed conflict or other crisis. Recent tensions between Russia and Ukraine have provided a useful test bed to consider how cyber-threat actors could couple cyber-based operations with movements of traditional military forces.
  PubDate: Tue, 07 Feb 2023 18:55:05 PST
President of the United States, Destroyer of Worlds: Considering
Congress's Authority to Enact a Nuclear No-First-Use Law
- Authors: John Ramming Chappell
  Abstract: This article argues that Congress can exercise its constitutional war powers to enact a law restricting the President from using nuclear weapons first. The article contends that using a nuclear weapon is qualitatively different from conventional warfare and that the first use of nuclear weapons marks a decision to enter into war. Therefore, nuclear first use is not a battlefield decision within the President’s commander in chief power but rather a choice to enter the United States into a new type of conflict that could pose a direct, immediate, and existential threat to the U.S. homeland. Regulating that decision falls under Congress’s exclusive war powers. Congress can limit its authorizations of war and prohibit military actions beyond its authorization. Therefore, Congress could stipulate that its war authorizations extend only to conventional hostilities unless Congress expressly authorizes the first use of nuclear weapons. Using its authority to limit authorizations of for the use of military force, Congress can enact a no-first-use law.
  PubDate: Tue, 05 Jul 2022 09:50:26 PDT
The American Security Drone Act: America's Paper Tiger vs.
China's Trojan Horse
- Authors: Susan E. Upward
  Abstract: The skies above America have been increasingly inundated with small unmanned aircraft systems (sUAS) operated by both government agencies and civilians alike. The majority of these drones are manufactured by Da-Jiang Innovations (DJI), a Chinese company that continues to emerge as a national security threat. The risk posed by these drones stems not only from physical access to American airspace, but also from the surreptitious transmittal of information back behind the “Great Firewall of China” via DJI mobile device applications. However, current pending legislation is inadequate to effectively counter this threat. Instead, the United States should take a more comprehensive approach – use existing laws to deny DJI access to U.S. airspace, develop new legislation to curtail access to sensitive information in cyberspace, and take measures to counter consumer reliance on foreign sUAS by investing in the American drone manufacturing industry.
  PubDate: Tue, 05 Jul 2022 09:50:20 PDT
The New Great Wall Against China
- Authors: Paul Rose
  Abstract: This essay documents some of the recent changes in foreign investment law as a manifestation of increasing concerns with Chinese investment specifically and globalization more generally. The essay first shows how foreign investment laws in major economies have become increasingly illiberal since the Financial Crisis. Next, the essay considers the justification and impact of recent United States rules designed to reduce Chinese investment. Comparing data on merger and acquisition activity in the United States with the number of filings made to the Committee on Foreign Investment in the United States (CFIUS), the essay documents that although merger and acquisition activity is very highly correlated with CFIUS notice filing activity over the past decade, the data suggest that enhanced regulation has had its intended effect in reducing the amount of foreign investment in regulated industries and firms. In particular, the regulation—and more importantly, the way that regulation has been enforced—has served its seemingly intended purpose as a new “great wall” against Chinese investment.
  PubDate: Tue, 05 Jul 2022 09:50:13 PDT
Letter from the Editor
- Authors: Ryan Nelson
  PubDate: Tue, 05 Jul 2022 09:50:06 PDT
Equal Protection For All: Violent Extremism at the Intersection of Hate
Crime and Terrorism
- Authors: Gabrielle Leeman
  Abstract: After a white supremacist used his vehicle as a weapon to purposefully attack anti-racism protestors in Charlottesville, Virginia in 2017, federal officials called the incident domestic terrorism. The incident, in fact, met the definition of domestic terrorism. But the perpetrator was not prosecuted under any of the available terrorism statutes. The defendant was instead charged with, and later pled guilty to, committing hate crimes. It is imperative that we recognize all forms of terrorism as terrorism and use the legal system fairly to prosecute all terrorist attacks as terrorism. But the current terrorism statutory framework hinders the ability to prosecute incidents of extreme-right violence as terrorism. This Article argues that many incidents of extreme-right violence are terrorism and should be prosecuted as terrorism. This Article also proposes Congress update the definition of “weapon of mass destruction” to include (1) the use of a vehicle as a weapon and (2) mass shootings. These definitional updates provide a viable path forward for prosecution of violent extreme-right perpetrators as terrorists because it would make available 18 U.S.C. § 2332a, 18 U.S.C. § 2339A, and the terrorism sentencing enhancement. The United States owes it to the victims of such horrific incidents of extreme-right violence to finally prosecute these perpetrators for what they are—terrorists.
  PubDate: Tue, 01 Mar 2022 13:35:22 PST
Private Military Contractors: The Armed Forces Absent from the War Powers
Resolution
- Authors: McKinney Voss Wheeler
  Abstract: Private military contractors (PMCs) are increasingly ubiquitous in international conflicts, providing security, transport services, and even fighting alongside commissioned troops in battle. Yet for the United States, the ambiguity surrounding PMCs’ role in war presents a serious threat to the constitutional balance of war powers. The Founding Fathers deliberately divided those powers between the executive and legislative branches, aware of the dangers of concentrating them too heavily; and Congress further clarified protocol with the War Powers Resolution in 1973. But the War Powers Resolution, which requires the President to notify Congress when engaging "U.S. Armed Forces" in battle, omits any reference to PMCs—a loophole the executive could exploit to take action abroad without Congressional knowledge or approval. Congress must either revise the War Powers Resolution to include PMCs or else pass new legislation regulating their use if it hopes to prevent executive overreach and an increasing reliance on hired guns to fight America's battles.
  PubDate: Tue, 01 Mar 2022 13:35:15 PST
Letter from the Editor
- PubDate: Tue, 01 Mar 2022 13:35:08 PST
The Artemis Accords: Employing Space Diplomacy to De-Escalate a National
Security Threat and Promote Space Commercialization
- Authors: Elya A. Taichman
  PubDate: Mon, 09 Aug 2021 06:43:42 PDT
The Right of Return: The ISIS Bride
- Authors: Casey Hare-Osifchin
  PubDate: Mon, 09 Aug 2021 06:43:34 PDT
An Analysis of Domestic and Foreign Legal Mechanisms to Counter the Rise
of White Nationalism
- Authors: John C. Jankosky II
  PubDate: Mon, 09 Aug 2021 06:43:27 PDT
The Capitol Riot, Racism and the Future of American Democracy
- Authors: Ryan T. Williams
  PubDate: Mon, 09 Aug 2021 06:43:21 PDT
Rethinking Responsibility as Cooperation and Control: The Case of
Intelligence Agents
- Authors: Raphael Bitton
  PubDate: Mon, 09 Aug 2021 06:43:13 PDT
The Case for Presumptions of Evil: How the E.O. 13873 'Trump'
Card Could Secure American Networks from Third-Party Code Threats
- Authors: Caroline Elyse Burks
  PubDate: Fri, 28 May 2021 16:31:23 PDT
The Conservative Court and Torture Attenuation
- Authors: Ari B. Rubin
  PubDate: Fri, 28 May 2021 16:31:16 PDT
Leveraging Domestic Law Against Cyberattacks
- Authors: Justin Malzac
  PubDate: Fri, 28 May 2021 16:31:09 PDT
Editorial Note
- Authors: Karen Kim
  PubDate: Fri, 28 May 2021 16:31:02 PDT
Congress-In-Chief: Congressional Options to Compel Presidential War-Making
- Authors: Clark H. Campbell
  PubDate: Wed, 11 Mar 2020 07:31:42 PDT