I have just posted updated draft of my forthcoming article #Nuclear Command & Statutory Control in peer-review @natseclaw. It is about law & nukes, trying to update & deepen vital convo. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689074 THREAD. 1/x
As I have discussed & workshopped it over last yr & a half at confs @YaleLawSch @StanfordCISAC @StanfordLaw @georgetownlaw @dukelaw @CSISPoni @US_Stratcom @UNLCollegeofLaw, article both makes an arg for an actionable statute and has larger projects. 2/x
I start w 3 nuke nightmares: (i) initiated/imminent enemy attack, (ii) Rogue Pres (crazy launch order), (iii) Precipitous Pres (reaches for button too fast). We need nuke cmd & ctrl system law/policy/tech to allow rapid decision on (i), slow down (ii) & (iii). 3/x
Today, the nuke command & control system is a Cold War relic in sense that optimized for (i). Essentially no guardrails for (ii) or (iii). Everyone should worry. Public & experts are worried. 4/x
Ergo I urge framework statute – I include a FULL DRAFT at end - on #nuclearweapons using its powers to raise forces, declare war, control funds, necessary & proper, & esp write Rules to govern & regulate forces ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3022012) & structure process. 5/x
Draft statute does NOT disturb core POTUS Art II powers. Does not direct mil forces, displace POTUS as top mil commander, insert Congress into chain of command, nor give subordinate a veto. Does nothing to reduce cmd & ctrl system flexibility/responsiveness. 6/x
Draft statute DOES write Rules for nuke forces. Well-settled that POTUS subject to statute even in war (Barreme, Youngstown, Hamdan). Statute codifies use policy of Obama & Trump NPRs: militarily necessary in extreme circumstances to defend vital interests. 7/x
Nukes only usable if other law provides authority (not this statute) -AND- either face imminent attack (defined as w/in 72 hrs based on capabilities/intents), or NSC analysis of mil, legal, intel, & non-nuke alternatives is conducted under coord of VP & reported to Congress. 8/x
Today no requirement for legal review prior to use of nukes, nor involvement of any legal advisor, in the law or in public understanding of the nuclear cmd & ctrl system. As time permits, statute gets the law & lawyers into process, where they absolutely positively belong. 9/x
Note that this “good process” statute would run over top of other legal authority grants/conditions – Art II POTUS authority, @TedLieu @SenMarkey @ewarren No First Use statute, or an AUMF – in same way FISA runs over top of AUMFs / war declaration, governing surveillance. 10/x
By codifying criteria & imminence def, legal review, VP report, & reports to Congress by SECDEF DNI CJCS or STRATCOM *anytime* in their judgment nuke attack imminent, statute builds norms & provides firmer footing for pushback, informing Congress, quitting if POTUS bonkers. 11/x
Statute also makes clear an order at odds with statute is an illegal order. Draft also bars funding for operations not in accordance with statute. And prevents POTUS from appointing someone outside the regular nuclear chain of command if s/he starts firing subordinates. 12/x
Of course, no guarantee that committed POTUS willing to fire subordinates could be stopped. But this statute provides legal standards and builds norms & process expectations that would make an atomic atrocity harder for a rogue/precipitous POTUS to pull off. 13/x
Ok, so that’s what my forthcoming @natseclaw article recommends. Here are its larger projects. Yes, I have agendas. 14/x
FIRST is broadening revived nuke cmd & ctrl convo to include deeper/proper role for law & lawyers. Trump’s “fire & fury” etc caused revival of convo after 30 yr gap. Lots of people want change & bills in Congress on No First Use. But very limited engagement by legal experts. 15/x
But even the limited law-and-nukes convo still dominated by No First Use / abolitionists outside govt, and presidentialist thinking inside govt & some policy/mil communities (where it is often inertial, unexamined, unchallenged because so few legal scholars in convo). 17/x
That brings us to article’s SECOND meta-project: setting out that Congress has powerful & unused constitutional authority – over nukes, and national security generally. 18/x
Indeed, since Cold War the constitutional ground for Congress to govern use of force has gotten *firmer*. @Marty_Lederman, David Barron, S Prakash, J Lobel, Akhil Amar, Michael Glennon & others have provided deeper originalist understanding of Congress power over sword. 19/x
Also, most likely nuke use no longer massive nuke war w Moscow. Instead, would look more like bin Laden raid – warning plus time for review of all options, intel, & law; limited use of force maybe vs bunker. Equals constitutional room for Congress to require “good process.” 20/x
And, Supreme Court in Hamdi & Hamdan underscored that POTUS subject to statute & invalidated wartime order. Additionally, thick practice around statutes that limit executive power: covert action & FISA. 21/x
My draft statute raids covert action statute, FISA, plus posse comitatus, Insurrection Act, Intel Oversight Act, Goldwater-Nichols for proven features of the national security legal regime & repurposes to put reasonable guardrails on use of nuclear force. 22/x
THIRD agenda: Congress should make nukes *statutorily special* like covert action & surveillance are stat special. Alternative to old law-and-nukes back & forth b/w 2 camps of “constitutionally special” thinking: Congress must declare war, or nukes must be left to the POTUS. 23/x
FOURTH aim: overdue to mandate legal review & legal advisors in nuke cmd & ctrl. Now legal review mainly “baked in” as JAGs consulted as plans built. But facts & intel change fast. And review slows impulsive ldrs. Unless nukes about to launch/inbound, must have legal review. 24/x
FIFTH/final project: build norm of including draft instruments in articles: full statute, reg, exec order. Drafts make work actionable for busy ppl. Having to draft exposes flaws & opportunities. And in our textualist & “republic of statutes” (and regs) times, drafting key. 25/x
This article over last yr has benefit of convos, workshops, & great writing of colleagues. In addition to folks already tagged I’ll ID a few more who are on Twitter (they get only thx; I am responsible for any errors). Thank you @nukestrat @mattkorda @marknevitt @petermshane 26/x
Ok, if you are still here big thanks for reading this thread! I hope you enjoy the article. It has not yet gone to final and I do appreciate comments. Kindly RT to help get it read! Thanks. 28/FIN
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