War Powers and the Return of Major Power Conflict

The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch’s operational understanding of constitutional war powers, specifically as they relate to the use of military force. This Article ultimately argues that the political branches must acknowledge and begin dialogue on how to approach the new strategic challenges the United States is facing. Otherwise, they risk compounding the political crisis of a major power conflict with a constitutional crisis over how the President may respond.

A resilience agenda is an essential part of protecting national security in a digital age. Emphasizing resilience offers several benefits: 1) Resilience is threat agnostic or at least relatively threat neutral; 2) its inward focus emphasizes actions under the control of a targeted country, rather than attempting to change behaviors of external adversaries; and 3) because resilience can address multiple threats simultaneously, it may be less subject to politicization. This Article identifies tactics to bolster resilience against digitally enabled threats across three temporal phases: anticipating and preparing for disruptions, adapting to and withstanding disruptions, and recovering from disruptions. This Article concludes that a resilience strategy is ours to imagine and pursue, and doing so is a crucial step to strengthen national security for a digital age.

With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. These are not challenges of a far-off future; they are already here. Judges will increasingly need to establish best practices to deal with a potential deluge of evidentiary issues. Our suggested approach illustrates how judges can protect the integrity of jury deliberations in a manner that is consistent with the current Federal Rules of Evidence and relevant case law.

This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. This Article explains how usual IP norms can frustrate public health and national security, why current proposals for a pandemic agreement are largely inadequate, as well as what countries can and should do to protect national security even if there is not adequate consensus for binding obligations in an international pandemic agreement.

Past efforts to “reimagine” national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving beyond the law, the agenda presented in this Article examines the structural power dynamics and political economy of national security, demonstrating why these issues are important to reimagining and transforming how we approach the discipline of national security as legal academics and advocates.

National security and cultural heritage protection are connected in several ways. This Article explores how the real or perceived relationship between threatened cultural heritage and national security developed, how this relationship has changed U.S. foreign and cultural policy, and whether these changes are for the better or the worse from a broader policy perspective, particularly with respect to the goal of cultural heritage preservation.

This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change’s national security impacts. This Article ultimately argues that it is far better to proactively acknowledge and address climate change’s national security impacts today rather than waiting for catastrophe to strike. Indeed, upon closer examination, climate change is not just a complex collective action environmental problem—it also is a challenging national security issue with far-reaching impacts.

This Article advances both legal and sociocultural explanations for the near absence of treason charges in the “war on terror” and the implications for addressing political violence. On the legal side, terrorism charges have replaced treason because they enable the government to do almost everything that it once sought to accomplish with treason charges: they impose extraordinary stigma, they reach speech and advocacy, and they trigger severe penalties. At the same time, terrorism charges face fewer limits than treason charges: they criminalize conduct far removed from actual plots, they require a lesser showing of intent, and they dispense with treason’s constitutionally imposed evidentiary restriction. This Article argues that reimagining national security requires vigilance regarding the shape-shifting nature of responses to political violence.

This Article considers the national security implications of the legal vacuum concerning modern enhancements of data mining. Its key insight is to distinguish big data as an emergent entity from the countless events that constitute collectable information. The distinction allows us to think separately about the property entitlements and regulatory constraints attributable to the elements and the systems. This analytical step in turn clarifies which legal approaches may advance national security interests consistent with other values and commitments.

Annually, agents collect the forensic digital data of over 40,000 international travelers. This Comment addresses the splintering doctrine between the First, Fourth, Ninth, and Eleventh Circuits regarding the Fourth Amendment limitations to performing forensic electronic searches at the border. Use restrictions consider each use of data—extracting, retaining, querying, and sharing—as a separate Fourth Amendment search, subject to a separate reasonableness analysis. This Comment will argue that applying such restrictions in the border context prevents the government from using data collected under a narrow exception for broader purposes that would otherwise require a warrant.

This Comment argues that foreign investment in domestic sporting institutions presents a novel, legitimate threat justifying executive attention. This Comment posits that sports are not simply a form of entertainment and instead cultivate a uniquely salient form of identity for the individuals and communities that comprise their fandoms. And when the sports investor is a foreign government or their proxy, such ownership may present a particularly potent threat to national security. Incorporating these theoretical considerations, this Comment seeks to present an actionable analytical framework for CFIUS, reviewing courts, and policy makers to consider and evaluate the potential threats to national security posed by “sportswashing”: foreign direct investment in domestic sporting institutions, through which foreign state or near-state actors leverage the popularity of sports and communities of sports fans to cultivate political and economic capital.

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. This Comment offers a path forward for change via the executive branch, specifically through the President’s emergency powers. Ultimately, this Comment identifies the Stafford Act as the best prospect for the Navajo to advance their water rights, given that there is a specific process in place for tribal leaders to request an emergency declaration from the President that would release federal funds.

Sovereign immunity protects the government from liability arising in suits brought against it by citizens. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional.
This Comment argues that the discretionary function exception should only immunize unconstitutional tortious conduct when the actions do not violate clearly established constitutional rights of which a reasonable officer would have known.

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. This Comment argues that a more complete evaluation of national security implications under the clear and convincing evidence standard will more accurately capture the full scope of proffered government interests and reduce the extreme deference given to the executive branch in its national security determinations.

Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This Comment argues that courts must first adopt an understanding of religion in the context of religious asylum claims in order to determine what it means to be persecuted on account of religion under the INA. To avoid inconsistent reasoning among immigration and federal courts as it relates to the one central reason standard, this Comment proposes a four-part definitional methodology of religion and argues that a but-for causation standard as used in Title VII claims is sufficient in adjudicating religious asylum claims.

In 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which required TikTok’s parent company ByteDance to sell TikTok to a company in a “non-adversarial” country or be banned from the United States. TikTok challenged the regulation, in part, as a violation of the Fifth Amendment’s Takings Clause, which would permit the government to ban TikTok so long as it compensates ByteDance. Because PAFACA applies to applications beyond TikTok, it raises a broader question: does the Takings Clause require government compensation for bans on foreign web services? This Comment argues the answer is no.

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. Ultimately, this Comment concludes that it would take an extraordinary set of facts to find social media companies secondarily liable for an act of terrorism. This Comment then suggests other avenues to encourage social media companies to heighten their detection of Foreign Terrorist Organization (FTO) activity and prevent future attacks.