Dakota S Rudesill - Academia.edu (original) (raw)

Papers by Dakota S Rudesill

Social Science Research Network, 2024

Hofstra Law Review , 2020

This article analyzes legal, military, and intelligence professionals in comparative perspective.... more This article analyzes legal, military, and intelligence professionals in comparative perspective. It finds foundational commonalities and notable distinctions among the roles of these professions in the context of government, and particularly, the American national security apparatus. This article first engages with the Who of these professions. It argues first that lawyers, soldiers, and intelligence officers all belong to distinct but fundamentally similar ethical professions that have in common key attributes and core ethical commitments: special expertise, training, licensing, and heightened ethical obligations including especially professional independence and fidelity to the truth. Second, the article engages with the Why, arguing that all three professions are enormously important to the republic for similar reasons. Most notably, their expertise and special skills manage complexity, and their independence works as a check on error and bad faith by public officials. Third, this article focuses on the essentially similar What and How of legal, military, and intelligence work. Members of the professions collaborate within their guilds; collaborate with other guilds; often work adversarily and at considerable peril; and manage themselves individually, particularly their human susceptibility for corruption (by others and the self). They often serve demanding principals who may not share their professional outlook or heightened ethical standards--and sometimes seek to intimidate or manipulate them. Wedged between their principles and principals, the core, challenging, and continual task is to balance their obligations of professional independence and service to a principal. There are special challenges to the independence-versus-service balancing when they are asked to become agents or advocates for their principals. Finally, this Article turns to the singularly stressful Now for these professional guardians of law, force, and fact. Legal, military, and intelligence personnel in the public arena and in government in recent years have faced severe and perilous pressures. This Article identifies a slate of independence-buttressing steps these professions and their allies should take, starting with recognizing their commonalities. Similarly situated in their opportunities, obligations, and importance to good governance in our republic, these professionals need to come to their common defense -- and be better protected in their independence by the law, by their institutions, and by the public they ultimately serve.

Ohio State Law Journal, 2024

Russia’s full-scale invasion of Ukraine of 2022 prompted the greatest risk of nuclear use since t... more Russia’s full-scale invasion of Ukraine of 2022 prompted the greatest risk of nuclear use since the Cold War’s most dangerous crises. After receiving indications in late 2022 that Russia was contemplating use of one or more nuclear weapons to halt Ukraine’s counter-offensive, senior officials in the United States and other NATO states warned Moscow of “catastrophic consequences” that would follow a Russian nuclear attack on Ukraine. These warnings included relatively clear threats of a punishing conventional response by the United States against Russian targets. That prospect was subject to analysis in security policy and military terms. Neglected at least outside government has been an urgent legal question: whether it would be legal under U.S. law for the President to order a U.S. military response against Russia for a nuclear attack on Ukraine, such as sinking what remains of the Black Sea Fleet. This piece takes on that enormously important legal question, with the hope of prompting an alarmingly absent public conversation. This article contends, first, that this legal question deserves engagement now, because in this unstable conflict the possibility of a Russian nuclear attack on Ukraine could revive at any point. Second, despite sympathies on the author’s part for Ukraine that could not be stronger, this article next maintains that a military response against Russia, absent congressional authorization, and absent indication of a second follow-on attack against the United States, U.S. forces, or U.S. treaty allies, would push presidential war authority beyond its outer edge. Under the Constitution’s vision of shared power and war powers doctrine, and lacking a strong argument that any of the four classic legal bases for using force are here operative, the President cannot on their own initiate a discretionary full “war” in the constitutional sense. The discretionary nature of the U.S. attack plus the colossal risk of escalation to a world-ending nuclear exchange would make congressional authorization constitutionally imperative. Third, this article sets out an array of alternatives to use of kinetic force that are legal and available to the President at any time. The prospect of cyber attacks, covert actions, and other steps ought to induce uncertainty in the Kremlin and if exercised could impose a severe price. These alternatives to a U.S. kinetic strike therefore have real deterrent power. Accordingly, this piece concludes with a note of caution to any readers in Russia. The President has many options, and the Executive Branch’s lawyers may take a more permissive view of the law on use of force than this article articulates. It is quite likely that Russia would suffer a terrible cost and achieve very little for breaking the 75 year-old taboo and committing an atomic atrocity against brave, righteous Ukraine.

Social Science Research Network, May 17, 2015

SSRN Electronic Journal, 2020

Civil-military relations in cyberspace are under-studied. So too are the roles at their intersect... more Civil-military relations in cyberspace are under-studied. So too are the roles at their intersection played by law and secrecy. To illuminate the nexus of these matters and to spur additional thought and policy action, this chapter makes several observations and recommendations. First, salient aspects of cyberspace make civil-military relations in the realm of digital national security operations especially challenging, uncertain, and consequential. Second, the two most powerful masters of the military in the American constitutional system – the Congress and the President – have in recent years given the military expansive authority for operations in a realm where it is unusually difficult for civilians and elected officials to monitor and appraise their performance. A reported classified order by President Trump appears to be consistent with his administration’s broader effort to drive responsibility for national security decisions down the chain of command. That is, away from suits and toward uniforms, and away from the Executive Branch’s electorally accountable Commander in Chief and toward agencies. Third, the public record indicates that the military is gaining its greater authority in cyberspace in meaningful part through legal secrecy – via the use of unpublished legal authorities. Such “secret law” is both useful and inherently problematic in a republic, as I have explored in depth elsewhere in my scholarship. Fourth and finally, this chapter argues that Congress is right to be engaged on cyber operations. But Congress should be doing more than delegating authority. It should also exercise its constitutional prerogatives to write rules that govern and regulate cyber operations in ways that expressly account for the challenges in transparency, technical familiarity, and civil-military relationships these operations inevitably raise.

SSRN Electronic Journal, 2020

Almost 50 years after Congress voted on limiting the President’s power to initiate nuclear war, a... more 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. This article 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 secur...

University of Cincinnati Law Review, 2017

What is the constitutional textual basis for key statutes that constrain the national security ap... more What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best or at least strong additional textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article...

The allegation that the U.S. government is producing secret law has become increasingly common. T... more The allegation that the U.S. government is producing secret law has become increasingly common. This article evaluates this claim, examining the available evidence in all three federal branches. In particular, Congress’s governance of national security programs via classified addenda to legislative reports is here given the first focused scholarly treatment, including empirical analysis that shows references in Public Law to these classified documents spiking in recent years. Having determined that the secret law allegation is well founded in all three branches, the article argues that secret law is importantly different from secrecy generally: the constitutional norm against secret law is stronger than the constitutional norm against secret fact. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing rules of the road for governing secret law, starting with the cardinal rule of public law...

William Mitchell law review, 2010

Obama Administration officials, supporters, and critics have acknowledged that the opinion of the... more Obama Administration officials, supporters, and critics have acknowledged that the opinion of the world, broadly conceived, matters. Does it? Should it? Is it wimpy and naive, or is it smart, to regard improving foreign public opinion as a key factor in decisionmaking about national security or even a key policy purpose, including where national security intersects with legal policy? What is the record to date? The idea of foreign sentiments mattering to national security is not as radical, nor as simple, as it may sound. Foreign opinion has been an intensive focus of statecraft for millennia. What is different is that in our time revolutionary changes in the nature of power globally have accorded unprecedented importance to foreign public opinion, specifically foreign popular perceptions of U.S. policy. The George W. Bush and Barack Obama administrations have both understood this and have launched major efforts intended to improve dramatically foreign public perception of the Unite...

Yale Journal of International Law, 2007

V. THE REASONABLE COMBATANT: PRECISION BUT NOT PERFECTION .......................................... more V. THE REASONABLE COMBATANT: PRECISION BUT NOT PERFECTION ........................................... 531 A . The Reasonable Com batant ........................................................................................... 531 B. "Effects-Based Targeting "' and Responsibility for Effects ............................................. 533 C. A Duty of Care, Not of Perfection ................................................................................... 535 1. The N ature of W ar ............................................................................................. 535 2. P erverse R esults ................................................................................................ 537 D . Com batant as Fiduciary ? ............................................................................................... 538

In the coming months and years, the United States and its North Atlantic Treaty Organization (NAT... more In the coming months and years, the United States and its North Atlantic Treaty Organization (NATO) allies will discuss, and U.S. and Russian Federation negotiators may enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework Article is the first squarely on the subject in the legal literature.My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assumption, the legal regime has regulated a small number of tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance, providing a regulatory precedent; (3) the nuclear tactical versus strategic distinction in Cold War policy and the legal architecture is eroding and should be abolished; (4) and now that all nuclear weapons have “strategic” (i.e.,...

This is an update of the data table (Table 2) in my article Coming to Terms with Secret Law, 7 HA... more This is an update of the data table (Table 2) in my article Coming to Terms with Secret Law, 7 HARV. NAT. SEC. J. 241 (2015), and discussed on Lawfare, now including data for the concluded 114th Congress and the 115th Congress to date. It will continue to be updated.

Most federal law today is statutory or rooted in statutes, which are created through a complicate... more Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it. My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in 2008 in the Washington University Law Review’s online scholarly publication, Slip Opinions. Here, I elaborate upon my argument that this legislative experience gap is bad both for the profession and for Congress and argue for a congressional clerkship program as a first corrective step. Such a prog...

This article will describe, theoretically situate, and analyze five years of implementation of th... more This article will describe, theoretically situate, and analyze five years of implementation of the Class Daily Brief (CDB) exercise in law classes at Georgetown and Ohio State. The CDB trains students to be simultaneously precise and concise in written and oral briefings to clients, principals, supervisors, and other busy and demanding senior leaders. Precision and concision are in tension: be highly descriptive and you write too long, but if you write too short you can lose content. By using the right words and only those words, precision and concision can reinforce each other. The written brief is strictly limited to one or two pages. The oral brief is delivered under variable, realistic, often uncomfortable informal practice conditions -- wherever in real life one might find themselves briefing someone important. These informal practice settings range from a traditional conference room or classroom setting to the telephone, skype, in the hallway, walking down the stairs, in a tax...

Congress drives the federal lawmaking process. Yet every year our best new lawyers focus their co... more Congress drives the federal lawmaking process. Yet every year our best new lawyers focus their competitive energies not on jobs with the nation's legislature but rather on judicial clerkships and other prestigious apprenticeships with executive agencies, law firms, and academe. Congress should be concerned. But it needs to understand that this demand deficit has grown in part from a supply problem of its own creation. Unlike the courts, agencies, firms, and academe, Congress lacks an apprenticeship program. For the first time in the literature, I set out the case in full for a congressional clerkship program. After explaining Congress's current comparative inaccessibility, and identifying the immediate benefits of a program to Congress and young lawyers, I argue that a congressional clerkship program would be a vital first step toward correcting the profound, previously unrecognized dearth of legislative experience among the profession's elite demonstrated by my new empi...

Nuclear multiple independently-targeted re-entry vehicles (MIRVs) on global-range ballistic missi... more Nuclear multiple independently-targeted re-entry vehicles (MIRVs) on global-range ballistic missiles are at once Cold War relics, unfinished business of the bilateral arms control regime, and potential threats to strategic stability if the United States and Russia find themselves in a nuclear crisis – a confrontation in which the use of nuclear weapons is a real possibility. By concentrating many warheads on single missiles that present attractive targets, in a crisis land-based MIRVs could undermine deterrence and incentivize shooting first. This article reviews the history of MIRVs and analyzes their limited and abortive regulation in the nuclear arms control legal regime. This article explains that reliance on MIRVs is growing in Russia and China, MIRVs may be fielded by Pakistan and India, and MIRVs could return to U.S. land-based ballistic missiles, at a time when the risk of conflict among nuclear powers is significant and could grow. Nuclear states have operational and cost-e...

Social Science Research Network, 2024

Hofstra Law Review , 2020

Ohio State Law Journal, 2024

Social Science Research Network, May 17, 2015

SSRN Electronic Journal, 2020

University of Cincinnati Law Review, 2017

William Mitchell law review, 2010

Yale Journal of International Law, 2007

Civil-military relations in cyberspace are under-studied. So too are the roles at their intersec... more Civil-military relations in cyberspace are under-studied. So too are the roles at their intersection played by law and secrecy. To illuminate the nexus of these matters and to spur additional thought and policy action, this chapter makes several observations and recommendations. First, salient aspects of cyberspace make civil-military relations in the realm of digital national security operations especially challenging, uncertain, and consequential. Second, the two most powerful masters of the military in the American constitutional system – the Congress and the President – have in recent years given the military expansive authority for operations in a realm where it is unusually difficult for civilians and elected officials to monitor and appraise their performance. A reported classified order by President Trump appears to be consistent with his administration’s broader effort to drive responsibility for national security decisions down the chain of command. That is, away from suits and toward uniforms, and away from the Executive Branch’s electorally accountable Commander in Chief and toward agencies. Third, the public record indicates that the military is gaining its greater authority in cyberspace in meaningful part through legal secrecy – via the use of unpublished legal authorities. Such “secret law” is both useful and inherently problematic in a republic, as I have explored in depth elsewhere in my scholarship. Fourth and finally, this chapter argues that Congress is right to be engaged on cyber operations. But Congress should be doing more than delegating authority. It should also exercise its constitutional prerogatives to write rules that govern and regulate cyber operations in ways that expressly account for the challenges in transparency, technical familiarity, and civil-military relationships these operations inevitably raise.