Will Criminals, Non-State Terrorists Get Nuclear Weapons? | Building a Cyber Insurance Backstop Is Harder Than It Sounds | Invoking the Alien Enemies Act to Deport Immigrants?, and more

The Right-Wing Israeli Campaign to Resettle Gaza  (Yair Rosenberg, The Atlantic)
In 2005, Israel forcibly removed more than 8,000 Jewish settlers from the Gaza Strip and ceded the territory to Palestinian control. But far from ushering in an era of peace, the Israeli exodus kicked off a new stage of the region’s conflict. Hamas took over the strip and turned it into a launching pad for rocket attacks on Israeli population centers, while Gaza’s evicted settlers began advocating for Israel to retake and resettle the territory. Today, for the first time in nearly two decades, this aspiration is no longer a fantasy.
That’s not to say the Israeli public would welcome such a move. This week, a Hebrew University poll found that Israelis oppose efforts to resettle Gaza after the current war, by a commanding margin of 56 to 33 percent. This consensus accords with both U.S. policy and the official stance of the Israeli government. Turning back the clock and rebuilding Gaza’s Israeli communities, Prime Minister Benjamin Netanyahu recently said, is “not a realistic goal.” Most Israelis know that constructing and protecting small Jewish enclaves in such a hostile environment would be a moral and military nightmare. Given this information, a reasonable observer might conclude that the possibility is off the table.

Building a Cyber Insurance Backstop Is Harder Than It Sounds  (Bruce Schneier and Josephine Wolff, Lawfare)
In the first week of January, the pharmaceutical giant Merck quietly settled its years-long lawsuit over whether or not its property and casualty insurers would cover a $700 million claim filed after the devastating NotPetya cyberattack in 2017. The malware ultimately infected more than 40,000 of Merck’s computers, which significantly disrupted the company’s drug and vaccine production. After Merck filed its $700 million claim, the pharmaceutical giant’s insurers argued that they were not required to cover the malware’s damage because the cyberattack was widely attributed to the Russian government and therefore was excluded from standard property and casualty insurance coverage as a “hostile or warlike act.”
At the heart of the lawsuit was a crucial question: Who should pay for massive, state-sponsored cyberattacks that cause billions of dollars’ worth of damage?
One possible solution, touted by former Department of Homeland Security Secretary Michael Chertoff on a recent podcast, would be for the federal government to step in and help pay for these sorts of attacks by providing a cyber insurance backstop. A cyber insurance backstop would provide a means for insurers to receive financial support from the federal government in the event that there was a catastrophic cyberattack that caused so much financial damage that the insurers could not afford to cover all of it.
In his discussion of a potential backstop, Chertoff specifically references the Terrorism Risk Insurance Act (TRIA) as a model. TRIA was passed in 2002 to provide financial assistance to the insurers who were reeling from covering the costs of the Sept. 11, 2001, terrorist attacks. It also created the Terrorism Risk Insurance Program (TRIP), a public-private system of compensation for some terrorism insurance claims. The 9/11 attacks cost insurers and reinsurers $47 billion. It was one of the most expensive insured events in history and prompted many insurers to stop offering terrorism coverage, while others raised the premiums for such policies significantly, making them prohibitively expensive for many businesses. The government passed TRIA to provide support for insurers in the event of another terrorist attack, so that they would be willing to offer terrorism coverage again at reasonable rates. President Biden’s 2023 National Cybersecurity Strategy tasked the Treasury and Homeland Security Departments with investigating possible ways of implementing something similar for large cyberattacks.

What Should Courts do if a Future President Invokes the Alien Enemies Act to Deport Immigrants?  (Katherine Yon Ebright, Just Security)
Former President Donald Trump has promised voters that, if re-elected, he would “immediately” invoke the Alien Enemies Act to effect mass deportations of non-citizens from Mexico. He reportedly plans to apply the law broadly, targeting non‑citizens who are not suspected of any cartel involvement or narcotics trafficking. By using the Alien Enemies Act, a law enacted pursuant to Congress’s constitutional war powers, Trump could conduct the deportations summarily, without any of the hearings or other process typically accorded to non-citizens in peacetime and under immigration law.
As troubling as the prospect of mass, summary deportations may be, reactions to Trump’s proposed use of the Alien Enemies Act have in many cases underestimated the risk at hand. Journalists and commentators have expressed doubt about whether the Alien Enemies Act could apply, citing the law’s requirement that the United States be in a declared war or face an “invasion or predatory incursion” perpetrated by a “foreign nation or government.” Some have suggested that the courts would strike down Trump’s scheme on those grounds.
These commentators are correct, of course, on the merits of whether an invasion exists or cartels constitute a foreign government. But the courts’ history of treating “political questions” as “nonjusticiable” suggests that judges are unlikely to address these arguments on the merits. The courts would likely avoid opining on the presence or absence of an invasion or predatory incursion, and they are even less likely to probe whether the perpetrator of the supposed invasion or incursion is a foreign nation or government.
The courts’ hesitance to weigh in on these questions heightens the risk that Trump will invoke the Alien Enemies Act despite its clear inapplicability. But that does not mean mass deportations based on the wartime authority are inevitable. Congress can change the law — and even if Congress fails to do so, the courts may strike down an invocation of the Alien Enemies Act under modern due process and equal protection law, justiciable grounds for checking abusive presidential action.

Will Criminals, Non-State Terrorists Get Nuclear Weapons?  (Johnny Franks, Warrior Maven)
Could the next major threat to global security come from criminal syndicates with access to nuclear materials? Recent charges brought by the U.S. Attorney for the Southern District of New York against a Japanese Yakuza leader and affiliates over international trafficking of narcotics and weapons, including surface-to-air missiles, highlight a grave concern regarding the potential for nuclear materials to fall into the hands of non-state actors or rogue regimes capable of developing nuclear weapons. The case signifies that intricate networks facilitate the illegal trade of susceptible materials and technologies, posing tremendous challenges to global security and non-proliferation endeavors.
The production of nuclear weapons requires not only specific radioactive materials, such as uranium or plutonium, but also a sophisticated technological base, extensive financial resources, and scientific expertise. In contrast, the enrichment of uranium to weapons-grade levels requires applying nuclear power to the sources of uranium and using various atomic processing technologies. Plutonium produced in nuclear reactors must be reprocessed, recycled, and converted into weapon-grade plutonium. This way, it requires advanced scientific and technical capabilities, significant infrastructure, and safety measures to prevent accidents or leaks with catastrophic environmental and health consequences.
What sets this apart is that in most cases, the construction of a nuclear weapon will be an engineered explosion, not only needing a precision-engineered mechanism for the release of energy for fission to have much of the material be a critical mass, but further development to effectively design the weapon that in maximum efficiency can reach the critical mass. This includes developing and acquiring detonation mechanisms, ensuring the reliability and safety of the weapon; and, perhaps, minimizing its size for delivery on the means of delivery, whether on the outside surface of a missile or by other means.

Russia Is a Serious Threat in Space, but There’s No Need to Panic  (Todd Harrison and Clayton Swope, National Interest)
We learned recently that the United States has intelligence suggesting that Russia is considering a new anti-satellite weapon of some kind. With U.S. officials providing few confirmed details, many have assumed the worst. But we should all take a step back and breathe.

The Right-Wing Israeli Campaign to Resettle Gaza  (Yair Rosenberg, The Atlantic)
In 2005, Israel forcibly removed more than 8,000 Jewish settlers from the Gaza Strip and ceded the territory to Palestinian control. But far from ushering in an era of peace, the Israeli exodus kicked off a new stage of the region’s conflict. Hamas took over the strip and turned it into a launching pad for rocket attacks on Israeli population centers, while Gaza’s evicted settlers began advocating for Israel to retake and resettle the territory. Today, for the first time in nearly two decades, this aspiration is no longer a fantasy.
That’s not to say the Israeli public would welcome such a move. This week, a Hebrew University poll found that Israelis oppose efforts to resettle Gaza after the current war, by a commanding margin of 56 to 33 percent. This consensus accords with both U.S. policy and the official stance of the Israeli government. Turning back the clock and rebuilding Gaza’s Israeli communities, Prime Minister Benjamin Netanyahu recently said, is “not a realistic goal.” Most Israelis know that constructing and protecting small Jewish enclaves in such a hostile environment would be a moral and military nightmare. Given this information, a reasonable observer might conclude that the possibility is off the table.

Building a Cyber Insurance Backstop Is Harder Than It Sounds  (Bruce Schneier and Josephine Wolff, Lawfare)
In the first week of January, the pharmaceutical giant Merck quietly settled its years-long lawsuit over whether or not its property and casualty insurers would cover a $700 million claim filed after the devastating NotPetya cyberattack in 2017. The malware ultimately infected more than 40,000 of Merck’s computers, which significantly disrupted the company’s drug and vaccine production. After Merck filed its $700 million claim, the pharmaceutical giant’s insurers argued that they were not required to cover the malware’s damage because the cyberattack was widely attributed to the Russian government and therefore was excluded from standard property and casualty insurance coverage as a “hostile or warlike act.”
At the heart of the lawsuit was a crucial question: Who should pay for massive, state-sponsored cyberattacks that cause billions of dollars’ worth of damage?
One possible solution, touted by former Department of Homeland Security Secretary Michael Chertoff on a recent podcast, would be for the federal government to step in and help pay for these sorts of attacks by providing a cyber insurance backstop. A cyber insurance backstop would provide a means for insurers to receive financial support from the federal government in the event that there was a catastrophic cyberattack that caused so much financial damage that the insurers could not afford to cover all of it.
In his discussion of a potential backstop, Chertoff specifically references the Terrorism Risk Insurance Act (TRIA) as a model. TRIA was passed in 2002 to provide financial assistance to the insurers who were reeling from covering the costs of the Sept. 11, 2001, terrorist attacks. It also created the Terrorism Risk Insurance Program (TRIP), a public-private system of compensation for some terrorism insurance claims. The 9/11 attacks cost insurers and reinsurers $47 billion. It was one of the most expensive insured events in history and prompted many insurers to stop offering terrorism coverage, while others raised the premiums for such policies significantly, making them prohibitively expensive for many businesses. The government passed TRIA to provide support for insurers in the event of another terrorist attack, so that they would be willing to offer terrorism coverage again at reasonable rates. President Biden’s 2023 National Cybersecurity Strategy tasked the Treasury and Homeland Security Departments with investigating possible ways of implementing something similar for large cyberattacks.

What Should Courts do if a Future President Invokes the Alien Enemies Act to Deport Immigrants?  (Katherine Yon Ebright, Just Security)
Former President Donald Trump has promised voters that, if re-elected, he would “immediately” invoke the Alien Enemies Act to effect mass deportations of non-citizens from Mexico. He reportedly plans to apply the law broadly, targeting non‑citizens who are not suspected of any cartel involvement or narcotics trafficking. By using the Alien Enemies Act, a law enacted pursuant to Congress’s constitutional war powers, Trump could conduct the deportations summarily, without any of the hearings or other process typically accorded to non-citizens in peacetime and under immigration law.
As troubling as the prospect of mass, summary deportations may be, reactions to Trump’s proposed use of the Alien Enemies Act have in many cases underestimated the risk at hand. Journalists and commentators have expressed doubt about whether the Alien Enemies Act could apply, citing the law’s requirement that the United States be in a declared war or face an “invasion or predatory incursion” perpetrated by a “foreign nation or government.” Some have suggested that the courts would strike down Trump’s scheme on those grounds.
These commentators are correct, of course, on the merits of whether an invasion exists or cartels constitute a foreign government. But the courts’ history of treating “political questions” as “nonjusticiable” suggests that judges are unlikely to address these arguments on the merits. The courts would likely avoid opining on the presence or absence of an invasion or predatory incursion, and they are even less likely to probe whether the perpetrator of the supposed invasion or incursion is a foreign nation or government.
The courts’ hesitance to weigh in on these questions heightens the risk that Trump will invoke the Alien Enemies Act despite its clear inapplicability. But that does not mean mass deportations based on the wartime authority are inevitable. Congress can change the law — and even if Congress fails to do so, the courts may strike down an invocation of the Alien Enemies Act under modern due process and equal protection law, justiciable grounds for checking abusive presidential action.