In 2016, President Barack Obama warned that “[t]he danger of a terrorist group obtaining and using a nuclear weapon is one of the greatest threats to global security.” Thus far, however, U.S. and international efforts to address nuclear terrorism have faced a fundamental dilemma: While the importance of preventing this threat is unquestioned, there has been limited opportunity or need to conduct prosecutions that hinge on nuclear terrorism charges. This dilemma reflects the current piecemeal approach to nuclear terrorism, which prioritizes policies that address the “back-end” risk of nuclear terrorism (i.e., the detonation of nuclear weapons or attack of nuclear facilities) over efforts that address the front-end, preparatory steps that a would-be terrorist would take in advance of an attack.
Given the importance of developing a more holistic approach to nuclear terrorism, this article proposes that the U.S. government promulgates a clearer framework for federal nuclear terrorism prosecutions. Part I first sets the legal landscape, introducing the key statutory provisions and prosecutions that comprise the existing federal jurisprudence on nuclear terrorism. Part II then evaluates the principal statutory shortcomings in the U.S. criminal system’s current approach to nuclear terrorism. Finally, Part III argues that in order to address these shortcomings, the U.S. Department of Justice (DOJ) should craft a nuclear terrorism prosecution framework (NTPF). This proposed framework consists of two guidelines premised on the principles of consistency and coordination and several recommended courses of action.