Person:

Eichensehr, Kristen

Russia’s invasion of Ukraine has put to the test theories about how cyberattacks fit into conventional war. Contrary to many expectations, cyber operations appear to have played only a limited role in the initial stages of the invasion, prompting competing theories and rampant speculation about why. Although written while the conflict continues, this essay considers how either of two broad explanations for the limited role of cyberattacks to date—that Russia’s attempted cyberattacks were thwarted or that Russia chose not to deploy them widely—challenges conventional wisdom about cybersecurity. The essay concludes by suggesting that one lesson international lawyers should draw from the current conflict is the urgent need to clarify and enforce international rules not just for the rare high-end destructive or widely disruptive cyber operations, but also for lower-level operations that have proven more consistently problematic, both in Ukraine and elsewhere. Clarifying such rules could help to manage escalation risk now and in the future, even if such rules—like the most venerable international law prohibitions that Russia’s invasion has violated—do not necessarily restrain behavior directly

In the name of national security, the Trump administration has taken a stake in Intel, acquired a “golden share” in U.S. Steel, obtained equity stakes in critical minerals companies, and required semiconductor companies to pay the government a percentage of their profits from sales to China in exchange for export licenses. These actions mark a dramatic departure from the traditional U.S. capitalist system, which relies on the market, not the government, to pick winners and losers. Indeed, they carry overtones of a command economy. But as unusual and occasionally illegal as these developments are, they also build on a broader shift that has pushed U.S. companies into a central role in U.S. national security policy in the last decade.

Recent administrations of both parties have invoked the mantra that “economic security is national security.” To implement that philosophy, they have relied heavily on economic tools, including sanctions, export controls, investment screening, and tariffs. While these tools provide important levers for the U.S. government to manage national security threats, their proliferation is also fostering deeper, more diverse, and riskier roles for companies in this new era. We identify five such roles. Companies are: 1) key to security supply chains, prompting government involvement in the companies; 2) front-line enforcers or self-enforcers of economic security; 3) national security proxies for the U.S. government; 4) sources of products that the government uses as negotiating leverage; and 5) sources of funds that the government can extract in exchange for national-security related approvals.

These enhanced, often novel, and sometimes illegal roles for companies in the national security ecosystem pose disturbing costs to public law values, such as legality, rationality, accountability, and fairness. The government’s burgeoning reliance on companies to implement national security policy undercuts public law values by fostering incentives for companies and the government to act unlawfully, creating principal/agent problems, and undercutting transparency. The Trump administration’s latest moves go even further: by introducing profit motives into security-related decisions, they produce conflicts of interest, potential corruption, and decision-making distortions both for the government and for companies. This approach is especially pernicious in national security policy-making because the stakes are so high. The end result will be a United States that is both less safe and economically weaker.

Because many of these corporate roles likely will continue in future administrations (whether Democratic or Republican), finding ways to minimize the risks to public law values is crucial. For each of the risks that we identify, we propose concrete measures that Congress, the Executive, companies, and even allied governments could undertake to mitigate the corrosive effects of corporate entanglement in U.S. national security policy going forward.

Israel has used “targeted killings” against suspected terrorists since the alAqsa intifada began in September 2000. By the end of 2005, almost 300 terrorist organization members and 150 civilian bystanders had been killed in targeted killings, in addition to hundreds of civilians wounded.1 The policy has received wide international condemnation2 and has sparked vigorous debate among scholars about its lawfulness. After four years of consideration,3 the Israeli Supreme Court recently weighed in with the world’s first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities.4 But the court also expanded the traditional definition of “direct participation” and the time period during which civilians may lawfully be attacked. By disregarding the “direct participation” requirement’s important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments.

The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them.

Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways.

After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.