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Administrative National Security ARTICLES Administrative National Security ELENA CHACHKO* In the past two decades, the United States has applied a growing num- ber of foreign and security measures directly targeting individualsÐ natural or legal persons. These individualized measures have been designed and carried out by administrative agencies. Widespread appli- cation of individual economic sanctions, security watchlists and no-¯y lists, detentions, targeted killings, and action against hackers responsible for cyberattacks have all become signi®cant currencies of U.S. foreign and security policy. Although the application of each of these measures in discrete contexts has been studied, they have yet to attract an inte- grated analysis. This Article examines this phenomenon with two main aims. First, it documents what I call ªadministrative national securityº: the growing individualization of U.S. foreign and security policy, the administrative mechanisms that have facilitated it, and the judicial response to these mechanisms. Administrative national security encompasses several types of individualized measures that agencies now apply on a routine, inde®- nite basis through the exercise of considerable discretion within a broad framework established by Congress or the President. It is therefore best understood as an emerging practice of administrative adjudication in the foreign and security space. Second, this Article considers how administrative national security integrates with the presidency and the courts. Accounting for administra- tive national security illuminates the President's constitutional role as chief executive and commander-in-chief and his control of key aspects of * Lecturer on Law, Harvard Law School (Fall 2019); Post-doctoral Fellow, Perry World House, University of Pennsylvania; S.J.D. Candidate, Harvard Law School; LL.B., Hebrew University of Jerusalem (2014). © 2020, Elena Chachko. This Article bene®ted from the generous support of the Belfer Center for Science and International Affairs at the Harvard Kennedy School, where I was a 2018± 19 International Security Program Fellow. I am grateful to Julian Arato, Michael Asimow, Jack Beermann, Gabby Blum, Pam Bookman, Adam Chilton, Kathleen Claussen, Jean Galbraith, Maggie Gardner, Jack Goldsmith, Yehuda Goor, Rebecca Hamilton, Monica Hakimi, Ben Heath, Rebecca Ingber, Julian Mortenson, Kathryn Kovacs, Omer Netzer, Daphna Renan, Shalev Roisman, Alan Rozenshtein, Dakota Rudesill, Matthew Stephenson, Chris Walker, and Stephen Walt, as well as the participants of the 2019 Administrative Law New Scholarship Roundtable at the University of Wisconsin Law School, the 2019 JILSA Workshop at Brooklyn Law School, the GSA Workshop at the Harvard Weatherhead Center for International Affairs, the International Law in Domestic Courts Workshop at the 2019 ASIL Annual Meeting, the 2019 Junior Scholars Conference at the University of Michigan Law School, and the Belfer Center International Security Program Seminar for helpful comments and conversations. I thank The Georgetown Law Journal team for superb editorial work. 1063 1064 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063 administrative foreign and security action. It also challenges deeply rooted doctrines underlying foreign relations and national security law, including the portrayal of the President as the ªsole organº in interna- tional relations. Administrative national security further informs our understanding of the role of courts in this context. It renders more for- eign and security action reviewable in principle under the Administrative Procedure Act (APA) and provides a justi®cation for the exercise of ro- bust judicial power in this category. TABLE OF CONTENTS INTRODUCTION ..................................................... 1065 I. THE ORIGINS OF FOREIGN AND SECURITY INDIVIDUALIZATION. 1070 A. HISTORICAL PRECURSORS .................................. 1070 B. THE CAUSES OF INDIVIDUALIZATION .......................... 1073 1. The War on Terror.............................. 1074 2. Technology ................................... 1075 3. From Embargoes to ªTargetedº or ªSmartº Sanctions . 1076 II. THE EMERGENCE OF ADMINISTRATIVE NATIONAL SECURITY ......... 1079 A. TARGETED KILLINGS ...................................... 1079 1. Targeted Killings and the Role of Administrative Agencies ..................................... 1082 2. Targeted Killings and the Courts . 1085 B. DETENTIONS ............................................. 1089 1. Detentions and Administrative Agencies . 1091 2. Detentions and the Courts ........................ 1092 C. INDIVIDUAL ECONOMIC SANCTIONS........................... 1093 1. Individual Economic Sanctions and Administrative Agencies ..................................... 1098 2. Individual Economic Sanctions and the Courts . 1099 D. SECURITY WATCHLISTS, NO-FLY LISTS, AND OTHER TRAVEL RESTRICTIONS ........................................... 1102 1. The Watchlisting Process and Administrative Agencies . 1105 2020] ADMINISTRATIVE NATIONAL SECURITY 1065 2. Watchlisting and the Courts....................... 1106 E. INDIVIDUALIZED CYBER COUNTERMEASURES . 1109 F. SUMMARY: ADMINISTRATIVE NATIONAL SECURITY AS ADMINISTRATIVE ADJUDICATION ............................. 1112 III. ADMINISTRATIVE NATIONAL SECURITY AND THE PRESIDENT . 1114 A. THE STRUCTURAL DIMENSION ............................... 1115 1. Presidential Control............................. 1115 a. Control Over the Legal and Policy Framework. 1115 b. Control of Administrative National Security Adjudication............................... 1122 2. Power or Constraint? ............................ 1125 B. THE DOCTRINAL DIMENSION ................................ 1127 IV. ADMINISTRATIVE NATIONAL SECURITY AND THE COURTS . 1130 A. EXPLANATION ........................................... 1131 B. JUSTIFICATION ........................................... 1136 CONCLUSION ...................................................... 1137 INTRODUCTION In the past two decades, the United States has applied a growing number of foreign policy and national security measures directly targeting individualsÐ natural or legal persons. Administrative agencies have taken the lead in design- ing and implementing these measures. The measures include the widespread application of individualized economic sanctions, ranging from sanctions against suspected proliferators and terrorists to sanctions against Russians for election meddling and Iranians for a range of nefarious activities. They further include security watchlists and other travel restrictions, detentions, targeted killings, and actions against individual hackers responsible for cyberattacks on U.S. targets. The inexorable development of technology that allows for preci- sion targeting and algorithmic decisionmaking in international diplomatic, economic, and military efforts is likely to accelerate this individualization trend. Although the individualization of foreign and security policy in discrete con- texts has generated legal commentary, it has not yet attracted an integrated 1066 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063 assessment.1 There has been little discussion about the growing individualization of U.S. foreign and security policy as an overarching trend that cuts across differ- ent types of measures and policy areas. This phenomenon merits attention in light of the now-central role of individualized measures in the general scheme of U.S. foreign and security policy, and because it challenges standard assumptions about the role of the President and the courts in those areas.2 This Article argues that foreign and security policy individualization has, in underappreciated ways, bolstered the role of administrative agencies in shaping and implementing key foreign policy and national security measures. The result- ing form of administrative action, which I call ªadministrative national security,º involves the exercise of considerable discretion by administrative agencies on a routine, chronic, and inde®nite basis within a broad legal framework established by Congress or the President. Because applying general standards and rules to individuals is at the core of administrative national security, it is best understood as an emerging practice of administrative adjudication in the foreign affairs and national security space.3 1. As Part I shows, there is an extensive literature on targeted killings, detentions, and sanctions, but it typically considers each type of measure separately. There are some exceptions. For example, scholars have considered the individualization of war. See, e.g., Gabriella Blum, The Individualization of War: From War to Policing in the Regulation of Armed Con¯ict, in LAW AND WAR 48 passim (Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey eds., 2014) (providing an international law perspective); Samuel Issacharoff & Richard H. Pildes, Targeted Warfare: Individuating Enemy Responsibility, 88 N.Y.U. L. REV. 1521 (2013) (analyzing the individualization of U.S. detention and targeting policy). Andrew Kent has considered the role of individuals in precipitating the disappearance of ªlegal black holesº in the foreign and security domain. See Andrew Kent, Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs, 115 COLUM. L. REV. 1029 (2015); cf. Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 HARV. L. REV. 1897 (2015). In addition, an extensive literature has explored the role of individuals within
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