Faculty Bibliography

As global crises become more frequent, international organizations increasingly invoke emergency powers to address them. But the study of international organization emergency governance remains in its infancy. We consider the EU response to the Russian invasion of Ukraine. The EU built on the emergency to accelerate EU integration and introduce unprecedented reforms in defense and security, migration and asylum, and energy. We map the techniques the EU deployed to achieve this and argue that they are not as alarming as critics have suggested.

Since 2016, platforms like Facebook, Google and Twitter have scaled up their efforts to meet a plethora of security and geopolitical challenges. They have gradually recalibrated their organizational structures and practices for that purpose. The challenges include election security, disinformation and influence operations, foreign and domestic terrorism, and atrocity prevention worldwide. As a corollary, platforms have expanded their interaction with government around these issues. They have also replicated traditional government methods for addressing them. Existing law facilitates this relationship instead of meaningfully constraining it. Scholars have examined platform governance predominantly through a freedom of expression lens. The security and geopolitical aspects of platform governance, however, remain surprisingly undertheorized. This article shifts the focus from platform speech governance to platform security governance. It documents platforms’ geopolitical turn and how it shapes the public-private national security nexus. It argues that platforms’ growing security and geopolitical role is a novel mode of informal national security privatization—call it national security by platform—that deviates in form and substance from paradigmatic privatization models. The paper develops a theoretical framework for analyzing national security by platform and outlines preliminary implications for regulation. The security lens illuminates regulatory considerations that may conflict with speech, competition and privacy concerns that have dominated the platform regulation debate to date.

In the past two decades, the United States has applied a growing number of foreign and security measures directly targeting individuals—natural or legal persons. These individualized measures have been designed and carried out by administrative agencies. Widespread application of individual economic sanctions, security watchlists and no-fly lists, detentions, targeted killings, and action against hackers responsible for cyberattacks have all become significant 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 integrated analysis. This Article examines this phenomenon with two main aims. First, it documents what I call “administrative national security”: 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, indefinite 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 administrative national security illuminates the President’s constitutional role as chief executive and commander-in-chief and his control of key aspects of 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 “sole organ” in international relations. Administrative national security further informs our understanding of the role of courts in this context. It renders more foreign and security action reviewable in principle under the Administrative Procedure Act (APA) and provides a justification for the exercise of robust judicial power in this category.

The United States has employed targeted sanctions—economic and travel restrictions imposed directly on natural and legal persons—in a wide range of policy areas in the past two decades. This includes counterterrorism, nonproliferation, and cyber, as well as sanctions regimes aimed at changing the behavior of various governments. A substantial literature has considered the compatibility with international human rights law of the targeted sanctions practices of other actors, particularly the UN Security Council and the European Union. But relatively few scholars have examined U.S. targeted sanctions practices from that perspective. This essay argues that in principle, current U.S. designation practices can be reconciled with international standards. However, a more robust conclusion about the practices’ compatibility with international human rights law would require more information on the application of designation procedures in individual cases.

This paper seeks to shine new light on the dynamic between courts and policymakers in the areas of foreign affairs and national security through an empirical study of the targeted sanctions jurisprudence of the EU courts. It draws on an original dataset that includes judicial decisions reviewing 204 individual sanctions imposed under the EU Iran and Syria sanctions regimes, as well as the subsequent political and judicial dialogue related to these decisions. The principal findings of the study are (1) for first-time applicants, EU courts struck down challenged sanctions on due process grounds in 73% of the cases, (2) The EU re-imposed most of these invalidated sanctions, with the result that approximately 2/3 ultimately survived judicial annulment, and (3) in approximately 1/3 of the cases, however, judicial invalidation of the sanctions prevailed. While the data do not permit any definitive normative conclusions, they do suggest that process-oriented judicial review in the case study was successful in eliciting policymakers’ preferences as to which individual sanctions were actually essential to EU policy goals, in eliminating excessive sanctions, and in encouraging the EU Council to adhere to more robust procedures before sanctions are imposed. The empirical findings therefore indicate, the paper argues, that procedural judicial review can reconcile the need for oversight of executive action related to foreign affairs and national security with institutional concerns that have long stood in the way of judicial review in those areas. In the case under study, procedural judicial review facilitated a dynamic of accountability, without substantially hindering the ability of EU policymakers to achieve their policy goals.