Checks and Balances from Abroad

Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on US checks and balances. New national-security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean that far more information is publicly available about intelligence missions. And robust legal rules now bind the United States and other Western intelligence services. These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the executive or the allocation of power among the three branches of the US government. First, some of these foreign influences can trigger the traditional operation of checks and balances in the US system. Second, these foreign actions simulate some of the ef-fects produced by US checks and balances, even if they do not stimulate the US system to act endogenously. Whether one views these foreign constraints as positive or detrimental, understanding them is critical to an informed conversation about the extent to which the executive is truly unfettered in the national-security arena

Will Cyber Autonomy Undercut Democratic Accountability?

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force and related military operations. Because the use of increasingly autonomous cyber systems may draw States into hostilities without advance notice, these capabilities have the potential to further alter the existing relationships between executive branches and legislatures in making use of force decisions. Further, a State’s capacity to conduct autonomous cyber operations may alter the dynamics among different actors within executive branches themselves—by, for instance, diverting opportunities for deliberative input and oversight away from foreign, intelligence, and justice ministry officials and toward defense officials in the lead-up to conflict. This article explores how the use of increasingly autonomous cyber capabilities may alter the current state of legislative oversight and internal executive decision making about sensitive cyber operations; illustrates how these changes may impact international peace and security; and identifies ways in which States may prevent a further loss of democratic accountability for significant cyber-related operations

The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference

The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong. This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. Call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them. In the national security context, the executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights–protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive

Machine learning, artificial intelligence, and the use of force by states

Machine learning algorithms have begun to play a critical role in modern society. Governments inevitably will employ machine learning to inform their decisions about whether and how to resort to force internationally. This essay identifies scenarios in which states likely will employ machine learning algorithms to guide their decisions about using force, analyzes legal challenges that will arise from the use of force-related algorithms, and recommends prophylactic measures for states as they begin to employ these tools