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Articles by Kristen Eichensehr
Lawfare Daily: The New Command Economy with Kristen Eichensehr and Ashley Deeks
Over the past decade, the U.S. has expanded its use of measures including tariffs, sanctions, export controls, and investment screening to regulate the economy in the name of national security. It has also embraced new ones such as government-owned equity stakes in private companies and new stockpiles of critical materials.
DHS’s Revolving Door: The Need for Experienced Leadership in Dangerous Times
The replacement of a Secretary of Homeland Security should be a moment for reflection and represent an opportunity for improvement. Instead, it has become routine. Kristi Noem is out. Another person, Markwayne Mullin, will now follow. And the country will largely move on as if nothing has happened. And the routineness of this is exactly the problem.
Ban Pay-to-Play National Security Approvals
Editor’s note: This article is cross-posted at Just Security. In late December, in what seemed like the end of a five-year saga, TikTok agreed to spin off its U.S. operations to a group of investors. Oracle, Silver Lake, and an investment firm from Abu Dhabi called MGX would control approximately 45 percent of the new entity, and the new U.S. company, TikTok USDS Joint Venture (with a mostly American board), would retrain the U.S. TikTok algorithm and establish content moderation rules.
Self-Preservation and the Erosion of International Law
The events currently unfolding in Iran and across the region have sparked lively debates among international lawyers regarding the lawfulness and legitimacy of “Operation Epic Fury” and its aftermath. In a recent Just Security article, Yuval Shany and Amichai Cohen suggested those events may signal a resurgence of a right to self-preservation understood as overriding the constraints of positive international law.
Lawfare Daily: Entrepreneurial Federalism and the New National Security, with Ashley Deeks and Kristen Eichensehr
On today's episode, Lawfare Senior Editor Scott R. Anderson sits down with Lawfare Contributing Editor Professor Ashley Deeks of the University of Virginia School of Law and Professor Kristen Eichensehr of Harvard Law School to discuss their recent article entitled, "Federalism and the New National Security," recently published in the Harvard Law Review.
Federalism and the New National Security
The United States has entered a new era of national security, one defined by the return of great power competition with China and Russia. Across presidential administrations, the federal government has turned away from the heady rhetoric of globalization and the post-9/11 focus on terrorism.
The United States needs more disagreement on national security policy Original
Skip to content In this time of deep partisan divisions, it is tempting to celebrate rare areas of bipartisan consensus. U.S. policy on countering China is the most significant example. But policies born of too much agreement, and too little dissent, bring their own risks. These moments of overwhelming unanimity can escalate conflict, prompt foreign governments to undercut U.S. national security, and result in unlawful targeting of domestic groups seen as linked to foreign adversaries.
Frictionless Government and the National Security Constitution
Editor’s note: This article is part of the Just Security Symposium on Harold Hongju Koh’s “The National Security Constitution in the 21st Century”.
Foreign Affairs After Chevron
The Supreme Court has overruled Chevron v. Natural Resources Defense Council, finally interring a doctrine it had narrowed and largely abandoned in recent years. Although Chief Justice John Roberts’ opinion in Loper Bright Enterprises v. Raimondo emphasizes that principles of stare decisis mean that prior decisions relying on Chevron remain good law, overruling Chevron may continue the Court’s pattern of sending shock waves through parts of administrative law.
National Security Creep in Cross-Border Investments
Editor’s Note: This post also appears on Just Security. In the past year, the U.S. Committee on Foreign Investment in the United States (CFIUS) reviewed a record number of transactions for national security concerns. In July, the U.K. government blocked its first transaction under a new investment screening law—the National Security and Investment Act (NSIA)—that took effect in January.
National Security Creep in Cross-Border Investments
Kristen E. Eichensehr is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor at the University of Virginia School of Law. She is a member of the editorial board of Just Security and an affiliate at the Stanford Center for International Security and Cooperation.
National Security Creep in Cross-Border Investments
Filed under: CFIUS, China, corporations, foreign investment, national security, Transparency, United Kingdom, United States (Editors’ note: This post also appears on Lawfare.) In the past year, the U.S. Committee on Foreign Investment in the United States (CFIUS) reviewed a record number of transactions for national security concerns.
The Lawfare Podcast: Kristen Eichensehr on the Cyberwar that Wasn't in Ukraine
Published by The Lawfare Institute in Cooperation With For years, Russia has both officially and unofficially used cyber tools to ruthlessly advance its international agenda. For this reason, many expected Russia's recent invasion of Ukraine to also kick off a new and brutal era of international cyberwar.
Ukraine, Cyberattacks, and the Lessons for International Law
Hostname: page-component-848d4c4894-4rdrl Total loading time: 0 Render date: 2024-06-20T03:43:41.405Z Has data issue: false hasContentIssue false Published online by Cambridge University Press: 23 May 2022 Type Essay Information AJIL Unbound , Volume 116 , 2022 , pp.
Friction, Framing & U.S. Cybersecurity-Related Actions Against Russia
On Wednesday, the U.S. Department of Justice (DOJ) announced that it had “disrupt[ed] a two-tiered global botnet of thousands of infected network hardware devices under the control of a threat actor known to security researchers as Sandworm,” and identified by the U.S. government as “the Main Intelligence Directorate of the General Staff of the Armed Forces of the Russian Federation (the GRU).” This action is the latest in what appears to be a string of public moves to impose additional...
SolarWinds: Accountability, Attribution, and Advancing the Ball
In its long-anticipated public response to the SolarWinds Orion incident, the Biden administration attributed the hacking campaign to Russia’s Foreign Intelligence Service (SVR), issued a new Executive Order on Blocking Property with Respect to Specified Harmful Foreign Activities of the Government of the Russian Federation, and imposed sanctions on “companies operating in the technology sector of the Russian Federation economy that support Russian Intelligence Services.” The administration...
Cyberattack Attribution as Empowerment and Constraint
Pdf version When a state seeks to defend itself against a cyberattack, must it first identify the perpetrator responsible? The US policy of “defend forward” and “persistent engagement” in cyberspace raises the stakes of this attribution question as a matter of both international and domestic law. International law addresses in part the question of when attribution is required.
Cyberattack Attribution as Empowerment and Constraint
Pdf version When a state seeks to defend itself against a cyberattack, must it first identify the perpetrator responsible? The US policy of “defend forward” and “persistent engagement” in cyberspace raises the stakes of this attribution question as a matter of both international and domestic law. International law addresses in part the question of when attribution is required.
The US Gov't and SolarWinds
Last weekend, news broke that alleged Russian government hackers had breached the U.S. Treasury and Commerce Departments starting between March and June via compromised updates to software from SolarWinds. The Departments of State and Homeland Security and the National Institutes of Health were soon added to the list, as were the Pentagon and Department of Energy.
How Constitutional Norms Break Down
Abstract From the moment Donald Trump was elected president, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value.
Cyberattack Attribution and International Law
Earlier this week, the U.S. Department of Justice unsealed an indictment accusing two men linked to China’s Ministry of State Security of a decade-long campaign of hacking dissidents, human rights activists, and a variety of private sector targets, including most recently entities working on COVID-19 treatments, tests, and vaccines.
Expert Summaries of Mueller Report: A Collection
Table of Contents IntroductionRyan Goodman, Co-Editor-in-Chief, Just Security Volume I 1. Joshua Geltzer 2. Asha Rangappa 3. Russian “Active Measures” Social Media Campaign and Criminal Charges against 13 Russian Nationals and 3 Russian Entities Kristen Eichensehr 4. Jennifer Daskal 5. Joshua Geltzer 6. Kate Brannen 7. Kate Brannen 8. Kate Brannen 9. Kate Brannen and Ryan Goodman 10. Rita Siemion 11. Barbara McQuade 12. Asha Rangappa 13. Jennifer Daskal 14. Paul Seamus Ryan 15. Barbara McQuade Volume II 1.
Recap of Recent Pieces on Just Security (March 24-29)
We are a forum on law, rights, and U.S. national security. You can follow on Twitter @just_security
The Missing Piece of the Mueller Investigation
Americans are fiercely divided about one aspect of the Mueller investigation: the prospect that President Donald Trump committed a crime—such as conspiracy with Russians or obstruction of justice—and Special Counsel Robert Mueller’s conclusions, or lack thereof, concerning such potential felonies. But investigating possible criminal activity was by far not the entirety of Mueller’s investigation.
The Early Edition: March 29, 2019
Signup to receive the Early Edition in your inbox here. Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news. TRUMP-RUSSIA Special counsel Robert Mueller’s report to Attorney General William Barr regarding the conclusions of his investigation into Russian electoral interference is over 300 pages long, a Department of Justice (D.O.J.) official announced yesterday.
The Hidden Issue in Huawei’s Suit Against the United States
Huawei’s lawsuit against the United States is more than simply a publicity stunt or moral appeal. Although its claim that the United States violated the Constitution may be a longshot, the basic unfairness alleged by Huawei — that it has been singled out for negative treatment by legislative action — is one that courts should take seriously.
The Early Edition: March 28, 2019
Signup to receive the Early Edition in your inbox here. Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.
A Back Door to Controlling Judges: Poland’s Ruling Party Tries Another Ploy
Poland’s ruling Law and Justice Party has undertaken a systematic campaign for the past three years to control the Polish judiciary, culminating in recent, failed attempts to arbitrarily retire a third of the members of the Supreme Court. The ostensible “reform” effort collapsed after a backlash in which Polish and international civil society organizations rightfully sounded alarm bells.
What to Do with Vetoed Bills
President Trump has finally roused a quiescent Congress. Trump’s declaration of a national emergency regarding the southern border and continued defense of Saudi Arabia after the murder of journalist Jamal Khashoggi have sparked significant congressional pushback. The Senate, by a vote of 59 to 41, joined the House in approving a joint resolution to terminate the emergency Trump had declared at the southern border.
President Trump’s Cronyism and Excesses Should Prompt Security Clearance Reform
The Trump years threaten to become a boiling point for numerous simmering constitutional conflicts, but one of the most innocuous-looking might end up being one of the most important. President Donald Trump’s desire to surround himself with loyalists and punish his detractors without regard to security-driven standards could inadvertently prompt Congress to reshape the landscape over who controls access to national security information.
The Private Frontline in Cybersecurity Offense and Defense
Two reports released Tuesday highlight the important role private actors are playing in cybersecurity defense.
A Possible US-EU Agreement on Law Enforcement Access to Data?
[Cross-posted on Lawfare] Attorney General Jeff Sessions is scheduled to fly to Sofia, Bulgaria for a May 22 meeting with senior European law enforcement officials. In the wake of the Cloud Act, enacted by Congress at the end of March, the possibility of an EU-US agreement on law enforcement access to digital evidence is almost certain to be on the table.
Jesner v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations
On Tuesday, the U.S. Supreme Court decided Jesner v. Arab Bank, a case raising the question whether corporations can be sued for human rights violations, including acts of terrorism, under the Alien Tort Statute (ATS). For a preview of the arguments in the case, see here. Justice Kennedy delivered the judgment of the Court, writing a broad and rambling opinion that might have foreclosed ATS liability for all corporations.
Microsoft, Ireland, and the Rest of the World
United States v. Microsoft will be practically significant for its effect on law enforcement’s ability to access data stored abroad, and it has the potential to be doctrinally significant as the latest in a line of recent cases including Morrison, Kiobel, and RJR Nabisco in which the Supreme Court has finessed the presumption against extraterritoriality. But these important issues in some ways mask the even broader significance of the case.
Introducing Just Security’s Symposium on United States v. Microsoft
Just Security is pleased to announce the launch of an online symposium on United States v. Microsoft, which will be argued at the U.S. Supreme Court on February 27. The question in the case is whether Section 2703 of the Stored Communications Act (SCA) allows a court to order a U.S. provider of email services to disclose electronic communications stored outside the United States.
Today’s Revolution: Cybersecurity and the International Order
PDF Version A review of Lucas Kello’s The Virtual Weapon and International Order (Yale University Press, 2017). *** With nearly every cybersecurity incident come assertions that the latest one is “the big one,” the incident that is truly gamechanging, disastrous, or sure to trigger the U.S. Congress to address cybersecurity.
Today’s Revolution: Cybersecurity and the International Order
A review of Lucas Kello’s The Virtual Weapon and International Order (Yale University Press, 2017). With nearly every cybersecurity incident come assertions that the latest one is “the big one,” the incident that is truly gamechanging, disastrous, or sure to trigger the U.S. Congress to address cybersecurity.
What Stories Deserved More Attention in 2017?
Every year important news stories come and go with too few people taking notice, but the chaos (not to mention the scandal and corruption) of the Trump presidency makes the problem even worse this year. It is nearly impossible to keep up with the firehose of news we face each day. On Twitter, I asked which national security and/or foreign policy stories have not gotten the attention they deserve this year, and the responses came flooding in.
Most Read Articles at Just Security in 2017
We appreciate many things about 2017, especially our readers. Below are two Top 25 lists. The first includes the most popular pieces related to Russian interference in the 2016 election and the second list includes our coverage of all other topics minus Russia. These lists are generated using Google Analytics, based on page views. We look forward to providing continuing coverage of these and other topics in the national security space.
Judge Chutkan’s Ruling on the Unidentified U.S. Citizen Detainee
Late Saturday night, Judge Tanya S.
Former Top U.S. Attorneys’ Letter to President Trump: Let Mueller Do His Job
Many Americans believe that Special Counsel Robert Mueller needs time and political space to complete his important counterintelligence investigation of Russian interference in the 2016 election and, in particular, of any links between President Trump’s campaign team and Moscow’s efforts. But only a few true experts have a deep sense of what an undertaking this sort of complex investigation involves.
Just Security’s Recommended Holiday Reads
As we look ahead to next week, we’re starting to daydream about what books we might finally find the time to read during the holidays. Here are a few recommendations from Just Security’s editors … the books we wrote, the books we loved, and the books we’re planning to read next. The Internationalists: How a Radical Plan to Outlaw War Remade the World, by Oona A. Hathaway and Scott J.
Three Questions on the WannaCry Attribution to North Korea
The Trump Administration this week formally accused the North Korean government of responsibility for the WannaCry ransomware attacks that hobbled hundreds of thousands of computers “in more than 150 countries” in May 2017. The accusation came first in a Wall Street Journal op-ed by U.S. Homeland Security Advisor Tom Bossert Monday night. At a press briefing on Tuesday, Bossert explained that North Korea’s “malicious behavior is growing more egregious, and . . .
Mark Zuckerberg’s Latest Fig Leaf for His Russian Propaganda Problem
Since Facebook disclosed that at least 150 million Americans were exposed to Russian propaganda on its platform in the run up to the 2016 election, pressure has been growing for the company to demonstrate transparency and notify its users. During testimony by Facebook General Counsel Colin Stretch on Capitol Hill at the beginning of November, members of Congress called on the social media giant to do just that.
Sessions' Recusal, the Clinton Foundation, and Uranium One
When Attorney General Jeff Sessions testifies before the House Judiciary Committee Tuesday, he will face questioning on the Uranium One deal. As Special Counsel Robert Mueller’s investigation has intensified, President Donald Trump and some congressional Republicans, including Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa), have called on Sessions to investigate Hillary Clinton’s role in what they contend is the real Russia collusion scandal.
The Public Needs a Lesson in Russian Strategic Deception: It’s What You Want to Hear
The 2016 election will be remembered for, among other things, Russian attacks including cyber theft, propaganda, trolls, bots, disinformation, efforts to use social media to stoke negative passions and possible espionage (in common parlance, collusion). Several commentators have correctly reminded us that such activity is wholly consistent with Russian intelligence activity over the decades. As such, we should also be on the lookout for another classic Russian trick: strategic deception.
Would the United States Be Responsible for Private Hacking?
Rep. Tom Graves (R-GA) and Rep. Kyrsten Sinema (D-AZ) introduced the Active Cyber Defense Certainty Act (H.R. 4036) in the House of Representatives on Oct. 13. The bill would amend the Computer Fraud and Abuse Act (CFAA)—the main federal statute that governs computer hacking—effectively to allow victims of certain cyber intrusions to take defensive measures that would otherwise violate the CFAA’s prohibitions on unauthorized access to computers.
Timeline of Escalation in Syria: U.S. vs. Iran, Russia, Syria and “Pro-Regime” Forces post January 20, 2017
April 4: Chemical attack A rocket laced with the nerve agent sarin kills more than 80 civilians in Khan Shaykhun in the rebel-held Idlib province. The attack is attributed to the government of Bashar al-Assad. There is reportedly “mounting evidence” that Russia was “complicit” in the attack at least through knowledge or acquiescence. April 6: Cruise missile response The U.S. launches 59 Tomahawk cruise missiles at a Syrian government air base.
Deterrence by Indictment?
In an indictment released this morning, the Justice Department charged seven Iranians with carrying out distributed denial of service (DDoS) attacks on US financial institutions and also charged one of the seven with hacking a dam in New York. The indictment is the latest instance of a ramped up effort by the US government to publicly attribute cyber intrusions to foreign governments and foreign government-linked hackers.
Iraq Is Off the Travel Ban List, But Iraqis Most in Need Not Helped by Trump’s New Order
In its revised executive order, the Trump administration dropped Iraq from the list of Muslim-majority countries for whom travel to the United States is suspended for 90 days. The move came after heavy lobbying from the Iraqi government, plus an outcry from veterans and U.S. diplomats in Iraq who said banning Iraqis from coming to the US represented a betrayal of the very people who risked their lives to work with the U.S. government.
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