Administrative National Security

ARTICLES

ELENA CHACHKO*

In the past two decades, the United States has applied a growing num-

ber 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

appli-

cation 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

inte-

grated 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,

indeﬁ-

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

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

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 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 justiﬁcation for the exercise of ro-

bust judicial power in this category.

ABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065

I. T

HE 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 “Targeted” or “Smart” Sanctions . . . 1076

II. T

HE 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

1064 T

HE GEORGETOWN LAW JOURNAL [Vol. 108:1063

2. Watchlisting and the Courts. . . . . . . . . . . . . . . . . . . . . . . 1106

E. INDIVIDUALIZED CYBER COUNTERMEASURES . . . . . . . . . . . . . . . . . . . 1109

F. SUMMARY: ADMINISTRATIVE NATIONAL SECURITY AS

ADMINISTRATIVE ADJUDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1112

III. A

DMINISTRATIVE 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. A

DMINISTRATIVE NATIONAL SECURITY AND THE COURTS . . . . . . . . . . . . . 1130

A. EXPLANATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1131

B. JUSTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1136

ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137

NTRODUCTION

In the past two decades, the United States has applied a growing number of

foreign policy and national security measures directly targeting individuals—

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

2020] A

DMINISTRATIVE NATIONAL SECURITY 1065

assessment.

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.

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 “administrative national security,”

involves the exercise of considerable discretion by administrative agencies on a

routine, chronic, and indeﬁnite 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.

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 Conﬂict, in L

AW 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. R

EV. 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 “legal black

holes” 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 C

OLUM. L. REV. 1029 (2015); cf. Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign

Relations Law, 128 H

ARV. L. REV. 1897 (2015).

In addition, an extensive literature has explored the role of individuals within government in

designing foreign policy. By contrast, this Article examines the targeting of individuals. See, e.g.,

RAHAM ALLISON & PHILIP ZELIKOW, ESSENCE OF DECISION: EXPLAINING THE CUBAN MISSILE CRISIS

(2d ed. 1999) (analyzing U.S. government decisionmaking during the crisis); RICHARD C. SNYDER,

H. W. B

RUCK & BURTON SAPIN, FOREIGN POLICY DECISION-MAKING (REVISITED) (2002). A strand of

legal scholarship that focuses on the role of individuals in foreign and security policymaking is the

literature on Executive Branch lawyering. See, e.g., J

ACK GOLDSMITH, THE TERROR PRESIDENCY: LAW

AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 122–35 (2007); Robert F. Bauer, The National

Security Lawyer, in Crisis: When the “Best View” of the Law May Not Be the Best View, 31 G

EO. J.

EGAL ETHICS 175 (2018); Richard B. Bilder, The Ofﬁce of the Legal Adviser: The State Department

Lawyer and Foreign Affairs, 56 A

M. J. INT’L L. 633 (1962); Neal Kumar Katyal, Internal Separation of

Powers: Checking Today’s Most Dangerous Branch from Within, 115 Y

ALE L.J. 2314, 2336–37 (2006);

Trevor W. Morrison, Libya, “Hostilities,” the Ofﬁce of Legal Counsel, and the Process of Executive

Branch Legal Interpretation, 124 H

ARV. L. REV. F. 62, 64–65 (2011); Michael B. Mukasey, The Role of

Lawyers in the Global War on Terrorism, 32 B.C. I

NT’L & COMP. L. REV. 179 (2009); Daphna Renan,

The Law Presidents Make, 103 V

A. L. REV. 805 (2017). This Article complements this literature by

looking at the individuals on the receiving end of modern U.S. foreign and security policy.

2. I do not argue that U.S. foreign and security policy is now entirely or even largely individualized.

Nor do I suggest that traditional diplomacy, international agreements, and military action have become

obsolete. Far from it, as even a cursory look at the headlines on any given day would make clear. In fact,

there has been renewed scholarly interest lately in “old-school” great power rivalries.

3. See infra Section II.F.

1066 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Of course, administrative agencies have long been involved in foreign and se-

curity policy. The State and Defense Departments and the intelligence commu-

nity are dedicated to foreign affairs and national security. And in today’s highly

regulated global environment, administrative agencies often address foreign and

security matters through measures of general applicability, such as rules execut-

ing international agreements.

These broader phenomena are not my focus.

Rather, I focus on the subset of administrative action in the foreign and security

realm that consists of individualized measures applied repeatedly and indeﬁnitely

through bureaucratic mechanisms. This Article provides a detailed account of

administrative national security as administrative adjudication. It thus contributes

to the broader administrative adjudication literature, which has seen renewed in-

terest

recently.

After describing the rise and operation of administrative national security, this

Article examines how the administrative state integrates with the presidency and

the courts in this category.

This examination informs (and, in some instances,

requires rethinking of) longstanding debates about the role of the President and

the courts in foreign affairs and national security. It offers a new lens through

which to approach the literature on presidential power in foreign affairs,

presiden-

tial

control of the administrative state, and judicial deference.

I ﬁrst consider

the structural and doctrinal implications of administrative

national security for presidential control of administrative agencies in the

foreign and security sphere. Inﬂuential accounts of the relationship between the

President and the administrative state—in particular, Elena Kagan’s Presidential

Administration

—have portrayed a President who asserts authority over the

administrative state, aligns it with his policy priorities, and takes an active and

visible role in regulation. We would expect to see a strong version of presidential

administration in shaping and overseeing the legal architecture of administrative

national security given the President’s elevated role in these contexts. But in fact,

4. See, e.g., Jean Galbraith & David Zaring, Soft Law as Foreign Relations Law, 99 CORNELL L. REV.

735, 747–49 (2014); see also Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 V

A. L. REV.

649, 652 (2000) (“[O]ur administrative state . . . is becoming . . . an international administrative state. A

wide variety of administrative agencies now confront foreign affairs issues, such as whether to comply

with international law, whether to apply federal regulations to foreign conduct, and whether and how to

incorporate the decisions of international institutions.” (emphasis omitted) (citations omitted)); Ganesh

Sitaraman, Foreign Hard Look Review, 66 A

DMIN. L. REV. 489 (2014) (surveying examples of general

foreign and security measures in arguing for rigorous hard look review in this context).

5. This renewed attention was spurred by the Supreme Court’s 2018 decisions in Lucia v. SEC, 138

S. Ct. 2044 (2018), and Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct.

1365 (2018), as well as efforts led by the Administrative Conference of the United States (ACUS) to

map the various forms of adjudication within the administrative state. See infra Section II.F. This Article

informs these conversations through its detailed account of adjudication in the foreign and security

sphere.

6. I do not consider implications for Congress in this Article. For a recent account of the role of

Congress in foreign affairs that provides insight into its potential role in administrative national security,

see Rebecca Ingber, Congressional Administration of Foreign Affairs, 106 V

A. L. REV. 395 (2020).

7. Elena Kagan, Presidential Administration, 114 H

ARV. L. REV. 2245 (2001).

2020] ADMINISTRATIVE NATIONAL SECURITY 1067

we see the opposite. The President has delegated signiﬁcant elements of his

foreign relations powers as chief executive and commander-in-chief to the admin-

istrative state. He has gradually reduced his personal involvement in their exercise.

The administrative state has in turn established independent mechanisms to effec-

tuate those powers. These trends are not unique to the Trump Administration.

They reﬂect broader structural dynamics that transcend administrations.

Conceiving of administrative national security as administrative adjudication

helps explain why presidential involvement in this category has diminished over

time.

This decline in presidential control and oversight dovetails with an

entrenched practice and norm of presidential insulation from administrative

adju-

dication

in domestic policy. The norm grew out of a combination of functional

and due process concerns, as well as conventions of agency independence.

Although the due process and agency-independence calculus may be different in

administrative national security, the functional reasons for limited presidential

control of administrative adjudication retain their force. The President and his

staff simply lack the capacity and bandwidth to routinely make thousands of com-

plex,

granular individualized decisions.

The shift in the center of gravity in administrative national security from the

President to the bureaucracy has a number of implications for our understanding

of presidential power in foreign affairs and national security. One set of implica-

tions focuses on the ways in which administrative national security simultane-

ously constrains and empowers the President in exercising that power.

The constraining function stems from the entrenchment of the administrative

national security bureaucracy in the past two decades. Although it does not

restrict the President’s authority to wield his foreign affairs and national security

power in principle, it does channel action toward reliance on individualized

measures. The bureaucracy’s existence makes it more likely that Presidents will

use it due to bureaucratic inertia and the costs of changing course.

The empowering function stems from the array of ﬁne-grained and subtle

options this bureaucracy gives the President to address intractable foreign and

se-

curity

problems he faces in the twenty-ﬁrst century. The traditional presidential

tool kit in this context consisted of diplomacy, military intervention against

states, economic boycotts, and covert action. The administrative national security

bureaucracy gives the President a menu of alternatives that can be less costly and

more effective—politically, economically, and strategically. The President can

deploy these measures unilaterally within existing legal frameworks, without fur-

ther

authorization from Congress. Finally, as measures like targeted killings and

blacklisting have become bureaucratized and gradually regularized, public

scru-

tiny

has atrophied, allowing the President to apply them more aggressively. Such

8. As I elaborate in section III.A.1, Kagan in fact distinguishes adjudication as an area of

administrative action that remained insulated from presidential control in the Clinton administration.

9. See discussion infra Section III.A.1.

1068 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

measures used to be the subject of intense public debate, but they hardly com-

mand attention anymore despite their frequent application.

Another set of implications concerns the doctrinal legal challenge posed by

administrative national security. For example, it is settled that the nation should

speak with one voice in foreign affairs and national security, and that the

President is “the sole organ of the federal government in the ﬁeld of international

relations.”

These doctrines identify the federal government’s foreign affairs and

national security powers with the President himself. Recognizing that a

signiﬁ-

cant

portion of foreign and security action on key issues now engages the

President only peripherally, and that administrative agencies enjoy broad

discre-

tion,

adds to existing critiques of these doctrines by highlighting the President’s

limited de facto control—as a structural matter—of administrative national

secu-

rity

action.

Accounting for administrative national security also has implications for the

role of courts. It explains the growth in adjudicated foreign and security cases

because individuals targeted by foreign and security measures are more likely to

satisfy justiciability and reviewability requirements under the Administrative

Procedure Act (APA) than in cases that challenge broader policies. It offers a

justiﬁcation for judicial review by challenging assumptions underlying the con-

ventional wisdom that courts should typically defer to the political branches—

usually the Executive—in foreign and security matters due to the courts’ inferior

information and competence. Such deference makes much less sense when

indi-

viduals

are the targets of foreign policy and national security measures through a

process that resembles ordinary administrative adjudication. In this limited con-

text, courts do not necessarily face abstract policy problems that they are

ill-

equipped

to adjudicate but rather familiar questions of administrative law and

due process. Secrecy and dispatch as institutional arguments for deference are

also diminished in administrative national security.

Part I of this Article surveys the historical precursors of individualized

admin-

istrative

national security and factors that have contributed to its rise. Part II

documents the emergence of administrative national security in the past two

dec-

ades.

It considers targeted killings, detentions, targeted sanctions, security watch-

lists,

other travel restrictions, and individualized cyber countermeasures. It

examines the role of administrative agencies in facilitating the application of

each of these measures and analyzes related case law. It then offers an account of

administrative national security as administrative adjudication and outlines its

main features. Part III explores how administrative national security informs our

understanding of the relationship between the administrative state and the

President in the foreign and security realm. Part IV reﬂects on how administrative

national security relates to the conventional wisdom about the role of courts in

this area and how it might affect judicial review under the APA. A brief

conclu-

sion

follows.

10. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936); see infra Section III.B.

2020] ADMINISTRATIVE NATIONAL SECURITY 1069

I. THE ORIGINS OF FOREIGN AND SECURITY INDIVIDUALIZATION

U.S. foreign and security policy has become increasingly individualized in the

past two decades.

One could ask what exactly is becoming increasingly individualized. There has long been a

debate about deﬁning foreign and security policy. See Walter Carlsnaes, Foreign Policy, in H

ANDBOOK

INTERNATIONAL RELATIONS 298, 303–05 (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds.,

2013); Bernard C. Cohen & Scott A. Harris, Foreign Policy, in 6 H

ANDBOOK OF POLITICAL SCIENCE:

OLICIES AND POLICYMAKING 381 (Fred I. Greenstein & Nelson W. Polsby eds., 1975) (“There is a

certain discomfort in writing about foreign policy, for no two people seem to deﬁne it in the same way

. . . .”). Cohen and Harris deﬁne it broadly as “a set of goals, directives or intentions, formulated by

persons in ofﬁcial or authoritative positions, directed at some actor or condition in the environment

beyond the sovereign nation state, for the purpose of affecting the target in the manner desired by the

policymakers.” Id. at 383. This capacious deﬁnition accommodates a broad range of policy processes

and outputs that have a foreign element. Foreign policy and national security are generally thought of as

broad and pliable categories in practice as well. For instance, a global threat assessment from former

U.S. Director of National Intelligence Dan Coats addressed not only traditional challenges such as state

adversaries, terrorism, and weapons of mass destruction but also human security and climate change.

See, e.g., D

ANIEL R. COATS, OFFICE OF THE DIR. OF NAT’L INTELLIGENCE, WORLDWIDE THREAT

ASSESSMENT OF THE US INTELLIGENCE COMMUNITY (2018), https://www.dni.gov/ﬁles/documents/

Newsroom/Testimonies/2018-ATA—Unclassiﬁed-SSCI.pdf [https://perma.cc/HDR9-MBS5]; see also

Laura K. Donohue, The Limits of National Security, 48 A

M. CRIM. L. REV. 1573, 1706–09 (2011). The

analysis in this Article need not choose between such a broad deﬁnition of foreign policy and a narrower

one that encompasses only traditional diplomacy and security. The types of measures discussed here and

the contexts in which they have been applied are at the core of what we commonly understand as foreign

and security policy, even strictly deﬁned.

Before turning to the concrete manifestations of this trend in

Part II, it is useful to consider its historical precursors and key drivers. Past

instan-

ces

of individualized targeting in the areas of foreign affairs and national security

foreshadowed and inﬂuenced the legal response to the more recent iteration of

foreign and security individualization that this Article explores. The historical

perspective also illustrates that, although individualized measures were on the

pe-

riphery

of U.S. foreign and security policy in previous eras, they have now moved

closer to its core. The following section considers a number of historical

exam-

ples

of individualized targeting from the early- and mid-twentieth century and

related judicial decisions.

A. HISTORICAL PRECURSORS

Military detentions away from the battleﬁeld, blacklisting, and targeted killings

have precedents in the modern history of U.S. foreign and security policy.

Consider a few prominent historical examples. In 1942, the FBI detained eight

Nazi saboteurs who landed on U.S. shores in order to attack various targets. Upon

their capture, President Roosevelt proclaimed that nationals of any nation at war

with the United States who enter the country to commit sabotage, espionage, hos-

tile

acts, or violations of the law of war “shall be subject to the law of war and to

the jurisdiction of military tribunals.”

The President also appointed a military

11.

12. Ex parte Quirin, 317 U.S. 1, 23 (1942).

1070 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

commission in Washington, D.C. to try the saboteurs. The Supreme Court

famously sanctioned these measures in its swift decision in Ex parte Quirin.

Other examples include past U.S. involvement in political assassinations

abroad and U.S. covert action more broadly.

The 1975 Church Committee

Interim Report, which examined the role of the U.S. government in assassination

attempts against foreign leaders, found that the United States was involved in ﬁve

assassination plots in the 1950s and 1960s.

S. R

EP. NO. 94-465, at 1 (1975); see Nathan Canestaro, American Law and Policy on

Assassinations of Foreign Leaders: The Practicality of Maintaining the Status Quo, 26 B.C. I

NT’L &

OMP. L. REV. 1, 19–20 (2003); see also Christopher J. Fuller, The Origins of the Drone Program,

AWFARE (Feb. 18, 2018, 10:00 AM), https://www.lawfareblog.com/origins-drone-program [https://

perma.cc/LE2W-BBTK] (discussing covert CIA terrorism strikes under President Reagan).

The Report made a clear moral dis-

tinction between “a coldblooded, targeted, intentional killing of an individual for-

eign leader and other forms of intervening in the affairs of foreign nations.”

Blacklisting individuals and groups in the name of national security also has

ample precedent in the modern history of U.S. foreign and security policy.

the period spanning World War I to the end of the McCarthy Era, individuals and

groups were extensively targeted for alleged subversive activity intended to

pro-

mote

foreign interests and undermine the U.S. government.

13. Id. at 48 (denying the saboteurs’ application for leave to ﬁle habeas petitions). The eight were

subsequently tried and sentenced to death. See generally Andrew Kent, Judicial Review for Enemy

Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case, 66 V

AND. L. REV. 153

(2013) (discussing the modern implications of the Court’s decision in Quirin to allow the saboteurs

access to civilian courts).

14. Oft-cited examples are the 1943 assassination of Japanese Admiral Isoroku Yamamoto, the

architect of the Pearl Harbor attack, and the CIA-led Phoenix program in Vietnam. Note, however, that

these assassinations occurred in the context of active interstate wars. See, e.g., Christopher Kutz, How

Norms Die: Torture and Assassination in American Security Policy, 28 E

THICS & INT’L AFFAIRS 425,

434–37 (2014).

15.

16. S. R

EP. NO. 94-465, at 6.

17. See Rachel Barnes, United States Sanctions: Delisting Applications, Judicial Review and Secret

Evidence, in E

CONOMIC SANCTIONS AND INTERNATIONAL LAW 197, 199–200 (Matthew Happold & Paul

Eden eds., 2016) (discussing blacklisting in the framework of U.S. World War II economic warfare).

18. The practice began with the Deportation and Exclusion Laws of 1917, 1918, and 1920. These

statutes prohibited the entry into or presence within the United States of aliens that belonged to

organizations advocating the violent overthrow of the U.S. government. Few groups, however, were

eventually targeted under these statutes. In 1934, as Nazism rose in Germany, Congress established the

ﬁrst Special Committee on Un-American Activities to counter Nazi and other foreign propaganda. The

Committee listed a total of seven organizations as un-American. This included the Communist Party, as

well as organizations that espoused fascist ideology. See E

LEANOR BONTECOU, THE FEDERAL LOYALTY-

ECURITY PROGRAM 159–63 (1953). Throughout the late 1930s and the 1940s, against the backdrop of

World War II, the practice of systematically listing allegedly subversive groups expanded. Among other

legislative developments, Congress passed the Hatch Act in 1939, which limited certain political

activities of federal employees. The Act and additional measures purported to ban Communists and

Nazis from government employment. See An Act to Prevent Pernicious Political Activities (Hatch Act

of 1939), Pub. L. No. 252, § 9(a), 53 Stat. 1147, 1148. The Justice Department became deeply entangled

in the proscription of allegedly subversive organizations in order to determine which associations would

disqualify federal employees. The Attorney General compiled a list of roughly forty-seven designated

organizations. See B

ONTECOU, supra, at 165–67; Donald L. King, The Legal Status of the Attorney

General’s “List,” 44 C

ALIF. L. REV. 748, 748–49 (1956). This targeting of groups and individuals on an

ideological basis is now widely viewed as political oppression, not a practice driven by genuine national

2020] ADMINISTRATIVE NATIONAL SECURITY 1071

For example, in 1947, President Truman issued what became known as the

“Loyalty Order”—Executive Order 9,835.

The Order instructed the Attorney

General to compile a list of foreign and domestic groups designated as subversive

or advocating certain ideologies. The Attorney General was to transmit his list to

the Federal Loyalty Review Board, whose role was to ensure the loyalty of

fed-

eral

employees. Subsequently, in 1948, then-Attorney General Clark published a

list of eighty-two subversive organizations.

By late 1950, that number increased

to 197—132 of which were labeled as Communist organizations. Although these

designations underwent review within the Justice Department, the designated

per-

sons

and groups were excluded from the process entirely.

This singling out of

individuals and groups for harboring allegedly subversive ideologies continued

throughout the McCarthy Era.

The Supreme Court weighed in on these practices. In its 1951 decision in Joint

Anti-Fascist Refugee Committee v. McGrath (JAFRC), the Court rebuked the

Attorney General over the Loyalty Order designation procedure.

The plaintiffs

were a number of groups designated as Communists pursuant to the Order.

The

absence of due process for listed groups and individuals was central to the

Court’s reasoning, although no majority opinion emerged.

In Kent v. Dulles,

decided several years later, the Court addressed national security travel restric-

tions.

Writing for the Court, Justice Douglas held that the denial of passports to

individuals suspected to be Communists exceeded the Secretary of State’s

security concerns. See S. REP. NO. 94-755, at 5–9 (1976) (the Church Committee Report); Kent, supra

note 1, at 1046 (noting that those targeted under these programs “posed no real threat of any kind to the

security of the United States and were plainly inappropriate targets of the national security state”); see

also David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 H

ARV. C.R.-C.

L. L. R

EV. 1, 7 (2003) (asserting that punishments for dissent and political association are now viewed as

“a grave error”).

19. 12 Fed. Reg. 1,935 (Mar. 21, 1947) (prescribing procedures for the administration of an

employee loyalty program in the Executive Branch of the government).

20. Exec. Order No. 9,936, 13 Fed. Reg. 1471, 1473 (Mar. 20, 1948); see B

ONTECOU, supra note 18,

at 170; see also Note, Designation of Organization as Subversive by Attorney General: A Cause of

Action, 48 C

OLUM. L. REV. 1050, 1050 (1948) (“[T]he Attorney General has designated over ninety

organizations and associations as ‘subversive.’”).

21. See B

ONTECOU, supra note 18, at 168–69, 171.

22. President Eisenhower’s Executive Order 10,450 supplanted Executive Order 9,835. Exec. Order

No. 10,450, 18 Fed. Reg. 2489 (Apr. 27, 1953). This Order introduced structural changes to Truman’s

Loyalty-Security Program. However, as then-FBI Director Hoover observed, it still required every

federal employee to undergo a loyalty investigation. See John Edgar Hoover, Role of the FBI in the

Federal Employee Security Program, 49 N

W. U. L. REV. 333, 334–35 (1954).

23. See 341 U.S. 123, 142 (1951).

24. See id. at 124–25.

25. Id. at 141–42. Justice Burton, joined by Justice Douglas, concluded that the Attorney General’s

designation of the groups as Communist organizations without notice or hearing was patently arbitrary

and therefore exceeded his authority. See id. at 137–38. The concurring opinions of Justices Black,

Frankfurter, Douglas, and Jackson concluded that the Fifth Amendment’s Due Process Clause entitled

the organizations to predesignation notice and hearing. See id. at 143 (Black, J., concurring), 165

(Frankfurter, J., concurring), 176 (Douglas, J., concurring), 186 (Jackson, J., concurring).

26. 357 U.S. 116, 129 (1958).

27. For a study of the history and scope of U.S. security-related travel restrictions, see generally

EFFREY KAHN, MRS. SHIPLEY’S GHOST: THE RIGHT TO TRAVEL AND TERRORIST WATCHLISTS (2013).

1072 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

authority.

Justice Clark’s dissent surveyed the many instances since 1917 in

which individuals had been denied passports on purported national security

grounds like Communist afﬁliations.

These and other examples demonstrate that the direct targeting of individuals

through an administrative process has roots in the modern history of U.S. foreign

and security policy. The legal and political responses to military detention outside

the theater of war, assassinations, and the blacklisting of individuals and groups

foreshadowed and played a role in the more recent legal debates surrounding

detentions, targeted killings, and blacklisting that are the focus of this Article. Ex

parte Quirin returned in the Guantanamo detentions debate.

The outcry over

U.S. participation in political assassinations culminating in the Church Interim

Report and the resulting ban on assassinations later featured in the controversy

over the legality of targeted killings.

See Memorandum from David J. Barron, Acting Assistant Att’y Gen., Ofﬁce of Legal Counsel, to

Eric Holder, U.S. Att’y Gen., Re: Lethal Operation Against Shaykh Anwar Aulaqi 4 (Feb. 19, 2010)

[hereinafter Memorandum from David J. Barron], https://www.aclu.org/sites/default/ﬁles/assets/olc_

opinion_feb_2010.pdf [https://perma.cc/A5TR-TQNL]; see also Matthew Spurlock, The Assassination Ban

and Targeted Killings, J

UST SECURITY (Nov. 5, 2015), https://www.justsecurity.org/27407/assassination-

ban-targeted-killings/ [http://perma.cc/8ZR6-9YWH].

The Court in JAFRC established that

blacklisted persons could assert due process rights in court.

In the late 1990s,

groups designated by the State Department as foreign terrorist organizations

invoked JAFRC in challenging their designation before the D.C. Circuit.

Kent

reappeared in a key travel-watchlist case.

These early instances of individuali-

zation therefore provide context for the contemporary emergence of administra-

tive national security on a scale far larger than before.

B. THE CAUSES OF INDIVIDUALIZATION

A number of interrelated factors contributed to the individualization of U.S.

foreign and security policy and the corresponding expansion of the role of

admin-

istrative

agencies in the past two decades: the war on terror, technology, and frus-

tration

with the ineffectiveness and humanitarian costs of broad economic

sanctions. Underlying these factors was the rise of liberalism after the Cold War,

with its focus on individuals rather than collectives as both the subjects of rights

and objects of blame. Each factor represents complex, long-term processes that

have generated volumes of analysis in their own right. I provide only an overview

of these factors and explain how they have converged around the targeting of

individuals.

28. Kent, 357 U.S. at 130.

29. Id. at 139–43 (Clark, J., dissenting).

30. See Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a

Difference Sixty Years Makes, 19 C

ONST. COMMENT. 261, 281 (2002); Kent, supra note 13, at 220–21.

31.

32. See infra Section II.C.

33. People’s Mojahedin Org. of Iran v. U.S. Dep’t of State (PMOI I), 182 F.3d 17, 22 (D.C. Cir.

1999); see infra Section II.C.2.

34. See Latif v. Holder, 28 F. Supp. 3d 1134, 1148 (D. Or. 2014), appeal dismissed, No. 14-36027

(9th Cir. Dec. 31, 2014).

2020] ADMINISTRATIVE NATIONAL SECURITY 1073

1. The War on Terror

Much has been said and written about the origins of the war on terror in the

aftermath of the September 11, 2001 (9/11) attacks and how it has evolved into

its current iteration.

That war has focused on dispersed groups that transcend

national borders: al-Qaeda, the Islamic State, offshoots like the Khorasan group

in Syria and al-Qaeda in the Arab Peninsula, al-Shabaab in Somalia, and others.

United States efforts to combat these transnational groups and their attempts to

inspire radicalization to terrorism worldwide have targeted individuals suspected

as leaders or afﬁliates of such groups. In addition, the United States has sought to

prevent unafﬁliated individuals and groups from carrying out attacks, relying on

a combination of individualized military and nonmilitary measures such as travel

restrictions and economic sanctions.

The war on terror has no end in sight. It has gradually expanded over

the course of its eighteen years to new countries and new groups. Despite then-

candidate Barack Obama’s criticism of the counterterrorism policies of the Bush

Administration,

See Jack Goldsmith, The Contributions of the Obama Administration to the Practice and Theory

of International Law, 57 H

ARV. INT’L L.J. 455, 455 (2016). But see Kenneth Anderson, Targeted Killing

in U.S. Counterterrorism Strategy and Law 2 (May 11, 2009), https://www.brookings.edu/wp-content/

uploads/2016/06/0511_counterterrorism_anderson.pdf [https://perma.cc/4GXA-V78N] (discussing

Obama’s support for targeting al-Qaeda leadership).

the Obama Administration continued the war on terror based

on the same legal theory.

Compare John B. Bellinger, III, Legal Issues in

the War on Terrorism, U.S. D

EP’T OF STATE (Oct.

31, 2006), https://perma.cc/FSU6-EMK9, with Harold Hongju Koh, Former Legal Advisor, U.S. Dep’t

of State, Speech at the Annual Meeting of the American Society of International Law: The Obama

Administration and International Law (March 25, 2010), https://www.americanbar.org/content/dam/aba/

administrative/litigation/materials/sac_2012/50-3_nat_sec_obama_admin.authcheckdam.pdf [https://perma.

cc/V3LT-NGFW].

It expanded the scope of U.S. counterterrorism opera-

tions

outside hot battleﬁelds. There is evidence that the Trump Administration

has doubled down on counterterrorism strikes across the globe.

This “forever

war” on terror has become a seemingly permanent state of affairs in which the

United States routinely targets individual terrorism suspects and groups

world-

wide,

and administers blacklists that impose severe restrictions on individuals.

35. See, e.g., RICHARD L. ABEL, LAW’S WARS: THE FATE OF THE RULE OF LAW IN THE US “WAR ON

TERROR” (2018); GABRIELLA BLUM & PHILIP B. HEYMANN, LAWS, OUTLAWS, AND TERRORISTS:

ESSONS FROM THE WAR ON TERRORISM (2010); PHILIP BOBBITT, TERROR AND CONSENT: THE WARS

FOR THE TWENTY-FIRST CENTURY (2008); GOLDSMITH, supra note 1; HAROLD HONGJU KOH, THE

TRUMP ADMINISTRATION AND INTERNATIONAL LAW 91–140 (2019).

36. See infra Sections II.C, II.D.

37.

38.

39. See infra Section II.A.

40.

1074 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

See Harold Hongju Koh, Former Legal Advisor,

U.S. Dep’t of State, Speech at the Oxford Union:

How to End the Forever War? (May 7, 2013), https://law.yale.edu/sites/default/ﬁles/documents/pdf/

Faculty/KohOxfordSpeech.pdf [https://perma.cc/ZL9P-SCTP]; Sarah Grant & Jack Goldsmith, The

Scope of the Endless War after One Year Under Trump, L

AWFARE (Jan. 19, 2018, 2:38 PM), https://

www.lawfareblog.com/scope-endless-war-after-one-year-under-trump [https://perma.cc/G8NG-YHJB];

Greg Jaffe, For Trump and His Generals, ‘Victory’ has Different Meanings, W

ASH. POST (Apr. 5, 2018,

2:26 PM), https://www.washingtonpost.com/world/national-security/for-trump-and-his-generals-victory-

has-different-meanings/2018/04/05/8d74eab0-381d-11e8-9c0a-85d477d9a226_story.html (“These days,

senior ofﬁcers talk about ‘inﬁnite war.’”); see also John Wynne, Note, After al-Qaida: A Prospective

2. Technology

Technology has advanced the individualization of U.S. foreign and security

policy in two

ways: the individualization of threats and the individualization of

capabilities. With

respect to the threats, technology now allows individuals and

small groups without substantial resources to inﬂict signiﬁcant harm on nations

and societies through malicious cyber activity. These private cyber actors may

act independently or on behalf of rival states. The individualized nature of the

cyber threat landscape has, therefore, required targeted policy responses. As a

corollary, technology has also facilitated individualized targeting by states. The

explosion of data about individuals from diverse sources, increased computa-

tional power, the development of artiﬁcial intelligence and algorithmic decision-

making, and growing reliance on these tools in government have made it easier

for government agencies to collect and analyze information about persons of in-

terest anywhere, and to act upon that information in real time.

See, e.g., E

XEC. OFFICE OF THE PRESIDENT, BIG DATA: SEIZING OPPORTUNITIES, PRESERVING

VALUES 1–9, 22–32 (2014), https://obamawhitehouse.archives.gov/sites/default/ﬁles/docs/big_data_

privacy_report_may_1_2014.pdf [https://perma.cc/339Q-JAFK]; Emily Berman, A Government of

Laws and Not of Machines, 98 B.U. L. R

EV. 1277 (2018) (examining the government’s use of artiﬁcial

intelligence in law enforcement and national security decisionmaking); Danielle Keats Citron,

Technological Due Process, 85 W

ASH. U. L. REV. 1249, 1252 (2008) (“In the past, computer systems

helped humans apply rules to individual cases. Now, automated systems have become the primary

decision makers.” (citations omitted)); Margaret Hu, Algorithmic Jim Crow, 86 F

ORDHAM L. REV. 633

(2017) (examining the use of algorithms in security and immigration vetting protocols); Margaret Hu,

Big Data Blacklisting, 67 F

LA. L. REV. 1735 (2015) [hereinafter Hu, Big Data] (examining the use of

data in blacklist decisionmaking); see also D

USTIN A. LEWIS, GABRIELLA BLUM & NAZ K.

ODIRZADEH, WAR-ALGORITHM ACCOUNTABILITY (2016) (examining the use of algorithms and

autonomous weapons in warfare); D

ILLON REISMAN ET AL., ALGORITHMIC IMPACT ASSESSMENTS: A

RACTICAL FRAMEWORK FOR PUBLIC AGENCY ACCOUNTABILITY (2018) (examining automated

decisionmaking in agencies).

As the Obama

Administration’s 2014 Big Data report pointed out,

“[c]omputational capabilities

now make ‘ﬁnding a needle in a haystack’ not only possible, but practical.”

The ability to generate, process, and analyze large troves of data about individu-

als

in real time enables government agencies to gain insight into their behavior and

predict future behavior in unprecedented ways.

At one time, acquiring such exten-

sive

personal data about an individual would have required a tailored intelligence-

collection operation, yet the same can be done today simply by querying a database.

Technology has reduced the need for human processing and decisionmaking and

has caused the cost of the infrastructure necessary for generating, storing, and

han-

dling

individualized data to decline as well.

Counterterrorism AUMF, 93 N.Y.U. L. REV. 1884 (2018) (surveying proposals for replacing the 2001

Authorization for the Use of Military Force (AUMF) against al-Qaeda and associated forces; these proposals

are premised on the assumption that the war on terror and its focus on individuals, is here to stay).

41.

42. E

XEC. OFFICE OF THE PRESIDENT, supra note 41, at 6.

43. See id. at 5 (“[D]ata collection and analysis is being conducted at a velocity that is increasingly

approaching real time, which means there is a growing potential for big data analytics to have an

immediate effect on a person’s . . . environment or decisions being made about his or her life.”).

44. See id. at 2. As this Article later shows, big data and algorithmic decisionmaking now appear to

play a role in targeted killings and risk assessment for blacklisting purposes.

2020] ADMINISTRATIVE NATIONAL SECURITY 1075

Remotely operated precision weapons systems are another technological innova-

tion

that has contributed to the individualization of U.S. foreign and security policy.

Unmanned Aerial Vehicles (UAVs)—drones—and other remotely operated systems

have allowed the United States to conduct surgical operations across the globe

with-

out

putting soldiers in harm’s way and with “fewer humans at the switch.”

They

also permit the United States, at least in theory, to reduce harm to civilians relative

to traditional heavy-footprint operations.

Big data and algorithmic decisionmaking

have ampliﬁed the targeting capability of those weapons systems.

See L

EWIS, BLUM & MODIRZADEH, supra note 41, at iv; see also John Naughton, Death by Drone

Strike, Dished Out by Algorithm, G

UARDIAN (Feb. 21, 2016, 3:59 AM), https://www.theguardian.com/

commentisfree/2016/feb/21/death-from-above-nia-csa-skynet-algorithm-drones-pakistan [https://perma.

cc/9MKP-NPPM] (quoting former NSA director Michael Hayden: “We kill people based on metadata.”).

These attributes

have made targeting individuals both more available and more appealing.

3. From Embargoes to “Targeted” or “Smart” Sanctions

Frustration with the impact and humanitarian costs of economic sanctions led

to a

shift in their method of application in international relations. From ancient

times until the early 1990s, nations imposed general trade restrictions like

block-

ades

and trade embargoes to address security threats or change the behavior of

rivals.

In modern history, economic sanctions targeted states or entire sectors

within states, resulting in a variety of comprehensive, indiscriminate trade

restric-

tions.

The international sanctions levied against Rhodesia, South Africa, and

45. LEWIS, BLUM & MODIRZADEH, supra note 41, at i.

46. President Obama’s Executive Order 13,732 of July 1, 2016 alluded to this in requiring that

agencies “develop, acquire, and ﬁeld weapon systems and other technological capabilities that further

enable the discriminate use of force.” 81 Fed. Reg. 44,485 (July 1, 2016).

47.

48. See Issacharoff & Pildes, supra note 1, at 1596; Kent, supra note 1, at 1082 (agreeing with

Issacharoff and Pildes that “there will be increased pressure, including by legal means, for the U.S.

military to ‘individuate’ by applying force in a surgical manner so that it only impacts individuals who

have been deemed targetable or guilty in some fashion through fair procedures”); see also Anderson,

supra note 37, at 2 (“The strategic logic that presses toward targeted stand-off killing as a necessary,

available and technologically advancing part of counterterrorism is overpowering. So too is the moral

and humanitarian logic behind its use.”). Anderson adds that remote targeting technology has become

more attractive because it limits the possibility of detention, which has become unsustainable. See

Anderson, supra note 37, at 7.

49. See, e.g., J

UAN C. ZARATE, TREASURY’S WAR: THE UNLEASHING OF A NEW ERA OF FINANCIAL

WARFARE 3–6 (2013) (surveying economic warfare practices from the ancient world to the late 1990s).

50. For example, this was the type of sanctions Woodrow Wilson contemplated in his 1919 Appeal

for Support of the League of Nations for states that initiate war without turning to the League ﬁrst. Such

states would face not war but:

[A]n absolute boycott . . . and just as soon as it applies, then this happens: No goods can be

shipped out of that country; no goods can be shipped into it. No telegraphic message may

pass either way across its borders. No package of postal matter . . . can cross its borders either

way. No citizen of any member of the League can have any transactions . . . with any citizen

of that nation.

2 W

OODROW WILSON, WAR AND PEACE: PRESIDENTIAL MESSAGES, ADDRESSES, AND PUBLIC PAPERS

(1917-1924), at 35 (Ray Stannard Baker & William E. Dodd eds., 1927).

1076 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Iraq (in 1990) are examples of such general sanctions.

The effectiveness of blanket economic sanctions proved to be limited, and they

were criticized as unjust. Embargoes are blunt instruments. They do not allow

policymakers to apply direct pressure on decisionmakers, and scholars who have

studied their impact have argued that they failed to meet their goals. Moreover,

leaders of sanctioned states have exploited the harmful effects of general

sanc-

tions

to galvanize public opinion and garner support, creating the opposite effect

of what was intended.

The collateral damage of blanket sanctions has also

raised signiﬁcant human rights concerns.

Such sanctions harm all the nationals

of a target state, including those who oppose the policies that provoked the

sanc-

tions

or had nothing to do with them. These concerns motivated a rethinking of

economic sanctions as a tool of statecraft.

Consequently, beginning with U.S. and international sanctions against mem-

bers

of Haiti’s military junta in 1993,

See Exec. Order No. 12,583, 58 Fed. Reg. 35,843 (June 30, 1993) (blocking government of Haiti

property and prohibiting transactions with Haiti); S.C. Res. 841 (June 16, 1993); see also Howard W.

French, Clinton Faulted on Haiti Sanctions, N.Y. T

IMES (June 6, 1993), https://www.nytimes.com/1993/

06/06/world/clinton-faulted-on-haiti-sanctions.html (detailing criticism of Haiti sanctions).

states and international institutions have

increasingly turned to targeted sanctions

to exert direct pressure on leaders,

elites, and others implicated in objectionable behavior.

Targeted sanctions typi-

cally

freeze the assets of the sanctioned individual or entity, limit their economic

transactions, and restrict their travel. Nations have not abandoned general trade

restrictions, but they have made targeted sanctions an important element of both

51. See S.C. Res. 661 (Aug. 6, 1990) (Iraq); S.C. Res. 333 (May 22, 1973) (Rhodesia); S.C. Res. 181

(Aug. 7, 1963) (South Africa).

52. See Johan Galtung, On the Effects of International Economic Sanctions: With Examples from the

Case of Rhodesia, 19 W

ORLD POL. 378, 409 (1967); T. Clifton Morgan, Navin Bapat & Yoshiharu

Kobayashi, Threat and Imposition of Economic Sanctions 1945–2005: Updating the TIES Dataset, 31

ONFLICT MGMT. & PEACE SCI. 541, 541–42 (2014).

53. See Gary C. Hufbauer & Barbara Oegg, Targeted Sanctions: A Policy Alternative?, 32 L. &

OL’Y INT’L BUS. 11, 11 (2000).

54. The 1990 Iraq Sanctions regime, which resulted in a humanitarian crisis, was a turning point. See

Matthew Happold, Targeted Sanctions and Human Rights, in E

CONOMIC SANCTIONS AND

INTERNATIONAL LAW 87, 88–90 (Matthew Happold & Paul Eden eds., 2016); Mary Ellen O’Connell,

Debating the Law of Sanctions, 13 E

UR. J. INT’L L. 63 (2002). In a 1997 report, then-UN Secretary

General Koﬁ Annan implored states to “‘render sanctions a less blunt and more effective instrument’

and reduce the humanitarian costs to civilian populations.” Hufbauer & Oegg, supra note 53, at 11

(quoting U.N. Secretary-General, Report of the Secretary-General on the Work of the Organization,

¶ 89, U.N. Doc. A/52/1 (Sept. 3, 1997)).

55.

56. I deﬁne “targeted sanctions” as sanctions directed at individual persons or entities. See Hufbauer

& Oegg, supra note 53, at 12. But see Morgan, Bapat & Kobayashi, supra note 52, at 551–52, 554 n.19

(deﬁning targeted sanctions as those “intended to target the regime leadership, business interests or the

military”).

57. See, e.g., Elena Chachko, Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions

Jurisprudence, 44 Y

ALE J. INT’L L. 1, 9–12 (2019); Morgan, Bapat & Kobayashi, supra note 52, at 551–

52 (documenting the increase in targeted sanctions between 1990 and 2005).

2020] ADMINISTRATIVE NATIONAL SECURITY 1077

unilateral and international sanctions regimes.

See, e.g., S.C. Res. 2397 (Dec. 22, 2017) (North Korea); S.C. Res. 1929 (June 9, 2010) (Iran). As

of September 2018, there were 698 individuals and 392 entities on the Security Council’s blacklist. See

United Nations Security Council Consolidated List, U

NITED NATIONS SECURITY COUNCIL (Nov. 10,

2019, 9:16 PM), https://www.un.org/securitycouncil/content/un-sc-consolidated-list [https://perma.cc/

2WYV-PMLA].

The United States has been a

leader of this trend,

and the events of 9/11 accelerated it.

* * *

To conclude this Part, the following Google Ngram illustrates the scope

and historical progression of the individualization trend by tracking the

indi-

vidual

measures discussed here. It depicts the frequency of references to

these measures between 1900 and 2008 in the corpus of books written in

English. Although it is not a perfectly accurate representation and may

exclude substantively similar measures described with different terms in

previous eras, the Ngram suggests that the frequency of the appearance of

these measures began to rise in the early 1990s and spiked in the 2000s.

Google Ngram is a search engine that charts the frequency of any set of comma-divided strings of

characters in English language books between 1500 and 2008. The live version of the graph is available

at https://books.google.com/ngrams [https://perma.cc/NS6Z-JW88] (search for “targeted sanctions,

targeted killings, no-ﬂy list, military detention, cyber-attack, watchlist”).

offers a useful, rough illustration of the overall trend that this Article

identiﬁes.

Figure 1

58.

59. See infra Section II.C.

60. Targeted sanctions have become a central counterterrorism tool at both the national and

international level. At the international level, see, for example, S.C. Res. 2368 (July 20, 2017); S.C. Res.

2253 (Dec. 17, 2015); S.C. Res. 1988 (June 17, 2011); S.C. Res. 1989 (June 17, 2011); S.C. Res. 1267

(Oct. 15, 1999).

61.

1078 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

II. THE EMERGENCE OF ADMINISTRATIVE NATIONAL SECURITY

The previous Part considered the roots and main drivers of U.S. foreign and se-

curity

policy individualization in the past two decades. This Part turns to the par-

ticular

settings in which individualized measures have been applied, the role of

administrative agencies in designing and implementing these measures, and how

courts have addressed their application. It considers targeted killings; detentions;

targeted sanctions; security watchlists, no-ﬂy lists, and other travel restrictions;

and individualized cyber countermeasures.

This Part concludes with an account

of administrative national security as administrative adjudication.

A. TARGETED KILLINGS

Targeted killings have become a central component of U.S. counterterrorism

efforts in the past two decades. What began as a few isolated operations in the

Clinton Administration developed into a large-scale targeting program with

hun-

dreds

of strikes carried out each year.

The Clinton Administration

was hesitant about targeted killings. It heavily

debated the legality of using lethal force directly against Osama bin Laden and

senior al-Qaeda leadership. President Clinton authorized cruise missile strikes

against al-Qaeda targets after the bombings of U.S. embassies in Africa in 1998,

but his use of targeted killings remained limited.

Steve Coll, Legal Disputes Over Hunt Paralyzed Clinton’s Aides, W

ASH. POST (Feb. 22, 2004),

https://www.washingtonpost.com/archive/politics/2004/02/22/legal-disputes-over-hunt-paralyzed-

clintons-aides/ae5ca66d-5dcf-49c0-b8db-b99a19184eb0/; Glenn Kessler, Bill Clinton and the Missed

Opportunities to Kill Osama bin Laden, W

ASH. POST (Feb. 16, 2016, 3:00 AM), https://www.

washingtonpost.com/news/fact-checker/wp/2016/02/16/bill-clinton-and-the-missed-opportunities-to-

kill-osama-bin-laden/; see also Jonathan Ulrich, The Gloves Were Never On: Deﬁning the President’s

Authority to Order Targeted Killing in the War Against Terrorism, 45 V

A. J. INT’L L. 1029, 1039–40

(2005) (noting that the Clinton Administration “refused to admit that bin Laden himself had been

singled out” in the 1998 U.S. strikes on al-Qaeda targets).

After 9/11, and particularly in

the past decade, counterterrorism targeted killings have increased dramatically.

The Bush Administration reportedly conducted targeted drone strikes in ﬁve

countries.

The Obama Administration further ratcheted up the resort to targeted

killings—often described as the cornerstone of its counterterrorism strategy.

Micah Zenko, Obama’s Final Drone Strike Data, C

OUNCIL ON FOREIGN REL.: POL., POWER, &

REVENTATIVE ACTION (Jan. 20, 2017), https://www.cfr.org/blog/obamas-ﬁnal-drone-strike-data

[https://perma.cc/2DBZ-QDRV]; see also J

AMEEL JAFFER, THE DRONE MEMOS: TARGETED

KILLINGS, SECRECY, AND THE LAW 9 (Jameel Jaffer ed., 2016) (“Obama disavowed some of the

Bush [A]dministration’s most extreme national security policies, but he made the drone campaign

emphatically his own.”).

President Obama approved a substantially larger number of targeted strikes

62. I discuss these categories of measures because they constitute the most signiﬁcant examples of

individualization through bureaucratic processes in U.S. foreign and security policy in the past two

decades.

63.

64. Goldsmith, supra note 37, at 458 (“As of April 2016, Obama had ordered approximately ten

times as many drone strikes as Bush, which killed seven times as many people, and he did so in seven

countries as opposed to Bush’s ﬁve.”).

65.

2020] ADMINISTRATIVE NATIONAL SECURITY 1079

compared to President Bush and expanded their geographical scope to seven

countries.

Goldsmith, supra note 37, at 458; see also JAFFER, supra note 65, at 9–10 (“Within two years of

Obama’s . . . inauguration, the pace of drone strikes had increased roughly sixfold, and the number of

drone deaths had quadrupled. . . . President Obama’s ﬁrst term saw the drone program expand on every

axis: more strikes, with more drones, in more countries.”); Micah Zenko, Obama’s Embrace of Drone

Strikes Will Be a Lasting Legacy, N.Y. T

IMES (Jan. 12, 2016, 2:57 PM), https://www.nytimes.com/

roomfordebate/2016/01/12/reﬂecting-on-obamas-presidency/obamas-embrace-of-drone-strikes-will-be-

a-lasting-legacy.

In July 2016, the Obama Administration released a summary of U.S. counter-

terrorism strikes outside of areas of active hostilities between 2009 and 2015. The

summary identiﬁed Afghanistan, Iraq, and Syria as areas of active hostilities,

meaning that it did not cover strikes in those three countries. According to the

summary, the United States launched 473 strikes against terrorism targets in that

period, resulting in between 2,372 to 2,581 combatant deaths.

FFICE OF THE DIR. OF NAT’L INTELLIGENCE, SUMMARY OF INFORMATION REGARDING U.S.

OUNTERTERRORISM STRIKES OUTSIDE AREAS OF ACTIVE HOSTILITIES (July 1, 2016), https://perma.cc/

X9Q4-DQ5K. The summary was issued pursuant to Executive Order 13,732. See 81 Fed. Reg. 44,485

(July 1, 2016).

In January 2017,

the Administration released another summary indicating that in 2016 alone, the

United States conducted ﬁfty-three strikes outside of areas of active hostilities,

resulting in between 431 to 441 combatant deaths.

FFICE OF THE DIR. OF NAT’L INTELLIGENCE, SUMMARY OF 2016 INFORMATION REGARDING U.S.

OUNTERTERRORISM STRIKES OUTSIDE AREAS OF ACTIVE HOSTILITIES (Jan. 19, 2017), https://perma.cc/

LN9C-BUKH.

Strike watchers have esti-

mated

that President Obama oversaw 542 drone strikes by the time he left ofﬁce

in January 2017.

These ﬁgures underestimate the number of targeted strikes

because they do not reﬂect strikes in Afghanistan, Iraq, and Syria.

The Trump Administration has not released a summary of targeting data, and it

revoked President Obama’s Executive Order requiring periodic reporting of

aggregate strike data.

Publicly available data suggest that the Trump

Administration has further escalated U.S. targeted strikes around the globe.

66.

67.

68.

69. See Zenko, supra note 65.

70. See Exec. Order No. 13,862, 84 Fed. Reg. 8789 (Mar. 6, 2019) (revoking the reporting

requirement).

71.

1080 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

See Jessica Purkiss & Jack Serle, US Counter Terror

Air Strikes Double in Trump’s First Year, T

BUREAU OF INVESTIGATIVE JOURNALISM (Dec. 19, 2017), https://www.thebureauinvestigates.com/stories/

2017-12-19/counterrorism-strikes-double-trump-ﬁrst-year [https://perma.cc/4ELK-YV48]; Hina Shamsi,

Trump’s Secret Rules for Killings Abroad, ACLU (Dec. 21, 2017, 1:00 PM), https://www.aclu.org/blog/

national-security/targeted-killing/trumps-secret-rules-killings-abroad [https://perma.cc/52YX-BUL3]

(arguing that targeted strikes under Trump are “taking place at a virtually unprecedented rate—in some

countries, the number has doubled or tripled . . . . The U.S. is conducting strikes in recognized wars in Iraq,

Syria, and Afghanistan, but also in operations governed by . . . secret rules . . . —those conducted outside

‘areas of active hostilities’ in Yemen, Somalia, Pakistan, Nigeria, and elsewhere.”); Micah Zenko &

Jennifer Wilson, How the Pentagon Announces Killing Terrorists Versus Civilians, C

OUNCIL ON FOREIGN

REL.: POL., POWER, & PREVENTATIVE ACTION (Apr. 24, 2017), https://www.cfr.org/blog/how-pentagon-

announces-killing-terrorists-versus-civilians [https://perma.cc/HD5Z-NLCP].

According to some estimates, by March 2017, the Trump Administration carried

out at least thirty-six counterterrorism strikes outside areas of active hostilities,

averaging a strike every 1.25 days compared to the Obama Administration’s aver-

age of a strike every 5.4 days.

Micah Zenko, The (Not-So) Peaceful Transition of Power: Trump’s Drone Strikes Outpace

Obama, C

OUNCIL ON FOREIGN REL.: POL., POWER, & PREVENTATIVE ACTION (Mar. 2, 2017), https://

www.cfr.org/blog/not-so-peaceful-transition-power-trumps-drone-strikes-outpace-obama [https://perma.

cc/X6EH-MTCC]; see also Luke Hartig & Joshua Geltzer, An Opportunity for National Security

Transparency in the Trump Era, J

UST SECURITY (Apr. 27, 2018), https://www.justsecurity.org/55454/

opportunity-national-security-transparency-trump-era/ [https://perma.cc/5GQ8-TDFE] (noting the Trump

Administration has released much less information to the public about targeted strikes than did the Obama

Administration).

At least until recently, the Trump Administration

continued operations against the Islamic State in Syria.

See David D. Kirkpatrick & Eric Schmitt, ISIS Reaps Gains of U.S. Pullout from Syria, N.Y.

IMES (Oct. 21, 2019), https://www.nytimes.com/2019/10/21/world/middleeast/isis-syria-us.html

(“American forces and their Kurdish-led partners in Syria had been conducting as many as a dozen

counterterrorism missions a day against Islamic State militants, ofﬁcials said. That has stopped.”). But

see Shawn Snow, US Withdrawal in Syria Is Only a Small Number of Special Operators, Says Trump

Administration, M

IL. TIMES (Oct. 7, 2019), https://www.militarytimes.com/ﬂashpoints/2019/10/07/how-

the-us-troop-withdrawal-from-northern-syria-could-create-an-isis-resurgence/ [https://perma.cc/6FCL-

HDXG].

By September 2017,

over 100 U.S. targeted strikes had been launched against al-Qaeda in the

Arabian Peninsula (AQAP) in Yemen, up from thirty-eight strikes in 2016.

See Farea Al-Muslimi & Sarah Knuckey, Yemen

Strike Raises Questions About Whether the US

Follows Its Own Drone Rules, J

UST SECURITY (Nov. 15, 2017), https://www.justsecurity.org/47103/

yemen-strike-raises-question-killing-capture-feasible/ [https://perma.cc/DS3F-XJSD]; John Haltiwanger,

Trump Has Dropped Record Number of Bombs on Middle East, N

EWSWEEK (Sept. 19, 2017, 2:42 PM),

https://www.newsweek.com/trump-era-record-number-bombs-dropped-middle-east-667505 [https://

perma.cc/4PWB-SKYK]; Paul McLeary, U.S. Bombs Falling in Record Numbers in Three Countries,

OREIGN POL’Y (Sept. 18, 2017, 7:29 PM), https://foreignpolicy.com/2017/09/18/u-s-bombs-falling-

in-record-numbers-in-three-countries/ [https://perma.cc/KJ9W-LBAY].

The

United States has expanded its counterterrorism drone strikes in Libya.

Declan Walsh & Eric Schmitt, U.S.

Strikes Qaeda Target in Southern Libya, Expanding Shadow

War There, N.Y. T

IMES (Mar. 25, 2018), https://www.nytimes.com/2018/03/25/world/middleeast/us-

bombs-qaeda-libya.html.

resumed drone strikes in Pakistan.

Dan De Luce & Sea

D. Naylor, The Drones Are Back, F

OREIGN POL’Y (Mar. 26, 2018, 7:55

AM), https://foreignpolicy.com/2018/03/26/the-drones-are-back/ [https://perma.cc/Q3YM-89NX].

Strikes in Somalia surged in late 2018.

Eric Schmitt & Charlie Savage, Trump

Administration Steps Up Air War in Somalia, N.Y. T

IMES

(Mar. 10, 2019), https://www.nytimes.com/2019/03/10/us/politics/us-somalia-airstrikes-shabab.html.

The

Administration declared parts of Somalia areas of active hostilities, loosening the

constraints on strikes in the country.

See Charlie Savage & Eric Schmitt, Pentagon

Foresees at Least Two More Years of Combat in

Somalia, N.Y. T

IMES (Dec. 10, 2017), https://www.nytimes.com/2017/12/10/world/africa/pentagon-

somalia-combat-islamic-militants.html.

Targeted strikes continue under the public

radar without the public scrutiny that the practice provoked under President

Obama. The unusual January 2020 targeted killing in Iraq of Qassem Soleimani—

a senior Iranian state ofﬁcial and the commander of Iran’s Islamic Revolutionary

Guard Corps Quds Force—suggests that the practice of individualized lethal tar-

geting may expand beyond non-state actors and become increasingly utilized

72.

73.

74.

75.

76.

77.

78.

2020] ADMINISTRATIVE NATIONAL SECURITY 1081

against state ofﬁcials, even outside the context of an armed conﬂict.

Anthony Dworkin, Soleimani Strike Marks a Novel Shift in Targeted Killing, Dangerous to the

Global Order, J

UST SECURITY (Jan. 7, 2010), https://www.justsecurity.org/67937/soleimani-strike-

marks-a-novel-shift-in-targeted-killing-dangerous-to-the-global-order/ [https://perma.cc/6GA8-98F7].

1. Targeted Killings and the Role of Administrative Agencies

The details of the decisionmaking process through which targeted killings are

cleared and executed remain classiﬁed. Nevertheless, ofﬁcial documents released

by the Obama Administration,

ROCEDURES FOR APPROVING DIRECT ACTION AGAINST TERRORIST TARGETS LOCATED OUTSIDE

THE UNITED STATES AND AREAS OF ACTIVE HOSTILITIES (2013) [hereinafter PRESIDENTIAL POLICY

GUIDANCE], https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_

terrorist_targets/download [https://perma.cc/YGN3-35HM].

judicial decisions, accounts from practitioners

and journalists,

and leaks

See Cora Currier, The Kill Chain: The Lethal Bureaucracy Behind

Obama’s Drone War,

NTERCEPT (Oct. 15, 2015, 7:57 AM), https://theintercept.com/drone-papers/the-kill-chain/ [https://

perma.cc/A74D-J9LF].

have provided insight into this process. These sour-

ces

indicate that decisions to target individuals outside hot battleﬁelds are made

in Washington, D.C. through an interagency process. The CIA and the Joint

Special Operations Command (JSOC) share operational responsibility for

tar-

geted

strikes.

CIA-led strikes are governed by Title 50 of the U.S. Code. See Robert Chesney, Military-

Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 J. N

AT’L SEC. L. & POL’Y 539,

539 (2012). Title 50 action requires a presidential “ﬁnding” and is subject to reporting requirements to

Congress. Military-led strikes are covered by Title 10. See id. at 539 n.2. As Robert Chesney has argued,

however, in the post-9/11 era there has been a convergence of military and intelligence activities,

including in targeted killings, which led to the blurring of the Title 10–Title 50 distinction. See id.

Chesney argues that this blurring resulted in concentration of related decisionmaking and oversight

within the Executive Branch. See id. It is noteworthy that although the President Obama tried to shift

responsibility for targeted killings from the CIA to the Defense Department, President Trump appeared

to have sanctioned an even greater role for the CIA. See J

AFFER, supra note 65, at 22–23; Eric Schmitt &

Matthew Rosenberg, C.I.A. Wants Authority to Conduct Drone Strikes in Afghanistan for the First Time,

N.Y. T

IMES (Sept. 15, 2017), https://www.nytimes.com/2017/09/15/us/politics/cia-drone-strike-

authority-afghanistan.html

; Shannon Vavra, Trump Is Letting the CIA Launch Drone Strikes, A

XIOS

(Mar. 13, 2017), https://www.axios.com/trump-is-letting-the-cia-launch-drone-strikes-1513300930-

2e0c4eaa-cef7-4fe1-887a-65b620cf684d.html [https://perma.cc/9UTN-54BS].

When President Obama came into ofﬁce, targeted killings had already been on

the rise, becoming a routine practice led by the CIA, the Defense Department,

and the intelligence community.

See Jonathan Chait, Five Days That Shaped a Presidency,

N.Y. M

AG. (Aug. 25, 2016), http://

nymag.com/intelligencer/2016/10/barack-obama-on-5-days-that-shaped-his-presidency.html.

But the practice was not formalized until 2013,

when Obama issued a Presidential Policy Guidance (PPG) covering the use of

le-

thal

force and detention, and outlining the legal and policy framework governing

“direct action” against terrorism suspects outside areas of active hostilities.

79.

80.

81. See, e.g., J

AFFER, supra note 65; DANIEL KLAIDMAN, KILL OR CAPTURE: THE WAR ON TERROR

AND THE

SOUL OF THE OBAMA PRESIDENCY (2012); DAVID E. SANGER, CONFRONT AND CONCEAL:

BAMA’S SECRET WARS AND SURPRISING USE OF AMERICAN POWER (2012); Gregory S. McNeal,

Targeted Killing and Accountability, 102 G

EO. L.J. 681 (2014).

82.

83.

84.

85.

RESIDENTIAL POLICY GUIDANCE, supra note 80, §§ 2–3. The full PPG was declassiﬁed in 2016.

See U.S. Releases Drone ‘Playbook’ in Response to ACLU Lawsuit, ACLU (Aug. 6, 2016),

https://

1082 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

www.aclu.org/press-releases/us-releases-drone-strike-playbook-response-aclu-lawsuit [https://perma.

cc/RPN4-U5XU].

Justice Department opinions on the legality of targeting U.S. citizens comple-

mented the PPG.

See D

EP’T OF JUSTICE, LAWFULNESS OF A LETHAL OPERATION DIRECTED AGAINST A U.S. CITIZEN

WHO IS A SENIOR OPERATIONAL LEADER OF AL-QA’IDA OR AN ASSOCIATED FORCE (2011); DEP’T OF

JUSTICE, LEGALITY OF A LETHAL OPERATION BY THE CENTRAL INTELLIGENCE AGENCY AGAINST A U.S.

ITIZEN (2011); Memorandum from David J. Barron, Acting Assistant Att’y Gen., Ofﬁce of Legal

Counsel, to Eric Holder, U.S. Att’y Gen., Re: Applicability of Federal Criminal Laws and the

Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010),

https://fas.org/irp/agency/doj/olc/aulaqi.pdf [https://perma.cc/K7JP-D3AD]; Memorandum from David

J. Barron, supra note 31.

In an interview shortly before he left ofﬁce, Obama explained

that

what prompted a lot of the internal reforms we put in place had less to do with

[criticism from nongovernmental organizations] and had more to do with me

looking at . . . the way in which the number of drone strikes was going up and

the routineness with which, early in my presidency, you were seeing both

DOD and CIA and our intelligence teams think about this.

The PPG adopted the view that the United States is in an armed conﬂict with

al-Qaeda and its associates that transcends national borders, authorized domestically

by the 2001 AUMF.

Therefore, the United States could lawfully use force against

related terrorism suspects even outside hot battleﬁelds. The PPG’s targeting and

ci-

vilian

protection requirements pulled together elements from the international law

of armed conﬂict and international human rights law.

See, e.g., Ryan Goodman, Why the Laws of War Apply to Drone Strikes Outside “Areas of Active

Hostilities” (A Memo to the Human Rights Community), J

UST SECURITY (Oct. 4, 2017), https://www.

justsecurity.org/45613/laws-war-apply-drone-strikes-areas-active-hostilities-a-memo-human-rights-

community/ [https://perma.cc/U2C9-6Z4V] (noting that the 2013 PPG “[was] designed to place far

greater constraints than what the laws of war require in the way of civilian protection and other

matters”).

The Obama Administration

maintained that key elements of the PPG were policy rather than binding legal

obli-

gations,

and the PPG allowed the president to authorize “direct action that would

fall outside of” the PPG.

Furthermore, the PPG introduced a broad concept of con-

tinuing

imminence that sanctioned use of force against high-value targets long

before they could pose an immediate threat to the United States.

The PPG also put in place a complex interagency process for nominating and

clearing individuals for lethal action.

The nominating agency was required to

prepare a proﬁle for each nominated target. Every target ﬁrst had to be reviewed

for legality. If the proposed target was a U.S. citizen, then that target also had to

be reviewed by the Justice Department. If a target cleared this preliminary

review, it underwent further interagency review. The National Security Staff

86.

87. Chait, supra note 84.

88. See sources cited supra note 38.

89.

90. P

RESIDENTIAL POLICY GUIDANCE, supra note 80, § 5.B.

91. See id. § 3.

92. See id.

2020] ADMINISTRATIVE NATIONAL SECURITY 1083

(NSS) convened a special forum—the Restricted Counterterrorism Security

Group (RCSG)—to review the proposed target and prepare the material for the

NSC Deputies Committee. At this stage, the National Counterterrorism Center

(NCTC) was required to prepare an assessment of each nomination. The nomina-

tion was then forwarded to the Deputies Committee, comprising deputies from

key national security agencies.

Next, the deputies would convey their recommendation to agency principals.

The principal of the nominating agency could approve lethal action if there was

consensus among the principals and the President had been notiﬁed. If there was

no consensus or the proposed target was a U.S. citizen, the President himself

would review the case and decide whether to authorize lethal force. The PPG also

required an annual review of authorized targets. Notably, early reporting about

President Obama’s degree of involvement in targeted killing authorization sug-

gested

that he insisted on deciding every case himself unless there was near cer-

tainty

that there would be no civilian casualties.

See Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,

N.Y. T

IMES (May 29, 2012), https://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-

on-al-qaeda.html?mtrref=www.google.com&gwh=C3D1D7793D8748A5FCB72FF9D9F501B5&gwt=

pay&assetType=REGIWALL.

This may indicate that the

intensity of his personal involvement in the process declined over time.

The inclusion of a suspected terrorist in the list of authorized targets did

not mean that the suspect would be targeted immediately.

According to some

reports, an individual on the list would be targetable for sixty days after being

cleared without further review.

In other words, these were not necessarily deci-

sions

made in real time on the battleﬁeld.

The 2013 PPG demonstrates that the Obama Administration built an extensive

administrative infrastructure to facilitate and regulate the targeted killing

pro-

gram.

The interagency process involved regular meetings attended by more

than a hundred ofﬁcials.

As Jameel Jaffer observed, President Obama “oversaw

the design of a new bureaucracy responsible for nominating suspected militants

to government ‘kill lists.’”

Jaffer criticized this normalization of targeted kill-

ings

and warned that the existence of a sprawling targeted killing bureaucracy

encourages use of this tool.

100

93. Id. § 3.C. This included the Departments of State, Defense, Justice, and Homeland Security; the

Joint Chiefs of Staff; the Director of National Intelligence; the CIA; and the NCTC. See id. § 3.D.2.

94.

95. See J

AFFER, supra note 65, at 43.

96. See Currier, supra note 82.

97. See also McNeal, supra note 81.

98. See J

AFFER, supra note 65, at 10.

99. Id.

100.

1084 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Id. at 8 (highlighting “the jarring fact that the practice of targeted killing . . . no longer seems

remarkable, and the fact that the United States now boasts a legal and bureaucratic infrastructure to sustain

this practice” and adding that “[e]ight years ago the targeted-killing campaign required a legal and

bureaucratic infrastructure, but now that infrastructure will demand a targeted-killing campaign”). Others

lauded the PPG. See, e.g., Marty Lederman, The Presidential Policy Guidance for Targeting and Capture

Outside Afghanistan, Iraq and Syria, J

UST SECURITY (Aug. 6, 2016), https://www.justsecurity.org/32298/

presidential-policy-guidance-targeting-capture-afghanistan-iraq-syria/ [https://perma.cc/Q8ZJ-LJ3S] (“I

The elements of the PPG that the Obama Administration viewed as policy,

rather than law, could be rescinded. It appears that the Trump Administration did

just that. Although there is evidence that the Administration preserved a version

of the PPG,

101

See Zaidan v. Trump, 317 F. Supp. 3d 8, 22–23 (2018) (noting that the government does “not

disavow the [PPG] or its applicability to any decision in 2016 or earlier” to put the plaintiff’s name on a

“kill list”); see also Jessica Purkiss, Trump’s First Year in Numbers: Strikes Triple in Yemen and

Somalia, B

UREAU OF INVESTIGATIVE JOURNALISM (Jan. 19, 2018), https://www.thebureauinvestigates.

com/stories/2018-01-19/strikes-in-somalia-and-yemen-triple-in-trumps-ﬁrst-year-in-ofﬁce [https://perma.

cc/LE75-58PB] (“President Trump inherited the framework allowing [U.S.] aircraft to hit suspected

terrorists outside of declared battleﬁelds from Obama. His administration has largely stuck within the

framework . . . .”).

it reportedly replaced the PPG with a new document—entitled

Principles, Standards, and Procedures (PSP)—that introduced signiﬁcant

revisions. First, the PSP expanded the category of targetable individuals from

high-level targets to rank-and-ﬁle militants. Second, the Trump Administration

discontinued high-level vetting of targets and partially removed bureaucratic

hur-

dles

for approving individual strikes. Contrary to President Obama, President

Trump apparently has extracted himself from the target nomination and

authori-

zation

process entirely, delegating this role to the bureaucracy.

102

See Charlie Savage & Eric Schmitt, Trump Poised to Drop Some Limits on Drone Strikes and

Commando Raids, N.Y. T

IMES (Sept. 21, 2017), https://www.nytimes.com/2017/09/21/us/politics/

trump-drone-strikes-commando-raids-rules.html (“The plan would extend . . . Trump’s pattern of giving

broader day-to-day authority to the Pentagon and the [CIA]—authorizing the agencies to decide when

and how to conduct high-risk counterterrorism operations that . . . Obama had insisted be used sparingly

and only after top ofﬁcials across the government reviewed them.”). The report indicates that “the new

plan would still require higher-level approval to start conducting strikes or raids in new countries under

‘country plans’ that would be reviewed every [twelve] months.” Id. For analysis of the PSP, see

Goodman, supra note 89, and Luke Hartig, Trump’s New Drone Strike Policy: What’s Any Different?

Why It Matters, J

UST SECURITY (Sept. 21, 2017, 9:50 PM), https://www.justsecurity.org/45227/trumps-

drone-strike-policy-different-matters/ [https://perma.cc/WEN6-4VVS].

As we have

seen, strikes under President Trump have spiked.

Over the past decade, then, the decision whether to authorize targeted killings

of individuals

across the globe became an administrative decision made through

an interagency process, much like many other decisions pertaining to individuals

the administrative state makes on a regular basis. What we may have imagined as

an operational decision to use lethal force in real time on the battleﬁeld was often

a decision made in Washington, at times weeks or months before a strike.

Although President Obama personally oversaw this process, administrative agen-

cies

controlled the heart of it. President Trump’s revised policy framework grants

signiﬁcantly greater discretion to the targeted killing apparatus than did President

Obama’s PPG—with minimal presidential input.

2. Targeted Killings

and the Courts

The growing frequency of targeted killings has produced a number of attempts

to challenge the practice in federal courts. To date, these attempts have been

suspect that there’s never been anything . . . quite like the interagency and interbranch review reﬂected [in

the PPG]. It is certainly leagues beyond what DOD is ordinarily required to do . . . when it uses force

overseas.”).

101.

102.

2020] ADMINISTRATIVE NATIONAL SECURITY 1085

unsuccessful. The best-known case is that of U.S. citizen Anwar al-Aulaqi, who

was killed in a 2011 drone strike in Yemen.

103

Prior to the strike, al-Aulaqi’s alien

father brought action on his behalf at the U.S. District Court for the District of

Columbia.

104

The father alleged that al-Aulaqi was on a “kill list” for his role in

al-Qaeda attacks on U.S. targets.

105

Al-Aulaqi’s father advanced both constitutional and statutory claims. He

argued that placing his son on a kill list and the government’s refusal to disclose

the criteria for inclusion in that list violated his son’s Fourth and Fifth

Amendment rights.

106

Al-Aulaqi’s father further argued that the targeting of his

son violated international law, and therefore he could bring suit under the Alien

Tort Statute (ATS).

107

The court dismissed the case on justiciability grounds.

108

found that al-Aulaqi’s father lacked standing to bring constitutional claims on his

behalf and also dismissed the father’s ATS claims.

109

Finally, the court held that

even if the father could sue under the ATS, the political question doctrine

pre-

cluded

the court’s jurisdiction despite al-Aulaqi being an individual and a U.S.

citizen.

110

The court’s framing of the case is telling. At the opening of his opinion, Judge

Bates made it clear that the stakes were extremely high. He stressed that the case

was “unique and extraordinary.”

111

He stated that it presented “fundamental ques-

tions

of separation of powers involving the proper role of the courts” in the U.S.

constitutional order, and that

“[v]ital considerations of national security and of

military and foreign affairs” were at play.

112

This theme carried over to the politi-

cal question analysis. Judge Bates observed that “national security, military mat-

ters and foreign relations are ‘quintessential sources of political questions.’”

113

He recited familiar tropes in foreign affairs and national security cases: that such

cases frequently turn on standards that defy judicial application; that they involve

the exercise of discretion demonstrably committed to the Executive; that they

require expertise that courts simply lack.

114

Yet, Judge Bates appeared to make these observations with precedents review-

ing

either general or (at the time) one-off foreign and security policy decisions in

103. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010).

104. Id.

105. Id. at 11.

106. Id. at 12.

107. See id.; see also 28 U.S.C. § 1350 (2012) (granting the U.S. district courts jurisdiction over any

civil action brought by an alien “for a tort only, committed in violation of the law of nations or a treaty

of the United States”).

108. Al-Aulaqi, 727 F. Supp. 2d at 9.

109. Id. at 35. Judge Bates held that the father lacked an ATS cause of action; that al-Aulaqi, a U.S.

citizen, was ineligible to sue under the ATS; and that the United States had not waived its sovereign

immunity for the challenged conduct. Id. at 38, 40–44.

110. Id. at 44, 48–49. The court recognized that this was the ﬁrst time the political question doctrine

was applied in a case involving the constitutional rights of a U.S. citizen. Id. at 49.

111. Id. at 8.

112. Id.

113. Id. at 45 (quoting Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006)).

114. Id. at 45–46, 52.

1086 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

mind. He cited earlier cases applying the political question doctrine to “battleﬁeld

decisions”;

115

“the standard for the government’s use of covert operations in con-

junction with political turmoil in another country”;

116

the bombing of a Sudanese

plant associated with bin-Laden, ordered by President Clinton;

117

and collusion

with the Pinochet regime in Chile.

118

The question Al-Aulaqi brings to sharp relief

is whether these examples are relevant in the context of routine and indeﬁnite tar-

geting of individuals through a bureaucratic process, similar to other administra-

tive action that courts regularly review.

119

The same District Court engaged with this question in a recent case, Zaidan v.

Trump.

120

The case involves two journalists who alleged that they had been included

in the terrorist kill list. Plaintiff Zaidan, an Al Jazeera reporter, claimed that

SKYNET, an intelligence tool that uses metadata to identify terrorism suspects, had

him listed. Plaintiff Kareem, a reporter and U.S. citizen, claimed that he was the

tar-

get

of ﬁve near-miss aerial strikes in Syria, indicating that he too was on the list.

121

In the intervening period between Al-Aulaqi and Zaidan, al-Aulaqi was in fact

killed in a drone strike along with three others, including another U.S. citizen.

122

The Obama Administration released a 2010 Ofﬁce of Legal Counsel (OLC) opin-

ion

that outlined the legal and policy framework for targeting al-Aulaqi.

123

President Obama’s 2013 PPG was released, shedding light on the “lethal bureauc-

racy.”

124

President Trump came into ofﬁce, reportedly loosening the restrictions

on targeted strikes self-imposed by his predecessor. In addition, the Supreme

Court appeared to narrow the scope of the foreign relations political question

doc-

trine

in Zivotofsky v. Clinton.

125

These developments could explain the different

outcomes of the government’s motions to dismiss in these two cases. Although

115. Id. at 45.

116. Id.

117. Id. at 46 (discussing El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir.

2010)). In El-Shifa, plaintiffs alleged that the plant had nothing to do with terrorism and sought

compensation. The court applied the political question doctrine. Deciding the case, it found, would

require judicial assessment of “the prudence of the political branches in matters of foreign policy or

national security constitutionally committed to their discretion.” El-Shifa, 607 F.3d at 842.

118. Al-Aulaqi, 727 F. Supp. 2d at 48–49.

119. Another key aspect of Al-Aulaqi is the Court’s assertion that there are no judicially manageable

standards to apply to a decision to target an individual terrorism suspect with lethal force. The court

reached this conclusion notwithstanding the fact that the Supreme Court found justiciable the

constitutional claims of a U.S. citizen in another case that heavily implicated national security in a

similar way—the case of U.S. citizen and Guantanamo detainee Hamdi. The court distinguished Hamdi

v. Rumsfeld, 542 U.S. 507 (2004), by citing the courts’ explicit constitutional authority to conduct

habeas review and asserting that habeas cases are retrospective, while al-Aulaqi sought injunctive relief.

Al-Aulaqi, 727 F. Supp. 2d at 49–50.

120. 317 F. Supp. 3d 8 (D.D.C. 2018).

121. Id. at 14–15.

122. J

AFFER, supra note 65, at 5.

123. See N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014).

124. J

AFFER, supra note 65, at 8.

125. 566 U.S. 189, 191 (2012) (holding that the doctrine does not bar the Court’s jurisdiction to

decide whether Congress may compel the President to indicate Israel as the place of birth on a passport

of a person born in Jerusalem).

2020] ADMINISTRATIVE NATIONAL SECURITY 1087

the court dismissed the case as it pertained to plaintiff Zaidan for lack of stand-

ing,

126

it allowed the case to move forward as it pertained to U.S. citizen Kareem.

The ﬁve near-miss strikes that Kareem had suffered were sufﬁcient in the court’s

view to establish standing.

127

Al-Aulaqi and Zaidan diverge on both sovereign immunity and the application

of the political question doctrine. The Zaidan court approached the case with ordi-

nary administrative law tools. It ﬁrst concluded that the APA’s waiver of sovereign

immunity extended to Kareem’s claims. The court conceded that the act of target-

ing a terrorism suspect with lethal force might constitute “military authority exer-

cised in the ﬁeld in time of war”—an exception to the deﬁnition of “agency action”

under the APA, which excludes certain military action from the APA’s purview.

128

However, the court concluded that the agency action in question was the alleged

decision to place Kareem on the kill list—the outcome, according to the PPG, of an

interagency process in Washington.

129

It was not made on a battleﬁeld in a distant

country but rather in conference rooms thousands of miles away. Consequently,

although the implementation of this decision would be an exempt exercise of

mili-

tary

authority, the decision itself was not. The ruling highlighted the administrative

designation process and it was this element of the alleged decision to target

Kareem that made it reviewable under the APA in the eyes of the court. Next, the

court declined to ﬁnd that the political question doctrine rendered Kareem’s entire

case nonjusticiable,

130

allowing his First, Fourth, and Fifth Amendment claims to

move forward.

131

Ultimately, however, the Trump Administration invoked the state

secrets privilege and the court dismissed the case.

132

126. Zaidan, 317 F. Supp. 3d at 18–19. Judge Collyer concluded that Zaidan lacked standing because

his claims were conjectural and failed to satisfy the injury in fact requirement. She found that there was

no evidence that being identiﬁed by SKYNET meant automatic inclusion in the kill list. Id.

127. Id. at 20.

128. Id. at 22 (citing 5 U.S.C. § 701(b)(1)(G) (2012)). President Trump was dropped from the suit

because the President is not an “agency” under the APA. Zaidan, 317 F. Supp. 3d at 22; see discussion

infra Section IV.A.

129. Zaidan, 317 F. Supp. 3d at 25 (“It remains a truism that judges are not good judges of military

decisions during war. The immediate Complaint asks for no such non-judicial feat; rather, it alleges that

placement on the Kill List occurs only after nomination by a defense agency principal and agreement by

other such principals, with prior notice to the President. The persons alleged to have exercised this

authority are alleged to have followed a known procedure that occurred in Washington or its

environs.”); see id. at 22 (“[T]he [c]omplaint plausibly argues that the decision itself was made by

authorities who were not ‘in the ﬁeld’ as required for the APA exemption to apply.”).

130. Judge Collyer distinguished Al-Aulaqi, ﬁnding that the challenged decision there was different:

al-Aulaqi challenged military action, whereas this case was about the decision to nominate an individual

to the kill list. She also distinguished her earlier decision in Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56

(D.D.C. 2014), in which she declined to extend Bivens constitutional challenges to targeted killings. See

Zaidan, 317 F. Supp. 3d at 24–25.

131. Id. at 26–29 (“[C]onstitutional questions are the bread and butter of the federal judiciary.”).

However, Judge Collyer found that the political question doctrine barred Kareem’s claims that his

designation was arbitrary and capricious because it violated the PPG; that it violated the ban on

assassinations; and that it violated certain statutory and treaty provisions. Id.

132. See Kareem v. Haspel, No. 17-581 (RMC), 2019 WL 4645155, at *6 (D.D.C. Sept. 24, 2019).

The court found that the government adequately invoked the state secrets privilege and that the case

could not proceed without the material that the privilege covered. Id. Because the privilege is absolute,

1088 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Judge Brown’s concurrence in the D.C. Circuit’s 2017 decision, Bin Ali Jaber

v. United States, similarly highlights the disconnect between how targeted kill-

ings have been carried out in recent years and the application of the political ques-

tion doctrine in this context.

133

The case involved a lethal 2012 drone strike in

Yemen. Judge Brown recalled the hundreds of strikes carried out since the Bush

Administration. She noted that the availability of precision-targeting technology

at zero risk for U.S. troops encourages use of force and cited the growth in

bystander causalities.

134

She expressed concern in light of the extension of drone

strikes to “signature strikes.”

135

In Judge Brown’s view, the precedent on targeted killings and the political

question doctrine, which she traced to the D.C. Circuit’s 2010 en banc decision in

El-Shifa,

136

envisioned a different scenario: “a singular threat that might occur

once or twice at widely separated intervals.”

137

El-Shifa’s doctrine, she continued,

“seems a wholly inadequate response to an executive decision—deployed

through the CIA/JSOC targeted killing program—implementing a standard

oper-

ating

procedure that will be replicated hundreds if not thousands of times.”

138

Per

Judge Brown, approaching that decision through El-Shifa’s legal framework is

“simply impossible.”

139

Like Judge Collyer’s decision in Zaidan a year later,

Judge Brown’s concurrence highlights the increased targeting of individuals, the

routine and indeﬁnite nature of this targeting, and the signiﬁcant role of

adminis-

trative

agencies and decisionmaking (“standard operating procedure”) as factors

that put pressure on existing doctrine governing judicial review of such

measures.

140

B. DETENTIONS

Military detentions have a long history in warfare. But their application in the

context of the war on terror was an evolution. Detainees were no longer just

nameless side effects of relatively well-deﬁned wars. Instead, post-9/11,

individu-

als

have been detained and sometimes held indeﬁnitely for their individual

involvement in terrorism.

141

The mechanisms created to administer detentions

the court held that even Kareem’s claim that he had a right to due process before the United States could

take his life could not outweigh it. Id. at *3, 6.

133. Bin Ali Jaber v. United States, 861 F.3d 241 (D.C. Cir. 2017). Plaintiffs sued on behalf of two

men they alleged were accidentally killed in a 2012 drone strike in Yemen. Relying on El-Shifa, the

D.C. Circuit held that the political question doctrine barred its jurisdiction. Id. at 242. The existence and

publication of the legal and operational framework governing drone strikes, it reasoned, did not

constitute “an invitation to the [j]udiciary to intrude upon the traditional executive role.” Id. at 249.

134. Id. at 251 (Brown, J., concurring)

135. Id. Signature strikes are strikes based on metadata without positive identiﬁcation of the target.

136. El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010).

137. Bin Ali Jaber, 861 F.3d at 252 (Brown, J., concurring).

138. Id.

139. Id.

140. Id. at 250–53.

141. See, e.g., Matthew C. Waxman, Detention as Targeting: Standards of Certainty and Detention

of Suspected Terrorists, 108 C

OLUM. L. REV. 1365, 1383 (2008). The Bush Administration also engaged

in extraordinary rendition of individuals for detention and interrogation.

2020] ADMINISTRATIVE NATIONAL SECURITY 1089

have also been highly individualized. Because detentions have been studied

extensively,

142

I survey only major milestones, focusing on the role of administra-

tive agencies.

The United States has maintained that the 2001 AUMF authorized the

mili-

tary

detention of enemy combatants until the end of hostilities with al-Qaeda

and associated forces. The Bush Administration notoriously operated detention

facilities outside U.S. territory, including Guantanamo Bay, the Bagram prison

in Afghanistan, and covert CIA facilities. A total of about 800 detainees were

held at Guantanamo, 500 of whom had been released by 2009.

143

The Guanta

namo Docket, N.Y. T

IMES, https://www.nytimes.com/interactive/projects/guantanamo

(last updated May 2, 2018).

President

Obama’s commitment to closing the facility led to the prosecution, transfer, or

release of most remaining detainees, as well as the closure of CIA covert

deten-

tion

facilities.

144

See Exec. Order No. 13,492, 74 Fed.

Reg. 4897 (Jan. 22, 2009) (entitled “Review and

Disposition of Individuals Detained [a]t the Guanta

namo Bay Naval Base and Closure of Detention

Facilities”); G

UANTANAMO REVIEW TASK FORCE, FINAL REPORT (2010), https://www.justice.gov/sites/

default/ﬁles/ag/legacy/2010/06/02/guantanamo-review-ﬁnal-report.pdf [https://perma.cc/G2D9-4R9N].

No new detainees were brought to Guantanamo, leaving only

40 detainees at the prison.

145

Bagram, where 600 individuals were held in

2013, was closed in 2014.

146

Jack Daniel, U.S. Closes Bagram Prison, Says

No More Detainees in Afghanistan, R

EUTERS

(Dec. 10, 2014), https://www.reuters.com/article/us-usa-cia-torture-bagram/u-s-closes-bagram-prison-

says-it-has-no-more-detainees-in-afghanistan-idUSKBN0JO2B720141210 [https://perma.cc/MKB3-

HJYM]; Redacted List of Detainees Held at Bagram Air Base, ACLU, https://www.aclu.org/other/

redacted-list-detainees-held-bagram-air-base [https://perma.cc/MM79-JGJZ] (last visited Mar. 2, 2020).

New detentions declined signiﬁcantly under

President Obama.

147

Nevertheless, he encountered congressional backlash and

ultimately left Guantanamo open.

148

See J

ENNIFER K. ELSA & MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., R42143, WARTIME

DETENTION PROVISIONS IN RECENT DEFENSE AUTHORIZATION LEGISLATION 1 (2016), https://fas.org/sgp/

crs/natsec/R42143.pdf [https://perma.cc/JS2A-996H].

President Trump reversed President Obama’s Executive Order closing

Guantanamo and stated that his Administration might resume the transfer of

detainees to the facility.

149

To date, however, no new detainees have been brought

there. Unlike President Obama, President Trump does not appear to apply a

hands-on approach to terrorist detentions, and related issues are handled under the

public radar. This includes treatment of the “legacy” detainees at Guantanamo and

attempts to try them before a dysfunctional military commissions system, as well

142. See, e.g., Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and

Military Detention Models, 60 S

TAN. L. REV. 1079 (2008); Richard H. Fallon, Jr., The Supreme Court,

Habeas Corpus, and the War on Terror: An Essay on Law and Political Science, 110 C

OLUM. L. REV.

352, 353 (2010); Aziz Z. Huq, The Predicates of Military Detention at Guanta

namo: The Role of

Individual Acts and Afﬁliations, 13 J. E

MPIRICAL LEGAL STUD. 567, 570 (2016) (surveying detentions

scholarship).

143.

144.

145. The

Guanta

namo

Docket, supra note 143.

146.

147. Cf. K

LAIDMAN, supra note 81, at 122–28. The Administration was accused of favoring targeted

killings over politically and legally fraught detentions.

148.

149. Exec. Order No. 13,823, 83 Fed. Reg. 4831 (Jan. 30, 2018).

1090 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

as detentions of new individuals and their disposition.

150

See Doe v. Mattis, 889 F.3d 745, 747 (D.C. Cir. 2018) (recent detention of an ISIS-linked U.S.

citizen in Syria); Courtney Kube, Dan De Luce & Josh Lederman, Trump Admin May Send Captured

ISIS Fighters to Iraq Prison, Guantanamo, NBC N

EWS (Aug. 30, 2018), https://www.nbcnews.com/

storyline/isis-terror/trump-admin-may-send-captured-isis-ﬁghters-iraq-prison-guantanamo-n905066

[https://perma.cc/TR7K-FBBL]; see also Robert Chesney, Sabrina McCubbin & Benjamin Wittes, Back

to the Future on Detention and Military Commissions, L

AWFARE (Nov. 2, 2017, 9:05 AM), https://www.

lawfareblog.com/back-future-detention-and-military-commissions [https://perma.cc/WG5U-YCSV].

1. Detentions and Administrative Agencies

The last three Administrations have put in place or preserved procedural mech-

anisms for status assessment of Guantanamo detainees. In response to the land-

mark 2004 Supreme Court decisions Hamdi v. Rumsfeld and Rasul v. Bush,

151

President Bush’s Defense Department established Combatant Status Review

Tribunals (CSRTs) and Administrative Review Boards (ARBs).

152

U.S. D

EP’T OF DEF., COMBATANT STATUS REVIEW TRIBUNALS (2006), https://archive.defense.

gov/news/Oct2006/d20061017CSRT.pdf [https://perma.cc/6V9S-V5CN]; Memorandum from Paul

Wolfowitz, Deputy Sec’y of Def., Dep’t of Def., to Sec’y of the Navy, Dept. of the Navy (July 7, 2004),

https://www.law.utoronto.ca/documents/Mackin/MuneerAhmad_ExhibitV.pdf [https://perma.cc/Q44E-

53PE].

The CSRTs

provided a one-time review by three military ofﬁcers to determine whether each

Guantanamo detainee was properly designated an enemy combatant. After that

initial determination, ARBs staffed by military ofﬁcers conducted an annual

sta-

tus

review for each detainee.

153

See Kathleen T. Rhem, Review Boards Assessing Status of

Guantanamo Detainees, U.S. D

EP’T

DEF. (July 8, 2005), https://archive.defense.gov/news/newsarticle.aspx?id=16694 [https://perma.cc/

AGQ5-PHKD].

Although the Defense Department established

the CSRTs, and their operation resembled administrative adjudication, both the

CSRTs and the ARBs consisted of military personnel. In Bismullah v. Gates, the

D.C. Circuit struggled with CSRTs’ classiﬁcation for APA purposes.

154

Although

the judges’ opinions diverged, they agreed that CSRTs were not “agencies” under

the APA.

155

President Obama transferred responsibility for detainee status review from the

military to civilian administrative agencies. In 2011, he created the Guantanamo

Periodic Review Boards (PRBs) by executive order, later incorporated in

legisla-

tion.

156

The Order established an interagency process to determine whether the

continued detention of each Guantanamo detainee remains necessary for national

security. The Secretary of Defense coordinates the process through “a secretariat

to administer the PRB review and hearing process.”

157

Id. at § 3(a)(8); see also The Periodic Review Board, P

ERIODIC REV. SECRETARIAT, https://www.

prs.mil/About-the-PRB/ [https://perma.cc/8JGB-XNXB].

The PRBs are comprised

of senior ofﬁcials from the Departments of Defense, Homeland Security, Justice,

and State, the Joint Chiefs of Staff, and the Ofﬁce of the Director of National

150.

151. 542 U.S. 507 (2004); 542 U.S. 466 (2004); see infra Section II.B.2.

152.

153.

154.

501 F.3d 178, 193 (D.C. Cir. 2007).

155. See, e.g., id. at 193; see also Parhat v. Gates, 532 F.3d 834, 836 (D.C. Cir. 2008) (annulling a

CSRT determination).

156. Exec. Order No. 13,567, 76 Fed. Reg. 13,275, 13,277 (Mar. 7, 2011).

157.

2020] ADMINISTRATIVE NATIONAL SECURITY 1091

Intelligence.

158

See Guantanamo Periodic Review Boards, HUM. RTS. FIRST (Apr. 9, 2018), https://www.

humanrightsﬁrst.org/resource/guantanamo-periodic-review-boards [https://perma.cc/XGV9-F2GQ].

President Obama’s Order also contained procedural requirements:

adequate advance notice to the detainee; a government-provided “personal repre-

sentative” with access to the PRB ﬁle, including classiﬁed material; a right to

retain private counsel; opportunity to submit arguments and to bring witnesses;

an oral hearing; and a written decision.

159

A principals committee reviews PRB

determinations in certain cases. As of 2018, eighty-nine PRB hearings have been

held for sixty-four detainees.

160

Detainees that remain in Guantanamo are eligible

for full PRB review of their status every three years and for more limited review

twice per year.

161

The Trump Administration has kept the PRB process in

place.

162

See Exec. Order No. 13,823, 83 Fed. Reg. 4831, 4831 (Jan. 30, 2018). But see Benjamin R.

Farley, Who Broke Periodic Review at Guantanamo Bay?, L

AWFARE (Oct. 15, 2018, 10:00 AM), https://

www.lawfareblog.com/who-broke-periodic-review-guantanamo-bay [https://perma.cc/S2PG-XFTA].

2. Detentions and the Courts

Detentions have received the most sustained judicial attention among the

measures discussed

in this Article. In Rasul v. Bush, the Supreme Court

estab-

lished

that Guantanamo detainees could seek habeas review in U.S. courts under

the federal habeas statute.

163

In Hamdi v. Rumsfeld, a plurality of the Justices held

that a U.S. citizen detained at Guantanamo was entitled to certain due process

protections, namely an opportunity to contest his classiﬁcation as an enemy

com-

batant

before a neutral decisionmaker.

164

These decisions led to the establishment

of the CSRTs, but they also provoked legislation that stripped statutory habeas

ju-

risdiction

for detainees and replaced it with limited review before the D.C.

Circuit.

165

In Hamdan v. Rumsfeld, the Supreme Court held that the military com-

missions

set up to try detainees violated the statutory requirement that military

commissions comply with Common Article 3 of the Geneva Conventions.

166

This

led to the enactment of the 2006 Military Commissions Act (MCA), which

stripped federal courts of habeas jurisdiction over alien detainees entirely.

167

Boumediene v. Bush, the Supreme Court held that this aspect of the MCA

consti-

tuted

an unconstitutional suspension of the writ of habeas corpus and that aliens

detained at Guantanamo had a constitutional right to habeas review.

168

In Munaf

158.

159. See Exec. Order No. 13,567, supra note 156, § 3(a)(1)–(3), (6)–(7).

160. See Guantanamo Periodic Review Boards, supra note 158.

161. See The Periodic Review Board, supra note 157.

162.

163. See 542 U.S. 466, 484 (2004) (analyzing 28 U.S.C. § 2241 (2012)).

164. See 542 U.S. 507, 509 (2004).

165. Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739.

166. See 548 U.S. 557, 613, 635 (2006).

167. See Military Commissions Act of 2006, Pub. L. No.109-366, 120 Stat. 2600, 2635–36.

168. See 553 U.S. 723, 732–33 (2008). However, courts have declined to extend habeas review to

aliens held at other facilities. See Maqaleh v. Hagel, 738 F.3d 312, 337 (D.C. Cir. 2013), vacated sub

nom. Amanatullah v. Obama, 575 U.S. 908 (2015) (mem.), and vacated in part sub nom. Al-Najar v.

Carter, 575 U.S. 908 (2015).

1092 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

v. Geren, the Court sanctioned the transfer of U.S. citizens detained in Iraq to

Iraqi custody.

169

These cases paved the way for hundreds of habeas challenges to various

aspects of U.S. detention policy in the D.C. federal courts. These cases addressed

questions that the Supreme Court left open, such as whether alien detainees are

entitled to due process rights in addition to habeas,

170

to what extent international

law should inform AUMF interpretation,

171

whether there are limits to the dura-

tion

of detentions

172

See Al-Alwi v. Trump, 901 F.3d 294, 296–97 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 1893

(2019); see also Charlie Savage, Testing Novel Power, Trump Administration Detains Palestinian After

Sentence Ends, N.Y. T

IMES (Mar. 26, 2019), https://www.nytimes.com/2019/03/26/us/politics/adham-

hassoun-indeﬁnite-detention.html?smid=tw-nytimes&smtyp=cur.

or the authority to transfer detainees,

173

and various issues

pertaining to the military commissions.

174

To summarize this section, detentions are different from other measures this

Article considers in two aspects: their frequency has decreased over time, and the

Supreme Court has played a signiﬁcant role in shaping the trajectory of U.S.

detention policy. Still, as the recent case of Doe v. Mattis illustrates,

175

new deten-

tions

are likely to occur as long as the United States continues its global war on

terror, and treatment of existing detainees remains a policy challenge. Most

important for our purposes is the gradual increase in the role of administrative

agencies—ﬁrst, hybrid administrative-military bodies and later, interagency

PRBs—in detention administration, and the manner in which the individualized,

long-term nature of detentions has progressively led to greater judicial willing-

ness

to intervene.

C. INDIVIDUAL ECONOMIC SANCTIONS

Individual economic sanctions have become a frequently used tool in U.S. for-

eign

and security policy in the past two decades. Several statutes empower the

169. 553 U.S. 674, 692 (2008).

170. See Qassim v. Trump, 927 F.3d 522, 527–28 (D.C. Cir. 2019) (remanding to district court to

consider whether the Due Process Clause applies to petitioner’s request to see classiﬁed information

relevant to his detention); Hatim v. Obama, 760 F.3d 54, 57–59 (D.C. Cir. 2014) (upholding challenges

to conﬁnement as properly raised in habeas petitions and assuming, without deciding, that habeas rights

include the right to representation by counsel); Ali v. Obama, 736 F.3d 542, 551 (D.C. Cir. 2013),

(holding that any error resulting from the government’s alleged failure to disclose evidence in habeas

proceedings was harmless); Odah v. United States, 611 F.3d 8, 13–14 (D.C. Cir. 2010) (upholding the

preponderance of the evidence standard and use of hearsay evidence for courts considering detainees’

habeas petitions); Kiyemba v. Obama, 561 F.3d 509, 514 (D.C. Cir. 2009) (rejecting detainees’ claim to

a due process right against their transfer to another country for fear of torture).

171. See Al-Bihani v. Obama, 619 F.3d 1, 1 (D.C. Cir. 2010) (en banc).

172.

173. See Kiyemba, 561 F.3d at 514.

174. See In re Al-Nashiri, 921 F.3d 224, 226 (D.C. Cir. 2019) (vacating commission orders issued by

detainee’s presiding military judge, whose “job application to the Justice Department created a

disqualifying appearance of partiality”); Al-Bahlul v. United States, 840 F.3d 757, 758 (D.C. Cir. 2016)

(per curiam) (upholding detainee’s conviction by military commission for conspiracy to commit war

crimes); In re Al-Nashiri, 835 F.3d 110, 113 (D.C. Cir. 2016) (denying detainee’s mandamus writ to

enjoin trial by military commission).

175. 889 F.3d. 745 (D.C. Cir. 2018).

2020] ADMINISTRATIVE NATIONAL SECURITY 1093

President to impose sanctions to advance foreign and security policy goals: the

1977 International Emergency Economic Powers Act (IEEPA),

176

the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

177

and other

statutes on speciﬁc policy issues such as the 2017 Countering America’s

Adversaries Through Sanctions Act (CAATSA) concerning Russia, Iran, and

North Korea.

178

The IEEPA is the primary authority U.S. administrations have relied upon to

impose individual economic sanctions. It grants the President broad authority to

take extensive economic measures in response to an “unusual and extraordinary”

threat to the national security, foreign policy, or economy of the United States, if

he declares an emergency with respect to that threat.

179

This includes blocking

the property of natural and legal persons.

180

Individual sanctions pursuant to the

IEEPA are typically imposed by executive orders that outline the criteria and

interagency process for designations under their authority. The Treasury

Department’s Ofﬁce of Foreign Assets Control (OFAC) administers most

sanc-

tions

programs. The AEDPA provides for a much smaller subset of sanctions. It

governs designations of Foreign Terrorist Organizations (FTOs) by the Secretary

of State.

181

From the enactment of the IEEPA until the early 1990s, U.S. presidents

declared emergencies and imposed IEEPA economic measures against a

total of seven states: Iran, Libya, Panama, Nicaragua, Kuwait, Iraq, and

Yugoslavia.

182

Beginning in the early 1990s, however, presidents invoked the

IEEPA to address situations involving not only states but also transnational

threats such as the proliferation of weapons of mass destruction (WMD),

183

176. International Emergency Economic Powers Act, 50 U.S.C. §§ 1701–1707 (2012); see National

Emergencies Act, 50 U.S.C. §§ 1601–1651 (2012).

177. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.

178. Countering America’s Adversaries Through Sanctions Act, Pub. L. No. 115-44, 131 Stat. 886

(2017); see Exec. Order No. 13,849, 83 Fed. Reg. 48,195 (Sept. 20, 2018) (authorizing the

implementation of CAATSA); see also Barnes, supra note 17, at 202 n.20.

179. 50 U.S.C. §1701(a) (2012). IEEPA is triggered if the President declares a national emergency

with respect to a threat with a signiﬁcant foreign element. See id.

180. See id. §1702(a)(1)(B).

181. 8 U.S.C. § 1189(a)(1) (2012). A group may be designated an FTO if it is foreign and engages in

terrorist activity that threatens the United States or its nationals. Id. Treasury may freeze an FTO’s

assets, those providing it material support may face criminal sanctions, and its alien members may be

denied admission to the United States. See Louisa C. Slocum, Comment, OFAC, the Department of

State, and the Terrorist Designation Process: A Comparative Analysis of Agency Discretion, 65 A

DMIN.

L. R

EV. 387, 393–94 (2013).

182. See CarrieLyn Donigan Guymon, The Best Tool for the Job: The U.S. Campaign to Freeze

Assets of Proliferators and Their Supporters, 49 V

A. J. INT’L L. 849, 862 (2009); James J. Savage,

Executive Use of the International Emergency Economic Powers Act - Evolution Through the Terrorist

and Taliban Sanctions, 10 C

URRENTS: INT’L TRADE L.J. 28, 32–35 (2001).

183. Exec. Order No. 12,938, 59 Fed. Reg. 58,099 (Nov. 14, 1994) (entitled “Proliferation of

Weapons of Mass Destruction”), amended in Exec. Order No. 13,094, 63 Fed. Reg. 40,803 (July 28,

1998); Exec. Order No. 12,735, 55 Fed. Reg. 48,587 (Nov. 16, 1990) (entitled “Chemical and Biological

Weapons Proliferation”).

1094 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

terrorism,

184

and narcotics trafﬁcking.

185

These applications of the IEEPA were

an innovation. United States sanctions now targeted not only states, their leaders,

and their instrumentalities but also individual persons and entities.

186

See C

HRISTOPHER A. CASEY ET AL., CONG. RES. SERV., R45618, THE INTERNATIONAL

EMERGENCY ECONOMIC POWERS ACT: ORIGINS, EVOLUTION, AND USE 16–23 (2019), https://fas.org/sgp/

crs/natsec/R45618.pdf [https://perma.cc/FTB5-XFER] (stating that “[o]riginally, IEEPA was used to

target foreign governments; however, [since 1990,] [p]residents have increasingly targeted groups and

individuals”); see also Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and the

Demands of Prevention, 42 H

ARV. J. ON LEGIS. 1, 13–14 (2005) (stating Clinton “broke new ground

under IEEPA” by targeting terrorist groups and their members rather than states); Savage, supra note

182, at 37 (“When the IEEPA was originally created, it was used against nations and national

corporations . . . . Now our national interests have necessitated that the IEEPA evolve further, so that it

can be used to block transactions, freeze and seize assets of terrorists who are basically stateless . . . .”).

Use of individualized economic sanctions accelerated following 9/11.

187

In the

immediate aftermath of the attacks, President Bush issued Executive Order

13,224 (EO 13,224) pursuant to the IEEPA, declaring a national emergency with

respect to terrorism.

188

EO 13,224 went on to become one of the United States’

main counterterrorism tools. Designations under the Order increased under the

Obama Administration.

189

See Zac Copeland, The National Emergency Under Executive Order 13224 Moves into Year 16,

AWFARE (Nov. 3, 2016, 11:00 AM), https://www.lawfareblog.com/national-emergency-under-

executive-order-13224-moves-year-16 [https://perma.cc/YL27-4XLB].

The Trump Administration has so far extended the ter-

rorism

national emergency.

190

As of November 2018, 6,763 persons have been

designated under EO 13,224.

191

The number is the result of

a search using the tag “SDGT” in the text version of the consolidated

SDN list. See Ofﬁce of Foreign Assets Control, Alphabetical Listing of Specially Designated Nationals

and Blocked Persons (“SDN List”), U.S. D

EP’T OF TREASURY, https://www.treasury.gov/ofac/

downloads/sdnlist.txt [https://perma.cc/9JGC-4YS7].

Terrorism is hardly the only policy area that saw a substantial increase in the

United States’ resort to individual economic sanctions. Since the early 2000s,

there has been a steady increase in the application of individual sanctions

pursu-

ant

to the IEEPA and other authorities in a host of policy areas.

192

See Kathy Gilsinan, A Boom Time for U.S.

Sanctions, A

TLANTIC (May 3, 2019), https://www.

theatlantic.com/politics/archive/2019/05/why-united-states-uses-sanctions-so-much/588625/.

One recent

example is the role that individual economic sanctions have played in U.S. policy

toward Russia in the wake of Moscow’s resurgence. The United States reacted to

Russia’s annexation of Crimea by imposing individual sanctions on prominent

Russian and Ukrainian individuals.

193

It also imposed economic sanctions on

184. Exec. Order No. 13,129, 64 Fed. Reg. 36,759 (July 4, 1999); Exec. Order No. 13,009, 63 Fed.

Reg. 45,167 (Aug. 20, 1998); Exec. Order No. 12,947, 60 Fed. Reg. 5079 (Jan. 23, 1995).

185. Exec. Order No. 12,978, 60 Fed. Reg. 54,579 (Oct. 21, 1995).

186.

187. Chesney, supra note 186, at 20.

188. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001), amended in Exec. Order No.

13,886, 84 Fed. Reg. 48,041 (Sept. 9, 2019) (Modernizing Sanctions to Combat Terrorism).

189.

190. Continuation of the National Emergency With Respect to Certain Terrorist Attacks, 83 Fed.

Reg. 46,067 (Sept. 10, 2018).

191.

192.

193. Exec. Order No. 13,685, 79 Fed. Reg. 77,357 (Dec. 19, 2014) (entitled “Blocking Property of

Certain Persons and Prohibiting Certain Transactions [w]ith Respect to the Crimea Region of Ukraine”);

Exec. Order No. 13,662, 79 Fed. Reg. 16,169 (Mar. 20, 2014) (entitled “Blocking Property of Additional

Persons Contributing to the Situation in Ukraine”); Exec. Order No. 13,661, 79 Fed. Reg. 15,535 (Mar.

2020] ADMINISTRATIVE NATIONAL SECURITY 1095

persons involved in Russia’s effort to interfere with the 2016 U.S. elections,

including hackers, pursuant to both the CAATSA and the IEEPA.

194

Exec. Order No. 13,757, 82 Fed. Reg. 1 (Dec. 28, 2016) (entitled “Taking Additional Steps to

Address the National Emergency [w]ith Respect to Signiﬁcant Malicious Cyber-Enabled Activities”);

Press Release, U.S. Dep’t of the Treasury, Treasury Sanctions Russian Federal Security Service

Enablers (June 11, 2018), https://home.treasury.gov/news/press-releases/sm0410 [https://perma.cc/

CC34-89R6]; Press Release, U.S. Dep’t of the Treasury, Treasury Sanctions Russian Cyber Actors for

Interference with the 2016 U.S. Elections and Malicious Cyber-Attacks (Mar. 15, 2018), https://home.

treasury.gov/news/press-releases/sm0312 [https://perma.cc/J2PH-JGF7] (noting that the Trump

administration designated “more than 100 individuals and entities” under Russia-related authorities).

In addition,

the United States sanctioned Russian nationals for corruption and human rights

abuses.

195

Exec. Order No. 13,818, 82 Fed. Reg. 60,839 (Dec. 20, 2017) (entitled “Blocking the Property

of Persons Involved in Serious Human Rights Abuse or Corruption”); Press Release, U.S. Dep’t of the

Treasury, Treasury Designates Russian Oligarchs, Ofﬁcials, and Entities in Response to Worldwide

Malign Activity (Apr. 6, 2018), https://home.treasury.gov/news/press-releases/sm0338 [https://perma.

cc/J67X-T5WX]; Press Release, U.S. Dep’t of the Treasury, Treasury Targets Individuals Involved in

the Sergei Magnitsky Case and Other Gross Violations of Human Rights in Russia (Dec. 20, 2017),

https://home.treasury.gov/news/press-releases/sm0240 [https://perma.cc/ZH3T-YTTK].

Executive Order 13,848 authorizes sanctions against any foreign per-

son involved in U.S. election meddling.

196

Exec. Order No. 13,848, 83 Fed. Reg. 46,843 (Sept. 12, 2018) (entitled “Imposing Certain

Sanctions in the Event of Foreign Interference in a United States Election”); see also Press Release, U.S.

Dep’t of the Treasury, Treasury Targets Assets of Russian Financier Who Attempted to Inﬂuence 2018

U.S. Elections (Sept. 30, 2019), https://home.treasury.gov/news/press-releases/sm787 [https://perma.cc/

R5H2-S4HS].

Individual sanctions have been a signiﬁcant component of U.S. policy on other

key international challenges as well. One such challenge is nonproliferation of

weapons of mass destruction. In 2005, building on preliminary groundwork laid

by the H. W. Bush and Clinton Administrations, President W. Bush issued

Executive Order 13,382, authorizing the blocking of the assets of proliferators

and their supporters.

197

OFAC has since routinely relied on this Order for new

proliferator designations. The United States has also imposed close to one thou-

sand individual sanctions concerning Iran’s nuclear program, its regional activ-

ities, and human rights abuses.

198

On the nuclear and regional aspects, see Exec. Order No. 13,876, 84 Fed. Reg. 30,573 (June 24,

2019) (entitled “Imposing Sanctions with Respect to Iran”); Exec. Order No. 13,846, 83 Fed. Reg.

38,939 (Aug. 6, 2018) (entitled “Reimposing Certain Sanctions with Respect to Iran”); Press Release,

U.S. Dep’t of State, Maximum Pressure Campaign on the Regime in Iran (Apr. 4, 2019), https://ge.

usembassy.gov/maximum-pressure-campaign-on-the-regime-in-iran-april-4/ [https://perma.cc/FP8G-

9S2S]; see also Elena Chachko, Trump Withdraws from the Iran Nuclear Agreement: What Comes Next,

AWFARE (May 8, 2018, 7:30 PM), https://www.lawfareblog.com/trump-withdraws-iran-nuclear-

agreement-what-comes-next [https://perma.cc/XVM8-EVKL]. On human rights, see Exec. Order 13,

606, 77 Fed. Reg. 24,571 (Apr. 22, 2012) (entitled “Blocking the Property and Suspending Entry Into

the United States of Certain Persons [w]ith Respect to Grave Human Rights Abuses by the Governments

of Iran and Syria via Information Technology”); Exec. Order No. 13,553, 75 Fed. Reg. 60,567 (Sept. 28,

Individual sanctions have similarly played a

16, 2014) (entitled “Blocking Property of Additional Persons Contributing to the Situation in Ukraine”);

Exec. Order. No. 13,660, 79 Fed. Reg. 13,493 (Mar. 6, 2014) (entitled “Blocking Property of Certain

Persons Contributing to the Situation in Ukraine”).

194.

195.

196.

197. Exec. Order No. 13,382, 70 Fed. Reg. 38,567 (June 28, 2005) (entitled “Blocking Property of

Weapons of Mass Destruction Proliferators and Their Supporters”).

198.

1096 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

key role in the United States’ policy on North Korea.

199

Other key areas in which the United States has applied individual sanctions

include the situation in Syria

200

See Exec. Order No. 13,399, 71 Fed. Reg. 25,059 (Apr. 25, 2016) (entitled “Blocking Property

of Additional Persons in Connection [w]ith the National Emergency [w]ith Respect to Syria”); Exec.

Order No. 13,608, 77 Fed. Reg. 26,409 (May 1, 2012) (entitled “Prohibiting Certain Transactions [w]ith

and Suspending Entry [i]nto the United States of Foreign Sanctions Evaders [w]ith Respect to Iran and

Syria”); Exec. Order No. 13,606, 77 Fed. Reg. 24,571 (Apr. 22, 2012) (entitled “Blocking the Property

and Suspending Entry [i]nto the United States of Certain Persons [w]ith Respect to Grave Human Rights

Abuses by the Governments of Iran and Syria via Information Technology”); Exec. Order No. 13,582,

76 Fed. Reg. 52,209 (Aug. 17, 2011) (entitled “Blocking Property of the Government of Syria and

Prohibiting Certain Transactions [w]ith Respect to Syria”); Exec. Order No. 13,573, 76 Fed. Reg.

29,143 (May 18, 2011) (entitled “Blocking Property of Senior Ofﬁcials of the Government of Syria”);

Exec. Order No. 13,572, 76 Fed. Reg. 24,787 (Apr. 29, 2011) (entitled “Blocking Property of Certain

Persons [w]ith Respect to Human Rights Abuses in Syria”); Exec. Order No. 13,460, 73 Fed. Reg. 8991

(Feb. 13, 2008) (entitled “Blocking Property of Additional Persons in Connection [w]ith the National

Emergency [w]ith Respect to Syria”); Exec. Order No. 13,338, 69 Fed. Reg. 26,751 (May 11, 2004)

(entitled “Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria”);

Press Release, U.S. Dep’t of the Treasury, Treasury Designates Syrian Oligarch Samer Foz and His

Luxury Reconstruction Business Empire (June 11, 2019), https://home.treasury.gov/news/press-

releases/sm704 [https://perma.cc/Y4JC-PCU6].

and ﬁghting malicious cyber activity.

201

See Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015) (entitled “Blocking the

Property of Certain Persons Engaging in Signiﬁcant Malicious Cyber-Enabled Activities”), amended in

Exec. Order No. 13,757, 82 Fed. Reg. 1 (Dec. 28, 2016) (entitled “Taking Additional Steps to Address

the National Emergency [w]ith Respect to Signiﬁcant Malicious Cyber-Enabled Activities”); Ofﬁce of

Foreign Assets Control, Cyber-related Designations, U.S. D

EP’T TREASURY (Mar. 23, 2018), https://

www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20180323.aspx [https://perma.

cc/9TE9-ZWMS].

The United

States also recently sanctioned seventeen Saudi nationals for their role in the

mur-

der

of journalist Jamal Khashoggi in Turkey.

202

Press Release, U.S. Dep’t of the Treasury, Treasury Sanctions 17 Individuals for Their Roles in

the Killing of Jamal Khashoggi (Nov. 15, 2018), https://home.treasury.gov/news/press-releases/sm547

[https://perma.cc/8U6X-JKVR].

And the list goes on. In the past

two decades, U.S. administrations have applied individual economic sanctions to

address situations in Belarus,

203

Burundi,

204

Central African Republic,

205

Congo,

206

2010) (entitled “Blocking Property of Certain Persons [w]ith Respect to Serious Human Rights Abuses

by the Government of Iran and Taking Certain Other Actions”).

199. See Exec. Order. 13,810, 82 Fed. Reg. 44,705 (Sept. 20, 2017) (entitled “Imposing Additional

Sanctions [w]ith Respect to North Korea”); Exec. Order. No. 13,722, 81 Fed. Reg. 14,943 (Mar. 15,

2016) (“Blocking Property of the Government of North Korea and the Workers’ Party of Korea, and

Prohibiting Certain Transactions With Respect to North Korea”); Exec. Order. No. 13,687, 80 Fed. Reg.

819 (Jan. 2, 2015) (entitled “Imposing Additional Sanctions [w]ith Respect [t]o North Korea”); Exec.

Order No. 13,551, 75 Fed. Reg. 53,873 (Aug. 30, 2010) (entitled “Blocking Property of Certain Persons

[w]ith Respect to North Korea”).

200.

201.

202.

203. See Exec. Order No. 13,405, 71 Fed. Reg. 35,485 (June 16, 2006) (entitled “Blocking Property

of Certain Persons Undermining Democratic Processes or Institutions in Belarus”).

204. See Exec. Order No. 13,712, 80 Fed. Reg. 73,633 (Nov. 22, 2015) (entitled “Blocking Property

of Certain Persons Contributing to the Situation in Burundi”).

205. See Exec. Order No. 13,667, 79 Fed. Reg. 28,387 (May 12, 2014) (entitled “Blocking Property

of Certain Persons Contributing to the Conﬂict in the Central African Republic”).

206. See Exec. Order No. 13,413, 71 Fed. Reg. 64,105 (Oct. 27, 2006) (entitled “Blocking Property

of Certain Persons Contributing to the Conﬂict in the Democratic Republic of the Congo”), amended in

Exec. Order No. 13,671, 79 Fed. Reg. 39,949 (July 8, 2014) (entitled “Taking Additional Steps to

2020] ADMINISTRATIVE NATIONAL SECURITY 1097

Iraq,

207

Lebanon,

208

Libya,

209

Somalia,

210

Sudan,

211

Yemen,

212

Venezuela,

213

and

Zimbabwe.

214

Thousands of individuals and entities have been designated in the

framework of these policies.

215

See Ofﬁce of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List,

U.S. D

EP’T TREASURY (Nov. 26, 2019), https://www.treasury.gov/ofac/downloads/sdnlist.pdf [https://

perma.cc/ZQA6-WPD6].

1. Individual Economic Sanctions and Administrative Agencies

Among the measures discussed in this Article, the process of imposing targeted

economic sanctions,

led by OFAC (IEEPA) and the State Department (AEDPA),

most closely resembles “classic” agency action. The AEDPA ﬂeshes out the

des-

ignation

process that the Secretary of State must follow.

216

By contrast, OFAC’s

designation process is somewhat opaque to the outside observer and depends on

the particular authority the agency relies upon in a given case. OFAC draws on

information from multiple sources, including relevant U.S. agencies, and puts

to-

gether

an evidentiary memorandum to support a proposed designation.

217

Other

Address the National Emergency [w]ith Respect to the Conﬂict in the Democratic Republic of the

Congo”).

207. See Exec. Order No. 13,438, 72 Fed. Reg. 39,719 (July 17, 2007) (entitled “Blocking Property

of Certain Persons Who Threaten Stabilization Efforts in Iraq”); Exec. Order No. 13,315, 68 Fed. Reg.

52,315 (Aug. 28, 2003) (entitled “Blocking Property of the Former Iraqi Regime, Its Senior Ofﬁcials and

Their Family Members, and Taking Certain Other Actions”), modiﬁed by Exec. Order No. 13,350, 69

Fed. Reg. 46,055 (July 29, 2004) (entitled “Termination of Emergency Declared in Executive Order

12,722 [w]ith Respect to Iraq and Modiﬁcation of Executive Order 13,290, Executive Order 13,303, and

Executive Order 13,315”).

208. See Exec. Order No. 13,441, 72 Fed. Reg. 43,499 (Aug. 1, 2007) (entitled “Blocking Property of

Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions”).

209. See Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) (entitled “Blocking Property

and Suspending Entry [i]nto the United States of Persons Contributing to the Situation in Libya”); Exec.

Order No. 13,566, 76 Fed. Reg. 11,315 (Feb. 25, 2011) (entitled “Blocking Property and Prohibiting

Certain Transactions Related to Libya”).

210. See Exec. Order No. 13,620, 77 Fed. Reg. 43,483 (July 20, 2012) (entitled “Taking Additional

Steps to Address the National Emergency [w]ith Respect to Somalia”); Exec. Order No. 13,536, 75 Fed.

Reg. 19,869 (Apr. 12, 2010) (entitled “Blocking Property of Certain Persons Contributing to the Conﬂict

in Somalia”).

211. See Exec. Order No. 13,664, 79 Fed. Reg. 19,283 (Apr. 3, 2014) (entitled “Blocking Property of

Certain Persons [w]ith Respect to South Sudan”); Exec. Order No. 13,400, 71 Fed. Reg. 25,483 (Apr.

26, 2006) (entitled “Blocking Property of Persons in Connection [w]ith the Conﬂict in Sudan’s Darfur

Region”).

212. See Exec. Order No. 13,611, 77 Fed. Reg. 29,533 (May 16, 2012) (entitled “Blocking Property

of Persons Threatening the Peace, Security, or Stability of Yemen”).

213. See Exec. Order No. 13,692, 80 Fed. Reg. 12,747 (Mar. 8, 2015) (entitled “Blocking Property

and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela”).

214. See Exec. Order No. 13,469, 73 Fed. Reg. 43,841 (July 25, 2008) (entitled “Blocking Property

of Additional Persons Undermining Democratic Processes or Institutions in Zimbabwe”); Exec. Order.

No. 13,391, 70 Fed. Reg. 71,201 (Nov. 22, 2005) (entitled “Blocking Property of Additional Persons

Undermining Democratic Processes or Institutions in Zimbabwe”); Exec. Order No. 13,288, 68 Fed.

Reg. 11,457 (Mar. 6, 2003) (entitled “Blocking Property of Persons Undermining Democratic Processes

or Institutions in Zimbabwe”).

215.

216. See 8 U.S.C. § 1189(a)(2) (2012).

217. See Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and

in Support of Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment at ¶¶ 24–27,

KindHearts for Charitable Dev., Inc. v. Paulson, 647 F. Supp. 2d 857 (N.D. Ohio 2008); Filing a

1098 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Petition for Removal from an OFAC List, U.S. DEP’T OF TREASURY (May 2, 2017), https://www.

treasury.gov/resource-center/sanctions/SDN-List/Pages/petitions.aspx [https://perma.cc/2RVC-

U9AX].

agencies, including the Justice and State Departments, then review the pro-

posal.

218

A ﬁnal designation is advertised in the Federal Register.

219

Although the IEEPA is silent on due process for blocked individuals, OFAC’s

elaborate regulations include procedural safeguards.

220

OFAC regulations allow a

designated person or entity to seek administrative reconsideration of the

designa-

tion.

221

A blocked person may contest the basis for the designation. The person

may propose “remedial steps” that would negate the basis for the designation.

222

The blocked person may also request a meeting with OFAC. After completing its

review, OFAC provides a written decision to the blocked person.

223

According to

OFAC, this administrative review offers a genuine opportunity to challenge

des-

ignations

because it removes hundreds of names from the Specially Designated

Nationals and Blocked Persons List (SDN List) each year.

224

2. Individual Economic Sanctions and the Courts

The Supreme Court has yet to review an AEDPA or OFAC designation

directly.

225

There have been relatively few individual sanctions cases in lower

courts as well, considering the volume of individual sanctions imposed in the past

two decades. Individual sanctions review cases have been related to either

terror-

ism

or narcotics.

226

For terrorism (SDGT) designations under Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept.

23, 2001) (entitled “Blocking Property and Prohibiting Transactions [w]ith Persons Who Commit,

Threaten to Commit, or Support Terrorism”), see, for example, Al Haramain Islamic Foundation, Inc. v.

U.S. Department of Treasury, 686 F.3d 965, 970 (9th Cir. 2012); Islamic American Relief Agency v.

Gonzales, 477 F.3d 728, 731 (D.C. Cir. 2007); Holy Land Foundation for Relief & Development v.

Ashcroft, 333 F.3d 156, 159 (D.C. Cir. 2003); Global Relief Foundation, Inc. v. O’Neill, 315 F.3d 748

(7th Cir. 2002); Kadi v. Geithner, 42 F. Supp. 3d 1, 5 (D.D.C. 2012); KindHearts for Charitable

Humanitarian Development, Inc. v. Geithner, 647 F. Supp. 2d 857, 864 (N.D. Ohio 2009); Al-Aqeel v.

Paulson, 568 F. Supp. 2d 64, 66 (D.D.C. 2008); Salah v. U.S. Department of Treasury, C

TR. FOR CONST.

TS., https://ccrjustice.org/home/what-we-do/our-cases/salah-v-us-department-treasury [https://perma.

cc/YHK3-JKKA] (last visited Mar. 2, 2020); see also Fares v. Smith, 901 F.3d

315 (D.C. Cir. 2018)

(narcotics).

For FTO designations under AEDPA, see, for example, People’s Mojahedin Organization of Iran v.

United States Department of State (PMOI III), 613 F.3d 220 (D.C. Cir. 2010); Chai v. United States

Department of State, 466 F.3d 125, 126 (D.C. Cir. 2006); National Council of Resistance of Iran v.

United States Department of State (NCRI II), 373 F.3d 152, 153 (D.C. Cir. 2004); People’s Mojahedin

Organization of Iran v. United States Department of State (PMOI II), 327 F.3d 1238, 1239 (D.C. Cir.

2003); 32 County Sovereignty Committee v. United States Department of State, 292 F.3d 797, 798 (D.C.

Cir. 2002); National Council of Resistance of Iran v. United States Department of State (NCRI I), 251

Judicial treatment of designations has varied. In most cases,

218. See id.

219. See id.

220. See 31 C.F.R. ch. V (2002); see also Barnes, supra note 17, at 204–06.

221. See 31 C.F.R. § 501.807 (2018).

222. Id.

223. See id.

224. See id.

225. But see Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (rejecting a First Amendment

challenge to the prohibition on providing material support to FTOs).

226.

2020] ADMINISTRATIVE NATIONAL SECURITY 1099

courts have deferred to the agencies and their expertise in national security mat-

ters. In a few cases, however, courts have attempted to constrain these unique

administrative mechanisms that deprive individuals of key interests on foreign

and security policy grounds.

Because the IEEPA is silent on the standard of judicial review of individual

designations under its authority,

227

the APA governs their review.

228

Under the

general APA standard, a designation should be struck down if it is “arbitrary,

ca-

pricious,

an abuse of discretion, or otherwise not in accordance with law.”

229

applying this standard, courts have focused on whether designations were

sup-

ported

by substantial evidence. By contrast, the AEDPA provides for review of

FTO designations before the D.C. Circuit and outlines a standard similar to the

APA’s.

230

The D.C. Circuit has dismissed most cases involving FTOs designated under

the AEDPA.

231

In one early case, People’s Mojahedin Organization of Iran v.

U.S. Department of State (PMOI I), the court denied petitions for review from

Iranian group People’s Mojahedin Organization of Iran (PMOI) and the Sri-

Lankan Tamil Tigers.

232

Distinguishing JAFRC, the 1951 Communist blacklist-

ing

case,

233

the court held that the two groups could not assert Fifth Amendment

due process rights because they lacked sufﬁcient ties to the United States. It

there-

fore

limited its review to the AEDPA criteria.

234

Even within the statutory frame-

work,

the court declined, under the political question doctrine, to review the

Secretary of State’s ﬁnding that the groups posed a security threat.

235

Later challenges from PMOI and its alleged alias, the National Council of

Resistance of Iran (NCRI), proved more successful. In National Council of

Resistance of Iran v. U.S. Department of State (NCRI I), the court put a thumb on

F.3d 192, 195–96 (D.C. Cir. 2001); People’s Mojahedin Organization of Iran v. United States

Department of State (PMOI I), 182 F.3d 17, 18 (D.C. Cir. 1999).

227. But see 50 U.S.C § 1702(c) (2012) (allowing the President to share classiﬁed material with a

reviewing court); Slocum, supra note 181, at 396. Courts have interpreted presidential authority under

the IEEPA broadly. See Dames & Moore v. Regan, 453 U.S. 654, 677 (1981) (“[T]he IEEPA delegates

broad authority to the President to act in times of national emergency with respect to property of a

foreign country.”); see also E

RIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER

THE MADISONIAN REPUBLIC 86 (2010) (stating that the IEEPA “has been construed by the courts to grant

broad executive power”); Guymon, supra note 182, at 861 (“U.S. courts typically decline to question the

executive’s invocation of IEEPA . . . .”).

228. See, e.g., Al Haramain Islamic Found., Inc., 686 F.3d at 976 (“The judicial review provisions of

the Administrative Procedure Act . . . govern challenges to OFAC’s designation decisions.” (citing

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 496–97 & 496 n.18 (2004))).

229. 5 U.S.C. § 706(2)(A) (2012).

230. 8 U.S.C. § 1189(c) (2012); see Slocum, supra note 181, at 395–96.

231. See, e.g., PMOI III, 613 F.3d at 222–25; Chai, 466 F.3d at 125; 32 Cty. Sovereignty Comm., 292

F.3d at 797.

232. 182 F.3d 17 (D.C. Cir. 1999).

233. Joint Anti-Fascist Refugee Comm. v. McGrath (JAFRC), 341 U.S. 123, 142 (1951); see supra

note 25 and accompanying text.

234. PMOI I, 182 F.3d at 22.

235. Id. at 25.

1100 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

the procedural scale in favor of the designated groups.

236

The court found that the

PMOI alias’ (and therefore PMOI’s) U.S. presence was sufﬁcient to assert Fifth

Amendment due process rights.

237

The court then assessed whether the designa-

tions implicated the Due Process Clause. It concluded that at least one protected

interest, the groups’ property interests in the United States that could be blocked

as a result of their FTO designations, was sufﬁcient to entitle them to due pro-

cess.

238

In assessing what process the groups were due, the court applied the

Mathews v. Eldridge tripartite balancing test.

239

The Mathews test weighs the pro-

tected individual interest at stake and the risk of erroneous deprivation of that in-

terest against the agency’s interests.

240

The court held that the Secretary of State

should typically give notice and a genuine opportunity to be heard to a group

prior to its FTO designation.

241

Judicial review of OFAC designations has been deferential as well. The D.C.

Circuit dismissed challenges from two Muslim charities of their designation as

Specially Designated Global Terrorists.

242

The D.C. District Court similarly dis-

missed

cases brought by a Saudi citizen and alleged al-Qaeda ﬁnancier, Yasin

Kadi.

243

However, not all courts have exhibited the same level of deference in

reviewing OFAC designations.

For example, in Al Haramain Islamic Foundation, Inc. v. U.S. Department of

the Treasury,

244

the Ninth Circuit reviewed OFAC’s designation of the Oregon

branch of an international Muslim charity for ties to al-Qaeda.

245

Applying the

APA’s arbitrary and capricious standard, the court ﬁrst assessed whether there

was substantial evidence to support Al Haramain’s designation. After reviewing

classiﬁed material, the court answered this question in the afﬁrmative.

246

The

court then considered Al Haramain’s Fifth Amendment procedural due process

claims.

247

Although it recognized that OFAC terrorism designations implicate a

strong government interest in national security, the court concluded that the

236. 251 F.3d 192 (D.C. Cir. 2001).

237. Id. at 200.

238. Id.

239. Id. at 208; see Mathews v. Eldridge, 424 U.S. 319 (1976).

240. See 424 U.S. 319 (1976).

241. NCRI I, 251 F.3d at 208; see also People’s Mojahedin Org. of Iran v. U.S. Dep’t of State (PMOI

III), 613 F.3d 220 (D.C. Cir. 2010) (remanding PMOI’s FTO redesignation to the Secretary of State after

ﬁnding due process violations).

242. See Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728 (D.C. Cir. 2007); Holy Land Found.

for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003).

243. See Kadi v. Geithner, 42 F. Supp. 3d 1, 5 (D.D.C. 2012); Al-Aqeel v. Paulson, 568 F. Supp. 2d

64 (D.D.C. 2008); see also Global Relief Found., Inc. v. O’Neill, 315 F.3d 748 (7th Cir. 2002). For an

analysis of Kadi, see Douglas Cantwell, Note, A Tale of Two Kadis: Kadi II, Kadi v. Geithner & U.S.

Counterterrorism Finance Efforts, 53 C

OLUM. J. TRANSNAT’L. L. 652 (2015).

244. 686 F.3d 965 (9th Cir. 2012).

245. See also KindHearts for Charitable Dev., Inc. v. Paulson, 647 F. Supp. 2d 857, 918–19 (N.D.

Ohio 2008) (holding that OFAC violated the Fifth and Fourth Amendment in provisionally designating

an Ohio nonproﬁt without notice, hearing, or warrant; and that OFAC’s restriction of funds for

plaintiff’s legal fees was arbitrary and capricious).

246. Al Haramain Islamic Found., Inc., 686 F.3d at 979.

247. Id.

2020] ADMINISTRATIVE NATIONAL SECURITY 1101

Mathews analysis favored Al Haramain.

248

Although OFAC was entitled to desig-

nate the group based on undisclosed classiﬁed material, the court held, the agency

should at least have disclosed a summary of the classiﬁed evidence or offered

another mitigating measure.

249

The court further held that OFAC’s failure to give

adequate notice to Al Haramain violated due process.

250

Still, the court ultimately

rejected Al Haramain’s Fifth Amendment claims, ﬁnding that OFAC’s violations

were nonprejudicial and therefore harmless.

251

By contrast, the court concluded

that OFAC had violated Al Haramain’s Fourth Amendment rights by blocking its

assets without obtaining a warrant,

252

and that the prohibition on coordinated ad-

vocacy with Al Haramain under EO 13,224 violated the First Amendment.

253

As this section illustrates, individual economic sanctions, particularly OFAC

designations, have become a signiﬁcant component of U.S. foreign and security

policy in the past two decades. OFAC has operated within a broad framework

that includes the IEEPA and a slew of executive orders delegating designation

power to the Treasury Department and other agencies based on ﬂexible criteria.

OFAC exercises considerable discretion in collecting information, putting to-

gether

listing recommendations, and reviewing listings after they are challenged

through the administrative reconsideration process. Despite the resemblance of

agency decisionmaking in this context to ordinary administrative

decisionmak-

ing,

judicial oversight has been limited and conﬁned to speciﬁc policy areas.

When courts have ruled against the government, it was mostly on constitutional

grounds. Constitutional protection is not available to the vast majority of

desig-

nated

persons, who tend to be aliens without substantial U.S. ties. The main over-

sight

of this practice is therefore conducted through the mechanism that exists

within the administrative state.

D. SECURITY WATCHLISTS, NO-FLY LISTS, AND OTHER TRAVEL RESTRICTIONS

Several authorities allow the Executive to impose travel bans and related

restrictions on individuals for foreign policy or national security reasons. The

main statute governing this area is the Immigration and Nationality Act, codiﬁed

in pertinent part in title 8, section 1182 of the U.S. Code.

254

Section 1182 outlines

248. Id. at 985.

249. Id. at 982–84. The court was careful not to categorically require OFAC to provide limited

disclosure of classiﬁed material, noting that whether disclosure is required should be decided on a case-

by-case basis. Id.

250. Id. at 985.

251. Id. at 988.

252. Id. at 995. The Ninth Circuit amended the opinion on denial of rehearing, clarifying that the

warrant requirement applies only to U.S.-located assets of U.S. persons. Id. at 993.

253. Id. at 1001; cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 8 (2010) (ﬁnding that the

material support statute did not violate the First Amendment rights of groups that wished to support the

lawful activities of two FTOs).

254. 8 U.S.C. § 1182 (2012). Other provisions providing for individualized national security

measures are included in Chapter 5 of Title 8 of the U.S. Code, which details removal procedures for

individual alien terrorists and establishes a specialized Article III court for this purpose. However, the

Court has not adjudicated a single case to date. See Alien Terrorist Removal Court, 1996-Present, F

ED.

1102 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

JUD. CTR., https://www.fjc.gov/history/courts/alien-terrorist-removal-court-1996-present [https://perma.

cc/YFZ8-YJT9] (last visited Mar. 2, 2020).

categories of inadmissible aliens. For instance, section 1182(a)(3)(C) empowers

the Secretary of State to ban the entry of aliens whose “entry or proposed activ-

ities” could have “serious adverse foreign policy consequences” for the United

States.

255

Section 1182(a)(3)(B) governs inadmissibility on grounds of involve-

ment in terrorism.

256

Section 1182(f) empowers the President to suspend visas for

aliens whose entry would be “detrimental to the interests of the United States.”

257

Among other examples, the Trump Administration invoked these authorities to

impose a travel ban on nationals from predominantly Muslim countries and to

revoke the U.S. visa of the chief prosecutor of the International Criminal

Court.

258

See Travel Ban Case, 138 S. Ct. at 2392; Mike Pompeo (@SecPompeo), T

WITTER (Mar. 15,

2019, 3:38 PM), https://twitter.com/secpompeo/status/1106640744868122625 [https://perma.cc/HKN7-

7GKJ]; see also Elena Chachko, The U.S. Names the Iranian Revolutionary Guard a Terrorist

Organization and Sanctions the International Criminal Court, L

AWFARE (Apr. 10, 2019, 4:05 PM),

https://www.lawfareblog.com/us-names-iranian-revolutionary-guard-terrorist-organization-and-sanctions-

international-criminal [https://perma.cc/8WKD-B6GZ].

The main area of growth in security-related individual travel restrictions, how-

ever, has been the U.S. watchlisting system. After 9/11, the Bush Administration

expanded the practice of maintaining classiﬁed lists of terrorism suspects for vari-

ous security purposes. The government’s watchlisting policies are shrouded in se-

crecy, but presidential directives and executive orders, as well as a National

Counterterrorism Center (NCTC) Watchlisting Guidance leaked in 2014, provide

insight into the administration of those lists.

259

See N

AT’L COUNTERTERRORISM CTR., WATCHLISITNG GUIDANCE (2013) [hereinafter NCTC

UIDANCE], https://www.eff.org/ﬁles/2014/07/24/2013-watchlist-guidance_1.pdf [https://perma.cc/

J3YL-B87X]; see also Anya Bernstein, The Hidden Costs of the Terrorist Watch Lists, 61 B

UFFALO L.

EV. 461 (2013).

In 2003, President Bush issued Homeland Security Presidential Directive 6

(HSPD-6) on screening information for counterterrorism purposes. HSPD-6

instructed the Attorney General to “establish an organization to consolidate the

government’s approach to terrorism screening and provide for the appropriate

and lawful use of

[t]errorist [i]nformation in screening processes.”

260

HSPD-6

also instructed all relevant agencies to regularly share information with that

orga-

nization,

later incorporated into the NCTC.

261

As part of the implementation of HSPD-6, the Attorney General, the

Secretaries of State and Homeland Security, and the Director of National

Intelligence signed a Memorandum of Understanding (MOU) establishing the

255. 8 U.S.C. § 1181(a)(3)(C) (2012).

256. Id. § 1181(a)(3)(B).

257. Id. § 1182(f). See Trump v. Hawaii (Travel Ban Case), 138 S. Ct. 2392 (2018), for a broad

interpretation of this statute.

258.

259.

260. Directive on Integration and Use of Screening Information to Protect Against Terrorism, 39

EEKLY COMP. PRES. DOC. 1234 (Sept. 16, 2003); see also Hu, Big Data, supra note 41, at 1773–76.

261. See Intelligence Reform and Terrorism Prevention (IRTPA) Act of 2004, Pub. L. 108-458,

§ 1021, 118 Stat. 3638, 3672–75; Exec. Order No. 13,354, 69 Fed. Reg. 53,589 (Aug. 27, 2004)

(National Counterterrorism Center).

2020] ADMINISTRATIVE NATIONAL SECURITY 1103

Terrorism Screening Center (TSC).

262

Housed in the FBI,

263

See Terrorist Screening Center, FBI, https://www.fbi.gov/about/leadership-and-structure/

national-security-branch/tsc [https://perma.cc/PMD8-NKBW] (last visited Mar. 4, 2020).

the TSC is the gov-

ernment’s focal point for terrorist screening information. TSC administers the

Terrorist Screening Database (TSDB)—an unclassiﬁed database of terrorist iden-

tity information that constitutes the consolidated Terrorist Watchlist.

Two main sources feed into the TSDB: NCTC’s Terrorist Identities Datamart

Environment (TIDE), which contains information concerning known or sus-

pected international terrorists; and TSC’s Terrorist Review and Examinations

Unit (TREX), which contains information on known or suspected “purely domes-

tic” terrorists.

264

TSDB records are accessible to numerous “partners” at the fed-

eral,

state, and local level, as well as to certain private parties and foreign

governments.

265

The Transportation Security Administration (TSA), the State

Department’s consular database, the Customs and Border Protection Agency, and

the National Crime Information Center are among those partners.

266

In addition

to the consolidated Terrorist Watchlist, the government maintains the “No Fly,”

“Selectee,” and “Expanded Selectee” Lists as well as the Known or Suspected

Terrorist (KST) File—all subsets of the consolidated list.

267

Id. at 50–57. On the KST,

see also C

IVIL LIBERTIES & NAT’L SEC. CLINIC, YALE LAW SCH.,

RAPPED IN A BLACK BOX: GROWING TERRORISM WATCHLISTING IN EVERYDAY POLICING (2016), https://

www.aclu.org/report/trapped-black-box-growing-terrorism-watchlisting-everyday-policing [https://perma.

cc/56T8-D8WG].

Individuals placed on

the various watchlists suffer severe consequences. They may be barred from

trav-

eling

by air or sea or undergo invasive screening at airports. They may also be

denied a visa or entry into the United States and face repeated questioning and

even detention in the United States or abroad. Their relatives and associates might

also be exposed to certain restrictions.

268

An individual must meet basic identiﬁcation criteria as well as broad substan-

tive criteria to be added to the consolidated Terrorist Watchlist (TSDB): a “rea-

sonable suspicion” that the individual is “a known or suspected terrorist.”

269

Importantly, even individuals who do not meet these criteria may end up in

NCTC’s database (TIDE) and suffer certain consequences. United States

nation-

als

may be included on watchlists subject to additional review.

270

By June 2016,

1.5 million individuals were in NCTC’s TIDE database, and roughly one million

262. See NCTC GUIDANCE, supra note 259, app. 3. An information sharing MOU among relevant

national security agencies was also signed in March 2003. Id. at 6 n.6.

263.

264. NCTC G

UIDANCE, supra note 259, at 7.

265. See Elhady v. Kable, 391 F. Supp. 3d 562, 569–70 (E.D. Va. 2019).

266. See NCTC G

UIDANCE, supra note 259, at 24–25.

267.

268. See Latif

Holder,

F. Supp. 3d 1134, 1149 (D. Or. 2014).

269. See NCTC G

UIDANCE, supra note 259, at 12–13; see also Elhady, 391 F. Supp. 3d at 568 (noting

that inclusion in the TSDB requires “a reasonable suspicion that the individual is engaged, has been

engaged, or intends to engage, in conduct constituting, in preparation for, in aid or in furtherance of, or

related to, terrorism and/or terrorist activities”).

270. See NCTC G

UIDANCE, supra note 259, at 19–20.

1104 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

were on the Terrorist Watchlist.

271

See ACLU, WHAT’S WRONG WITH THE GOVERNMENT’S RULES FOR WATCHLISTING 4, >https://

www.aclu.org/sites/default/ﬁles/ﬁeld_document/watchlisting_guidance_takeaways.pdf [https://perma.

cc/3MEM-KHWF]; see also C

IVIL LIBERTIES & NAT’L SEC. CLINIC, YALE LAW SCH., supra note 267, at

1–2 (“The number of individuals tracked by the VGTOF/KST File has increased exponentially. From

just over 13,000 entries in 2003, VGTOF ballooned to 272,198 entries in 2008 . . . .”).

By June 2017, the number of individuals on

the TSDB reached about 1.2 million.

272

Additional presidential directives and executive orders followed HSPD-6, aim-

ing

to enhance terrorism-related screening, improve information sharing among

agencies, and regulate the use of biometrics in this context.

273

The NCTC

Guidance, issued early in President Obama’s second term, indicates that this

framework remained in place under President Obama with certain modiﬁcations.

President Trump issued two National Security Policy Memoranda (NSPMs) that

appear to augment the watchlisting system. NSPM-7 instructed national security

agencies to improve the integration and sharing of “threat actor information” on

individuals, groups, and networks, and to further develop related technological

infrastructure.

274

It cited threats beyond terrorism, including cyber counterintelli-

gence

and proliferation. To supplement the existing watchlisting bureaucracy,

NSPM-9 established an interagency National Vetting Center within the Homeland

Security Department.

275

See D

EP’T OF HOMELAND SEC., PLAN TO IMPLEMENT THE PRESIDENTIAL MEMORANDUM ON

OPTIMIZING THE USE OF FEDERAL GOVERNMENT INFORMATION IN SUPPORT OF THE NATIONAL VETTING

ENTERPRISE 11 (2018), https://perma.cc/YFW2-KE68; Memorandum on Optimizing the Use of Federal

Government Information in Support of the National Vetting Enterprise (NSPM-9), 2018 D

AILY COMP.

RES. DOCS. 78 (Feb. 6, 2018).

1. The Watchlisting Process and Administrative Agencies

The legal framework that governs the watchlisting enterprise established a

sprawling bureaucracy, with multiple administrative agencies sharing related

responsibilities. NCTC, TSC, and other agencies may nominate individuals to

TIDE (NCTC) or the TSDB (TSC) if available intelligence indicates that they

meet the listing criteria. Aggregator agencies, primarily NCTC and TSC, receive

and retain information on terrorism suspects. Screening agencies such as TSA vet

individuals against the TSDB list, as well as the No Fly and Selectee lists.

276

271.

272. See Elhady v. Kable, 391 F. Supp. 3d 562, 568 (E.D. Va. 2019).

273. See Directive on Comprehensive Terrorist-Related Screening Procedures, 40 W

EEKLY COMP.

RES. DOC. 1707 (Aug. 27, 2004); Exec. Order No. 13,356, 69 Fed. Reg. 53,599 (Aug. 27, 2004)

(entitled “Strengthening the Sharing of Terrorism Information [t]o Protect Americans”); Directive on

Biometrics for Identiﬁcation and Screening to Enhance National Security, 44 W

EEKLY COMP. PRES.

OC. 788 (June 5, 2008).

274. Memorandum on Integration, Sharing, and Use of National Security Threat Actor Information

to Protect Americans (NSPM-7), 2017 D

AILY COMP. PRES. DOC. 722 (Oct. 4, 2017).

275.

276. Screeners may include federal, state, local, tribal, territorial, or foreign governments and certain

private entities. Screening ofﬁcials include homeland security ofﬁcers, consular affairs ofﬁcers,

transportation safety personnel, and, in certain cases, ofﬁcials of foreign governments. TIDE and other

records that do not meet the TSDB inclusion criteria may still be used for immigration and visa

screening by DHS and the State Department. See NCTC G

UIDANCE, supra note 259, at 16.

2020] ADMINISTRATIVE NATIONAL SECURITY 1105

TSC coordinates the activity of screeners on the ground and operational responses

in case of a match, which may include additional screening or denial of boarding,

denial of admission to the United States, and other measures, depending on the

list.

277

The newly established National Vetting Center and its interagency oversight

board add another administrative layer to this watchlisting system. How they ﬁt

within the existing watchlisting mechanism is unclear. They appear to expand the

scope of systematic individualized blacklisting and related restrictions on travel

and admission to the United States from terrorism to a variety of other threats.

The Watchlisting Guidance outlined procedures for the removal of individuals

from the Terrorist Watchlist, as well as “redress procedures.”

278

For instance, the

Department of Homeland Security’s Traveler Redress Inquiry Program (TRIP)

mechanism allows individuals to seek redress for any travel-related screening

issues, such as denial of boarding or repeated referral for additional screening.

279

The outcome of the TRIP process may be challenged through an administrative

appeal or in federal court.

280

President Trump’s NSPM-9 similarly mentions

redress procedures, but its speciﬁcs are vague.

2. Watchlisting and the Courts

The 2013 Watchlisting Guidance stated that

“[t]he general policy of the U.S.

Government is to neither conﬁrm nor deny an individual’s watchlist status.”

281

This put listed individuals in a Kafkaesque position. Because they had no way of

knowing whether they were in fact on a watchlist, challenging their listing in

court was no easy feat. Nevertheless, plaintiffs have successfully challenged their

listings on due process

282

See Fikre v. FBI, 904 F.3d 1033, 1035 (9th Cir. 2018) (reversing the dismissal of the plaintiff’s

challenge to his inclusion on the No Fly List); Tarhuni v. Sessions, 692 F. App’x 477, 478 (9th Cir.

2017) (overruling the dismissal of the plaintiff’s watchlisting challenge as moot); Kovac v. Wray, 363 F.

Supp. 3d 721, 748–58 (N.D. Tex. 2019) (allowing challenges to the plaintiffs’ inclusion in the TSDB);

Mohamed v. Holder, 995 F. Supp. 2d 520 (E.D. Va. 2014) (allowing a Fifth Amendment and APA

challenge to the inclusion of a U.S. citizen on the No Fly List); Ibrahim v. Dep’t of Homeland Sec., 62 F.

Supp. 3d 909, 910 (N.D. Cal. 2014) (holding that the mistaken inclusion of a visa-holding Stanford

student on the No Fly List violated due process); see also Jennifer Daskal, Secrets Revealed: The

Government’s No Fly List Arguments Aren’t Flying, J

UST SECURITY (Apr. 25, 2014), https://www.

justsecurity.org/9865/secrets-revealed-governments-ﬂy-list-arguments-arent-ﬂying/ [https://perma.cc/

SX77-33G2]; Shirin Sinnar, A Terrorist Watchlist Error Revealed, J

UST SECURITY (Feb. 7, 2014),

https://www.justsecurity.org/6841/terrorist-watchlist-error-revealed/ [https://perma.cc/Z45J-W2XP].

But see Mokdad v. Sessions, 876 F.3d 167, 168 (6th Cir. 2017) (afﬁrming the dismissal of the plaintiff’s

challenge to his inclusion on the No Fly List as moot); Mohamed v. Holder, 266 F. Supp. 3d 868, 872

(E.D. Va. 2017), appeal dismissed sub nom. Mohamed v. Sessions, No. 17-7235, 2017 WL 8289654

(4th Cir. Dec. 21, 2017) (dismissing the case on the merits).

and other grounds.

283

277. Id. at 13–15.

278. Id. at 27–29.

279. 49 C.F.R. § 1560.205 (2009) (detailing the DHS traveler redress inquiry program).

280. See Latif v. Holder, 28 F. Supp. 3d 1134, 1153 (D. Or. 2014).

281. NCTC G

UIDANCE, supra note 259, at 11.

282.

283. See, e.g., Tanvir v. Tanzin, 894 F.3d 449, 452–53 (2d Cir. 2018) (reversing the dismissal of a

case alleging that senior federal law enforcement ofﬁcials retaliated against the plaintiffs for their

refusal to serve as informants by including or retaining them on the No Fly List).

1106 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

A key case that precipitated limited reform in the watchlisting process was

Latif v. Holder.

284

The plaintiffs were thirteen U.S. citizens and permanent resi-

dents,

including four veterans of the U.S. armed services.

285

They suspected that

they were on the No Fly List after being prevented from boarding domestic and

international ﬂights. The plaintiffs ﬁrst turned to the DHS TRIP redress

proce-

dure,

but the government refused to conﬁrm or deny their listing statuses, or to

provide assurances about future travel. The plaintiffs then turned to the United

States District Court for the District of Oregon. They sought removal from the list

or a meaningful opportunity to contest their listing.

286

They argued that it violated

their Fifth Amendment due process rights, and that it was arbitrary and capricious

and thus unlawful under the APA.

287

Similar to other cases discussed in this

Article, the court applied the Mathews balancing test to decide the due process

questions.

288

The court ﬁrst held that the plaintiffs had a constitutionally protected interest

in international air travel and in defending their reputation.

289

Next, it concluded

that the TRIP procedure created a high risk of erroneous deprivation of these

interests.

290

The low listing threshold under the reasonable suspicion criterion

coupled with the wholly one-sided nature of the listing procedure, the court

decided, increased the risk of erroneous listing.

291

According to the court, judicial

review was an insufﬁcient safeguard because the plaintiffs were denied any

access to the administrative record.

292

Finally, the court concluded that additional

procedures like notice and a hearing would have had signiﬁcant probative

value.

293

Balancing the ﬁrst two Mathews factors against the government’s interest in

protecting national security, the court ruled in favor of the plaintiffs, drawing on

targeted-sanctions case law.

294

“[W]hile the [G]overnment’s interest in national

security in this case weighs heavily,” Judge Brown reasoned, “the DHS TRIP

process falls far short of satisfying the requirements of due process.”

295

“[W]ith-

out

proper notice and an opportunity to be heard,” she continued, “an individual

could be doomed to indeﬁnite placement on the No-Fly List.”

296

The court also

held that the TRIP mechanism was arbitrary and capricious because it failed to

account for the listed individuals’ version of the facts.

297

Yet, the court left it to

284. 28 F. Supp. 3d at 1134.

285. Id. at 1140.

286. See id.

287. Id.

288. See id. at 1139.

289. Id. at 1149–51.

290. Id. at 1153.

291. Id.

292. Id.

293. Id. at 1153–54.

294. See id. at 1163.

295. Id. at 1160–61.

296. Id. at 1161.

297. Id. at 1162–63.

2020] ADMINISTRATIVE NATIONAL SECURITY 1107

the government to devise new, adequate procedures without jeopardizing national

security.

298

Latif led to a revision of the DHS TRIP redress procedure. The TSA

Administrator now decides whether to maintain an individual on the No Fly List

based on the recommendation of the TSC. An order to maintain an individual on

the list must state the basis for the decision, subject to national security

con-

straints.

299

Subsequently, the government informed seven of the thirteen plaintiffs

that they were not on the No Fly List. The remaining six plaintiffs—all U.S.

citizens—were provided with unclassiﬁed summaries of the reasons for their

list-

ing,

approved by the Acting TSA Administrator. Those six plaintiffs challenged

the government’s revised procedures mainly on the grounds that the criteria for

inclusion on the No Fly List are unconstitutionally vague, and that they had been

denied due process because the government failed to give them adequate notice

and a hearing. The Oregon District Court dismissed these claims, concluding that

the government’s revised procedures met the requirements that the court had

out-

lined

in its 2014 decision.

300

The Ninth Circuit afﬁrmed the ruling as applied to

the plaintiffs.

301

The post-Latif revised No Fly List redress procedure now applies

in other cases as well.

302

More recently, in Elhady v. Kable, the United States District Court for the

Eastern District of Virginia ruled that the inclusion of American citizens on the

TSDB—the main consolidated government watchlist from which other watchlists

are derived—violated their constitutional due process rights.

303

The court’s due

process analysis was similar to that of the Latif court. It found that the

administra-

tive

process for placing individuals on the TSDB “has an inherent, substantial

risk of erroneous deprivation,” and that additional procedures, similar to those

required by Latif, would reduce that risk.

304

The court asked the parties to present

arguments on the question of what additional procedures would meet constitu-

tional requirements. The implications of this ruling are broader than Latif’s. The

decision is not conﬁned to the No Fly List, and it goes to the heart of the watch-

listing system.

305

298. Id. at 1161–62.

299. See Latif v. Sessions, No. 3:10-cv-00750-BR, 2017 WL 1434648, at *3 (D. Or. Apr. 21, 2017)

(dismissing the remaining Latif plaintiffs’ substantive claims against the TSA Administrator’s order for

lack of jurisdiction under the revised post-Latif redress procedure).

300. Latif v. Lynch, No. 3:10-cv-00750-BR, 2016 WL 1239925, at *14, *17 (D. Or. Mar. 28, 2016)

(ﬁnding that procedural due process in this context does not require a live hearing and that national

security may limit disclosure of reasons).

301. Kashem v. Barr, 941 F.3d 358, 364 (9th Cir. 2019).

302. See Chelsea Creta, The No-Fly List: The New Redress Procedures, Criminal Treatment, and the

Blanket of “National Security,” 23 W

ASH. & LEE J. C.R. & SOC. JUST. 233, 256–57 (2016).

303. 391 F. Supp. 3d 562, 568 (E.D. Va. 2019).

304. Id. at 577.

305.

1108 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

See, e.g., Jeffrey Kahn, Why a Judge’s Terrorism Watchlist Ruling Is a Game Changer: What

Happens Next, J

UST SECURITY (Sept. 9, 2019), https://www.justsecurity.org/66105/elhady-kable-what-

happens-next-why-a-judges-terrorism-watchlist-ruling-is-a-game-changer/ [https://perma.cc/T3XS-

QNRR]; Shirin Sinnar, Q&A on Court Decision Invalidating Administration’s Terrorism Watchlist,

JUST SECURITY (Sept. 5, 2019), https://www.justsecurity.org/66068/shirin-sinnar-on-court-decision-

invalidating-administrations-terrorism-watchlist/ [https://perma.cc/HEF3-AFC5].

As we have seen, administrative agencies play a central role in maintaining the

various national security watchlists within a broad legal and policy framework

created by the last three presidents. The system is based on extremely broad

list-

ing

criteria and low evidentiary thresholds. It now appears to extend beyond ter-

rorism.

The multiple agencies involved are allowed a wide margin of discretion

in applying measures that deprive individuals of fundamental interests under a

veil of secrecy.

The courts, on their part, have been relatively welcoming to individuals

affected by watchlists. This is perhaps due to the scope of the watchlisting

system—which captures not only foreigners but also U.S. citizens and resi-

dents,

its restrictive implications, and extreme one-sidedness. Prior to Latif, the

government refused to even conﬁrm or deny the presence of individuals on

watchlists. Judicial review has resulted in the strengthening of procedural

safe-

guards

in the watchlisting process, bringing it closer in line with—but still far

from—the procedural standards that agencies must comply with outside the

national security context.

E. INDIVIDUALIZED CYBER COUNTERMEASURES

The individualization of U.S. foreign and security policy extends into the cyber

realm in two important ways. The ﬁrst relates to the nature of offensive cyber

action in recent years. States have deployed an arsenal of cyber warfare tools that

allow governments to attack speciﬁc organizations and individuals. Intelligence

services have long penetrated the technological systems of adversaries for

espio-

nage,

but more recent cyber warfare took a turn toward destructive action.

Moreover, the sheer scale of individuals’ exposure online and the relatively low

costs of hacking make the option of offensive cyber targeting of individuals and

organizations much more practical and accessible than it used to be.

Much is unknown about how the U.S. government has deployed offensive

cyber tools and against whom, although recent, targeted cyber action against Iran

and Russia, including planning related to direct targeting of individuals, has

raised the public proﬁle of these activities.

306

See Julian E. Barnes, U.S. Begins First Cyberoperation Against Russia Aimed at Protecting

Elections, N.Y. T

IMES (Oct. 23, 2018), https://www.nytimes.com/2018/10/23/us/politics/russian-hacking-

usa-cyber-command.html; Robert Chesney, The Legal Context for CYBERCOM’s Reported Operations

Against Iran, L

AWFARE (June 24, 2019, 4:25 PM), https://www.lawfareblog.com/legal-context-

cybercoms-reported-operations-against-iran [https://perma.cc/QW37-5KWM]; Cyber Operations Tracker,

OUNCIL ON FOREIGN REL., https://www.cfr.org/interactive/cyber-operations/search?keys=unitedþstates

[https://perma.cc/57C7-WAN8] (last visited Mar. 2, 2020); Ellen Nakashima, U.S. Cybercom

Contemplates Information Warfare to Counter Russian Interference in 2020 Election, W

ASH. POST

(Dec. 25, 2019), https://www.washingtonpost.com/national-security/us-cybercom-contemplates-

information-warfare-to-counter-russian-interference-in-the-2020-election/2019/12/25/21bb246e-20e8-

11ea-bed5-880264cc91a9_story.html#click=https://t.co/gZ7XXrgKtw (“When the Russians put

implants into an electric grid, it means they’re making a credible showing that they have the ability to

hurt you if things escalate . . . . What may be contemplated [in recent Cybercom planning against

Russia] is an individualized version of that, not unlike individually targeted economic sanctions. It’s

Other states whose technological

306.

2020] ADMINISTRATIVE NATIONAL SECURITY 1109

sending credible signals to key decision-makers that they are vulnerable if they take certain adversarial

actions.”); see also D

AVID E. SANGER, THE PERFECT WEAPON: WAR, SABOTAGE, AND FEAR IN THE

CYBER AGE (2018); David E. Sanger & William J. Broad, Trump Inherits a Secret Cyberwar Against

North Korean Missiles, N.Y. T

IMES (Mar. 4, 2017), https://www.nytimes.com/2017/03/04/world/asia/

north-korea-missile-program-sabotage.html.

capabilities pale in comparison to the United States’ have successfully engaged

in such individualized targeting. This includes North Korea’s cyberattack against

Sony in 2014, and Russia’s hacking of the Democratic Party and personal

accounts of top Democratic ofﬁcials surrounding the 2016 U.S. presidential

election.

307

The second way in which U.S. cyber policy has become individualized, which

I focus on here, is the nature of the U.S. response to recent high-proﬁle

cyberat-

tacks.

That response, at least its overt component, has consisted primarily of eco-

nomic

sanctions and criminal indictments against individual hackers and

groups.

308

John Carlin, Assistant Attorney General for National Security under President Obama,

highlighted the individualized components of U.S. cyber policy. See John P. Carlin, Assistant Att’y

Gen., U.S. Dep’t of Justice, Remarks on the National Security Cyber Threat at Harvard Law School

(Dec. 3, 2015), https://www.justice.gov/opa/speech/assistant-attorney-general-national-security-john-p-

carlin-delivers-remarks-national [https://perma.cc/7K6N-DH8Y] (“[T]he federal government has

developed a suite of tools . . . to combat online threats to national security—including criminal

prosecution, sanctions and designations and diplomacy – and we have the ability to pick the best tool or

combination of tools to get the job done . . . .”).

The sanctions prong of the U.S. response was discussed in section II.C.

The use of criminal indictments in response to cyberattacks backed by U.S.

adversaries like China, Iran, North Korea, and Russia began in 2014, under

President Obama. Multiple indictments have been ﬁled since. The practice

con-

tinued

under President Trump.

309

For example, in May 2014, the Justice Department indicted ﬁve Chinese mili-

tary

ofﬁcers by name for computer hacking, economic espionage, and other

offenses against American companies.

310

See Ellen Nakashima, Following U.S. Indictments, China Shifts Commercial Hacking

Away

from Military to Civilian Agency, W

ASH. POST (Nov. 30, 2015), https://www.washingtonpost.com/

world/national-security/following-us-indictments-chinese-military-scaled-back-hacks-on-american-

industry/2015/11/30/fcdb097a-9450-11e5-b5e4-279b4501e8a6_story.html; Press Release, U.S. Dep’t of

Justice, U.S. Charges Five Chinese Military Hackers for Cyber Espionage Against U.S. Corporations

and a Labor Organization for Commercial Advantage (May 19, 2014), https://www.justice.gov/opa/pr/

us-charges-ﬁve-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor [https://

perma.cc/H69L-GT5T].

In March 2016, the Justice Department

indicted seven Iranians for cyberattacks against forty-six companies in the U.S.

ﬁ-

nancial

sector.

311

See Press Release, U.S. Dep’t of Justice, Seven Iranians

Working for Islamic Revolutionary

Guard Corps-Afﬁliated Entities Charged for Conducting Coordinated Campaign of Cyber Attacks

Against U.S. Financial Sector (Mar. 24, 2016), https://www.justice.gov/opa/pr/seven-iranians-working-

islamic-revolutionary-guard-corps-afﬁliated-entities-charged [https://perma.cc/78VW-WRUL].

In March 2017, the United States charged Russian FSB ofﬁcers

307. See generally J

OHN P. CARLIN & GARRETT M. GRAFF, DAWN OF THE CODE WAR: AMERICA’S

BATTLE AGAINST RUSSIA, CHINA, AND THE RISING GLOBAL CYBER THREAT (2018).

308.

309. For analysis of U.S. cyber attribution practices, see Kristen E. Eichensehr, The Law & Politics

of Cyberattack Attribution, 67 UCLA L. R

EV. (forthcoming 2020) (manuscript at 10–13) (on ﬁle with

author).

310.

311.

1110 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

and coconspirators for hacking Yahoo.

312

See Press Release, U.S. Dep’t of Justice, U.S. Charges Russian FSB Ofﬁcers and Their Criminal

Conspirators for Hacking Yahoo and Millions of Email Accounts (Mar. 15, 2017), https://www.justice.

gov/opa/pr/us-charges-russian-fsb-ofﬁcers-and-their-criminal-conspirators-hacking-yahoo-and-millions

[https://perma.cc/HL9E-Q86G].

In February 2018, Special Counsel

Robert Mueller indicted thirteen Russian individuals and three Russian compa-

nies for election meddling.

313

See Press Release, U.S. Dep’t of Justice, Grand Jury Indicts Thirteen Russian Individuals and

Three Russian Companies for Scheme to Interfere in the U.S. Political System (Feb. 16, 2018), https://

www.justice.gov/opa/pr/grand-jury-indicts-thirteen-russian-individuals-and-three-russian-companies-

scheme-interfere [https://perma.cc/X7YY-W26V].

In August 2018, the Justice Department unsealed

three indictments against Ukrainian nationals for their involvement in a malware

campaign targeting over a hundred U.S. companies.

314

See Victoria Clark, Document: Justice Department Unseals the Indictments of Three Members

of International Cybercrime Group “Fin7,” L

AWFARE (Aug. 1, 2018, 2:14 PM), https://www.

lawfareblog.com/document-justice-department-unseals-indictments-three-members-international-cyber

crime-group-ﬁn7 [https://perma.cc/TL3A-P5YM].

In September 2018, the

Justice Department indicted a North Korean hacker in connection with the Global

WannaCry 2.0 ransomware attack, the Sony attack, and other malicious cyber

activities.

315

See Press Release, U.S. Dep’t of Justice, North Korean Regime-Backed Programmer Charged

with Conspiracy to Conduct Multiple Cyber Attacks and Intrusions (Sept. 6, 2018), https://www.justice.

gov/opa/pr/north-korean-regime-backed-programmer-charged-conspiracy-conduct-multiple-cyber-attacks-

and [https://perma.cc/44CN-HDBT].

In October 2018, the United States charged seven Russian GRU ofﬁ-

cers for hacking into computer networks used by sporting ofﬁcials and organiza-

tions investigating Russia’s use of chemical weapons.

316

See Press Release, U.S. Dep’t of

Justice, U.S. Charges Russian GRU Ofﬁcers with International

Hacking and Related Inﬂuence and Disinformation Operations (Oct. 4, 2018), https://www.justice.gov/

opa/pr/us-charges-russian-gru-ofﬁcers-international-hacking-and-related-inﬂuence-and [https://perma.

cc/V8VD-NJAG].

Later that month, two

Chinese intelligence ofﬁcials and several hackers were indicted for hacking pri-

vate U.S. companies in order to steal commercial and industrial information.

317

See Press Release, U.S. Dep’t of

Justice, Chinese Intelligence Ofﬁcers and Their Recruited

Hackers and Insiders Conspired to Steal Sensitive Commercial Aviation and Technological Data for

Years (Oct. 30, 2018), https://www.justice.gov/opa/pr/chinese-intelligence-ofﬁcers-and-their-recruited-

hackers-and-insiders-conspired-steal [https://perma.cc/WD39-X6R8].

December 2018, the Justice Department unsealed indictments against two China-

associated hackers for targeting companies that store and protect commercial

data.

318

See Press Release, U.S. Dep’t of

Justice, Deputy Attorney General Rod J. Rosenstein

Announces Charges Against Chinese Hackers (Dec. 20, 2018), https://www.justice.gov/opa/speech/

deputy-attorney-general-rod-j-rosenstein-announces-charges-against-chinese-hackers [https://perma.cc/

34SA-TNF4].

And in January 2019, the Department unsealed an indictment against

Chinese telecom giant Huawei and one of its senior executives, accusing the com-

pany of stealing trade secrets.

319

312.

313.

314.

315.

316.

317.

318.

319.

2020] ADMINISTRATIVE NATIONAL SECURITY 1111

See Press Release, U.S. Dep’t of

Justice, Chinese Telecommunications Conglomerate Huawei

& Huawei CFO Wanzhou Meng Charged with Financial Fraud (Jan. 28, 2019), https://www.justice.gov/

opa/pr/chinese-telecommunications-conglomerate-huawei-and-huawei-cfo-wanzhou-meng-charged-

ﬁnancial [https://perma.cc/4U2R-3692].

The Justice Department ﬁled many of these indictments knowing that the

defendants, who are often state backed, would likely never be turned over to U.S.

custody or face trial in U.S. courts. As ofﬁcials and commentators have pointed

out, the main objectives of these indictments are attribution, deterrence, and

“naming and shaming”—informing U.S. adversaries that their cyber activities are

visible to the United States, warning them against further hacking, and taxing

individual hackers.

320

Carlin, supra note 308 (“[W]hy investigate targets that we might never apprehend? . . . [O]ne,

public attribution itself can have a deterrent effect; two, public attribution charges can also have a

positive effect on victims . . . and three, investigation and attribution enables the use of other tools,

including sanctions and diplomacy.”); Garrett Hinck & Tim Maurer, What’s the Point of Charging

Foreign State-Linked Hackers?, L

AWFARE (May 24, 2019, 11:20 AM), https://www.lawfareblog.com/

whats-point-charging-foreign-state-linked-hackers [https://perma.cc/TB6A-XLAV]. But see Jack

Goldsmith & Robert D. Williams, The Failure of the United States’ Chinese-Hacking Indictment

Strategy, L

AWFARE (Dec. 28, 2018, 9:00 AM), https://www.lawfareblog.com/failure-united-states-

chinese-hacking-indictment-strategy [https://perma.cc/JR7Y-65TT].

Cyber indictments are different from the other types of individualized meas-

ures

that form the category of administrative national security. Although these

indictments are the product of an interagency process led by the Justice

Department, they are not readily distinguishable from ordinary criminal

prose-

cutions.

Courts might not even get a chance to weigh in because most defend-

ants

will likely never wind up in U.S. custody. Even if some of these cases

make it to court, they will be governed by criminal law, not administrative law.

Nevertheless, these cyber indictments are predominantly driven by foreign

policy—international signaling and deterrence—rather than traditional law

enforcement considerations. Therefore, they are a part of the individualization

trend, and administrative agencies lead their application. Although these

indictments are different from other administrative national security measures,

they belong in this category.

F. SUMMARY: ADMINISTRATIVE NATIONAL SECURITY AS ADMINISTRATIVE

ADJUDICATION

This Part explored the major sites of foreign and security individualization in

the past two decades and the emergence of administrative national security. In all

of the areas surveyed, administrative agencies operate within a broad framework

established by Congress or the President through executive orders or presidential

directives. They apply general standards or criteria within that legal and policy

framework to the facts of individual cases while exercising a signiﬁcant amount

of discretion. A bureaucratic infrastructure has developed to design and apply

individualized measures. The measures are repetitive—that is, their application

involves a series of similar administrative decisions over long periods of time.

321

Consequently, although the underlying legal architecture of administrative

national security reﬂects general policy choices about the means for addressing

320.

321. It is also worth noting that big data and algorithmic decisionmaking have become signiﬁcant in

the application of several of these individualized measures, particularly watchlisting and targeted

killings. In addition, given their similarities, these measures are interconnected in case law.

1112 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

various foreign and security challenges, its routine implementation by administra-

tive agencies resembles informal administrative adjudication—“the process of for-

mulating an agency order, typically involving the application of law to particular

facts.”

322

By “informal” adjudication I mean adjudication not governed by the

APA. Under section 554 of the APA, informal adjudication is not “required by stat-

ute to be determined on the record after opportunity for an agency hearing.”

323

The

vast majority of agency adjudication today is informal adjudication not subject to

the APA’s formal adjudication requirements,

324

and administrative national secu-

rity is no different in that respect. Administrative national security is therefore best

understood as an emerging adjudicative practice in the foreign and security space.

The Administrative Conference of the United States (ACUS) and the ABA

Section of Administrative Law and Regulatory Practice recently recommended a

tripartite categorization of adjudications: formal adjudication governed by the APA

(Type A); informal adjudication in which an evidentiary hearing is legally required

by statute, executive order, or regulation (Type B);

325

and informal adjudication not

subject to a legally required evidentiary hearing (Type C).

326

Administrative

national security straddles the line between Type B and Type C adjudications. At

one end of the spectrum there is the targeted killing informal adjudication process,

which does not involve any kind of evidentiary hearing or direct interaction with

affected parties. At the other, there are individualized OFAC economic sanctions

and the Guantanamo PRBs. As we have seen, OFAC regulations provide for post-

deprivation hearings that allow designated persons to present evidence and argu-

ments.

327

Similarly, Executive Order 13,567, which established the PRBs, required

adversarial evidentiary hearings for determining whether a detainee remains a

threat to U.S. national security.

328

At the time of writing, the watchlisting system

322. Adrian Vermeule, Conventions of Agency Independence, 113 COLUM. L. REV. 1163, 1212

(2013).

323. 5 U.S.C. § 554 (2012). “Adjudication” is deﬁned as “agency process for the formulation of an

order.” 5 U.S.C. § 551(7).

324. See Christopher J. Walker & Melissa F. Wasserman, The New World of Agency Adjudication,

107 C

ALIF. L. REV. 141, 153 (2019); see also MICHAEL ASIMOW, FEDERAL ADMINISTRATIVE

ADJUDICATION OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT (2019) (comparing and contrasting the

different types of administrative adjudications).

325. It is important to note that Type B adjudications may sometimes be more “formal” than formal

Type A adjudications in terms of the procedures to which they are subject. By “informal” here, I simply

mean adjudications not subject to the adjudication requirements of the APA. I am grateful to Michael

Asimow for this observation.

326. See Walker & Wasserman, supra note 324, at 155.

327. See 31 C.F.R. § 501.807 (2018); supra Section II.C.1.

328. Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (Mar. 7, 2011) (entitled “Periodic Review of

Individuals Detained at Guanta

namo Bay Naval Station Pursuant to the Authorization for Use of

Military Force”). Of course, even in the areas that can be classiﬁed as Type B adjudications,

administrative national security often lacks many of the hallmarks of such adjudications in the domestic

context. Based on an extensive study of Type B adjudications across government, ACUS identiﬁed

thirty-one best practices that agencies should consider implementing. See Walker & Wasserman, supra

note 324, at 165. These practices include, among others, exclusivity of the administrative record,

disqualiﬁcation mechanisms for adjudicator bias, a ban on outsider ex parte communications, separation

of functions between adjudicatory and adversarial functions within the agency, pretrial discovery, open

2020] ADMINISTRATIVE NATIONAL SECURITY 1113

was closer to the targeted killings end of the spectrum. Although “redress mecha-

nisms” such as DHS TRIP allow individuals to communicate with agencies, they

do not get any kind of hearing in advance of their inclusion in TSDB. They are able

to submit limited arguments and evidence only retrospectively through DHS TRIP

after being subjected to travel restrictions.

Administrative national security adjudication is a form of coordinated adjudication

because it involves an iterative interagency process.

329

Multiple agencies—the

Departments of State, Treasury, Defense and Homeland Security; the intelligence

community; and others—share responsibility for fact-ﬁnding, integrative case analysis,

formulation of targeting decisions, execution of these decisions, and interaction with

those targeted. These interagency processes are governed by presidential directives,

executive orders, and MOUs. In some cases, they are mandated by statute.

330

Administrative national security operates under the public radar, with limited

political and judicial oversight. Its underlying legal architecture and bureaucratic

structures transcend presidential administrations. Related measures are applied in

the context of policies that have no expiration date and could continue

indeﬁ-

nitely.

Direct presidential involvement in the conduct of administrative national

security is limited and has decreased over time. Judicial review of the outcomes

of individual administrative national security adjudications has been sparse and,

for the most part, highly deferential.

III. A

DMINISTRATIVE NATIONAL SECURITY AND THE PRESIDENT

This Part considers the implications of the emergence of administrative

national security for conceptualizing the relationship between the President and

the administrative state in the foreign and security sphere. The analysis proceeds

along two dimensions: structural and doctrinal. The structural dimension explores

how administrative national security informs our understanding of presidential

control of administrative agencies in the foreign and security domain. It also

reﬂects on how administrative national security structures the environment in

which the President wields his Article II foreign affairs and national security

powers as chief executive and commander-in-chief. The doctrinal dimension of

this analysis explores how the advent of administrative national security

hearings, use of administrative judges, evidentiary rules, and opportunity for rebuttal. See id. at 166–67.

Detention review and targeted sanctions decisions lack many of these features. See id. Due to their

extensive reliance on classiﬁed intelligence, administrative national security adjudications also present

the additional challenges of secret evidence, sources, and methods.

329. For comprehensive discussion of coordinated interagency adjudication (mostly) outside the

national security context, see Bijal Shah, Uncovering Coordinated Interagency Adjudication, 128

ARV. L. REV. 805 (2015). Under Shah’s typology, the typical form of coordinated adjudication that we

see in administrative national security is what she calls “collaborative adjudication.” Id. at 846. Note,

however, that administrative national security adjudications may not conform to Shah’s operative

deﬁnition, which is limited to adjudications before a neutral decisionmaker with binding precedent and

outcome. Id. at 826.

330. See, e.g., 8 U.S.C. § 1189(a)(1), (d)(4) (2012) (prescribing the process for FTO designations

under AEDPA).

1114 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

reinforces critiques of deeply rooted foreign relations legal doctrines, namely the

“one voice” and “sole organ” doctrines.

A. THE STRUCTURAL DIMENSION

1. Presidential Control

There are two distinct levels of presidential control of administrative national

security. One

level is the legal and policy architecture underlying this category—

the executive orders and presidential directives that provide for individualized

measures and establish the process for their application within the Executive

Branch. The other level is control of administrative adjudication of individual

cases under these authorities. Part II suggested that de facto presidential control

of administrative national security has diminished over time on both levels de-

spite

the President’s elevated role in the foreign and security realm. As a corol-

lary,

the role of administrative agencies in both contexts has expanded.

a. Control Over the Legal and Policy Framework.

Inﬂuential accounts of the relationship between the President and the

adminis-

trative

state, in particular Elena Kagan’s Presidential Administration,

331

have

331. See Kagan, supra note 7. Presidential Administration intersects with (while being distinct from)

another strand of theory of Executive power—the unitary executive theory. The theory has different

versions. At its core, it posits that the Executive is unitary in the sense that the President has the power to

direct ofﬁcers of the United States and to remove ofﬁcers who refuse to comply with his policy directions

from their positions. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12

U. P

A. J. CONST. L. 313, 315, 325–29 (2010). Stronger versions of the theory suggest that independent

Executive agencies that are not subordinate to the President are unconstitutional, and that Congress cannot

allocate Executive power to anyone other than the President. Id. at 319. For comprehensive treatments of the

unitary executive theory, see, for example, S

TEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY

EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008); Steven G. Calabresi & Kevin H.

Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 H

ARV. L. REV. 1153 (1992);

Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 C

OLUM. L. REV. 1, 2–4

(1994) (offering an originalist critique of the unitary executive “myth” but supporting a unitary executive on

structural grounds). Note the difference between Lessig and Sunstein’s articulation of the weak and strong

versions of the theory and Tushnet’s. Compare Lessig & Sunstein, supra, at 8–11, with Tushnet, supra.

My discussion focuses on how administrative national security ﬁts within the presidential administration

account as a descriptive matter and how it structures the President’s policymaking environment. I do not

address in detail the key constitutional questions associated with the unitary executive theory—the President’s

removal power, which is tied to his constitutional authority to impose his will on subordinates—and the extent

to which Congress may encroach upon his Executive powers. See, e.g., Morrison v. Olson, 487 U.S. 654

(1988); Bowsher v. Synar, 478 U.S. 714 (1986). Sufﬁce it to say that with respect to most administrative

national security measures, save for cyber indictments, the President likely has the constitutional power (and,

depending on the context, the statutory authority) to actively engage in the work of relevant administrative

agencies. On this point, see for example the statute cited infra note 370 and accompanying text. See also, e.g.,

Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis

of Recent American Experience, 35 Y

ALE J. ON REG. 549, 554 (2018) (“‘The President told me to do it’ is not

a legal reason for agency action, except in those instances (largely concerning foreign affairs) in which the

Constitution gives the President independent authority, or where Congress has statutorily delegated

administration to the President.”). Moreover, the trend in administrative national security has not been

presidential aggrandizement and assertiveness over the bureaucracy—the type of conﬂict that is at the heart of

the unitary executive theory. The trend is actually in the opposite direction.

2020] ADMINISTRATIVE NATIONAL SECURITY 1115

portrayed a President who asserts his authority over the administrative state,

aligns it with his policy priorities, takes an active role in policymaking, regulation

and implementation, and exercises ownership of agency work product by embrac-

ing it as his own. Drawing primarily on President Clinton’s style of administra-

tion, Kagan observed that “a self-conscious and central object of the White

House was to devise, direct, and/or ﬁnally announce administrative actions.”

332

Clinton and his predecessors put “in place a set of mechanisms and practices,

likely to survive into the future, that greatly enhanced presidential supervision of

agency action, thus changing the very nature of administration (and, perhaps too,

of the Presidency).”

333

According to Kagan, then, presidential administration

means presidential direction of agency action, active participation in regulation,

and ownership of agency product.

334

Notably, Kagan focuses on domestic policy.

She does not consider in detail how presidential administration applies in foreign

affairs and national security.

Scholars such as Peter Shane and Jerry Mashaw have criticized Kagan’s

nor-

mative

defense of administrative presidentialism. Nevertheless, they agreed with

her basic descriptive claim that presidents have become increasingly assertive in

controlling the administrative state.

335

Taken together, the accounts of these

scholars suggest that Presidents from Reagan to Trump have dramatically

increased presidential control of the administrative state.

336

Administrative presi-

dentialism

ﬁts within the broader literature on ever-expanding presidential

power.

337

Presidential administration cannot realistically be fully realized. Presidential

control of all aspects of the administrative state, Kagan recognized, is

impossi-

ble.

338

But administrative national security is an intriguing case study for

332. Kagan, supra note 7, at 2248.

333. Id. at 2250.

334. See id. at 2284–85. Kagan calls this “appropriation” of agency action. Id. Note that the

participation criterion as applied in this analysis adapts one of the key presidential control mechanisms

Kagan considers, namely, centralized review of proposed and ﬁnal regulations by the Ofﬁce of

Information and Regulatory Affairs (OIRA) within the Executive Ofﬁce of the President. Id. at 2286.

OIRA review does not extend to administrative national security.

335. See generally P

ETER M. SHANE, MADISON’S NIGHTMARE: HOW EXECUTIVE POWER THREATENS

AMERICAN DEMOCRACY (2009) (criticizing presidential aggrandizement); Jerry L. Mashaw & David

Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American

Experience, 35 Y

ALE J. ON REG. 549 (2018) (same).

336. Writing about case studies of administrative presidentialism in the Obama and Trump

Administrations, Mashaw and Berke assert that “the ever more prevalent use of presidential directive

authority” created a situation in which “the general public . . . now seems to assume an identity between

the President and administration.” Mashaw & Berke, supra note 331, at 576–77. On the entrenchment of

presidential control of agencies during the George W. Bush and Obama Administrations, see Kathryn A.

Watts, Controlling Presidential Control, 114 M

ICH. L. REV. 683, 692–706 (2016). For additional

normative critiques of presidential administration that accept this descriptive premise, see infra note

352.

337. For an overview of these accounts, see Daryl J. Levinson, Foreword: Looking for Power in

Public Law, 130 H

ARV. L. REV. 31, 34–35 (2016).

338. See Kagan, supra note 7, at 2250 (“Of course, presidential control did not show itself in all, or

even all important, regulation; no President (or his executive ofﬁce staff) could, and presumably none

1116 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

presidential administration because foreign and security policy is perhaps the

area most closely associated with the President. The conduct of foreign relations

and use of military force have traditionally been quintessential functions of the

Executive. Presidents have typically assumed a central, active, and visible role in

foreign and security policy. Although the precise scope of the President’s exclu-

sive Article II powers is unsettled, certain elements of such constitutional power

in this area have been ruled exclusive, with the implication that Congress may

not encroach upon their exercise.

339

Courts have interpreted congressional dele-

gations of foreign affairs authority to the President liberally.

340

The President has

been portrayed as the face of the nation and its “sole organ” in the realm of for-

eign relations.

341

Given this perception of the presidency in foreign affairs, we

would expect presidential administration of the architecture of administrative

national security—that is, the legal and policy framework that regulates related

individualized measures—to be in full throttle across all three parameters: direc-

tion, participation, and ownership.

Yet, as Part II demonstrates, the overall trend with respect to the architecture

of administrative national security has been a gradual drift away from presidential

administration. This architecture consists of executive orders and presidential

directives that delegate substantial policymaking and implementation power

from the President to the administrative state.

342

Many of these instruments,

including sanctions executive orders, the legal infrastructure of the watchlisting

system, and detainee status review mechanisms, have persisted across administra-

tions. They have become standing authorities for the application of the individu-

alized measures that they authorize.

Administrative agencies, in turn, have developed elaborate, independent mech-

anisms for designing and implementing individualized administrative national se-

curity measures. Those administrative mechanisms, too, have persisted and

would wish to, supervise so broad a swath of regulatory activity. . . . At times, indeed, presidential

administration surely seemed to Clinton and his staff . . . more an aspiration than an achievement.”).

339. See Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635–38

(1952) (Jackson, J., concurring) (noting that in Category 3, when the President acts in deﬁance of

Congress and his power is thus at its “lowest ebb,” he can prevail only if his constitutional power to act

on the matter is exclusive). The Court has held that the President’s power to recognize foreign nations is

exclusive. See Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II), 135 S. Ct. 2076, 2087 (2015); Jack

Goldsmith, Zivotofsky II as Precedent in the Executive Branch, 129 H

ARV. L. REV. 112, 114 (2015); see

also Kagan, supra note 7, at 2322 n.305 (referring to “a core set of presidential functions, probably lying

mainly in the defense and foreign policy spheres, that would prevent Congress from, say, restricting the

President’s power to remove the Secretary of Defense or State”).

340. See, e.g., Trump v. Hawaii (Travel Ban Case), 138 S. Ct. 2392, 2409 (2018); Dames & Moore v.

Regan, 453 U.S. 654, 678 (1981); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319–20

(1936); see also C

ASEY ET AL., supra note 186, at 34 n.202 (surveying lower court cases upholding

IEEPA against nondelegation challenges).

341. Curtiss-Wright, 299 U.S. at 320.

342. My focus is on the allocation of power within the Executive. But see Jon D. Michaels, The

(Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond, 97 V

L. R

EV. 801 (2011) (identifying voluntary delegations of national security authority from the Executive

to external entities, and arguing that they challenge the conventional wisdom that the Executive is power

aggrandizing).

2020] ADMINISTRATIVE NATIONAL SECURITY 1117

expanded across administrations, sometimes without active presidential reassess-

ment of their effectiveness and adverse effects on individuals. The political pres-

sure on the President to become more involved in the administration of these

mechanisms has declined over time as these measures and their supporting

bureaucracies became regularized and routine. These bureaucracies operate under

the public radar. They primarily affect foreigners with little political clout. As we

have seen, judicial oversight, which could theoretically provoke greater presiden-

tial engagement, has been limited.

Consequently, contrary to the “presidentialization of administration” that

Kagan identiﬁed in the domestic

policy context,

343

the trend in administrative

national security has been gradual depresidentialization and reduced de facto

presidential control. This depresidentialization is not unique to the current

Administration, in which instances of disconnect between the President and his

Administration abound both within and outside the foreign and security

con-

text.

344

See, e.g., Jennifer Nou, Civil Servant Disobedience, 94 C

HI.-KENT L. REV. 349, 357 (2019);

Benjamin Wittes & Susan Hennessey, Is Trump Changing the Executive Branch Forever?, F

OREIGN

POL’Y (Aug. 29, 2017, 2:40 PM), https://foreignpolicy.com/2017/08/29/is-trump-changing-the-

executive-branch-forever/ [https://perma.cc/KH69-3NH4].

Similar dynamics occurred in previous Administrations of the individuali-

zation

era as well. Administrative national security is now an area of

administrative action in which there appears to be limited presidential direction.

There is little presidential involvement in the policy process and scant presiden-

tial ownership of the measures that the bureaucracy produces. For the reasons ela-

borated in section III.A.2, the structural features of administrative national

security create inertia that perpetuates these autonomous administrative mecha-

nisms and preserves this state of affairs. To be clear, this is not intended as a cri-

tique of Kagan. My analysis builds on Kagan’s framework as a useful reference

for illustrating the trend lines in presidential control of administrative national

security.

Consider the degree

to which the components of administrative national secu-

rity discussed in Part II correspond with the presidential administration parame-

ters of direction, participation, and ownership. In the areas of individual

economic sanctions and watchlisting, there has been a decoupling of the presi-

dency and the bureaucracy. The last three Presidents have all exercised a certain

degree of direction over the application of these measures by issuing new execu-

tive orders and presidential directives.

345

But the sanctions and watchlisting pro-

grams that grew out of these directives and executive orders have taken on a life

of their own. These orders and directives often remained in place across adminis-

trations, and administrative agencies have continuously relied on them to desig-

nate individuals and entities, and to add names to the various watchlists. The

current watchlisting system is an outgrowth of Bush-Era directives and executive

orders. Similarly, a range of sanctions-related executive orders issued by

343. Kagan, supra note 7, at 2252.

344.

345. See supra Sections II.C–D.

1118 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

Presidents Bush and Obama remain in place and routinely serve as the basis for

new designations.

346

Presidential participation in the management of individual

economic sanctions and the watchlisting system after the initial issuance of

framework directives and executive orders has also been marginal. And—with

notable exceptions

347

These exceptions include President Obama and President Trump’s involvement in Iran

sanctions, and President Trump’s association with Russia-related sanctions and North Korea sanctions.

See, e.g., Donald J. Trump (@realDonaldTrump), T

WITTER (Mar. 22, 2019, 1:22 PM), https://twitter.

com/realdonaldtrump/status/1109143448634966020?lang=en [https://perma.cc/SWM4-UZGT] (“It was

announced today by the U.S. Treasury

that additional large scale Sanctions would be added to those

already existing Sanctions on North Korea. I have today ordered the withdrawal of those additional

Sanctions!”). The tweet highlights the disconnect between the application of individualized sanctions by

the Treasury Department bureaucracy and President Trump. His public rejection of these sanctions after

the fact suggests that he was not involved in the process, despite the centrality of North Korea on his

foreign policy agenda. See also Alan Rappeport, Trump Overrules Own Experts on Sanctions, in Favor

to North Korea, N.Y. T

IMES (Mar. 22, 2019), https://www.nytimes.com/2019/03/22/world/asia/north-

korea-sanctions.html

(characterizing President Trump’s decision to reverse new sanctions on North

Korea as a “remarkable display of dissension within” the Administration).

—it is difﬁcult to say that the last three Presidents became

associated with these administrative mechanisms and the measures that they pro-

duce in a manner that signals ownership.

348

The picture is more complicated with respect to targeted killings and deten-

tions,

but here, too, presidential control and engagement have declined over time.

Both Presidents Bush and Obama prioritized military detentions and clashed with

other government branches over related policies. President Bush responded to

pressure from the courts on judicial review and due process for detainees, as well

as the operation of the military commissions. President Obama faced pushback

from Congress in his efforts to close Guantanamo. Although he has not been

involved in detention policy with the same level of intensity as his predecessors,

President Trump said he would resume Guantanamo detentions and has exercised

directive authority to reverse Obama’s policy on the matter.

349

Nevertheless, over

time, the role of administrative agencies in detention policy has expanded, and

presidential engagement has diminished.

350

With regard to targeted killings, some level of presidential direction has

been preserved. Although little is known about the inner workings of the Bush

Administration’s targeted-killing decisionmaking, the last two Presidents, and

particularly President Obama, have exercised what Kagan calls directive

authority over the administrative state’s targeted-killing process. In his second

term, President Obama put in place a detailed policy guidance to govern the

use of lethal force against individuals outside areas of active hostilities.

President Trump reportedly preserved but revised this framework, ceding

con-

trol

to the administrative state. It thus appears that the intensity of presidential

346. See supra Sections II.C–D.

347.

348. See supra Sections II.C–D.

349. See Exec. Order No. 13,823, 83 Fed. Reg. 4831, 4831–32 (Jan. 30, 2018).

350. See, e.g., C

HARLIE SAVAGE, POWER WARS: INSIDE OBAMA’S POST-9/11 PRESIDENCY 308 (2015)

(“By the middle of 2010, it was clear that while closing Guanta

namo remained Obama’s stated goal, it

was fading as a priority.”).

2020] ADMINISTRATIVE NATIONAL SECURITY 1119

direction of targeted killings has gradually diminished over time and across

administrations.

Presidential participation in the targeted killing process has also declined.

President Obama was notiﬁed of each target authorized through the interagency

process, and in some cases even made the decision himself. Yet, reports suggest

that even President Obama’s personal involvement in the process decreased over

time,

351

and that toward the end of his Administration, administrative agencies

were in control of the process of selecting, preparing, vetting, and authorizing

tar-

gets,

as well as framing the exceptional cases that reached the President’s desk.

President Trump appears to have withdrawn himself from the target authorization

process entirely, reducing direct presidential participation in the process to a

min-

imum.

352

As for personal ownership, only President Obama can be said to have

exercised personal ownership of the targeted killing program. He eventually

owned up to the program in high-proﬁle addresses.

353

President Barack Obama, Remarks by the President at the National Defense University, O

BAMA

WHITE HOUSE (May 23, 2013, 2:01 PM), https://obamawhitehouse.archives.gov/the-press-ofﬁce/2013/

05/23/remarks-president-national-defense-university [https://perma.cc/4TXE-LPWZ].

But the nascent targeted-

killing

program was hidden from public view under President Bush, and

President Trump has yet to publicly associate himself with the program as

President Obama did. All three Presidents rarely announced individual strikes.

354

But see, e.g., President Barack Obama, Remarks by the President on Osama Bin Laden, O

BAMA

WHITE HOUSE (May 2, 2011, 11:35 PM), https://obamawhitehouse.archives.gov/the-press-ofﬁce/2011/

05/02/remarks-president-osama-bin-laden [https://perma.cc/N6R9-NPDD]; Press Release, The White

House, Statement from the President on the Death of Abu Bakr al-Baghdadi (Oct. 27, 2019), https://

www.whitehouse.gov/brieﬁngs-statements/statement-president-death-abu-bakr-al-baghdadi/ [https://

perma.cc/SV3U-Q5JC]; Donald J. Trump (@realDonaldTrump), T

WITTER (Jan. 6, 2019, 10:27 AM),

https://twitter.com/realdonaldtrump/status/1081935373914259458?lang=en [https://perma.cc/4AXL-

QTMU]; President Donald J. Trump, Remarks by President Trump on the Killing of Qasem Soleimani,

RUMP WHITE HOUSE (Jan. 3, 2020, 3:13 pm), https://www.whitehouse.gov/brieﬁngs-statements/

remarks-president-trump-killing-qasem-soleimani/ [https://perma.cc/3PPS-E8LR].

These examples show that although one could speak of some version of presi-

dential administration when the relevant presidential policy frameworks—

directives or executive orders—were initially issued by the last three Presidents,

the level of presidential engagement in each of these contexts has declined pre-

cipitously as these individualized administrative national security measures

became routine and gradually normalized. As a corollary, administrative agencies

have become more independent in designing and implementing measures that

now constitute a signiﬁcant component of U.S. foreign and security policy on a

plethora of strategic issues, from Russia, China, and Iran to terrorism and

cyber-

security.

Two ﬁnal notes are in order. First, the depresidentialization that has occurred

in the category of administrative national security is, of course, a reversible

pro-

cess.

It is contingent upon the identity and priorities of a given President and how

that President chooses to wield his or her power as chief executive and

351. See supra Section II.A.1.

352. See supra note 102 and accompanying text.

353.

354.

1120 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

commander-in-chief. There is nothing preventing the current President or succes-

sors, in principle, from reasserting authority over the application of individual-

ized foreign and security measures, becoming more vigorously engaged in

related decisionmaking, and even reforming or discarding the legal frameworks

and bureaucracies that administer them. However, as we will see, structural fea-

tures of administrative national security weigh signiﬁcantly in favor of the status

quo.

Second, presidential administration is not merely a descriptive account of the

relationship between the President and the administrative state. Kagan argued

that presidential direction, participation, and personal ownership of administra-

tive policymaking are normatively desirable. Such presidential engagement, she

explained, increases the effectiveness, transparency, and accountability of admin-

istrative agencies, as well as their responsiveness to the public.

355

I do not

advance a normative assessment of presidential disengagement in administrative

national security, which would exceed the scope of this Article. I note only that if

one subscribes to Kagan’s view of the virtues of presidential administration, its

decline in administrative national security should be a cause for concern.

356

In conclusion, this section explored whether the concept of presidential admin-

istration

accurately describes the relationship between the President and the

administrative state when it comes to the architecture of administrative national

security. The analysis suggests that the trend in this area, over time, has been less

de facto presidential control and greater independence for administrative

agen-

cies

to the point that the President now plays a peripheral role in the application

of the individualized measures encompassed by this category. This is the case

de-

spite

the fact that the exercise of these administrative national security measures

—targeted killings, detentions, targeted sanctions, watchlisting, security travel

bans, and cyber countermeasures—is at the core of the President’s constitutional

355. Kagan, supra note 7, at 2331–39.

356. For normative discussion of presidential administration, see, for example, Adrian Vermeule,

Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 H

ARV. L. REV.

2463 (2017). For critiques, see, for example, S

HANE, supra note 335, at 4, 153–55, 158–67 (agreeing

with Kagan’s descriptive claim that presidential control over the administrative state has increased

signiﬁcantly across administrations, while highlighting the dangers of presidentialism and criticizing its

normative underpinnings; and positing that “[t]he Clinton-era developments illustrate one of the great

dangers of presidentialism—its resistance to contraction. The usurpation of authority works as a one-

way ratchet”); Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A

Critical Look at the Practice of Presidential Control, 105 M

ICH. L. REV. 47, 61–62 (2006) (arguing that

the presidential control model and its purported beneﬁts for administrative accountability and

effectiveness rely on ﬂawed empirical assumptions that neglect the perspective of agencies); Mashaw &

Berke, supra note 331, at 612–13 (criticizing proponents of administrative presidentialism for relying on

underdeveloped normative criteria); Thomas W. Merrill, Presidential Administration and the Traditions

of Administrative Law, 115 C

OLUM. L. REV. 1953, 1977–83 (2015) (criticizing Kagan’s assumption that

the process-focused general concepts of accountability and transparency would effectively constrain

executive power); Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law,

75 G

EO. WASH. L. REV. 696, 711–14 (2007) (arguing that presidential administration weakens the legal

constraints on the Executive and undermines the role of Congress; and that the President should assume

a supervisory and coordinating role rather than displacing agency decisionmaking).

2020] ADMINISTRATIVE NATIONAL SECURITY 1121

and statutory role as chief executive and commander-in-chief. These insights

should inform future thinking about presidential administration in foreign and se-

curity policy—an aspect absent from the existing presidential administration

literature.

357

b. Control of Administrative National Security Adjudication.

Part II illustrates that, at its core, administrative national security is a form of

informal adjudication—the application

by agencies of standards and rules laid

out in statutes, executive orders, and presidential directives to individual persons

and entities. Therefore, it should come as no surprise that this aspect of

adminis-

trative

national security is not subject to active and intimate presidential control.

The relative de facto independence of administrative national security

adjudica-

tion

from presidential control dovetails with an entrenched norm and practice of

presidential insulation from agency adjudication in the domestic policy context.

Although scholars have highlighted

the tension between agency independence

in adjudication and political accountability,

358

there is an established practice of

agency independence from presidential control in domestic individual

adjudica-

tions.

359

As Adrian Vermeule observed, “[c]ommentators widely agree that presi-

dential

direction is highly constrained” in adjudication.

360

Kagan herself did not

argue for presidential administration of administrative adjudication, noting that

“[t]he only mode of administrative action from which Clinton shrank was

357. But see Samuel J. Rascoff, Presidential Intelligence, 129 HARV. L. REV. 633, 646–59 (2016)

(describing a greater presidential role in intelligence policy and oversight).

358. For a recent analysis of the independence-accountability trade-off in adjudication and its

manifestation in the Supreme Court decisions in Lucia v. SEC, 138 S. Ct. 2044 (2018) and Oil States

Energy Services v. Greene’s Energy Group, 138 S. Ct. 1365 (2018), see generally Christopher J.

Walker, Constitutional Tensions in Agency Adjudication, 104 I

OWA L. REV. 2679 (2019). For an

overview of critiques of adjudicative decisional independence, see Shah, supra note 329, at 876–78.

359. See Vermeule, supra note 322, at 1211–14; see also Daphna Renan, Presidential Norms and

Article II, 131 H

ARV. L. REV. 2187, 2252 (2018) (“[L]ongstanding understandings (derived from both

practice and statutes) insulate certain ofﬁcials, such as those exercising adjudicatory functions, from the

President . . . .”); Shah, supra note 329, at 856–57, 875–77 (calling for executive oversight of

interagency adjudications, while recognizing that “the concept of oversight in the adjudication context is

particularly charged because agency adjudicators have long been granted decisional independence as if

they were Article III judges”). But see Catherine Y. Kim & Amy Semet, An Empirical Study of Political

Control Over Immigration Adjudication, 108 G

EO. L.J. 579 (2020) (suggesting that the political

inclinations of the administration in power inﬂuence the outcomes of agency immigration

adjudications). Shah also notes that “there has been neither the suggestion of nor actual oversight of

large-scale agency adjudication by higher-level executive bodies or leaders like the OMB, the President,

or an appointed White House committee.” Shah, supra note 329, at 860.

The oft-cited legal anchors of this norm are Wiener v. United States, 357 U.S. 349, 356 (1958)

(holding that the President was precluded from interfering with the work of the War Claims Commission

due to its strictly adjudicative functions); Myers v. United States, 272 U.S. 52, 135 (1926) (noting, in

dictum, that adjudicative decisions concerning individuals may be beyond the scope of the President’s

directive control); and Portland Audubon Society v. The Endangered Species Committee, 984 F.2d 1534,

1548 (9th Cir. 1993) (restricting ex parte contacts between the President and his staff and an agency on

matters subject to formal adjudication).

360. Vermeule, supra note 322, at 1211.

1122 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

adjudication.”

361

She viewed adjudications as “fundamentally different” from

rulemaking and general policymaking due to the special objectives of fairness

and due process that they serve, which militate against presidential interfer-

ence.

362

The norm remains robust despite concerns that recent presidents have

eroded it.

363

Some scholars, such as Kagan, have grounded the norm of agency insulation

from the President in adjudication in fairness and due process.

364

Selective presi-

dential

interference in individual adjudications also compromises consistency

across cases and potentially injects political considerations into law enforcement.

Other scholars, such as Adrian Vermeule, have attributed this norm to a “network

of tacit unwritten conventions that protect the independence of even executive

agencies when engaged in adjudication.”

365

Adding to these normative factors,

there are structural reasons that make it both difﬁcult and politically unattractive

for presidents to exercise intimate control of adjudications. Adjudications require

expertise, granular processing of facts, and engagement with affected parties.

Presidents (and their staff) lack the bandwidth to micromanage adjudications of

millions of individual cases across different agencies and policy areas.

366

Furthermore, the political payoff of micromanaging adjudications is relatively

small.

367

Myriad issues compete for the President’s attention at any given time.

The President is far more likely to prioritize salient regulatory action on big-ticket

issues than routine individual adjudications that ﬂy below the public radar.

368

The normative arguments for insulating the President from administrative

adjudication in the domestic context—due process, fairness, and conventions of

agency independence—do not neatly translate to administrative national security.

First, administrative national security measures typically target aliens who lack

361. Kagan, supra note 7, at 2306. Kagan appears to be referring only to formal adjudication here

because she notes that “[a]t no time in his tenure did [Clinton] attempt publicly to exercise the powers

that a department head possesses over an agency’s on-the-record determinations.” Id. (emphasis added).

362. Id. at 2362–63 (“The consequence here is to disallow the President from disrupting or displacing

the procedural, participatory requirements associated with agency adjudication, thus preserving their

ability to serve their intended, special objectives.”).

363. See Mashaw & Berke, supra note 331, at 594–97, 606–07 (“[P]residential administration [is]

insinuating itself more and more into areas where Kagan cautioned against aggressive presidentialism,

such as prosecution/adjudication and government science . . . .”). Mashaw and Berke suggest that

President Obama pushed for more aggressive enforcement through adjudication “across agencies to

further policy goals of consumer and environmental protection, ﬁnancial regulation, and corporate

responsibility.” Id. at 595. President Trump did the same by prioritizing immigration enforcement. Id. at

574. Still, it appears that these efforts involved setting enforcement priorities at a high level—not

dictating the outcome of individual adjudications. Note that Kagan similarly described President

Clinton’s role in setting enforcement priorities. See Kagan, supra note 7, at 2306. On potential erosion

of the adjudicative independence norm, see also Shah, supra note 329, at 858 n.228.

364. See Kagan, supra note 7, at 2362–63; Vermeule, supra note 322, at 1212–13; see also Walker,

supra note 358, at 2680 (noting that “political control over agency adjudication . . . raises due process

concerns”).

365. Vermeule, supra note 322, at 1211.

366. See Kate Andrias, The President’s Enforcement Power, 88 N.Y.U. L. R

EV. 1031, 1071 (2013).

367. See id. at 1073.

368. See, e.g., id. at 1071–73.

2020] ADMINISTRATIVE NATIONAL SECURITY 1123

constitutional due process rights. Whether the United States has a legal duty

under domestic law to respect at least some elements of procedural justice when

acting against foreigners outside U.S. territory is an open question. The case law

discussed in Part II suggests that such a duty, if it exists at all, is far more limited

in scope than what due process requires in the domestic policy context.

369

Concerns about partisan enforcement through adjudication also do not translate

well in cases in which the United States targets foreigners outside U.S. territory.

Foreign and security policy is arguably inherently political and selective. Of

course, the due process and depoliticization rationales supporting presidential

insulation from adjudication in the domestic context hold when administrative

national security measures target U.S. citizens or those with substantial U.S. ties.

Second, rationales for presidential insulation grounded in conventions of

agency independence are much weaker in administrative national security

com-

pared

to run-of-the-mill domestic adjudications. The measures in this category

are based on executive orders and presidential directives that build on the

President’s independent Article II powers, as well as broad delegations of

author-

ity

from Congress to the President. For example, section 1702 of the IEEPA, the

basis for targeted sanctions, is entitled “Presidential authorities.”

370

Under

section 1182(f) of title 8 of the U.S. Code, “[w]henever the President ﬁnds that

the entry of any aliens . . . into the United States would be detrimental to [U.S.

interests], he may by proclamation . . . suspend the entry . . . or impose . . . any

restrictions.”

371

The 2001 AUMF provides that “the President is authorized to

use all necessary and appropriate force” against the perpetrators of 9/11 and their

accomplices.

372

Suggesting that Congress sought to insulate the exercise of these

measures from the President, therefore, conﬂicts with the plain statutory text.

373

Because agency authority over most administrative national security measures

ﬂows from the President, it is difﬁcult to argue that there exists a convention of

agency independence in this category.

Still, the functional reasons for presidential insulation from administrative

adjudication continue to

apply with equal force in administrative national

secu-

rity.

Like its counterparts in the domestic context, administrative national security

adjudication does not lend itself to tight presidential control after the President

initially establishes the legal and policy framework for the application of related

369. As Part II shows, when the courts intervened in favor of targeted individuals it was on

constitutional rather than APA grounds. Those who could not assert constitutional rights did not beneﬁt

from the same protection. For analysis of potential legal obligations under the APA, see discussion infra

Section IV.A.

370. 50 U.S.C. § 1702 (2012) (emphasis added).

371. 8 U.S.C. § 1182(f) (2012) (emphasis added).

372. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)

(emphasis added).

373. But see 8 U.S.C. § 1182(a)(3)(C)(i) (empowering the Secretary of State to make inadmissibility

determinations on foreign policy grounds); Pub. L. No. 112-81, § 1023, 125 Stat. 1298, 1564 (2011)

(imposing certain requirements on the Secretary of Defense with respect to the Guantanamo PRB

process).

1124 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

measures. It is much harder for presidents to exercise the kind of intimate control

over individualized decisions in this category compared to the control that they

are able to exercise over regulations that reﬂect a broader policy agenda or even

the legal and policy architecture of administrative national security itself (in

theory). Moreover, for some presidents, becoming associated with individualized

administrative national security measures—which raise signiﬁcant individual-

rights issues—could exact a political price. President Obama, for instance, was

criticized across the political spectrum for his Administration’s detention and tar-

geted killing practices.

374

As in the discussion of the legal and policy architecture underlying administra-

tive

national security, the aim here is not to offer deﬁnitive conclusions regarding

the desirable extent of presidential control of administrative national security

adjudication. That would exceed the scope of this Article. The aim here is simply

to provide descriptive and analytical foundations for future consideration of this

question.

2. Power or

Constraint?

375

The previous section considered presidential control of administrative national

security. But there is also a sense in which administrative national security “

con-

trols”

the President. The emergence of administrative national security in the past

two decades has contributed to the development of mechanisms that structure the

policy environment in which the President operates. They have come to function

as both a constraining and empowering force on the President as he wields his

constitutional power as chief executive and commander-in-chief.

There are at least two aspects to the constraining effect of administrative

national security. One element of that effect stems from the existence of the

administrative national security infrastructure. It does not limit the President’s

authority to exercise his foreign affairs and national security power in principle,

but it does channel presidential action toward individualized measures. It makes

it more difﬁcult for the President to dramatically deviate from the status quo by

signiﬁcantly ratcheting down the resort to individualized foreign and security

measures or even dismantling the administrative mechanisms that produce them.

The vast administrative national security complex and its standard operating

pro-

cedures

are self-perpetuating simply by virtue of bureaucratic inertia. They create

path dependency in U.S. foreign and security policy.

In a classic study of bureaucratic politics and process in foreign policy,

echoing common observations in organizational studies, Graham Allison and

Philip Zelikow argued that existing programs and routines—standard operating

procedures—constrain bureaucratic behavior, and that bureaucracies are

374. See, e.g., JAFFER, supra note 65, at 43; supra Section II.B.

375. This title paraphrases J

ACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE

PRESIDENCY AFTER 9/11 (2012).

2020] ADMINISTRATIVE NATIONAL SECURITY 1125

predisposed to doing more of the same.

376

ALLISON & ZELIKOW, supra note 1, at 145. For an overview of the bureaucratic process and

politics literature, see C

HRISTOPHER M. JONES, BUREAUCRATIC POLITICS AND ORGANIZATIONAL PROCESS

MODELS (2010), https://oxfordre.com/internationalstudies/view/10.1093/acrefore/9780190846626.001.

0001/acrefore-9780190846626-e-2?print=pdf [https://perma.cc/6PUC-6L4M].

They observed that “societies and their

organizations may become so dependent on a particular path toward prosperity,

the inertia and transaction costs of change becoming so high, that choices for

future development become quite constrained.”

377

Michael Glennon similarly

pointed to the bureaucracy as the main reason for the continuity in the national se-

curity policies of the Bush and Obama Administrations.

378

He attributed the

bureaucracy’s primacy over elected institutions to its expertise, relative ﬂexibil-

ity, institutional memory, and policy stability.

379

Like Allison and Zelikow,

Glennon observed that the bureaucracy’s policy options are dictated by its exist-

ing capabilities and procedures.

380

The resort to individualized measures in the foreign and security context has

become so entrenched in the past two decades that reversing course and

disman-

tling

the related bureaucratic infrastructure, should a future reconstructive

President so desire, would be costly. A policy realignment effort on this scale

would require resources and political energy. It would prompt bureaucratic

resist-

ance.

381

Although this insight does not preclude future reform, it highlights the

structural constraints on the President’s ability to effectuate it.

It also aligns with how the development of the administrative national security

bureaucracy has

played out in practice. The frequency of the application of all

related measures except detentions has increased over time and across

adminis-

trations.

To the extent that presidents weighed in, it was a one-way ratchet.

Instead of cutting back, they preserved or expanded the bureaucracy by adding

new authorities or creating new bureaucratic entities like the PRBs and the

National Vetting Center. Over time, we have seen more targeted sanctions

execu-

tive

orders, watchlisting directives, and targeted killings.

The second element

of the constraining effect is internal to the administrative

national security architecture. It is embedded within the system. It stems from the

legal and procedural safeguards introduced over time to the various mechanisms

that produce individualized measures, including court-ordered procedures. These

safeguards operate as another constraint on the President’s freedom of action. For

376.

377. A

LLISON & ZELIKOW, supra note 1, at 148–49.

378. See M

ICHAEL J. GLENNON, NATIONAL SECURITY AND DOUBLE GOVERNMENT 73, 82–83 (2014).

379. See id. at 82–83.

380. Id. at 83 (“Contingencies that might better be addressed with different capabilities are therefore

addressed with existing, available capabilities.”).

381. Cf. Adam B. Cox & Cristina M. Rodrı

guez, The President and Immigration Law Redux, 125

ALE L.J. 104, 191–92 (2015) (describing ICE resistance to President Obama’s immigration policy);

Nou, supra note 344, at 349–50; Tushnet, supra note 331, at 315–17, 326 (describing the challenges

President Reagan faced in dismantling the New Deal and Great Society bureaucratic structures and

noting that “reconstructive destruction” of existing bureaucracies becomes increasingly difﬁcult with

time). On bureaucratic resistance in national security, see generally Rebecca Ingber, Bureaucratic

Resistance and the National Security State, 104 I

OWA L. REV. 139 (2018).

1126 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

example, the procedural and legal standards that President Obama put in place to

govern targeted killings appear to have survived, at least in part, in the Trump

Administration’s revised guidance.

382

There is no public evidence that the Trump

Administration discarded sanctions or watchlisting procedural protections that

previous Administrations introduced. President Trump’s vetting NSPMs include

a redress mechanism. Of course, the semblance of procedural regularity in admin-

istrative national security also serves to normalize related measures.

Paradoxically, this aspect of the constraining effect also has an empowering func-

tion: it regularizes those measures and contributes to their entrenchment.

Administrative national security empowers the President

in other ways as well.

The existence of an infrastructure that regularly produces individualized

meas-

ures

for addressing intractable strategic problems such as terrorism, Russia,

China, and cybersecurity diversiﬁes the policy options available to the President.

It provides the assurance that something is being done on these difﬁcult issues,

while allowing the President to avoid politically, economically, and strategically

risky alternatives. In other words, it is a default option and a convenient fallback.

Furthermore, these are tools that the President can apply unilaterally based on

broad congressional delegations and his Article II powers, without further coop-

eration

from Congress. In an era of gridlock, this weighs heavily in favor of

greater reliance on administrative national security measures.

Finally, as the resort to contentious administrative national security

meas-

ures

became bureaucratized and gradually normalized, public attention and

opposition to these measures have wavered and atrophied. Although targeted

killings, detentions, and blacklisting used to be the subject of intense public

and political debate, they hardly command public attention these days. The

decline in the level of scrutiny and political opposition to these measures

allows the President to be more aggressive in applying them under the public

radar and to face less friction in doing so.

383

These restraining and empowering structural features have had—and arguably

will continue to have—a long-term effect on how presidents wield their foreign

affairs and national security power.

B. THE DOCTRINAL DIMENSION

Administrative national security has not only structural but also doctrinal

implications. By calling attention to the President’s now-peripheral role in a sig-

niﬁcant category of foreign and security measures, it challenges deeply rooted

assumptions about the President that underlie foreign relations and national secu-

rity law. One trope of foreign relations law, originating in Justice Sutherland’s

dicta in United States v. Curtiss-Wright, posits that the President has “[a] very

382. See supra Section II.A.1.

383. President Obama expressed this concern regarding targeted killings: “[Y]ou could see, over the

horizon, a situation in which, without Congress showing much interest in restraining actions . . . you end

up with a president who can carry on perpetual wars all over the world, and a lot of them covert, without

any accountability or democratic debate.” Chait, supra note 84.

2020] ADMINISTRATIVE NATIONAL SECURITY 1127

delicate, plenary and exclusive power . . . as the sole organ of the federal govern-

ment in the ﬁeld of international relations.”

384

On this view, “the President alone

has the power to speak or listen as a representative of the nation.”

385

A similar but

distinct doctrine,

386

the “one voice” doctrine, posits that the nation must “speak

. . . with one voice” in foreign affairs

387

—typically the voice of the President.

388

These doctrines equate the federal bureaucracy’s foreign and security powers and

actions with those of the President himself.

The sole organ and one voice doctrines are something of a caricature. They are

legal ﬁctions. As many have observed, the Executive is a “they,” not an “it,”

389

and scholars have excoriated both doctrines on constitutional and empirical

grounds.

390

Nevertheless, these doctrines have been inﬂuential and persistent in

foreign relations law. Judges and government lawyers have invoked them

exten-

sively

to defend assertions of presidential authority.

391

The staying power of the

doctrines demonstrates that it is still necessary to debate their merits. Studying

administrative national security contributes to this debate because it adds to the

empirical and functional aspects of the critique of the doctrines.

That critique has roughly three elements: the doctrines’ incoherence, their

con-

ﬂict

with the Constitution, and their dubious functional logic. Scholars have

argued that the sole organ and one voice doctrines are not doctrines at all, but

rather collective names for rationales applied in different doctrinal contexts.

392

384. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319–20 (1936) (emphasis added).

385. Id. at 319.

386. The sole organ doctrine is distinguishable from the one voice doctrine in that the latter

encompasses the federal government as a whole, whereas the former focuses on the President.

387. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381 (2000); see also Sarah H. Cleveland,

Crosby and the “One-Voice” Myth in U.S. Foreign Relations, 46 V

ILL. L. REV. 975, 979 (2001)

(referring to the one voice doctrine as “a familiar mantra of U.S. foreign relations jurisprudence”).

388. See David H. Moore, Beyond One Voice, 98 M

INN. L. REV. 953, 968 (2014) (noting that the one-

voice doctrine has been used to expand presidential power); see also Goldsmith, supra note 339, at 128

(“[T]he [Supreme] Court and especially the lower courts have often relied on the [Curtiss-Wright] dicta

to support a generous reading of the President’s foreign relations powers.”). Because the one voice

doctrine is typically invoked to support assertions of presidential power, I discuss the doctrines

interchangeably.

389. See, e.g., Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Y

ALE

L.J. 1032, 1036–38 (2011); Eric A. Posner, Deference to the Executive in the United States After

September 11: Congress, the Courts, and the Ofﬁce of Legal Counsel, 35 H

ARV. J.L. & PUB. POL’Y 213,

235 (2012).

390. See Louis Fisher, The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,

31 C

ONST. COMMENT. 149, 150–51 (2016); Moore, supra note 388.

391. See Moore, supra note 388, at 969–71 (noting that Curtiss-Wright’s sole organ dicta have

“deﬁed demise” and citing Harold Koh on the frequent reliance on the doctrine by government lawyers);

see also Goldsmith, supra note 339, at 128 (noting that the Curtiss-Wright sole organ dicta remain

inﬂuential despite the arguments on which they relied being “clearly wrong”).

392. See Moore, supra note 388, at 958–76. In the context of federalism, the one voice/sole organ

rationale serves to limit the power of states to engage in foreign affairs. See, e.g., Am. Ins. Ass’n v.

Garamendi, 539 U.S. 396, 413–20 (2003) (relying on the one voice doctrine to preempt a state law that

infringed upon the foreign policy of the Executive); United States v. Pink, 315 U.S. 203, 233 (1942)

(relying on the one voice doctrine in asserting that “[p]ower over external affairs is not shared by the

States; it is vested in the national government exclusively”); United States v. Belmont, 301 U.S. 324,

331 (1937) (stating that with respect to “our foreign relations,” the state “does not exist”). Another

1128 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

The constitutional critique recalls that the Constitution allocates foreign relations

power to Congress, and that Congress, states, and courts engage in uncoordinated

activities that affect foreign relations all the time. The federal government, the

critique goes, “rarely speaks with one voice in foreign relations.”

393

My focus here is the critique of the functional logic of the sole organ and one

voice doctrines. Courts have asserted that a cohesive U.S. message on the

interna-

tional

stage is necessary to avoid harmful confusion.

394

They have also empha-

sized

the institutional attributes that render the President uniquely equipped to

handle foreign affairs, such as secrecy, dispatch, and “unity of design.”

395

Although Justice Kennedy’s opinion for the Court in Zivotofsky v. Kerry

(Zivotofsky II) criticized Curtiss-Wright’s expansive language on presidential

power, it relied heavily on such functional considerations in holding that the

President’s power to recognized foreign nations is exclusive.

396

Critics of the sole

organ and one voice doctrines argue that, as Zivotofsky II illustrates, these

func-

tional

considerations have elevated the doctrines to the level of a constitutional

principle that is systematically favoring the President and capable of invalidating

legislation.

397

They question the claim that having multiple voices on foreign pol-

icy

matters is in fact harmful.

398

Studying administrative national security highlights the ﬁction inherent in the

sole organ and one voice doctrines by calling attention to the complex dynamic

between the President and the administrative state within the Executive Branch.

The functional case underlying the sole organ and one voice ﬁction is premised

on an image of the presidency that assumes a high degree of presidential control.

Recall Justice Sutherland’s invocation of unity of design, and Justice Kennedy’s

assertion in Zivotofsky II that “[b]etween the two political branches, only the

context is judicial review, where the one voice rationale underlies the political question doctrine,

allowing courts to stay their hand in foreign affairs so as not to muddy the President’s message. A third

context is separation of powers, where the one voice/sole organ rationale serves to delineate the powers

of the President relative to Congress. See Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II), 135 S.

Ct. 2076, 2086, 2094 (2015) (invoking the one voice doctrine to support the conclusion that the

President’s recognition power is exclusive).

393. Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 V

A. L. REV. 1617,

1634–59, 1688 (1997); see also Cleveland, supra note 387, at 975; Moore, supra note 388, at 1000.

394. See, e.g., Zivotofsky II, 135 S. Ct. at 2086 (“[T]he Nation must have a single policy regarding

which governments are legitimate . . . and which are not. . . . Recognition is a topic on which the Nation

must ‘speak . . . with one voice.’ That voice must be the President’s.” (citations omitted)).

395. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936), Justice

Sutherland asserted that the President, “not Congress, has the better opportunity of knowing the

conditions which prevail in foreign countries . . . . He has his conﬁdential sources of information. He has

his agents . . . .” Justice Sutherland underscored that international transactions require unity of design

and that their success “depends on secrecy and dispatch,” all being attributes of the presidency. Id. at

319 (quoting S. R

EP. NO. 24-406, at 24 (1836)).

396. Zivotofsky II, 135 S. Ct. at 2086, 2089–90; Goldsmith, supra note 339, at 114 (the Court

“revived a functional approach to exclusive presidential power that many scholars thought was dead”).

397. Zivotofsky II, 135 S. Ct. at 2123 (Scalia, J., dissenting) (the Court’s functionalism “will

systematically favor the unitary President over the plural Congress in disputes involving foreign

affairs”); see M

ICHAEL D. RAMSEY, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 8 (2007).

398. See Moore, supra note 388, at 1017–23.

2020] ADMINISTRATIVE NATIONAL SECURITY 1129

Executive has the characteristic of unity at all times.”

399

It envisions a single, co-

hesive, and deliberate presidential voice in foreign affairs and national security,

coupled with tight Presidential control over related actions of the Executive

Branch.

By contrast, the category of administrative national security illustrates that

there are signiﬁcant areas of foreign and security action in which the President

now plays a marginal role and exercises limited control, while the administrative

state has a substantial degree of independence in the targeting of individuals. In

addition, this category demonstrates that there is, in fact, more than one voice at

play in foreign affairs. As we have seen, Congress and courts alike play a role,

albeit a limited one, in administrative national security. Congress does so through

legislation that governs economic sanctions, travel restrictions stemming from

the watchlisting system, aspects of U.S. detention policy, and to a minimal

degree, the legal framework for detentions and targeted killings. The courts have

reviewed, and at times invalidated, related measures.

Administrative national security thus highlights a dimension that has not

been central in the sole organ and one voice debate to date. That debate has

focused on how the constitutional role and actions of government actors out-

side the executive—Congress, states, and the courts—in foreign affairs under-

mine those doctrines, but that debate has not focused on how the

administrative state undermines the same. Accounting for this aspect is partic-

ularly timely in light of the signiﬁcance that Zivotofsky II ascribed to functional

arguments in delineating the President’s foreign relations powers.

IV. A

DMINISTRATIVE NATIONAL SECURITY AND THE COURTS

The previous Part focused on the relationship between the administrative state

and the President. It considered the structural and doctrinal implications of

administrative national security for that relationship. This Part turns to the role of

courts. It considers how accounting for administrative national security informs

our understanding of that role.

Administrative national security offers both an explanation and a justiﬁcation

for the relatively greater involvement of courts in reviewing foreign affairs and

national security measures in the past two decades.

400

As Shirin Sinnar recently

noted,

“[i]n the last ﬁfteen years, individuals have brought hundreds of cases

challenging government counterterrorism policies or national security

prac-

tices.”

401

Andrew Kent pointed to the disappearance of “legal black holes” in the

399. Zivotofsky II, 135 S. Ct. at 2086 (emphasis added).

400. This analysis is loosely modeled on Ronald Dworkin’s concepts of ﬁt and justiﬁcation as

interpretive principles judges ought to follow. The former instructs the judge to ask whether a certain

interpretation of the law ﬁts into a coherent set of principles that deﬁne the legal system. The latter

instructs the judge to choose the interpretation that casts the legal system in the best light. See R

ONALD

DWORKIN, LAW’S EMPIRE 255–56 (1986).

401. Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 C

ALIF. L.

EV. 991, 993 (2018).

1130 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

foreign and security domain due to greater judicial willingness to decide foreign

affairs and national security cases.

402

Ganesh Sitaraman and Ingrid Wuerth identi-

ﬁed a “normalization of foreign relations law.”

403

Although Sinnar underscored

that courts have ultimately resolved few national security cases on the merits,

404

and Curtis Bradley and Stephen Vladeck questioned the claim that foreign rela-

tions law has in fact been “normalized,”

405

scholars agree that courts have

become more involved in foreign and security matters than in the past.

In what follows, I consider how the features of administrative national security

make measures in this category more likely to be reviewable under the APA. I

also argue that these features challenge some of the traditional arguments in favor

of increased judicial deference in foreign affairs and national security.

A. EXPLANATION

The common denominator of administrative national security measures is that

they target individuals directly and that they are predominantly designed and

exe-

cuted

by administrative agencies. As we have seen, the resort to these measures

has risen consistently in the past two decades, the same period in which courts

have assumed a more active role in foreign affairs and national security.

Although it is difﬁcult to prove a direct causal link, these trends are related. The

expansion of administrative national security contributes to explaining the

paral-

lel

growth in adjudicated foreign and security cases since 9/11.

Administrative national security expands the reach of courts into the foreign

and security sphere in several ways. First, individuals directly targeted by

admin-

istrative

national security measures are more likely to take legal action in the ﬁrst

place and pursue a judicial remedy than a large group of indirect victims of non-

targeted measures. Second, cases brought by targeted individuals are more likely

to satisfy constitutional standing requirements: a concrete, particularized “injury

in fact” that affects the plaintiff in a personal and individual way;

406

a causal con-

nection

between the injury and the wrongful behavior; and redressability.

407

courts have recognized, deprivation of access to assets, restriction of liberty and

402. Kent, supra note 1, at 1033.

403. See generally Sitaraman & Wuerth, supra note 1.

404. Sinnar, supra note 401, at 993; see also Cass R. Sunstein, Judging National Security Post-9/11:

An Empirical Investigation, 2008 S

UP. CT. REV. 269, 270–71 (providing data on post-9/11 U.S. national

security cases); Stephen I. Vladeck, The Demise of Merits-Based Adjudication in Post-9/11 National

Security Litigation, 64 D

RAKE L. REV. 1035, 1040 (2016) (“[T]here have been hundreds of civil lawsuits

brought over the past 14-plus years challenging some aspect of post-9/11 national security or

counterterrorism policies.”).

405. See generally Curtis A. Bradley, Foreign Relations Law and the Purported Shift Away from

“Exceptionalism,” 128 H

ARV. L. REV. F. 294 (2015); Stephen I. Vladeck, The Exceptionalism of

Foreign Relations Normalization, 128 H

ARV. L. REV. F. 322 (2015).

406. See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402 (2013) (civil society plaintiffs

lacked standing to challenge an NSA surveillance program because they could not show that their

personal communications were likely to be intercepted).

407. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

2020] ADMINISTRATIVE NATIONAL SECURITY 1131

movement, and deprivation of life all satisfy the injury in fact condition. These

injuries are also easy to trace back to government action.

Furthermore, the APA grants individuals directly affected by agency action

statutory standing

to seek judicial review. Section 702 of the APA waives the

fed-

eral

government’s sovereign immunity for claims brought by natural and legal

persons against wrongful agency action.

408

This includes aliens without substan-

tial ties to the United States—the typical targets of individualized U.S. measures.

Therefore, administrative national security expands the class of potential plain-

tiffs able to challenge foreign and security action in federal courts. Although ali-

ens abroad would typically not enjoy the protection of the U.S. Constitution

unless they had sufﬁcient U.S. ties,

409

the APA allows them to at least seek review

under the APA’s arbitrary and capricious and substantial evidence standards.

410

Third, administrative national security measures are more likely to meet a key

APA reviewability requirement—the “agency action” requirement. A

govern-

ment

measure must constitute ﬁnal agency action to be reviewable under the

APA.

411

The term “agency” is deﬁned in section 701(b) of the APA as “each

authority of the government of the United States,” with eight enumerated

excep-

tions

including Congress, the courts, and “military authority exercised in the ﬁeld

in time of war or in occupied territory.”

412

The precise meaning and scope of the term “agency action” remains unset-

tled,

413

but this much has been established: the President is not an agency and

thus the President’s actions and decisions are not reviewable under the APA.

414

408. 5 U.S.C. § 702 (2012) (“A person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial

review thereof.”).

409. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive

constitutional protections [only] when they have come within the territory of the United States and

developed substantial connections with this country.”); see also Clapper, 568 U.S. at 421 (noting that an

attorney’s “foreign client might not have a viable Fourth Amendment claim” (citing Verdugo-Urquidez,

494 U.S. at 261)); 32 Cty. Sovereignty Comm. v. U.S. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir.

2002) (concluding that foreign organizations designated as FTOs for links to the IRA lacked a sufﬁcient

presence in the United States, and could not assert constitutional due process rights); People’s

Mojahedin Org. of Iran v. U.S. Dep’t of State (PMOI I), 182 F.3d 17, 22 (D.C. Cir. 1999) (same).

410. See 5 U.S.C. § 706(2) (2012). Note that the APA also exempts military and foreign affairs

functions from its procedural requirements for rulemaking and adjudication. See, e.g., id. §§ 553(a)(1),

554(a)(4).

411. See 5 U.S.C. § 704. On the ﬁnality element, see, for example, Bennett v. Spear, 520 U.S. 154,

177–78 (1997).

412. 5 U.S.C. § 701(b). Under 5 U.S.C. § 551(13), “‘agency action’ includes the whole or a part of an

agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

413. See Adrian Vermeule, Our Schmittian Administrative Law, 122 H

ARV. L. REV. 1095, 1107–12

(2009) (“[T]he staggering variety of governmental bodies, and the extreme heterogeneity of the

circumstances in which they operate, have made it pragmatically impossible for courts to adhere strictly

to the restrictive structure of the APA’s deﬁnition of ‘agency’ . . . .”).

414. See Dalton v. Specter, 511 U.S. 462, 470–71 (1994) (ﬁnding a challenge to the implementation

of the President’s decision to close a Philadelphia naval shipyard unreviewable under the APA);

Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (holding that the APA does not apply to the

President because the President is not an agency within the meaning of the APA).

1132 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

The same applies to agency action that requires the President’s ﬁnal approval.

415

Furthermore, the challenged agency “action” must be “circumscribed” and “dis-

crete” (as opposed to general conduct or practice), and it must fall into one of the

categories listed in the APA’s deﬁnition of agency action.

416

Therefore,

Presidential involvement and difﬁculties in identifying sufﬁciently discrete

agency action to contest are among the factors that have precluded judicial review

of foreign and security measures and shielded them from judicial review under

the APA.

417

These factors are signiﬁcantly diminished, albeit still present, in administrative

national security. Consequently, administrative national security measures

have greater chances of satisfying the “agency action” requirement. Whatever the

outer limits of “agency action” may be, it is difﬁcult to think of more discrete

action than a measure that targets a speciﬁc person or entity by name, depriving

them of liberty, property, and even their lives. Moreover, as Part III illustrates,

the President is only peripherally involved in the application of many of the indi-

vidualized

measures that form this category. The President has delegated signiﬁ-

cant

policymaking and implementation power to administrative agencies that do

qualify as “agencies” under the APA. The President may be above the APA, but

most agencies that apply administrative national security measures—including

415. See Dalton, 511 U.S. at 470–71; see also Michael Simon Design, Inc. v. United States, 609 F.3d

1335, 1338–40 (Fed. Cir. 2010); Pub. Citizen v. U.S. Trade Representative, 5 F.3d 549, 551–52 (D.C.

Cir. 1993); Pub. Citizen v. Kantor, 864 F. Supp. 208, 213 (D.D.C. 1994). Note that district courts have

held that when the President delegates authority to agencies, their exercise of that authority is

unreviewable under the APA even if ﬁnal presidential approval is not required—especially when the

President delegates his inherent foreign affairs authority (as opposed to authority delegated to him from

Congress). See Nat. Res. Def. Council, Inc. v. U.S. Dep’t of State, 658 F. Supp. 2d 105, 109 (D.D.C.

2009) (denying review under the APA of State Department action pursuant to executive order and

agreeing that “a delegation of the President’s inherent constitutional authority over foreign affairs is

tantamount to an action by the President himself”); Tulare County. v. Bush, 185 F. Supp. 2d 18, 27–29

(D.D.C. 2001), aff’d, 306 F.3d 1138 (D.C. Cir. 2002) (denying APA review of National Forest Service

actions pursuant to a presidential proclamation establishing a national monument). But see Protect Our

Cmtys. Found. v. Chu, No. 12cv3062 L(BGS), 2014 WL 1289444, at *5–6 (S.D. Cal. Mar. 27, 2014)

(ﬁnding agency exercise of authority delegated by the President reviewable under the APA, and noting

that denying review would allow an agency to “theoretically shield itself from judicial review under the

APA for any action by arguing that it was ‘Presidential,’ no matter how far removed from the decision

the President actually was”); Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1157 n.3 (D. Minn. 2010)

(same).

416. ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 678–79 (6th Cir. 2007) (citing Norton v. S. Utah

Wilderness All., 542 U.S. 55, 62 (2004)) (“[T]here is no authority to support the invocation of the APA

to challenge generalized conduct.”); see also Cass R. Sunstein & Adrian Vermeule, The Law of “Not

Now”: When Agencies Defer Decisions, 103 G

EO. L.J. 157, 168–69 (2014) (“[T]he APA reaches only

discrete agency action, as opposed to broad administration of programs.”).

417. See Vermeule, supra note 413, at 1111–12 (stating that “[a] great deal of executive and

administrative action relating to wars and emergencies fails” to meet the Supreme Court’s deﬁnition of

agency action, “and thus will not be covered by the APA, even if no other exclusion applies”); see also

Galbraith & Zaring, supra note 4, at 775 (noting the “awkward ﬁt between notice-and-comment

rulemaking, with its presumption of a discrete decision-making body, and the realities of international

regulatory cooperation”).

2020] ADMINISTRATIVE NATIONAL SECURITY 1133

the Departments of Treasury, State, Homeland Security, and Defense—are

not.

418

Recognizing the administrative nature of measures once perceived as presiden-

tial decisions or military action might also affect how courts apply APA excep-

tions to the deﬁnition of “agency.” The D.C. District Court’s denial of the

government’s motion to dismiss in Zaidan, discussed in section II.A.2, is one

example. The court dropped President Trump as a defendant because the

President is not subject to the APA. But it declined to apply the military authority

exception to bar APA review of the plaintiff’s alleged designation for targeted

killing. The court construed the designation as a reviewable interagency decision

made in Washington—not an unreviewable military command on the battle-

ﬁeld.

419

Although it would be unwise to jump to conclusions based on one district

court decision in a case that was ultimately dismissed, we might see more

exam-

ples

of such granular analysis of the nature of agency action that presents itself on

the surface as exempt military or presidential action.

Finally, cases brought by individuals should be harder to dismiss under the

po-

litical

question doctrine than generalized challenges to policy. In Zivotofsky v.

Clinton, Chief Justice Roberts highlighted two factors that should govern the

application of the doctrine: whether there is a “textually demonstrable

constitu-

tional

commitment of the issue to a coordinate political department,” and whether

there are “judicially discoverable and manageable standards” for resolving the

question at issue.

420

At least with respect to the latter factor, there is, in principle,

law to apply when the issue before a court is the legality of the outcome of an

agency adjudication of an individual case, assuming that threshold standing and

reviewability requirements are met. If the individual is entitled to constitutional

protections, the applicable legal frameworks are the APA and relevant statutes,

procedural due process, and depending on the context, other constitutional provi-

sions.

If the targeted individual is an alien without substantial ties to the United

States, there remains (at least) APA arbitrary and capricious review. These

stand-

ards

are all “judicially manageable.”

421

418. But see Bismullah v. Gates, 501 F.3d 178, 182 (D.C. Cir. 2007). It is important to note, however,

that even if both prongs of the agency action requirement are satisﬁed, courts may still decline review

under the APA on other grounds. Courts have denied review in national security cases involving

measures targeting individuals based on Section 701(a) of the APA, which creates an exception to

reviewability for agency action that “is committed to agency discretion by law,” such that the reviewing

court is left with “no meaningful standard against which to judge the agency’s exercise of discretion.”

Heckler v. Chaney, 470 U.S. 821, 828, 830 (1985); see, e.g., Webster v. Doe, 486 U.S. 592, 601 (1988)

(ﬁnding that the termination of a CIA employee because of his sexual orientation was unreviewable

under the APA); Merida Delgado v. Gonzales, 428 F.3d 916, 919–20 (10th Cir. 2005) (ﬁnding that the

statutory claims of the plaintiff, who the Attorney General designated as a threat to national security and

aviation safety, were barred under the “committed to agency discretion by law” exception). As Al-

Aulaqi demonstrates, the political question doctrine has remained a vehicle for denying review in this

context. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 44, 48–49 (D.D.C. 2010).

419. See supra Section II.A.2.

420. 566 U.S. 189, 195 (2012) (citing Nixon v. United States, 506 U.S. 224, 228 (1993)). Roberts

cited only two of the “Baker factors.”

421. Id. at 209 (Sotomayor, J., concurring).

1134 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

In addition to rendering more foreign and security measures reviewable, study-

ing

administrative national security also advances our understanding of judicial

deference where it persists. Measures like economic sanctions, watchlisting,

detentions, and targeted killings are currently applied in the framework of

poli-

cies

that have no expiration date. Their application involves a series of similar

individual decisions over a long period of time. Therefore, even when courts

refrain from weighing in on the merits of an individual measure, they can signal

to policymakers what the legal red lines might be. These signals could then have

a systemic impact on future individual decisions because policymakers seek to

preserve their ability to apply the measure in question. They have an incentive to

adjust in order to avoid adverse judicial rulings that could undermine an entire

class of foreign and security tools.

422

In other words, doctrines that have facili-

tated

judicial avoidance in foreign affairs and national security operate differently

in the context of systematic application of individualized measures by

administra-

tive

agencies.

423

One example of the systemic impact of even sparse and deferential judicial

review on the application of individualized administrative national security

meas-

ures

is the addition of procedural safeguards.

424

As Part II shows, we have wit-

nessed

the entrenchment of habeas review for Guantanamo detainees and the

strengthening of administrative detainee status review mechanisms, the

strength-

ening

of procedural safeguards in imposing targeted economic sanctions, and the

addition of minimal procedural safeguards for individuals on the No Fly List.

The specter of judicial review and freedom of information litigation contributed

to the institution of procedural safeguards for targeted killings.

These reforms have

arguably been driven, at least in part, by a desire to ward

off judicial review that might jeopardize policymakers’ ability to effectively

apply individualized measures in the future or undermine multiple existing meas-

ures. The prospect of judicial review incentivizes investment in creating at least a

semblance of fairness and procedural regularity in imposing such measures. Even

judicial avoidance in the context of administrative national security could there-

fore have a subtle yet signiﬁcant impact on related government decisionmaking,

which should be considered in debates about judicial review in the foreign and se-

curity space.

422. See Jennifer Nou, Agency Self-Insulation Under Presidential Review, 126 HARV. L. REV. 1755,

1757 (2013) (“That agencies may act strategically to avoid costly reversals, . . . is hardly a surprise, nor

is it a novel insight.”).

423. Cf. Ashley S. Deeks, The Observer Effect: National Security Litigation, Executive Policy

Changes, and Judicial Deference, 82 F

ORDHAM L. REV. 827. 829–33 (2013) (identifying an “observer

effect” whereby courts inﬂuence national security executive action even while exercising deference).

424. See id. at 829 & n.3 (noting that when courts did intervene in national security cases, “they have

focused on the decisional processes that surround executive decisionmaking, rather than on the

substance of those decisions themselves”).

2020] ADMINISTRATIVE NATIONAL SECURITY 1135

B. JUSTIFICATION

Accounting for administrative national security not only contributes to explain-

ing why there is greater judicial involvement in foreign affairs and national secu-

rity. It also offers a justiﬁcation for judicial review in this category because it

challenges assumptions underlying the conventional wisdom about the role of

courts in foreign affairs and national security.

The conventional wisdom is as follows: courts should defer to the political

branches—typically, to the Executive—in cases that implicate foreign affairs and

national security. Foreign affairs and national security matters are better left to

government policymakers than courts because policymakers have the requisite

expertise, are capable of operating with dispatch and secrecy, and are politically

accountable. Courts lack democratic legitimacy to weigh in on such inherently

political matters and risk confrontation with the other branches of government if

they do.

425

In line with this approach, an array of doctrines explored in the previous sec-

tion,

including standing, the political question doctrine, and APA reviewability

doctrine, have traditionally served as vessels for curtailing the role of courts in

foreign affairs and national security. Although scholars have criticized this

foreign-affairs “exceptionalism,”

426

it continues to feature in judicial reason-

ing.

427

Part II makes clear that judicial deference in foreign affairs and national

security is alive and well.

However, now that individuals are increasingly the direct targets of foreign

policy and

national security measures, and related foreign and security

deci-

sionmaking

resembles ordinary administrative adjudication, this conventional

wisdom is undermined for a signiﬁcant category of foreign and security cases.

Once individuals are directly affected, the issues before courts transform from

abstract policy problems with a range of plausible solutions that require unique

expertise to narrowly tailored questions of administrative law and procedural

due process—the type of questions that courts decide regularly.

The power of secrecy and dispatch as arguments for increased deference in for-

eign

affairs and national security is also diminished in cases pertaining to admin-

istrative

national security. As we have seen in Part II, most individuals are able to

challenge the measures targeting them only after the fact—that is, after they had

425. For an overview, see Sinnar, supra note 401, at 997–1001 and Sitaraman & Wuerth, supra note

1, at 1900. See also E

RIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY,

IBERTY AND THE COURTS 10–19 (2007) (judicial deference in the context of emergencies).

426. See Sitaraman & Wuerth, supra note 1, at 1901; see also T

HOMAS M. FRANCK, POLITICAL

QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? 3–9 (1992);

AROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-

ONTRA AFFAIR 146–48, 218–24 (1990); Aziz Z. Huq, Against National Security Exceptionalism, 2009

UP. CT. REV. 225, 226. But see Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations

Law, 116 Y

ALE L.J. 1170, 1177, 1227–28 (2007) (arguing that courts should be more deferential to the

Executive when interpreting ambiguous foreign affairs statutes).

427. See, e.g., Trump v. Hawaii (Travel Ban Case), 138 S. Ct. 2392, 2409 (2018); see also Bradley,

supra note 405, at 298–99; Sinnar, supra note 401, at 1001–06; Vladeck, supra note 405, at 322–23.

1136 THE GEORGETOWN LAW JOURNAL [Vol. 108:1063

been sanctioned, blacklisted, detained, or shot at from a drone.

428

The measures

presumptively remain in force throughout the judicial proceedings, unless the

reviewing court grants interim injunctive relief. Interim injunctive relief was not

granted in any of the cases discussed in Part II, and courts have discretion to deny

such relief if they ﬁnd that it would harm security or undermine foreign policy.

Consequently, judicial review in administrative national security is unlikely to

impede any urgent

foreign policy or national security action. It does not require a

quick decision that courts have been said to be incapable of producing. The

uni-

verse

of evidence that the government might be required to provide and that

courts need to process is narrowed to the facts rendering a person targetable under

the relevant authorities. Concerns about divulging classiﬁed information are

miti-

gated

by the availability of ex parte, in camera consideration.

To be sure, these are all functional arguments. They do not go to the

demo-

cratic

legitimacy and accountability prong of the argument for increased judicial

deference in foreign affairs and national security. I do not suggest that they settle

the broader normative question of whether courts should review foreign affairs

and national security as a general matter. These arguments do, however, call for a

more nuanced approach to the judicial role when it comes to administrative

national security—and offer a justiﬁcation for judicial review in related cases.

ONCLUSION

This Article explored the individualization of U.S. foreign and security policy

in the past two decades and the emergence of administrative national security as a

form of administrative adjudication in the foreign and security sphere. It consid-

ered how these developments inform longstanding theoretical and doctrinal

debates about the relationship between the administrative state, the President, and

the courts. Studying administrative national security provides a new lens for

examining these relationships and offers several insights that challenge estab-

lished assumptions and narratives. For instance, it reveals that there are structural

and functional constraints on the President’s control of administrative national se-

curity despite the President’s elevated role in foreign and security policy. It also

invites a rethinking of the posture of courts in a signiﬁcant category of national

security cases from both a theoretical and APA–doctrinal perspective. This

Article by no means exhausts the discussion. It starts a conversation—to be con-

tinued in future work.

428. The cases discussed in Part II, Al-Aulaqi and Zaidan, are exceptions because in both cases,

judicial remedy was sought prior to a potential future strike.

2020] ADMINISTRATIVE NATIONAL SECURITY 1137