What does the growing individualization of U.S. foreign and security policy mean for national security?

Elena Chachko’s award-winning scholarship is informed by her work as a former Israeli intelligence analysis officer and diplomat

Elena Chachko

Credit: Lorin Granger

By the time she arrived at Harvard Law School, S.J.D. candidate and Lecturer on Law Elena Chachko had already accumulated deep experience doing intelligence related work in her native Israel during her time in military service.

“Every 18-year-old in Israel is enlisted,” she explained in a recent Zoom interview. “There are various things you can do in the army, and one is to join the Intelligence Corps. You typically don’t know what you’re going to do when you’re assigned that kind of position because of security issues — and because you’re 18 and know nothing about the world. And sometimes you get lucky and just happen to stumble upon the thing that you’re going to do with the rest of your life. And that’s what happened to me.”

Chachko wound up serving as an intelligence agent at the Israeli Defense Intelligence Research Unit, which provides the overarching intelligence analysis for the government. “That entails a lot of what I do now in academia, which is to take a bunch of sources from different agencies and try to think about what they mean about the world, where things are going.”

“Then I moved into the Israeli foreign ministry, where I focused more on the diplomatic side of things,” she explained. “And while I was at the foreign ministry, I saw that the most successful diplomats were lawyers. The kind of work that I do [now] ties back to the interests that led me to this place to begin with — which is national security, diplomacy, international relations and also government bureaucracies and how they work. And I think that is the overarching theme of my research.”

It was, she said, “a dream” that led her to Harvard to pursue an LL.M. “I always wanted to go there, at some irrational level. And in terms of public law interest it’s one of the strongest faculties, so it’s a real privilege to learn from these people. I liked it so much that I decided to stay for the S.J.D. program.”

Her experience in the military, and learning, teaching and researching law at HLS has resulted in a unique and unexpected recognition. In December, Chachko was named the 2020 recipient of the Mike Lewis Prize for National Security Law Scholarship, which is awarded by a committee of delegates from the University of Texas Strauss Center at Austin, Ohio Northern University, and the American Association of Law Schools’ National Security Law Section. The annual award honors one outstanding national security law article on the basis of quality writing and research, originality and significance of contribution.

Her article, “Administrative National Security,” examines the United States’ increasing use of foreign and security measures directly targeting individuals — through economic sanctions, security watchlists and no-fly lists, detentions, targeted killings, and action against cyber hackers. The piece looks at the growing individualization of U.S. foreign and security policy, the administrative mechanisms that have facilitated it, and the judicial response to these instruments. It also examines how this phenomenon intersects with the role of the presidency and the courts.

Chachko said that the award came as a surprise — in fact, she still isn’t sure who nominated her. “It was surprising and super humbling, because past winners have been mentors and role models for me.” These include Professors Jennifer Daskal (American University Washington College of Law),  Kristen Eichensehr (University of Virginia School of Law), and Rebecca Ingber (Cardozo Law). “It’s kind of surreal to even be included on that list, but I’m glad the paper even got recognized, let alone being awarded the prize.”

The paper, she said, evolved out of work she’d done here. “This is something I used to tell people — Whoa, look, foreign policy is becoming increasingly individualized and that might have all kinds of implications for law and legal institutions.”

One example would be the economic sanctions that are increasing as a tool of U.S. foreign policy. “They’re imposed pursuant to all kinds of instruments, but largely a law called the International Emergency Economic Powers Act (IEEPA). This gives the president a very broad authority to impose economic sanctions, including against specific individuals, if he declares a national emergency. That authority has been used frequently in the past two decades, with thousands of individuals and entities being sanctioned.”

A notable example, Chachko said, was the Trump administration’s recent actions against TikTok and WeChat. “The administration overextended IEEPA, because you’re talking about two huge companies with a large U.S.user base.” More often, such sanctions will get leveled against terrorism suspects or nuclear proliferators, for example.

Another example she cites are criminal indictments filed during the Obama administration against Russian individuals who were involved in efforts to influence the 2016 Presidential campaign. “That’s an example of the translation of the huge geopolitical rivalry, between Russia and the United States, to measures that have names of individuals and companies on them.”

And a third involves the targeted killings of terrorism suspects. These possibly increased during the Trump administration, though it often failed to meet transparency requirements established under Obama. “The basic idea is that the United States can pursue those who are involved in terrorist plots, wherever they are in the world, including with lethal force. This has been widely criticized but it has been the practice for more than a decade.”

After graduating in June, Chachko intends to remain in academia as a law professor. She’s also working on a new research project about the role that tech platforms have assumed in national security — specifically, the role that Google, Facebook and Twitter have played in addressing terrorist threats, election disinformation, and other concerns. “These are areas that impact platforms that the government left unaddressed for various reasons in the Trump administration, like dealing with violent extremism and disinformation. What emerges is an interesting dynamic where platforms are becoming more attuned to geopolitical security issues, that we typically think of as things states do.”

There have been recent related issues, she notes, including platforms’ actions against those who incited and participated in the Jan. 6 capitol insurrection, including President Trump. “There is a dynamic of privatization and national security, both formal and informal that’s taking place. I think that’s an interesting phenomenon to pay attention to.”