International Law, International Relations , Power & Security Administrative National Security

In the past two decades, the United States has applied a growing number of foreign and security measures directly targeting individuals— natural or legal persons. These individualized measures have been designed and carried out by administrative agencies. Widespread application of individual economic sanctions, security watchlists and no-fly lists, detentions, targeted killings, and action against hackers responsible for cyberattacks have all become significant currencies of U.S. foreign and security policy. Although the application of each of these measures in discrete contexts has been studied, they have yet to attract an integrated analysis. This Article examines this phenomenon with two main aims.

First, it documents what I call “administrative national security”: the growing individualization of U.S. foreign and security policy, the administrative mechanisms that have facilitated it, and the judicial response to these mechanisms. Administrative national security encompasses several types of individualized measures that agencies now apply on a routine, indefinite basis through the exercise of considerable discretion within a broad framework established by Congress or the President. It is therefore best understood as an emerging practice of administrative adjudication in the foreign and security space.

Second, this Article considers how administrative national security integrates with the presidency and the courts. 

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