Articles
By Nahal Kazemi
In 2021, the United States government identified countering corruption as a core national security interest for the first time. However, corrupt police and military forces supported by the United States in countries including Iraq, Afghanistan, and Nigeria, actively undermine security and reveal a profound weakness in the previous administration’s strategic anti-corruption priorities. Where the recipient government lacks the will to combat corruption, traditional anti-corruption tools are ineffective.
Experts on combating international corruption, from government, the academy, and civil society agree on the importance of focusing anti-corruption efforts on first, not contributing to the problem. This focus has largely resulted in proposals for increased vetting of potential private sector vendors and contractors and understanding the absorptive capacity of recipient nations for foreign assistance. These proposals have not sufficiently focused on the difference between recipient states that lack the capacity to combat corruption in the security sector and those that lack the will to do so. Successive U.S. administrations have identified the problem of lack of political will and recognized the critical threat it poses to security, but they have not adopted a comprehensive approach for addressing it. The Biden national strategy to combat global corruption did not clearly address the problem.
This Article argues for a novel approach, calling for legislation to require that the U.S. government vet potential recipients of security sector assistance (SSA)and prohibit cooperating with corrupt units. The Article establishes that the Leahy Amendments are the appropriate model from which to design such legislation. By adopting a Leahy-based approach, Congress can ensure that combating corruption does not recede as a national security priority. A vetting requirement would create clear, consistent guidelines for determining what constitutes prohibited corruption and how governments can remediate their corruption risk to make barred units eligible for assistance again. Finally, a codified process for identifying specific and limited exceptions to the prohibition in exigent circumstances would require Executive Branch agencies to clearly articulate when certain priorities require precedence over corruption concerns, instead of allowing various agencies to work at cross-purposes to each other.
How Domestic Institutions Shape the Global Tech War
By Anu Bradford, Eileen Li, & Matthew C. Waxman
The United States (U.S.), China, and the European Union (EU) are engaged in a national security-driven economic competition over advanced technology. Many scholars and commentators focus on the external dimension of this geopolitical contest; that is, they describe the strategic choices by each actor in terms of geopolitical realities, threat perceptions, and relative power. However, this Article brings to the fore the internal dimension of the global tech war. We argue that each player’s strategy in the tech war is a function of its internal features, including basic constitutional powers, domestic legal institutions, and the relationships between the government and private industry. We show how these internal features enable the United States, China, and the EU to deploy certain strategies while constraining them with respect to other strategies. Comparing key U.S., Chinese, and EU domestic features reveals important insights about their respective strengths and weaknesses in waging the global tech war, and it offers predictive insights about the tech war’s likely future.
Chinese Lawfare in Conflict: The Threat to U.S. Operations
By Crispin Smith
The United States military and intelligence communities are sounding the alarm about the escalating risk of interstate conflict with the People’s Republic of China. China is already a premier practitioner of “lawfare” in the context of interstate competition, but the impact of Chinese lawfare in potential active conflict scenarios could be even more profound. Indeed, Chinese lawfare could set the conditions for U.S. or allied forces’ defeat before a single shot is fired.
This paper introduces the concept of “operational lawfare” as the application of lawfare during interstate armed conflict. This application contrasts with how China already deploys its lawfare in the context of great power competition. The paper explains how, in a conflict scenario, Chinese operational lawfare will likely pose a significant, real-world threat to U.S. and allied military operations, vastly different from the lawfare U.S. warfighters have experienced previously. The paper also addresses an urgent need for appropriate planning and specialist personnel capable of meeting the operational lawfare threat, as well as a need for a formal defensive strategy to prepare for and contest hostile lawfare. This strategy must balance the need to defend against operational lawfare without playing into the hands of Chinese propagandists who seek to discredit legitimate U.S. efforts to enforce and encourage commitment to the rule of law.
By Jonathan Lusthaus
Over recent decades, cybercrime has morphed from a curiosity into a serious global challenge. In many cases, the stereotype of the nerdy hacker in their parent’s basement has been superseded by a highly professional, specialised, and multi-faceted industry, made up of coders, entrepreneurs, managers, street criminals, and their protectors. This evolution of cybercrime presents a striking paradox, which has largely escaped notice: how did cybercriminals achieve industrialisation on such a scale, when they operate in an environment characterised by intense levels of distrust? One would expect legal scholarship to have identified this puzzle and resolved it. After all, the concept of private ordering has been a powerful and influential subfield for a number of decades; to build an industry like cybercrime would, no doubt, require order. But the literature on private ordering has been focused on informal, but licit, economic activities, and is yet to intersect with the important case of cybercrime. The cybercrime industry is an intriguing example of the private ordering of the dark side. This article aims to bring clear focus, as well as theoretical and empirical rigor, to the question of how cybercriminals govern themselves. It draws on three main sources of data: 1) fieldwork carried out over a 7-year period in 20 countries, which involved semi-structured interviews with almost 250 law enforcement agents, security professionals, and former cybercriminals; 2) indictments and other legal documents; 3) archives of major cybercriminal forums.