Lawfare Daily: Frictionless Government and Foreign Relations, with Ashley Deeks and Kristen Eichensehr

[Intro]

Ashley Deeks: Is part of the problem locking in the policy at the time that you're locking it in? That is, you know, for those historical examples, the very short aftermath of the armed conflict. And I think the answer is yes, I do think that's part of the problem that we're concerned about.

Scott R. Anderson: It's the Lawfare Podcast. I'm Senior Editor Scott R. Anderson with Ashley Deeks and Kristen Eichensehr, both professors at the University of Virginia School of Law.

Kristen Eichensehr: So we're not saying that frictionlessness is the only way policy goes bad in foreign relations or national security, that's definitely not the case. But we're saying even in cases where we think this is legally simple, there's still problematic consequences that can flow from it.

Scott R. Anderson: Today, we're talking about their new article on the risks of frictionless government in foreign relations.

[Main Podcast]

So we are here to discuss a very interesting article on a topic that is, I think, on a lot of people's minds as we approach this next Congress in January, where we're getting a new presidential administration, although maybe not in the same way people are thinking. You know, we're entering into this era of single-party government where both houses of Congress and the White House are gonna be controlled by the same party.

Not an unknown phenomenon, something we had just two cycles ago, one, one Congress ago on the other side, with the Democrats. Now it's gonna be with the Republicans.

But it always introduced this idea about, you know, what happens when there's too much alignment or a particular alignment between the institutions of government, taking away some of the frictions that has, which is a double edged sword that has good and bad parts of it, that informs policymaking and particularly interbranch policymaking.

But here you guys are writing about frictionless government, the scenario that some people are worried about. But you're writing it about it in a little different context, not just partisan frictionless government, but those sorts of scenarios where we see broad consensus, times when are often hearkened to a moments of kind of national unity that are often seen as a good thing, that you all are kind of problematizing, to some extent, in a really interesting way, just kind of pointing out that even those moments of big national unity that we get after national crises can be double edged swords, that are worth thinking about both edges of, when we tackle them or if we approach them.

So let me start with that, when you guys talk about frictionless government, the focus of your piece in relation to foreign relations, foreign policy specifically, that you're dealing with it here, you're not just talking about partisan control, although that certainly might be a major contributor to it.

What do you think about in frictionless government? What are the defining characteristics of this phase, this phenomenon that you're tackling that distinguish it from other particular moments, and make it one that presents sort of unique opportunities and unique challenges? Ashley, I'll start with you on that.

Ashley Deeks: Great, thanks, and thanks for having us. So, I think you're absolutely right that we are, I think, particularly interested right now in the fact that we are, it looks like heading towards a government that is going to be quite unified. Kristen and I actually started writing this paper, at a point in which that wasn't the case.

We are interested in these situations in which you have both houses of Congress simultaneously evidencing really strong support for a policy, and where you have both Democrats and Republicans simultaneously evidencing strong support for that policy, and you have the president and his administration evidencing very strong support for the policy.

So, we thought it was a little bit counterintuitive, actually, to focus on a time at which you have a divided Congress, and yet everybody's pulling in the same direction. And we actually, we came to the topic in part, we were starting to do work to prep for a class that we were going to teach together, and we started noticing the many, many examples of what was happening with regard to China policy, especially the economic tools of national security, and noticing that everybody was pulling in the same direction.

So that was how we started to come around to this idea of a frictionless government and where you have so much activity pulling in a direction, a very shared sense of the threat. And thinking about what some of the costs were there as well as some of the potential benefits.

Scott R. Anderson: So the benefits, I think we can kind of guess, right?

Your case studies, your kind of defining historical examples of this are the outside of World War II, kind of after Pearl Harbor, after the Gulf of Tonkin attack and the outside of the Vietnam War, and after 9/11. So we know the sorts of moments we're talking about. And, you know, as I mentioned in my introductory remarks, they're national unity moments or moments where people feel like there's a lot of agreement on what needs to get done.

But let's talk about the risks and the downsides of that cause that's where I do think there's a very valuable red teaming exercise. So, ironic giving some of your prescriptions of the piece, but a red teaming exercise happening here about these sorts of moments. Kristen, talk to us about that. What are the risks, the downside risks of those moments that make them potentially dangerous in your mind?

Kristen Eichensehr: Well, Scott, thanks for having us. So, as Ashley explained, fundamentally, what we see in frictionless government is the disappearance of a whole bunch of different kinds of checks and balances. So we see the inner branch checks disappear, the idea of Congress checking the president, vice versa, that's sort of separation of powers 101, and it just doesn't operate. You get Congress pushing the president to do more, but not reigning in the executive branch.

You also see the breakdown of what scholars have called the internal separation of powers. So, disagreements within and among executive branch agencies and people within them. And then you also see partisan agreements. So you don't have what some scholars have called the separation of parties, either. Everybody as Ashley actually said is rowing in the same direction.

So what's the problem with that? We're not just interested in the existence of these checks for, you know, the sake of having checks is that we think that the disappearance of these checks results in qualitatively worse decision making. So it can lead to cognitive biases like optimism bias or overconfidence bias, and it can make the whole decision making apparatus more susceptible to groupthink. So you see sort of extreme concurrent seeking and as a result, these worst decisions that don't take into account how these policies can go wrong.

And so, we talk in particular, about three, kind of, main categories of harms that we see recur in frictionless government situations. So, the first is policies adopted in these situations that actually spark or escalate conflict. The second is that the policies trigger actions by U.S. adversaries that are actually directly counterproductive to whatever security goals the United States is trying to achieve.

And then the third is unlawful targeting of people in the United States who are perceived to be linked to these foreign adversaries, that spark the moment of frictionlessness to begin with. So we, you know, we talk about those, we derive those kind of from our historical case studies and then look for them in more recent ones as well.

Scott R. Anderson: So let's, let’s put some meat on the bones for folks who haven't had the privilege of the opportunity to read through the article yet in terms of the historical examples. Can you give us an example from your kind of three main case studies of each of these just so people can kind of get in mind what you're talking about?

Ashley Deeks: Sure I'm happy to offer up a little bit of the detail on the three cases that we tee up. So the first is Japanese American internment. And so we went back and we looked at how quickly the executive and Congress act to immediately in the wake of the Pearl Harbor attacks, recognize that we are gonna head to war, and then very quickly start to focus on the alleged threat that Japanese nationals and Japanese Americans start to pose.

And so we see very quick action by the executive, very quick action by Congress. The president comes out with an executive order that is basically the basis for bringing Japanese Americans into camps. And then Congress jumps on and decides to criminalize violations of those orders. So in a very short order with very high levels of unanimity and bipartisan support, you start to see this policy come forward.

And it lasts for quite a while. It ultimately gets challenged in court by some of the individuals who were affected. And over time, I think even the executive itself realizes that it's a potentially problematic policy and it ultimately unwinds. But for the time that it is in existence, it's obviously very, very harmful to civil liberties.

The second case that we look at is the Gulf of Tonkin episode and the Gulf of Tonkin Resolution as another example where there was just extraordinary unity, very bold statements by members of the House and Senate in support of what the president wanted to do. And obviously the executive was more than happy to receive that kind of support. And we look a little bit about how long that support lasts, and it extends for quite some time. It's actually a number of years before you even start to see public protests over a war that, in retrospect, even the architects thought was very, very flawed.

And then the third case that we look at is the post-9/11 authorization for use of military force, where, as many of the listeners probably know, there was, again, very strong support within Congress for the AUMF that the president drafted there, for some minor modifications of the draft that the executive sends to Congress, but very strong support for that as well.

That's a slightly different case, in part, because a lot of what happens as a result of that authorization is done in secret. So it's hard to say that all of those activities are frictionless because it's not clear that Congress is explicitly supporting those activities sort of detention, secret sites and so on, so it's hard to know what level of support they would have achieved. But those were the three examples that we thought were clear very clear examples of frictionless government, and ones that we wanted to tee up as our historical examples.

Scott R. Anderson: So there's like a unifying theme to these three. It's not surprising because you think of frictionless government often as a reaction to crises. And the theme that's particularly distinct in the Vietnam and 9/11 examples, but also a little bit in the World War II example, is that the moment of unity you actually point to, as an example, is a war authorization.

It is nearly unanimous in all three cases, overwhelming congressional support for the declaration of war on Japan after Pearl Harbor, for the Gulf of Tonkin Resolution after that incident, and after the 9/11 Resolution after 9/11 attacks. It was the 2001 AUMF, I should say.

So one question I had in reading, that was really interesting, is that, to what extent is this actually the question of overreach, a concern about when we engage in relevant policymaking, because obviously a lot of policies became very, it got a lot of friction later, not too far down the process, both in Vietnam and in the 9/11 case. Again, detention is a little bit different that wasn't as rooted directly in the war authorization. There was supplemental authorities there, although it certainly had a relationship.

But for both of those, you know, it really was the fact that there are these moments where in these national unity moments, you enacted legislation. And in both cases that got used in ways that Congress didn't really anticipate. Is that a unique moment where it's, is that, tell us something about locking in those moments of unity that's a concern?

That's maybe not entirely unique to war authorization, but war authorizations are maybe like a historical example of them? That is a unique sort of phenomenon that's unique in the national security context? Or is there something more about these that makes them, makes the phenomena apply in context other than just war authorizations? Kristen, I'll turn to you on that.

Kristen Eichensehr: So I think it is a phenomenon that applies more broadly than war authorizations. But at the same time, we do think it is more likely, frictionlessness is more likely to occur in situations where the United States is facing an external adversary and potentially in kind of an acute way. So, when you, this is political science, people talk about the rally around the flag effect. That's certainly the case when there's actually a direct attack on the United States. You see the sort of quieting of internal divisions and unification vis-a-vis an external adversary.

But what is interesting, I think, about the Russia and potentially the China examples that we focus on as our sort of modern case studies is that obviously those countries have not attacked the United States, right? We are not in a hot conflict with either one of them. Russia is in a hot conflict, in that invasion of, full scale invasion of Ukraine is what sparked the moment of frictionlessness in the United States, but it is different from the historical case studies.

So we think that the frictionlessness can be sparked in moments outside of a war authorization context, but it is much more likely when there is a perception of an external adversary of some kind.

Now the China case is obviously the most removed from that. The United States is both trying to avoid a hot war with China, and also take steps necessary to prevail in a conflict, maybe over Taiwan, if that comes to pass.

Ashley Deeks: But Scott, I'll just add, I mean, I think your question's an interesting one, as when you frame it as: is part of the problem locking in the policy at the time that you're locking it in, that is, you know.

Scott R. Anderson: Yeah, exactly. A path dependency.

Ashley Deeks: For those historical examples, the very short aftermath of the armed conflict. And I think the answer is yes, I do think that's part of the problem that we're concerned about. And maybe when we get to the talk a little bit about what some of our solutions are, one of them is, for example, thinking about off-ramps, policy off-ramps, and sunset clauses. And so that might be one way to guard against a concern that you haven't gotten the policy quite right in this moment of extreme frictionlessness.

Scott R. Anderson: So, you know, on a similar vein, and this may relate to that same question the more I think about it, but it's the other thing that jumped out at me about these case studies, and particularly the 9/11 and Vietnam ones again, maybe because those are the ones I'm most familiar with as a reader.

What's interesting about them is that some of the most controversial activities and policies the executive branch pursue, that are most problematic along a lot of the lines, the kind of three branches that you guys identify, actually came during the period where there was more friction, in my mind, or came in context where there wasn't the kind of interbranch exposure to debate that you would expect a non-frictionless, a frictionful environment to be able to serve as a check on.

So, you know, in the Vietnam context, right? Like, we saw some of the most controversial expansions of the war happen under the Nixon administration, and a lot of cases after 1970, 1971, when the Gulf of Tonkin resolution was withdrawn. You know, stuff, certainly many controversial things happened before then, but a lot of these actions were pursued increasingly on the executive branch's own authority after facing opposition from Congress. And they kind of leaned into different diverse statutory arguments that were no longer the Gulf of Tonkin resolution, but also increasingly like presidential inherent authority.

In the 9/11 case, of course, you know, a lot of the most controversial things, the executive branch and the president at least initially didn't rely on the 2001 AUMF. They said the president has the inherent authority to do a lot of that. That changed under pressure from litigation, but a lot of the initial OLC opinions took that view. And a lot of these positions and policies they advanced didn't hinge on any congressional approval, explicitly.

And it's particularly notable because they were like these emerging executive branch legal viewpoints, from a period where there was a very conscious effort to keep that decision making in a very small circle. There's a classic war council headed by David Addington out of the vice president's office with John Yoo, and just a handful of other people from the executive branch authoring these legal opinions, outside the usual governmental channels. So, basically, consciously averting and avoiding friction because they're too worried about it, right?

So, I guess, in my mind, is this an exogenous or an endogenous condition? Is this something that is an external set of conditions that trigger this reaction, or is this a reaction the executive branch may put itself into in avoiding friction that can lead to a lot of the same outcomes?

Kristen Eichensehr: Let's go back, maybe, to our point about how this we think this paper is a little bit counterintuitive because you're absolutely right that there are lots of ways that policymaking can go wrong, and I think some of the examples you're pointing to there, are ways that we're familiar with policymaking going wrong, right?

When the executive branch, when you've got sort of executive branch unilateralism, the executive acting without congressional authorization there are lots of reasons to worry about that and we do worry about that.

What we're really focused on is the examples where we are in, you know, to put it in lawyer speak, we're in Youngstown category one, right? This is examples where the president is acting pursuant to express, the express or implied will of Congress. He's got statutory authorization. This is the sort of pinnacle, most likely to be legal under the constitutional structure actions. And yet, in that circumstance, we still see these problems resolve.

So, I think what we're really pushing back against is to say, like, don't be complacent just because as a legal matter, this is easy. The president clearly has delegated authority from Congress to do whatever he's doing. It's in those cases where you don't have any kind of pushback, it can still go badly. So, we're not saying that frictionlessness is the only way policy goes bad in foreign relations or national security, that's definitely not the case. But we're saying even in cases where we think this is legally simple, there's still problematic consequences that can flow from it.

Ashley Deeks: I agree with that. And I, right, I think I would say having friction doesn't guarantee good policy, and we can find lots of examples of that over time.

The other through line that I see between the two examples, Scott, that you raised: the post-9/11 war council and the, to some extent, the Nixon/Vietnam activities, is that they were done in secret and secrecy in general, I think, can exacerbate the frictionlessness, whether that secrecy deliberately sought out by the executive or just a function of generic classification. But secrecy, I think, is something to keep an eye on when you're thinking about whether something is running into frictionlessness as well,

Scott R. Anderson: So let's shift and focus to some of the contemporary examples you all illustrate because you really tie this phenomena to two of, maybe two of the three big global policy debates the Biden administration's been wrestling with Ukraine slash Russia, and China. Gaza, the Middle East fell out, I think that's probably for the better. And we don't need to pull that into this paper. I'm not sure if it fits.

But those two are really interesting case studies because you point to both as being examples of frictionlessness to some extent, to in a way that I think is really, is kind of interesting.

So let's start with Ukraine. Ashley, maybe I’ll start with you on this one? Talk to us a little about why you think Ukraine is an example of frictionlessness and the good and bad aspects coming out of it, because you actually point to Ukraine being an example, perhaps, of good frictionlessness, or at least frictionlessness that was not harmful, even if it did not actually contribute positively to a set of policies.

Ashley Deeks: Yeah, I mean, on Russia/Ukraine, I would say, you know, we're, we just kind of dove down into the facts and looked at the whole range of actions that the Biden administration immediately undertook, including using existing authorities like IEEPA, the many moves that Congress made to support those kinds of activities, urging the president, in that case, actually to do more, faster, than the executive branch itself seemed inclined to do.

Lots of comments coming out of members of Congress saying, you know, it's hard to imagine unifying Congress these days, and Putin has basically done that. So we thought it was a salient example, modern example. And we wanted to use it in part to say, we weren't arguing that frictionlessness always produces bad policy.

I mean, it's hard to tell in the middle of an event or an episode how it's all going to look in hindsight, but from what we can tell to date, we haven't, as a country, fallen into the three, kind of, buckets of problems that we tend to identify as being associated with frictionlessness, in that we haven't ended up in a direct conflict with Russia. And we also haven't seen sort of civil liberties concerns arise with regard to treatment of people of Russian descent in the U.S., for example.

And so we just wanted to use it as an example, but I think factually it seemed very frictionlessness, although that, of course, has slowed down, right? That has come apart as members of Congress are less interested in funding Ukraine to the huge amount that they initially were willing to do.

Scott R. Anderson: Well, and that leads to kind of my question about this is that when people think about Ukraine policy, particularly over the last year, I think they think of it as a very frictionful environment, right? You know, we saw this eight-month delay in assistance, an assistance package that foundationally actually didn't change that much from what the Biden administration initially requested. And it was held up, predominantly, for reasons that didn't really relate to the strategy itself.

So I guess, is this just an example of friction not always being good either? Or is there a lesson from here about, do you see more beneficial aspects of that friction, better things came out of it? Because it's an example where I think a lot of people who are at least from a Ukraine policy perspective, see it as a net loss pretty solidly. But I wasn't sure if maybe there was a more of a silver lining there that you all see because of the fact that we did have a month-long debate over it, alongside a lot of other issues.

Kristen Eichensehr: So I think there are two other interesting points about reasons that we talk about the Russia case study. So Ashley mentioned, you know, it's an example where we don't think frictionlessness produced bad policy, but it's also interesting for two other reasons.

One is that it provides us a fairly contemporary example of when frictionlessness ends. So there's a big difference between the early months right after Russia's full-scale invasion in February of 2022, where you see these overwhelming Congressional votes, nearly unanimous votes, sometimes actually unanimous votes, but you see the gradual reemergence of significant friction in the policymaking process.

So we go from a situation where Congress is volunteering additional aid to Ukraine above and beyond what the executive branch seeks. That's unusual and interesting to, as you just said to, you know, extreme delays in providing additional aid to Ukraine by a few months later. So it's an interesting case study because it shows the, an example of watching frictionlessness fade away and friction resume in the process.

The other reason I think it's interesting is because, to the extent that there was friction for that early period, what you actually see is the executive branch, to a certain extent, resisting Congress. So, there were members of Congress who were pushing for different kinds, additional kinds of military aid to Ukraine. Or designating Russia a state sponsor of terror, and you see the executive branch sort of backing away and saying no, no, we really don't want to do that.

And so that's not what we normally think about in terms of the president and Congress. The normal model is Congress is checking the president, whereas, in that circumstance, you saw the executive branch sort of check itself. It could have had greater authorities and it held itself back. So when we talk a little bit later about some of our prescriptions, I think it's worth keeping that in mind that there are circumstances in which the executive branch is willing to check itself.

Scott R. Anderson: That's a really interesting counterpoint with the China case studies you guys get, which, I think it's fair to say, you come off more, more concerned about the impacts of frictionless government there, which is particularly interesting because it's the same administration and a lot of the same questions, really, because economic statecraft toolkit, which I use broadly to say sanctions, export controls, this variety of other tools, all that sort of spectrum, really are the key weapons for a lot of these United States is deploying, not entirely arms sales being the other big one in the Ukraine context, but, nonetheless, dominant role in both.

Kristen, tell us a little bit about what you guys see in the China context that you find concerning. And I'll say, I thought this was a really illuminating part of the paper. I encourage anyone trying to get a grasp of what the United States has been doing in regard to China for the last two or three years, I think it's one of the better summaries I've read, which is incredibly useful, especially when you have footnotes to the relevant authorities if you're a law nerd about this stuff. So I'll recommend on that grounds, but you came away much more concerned there than the Russia context. Why is that?

Kristen Eichensehr: Well, thank you for that endorsement. We also hope it's a useful resource for folks.

With the enormous upfront caveat that I think we are more concerned and more cautious with respect to the China example, partially because it is still unfolding. And this is the question mark in the paper. You know, we have at least some benefit of hindsight on the early period of frictionlessness with respect to Russia. We are still deep in frictionlessness with respect to China. And why are we concerned about that?

I mean, we're seeing elements of frictionlessness here. So, you see numerous instances where you know you've got Congress pushing the executive to do more, to do more faster, to do more with existing authorities. Congress passing by bipartisan, overwhelming margins, new authorities for the executive branch, even in some circumstances, you know, instances where the executive branch has sort of gone part of the way toward doing something, and then Congress pushes it to go further and codifies that, TikTok is a big example there.

So there are lots of reasons to think like this, this looks like frictionlessness. And once you see that, you know, knowing what we know from the historical case studies, there's a high proclivity for frictionless situations to lock in policies that turn out to be misguided. And we think, you know, that happens because there's so much agreement. You don't get natural disagreement. You don't get pressure testing. You don't get red teaming. So we talk about ways that we think that it's necessary to, kind of, deliberately introduce those into the process.

We're not saying that China policy is necessarily going to result in the problematic effects that we see from other frictionlessness context. So sparking conflict, producing counterproductive reactions by U.S. adversaries, or targeting of people domestically. But there are reasons to think that, you know, we're seeing elements of that, right? We've seen an increase in targeting of Asian Americans for harassment, including, you know, targeting by, legal targeting by, certain state laws in particular that have singled out people of Chinese origin for special treatment.

In terms of seeing counterproductive actions by U.S. adversaries, I think export controls raise this concern pretty directly. So the U.S. has, over the course of the last two years, progressively tightened export controls on semiconductors, advanced semiconductors flowing to China. We've seen China react to that, including just this week with imposing its own export controls on rare earths that are crucial supplies for the U.S.

Ashley Deeks: Yeah, and today also, I think China's reacted with sanctions on U.S. companies in retaliation for, for our moves. Now, the actual impact of those sanctions, I think, is quite limited because U.S. companies are not doing a lot of business in China, the ones that have been sanctioned. But I think that's representative of the kinds of moves that we're increasingly seeing and should increasingly expect.

Scott R. Anderson: So, let's turn to some of the prescriptions, then. I think this is actually the most useful and interesting part of the paper from a kind of policymaker perspective. You know, you're thinking about how are we going to try and improve decision making in these sorts of environments?

And you guys break them down into kind of internal and external factors, internal being steps government policymakers can take on their own, to implement or, you know, Congress might be able to help with, design some cases, and external being things external actors can do.

Ashley, let me turn to you first on the internal components. What are the big strategies you all see as ways to counteract the risks of frictionless government, the concern about groupthink and cognitive biases? What are the institutional steps, and other steps, that government policy makers can take to curb those risks?

Ashley Deeks: Sure. So we basically bucket into three possible ways to introduce friction. One is forced dissent. The second is mandated reason giving. And the third is policy off-ramps. So I'll say a little bit about how the executive might do a few of those. In some cases, Congress may be the better actor to address those buckets.

On the executive branch, we know that the executive has set up certain relatively time-consuming processes for itself in highly salient national security areas, because it thinks that those kinds of processes, which come along with friction, which introduce friction into the decision-making will actually produce better decisions.

So, I have in mind, there are things that journalists have reported on regarding targeted killing policies, that involve the interagency, policies related to offensive cyber operations. So those are all relatively detailed, careful interagency processes that the executive puts itself through when there are high stakes decisions to be made.

Another example we think about is the dissent channel that the State Department has originated and has had in place for a while, where the idea is that it's an avenue by which somebody who's relatively far down in the bureaucracy can send a message all the way up to the top, the seventh floor of the State Department, with a strong policy disagreement and not suffer career ramifications for doing that. And so, we think about how maybe other agencies could develop some similar channels, and to the extent that they did, basically reporting these dissent channel messages to the National Security Council. So the White House would be tracking these concerns about the policies that we're talking about.

Things like forced interagency reason giving, that sometimes naturally happens, especially if you're talking about interagency lawyers groups, where lawyers like to force each other to give reasons. But we see examples of that, for example, with the state secrets policy that the Obama and Biden administrations had set up.

Finally, making sure that there is appropriate redteaming of policy. There we know that the Defense Department, the CIA, do at times use those kinds of redteaming tools. So we urge the use of those where it seems like we're confronting otherwise frictionlessness policymaking. So, that was some ideas we had with regard to the executive.

Scott R. Anderson: And out of curiosity, how many of those are things that Congress can plausibly play a role in and which ones are ones that are inherent to the executive branch? Because this does raise kind of a separation of powers questions, for some of these at least. Is there a limit to how far Congress can plausibly push the executive branch to do this?

Because two factors jump out at me. I mean, one, Congress is prolific with reporting requirements, like all over the place, many of which are routinely exempt, disregarded by the executive branch on timing, if not absolute altogether. I made an effort when I first started, out of government here at Brookings, and at Lawfare to track all the reports that from the NDAA that were never delivered. And it was too exhausting. I couldn't document all of them, because so many of them never showed up in the year that I was trying to track for them.

So, there's some limits, practical limits there. And then there's also just limits to potentially constitutional limits, I guess, on how much Congress can really try and force types of executive branch consideration and decision-making. Is there more that Congress can do that it isn't yet? Is there kind of like more in the, is there a bigger constitutional delta between what it currently does and what it could do, to force an executive branch to do this across administrations and maybe a nonpartisan way? Or does this really come down to virtue in the executive, an executive that properly constituted itself to make good policy?

Kristen Eichensehr: So I, you know, there, there is certainly some outside limit on what Congress could do in this space, but I don't think we're anywhere near it. There's a lot more that Congress could do here to at least prompt the executive branch to do some of these things.

And I hear you that reporting requirements are not a panacea. I would say more broadly that none of the suggestions we have on policy reforms, we don't think there's any silver bullet here. We're talking about kind of layering a whole bunch of these things together, both these self imposed checks within the political branch of the external checks, which I assume we'll get to.

But you can imagine other, you know, ways that Congress could be involved here. You know, you could have Congress legislating the existence of things like the dissent channel. Or in terms of mandating reason giving, you could imagine Congress requiring the executive to produce and report to Congress a strategy, for addressing a particular national security challenge that kind of integrates tools across agencies.

And, you know, one other process point that we haven't talked about yet is the idea of sunset clauses. So these policies that are adopted at a time when, you know, in the heat of the moment, you wait for the temperature to cool, you sunset them, and force a reconsideration. You could also imagine Congress requiring the executive to do sort of periodic reviews of particular policies.

Again, you know, none of this, especially in the realm of reporting requirements, none of this is perfect, but it could cumulatively, maybe, shake the executive branch, and Congress itself, out of the frictionlessness and force some of the reconsideration, either ex post or ideally ex ante at the time of policy formation that we're concerned about.

Ashley Deeks: And Congress also has a platform when it decides to conduct hearings. So one thing that we urge is if you're looking to find a source of reasoned dissent about a policy, then you should be inviting people to the hearings who are going to take a position different from what the executive branch has been taking, and what maybe a lot of Congress has been taking, that Congress and the congressional staffers have a, I think a pretty powerful tool there too to make sure that alternative views get heard.

Scott R. Anderson: So let's shift to the external sources of friction. Cause I think this is pretty interesting. You kind of boil it down less to actors. I think you correctly identify there's a ton of actors. It's going to be, kind of, context-specific, issue-specific about who's going to have an interest or bearing, you know, corporations, nonprofits, et cetera, in different contexts.

But you kind of identify a couple of strategies they can pursue and, kind of, types of friction they can impose. Kristen, I'll turn to you first on this one. Tell us a little about these external sources of friction: how do you see them operating and the potential, you know, marginal opportunities there might be there, for them to be more effective checks on frictionless government, if that is an era we're headed into.

Kristen Eichensehr: So some of the actors we think about as possible external checks on the government are companies, foreign governments, and state and local governments. You could also throw in the press here. We think the press is very important in terms of, you know, airing different views, maybe providing transparency, but we really focus on companies, foreign governments, and state and local governments. And we think there are different ways that they could impose friction into their, introduce friction to the process.

So one obvious possibility is litigation. So you might have noticed in our self imposed checks, we don't talk about the third branch of government. We don't talk about the courts. And the reason for that is that the courts need some other actor or somebody with standing to bring them into the discussion.

And so there, you know, there are a lot of hurdles to courts adjudicating national security related cases, but the existence of courts as an external reviewer, once they get brought into the process, could reverberate through the executive branch, could reverberate through these policies and prompt more careful internal deliberations, maybe a reinvigoration of, you know, the role of lawyers within the executive branch.

And we think that litigation is maybe a bigger possibility, tied in with the focus the United States has now of turning to the economic tools of national security, of those being kind of the first resort. Because once you're in the world of economic tools, there are very often private parties who are involved in implementing or enforcing various policies. So you've got companies that have to implement export controls or sanctions or who have to, you know, report about their outbound investments under the new outbound investment rule.

So there are parties that we think could potentially file litigation and litigation itself makes the executive give reasons and provides an external check. Another possible way these external actors could reintroduce friction comes in the form of lobbying. Now, sometimes, obviously, we think, might think the role of companies in lobbying is a little bit pathological, but at the same time, it also gives businesses the potential to exert a potentially constructive influence on politics in frictionlessness scenarios.

So, companies are well resourced, they're motivated to defend their interests, to protect their supply chains, their market share, their profits. So they could maybe make government officials aware of, kind of, longer term economic consequences of policies that you see enacted for these sort of short-term, acute security reasons.

And so, you know, we've seen some examples of this, where you get large U.S. chip making companies pushing back on U.S. policies to restrict export, you know, to restrict the export of semiconductors to China. And then a final way that we see external actors may be providing some friction is with respect to policy implementation.

And so this brings in other actors beyond companies, too. This may be allied governments. It might be U.S. states. But in a lot of circumstances, the U. S. government needs the cooperation of, for example, U.S. allies to make the policies effective and to avoid just imposing costs on U.S. companies. So, that puts U.S. allies in a position to have some leverage over U.S. policy.

Allies are also interesting because they are potentially privy under intelligence-sharing arrangements to classified information that people like, you know, academics are not privy to. So they are, maybe, well-situated to better assess, kind of, the national security claims.

And then companies too. They might be in the role of policy implementers. So they're often crucial to implementing things like export controls or sanctions or, you know, any other number of these economic tools. So, and then same with states and local governments, they can be involved as well as implementers.

So again, none of these external actors, like none of the internal actors is perfect, but we think they have a potential role to play in pushing back against frictionlessness.

Scott R. Anderson: A kind of underlying theme, in a lot of this, in my mind, particularly the external pressures, ties back to a theme, actually, Ashley, you mentioned a little earlier in our conversation, which is this idea of secrecy and transparency, which is interesting, because something you don't pull out directly. But I wonder if it is more of a unifying kind of concern here.

Because so many of these strategies only implement where there's enough visibility for external actors to be able to act on them. And this is something that's very much in congressional control, but that it just doesn't do that much in the national security context. It's forcing disclosures. not just to Congress, but to the public, right? If you think about in the war powers context, there is only one forced public disclosure of war powers reports that's actually statutorily obligated. And it's one, frankly, that's fallen into a fair amount of disrepair since it was enacted just a couple of years ago during the Trump administration.

Like the Biden administration has not availed itself of releasing particularly transparent war powers reports. It just hasn't. And another thing that jumps out at me is a more foundational element of a lot of this. Actually, both the internal and the external, because transparency also can be a driver for these internal concerns.

The need just to have more visibility into our national security policymaking. Even, and perhaps especially, in those moments where everyone seems to be most clearly on the same page, because that's a moment where there may be least initial concern that what the government is doing is going to go into, you know, verboten territory, or territory that were outside the scope of the consensus.

And so there may be greatest willingness to delegate broad swaths of authority and without knowledge of how it's being used. There's not opportunities for these other checks to step in. There's not opportunities for friction to reassert itself until you get, you know, incidents, crises, stuff like that, very endeavoring investigative reporting.

But there's a lot Congress and others could do to force that. Am I missing something? Or is that like a kind of underlying theme here? You need the transparency in frictionless moments to be able to have a lot of these effects.

Ashley Deeks: So I think that's absolutely right.

I'm not sure it's only Congress, though, that maybe has a role here. We talked about the fact that Congress can, for example, convene hearings, and those hearings can bring in people who have different views from the dominant perspective at the time, and hearings can get attention. They can get the media's attention, and then you have the public being informed through journalists.

But you also, you know, within the executive branch, if you want interagency tensions to produce friction, then that means you can't unduly stovepipe certain policymaking decisions, and it can, sometimes that is the instinct that the government has that a particular agency thinks that it is the one that should be in charge that has the particular mission that doesn't really want to share that information with others, and it's for the senior most members of the executive branch to make sure that that information gets shared among other agencies that might have equities and it is that sharing that can sometimes enhance interagency friction, I think usually for the good.

Scott R. Anderson: Let me close with one thought I'll give to each of you. You know, we are entering into a notable moment. We have a new president, kind of, a president who's been here before but nonetheless coming with a different perspective, coming to some extent with a different team, new people coming into Congress, you know, new majorities, at least in one chamber, and new leadership in the other.

And we are in a moment where we may face these moments of broad nationality after a crisis, right? We know the intelligence community is projecting that China would be in a position to launch military action against Taiwan as early as 2027, at least that's the objective the Chinese government has set for its military. There are other flashpoints. Russia, Israel, Palestine, potentially to some degree, although again, I think that's at this point much more contentious and full of friction.

If we have one of these moments, what is the parting piece of advice that you would give to the executive branch, Congress, relevant policy makers, or just voters. What is the key takeaway you hope they take from your paper, if they have the opportunity to read it? Kristen, I'll start with you, and Ashley, I'll close with you.

Kristen Eichensehr: I think the key takeaway is that it's better to address these problems at the outset than wait for the problems to occur and the cost to be borne.

If you can spot this problem, which we hope, you know, by giving it a label, by calling it frictionless government and identifying the harms that can result from that, we hope that will make people more able to, sort of, recognize the situation and the paper we hope gives kind of a road map to things that could be implemented at the time of policymaking initially so that we don't get to the buckets of harms we've seen arise before.

So I think the first step and you know, one key takeaway of the paper is just recognizing when this happens. I think there is a real risk of complacency in this current moment when we spend so much time worrying about and being, you know, upset about, or concerned in various ways, about extreme division, there can be a sense of relief when we find a policy in which there is agreement and, you know, it's easy to get things done.

But I guess one of our messages is don't be complacent. You still have to be careful, even in those moments where it might be easy to take a break from divisiveness.

Ashley Deeks: I totally agree with that. I guess I'd add two more things. One is I think a practical take away, and that is we should always be redteaming problems like this.

I think there was a tiger team that was redteaming Russia-Ukraine extensively and intensively, and I think that helped produce better policy outcomes. We did that in advance of the actual Russia invasion, I think. Likewise, when the State Department did an after action review of Afghanistan, one of their big recommendations was do red teaming.

So I think that's something that should be on people's radar from the get-go. And the second takeaway I think is that there are lots of actors who have the capacity to introduce some elements of friction to the conversation, whether that is our allies, whether that is the press, whether that is the public, that each of those actors does have certain capacity, certain angles to get in at that frictionlessness. And I'd urge them to do so.

Scott R. Anderson: The friction of the passage of time has ground us to a halt. So we'll have to stop our conversation there, but thank y'all for a super stimulating, interesting piece and conversation. And thank you, Ashley and Kristen, for joining us here today on the Lawfare Podcast.

Kristen Eichensehr:Thanks for having us.

Ashley Deeks: Thanks very much, Scott.

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