Category Archives: Vol. 12 No. 3

Bubbles Over Barriers: Amending the Foreign Sovereign Immunities Act for Cyber Accountability

More and more often, the Foreign Sovereign Immunities Act (FSIA) has protected cyberattack-conducting state actors and their cybersecurity contractors from legal liability and suits brought by victims seeking redress in US courts.

Adam Silow argues that it is time for foreign sovereign immunity to receive an update for the digital era. State-sponsored cyberattacks and their use of cybersecurity contractors are increasing, particularly affecting human rights activists and large companies with key data and trade secrets. The US government’s responses, namely, diplomacy, sanctions, or issuing “speaking indictments” by prosecutors have been inadequate, and statutory language of the FSIA does not clearly allow liability for cyberattacks, even under the new terrorism amendments.

Some experts propose merely amending the language to include liability for all cyberattacks, which Silow argues may inadvertently allow liability for legitimate state action. Instead, Silow concludes that more targeted legislation should protect specific victims of cyberattacks, namely human rights activists and targets of trade secrets, and allow those victims to legally overcome foreign sovereign immunity in US courts.

FDI Like You’re FDR: CFIUS Review Under the Biden Administration’s Rooseveltian Conception of National Security

In an era where “economic security is national security,” China’s growing economic power presents America with a distinct challenge.

Will Moreland looks to America’s response to suggest that the Biden administration is returning to an earlier “Rooseveltian” conception of national security—one which appreciates that a healthy American middle class is essential to defending democracy.

Moreland finds that under that more expansive vision of national security, the Committee on Foreign Investment in the United States (“CFIUS”) is at risk of overuse. Because Moreland fears a more cumbersome and expansive investment review is likely to harm more than help the Biden administration’s foreign policy, he proposes a narrower approach.

This narrower CFIUS approach stands in contrast to recent calls for expansive investment review—and Moreland concludes it equips today’s policy makers with the right tool for the right problem.

Apparent Unlawful Command Influence: An Unworkable Test for an Untenable Doctrine

Article 37 of the Uniform Code of Military Justice (UCMJ) prohibits unlawful command influence (UCI) in military prosecutions. The prohibition of UCI, Vincent A. Marrazzo argues, is a critical component of the military justice system, ensuring both fairness and public confidence in the military prosecution process.

Marrazzo contends, however, that the Court of Appeals for the Armed Forces (CAAF) has expanded UCI doctrine far beyond the textual confines of Article 37. In particular, the development of “apparent UCI”—which allows CAAF to set aside a finding or sentence for the mere appearance of UCI even if the apparent UCI did not materially prejudices the substantial rights of the accused—directly contravenes the Article 37’s requirement that such prejudice must exist in order to set aside a finding or sentence of a court-martial and also Article 37’s requirement that UCI must be intentional.

Although the doctrine of apparent UCI serves laudable goals, it is also in direct conflict with the text of the UCMJ. Ultimately, Marrazzo, concludes, a doctrine of apparent UCI may be desirable, but it is up to Congress, not the courts, to revise the UCMJ.