In a few words, can you tell us about yourself and how you found your way to the academic field?
I’m currently a Post-doc Fellow at HUJI Faculty of Law and the Federmann Center, where my work aims to look at issues in cybersecurity from a public law perspective. I’m also a Research Fellow at the Abba Eban Institute for International Diplomacy at the Interdisciplinary Center Herzliya (IDC) and the Executive Editor of The Arena: Diplomacy and Foreign Relations Quarterly at the School of Government. At the IDC, I work on issues at the intersection of law and foreign and security policy. I’m also in the process of developing a new course on cybersecurity law that will be added to the IDC Law School curriculum starting the fall of 2020. I received my Doctorate degree (S.J.D.) from Duke Law School (2019), an L.L.B in Law and M.B.A in Business Administration from HUJI and an L.L.M in International legal studies as a Fulbright scholar from American University School of Law. Before joining Duke, I was a researcher at the Israel Democracy Institute (IDI) and a member of the International Task Force on Terrorism, Democracy, and the Law with the Woodrow Wilson Center and the Max Planck Institute. How did I find my way into the academic world? I didn’t enter into law school thinking I end up pursuing an academic career. Close to the end of my second year in law school, I joined the IDI as a research assistant to Prof. Mota Kremintzer and that was a major turning point for me. I did two-year-long research on Israel’s administrative detention policy, which was then a hotly debated topic in the public discourse in Israel, and what I learned through that journey has had a profound impact on my career path. I fell in love, so to speak, in the making process of scholarship, and learned a lot about how it can have a real impact on social, legal, and policy issues. The great thing about being a legal researcher, from my perspective, is that you constantly find yourself thinking about new stuff that is of interest to you, having to spend much less time than the average lawyer using your knowledge to tackle the same problems over and over again. This is a great privilege and something that I find very fulfilling.
What is the main core of your research? Can you give an example or two? How is it related to cyber security?
My research focuses on the intersection of law and public policy, with an emphasis on national security and foreign policy. Early in my doctorate program one of my advisers told me that a researcher should be able, as early as possible, to define clearly his purposes for researching and for publishing that research. Broadly stated, my overarching purpose as a legal researcher is to think about how public law can help generate better public policy. Many in the legal community tend to emphasize the role of public law in limiting government power. The constitution, we learn in the first year of law school, spells out certain personal rights and freedoms that the people have in relation to their government; and administrative law lays out limits on the powers of bureaucratic agencies. But next to this (obviously important) function of public law, legal rules and fundamental values underlying them also guide this machinery we call government how to perform to best achieve desired social goals. In my work, I try to express this idea particularly in the worlds of security and foreign policy. For example, my doctoral project revisited a longstanding question in separation-of-powers law: is the judicial process a proper venue for reviewing national security and foreign affairs decisions? The predominant view, at least until a few years ago, answered the question in the negative. Scholars argued that judges, who are unaccountable to the public and have no expertise in these areas, lack the democratic legitimacy and the institutional capacity to deal with cases that implicate diplomatic and security matters. If judges were to insert themselves into the security and foreign policy domain, these scholars stressed, the implications would be grave for the national interest and for the delicate relationship between the political branches and the judiciary. This view has been challenged by a (rapidly growing, so it seems) opposing camp of scholars and judges, who insist that judicial review is vital in order to vindicate fundamental constitutional values and protect individuals from a government that in the name of national security might not hesitate to compromise civil liberties. Citing notorious examples in which courts, deferring to the political process, upheld race-based detention, criminalization of anti-war speech, and other deprivations of civil rights and liberties, the opposing camp concludes that judicial deference undermines the crucial role of the judiciary as the protector of civil liberties. What is sometimes frustrating about this debate is that, to a large extent, scholars of the two camps talk past each other. While the first camp stresses democratic accountability and institutional competence, the second camp puts a premium on human rights. In my doctorate project, I sought to break new ground in the debate by challenging the first camp’s premise that institutional competence arguments support judicial deference. I showed that robust (albeit, principled) judicial oversight of executive action in foreign affairs and national security is not just a mechanism to protect rights; it also encourages responsible and deliberative decision-making within the executive and has the potential to deter arbitrary or illegal conduct; and it incentivizes the legislature, which has traditionally shown little appetite to constrain the executive in these domains, to be more active. In other words, I showed that enhanced judicial review in this context both generates better policymaking processes and encourages democratic participation.
Why did you choose this area over all others? Did your personal or professional background lead you to it?
My interest in national security issues began during the second Intifada (2000-06), which I experienced first as a teenager in Jerusalem, then as a soldier, and finally as a law student. I think that each vantage point gave me different kinds of insights about politics, law, and morality in this context. My time in the United States a decade later enriched and deepened my views and focused me on the issues I wish to advance in my research. In many ways, my time at Duke, during which I worked with three outstanding scholars, challenged some of my early observations about law, institutions and national security, and shaped the approach I bring with me to the next phases of my career.
Do you think that in this cyber age these issues are even more complex compared to other times in history? If so – in what ways?
So much more. We have very little knowledge of what our government (and others) is doing in cyberspace. Edward Snowden’s revelations in 2013 have shocked the world but, according to most estimates, provided only a glimpse of the breadth and sophistication of electronic surveillance undertaken by the U.S. National Security Agency and other intelligence agencies around the world. Notwithstanding the scandal the Snowden disclosures have caused, not much has changed in terms of transparency and accountability. Government activity in cyberspace, including but not limited to surveillance, serves important national interests but also creates social costs. With so little legal and political accountability, we have no way to appreciate how these costs and benefits are weighted.
After explaining the main core of your research, what do you think is the solution? What is the proper model for that? Is it applicable?
The first step in every solution is a good diagnosis. We need to identify the set of constraints that limit and guide our government’s cyber activity, and then consider whether it is optimally designed to enable the government to protect us from cyber threats on the one hand and keep it in check on the other. Once we do that the next phase will be to design norms and institutions that will encourage decision-makers to promote the national interest while remaining faithful to our core constitutional values.
What is the next phase in your professional life?
The deeper I dive into the virtual sphere the more I discover new uncharted territories for legal research, so it seems that in the near future I will be focusing on cyber issues. I currently work on my post-doc project, which traces the balance of government power and constraint in cyberspace with the goal of examining whether the sharp increase in government hacking as a national security tool presents a danger of unbounded state (and, in particular, executive) power. Another project I begin (with others) these days focuses on digital contact tracing measures. Since Covid-19 broke into our lives, new digital surveillance measures have been introduced and implemented for contact tracing, quarantine enforcement, monitoring the spread of the virus, and more. These measures vary on their level of success and their negative impact on privacy, liberty, and the separation of powers. And, they provide a rich empirical basis for thinking about how to use technology the right way. In this project, we will develop a legal framework, based on comparative analysis, for harnessing technology to counter Covid-19 in a democracy-preserving ecosystem.
What is your message to the public?
My first message is that people should educate themselves better about the technologies they use in their daily lives. The choices we make have consequences for our privacy and freedom (form both the government and the private sector), and we generally need to be more informed about those consequences. My second message is much simpler: spend time with your families and loved ones. A professor at Duke once saw me at the library late in the evening. We had a quick chat and, as we part ways, she stopped for a second and said: “I never heard any of my colleagues complaining they had spent too much time with their kids throughout their career. Go home Elad.”