National Security Law Today

From vetting nominees to navigating Senate committees, the process of appointing leaders in the Executive Branch is both intricate and essential. This week, Elisa Poteat welcomes Erik Swabb, Partner at WilmerHale and former General Counsel of the Senate Armed Services Committee, to demystify the confirmation process. Together, they explore how nominees are evaluated, the authority behind committee reviews, and the strategies that can bypass these traditional norms.

Erik Swabb is a partner in the Defense, National Security and Government Contracts Practice at WilmerHale.

References:

U.S. Constitution, Article II Section 2

This week, Elisa revisits her conversation with longtime former Pardon Attorney, Helen Bollwerk, to unpack the presidential pardoning process. Together, they explore the procedural regulations, judicial precedents, past controversies, and the pressing question of whether a president-elect can pardon himself.

Helen Bollwerk served as a pardon attorney at the Department of Justice for nineteen years.

References:

U.S. Constitution, Art. II, Sec. 2

28 CFR § 1.1 - 1.11

Ex parte Wells, 59 U.S. (18 How.) 307 (1855)

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866)

Carlesi v. New York, 233 U.S. 51 (1914)

Burdick v. United States, 236 U.S. 79 (1915)

Ex parte Grossman, 267 U.S. 87 (1925)

Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974)

Schick v. Reed, 419 U.S. 256 (1974)

United States v. Noonan, 906 F.2d 952 (3d Cir. 1990)

U.S. Constitution, Art. II, Sec. 2

28 CFR § 1.1 - 1.11

Congressional Report, Justice Undone: Clemency Decisions in the Clinton White House, May 14, 2002. Part One; Part Two; Part Three

Congressional Hearing, Use and Misuse of Presidential Clemency Power for Executive Branch Officials, July 11, 2007

Office of Legal Counsel Presidential or Legislative Pardon of the President (August 5, 1974)

While the U.S. presidential election takes center stage, global events continue to unfold. This week, Elisa delves into the latest national security headlines, covering key takeaways from the BRICS summit, Chinese espionage tactics, a recent data breach exposing millions of Americans' healthcare information, and more.

References:

Upcoming ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

On October 15th, the ABA Standing Committee on Law and National Security hosted a luncheon event featuring remarks by Ambassador John Sullivan, former US ambassador to the Russian Federation from 2019 to 2022, and author of Midnight in Moscow: A Memoir From the Front Lines of Russia's War Against the West. Ambassador Sullivan shares his firsthand experiences on the diplomatic front lines during Putin's invasion of Ukraine, offers insight into the state of US-Russia relations, and how far the West might need to go in standing up to Moscow.

Ambassador John J. Sullivan, former US deputy secretary of state and former US ambassador to the Russian Federation, is a partner in Mayer Brown’s Washington DC and New York offices and co-lead of the firm’s National Security practice.

References:

Sullivan, John Joseph. Midnight in Moscow: A Memoir from the Front Lines of Russia’s War against the West. Little, Brown, and Company, 2024.

Upcoming ABA Event: Earlybird registration deadline is Nov. 1 Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

(Part 2 of 2) - The rapid development of AI presents a unique challenge: how do we balance innovation with regulation? This week, Elisa is joined by Samir Jain, Vice President of Policy at the Center for Democracy & Technology, and Margaret Hu, Professor of Law and Director of the Digital Democracy Lab at William & Mary Law School. Together, they delve into the complexities of state-level AI regulations, the legal uncertainties surrounding accountability for AI mishaps, and the national security threats posed by foreign adversaries exploiting AI.

Samir Jain is the Vice President of Policy at the Center for Democracy & Technology (CDT)

Margaret Hu is the Taylor Reveley Research Professor and Professor of

Law, and Director of the Digital Democracy Lab, at William & Mary (W&M) Law School.

References:

Whalen v. Roe

Nelson v. Nelson

Vermont v. Clearview AI

Upcoming ABA Event: Register for the Women in National Security Law event, A Discussion with National Security Lawyers Serving in Congress, this October 24th in Washington DC

Upcoming ABA Event: 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

The rapid development of AI presents a unique challenge: how do we balance innovation with regulation? This week, Elisa is joined by Samir Jain, Vice President of Policy at the Center for Democracy & Technology, and Margaret Hu, Professor of Law and Director of the Digital Democracy Lab at William & Mary Law School. Together, they delve into the complexities of state-level AI regulations, the legal uncertainties surrounding accountability for AI mishaps, and the national security threats posed by foreign adversaries exploiting AI.

Samir Jain is the Vice President of Policy at the Center for Democracy & Technology (CDT)

Margaret Hu is the Taylor Reveley Research Professor and Professor of Law, and Director of the Digital Democracy Lab, at William & Mary(W&M) Law School.

References:

FISA Section 230

E.O. 13694, Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities

E.O. 14110, On the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence

E.O. 14117, On Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern

NIST AI Risk Management Framework

The EU Artificial Intelligence Act

California SB-1047, Safe and Secure Innovation for Frontier Artificial Intelligence Models Act (VETOED)

Colorado SB24-205, Consumer Protections for Artificial Intelligence

H.R.7520 - Protecting Americans’ Data from Foreign Adversaries Act of 2024

Upcoming ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

As the world imposes economic sanctions on Russia, the effectiveness of these measures comes under scrutiny. This week, Elisa sits down with Bloomberg journalist Stephanie Baker to discuss her latest book, Punishing Putin: Inside the Global Economic War to Bring Down Russia. Together, they explore how Russia's oligarchs have managed to evade sanctions, the role of shell companies in Cyprus and Dubai, and the international community’s struggle to contain Putin’s wealth

Stephanie Baker is a Senior Writer for Bloomberg

References:

Baker, Stephanie. Punishing Putin: Inside the Global Economic War to Bring down Russia. Scribner, 2024.

The International Emergency Economic Powers Act (IEEPA)

Upcoming Event: Register for Midnight in Moscow: A Memoir from the Front Lines of Russia's War Against the West, A Discussion with Ambassador John Sullivan – October 15 in Washington, DC

Upcoming ABA Event: Register for the Women in National Security Law event, A Discussion with National Security Lawyers Serving in Congress, this October 24th in Washington DC

Upcoming ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

This week, join the ABA Standing Committee for a discussion with David Cattler, Director of the Defense Counterintelligence and Security Agency (DCSA), the government's premier provider of integrated security services. DCSA blends industrial security, counterintelligence support, personnel vetting and security training to advance and preserve America's strategic edge.

David Cattler is Director of the Defense Counterintelligence and Security Agency (DCSA

Introduction by Harvey Rishikof, Senior Counselor to the ABA Standing Committee on Law and National Security

References:

Upcoming Event: Register for Midnight in Moscow: A conversation with Ambassador John J. Sullivan – October 15 – Noon – University Club, Washington, DC

Upcoming ABA Event: Register for the Women in National Security Law event, A Discussion with National Security Lawyers Serving in Congress, this October 24th in Washington DC

Upcoming ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

(Part 2 of 2) As AI advances and data privacy laws fall behind, the U.S. faces a major national security threat: the unchecked exploitation of personal data.This week, Elisa is joined by Margaret Hu, Professor of Law at William & Mary, and Davi Ottenheimer, Vice President of Trust and Digital Ethics at Inrupt, to explore the vulnerabilities in our digital footprint and what can be done to protect it. Together, they dive into the intricacies of microtargeting, AI regulation, and potential legislative fixes, while shedding light on the urgent need for a federal data privacy infrastructure.

Margaret Hu is the Taylor Reveley Research Professor and Professor of Law, and Director of the Digital Democracy Lab, at William & Mary Law School

Davi Ottenheimer is Vice President of Trust and Digital Ethics at Inrupt

References:

Hu, Margaret and Behar, Eliott and Ottenheimer, Davi, National Security and Federalizing Data Privacy Infrastructure for AI Governance. March 27, 2024.

Colorado SB24-205, Consumer Protections for Artificial Intelligence

Macagnone, Michael. “Appeals Court to Hear Tiktok Challenge to Law Requiring App Sale.” Roll Call, 12 Sept. 2024

California SB 1386, Overview

The General Data Protection Regulation (GDPR)

The EU Artificial Intelligence Act, Overview

NSLT Ep. 179, Algorithms – Who's in Control? with Alex Stamos (Part 1)

ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

ABA Event: Register for the Women in National Security Law event, A Discussion with National Security Lawyers Serving in Congress, this October 24th in Washington DC

As AI advances and data privacy laws fall behind, the U.S. faces a major national security threat: the unchecked exploitation of personal data.This week, Elisa is joined by Margaret Hu, Professor of Law at William & Mary, and Davi Ottenheimer, Vice President of Trust and Digital Ethics at Inrupt, to explore the vulnerabilities in our digital footprint and what can be done to protect it. Together, they dive into the intricacies of microtargeting, AI regulation, and potential legislative fixes, while shedding light on the urgent need for a federal data privacy infrastructure.

Margaret Hu is the Taylor Reveley Research Professor and Professor of Law, and Director of the Digital Democracy Lab, at William & Mary Law School

Davi Ottenheimer is Vice President of Trust and Digital Ethics at Inrupt

References:

Hu, Margaret and Behar, Eliott and Ottenheimer, Davi, National Security and Federalizing Data Privacy Infrastructure for AI Governance. March 27, 2024.

Macagnone, Michael. “Appeals Court to Hear Tiktok Challenge to Law Requiring App Sale.” Roll Call, 12 Sept. 2024

California SB 1386, Overview

The General Data Protection Regulation (GDPR)

The EU Artificial Intelligence Act, Overview

NSLT Ep. 179, Algorithms – Who's in Control? with Alex Stamos (Part 1)

ABA Event: Register for the 34th Annual Review of the Field of National Security Law CLE Conference, this November 14th-15th in Washington, DC

ABA Event: Register for the Protecting American Innovation from Foreign Adversaries luncheon this September 24th in Washington DC, featuring David Cattler, Director of the Defense Counterintelligence and Security Agency (DCSA)

ABA Event: Register for the Women in National Security Law event, A Discussion with National Security Lawyers Serving in Congress, this October 24th in Washington DC