National Security Law Today

This week we're covering the range of national security related topics that have been making headlines. Host Elisa is joined by Bill Banks to discuss the latest impacts of climate change, Ukraine's comeback, China's elections, and looking back on 21 years since the attacks on 9/11. And stick around towards the end of the episode for NSLT's latest book recommendations!

Bill Banks is Chair of the ABA Standing Committee on Law and National Security, and Emeritus Professor at the Syracuse University College of Law:

http://law.syr.edu/profile/william-banks1

References:

Register for the 32nd Annual Review of the Field of National Security Law Conference – The Past, Present and Future: Celebrating 60 Years of the Standing Committee on Law and National Security – November 17th–18th, 2022:

https://web.cvent.com/event/587890d9-7f23-4662-af87-6f106dedfece/summary

The National Intelligence Estimate on Climate Change:

https://www.dni.gov/files/ODNI/documents/assessments/NIE_Climate_Change_and_National_Security.pdf

The Authorization for Use of Military Force (AUMF):

https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf

The Patriot Act:

https://www.congress.gov/107/plaws/publ56/PLAW-107publ56.pdf

Fisher, Max. The Chaos Machine: The Inside Story of How Social Media Rewired Our Minds and Our World. Little, Brown, 2023:

https://www.littlebrown.com/titles/max-fisher/the-chaos-machine/9780316703314/

Singer, P. W., and Emerson T. Brooking. Likewar: The Weaponization of Social Media. Mariner Books, Houghton Mifflin Harcourt, 2019.

https://www.likewarbook.com

Canellos, Peter S. The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero. Simon & Schuster Paperbacks, an Imprint of Simon & Schuster, Inc., 2022.

https://www.simonandschuster.com/books/The-Great-Dissenter/Peter-S-Canellos/9781501188213

Wallach, Ari. Longpath: Becoming the Great Ancestors Our Future Needs: An Antidote for Short-Termism. HarperOne, an Imprint of HarperCollinsPublishers, 2022.

https://www.longpath.org/book

Feingold, Russ, and Peter Prindiville. The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It. PublicAffairs, 2022.

https://www.publicaffairsbooks.com/titles/russ-feingold/the-constitution-in-jeopardy/9781541701526/

Listen to NSLT on Apple Podcasts:

https://podcasts.apple.com/us/podcast/national-security-law-today/id1276946676

Listen to NSLT on Spotify:

https://open.spotify.com/show/4KgtjLDlxsNxYrCLuOoF1I?si=b4e7eed1aace4e30

What makes the world go round? It is increasingly obvious that today the answer is "data" – specifically, data about individuals that companies collect, transmit, and store. Understandably, governments seek access to that data to protect national security and public safety, but such access raises serious privacy concerns, both at home and abroad. This week's episode features an expert panel from our CLE conference this past February. The panel discusses the various angles of data privacy, as well as the national security benefits and risks of international data flows.

To hear the entirety of this panel discussion, please visit our website:

https://www.americanbar.org/groups/law_national_security/events_cle/national-security-law-cle-webinar-series-2022-emerging-critical-issues/recording-national-security-law-cle-conference-emerging-critical-issues/

For more information on our past CLE Conference: Emerging Critical Issues:

https://www.americanbar.org/groups/law_national_security/events_cle/national-security-law-cle-webinar-series-2022-emerging-critical-issues/

This panel was moderated by Alex Joel, Scholar-in-Residence and Adjunct Professor at the Washington College of Law: https://www.wcl.american.edu/community/faculty/profile/ajoel/bio

Ben Huebner is Chief, ODNI Civil Liberties, Privacy and Transparency Office:

https://www.dni.gov/index.php/component/content/article?id=350&Itemid=800

Leonard Bailey is Head of Computer Crime and Intellectual Property Section’s (CCIPS) Cybersecurity Unit and Special Counsel for National Security in the Department of Justice’s (DOJ) Criminal Division:

https://www.law.georgetown.edu/national-security-center/our-team/leadership-staff/leonard-bailey/

Estelle Masse is Europe Legislative Manager and Global Data Protection Lead at Access Now:

https://www.accessnow.org/profile/estelle-masse/

Stewart Baker is Of Counsel at Steptoe:

https://www.steptoe.com/en/lawyers/stewart-baker.html

References:

Register for the 32nd Annual Review of the Field of National Security Law Conference – The Past, Present and Future: Celebrating 60 Years of the Standing Committee on Law and National Security – November 17th–18th, 2022:

https://web.cvent.com/event/587890d9-7f23-4662-af87-6f106dedfece/summary

The EU General Data Protection Regulation (GDPR):

https://www.trade.gov/european-union-data-privacy-and-protection

Carpenter v. United States:

https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

Riley v. California:

https://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

Paul Ohm, "The Broad Reach of Carpenter v. United States." Just Security. June 27, 2018:

https://www.justsecurity.org/58520/broad-reach-carpenter-v-united-states/

The Fourth Amendment Third Party Doctrine:

https://sgp.fas.org/crs/misc/R43586.pdf

Leaders of A Beautiful Struggle v. Baltimore Police Department:

https://www.ca4.uscourts.gov/opinions/201495A.P.pdf

Smith v. Maryland:

https://supreme.justia.com/cases/federal/us/442/735/

E.O. 12333:

https://dpcld.defense.gov/Portals/49/Documents/Civil/eo-12333-2008.pdf

Today's media landscape is plagued with division. This week, host Elisa is joined by Chris Stirewalt, former Fox News political editor and author of Broken News: Why the Media Rage Machine Divides America and How to Fight Back. Chris joins the cast to discuss how contemporary news outlets are drifting further into sensationalism and "rage revenue" and away from the civic-minded duty of keeping audiences informed. How can good journalism thrive in a sea of clickbait and extreme viewpoints? How does this business model endanger our national security? And are Americans still willing to read and hear thoughts that challenge their own viewpoints?

Chirs Stirewalt is a Senior Fellow at the American Enterprise Institute:

https://www.aei.org/profile/chris-stirewalt/

Stirewalt, Chris. Broken News: Why the Media Rage Machine Divides America and How to Fight Back. Center Street, 2022:

https://www.centerstreet.com/titles/chris-stirewalt/broken-news/9781546002635/

References:

Chris Stirewalt testimony at January 6th committee hearing:

https://www.youtube.com/watch?v=HwDfXQKAtgM

The New U.S. Intelligence Community Law Sourcebook, 2021-2022 Edition:

https://www.americanbar.org/products/inv/book/417416664/

Where can we expect law and policy regarding national security surveillance to go in the coming years? Where should it go? This week's episode features an expert panel from our CLE conference this past February. The panel gives greater context to these questions, set against growing domestic national security threats from militias, American political extremists, controversies about surveillance that have left several FISA authorities lapsed; and questions about the renewal of Sec. 702 of the FISA Amendments Act.

To hear the entirety of this panel discussion, please visit our website:

https://www.americanbar.org/groups/law_national_security/events_cle/national-security-law-cle-webinar-series-2022-emerging-critical-issues/recording-national-security-law-cle-conference-emerging-critical-issues/

This panel is moderated by Dakota Rudesill, Associate Professor of Law at The Ohio State University Moritz College of Law:

https://mershoncenter.osu.edu/people/rudesill.2

Adam Klein is the Director of the Strauss Center’s Program on Technology, Security, and Global Affairs:

https://www.strausscenter.org/person/adam-klein/

Carrie Cordero is General Counsel at The Center for a New American Security:

https://www.cnas.org/people/carrie-cordero

Emily Berman is an Associate Professor at The University of Houston Law Center:

https://www.law.uh.edu/faculty/main.asp?PID=5005

References:

Register for the 32nd Annual Review of the Field of National Security Law Conference – The Past, Present and Future: Celebrating 60 Years of the Standing Committee on Law and National Security – November 17th–18th, 2022 :

https://web.cvent.com/event/587890d9-7f23-4662-af87-6f106dedfece/summary

Katz v. United States (1967):

https://supreme.justia.com/cases/federal/us/389/347/

Title III, The Omnibus Crime Control and Safe Streets Act of 1968 (The Wiretap Act):

https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1284

United States v. U.S. District Court for Eastern District of Michigan, 1972 (The Keith Case):

https://supreme.justia.com/cases/federal/us/407/297/

The Foreign Intelligence Surveillance Act of 1978 (FISA):

https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286

There's no denying the gender pay gap. Since 2000, the gender pay gap has held steady at about 20% despite all strides towards equality. Is the glass ceiling still holding strong? This week, host Elisa is joined by Stacey Vanek Smith, co-host of NPR's The Indicator from Planet Money, and author of Machiavelli for Women. Stacey brings with her a wealth of data and workplace knowledge, from how to get your opinions heard in a meeting to navigating the most complex of power dynamics. How are women perceived differently than men? And through a national security lens, how critical is it to have diverse voices at the forefront of decision making?

Stacey Vanek Smith is the Co-Host of The Indicator from Planet Money, Correspondent for Planet Money, and author of Machiavelli for Women: Defend Your Worth, Grow Your Ambition, and Win the Workplace:

https://www.npr.org/people/350888943/stacey-vanek-smith

Stacey Vanek Smith, Machiavelli for Women: Defend Your Worth, Grow Your Ambition, and Win the Workplace. Gallery Books, 2022:

https://www.simonandschuster.com/books/Machiavelli-for-Women/Stacey-Vanek-Smith/9781982121754

References:

An Anthology: 60 Years of Transformation | National Security Law:

https://www.americanbar.org/groups/law_national_security/publications/aba-standing-committee-on-law-and-national-security-60-th-anniversary-an-anthology/

The New U.S. Intelligence Community Law Sourcebook, 2021-2022 Edition – 25% OFF with code: ICLS25:

www.americanbar.org/products/inv/book/417416664/

This week, host Elisa is joined by national security experts Seth Jones and Jamil Jaffer to break down the latest national security headlines. How will Ayman al Zawahiri’s death impact Al-Qaeda? Was Speaker Pelosi’s visit to Taiwan effective? And while Americans tend to be short term thinkers, what long term strategies can we introduce now in order to bolster semiconductor production here at home?

Seth Jones is Senior Vice President, Harold Brown Chair, and Director of the International Security Program at the Center for Strategic and International Studies (CSIS):

https://www.csis.org/people/seth-g-jones

Jamil Jaffer is the Founder and Executive Director of the National Security Institute, and an Assistant Professor of Law and Director of the National Security Law & Policy Program at the Antonin Scalia Law School at George Mason University:

https://www.law.gmu.edu/faculty/directory/fulltime/jaffer_jamil_n

References:

Seth Jones, “How Terrorist Groups End: Lessons for Countering al Qa’ida.” RAND Corporation, 2008:

https://www.rand.org/pubs/monographs/MG741-1.html

Seth Jones, “Three Dangerous Men: Russia, China, Iran and the Rise of Irregular Warfare.” W. W. Norton, 2021:

https://wwnorton.com/books/9781324006206/about-the-book/product-details

NSLT, Ep. 233 “The Supply Chain of Semiconductors with Intel’s Tom Quillin”:

https://soundcloud.com/nsltoday/tom-quillin-recast

The New U.S. Intelligence Community Law Sourcebook, 2021-2022 Edition – 25% OFF with code: ICLS25:

www.americanbar.org/products/inv/book/417416664/

An Anthology: 60 Years of Transformation | National Security Law:

https://www.americanbar.org/groups/law_national_security/publications/aba-standing-committee-on-law-and-national-security-60-th-anniversary-an-anthology/

This week, host Elisa is joined by former federal prosecutor Joseph Moreno to run through the latest stock of national security news. Is the White House signaling the defense industry to gear up weapons production? Is China behaving well but pretending not to? And why is real estate such an effective money laundering mechanism for Russian oligarchs?

Joseph Moreno is the General Counsel and Chief Compliance Officer of SAP National Security Services:

https://drive.google.com/file/d/1Gf0qOjuZPXin1lPfQ1icbACFELFcEEfb/view?usp=sharing

References:

General Dynamics Corp. v. United States:

https://www.supremecourt.gov/opinions/10pdf/09-1298.pdf

41 USC §609(a)(1), 1978 Contract Disputes Act:

https://www.govinfo.gov/content/pkg/USCODE-2009-title41/html/USCODE-2009-title41-chap9.htm

E.O. 13224:

https://www.state.gov/executive-order-13224/

10 USC 1601:

https://www.law.cornell.edu/uscode/text/10/1601

15 USC 1701:

https://www.law.cornell.edu/uscode/text/15/1701

50 USC Chapter 35:

https://www.law.cornell.edu/uscode/text/15/1701

United States v. Nixon, 418 U.S. 683:

https://supreme.justia.com/cases/federal/us/418/683/

The New U.S. Intelligence Community Law Sourcebook, 2021-2022 Edition – 25% OFF with code: ICLS25:

https://www.americanbar.org/products/inv/book/417416664/

An Anthology: 60 Years of Transformation | National Security Law:

https://www.americanbar.org/groups/law_national_security/publications/aba-standing-committee-on-law-and-national-security-60-th-anniversary-an-anthology/

This week is all about climate change, an increasingly undeniable threat to our national security. Host Elisa is joined by committee members Brian Egan and William Banks to discuss what legal authorities are at the disposal of the President to help combat this crisis. What defines an international economic emergency? And domestically, what other authorities can the President utilize to target certain parties that threaten our global climate?

Brian Egan is a Partner at Skadden:

https://www.skadden.com/en/Professionals/E/Egan-Brian

William Banks is Chair of the ABA Standing Committee on Law and National Security Advisory Committee, and Emeritus Professor at the Syracuse University College of Law:

http://law.syr.edu/profile/william-banks1

References:

International Emergency Economic Powers Act:

https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter35&edition=prelim

The Defense Production Act:

https://www.fema.gov/disaster/defense-production-act

U.S. Constitution, Article II:

https://www.law.cornell.edu/constitution/articleii

West Virginia v. EPA:

https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

The Major Questions Doctrine:

https://crsreports.congress.gov/product/pdf/LSB/LSB10745

As Congress makes advances on a new Chips Act, it is a fitting time to revisit our previous episode on semiconductor production, featuring Intel's Tom Quillin. Twenty years ago, the U.S. held over 37% of the world’s semiconductor manufacturing capabilities. Today, that share has dropped to just 12%. As demand for chips rises, we are faced with a pressing dilemma: rely on other nations for essential chips, or take the needed steps to bolster our semiconductor ecosystem here at home. Host Elisa is joined by Tom Quillin of Intel to discuss the semiconductor supply chain and future goals for manufacturing in the U.S. What are our needs for semiconductors now? How do we protect, train, and expand the chip-making workforce at home? And what strides is Congress taking to help us outpace our competition?

Tom Quillin leads Global Security Policy for semiconductor supply chains at Intel Corporation:

https://drive.google.com/file/d/17t2rBKe874dnZUGqyD4PzTiW12HW6Ztd/view?usp=sharing

More on Intel’s role in semiconductor production:

https://drive.google.com/file/d/1nR7sjnpFCHAkH0-23lFNWr01kQ9UBlDS/view?usp=sharing

References:

H.R. 7178, Chips for America Act:

https://www.congress.gov/bill/116th-congress/house-bill/7178

H.R. 4521, America COMPETES Act of 2022:

https://www.congress.gov/bill/117th-congress/house-bill/4521

E.O. 14017, America’s Supply Chains. Feb. 24th, 2021:

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/executive-order-on-americas-supply-chains/

The EU Chips Act:

https://digital-strategy.ec.europa.eu/en/library/european-chips-act-communication-regulation-joint-undertaking-and-recommendation

This week, Harvey Rishikof hosts Gilman Louie, a Partner at Alsop Louie and former CEO of In-Q-Tel. Together they discuss the latest cutting-edge technologies and how these innovations are changing the global dynamic. What is the current state of U.S. tech dominance in comparison to China? How can we better secure our vulnerable systems? And how are lawyers helping in this pursuit of innovation?

Gilman Louie is a Partner at Alsop Louie:

https://alsop-louie.com/team/gilman-louie/

Harvey Rishikof is a Director of Policy and Cyber Security Research and Visiting Research Professor at the University of Maryland:

https://nationalsecurity.gmu.edu/harvey-rishkof/

To hear the rest of this discussion, as well as other panels from the February 2022 CLE conference, visit our committee page:

https://www.americanbar.org/groups/law_national_security/events_cle/national-security-law-cle-webinar-series-2022-emerging-critical-issues/recording-national-security-law-cle-conference-emerging-critical-issues/

References:

Gilman Louie, Chris Darby, and Jason Matheny, Mitigating Economic Impacts of the COVID-19 Pandemic and Preserving U.S. Strategic Competitiveness in Artificial Intelligence:

https://www.nscai.gov/wp-content/uploads/2021/01/NSCAI_White-Paper_Mitigating-Economic-Impacts-of-the-Covid-19-Pandemic.pdf

Office of the Director of National Intelligence, Annual Threat Assessment of the US Intelligence Community. Washington, DC: ODNI, April 2021:

https://www.odni.gov/files/ODNI/documents/assessments/ATA-2021-Unclassified-Report.pdf

Office of the Director of National Intelligence, Global Trends 2040: A More Contested World. Washington, DC: National Intelligence Council, March 2021:

https://www.dni.gov/files/ODNI/documents/assessments/GlobalTrends_2040.pdf

Gilman Louie et al, Final Report of the NSCAI. Washington, DC: National Security Commission on Artificial Intelligence, 2021:

https://www.nscai.gov/wp-content/uploads/2021/03/Full-Report-Digital-1.pdf