National Security Law Today

The theme for Law Day 2021 is "Advancing the Rule of Law Now." In honor of Law Day, this week's episode showcases highlights from this year's program, Advancing the Rule of Law Now: A Global Perspective. This program explores the rule of law from an international perspective, specifically, the role of the United States within the international rule of law landscape.

The rule of law is the bedrock of American rights and liberties, but the United States also serves, for many, as a beacon of sustained rule of law around the world. How has this changed in recent years? How do rule of law moments in the United States affect other countries? Can the United States still claim a leadership role when it comes to the rule of law? These questions and more will be discussed.

Speakers include:

Patricia Lee Refo, President, American Bar Association:

https://www.americanbar.org/groups/leadership/aba_officers/patricia-lee-refo/

Will A. Gunn, National Law Day Chair:

https://www2.usafa.org/AOG/Bio_WillGunn

Elizabeth Andersen, World Justice Project:

https://worldjusticeproject.org/about-us/who-we-are/staff/elizabeth_andersen

Ashley Quarcoo, Carnegie Endowment for International Peace:

https://carnegieendowment.org/experts/1748

Jenny Gesley, Foreign Law Specialist, Law Library of Congress:

https://blogs.loc.gov/law/author/jges/

Temuri Yakobashvili, Former Ambassador of Georgia to the United States:

https://worldfellows.yale.edu/person/temuri-yakobashvili/

Visit lawday.org for more information and all 2021 Law Day resources.

Please explore these resources concerning the rule of law from the ABA, the Law Library of Congress, and the World Justice Project:

https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020

The ABA produced a short video exploring what "rule of law" is.

https://www.americanbar.org/groups/public_education/resources/rule-of-law/

In partnership with the ABA Law Student podcast, host Meg Steenburgh sits down with national security expert, Standing Committee on Law and National Security Chair, and Syracuse University professor William Banks, as he sheds light on how current events interact with our nation’s security and the law.

William Banks is a professor at Syracuse Law School and the Chair of the ABA Standing Committee on Law and National Security:

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

ABA Law Student Podcast: https://abaforlawstudents.com/stay-informed/law-student-podcast/

ABA Law Student Division: https://www.americanbar.org/groups/law_students/

Most security issues in government present leadership challenges and might in the first instance, best be addressed with effective leadership. In the next instance, such issues present process challenges; getting the process right leads to better policy and to better results. Only in the third instance are issues resolved through law, in part because you cannot legislate leadership. National security lawyers play an essential role in all three areas: Leadership, process, and law. COVID-19 has presented new and unparalleled leadership, process, and legal challenges at the federal, state, and local level, for lawyers, as well as public health officials. COVID-19 has also given lawyers renewed opportunity to consider and understand what it means to be a national security lawyer and to swear an oath to uphold and defend the Constitution. Judge James Baker and Amy Jeffress lead a discussion of the role of ethics and leadership in defining the role of today’s national security lawyers.

Amy Jeffress is a partner at Arnold & Porter, and co-chairs the White Collar Defense & Investigations practice:

https://www.arnoldporter.com/en/people/j/jeffress-amy

Hon. James E Baker is the Director of the Institute of Security Policy and Law at Syracuse University:

http://law.syr.edu/profile/the-hon.-james-e.-baker

References:

James E. Baker, "Leadership in a Time of Pandemic: Act Well the Given Part." Journal of National Security Law and Policy, Volume 11, Issue 1. October 2020.

https://jnslp.com/wp-content/uploads/2020/12/Leadership-in-a-Time-of-Pandemic_2.pdf

Voting laws have been capturing headlines, and not just in the context of Georgia but with nearly 20 other states considering similar voter restrictive legislation as well. In 2020, some of the biggest national security issues played out in the context of elections. This week, NSLT welcomes Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School, to discuss the role of federal and state governments in elections, the use of new technology, and the implications these laws have on national security and democracy.

Nate Persily is the James B. McClatchy Professor of Law at Stanford Law School:

https://law.stanford.edu/directory/nathaniel-persily/

This episode references:

- One Person, One Vote rule: https://www.law.cornell.edu/wex/one-person_one-vote_rule

- For the People Act of 2021: https://www.congress.gov/bill/117th-congress/house-bill/1/text

- John Lewis Voting Rights Advancement Act: https://www.congress.gov/116/bills/s4263/BILLS-116s4263is.pdf

- Help America Vote Act: https://www.congress.gov/107/plaws/publ252/PLAW-107publ252.pdf

- Honest Ads Act: https://www.congress.gov/115/bills/s1989/BILLS-115s1989is.pdf

- The Law of Democracy: Legal Structure of the Political Process, 5th Edition. Issacharoff, Karlan, Pildes and Persily. 2016: https://www.westacademic.com/Issacharoff-Karlan-Pildes-and-Persilys-The-Law-of-Democracy-9781634608015

- Nathaniel Persily, “Can Democracy Survive the Internet?” (2017). https://journalofdemocracy.org/wp-content/uploads/2017/04/07_28.2_Persily-web.pdf

- Stanford Cyber Policy Center: https://cyber.fsi.stanford.edu

- NSLT Ep. 146, "How does CISA and the intelligence community protect American elections? With Dan Sutherland"

https://podcasts.apple.com/us/podcast/national-security-law-today/id1276946676?i=1000494060109

The National Security Commission on Artificial Intelligence has said, “the development of AI will shape the future of power.” AI is coming and coming hard. The meaningful application of law and ethics will help determine whether we maximize the opportunities and minimize and mitigate the risks. Law and ethics will, or could and should, distinguish democratic and American AI from authoritarian applications of AI. Law and ethics will bind like-minded alliances in the AI field and it will help to build and sustain public trust and support for appropriate AI applications. The converse is also likely. If, for example, the public does not trust the government’s use of AI because of certain facial recognition applications, it may not trust the government with using AI to facilitate contact tracing amidst a pandemic. This session will consider the ethical use of AI in national security decision-making including: (1) The use of predictive algorithms; (2) Potential AI decision-making redlines and permits; and (3) What is it national security lawyers should know and should ask about AI before it is used to inform and execute national security decisions.

Corin Stone is a Scholar-in-Residence at American University's Washington College of Law: https://www.wcl.american.edu/community/faculty/profile/cstone/bio

Hon. James E. Baker is the Director of the Institute of Security Policy and Law at Syracuse University:

http://law.syr.edu/profile/the-hon.-james-e.-baker

References:

- James E. Baker, The Centaur's Dilemma: National Security Law for the Coming AI Revolution. Brookings Institution Press, 2020.

Introduction:

https://www.americanbar.org/content/dam/aba/administrative/law_national_security/centaurs-dilemma-introduction.pdf

Chapter 10:

https://www.americanbar.org/content/dam/aba/administrative/law_national_security/centaurs-dilemma-chapter-10.pdf

- Department of National Intelligence, "Artificial Intelligence Ethics Framework for the Intelligence Community." June, 2020. https://www.dni.gov/files/ODNI/documents/AI_Ethics_Framework_for_the_Intelligence_Community_10.pdf

- Ashley Deeks, “Predicting Enemies,” 104 Virginia Law Review 1529 (2018).

https://www.virginialawreview.org/wp-content/uploads/2018/12/104VaLRev-2.pdf

- Department of Defense Ethical Principles for Artificial Intelligence:

https://www.defense.gov/Newsroom/Releases/Release/Article/2091996/dod-adopts-ethical-principles-for-artificial-intelligence/

-ABA Model Rules of Professional Conduct and Comments:

https://www.americanbar.org/content/dam/aba/administrative/law_national_security/model-rules-ai-webinar.pdf

- "Principled Artificial Intelligence – Mapping Consensus in Ethical and Rights-Based Approaches to Principles for AI." Berkman Klein Center for Internet & Society at Harvard University. Jan. 2020:

https://cyber.harvard.edu/publication/2020/principled-ai

The Georgetown Journal of National Security Law & Policy (JNSLP) hosted it's 2021 annual symposium this week, featuring a keynote discussion with Jim Steinberg, former U.S. Deputy Secretary of State. For this week's episode, Jim Steinberg, along with James Feinerman, Professor of Law at Georgetown University, sit down to discuss U.S.-China relations, managing differences, and the ongoing power struggle between both nations. The interview taps Jim Steinberg’s wealth of experience with China to address the biggest challenges facing the Biden Administration and his recommendations for the way ahead. Professor William Banks, Chair of the ABA Standing Committee on Law and National Security and Editor-in-Chief of the JNSLP provides opening remarks.

Jim Steinberg is University Professor of Social Science, International Affairs and Law at Syracuse University: https://www.maxwell.syr.edu/Steinberg,_James_B_/

James Feinerman is the James and Catherine Denny Chair in Democratic Capitalism, James M. Morita Professor of Asian Legal Studies, and Co-Director of Georgetown Law Asia at Georgetown University Law Center:

https://www.law.georgetown.edu/faculty/james-v-feinerman/

Journal of National Security Law & Policy:

https://jnslp.com/

In partnership with CSIS's Strategic Dialogue on Civic Education as a National Security Imperative, this week's episode features an expert panel of national security lawyers sharing perspectives on why civic education is a national security issue. Why is it important for the American public to understand the role of national security institutions and the rule of law in our democracy? And how does civic education play a role in rebuilding that trust, maximizing security, and strengthening our democracy?

This panel is hosted by Elizabeth Rindskopf Parker, former General Counsel of the NSA and CIA, with introductions by Suzanne Spaulding, Senior Advisor at CSIS. The panel features perspectives from the Honorable James E. Baker, Director of the Institute for Security Policy and Law at Syracuse University, Jennifer O'Connor, VP and Deputy General Counsel at Northrop Grumman, Tia Johnson, Visiting Professor at Georgetown Law, and Steve Bunnell, Chief Legal Officer at the Diem Association.

To view the original event in the entirety: https://www.csis.org/events/conversation-fbi-director-wray-and-national-security-lawyers-civic-education-national

This episode references:

- The Civics Secures Democracy Act of 2021: https://delauro.house.gov/sites/delauro.house.gov/files/documents/Civics%20Secures%20Democracy%20Act.pdf

- Inspired to Serve, The Final Report of the National Commission on Military, National, and Public Service. March 2020: https://inspire2serve.gov/reports/final-report

- The Business Case for Civics Education. Harvard Business Review, sponsored by the U.S. Chamber of Commerce Foundation. Nov. 7 2019. https://www.uschamberfoundation.org/reports/business-case-civics-education

This week hosts Elisa and Yvette cover the latest topics, from QAnon security clearances and presidential pardons, to FOIA, dealings with China, and Microsoft zero-days.

This episode references:

- Security Clearance Improvement Act of 2021:

https://www.congress.gov/bill/117th-congress/house-bill/353/text?r=17&s=1

- Section 230, Communication Decency Act: www.law.cornell.edu/uscode/text/47/230

- The Freedom of Information Act (FOIA): https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/amended-foia-redlined.pdf

- Justice Amy Coney Barrett Opinion Article: https://www.supremecourt.gov/opinions/20pdf/19-547_08m1.pdf

- Jim Lewis, Toward a More Coercive Cyber Strategy. CSIS. Mar. 4, 2021. https://www.csis.org/analysis/toward-more-coercive-cyber-strategy

- National Security Law Today Episode 155, "The fight over funding next year's national security budget with Andrew Borene and Adam Pearlman"

https://podcasts.apple.com/us/podcast/national-security-law-today/id1276946676?i=1000502753242

We are entering into the next epoch of U.S. foreign policy. In this week's episode, host Harvey Rishikoff and guest Dr. John Hamre discuss a handful of critical issues - from industrial competition with China, to the growing polarization of America - and the role national security law will play in this next policy chapter.

Dr. John Hamre is president and CEO of the Center for Strategic and International Studies (CSIS). He notably served as US deputy secretary of defense from 1997 to 1999 and undersecretary of defense from 1993 to 1997. Before his tenure at the Department of Defense, Hamre was professional staff member to the Senate Armed Services Committee and deputy assistant director at the Congressional Budget Office.

This episode references:

- Sherman Antitrust Act:

https://fraser.stlouisfed.org/title/antitrust-laws-amendments-1890-1956-1136/sherman-antitrust-act-1513

- The Safe Tech Act: https://www.warner.senate.gov/public/_cache/files/4/f/4fa9c9ba-2b34-4854-8c19-59a0a9676a31/66DECFBC0D6E6958C2520C3A6A69EAF6.safe-tech-act---final.pdf

- Section 230, Communication Decency Act: https://www.law.cornell.edu/uscode/text/47/230

- "Intelligence Analysts Use U.S. Smartphone Location Data Without Warrants, Memo Says." New York Times, Jan. 22, 2021. https://www.nytimes.com/2021/01/22/us/politics/dia-surveillance-data.html?smid=em-share

- "Biden Voting Counties Equal 70% of America's Economy. What Does This Mean for the Nation's Political-Economic Divide?" The Brookings Institution, Nov. 10, 2020: https://www.brookings.edu/blog/the-avenue/2020/11/09/biden-voting-counties-equal-70-of-americas-economy-what-does-this-mean-for-the-nations-political-economic-divide/

Online disinformation affects our national well being. It’s corrosive effect on democracy leads to greater mistrust and skepticism of our institutions. In this week’s episode, host Harvey Rishikof and guest Glenn Gerstell discuss the magnitude of the problem, its long term effects, and what lawyers should be thinking about in an effort to mitigate the problem.

Glenn Gerstell is a senior advisor with CSIS’s International Security Program, and formerly served as the general counsel of the NSA.

This episode references:

- Section 230, Communications Decency Act: https://www.law.cornell.edu/uscode/text/47/230

- Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life: https://www.rand.org/pubs/research_reports/RR2314.html

- Glenn Gerstell, "I Work for N.S.A We Cannot Afford to Lose the Digital Revolution." New York Times, Sep. 10, 2019. https://www.nytimes.com/2019/09/10/opinion/nsa-privacy.html

- Glenn Gerstell, "The National-Security Case for Fixing Social Media." New Yorker, Nov. 13, 2020. https://www.newyorker.com/tech/annals-of-technology/the-national-security-case-for-fixing-social-media