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

National Security Law Today

Leadership, Ethics and COVID-19

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

How Voting Rights are a National Security Tool with Nate Persily

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

Artificial Intelligence, National Security Law and Ethics

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/

Shifting the Great Power Competition: Emerging and Continuing Threats with China with Jim Steinberg

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

National Security Lawyers on Civic Education as a National Security Imperative

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

National Security News Roundup

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/

Critical Issues in National Security Law, The Future – a conversation with Dr. John Hamre

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

Disinformation, Deep Fakes and Truth Decay with Glenn Gerstell

How to Stop the Cyber Killing of America with Sean Joyce by National Security Law Today

How to Stop the Cyber Killing of America with Sean Joyce

The Justice Department’s enforcement of the Foreign Agents Registration Act is the most aggressive in decades. Enacted in 1938, FARA “requires certain agents of foreign principals who are engaged in political activities or other activities specified under the statute to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.” With greater enforcement, lawyers and their clients need to know today how this law applies to them. What are lawyers' responsibilities and obligations under FARA? What are the best practices to comply with the law? David Laufman, partner at Wiggin & Dana LLP and former Chief of Counterintelligence & Export Control in the DOJ National Security Division (responsible for FARA enforcement) explains FARA for lawyers and law firms in this program.

What do lawyers need to know about FARA? LIVE with David Laufman

This episode references: Kleptopia: How Dirty Money is Conquering the World https://www.harpercollins.com/products/kleptopia-tom-burgis?variant=32121952829474 National Security Law Today “Politics of Putin: Why he's attacking NATO, the EU, and America's free and fair elections” September 3, 2020 https://www.americanbar.org/groups/law_national_security/nslt/20200903-politics-of-putin-1/ Foreign Corrupt Practices Act Overview https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act 28 U.S.C. § 1350 (Alien Tort Statute) https://www.law.cornell.edu/uscode/text/28/1350 2021 National Defense Authorization Act https://www.govtrack.us/congress/bills/116/hr6395/text Beneficial Ownership in the NDAA https://wp.nyu.edu/compliance_enforcement/2020/12/14/congress-to-include-significant-expansion-of-beneficial-ownership-disclosure-requirements-for-u-s-companies-and-non-u-s-companies-registered-to-do-business-in-the-united-states-as-a-part-of-the-2021/ “IRS: Sorry, but It’s Just Easier and Cheaper to Audit the Poor” ProPublica, October 2, 2019 https://www.propublica.org/article/irs-sorry-but-its-just-easier-and-cheaper-to-audit-the-poor Tom Burgis is an is an investigations correspondent at the Financial Times and an author https://www.harpercollins.com/blogs/authors/tom-burgis

Kleptocracy and National Security Part 2 with Tom Burgis

This episode references: Kleptopia: How Dirty Money is Conquering the World https://www.harpercollins.com/products/kleptopia-tom-burgis?variant=32121952829474 Suspicious Activity Reports (SAR) https://www.occ.treas.gov/topics/supervision-and-examination/bank-operations/financial-crime/suspicious-activity-reports/index-suspicious-activity-reports.html FINCen Geographic Targeting Order (GTO), Reissued November 4, 2020 https://www.fincen.gov/sites/default/files/shared/508_Real%20Estate%20GTO%20Order%20FINAL%20GENERIC%2011.4.2020.pdf “Tower of Secrets: The Russian Money Behind a Donald Trump Skyscraper” Financial Times, July 11, 2018 https://www.ft.com/trumptoronto 2021 National Defense Authorization Act https://www.govtrack.us/congress/bills/116/hr6395/text Tom Burgis is an is an investigations correspondent at the Financial Times and an author https://www.harpercollins.com/blogs/authors/tom-burgis

Kleptocracy and National Security Part 1 with Tom Burgis

Following the riot at the U.S. Capitol on January 6th, we spoke with longtime national security professors and practitioners William Banks, Mary DeRosa and Harvey Rishikof about the many different security threats and legal implications of last week's events. This episode references: National Security: Emerging Critical Issues CLE Webinar Series https://cvent.me/BNXmX5 The 25th Amendment https://www.law.cornell.edu/constitution/amendmentxxv Articles of Impeachment introduced in the House https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf Mayor Bowser’s Letter to U.S. Department of Homeland Security Acting Secretary Chad Wolf Regarding Inauguration Preparations https://mayor.dc.gov/release/mayor-bowser%E2%80%99s-letter-us-department-homeland-security-acting-secretary-chad-wolf-regarding 18 USC § 2384, Seditious conspiracy https://www.law.cornell.edu/uscode/text/18/2384 18 USC § 2381, Treason https://www.law.cornell.edu/uscode/text/18/2381 18 USC § 2383, Rebellion or insurrection https://www.law.cornell.edu/uscode/text/18/2383 52 USC § 20511 https://www.law.cornell.edu/uscode/text/52/20511 40 USC § 5104, Unlawful activities [in the United States Capitol Buildings and Grounds] https://www.law.cornell.edu/uscode/text/40/5104 "If Trump pardons himself now, he’ll be walking into a trap" Asha Rangappa, Washington Post, January 8, 2021 https://www.washingtonpost.com/outlook/trump-raffensperger-pardon-prosecute/2021/01/06/a32388fe-4f9d-11eb-bda4-615aaefd0555_story.html FBI Statement Before the House Oversight and Reform Committee. "Confronting White Supremacy" June 4, 2019 https://www.fbi.gov/news/testimony/confronting-white-supremacy "Hate Crimes in U.S. Rose to Highest Level in More Than a Decade in 2019" New York Times, November 16, 2020 https://www.nytimes.com/2020/11/16/us/hate-crime-rate.html "Pelosi asks Joint Chiefs about preventing Trump from launching nukes" Politico, January 8, 2021 https://www.politico.com/news/2021/01/08/pelosi-trump-take-away-nuclear-codes-456529 "Amazon Will Suspend Hosting For Pro-Trump Social Network Parler" Buzzfeed News, January 9, 2021 https://www.buzzfeednews.com/article/johnpaczkowski/amazon-parler-aws "From ‘beautiful’ to ‘disgraceful’: World reacts to Capitol riots" Atlanta Journal-Constitution, January 7, 2021 https://www.ajc.com/news/nation-world/from-beautiful-to-disgraceful-world-reacts-to-capitol-protests/JONZQYHFKZFQ5GKOUP4QHOK2XE/ "Kim Jong Un Calls U.S. North Korea's 'Biggest Enemy,' Vows To Advance Nuclear Arsenal" NPR, January 9, 2021 https://www.npr.org/2021/01/09/955192283/kim-jong-un-calls-u-s-north-koreas-biggest-enemy-vows-to-advance-nuclear-arsenal Past NSLT podcasts on Impeachment https://www.americanbar.org/groups/law_national_security/nslt/20191219-impeachment-national-security-and-the-law/ The Mueller Report https://www.americanbar.org/groups/law_national_security/nslt/20190502-what-have-we-learned-from-the-mueller-report-part1/ Pardons https://www.americanbar.org/groups/law_national_security/nslt/20201203-pardons-clemency1/ Domestic Terrorism https://www.americanbar.org/groups/law_national_security/nslt/20210107-domestic-terrorism/ The Insurrection Act https://www.americanbar.org/groups/law_national_security/nslt/20200605-insurrection-act/ 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 Mary DeRosa is a professor at Georgetown University Law Center and the Chair of the Advisory Committee https://www.law.georgetown.edu/faculty/mary-b-derosa/ Harvey Rishikof is the Director of Policy and Cyber Security Research at the University of Maryland ARLIS and the Senior Counselor to the Committee https://www.aspeninstitute.org/our-people/harvey-rishikof/

Siege at the Capital – The National Security Law Perspective

Seth Jones is a Senior Adviser at CSIS and terrorism researcher discusses the growing terror threat from domestic political extremists - a threat that played out in the assault of the US Capitol on January 6, 2021 This episode references: The ABA President's Statement on the violence at the Capitol https://www.americanbar.org/news/abanews/aba-news-archives/2021/01/statement-of-aba-president-patricia-lee-refo-re--violence-at-the/ "Pro-Trump mob storms US Capitol in bid to overturn election" AP, January 7, 2021 https://apnews.com/article/election-2020-joe-biden-donald-trump-elections-electoral-college-78104aea082995bbd7412a6e6cd13818 Senate Hearing "Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?" October 28, 2020 https://www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-immunity-enable-big-tech-bad-behavior Seth Jones "The War Comes Home: The Evolution of Domestic Terrorism in the United States" October 22, 2020 https://www.csis.org/analysis/war-comes-home-evolution-domestic-terrorism-united-states Hunting in the Shadows The Pursuit of Al Qa'ida Since 9/11 https://wwnorton.com/books/9780393081459 In the Graveyard of Empires: America's War in Afghanistan https://www.amazon.com/Graveyard-Empires-Americas-War-Afghanistan/dp/0393338517 A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland https://www.amazon.com/Covert-Action-Reagan-Struggle-Poland/dp/0393247007 How Terrorist Groups End: Lessons for Countering al Qa'ida https://www.rand.org/pubs/monographs/MG741-1.html Seth Jones is the Director of the Transnational Threats Project and a Senior Adviser in the International Security Program at the Center for Strategic and International Studied (CSIS) https://www.csis.org/people/seth-g-jones

Rebroadcast: Today's terror threats come from domestic extremists with Seth Jones

This week we discuss the must-pass National Defense Authorization Act which funds much of the defense and national security operations in the US and would add some interesting new cybersecurity protections. This year's bill is unusually controversial, with fights about social media regulations threatening the smooth passage of the legislation. This episode references: The 2021 National Defense Authorization Act https://www.govinfo.gov/content/pkg/BILLS-116hr6395enr/pdf/BILLS-116hr6395enr.pdf "Trump says he will veto $740 billion defense bill, breaking with Republican-led Senate" CNBC, December 17, 2020 https://www.cnbc.com/2020/12/17/trump-says-he-will-veto-defense-bill.html Cyberspace Solarium Commission https://www.solarium.gov/ "Six Pillars of Cyber Deterrence with Suzanne Spaulding," NSLT Podcast, March 19, 2020 https://www.americanbar.org/groups/law_national_security/nslt/20200319-six-pillars-of-cyber-deterrence/ "Senate approves defense bill establishing cyber czar position, subpoena power for cyber agency" The Hill, December 11, 2020 https://thehill.com/policy/cybersecurity/529888-senate-approves-defense-bill-establishing-cyber-czar-position-subpoena FireEye Hack Explainer https://www.fireeye.com/blog/threat-research/2020/12/evasive-attacker-leverages-solarwinds-supply-chain-compromises-with-sunburst-backdoor.html "How suspected Russian hackers outed their massive cyberattack" Politico, December 16, 2020 https://www.politico.com/news/2020/12/16/russian-hackers-fireeye-cyberattack-447226 "How does CISA and the intelligence community protect American elections? With Dan Sutherland" NSLT Podcast, October 8, 2020 https://www.americanbar.org/groups/law_national_security/nslt/20201008-cisa-elections-voting-security/ "Public Service and National Security with Avril Haines and Paul Lekas" NSLT Podcast, April 16, 2020 https://www.americanbar.org/groups/law_national_security/nslt/20200416-public-service-and-national-security/  Section 230 of the Communications Decency Act https://www.law.cornell.edu/uscode/text/47/230 Andrew Borene is Managing Director for the US Public Sector at Cybereason https://www.american.edu/spa/faculty/borene.cfm Adam Pearlman is the Founder and Managing Director of Lexpat Global Services https://www.lexpatglobal.com/staff_trusted/adam-pearlman/

The fight over funding next year's national security budget with Andrew Borene and Adam Pearlman

National Security Law Today brings legal experts discussing the hot topics and current issues in the world of national security law right to your phone. Get information and advice for lawyers, law students or interested parties who want to dig deeper into the law that protects the country.