Recordings | 32nd Annual Review of the Field of National Security Law Conference

November 17, 2022

Panel I: Changing Conceptions of National Security Law, 1962-2022

While threats to national security have existed throughout our nation’s history, legal practice and legal education did not recognize a discrete field of National Security Law until late in the 20th century. Following the growth of international terrorism and the cataclysmic attacks of September 11, National Security Law became mainstream in practice and in law schools. The panel will examine the important historical benchmarks of National Security Law in government, private practice, and in the legal academy. The panel will also look ahead and venture predictions about the future role for the rule of law in national security.

November 17, 2022

Panel II: The Economic Tools of National Security

From sanctions on Russia to export controls on technology flows to China, the United States and allied countries are increasingly turning to economic tools to address national security threats. These tools complement or in some cases substitute for military options and raise their own sets of concerns about efficacy, international coordination, and legality. This panel will explore legal and policy issues related to sanctions, export controls, and reviews of foreign investments in the service of national security.

November 17, 2022

Panel III: Does Law Matter: Making the Case for Law during times of Crisis (Session 1)

At times of real and perceived national security threats, policymakers and decision-makers sometimes consider “law” an impediment rather than an asset. Some policymakers think or ask, “Why should we follow the law at times of national security emergency or risk?” It is a fair question. Whether publicly acknowledged or not, it is a question U.S. national security lawyers confront all the time. It is also a question that underpins a lawyer’s ethical obligation to “support and defend” the Constitution. It is an ethics matter, because it is ethics (or the absence of ethics) that lead lawyers to answer the question honestly. It is the lawyers who answer that question persuasively and inspire their “clients” to follow their advice, and the law, which distinguish great national security lawyers from others.

During this Panel on Day One, the Speaker will address the question - does law matter - and other ethical questions, like how to make the case for law in times of crisis, and why the good faith application of law is a national security value, leading to better security outcomes, and not just an expression of legal values.

November 17, 2022

Panel IV: Why Should National Security Lawyers Care About Climate Change?

Following the Intergovernmental Panel on Climate Change’s “Code Red” Report, it is increasingly clear that climate change is impacting national security law in new and complex ways. This panel will address how climate change is affecting a range of U.S. laws, including the natural disaster response legal framework and Defense Support to Civil Authorities. Are the legal authorities governing the military and National Guard adequate to meet the uptick in natural disaster response requests? Relatedly, may the President declare a “climate emergency,” using his delegated authorities under National Emergencies Act?

The panel will also analyze the international legal issues associated with the growing field of climate-security, previewing international climate negotiations underway at COP27 in Egypt. For example, several nations face abandonment and possible statelessness due to sea level rise and extreme weather events, yet “climate migrants” lack legal protections under the World Refugee Convention and other international legal instruments. The panel will discuss the legal rights that could be and should be afforded to climate migrants. Finally, the U.N. Security Council has been reluctant to declare climate change a threat to international peace and security under Article 39. What role should the Security Council play in tackling the climate crisis?

November 17, 2022

Panel V: Civilian Harm Mitigation and Response: Legal Tools from National Security Law and Human Rights Law

Harm to civilians is a devastating but predictable consequence of war. The law has historically been a primary tool for protecting civilians and minimizing the effects of war on their lives. Even so, American and foreign forces continue to prosecute wars and military missions resulting in civilian casualties while the law in this area has continued to grow in this area. As a result, the Secretary of Defense directed a review of civilian harm mitigation and response that is expected to be released shortly. There is also proposed legislation on Capitol Hill related to civilian harm mitigation. How has the law evolved in this area? Are there additional tools we are not using? Should different approaches be considered? Our distinguished panel of experts on this topic will address issues of human rights law, law of armed conflict, military disciplinary tools and military justice, criminal investigations, civil investigations, testimonial immunity, lex specialis vs. lex generalis and other related legal topics.

November 18, 2022

Panel VI: The Future of the Internet and National Security

As the world becomes more closely interconnected through the technology-enabled capabilities provided by the private sector, governments are increasingly seeking to exercise a form of “digital sovereignty” over cyberspace and are putting in place a range of measures that would restrict or prohibit cross-border data flows, regulate on-line expression, and influence norms and standards setting bodies. The justifications for such measures run the gamut from protecting privacy and other fundamental rights, enhancing cyber security, protecting national security, regulating content, and promoting local tech companies. At the same time, governments are also seeking greater access to the data that the private sector collects, processes, and stores. Given the outsize role of U.S. tech companies in processing and communicating the world’s data and hosting its expressive content, government measures primarily impact U.S. players. The United States has traditionally advocated for and recently renewed its call for an “open, free, global, interoperable, reliable, and secure Internet”. Is that vision realistic given global trends toward data localization, digital sovereignty, and the creation of a “splinternet”? Does an open internet create vulnerabilities that can best be addressed by erecting barriers imposing greater controls? What are the implications for cybersecurity and national security?

November 18, 2022

Panel VII: International Law and Justice: Lessons from Ukraine

Following World War II, the first generation of international justice heralded a seismic shift toward rule of law, rather than the law of force. The second generation of modern international justice began to build the architecture to make that idea a reality for victims in the former Yugoslavia, Rwanda, and Sierra Leone, with large scale multilateral tribunals, courts, and transitional justice processes all geared toward making good on the justice promise. This promise ultimately culminated in a permanent war crimes tribunal at the International Criminal Court. The ICC represented an important step forward, but it lacks jurisdiction in many atrocity situations and, even where it does have jurisdiction, deals with only those at the top who are most responsible.

This panel will look at the next frontier. Over the last fifteen years, we have had hundreds of thousands of new victims in Syria, South Sudan, Myanmar, Xinjiang, Ethiopia, and now Ukraine. How do we ensure a satisfactory answer for the vast majority of victims around the globe? It is a pivotal moment: fundamental international laws and norms we have spent decades forming and building and nurturing in support of victims’ calls for justice are being eroded and undermined by authoritarian rulers. Simultaneously, the architecture and systems we have put in place have become gridlocked. Compounding this is a rapidly changing world that will bring new forms of conflict, new crimes, and new victims. Emerging technologies, information and data, climate change, and disappearing geopolitical lines and boundaries require us to not just “think back” to historic precedents, but to think forward and to think differently. This panel will grapple with these issues, using Ukraine as the starting point for the discussion.

November 18, 2022

Panel VIII: Does Law Matter: Making the Case for Law during times of Crisis (Session 2)

Under the heading of “Does Law Matter? Making the Case for Law During Times of Crisis” the Speaker, using in part the chapters in the Model Rules of Professional Conduct, as well as his own writings, will address how to navigate ethical challenges and make the cases for law in times of crisis, including how to persuade doubtful clients that following the law has a national security and ethical value. Following the presentation during Thursday’s panel, the speaker will address questions presented by the audience, submitted in writing in set piece and conversational manner. The focus will be on ethical scenarios that lawyers have faced or might face requiring lawyers to make the case “for law.”

November 18, 2022

Panel IX: Nuclear Weapons and the Law: The Ukraine War and Beyond

Russia’s invasion of Ukraine triggered the most perilous international security crisis since the 1983 Able Archer war scare or the 1962 Cuban Missile Crisis. Like both of those crises, the Ukraine war has raised the risk of use of nuclear weapons by Moscow, Washington, and/or Washington’s NATO alliance. Meanwhile, China seems to be racing to near-peer status as a nuclear power amid rising tensions with the United States, and the nuclear weapons programs of North Korea and Iran are apparently advancing. This session will focus on U.S. law and reform proposals regarding presidential nuclear launch authority (with particular attention to the roles of lawyers and process in launch decisions), international law regarding the possession and use of nuclear weapons, nuclear arms control, and legal efforts to halt or reverse the nuclear weapons programs of North Korea and Iran.

November 18, 2022

Panel X - Public-Private Collaboration on National Security in the 21st Century: Incentives vs Regulation in Cybersecurity and Technology Innovation

As cyber threats from adversary nation-states and non-state actors increase and the economic and political competition with near-peer actors like China continues to accelerate, there is growing pressure on the U.S. government and private industry to work more closely together on defending the nation in the cyber domain as well as to promote technological innovation and production domestically.  A key question in moving forward on these efforts is how best to grow such partnerships and collaborative work.  On one side, there is the argument that, at least in the cybersecurity arena, cooperative efforts have been tried and have failed to achieve a sufficient level of cybersecurity capability and cooperation in the U.S. private sector and that additional government regulation is needed, whether in setting minimum standards for industry or requiring the disclosure of data about threats and attacks.  On the other side, the argument is that real incentives for better cyber defense and innovation haven't really been offered and that if robust liability protection, regulatory safe harbors, and anonymity were offered, industry would be much more willing to closely collaborate and share information with the government on cyber defense.  Likewise, in the technology innovation and domestic production space, there is an ongoing debate about whether and how incentivizing American companies to continue to rapidly innovate ought to be achieved and whether certain technology companies actually need to be regulated more aggressively in order to bring their conduct into line and to create space for new competitors.  Given the economic and national security legal implications of these decisions and the ongoing debates taking place in the administration and Congress, this panel will seek to evaluate the key arguments and legal issues involved and the path forward.